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Varieties of Liberalism: Contemporary Challenges [Unabridged]
 1443858129, 9781443858120

Table of contents :
TABLE OF CONTENTS
ACKNOWLEDGEMENTS
INTRODUCTION
PART I
CHAPTER ONE
CHAPTER TWO
CHAPTER THREE
CHAPTER FOUR
PART II
CHAPTER FIVE
CHAPTER SIX
CHAPTER SEVEN
CHAPTER EIGHT
CHAPTER NINE
CHAPTER TEN
PART III
CHAPTER ELEVEN
CHAPTER TWELVE
CHAPTER THIRTEEN
CHAPTER FOURTEEN
CHAPTER FIFTEEN
CHAPTER SIXTEEN
INDEX

Citation preview

Varieties of Liberalism

Varieties of Liberalism: Contemporary Challenges

Edited by

Jan Harald Alnes and Manuel Toscano

Varieties of Liberalism: Contemporary Challenges, Edited by Jan Harald Alnes and Manuel Toscano This book first published 2014 Cambridge Scholars Publishing 12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2014 by Jan Harald Alnes, Manuel Toscano and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-5812-9, ISBN (13): 978-1-4438-5812-0

For our dear friend and esteemed colleague, José María Rosales

TABLE OF CONTENTS

Acknowledgements ..................................................................................... x Introduction ............................................................................................... xii Part I: Free Speech and Deliberation Chapter One ................................................................................................. 2 Free Speech and the Public Sphere in Robert Post’s Theory of Freedom of Expression Tomasz Jarymowicz Chapter Two .............................................................................................. 19 Religion and (Mis)recognition: Axel Honneth and the Danish Cartoon Controversy Jonas Jakobsen Chapter Three ............................................................................................ 35 Socio-technical Controversies, Democracy and Deliberation: New Challenges for Political Philosophy Paloma García-Díaz Chapter Four .............................................................................................. 52 Deliberation for Concrete Cases: Mill’s Logic of Practice Rafael Cejudo Part II: Citizenship and Democracy Chapter Five .............................................................................................. 70 Democratic Education and Reasonable Pluralism Jan Harald Alnes Chapter Six ................................................................................................ 90 When Civic Virtues Become Vices: German Imaginaries and Democracy Inger-Elin Øye

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Chapter Seven.......................................................................................... 110 John Stuart Mill’s Liberal Nationalism: Revising Contemporary Interpretations through Contextual History Rosario López Chapter Eight ........................................................................................... 130 Rethinking Representation, Citizenship and Identity: Towards a Radical Pluralism Samuel Hayat Chapter Nine............................................................................................ 150 Democracy and the Crises of Common Goods Øyvind Stokke Chapter Ten ............................................................................................. 172 Beyond the Nation-State: The European Union and Supranational Democracy Marta Postigo Part III: Justice, Borders and International Law Chapter Eleven ........................................................................................ 190 Citizenship and Nation-State: Some Normative Problems Ana Isabel Dapena Chapter Twelve ....................................................................................... 204 Right to Hospitality, Right to Membership: a Critical Review of Kant's and Benhabib's Cosmopolitan Accounts on Immigration and Borders Melina Duarte Chapter Thirteen ...................................................................................... 223 “Shall Not Be Denied The Right To Use Their Own Language”: A Hohfeldian Analysis of Language Rights Manuel Toscano Chapter Fourteen ..................................................................................... 242 Land Claims: Economic Liberalism vs. Indigenous Tradition— Does the Government Have a Moral Responsibility to Rectify the Unjust Past? Tore Kristian Haaland

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Chapter Fifteen ........................................................................................ 264 Historical Experience, Moral Learning and International Law Arne Overrein Chapter Sixteen ....................................................................................... 283 Normative Considerations on the Development Process from a Liberal Perspective: Amartya Sen and Celso Furtado Fabian Scholze Domingues Index ........................................................................................................ 297

ACKNOWLEDGEMENTS

This book is the outgrowth of the Conference Themes in Contemporary Ethics and Philosophy III held at the University of Tromsø August 24–27 2012.1 The conference was co-organized by the Civic Constellation Project (FFI2011–23388) initiated by the group of moral and political philosophers at the Department of Philosophy, the University of Málaga and the research group Pluralism, Democracy and Justice at the Department of Philosophy, the University of Tromsø. The former two conferences were co-organized by the project The Rhetoric of Democracy at the Department of Philosophy, the University of Málaga and Pluralism, Democracy and Justice. While the two previous conferences were dominated by philosophers from the project and the research group respectively, this conference was different. It had participants from other Spanish and Norwegian universities, from other countries, and from departments of the Social Sciences, which no doubt contributed to the high quality of this encounter between researchers engaged in demanding contemporary ethical and political questions. We are grateful both to the “core-participants” from our two departments, who made this series possible, as well as to our new acquaintances, for making the conference a great happening, with respect to academic quality as well as to social atmosphere. Both these factors made us willing to undertake the task of turning the presentations at the conference into a publication. We furthermore appreciate that the host of the conference, the Department of Philosophy, the University of Tromsø, organized the accommodation and provided a friendly atmosphere that included lunches, beverages and coffee. We are also grateful to the audience, members of the staff as well as students, for helping to make the sometimes heated, but always respectful, discussions even better than they otherwise would have been. As is common with publications based on international conferences, and for a number of reasons, not all of the presentations have been rewritten and prepared for this anthology. The authors of the included Chapters have endured a process of revision, during which they had to 1

The University of Tromsø changed its name to “UiT The Arctic University of Norway” in the autumn of 2013. As the conference took place before this happened, we here use its former name.

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meet various deadlines and respond to our successive rounds of requests, suggestions and inquiries about form and content. More than once, this has led to substantial rewriting. No doubt the editing work put their patience to the test, and we are fortunate and thankful for having been able to count on the full cooperation and willingness of the contributors. As the convenors of Themes in Contemporary Ethics and Philosophy III, as well as the editors of this book, we would like to give special thanks the Departments of Philosophy at the University of Málaga and the University of Tromsø for their continuous encouragement of this fruitful international cooperation. Immediately before the conference took place, we were approached by Carol Koulikourdi on behalf of Cambridge Scholars Publishing. She has been encouraging and helpful in all ways. Thanks to her we decided to attempt at publishing a worked-out book rather than simply the proceedings of the conference. We would also like to thank the typesetters, Keith Thaxton and Amanda Millar, for their flexibility and good advices. We are furthermore grateful to Peter Simon. Thanks to his scrupulous reading of the entire manuscript, it improved to a considerable degree and in numerous ways. His valuable suggestions and comments went far beyond the regular duties of a proofreader. Our warmest thanks go to José María Rosales. As the principal investigator of The Civic Constellation Project, he is a keen promoter of international networking and academic meetings, like the conference from which this book was born. It goes without saying that José has been a constant source of encouragement and support in our publishing venture. After so many talks and pursuits together, the dedication of this book is a pleasant debt of friendship. Hopefully, the people mentioned and referred to above, feel proud of the present book. It is you who made it happen. Thank you!

INTRODUCTION JAN HARALD ALNES AND MANUEL TOSCANO

All the chapters were presented at the conference Themes in Contemporary Ethics and Philosophy III, University of Tromsø August 2427, 2012. Most of them have been considerably revised in the light of both the fruitful discussions at the conference and the guidance provided by the editing process. When reflecting on possible publication, we soon realized that the presentations revolved around different conceptions and ideas belonging to liberalism, all of which are central to a substantial number of contemporary theoretical and political debates. In our mind, and as will be further displayed below, the title Varieties of Liberalism: Contemporary Challenges fairly reflects the main thread of the Conference. We begin by giving a general introduction to the topics of the chapters. This gives us the opportunity to make some general comments about liberalism per se and, in particular, to draw some useful distinctions. By taking advantage of the bird’s eye view, we attempt to show, to the best of our understanding, when authors or positions are in real opposition or when terminology is the reason for conflicting claims. We find this particularly important since some of the chapters take liberalism for granted, while others are highly sceptical of liberalism: but do the authors always mean the same, or even something similar, when they speak of liberalism? After these clarifications, we give an introduction to each of the three parts and we isolate the main topics and points of the chapters.

Aspects of Liberalism A well-known quandary when such political concepts as liberalism are under consideration is the fact that supporters and detractors often appear to be discussing different subjects. The situation is even worsened when that happens among discussants who profess to be liberal, but whose claims about politics, economics and society are different and conflicting. The term “liberal” acquires virtually opposite senses in the public cultures of different countries. Roughly, in the United States “a liberal” is a person who advocates social justice, the redistribution of wealth and governmental

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intervention, while in France, Spain and Latin America “a liberal” denotes almost the opposite, and it means a person who favours deregulated markets and the limited role of the state with regard to economic and societal issues. The problem is greatly amplified when we look back on history. In what is called, with some hindsight bias, “the liberal tradition”, we find a large variety of political causes and claims, and different views about political and social arrangements as well as a cluster of ideas and principles of political morality. It is hard to find claims and principles that serve as common core of different liberal approaches, and even more unlikely so over time (Raz 1986: 1). To take into account this internal variety that defies definition, some authors have resorted to Wittgenstein's idea of “family resemblance”, as Jeremy Waldron did in a celebrated essay on the theoretical foundations of liberalism: If we examine the range of views that are classified under any one of these labels, we may find what Wittgenstein referred to in another context as “a complicated network of similarities overlapping and criss-crossing” […] but we are unlikely to find any set of doctrines or principles that are held in common by all of them, any single cluster of theoretical and practical propositions that might be regarded as the core or the essence of the ideology in question (Waldron 1993: 35).

The term “liberalism” (and its relative “liberal”) refers to a loose family of views, claims and principles. The liberal tangle is composed of many threads, so to speak, but none of them is the defining or essential feature. Besides, there is another complication, underlined by Waldron, as we regard not only variety within liberalism, but also the interplay and exchanges with other ideological families and traditions of political thought. As the boundaries are blurred, it is not easy to find features that definitely distinguish certain versions of liberalism from other traditions of political thought (Waldron 1993: 36). Actually, since the nineteenth century, some liberal positions melt into conservatism, and after the break with Marxism and revolutionary politics, social-democratic reformism in many European countries incorporates significant liberal strands and entertains close ties to egalitarian liberalism. The complexity of the subject is further amplified by the variety of perspectives in the study of liberalism and the irresistible specialization of academic research nowadays. Michael Freeden, for instance, notices three broad perspectives coexisting side-by-side in the studies on liberalism: 1) “liberalism as history”, taken as narratives and accounts of the emergence and change of beliefs, political movements and institutions considered in

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historical context and time; 2) “liberalism as ideology”, understood as configurations of political concepts according to patterns or family resemblances discovered through the analysis of political languages and discourses in the broadest sense, including different sources outside the canon of political thought; and 3) “liberalism as philosophy”, considered as a set of moral arguments and debates about the justification of political actions and institutions, like theories on the principles of a just society (Freeden 2004: 4-5). And even further distinctions are possible. Thus in a recent paper, José María Rosales reflects on the history and development of liberalism in comparative perspective and discerns four facets to explain its complexity: “as a concept, theory, ideology and political movement” (Rosales 2013). The variety of standpoints is recognizable at any meeting on liberalism gathering scholars from different fields, such as history, political science and philosophy. The division of scholarly labour may lead to trouble: each point of view illuminates certain aspects, but neglects other dimensions and possibilities. In those gatherings it is not easy to find common ground and proximity often just highlights the lack of mutual understanding. While not common, some voices complain about the costs of isolation and narrowness accompanying overspecialization in the study of liberalism. Once again, Michael Freeden draws critical attention to the highly specialized language of late-twentieth century liberal philosophers, “directed mainly at their colleagues rather than at the thinking public”, and compares the current situation with Mill’s writings in his time as they were able to reach a wider audience (Freeden 2004: 6). As liberal political philosophy drifts apart from other disciplines and the general public, there are reasons for regret: The loss is a double one: to historians and students of ideology because they no longer are as keenly in touch with the critical and reflexive testing of liberal principles; and to political philosophers because they no longer are significantly in touch with the political and cultural constraints that ensure the viable flexibility liberalism requires, as it competes in the realworld arena of policy-making, of reform, of social inspiration and political mobilisation (Freeden 2004: 6).

This variety of approaches represents a real challenge to expand and enrich our view of the different aspects of liberalism, but also raises questions about how to find bridges and common concerns among different perspectives. Although methodological in character, it was a major challenge raised at the conference Themes in Contemporary Ethics and Philosophy III, as the participants came not only from different

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countries, but also from different academic backgrounds and disciplines. The present chapters reflect the variety of approaches at the conference in Tromsø. Chapter Six, by Inger-Elin Øye, voices the implied concern for the problem of narrowly drawn disciplinary boundaries, but other contributions also reflect on issues related to approach and focus. In the light of this complexity, we are not going to provide any definitions; instead, we give explications by utilizing basic distinctions. We reserve the term “philosophical liberalism” for a way of thinking characterized by authors as diverse as Immanuel Kant, John Stuart Mill, John Rawls, Jürgen Habermas and Will Kymlicka, to mention just a few of the significant figures discussed in the chapters. In the plentiful analyses of philosophical liberalism to be found in this book, these authors are seen as exemplars of a tradition of liberalism understood as an on-going debate.1 They emphasize and attempt to balance the fundamental normative ideas of equality, liberty and social responsibility. They all firmly believe that a form of representative, constitutional democracy is the superior, or even the only, way of realizing their proposed balance. As public reason is important to their understanding of such a democracy, they subscribe to some version or another of deliberative democracy. It is indicated by several of the chapters that despite fundamental agreements at a certain level, these influential authors disagree strongly on other issues. It is furthermore important to be aware that when modern liberalism took form, late in the eighteen century, it contained founding and original ideas that in the philosophy of today might have been forgotten or even misunderstood. An insight into the birth of modern liberalism might well throw light on the social realities of today and on contemporary debates. Two of the chapters are particularly significant in this respect. In Chapter Eight, Samuel Hayat goes back to the origin of the French branch of liberalism. This is part of his attempt at singling out the original core of liberalism. In that light, he proposes an alternative way of structuring representation in our contemporary liberal democracies. His argument moves mainly between “liberalism as history” and “liberalism as ideology”, and he demonstrates the relevance of both to the normative debates of today. Rosario Lopez maintains, in Chapter Seven, that leading contemporary liberals, in particular those having a communitarian or culturalist penchant, are at fault when they maintain that they get support from John Stuart Mill’s understanding of nationalism as based on sentiments. Since Mill is among the forefathers of today’s philosophical liberalism, and plays a dominant role in a number of the chapters, his understanding of 1

On the role of exemplars in the making of traditions as well as in discussions on politically contested concepts, see the seminal article of Gallie 1956.

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fundamental political and social notions is quite important, not only historically, but also analytically. Contextual and conceptual historical approaches offer valuable insights to philosophical discussions. Philosophical liberalism needs to be distinguished from libertarianism, on the one hand, and socialist traditions like Marxism on the other. The former position is too little concerned with our responsibilities and duties towards others, while the latter doesn’t to a sufficient degree take into account individuality and autonomy.2 At least in Europe, the majority of those who subscribe to philosophical liberalism favour a welfare state of the social-democratic form. It is equally important to separate philosophical liberalism from economic liberalism. In our contemporary jargon, the latter is a specific understanding of the organization of society and international affairs based on a generalization of laissez faire economics: that is, free markets, free movement of labour, goods and capital, and minimal intervention from the state, to all sectors of life. This position chimes closely with libertarianism, but not with philosophical liberalism. The significance of drawing this distinction is evident from the final chapter, where Fabian Scholze Domingues explicitly argues against economic liberalism from the standpoint of philosophical liberalism. He even draws on two economists and philosophical liberalists, namely Amartya Sen and Celso Furtado. The distinction is also important in order to grasp the criticism of liberalism voiced in the chapters of Haaland and Stokke. Being highly critical of liberalism, we understand them to object to economic liberalism, rather than philosophical liberalism. Indeed, Stokke can be read as using arguments of liberal persuasion against policies inspired by economic liberalism. Clearly, then, when one talks about the ideology of liberalism, it is mandatory to clarify the invoked meaning of the term “ideology”.3 There is a striking tendency in today’s political philosophy to discuss concrete cases, to combine philosophical research with other fields, like history, political science, linguistics or pedagogy, and to voice opinions on ethical and political issues. All the chapters fall under this description; none of them is “purely” philosophical or “purely” interpretative and they relate to pressing contemporary issues. The title Varieties of Liberalism might raise a number of expectations: it might be understood in the direction of different uses of the term “liberalism”, it might suggest conflicting philosophical positions, it might indicate a cluster of topics, and it might be taken to mean that a number of 2

“Autonomy” is here used loosely: see the final paragraph of this introduction. On the use of ideology as theoretical tool in political theory, see Freeden1996, 2004.

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issues will be treated. Each of these prejudgements (in the hermeneutic sense of the term) is satisfied by the present collection of chapters.

Part I: Free Speech and Deliberation (a) Thematic Overview The four chapters grouped together here are intimately linked. The reason they come first is that they treat two of the fundamental and notoriously difficult notions in contemporary philosophical liberalism, freedom of speech and deliberation. In the introduction to his classical On Liberty, written in 1859, John Stuart Mill states that “Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion” (Mill [1859] 1977: 224). Mill is clearly right: free speech among equals is a precondition for the modern world, as well as an indispensable principle for further development. Mill was not only a philosopher, but also an MP, and he knew as well as anybody that the concepts of free speech and equality are vague and applicable in society and the public sphere in drastically different ways. Unrestricted implementation of either free speech or equality is unrealizable, and not even an ideal. For instance, to be counted equal from the political viewpoint, one must be of age. This is not particularly controversial, although states vary as to what age gives the right to vote, and thus when they regard their inhabitants as having become full or reasonable citizens. Far more controversial is the issue as to whether “equal” should be taken to mean “equal person” or “equal citizen”. The distinction between being a citizen in a state and being a person living in a state is focused in Chapters Eleven and Twelve. In this part, the principal theme is whether, and eventually to what degree, one should put legal or moral constraints on the ideal of free speech. To be a citizen is to have certain responsibilities. In some circumstances, as Mill observed, this means that one cannot say whatever one wants, even though one takes it to be true and could have said it in other circumstances: An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard (Mill [1859] 1977: 260).

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In our contemporary, multicultural climate, the debate on free speech must be far more complex and nuanced than assumed by Mill, even though he formulated the adequate, liberal context: the significance of the principle of free and equal discussion is inseparable from the social and political activity of public deliberation and the use of public reason. Practically all defenders of modern constitutional liberal democracies, and certainly the authors in this part, agree on the significance of this activity.4 But there is a prevailing disagreement about the scope of free speech among proponents of deliberative democracy. The most liberal view is held by the “absolute theorist”, to borrow Jarymovicz’s phrase, while other theorists propose stricter limits. Chapters One and Two raise this issue in their own distinctive way. But, obviously, deliberations also have other important philosophical aspects. One concerns the role of science, technology and experts in the public debate. This theme is focused on in Chapter Three. Another aspect of deliberation is that a unanimous agreement or a solution without considerable costs is quite often unreachable. Chapter Four is devoted to this aspect of our contemporary social and political setting. The fundamental connection between the four chapters in this part, then, is that they all scrutinize the interconnected notions of deliberation, public reason, communication and the public sphere. This is done from four different perspectives and theoretical standpoints.

(b) An Overview of Chapters 1–4 In Chapter One, “Free Speech and the Public Sphere in Robert Post’s Theory of Freedom of Expression”, Thomasz Jarymowicz scrutinizes the interconnection between the right to free speech and the understanding of the public sphere in Post’s theory. Jarymovicz’s starting point is Post’s grounding of a wide freedom of expression in the public or political sphere, in what he calls political autonomy. Political autonomy derives from formal equality and negative freedom. Jarymowicz maintains that Post takes formal equality and negative freedom, together with property rights, to be pre-political individual rights; they are “like an implementation of natural laws”. Thus, a democracy and the deliberation within it, must pay due respect to the external limits set by political autonomy. Since political autonomy grounds a liberal notion of free expression, these deliberations cannot be given justified limits by the authorities or some of 4

One of few exceptions is the understanding of philosophical liberalism expressed in Galston1991.

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the participants in the deliberation. Thus, Post finds the limits often proposed on political or public hate-speech unjustified as it offends against fundamental human rights. The deep problem with this way of reasoning, according to Jarymowicz, is that it presupposes a simplified picture of public deliberation or discourse. In Jarymowicz’s words: “Deliberative democracy theory places a great emphasis on transformation of preferences and learning processes in the public deliberation. Given the fact that Post’s version of autonomy is static and resistant to change it […] implies a vision in which we enter a public sphere with our interests and preferences and want to push them as hard as possible rather by way of bargaining than by arguing through justifications that are general and reciprocal enough to convince fellow citizens”. But this understanding goes against the view on communication that has been developed by Habermas and those inspired by him. These authors include in their theory of communication or public reason ideas of reciprocity and universal moral respect. Such factors are called “context-transcending values”, as they hold for all communication aimed at the truth or the right. But to include such values in one’s reasoning about the public sphere would, according to Post, set unjustified limits to the unconditioned notion of political autonomy. But without such factors, one could seriously question whether the citizens would find the outcome of the deliberations justified and binding. Jarymowicz concludes that “Post’s idea of political autonomy as the justification for freedom of speech is not normatively robust enough to forge a viable political community which would effectively and justly govern itself in the public sphere”. If this claim is correct, then Post’s view of political autonomy as the limit for public deliberation cannot be upheld. Chapter Two, “Religion and (Mis)recognition: Axel Honneth and the Danish Cartoon Controversy” by Jonas Jakobsen, takes as its starting point the well-known “Danish cartoon controversy” from 2006 onwards. Jakobsen asks: was Jyllands-Posten wrong in publishing the cartoons called “The face of Mohammad”, and if so, on what grounds? JyllandsPosten defends the printing by an appeal to the principle of freedom of expression.5 Jakobsen treats the subject of free speech from a radically 5

One could apparently claim that the printing encouraged violence, and thus goes against Mill’s principle. But note the crucial and additional factor that from this perspective, it is the “adversary” who is encouraged to take action. The evident possibility of violent reactions was taken into account by Jyllands-Posten, and, as pointed out by Jakobsen, many Muslims saw the printing as calculated to provoke reactions from them, so that the Jyllands-Posten afterwards could claim that those reactions demonstrate that the Muslims are undemocratic and opposed to fundamental democratic rights.

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different point of view than Jarymowicz, although their conclusions are compatible. Jakobsen focuses on moral issues, not legal ones. He is not occupied with legal restrictions on free speech, but asks whether JyllandsPosten had a moral right to publish the cartoons. Jakobsen thinks that this question can only be answered by going into the details of the Muslims’ situation in Denmark when the cartoons were printed. Thus, he does not want to draw any universally valid conclusion about the printing of such cartoons, but discusses whether it was right in the given circumstances. Jakobsen’s preferred way of describing the circumstances is by invoking and generalizing central features of Honneth’s social philosophy, in particular his theory about the fundamental human struggle for recognition. The background to which the printing of the cartoons must be seen is a “remarkably harsh tone in the Danish debate on Islam and Muslims after 2001 […] related not only to the global repercussions of the 9/11 terror attack, but also to the shift from a Social Democratic government to a government led by the liberal party Venstre, which became dependent on the support from the nationalist and strongly Islamcritical Danish People Party (DPP).” Jakobsen’s paper is balanced and carefully drawn, and we can only give a rough structure of his line of thought. Jakobsen objects to the manner in which Flemming Rose, the cultural editor of Jyllands-Posten, justified the printing by appealing to the principle of free speech and by warning against the risk of giving the Muslims “special consideration” not granted to other groups. In Jakobsen’s words, “Showing solidarity with Muslims in this case may go hand–in-hand with a principled defence of the legal right to publish such cartoons, and […] with a complete rejection of all kinds of threats and violence in the name of religion. Furthermore […] giving special consideration to particular persons or groups in particular circumstances is not just something we do each day, it is also a much needed democratic virtue in multicultural societies where some groups feel misrecognized and unwelcome”. Jakobsen provides solid evidence for the fact that the Muslims did not feel recognized in Denmark at the time insofar as they were struggling for recognition. In this situation, to invoke Jakobsen’s phrase, a civilized and respectful public debate was unattainable. The publications could not but be understood by the Muslims as yet another attack on them personally and as a group. As we view matters, the main moral to be drawn from Jakobsen’s paper, is, first, that an appeal to abstract principles independently of real social and political circumstances might disturb a debate and make the discussants speak past each other and not to a common theme, and, second, that without an atmosphere of

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mutual trust and respect, public debates might go severely off course. This latter point is crucial to Chapter One as well. The third chapter, by Paloma García-Díaz, is entitled “Sociotechnical Controversies, Democracy and Deliberation: New Challenges for Political Liberalism” The motivation of the paper is the undeniable fact that the development of our modern world is, to a considerable degree, dependent on science and the application of scientific findings to a wide range of issues. A number of such applications involve deep ethical and moral questions and take us into the field of applied ethics. García-Díaz points out that discussion of this issue, even though not new, has not been raised to a sufficient level by contemporary political philosophers. In concordance with the other chapters in this part, she starts from the model of deliberative democracy. She discusses several different arguments and models developed in the interdisciplinary field of “Science and technology studies” (STS), and argues that political philosophy should study the reflections of STS. Political philosophy would thereby be in a position both to develop further the deliberative model and to obtain a deeper insight into the complex relationship between participatory politics and real politics. Since our daily life is increasingly dominated by the use of technologies that derive from new scientific findings, García-Díaz is unquestionably right in stressing that political philosophy can no longer view the questions about science and technology from a distance: to use an example close at hand but not invoked by García-Díaz, it must go beyond abstract talk about science and technology as characterized by a mean-goal rationality. Instead, or complementarily, cases must be looked upon in detail, and one must reflect on the layman’s role in decision-making, in particular. As stated, John Stuart Mill not only was among the founding fathers of contemporary liberalism, he was in addition a politician, an MP. Mill’s understanding of deliberation in concrete cases that inevitably “involve specific power relations and disparate values conflict” is the starting point of Chapter Four, “Deliberation for concrete cases: J.S. Mill’s logic of practice”, by Rafael Cejudo. Viewed from the title, Cejudo’s theme appears to be purely historical. One might suppose that as philosophical liberalism has matured, far more sophisticated models for deliberations have been worked out, and that from an analytic point of view, Mill’s reflections on this issue belong to the past. But, claims Cejudo, such is not the case. Rather, Mill’s ideas on this subject are of high value to the growing subject of applied ethics. The line of reasoning in the chapter is dense and substantial. We can accordingly preview only a few of its main points. Cejudo gives an interpretation of the final chapter of Mill’s A

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System of Logic, where Mill develops his account of the Art of Life. This art concerns human actions and decisions for actions. The art stands in a certain relationship to science, in that, roughly speaking, art specifies a goal, while science gives ways to reach that goal. Art decides whether the prescribed acts are of such a nature that one should undertake them. As the goal is not, and cannot, be provided by the sciences, it is of a teleological nature and, consequently, imperative. But, as a politician, Mill is fully aware that deliberations for concrete cases involve conflicts of interests, and thus often require compromises (otherwise, deliberation would not be needed, or would be of a deductive nature). A major purpose of the chapter is to spell out the nature of such compromises and their relation to the teleological principle that grounds the art of life. Mill’s model, it is claimed, has a significant bearing on the applied ethics of today. Although this chapter and the one by García-Díaz are thematically closely connected, there is a crucial difference in that the deliberations discussed by García-Díaz are public in nature, while Cejudo spells out a certain view on the logical structure of deliberation qua deliberation. Accordingly, his account is more or less independent of the distinction between the private and the public sphere.

Part II: Citizenship and Democracy (a) Thematic Overview Issues about citizenship and democracy are the common thread running through these six chapters. It is hardly necessary to emphasize the centrality of the two notions within liberal thought and, more generally, in contemporary political philosophy. By the use of different approaches and attention to specific aspects, this part offers a set of illuminating perspectives on them. The first two chapters pay special attention to the role of civic virtues, especially those related to the public use of reason, in order to explicate the principles behind the education of citizens and the public culture of democratic societies. By contrast, Chapters Seven and Eight, each in their own way, turn to history to enrich our current discussions and review critically well-established readings and assumptions. The final two chapters focus more strictly on legal and institutional aspects, such as the constitutional protection of common goods, the prospects of devising new forms of democratic representation, and accountability beyond the framework of nation-states. The attentive reader, however, might trace even further similarities and criss-crossed links between the chapters in this part. Here are just a few examples:

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Chapters Five and Seven are devoted to the work of two outstanding liberal philosophers, John Stuart Mill and John Rawls, and they critically treat dominant and widespread interpretations. Chapters Eight and Nine adopt a very critical standpoint on liberalism broadly understood in ideological terms, thereby engaging with some longstanding assumptions on the liberal tradition. Chapters Six and Ten relies on case studies, anthropological fieldwork in an east German land and the analysis of the institutional architecture of the European Union respectively, when they discuss issues concerning the virtues of citizenship and the possibility of democracy in post-national institutions. Moreover, besides dealing with different aspects of the relationship between citizenship and democracy, the chapters not only reveal the internal complexity of liberalism, but also the shortcomings of some liberal views. From different points of view, they show how this complexity and internal variety might be helpful and illuminating in the treatment of current challenges. In Chapter Five, Jan Harald Alnes discusses one of the most important dividing lines in contemporary liberal philosophy, taking sides with political liberalism against comprehensive liberalism. As he explains, this opposition among liberals illuminates the full-fledged challenge of justifying the aims of educating citizens in pluralistic and democratic societies. Against the narrow focus of normative theories, Inger-Elin Øye claims that civic virtues should be understood in comprehensive terms as being culturally embedded. Rosario López critically revises the prevailing view of Mill as the forerunner of liberal nationalism among contemporary liberals. There is a fault line between the texts of Mill and their contemporary reception, but the differences between liberal approaches to nationalism are also underlined. In his chapter, Samuel Hayat claims that the now prevailing liberal view on representation and citizenship was disputed in early French liberalism in the nineteenth century. Further, historical debates and revolutionary experiences provide fruitful resources to challenge the conservative turn in the history of liberalism. Likewise, Øyvind Stokke criticizes the lack of attention to common goods in liberal thought, but maintains that arguments related to democracy and political liberties as acknowledged liberal values, might be utilized to redress this blind spot. Finally, by taking the European Union as a sort of test case, Marta Postigo addresses the traditional assumption that democracy and democratic citizenship are not possible beyond the nation-state. Postigo’s chapter closes Part II, and marks the transition to the issues raised in Part III.

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(b) An Overview of Chapters 5–10 Chapter Five, “Democratic Education and Reasonable Pluralism”, by Jan Harald Alnes, examines the implications of Rawls’s political liberalism regarding the principles and aims of educating citizens in constitutional democratic regimes. John Rawls is the most eminent contemporary liberal philosopher, and largely responsible for the current centrality of liberalism in political theory. Moreover, in his second great book of 1993, Political liberalism, Rawls draws an important distinction between two varieties of philosophical liberalism, political and comprehensive liberalism. As Alnes argues, this dividing line within liberalism has proven to be crucial when reflecting on the education of citizens in a democratic society, and it has generated a considerable debate. Modern democratic societies are characterized by the fact of reasonable pluralism, that is, their citizens are deeply divided by different and incompatible religious and philosophical doctrines. Taking this fact as its starting point, reasonable disagreement is at the heart of political liberalism, and Alnes explores the consequences with respect to the aims of education in a pluralistic society. The chapter provides a clear view of the differences between comprehensive liberalism and political liberalism concerning education, thereby dispelling the impression that political liberalism is a form of comprehensive liberalism in disguise, as some critics maintain. But it also rejects the wrong impression, fostered by Rawls himself, that the educative requirements of political liberalism are less demanding than those of comprehensive liberalism. Alnes draws a complete picture of the demands of liberalism, which involves not only the knowledge of basic rights and freedoms such as freedom of conscience, but also the cultivation of civic virtues necessary for political cooperation. And, more importantly, Alnes places the focus on the burdens of judgment as the crucial point of educating citizens in pluralistic democratic societies according to political liberals. The chapter closes off by addressing the controversial issue of private schooling, often neglected in philosophical discussions. In Chapter Six, “When Civic Virtues Become Vices: German Imaginaries and Democracy”, Inger-Elin Øye addresses a classic theme of political philosophy, namely the role of the civic virtues in democratic politics. The notion of civic virtue has gained prominence in liberal political theory during the last 25 years. It is a significant dimension in contemporary analyses of citizenship and democracy. The chapter focuses on one of the most cherished virtues of liberalism, “the ability to question authority and the willingness to engage in public discourse”. Øye offers an unusual and informative way of addressing the issue, taking the standpoint of an

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anthropologist. The chapter raises interesting methodological points and challenges common assumptions in the division of labour between social sciences, political philosophy and history. Against the current of disciplinary specialization, she argues that the study of civic virtues needs a more comprehensive and historically informed analysis, attentive to the interplay of economical, political and cultural strands. Øye uses her fieldwork on the German elections of 2002 and 2006 in MecklenburgWestern Pomerania, a Land in the former East Germany, as her case study, and she draws on the notion of social imaginaries from Charles Taylor in order to elaborate the cultural dynamics of civic virtues as understood and debated by German citizens. Examining the critical engagement in politics of ordinary citizens, the chapter explores the social imaginaries about election campaigns and democracy. The centrality of Sachlichkeit as a sort of underlying meta-rule for assessing politics as an ideally delineated, issue-related and rational form of discourse is highlighted. Øye offers a compelling account of how the exercise of critical autonomy and reasoning skills involves experiential-based metaphors, “a visual imagery of ‘form’ in tension with ‘content’, playing on ‘outside’ and ‘inside’, which give virtues a plastic quality, explaining a longevity in their reproduction across different regimes”. This malleability not only makes sense of the resilience of civic virtues under authoritarian regimes, as in the case of the former German Democratic Republic, but also illuminates how they might be used by illiberal political parties and turned against democracy. Besides the methodological considerations, this is one of the German lessons to be drawn from this chapter. John Stuart Mill is again under consideration in chapter Seven. In “John Stuart Mill’s Liberal Nationalism: Revising Contemporary Interpretations through Contextual History”, Rosario López develops a thorough analysis of the use of “nationality” in the work of Mill. Based on certain passages of his treatise on representative government, nationality is understood as the fellow-feeling indispensable to citizenship and the proper functioning of free institutions in democratic societies. Consequently, Mill has been depicted as an early advocate of liberal or civic nationalism by contemporary authors like Kymlicka, Tamir, Moore and Miller. By analysing the question of nationality in Mill’s work with the methodological tools of conceptual and contextual history, López challenges this prevailing view in academic literature. Thus, underlying the issue of whether Mill was a liberal nationalist, the chapter not only outlines the general question as to how we should read the classics of liberal thought, it even provides keen methodological insights in this area. For the present case, López underscores the significance of a broad

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perspective in reading Mill, reflecting on certain key passages in his A System of Logic in the light of the series of carefully worked out textual revisions that Mill made in successive editions. A close reading of textual evidence and contextual history, as evidenced by López, offers a nuanced and persuasive account of Mill’s view on nationality, and it thereby gives a most helpful counterpoint to mainstream interpretation. In Chapter Eight, “Rethinking Representation, Citizenship and Identity: Towards A radical Pluralism”, Samuel Hayat continues this thread of history to discuss critically currently dominant conceptions of democratic representation and citizenship. Hayat takes a critical stance towards contemporary liberalism, here broadly understood as political ideology rather than political philosophy. But what is liberalism? The chapter offers an approach to our understanding of liberalism by crossing current criticisms with the historical past and thereby delineating an ideal-type. As Max Weber taught, an ideal-type is always the result of a selection of key features. Drawing from contemporary criticisms of liberalism, Hayat identifies the main traits of the ideal-type through three core ideas: the autonomy of individuals, sovereign national assemblies as sources of legislative rule, and representation as the keystone for democratic government—the latter is at the centre of his criticisms. The Chapter turns to history with the dual purpose of reconstructing the making of liberalism so conceived, and to search for critical alternatives. Looking at the controversies that took place in the first decades of the French liberal movement, Hayat shows that these three features were deeply contentious as “some self-identified liberals argued that citizenship should take into account the social identities of individuals, sovereignty should not be monopolised by national assemblies, and representation should not lead to the political exclusion of citizens between two elections”. In these controversies two different positions can be identified. The first one, the “conservative liberalism”, crystallised around these three features, has historically prevailed. But another ideological alternative, “radical pluralism”, is reconstructed in the chapter as an ideal-type from past controversies and the revolutionary experiences of 1848. The alternative is founded “on the plurality of citizens’ identities and on the need for a corresponding plurality of representative institutions”. Hayat argues that although radical pluralism shares some of the basic tenets of liberalism, it is evidently a superior alternative if the aim is to overcome the shortcomings of conservative liberalism. Chapter Nine, “Democracy and the Crisis of Common Goods” by Øyvind Stokke, is concerned with the fate of common goods in constitutional democracies and liberal thought. Stokke persuasively claims

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both that the liberal tradition has downplayed the importance of common goods, and that constitutional regimes offer weak protection for them in comparison with their strict protection of private property. In the current circumstances of economic globalisation, the constitutional status of common goods has dire consequences. This is mainly due to the pressure of financial markets and the privatization policies undertaken during the economic crisis. By stressing the deep links between common goods and democracy, Stokke formulates a strong argument for rethinking their role. Tracing these links, Stokke maintains not only that the public sphere is the most important common good we share, but, as important, it is a precondition for legitimate democratic decision-making. Stokke draws on Habermas and Rawls when he further argues that common goods should be defended as necessary conditions for democratic self-government and “effective social freedom”. In sum, Stokke warns us against the privatization and commodification of common goods driven by global markets and neoliberal ideology, as they represent “the dark side of postdemocratic politics”. He urges revision of the constitutional protection and value of these goods, so often neglected in some liberal quarters. In Chapter Ten, “Beyond the Nation-State: The European Union and Supranational Democracy”, Marta Postigo poses the problem of how to understand democracy and citizenship beyond the boundaries of the nation-state. Certainly, this is an exigent issue in current circumstances, and the European Union represents the most advanced regional experiment in this sense. As Postigo makes clear, the complex institutional architecture of the European Union amounts to a new form of political community, an “Unidentified Political Object” according to the famous boutade of Jacques Delors. The EU is neither a state, nor a system of intergovernmental cooperation, but an ambitious project of twenty-eight European countries that share sovereignty and cooperate closely within a framework of common institutions. So, according to Postigo, the singularity of the European Union as “multi-level, poly-centric polity” compels us to “re-think the mechanisms of representation, citizenship and accountability of governments beyond the national framework”. Since liberals traditionally have taken for granted this national framework for thinking about citizenship, representation and democratic legitimacy, this constitutes a major challenge. Postigo examines the so-called “democratic deficit” of the Union, the problems of democratic accountability and transparency of the decision process, and different proposals for solutions. But she makes clear that “the momentous shift” to supranational democracy in Europe “requires experimenting with new forms of representation, citizenship and accountability of governments” not yet invented.

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Part III: Justice, Borders and International Law (a) Thematic Overview Since the writings of John Stuart Mill, liberalism has faced, and continues to face, new challenges. The first two chapters of the book clearly show that the fundamental liberal principle of free speech appears far more complex today than in the mid-nineteenth century. Owing to numerous well-known factors involving technical innovation, increased mobility and also a more comprehensive moral and social awareness, new issues have emerged on to the normative and political scene. Some of these, relating to the indigenous communities and other minorities within given borders, and to migration across borders, are raised in this part. The focus of Chapters Eleven and Twelve is the analytically challenging task of explicating the relationship between citizenship, borders and diversity, while the main topic of Chapters Thirteen and Fourteen is rights, language rights and rights to land or culture, respectively. In the last century, Europe and parts of the rest of the world experienced two great wars, and this lead to an urgent need for binding international laws. The practical and moral significance of such laws is the subject of Chapter Fifteen. To a considerable degree, the themes of part III are the consequences of the huge cleavage in the world between rich and poor countries. The question of how to approach developmental issues from the standpoint of liberalism is addressed in Chapter Sixteen, which closes the book. The chapters stretch from concrete examples to conceptual clarifications. This reflects a fact underscored earlier in this Introduction, that political philosophy and reflections on contemporary politically vital questions, by necessity involve both highly theoretical reflections and concrete empirical cases. We now turn to a short description of each chapter.

(b) An Overview of Chapters 11–16 Chapter Eleven by Ana Isabel Dapena is entitled “Citizenship and Nation-State. Some Normative Problems”. The subject is normative issues originating from the manner in which the relationship between citizenship and the nation-state is realized in the international community. To a high degree, the significance of these issues is due to “contemporary transnational migrations as well as the interdependence between different countries”. Dapena bases her analysis on fundamental ideas in philosophical liberalism, and universalist principles, like the equal moral worth of all

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individuals, in particular. In the first part of the chapter, relying on Joseph Carens’s analysis, Dapena attempts to show that dominating and competing contemporary philosophical approaches to justice and rights, such as the liberalism formulated by John Rawls, the libertarianism of Robert Nozick and Millian utilitarianism, all amount to a defence of open borders between national-states. The rest of the chapter is devoted to an analysis of the relationships between citizenship, on the one hand, and the notions of a political culture, democracy and justice, respectively, on the other. Dapena concludes that the commonly agreed background for ascribing people citizenship, birthright (jus soli and jus sanguinis), is problematic or even unjustifiable from the perspective of each of these relationships. Dapena concludes that there is an urgent need for rethinking the link between citizenship and the nation-state. The topic of Chapter Twelve is closely connected to the former one, but treats the questions of citizenship, immigration and open borders from another theoretical perspective. In “Right to Hospitality, Right to Membership: A critical review of Kant’s and Benhabib’s Cosmopolitan Accounts on Immigrations and Borders”, Melina Duarte raises the question: “Can open borders combine with state sovereignty in a cosmopolitan perspective?” Her answer is a clear “Yes!” In order to reach this conclusion, Duarte starts out from the old positions of negative cosmopolitanism (originating with the Cynics) and positive cosmopolitanism (originating with the Stoics). Although negative cosmopolitanism contains some lasting valuable insights, it lacks the necessary political ideas of a state or a regional government, and thus it cannot be turned into a fullfledged political theory. Duarte analyses the positions of two leading proponents of positive cosmopolitanism, Immanuel Kant and Seyla Benhabib. Despite being in general agreement with both authors, Duarte finds that they share a fundamental presupposition in their respective account of state-sovereignty, namely, “the right to exclude foreigners to enter, settle, work and engage politically in their territory”. Corresponding to Dapena’s argument against the legitimacy of today’s way of determining citizenship, Duarte argues that this territorial right ought to be viewed as contingent from a Kantian or a Benhabibian perspective: after all, Kant is one of the forefathers of the liberal principle of legitimacy, and Benhabib argues in favour of deliberative democracy. Therefore, Duarte maintains, Kant and Benhabib ought to grant immigrants the right to vote and fully participate in the political life in their host state. However—and here Duarte dissents from Dapena—this doesn’t mean or imply that the immigrants should be ascribed a status as citizens.

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Chapter Thirteen, “‘Shall Not Be Denied The Right To Use Their Own Language’. A Hohfeldian Analysis of Language Rights”, by Manuel Toscano, is a critical conceptual reflection on the relatively new, but steadily growing debate on so-called “language-rights”. Toscano demonstrates that, until now, the debate has been unclear and even confused, as the fundamental notion of “right” has not been sufficiently clarified. Toscano aims at providing a neutral framework for the issue by way of defining the various notions that constitute the relevant notion of a right, such as the normative positions labelled “duty”, “claim”, and “privilege”, and the molecular rights called “liberties”. He also defines two second-order legal positions, entitled “powers” and “immunities”. Toscano demonstrates that these Hohfeldian definitions provide a number of useful logical interconnections that anyone reflecting on language-rights ought to take into account. Relying on this framework, Toscano turns to an interpretation of language rights according to established international human rights laws. He singles out the usual way of arguing about language rights, namely in terms of tolerance-orientated and promotion-orientated rights. He further shows that this method of approaching the subject is in a confused state. Toscano makes it clear that discussions on language rights would improve considerably by resorting to “Hohfeld’s conceptual typology”. Toscano’s aim, in other words, is not to settle any particular claim, but to give the framework in which the debate ought to take place. The next chapter, “Land Claims: Economic Liberalism vs. Indigenous Tradition. Does the Government have a Moral Responsibility to Rectify the Unjust Past?” by Tore Kristian Haaland, is an investigation into the consequences of the economic liberalism that has guided the national policies of the governments of Mexico since around 1930, for the indigenous communities in Chiapas. Chiapas, the southern state of Mexico, became famous for the revolt in 1994 of the Zapatistas. This is a revolutionary movement based on rural areas and autochthonous people. The leading thread is a continuous on-going attempt at improving the economic situation of the country without paying due respect to the indigenous people’s way of life and cultural identity. The traditional understanding of land as a common property turns out to be a source of mistreatment and violence against human rights.6 Haaland introduces three reasonable principles of moral responsibility to be found in the literature: the principle of contribution, the principle of assistance and the principle of benefitting from injustice. Haaland relies on central features of the history of the Mexican government’s treatment of the indigenous people 6

For an analysis of the notion of the common goods, see Chapter Nine.

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when he concludes that the Mexican state falls prey to all three kinds of moral responsibility. Thus, it has a deep moral responsibility to rectify the past. Underlining the chapter is a deeply-felt concern about the tension between the ruling classes of the developing countries and their indigenous communities. The fact that the latter has a tendency to organize their life around ideas and principles that commonly stand in dramatic conflict to how their national leaders tend to approach the social and economic life is particularly problematic. This deeply worrying aspect of economic liberalism is also the starting point of Chapter Sixteen. In Chapter Fifteen, “Historical Experience, Moral Learning and International Law”, Arne Overrein analyses the emergence of international laws and the international role of the UN after the Second World War. He objects to a Rawlsian utopian political philosophy and opts instead for an analysis of international law “in a specific historical constellation of European and world history”. The chapter suggests that a Marxian conflict-orientated analysis of the emergence and content of international law, based on concrete power-relations may prove more fruitful than a liberal one. This chapter, then, is rather critical of both philosophical liberalism and political liberalism. A major claim is that moral learning with respect to international laws and relations, through the focus on human rights and social justice in particular, has taken place since the Second World War. But this is not, as liberals of both branches tend to maintain, due to good will or peaceful co-operation, but is to a considerable degree a consequence of the role played both by numerous minor states in the world and the UN in restricting the international powers of the only superpower left, namely the U.S. Clearly, compromises have played a key part in all this. Thus, Overrein concludes, the all-important moral and political development that has taken place and hopefully will continue to take place might be viewed as the fall-out of an on-going power-struggle. The next and final chapter, “Normative Considerations on the Development Process from a Liberal Perspective: Amartya Sen and Celso Furtado”, focuses on developmental issues, that is, on the conditions for national development, seen from the point of view of philosophical liberalism. As Furtado was a Brazilian thinker and politician, the case considered is Brazil, but the aim is to provide a theory with wide application. Fabian Scholze Domingues’s starting point is the theories developed by the leading economists Furtado and Sen. They share the fundamental principle that viewing man solely as a homo economicus is too simplified and distorted, and leads us in the wrong direction. In accordance with this, both are highly critical of laissez faire economics. As

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regards questions about development, they are unwilling to view economic development in isolation from other human concerns. Scholze Domingues presents the multidimensional normative analysis of Sen, called “the capability approach”, and the functional, Weber-inspired theory of Furtado. The main point of both theories is that in their proposed calculations of development, far more, and rather complex, dimensions, parameters and variables are involved than in standard economic analysis. In this way, argues the author, we obtain a realistic picture of the lifesituation of the inhabitants of a state, and particularly adjusted developmental programs might be introduced. It is crucial to note that Scholze Domingues argues that the capability approach and the functional approach to development are not sufficient by themselves, but are complementary and not in conflict. He attempts to show this by way of mentioning concrete examples inaugurated by the Brazilian authorities, and through singling out certain specific sources of underdevelopment, such as “sexism and prejudice against children and elderly people”. We end with a final remark on terminology, underscoring a point made at the very beginning of our Introduction. Since meaning and content depend on context and point of view, and terminology varies, we have not made any attempts at enforcing or demanding a uniform use of language between the chapters. Key notions such as “autonomy”, “individuality” and “rights” might therefore incur different viewpoints and carry dissimilar presuppositions. One striking example is the use of “community” in Chapters Five and Eleven, since the word suggests a contrast to society in the former chapter, but is identified with society in the latter. In reading the chapters, therefore be aware of the fact that two statements that appear to contradict each other might actually be reconcilable, due to the fact that they belong to different strands of ideas.

References Freeden, Michael. 1996. Ideologies and Political Theory. Oxford: Oxford University Press. —. 2004. Liberal Languages. Princeton: Princeton University Press. Gallie, Walter B. 1956. “Essentially Contested Concepts”, Proceedings of the Aristotelian Society, 56: 167-198. Galston, William. 1991. Liberal Purposes. Cambridge: Cambridge University Press. Mill, John Stuart. [1859] 1977. On Liberty. In The Collected Works of John Stuart Mill, Vol. XVIII, edited by John M. Robson. Toronto and London: University of Toronto Press and Routledge and Kegan Paul.

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Raz, Joseph. 1986. The Morality of Freedom. Oxford: Oxford University Press. Rosales, José María. 2013. “Liberalism’s Historical Diversity: A Comparative Conceptual Exploration”, Contributions to the History of Concepts, 8 (2): 67-82. Waldron, Jeremy. 1993. “Theoretical Foundations of Liberalism”. In Liberal Rights. Collected Papers 1981–1991. Cambridge: Cambridge University Press.

PART I: FREE SPEECH AND DELIBERATION

CHAPTER ONE FREE SPEECH AND THE PUBLIC SPHERE IN ROBERT POST’S THEORY OF FREEDOM OF EXPRESSION TOMASZ JARYMOWICZ1

Classical liberalism’s focus on an abstract individual means that we are ascribed full autonomy in the public sphere when exercising our freedom of speech. This independence from any social constraint has consequences for how freedom of speech is understood. Since others’ speech cannot prevent us from speaking, it is the state who becomes the greatest enemy of freedom of speech. Others’ speech, no matter how hateful it is, does not qualify for regulation since if we are fully autonomous, the conflict of rights does not arise. Likewise, the issues of diminished internal autonomy or a lowered sense of security caused by hate speech continue to be invisible. Furthermore, having the right to free speech means being able to express one’s opinion: the problem of the actual opportunity to exercise one’s right does not arise. However, it seems that hate speech has pernicious effects which classical liberals never anticipated, hoping that good ideas would prevail over bad ones in a free discussion in the public sphere. Hate speech not only erodes social sources of respect but also influences the sense of justice of a given society. For example, the title of Jeremy Waldron’s second lecture on the freedom of speech poses the question, “What does a well ordered society look like?” (2010: 1617). The lecture brings together two important issues, namely, how ideas including hateful ones spread in society by means of speech and graphic symbols and how they shape society at large. For Waldron, the look and the sound of this matter are important because they tell citizens whether they can expect to be treated justly by other fellow citizens (2010: 1627). Regardless of the discussion 1

UiT The Arctic University of Norway. I would like to thank Manuel Toscano for his helpful comments which greatly improved my paper.

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on whether norms of civility should be enforced or not in the public sphere, we can say that public speech pervades all of society. It cannot be limited to atomized groups or individuals; similarly, no one can hide from it or its effects. Furthermore, since it is through speech that people can experience their democratic self-governance in the public sphere, both speech and public sphere constitute the content of our normative claims. Within the current discussion on free speech the main divide runs between those who refuse any balance and those who are inclined to see freedom of expression as one of the rights—a very important one, but one whose regime can be negotiated. In the absolutist camp there are positions very similar to Post’s such as James Weinstein’s or Eric Heinze’s, who base their absolute defence of freedom of speech on democratic selfgovernance (Weinstein 2001; Heinze 2006). On the other hand, Edwin Baker, for instance, attempts to ground absolute defence of free speech in personal autonomy, but he is unable to show that the lack of any state regulations actually fosters this value (Baker 2011; Brison 1998: 336). Those who want to introduce some balance into their theories can appeal to respect and dignity (Hayman 2008; Waldron 2010) or to the promotion of autonomy, whose conception emphasizes the conditions of its own formation (Sunstein 1995). Corey Brettschneider can be situated somewhere in between these camps, for although he is against any state constraints on political speech, he believes in the expressive power of the state, which should have the right to promote the reasons for those rights which are fundamental to democracy (Brettschneider 2012). This also includes withholding state spending on projects or associations hostile to democratic values. Robert Post’s theory of freedom of speech is one of the absolutist theories, for it refuses any balancing of rights, i.e. speech which is considered political is exempt from any regulation in the public sphere. Although Post stresses the value of participatory democracy in his theory, ultimately he justifies his theory of freedom of speech by appeal to democratic self-governance, which prioritizes the substantive values of formal equality and negative freedom (Post 2011: 483–484). Consequently, Post is less concerned about the structure of public justification or the makeup of the public sphere, and more keen on imposing substantive constraints on the democratic process since its results can limit citizens’ ability to govern themselves. Post offers a detached conception of democracy,2 which limits the idea of justice to negative freedom and 2

A detached conception of democracy separates questions of political equality and other forms of substantial equality very sharply. In other words, political equality as understood here formally exhausts the principle of justice, which filters all other claims to just treatment including reformulation of the regime of freedom of

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formal equality (Post 2005: 151–152); consequently other claims to justice including reformulation of freedom of speech regime or politicization of new issues becomes a problem. This is very far from Jürgen Habermas’s vision that advances the idea of co-originality of public and private autonomy, according to which the content of justice is open to contestation, and substantive rights including reciprocity, generality, and moral respect are the conditions of possibility of political autonomy. Finally, Post’s use of Habermas’s theory is only perfunctory and lacks systematic engagement. It is limited to Habermas’s thesis about citizens’ authorship of democratic laws that bind them without engaging his normative claims about the structure of democratic deliberation. The aim of this chapter is to critically evaluate the normative consequences of Post’s theory on the public sphere.3 I will show that his theory has direct consequences both for the structure of public deliberation and the makeup of the public sphere. I will argue that this theory is not able to provide a normatively rich enough account of the public sphere, which would enable citizens to be the authors and the subjects of the law. Firstly, I will describe his theory of freedom of speech, its justification and how he views the public sphere. Then I will critically engage his idea of political autonomy as an on/off value, which precludes any critical engagement with citizens’ interests since they are ready-made even before they enter the public sphere. Next, I will examine Post’s use of Habermas and his own idea of public discourse, with a special focus on his paradox of free speech. Lastly, I will look more closely at his detached conception of democracy and its consequences for the idea of the government.

Political Autonomy and the Question of Justification Post takes up the problem of freedom of speech and its justification most extensively in his recent article “Participatory Democracy and Free Speech”. He begins by rejecting two other popular justifications of freedom of speech, namely, personal autonomy and the marketplace of ideas (Post 2011: 478–482). He claims that personal autonomy cannot be a correct foundation for freedom of speech since it is virtually impossible to speech itself. Consequently, we cannot have trade-offs between political equality and other forms of substantial equalities to allow for more just outcomes of a procedure. 3 The background of my critique is deliberative democracy theory with its emphasis on multidimensionality of liberty which includes not only negative and positive freedom but also internal freedom and freedom as a status (see Rostbøll 2008; Forst 2005).

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decide whose autonomy prevails when there is a conflict of interests. In his opinion, what really adjudicates the problem is the public character of a given speech and not personal autonomy. Further, he claims that personal autonomy can be limited in the public sphere by the government in matters of regulation, whereas political autonomy as serving the task of democratic self-governance cannot, which makes it a better candidate for freedom of speech justification. He also claims that since personal autonomy extends not only to speech but also to action, we cannot make freedom of speech a special value to be protected. Post also rejects the marketplace of ideas as the justification for freedom of speech. This is how he justifies it: “The creation of knowledge, which often goes under the appellation of ‘the marketplace of ideas’ is a process that requires both freedom of thought and disciplined application of existing standards” (Post 2011:478). He goes on to represent the marketplace of ideas as requiring civility norms, respect, and reason, which in his opinion does not square with his aim of securing absolute freedom of speech in the public sphere. However, this definition seems at odds with both popular interpretations of this justification and the U.S. Supreme Court’s interpretations. In the popular imagination the metaphor of the marketplace of ideas stands for “anything goes attitude” towards speech in the public sphere. Further, Post himself cites the U.S. Supreme Court, which claims that “public discourse is an arena for the competition of many distinct communities each trying to capture the law to impose its own particular norms” (Post 2009: 133). First of all, given that the point of his theory is to reflect “the nation’s commitment to protect freedom of speech” (Post 2011: 477), Post presents a peculiar picture of the marketplace of ideas with civility norms imposed on it by the state. Further, as Eugene Volokh explains, there is no need for any state regulation in this sphere, and that separating truth from falsehood, the supposed aim of the marketplace of ideas according to Post, is done on a regular basis without any norm imposition (Volokh 2011: 596–597; Post 2011: 479). Moreover, the above U.S. Supreme Court’s interpretation should nicely combine with his rejection of any claims to equal respect as a community norm. However, he still dismisses this justification for fear of civility norms, and in order to create the public sphere as a separate space without any norms organizing its discourse. Post rejects thinking of the First Amendment as having the purpose of insuring the informed or right decision since it would model the public sphere on the image of managerial domains which are open to state regulation. According to Post, the purpose of the First Amendment is to protect “the value of self-government,” which can be realized and

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exercised by means of the free and unconstrained public discourse in the public sphere (Post 2011: 483). In conclusion, the purpose of the First Amendment is to protect the formation of public opinion. What are the normative requirements for exercising democratic self-government in the public sphere? As Post claims, it can be realized only when the citizens’ negative freedom and formal equality are respected, which boils down to autonomy understood in political terms (Post 2011: 483). Having political autonomy reduced to negative freedom and formal equality as the basis for freedom of expression has its advantages. First of all, Post’s theory offers an absolute protection of freedom of speech in the public sphere since. Thus understood, political autonomy is an on/off value. In other words, once we enter the public sphere we are considered autonomous persons, consequently the questions of harms or internal autonomy do not appear. Post also eschews the need for balancing First Amendment protection with any other rights because freedom of speech, seen as one of the private rights, seems to be modelled on natural law, which is implemented without any deliberation. This move is a consequence of his detached conception of democracy where justice understood as negative freedom and formal equality filters out any other claims that are directed against a given regime of freedom of speech. Consequently, it seems that in Post’s account the answer to the question of when one is protected by the First Amendment depends on Post’s conception of political autonomy (Baker 2011: 516), that is, if a speaking person can abstract from any obligations except respect for negative freedom and formal equality, she can speak freely in the public sphere. If, however, this person remains in the relations of work, or her freedom conflicts with (say) property rights, she does not enjoy First Amendment protection. What are the consequences of such a justification of freedom of speech? Post claims that he rejects personal autonomy justification because we are unable to adjudicate between various autonomy claims, so it is better to base freedom of expression on political autonomy, which does not have to be balanced. Scanlon, however, replies that it is more feasible and realistic to represent autonomy claims as interests, that is, there are the interests of the speaker, audience and even of the bystanders, whose interests are usually disregarded (Scanlon 2011: 546–547). Post’s theory eschews the concept of harm both for normative and pragmatic reasons. Firstly, the very claim about there being no conflicts of interests removes harm from the picture. Secondly, he minimizes the question of harm saying that it is very difficult to establish the cause and effect link (2009: 134).

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Post’s idea comes down to the case of imperfect proceduralism when it comes to public justification. Since he observes an eradicable tension between democracy and individual rights, he places substantive rights of formal equality and negative freedom as the external limits on the outcome of democratic deliberation. As I noted earlier, this points us in the direction of a detached conception of democracy where the external interpretation of justice is imposed on the democratic process. This gives rise to a number of problems. Firstly, since justice is decided beforehand, it downplays democratic deliberation, the task of which should be to specify the content of justice, which puts into question Post’s ambitious goal of strengthening democratic legitimacy. It narrows the scope of what can be deliberated and makes politicization of certain issues more difficult. Secondly, it makes it difficult for people to construct the we-perspective in deliberation since negative freedom and formal equality are not enough to forge a viable political community. This justification is not robust enough; we also need reciprocity and moral equal respect that would tell us how the procedural mechanism can be implemented. This solution would be akin to Habermas’s thesis of co-originality of personal and political autonomy, which specifies how the procedure should be regulated. Post’s approach to the issue of discourse is odd for a number of reasons. Sometimes he offers a definition of public discourse very loosely based on Habermas’s ideas such as: The value of democratic legitimation occurs, as Habermas and many others have theorized, specifically through processes of communication in the public sphere. It requires that citizens have access to the public sphere so that they can participate in the formation of public opinion, and it requires that governmental decision making be somehow accountable to public opinion (Post 2011: 482).

Sometimes he does not really distinguish between different accounts of public discourse proposed by Habermas and John Rawls (Post 2005: 146), consequently, it seems that Post is not really interested in how the actual processes of deliberation should look like since he is satisfied with only general appeals to Habermas’s or Rawls’s ideas about the public discourse. This lack of interests in the normative requirements of public discourse is due to his rejection of any context transcending values of reciprocity and equal moral respect as parochial community norms. In his article “Hate Speech” (2009: 129–130), he argues against civility norms, since in his opinion they are nothing more than particular ways of establishing a social organization. Following Charles Taylor he claims that dignity is a community norm which establishes what we can expect from other persons within a

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given community. Building on this assertion he concludes that any regulation of hate speech would be tantamount to imposing a community norm. Steven J. Hayman strongly disagrees with reducing the norms of respect to a community norm: I believe that Post is mistaken when he asserts that norms of dignity and respect represent merely the conventional rules of a particular community—rules whose enforcement must be suspended so that citizens can freely determine how they wish to live. Instead, while specific forms of respect differ from one community to another, the requirement that individuals recognize one another as human beings and community members is not simply a contingent or conventional one but is inherent in the very idea of a community. A collection of individuals who did not regard one another in this way would not be a community at all. It follows that restrictions on recognition-denying speech do not limit our freedom to collectively “choose the forms of our communal life” by compelling us to adhere to the conventions of a particular society (Hayman 2008: 176).

In other words, Hayman sees human respect not merely as a community norm but more as a context-transcending condition of the possibility of establishing political community. Norms of civility are part of the discourse and not something imposed from the outside, and, since it is a condition of the possibility of self-government, we have the right not to tolerate people who do not respect the value of toleration.4 I agree with Post that the idea of respect somehow reflects the current regime of respect, but we must also bear in mind that we need to retain a contexttranscending quality of respect to allow the discourse to be self-critical and more inclusive. Post’s hostility towards civility norms and contexttranscending norms can also be traced back to the self-imposed aim of his theory, which is to reflect national commitment to freedom of speech and to attain the fit between the theory and the adjudication.5 This has two implications: he relies too much on sociology (community norms and their sociological explanation), and his theory is conservative and not aimed as a social critique of the existing regime of the freedom of speech.

4 5

See Quong 2004. On Post’s methodology of free speech theory, see Jarymowicz 2014.

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The Transformative Potential of the Public Sphere How is it possible for Post to downplay the effects of inequalities on the autonomy of discriminated citizens? The answer lies not only in his normative convictions but also in his pragmatic suppositions. It seems that in his defence of the principle of self-government he relies heavily on the marketplace of ideas, which is ultimately based on the argument from truth searching. This assertion can come as a surprise for he explicitly rejects the marketplace of ideas as the justification for freedom of speech. However, as I noted earlier, he unjustifiably restricts the meaning of the marketplace to scientific truth searching. I argue that since he does not have any mechanism for restricting or balancing freedom of speech if public discourse goes really bad, he must ultimately rely on the metaphor of the marketplace of ideas and keep his fingers crossed that justice prevails. This epistemological superiority of unfettered discussion in the public sphere seems to be solely due to formal equality which in principle allows everybody to speak their minds: government neither privileges any minority nor imposes any rules of civility. More speech therefore, is always good because it serves the function of securing formal equality. According to Post: On this account, democracy attempts to reconcile individual autonomy with collective self-determination by subordinating governmental decision making to communicative processes sufficient to instill in citizens a sense of participation, legitimacy, and identification. Although citizens may not agree with all legislative enactments, although there may be no determinate fusion of individual and collective will, citizens can nevertheless embrace the government as rightfully “their own” because of their engagement in these communicative processes (Post 1993: 660).

This account of public sphere, public discourse, processes of legitimation, and democracy is strikingly similar to descriptions of deliberative democrats: James Bohman, for instance, claims that the success of a particular deliberation process does not consist in consensus but in the outcome that is respected by everybody, so it secures a continuous cooperation (Bohman 2000: 33–34). However, the difference lies in the fact that deliberative democracy theory places a great emphasis on the transformation of preferences and learning processes in the public deliberation. Given that Post’s version of autonomy is static and resistant to change, it seems that what is the key word in his description is “reconciliation”, which implies a vision in which we enter the public

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sphere with our interests and preferences and want to push them as hard as possible by way of bargaining rather than by arguing through justifications that are general and reciprocal enough to convince fellow citizens. Seyla Benhabib explains cogently that the epistemological superiority of deliberative processes of political decision-making is not due to the sheer number of participants; e.g. the larger a decision-making body is, the more informative it becomes. Rather, it is due to procedural arrangements that guarantee a free and unconstrained public dialogue and to substantive moral presuppositions of egalitarian reciprocity and universal moral respect that ideally guide deliberation (Benhabib 1996: 78). However, as we saw, Post dispenses with substantive moral presuppositions claiming that they are all parochial and only reflect a prevailing social morality. He would probably agree with Benhabib who claims that deliberation “imparts information”: New information is imparted because 1) no single individual can anticipate and foresee all the variety of perspectives through which matters of ethics and politics would be perceived by different individuals; and 2) no single individual can possess all the information deemed relevant to a certain decision affecting all (Benhabib 1996: 71).

However, Post cannot make use of this insight because he is a proponent of what Benhabib calls “a methodological fiction”, which states that individuals enter a public space with ready-made interests and preferences which are coherent and well-ordered. It is more plausible to think that individuals can have interests and wishes but that they cannot know the consequences of their agenda in advance before finding out in the public sphere what other fellow citizens think about them and how they affect them. Deliberative processes are mediums where collective decisions are formed, and our preferences transformed, to accommodate the burden of pluralism. On Post’s account it seems that his static description of autonomy makes even more probable an account in which, even if one finds out about new information, it does not influence one’s interest in a rational way; rather, interests are reconciled by way of bargaining, which reflects the power of particular participants. Nevertheless, Post would be right to argue that bargaining and selfinterest are inalienable to politics. He could also point out that in Benhabib’s account procedure is not enough to secure fair and just outcomes of deliberation because she adds substantive moral conditions to frames of deliberation which are exogenous to political process; this is something he wants to avoid. This is, however, where he is inconsequential: he wants to rely solely on politics to decide about public

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matters without any substantive constraints; on the other hand, as if doubting the procedure, he introduces “critical interaction” into the marketplace of communities that would enable communication (Post 1990: 667). In my opinion, one cannot have it both ways if one like Post rejects explicitly any substantive values: either one relies solely on formal equality and negative freedom without any recourse to substantial values, or one introduces explicitly substantial values to remedy the weaknesses of procedure.

Public Discourse and the Use of Habermas Post has a very ambiguous relationship with Habermas’s theory of discourse and public sphere. It seems that discourse theory does not have a systematic and coherent place in his approach; instead Post uses Habermas in a very supplementary way without seriously engaging with his theory and examining whether it actually fits his own. I agree with Katharine Gelber who claims that, like Habermas, Post links political speech to selfgovernance; however, unlike Habermas, Post is not interested in the very structure and normative requirement of public speech beyond negative freedom and formal equality (Gelber 2010: 309–310). Further, Post presents a detached conception of democracy where the content of justice is predetermined as formal equality and negative freedom, and filters all other claims to justice. And this is all to guard substantive rights against democracy. Habermas does not agree with the idea that there is a tension between democracy and substantive rights, and therefore he comes up with his co-originality thesis. As Stefan Rummens claims, in Habermas’s account, private autonomy is a necessary presupposition of the practice of recognizing the public autonomy of others (Rummens 2007: 349). On the one hand, nothing is precluded from deliberation including the content of justice and any agreement is provisional, but, on the other hand, substantive rights broadened by generality, reciprocity and universal respect are conditions of possibility of discourse. In this way, Habermas’s theory is both democratic and more sensitive to individuals’ needs and rights since justice is open to various interpretations. Although Post approvingly cites Habermas’s ideal speech situation as an ideal model of public sphere where we can abstract from our identities and rely only on procedure constrained by substantive rights, he never engages with later Habermas and his co-originality thesis. Probably not only because he is not interested in the very structure of justification in the public sphere, but also because Habermas’s normative ideal is too thick for him. Significantly enough, when writing about discourse he does not

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differentiate between Rawlsian and Habermasian accounts as if the differences were not interesting or important from his point of view (Post 2005: 146). When we realize that putting Post’s and Habermas’s theories together is incoherent, we cannot accept Gelber’s patchwork methodology of supplementing Post and Habermas with Nussbaum’s capability theory, for it will not make it any more coherent; not because of civility norms but because of normative supposition in Post’s theory, and all the more so because there are conflicting views as to whether Habermas’s theory can justify coercive implementation of civility norms. Katherine Gelber claims that Habermas’s theory of discourse ethics is “deliberatively and intentionally” unspecific to justify any hate speech regulations (2010: 312–313). Further, quoting James Bohman, she claims that Habermas argues against “stronger norms of political equality in contemporary democracies”, and therefore she decides to supplement Habermas with Martha Nussbaum’s capabilities theory. On the other hand, Steven J. Heyman uses Habermas’s discourse ethics to explicitly advocate hate speech regulations. Analysing the case of Virginia v. Black, involving cross burning, he claims that: In Habermasian terms, one can argue that hate speech is not an instance of “communicative freedom” oriented towards mutual understanding. Rather, the aim of hate speech is to dominate and subordinate other. In this way it is inconsistent with those “relations of mutual recognition in which each person can expect to be respected by all as free and equal” (Heyman 2009: 176).

This claim is in line with the Habermasian view that there should be an uncoerced communication in the public sphere. When Post uses Habermas’ work on public discourse he concentrates on his idea of an ideal speech situation, which he understands to mirror his minimal normative requirements for the public sphere (1990: 639– 640). In this case, earlier procedural Habermas allows him to do it. Since for Post there is a contradiction between civility norms, which enable rational communication, and the fundamental contestability of these norms, he comes up with what he calls “the paradox of public discourse”: There is, first, the requirement of negativity, of freedom from the boundaries of community expectations and norms. This requirement initiates the very possibility of public discourse by distinguishing it as a pure communication able to reach out beyond the confines of any single

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community. This is the requirement of critical interaction. But there must also be a second requirement, one of rational deliberation, which entails consideration and evaluation of the various positions made possible by the space of critical interaction. The constitutional purpose of public discourse requires that rational deliberation be civil and noncoercive, which is to say that it must be consistent with the very norms that are negated by the critical interaction (Post 1990: 642).

What Post claims is that on the one hand, there is a moral discourse which is reduced to formal equality and negative freedom, and on the other hand there is rational deliberation which is concerned with ethical issues and rational discussion means to follow civility norms. Rational deliberation is thought to be rational only if it enforces civility norms, which are parochial communal norms such as norms of public respect and those conventions of politeness, decorum, and respect designed to protect people’s sensibilities (Weinstein 1997: 7). On the other hand, moral discourse creates a free space where people can be critical about civility norms. Since, for Post, rational deliberation depends on civility norms, it is also itself “a form of social action that depends for its fulfilment upon a specific normative structure” (Post 1990: 642). Admittedly, Post could be right to point out that the conventions and norms of a given community do define what is rational and what is not, but on his account we cannot distinguish norms which would withstand the test of universality from those that would fail it: there is no difference between a community which would endorse racist speech and a community which thinks that racist speech is unacceptable as long as the reductive conception of moral autonomy is honoured. They are all community norms and, for example, a racist should not feel like a pariah to maintain legitimation. This is so because Post’s idea of moral deliberation and autonomy is too narrow to include moral substantive components including reciprocity and universal moral respect, and thus to secure effective and not only formal equality. In that case we could distinguish between norms of equal respect and norms which are parochial and undemocratic. If we look at this paradox from this point of view it to some extent loses its force: if we expand moral autonomy and moral deliberation to include equal opportunities and universal moral respect we are transferred from an individual perspective of private rights to a collective perspective of the community where everyone enjoys political autonomy which consists in exercising the right to justification within reciprocity and equal respect. Citizens who have their own distinct ideas of good can enter a moral conversation in a democratic polity instead of relying on bargaining

Chapter One

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processes. The theory of Habermas does not square with Post’s theory because he does not have a proper idea of justification in the public sphere. This is the reason why we do not have to examine whether he understands Habermas’s ideas properly because, at the minimum, any proponent of deliberative democracy, including John Dryzek, James Bohman or Amy Gutmann or others, starts with an assumption that democratic legitimacy consists in the right to justification. This rejection of any context-transcending norms also has consequences for ideology critique, which is very important for critical theory. In Post’s account it must be paternalistic by definition. In his critique of penalizing group defamation, Post claims that the idea of permanent distortion of public discourse by racism boils down to the thesis of their rationality of public sphere, which can be remedied only through paternalistic measures where someone enlightened makes the discourse rational again through the coercive power of the state (Post 1991: 307–308). Although classic formulations of ideology critiqued by Theodor Adorno and Max Horkheimer can be accused of paternalism, I do not think we can dispense with the concept of ideology altogether. I think we should retain this concept as well as ideal standards to measure the discrepancy between ideals and their actualizations in order for a social critique to be possible.6

Government and the Public Sphere It is not at all clear what role government plays in relation to freedom of speech in Post’s scheme. What we do know is that the government should leave unregulated the marketplace of ideas and that the main function of the First Amendment is to minimize the influence of the government on the political speech. What is missing in Post’s account is the nature of the political process that is responsible for such arrangements in freedom of speech legislation, and how it is possible for the government to embody the popular will anyway. The link between popular sovereignty, laws and government is missing because Post’s theory is dubious when it comes to public justification and political autonomy. The problem is that in Post’s account the lack of regulation of speech is not the result of joint deliberation by the people but rather seems more like an implementation of natural laws such as formal equality, negative liberty, and property rights, which are pre-political. In Post’s account these laws do not need any collective self-determination; these are the laws that secure the rights of individuals. 6

See Cooke 2006.

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Cass Sunstein in his article “Freedom of Speech Now” calls for a New Deal in the interpretation of the First Amendment that would emphasize the political process (Sunstein 1992: 269). In the New Deal understanding of the First Amendment, freedom of speech regime is the law that is not pre-political but instead was agreed on by the people; it was the result of the political process. Just as the economic marketplace is enabled by the law, the marketplace of ideas and communities is also the law’s creation. This it is that we cannot equate government action with regulation and abridgement of freedom of speech, for sometimes the lack of action means the abridgement of freedom, and sometimes an action would remedy it. Sunstein argues that equation of action with interference and abridgement of freedom of speech results in the conflation of non-interference with liberty, which immunizes the present state of affairs from critique (Sunstein 1992: 277). Furthermore, it makes the present arrangements the baseline for comparisons and future developments, which is bad for freedom of speech. According to Post, justice is exhausted in formal equality and negative freedom, which filters a priori all other claims to freedom. In other words, the public sphere is not a place for negotiating the content of justice, this content has been determined before at least as far as political speech is concerned. Post does not object to a ban on discrimination or racist speech in the workplace: “It is legitimate precisely because we have adopted it in manner consistent with the principle of self-determination; it reflects a national identity that we have truly chosen” (Post 1991: 301–302). This, however, can apply neither to racist political speech nor to balancing the Fourteenth Amendment with freedom of speech since this would undermine the content of justice: formal equality and negative freedom. This content is non-negotiable even if racist political speeches were treated equally in the public discussions and yet the majority of people arrived at a decision that would regulate racist speech on public matters. In Post’s account, this decision would still be illegitimate, for it would compromise formal equality and negative freedom of a racist and thus her selfdetermination. This issue is also indirectly connected with Post’s argument from the slippery slope, which is often used to defend the status quo in First Amendment discussions. Post addresses this argument explicitly when he writes about “the fallacy of immaculate isolation” (Post 1991: 315–316): the law is never made or exercised in a void and so, the argument goes, any regulation of freedom of speech can spill over to accommodate other groups contending for recognition and this in turn can constitute evergreater abridgements of freedom of speech. Wibren van der Burg claims

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that in legislation the slippery slope argument is not valid because a good law sets certain clear-cut limits, and if the limits are vague then it is the case against the vagueness of the law (Burg 1991: 48). Nevertheless, like Post, he contends that the slippery slope argument is valid in adjudication where accepting A can lead step–by-step to accepting B. I think that both van der Burgh and Post are right in this respect, but I am quoting this article by van der Burgh also because he asks a very important question: Who does the allowing in the statement: If we allow A, B will follow? (Burg 1991: 54–55) For Post, A would not really be allowed, it will be imposed (not even influenced in the direction of A) because allowing some regulation of freedom of speech is always preempted and made illegitimate by the content of his idea of justice even if successful in a democratic way. However, we can look at this problem from a different perspective. Given that the law is legitimate if the citizens are both the authors and the subject of the law, the citizens with good reasons after deliberation can decide that some speech should be regulated provided that this law’s possible future developments will be taken into consideration by the law makers. It seems to me that the slippery slope argument makes a case not for defeating any law which would introduce regulation, but rather it makes the case for drawing up a law that would pre-empt any spill over, which, contrary to the legislators’ will, would compromise freedom of speech.

Conclusion My claim is that Post’s idea of political autonomy as the justification for freedom of speech is not normatively robust enough to forge a viable political community which would effectively and justly govern itself in the public sphere. Post’s theory poses serious problems for critical theory. First of all, is it enough for citizens to express themselves in the public sphere or is it equally important to create a polity based on contexttranscending values such as respect and dignity to have a reasonable expectation that one’s voice will be taken into account? Is the lack of regulation of speech always the best policy? Can we ignore hate speech as it is employed as a tool of subordination? Post seems to claim that more speech solves all the problems without taking into account all conditions that affect if and how a given right can be exercised. My aim has been to show that Post’s theory is not only inadequate to create a robust public sphere, but that it does not hold any hope for addressing the structural injustice in a free speech regime.

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References Baker, Edwin. 2011. “Is Democracy a Sound Basis for a Free Speech Principle?” Virginia Law Review 97 (3): 515–529. Benhabib, Seyla. 1996. “Toward a Deliberative Model of Democratic Legitimacy”. In Democracy and Difference: Contesting the Boundaries of the Political, edited by Seyla Benhabib, 67–94. New York: Oxford University Press. Bohman, James. 2000. Public Deliberation. Pluralism, Complexity, and Democracy. Cambridge, MA: MIT Press. Brettschneider, Corey. 2012. When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality. Princeton, NJ: Princeton University Press. Brison, Susan J. 1998. “The Autonomy Defense of Free Speech”. Ethics 108 (2): 312–339. Burg, Wibren van der. 1991. “The Slippery Slope Argument”. Ethics 102 (1): 42–65. Cooke, Maeve. 2006.”Resurrecting the Rationality of Ideology Critique: Reflections on Laclau on Ideology”. Constellations 13 (1): 4–20. Forst, Rainer. 2005. “Political Liberty. Integrating Five Conceptions of Autonomy”. In Autonomy and the Challenges to Liberalism: New Essays, edited by Joel Anderson and John Christman, 226–242. New York: Cambridge University Press. Gelber, Katharine. 2010. “Freedom of Speech, Hate Speech and the Argument from Democracy: the Transformative Contribution of Capabilities Theories”. Contemporary Political Theory 9 (3): 304–324. Hayman, Steven J. 2008. Free Speech and Human Dignity. New Haven & London: Yale University Press. —. 2009. “Hate Speech, Public Discourse, and the First Amendment”. In Extreme Speech and Democracy, edited by Ivan Hare and James Weinstein, 158–181. Oxford: Oxford University Press. Heinze, Eric. 2006. “Viewpoint Absolutism and Hate Speech”. The Modern Law Review 69 (4): 534–582. Jarymowicz, Tomasz. 2014. “Robert Post’s Theory of Freedom of Speech: A Critique of the Reductive Conception of Political Liberty”. Philosophy and Social Criticism 40 (1): 107-123. Post, Robert. 1990. “The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell”. Harvard Law Review 103 (3): 601–686. —. 1991. “Racist Speech, Democracy, and the First Amendment”. William & Mary Law Review 32: 267–326.

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—. 1993. “Managing Deliberation: The Quandary of Democratic Dialogue”. Ethics 103 (4): 654–678. —. 2005. “Democracy and Equality”. Law, Culture and Humanities 1: 142–153. —. 2009. “Hate Speech”. In Extreme Speech and Democracy, edited by Ivan Hare and James Weinstein, 123–138. Oxford: Oxford University Press. —. 2011. “Participatory Democracy and Free Speech”. Virginia Law Review 97 (3): 477–489. Quong, Jonathan. 2004. “The Rights of Unreasonable Citizens”. The Journal of Political Philosophy 12 (3): 314–335. Rummens, Stefan. 2007. “Democratic Deliberation as the Open-Ended Construction of Justice”. Ratio Juris 20 (3): 335–354. Rostbøll, Christian F. 2008. Deliberative Freedom: Deliberative Democracy as a Critical Theory. Albany: State University of New York Press. Scanlon, T. M. 2011.”Why Not Base Free Speech on Autonomy or Democracy?” Virginia Law Review 97 (3): 541–548. Sunstein, Cass. 1992. “Free Speech Now”. University of Chicago Law Review 59: 255–316. Volokh, Eugene. 2011. “In Defense of the Marketplace of Ideas / Search for Truth as a Theory of Free Speech Protection”. Virginia Law Review 97(3): 595–602. Waldron, Jeremy. 2010. “Dignity and Defamation: The Visibility of Hate”. 2009 Oliver Wendel Holmes Lectures. Harvard Law School: 1596–1757. Weinstein, James. 1997. “A Brief Introduction to Free Speech Doctrine”. Arizona State Law Journal 29: 461–472. —. 2001. “Hate Speech, Viewpoint Neutrality, and the American Concept of Democracy”. In The Boundaries of Freedom of Expression and Order in American Democracy, edited by Thomas R. Hensley, 146– 169. Kent, OH: Kent State University Press.

CHAPTER TWO RELIGION AND (MIS)RECOGNITION: AXEL HONNETH AND THE DANISH CARTOON CONTROVERSY JONAS JAKOBSEN1

The so-called “Danish cartoon controversy” refers to a series of national and international conflicts related to the publication of 12 cartoons by the Danish newspaper Jyllands-Posten, some of them portraying the Muslim Prophet, Muhammad, and some of them in ways that many Muslims found deeply offensive. In this chapter I discuss the cartoon controversy in the light of Axel Honneth’s socio-philosophic theory of recognition. On the one hand, I will argue that neither negative claims to universal protection of religious feelings nor positive claims to esteem of religion can be defended within Honneth’s normative framework. On the other hand, a Honnethian approach may criticize Jyllands-Posten and some of its defenders on moral grounds, that is, grounds related to a normative vision of social solidarity. This vision concerns the conditions of possibility for an inclusive democratic public sphere in which also cultural minorities feel welcome and safe.

The Cartoon Controversy and the Danish Discourse on Islam and Muslims The remarkably harsh tone in the Danish debate on Islam and Muslims after 2001 is related not only to the global repercussions of the 9/11 terror attacks, but also to the shift from a Social Democratic government to a government lead by the liberal Venstre party, which became dependent on the support from the nationalist and strongly Islam-critical Danish Peoples 1

UiT The Arctic University of Norway.

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Party (DPP). In the following years, Danish media and political discourse were dominated by a problematizing and demonizing discourse on Muslims and Islam. I cannot go into this discourse (or any related set of discourses) in any detail here, but I will give a few examples to illustrate my point. Profiled members of DPP are no doubt responsible for some of the most extreme expressions about Muslims and their faith, sometimes in the form of regular hate speech and racist speech. Søren Krarup, for example, is known for his comparisons between the Quran and Hitler’s Mein Kampf, suggesting that ordinary practicing Muslims adhere to a fascist ideology, and for comparing the Muslim hijab with the Nazi swastika (Kanwal and Crone 2012: 183). Another member of DPP, Louise Frevert, who ran for mayor of Copenhagen at the time of the controversy, called Muslims a “cancer” in Denmark at her website and in another publication (Jensen 2006). Mogens Camre from the DDP, also a member of the European Parliament, made the following comment when Asmaa Abdol-Hamid, a young Muslim woman wearing a hijab, announced that she would run for parliament as a member of the leftist party Enhedslisten: “It is sick and unnatural that a fundamentalist with a headscarf is to become a member of our democratic parliament. She needs psychiatric treatment […] Such people need treatment. The sooner she leaves [Denmark] the better” (Brix 2007). Like other Danish and European “critics of Islam”, Camre holds the view that “the idea of a ‘reasonable’ Muslim who supports democracy and human rights is an illusion” (Camre 2006). But less extreme politicians, and from almost all political parties, also consolidated the public imagination about Muslims as physical, economic, cultural and ideological threats. For example, at the annual meeting of the Conservative People’s Party, the Minister of Cultural affairs declared that: “[A] medieval Muslim culture [will never be] as valid here in Denmark as Danish culture [...] There are still many battles to win. The most important ones have to do with the confrontation we witness when seeing how immigrants from Muslim countries refuse to respect Danish culture and European norms” (Jensen 2006).. The speech, invoking typical metaphors about war and battles to be won, was delivered on 23 September, only a few days before the publication of the cartoons on 30 September. As many other analyses have concluded, the systematic and pervasive political focus on Muslims as threats and “fifth column activists” was both a cause and effect of the way in which media framed news and reportages (Kanwal and Crone 2012; Andreassen 2012). In his analysis, “The Misrecognition of Muslims in Danish Television News”, Peter Hervik analyses how specific Muslim youth politicians born in Denmark with

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Pakistani background were portrayed again and again as supporters of “fundamentalism”, the death penalty and stoning in the Danish media no matter how poor the evidence was or how many times they expressed their support for democracy and denounced the death penalty (Hervik 2006). One of the arguments made against them by their critics was that, according to the Quran, Muslims are allowed to lie to non-Muslims. Some of them were forced to leave politics. These examples should suffice to give an impression of the harsh and demonizing discourse about the Muslim minority, which dominated the Danish public sphere on September 30, 2005, when Jyllands Posten published the 12 cartoons under the headline “The Face of Muhammad”. Since I am mainly concerned with the cultural and political atmosphere in which the cartoons emerged, I will not say much about the cartoons themselves. It is worth noticing, however, that not all cartoons satirized the Muslim prophet: one is an innocent, naturalist portrayal, one ridicules Jyllands-Posten and calls its journalists a “bunch of reactionary provocateurs” (in Arabic), and one satirizes a Danish “critic of Islam”, Kåre Bluitgen. Wendy Brown’s remark about “12 editorial cartoons viciously satirizing the prophet Muhammad” is therefore false and highlights a strange tendency among some critics to condemn the cartoons without having seen them (Brown 2009: 14). That said, some cartoons do satirize the prophet and insinuate that he is aggressive, violent, an oppressor of women, or diabolic (with horns). The interpretations of these cartoons are extremely divided. Some see them as islamophobic and racist. Tariq Modood, for example, argues that these cartoons “are not just about one individual Muslim per se—just as a cartoon about Moses as a crooked financier would not be about one man but a comment on Jews. And just as the latter would be racist, so are the cartoons in question” (Modood 2006: 4). In a similar vein, Seyla Benhabib has compared the most controversial cartoons with anti-Semitic cartoons from the Nazi magazine Der Stürmer (Duarte and Jakobsen 2013: 179). The most infamous cartoon, drawn by Kurt Westergaard, portrays Muhammad with a bomb in his turban, with a lit fuse, and the shahadah or Islamic creed written on the bomb. Westergaard insists that his cartoon targets those extremists who misuse religion for violent purposes, and not “Muslims” or “Islam” as such. Jyllands-Posten’s cultural editor, Flemming Rose, justified the publication in liberal democratic terms: The modern secular society is rejected by some Muslims. They demand a special position, insisting on special consideration of their own religious feelings. It is incompatible with contemporary democracy and freedom of

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Chapter Two speech, where one must be ready to put up with insults, mockery and ridicule. [...] we are on our way to a slippery slope where no-one can tell how the self-censorship will end. That is why Jyllands-Posten has invited members of the Danish editorial cartoonists union to draw Muhammad as they see him (Rose 2005).

In the following I will argue against Jyllands-Posten’s construal of the cartoon controversy as an ultimate conflict between defenders and critics of free speech: showing solidarity with Muslims in this case may go hand– in-hand with a principled defence of the legal right to publish such cartoons, and—needless to say—with a complete rejection of all kinds of threats and violence in the name of religion. Furthermore, I will take issue with Rose’s straightforward dismissal of Muslim claims to “special consideration”: giving special consideration to particular persons or groups in particular circumstances is not just something we do each day, it is also a much needed democratic virtue in multicultural societies where some groups feel misrecognized and unwelcome.

A Struggle for Recognition: Preliminary Remarks If we are interested in analysing the cartoon controversy in sociophilosophic terms, then the early Honneth’s re-actualization of Hegel’s idea of a “struggle for recognition” seems like a promising starting point (Honneth 1995). In The Struggle for Recognition, Honneth analyses social conflicts as struggles through which those who are exposed to disrespect, marginalization or cultural contempt claim the recognition they believe they deserve. As mentioned in the introduction, the categories used by Honneth to describe the psychological effects of misrecognition, such as offence, anger and “hurt feelings”, come very close to the categories used by protesting Muslims during the Cartoon Controversy (Asad 2009: 38; Klausen 2009). At a descriptive-analytical level, therefore, the controversy fits very well with Honneth’s basic view that social protest movements are motivated by what they perceive as intolerable forms of misrecognition of their identity (Honneth 2005: 160–170). Even more explicitly than the workers, movement, the women’s movement, or the American civil rights movement (Honneth’s paradigm examples) contemporary Muslim protest movements use the moral vocabulary of insult, offence and “disappointed expectations of recognition” when criticizing defamation or mockery of Islam. Analysing social conflicts in terms of struggles for recognition allows us to pay attention to the way in which power (understood as self-interest and strategic action) and communication (understood as orientation

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towards mutual understanding) are entangled with each other, sometimes in subtle or confusing ways. When we are struggling for recognition, we are not (just) interested in dominating the other, that is, in making him or her behave in a certain way, we are (also) interested in making the other understand our point of view and recognize our actions as legitimate. Struggling for recognition, we defend our beliefs, interests, or value commitments, but we also justify ourselves vis-à-vis others in a social “space of reasons”, a space where mutual communication and learning are at least possible. At the same time, as analysed by Honneth in his reading of Hegel’s early Jena writings, conflicting parties tend to see their opponents as being motivated exclusively by non-moral reasons, say pure self-interest or aggression, while they see themselves as being motivated by higher moral standards and principles, at least in the beginning of a conflict (Honneth 2005: 3–63). This tendency was obvious among opponents in the Cartoon Controversy. Many Danish Muslims, for example, did not by any means take seriously Jyllands-Posten’s moral concerns about free speech, but saw the publication as pure strategy—a cynical act of provocation. Consider, for example, this passage from a letter from the Danish Muslim Community to the ambassador of Saudi-Arabia in Copenhagen: It was a part of propaganda and advertisement campaign […] The Newspaper is taking advantage of the international policy against terrorism to repress Muslims and contain any possible outrageous response from their part. If that happens, it will be an excuse to label them as antidemocratic and pro-terrorist (Lauta 2006).

This letter, which played a central role in turning the national conflict into a global crisis, certainly does not describe the publication as part of a legitimate moral debate about free speech but as straightforward antiMuslim propaganda strategically intended to make Muslims react in an “outrageous” way in order to label them illiberal, anti-democratic, etc. In my view, by seeing the publication only as an expression of anti-Muslim aggression, this interpretation blocks any dialogue from the outset by denying that the newspaper and the cartoonists may also have had more noble motives, such as contributing to a debate about the connection between Muhammad’s teachings and the more violent forms of contemporary jihadism, or about problematic attitudes to free speech held in some Muslim milieus.2 2

Jeremy Waldron argues that the cartoons can be seen as attempts at a critique of Islam rather than a libel of Muslims, see Waldron 2012: 125–126.

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Conversely, Jyllands-Posten and many of its defenders blocked the possibility of dialogue in their own way by interpreting any Muslim critique of the cartoons as a strategic attack on free speech. By framing the whole debate as an ultimate yes or no to free speech, they refused to recognize that one may wholeheartedly defend the legal right to publish the cartoons while criticizing the publication on other grounds, for example, grounds related to “norms of civility” or to the status of Muslims as a vulnerable and publicly misrecognized minority in Denmark and Europe. I think it is fair to say that most Danish Muslims argued in favour of what they saw as a civilized and respectful public debate, not for legal restrictions on free speech, and that even those who argued for legal sanctions mostly did so out of a more or less desperate sense that this was the only means of protest they had at their disposal (Laegaard 2013). But what does a “civilized and respectful debate” mean? Which claims to recognition are inherent in this idea? Which claims are legitimate, and why? Without pretending to give any final or comprehensive answer to these questions, I will try to investigate them from the perspective of Honneth’s normative theory of recognition.

How to Evaluate Claims to Recognition? In his early works, Honneth frequently collapses the principal distinction between the psychological experience of injustice and injustice itself, for example when he claims that “moral injustice is at hand whenever, contrary to their expectations, human subjects are denied the recognition they feel they deserve” (Honneth 2007: 71). Clearly, if the feeling of being misrecognized were always legitimate, then we would have no way of evaluating conflicting claims to recognition (in the Danish controversy, both critics and defenders of the cartoons were offended by the other’s lacking recognition of their views and actions). More seriously, we would be confronted with the problem that persons and groups often feel offended and misrecognized for reasons we find misunderstood, incomprehensible, parochial, morally wrong etc. This does not mean that we should not take co-citizens, experiences of misrecognition or insult very seriously, but it means that the subjective or psychological experience of misrecognition cannot be the primary or only normative standard for a theory of justice.3

3

For critical discussions of the early Honneth’s strong reliance on a psychologicaldevelopmental theory about hurt feelings and identity-formation, see Nancy

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Honneth has since made it clear that he does not consider claims to recognition to be legitimate simply because they spring from someone’s hurt feelings or “disappointed expectations of recognition” (Honneth and Fraser 2003). Instead, claims to recognition made by citizens of a given polity may be justified to the extent that, without this recognition, they would be disadvantaged in their search for a good and autonomous human life. In other words, we should take the normative thrust of Honneth’s theory to consist in an argument about specific forms of recognition without which human life is unlikely to be experienced as successful and free.4 The goal of Honneth’s so-called thin or formal philosophical anthropology is to spell out these basic forms of recognition. Even though this is disputed, also by the later Honneth himself, the early Honneth takes these forms of recognition to be thin enough to be uncontroversial or “postmetaphysical” conditions of possibility for successful human identityformation, while still being more informative about than dominant liberal and Kantian theories in contemporary moral and political philosophy: The desired characterizations must, then, be formal or abstract enough to not to raise the suspicion of representing merely the deposits of concrete interpretations of the good life; on the other hand, they must also have sufficient substantive content to be of more help than Kantian references to individual autonomy (Honneth 1995: 173).

The three forms of intersubjective recognition analysed by the early Honneth are analysed in terms of “love” (in personal relations, first and foremost in early childhood), equal respect (as a citizen with the same rights and duties as everyone else), and social esteem (as a valued contributor to a social community, such as the state in which one lives).5 Since love is not only the most problematic form of recognition when it comes to moral questions about rights and duties but also irrelevant for my discussion of the Cartoon Controversy, I will focus on the two other forms—respect and esteem—in the rest of this chapter. “Respect” designates a strictly formal and cognitive relation between anonymous citizens who recognize each other as free and equal bearers of the same rights and duties. “Social esteem”, by contrast, concerns the way in which Fraser’s contributions in Honneth and Fraser 2003, Mattias Iser 2008 and Simon Thompson 2006. 4 In his most recent work (Honneth 2011), Honneth grounds his critical social theory in a new “historical-reconstructive” fashion, which I will not discuss here. 5 I discuss all three forms of recognition in Jakobsen 2011.

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we are perceived and treated as different from others, say, by virtue of our occupation and social class, special skills and abilities, or our “way of life”—broadly conceived. I cannot give anything like a full or detailed presentation of Honneth’s complex notions of respect and esteem. Instead, I will focus selectively, and in broad terms, on their relevance for our discussion of the Cartoon controversy (I discuss all three types of recognition at greater length in Jakobsen 2011).

Equal Respect Given the above distinction between respect and esteem we can say that respect for Muslims would mean granting them the same moral and legal status as everyone else, whereas esteem of Islam would mean holding the view that Islam (or a particular interpretation of it) is a good and valuable religion—and to express this recognition in one’s attitudes and actions. Even though this distinction somewhat resembles Charles Taylor’s famous distinction between the recognition of “equal dignity” and the recognition of “authenticity” (individual or group-based), Honneth criticizes Taylor for overestimating the extent to which modern social movements are concerned with the recognition of difference or authenticity (Honneth and Fraser 2003: 122–23). According to Honneth, a closer look at many claims to cultural recognition will reveal that what initially looks like a claim to esteem is in fact a claim to equal respect. For example, drawing upon the work of Will Kymlicka and Bernard Peters, Honneth argues that Muslims’ struggle for the right to wear the hijab or to practice halal slaughter are not first and foremost struggles for “esteem of Islam”, but struggles for equal opportunities and rights: “they claim the same legal protection for a minority that is actually guaranteed the majority” (Honneth and Fraser 2003: 164). Could Muslim claims to recognition in the cartoon controversy be thus understood? At first sight it seems that this was the case when, in 2006, seven Muslim organizations reported Jyllands-Posten’s publication to the police for breach of paragraph §140 in the Danish legislation, the so-called “blasphemy clause”, which states that “those who publicly mock or insult the doctrines or worship of any religious community that is legal in this country, will be punished by a fine or incarceration for up to four months”. Since these organizations did not demand special protection of Muslim sensibilities, but merely that existing laws also protect Muslims, they formulated their recognition claim as a claim to equal legal protection. However, Jyllands-Posten was never taken to court since the Danish Public Prosecutor decided that publication did not, after all, infringe the

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blasphemy clause (Director of Public Prosecution 2006). I cannot go into detail with this decision here, but I do think that if not even the most provocative Muhammad cartoons can be said to “mock” or “insult” the Muslim faith, then few things can. In my view, therefore, instead of pretending that the Muhammad cartoons were not insulting enough, the public prosecutor should have admitted that the blasphemy paragraph is out of touch with the moral infrastructure of contemporary Danish society, which is also why the paragraph is practically never used (since 1938, only two Danes have been convicted, the last one in 1966). The vast majority of Danes do not consider it a crime to ridicule or satirize religious figures or beliefs (which does not mean that they think it is always morally right or wise). My argument is therefore that, given that the blasphemy paragraph is also not used when Christianity or other religions are under attack, a conviction of Jyllands-Posten would have given special—and not equal— protection to the Islamic religion. And, unless special treatment can be justified as a (perhaps temporary) means to achieve equality, it cannot be justified in terms of equal respect in Honneth’s (or Kymlicka’s) sense.6 However, Honneth analyses another kind of culturally motivated claim to equal respect under modern law, namely claims to “resources or preventive measures to promote and develop the “cohesion of the community”. And he continues: “The spectrum of means that can in principle be called for in this context extends from economic support to instruction in the native language to adequate representation in the massmedia” (Honneth and Fraser 2003: 146–65). For Honneth, these appeals can be justified by demonstrating that a minority group cannot continue its traditions and practices without certain state regulations, which, through the means of law, work to remove certain unjustified disadvantages. However, even though the “representation” of Muslims in Danish massmedia was a key theme in the Cartoon Controversy, it is difficult to see how the cartoons prevented Muslims from “continuing their practices”, or how the state could have protected Muslims against the cartoons without giving them special protection, which would have been incompatible with the principle of equal respect for all. Finally, Honneth briefly considers a third way of securing equal respect for minorities, namely through what he terms a “procedural virtue of democratic institutions”: 6

Obviously, the mere fact that most Danes do not consider blasphemy a crime does not in itself justify Danish legal practice on this field. I cannot elaborate here why I think that a criminalization of blasphemy is highly problematic, but I recommend Peter Jones 1980, Sune Lægaard 2007 and Jeremy Waldron 2012 for relevant arguments.

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Chapter Two This objective can include the demand that, as a member of a cultural minority, one not only enjoy equal political rights, but also the real opportunity to gain public attention for one’s group specific value convictions. What this could mean can best be explained in terms of a procedural virtue of democratic institutions that is measured by their capacity for respectful interaction with cultural minorities (Honneth and Fraser 2003: 166).

I wish Honneth had elaborated more on the concept of a “procedural virtue” and its relevance to majority-minority relations, because I also believe this concept to be relevant for the capacity of citizens, and not just institutions, to interact respectfully with each other in the democratic public sphere. In my view, procedural respect can be paid in a number of ways, for example by exercising the virtues of (a) listening and trying to understand, even when one disagrees, (b) dealing with facts about minority cultures in a balanced and careful way, and (c) when criticizing minority traditions, specifying exactly who or what one criticizes, such as particular spokespersons, institutions, norms, or practices, rather than that speaking in negative terms about all members of that tradition, say “Muslims”. However, the central virtue defended by many Muslim and nonMuslim critics of the Danish cartoons was that of refraining from hurtful or offensive speech about religion and “the sacred”. I certainly agree that we should always consider whether the gains of expressing ourselves in an insulting or hurtful way (e.g. the perceived gain of getting attention or provoking) outweigh the harm or offence that one is about to cause. I also agree that religious beliefs and practices are so ultimately important to so many people, and so deeply entangled with their self-understanding and being in the world, that we should think twice before ridiculing or disturbing them. At the same time, the view that religious feelings and identities are always off-limits is difficult to reconcile with the idea of a critical democratic debate in which religion (no longer) has a veto right. Furthermore, it is easy to find examples of things to say that are offensive to some believers but nevertheless true and necessary to say (March 2012). Therefore, unless one is willing to support the Vatican, the American religious right or the Organization of the Islamic Conference every time they try to repress offensive speech about “the sacred”, it is not enough to simply criticize Jyllands-Posten for having violated Muslims’ religious feelings. Rather, we have to argue that these cartoons were criticizable in this context. In the final section, I will try outline shortly and in broad terms how one might make such an argument from a Honnethian perspective.

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Esteem and Solidarity Honneth’s philosophical-anthropological line of normative argumentation implies not only that all citizens enjoy equal respect (as presented in the previous section), but also that they have a fair opportunity to participate effectively in the permanent struggle for social esteem. As mentioned above, respect relates to our equal dignity as rational agents whereas esteem relates to the differences among us: our specific way of life, achievements or unique abilities. It is interesting that some commentators see Honneth’s concept of social esteem as endorsing a wildly implausible multiculturalism (“too much culture”) whereas others criticize it for ignoring cultural-religious identities and struggles for recognition altogether (“too little culture”). The most well-known proponent of the first type criticism is, no doubt, Nancy Fraser, who accuses Honneth for holding that “everyone has an equal right to social esteem” and thus for making the very idea of esteem “meaningless” (Honneth and Fraser 2003: 32). But Cecile Laborde, in her fascinating study of the French hijab controversy, also takes Honneth to be a supporter of the “the politics of recognition” à la Charles Taylor, and for holding the view that “everyone has an equal right to be honoured and esteemed” (Laborde 2008: 249). Even though this reading is misplaced, it is not completely without foundation in Honneth’s own formulations. For example, Honneth sometimes makes the very strong and controversial claim that, without full recognition of our needs, beliefs and abilities, a good and autonomous life becomes impossible: I have mentioned several times that subjects depend on the recognition of their needs, beliefs and abilities in order to take part in social life… Only when citizens see all these aspects of their personality respected and recognized will they be capable of acting with self-respect and committing themselves to their respective life-paths (Honneth 2012: 48).

If this were true, a pluralistic and agonistic public sphere in which we challenge, criticize and sometimes reject each other’s views and life-styles would of course be impossible. Even deliberative democracy in the style of Habermas or Seyla Benhabib would be too harmful since the public contestation of validity claims means exactly that everyone’s beliefs and needs are not recognized by everyone else. Honneth of course recognizes the importance of public deliberation and critique, but I still think he needs to discuss in much more detail what the difference is between illegitimate misrecognition, on the one hand, and legitimate critique of needs, beliefs and “life-paths” on the other.

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What is important for my purpose here is that the later Honneth makes it clear that, on the one hand, no one has a moral right to cultural esteem: like love, cultural esteem is something we can hope for and struggle for, not something we can demand a priori (Honneth and Fraser 3003: 168). I can expect you to engage in a fair and serious way with my world-view and my cultural or religious values, but not that you accept them as being, say, true, important, or meaningful. On the other hand, everyone should have a fair chance to earn esteem within the evaluative framework of a given society: “every individual, without any group being systematically disadvantaged, receives the chance to experience his or her achievements and abilities as being valuable to society” (Honneth 2007: 261). Thus, as I understand Honneth, a just society is one in which the socio-cultural conditions of possibility for earning esteem are fair and inclusive, not a society where everyone is guaranteed esteem, or where all gets the same amount. Honneth also uses the term “solidarity” to characterize the cultural background atmosphere or “climate” in such a society. Could this vision of solidarity be understood so as to imply a critique of the publication of the Danish cartoons? According to the other strand of critics mentioned above, Honneth pays too little attention to “thick” cultural identities and struggles for recognition (see for example Owen 2007; Cooke 2009; van Leuwen 2007; Heins 2012). Despite internal differences, these critics agree that Honneth’s vision of solidarity is too individualistic and too meritocratic to deal with many types of cultural struggle and conflict, and many forms of cultural misrecognition and denigration. I agree with these critics that Honneth is strangely uninterested in cultural-religious identities, traditions and conflicts, and that the kind of respect for Muslims as Muslims demanded in cases like the cartoon controversy is not about particular Muslims’ abilities and achievements, but about a more general concern with culturally and religiously attached persons. At the same time, the ideal of solidarity as an inclusive socio-cultural sphere in which no one is “systematically disadvantaged” seems to me applicable also to normative questions concerning cultural and religious conflicts and struggles for recognition. If the “philosophical-anthropological” line of normative argumentation, as I have called it, is interested in basic conditions for leading a good and satisfactory human life, a life with dignity and self-respect, and if it postulates that such a life is not independent of how one is perceived, talked about, talked to, or not talked to, in the public sphere, then it certainly should be interested not only in individual skills, such as being esteemed as a good baker or dentist, but also in (a) the way in which concrete cultural belongings shape and inform many peoples’ experience

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of moral integrity, their sense of purpose and meaning in life, as well as (b) the way in which these belongings can be seriously disturbed by various forms of hate-speech, group-defamation, stereotyping, demonization, etc.7 Even if solidarity, as mentioned, cannot imply a positive duty to esteem cultures or religions as such, it does imply a negative duty not to expose particular groups to unjustified disesteem. The examples of islamophobic speech introduced in the beginning of this chapter are examples of unjustified disesteem in that they (a) promote false or wildly exaggerated negative claims about Islam and Muslims and (b) essentialise Muslims as a monolithic group of people, thus denying that that there are many different kinds of Muslims and many different interpretations of Islam. I am not claiming here that the principal distinction between a positive right to esteem (which I have argued against) and a negative right not to be exposed to unjustified disesteem (which I have defended) is uncontroversial or easy to maintain in real democratic debate. However, I do think this distinction is worth keeping in mind if the public sphere is to be a place where cultural-religious beliefs and practices can be critically discussed in a fair and inclusive way (Jakobsen 2012). Let me finish with a remark on the Danish cartoons. Even though some of the cartoons certainly did solidify the public imagination of “the aggressive and dangerous Muslim”, I would hesitate to claim that the cartoons misrecognize Muslims as a group in any straightforward or noncontroversial way. Since they are cartoons and not linguistic claims they have to be interpreted before we can say something like that. At the same time, a Honnethian approach to solidarity (in the culturally “expanded” sense for which I am advocating here) might argue that, in a Danish context, the public sphere was already so full of unjustified disesteem— hate-speech, insults, stereotyping, demonization, etc. that Jyllands-Posten should have considered stating their criticisms of “some Muslims” (to use Flemming Rose’s expression, quoted earlier in this chapter) in a less insulting way, a way that would not deeply offend all Muslims. In other words: Why must the average Muslim citizen be exposed to what he or she cannot but perceive as robust disrespect because of what a few extremists do or say? To give “special consideration” (to use another of Rose’s expressions) to different people who have different interests and needs is not in itself a threat to liberal democracy but something we do everyday when interacting in different social contexts.

7

See also my interview with Sciencenordic.com: “What is Unacceptable Speech?”, available at: http://sciencenordic.com/what-unacceptable-speech

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Of course, this contextual way of criticizing the publication is dependent on whether or not I gave a somewhat adequate impression of dominant trends in the public Danish discourse on Islam and Muslims, in section one. It may turn out that I did not. But that just shows, as Honneth often points out, that political theory cannot and should not isolate its normative discussions from diagnoses and analyses of contemporary social reality. After all, it is against the backdrop of this reality that we live our lives, give content to our freedoms, and interact with one another.

References Asad, Talal. 2009. “Free Speech, Blasphemy, and Secular Criticism”. In Asad, Talal, Brown, Wendy, Brown, Butler, Judith and Saba Mahmood, Is Critique Secular? Blasphemy, Injury, and Free Speech, 20–63. Berkeley: The Townsend Papers in the Humanities, No. 2. Andreassen, Rikke. 2012. “Gender as a Tool in Danish Debates about Muslims”. In Islam in Denmark, edited by Jørgen S. Nielsen, 143–160. New York: Lexington Books. Brix, Knud. 2007. “DF: Alle muslimske samfund er tabersamfund” [DPP: All Muslim Societies are looser Societies]. Avisen.dk, July 20. http://www.avisen.dk/df-alle-muslimske-samfund-ertabersamfund_72627.aspx Brown, Wendy. 2009. “Introduction”. In Asad, Talal, Brown, Wendy, Brown, Butler, Judith and Saba Mahmood. 2009. Is Critique Secular? Blasphemy, Injury, and Free Speech, 7–19. Berkeley: The Townsend Papers in the Humanities, No. 2. Camre, Mogens. 2006. “Islam er uforeneligt med demokrati” [Islam is incompatible with Democracy]. Kristeligt Dagblad, March 8. http://mogenscamre.dk/index.php?mact=News,cntnt01,detail,0&cntnt0 1articleid=198&cntnt01returnid=63 Cooke, Maeve. 2009. “Beyond Dignity and Difference. Revisiting the Politics of Recognition”. European Journal of Political Theory 9: 76– 95. Director of Public Prosecution (2006b) Afgørelse om eventuel strafforfølgning i sagen om Jyllands-Postens artikel ‘Muhammeds ansigt’ [Decision on Possible Criminal Prosecution in the Case of Jylland-Posten’s Article ‘The Face of Mohammad’]. Available from: http://www.rigsadvokaten.dk/ref.aspx?id=889 (accessed 15 March 2013).

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Duarte, Melina and Jakobsen, Jonas. 2013. “Reassessing Human Rights: an Interview with Seyla Benhabib”. Norsk Filosofisk Tidsskrift [Norwegian Journal of Philosophy] 48 (2): 171–183. Hervik, Peter. 2006. The Misrecognition of Muslims in Danish Television News (accessed August 2013). http://hervik.stadesolutions.com/dokument/Internet_version_february_ 2006.doc Heins, Volker. 2012. “Three Meanings of Equality. The ‘Arab Problem’ in Israel”. Res Publica 18: 79–91. Honneth, Axel. 1995. The Struggle for Recognition. The Moral Grammar of Social Conflicts. Cambridge: Polity Press. —. 2007. Disrespect. The Normative Foundations of Critical Theory. Cambridge: Polity Press. Honneth, Axel and Fraser, Nancy. 2003. Redistribution or Recognition? A Political-Philosophical Exchange. New York: Verso. Honneth, Axel. 2011. Das Recht der Freiheit. Frankfurt: Suhrkamp. —. 2012. The I in We. Studies in the Theory of Recognition. New York: Polity Press. Iser, Mattias. 2008. Empörung und Fortschritt. Grundlagen einer kritischen Theorie der Gesellschaft. New York/ Frankfurt: Campus Verlag. Jakobsen, Jonas. 2011. “Recognition, Education and the Sami People of Norway”. In Writing Postcolonial Histories of Intercultural Education, edited by Heike Niedrig and Christian Ydesen, 222–238. Frankfurt am Main: Peter Lang. Jakobsen, Jonas. 2012. “What is unacceptable Speech?”. Science Nordic, April 17 (accessed August 2013). http://sciencenordic.com/whatunacceptable-speech Jakobsen, Jonas. 2014 (forthcoming). “Contextualising Religious Pain: Saba Mahmood, Axel Honneth and the Danish Cartoons”. In Recognition and Freedom: Axel Honneth’s Political Thought, edited by Odin Lysaker and Jonas Jakobsen. Leiden: Brill. Jensen, Tim. 2006. “The Cartoon Crisis Revisited: A Danish Perspective”. Real Instituto Elcano, (accessed August 2013). http://www.realinstitutoelcano.org/wps/portal/rielcano_eng/Content?W CM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/europe/ari+65 -2006 Jones, Peter. 1980. “Blasphemy, Offensiveness, and Law”. British Journal of Political Science 10: 129–48.

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Kanwal, Mona and Crone, Manni. 2012. “Islam as a Danish Security Issue”. In Islam in Denmark, edited by Jørgen S. Nielsen, 173–195. New York: Lexington Books. Klausen, Jytte. 2009. The Cartoons that Shook the World. Yale: Yale University Press. Laborde, Cecile. 2008. Critical Republicanism: The Hijab Controversy and Political Philosophy. Oxford: Oxford University Press. Lauta, Nikolaj. 2006. “Islamisk trossamfunds mappe” [The portfolio from The Danish Islamic Society]. Politiken August 22 (accessed August 2013). http://politiken.dk/incoming/article163883.ece Leuwen, Bart van. 2007. “A formal recognition of Social Attachments: Expanding Axel Honneth’s Theory of Recognition”. Inquiry 50: 180– 205. Laegaard, Sune. 2007. “The Danish Cartoon Controversy: Offence, identity, Oppression?” Political Studies 55: 481–498. —. 2014 (forthcoming). “The Paradox of Civility: The Case of the Danish Cartoons Controversy”. In Islam and Public Controversy in Europe, edited by Nilüfer Göle. Farnham: Ashgate. March, Andrew. 2012. “What’s Wrong With Blasphemy?” New York Times, September 25, The Opinion Pages. Modood, Tariq. 2006. “The Liberal Dilemma: Integration or Vilification”. International Migration 44: 4–7. Owen, David. 2007. “Self-government and ‘Democracy as Reflexive Cooperation’: Reflections on Honneth’s Social and Political Ideal”. In Recognition and Power. Axel Honneth and the Tradition of Critical Social Theory, edited by David Owen and Bert van den Brink, 290– 320. Cambridge: Cambridge University Press. Rose, Flemning. 2005. “Muhammeds ansigter” [The Faces of Muhammad], Jyllands-Posten, September 29 (accessed August 2013). Thompson, Simon. 2006. The Political Theory of Recognition. A Critical Introduction. Cambridge: Polity Press. Waldron, Jeremy. 2012. The Harm in Hate Speech. Harvard: Harvard University Press.

CHAPTER THREE SOCIO-TECHNICAL CONTROVERSIES, DEMOCRACY AND DELIBERATION: NEW CHALLENGES FOR POLITICAL PHILOSOPHY PALOMA GARCÍA-DÍAZ1

Claims for more public and expert participation in socio-technical controversies lie at the core of movements for democratizing science and technology. In my view, these demands should be understood as aiming to create a new normative model of communicative democracy within the deliberative model.2 In this chapter, I analyse the participatory and deliberative turns in the interdisciplinary field of science and technology studies (STS) (Lengwiler 2008: 187; Lövbrand et al. 2010: 477). Problems concerning the meaning, aims and scope of public participation will be highlighted in the context of these democratic and deliberative-orientated turns in STS. I also focus on the participatory model elaborated by Evans and Plows where lay citizens, 1

University of Granada. I would like to thank Jan Harald Alnes for his comments and suggestions on a previous draft of this text. 2 The term “communicative democracy” is used by Young (1996) and, in my view, can be usefully applied to communication and deliberation among different social groups. Communication refers to collective social learning processes between lay and expert groups and within expert groups. Callon, Lascoumes and Barthe refer to “dialogic democracy” as a means of fostering “technical democracy” (Callon, Lascoumes and Barthe 2001: 347). I argue that the fostering of participation and deliberation is a key element in the democratic governance of science and technology once it is recognised that formal analysis and political instruments to assess risk and to deal with uncertainty require constant improvement and that socio-cultural framing is also very important in order to understand and to deal with controversies in the context of politics and policy-making.

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who are regarded as neutral and lacking expert knowledge and prejudice, might legitimately intervene in socio-technical controversies and close them down (Evans and Plows 2007). Evans and Plows are inspired by citizen-jury initiatives and the normative theory of expertise developed by Collins and Evans which leads to a new kind of scientism (Collins and Evans 2007: 10–11). However, participatory approaches and this new variant of so-called deliberative democracy in science and technology studies are not warmly welcomed by authors such as Lövbrand, Pielke and Beck, on the one hand, and Durant, on the other. Lövbrand, Pielke and Beck have stated that a paradox democracy lies at the core of STS (Lövbrand et al. 2010: 477). Durant also gives a negative assessment of what he regards as a direct attack on public reason in the political realm by those scholars who support participatory and deliberative approaches (Durant 2011: 692). I will therefore attempt to bridge the gap between STS and political philosophy. In my view, authors working in the field of STS are often misunderstood in the context of political philosophy. In addition, the apparent contradictions in STS models of democracy actually involve real challenges that both theoretical approaches and political institutions inevitably have to face. Some of these issues concern the problem of participation or, in terms used by Collins and Evans, the problem of extension, which refers to the limits of participation in technical decisionmaking (Collins and Evans 2002: 237). The problem of extension thus relates to the gap between activism and public demands, on the one hand, and institutional decision-making processes, on the other. This means that the problem can be settled by analysing the relationship between participatory politics and real policies, which are important issues in political philosophy (Young 2001: 672–73). STS and political philosophy also need to tackle the question of inclusion: whether participation is to be structured from an individualistic, group, epistemological or political standpoint; how to characterise important groups invited to participate and how to ensure representativeness. I will not elaborate and develop here a normative model of communication between groups involving a deliberative approach to fostering democracy. I will only sketch some features and requirements for such a programme. Consequently, questions regarding representativeness and how to ensure inclusion in the policymaking process will remain open-ended. Nevertheless, I argue in favour of

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pluralism in order to grapple with philosophical questions involved in socio-technical controversies and their democratic governance.3

Deliberative Turn in Social Studies of Science and Technology Science and technology studies have reached a participatory turning point and more recently a deliberative stage (Lövbrand et al. 2010: 477). Reflections on public participation in socio-technical controversies and theoretical approaches on democratizing science and technology deal with issues such as biomedical therapies, environmental questions and technological innovation (Callon, Lascoumes and Barthe 2001). Problems concerning neutrality, expertise and the so-called deficit model that explains the knowledge gap between experts and lay citizens have been discussed in this context (Collins 1996; Wynne 2003; Jasanoff 2003a). The participatory turn focuses on issues such as (a) public participation where the definition of lay citizens as neutral referees in socio-technical controversies provided by Evans and Plows fits well within this participatory turn; as well as (b) questions about transparency and publicity in technical decision-making processes, where expert systems are directly involved (Jasanoff 2003b: 160). In addition, the deliberative turn stresses the importance of (a) elaborating and understanding the framing of controversy, where heterogeneous lay and expert groups are invited to participate in discussing controversies. The deliberative turn in STS also emphasizes the importance of (b) pluralistic socio-cultural appraisal and evaluation of techno-science, where collective learning experiences among lay and expert groups are located (Stirling 2008). In my view, the democratization of scientific and technological research, as well as the analysis of public participation, are important issues for epistemology as well as for social, moral and political philosophy. Consequently, in what follows I will argue that social and political philosophy is capable of reinforcing the calls for a communicative model of democracy between groups provided that shared reflections and findings in science and technology studies are also considered. Thus, reflection, deliberation, participation and the fostering of public opinion should be important subjects for practical philosophy as these are 3

Pluralism is tackled in this chapter from the point of view of ontology, epistemology and politics. It differs from the radical pluralism argued by Samuel Hayat in Chapter Eight in this volume.

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key elements in the democratic institutional governance of science and technology, which the European Commission and national governments are attempting to promote. In addition, these goals are in line with the general goal of improving technical democracy (Callon, Lascoumes and Barthe 2001). Apart from institutional structures, there are numerous examples of public involvement and participation in social movements, NGOs, emerging groups such as patients’ groups, and so on. Nevertheless, some important problems need to be recognized before the issue of participation can be tackled effectively. Firstly, there is a feeling of unease and disaffection among the general public in relation to science and technology, particularly in Europe (Wynne and Felt 2007: 9; Lövbrand et al. 2010: 488). Secondly, the public knowledge deficit model in the European narrative still prevails. The so-called deficit model states that, due to its alleged ignorance, public opinion is not represented in scientific and technical debates that discuss the socio-political aspects of scientific and technological developments. As a consequence, “exclusive, linear, deterministic notions of technological progress still dominate policy debates” (Stirling 2008: 264). Thirdly, participatory initiatives and their practical connections with actual institutional policy processes are “undefined and often non-existent”, except in the case of the Danish Board of Technology (Wynne and Felt 2007: 57; Lövbrand et al. 2010: 491). Although participation needs to be fostered and the public knowledge deficit overcome, there are numerous examples of participation and deliberation in the field of socio-technical controversies. Democratic governance of science and technology demonstrates the need for a plurality of experiences and practices that apply principles to enhance democracy in the techno-scientific field. It is thus worth emphasizing the importance of two issues. Firstly, pluralism is an important principle in relation to the democratization of science and technology. It must be understood in relation to lay citizens, experts, political institutions and social actors, and also in terms of theoretical approaches. In addition, pluralism lies at the core of current and future initiatives for fostering participation and deliberation. As a consequence, there have been calls to enhance participation from social movements. Participation is also reinforced in different fora—where these demands are discussed—which involve the experiences of lay citizen and expert groups in areas such as biomedical research (Callon and Rabeharisoa 2008), in deliberative experiences among experts faced with uncertainty in the field of research (Chilvers 2008: 444) as well as in institutional efforts to increase public participation. However, discussions of political philosophy need to go beyond current practices, political and institutional goals and calls

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emanating from lay citizen and expert groups. A communicative model of deliberative democracy should therefore be committed to the idea of pluralism which is at the core of communication and to the idea that there is not a reasonable or pre-established principle, which excludes arguments not based on neutral and objective demands. I argue, in accordance with philosophical pragmatism, in favour of the elimination of the considerable gap between facts and values and agree with Young when she asserts that “Democratic theory, including the theory of deliberative democracy, should understand itself primarily as a critical theory, which exposes the exclusions and constraints in supposed fair processes of actual decision making, which make the legitimacy of their conclusions suspect” (Young 2001: 688).4 I would also like to highlight two issues bound up with theoretical approaches to the democratization of science and technology research. Firstly, I regard the epistemological approach to studies of neutrality, expertise and public participation (Collins and Evans 2002; Evans and Plows 2007) as distinct from the politico-ontological framework focused on socio-technical networks, human and non-human actors within an object-orientated philosophy and committed to the idea that technoscientific practices co-produce the social and political order (Latour 2005; Marres 2007, 2010). Furthermore, the reflexive approaches to be found in both the sociology of Brian Wynne and the political studies of Sheila Jasanoff concur with the focus on neutrality, uncertainty, prediction, other epistemological concepts and the idea that techno-scientific practice lies at the core of the co-production of the social and political order (Jasanoff 2003b, 2005; Wynne 2003). However, the activist approaches of social movements will not be covered in this chapter. Pluralism will also be dealt with below, in connection with pragmatism. Secondly, the epistemological approach focuses on more concrete political aims than the politico-ontological position. Despite the specific nature of the epistemological approach, as shown by the concept of the “neutral listener” elaborated by Evans and Plows, it is excessively committed to the belief that disinterested lay citizens are without any prejudice. As a consequence, the epistemological approach focuses on citizen-jury initiatives and favours a more inclusive and democratic science that, in Rawlsian terms, takes account of lay-citizen “background culture” in relation to its democratic development and monitoring. I agree 4

A communicative model of democracy implies—against Mill’s idea of a rational deliberative method universally valid, as Rafael Cejudo argues in Chapter Four in this volume—interaction and collective learning. It excludes the idea of one exclusive rational deliberative method.

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that “background culture” needs to be taken into account, but disagree that there is a special type of individual participant or group that acts as a disinterested and neutral arbiter.

Bridging the Gap between Political Philosophy and STS The background to my position on, and interest in, bridging the gap between STS and political philosophy is based on three observations, briefly outlined below. In that sense, I distinguish a first group of reasons and arguments arising from the philosophy of technoscience in the context of STS that concern the understanding of science and technology as cultural practices. “Science” is no longer regarded exclusively as a collection of rational knowledge, nor is “technology” understood to be merely applied science (Latour 2004). As a consequence, the predictive scientific model and the linear model of technological innovation—where science uncovers truth, technology constructs applications based on scientific knowledge and society adapts to innovation—have been replaced by new models (Lengwiler 2008). The importance of uncertainty, ignorance and risk, as well as predictive knowledge in science, has been highlighted (Star 1995). In addition, more complex models of technological innovation have been developed (Callon 1995). The second type of argument is ontological. The study of technoscience in terms of its practice enables us to focus on the co-productive relationship between science, technology and society (Marres 2010). New scientific and technological entities incorporated socio-cultural elements, perform pre-existing realities and transform our conception of ourselves, our desires, and self-understanding. According to Bruno Latour, science and technology are political realities, as they have a considerable capacity to transform reality. It is therefore important to determine which new entities are desirable and which are undesirable (Latour 2005; Papadopolous 2010). Finally, the governance of science and technology in democratic societies has certain practical implications for this issue. There are connections between political demands and policy requirements in the context of the governance of science and technology in the European Union. For instance, the European Expert Report Taking European Knowledge Society Seriously states that “Ethics, risks, uncertainty and precaution are key European arenas in which scientific and ethical expertise, normative issues and questions of public deliberation are intersecting in new ways” (Wynne and Felt 2007: 46).

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Practical approaches to, and the study of, these issues from the point of view of political philosophy therefore need to be developed in order to complement the burgeoning work being carried out in the field of the sociology and anthropology of science. In addition, STS and political philosophy directly deal with both the theoretical and practical problems involved in understanding, analysing, assessing and regulating uncertainty, risk, new technology and scientific discoveries. Unfortunately, scholars do not warmly welcome ideas, concepts, experiences and democratic theories coming from STS. According to Lövbrand, Pielke and Beck, STS scholars paradoxically “seek to establish the legitimacy of deliberative governance arrangements on empirical grounds” (Lövbrand et al. 2010: 476). Empirical studies would therefore be required in order to conform to the legitimacy of deliberative governance. In other words, STS might not pay sufficient attention to principles governing legitimate scientific regulation that have been proposed by deliberative democracy theorists which are central to evaluating the legitimacy of real-life public deliberations. However, Lövbrand, Pielke and Beck recognize that the legitimacy of deliberation in STS, as described by Gutmann and Thomson and Benhabib (Gutmann and Thomson 2004: 10–11), arises from, and refers to, a process of collective reasoning among political equals: “Much of the emerging literature on expert democratization draws on this deliberative conception of legitimacy” (Lövbrand et al. 2010: 478). Consequently, the problem for STS scholars is particularly acute, in Durant’s view, in relation to the aims and objectives of STS practitioners and deliberative political philosophers. STS scholars and deliberative philosophers support the idea of pluralism while Durant is committed to the notion that reason is the arbiter of disagreements (Lövbrand et al. 2010: 479). Regardless, rather than assuming that STS and political philosophy need to confront shared issues and challenges such as redefining new approaches to legitimate deliberation, ideals of democracy and collective modes of discussion between equals, Lövbrand, Pielke and Beck focus on three failed strategies. The first strategy widens the gap between social and empirically grounded studies on the one hand and philosophy and theoretical studies on the other, even though these disciplines actually share normative ideals of democratization. Lövbrand, Pielke and Beck erroneously conclude that STS scholars need to put their own normative commitments to the public deliberation test (Lövbrand et al. 2010: 488). The second strategy is based on the opposition between “reason as the arbiter of disagreement”—a common demand among some of the theorists of deliberative democracy such as Rawls—and pluralism and disagreement

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as the main aim pursued by STS scholars when dealing with deliberation between lay persons and experts. The truth be told, deliberative democracy theorists also emphasise the importance of concepts such as pluralism (Young 1996, 1997, 2000 and 2001) and disagreement (Gutmann and Thomson, 2004). Furthermore, the enhancement of technical democracy requires that pluralism and disagreement be recognized as preconditions for collective learning processes and collective reasoning which stem from pluralistic positions (Callon, Lascoumes and Barthe 2001: 347). The third strategy adopts an STS approach and criteria as a whole that can be understood in terms of concepts outlined in the European Commission’s Expert Report Taking European Knowledge Society Seriously. Lövbrand, Pielke and Beck do not mention epistemological, ontological or political factors such as uncertainty or risk. Besides, they do not take into account in the context of risk assessment political instruments such as the precautionary principle or other inclusive political devices such as “technologies of humility” (Jasanoff 2003a) that also lie at the core of STS and are used to defend deliberative approaches to enhancing democracy. On the other hand, Durant appears to be more interested in showing how STS scholars and advocates of new deliberative forms and initiatives have adopted the erroneous position of disagreeing with the core notions inherent in their preferred theoretical approach which is based on the Rawlsian ideas of “public reason” and “political public culture” (Rawls 1997: 755–6, 783–4). Durant’s strategy distinguishes between deliberative democracy theorists, which include political philosophers such as Iris Marion Young who espouse a political position of difference as well as liberal multiculturalists such as Kymlicka and STS scholars such as Wynne and Jasanoff (Durant 2011: 696–708). In addition, there is another group that is influenced by the Rawlsian notion of “public reason” in the field of STS such as Collins and Evans and Durant himself which is consistent with liberal egalitarianism (Durant 2011: 707). To summarise Durant’s reflections on models of democracy in STS, it is necessary to distinguish between two different concerns. The first focuses on neutrality and Durant’s preferred choice of a neutral and objective concept such as public reason that goes beyond the beliefs and interests of social groups. Durant thus avoids using the Rawlsian concept of “background culture” and its counterpart in STS of “civic epistemology” (Jasanoff 2003a, 2005; Wynne 2003) when dealing with socio-technical controversies.5 Durant mistakenly believes that the 5

According to Durant, controversies do not lie at the core of the Empirical Programme of Relativism (EPOR) or Social Construction of Technology

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“Collins and Evans focus is consistent with Rawls’s hope that political philosophy will discover the basis for reasoned agreement in societies threatened with conflict” (Durant 2011: 698). It is true that Collins and Evans are interested in epistemological questions and that they provide a normative theory of expertise. But they do not reject the primacy of democracy over scientific or rational knowledge. Collins and Evans’s theory fits well with an aggregative model of democracy instead of a deliberative one. So these sociologists understand “the basis for reasoned agreement in societies threatened with conflict” in terms of the political right to decide individually and to express public opinion through individual and free right to vote (Collins and Evans 2007: 138). The second concern refers to pluralism and, more specifically, to the “social appraisal of problems” and “incommensurability between groups within a controversy”. Below, I address the question of neutrality and the basis for reasoned agreement that involves resolving a controversy by focusing on the role of the lay citizen as a neutral referee.

A Participatory Example: Evans and Plows’ Model of Neutral Listener Evans and Plows have designed a novel programme for “ubiquitous expert knowledge”, which actually refers to lay knowledge, and is based on the theory of expertise developed by Collins and Evans (Collins and Evans 2002, 2007). Collins and Evans have summarized their ideas concerning expertise by drawing up a periodic table that uses an epistemological classification of different types of knowledge and expertise elaborated in the context of a third wave of social studies of science that attempts to review the history of STS. This sociology of science and technology effectively argues that the third wave movement leads to what is called the problem of extension after the second wave has dealt with the issue of legitimacy once the first wave had developed a social understanding of scientific and technological processes. As stated above, the problem of extension involves reflecting on the limitations and scope of public participation in science and technology. approaches to STS as asserted by Harry Collins (Collins 1982). But concepts such as “relevant groups” and the principle of “interpretative flexibility” are vital for the EPOR in order to explain science and technology in the making. Controversies thus are regarded as inherent to the way science and technology operate and are constructed.

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By contrast, Evans and Plows adopt a different position that is committed to lay-citizen participation on the basis of the importance of neutrality (Collins 1996; Collins and Evans 2002, 2007). The differences between the programmes of Collins and Evans, on the one hand, and Evans and Plows, on the other, can be demonstrated by focusing on the distinction between the technical and political elements of controversies referred to by Collins and Evans and the distinction between experts and lay citizens in the position adopted by Evans and Plows. From this perspective, there are two main differences between these approaches. Firstly, Collins and Evans regard expertise as acquired through a process of social learning, while Evans and Plows define expertise as an “analyst category” rather than an “actor category” (Collins and Evans 2007: 615; Evans and Plows 2007: 830). Consequently, in the third wave, according to Collins and Evans, expertise entails not only socialization but also the development of expert tacit knowledge and skills. This approach distinguishes between “ubiquitous tacit knowledge” and “specialist tacit knowledge” that may or may not be formally certified (Collins and Evans 2007: 13–8). In contrast, Evans and Plows argue that the lay citizen does not belong to the ubiquitous expert group because the lay citizen is featured by virtue of neutrality and lack of interest. The experts generally “speak ‘to’ the members of the wider society but cannot claim to speak ‘for them’” (Evans and Plows 2007: 829). In other words, lack of knowledge and a disinterest in or lack of concern with a controversy on the part of a member of a society justify the adoption of a neutral point of view that would legitimize the position of the lay citizen as a spokesperson for society. Secondly, Evans and Plows refer to scientists and lay citizens rather than different categories of expertise as defined in terms of more or less knowledge and tacit knowledge. This enables them to argue that lay citizens play a role in the technical aspects of a controversy. In doing so, they highlight the role of the lay citizen in evaluating the social dimensions of technical debates and in closing down controversies. They assert that “it is the absence of specialist expertise that marks ‘disinterestedness’; it is the lack of any prior, or special, interest in what the experts know and care about” (Evans and Plows 2007: 829). Furthermore, knowledge plays an important role in the theory elaborated by Collins and Evans. They distinguish between interactional and contributive expertise, with the former referring to technical knowledge. Contributive expertise enables knowledge to be increased in order to settle a controversy or reach agreement on a controversial subject. However, the participatory approach elaborated by Evans and Plows eschews the

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possibility of communication between groups with different levels of knowledge. This participatory approach does not deal with different types of knowledge nor with the construction of an enriched appraisal and framing of controversies through a process of collective learning experience which would entail communication between different social groups. Finally, the argument put forward by Evans and Plows in favour of the role played by the lay citizen as a participant from outside established institutions and organizations shows that they agree with Harry M. Collins on the importance of neutrality as lying at the core of social research (Collins 1996). They also focus on neutrality rather than the problem of extension, although some references to the issue of extension are present when, for instance, the possibility of mass citizen participation is rejected (Evans and Plows 2007: 845). In sum, they do not tackle the problem of deliberation in relation to lay and expert groups.

Collective Reasoning and Collective Learning Experiences: A Commitment to Pluralism Sociologists Collins and Evans, as well as Evans and Plows, emphasize the importance of neutrality, but in my view, and also that of Stirling, public participation cannot be regarded as the sole means or standpoint for settling controversial debates. It is better to regard public participation as necessary in order to foster the “opening up” of appraisal procedures. In fact, public deliberation and participation are key elements for framing and understanding controversies surrounding ethical questions, risk, uncertainty and precautionary approaches to scientific governance. Nevertheless, public participation and deliberation should not be seen as the only way of settling controversies. However, both public participation and deliberation are regarded as necessary for “opening up appraisal” in order to provide information on a controversy and also for “closing down controversies”, which involves scientific and political compromise informed by appraisal processes (Stirling 2008: 267). Furthermore, participation involves both public participation and expert deliberation (Chilvers 2008). Finally, models and processes of public participation and governance presuppose certain attitudes to the relevant participants to be “invited to the table” and can thus be seen as “technologies of building community” (Wynne and Felt 2007: 53). Consequently, different types of participatory initiatives involve distinct categories of public participants. For instance, the ideal of the “neutral listener” proposed by Evans and Plows refers to the “ordinary citizen” who

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can adopt an “innocent” position on issues, often sits on citizen panels and participates in consensus conferences. However, there is also the role played by the “monitored citizen” who is part of a representative statistical sample of suitable citizens selected from each EU member state for the Eurobarometer and is considered to objectively represent the general “public”. In addition, “emerging groups”—such as patient’s groups—are also used in the field of research and innovation (Callon, Lascoumes and Barthe 2001: 27–8). I agree with the notion referred to in the politico-ontological framework of STS that denies the neutrality and disinterestedness of lay citizens in order to deal with and shape controversies. W. James, Latour and Marres (James 1907; Latour 2004; Marres 2007, 2010) are committed to a pluralistic position based on a philosophy of pragmatism. This approach rejects what is termed the great divide between facts and values. Rather than talking about “matter of facts”, they refer to the “matter of concerns”, which is the kernel of an object-orientated philosophy (Latour 2005). Concepts such as “air”, “land”, “therapies”, “sickness” and “technical devices” lie at the core of political reflections on socio-technical controversies. Pluralism, in this context, implies that everything is interconnected and that people are affected by reality in different ways (Harman 2009; James 1909: 43 and 79; Latour 2005: 115). An innovation can be regarded as important by some people but as heresy by others. How controversies are understood and how different social groups assess them relate to: (a) the rejection of a very scientific or political method that might achieve to close them down. There is disagreement at the core of the process of shaping, assessing and ruling controversies. The idea that experts can undisputedly shape and assess socio-technical controversies and lay-citizens play no role is at stake. (b) The refusal of the idea that there is a singular public opinion faced to expert knowledge; disagreement affects expert groups as well as lay-citizen groups. (c) Different theoretical approaches that aim to foster democracy when dealing with socio-technical controversies such as the neutral listener of Evans and Plows’ model, Collins and Evans theory of expertise or experiences of collective learning of Callon, Lascoumes and Barthe. In sum, there are practical consequences that arise from the acceptance of pluralism that affect the way the expert/lay-citizen relationship was thought, the way the public opinion was rooted in the realm of subjectivity and the way to consider democracy. I therefore agree with the notion of a “heterogeneous public”, which is also found in the communicative model of democracy (Young 1996). Political philosophy needs to come up with ways of dealing with a

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plurality of factors in an interconnected and changing world and should be sensitive to the role played by a “heterogeneous public” in a democratic model and reject the notion that lay citizens are neutral agents. In this sense, the concept of a “pluralistic democratic public sphere” in the very broad sense (Mouffe 1999: 745) might be useful. In addition, and against Cohen’s arguments, it is difficult to favour a model where groups, which differ in size, demands and knowledge, see each other as sufficiently reasonable in order to find rational solutions to controversies (Cohen 1997). A communicative model of democracy requires the construction of mutual agreements in the context of controversy, uncertainty and the need for a collective learning process. In doing so, it is important to recognize group differences that involve social and cultural appraisal as well as assessment by expert groups. Interaction between these groups concerned with an issue-based controversy is desirable and should be the subject of philosophical discussion. Philosophical discussion and claims for participation and deliberation thus should be regarded as rooted in pluralism. This pluralistic approach relates to groups, their interests, desirable outcomes and the social appraisal of controversies by experts, social groups, activists and politicians. Furthermore, pluralism can either positively enrich initiatives such as collective learning or result in a failure to reach agreement on what needs to be done. However, in my view, it is important to stress that there is no single political or scientific method to settle controversies. Consequently, it should be important to improve formal analytical approaches (Jasanoff 2003b), political instruments such as the precautionary principle (Wynne and Felt 2007: 34–42) as well as new types of participatory and deliberative fora composed of emerging lay groups (Callon and Rabeharisoa 2008) and experts (Chilvers 2008). Furthermore, it is crucial to highlight two further philosophical considerations regarding deliberation and participation. Firstly, both STS and epistemology have shown that there is no single method for settling controversies that goes beyond existing formal, analytical, participatory and deliberative techniques. However, the social appraisal and cultural framing of problems are extremely important in relation to understanding and dealing with controversies. In other words, it is necessary to improve scientific and political techniques and enhance communication between different groups when dealing with controversies and uncertainty. The former requires deliberation among politicians and scientific experts, while the latter involves a collective learning process among experts and also between politicians, experts and lay citizenry.

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Secondly, as mentioned above, political philosophy should avail itself of empirically grounded STS support and also focus on the “exclusions and constraints in supposed fair processes of actual decision making, which make the legitimacy of their conclusions suspect” (Young 2001: 688). In my view, political philosophy is not responsible for discovering the basis for reasoned agreement in relation to socio-technical controversies. This would be an impossible task which would again require a collective learning process, a task that philosophy, science and political theory on their own are incapable of undertaking. “Public political culture” therefore needs to be conceived in broader terms than those used by Lövbrand, Pielke and Beck and, more particularly, by Durant. These authors, together with John Rawls, view reason as an arbiter, which can legitimately go beyond controversies. Furthermore, in my view, the concept of “public political culture” might include comprehensive doctrines and social appraisal of problems, as values and facts are not such distinct phenomena in the context of controversies and uncertainty. So, Lövbrand’s and Durant’s approaches, following Rawls’s ideas, erroneously imply that neutral scientific techniques are available to deal with controversies. In the words of Rawls: “Public reasoning aims for public justification. We appeal […] to ascertainable evidence and facts open to public view, in order to reach conclusions about what we think are the most reasonable […] policies” (Rawls 1999: 786).6 The point is that, when it comes to controversies, such “ascertainable evidence and facts” are hard to recognize, if they exist, and most of the time they are subjects of disagreement among experts and different social actors and groups.

Conclusions I will finish by focusing on three main conclusions. Firstly, there is no neutral technique to supersede the incommensurability of knowledge and value judgments that separates experts, politicians and a heterogeneous 6

Emphasis added. Even though readers of Rawls, such as Jan Harald Alnes in Chapter Five in this volume, think that facts and values are not sharply separable when it comes to reason and that reason involves the two properties of being reasonable and rational, what I argue—in accordance with Durand—is that Rawls believes that there are facts and evidences that inform public reason, and that such facts and evidences exclude values and beliefs coming from “comprehensive doctrines”. Contrary to Durand, I argue that one important aspect of technoscientific controversies is that we can feature them as lacking objective facts and evidences that inform public reason in order to close them down.

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general public. However, if the deficit model is accepted and is supported by experts, politicians and a heterogeneous general public faced with the uncertainty surrounding controversies, incommensurability becomes part of the political game. A consensus on broadening appraisal procedures and interaction between groups is suitable, but it is not an overarching objective when dealing with socio-technical controversies. Nevertheless, interaction between the different groups involved and a pluralistic understanding of the issues play an important role in framing these controversies and lie at the core of collective learning processes. Secondly, a pluralistic approach to how people are affected by sociotechnical controversies is the true realm of the political arena in technoscientific cultures if collective learning processes and collective reasoning are to be fostered within the democratic governance of science and technology. Pluralism thus enhances inclusion. Thirdly, on the basis of an epistemological approach, concrete analysis of sociotechnical controversies opens up possibilities for a more engaged consideration of ethical, social and political issues that are not subjected to an in-depth study in the sociology and anthropology of science and technology. The absence of this type of analysis represents a major challenge for philosophy in the future.

References Callon, Michel. 1995. “Technological Conception and Adoption Network: Lessons for the CTA Practitioner”. In Managing Technology in Society. The Approach of Constructive Technology Assessment, edited by Arie Rip, Thomas J. Misa and Johan Schot, 307–330. London and New York: Pinter. Callon, Michel, Lascoumes, Pierre and Barthe, Yannick. 2001. Agir dans un monde incertain. Essai sur la démocratie technique. Paris: Seuil. Callon, Michel and Rabeharisoa, Volona. 2008. “The Growing Engagement of Emergent Groups in Political and Economical Life. Lessons from the French Association of Neuromuscular Disease Patients”. Science, Technology and Human Values 33: 230–61. Cohen, Joshua. 1997. “Deliberation and Democratic Legitimacy”. In Deliberative Democracy. Essays on Reason and Politics, edited by James Bohman and William Rehg, 67–91. Cambridge, Massachusetts: The MIT Press. Collins, Harry M. 1982. “Special Relativism: The Natural Attitude”. Social Studies of Science 12: 139–43.

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—. 1996. “In Praise of Futile Gestures: How Scientific is the Sociology of Scientific Knowledge?” Social Studies of Science 26: 229–44. Collins, Harry M. and Evans, Robert. 2002. “The Third Wave of Science Studies: Studies of Expertise and Experience”. Social Studies of Science 32: 235–96. Collins, Harry and Evans, Robert. 2007. Rethinking Expertise. Chicago: The University of Chicago Press. Durant, Darrin. 2011. “Models of Democracy in Social Studies of Science”. Social Studies of Science 41: 691–714. Evans, Robert and Plows, Alexandra. 2007. “Listening without Prejudice? Re-discovering the Value of Disinterested Citizen”. Social Studies of Science 37: 827-853. Gutmann, Amy and Thomson, Dennis. 2004. Why Deliberative Democracy? Princeton: Princeton University Press. Harman, Graham. 2009. The Prince of Networks: Bruno Latour and Metaphysics. Melbourne: Re-press. James, William. 1907. Pragmatism. A New Name or Some Old Ways of Thinking. Milton Keynes: Wildside Press. —. 1909. A Pluralistic Universe: Hibbert Lectures at Manchester College on the Present Situation in Philosophy. Milton Keynes: Wildside Press. Jasanoff, Sheila. 2003a. “Technologies of Humilities: Citizen Participation in Governing Science”. Minerva 41: 223–44. —. 2003b. “Accounting for Expertise”. Science and Public Policy 30: 157–62. —. 2005. Designs on Nature: Science and Democracy in Europe and The United States. Princeton: Princeton University Press. Latour, Bruno. 2004. Politiques de la nature. Comment faire rentrer les sciences en démocratie. Paris: La Découverte. —. 2005. Reassembling the Social. An Introduction to Actor-Network Theory. Oxford: Oxford University Press. Lengwiler, Martin. 2008. “Participatory Approaches in Science and Technology. Historical Origins and Current Practices in Critical Perspective”. Science, Technology and Human Values 33: 186–200. Lövbrand, Eva, Pielke, Roger Jr., and Beck, Silke. 2010. “A Democracy Paradox in Studies of Science and Technology”. Science Technology and Human Values 36: 474–96. Marres, Noortje. 2007. “The Issues Deserve More Credit: Pragmatist Contributions to the Study of Public Involvement in Controversy”. Social Studies of Science 37: 759–80. —. 2010. “Front-Staging Nonhumans: Publicity as a Constraint on the Political Activity of Things”. In Political Matter. Technoscience,

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Democracy and Public Life, edited by Bruce Braun and Susan J. Whatmore, 177–201. Minneapolis-London: University of Minnesota Press. Mouffe, Chantal. 1999. “Deliberative Democracy or Agonistic Pluralism”. Social Research 66: 745–58. Papadopoulos, Dimitris. 2010. “Alter-ontologies: Towards a Constituent Politics in Technoscience”. Social Studies of Science 41: 177–201. Rawls, John. 1997. “The Idea of Public Reason Revisited”. The University of Chicago Law Review 64: 765–807. Star, Susan Leigh. 1995. “Scientific Work and Uncertainty”. Social Studies of Science15: 391–427. Stirling, Andy. 2008. “‘Opening Up’ and ‘Closing Down’. Power, Participation, and Pluralism in the Social Appraisal of Technology”. Science, Technology and Human Values 33: 262–94. Wynne, Brian. 2003. “Seaking on the Third Wave? Subverting the Hegemony of Propositionalism: Response to Collins & Evans (2002)”. Social Studies of Science 33: 401–417. Wynne, Brian and Felt, Ulrich. 2007. Taking European Knowledge Society Seriously, Chair and Rapporteur, Report of Expert Group on Science and Governance, Science Economy and Society Directorate, European Commission Directorate-General. EUR 22700, Brussels. Young, Iris Marion. 1996. “Communication and the Other: Beyond Deliberative Democracy”. In Democracy and Difference: Contesting the Boundaries of the Political, edited by Seyla Benhabib, 120–35. Princeton: Princeton University Press. —. 1997. “Difference as a Resource for Democratic Communication”. In Deliberative Democracy. Essays on Reason and Politics, edited by James Bohman and William Rehg, 383–406. Cambridge, Massachusetts: The MIT Press. —. 2000. Inclusion and Democracy. Oxford: Oxford University Press. —. 2001. “Activist Challenges to Deliberative Democracy”. Political Theory 29: 670–690.

CHAPTER FOUR DELIBERATION FOR CONCRETE CASES: J. S. MILL’S LOGIC OF PRACTICE RAFAEL CEJUDO1

Concrete cases involve specific power relations and disparate values conflicts that require a particular form of deliberation. These are the kind of problems that applied ethics deals with, and they have been a challenge for liberalism since the nineteenth century on. John Stuart Mill’s attempt at a theory of art can be considered an effort towards a liberal applied ethics methodology. Though he was thinking primarily about politics, in his A System of Logic Mill examined the general conditions of practical rationality that are helpful for any practitioner. He held that the problem was not how to adapt a specific behaviour to some principles at hand, but rather to devise suitable rules for specific cases using a particular kind of deliberation. This logic of practice can be neither deductive, nor be modelled on the scientific methodology. Then again, it includes a political philosophy of goals, so that this logic of practice is not simply a kind of instrumental rationality. Mill’s doctrine of political compromise shows how he put into practice this view of applied ethics.

Mill’s Model of Applied Ethics Applied ethics has become more and more important in the last forty years. Bioethical problems, environmental issues, hard cases in business and the economy, the dark side of political management, or moral matters in the press and media loom large in the social agenda. Even though it is not easy to figure out what the common features of all those problems are, they always involve concrete real cases, power relations, and thus oppositions of interests, goals and values. My starting point is that Mill 1

University of Córdoba.

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drafted a liberal foundation for applied ethics in the last book of his A System of Logic.2 In the second section I describe the deliberation model for concrete cases that is outlined there. The two following sections are devoted to the conflict of values and the resulting compromises that practitioners should accept. I conclude with some suggestions about the liberal flavour of Mill’s logic of practice. Regarding concrete cases, applied ethics research may take two main approaches. First, it might be a highly theoretic reflection on general problems raised by specific social areas, like those of environment and social change, global justice, abortion and euthanasia, or corruption in democratic political systems. In this way, applied ethics provides different conceptual frameworks to address concrete cases, including consequentialism, deontologism, virtue ethics or dialogic ethics. Philosophers are thus here doing their traditional work: they analyse and define concepts, criticize hidden presuppositions, and justify beliefs, actions or policies (Beauchamp 1984: 514). Under this perspective applied ethics makes an indirect contribution to decision-making, because paradigmatic cases and specific data are postponed to the “application” moment when philosophers must hand over the baton to politicians, technicians and professionals. A number of J.S. Mill’s works are quite valuable here, for instance Utilitarianism, On liberty and Considerations of representative Government. Second, applied ethics offers methods and hints for ethical decisionmaking in concrete cases. This approach is of great interest to practitioners. Obviously enough, Mill was very much concerned in this study, because he understood his philosophical work as part of his public endeavours in favour of a better society. To illustrate, let us recall Mill’s reply to the secretary of the Neophyte Writer’s Society, which had invited Mill to become a member: “I set no value whatever on writing for its own sake and have much less respect for the literary craftsman than for the manual labourer except in so far as he uses his powers in promoting what I consider true and just” (Collini 1984: vii–lvi). Consequently, quite a few of Mill’s works deal with the normative aspects of specific problems, including among others Thoughts on Parliamentary Reform 1859, A Few Words on Non-Intervention, Vindication of the French Revolution, and the chapter Applications in On liberty. In the remainder of this text I shall concentrate on the second type of applied ethics. To put it bluntly, two approaches can be distinguished here, that is, the inductive or bottom-up model and the top-down or deductive one (Beauchamp and Childress 2001). The inductive approach tries to 2

I use A System of Logic eighth edition, the last one published in Mill’s lifetime.

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generalize from the practice of decision makers (nurses, journalists, politicians…) coping with concrete cases. Casuistry is the archetypal example (Jonsen and Toulmin 1988). The great strength of this approach lies in its proximity to concrete problems and facts. This is because value dynamics cannot be fully apprehended outside its context, and not due to some data fetishism nor solution-orientated mindset. The second point of strength is to respect the autonomy of the individuals and groups that have to decide and account for the selected solution. Nevertheless, the inductive approach rests too much on the particular and uncritical consensus established by professional groups, firms or institutions. In contrast, Mill’s liberal approach to applied ethics advocates for a universal or public principle in order to bring opposing interests and beliefs into line. Precisely for this reason the inductive approach has got another weak point, namely its difficulty in establishing effective value rankings while matching opposing views within a broader vision. In any case, Mill disallowed the inductive method in social sciences under the name of chemical or experimental method (Mill 1974), because it cannot give statements general enough to devise reliable guidelines.3 In the deductive approach a general set of rules or principles is applied to concrete cases. That is to say, ethical reasoning goes downwards from general statements to particular ones, so that the knowledge of an appropriate ethical theory is a necessary condition for ethical decisionmaking. As Beauchamp says, in the deductive approach “the rules and judgments proposed for acceptance are hammered out […] through an adjustment of abstract moral principles to concrete cases and factual findings” (Beauchamp 1984: 514). In the stronger version of this approach, ethical theory is completely free from facts, so there is full separation between moral and technical values. There is no internal mediation between the directives or technical norms (Von Wright 1963) and the moral ones. Consequently, ethical decision-making would be dogmatic, relativistic or entirely based on a contingent democratic consensus (Weber 1994; Rorty 2006: 369–380). A paradigmatic case is the practical syllogism in Aquinas’s ethics, and there are other less clear-cut examples (Gert 1984: 532; Nash 1983: 492–509; Clouser 1980). Benthamite utilitarianism is, no doubt, another clear illustration. In any case, J. S. Mill’s doctrine does not follow this approach. Indeed Mill strongly criticized the deductive model under the heading geometrical or abstract method (Mill 1974). He endorsed a deductive method for natural 3

On the importance of pluralism in decision-making, see Chapter Three in this volume.

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and social sciences, but at the same time he drew a sharp distinction between science and applied ethics or art. The oblivion of that distinction leads Mill to criticize the “philosophic politicians”, namely those ones who wrongly believe that abstract principles can guide human action. Mill says that “philosophic politicians, have attempted, not to ascertain universal sequences, but to frame universal precepts. They have imagined some one form of government, or system of laws, to fit all cases” (Mill 1974). But who were they? Two chapters later Mill says that they are the contractualists (though he only refers to Hobbes), and the utilitarians, “especially Bentham”, although for sure his father James Mill is included (Mill 1974; Skorupski 1989). According to Mill, all of them make (if I may say so) a moralistic mistake: a kind of moral and epistemological dogmatism that draws factual conclusions from normative premises. Mill holds that philosophic politicians travel the path in the wrong way, because they deduce directives and supposed facts not from data, nor even from laws of nature, but from “unbending practical maxims”. Their fundamental error is “to treat an art like a science, and to have a deductive art” (Mill 1974). Consequently, science and art should not be confounded, and in opposition to science, methodology should not be deductive in applied ethics (Mill 1974; Eggleston 2001: 71–93). Mill’s alternative methodology makes room for conflict of values and the resulting axiological compromises. I shall return to this issue later.

Secondary Rules of Art The opposition of art and science was introduced by Mill in his On the Definition of Political Economy. This work was first published in 1836, around the time he wrote On the Logic of the Moral Sciences, which is the sixth book of A System of Logic (Robson 1974: xlix–cix). Although Mill quotes Plato’s opposition of téchne and empeiría as a precedent (Plato, Gorgias: 463b), Aristotle’s tripartite division of knowledge (theoría, praxis and poiesis) may be a clearer example (Metaphysics VI: 1025b). As I shall explain, both moments of praxis and poiesis are present in Mill’s approach because deliberation and applied ethics have not vanished into scientific technology, as they have in positivism. To return to the point, science is aimed at discovering new facts and justifying beliefs about the world and society, while art is a deliberative activity to persuade which are the best goals and means. In other words, science aspires to intellectual conviction while the goal of art is action (Ryan 1970). In this regard Mill disallows Smith’s definition of economics because it confuses science and art, or positive and normative questions. Science, says Mill, is about

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understanding facts, and as a result it yields a collection of truths. On the contrary, human will is always involved in the art, and that is why it produces a collection of “rules or directions for conduct” (Mill 1967: 309– 340). In sum, science looks for the “laws of nature”, while art searches for “maxims of conduct” or “ends and means” (Mill 1967: 309–340). Science language is thereby “indicative” and art language is “imperative”. But, as I said previously, art and science are not in a kind of insurmountable antagonism because, unless we had only a useless science, “practical rules must be capable of being founded upon it” (Mill 1967: 309–340). The last two sections of A System of Logic are devoted to what Mill calls teleology, concerning the “first principles of Conduct” (Mill 1974). Art or applied ethics makes use of teleology just in case of radical conflicts or dilemmas, because it normally deals with the use of the aforementioned “maxims of conduct” for concrete cases. Regardless of what is the supreme level of teleology (according to Mill, it is the Principle of Utility), any high-ranked principle, not just utility, needs to be applied through “secondary” principles, rules or maxims (Mill 1985a: 110–11, 1985d: 203–260). Mill uses also the expressions “intermediate maxims” (Mill 1985c: 31–74) and “middle principles” (Mill 1985e: 165–202), and he says that those principles are analogous to Bacon’s “vera illa et media axiomata, in which, as Bacon observes, real wisdom resides” (Mill 1985b: 10–29). In the absence of secondary rules, no universal principle is enough to decide between concrete alternatives, and such a principle would be worthy just as a topic of conversation. This follows from Mill’s rules utilitarianism, stating that a particular action is justified if it is in accord with some secondary rule (Urmson 1953: 33–39). In brief, secondary rules point to the means or intermediate ends that should be used to get an ultimate end, and hence they are “guides to the bona fide inquirer in the application of the principle, and salutary checks to the sophist and the dishonest casuist” (Mill 1985c: 31–74). Conventional or “customary” morality, in Mill’s words “that which education and opinion have consecrated” (Mill 1985d: 203–260), belongs to this set of secondary rules (Crisp 1997; Berger 1984: X, 363; Haraldsson 2011: 215–235). One of the functions of teleology and of the art theory is to validate or reject that customary morality. Middle principles are not mere rules of thumb, that is to say a chance device to save time. On the contrary, secondary rules result from human knowledge, and because of this they change and are improvable. Art is not merely a list of imperatives, as a recipe or a mechanical procedure might be (Fitzpatrick 2006). It is a deliberative activity which links orders with factual and explicative judgments in a recursive way. For instance, the art

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of cooking is not the blind application of formulae, but a complex knowhow which comprises an appropriate series of steps, the function and importance of each of them, and the final intended result of all the process. Consequently, a good chef can alter the recipe in a successful way, and in so doing he is creating a new rule. Nevertheless there is no complete analogy with cooking, because art would incorporate scientific explanations in support of each action of the cooker. As Mill (1974) says: An art, or a body of art, consists of the rules, together with as much of the speculative propositions as comprises the justification of those rules. The complete art of any matter, includes a selection of such a portion from the science, as is necessary to show on what conditions the effects, which the art aims at producing, depend.

Perfect scientific knowledge is undoubtedly impossible, although fortunately a limited predictive knowledge is enough “for the more common exigencies of daily political practice” (Mill 1974). On the other hand, since scientific knowledge is not static, art is not static either. This is a consequence of rationality as a hallmark of a liberal applied ethics like Mill’s: moral rules, any rule actually, are neither totems nor taboos but “directions for conduct”, and thus they have been, and continue to be, shaped by new data and findings. For this reason customary morality is obligatory but only prima facie (Ryan 1970). It is the product of past experience and accumulated wisdom, but it is open to improvement in line with the Principle of Utility. Mill insists that “the received code of ethics is by no means of divine right; and that mankind still have much to learn as to the effects of actions on the general happiness” (Mill 1985d: 203–260). By the same token, secondary rules of applied ethics are binding directions for conduct yet only for the time being, because they might be different in the future to grapple with new concrete cases (Macintyre 1984: 498). Mill says in this regard that “the corollaries from the principle of utility, like the precepts of every practical art, admit of indefinite improvement” (Mill 1985d: 203–260). Art is a deliberation process which goes from goals to science and again to goals in a recursive way, for two reasons. First, art is not the automatic application of the Principle of Utility or even of secondary rules, because the process from rules to cases should be checked each time. Second, art is not always about choosing alternatives in line with a given set of rules; conversely, it frequently happens that a new rule is made up for the concrete case, and this entails revising the basis of the rules in force. Regarding the first reason, the deliberative process begins with a

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normative judgment about the desirability of a goal X. The next step, which functions as a factual premise, is a scientific judgment about the enabling conditions, (a,..,n), for X. Art is responsible for the third step, an additional normative judgment about the acceptability or advisability of conditions (a,..,n). Finally, “art concludes that the performance of these actions is desirable, and finding it also practicable, converts the theorem into a rule or precept” (Mill 1974). So far, Mill’s applied ethics seem deductive, because the method described above looks like a practical syllogism. Nevertheless, perfect knowledge of all the alternative conditions for X is out of reach, and thus art cannot be demonstrative: undiscovered sets of enabling conditions for X are always possible, and also uncertain negative consequences of attaining X. Fortunately, less than perfect knowledge suffices for ordinary cases. At any rate, hard cases require accepting some compromises. I will come back to this topic in a more comprehensive way in the last section. Regarding the second reason for recursiveness, it should be noted that the acceptability of X’s pre-conditions entails a similar deliberative reasoning, because art and science are needed again to ascertain if (a,..,n) is a right goal. I read in this way the following Mill’s statement: In the complicated affairs of life, and still more in those of states and societies, rules cannot be relied on, without constantly referring back to the scientific laws on which they are founded. To know what are the practical contingencies which require a modification of the rule, or which are altogether exceptions to it, is to know what combinations of circumstances would interfere with, or entirely counteract, the consequences of those laws (Mill 1974).

This is a stronger reason than the first one against the deductive approach in applied ethics, and a reason to conclude that “by a wise practitioner, therefore, rules of conduct will only be considered as provisional” (Mill 1974). I suggest that Mill is applying here a variant of the inverse deductive or historical method that he devised for the social sciences (Mill 1974). This method determines the effect of a given cause ceteris paribus, that is to say, by drawing out the consequences of a new cause under the presupposition of certain general laws and social circumstances. Regarding the deliberative process, the inverse deductive method aims to determine whether the narrower goal (a,..,n) is right considering that the general goal X is in order. On the whole, rules of art are “always imperfect” (Mill 1974), that is to say, applied ethics can always be improved.

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Compromises and Teleology I turn now to the issue of why some goals should be preferred to others. Mill’s answer is based on his Doctrine of Ends, also termed teleology or political philosophy of goals. In short, suitable goals are determined by art, while the route to realizing them is established by science. But ends cannot be established by science. First, because science deals with phenomena and explanations, not with maxims of conduct, as I said previously, and second, due to the fact that a philosophy of history cannot carry out the task of selecting the true ends. There is no such a thing as a priori rights goals for human conduct, as those goals result from the free human will. Nevertheless, freedom is not an obstacle to a predictive science of history. According to Mill, this science is formally possible, but it depends on psychological and anthropological knowledge which is not yet available, and probably never will be. For this reason, historic methodology should be the inverse deductive method which yields new knowledge only under specified assumptions. And, far more important than that, complete prediction is not equivalent to fatalism. Mill holds that all human actions are out of necessity, but “we only mean that they will certainly happen if nothing prevents” (Mill 1974). In other words, necessity is just full predictability. Science might explain why someone, given his motives, character, etc., will choose X instead of not-X, but this is different from determining scientifically that X must be preferred. In opposition to Comte’s positivism, the law of progress is not enough to provide full policy guidelines. Indeed, progress has a role, but there will be unavoidable compromises too. Mill states that “there is a Philosophia Prima peculiar to Art” that uses a single standard to establish “the goodness or badness, absolute and comparative, of ends, or objects of desire” (Mill 1974). Committed to utilitarianism, Mill asserts that “the promotion of happiness is the ultimate principle of Teleology” (Mill 1974). However, deliberation for concrete cases requires taking into account real value-conflict and accordingly some compromises. Professionals, politicians and practitioners in general have to make decisions, and so to choose some set of alternatives as preferred to all the other sets. Hard conflicts arise when there are incompatible goals. Obviously enough there is a great variety of cases and disciplines, and thus a vast array of goals and arts. Mill mentions architecture, medicine or navigation, and he holds that each of them has a specific main goal (it is desirable to have suitable buildings, to be healthy or to arrive at one’s destination). All the same, every art belongs to one of three main normative realms (called Morality, Prudence or Policy and Aesthetics or

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Taste) that form the Art of Life (Mill 1974). Mill (1985e: 165–202, 1979) disallowed Whewell’s and Hamilton’s intuitionism as a solution for establishing normative orderings, as he considered that a single overriding criterion was needed. Therefore, there is just one basic principle for the Art of Life, namely, the Principle of Utility. It should be noted that Mill is endorsing a single meta-rule (the Principle of Utility), not that utility is the only paramount goal. For this reason, there is normative and axiological pluralism at lower levels, i.e. in concrete cases. That is why Mill believes that real moral compromise decisions are sometimes in order. Let us recall the causes of rules conflict: since secondary rules are justified in order to get actionable goals under a specific set of circumstances, they are not permanent. Circumstances always change from theory to practice, and from one concrete case to another, and so art should propose an exception or an amendment of the initial rule. As a consequence, rule A is changed into another rule A’, quite similar to the former one if circumstances change just slightly. Let us suppose a situation where there is compatibility between rule A and rule B. Quite probably that harmony is lost considering A’ and B. The new situation could be even more complex if B is highranked than A and A’. Some compromise might be inescapable, since any of the chosen alternatives could honour both opposing secondary rules. Summing up, Mill’s approach allows for diverse normative standards appropriate to different activities, and thus there is room for professional autonomy. There is no demonstrative algorithm to get the right solution in concrete cases, though Mill supports a rational deliberative method universally valid. On the other hand, the vast array of arts or activities with a normative import converges into three realms according to Mill: ethics, politics and aesthetics. Furthermore, Mill points out an “ultimate principle of Teleology” as a meta-rule to solve conflicts within those realms or between them. I shall dwell on this particular point. In Taylor’s Statesman, a minor work from the time of On the Logic of the Moral Sciences, Mill said that “the evil of departing from a well-known and salutary rule is indeed one momentous item on that side of the account” (Mill 1977b: 617–647). It does not mean giving up a consequentialist model of deliberation, as Mill immediately says that considering evil as being “equal to infinity, and as necessarily superseding the measurement of any finite quantities of evil on the opposite side, appears to us to be the most fatal of all mistakes in ethical theory”. Therefore, Mill’s point is that evil can always be exceeded by good, not that evil vanishes for good. Still one might think that in fact there is an opposition of choices, not of values, because utility is the ultimate and supreme value. In this way the evil resulting from not choosing one of the alternatives (say less utility), would

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be of the same sort of the good arisen from the other one (more utility). Consequently Mill’s logic of practice would allow practitioners to compromise as a negligible strategic device. However, I think that Mill’s proposal is more complex and more useful for a liberal approach to applied ethics.

Coping with Half-Measures Art recommends some action and this is portrayed through a normative judgment using ought or should. Indeed, art asserts as a matter of fact that certain behaviour prompts a feeling of approbation in the agent mind, and therefore that behaviour is suggested. Regarding this last point, Mills mentions that “it is true, that in the largest sense of the words, even these propositions assert something as a matter of fact” (Mill 1974), but I hold that the expression “the largest sense of the words” is not clear enough to look upon the relation between the psychological fact of pleasure and the command of pursuing it. At any rate, he pursues this question further as his utilitarianism is not that of Bentham. He therefore states that “the speaker’s approbation is not sufficient reason why other people should approve; nor ought it to be a conclusive reason even with himself” (Mill 1974). In other words, deliberation does not always relate to self-interest or happiness. Different goals should be taken into account according to Mill (1974): I do not mean to assert that the promotion of happiness should be itself the end of all actions, or even of all rules of action. It is the justification, and ought to be the controller, or all ends, but is not itself the sole end. There are many virtuous actions, and even virtuous modes of action […] I fully admit that this is true: that the cultivation of an ideal nobleness of will and conduct, should be to individual human beings and end, to which the specific pursuit either of their own happiness or of that of others (except so far as included in that idea) should, in any case of conflict, give way.

This paragraph is at the very end of A System of Logic. Earlier in that work, in the second chapter of On the Logic of the Moral Sciences, Mill stresses the importance of autonomy. Since human beings have “a power of self-formation” (Mill 1974), striving for pleasure and avoiding of pain are not the only motivations. Once a habit is acquired, we are accustomed to certain courses of action, and as a result a behaviour becomes desirable quite apart from the pleasure or pain that caused the habit in the beginning. Since a purpose is “a habit of willing”, according to Mill, pleasure and happiness are not always desired. In other words, utility is not only

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happiness or pleasure. The Principle of Utility is a rule on secondary rules, and it requires the maximization of utility in cases of conflict at the level of secondary rules. Now, utility is a name for evaluating different goals, sometimes in opposition. Consequently there might be concrete cases where half-measures are not merely strategic compromises, because they result from real conflicts of rules and values. To illustrate this point, let us suppose that secondary rule A is our duty. Provided that rule A is part of our customary morality, we are probably accustomed to observe it. Let us assume that we are happier when we comply with rule A (perhaps because the commanded action is pleasurable, perhaps because we feel a strong satisfaction when we comply with A, or for whatever other reason). Now imagine that, in some specific circumstances, not observing A is more useful. As I said above, that should bring about an amendment of A, a formulation of an alternative rule, or an exception. These are changes within the decision level. At the foundational level the righteousness of whatever choice still depends on the Principle of Utility. Anyway, provided we are used to A and we are, by hypothesis, happier with A, there will not be more happiness in choosing not-A. In this case, possibly quite often, the choice would be a real compromise between happiness and utility. Mill’s ideas on political compromise provide an illustration of how his logic of practice deals with conflict of values. Approximately ten years after A System of Logic, Mill drafted a doctrine of half-measures for democratic struggle (Mill 1977c: 313–339). Lord Aberdeen’s and Lord Stanley’s Reform Bill proposals led Mill to think that the requirements of an inadequate policy might nonetheless be acceptable (Brady 1977). Practitioners and politicians have sometimes to make decisions that they would rather not like to make. Nevertheless there should be certain limits so that “no Reformer ought to be even temporarily satisfied” with less than a “good half-measure” (Mill 1977c: 313–339). Consequently those halfmeasures are still ethically sound compromises. Half-measures have formal and content features (Cejudo 2010: 300–307). Mill points out three formal features: all parties compromise, nobody is entirely satisfied with the solution; and compromisers are not simply paying lip service to the proposal. Specific content features are needed if the compromise is to be a useful exception to a correct rule. They mean that the right compromise should be a step toward a better scenario, because the half-measure “should be aimed at the really worst features”, and the compromise “should be so constructed as to recognize and embody the principles which, if no hindrance existed, would form the best foundation of a complete measure” (Mill 1977c: 313–339).

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Mill’s logic of practice therefore allows for compromises as a way of going two steps back to go one step forward as soon as the opportunity arises. In a good half-measure something is lost, but it appeared to be the only way to avoid a worse outcome (of course, maybe we are just pretending we compromise and so there would be no real loss, but this strategic bluff does not change the picture). Apparently, this kind of compromise is only a strategic move because practitioners or politicians are just giving up a bigger amount of something valuable in order to get a less of something that is valuable too. However, there are concrete cases where not only strategic interests are at stake, so that practitioners have to step back on a moral point of view; the loss that the moral agent has to accept is a moral loss. In this case a wrongdoing is part of the deal, and the compromiser’s integrity is at risk because he really is blameworthy. All the same, it is a compromise and not merely a plain wrongdoing. Since the compromiser sincerely seeks a right goal and he thinks that becoming blameworthy this is a price he has to pay in order to get that moral success. A concrete case in which to apply this doctrine came when Mill was an MP and he helped the Conservative government prevent a Reform League demonstration at Hyde Park (Thompson 2007). Mill was very satisfied with that decision because it helped avoid bloodshed (Mill 1981). Of course, Mill was in favour of free speech and the right of assembly, and soon after ensured that a Tory bill against the right of assembly in parks did not pass (Mill 1988: 102–105). In this case, by hypothesis, there are several reasons in favour of a secondary rule like this: a radical politician should support rights of free speech and assembly. However, careful deliberation on the concrete case of the Reform League meeting at Hyde Park in 1866 led Mill to grant an exception. The point I want to emphasize in this case is that art and science could recommend an exception here, since the principle of utility is better served in the long run. However this is not to say that the value of the rule is nullified. That is precisely the reason why a compromise might damage, but also have merits.

Conclusions: A Liberal Predecessor of Applied Ethics As Mill was an active public intellectual throughout his life, many other examples of hard decisions in concrete cases might be found in his work, including cases on women’s suffrage, infectious diseases, the Poor Laws or international relations. However my main purpose was not to research into Mill’s political and social thinking, but to suggest that he was one of the fathers of a liberal outlook on applied ethics. Certainly this branch of ethics is a much later field of research than Mill’s intellectual concerns,

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but liberal ethicists can find helpful insights in his On the Logic of the Moral Sciences on the ethical methodology of applied ethics. I would suggest that a liberal approach on applied ethics looks for universal ethical standards at least in a weak sense. In other words, “universal” means, at a minimum, standards that might be invoked by any member of society as part of the idea of a shared public reason (Rawls 1993).4 In this regard, a liberal applied ethics cannot fully accept Gewirth’s separatist thesis according to which professionals “have rights and duties that are unique to themselves and that may hence be not only different from, but even contrary to, the rights and duties that are found in other segments of morality” (Gewirth 1986: 282–300). Conversely, the principle of utility as a formal meta-rule for low-ranked conflicts might serve that purpose. Moreover, a liberal approach makes room for autonomy, and Mill’s deliberation for concrete recognizes the validity of existing secondary rules. As Mill said, “There is no one so fit to conduct any business, or to determine how or by whom it shall be conducted, as those who are personally interested in it” (Mill 1977a: 213–310), and that is why justice should be attained by fair procedures. According to Mill, every individual (and organization of individuals, it could be added), has a right to discover for himself what is just because “over himself, over his own body and mind, the individual is sovereign” (Mill 1977a: 213–310). The logic of practice sketched out in On the Logic of the Moral Sciences is helpful for that purpose. Furthermore, as mainstream liberalism, his logic of practice relies on scientific methodology. I tried to show that Mill trusted in rationality to solve ethical problems, and particularly had confidence in the power of the scientific method. Actually, Mill’s main work regarding this topic, the last chapter of his A System of Logic, is part of a book on scientific methodology. Finally, I hold that On the Logic of the Moral Sciences underpins Mill’s doctrine on compromises or halfmeasures. As a result, my analysis of this issue looks at the liberal importance of “the many-sideness of the truth and of the irreducible complexity of life”, as Berlin said (1969). Therefore, Mill’s view of deliberation for concrete cases stresses the challenges for personal integrity and the importance of ethical responsibility.

4

On this topic, see Chapter Five in this volume.

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References Beauchamp, Tom L. 1984. “On Eliminating the Distinction Between Applied Ethics and Ethical Theory”. The Monist 67 (4): 514–531. Beauchamp, Tom. L., and James. F. Childress. [1979] 2001. Principles of Biomedical Ethics. Oxford: Oxford University Press. Berger, Fred R. 1984. Happiness, Justice, and Freedom: the Moral and Political Philosophy of John Stuart Mill. Berkeley: University of California Press. Berlin, Isaiah. 1969. Four Essays on Liberty. Oxford: Oxford University Press. Brady, Alexander. 1977. “Introduction”. In The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. Cejudo, Rafael. 2010. “J.S. Mill and the Art of Compromise”. Human Affairs 20: 300–307. Clouser, K. Danner. 1980. Teaching Bioethics: Strategies, Problems, and Resources. New York: Hasting Center. Collini, Stephan. 1984. “Introduction”. In The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. Crisp, Roger. 1997. Mill on Utilitarianism. London: Routledge. Eggleston, Ben. 2011. “Rules and Their Reasons: Mill on Morality and Instrumental Rationality”. In John Stuart Mill and the Art of Life, edited by Ben Eggleston, Dale E. Miller and David Weinstein, 71–93. Oxford: Oxford University Press. Fitzpatrick, John R. 2006. John Stuart Mill's Political Philosophy: Balancing Freedom and the Collective Good. London: Continuum International Publishing. Gert, Bernard. 1984. “Moral Theory and Applied Ethics”. The Monist 67 (4): 532–548. Gewirth, Alan. 1986. “Professional Ethics: The Separatist Thesis”. Ethics 96 (2): 282–300. Haraldsson, Robert H. 2011. “Taking It to Heart: Mill on Appropriation and the Art of Ethics”. In John Stuart Mill and the Art of Life, edited by Ben Eggleston, Dale E. Miller and David Weinstein, 215–235. Oxford: Oxford University Press. Jonsen, Albert R., and Toulmin, Stephen. 1988. The Abuse of Casuistry: A History of Moral Reasoning. Berkeley: University of California Press. Macintyre, Alasdair. 1984. “Does Applied Ethics Rest on a Mistake?” The Monist 67 (4): 498–513.

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Mill, John Stuart. 1967. On The Definition Of Political Economy; And On The Method of Investigation Proper To It. In The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. 1974. A System of Logic Ratiocinative and Inductive, Being a Connected View of the Principles of Evidence and the Methods of Scientific Investigation (Books IV–VI and Appendices). In The Collected Works of John Stuart Mill, Vol. VIII, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. 1977a. On Liberty. In The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. 1977b. Taylor's Statesman. In The Collected Works of John Stuart Mill, Vol. XIX, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul [Original edition, London & Westminster Review, V & XXVII (April 1837), 1– 32]. —. 1977c. Thoughts on Parliamentary Reform 1859. In The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. 1979. An Examination of William Hamilton’s Philosophy. In The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. 1981. Autobiography. In The Collected Works of John Stuart Mill, Vol. I, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. 1985a. Bentham. In The Collected Works of John Stuart Mill,Vol. X, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. 1985b. Blakey's History of Moral Science. In The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. 1985c. Sedgwick's Discourse. In The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. 1985d. Utilitarianism. In The Collected Works of John Stuart Mill, Vol. X, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul.

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—. 1985e. Whewell on Moral Philosophy. In The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. 1988. The Reform Meeting in Hyde Park. In The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. Nash, Laura. 1983. “Ethics Without the Sermon”. In Executive Success. Making It in Management, edited by Eliza Collins, 492–509. Cambridge, Mass.: John Wiley and Sons. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Robson, John M. 1974. “Textual Introduction”. In A System of Logic. The Collected Works of John Stuart Mill, edited by John M. Robson. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. Rorty, Richard. 2006. “Is Philosophy Relevant to Applied Ethics? Invited Address to the Society of Business Ethics Annual Meeting, August 2005”. Business Ethics Quarterly 16 (3): 369–380. Ryan, Allan. 1970. The Philosophy of John Stuart Mill. New York: Humanity Books. Skorupski, John. 1989. John Stuart Mill. London: Routledge. Thompson, Dennis F. 2007. “Mill in Parliament”. In Mill's Political Thought: a Bicentennial Reassessment, edited by Nadia Urbinati and Alex Zakaras, 160–199. Cambridge: Cambridge University Press. Urmson, James O. 1953. “The Interpretation of the Moral Philosophy of J.S. Mill”. The Philosophical Quarterly 3 (10): 33-39. Von Wright, Georg Henrik. 1963. Norm and Action: A Logical Enquiry. Berkeley: University of California. Weber, Max. 1994. Political Writings. Edited by Peter Lassman and Ronald Speirs, Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press.

PART II: CITIZENSHIP AND DEMOCRACY

CHAPTER FIVE DEMOCRATIC EDUCATION AND REASONABLE PLURALISM JAN HARALD ALNES1

Introduction In a regime with enduring free institutions, the citizens over time inevitably formulate and live by reasonable comprehensive doctrines— philosophical, metaphysical and religious—that make conflicting valuations about the highest goods. This proposition is an unavoidable consequence of the freedom enjoyed by the citizens of constitutional democracies. John Rawls labels this inescapable, not transient, fact about modern democratic societies, “reasonable pluralism”, and it is the starting point of his political liberalism. Rawls’s basic and simple principle of democratic education is that, due to reasonable pluralism, the education of future children cannot be based on principles in conflict with any such comprehensive doctrine. This principle, and the more general implications of Rawls’s political liberalism for educational issues, have been extensively treated among influential scholars on philosophy and education (Callan 1997; Costa 2004, 2011; Macedo 1995a, 1995b, 1995c; McLaughlin 1995; Mulhall 1998; Gutmann 1995, 1998; Galston 1991, 1995; Toscano 1998). Rawls himself hardly substantiates his basic principle, with the exception of a well-known passage in Political Liberalism. All scholars, this author included, agree that Rawls ought to have addressed the principles of education within political liberalism in more depth. 1

UiT The Arctic University of Norway. I am grateful to the audience at Themes in Contemporary Ethics and Political Philosophy for valuable comments and criticism, some of which are mentioned in the notes. I am particularly thankful for insightful reflection from Roar Anfinsen and Manuel Toscano on former drafts of this chapter. This chapter is part of the Civic Constellation project (Spain’s National Research Fund, FFI2011–23388).

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Roughly speaking, the scholars might be divided into two camps: one says that Rawls is right in avoiding basing the principles of education on values that belong to one or more, but not all, reasonable comprehensive doctrines. The other maintains that, when spelled out, the Rawlsian principles of education turn out to share essential features with a certain limited range of reasonable comprehensive doctrines. In the words of a distinguished scholar: “Rawls’s political liberalism […] is really a disguised instance of comprehensive liberalism” (Callan 1997: 13).2 I side with the former camp. The purpose of the present paper is to add further arguments to those proposed by Victoria Costa and Stephen Macedo, in particular, in support of the view that the principles grounding democratic education should be based on political liberalism. In order to make my position as transparent as possible, two preliminary clarifications are needed. First, educators in the relevant societies might be divided into three groups: parents, fellow citizens, and professional educators. This distinction between roles in the upbringing of the children is fruitfully utilized by Amy Gutmann (Gutmann 1999). Although my focus is on professional educators, the role of different types of educators comes in to play from time to time. To political liberalism, the distinction between a society and a community is essential. Let us “think of a community as a special kind of association, one united by a comprehensive doctrine, for example a church” (Rawls 1996: 40). For reasons that will become clear, it is convenient in our present circumstances to group communities with parents. Second, I need to emphasize that the terms “educate”, “teach” and their associates are used loosely, in order to cover both the paradigmatic instructions of algorithms in mathematics and grammar, the use of examples and exemplars, non-propositional conveying through stories and fiction, as well as acting as role-models.3 I follow John Dewey in rejecting a sharp fact-value distinction, and I take it as a given that factual and moral learning take place through the teaching of any subject (Dewey 1997). Consequently, the democratic education of the future generation is 2

Although not pursued here, it should be clear that Rawls’s political philosophy as such is at stake. If political liberalism is not able to provide a reasonable and coherent account of education, it fails. 3 I have expressed this point as broadly as I can, in order not to make my argument on civic education depend on a specific pedagogical theory. To me, Wittgenstein’s later writings, in particular his detailed discussion of rule-following, his analysis of the notion of reading, and his account of the significance of family resemblance, is instructive on this point (Wittgenstein 1958). My favourite writing on moral learning through story-telling is Diamond (1991).

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not a subject or a discipline of its own, in isolation from the rest of the curriculum.4 The structure is as follows. To begin with, in Part I, I outline the notions of civic and democratic education. Part II is devoted to the notions of reasonable disagreement and reasonable pluralism. Part III discusses the content of democratic education according to political liberalism, and Part IV is an attempt at responding to the fundamental question of democratic education from the perspective of political liberalism: how to teach and learn the content and significance of the burdens of judgement? By means of all this, we have prepared the ground for the subject of Part V, that is, a specification of the content and aim of democratic education according to political liberalism. In the final part, Part VI, I draw some implications for the issue of licensing private primary and secondary schools.

Civic and Democratic Education A concise specification of our key term is given by Jack Crittenden: “Civic education, whenever and however undertaken, prepares people of a country, especially the young, to carry out their roles as citizens” (Crittenden 2007:1). Clearly, civic education has a role to play in countries based on other governmental principles than the constitutional democratic one. Our focus is on one of its proper subsets, commonly called “democratic education”. Let us again cite Crittenden: Civic education in a democracy, though not in every kind of regime, must prepare citizens to participate in and thereby perpetuate the system and at the same time prepare them to challenge what they see as inequalities and injustice within that system (Crittenden 2007: 5).

Amy Gutmann maintains that a fundamental aspect of democratic education is “the cultivation of the virtues, knowledge and skills necessary for political participation” (Gutmann 1999: 257). We could specify the notion further by invoking Rawls’ familiar theory and terminology: democratic education is education aimed at teaching the future generation of a given constitutional democracy the content and significance of public 4

The rejection of this dichotomy plays a pivotal role in Putnam and Putnam (1993). This does not mean that I subscribe to Dewey’s general theory of democratic education, based on a scientific or naturalistic comprehensive doctrine. Even though I am sympathetic to his comprehensive doctrine as such, it cannot, I take it, form the basis of the principles of civic education for contemporary pluralistic democracies.

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reason, and thereby paves the way for stability for the right reasons (Rawls 1996: xxxix, 140–144). As my few, but representative, citations indicate, writers on democratic education commonly emphasize the significance of critical thinking and deliberation, as they take this to be a conditio sine qua non for a wellfunctioning, constitutional democracy. I am familiar with just one influential liberal author who denies that this is significant for democratic education, namely William A. Galston. I provide reasons for accepting the common understanding and questioning Galston’s position in Part V.

Reasonable Pluralism and Reasonable Disagreement Reasonable pluralism is a proper subset of reasonable disagreement. Rawls labels the fact that two reasonable persons (as characterized by the twinnotions of being rational and being reasonable (Rawls 1996: 48–54)) might be fully informed about a certain (normative) topic and still disagree about the right decision, “reasonable disagreement”. This view, that on controversial normative issues, reasonable persons might not reach an agreement, lies at the very heart of political liberalism. Rawls labels the sources for this kind of disagreement, i.e. disagreement not due to narrow self-interests, ignorance or logical errors, “the burdens of judgment”. He gives the following incomplete list of the features of these burdens: a. The evidence—empirical and scientific—bearing on the case is conflicting and complex, and thus hard to assess and evaluate. b. Even where we agree fully about the kinds of considerations that are relevant, we may disagree about their weight, and so arrive at different judgments. c. To some extent all our concepts […] are vague and subject to hard cases; and this indeterminacy means that we must rely on judgment and interpretation […] within some range (not sharply specifiable) where reasonable persons may differ. d. To some extent (how great we cannot tell), the way we assess evidence and weigh moral and political values is shaped by our total experience, our whole course of life up to now; and our total experience must always differ. Thus, in a modern society with its numerous offices and positions, its various divisions of labour, its many social groups and their ethnical variety, citizens’ total experiences are disparate enough for their judgments to diverge, at least to some degree, on many if not most cases of any significant complexity. e. Often there are different kinds of normative considerations of different force on both sides of an issue and it is difficult to make an overall assessment.

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Chapter Five f. [A]ny system of social institutions is limited in the values it can admit so that some selection must be made from the full range of moral and political values that might be realized […] In being forced to select among cherished values, or when we hold to several and must restrict each in view of the requirements of the others, we face great difficulties in setting priorities and making adjustments. Many hard decisions may seem to have no clear answer (Rawls 1996: 56f).

By invoking such notions as evidence, experience, selection and vagueness, Rawls makes it clear that the burdens of judgement are the rock-bottom of his normative reflections. A reasonable person is a person who accepts the burdens of judgement. Thus, if I am a reasonable person and am convinced that my view on a certain topic is the true and final one, I still respect that other reasonable persons conclude differently. It is this notion of reasonable that is invoked in the phrase “reasonable pluralism”.5 For the subsequent discussion, it is of decisive importance always to take the restrictions placed on a reasonable pluralism, as opposed to pluralism as such, into account. Reasonable pluralism, Rawls maintains, “is not seen as a disaster but rather as the natural outcome of the activities of human reason under enduring free institutions” (Rawls 1996: xxxvi). The significance of reasonable pluralism is the presence of an irreconcilable variety of valuations of the highest goods and fundamental human issues. In the literature one often points to Kantian moral autonomy, Millian individuality and Christian faith as examples of this variety. But clearly, one might be a Kantian, a Millian or a Christian without being reasonable. I am not about to pursue the logic of political liberalism, due both to limits of space, but also because I do want the present account to be as free floating as possible. As stated in the introduction, I subscribe to the view that the principles of education for a contemporary constitutional democracy must respect the facts of reasonable pluralism and reasonable disagreement. This education must introduce the pupils to the guiding 5

As will become evident in Part III, a further criterion for being reasonable is to have some basic political virtues. These are, of course, consistent with all reasonable comprehensive doctrines. In this connection I do not investigate the complex interplay between understanding and virtue when it comes to formulating the principles of justice for a society. I owe the point that in order to appreciate Rawls’s political philosophy, one must pay due attention to the interplay between all aspects of the notion of a reasonable person to Manuel Toscano. (In his view, Rawls’s notion of a reasonable person is ambiguous, while I take it to be complex. Accordingly, with respect to the educational issue treated here, I believe I am justified in focusing on certain aspects of this notion; Toscano, clearly, takes the present understanding of Rawls’s political philosophy to be too charitable.)

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principles of deliberation among proponents of different reasonable comprehensive doctrines, or more broadly, among holders of different reasonable positions on pressing political and moral issues. A further specification relevant to our subsequent discussion should be noted. We have observed that the fact of reasonable disagreement is prior to, and logically independent of, the fact of reasonable pluralism. This means that reasonable disagreement might, and often does, occur among proponents of one and the same comprehensive doctrine. By itself, and independently of the notion of reasonable comprehensive doctrines, this observation makes it clear that there is no such thing as the liberal view, or the true liberal approach towards fundamental moral issues, such as euthanasia, abortion, death penalty, or, say, the distribution of resources between nations. This should come as no surprise, since the core values of liberalism are reflected by way of vague notions such as freedom, equality and independence, as stated in the third entry above.

Political Liberalism and Democratic Education By pointing out certain general facts inherent in the regimes under consideration, I have provided the background for a Rawlsian account of democratic education. I’ll cite the actual passage from Political Liberalism. As it is rather long, I’ll break it up and provide explications along the way. [V]arious religious sects oppose the culture of the modern world and wish to lead their common life apart from its unwanted influences. A problem now arises about their children’s education and the requirements the state can impose. The liberalism of Kant and Mill may lead to requirements designed to foster the values of autonomy and individuality as ideals to govern much if not all of life. But political liberalism has a different aim and requires far less (Rawls 1996: 199).

Political liberalism and comprehensive liberalism understand the idea and aim of democratic education differently. To the latter, a primary aim of democratic education is to foster a core value, for instance autonomy or individuality, which belongs to the doctrine’s highest goods.6 Political liberalism rejects the view that democratic education should aim for any 6

One should note here that “autonomy” is shorthand for “moral autonomy”. Political autonomy, in the sense of “the legal independence and assured political integrity of citizens and their sharing with other citizens equally in the exercise of political power” (Rawls 1996: xliv), is a feature of political liberalism.

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such value in particular, as this would favour one particular version of liberalism, or a cluster of such versions, against numerous other equally reasonable varieties of liberalism. In a reflexive manner of speaking: a democratic education based on such a guiding principle would end up supressing reasonable comprehensive doctrines that inevitably would come into existence due to this education and the enduring free institutions of the society. The key point is that the justification of imposing duties on the citizen, educational ones at present, must be justifiable from the perspective of all reasonable comprehensive doctrines.7 On the other hand, Rawls has not yet answered his question about the religious sects wanting to be left alone and live in peace. To deny the school the right to base its education of one’s child on a given comprehensive doctrine differs from not allowing the child the appreciation of basic liberal principles as such.8 It is accordingly not clear that political liberalism “requires less” in an absolute sense of that term. As a matter of fact, I am about to argue that Rawls’s way of framing his point gives this misfortunate impression. Rawls continues: It will ask that children’s education include such things as knowledge of their constitutional and civic rights so that, for example, they know that liberty of conscience exists in their society and that apostasy is not a legal crime, all this to insure that their continued membership when they come of age is not based simply on ignorance of their basic rights or fear of punishment for offences that do not exist. Moreover, their education should also prepare them to be fully cooperating members of society and enable them to be self-supporting; it should also encourage the political virtues so that they want to honour the fair terms of social cooperation in their relations with the rest of the society (Rawls 1996: 199).

This leaves the impression that democratic education is minimal. We shall flesh out its content, as well as the rest of the focused passage, before providing our evaluation. Let us look at what Rawls means by a political virtue, i.e. a virtue that belongs to a constitutional democracy as such. This passage from Political Liberalism is telling: The virtues of political cooperation that makes a constitutional regime possible are […] very great virtues; I mean, for example, the virtues of 7

I owe the invocation of the notion of justification when formulating this point to Manuel Toscano. 8 In his classical and provocative article, Feinberg approaches the question about a religious sect’s right to a restricted education from a completely different angle (Feinberg 1992).

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tolerance and being ready to meet others halfway, and the virtues of reasonableness and the sense of fairness. When these virtues are widespread in society and sustain its political conception of justice, they constitute a very great public good, part of society’s capital (Rawls 1996: 157).

And to this, Rawls adds a most significant footnote: The term capital is appropriate in this connection because these virtues are built up slowly over time and depend not only on existing political and social institutions (themselves slowly built up), but also on citizens’ experience as a whole and their knowledge of the past. Again, like capital, these virtues depreciate, as it were, and must be constantly renewed by being affirmed and acted from in the present (Rawls 1996: 157(n)).

The virtue of reasonableness might be explicated further by way of Rawls’s description of reasonable persons who “desire for its own sake a social world in which they, as free and equal, can cooperate with others on terms all can accept. They insist that reciprocity should hold within that world so that each benefits along with others” (Rawls 1996: 50). It is basic to democratic education that the children internalize the political virtues, as these constitute a core for the educational principles of any reasonable comprehensive doctrine. Or, differently expressed: these political virtues are inherent in liberalism qua liberalism. Let us return to our focused passage. Rawls underscores that the children must understand and appreciate that they do have the liberty of conscience and the right to apostasy, for some reason or another, from any community to which they belong. This understanding, often resisted by powerful social forces, is an element of any constitutive liberal democracy. It restricts quite severely the education a religious sect can claim for their children. For instance, it is not sufficient to educate the children to live in peace with the surrounding society. As said, we shall raise the question as to whether this point amounts to (moral) autonomy or individuality in disguise, and thus in fact favours a subgroup of reasonable comprehensive doctrines. This is the closing part of the passage: Here it may be objected that requiring children to understand the political conception in these ways is in effect, though not in intention, to educate them to a comprehensive liberal conception. Doing the one may lead to the other, if only because once we know the one, we may of our own accord go on to the other. It must be granted that this may indeed happen in the case of some. And certainly there is some resemblance between the values of

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Chapter Five political liberalism and the values of the comprehensive liberalisms of Kant and Mill. But the only way this objection can be answered is to set out carefully the great differences in both scope and generality between political and comprehensible liberalism […] Observe here that we try to answer the question of children’s education entirely within the political conception. Society’s concern with their education lies in their role as future citizens, and so in such essential things as their acquiring the capacity to understand the public sphere and to participate in its institutions, in their being economically independent and self-supporting members of society over a complete life, and in their developing the political virtues, all this from within a political point of view (Rawls 1996: 199f.).

We have looked into the parts of this passage that concern democratic education, and I have displayed the difference between democratic education according to political liberalism and according to comprehensive liberalism. Now, I find it peculiar that Rawls, when he reflects on the essential things to teach a future citizen, does not mention an understanding of the burdens of judgement, which I take to be among the fundamental aims of democratic education according to political liberalism. One may speculate that Rawls thinks it is implicitly maintained in the requirement that the future citizens should acquire “the capacity to understand the public sphere and to participate in its institutions […] and in developing the political virtues.” Recall here that a basic element in understanding the public sphere is to understand that it is a societal sphere and not a communitarian one. But the text is indecisive. In Justice as Fairness. A Restatement, Rawls maintains that “Citizens acquire an understanding of the public political culture […] by attending to how these values are interpreted by judges in important constitutional cases and reaffirmed by political parties” (Rawls 2001: 146). In her illuminating treatment of Rawls’s views on education, Costa argues that this and other remarks demonstrate that he doesn’t sufficiently appreciate the influence of education on the children’s character (Costa 2004, 2011: 56–60). But the cited passage could be read as the adequate observation that although an internalization of the burdens of judgement is a basic condition for being reasonable, it is not sufficient for an apprehension of a given public political culture. To achieve the latter, one also needs a hold on local, cultural paradigms; these are supplied by decisions in the Supreme Court in the American case, and by other paradigms in the European cases. Furthermore, one might view Rawls’s apparently minimal requirements for democratic education as an attempt at drawing a clear line between Kantian and Millian educational principles and those of political liberalism. For, no doubt, the most clear-cut opposition in educational

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policy is between those that affirm a submission under an authority, paradigmatically a religious doctrine, and those that emphasize reflection and differences in views and life-styles, as characterized by both Kantian and Millian comprehensive liberalism and political liberalism. (No surprise then, that Rawls exemplifies the restriction on democratic education provided by political liberalism by invoking religious sects.) The conclusion of my discussion is that Rawls is unclear, but that the charitable reading is to assume that the burdens of judgement, which occupy a prominent role in Political Liberalism, is presupposed in the focused passage. Let us round off this part with the rather obvious observation that Rawls is not claiming that the children should not be exposed to or influenced by any comprehensive doctrines. In school, through the teaching of history, both of their own country, their own continent and the world, as well as the teaching of subjects like biology, geography, literature and languages, the children are exposed to a number of comprehensive doctrines.9 At home, and in their community, the children are influenced by specific comprehensive doctrines. We shall return to this interplay between the professional educators on the one hand, and the parents, communities and fellow citizens, on the other, in the subsequent parts.

Education of the Burdens of Judgement In On Liberty, John Stuart Mill argues that education should be run by private schools or given as private tuition, and most certainly not provided by the state. The state should restrict itself to the task of issuing obligatory tests on a regular basis. Among other things, the tests should supervise the student’s knowledge of both different conceptions and controversial viewpoints and the reasons that have been given in their support. This is clearly a demand for the appreciation of the fact that good reasons can be given for different conceptions. Mill, as we know, lived at a time when the basic function of the public schools was to indoctrinate the children into a prescribed doctrine: critical questions and reflections were often discouraged, 9

It might be important to mention the teaching of the humanities and one’s own culture in particular, as some participants at Themes in Contemporary Ethics and Political Philosophy objected to my account on the basis of the impression that it does not allow for cultural differences. Of course it does. I am considering an aspect of education that, no doubt, differs substantially among societies, due to cultural and historical factors. To be a bit more specific, I do not present a view in conflict with our general understanding of Bildung.

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if not punished. No surprise then, that Mill preferred a system of private schools based on different ideologies and, to speak in a contemporary fashion, a more or less neutral state. After all, Mill repeatedly underlines that a necessary condition for individuality and the development of character, opinions and tastes is a variety of life-styles and opinions. From our perspective, the question is whether understanding positions together with their best reasons could function as a basis for democratic education. I don’t think so. I am convinced that in order to instill the political virtues—reasonableness and toleration in particular—in the future generation, one needs to make the children engage in real discussions and debates: they must learn to accept that their own beliefs are questionable and thereby be enforced to defend them. This is, in fact, Mill’s own point in On Liberty, Chapter 2, “On the liberty of thought and discussion”. This must be an on-going process. It is not something finished once and for all, as is made clear in the footnote from Political Liberalism cited in Part III. Furthermore, and as important, it is by providing an education that encourages debates on controversial issues, that the professional educators prepare the ground for an appreciation of the burdens of judgement. This is in sharp opposition to so-called neutral liberalism.10 Despite our earlier speculations, I am sure that Rawls would agree that the public school should not limit itself to referring to controversies, but make the pupils debate them. To learn about a position from a teacher or a book, say, and to be enforced to actively argue for or against it, are different things, as Plato realized, and all teachers of philosophy know too well. From our present perspective, we must admit that democratic education according to political liberalism is quite demanding after all. In contrast to, but not necessarily in conflict with, Rawls’s own remarks, it might well be as demanding as an education aimed at particular non-political virtues, such as (moral) autonomy or individuality. Our discussion thus far provides me with the opportunity to introduce some speculations about the relationship between teaching reasonable disagreement and teaching reasonable pluralism. It seems to me that teaching reasonable disagreement is less abstract and thus prior to teaching reasonable pluralism. The latter, after all, involves abstract notions such as the highest good and aim of life that might not be involved to the same 10

Here I am thinking of principles of education that state that it should be factbased and avoid controversial issues. Now, in liberal political philosophy the term “neutral” is used in different ways. Rawls’s social theory of justice, for instance, is intended to be neutral with respect to justification, but not with respect to social consequences (Costa 2004: 2–5, 2011: 60–64). As we shall see later in this part, Rawls is fully aware that political liberalism is not neutral in all senses of the term.

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degree in the former. I therefore assume that reasonable disagreement must be appreciated by the pupils before they are in the position to grasp and understand reasonable pluralism. But, as clearly, the pupils need to have substantiated opinions of their own, before they are in a position to respect opposing viewpoints. These opinions, according to political liberalism, the children in public schools obtain mainly within their family and the communities to which they are members. To appreciate the fact that a person might be reasonable in the way explained and still disagree with my firm persuasions must be the fallout of a long process. I would think that this aim might be realized after numerous years of schooling directed at this goal, and that however one designs the democratic education, not all children will take it in. Still, and this is important, even though the ideal might never be fully realized, one should be aware that not letting the education be guided by such a principle threatens public reason and thus the stability of the society.

Political Liberalism: Disguised Comprehensive Liberalism? Some defenders of comprehensive liberalism with respect to education, like Gutmann or Eamonn Callan, take the fact of reasonable disagreement seriously, but argue that when scrutinized, political liberalism with respect to educational principles is really comprehensive liberalism in disguise.11 11

Callan argues that some reasonable comprehensive doctrines might reach the same viewpoints about principles of education as political liberalism (Callan 1997). That might be true, but it is not relevant to the issue under consideration, and in my view should not be voiced as a criticism of Rawls’s theory of education. After all, we are considering here the justification of the educational principles and not solely their content. Although these principles might be shared between two theories at a given time, we have no guarantee that such is also the situation in the foreseeable future. Recall that an education based on a comprehensive doctrine is based on an understanding of the values of the highest goods, while such is not the case with respect to an education based on political liberalism. Costa treats this topic in somewhat more detail in Costa (2004). Note also that in this article, I am not treating the diversity issue in any detail. Some liberals seem to think that political liberalism opts more for cultural diversity than comprehensive liberalism. Hopefully, the line of thought presented in Part VI makes it clear that this assumption is questionable; see also Macedo (1995a, 1995b) and Gutmann (1999). Galston, whose view is discussed below, holds a minimal position with respect to democratic education. It comes as no surprise then, that he accuses most other liberal authors of not paying sufficient attention to religious diversity (Galston 1991, 1995).

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As their respective argumentations are closely related, I focus here on the writings of Callan. Callan appeals to the following passage in Political Liberalism: The evident consequence of the burdens of judgment is that reasonable persons do not all affirm the same comprehensive doctrine. Moreover, they also recognize that all persons alike, including themselves, are subject to those burdens, and so many reasonable comprehensive doctrines are affirmed, not all of which can be true (indeed none of them may be true). The doctrine any reasonable person affirms is but one reasonable doctrine among others (Rawls 1996: 60; Callan 1997: 30).

He maintains that the “fact that we must interpret our own comprehensive doctrines as well as those of our fellow citizens in a manner that acknowledges the burdens of judgment wreaks havoc on Rawls distinction between the public and non-public spheres” (Callan 1997: 30). The reason is this: After all, it would be absurd to teach citizens to adopt the required interpretation of their general ethical or religious convictions when they address fundamental political questions while insisting that that they are at liberty to reject it whenever they are thinking or acting in a non-civic capacity. That would be to invite them to oscillate between contradictory beliefs about the rational status of their deepest beliefs, and that is hardly an alluring fate for anyone (Callan 1997: 31).

Now, as the passage from Political Liberalism is intended to express a more or less obvious point (“the evident consequence of the burdens of judgment”), Rawls’s project is doomed at the outset if Callan is right in his objection. In my mind, however, his way of reasoning is seriously flawed. Maybe the best manner of arguing this is by way of the crucial distinction between a society and a community. A fundamental premise in Rawls’s political philosophy is the observation that a well-ordered constitutive democracy is not, and cannot be, a community since it embraces, or over time will embrace, conflicting reasonable comprehensive doctrines. Due to this variety, the fundamental political questions must be addressed according to the constraints given by political liberalism. As a community is founded on a given comprehensive doctrine, its deliberations do not have the same constraints: one might, for instance, appeal to a holy text. I am not maintaining that there is no disagreement, or that reasoning does not take place, within a community. The point is that the actual reasoning is of a radically different nature than the one restricted by public reason. I see no problem in maintaining that a person might accept the fact of

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reasonable pluralism on the one hand, and belong to a community, a church, say, on the other. This could be a Christian who accepts that it is legitimate and reasonable to view the world from an atheistic standpoint. (And symmetrically, the reasonable atheist accepts that he has no knockdown arguments against the Christian faith.) It is not entirely clear to me, but it might be that Callan overlooks the strict limits on what it is to be a reasonable person holding a reasonable comprehensive doctrine. Note again, if a significant part of my life consists in being a member of a community, I might well use that part of my life not to debate or reflect on the relationship between my comprehensive doctrine and that of others, but rather to unfold a desired or wanted way of life. I can do this and simultaneously be involved in fundamental politics, thereby accepting that there are a multitude of respectable communities based on conflicting reasonable comprehensive doctrines. Clearly there are differences in roles between the political life, essentially based on public reason, and the community life, based on a valuation of the highest goods. Of course, to hold a comprehensive doctrine is to take it to be true or valid, or weaker, worthy of pursuing, but, in contrast to Callan, I see no oscillation between contradictory beliefs. In order for there to be contradictory beliefs, the holder of the comprehensive doctrine would have to believe that his doctrine is the only reasonable one, or something of that sort, but then he would not be a reasonable person from the outset.12 Callan voices his criticism of Rawls in strong voice: “To retain a lively understanding of the burdens of judgement in political contexts while suppressing it everywhere else would require a spectacular feat of selfdeception that cannot be squared with personal integrity” (Callan 1997: 31). To my knowledge, Rawls never argues that one should supress one’s awareness of the burdens of judgement in all contexts other than the political one. The burdens of judgment are simply present in constitutional democracies and ought to regulate public reason and deliberations about fundamental political issues. An understanding of the burdens of judgement might, or even ought to, play a role in the raising of a child, and in the education system in our contemporary democracies, it must have an essential role. But, as should be equally clear, in our attempt at realizing our conceived highest good, formulating our world-view and acting as a member of a community, this awareness might be suppressed or deemphasized from time to time or for longer periods. 12

For the record: as a statistical matter, it might be that the majority of today’s religious people, including Christians, do not accept the burdens of judgement and thus are not reasonable; but that is not what is at stake here.

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Since the presence of a variety of reasonable comprehensive doctrines is a natural outgrowth of the regimes under consideration, it is unavoidable that it has a considerable influence on the way we conceive ourselves, and not just our public life. The fact that reasonable people must accept and respect reasonable comprehensive doctrines and reasonable viewpoints taken to be fully, completely, false, influences on the way they conceive of their own comprehensive doctrine. When Callan says that the burdens of judgement are suppressed everywhere except for the political context, he seems to think that to be a Christian, say, is independent of such facts, that it is determined internally, by way of a subscribed doctrine. This, however, is an ahistorical and simplified way of conceiving matters, for, clearly, a Christian who accepts the burdens of judgement differs in the relevant sense from a Christian who rejects it. Stephen Macedo has maintained that it is likely “that life in a tolerant, diverse prosperous liberal democracy will in many ways indirectly promote ecumenical and even wishy-washy religious attitudes among adults as well as children” (Macedo 1995c: 312). One could add that such an ecumenical religious attitude is becoming more and more common in Norway, a comparatively speaking wellordered constitutional regime. Even though democratic education according to political liberalism doesn’t address questions of faith and religious attitudes, the education influences the perspectives of future citizen on their valuation of the highest goods. We could turn the table and say that political liberalism agrees with Callan that we cannot separate persons sharply into different departments of life, but that, pace Callan, this demonstrates that as the democratic education focuses on an appreciation of the burdens of judgement, the children obtain a more reflexive approach towards their comprehensive doctrines. In an indirect, abstract, sense, political liberalism is not neutral with respect to religious matters. Rawls realizes this and he does not hide the price of political liberalism: No society can include within itself all forms of life. We may indeed lament the limited space, as it were, of social worlds, and of ours in particular; and we may regret some of the inevitable effects of our culture and social structure. As Berlin has long maintained … there is no social order without loss: that is, no social world that does not exclude some way of life that realize in a special way certain fundamental values. The nature of its culture and institutions proves too uncongenial (Rawls 1996: 197).

I have argued that the notion of being a critical, reasonable and religious person is perfectly coherent. If I am right in this, the democratic education should not encourage (moral) autonomy, choice or individuality, as these

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are not valued as highest goods by religious families and communities in general. On this crucial point I agree with Rawls, and think that Callan and Gutmann are wrong in singling out choice and (moral) autonomy as the core values of democratic education (Callan 1997; Gutmann 1999). We need to take a closer look at a related issue, forcefully brought forward by Galston, that is the fear that liberal education is shallow, with no depth or commitment.13 This passage is directed at Gutmann, but Galston voices the very same objection also against political liberalism: The greatest threat to children in modern liberal societies is not that they will believe in something too deeply, but that they will believe in nothing very deeply at all. Even to achieve the kind of free self-reflection that many liberals prize, it is better to begin believe something. Rational deliberation among ways of life is far more meaningful if […] the stakes are meaningful, that is, if the deliberator has strong convictions against which competing claims can be weighed. The role of parents in fostering such convictions should be welcomed, not feared (Galston 1991: 255).14

Towards the end of Part IV we observed that good parenting includes introducing the child to a way of life that might include an explicit valuation of the highest goods and membership in a community. We also made the simple logical observation that opinion and viewpoint come before reflection. Galston’s phrase “it is better to begin by believing something” is a piece of empty rhetoric, as every reasonable scholar, including Gutmann or Rawls, agree. But, just as clearly, the child should be introduced into a way of living that prepares it for apprehending the burdens of judgement. Strong and lasting emphasis from the parents’ side that such and such is the truth, and the only truth, and those who think otherwise are fundamentally wrong, biased or misinformed, is problematic with respect to the democratic education provided by the school. Such a dogmatic upbringing should, I would argue, be feared and not welcomed. With respect to the issue about the depth of a belief, Mill emphasizes that the distinction between conventional and superficial—believing something, and vividly believing something—is measured by one’s willingness to challenge one’s own views and one’s attempts to respond to criticism (Mill 1977). Mill, like Rawls and Gutmann, ascribes deliberation 13

The invocation of this theme is partly motivated by criticisms raised at Themes in Contemporary Ethics and Political Philosophy. 14 I suggest below that Gutmann has the necessary resources to respond to this objection, based on her distinction between different groups of educators (Guttmann 1999: 43). For the corresponding criticism of Rawls, see Galston (1991: 146–149).

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a fundamental role in the education of the children. Now, Rawls and Gutmann carefully spell out the distinct roles played by parents or the family on the one hand, and of professional educators on the other, in the upbringing of the child. I don’t see that their, in this respect quite similar, perspective has superficiality in the world-views of the future generation as a general consequence. Both are furthermore right in implying that the child needs to balance the different influences on its general education. In certain cases this effort might have the consequence that the child finds it difficult to hold on to certain strong convictions while being reasonable at the same time. Let us turn to yet another point about deliberation, promised in the introduction. Galston maintains that “the need for public evaluation of leaders and policies means that the state has an interest in developing citizens with at least the minimal conditions of reasonable public judgement” (Galston 1991: 253). He also argues that [A] civic education congruent with such institutions [i.e. representative ones] emphasizes […] the virtues and competence needed to select representatives wisely, to relate to them appropriately, and to evaluate their performance in office soberly (Galston 1991: 247).

These remarks suggest that Galston’s vision of a representative democracy consists of deliberating politicians and elected leaders, on the one side, and evaluating citizens, on the other. Fortunately, the majority of political philosophers think more is needed for someone to be regarded a reasonable citizen. After all, the elected representatives make decisions and priorities that have a severe influence on the citizen’s life. By casting a vote, I exercise power that influences the distribution of limited resources. For this reason, I certainly ought to be able to provide good reasons for voting as I do. Thus, I do not see that the fact that a constitution is representative is a reason for demanding less understanding and use of public reason by the citizens.15

15

We could invoke the appropriate terminology of Hanson and Howe and say that while Galston has an aggregative view of democracy, the rest of the authors discussed here have a deliberative view of democracy (Hanson and Howe 2011: 1). I have argued that the latter need not be based on the core value of autonomy, as assumed by Hanson and Howe, as well as the other critics of Rawls’s restricted, political version of the deliberative view of democracy.

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On Private Schooling For one reason or another, it is common in the literature to focus on democratic education in the public school and take the education in the private school more or less for granted. A noteworthy exception, voicing views in the neighbourhood of those proposed here, is Gutmann (1999: 115–122). My argument until now has addressed the public school and it is time to turn to the private education. It is hardly possible to exaggerate the significance of reasonable pluralism and reasonable disagreement for a flourishing, stable constitutional democracy. An appreciation of these facts, together with an internalization of basic political virtues ought accordingly to be the essential aim of the democratic education of the future generation of such a regime. That is to say, all schooling, public as well as private, must aim to make the children become reasonable citizens. It is of fundamental importance to realize that this doesn’t amount to a ban against ideologically based private schools. But this restriction is essential: political liberalism vetoes an education that does not teach the basic ingredient of reasonableness (remember that “teach” is loosely used).16 Private schools, in other words, must respect a balance, set by the governing authorities, between acting on behalf of the society and acting as a representative of a community. Let me frame our somewhat controversial conclusion differently, emphasizing both strength and limitations. A necessary condition for licencing a private school in a constitutional democracy is that it aims to teach its pupils or students the varieties of pluralism, the burdens of judgement and the political virtues. This is a strong restriction, but don’t forget that democratic education is directed towards conscious social reproduction or stability for the right reasons (Gutmann 1999; Rawls 1996). On the other hand, note that this opens up for a variety of schools based on competing comprehensive doctrines and a manifold of conceptions of the highest goods. Democratic education cannot be neutral or disinterested—liberalism, whether political or comprehensive, is committed.

16

This is an “in principle” restriction. There might be reasons for approving “decent private schools”, in line with the notion of “decent people” (Rawls 1999), if the stability of a democracy is threatened in a given situation. These threats are of the same nature as those that might lead the rulers to invoke gag-rules.

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References Callan, Eamonn. 1997. Creating Citizens—Political Education and Liberal Democracy. Oxford: Clarendon Press. Costa, M. Victoria. 2004. “Rawlsian Civic Education: Political not Minimal”. Journal of Applied Philosophy 21: 1–14. —. 2011. Rawls, Citizenship, and Education. New York and London: Routledge. Crittenden, Jack. 2007. “Civic Education”. The Stanford Encyclopedia of Philosophy (Spring 2008 edition), edited by Edward Zalta, http://plato.stanford.edu/entries/civic-education/ Dewey, John. 1997. Democracy and Education: An Introduction to the Philosophy of Education. New York: The Free Press. Diamond, C. 1991. “Anything but Argument”. In The Realistic Spirit. Cambridge, Mass: The MIT Press: 291–308. Feinberg, Joel. 1992. “The Child’s Right to an Open Future”. In Freedom and Fulfillment. New Jersey: Princeton University Press: 76–98. Galston, William A. 1991. Liberal Purposes. Cambridge: Cambridge University Press. —. 1995. “Two Concepts of Liberalism”. Ethics 105: 516–534. Gutmann, Amy. 1999. Democratic Education. Princeton: Princeton University press. —. 1995. “Civic Education and Social Diversity”. Ethics 105: 557–579. Hanson, Jarrod S. and Kenneth R. Howe. 2011. “The Potential for Deliberative Democratic Civic Education”. Democracy and Education 19: 1–9. Macedo, Stephen. 1995a. “Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?” Ethics 105: 468– 496. —. 1995b. “Multiculturalism for the Religious Right? Defending Liberal Civic Education”. Journal of Philosophy of Education 29: 223–238. —. 1995c. “Liberal Civic Education and Its Limits”. Canadian Journal of Education 20: 304–314. McLaughlin, Terence H. 1995. “Liberalism, Education and the Common School”. Journal of Philosophy of Education 29: 239 –255. Mill, John Stuart. 1977. On Liberty. In the Collected Works of John Stuart Mill, XVIII, edited by J. M Robson. Toronto: University of Toronto Press: 213–310. Mulhall, Stephen. 1998. “Political Liberalism and Civic Education: The Liberal State and its Future Citizens”. Journal of Philosophy of Education 32: 161–176.

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Putnam, Hillary and Ruth Anna Putnam. 1993. “Education for Democracy”. Educational Theory 43: 361–376. Rawls, John. 1996. Political Liberalism. New York: Columbia University Press. —. 1999. The Law of Peoples. Cambridge, Mass: Harvard University Press. —. 2001. Justice as Fairness. A Restatement. Cambridge, Mass: Harvard University Press. Toscano, Manuel. 1998. “El Liberalismo político y la educación de los ciudadanos en una sociedad pluralista. Acerca de la autonomía y la tolerancia”. Contrastes 3: 231–257. Wittgenstein, Ludwig. 1958. Philosophical Investigations. Oxford: Blackwell Publishers.

CHAPTER SIX WHEN CIVIC VIRTUES BECOME VICES: GERMAN IMAGINARIES AND DEMOCRACY INGER-ELIN ØYE1

Introduction Theoretical interest in civic virtue as a dimension of citizenship has increased over recent decades (Kymlicka and Norman 1994). This is partly due to the unforeseen revolutions in 1989, when the political force of citizens led to the collapse of the Eastern Bloc. At present, the unfolding European crises gives civic virtues new pregnancy. A pressing question is how unemployment, economic loss and insecurity will influence political agency? Will it be channelled into support for established democratic parties and systems, or into parties and movements which challenge the overall system? How well do political theories grasp the role of civic virtues in the European predicament and in political and economic transformations in general? Based on fieldwork, my concern is how civic virtues, employed by (then) East German citizens in exemplary democratic engagement, turn into vices, applied against liberal democracy itself in reactions to economic crises. The virtues I focus on are critical autonomy and reasoning. Civic virtues distinguish republican political theory: they are less elaborated in liberal political theory.2 Nevertheless, “the ability to question authority and the willingness to engage in public discourse” are held to be the most distinctive components of liberal virtue theory (Kymlicka and Norman 1994: 365). Its history goes back to Kant’s dictum about making critical use of reason in liberation from self-imposed tutelage (Kant 1975 [1784]).

1 2

UiT The Arctic University of Norway. On civic virtues and liberal political philosophy, see Chapter Five in this volume.

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Addressing German civic virtues and citizenship has special theoretical and political currency. Germany’s descent from great humanism into Nazism is “an archetype” of how virtues turn into vices, with a huge impact on the post-war world, including academia (Watson 2010). It influenced a bifurcation, within and between, the social sciences and political philosophy along with fortified analytical orientations, a development interlinked with the United States taking over Germany’s academic leadership (Kuper 1999; Gilman 2003; Wagner 2008). Political philosophy, particularly liberal philosophy, lost contact with social theory, history and important German philosophical roots (Freeden 2005; Smith 1995; Wagner 2008). Freeden traces the imaginative change in representations of liberalism in reactions to perversions of liberalism in Nazi Germany (Freeden 2005: 20). Theories on liberalism as transforming configurations of ideas, owing to its vitality and dissemination, were replaced by an analytical, procedural liberal theory, which restored space for individual inviolability, human rights and dignity, beyond the contaminating reach of untrustworthy human judgement (Freeden 2005: 30–40). New directions in the social sciences, including the paradigm shift in democracy studies pioneered by political science, were also influenced by Nazi traumas (Jenks 2005; Gilman 2003; Gabriel and Plasser 2010). The “civic culture” studies on democracy, combining behaviourism, system theory and statistics, were underpinned by the Germans’ lack of resistance to Nazism, which was set in contrast to British citizens’ democratic strength. German political culture, categorized by its deference to authority, Untertanengeist, and hence also lack of critical autonomy, underscored the important assumption that democratic stability and viability relies on congruence between political structures and citizens’ political culture (Almond and Verba 1963; Gabriel and Plasser 2010: 296). This assumption, despite later criticism of exaggerating British and German differences, seems to have prevailed: republican understandings of “citizenship-as-virtues” often build on, and complement, liberal understandings, expressed in recognitions such as: “the health and stability of a modern democracy depends not only on the justice of its ‘basic structure’ but also on the qualities and attitudes of its citizens” (Kymlicka and Norman 1994: 352). Research supported by the EU Commission, however, contests a neat fit between democratic virtues and stable democratic structures. People in young democracies in southern Europe sometimes display the highest scores in civic competence (Hoskins, Saisana and Villalba 2012:71). Research on Germans after unification displays striking similarities

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between (former) East and West Germans in their appraisal of civil liberties and critical autonomy (Gabriel and Plasser2010: 297). These surveys and my fieldwork beg the question of how civic virtues can thrive and survive in authoritarian states, and “burst out” as in 1989, and similarly how civic virtues can switch into vices when appropriated by right wing extremists who wish to overthrow liberal democracy itself. This chapter outlines a methodological-theoretical approach to civic virtues which involves refining Taylor’s notion of imaginaries (Taylor 2004, 2006). Instead of assuming congruence between civic virtues and political structures, I argue for combining approaches, which allows for open minded investigations of civic virtues’ relationship to political, economic and social structures, and attend to civic virtues’ specific cultural dynamics. The following sections carry out these approaches in analysis. First, East Germans’ support for democracy and specific political parties is discussed in relationship to unification and political-economic structural transformations, transformations which themselves need careful conceptualization. The next two sections display how critical autonomy and reasoning in 2002 and 2006 are enacted in connection to “meta-rules” for politics as a delineated, rational and issue-orientated, sachlich, discourse threatened by corrosion. I show that essential civic virtues in 2002 “switch” into vices when used by right wing extremists in 2006. In the last section, Germans’ display of civic virtues is analyzed in a historical framework focusing on their plastic qualities and reproduction during shifting regimes, and how they converge with themes in German intellectual thought and philosophy.

The Methodological-Theoretical Approach In my anthropological approach, I use ethnographic and historical material in a dialectical engagement with theoretical assumptions, with the goal of rendering these assumptions explicit, and with possibilities for improving them (Dumont 1986; Kapferer 2007). The challenge is to explicate assumptions, such as congruence between social structures and political culture, which are themselves influenced by reactions to German Nazism. As elicited, reactions to Nazism influenced more general underlying methodological-theoretical disciplinary orientations. Anthropology plays a small role in political theory on western democracy. The post-war bifurcations in and between the social sciences, philosophy and history may explain this. Parsons’s influential disciplinary specializations narrowed American anthropology to a synchronic, empirical analysis of culture as symbolic and ideational systems, at the

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expense of analysis of social, political and economic structures, as well as holistic and historical understandings (Kuper 1999). Anthropology profited analytically in refining the cultural concept. Today, anthropologists widely reject conceptualizations of “culture” as overly bounded, static, homogenous and coherent entities, modelled after an ideal nation state, and seen as congruent and coterminous with “society”. A problem still resides in methodological orientations. Rejecting holism, anthropology largely neglected the comprehensive social analysis anthropology used to be about, of situating culture in relationship to different aspects of the social: politics, economics, ritual and kinship (Kapferer 2005; Strathern 1995). Kapferer detects a social reductionism (informed by subjectivism and individualism), which confuses a part with a whole, instead of examining the role a part plays in the whole, often combined with radical ahistoricity (Kapferer 2005: 4–5). A more comprehensive analysis of culture’s part in the social whole is a fruitful approach to civic virtues and their switch into vices, which involves investigating, instead of assuming, their relationship to changing political and economic structures. Comprehensive analysis is also said to suffer in political philosophy (Dahlgren 2006; Wagner 2008). Dahlgren argues for a cultural turn, needed in liberal theory, with its lack of sociological perspective, as well as theories of civil society which identify political discourse with the public sphere (Dahlgren 2006). Genuine democratic participation “breaks out” on occasion, and these outbursts of democratic activity rely on social skills anchored in everyday life, which cross the boundary between the politics and non-politics, and between the public and private spheres (Dahlgren 2006: 273–276). If the neo-Kantian procedural liberal paradigm suffers from what Dahlgren calls an “absence of sociological perspective” (Dahlgren 2006: 268), another pitfall is an excessive use of culture in strands of communitarian political philosophy marked by a “misplaced concreteness” (Smith 1989: 5). Anthropological refinements of the cultural concept can form a middle ground: recognising “culture” as unequally shared and linked to social positions and power, paying heed to its dynamics of reproduction and fluid boundaries. Culture is also shared at different levels of specificity. According to cognitive theories the most fundamental, long-lived values, relevant across many domains, are tied to experiential-based metaphors that are plastic and adaptable to different situations (Lakoff and Johnson 1980; Shore 1996). The plastic quality of metaphors, similar to previous views on liberalism as plastic configurations of ideas (Freeden 2005), grasps how virtues can transform into vices.

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Civic virtues have underpinned notions of democracy since Antiquity, but they are human, cultural constructions given varying content. Taylor’s concept of imaginaries captures this aspect. The way citizens imagine, makes common practices such as voting and political participation possible, in a factual and normative sense (Taylor 2007: 171–176). Taylor employs the term “imaginaries” in a wide way, useful here. The concept fathoms the ideas of citizens, intellectual elites and political philosophy, political institutions as well as political practice, capturing its often takenfor-granted character (Taylor 2007: 171–76.). However, Taylor’s historical account of western liberal democracy contains a problematic assumption about an irreversible teleology, notably after 1945, where the western imaginaries (the market, the public sphere and the sovereign people) develop smoothly in tandem (Taylor 2007). He misses a critical examination of the parts relation to the whole (Kapferer 2005), the tensions between different spheres and the backlashes in modernity as portrayed by Hegel, Weber and the Frankfurt school. Taylor’s narrative of imaginaries builds on the view that liberal democracy was developed by the few, in philosophical contractual theory, disseminating to the many. I start with contemporary East Germans and their way of exerting political virtues and imagining ground rules for politics in elections, which leads back to German philosophy and intellectuals who offer other insights into liberal democracy.

Political and Economic Transformations after Unification In 1989, citizens of the then German Democratic Republic (GDR) were heralded for peaceful demonstrations bringing down the GDR regime, taking part in events celebrated as “the final victory of liberal democracy”. Soon after unification, erstwhile East German citizens’ failing identification with the Federal Republic, expressed in idioms such as “the wall in people’s heads”, was interpreted in line with 1960s “civic culture” studies, assuming congruence between political structures and political mentalities (Almond and Verba 1963). Ideas about a German Sonderweg, applied to Nazism, were extended to the GDR and informed survey-based interpretations of an East German mentality suffering from authoritarian pasts and liberal-democratic deficits (Schluchter 1996: 11–59 and 131–5).3 3 Schluchter’s argument links liberal democracy, modernisation (differentiation, rationalisation and individualisation) and notions about a Sonderweg (a German state trajectory at odds with western liberal democracy). Whilst West Germany overcame the Sonderweg after 1945, the GDR remained authoritarian. “EastGermans were not able to develop distinct roles in society and towards the state,

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Recent, more nuanced survey-based research indicates significant difference in general support for the democratic principles and constitutional ideas in the Federal Republic in contrast to support for how democracy actually functioned, the latter being considerably lower (Gabriel and Plasser 2010: 113). Until the mid-nineties East Germans even scored slightly higher than West Germans in their support for liberal rights (Gabriel and Plasser 2010: 112). This calls for closer inspection of political and economic transformations after unification. Unification proceeded according to §23 in the West German Basic Law, entailing the transfer of West German laws and structures to GDR territory. However, East Germans never took over conditions as they were in the Federal Republic before unification. GDR state enterprises and institutions, administered by the world’s largest state holding, Treuhand, were privatized, restructured, down-sized and shut-down. West German enterprises, property investors and professionals had great advantages, whilst East Germans faced disqualification in competition with West Germans, a steep rise in unemployment, and in costs of living (Priewe and Hieckel 1991). In addition, Germany on the whole was in a transformation connected to economic globalization. From 1991 onwards I conducted fieldwork in Schwerin, capital of the federal state, or Land, Mecklenburg-West Pomerania, which transformed from being a GDR showcase into Germany’s poorest Land. Economic cornerstones, the wharfs along the Baltic Sea and large agricultural cooperatives, received a severe blow. Workplaces evaporated and unemployment rocketed. In spite of drastic recessions and new partypolitical structures, East Germans engaged in the new, plural party system. In elections to the federal state parliament, Landtag, in Schwerin between 1990 and 2008 a three-party-system crystallized. As in the West, the two biggest parties were the Christian conservatives, the Christlich Demokratische Union (CDU), and the Social Democrats, the Sozialdemokratische Partei Deutschlands (SPD). In addition, the socialists, the Partei des Demokratischen Sozialismus (PDS), the reformed heir to the GDR state party, were represented in parliament. Elections to the Landtag followed the same trend as national elections in that economic issues were prominent. In the national elections in 1990 and 1994, the CDU was elected to government. In 1998, the SPD formed a new government with the Greens, the Grünen. The SPD chancellor Gerhard Schröder won by such as separating economic from civil rights, nor did they have the cultural means of developing an individualism” (Schluchter 1996: 23). Max Weber’s notion of non-simultaneity, Ungleichzeitigkeit, is used to explain how modernisation occurs at unequal paces in a society and how (East German) culture and mentalities change slower than legal-institutional frameworks (unification).

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promising to make East Germany and unemployment his main issue, substituting CDU chancellor Kohl, who betrayed his unification promise to bring prosperity to East Germany. In the 1998 federal state elections in Mecklenburg-West Pomerania, where the economic situation worsened, the SPD and PDS formed the first “red-red government” in Germany. In 2002, disillusionment with party politics was nationwide. Germany had a triple-record in unemployment, state deficits and bankruptcies. Fear was severe for the economic consequences of globalization. Both the major parties, the SPD and CDU, had failed to keep their economic electoral promises. The PDS, was no longer a political outsider, but in the “red-red government” in Schwerin, and also responsible for economic misery. The SPD-Green government, expected to lose the 2002 elections because of their unsuccessful, contradictory economic politics, won by a hair’s-breadth. In 2005 the SPD-Green government dissolved, owing to economic problems, and the SPD formed a government with the CDU. In January 2005, the important Hartz IV reforms to the labour market and welfare state were implemented. Initiated by the SPD-Green government in 2002, and led by Volkswagen’s personal director Peter Harz, the Harz committee joined unemployment benefits for the long-term unemployed, Arbeitslosenhilfe, with welfare benefits, Sozialhilfe, reducing social benefits and state expenditure. Harz IV, later part of Agenda 2010, provided incentives for German acceptance of low wages and insecure work, reduced German welfare, and boosted the German export industry: the latter profited from an increase in wages and demands in the EU. Harz IV became a synonym for Germany’s growing group of working poor, and East Germany had the highest rates. In the 2006 federal elections in Mecklenburg-West Pomerania, the Nationaldemokratische Partei Deutschlands (NPD), a right wing extremist party, obtained 7.3 per cent of the votes, and 5 out of 71 representatives. Not since 1945 had a pro-Nazi party convened in Schwerin’s parliament. Founded in West Germany in 1964, the NPD has been called “the most significant neo-Nazi party to emerge after 1945” (Davies and Lynch 2002: 315). Schwerin and Germany were in shock over an aggressive election campaign, traced in posters with NSDAP slogans such as Keine Korruption. NPD’s entry into parliament is linked to the Harz IV reforms. Since the German Statistical Bureau, Statistisches Bundesamt, started monitoring poverty in 2005, the federal state Mecklenburg-West Pomerania has topped the list. In 2006, 22.9 per cent of the population was categorized as poor (SB 2013). NPD obtained most votes in rural municipalities with weak economies, high unemployment and depopulation after unification (Heinrich 2011). NPD members helped people fill out

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application schemes for Harz IV, protested against closing schools, sponsored village feasts, football matches and local initiatives. They took roles as community pillars, promoting social security for Germans. East German support for the NPD must be seen in relationship to transformations of the German state’s political-economic structures. Habermas portrays a wicked spiral fuelled by globalization whereby unemployment, or low-paid work, reduced the fiscal foundation of the state and its social welfare, thereby giving less space for political parties to carve out different social and economic politics in order to cope with unemployment, which again gave fewer taxes and more social benefit receivers, and more cuts in social welfare (Habermas 1998: 105–135). This process endangered the legitimacy of political parties and democracy at large by reducing the ability to represent different groups of citizens’ interests, and especially those of the less affluent. Kapferer and Bertelsen depict current state transformations in similar ways: as a changing relation between politics and economics, where the state retreats from its social project, in a new style of social order called the “corporate state imaginary” (Kapferer and Bertelsen 2009: 15). In order to understand the support for the NPD I now turn to how Germans imagine, think and evaluate politics and attend to civic virtues.

Civic Virtues in the 2002 Elections Despite widespread disillusionment with party politics, in 2002 I found people engaged in the elections and no trace in public space of right wing radicalism. During the election campaign East Germans exercised a democratic political competence corresponding to civic virtues emphasized in liberal theory in the ability: “[…] to question authority and engage in public discourse” (Kymlicka and Norman 1994: 365). In exemplary ways, they displayed “critical autonomy” and “critical reasoning”; in surveys East Germans ranked civic virtues highest, above “participation”, “law abidingness”, and “solidarity” (Gabriel and Plasser 2010: 132). Not taking politicians at face value, they scrutinized political rhetoric and “form” in relation to its political “content”. Understandable in the light of economic broken promises after unification and revelations of GDR corruption, honesty was an important issue. Critical receptions of political messages often went beyond my perception. What to me was a sober poster of SPD chancellor Gerhard Schröder dressed in black and white, with a red tie, was perceived differently by East Germans who supported PDS and SPD. The poster was the subject of complaints about the styling of politicians. Chancellor

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Schröder, with his extensive use of his media talent, broken economic promises and changing policies, was a frequent target of criticism. Criticism was also directed towards politicians for whom people voted. A Green member who was listening to Joschka Fischer, the Green leader and foreign minister, accused him of too much “show” instead of giving information and getting involved in discussions, and of not taking his supporters seriously. The critical engagement in politics in a range of contexts, expressed German imaginaries about election campaigns, politics and democracy. I identified underlying “meta-rules” for evaluating politics as an ideally delineated, rational form of discourse for speech and conduct. The norms for political discourse were often referred to as Sachlichkeit: stressing an issue-related, rational exchange of opinions distinguished from entertainment, from the private life of politicians, and from a play on emotions, which all threatened to corrode politics. Hidden agendas of economic corruption and personal gain, as well as political power and vanity, also posed threats to political discourse. Politics was ideally governed by rhetoric and arguments aimed to convince the public, in contrast to persuading it, and its hallmarks were honesty, sincerity and transparency. These ideas and rules were pronounced in relation to the media. In surveys, Germans display the highest scores in Europe in their use of political media and particularly political television (Gabriel and Plasser 2010: 83), scores which indicate political competence. My impression, like a British journalist’s, was that political debates in the state-financed television, ZDF, had high standards, bypassing my own country (Boyers 2002). A hotly debated programme on ZDF was “Das TV-Duell” (“The TV Duel”), introduced in 1998, where the two candidates for chancellor pinpointed party policies in short answers to questions by interviewers. Discussing “Das TV-Duell”, ideas and rules concerning political discourse surfaced. In 2002 Gerhard Schröder, campaigning for the SPD/Greens, and Edmund Stoiber, campaigning for the CDU/CSU met in “Das TV-Duell”, taking turns answering the same questions about their policies with strict time limits. There was no dialogue or small talk. Like the posters of Schröder, I found “Das TV-Duell” sober, strict, and formal in style, and my attention was on political statements and content. East Germans I discussed it with were critically preoccupied with rhetoric, form and “show”. Their views echoed those in the public sphere, including the serious, liberal weekly die Zeit: “Das TV-Duell”, categorized as an entertainment programme, was claimed to pull politics in the direction of “soft talk”, away from serious “hard talk” programs, and contributed to a

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decisive change in German democratic culture since its entry in 1998 by encouraging politicians to be “styled entertainers” instead of offering “informative talks with honest politicians” (Hofmann and Joffe 2002). Social scientists also evoked norms of Sachlichkeit, criticizing “Das TVDuell” for increasing the stress on presentations of self, Selbstdarstellung, and strategies whereby politicians recommend themselves by focusing on properties which ideally do not belong to the role of a politician; their private life, wife, family and sexual relations (Holtz-Bacha 2006: 2). Germans’ criticism of politics and appeals to Sachlichkeit was not foreign to me as a Norwegian. I was familiar with the German political imaginary, but their codes were stricter. In Germany, as in Norway, politics are historically tied to political parties which represent different ideologies and interests, and receive official financing ensuring their economic independence. People vote less for individual politicians; politicians’ private, family and sexual lives are not only irrelevant, but are generally found to distract and deprive political discourse of its proper content. Max Weber discussed and outlined these institutionally based foundations for German party politics and the ideals of Sachlichkeit, contrasting them with the United States where people elected presidential candidates more on the basis of their personal character, and election campaigns were sponsored through private donations (Weber 2004). In the United States, personal political economic benefits and transactions involving public goods are not necessarily judged to be corrupt by Norwegian and German standards, and family life and sexual life, as well as entertainment, form part of election campaigns and politics. In Norway entertainment is a more accepted part of politics than it is in Germany, where the distinction between serious political talk and entertainment is stricter in wide parts of popular opinion, reflecting standards in the serious media.

2006: When Virtues Become Vices Whilst the German election campaign in 2002 was admired by foreign observers, in 2006 Schwerin was the subject of local, national and international alarm as the right wing extremist NPD had been elected to the federal state parliament. Attending the first session in the new parliament, I observed with shock how NPD members exerted critical autonomy as well as reasoning, and operated within and appealed to Sachlichkeit in a similar way to liberal-democratic minded East and West Germans in 2002.

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The whole day in the Landtag was dominated by efforts to restrict the NPD’s influence by curtailing liberal rights, which in turn fuelled NPD attacks on the parliament in Schwerin. The NPD copied the strategies used by extremists in the Landtag in the federal state of Saxony, making maximum use of speech time. Also drawing on experiences from Saxony, the other political parties proposed new formal and informal rules: 1) cutting speech time; 2) cutting the budgets of small parties, thus giving the NPD less money to promote their policies; and 3) uniting against the NPD, not shaking hands, not voting with them on issues they promoted, or entering in discussions and giving them attention. Similar to the critique of “form” and rhetoric in contrast to actual political “content” in the 2002 elections, the target was politicians’ hidden agendas. These petitions gave NPD attacks substance. An NPD member used limitations on speaking time to exemplify lacking transparency: […] Parliament is the place for open speech. This place is to be transformed into some kind of tacit chamber. There are no longer many chances for speaking. The opportunity to vote in secret is also abandoned […] It seems as though somebody is afraid, that […] somebody here under the protection of secrecy will vote for our fraction. That is probably the true reason. The reason given was to provide greater transparency. What is curious is that it does not occur to you that this transparency was missing for 16 years […].4

The NPD took on the role of revealing what was really going on in parliament behind its pretence of political “forms”. In her inaugural speech, the president of the Landtag, after addressing the serious new situation with a non-democratic party in parliament, acknowledged the problem of lacking transparency. She declared that support for the NPD was “no accident”. Referring to opinion polls she pointed out that the main worries of people were the rising cost of living and the lack of closeness to politicians, Bürgernahe, connected to transparency. To show the extent to which the NPD operated within the imagery of Sachlichkeit, I quote at length their criticism of a request for a third vice-minister by the liberal FDP. The FDP was a small party, which lost financing because of a petition passed at the beginning of the session with the purpose of reducing NPD’s budget and influence by cutting financial support for small parties in general: 4

All quotes from the parliamentary session are taken from the written protocol: Plenarprotokoll, Landtag Mecklenburg-Vorpommern, 5/1, 16.10.2006. The translation from German into English is mine.

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[…] First, the FDP makes a prior secret deal to make a petition to increase the number of presidents to three, and now the FDP are supposed to sneak to them into this post. Obviously, they let themselves be corrupted by a vicepresidential seat, only in this way can we understand that they renounced financial expenditures for their faction without any opposition […] In the light of an unbearable number of unemployed, serious and expansive poverty among children, and alarming lack of apprenticeships, it is outrageous to sneak in a third vice president. And it is more than a slap in the face to the electorate by the SPD and PDS communists to vote for this […] With such posts—it naturally surprises nobody—come 50 per cent higher daily allowances, cars, drivers, secretaries and much more. It should be apparent to everybody that with 71 members […] 2 vice presidents are more than enough […] If you insist on a third vice president, we in the NPD suggest our own candidate. Our candidate will then of course renounce the increase in daily allowance and instead use it for social projects in our land. This Landtag does not need three vice presidents. What this land needs is a sense of proportion, more sense in its use of the people’s taxes and the end of exploitation by the political caste gathered here […]. NPD argued in a rational manner, evoking Sachlichkeit, ideals about politics as an issue-related discourse, and highlighting the politicians’ mandate in this discourse to represent and deliberate on the behalf of the interest groups who voted for them, pursuing their private interests instead. The NPD reversed the roles, positing themselves as the politicians who adhered to accepted norms of democratic conduct, whilst the members of the other political parties did not. NPD stayed in parliament after the Landtag elections in 2011, obtaining 5 per cent of the votes. In a survey, 86 per cent of those who voted for the NPD, responded they believed the party “was sincerely concerned with local conditions”, admitting that the NPD “did not solve any problems, but they called things by their name” (Heinrich 2011: 88). No doubt, appropriated by the NPD, critical autonomy and reasoning became vices, used by a movement aiming to overthrow liberal democracy. The problem, however, resided not only with the NPD and a lacking appreciation of liberal democracy. Political and economic structural transformations after unification, connected to globalization, the state’s reduction of social welfare and Harz IV reforms, and decreasing differences between party politics in their economic policies, left the unemployed and working poor living with economic crises neglected by other political parties. The structures which maintained poverty in Mecklenburg-West Pomerania at over 22 per cent of the population between 2005 and 2012, helped prepare the ground for NPD support (SB, 2013). Treating the NPD’s use of critical autonomy and reasoning as being

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merely manipulations and imitations of liberal civic virtues, risks trivialising their threat. It shies away from analysis of social structures, and also cultural analysis.

Cultural Transformations of Civic Virtues I have pointed out these aspects of German imaginaries: the use of critical autonomy and critical reasoning, guided by meta-rules applying to political discourse based on Sachlichkeit, was exerted by Germans in the East and West, and across the political spectrum. Exercising critical autonomy and reasoning, Germans scrutinize political rhetoric and “form” in relation to its political “content”. I will now situate these ways of imagining politics in deep-seated historical orientations and social skills, which challenge commonly understood boundaries of politics. Similarities between East and West Germans must also be explained. Instead of seeking resort in theories assuming congruence between an authoritarian East German political culture and authoritarian state structures (Schluchter 1996), I suggest critical autonomy and reasoning were cultivated in the GDR and informed resistance to the GDR regime in 1989. Moreover ruptures in German state de- and re-construction, not merely continuities, favoured political and cultural orientations and skills which nourished critical autonomy and reasoning. The GDR’s prohibition of political debate and free speech, and its attempts at control in all kinds of minute ways, without intending to, forged a counter-society of subversive forms of resistance (Øye 2007). Everyday interactions entailed non-prescribed interpretations: de-coding official truths in search for hidden messages and “real” truths. GDR citizens used critical autonomy and reasoning in subversive ways navigating in their everyday cultural worlds, saying one thing in official contexts and thinking another thing, and exchanging real opinions only in small circles of trusted persons. A rich “shadow life” existed side–by-side with official structures, not only in conflict with them, but symbiotically feeding on, reproducing, intertwining with, and modifying official state ideology and structures (Øye 2007). The arts and cultural life, subsidized and cheap, were detrimental. Literature, theatre, film or paintings, loaded with multilayered meanings, stretched the state’s efforts at censorship and were substitutes for open political debate. A theatre play script, which had passed through the organs of censorship and found politically correct, could still convey powerful critique. Meaning could be manipulated by the intertextuality of words, costume, and tone of voice, such as the staging of

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Wilhelm Tell in Schwerin shortly before the Wall fell, juxtaposing Switzerland with the GDR (Øye 2007). German ways of “imagining” politics as a delineated field, threatened by corrosion in 2002 and 2006, were accompanied by orientations scrutinizing and separating rhetorical political “form” from “content”, similar to how GDR citizens searched for hidden, deeper meanings and truths under surface appearances of texts and actions. Cognitive theory grasps how Germans’ exercise of civic virtues has a symbolic, metaphorical component involving a visual imagery of “form” in tension with “content”, playing on “outside” and “inside”, which give virtues a plastic quality, explaining a longevity in their reproduction across different regimes. The exercise of critical autonomy and reasoning involve experiential-based metaphors which are “good to think” with and “good to act” with, because metaphors based in spatial, sensuous bodily experiences are not only highly flexible, but harbour the most fundamental long-lived cultural values with relevance across many domains (Lakoff and Johnson 1980; Shore 1996). The tension between “form” and “content” can be traced back in German history to a Protestant inward-bound individualism, Innerlichkeit, tied to new personal relationships to God through bible translations, which later transformed into Romantic notions of Kultur emphasising humans as expressive and creative beings (Dumont 1986). Politically marginalised, upwardly mobile intellectuals used Kultur as an emblem of their superior, modest, sincere, and spiritual conduct in opposition to the seductive façades of the German Francophile aristocracy, and later Kultur was transformed into emblems for German national identity in contrast to a superficial French and American Zivilization (Elias [1939] 1994). In World War I, patriotic German intellectuals defended German Kultur against western liberal democracy and its destructive and superficial cultural and economic forms (Mommsen 2002). Throughout German history Kultur was charged with special significance, which totalitarian regimes sought control of. This may explain its weight as critical substitute for political discourse, and how it may guide orientations to contemporary delineations of serious politics, Sachpolitik, from entertainment. East Germans referred to culture in the GDR as demanding, Anspruchsvoll, in its reception and interpretation, distinguishing it from culture as mere entertainment. Critical autonomy and reasoning in 2002 and 2006 implied a notion of politics as “serious” discourse governed by Sachlichkeit, which like “serious” culture in subversive political discourse in the GDR, involved implied interpretational orientations and competences geared towards the identification of messages and truths beneath deceitful

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“forms”. This mode of interpreting has similarities to a “hermeneutics of suspicion” associated with Marx, Nietzsche, and Freud, in their critique of modernity and shared suspicion toward surface meanings of cultural phenomena. The imagery of “form” versus “content” also informs the German opposition between Schein and Sein, which runs through German intellectual thought and philosophy, along with criticism of reification processes whereby cultural, political, economic and social phenomena lose their original content. Here lies a notion of, and a criticism of, the way in which virtues are transformed into vices through a corrosion, backlash and transformation into Schein, mere “form”. This imagery is implicit and explicit in Hegel’s critique of modernity and law, in Marx’s critique of capitalist commodification obscuring social relations, in Schiller’s “Aesthetic Education” in response to the French Revolution, in Nietzsche’s reaction towards the corrosion of German culture after German unification, and in Weber’s criticism of modern bureaucracy. Notions of how virtues turn into vices and phenomena lose their original content informs Habermas’s account of the structural transformations of the public sphere and how public “reasoning” transforms into “consumption” (Habermas 1991). For Habermas, democracy is fragile, dependent on a balance in democratic social structures, threatened by spheres, such as the market and bureaucracy, with their accompanying instrumental rationality expanding and getting out of hand. This insight is missing in the one-way, irreversible imaginary of liberal democracy portrayed by Charles Taylor, where imaginaries of the market and public sphere evolve smoothly in tandem (Taylor 2007).

Conclusions or German Lessons Addressing German citizenship in terms of civic virtues and their switch into vices contains several lessons on politics and theory. After 1945, Germany’s descent from great humanist and intellectual achievements into Nazism, understandingly altered its place in narratives of western progress, such as in Taylor’s account of the western imaginaries. In various ways, the Nazi trauma influenced assumptions about democracy, including methodological and theoretical reorientations in social theory and political philosophy pioneered in the United States. Bifurcations, disciplinary specializations and fortified analytical approaches were the trend. In western political philosophy, liberal philosophy gained ground. In response to Nazism and totalitarianism it narrowed its focus to citizenship as individual rights, democratic procedures and institutions, insulated from

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(German) social theory and history. Varieties of liberalism were muted: both theoretical understandings of liberalism as plastic configurations of concepts, as well as theories “which had been something at the heart of welfare thinking” (Freedom 2005: 5). Political science, divorced from its philosophical and historical roots, pioneered “civic culture” studies resting on assumptions about congruence between political structures and political culture. It built on understandings of Germans’ failing resistance to Nazism and their lack of critical autonomy, assumptions which later surfaced after unification in 1990, informing notions about East German authoritarian mentalities (Schluchter 1996). After 1945, anthropology narrowed into cultural analysis, abandoning cultural holism and history (both speculatively used by Nazism) and neglected social analysis. I propose to revisit these post-war methodological and theoretical developments, to reap the benefits from analytical refinements, but also to make efforts to overcome negative consequences of disciplinary confinements by engaging in more comprehensive analysis of civic virtues, citizenship and liberal democracy. I suggest that the narrowing of the social sciences and political philosophy has become an obstacle to understanding a current challenge to liberal democracy connected to neoliberal, political and economic structural transformations. The sort of comprehensive analysis I argue for gives German imaginaries a greater role in narratives of western modernity and liberal democracy, highlighting the fragility of democracy, and vice versa, how authoritarian states can foster civic virtues such as the outburst of civil courage in 1989 or the Arab Spring. The scenario in Schwerin where right wing extremists employ civic virtues and liberal values in order to overthrow democracy is to be expected elsewhere in Europe in response to economic crises. Instead of taking German right wing extremism for a mental left-over from authoritarian pasts, and assuming a congruence between civic virtues and political structures, I briefly traced a different route of not assuming, but investigating, the role of civic virtues as “parts” in relation to the “whole”, in relation to transforming political, economic and social structures. I pointed out that the civic virtues of “critical autonomy and reason” distinguish both strands of liberal political philosophy and German political culture, the latter according to my fieldwork and surveys (in contrast to surveys on West Germans after 1945). My argument is that deep-seated cultural orientations, underpinning critical autonomy and reasoning, can support both liberal democratic and authoritarian regimes, and this calls for revisiting dominant, linear western narratives and imaginaries. Specifically, the ability of civic virtues to transform into vices

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calls for a historical analysis of German political thought and action in relation to shifting regimes. This involves stretching the boundary of what is commonly regarded as political discourse and deliberation, divided by the public and private sphere, and to investigate the political import of aesthetic and minute everyday practices. German imaginaries involve “meta-rules” about politics as governed by Sachlichkeit: rational, straight, issue-focused discourse ideally delineated from, and corroded by, a focus on persons, entertainment, private life and economic corruption and personal gain. Being imaginaries in Taylor’s sense, these ideas and norms are widely shared by Germany in the East and West, and across the political spectre, including right-wing extremists. Maybe the popularity of the former GDR citizen, Chancellor Angela Merkel, is owed to the high degree which her political conduct embodies the norms of Sachlichkeit. The application of the meta-rules of Sachlichkeit goes hand-in-hand with the exercise of critical autonomy and reasoning in scrutinizing seductive “forms” in search for “content”, for hidden real truths. These orientations flourished in the GDR’s shadow life. I argue that they were reproduced, not due to series of authoritarian regimes, but in the context of series of state de- and re-construction and attempts to control citizens and official truths within new ideologies. The experientially-based metaphors “form” and “content”, “inside” and “outside”, Schein and Sein, with their highly plastic qualities, were employed in critiques of shifting forms of power. Critical autonomy and reasoning are no guarantee for liberal democracy per se. A German lesson is that without critical historical reflection we risk repeating history. Instead of relegating German history and philosophy to the margins of western liberal democracy, liberal democracy would profit from shedding more light on how elements of liberalism, such as the civic virtues of critical autonomy and reasoning, may transform into support for illiberal political solutions. It is needed to revisit philosophical and intellectual insights into the danger of political reifications interlinked with historical teleology, and to critically analyse, instead of assume, the fit, relationship and development between political, economic, social and cultural structures.

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Strathern, Marilyn. 1995. “The Nice Thing about Culture Is That Everyone Has It”. In Shifting Contexts: Transformations in Anthropological Knowledge, edited by Marilyn Strathern, 153–176. London: Routledge. Taylor, Charles. 2004. Modern Social Imaginaries. London: Duke University Press —. 2007. The Secular Age. London: Harvard University Press. Von Alemann, Ulrich. 2001. Das Parteiensystem des Bundesrepublik Deutschland. Bonn: Bundeszentrale für politische Bildung. Opladen: Leske and Budrich. Wagner, Peter. 2008. Modernity as Experience and Interpretation. A New Sociology of Meaning. Cambridge: Polity Press. Watson, Peter. 2010. The German Genius. New York: Harper Collins Publisher. Weber, Max. 2004. Politics as a Vocation. Cambridge: Hackett Publishing Company. Øye, Inger-Elin. 2007. “The feeling for Grey. Aesthetics, Politics, and Shifting German Regimes”. Social Analysis 51 (1): 112–134.

CHAPTER SEVEN JOHN STUART MILL’S LIBERAL NATIONALISM: REVISING CONTEMPORARY INTERPRETATIONS THROUGH CONTEXTUAL HISTORY ROSARIO LÓPEZ1

Paying attention to the use of political language as one of the main research materials in the history of political thought, this chapter suggests a way of highlighting the overlooked properties of Mill’s principle of nationality. The argument benefits from some scholarly approaches that have criticised rather biased analyses of Mill’s writings on liberal nationalism (Varouxakis 2002; Smart 1992: 527–34). By reviewing the recent academic literature on the topic, the first section shows that scholars’ readings very frequently rely exclusively on Mill’s Considerations on Representative Government (1861), disregarding other textual sources. Partly for that reason, mainstream interpretations of Representative Government depict Mill as a liberal or civic nationalist who adopts cultural identity feelings as the main criterion for political organisation. The chapter’s second section challenges these views by focusing on Mill’s A System of Logic (1843). By examining other texts beyond the best-known passages of his 1861 treatise on representative government we gain a deeper knowledge of Mill’s opinions. Yet the fact that the Logic undergoes major textual revisions proves useful to the aims of this chapter. Quentin Skinner’s approach to past political texts justifies the focus both on what cohesion means by the time Mill uses it and the historical and intellectual background of his thought. Samuel T. Coleridge and Auguste Comte accordingly appear as two of Mill’s major interlocutors. Overall, the chapter argues that, contrary to present-day interpretations of Mill as an 1

Institute of Intellectual History, School of History, University of St Andrews. This chapter is part of the Civic Constellation project (Spain’s National Research Fund, FFI2011–23388).

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early advocate of nationalism, his approach does not regard nationality as intrinsically valuable, but rather as ancillary to more important aims such as order, progress and liberty. This study throws light on three less-studied areas of his political thought. To begin with, in one of the passages from A System of Logic where he explains the idea of nationality, he describes it as a principle of cohesion. The meaning of the term “cohesion,” rooted at the time in the natural sciences vocabularies, uncovers some of the distinctive features that Mill’s understanding of national feelings display. The chapter thus illustrates the contemporary relevance of Mill’s borrowings from the natural sciences and metaphoric expressions for scholars’ interpretive task. Beyond its decorative function, metaphor analysis throws light on Mill’s idea of society as susceptible of being rationally studied. Scientific language helps Mill shape his opinions and beliefs about political and social issues. In the second place, this chapter aims to interpret a particular textual variant occurring in Mill’s Logic. By taking advantage of the fact that Mill amended his text over the years as new editions of this book appeared, the chapter emphasises the historical and contingent character of Mill’s ideas. Mill explains what he means by nationality in a passage from the Logic that was carefully revised throughout his life. The substitution of the term “nationality” by “cohesion” stands out as a meaningful detail that triggers an interpretation of Mill’s opinions on the nationality question. Far from being an obstacle to scholarly accounts, textual variants provide invaluable information on how Mill’s views evolve, thus enriching our understanding of his work. In the third place, the role that the dichotomy between order and progress plays in Mill’s social and political thought constitutes a third focus of attention. “Order and progress” provides Mill with the guidelines for the study of social events and particularly politics, economics and history (Mill [1843] 1974: 917–25). Mill’s scientific study has practical aims, for he believes that once it is understood both how society evolves and how it holds together, it may be possible to make wiser decisions, rendering politics more efficient. The principle of nationality, which Mill also describes as a principle of cohesion, precisely contributes to order, social stability and peace. Still, the manner in which Mill’s social and political writings encompasses claims of order and stability is an overlooked topic in academic literature, the main reason being that they are frequently framed within conservatism. The chapter accordingly examines to what extent national feelings perform a cohesive function and their place within a more general scheme of Mill’s political thinking.

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Present-Day Interpretations of Mill’s Concept of Nationality and Considerations on Representative Government In order to understand Mill’s concept of nationality, scholars typically turn to Considerations on Representative Government, whose six-page Chapter Sixteen provides a brief, clear-cut explanation of what he means by nationality. Commentators seem to agree on rating Representative Government as one of the nineteenth century’s classic works on nationality. When collecting a basic bibliography on the subject, Eric J. Hobsbawm’s Nations and Nationalism includes, along with Renan’s famous lecture “What is a Nation?”, Mill’s Representative Government (Hobsbawm 1992: 2). Hobsbawm’s interpretation of Mill’s idea of nationality focuses exclusively on Representative Government’s sixteenth chapter, drawing chiefly on its best known fragments. Hobsbawn is certainly no exception among recent scholarship on nationalism. From the 1990s onwards, nationalism as a historical, political and cultural phenomenon has aroused considerable interest. When tracing the historical origins of nationalism, Mill’s Representative Government almost invariably comes up (see for instance Woolf 1996). The Millian idea of nationality as it stands in his 1861 treatise is a commonplace in both general works and contemporary case studies dealing with the development of nationalism (examples of general works are Kedourie 1994: 127–28; Lawrence 2005: 31–34; Smith 2008: 563; Rosen 1997: 177–88; May 2012: 22–24; Drakulic 2008: 221–39; Connor 1994. Case studies are for instance Van Parijs 2000: 135–56; Dardanelli and Stojanovic 2011: 357 –76; Chollet 2011: 738–55; Kane 2008: 71). Yet it is in the academic literature on liberal nationalism or civic nationalism that Mill’s arguments play a crucial role. Authors like Will Kymlicka, Yael Tamir, David Miller or Margaret Moore, among others, bring into play Mill’s arguments on nationality in order to show that political liberalism is compatible with demands on national and cultural rights (Miller 1995, 2000; Tamir 1993; Kymlicka 1992, 2001; Kymlicka and Opalski 2001: 245–46; Moore 2001: 1–20, 2000: 186). According to Alexander Motyl, for instance, it was mistakenly believed for much of the twentieth century that liberalism and nationalism “must be in conflict to one another” (Motyl 2001, II: 297–98). However, Mill’s “strong endorsement of nationalism and national self-determination” supports the opposite point of view (Motyl 2001, II: 297–98; for a similar point of view, see Kukathas 2004: 260). The fact that the political thought of a pivotal figure of liberalism such as Mill encompasses a theory of

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nationality has served as an argument of authority in academic literature. Remarkably, a large majority of studies draw exclusively on Mill’s Representative Government, disregarding his other writings. Partial readings are even nowadays rather the rule than the exception, although a number of scholars have taken a broader research perspective. In this line, some authors have challenged a stereotyped view of Mill as a predecessor of nationalism by, for instance, supplying wider textual evidence and examining Mill’s opinions concerning colonialism and international relations (Varouxakis 2002; Smart 1992: 527–34; Bell 2010: 34–64, 2007; Jahn 2005: 599–618; Levin 2004; Goldstone 2008). When reviewing how scholars of nationalism make sense of Representative Government it becomes apparent that their accounts rely heavily on Mill’s plainest statements, neglecting his subtle clarifications on the matter that occur in the same chapter. Mill presents his best known definition of nationality in terms of sympathy and feelings among a group of people. Such feelings, caused by a common history, language, religion, political antecedents and geographical limits, foster the ties that ensure cooperation. National feelings also account for their willingness to be under the same political roof. Once Mill clarifies the most common causes of the feeling of nationality, he presents concrete exceptions to this standard rule. Mill recalls some historical examples showing that “none of these circumstances […] are either indispensable, or necessarily sufficient by themselves” (Mill [1861] 1977: 546). In other words, feelings of nationality might not exist among a group of people even when the mentioned conditions do take place or are present, although some of these requisites are missing. Mill’s tentative attempt, therefore, does not fully accommodate the variety of specific historical situations, though it nevertheless describes what he regards as the most common case. Where “the sentiment of nationality exists” among a group of people, he argues, “there is a prima facie case for uniting all the members of the nationality under the same government, and a government to themselves apart” (Mill [1861] 1977: 547). Again, while at first sight a shared feeling of nationality is a reason why people should remain under the same government, he mentions some special cases. When different nationalities are “so mixed up as to be incapable of local separation”, Mill suggests that they should either merge with one another or “reconcile themselves to living together under equal rights and laws” (Mill [1861] 1977: 547). As may be seen, Mill does not endorse unconditionally that every nationality should have a separate government, as many scholarly accounts of his work have suggested for decades.

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The prevailing view of Mill as an advocate of nationalism may originate in Lord Acton’s criticisms of Representative Government. Acton rebuts Mill’s idea that “free institutions are next to impossible in a country made up of different nationalities” (Mill [1861] 1977: 547). He argues, contrary to Mill, that it is a multinational state that improves civilisation (Dalberg-Acton [1862] 1907: 290). By disregarding Mill’s exceptions to the general rule, Acton possibly ranks as the first commentator who builds up his criticism on a fragmentary reading of Representative Government. Since then, the Acton-Mill debate has been widely regarded as setting out the bases for the two main opposite points of view on nationalism (see how Ernest Barker and Alfred Cobban elaborate on the Acton-Mill debate in Barker 1927: 116–41, Cobban 1969: 62 and 131–32. For an overall perspective see Connor 1994: 3 –27). Acton’s image of Mill has prevailed, hence the view of Mill’s Representative Government as simply denying that different nationalities can coexist under a single state. True, Mill maintains that “it is in general a necessary condition of free institutions, that the boundaries of governments should coincide in the main with those of nationalities.” Yet immediately afterwards, he weighs up what is “liable to conflict in practice with this general principle” (Mill [1861] 1977: 548). He then provides a significant number of empirical examples that do not fit the normal pattern, justifying the fusion of nationalities under certain circumstances (Mill [1861] 1977: 549). One of his conclusions, which seems particularly close to what Lord Acton argues, is that “whatever really tends to the admixture of nationalities, and the blending of their attributes and peculiarities in a common union, is a benefit to the human race” (Mill [1861] 1977: 549). Only a superficial or biased reading of Mill’s chapter may lead us to believe that he unreservedly advocates nationalism. Still, Lord Acton’s view of Mill has crystallised, mediating many of the current interpretations on Mill’s concept of nationality.2 Framed in his treatise on representative government, the conciseness of Mill’s descriptions and the “casual air” of his analysis stand out (Hobsbawm 1992: 43). Still, as a careful reading of Representative Government shows, Mill’s understanding of nationality does not point to the intrinsic value of national peculiarities, but relates them instead to the conditions for political stability and social prosperity. Nationality is not worth protecting for itself, but only in so far as it contributes to social welfare (on this point I agree with Varouxakis 2002: 23). Mill aims at establishing the conditions for good government, namely, representative 2

In contrast to Mill’s liberal nationalism, Acton is labelled as “Mill’s liberalmultinationalist counterpart” (Dardanelli and Stojanovic 2011: 359).

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government, wondering to what extent national feelings help achieve this goal. His argument concerns the need for political unity, disregarding the relevance of ethnic and cultural aspects by themselves. As I also suggest in this chapter’s second section, Mill sees no point in preserving everyone’s own nationality if it does not promote a good and enduring government. On this basis he accordingly supports the mixture of nationalities as a “gain to civilization”, provided such blending promotes people’s general happiness. Hence the merging of “small” nationalities or “backward portions of human race” into “highly civilized and cultivated people” may be a benefit to the former (Mill [1861] 1977: 549–51). This point is missing in some scholarly accounts, which typically emphasise that for Mill the correspondence between nationality and political union is indispensable for the well functioning of representative government. Mill is accordingly depicted as encouraging social homogeneity and rejecting cultural diversity (Dardanelli and Stojanovic 2011: 359; Hall 2001: 173– 76; Nimni 2009: 320–21; Moore 2011: 7–8, 2006: 96–97; Tamir 1999: 83; Conversi 2007: 9). Since Mill does not rule out the possibility of a multinational state, as we would call it today, these views are partially misleading. Besides, throughout his life he strongly endorses diversity and active public discussion of opposite points of view, which calls into question the supposed homogeneity that democracy requires (see for instance Mill [1859] 1977: 228–59). As noted above, the writings of early liberal theorists, among whom Mill figures prominently, help the advocates of liberal nationalism argue their positions. Will Kymlicka and Yael Tamir, for instance, rebut the frequent view that a liberal perspective is “individualistic” or “atomistic” by showing that some outstanding liberal theorists have stressed the importance of belonging to a community. According to Kymlicka, Mill, along with L.T. Hobhouse, T.H. Green and John Dewey illustrate how liberal claims may encompass a sense of cultural membership (Kymlicka 1992: 9–10 and 207–209; Tamir 1993: 18–19). In line with these canonical philosophical perspectives, liberal nationalists aim at reinstating a political liberalism concerned with communal identification no less than with individual liberties. In this manner, liberal normative positions escape the frequent criticism of excessive individualism. Hence in their view national feelings and cultural identity are worth regaining in present-day liberal societies. In so far as Mill’s Representative Government is seen as advocating national identity, Mill has been referred to as the “founding father of the liberal-nationalist thesis”, as an “early theorist of nationalism”, or as having put forward “the first and still-influential civic argument for

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nationalism” (Dardanelli and Stojanovic 2011: 358; Lawrence 2005: 31; Beiner 2003: 8). While it seems plausible to argue that Mill’s political philosophy emphasises the role of individuals within political communities, liberal nationalists’ readings fail to locate his concept of nationality within the broader context of his writings. Their interpretations narrow to the bestknown formulae of Representative Government. Moreover, by basing their understandings solely on Mill’s texts, scholars tacitly assume that “nationality” refers to the same social and political phenomena both in Mill’s time and at present. Mill’s statements on nationality are usually presented without problematising whether the concept of nationality has changed over time. Thus Mill’s theory becomes fully conversant with current positions on liberal nationalism, disregarding the ways in which his ideas mirror the historical context in which they were discussed. The nationality question, as Mill discusses it in Representative Government proves useful to some authors in legitimising the defence of minority rights and cultural identity in an increasingly multicultural and globalised world (Kymlicka 1995: 57). Even if, as Kymlicka rightly claims, Mill’s concept of nationality involves an idea of political community, Mill is oblivious to these topics, which have otherwise remained crucial to understand international politics from the twentieth century until today.3 In the next section I suggest a way of contextualising Mill’s ideas on nationality that additionally relates Mill’s Representative Government with other writings in which he also discusses nationality. The second section further challenges an interpretation of Mill as conversant with twentieth century nationalism.

Reshaping Mill’s Concept of Nationality: A System of Logic This section aims to widen the perspective when approaching Mill’s brief and rather impressionistic description of nationality in Representative Government, by examining the passages he devotes to the topic in A System of Logic, first published in 1843. Building on the preceding section, in what follows I provide further textual evidence that challenges some prevailing interpretations of Mill’s ideas on nationality. While an attentive reading of Representative Government may partially undermine the arguments that portray Mill as a champion of nationalism, a contextualised analysis of some fragments from the Logic will introduce 3

Accordingly, the term “nationalism” does not come up in his writings.

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additional nuances to this claim. This section takes part in the debate that authors like Georgios Varouxakis and Paul Smart have begun when criticising some oversimplified perspectives on this topic. It elaborates, moreover, on the interpretive approaches currently available to philosophers and historians of political thought to understand past political concepts such as Mill’s idea of nationality. With that in mind, I discuss some methodological insights from what has been termed the contextual history of concepts as developed by Quentin Skinner. A System of Logic was published after a thirteen year research process in which Mill enquires into the methods to study physical reality, including the social and political world. While the first five books present Mill’s proposal on how to discover the laws that rule natural phenomena, the last book pursues an analogous goal as regards the social and political spheres. Mill depicts society as an empirical entity that exists over time. In its ongoing process, some social aspects remain constant, while others change. Mill’s science of society seeks to find out what phenomena belong to each group. An in-depth knowledge of society and politics, argues Mill, aims to contribute ultimately to social welfare and practical politics. Mill regards peace and long-term stability as desirable goals, along with the increase in general prosperity and the improvement in the quality of people’s life. His attempt to underpin political stability points to a historical background of widespread social unrest, in which revolutionary upheavals need to be avoided as they threaten the basic pillars of society. The feeling of nationality appears in this line of argument as one of the aspects that do not change over time, thus contributing to social stability.

The “Vulgar Sense” of Nationality: Recasting its Meaning as a Principle of Cohesion Mill insists in the Logic’s first edition that one of the “prime requisites of a stable political union” is a shared feeling of nationality among its members. Yet the fragment in which he presents what he means by nationality is subject to a thorough process of textual revision, which occurs between 1843 and 1872, as the eight different editions of the Logic were released. In every new edition, Mill seizes the opportunity to change some fragments. I explore how the paragraph on nationality has changed over the years and how this may enrich our understanding of the topic. In the first two editions (1843 and 1846) the passage reads: 4 4

The dates of the different editions are: first edition, 1843; second edition, 1846; third edition, 1851; fourth edition, 1856; fifth edition, 1862; sixth edition, 1865;

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Chapter Seven The third essential condition [of stability], which has existed in all durable political societies, is a strong and active principle of nationality. We need scarcely say that we do not mean a senseless antipathy to foreigners; an indifference to the general welfare of the human race, or a cherishing of absurd peculiarities because they are national; or a refusal to adopt what has been found good by other countries. In all these senses, the nations which have had the strongest national spirit have had the least nationality. We mean a principle of sympathy, not of hostility; of union, not of separation. We mean a feeling of common interest among those who live under the same government, and are contained within the same natural or historical boundaries. We mean, that one part of the community shall not consider themselves as foreigners with regard to another part; that they shall cherish the tie which holds them together; shall feel that they are one people, that their lot is cast together, that evil to any of their fellowcountrymen is evil to themselves (Mill [1843] 1974: 923).

For the third edition (1851), when making the most extensive rewriting of the Logic, Mill substantially changes the paragraph, which then remains intact until 1872, when the eight and last edition in Mill’s lifetime was published. As a result from the new drafting, The third essential condition of stability in political society, is a strong and active principle of cohesion among the members of the same community or state. We need scarcely say that we do not mean nationality, in the vulgar sense of the term; a senseless antipathy to foreigners; […] indifference to the general welfare of the human race, or an unjust preference of the supposed interests of our own country; a cherishing of bad peculiarities because they are national, or a refusal to adopt what has been found good by other countries. […] We mean a principle of sympathy, not of hostility; of union, not of separation. We mean a feeling of common interest among those who live under the same government, and are contained within the same natural or historical boundaries. We mean, that one part of the community do not consider themselves as foreigners with regard to another part; that they set a value on their connexion – feel that they are one people, that their lot is cast together, that evil to any of their fellowcountrymen is evil to themselves.5

By means of textual amendments the passage gains in accuracy. Over the years, Mill achieves what he considers to be a more satisfactory drafting. Readers of Logic may, accordingly, better grasp Mill’s ideas when attending to the minute process of textual revision. Moreover, the textual seventh edition, 1868; eighth edition, 1872 (for more information on the drafting and revision processes, see Robson 1974: 30–70). 5 Rewritings and additions in italics. Deletions identified with […].

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variants suggest a multiple level of intentionality in a text, which reflects not only possible changes in Mill’s opinions, but also different ways of putting into words the same idea, thus elaborating on an issue. When considering this particular paragraph, it is possible to argue that some variants do not substantially alter the meaning of the sentences, although others introduce subtle nuances that clarify and may transform our understanding of his idea of nationality. For instance, when Mill substitutes “they shall cherish the tie which holds them together” for “they set a value on their connexion”, the meaning remains largely the same, although the sentence is less ambiguous. Similarly, the swap of “absurd” for “bad”, while preserving the meaning, offers a conceptual precision of the kind of feeling that Mill does not support. Yet when he adds the phrase “nationality, in the vulgar sense of the term”, Mill describes in more detail what he means, perhaps being aware of potential misinterpretations of his words. Introducing a new detail, it is now clearer what Mill finds worth preserving: a common group feeling that promotes social stability and holds people together. As distinct from nationality “in a vulgar sense”, Mill’s proposal does not involve an unconditional preference for what are commonly seen as a community’s characteristic features. These attributes are not valuable as such, and should be abandoned when found “absurd” or “bad”. National peculiarities are pointless if they do not contribute to social stability, because in that event they would threaten general happiness. When amending the passage, Mill highlights his support to national feelings for practical reasons, doubting their benefit beyond that. The secondary importance that Mill attaches for national features, unnoticed in many recent scholarly accounts, shows that contemporary readings of Mill need to be revised in the light of these remarks.6 They illuminate, furthermore, the distance between his ideas and those of some twentieth century theorists of nationalism. Kymlicka, for instance, stresses that minorities need to be protected by virtue of their distinctive cultural identity, since it would otherwise mean a coercive assimilation of some “weaker” into “stronger” nationalities (Kymlicka 1995: 52–53). David Miller has equally underlined the ethical value of protecting national identity (Miller 1995: 49–80). Although generally overlooked, both Kymlicka’s and Miller’s points of view differ from Mill’s. In this chapter it is not my aim to assess the normative value of the liberal nationalists’ claims, but rather I suggest that Mill’s 6

Georgios Varouxakis has gone so far as to relate Mill’s idea of nationality to what he calls “cosmopolitan patriotism”. In this chapter I adopt a narrower approach, discussing how present day scholars can enrich their understanding of Mill’s concept of nationality (Varouxakis 2006: 100–118).

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understanding of nationality does not support, but undermines their arguments.

Textual Revision and Quentin Skinner’s Insights I shall turn my attention to the first variant that occurs in the passage quoted above, which may prove useful to the chapter’s aims. Until 1851, when Mill published Logic’s third edition, one of the conditions for political stability is “a strong and active principle of nationality”. After 1851, however, and until the Logic’s last edition (1872), the sentence reads: “The third essential condition of stability in political society, is a strong and active principle of cohesion among the members of the same community or state” (Mill [1843] 1974: 923). As may be seen, the term “cohesion” takes the place of “nationality”. The rewording, which qualifies the idea of nationality as a principle of cohesion, poses an opportunity to both elaborate on some interpretive approaches to social and political writings and identify several moot points of Mill’s theory of nationality. We may begin by reformulating the question of why Mill replaced “nationality” with “cohesion”, by bringing into play Quentin Skinner’s insights into methodological ideas on the study of past political texts. In a rather Austinian tone, it is possible to ask what is Mill doing in saying what he said (Skinner 2002, I: 114–17). According to Skinner, who owes this point to both John L. Austin and Ludwig Wittgenstein, political theorising may be interpreted in terms of linguistic action. When rewriting his text, Mill is accordingly doing something by redefining nationality as a principle of cohesion. Thus Mill’s fragments, from a Skinnerian perspective, take part in pre-existing controversies by accepting, denying or reformulating certain views that were available to him. Scholars interpreting Mill’s writings should then trace back his interlocutors, explore the ongoing debates in his time, and build up a picture of his intellectual and historical background, which will help understand what was his “point” or “move” in the debates in which he participates (Skinner 1969: 38, 2002, I: 115; Palonen 2003: 35–38). This perspective challenges a scholarly understanding of texts as selfsufficient sources of interpretation, whose argumentative development itself fulfils the demands of current readings (Skinner 1969: 34–35; 2002, I: 81). It challenges, ultimately, contemporary approaches to Mill’s theory of nationality that rely exclusively on his rather sketchy chapter in Representative Government. On the contrary, from the point of view of what has been termed contextual history, the interpretation of Mill’s text

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requires a study of his intentions as embedded within a historical context. In turn, Skinner’s view of context points to certain conventions or unspoken assumptions, namely, “what it is that people, in general, when behaving in a conventional manner, are usually doing in that society and in that situation in uttering such utterances” (Skinner 1970: 130). To put it differently, Skinner suggests that the understanding of a text requires two ingredients. The first one is an enquiry into the historical meaning of the utterances and concepts involved, while the second one is a grasp of the argumentative context in which the text has been written, or in this case also re-written. In Skinner’s opinion we should study not only what is said, but also how and why it was said (Skinner 1988: 274).7 Thus “to understand a particular concept and the text in which it occurs, we not only need to recognise the meanings of the terms used to express it; we also need to know who is wielding the concept in question, and with what argumentative purposes in mind” (Collini 1985: 51; Skinner 2002, I: 115). Whereas contemporary studies of Mill’s concept of nationality seem to base their analyses on what Mill did say, thus regarding the text in itself as sufficient for the task of interpretation, it is my aim to emphasise rather the how and why of Mill’s ideas and beliefs, exploring his intellectual context and his intentions in saying what he said. The perspective narrows, nevertheless, to A System of Logic, frequently disregarded for the analysis of Mill’s political thought, and delves into the replacement of “nationality” with “cohesion”. Skinner’s contextualist approach seems especially helpful in making sense of this particular textual variant, even though Skinner himself has not discussed how different versions of texts can affect our readings of them. Yet when examining textual revision we gain access to various and manifold levels of doing, since the text reflects how Mill recasts the concept of nationality.

The Meaning of “Cohesion” and the Argumentative Context I then follow Skinner’s suggestions in trying to understand Mill’s concept of nationality redefined as a principle of cohesion. The attention focuses both on what the concept means, and on what Mill may have meant by what he said. In the first place, I consider the very meaning of the term “cohesion” attending to its uses over time. The argument continues, in the second place, by elaborating on the argumentative context and examining Comte’s and Coleridge’s influence on Mill’s social and political thought. 7

The understanding of how and why is even a precondition of the what, as Palonen suggests (Palonen 2003: 32).

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This approach helps us pinpoint Mill’s principle of nationality within a more comprehensive picture of his thought. As it turns out, Mill is concerned with nationality in so far as it strengthens long-term collective stability and cooperative ties, and therefore social welfare. National feelings, along with other aspects, may help cement societies in turbulent revolutionary times. As regards the meaning of “cohesion”, both nineteenth century dictionaries and Mill’s use of the term throughout his writings provide a general idea of its meaning at that time, which slightly differs from our current use of it. In 1848, “cohesion” primarily refers to “the act whereby the atoms or primary corpuscles of bodies are connected together so as to form sensible masses”.8 In its first and most common sense, “cohesion” is a property of bodies that explains why particles stick together forming a solid instead of a fluid matter. Mill consistently uses the term, in the Logic or elsewhere, as referring to a physical law. Mill’s evocative use of scientific jargon may not be noticed, since “cohesion”, as in “social cohesion”, has become part of both everyday and political discourses. Yet in grasping the meaning of “cohesion” by the time Mill uses it, his concerns come into view. Mill seeks to explain how individuals hold together in a same society, just as particles or atoms shape bodies. He thinks that those societies in which their members remain together will manage to resist the threats of revolutionary movements and social instability that spread across Europe. National feelings, as a principle of cohesion, “sympathy” or “union”, serve this aim. Once again, nationality subordinates to what Mill regards as most important goals: stability and order, which in turn are indispensable conditions for social progress.9 Nationality is not, however, the only factor that gives rise to enduring and stable political unions. In order of appearance in Mill’s text, the first condition is a common system of education, with a restraining discipline, in order to “train the human being in the habit, and thence the power, of subordinating his personal impulses and aims, to what were considered the ends of society” (Mill [1843] 1974: 921). The second is the “existence of the feeling of allegiance or loyalty” (Mill [1843] 1974: 921). The object of this loyalty is “something which people agreed in holding sacred”, namely the principles of “individual freedom and political and social equality” in

8

Figuratively, cohesion signifies “the state of union or inseparability both of the particles of the matter, and other things” (Barclay 1848; Home 2003: 163). 9 I agree with Michael Freeden when he points out that “models of political cohesion, and conceptions of affective ties may be gleaned from non-nationalist as well as nationalist conceptual configurations” (Freeden 2005: 214).

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Mill’s eyes (Mill [1843] 1974: 922). The third and last condition is a principle of cohesion, also called the principle of nationality. In Logic’s 1851 edition, education, loyalty and cohesion are the means whereby a society can “pass through turbulent times” (Mill [1843] 1974: 922). Mill’s anxieties about the possible outcome of popular upheavals and violent social disorders are common to Samuel Coleridge and Auguste Comte, two of his lifelong interlocutors. Mill learns from them that unless social and political stability are achieved, it is not possible to improve the quality of people’s life. Along with Coleridge and Comte, Mill finds concrete evidence for this claim when studying both the native turmoil in colonial territories and the European revolutionary struggles, among which the French revolutions serve as the paradigmatic example at that time (Coleridge 1830: 17; Comte 1853, II: 3–5). How to reconcile social harmony with the moral and economic development of society remains a pivotal element of Mill’s political project. In Comte’s formula, it is indispensable that a “state of modern civilization” overcomes political polarisation by combining the principles of order and progress, also represented by reactionaries and revolutionaries, the two main opposite political forces. According to Coleridge, similarly, permanence and progression become the two great interests of society that governments should pursue. The passages where Mill describes the three conditions of social stability first appear in his 1840 essay on Coleridge, and three years later in A System of Logic, where he explains the conditions for order and progress. This overlap indicates that he regards Comte’s and Coleridge’s ideas as analogous. National feelings play a subsidiary role in this picture. National peculiarities, argues Mill, when bringing about enmities among peoples, thus threatening stability, should be abandoned as pointless or even a hindrance to the overriding goals of order and progress. When Mill comments on the revolutions of 1848-49, in his Vindication of the French Revolution of February 1848, the subordinate status of nationality is spelled out more clearly. He disapproves particularly of the struggles that are taking place in Germany and “the backward parts of Europe” in these years (Mill [1849] 1985: 347). Mill laments that “the sentiment of nationality so far outweighs the love of liberty, that the people are willing to abet their rulers in crushing the liberty and independence of any people” (Mill [1849] 1985: 347). Revolutionary movements should be guided, on the contrary, by “the spirit of freedom” rather than nationality. In other words, “nationality is desirable, as a means to the attainment of liberty”, in so far as it promotes social union, thus enduring political bonds among people (Mill [1849] 1985: 348). In agreement with the Logic, “nationality

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in a vulgar sense” is regrettable and “characteristic of barbarians” when it does not contribute to the general good and the achievement of liberties (Mill [1849] 1985: 348). Mill’s intellectual debt to Comte not only involves an acute awareness of the revolutionary dangers, but also reaches his methodological approach to the study of society. Both Mill’s and Comte’s sociologies aim at understanding and influencing social and political decisions, although Comte was more confident in the prospects of his new science. Mill admits that he revised Logic’s manuscript after his reading of the Cours in order to make “his work harmonise better with his present way of thinking” (Mill to Comte [1843] 1963: 174). Like Comte’s positivism, Mill draws inspiration from “the methods of physical science” to argue his social science, employing several terms and models from the experimental sciences (Mill [1873] 1981: 106). The substitution of “nationality” by “cohesion” unveils yet another borrowing from physics, which implicitly conveys the image of society as a natural object, made up of individuals that stay together like a group of atoms shape a body, and that may be rationally and scientifically studied. This particular revision of the Logic’s text suggests Mill’s adherence to the positivist approach to society, since both make use of scientific terms in order to legitimise their proposals. Unlike Comte, Mill does not regard sociology as being capable of forecasting the future of civilisation, and he strongly disagrees with Comte’s overregulated blueprint for society. Yet Mill and Comte still agree on the joint practical purposes they attach to science and policy. Taking up Skinner’s insights, Mill’s replacement of “nationality” by “cohesion” may be seen as a move in a pre-existing argument: Mill contributes to a particular tradition, defending a line of argument and showing a distinct attitude towards an issue under discussion (Skinner 2002, I: 102). When using a concept like “cohesion”, conventionally part of scientific vocabularies at that time, Mill shows his agreement with the Comtean methodological approach to society, but also clarifies his understanding of nationality. On the one hand, the term “cohesion” highlights his idea of nationality as a unifying criterion or a social tie. Social union is important, according to Mill, because it is a requisite for political stability and therefore progress. Nationality is ancillary to this aim in Mill’s scheme. On the other hand, his view of nationality as a principle of cohesion is embedded in a social and political context of growing unrest. Any social improvement should first get rid of the anarchy and violence that revolutionary processes bring about. Via Comte and Coleridge, Mill focuses on a science that aims to ensure both.

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Concluding Remarks This chapter has offered an interpretation of Mill’s concept of nationality that calls into question some prevailing understandings of the topic. According to conventional accounts of the nationality question and indeed most liberal or civic nationalists, Mill ranks as a forerunner of nationalism. These readings frequently underpin a normative view of political liberalism that appealingly combines individual liberty with community and cultural identity rights. Since Mill’s theory of nationality figures in secondary literature as illustrating both apparently opposite claims, his writings serve a legitimising purpose. The first section has shown that these arguments build chiefly on Mill’s best known fragments on nationality. While it has been briefly pointed out in what ways an attentive consideration of Mill’s Representative Government undermines liberal nationalists’ interpretations, this chapter has also aimed at going beyond Mill’s most representative texts for the study of his political thought. The second section has accordingly provided new textual evidence to support the need to revise contemporary understandings of Mill’s idea of nationality. Although apparently a work on the history of science, A System of Logic’s final part represents a landmark study in Mill’s social and political theory. It provides some key points for an interpretation of Mill’s intellectual relationship with Auguste Comte and Samuel Coleridge, and, more precisely, concerning Mill’s idea of nationality. Thus nationality, when viewed as a principle of cohesion, draws an analogy with natural phenomena that points to Mill’s indebtedness to positivism. By understanding society as an empirical entity where individuals hold together due to external forces, Mill places the emphasis on the nature and conditions for an enduring social and political union. An analysis of the semantic change of “cohesion”, and its framing within scientific vocabularies, has cast light on Mill’s distinctive approach to the issue. Far from endowing national peculiarities with paramount importance in social and political practices, their value depends on their effectiveness in promoting cooperation and durable social ties. In short, nationalities may well be blended together when it comes to guaranteeing peace and order against revolutionary social unrest. Mill’s concerns come into view when contextualising his statements, which consequently distances him from liberal nationalists’ claims about the inherent value of cultural and minority identities. Finally, the chapter has examined a small group of textual variants that affect scholars’ points of view as regards Mill’s concept of nationality. The attention has gravitated, nevertheless, towards the replacement of

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“nationality” by “cohesion”. What may not at first sight seem a significant variant in Mill’s text has proved helpful in supporting a nuanced interpretation of Mill’s ideas on the topic. In order to understand Mill’s intentions when substituting these terms, Skinner’s approach to past political texts offers a starting point. In this regard, Skinner’s contextual history questions what an author was doing in saying what he or she said, overstepping the boundaries of the text and diving into its intellectual and historical context. I have suggested in this essay that Mill’s revisions of the Logic over the years provide additional means of gaining access into their intentions. Any author’s methods of revision, in sum, positively enrich and refine our responses to Skinner’s methodological questions.

References Barclay, James. 1848. “Cohesion”. In Barclay’s Universal Dictionary. London: George Virtue & Co. Barker, Ernest. 1927. National Character and the Factors in Its Formation. London: Taylor and Francis. Beiner, Ronald. 2003. Liberalism, Nationalism, Citizenship. Vancouver: University of British Columbia Press. Bell, Duncan, ed. 2007. Victorian Visions of Global Order: Empire and International Relations in Nineteenth-Century Political Thought. Cambridge: Cambridge University Press. Bell, Duncan. 2010. “John Stuart Mill on Colonies”. Political Theory 38: 34–64. Chollet, Antoine. 2011. “Switzerland as a ‘Fractured Nation’”. Nations and Nationalism 17 (4): 738–55. Cobban, Alfred. 1969. The Nation State and National Self-Determination. London: Collins. Coleridge, Samuel Taylor. 1830. On the Constitution of the Church and State, According to the Idea of Each. London: Hurst, Chance & Co. Collini, Stefan. 1985. “What is Intellectual History?” History Today 10: 46–54. Comte, Auguste. 1853. The Positive Philosophy of Auguste Comte, 2 vols., trans. Harriet Martineau. London: J. Chapman. Connor, Walker. 1994. Ethnonationalism: The Quest for Understanding. Princeton: Princeton University Press. Conversi, Daniele. 2007. “Democracy, Nationalism and Culture: A Social Critique of Liberal Monoculturalism”. Sociology Compass 1: 156–82. Dalberg-Acton, John E. E. [1862] 1907. “Nationality”. In The History of Freedom and Other Essays. London: Macmillan & Co.

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Dardanelli, Paolo, and Nenad Stojanovic. 2011. “The Acid Test? Competing Theses on the Nationality – Democracy Nexus and the Case of Switzerland”. Nations and Nationalism 17 (2): 357–76. Drakulic, Slobodan. 2008. “Whence Nationalism?” Nations and Nationalism 14 (2): 221–39. Freeden, Michael. 2005. Liberal Languages. Princeton: Princeton University Press. Goldstone, Alan. 2008. “John Stuart Mill on International Legitimacy”. Paper delivered at the Oceanic Conference on International Studies University of Queensland. http://www.polsis.uq.edu.au/OCIS/Goldstone.pdf. Hall, John A. 2001. “Liberalism and Nationalism”. In Encyclopaedia of Nationalism, edited by Athena S. Leoussi, 173–76. New Brunswick: Transaction Publishers. Hobsbawm, Eric J., 1992. Nations and Nationalism since 1780: Programme, Myth, Reality. New York: Cambridge University Press. Home, R. W. 2003. “Cohesion”. In The Oxford Companion to the History of Modern Science, edited by Johan Heilbron, 163. Oxford: Oxford University Press. Jahn, Beate. 2005. “Barbarian Thoughts: Imperialism in the Philosophy of John Stuart Mill”. Review of International Studies 31: 599–618. Kane, John. 2008. “Liberal Nationalism and Multicultural State”. In Political Theory and Australian Multiculturalism, edited by Geoffrey Brahm Levey. New York: Berghahn Books. Kedourie, Elie. 1994. Nationalism, fourth, expanded edition. Oxford: Blackwell. Kukathas, Chandran. 2004. “Nationalism and Multiculturalism”. In Handbook of Political Theory, edited by Gerald F. Gaus and Chandran Kukathas. London: Sage. Kymlicka, Will. 1992. Liberalism, Community and Culture. Oxford: Clarendon. —. 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon Press. —. 2001. Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship. Oxford: Oxford University Press. Kymlicka, Will, and Magdalena Opalski. 2001. Can Liberal Pluralism Be Exported? Western Political Theory and Ethnic Relations in Eastern Europe. Oxford: Oxford University Press. Lawrence, Paul. 2005. Nationalism: History and Theory. Harlow: Pearson Longman.

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Levin, Michael. 2004. J. S. Mill on Civilization and Barbarism. London: Routledge. May, Stephen. 2012. Language and Minority Rights: Ethnicity, Nationalism and the Politics of Language. New York and London: Routledge. Mill, John Stuart. 1963. The Earlier Letters of John Stuart Mill 1812– 1848, Part I. In The Collected Works of John Stuart Mill, gen. ed. John M. Robson, vol. XII. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. [1843] 1974. A System of Logic, Being a Connected View of the Principles of Evidence and the Methods of Scientific Investigation. In The Collected Works of John Stuart Mill, gen. ed. John M. Robson, vol. VIII. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. [1861] 1977. Considerations on Representative Government. In The Collected Works of John Stuart Mill, gen. ed. John M. Robson, vol. XIX. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. [1873] 1981. Autobiography. In The Collected Works of John Stuart Mill, gen. ed. John M. Robson, vol. I. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. —. [1849] 1985. Vindication of the French Revolution of February 1848. In The Collected Works of John Stuart Mill, gen. ed. John M. Robson, vol. XX. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. Miller, David. 1995. On Nationality. Oxford: Clarendon. —. 2000. Citizenship and National Identity. Cambridge: Polity Press. Moore, Margaret. 2000. “Nationalist Arguments, Ambivalent Conclusions”. In Nationalism and Ethnic Conflict: Philosophical Perspectives, edited by Nenad Miscevic, 177–96. Chicago: Open Court. —. 2001. “Normative Justifications for Liberal Nationalism: Justice, Democracy and National Identity”. Nations and Nationalism 7: 1–20. —. 2006. “Nationalism and Political Philosophy”. In The SAGE Handbook of Nations and Nationalism, edited by Gerard Delanty and Krishan Kumar, 94–103. London: Sage. Motyl, Alexander J., gen. ed. 2001. “Liberalism”. In Encyclopedia of Nationalism: Leaders, Movements and Concepts. 2 vols., vol. II, 297– 98. London: Academic Press. Nimni, Ephraim. 2009. “Nationalism, Ethnicity and Self-Determination: A Paradigm Shift?” Studies in Ethnicity and Nationalism 9, 2: 319–32.

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Palonen, Kari. 2003. Quentin Skinner: History, Politics, Rhetoric. Cambridge: Polity. Robson, John M. 1974. “Textual Introduction”. In The Collected Works of John Stuart Mill, gen. ed. John M. Robson, vol. VII, 30–70. Toronto and London: University of Toronto Press & Routledge and Kegan Paul. Rosen, Frederick. 1997. “Nationalism and Early British Liberal Thought”. Journal of Political Ideologies 2: 177–88. Skinner, Quentin. 1969. “Meaning and Understanding in the History of Ideas”. History and Theory 8 (1): 3–53. —. 1970. “Conventions and the Understanding of Speech Acts”. The Philosophical Quarterly 20 (79): 118–38. —. 1988. “A Reply to My Critics”. In Meaning and Context, edited by James Tully, 231–88. Cambridge: Polity. —. 2002. Visions of Politics, vol. I: Regarding Method. Cambridge: Cambridge University Press. Smart, Paul. 1992. “Mill and Nationalism: National Character, Social Progress and the Spirit of Achievement”. History of European Ideas 15 (4–6): 527–34. Smith, Anthony. 2008. “The Limits of Everyday Nationhood”. Ethnicities 8 (4): 563–73. Tamir, Yael. 1993. Liberal Nationalism. Princeton: Princeton University Press. —. 1999. “Theoretical Difficulties in the Study of Nationalism”. In Theorizing Nationalism, edited by Ronald Beiner, 67–90. Albany: State University of New York Press. Van Parijs, Philippe. 2000. “Must Europe Be Belgian? On Democratic Citizenship in Multilingual Polities”. In Demands of Citizenship, edited by Catriona McKinnon and Ian Hampsher-Monk, 135–56. London: Continuum. Varouxakis, Georgios. 2002. Mill on Nationality. London: Routledge. —. 2006. “‘Patriotism,’ ‘Cosmopolitanism’ and ‘Humanity’ in Victorian Political Thought”. European Journal of Political Theory 5: 100–118. Woolf, Stuart. 1996. Nationalism in Europe, 1815 to the Present: A Reader. London and New York: Routledge.

CHAPTER EIGHT RETHINKING REPRESENTATION, CITIZENSHIP AND IDENTITY: TOWARDS A RADICAL PLURALISM SAMUEL HAYAT1

Liberalism, as an ideology centred on the achievement of collective and individual freedom, is in crisis. While it has been a movement that allowed the progress of liberties and drew a path towards emancipation, it seems unable to face the political and economic challenges of the twenty-first century. In many countries, and for many people, liberalism no longer symbolises the struggle for emancipation, but the rule of bankers, billionaires and corrupted leaders. The aim of this paper is to conceptualise an alternative ideology that would share the emancipating goals of liberalism, but not its more dubious features. In order to do so, I will first use a genealogical approach: liberalism has not always been linked with capitalism, oligarchy and State oppression. Thus it is possible to use contemporary critiques of liberalism to identify the most questionable aspects of this ideology, and then look through its history to determine when these aspects became key features of liberalism. By studying the controversies that took place inside the liberal movement when liberalism integrated these features, we will be able to see what alternatives were proposed. It will then be possible to use an ideal-type approach to construct an ideology by drawing on these alternatives. As a preamble, we have therefore to determine the main features of liberalism that are currently criticised (Mouffe 1992). Contemporary liberalism is based on the principle that society is formed by autonomous individuals; radical critics point out that the focus on individuals masks the relations of power and domination between social forces and the inequalities that result, which makes the idea of individual autonomy a lie 1

Conservatoire national des arts et métiers (HT2S), France.

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(Connolly 1991; McClure 1992). Contemporary liberalism has developed in democracies with sovereign national assemblies as the unique sources of legislative rule; radical critics show that nation-states are no longer the primary political actors, and that national laws have become subordinated to the decisions of transnational unelected bodies (Colliot-Thélène 2011). Contemporary liberalism uses nation-based processes of representation to link the leaders and their constituencies; radical critics argue that representation produces apathy and that people no longer trust their elected leaders (Barber 1984). Three core principles of liberalism, the autonomy of individuals, sovereign national assemblies, and representation, appear at the centre of contemporary critiques. However, liberalism has a history (Leonhard 2001), and liberals have not always been unequivocally in favour of individualism, parliamentarism and representation. It is especially true in a country where debates about liberalism and liberal principles have always been vivid: France. During the first decades of the French liberal movement, these principles were deeply contentious, and some self-identified liberals argued that citizenship should take into account the social identities of individuals, that sovereignty should not be monopolised by national assemblies, and that representation should not lead to the political exclusion of citizens between elections. If we look at the controversies that took place in the French liberal movement from the 1820s to the 1840s, we can clearly distinguish between two positions. The first, which I shall call “conservative liberalism”, was deeply unitary, a single kind of citizenship, a single sovereign body, a single procedure of representation, and has historically prevailed. But another ideology can be reconstructed through the studies of these controversies: since it is profoundly pluralistic, multiple aspects of citizenship being represented through different procedures in different institutions, we might call it “radical pluralism”—a concept already used by some proponents of radical democracy, which I use here in a slightly different sense (Wenman 2003). My hypothesis is that radical pluralism, as an ideal-type built through the study of controversies that took place in the French early liberal movement, could constitute a preferable alternative to liberalism; it is an ideology that aims at freedom without resorting to the principles that led liberalism to its contemporary failure. In order to conceptualise radical pluralism, I first turn to the history of liberalism in France in the first half of the nineteenth century. I show that liberalism was then a broad political movement, in which controversies led to the emergence of what we might call radical pluralism. I then consider the institutional devices that were set up in France during the Revolution of 1848, as an embodiment of radical

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pluralist principles, and thus as a way for us to specify radical pluralism as an ideal-type. Finally, I will show how we can use this ideal-type as a guide to analyse several contemporary devices and experimentations that can be linked with radical pluralism, and thus constitute the basis for a political alternative to liberalism.

Pluralism in the History of Liberalism in Nineteenth Century France In France, during the first part of the nineteenth century, liberalism was a political movement, organised around newspapers and associations, united by some common intellectual and historical references, but also divided in matters of political strategy (Jardin 1985; Girard 1985; Jaume 1997; Jennings 2011). It was a party, the parti libéral, in the loose sense this word had at that time (Huard 1996). As such, it developed liberalism as a political project more than as a moral philosophy. Liberals were united by a common opposition to the “ultra-royalists” that came to power at the beginning of the 1820s and intended to bring France back to the Ancien Régime. Thus, early liberalism in France was defined by a single principle: the attachment to the realisations of the 1789 Revolution, i.e. the equalisation of civil conditions, the abolition of the Ancien Régime, and the promotion of a very simple and negative concept of liberty: citizens should be equally free within the limits of the law (Berlin 1969). As we can see, this conception of liberalism shares some important features with what moral and political philosophers now call liberalism. But some questions were not solved inside the early French liberal movement: what interpretations should be given to the principles of 1789? There were tensions and controversies about how to realize freedom and equality (Williams 1962). Every liberal agreed that individuals should be equal, but what did it entail? Should a proper liberal regime take into account the differences, as a problem to correct or as diversity to cherish? Every liberal agreed that citizens should be represented (Manin 1996), but by which institutions, and should the representation be exclusive—i.e. excluding citizens from direct political participation between elections—or inclusive—i.e. promoting direct participation of the constituents (Hayat 2011, 2013)? Should individuals be face to face with the state, or should intermediary bodies be recognised, and in that case, what relation should exist between them and the state (Rosanvallon 2002, 2004)? All these questions gave birth to several controversies during the first decades of the French liberal movement. For this reason, I will use the French example to construct radical pluralism as an ideal-type that can be

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opposed to conservative liberalism. While the French early liberal movement cannot be said to be similar to other kinds of liberalism, especially British liberalism, the controversies that took place can give us a basis to build a conceptual distinction between conservative liberalism and radical pluralism. These controversies really started when liberals were faced with an important political challenge: the accession to political power after the Revolution of 1830 (Pinkney 1972; Pilbeam 1991). For the first time, the ideological ambiguities inside the liberal party were revealed. An important question that arose and profoundly divided liberals was the question of the place of the workers in a liberal regime. Indeed, they had played a crucial part in the success of the insurrection of July 1830, and they began to present claims. Among these claims, one in particular was difficult for liberals to correctly address: the possibility for workers to organise, create associations, and negotiate common rates (tarifs) with merchants (Sewell 1980). On the one hand, it seemed entirely compatible with liberalism: on what ground should the state refuse the citizens the right to free association? But on the other hand, it went against the principle of free trade and the revolutionary Le Chapelier law that prohibited corporations and trade associations (Kaplan and Minard 2004). The liberals in power decided to forbid the workers the right to associate and thus to exist as a social group. Following the doctrinaires, especially Guizot, they considered that only society, as a free collection of individuals, and the state, as the only locus of power, should have a legal existence, and that they should be linked solely through the mechanism of representation—excluding citizens from direct political participation between elections (Rosanvallon 1985). As a result, this issue became central for more radical liberals who soon called themselves republicans or radicals. As part of their political agenda they established the right of workers to associate and improve their situation, along with the extension of the electoral franchise to all male citizens (Pilbeam 1995). Thus, the ideology of radicals coincided with some features of the workers’ corporative traditions, inherited from the Ancien Régime but deeply transformed by the revolutions of 1789 and 1830. Between 1831 and 1834 there were multiple hybridisations of political radicalism and working class traditions, most notably in the republican associations that were aimed specifically at the workers, such as the Société des Droits de l’Homme. As a result, a new ideology emerged, distinct from conservative liberalism defended by Guizot and the liberals in power. Undoubtedly, it was linked with liberalism, since it relied on the interpretation of the principles that had been at the core of the liberal party, i.e. the principles of the 1789 Revolution. But this new ideology considered society, the state,

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and their relations in a new manner. First, society could not be conceived as a mere collection of individual citizens: citizens were members of social groups, and these social groups were illegitimately unequal in society. Even if the 1789 Revolution had abolished the privileges, a new aristocracy, the bourgeoisie, and a new Tiers-Etat, the proletariat, had appeared: the two classes were bound to fight. An article in the working class journal L’Echo de la Fabrique, journal industriel et littéraire de Lyon, on June 9 1833, stated that “if prompt mediation were not to take place between the bourgeois aristocracy and the proletariat […], the same existing struggle would necessarily take place between them as it did fifty years ago between nobles and commoners”. Even if individuals were supposed to be granted civil equality, a new lower class, the proletariat, remained subordinate to the rule of a bourgeois aristocracy, which should be abolished (Rancière and Faure 2007). Society should not therefore be conceived only as a collection of individuals, but also as the place where classes with different interests opposed one another. As a result, specific mechanisms of representation should be set up to guarantee the lower classes a political voice inside the institutions of the state, as it was argued, for example, by the SaintSimonian Jean Reynaud in an 1832 pamphlet, “The necessity of a special representation for proletarians”, or through a specific organization that could represent all the different trades, as advocated, for example, by the shoemaker Efrahem in the 1833 pamphlet, “The association of the workers of all trades”. This had important consequences for the liberal and radical conception of citizenship, identity and representation. For conservative liberals, citizenship was defined only through a common national identity, and society should be represented as a whole. For this reason, census suffrage was not seen as incompatible with conservative liberalism: since the state had to represent a unified society, society could be said to delegate the electoral function to the more able, i.e. the rich (Rosanvallon 1992). Since there was a unique general interest in society, it was not a problem to make the rich responsible for enforcing it. For radicals defending the cause of the workers, the situation was very different. Citizenship relied on the combination of two distinct identities: a national identity and a socioeconomic one. Belonging to the bourgeoisie or the working class did not solely determine economic status; it also went with different political rights. Their political specificity was illustrated by both their exclusion from the suffrage by conservative liberals and by their claim to a specific representation, supported by radicals. As a result, since citizenship had some socio-economic aspect, the rich could not be said to fully represent

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the poor, because part of the political identity of the poor came from belonging to a specific community with special interests. It that sense, for radicals, the plurality of identities should go with an institutionalised plurality of representation. Maybe this plurality would come to an end when the proletariat disappeared, but until then it was a necessity. So, after 1830, liberalism, as a political movement opposed to ultraroyalism and defending the principles of the 1789 Revolution, became separated into two trends: conservative liberalism, and what we might call radical pluralism. Both trends were based on two different interpretations of liberal principles, especially concerning the specific situation of the working class. This dichotomy echoed a secular issue: the role of intermediary bodies. The common opposition between French liberalism (supposed to come from Montesquieu) and republicanism (borrowing from Rousseau) is profoundly misleading here: according to this false dichotomy, liberals should be in favour of intermediary bodies, and leftwing republicans oppose them (Dijn 2005). But in 1830, conservative liberals in power were the ones who opposed the legal existence of intermediary bodies—here, the association of workers—whereas radicals and republicans claimed the recognition of the specific political identity of the working class, and the necessity for specific representation. The reason for the discrepancy between our vocabulary and that of the political ideologies of that time is to be found in the history of the liberal party during the nineteenth century, and particularly in its relation to the working class. The Revolution of 1830 had divided the liberal party between conservative and radicals—the former being opposed to pluralism and the latter defending it. But it is only with the Revolution of 1848 that this radical pluralism really came into existence, since its promoters became the prominent political force, at least in Paris. Indeed, the Revolution of 1848 empowered radicals and a new political system was organised, the Republic, considered as an alternative to liberal representative government. Through the description of the institutions that then appeared, we can hope to grasp an example of how radical pluralism could be embodied.

The Revolutionary Institutions of 1848 as an Ideal-Type of Radical Pluralism The French Revolution of 1848 was largely made against some prominent features of conservative liberalism as they were institutionalised during the July monarchy: forms of representation that excluded the vast majority of the citizens from political activity, strict limitation of the press and

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association, incapacity to deal with rising unemployment and permanent poverty. As a result, contrary to what had happened in 1830, one of the first decisions of the newly appointed Provisional Government was to dissolve the representative institutions, the Assembly and the Chamber of Peers, and to call for the election of a constituent Assembly (Agulhon 2002). However, this invalidation of the institutions of representative government did not lead to the disappearance of the vocabulary of political representation. On the contrary, the idea rapidly spread that every authority should be democratically elected, and thus that the logic of political representation should extend far beyond legislative institutions. In the first few weeks of the new regime, the procedure of democratic election was imposed (by the government or by revolutionaries themselves) in the National Guard, in the hundreds of clubs that were rapidly spreading, in the national workshops that were set up by the government… Discussions took place about applying the electoral rule to just about every social function (the judiciary, the Arts Academy, etc.). As a result, no institution could claim to be the unique real authority appointed by the people: there was a plurality of duly elected institutions, each of them authorised by the (male) citizens, so each of them could have a say in the public decisions. But while these different institutions could be said to be representative institutions, they did not exactly represent the same aspect of society. They were all representing the people, but seen through a different lens. The Provisional Government (and the constituent Assembly after its installation on May 4) embodied the nation as a community governed by a common law; the officers of the National Guard represented the people in arms, the citizens-fighters who enforced order in their city by themselves (Hincker 2007); the elected leaders of clubs, and even more so the elected leaders of the federations of clubs, represented the deliberating citizens, engaged in the public sphere to discuss the common good and to watch the government (Amann 1975; Hayat 2012). Thus this plural representation went along with a plural conception of citizenship: being a citizen could not be summed up by being subject to national law or by having the right to vote. Being a citizen, in 1848, meant being composed of different political identities, each of them embodied in a different elected institution. Plural representation was the result of the revolutionary process, but it did not come from nowhere: it was deeply linked with radical liberalism. The former members of the opposition to conservative liberalism were now part of the political process, whether directly in the Provisional Government or as elected officers of the National Guard, the national workshops, the clubs, etc. Under the renewed

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idea of republicanism, radical pluralism was spreading, giving birth to an unprecedented pluralist system of representation. Among the new representative institutions, one of them was particularly revealing: the Commission de gouvernement pour les travailleurs, or Luxembourg Commission (Bruand 2006). This commission was nominated to satisfy the claims of the Parisian workers, who had been at the core of the successful insurrection, and who asked for solutions to what was called the “social problem”, i.e., unemployment, poverty, submission to capitalists and merchants, uncontrolled mechanisation, etc. At the head of the Luxembourg Commission were placed the two more radical members of the Provisional Government: Louis Blanc, a famous socialist, and Albert, a worker who had been very active in secret societies under the July monarchy. This Commission was composed of elected delegates from the different trades. As such, it was a real parliament of the workers. Moreover, it was headquartered in the Luxembourg Palace (the former Chamber of Peers), a symbolic choice that put the representatives of the workers in the highest positions. The initial mandate of the Commission was to come up with a plan to reform the economy and to solve social problems, but it also played an important role in implementing the reduction of the length of the working day and in solving conflicts between workers and employers. In his famous analysis of the 1848 Revolution, Karl Marx mocked this “socialist synagogue” as a powerless institution, but he missed a very important fact. Despite its lack of real coercive power, the mere existence of the Luxembourg Commission stated that in a Republic, work could and should have special representation, that citizens were not only defined by their affiliation to a national community, but also by their class. While the Luxembourg Commission itself was short-lived, in April its members created a working class electoral committee that played an important role in the politicisation of the Parisian workers. The repression of the insurrection of June 1848 prevented this institutional attempt to represent the working class from becoming perennial, but it remained a fascinating herald of trade unionism in France (Gossez 1968). So there was a highly pluralist institutional system in France during the first months of the Second Republic. Several institutions coexisted, each of them representing a different aspect of citizenship and a different identity of constituents. Whereas conservative liberalism considered a unified society composed of monadic individuals, radical pluralism took into account the inner diversity of the selves and the different social roles individuals had to adopt in their public life (Baker 2003). Instead of drawing a unique frontier between politics and private business—

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characteristic of conservative liberalism (see for example Constant’s famous discourse on the Liberty of the Moderns)—this plural system of representation was founded on a multiplicity of political activities, related to different aspects of social life. The problem of this pluralism was to determine, in case of conflict, which representative institution should have the upper hand, the last word. In a unitary system of representation, the answer was simple: political legitimacy resided entirely in a single political authority, for example the Parliament. But when several institutions were elected, each of them could invoke the people’s sovereignty to legitimise its choices. In 1848, this problem of coordination was never resolved, even if the appeal to the people, for example through demonstrations, like the one that took place on March 17, could have constituted a solution in accordance with popular sovereignty (Robert 1996). Indeed, the plural system of representation, attempted during the first months of the Republic, soon became invalidated by the progressive prominence of the newly elected Constituent Assembly. Even though its original mandate was only to draft a new Constitution, this Assembly soon acted as the sole legislative authority, and its deputies (who were mostly conservatives) worked towards the annihilation of the revolutionary conquests of February. On the occasion of the events of April 16 (an unsuccessful workers’ demonstration), May 15 (a failed invasion of the Assembly) and June 23–26 (an unsuccessful workers’ insurrection), deputies progressively restored an order founded on the principles of conservative liberalism. During the constituent process, which ended with the vote of the Constitution in November 1848, republicanism was redefined as a new version of conservative liberalism, based on popular sovereignty through universal male suffrage, and the possibility of radical pluralism was rejected as a danger for society, assimilated with socialism (Coutant 2009). So the Revolution of 1848 inaugurated a pluralist regime, based on the principles developed by radicals and workers under the July monarchy, but it was short-lived. After a few months, conservative liberalism became hegemonic again, under a republican form, soon to be replaced by a socalled liberal Empire after Louis-Napoléon Bonaparte’s coup d’état in December 1851. Undoubtedly, the plural representative system of early 1848 was unstable and lacked mechanisms to solve the conflict between representative institutions. However, it was the incarnation of a new ideology, based on an alternative interpretation of the liberal principles of 1789, and its main features could be used to define a radical pluralist regime, broadening the ideal-type of radical pluralism.

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Contemporary Experimentations in Radical Pluralism After 1848, radical pluralism can be said to disappear in France. Through diverse regimes, French political culture established itself as mostly unitary. During the Third Republic, the revolutionary tradition was rewritten to fit this unitary spirit, erasing the pluralist aspects of Jacobinism, radicalism, early republicanism and early socialism. It has only been recently, in the 1980s, with decentralisation (Defferre Laws), democratisation of the work place (Auroux Laws), and the progressive transformation of European Union into a political authority, that the unitary political culture started to be challenged. However, this pluralist tradition was never entirely erased in France. Moreover, in other countries, liberalism had taken other paths, and some pluralist aspects could be found, even if the radical pluralism I want to conceptualise here, based on the plurality of both identities and representative institutions, remained scarce. It is thus possible to use the radical pluralism of the early French liberal movement and the plural institutions of the 1848 Republic as an ideal-type, from which it is possible to consider different situations, in order to identify current political devices that can be described as forms of radical pluralism. We would end up drawing from diverse elements in order to invent an alternative ideology to conservative liberalism that could face contemporary political challenges. In order to outline this ideology, it is first necessary to clearly distinguish radical pluralism from other forms of pluralism. Its specificity is that it should be based on a triple plurality: the identities that are considered politically relevant, the procedures of representation, and the political institutions that represent those identities. As such, it is distinct from most incarnations of group representation, descriptive representation, or politics of presence (Phillips 1995; Mansbridge 1999; Young 2000; Williams 2000). Indeed, while these forms of political inclusion of dominated social groups, especially women, are clearly related to the recognition of the plurality of identities in society, they mostly consider this inclusion through the means of representation inside a unitary political system, in parliamentary regimes and inside legislative assemblies. Radical pluralism is also distinct from polyarchy (Dahl 1971) or constitutional mechanisms of the separation of powers (Elster and Slagstad 1988), which rely on plural institutions, but are based on a unitary conception of citizenship and are primarily focused on the elites and designed to limit the power of the people. There are exceptions, though, which should not be minimised. For example, there are some links between radical pluralism and the dualist interpretation of the Constitution

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as an incarnation of popular sovereignty during constitutional periods, which can be represented by a specific body, for example the American Supreme Court, vested with the power to overthrow legislation passed by the Congress, which also represents the people, but the people of “normal” times (Ackerman 1993). Similarly, many feminist theorists and activists have thought of ways to radically transform representative institutions by the inclusion of a gender perspective (Benhabib 1996; Cornwall and Goetz 2005; Mackay 2008; Squires 2008). So the frontier between radical pluralism and constitutionalism or group representation is not hermetic. But for analytical purposes, we can say that radical pluralism, as an idealtype, requires a deeper commitment to both identity and institutional pluralism. Radical pluralism should also be distinguished from the forms of pluralism that are opposed to liberal goals. For example, totalitarian or authoritative regimes that rely on the massive enrolment of citizens in a unique party often institutionalise a dualist system: the official political institutions, and the authorities of the party (Arendt 1951). While there is a plurality of institutions (state and party) that rely on a plurality of identities (citizens are represented both as members of the national community and as party members), it would be misleading to include these institutional setups as incarnations of radical pluralism, since our aim is to conceptualise an alternative ideology that would share with liberalism its basic aims, namely individual and collective freedom. That being said, it is possible to single out three traditions that we can relate to radical pluralism, as they pursue liberal goals and rely on a pluralisation of identities and representative institutions. The first tradition can be found in the labour movement, through trade unionism and forms of socialism that rely on the association of workers (Kelly 1988). While this tradition is clearly more developed in Britain, in Germany or in northern countries (Hyman 2001), it is not absent from French socialism and trade unionism (Rosanvallon 1987). Indeed, after the Revolution of 1848, when the majority of republican deputies preferred to adapt conservative liberalism to popular sovereignty, a new tradition grew inside labour and socialist movements. Drawing on the idea of association developed under the July monarchy and on the achievements made during the early months of the Second Republic, this tradition attempted to define socialist institutions in a radically pluralist manner. The experience of the Luxembourg Commission had opened the way for reflections about a possible institutionalisation of the representation of workers. In the decades that followed the Revolution of 1848, in the French labour movement the question of the representation of workers was intensely debated. Among the socialist thinkers who played a part in this debate, one

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of them, Pierre-Joseph Proudhon, advocated an advanced form of radical pluralism (Bancal 1970). From Confessions d’un révolutionnaire in 1849 to De la capacité politique des classes ouvrières in 1865, Proudhon defended the possibility of a socialism that would not be state-based, but would rely on the mutual cooperation of the workers. In particular, he defended the idea that each social function (i.e. each trade, but also the judicial courts, the army, the Church, etc.) should be separated, reorganised through universal suffrage, and federalised. In this system, the state would have only a function of coordinating between different institutions, each of them representing a different aspect of the identities and social roles of citizens. Proudhon’s ideas were very influential on the early French labour leaders, from the founders of the French section of the International Workingmen’s Association in 1864, to those of the anarcho-syndicalist General Confederation of Labour (CGT) in 1895 (Ridley 1970; Rolland 1995). This view of a socialism that would not be based on the state, but on plural representative institutions rooted in the different social spheres in which individuals were engaged, can also be found in different trends of anarchism and self-management socialism (Linden and Thorpe 1990). Moreover, it has some echoes, in a much more institutional and reformist way, in the systems of partnership that give important powers to tradeunions and representatives of entrepreneurs in most economic matters, such as in Germany or in Scandinavian countries (Kaufman and Kleiner 1993). A second tradition that can be considered to belong to our ideal-type of radical pluralism is the tradition of community institutions, in the large sense, from community organising (Rivera and Erlich 1998; Stall and Stoecker 1998) to the recognition of legal autonomy for a minority (Wright 1999). While this form of pluralism shares some of its principles with group representation, the main difference is that the representation of communities does not happen solely through the integration to a unitary political institution, but also through the establishment of specific representative devices. Those devices do not substitute for the other representative institutions, but add to them, in order to make the community members represented both part of the nation and part of their community. Most examples of this form of plural representation rely on the use of associations, but it is only when these associations begin to regroup a large fraction of the community and/or to federalise several numbers of smaller-scale community associations that we can see them as representative institutions (Warren 2001). In order to properly understand this loose form of representation, one has to depart from the principalagent model of representation and to adopt a more systemic approach to

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representation (Mansbridge 2003, 2011; Maia 2012). If we consider the example of black Americans, it is not a single association that creates a specific representation for members of this community, but rather the fact that associations have been created in most professions and activities, along with some massive and perennial associations such as the National Association for the Advancement of Colored People, and with a specific association inside legislative institutions: the Congressional Black Caucus. Here, institutional pluralism comes from the high level of autonomous organisation of the community, which creates an effective plural representation for black Americans, even if it is only through associations. At the other end of the spectrum, this form of pluralism can be legally institutionalised, or even recognised by the Constitution. The examples of the representation of indigenous communities in Latin America are revealing (Warren and Jackson 2002). During the 1980s and 1990s, most Latin American countries with large indigenous communities experienced social movements claiming the right to a certain degree of autonomy and a better representation for these communities. In most countries, these movements have led to the creation of large federations of associations (such as the Confederation of Indigenous Peoples of Bolivia), or to the emergence of indigenous political parties (such as the Pachakutik in Ecuador). But in some cases, recognition has gone much further. For example, the Colombian Constitution of 1991 gave the indigenous communities a specific representation in the Senate (Art. 171), the right to have autonomous jurisdictions, laws and procedures (Art. 246), and the right to self-govern locally according to their customs (Art. 330). In the Chiapas, since 1994, the Zapatista Army of National Liberation managed to establish indigenous autonomy and self-government in dozens of municipalities, even if no real agreement was reached with the central Mexican government2. In 2009, under president Evo Morales (himself a trade unionist and a self-identified indigenous), a new Bolivian Constitution has been voted, which officially recognises a very large set of rights for indigenous peoples (Art. 30), including the inscription of their indigenous identity in official identification documents, autonomy in all matters regarding culture, education, medicine, ownership, justice or local government, and representation in all the institutions of the state. Beyond their real diversity, all these cases can be linked to the idea of radical pluralism, as they rely on the pluralisation of both identities and representative institutions. 2

On the indigenous claims in Chiapas, the Zapatistas and the Mexican government, see Chapter Fourteen in this volume.

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Finally, we can identify a third tradition of radical pluralism in a set of devices that are not linked to specific class, gender or ethnic identities, but rather with the experience of being governed. Indeed, in democracies, citizens are both members of constituencies and subject to laws and governments, and can then develop a specific political activity in which they do not act as voters but try to directly influence the laws or the way they are governed. In constitutional theory, it can be said that it is the fact that citizens belong to a constituency and elect their legislators that renders the laws legitimate (Rehfeld 2005). But in the day-to-day political experience, it is different: some citizens vote, and all of the people in a given territory have to abide by laws, even if they have not voted for, or contributed to drafting, them. Citizens in democracies can therefore be said to have a dual political identity, and while, as voters, citizens are represented, they can also act as subjects to laws and regulations through institutions that Pierre Rosanvallon has called counter-democratic (Rosanvallon 2006; Resmini 2012). Counter-democratic devices, from transparency associations to procedures of recall referendum, allow citizens to watch, survey, judge and possibly punish their elected leaders. Similarly, to some extent, it is possible to consider institutions related to direct or participative democracy, and even certain social movements, as elements that effectively pluralise political systems (Pateman 1970; Blondiaux 2008; Sintomer 2011). Indeed, the idea that citizens in democracies are doubly represented, first by their elected representatives and second by some specific participative or counter-democratic devices, is totally foreign to conservative liberalism, which knows only representation through elections and direct participation by “public opinion” through free expression of individuals (Reynié 1998). So when representative claims emerge from these kinds of devices, and when they start to play a direct role in political processes, we clearly depart from conservative liberalism and representative government (Saward 2010). The important condition for these devices to be considered as relevant to radical pluralism is the necessity for them to have a real part in sovereignty, not just a consultative role or an informal lobbying power (Fung 2003). When institutionalised devices are thought to be real incarnations of a sovereign people which acts not as a constituency, but as subjects, and irrespectively of their elected representatives, we can say some sort of radical pluralism is involved. In France, the sans-culotte tradition of popular societies and the 1848 clubs (to the extent to which they were federalised and institutionalised) exemplify this aspect of radical pluralism (Soboul 1971; Boutry 1990). Nowadays, it is certainly the massive participative devices such as the national conferences in Brazil

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that go the furthest in the direction of radical pluralism. Indeed, in national conferences, lay citizens can participate directly in the important debates and nominate spokespersons who are accountable and have a real say in political processes (Avritzer 2009; Pogrebinschi and Santos 2010). If these institutions are taken seriously and their institutionalisation is reinforced, they could form the basis of a real system of plural representation, distinct from representative government.

Conclusion On many counts, contemporary liberalism is deeply unsatisfactory. Its core principles and institutions, individual autonomy, sovereign national assemblies and representative government, fall short of their emancipating promises when it comes to addressing the political and economic changes we are currently experiencing. But as we have seen in the history of the early French liberal movement, these principles and institutions were not originally hegemonic in liberalism. They have historically prevailed against minority voices, strongly linked to the emerging labour movement, which advocated for a substantially different interpretation of liberal principles. Through the study of their ideas and the institutional achievements of the 1848 Revolution, I have tried to construct the ideal-type of an ideology that would share liberal goals, but without its more questionable aspects: radical pluralism. Contrary to the conservative and unitary form of liberalism that has prevailed, radical pluralism is founded on the plurality of citizens’ identities and on the need for a corresponding plurality of representative institutions. I have tried to use this ideal-type of radical pluralism to discuss several contemporary ideas and devices, related to the representation of workers, of ethnic minorities and to forms of participative or counter-democracies. Beyond the diversity of all these experiments, they all share some common radical pluralist features. Together with investigation into the history of pluralist ideas, they could give direction to those who want to criticise what liberalism has become without sacrificing its initial goals. They do not by themselves solve the problems liberal democracies are currently facing, but they might give a basis for rethinking political institutions in a radically pluralist way, providing us with new means to meet contemporary economic and political challenges.

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CHAPTER NINE DEMOCRACY AND THE CRISIS OF COMMON GOODS ØYVIND STOKKE1

Introduction In liberal political philosophy there is a long and strong tradition of protecting private property, most famously expressed in John Locke’s Two Treatises of Government. According to Locke, the right to own property is a pre-political, natural right, and a right that is presented as inseparable from individual liberty. This appreciation of the value of private property is also reflected in our liberal constitutional tradition. For example, the legal rules protecting private property contained in the Norwegian Constitution are inspired by eighteenth century Enlightenment and natural rights theories, and §105 states the right to full compensation in case of expropriation of private property by the state. In the American case one could add a tradition of legal interpretation where the right to ownership has been ascribed a nearly mythical status (Holst 2004). There is a comparably much weaker protection of common goods in our constitutions. This lack of protection has regrettable consequences in terms of justice, something which the legal theorist Ugo Mattei has pointed out in a recent article (Mattei 2011). Mattei maintains that in a privatization process, the government sells something which does not belong to it, but to every member of the political community—a railway, a water supply or a university. Thus, it expropriates a certain amount of goods in a way which parallels the way it expropriates private property when it constructs a road through the fields. In other words, the government takes over by force something which does not belong to it. In this way, privatization deprives the citizens of their part 1

UiT The Arctic University of Norway.

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of a common good, in the same way as when the government takes over a private good. The crucial point is this: while the liberal constitutional tradition protects private property against the state, forcing it to compensate for expropriated values, “there is no legal framework which protects against the neoliberal state when it transfers collective goods to the private domain” (Mattei 2011). Given this relative lack of protection of collective, most often public, goods against privatization, we must ask ourselves: how can we prevent governments, facing massive interest rates demanded by the international bank sector and global finance, from selling out common goods, also in the form of public property, in order to “balance” their budgets? This question has become especially urgent today as the relative strength of the state towards the private sector has changed to the benefit of the latter. The result, owing to what Mattei calls a constitutional irresponsibility, is that governments in office can freely sell goods that belong to all, be they natural resources or social infrastructure, in order to finance their politics. In contrast to this, the constitution should not only establish the legal status of the citizen specified by a list of fundamental rights, but also the principle of the sovereignty of the people. This reminds us of the fact that the primary duty of every government is to serve its sovereign people, and not to turn the people into servants of the government! As we now begin to see the consequences of weak protection of common goods, it is of fundamental importance under the current dominance of economic globalisation, of which neoliberal privatisation policies have been a typical expression, to elaborate a theoretical framework where the common goods constitute an independent juridical category, in contrast to both private and public property. Why is this important? Mattei reminds us that the question about common goods has an important constitutional dimension because our constitutions are documents where we lay down the long-term political goals on the basis of which we want to model our societies. This kind of modelling of society is clearly a democratic task and points to citizens exercising their political rights to participation. But even long-term goals need to be interpreted and reiterated from time to time. In addition to this, legal questions arise from the conflict between, for instance, states or companies planning to extract natural resources like oil and minerals, on the one hand, and indigenous rights to land and water of fundamental importance for the protection of traditional life forms, on the other. In all these cases, the fundamental value of common goods for long-term political goals in general, as well as for the protection of life forms in particular, should be respected. To sum

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up, then, there is an internal link between the constitution, common goods and democratic citizenship. An interesting point is that the concept of the commons, or the common goods, has been most developed in the marxist tradition, inspired by Marx’s analyses of the destruction of the commons in England as part of the violent creation of a workforce at the beginning of the industrial revolution (Hardt and Negri 2009: 138ff.; Harvey 2005: 159ff.). My focus, however, is how common goods are instrumental for democracy, both in the shape of a public sphere, and as conditions for what Rawls has called the fair value of political liberties, and for effective social freedom (Bohman 1997), i.e. values at the centre of the liberal political tradition in a broad sense.

What Are Common Goods? Which goods are collective, or common? Who should own them and how should we defend them when we risk losing them? First, there are different conceptions of these goods, and before we discuss the constitutional protection of common goods further, we could clarify the exact meaning of the concept of common goods according to Joseph Raz’s distinctions between different kinds of public goods and collective goods (Raz 1986: 198–209). Raz makes an important distinction between contingent and inherent public goods. Water, distributed to the benefit of all households, is a contingent public good, as it is possible to change the supply system to enable control over the distribution. Thus, while water can be privatized, inherent public goods cannot. These goods could be general beneficial features of a society, like tolerance, a good standard of education, and a general sense of respect, but also a street sign, or a traffic light. These goods are characterized by the fact that they cannot be directly controlled by others—their public character depends on the non-exclusivity of their enjoyment among the members of the society. Take the street sign: it will not wear out, even if large numbers of people are looking at it. Furthermore, it would be extremely difficult, costly and highly inefficient to limit its use to only one or a few persons and try to prevent others from looking at it too. A traffic light or clean air is a further example. On the other hand, some important inherent common goods will cease to exist if not protected. For instance, the language of an indigenous minority might need to be protected by certain cultural rights, and rights to communication, in order to survive as a minority language. If not, this language, which is of vital importance for the indigenous minority to survive as a group, would disappear. Due to their non-exclusivity, inherent

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public goods could also be called “collective goods”. In this chapter, I will use the terms contingent and inherent common goods in order to maintain the relation to the concept of the commons. Early modern European social theorists conceived of the common as the bounty of nature available to humanity. In Two Treatises of Government, Locke uses scriptural evidence to prove the existence of the common, proclaiming that “God, as King David says, Psal. Cvx. 16, has given the earth to the children of men, given it to mankind in common […] The earth, and all that is therein”, he continues, “is given to men for the support and comfort of their being” (Locke [1690] 2003: 111). However, Locke’s intention of depicting nature as “the common”, as we already know, is to justify the natural right to private property. My understanding of the concept of the commons builds on the analyses of Michael Hardt and Antonio Negri. In the introduction to Commonwealth, they start with a definition that echoes Locke’s conception of the common as the natural world, but broadens the perspective to include the human world in the next sentence: A democracy of the multitude is imaginable and possible only because we all share and participate in the common. By the common we mean, first of all, the common wealth of the material world—the air, the water, the fruits of the soil, and all nature’s bounty […] We consider the common also and more significantly those results of social production that are necessary for social interaction and further production, such as knowledges, languages, codes, information, affects and so forth (Hardt and Negri 2009: viii).

Because of the ideologies and owner-structures in most western societies, it is difficult to see the commons, according to the authors, although they are all around us. A university, for instance, is often owned by the state, and thus subjected to the decisions of shifting governments. As a consequence, the state can decide to privatize the ownership of this university. Because universities are our common, historical institutions for the production and dissemination of knowledge, and our guards of independent and critical thinking, the government thereby expropriates something which belongs to every member of the community, which the government only represents. In line with many other thinkers inspired by Marxism, the authors of Commonwealth refer to how neoliberal governments throughout the world have sought to privatize other common cultural products such as information, ideas, species of animals and plants, in order to make them into private property. Furthermore, they argue that such privatization should be resisted, but that it is a misunderstanding to think that public ownership is the only alternative. According to Mattei,

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private actors and states have taken part in the plunder of minerals and natural resources since the colonial era up to the neoliberal policies and demands of “structural adjustment” towards Latin America under US hegemony from the 1990s (Mattei and Nader 2008: chapter 2).

On Democracy and Common Goods: The Public Sphere A constitution lays down rules and principles for the exercise of democratic citizenship, and in this respect opens up a discursive space in the first place where claims to justification of norms and principles can be raised, criticised and defended. Among these norms and principles are those concerning the justification of property, be it private, public (in the sense of being owned by the state) or common. But what are the relations between constitutional rights, justification and discursive space? In Between Facts and Norms, the influential political philosopher Jürgen Habermas, reconstructs these relations as a circular flow of political power (Habermas 1992: chapter 4). This reconstruction is of great significance for my claim about the deep connection between democracy and the commons. And the reason is that a most important common good that we share in our democratic society, the public sphere, plays a decisive role in this circuit of power. In his Habilitationsschrift from 1961, Habermas conceived of the public sphere as a realm between the economic sphere of civil society and the state, where private people met as a public to set their own political agenda and criticise the public authorities. What characterised this sphere was that it was power-free, secular and orientated towards the public use of reason, and it was the modern state that instituted it by establishing civil rights which allow citizens to gather in order to discuss political topics. At the same time it became a critical institution through which citizens could hold the authorities accountable for their actions. In Between Facts and Norms Habermas widens the concept to include a highly complex network of various public sphere segments located at different levels, rooms and scales. Being a part of the circuit of political power, a significant feature is also the interplay between the informal discourses in weak publics in civil society and the formal discourses in the strong publics located within the parliamentary system: together with the competition between political parties, this interplay is a condition for the principle of popular sovereignty to be realised in modern complex societies. “The public sphere”, Habermas writes, “does its part in democratically legitimatising state action by selecting objects relevant for political decision-making, forming them into issues and bundling them into

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competing public opinions with more or less well-informed and reasoned arguments”. (Habermas 1992: 362). The public sphere cannot be organized by the state, as autonomy, and thus its independence from state administration, is the very condition for its function as the forum where individuals can meet spontaneously in order to reason together, protest against and criticize state power. Thus, to continue along the conceptual lines of Raz, it is not an instrumental, but an inherent public good. On the other hand, by privatization and commercialisation of newspapers and national broadcasting, or of the public spaces in urban areas, the public sphere is turned into a private, commodified sphere. An example of this is when the owners of the German quality newspaper Süddeutsche Zeitung announced in 2007 that a majority of stockholders wanted to sell their shares. Habermas then argued in the same newspaper for public financial support to avoid a sale, and his argument was clear: the state has a duty to protect what he calls the public good that is the quality press. The public sphere, being a force that stimulates and orientates citizens’ opinions and desires, supplies the population with a special kind of “energy”. When gas, electricity or water are at stake, the state must guarantee the energy supply for the population. “Shouldn’t it do likewise when this other type of ‘energy’ is at risk”, Habermas asked, “the absence of which will cause disruptions that harm the state?” (Habermas 2007). Habermas has shown with unequalled clarity how this common public sphere is a precondition for legitimate democratic decision-making. It is above all here that the citizens can exercise their right to express themselves without limits on topics, participation, critique, time or resources. In this way, the fundamental civil and political rights that the citizens must give each other through a historical practice of constitutionmaking, institutionalise the public sphere in the form of a public communicative space. In a subsequent step, the public opinion formed within the public is “sluiced” into the parliamentary political system through processes of discursive interchange. Thus, in a well-ordered democratic society, the communicative power that is constituted in the public sphere is transmitted to the administrative system orientated to formal decision-making, which is in turn made the object of public discussion and critique. It is no coincidence that Habermas refers to the political philosopher Hannah Arendt in his early work on the public sphere. In her major work on the human condition (Arendt [1958] 1998), Arendt develops a phenomenological concept of the public as a space for world-making, where objects and actions are constituted as real through a plurality of perspectives: their significance and meaning are constituted by being seen and heard from the perspective of a plurality of individuals.

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Above all, the specific human activity, speaking and acting in common, presupposes the presence of a plurality of others within a public space. In contrast, to spend a life labouring and producing things in the private realm deprives one of the common world that is constituted in the public. Thus, as a common space where individuals can appear as persons by being seen and heard, the public is a general beneficial feature of society, a non-exclusive realm which could be enjoyed by everybody. Hence it bears the characteristics of an inherent public good. Furthermore, Arendt points out how this realm is threatened in its very existence by the rise of capitalism. This threat is explained, according to Arendt, by a wave of expropriation of private property in the early stage of this historical-economic form. This is not as paradoxical as it seems, when one takes into account how much the public owes its existence to the private realm. The public as a realm where things become real through the plurality of perspectives is constituted in the first place by the boundary that separates it from the private: In the Greek polis, the very city-walls separated the political realm of freedom from the private oikos, the realm of necessity (Arendt [1958] 1998: 45–52). However, Arendt’s main argument is that the public is dependent on the existence of private property in order to exist. A private realm and a private fortune made a man his own master over the necessities of material and biological reproduction in the oikos. In most of our history, therefore, private property was a conceptual and juridical condition for civil and political rights. In our modern age, private property and wealth has lost its significance as a condition for political freedom. The modern proponents of private property, Arendt remarks with contempt, looked upon it as a their private fortune, as a commodity and as a condition for capital accumulation. In fact, Arendt echoes Karl Marx in Das Kapital when she claims that the early accumulation of capital was possible because of a growing disrespect for private property, which in turn opened up its expropriation: it is part of the essence of modern capitalist society that the private is an obstacle to the development of the productive forces. In the end, the rising wealth under capitalism not only succeeds in taking over the public realm, but in transforming the world according to its image. Through the politics of a deregulated “laissez-faire economy”, the interests of the capitalist class seized the public sphere to the detriment of the common interest of the people. If Arendt is pessimistic in her analyses of the decline of the public, her ability to capture its vulnerability and its character as a common good is unequalled (for a reading of Arendt in line with my argument, see Bernstein 1986).

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On Democracy and Common Goods: The Material Conditions The common goods play an important role with respect to the material conditions of a functioning democracy, especially a deliberative democracy. More precisely, they fulfil the minimal conditions for what we, borrowing an expression from Rawls, could call ”the fair value” of political liberties, compensating for the unequal resources and negative effects of social power in a capitalist system. In his seminal work, A Theory of Justice, John Rawls calls attention to the important fact that “the constitution must take steps to enhance the value of the equal rights of participation for all members of society […] But how is this fair value of these liberties to be secured?” (Rawls [1971] 1999: 197). Rawls mentions the distribution of property and wealth and the provision of government moneys on a regular basis as examples of compensating steps taken to preserve the fair value of liberties. However, we could extend the list further. To develop the necessary capacities and virtues that make up the core of the “ethos of democracy”,2 a number of basic resources such as health, education, access to media and public discussion, or complex ones such as self-respect as an independent and equal citizen are required: “In order to establish ‘effective social freedom’ as the basis for participation, a complex set of capabilities needs to be supported by an adequate distribution of goods” (Forst 2001: 371). Jürgen Habermas develops an argument that is similar to Rawls’s when he points out the material conditions of democracy. The circuit of political power referred to above is explained against the background of a discursive reconstruction of the “system of rights” which, according to him, expresses the normative self-understanding inherent in our national constitutions. This system of rights is established through the application of the discourse principle (D) on the legal form itself, i.e. on the constitutive right to individual liberties. According to D, “Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses” (Habermas 1992: 138). Habermas’s reconstruction of the system of rights now takes a reciprocal form where the individual liberties and the principle of democracy are constituted simultaneously. Fundamental rights and popular sovereignty, private and 2

For instance, the capacity to be reasonable in the sense of accepting the difference between ethical and moral justifications, the virtue of respecting the basic moral right to justification of every moral person, as well as other citizens as equal authors and addressees of the laws (Forst 2001: 362–66).

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public autonomy, can thus be said to be co-original: the first principle presupposes the other, and vice versa. Thus, none of them should have priority as they are equally important. The first three categories of rights in this system guarantee the private autonomy of the citizens as addressees of the law, whereas the fourth category establishes their political status as authors of the law. With regard to the purpose of establishing private and public autonomy, the four categories of rights listed above imply a fifth category, which I’ll spell out fully: Basic rights to the provision of living conditions that are socially, technologically and ecologically safeguarded, in so far as the current circumstances make this necessary if citizens are to have equal opportunities to utilize the civil rights listed in the first four categories (Habermas 1992: 156–157).

This category of rights is justified by the fact that certain material conditions must be met in order for the citizens to exercise their status as equal and free citizens. The question is how the “category” of common goods is related to welfare rights, given the way Habermas justifies them. A problematic aspect of the discourse theory of Habermas is that welfare rights are justified only in relation to democratic participation. They are given an instrumental justification with regard to realising the public autonomy of the citizens. Accordingly, they are not assigned any value in themselves, i.e. any intrinsic value (Eriksen and Weigård 2003: 152–53). This is obviously a narrow justification of welfare that meets only the minimal conditions of justice. Every person, regardless of her competence to participate in the democratic will-formation in society, should be entitled to those living conditions mentioned in the fifth category of rights. Accordingly, justice demands that the citizens should have their fair share of the common wealth of society, including the common goods, because they deserve equal respect and concern as persons, irrespective of their ability to exercise their civil and political rights. If the conditions mentioned above make for a minimal conception of justice, a maximal conception of justice “requires not only effective democratic participation, rather, this is just the precondition for a reciprocal and general justification of the basic social and economic structure of society” (Forst 2001: 371). According to Forst, Rawls’ difference principle turns out to be an adequate expression of this connection. This principle states that economic inequalities are compatible with justice as fairness as long as it is to the advantage of those worst off in society (Rawls [1971] 1999: 131). Forst then concludes with an important remark: “A just(ified) social order, then, is not already established once democratic structures of effective justification

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exist, it is established once the social structure is itself the result of reciprocal and general justification” (Forst 2001: 371).

Why We Need a Constitution for the Common Goods: Sovereign Indebtedness As many commentators have pointed out during the current economic crises in Europe and the U.S., things have now been turned upside-down. This is also the case when we take the perspective of the whole tradition of classical and modern political philosophy. Today, the European sovereign nation-state is being “evaluated” on the basis of its creditworthiness by central banks and rating agencies, while being de facto driven into bankruptcy. This “evaluation” is part of a historical turnaround or reversal where a private debt crisis is transformed into a public crisis. In the next round democracy is set aside in favour of “financial experts” whose main task now is responsible budgeting: As we now read almost every day in the papers, “the markets” have begun to dictate in unprecedented ways what presumably sovereign and democratic states may still do for their citizens and what they must refuse them […] In countries like Greece and Ireland, anything resembling democracy will be effectively suspended for many years; in order to behave “responsibly”, as defined by international markets and institutions, national governments will have to impose strict austerity, at the price of becoming increasingly unresponsive to their citizens (Streeck 2011: 26).

Ironically, these “experts” are to a great extent identical with the financial “players” from the Manhattan-based credit institutions and security firms that were responsible for the global debt crisis in the first place. And when the state defaults or is unable to pay its debt to the financial institutions, it is often driven to sell out public property, resources or even land areas. This post-democratic policy, where the banks dictate politics and the state saves the banks by means of income taxes and goods that belong to all, is due to the nature of the current economic crises which started with the collapse of the American financial system that occurred in 2008, and since turned into global economic and political crises. In a recent article, the German sociologist and economist Wolfgang Streeck claims that the series of economic crisis that occurred in the western world after the Second World War is a manifestation of a basic underlying tension in the political-economic configuration of what he calls “democratic capitalism” (Streeck 2011). This form of capitalism functioned extraordinarily well in the first two decades after the war and

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launched uninterrupted economic growth. However, Streeck’s analyses of the great recession from the late 1960s, and the three subsequent crises that followed, suggest that disequilibrium and instability is the rule rather than the exception. In this respect, he expresses a main insight that runs through the whole tradition of critical theory, from Marx to Habermas, that capitalism and democracy do not sit easily together. With the crash of privatized Keynesianism in 2008, the crisis of post-war capitalism entered its fourth and latest stage, after the successive eras of inflation, public deficits and private indebtedness. According to Streeck, political power was deployed to make future resources available for securing present social peace, “in that states more or less voluntarily took upon themselves a significant share of the new debt originally created in the private sector, so as to reassure private-sector creditors” (Streeck 2011: 20–21). Since 2008, a distributional conflict under democratic capitalism between overextended sovereign nation-states and “financial markets” has turned into a complicated tug-of-war […] Where in the past workers struggled with employers, citizens with finance ministers, and private debtors with private banks, it is now financial institutions wrestling with the very states that they had only recently blackmailed into saving them (Streeck 2011: 20–21).

It is under these conditions we need a constitution protecting common goods from falling victim to this distributional conflict. The result of these sequential economic disturbances after the Second World War is political disorder, owing to a decline in the political manageability of democratic capitalism, more in some countries than in others, but also overall, in the emerging global political-economic system. Democracy is as much at risk as the economy in the current crisis, if not more, according to Streeck. Not only has the systemic integration of the economy has become precarious, but so also has the social integration of the democratic nation-state, due to austerity policies severely affecting the capacity of the national states to mediate between the rights of the citizens and the requirements of capital accumulation. This situation of systemic and social disintegration, and the subsequent decline of the scope for democratic electoral politics should remind us of the importance of protecting the common goods of society. History has so far has taught us that when the state no longer fulfils its vital function of mediating between democratic will-formation based on enlightening deliberations in the public sphere on the one hand, and the economy and state administration on the other, the first becomes a victim of the instrumental power of the latter two systems. An example of this is when the states in the western

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world, under the dominance of U.S. unilateralism, started in the 1990s to follow the political and economic theory of neoliberalism, the product of conservative economic ideology made accessible to non-economists by economists from the Austrian School and the Chicago School. The recipe presented as a solution to all social, political or economic problems by these economists was the market mechanism, and a political doctrine favouring free enterprise, free markets and free trade through deregulation, to the detriment of democratic politics. This political strategy of the abdication of politics paved the way for another kind of capital accumulation based on dispossession, and for a political economy constituting an important threat to the commons.

Accumulation by Dispossession and the Destruction of Common Goods Marx described the original, or primitive, accumulation, as the first step of capitalist development. The expropriation of land rights from serfs and peasants, including rights to common land, in England in the sixteenth century was central to this plunder, and a precondition for the industrial revolution. But, according to the geographer David Harvey, Marx’s description of primitive accumulation reveals a wide range of processes, like the commodification and privatization of land and the forceful expulsion of peasant populations; conversion of various forms of property rights (common, collective, state etc.) into exclusive private property rights (most spectacularly represented in China); commodification of labour power […] the suppression of rights to the commons, and colonial, neo-colonial and imperial processes of appropriation of assets (including natural resources) […] (Harvey 2005: 159).

Ultimately, even the national debt and the credit system is a radical means of primitive accumulation, according to Harvey. Accumulation by dispossession is a serious threat to public, or common, goods as is easily seen when it comes to privatization and commodification of public utilities of all kinds, welfare provisions and public institutions, including universities. Harvey concludes his overview with the following assessment: “Reversion of common property rights won through years of hard class struggle into the private domain has been one of the most egregious of all policies of dispossession” (Harvey 2005: 161). Harvey describes the main achievement of neoliberalism as redistributive, rather than as a recipe for generating growth and wealth,

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and the main redistributive mechanism is precisely the kind of accumulation by dispossession described above. The term “redistributive” here should be read in contrast to “productive”, and points to the exploitive character of capital accumulation posed by the neoliberal economic doctrine. That is, accumulation is seen as primarily the expropriation of existing wealth. Keynesian economic politics, often referred to as embedded liberalism, was characterised by a framework of an expanding welfare state, high taxes, workers’ right to collective bargaining and a commitment to full employment. The neoliberal state becomes a prime agent in the reversion of this kind of redistributive politics. And what is reversed is the flow of money and wealth from the upper classes to the lower through the pursuit of privatisation schemes and cutbacks in state expenditures. Moreover, “deregulation allowed the financial systems to become one of the main centres of redistributive activity through speculation, predation, fraud, and thievery” (Harvey 2005: 161). The primary aim of this economic engine under the dominance of the U.S. and China has been to open up new fields of capital accumulation in domains hitherto regarded as off-limits to the calculus of profitability. Mattei comes close to Harvey when he says that the definition can be extended so that accumulation also covers the privatization of goods built by means of taxation and the work of all: public transport, telecommunication, cultural goods, the cultivated landscape, schools and universities, intellectual ideas (common or traditional/cultural knowledge) and hospitals. In fact, all this can be described as a form of enclosing of the commons. Furthermore, primitive accumulation has accelerated over the last three decades, for instance in the form of the expulsion of peasant populations in Mexico and China, where 70 million peasants have been displaced in recent times (Harvey 2005: 159). This fact in itself makes the term “original” sound a bit odd, bringing Harvey to substitute it with the concept of “accumulation by dispossession”. According to Hardt and Negri, we are still under the rule of private property in terms of commodities and condition for capital accumulation, the historical roots of which Arendt analysed in her book. In a pamphlet, they start out with the cycle of struggles that during the course of 2011 “shattered our common sense and started to construct a new one” (Hardt and Negri 2012: 2). In fact, they interpret the whole series of protests from Tunisia and the Tahrir Square in Egypt to Wall Street, starting in 2011, as struggles for the common. What all these movements seem to contest are the injustices of a whole economic and social system constituting a threat to the commons. What they seem to say is: “We are the owners of the public space—not the banks, the political class or the multinationals!”

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This threat towards the commons has its combined source in authoritarian rulers (or authoritarian tendencies within democratically elected governments) and an intensified economic liberalism leading to an increasing and ever more visible commercialisation of the public space. A recent example is the Turkish authorities’ decision to expropriate the Taksim Square in Istanbul for the purpose of building a shopping centre. Besides being one of the few remaining public spaces in the city, Taksim is a central political public place where groups and parties from the whole political spectre used to meet on occasions like the first of May (Pamuk 2013). In June 2013 thousands of people gathered to demonstrate against the government’s plans, but the protests soon were directed against the authoritarian rule of Recep Erdo÷an, the prime minister of Turkey, and the police brutality used to stop the demonstrations. Today the rule of private property also takes the form of debt becoming the general condition of social life, and the hegemony of finance and the banks has produced the indebted. Indebtedness has been a critical point within the Spanish protest movement, the Indignados, as well as within the Occupy movement that it inspired. Capital increasingly exploits the entire range of our productive capacities, our bodies and our minds, our capacities for communication, our intelligence and creativity, our affective relations with each other, and more. Life itself has been put to work… In order to survive, the indebted must sell his or her entire time of life (Hardt and Negri 2012:12).

And as we have seen, this private debt crisis is transformed into a public crisis. In this way democracy suffers the consequences of deep-seated structural deficiencies within our political economy, which have been with us for over thirty years.

The Ambiguity of the Rule of Law Accumulation by dispossession is an effective tool in the process of commodification and privatization of common goods, but it could not play that role without the supporting role of the rule of law. That there is an ambiguity in modern law is part of the core argument already in Hegel. According to Hegel, this ambiguity was built into not only law itself, but also into “bourgeois” society as a whole. He discovers a deep cleavage in modern, capitalist society, a society which had not succeeded in realizing the ideal of equality (Hegel [1821] 2001: 164, § 200). Hegel discovers the contradiction between the concept of law (Recht), the idea of law (right), and how it is being realized in capitalist society. The idea of law (right) is

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freedom, Hegel writes in the first paragraph of his Philosophy of Right. But this freedom is being realized in the shape of some particular interests: in the capitalist society only some are free. As a consequence, large fortunes are amassed while at the same time the work of the individual labourer is marked with dependence and distress (Hegel [1821] 2001: 188, § 243). Today, there is a harsh contradiction between the affluent and privileged countries in the northern/western parts of the world, and the dominated and poor countries in the south. But, as the quotation testifies, in Hegel we already find analyses of the contradiction between the concept of law (right), and social structures that prevent the idea of freedom inherent in this concept, from being realized. Accordingly, the sad story of the rule of law is that it displays two faces, one of civil liberty and empowerment, and another of colonial and neoliberal plunder: law has also functioned as an instrument in the service of western cultural and economic domination. In their provocative book Plunder: When the Rule of Law is Illegal, from 2008, Ugo Mattei and Laura Nader trace the critical supporting role that the rule of law has played in plunder, starting with the economic engine of plunder which is neoliberalism. But this is also a story of continuity, where law from the beginning has institutionalized plunder in the colonial relationship, sanctioning a pattern of subjugation of weaker populations to stronger ones. Without legal institutions and stable local organisations, the advantages of what Marx called primitive accumulation of capital based on the “first come, first served” principle, would have been impossible to secure. And beneath the image of decolonization during the Cold War years, the Monroe Doctrine kept Latin America solidly under U.S. influence. Under American hegemony the CIA provided the straight power and political brutality, while the first law and development movement provided a robust rhetoric of the rule of law, and of its lack. These forces [...] ended up supporting fascist dictatorships, invariably favouring plunder by large US corporations, such as the notorious United Fruit Company (Mattei and Nader 2008: 29).

After decolonization, a neo-colonial scheme was constructed under the direct influence of the political and economic theory of neoliberalism. “The ideological weapon used by the new local elites and by their Wall Street counterparts, is the desire to build efficient markets governed by the rule of law” (Mattei and Nader 2008: 359). Here the authors of Plunder use the example of the bonanza of Argentina, a former Spanish colony. Wrapped in the rhetoric of democracy and the rule of law, and with the collaboration of international financial institutions, the Chicago-trained

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economist and Minister of Economy, Domingo Cavallo, managed to secure stabilization and alignment of the Argentinean model to the dictates of the neoliberal policy. After about ten years, the Argentinean people found out that their economy, including the most valuable part of their public sector, and in particular their savings, had been, practically speaking, stolen.

Juridification and Deliberative Constitutionalism The theory of accumulation by dispossession neatly fits into Habermas’s thesis that our socio-cultural lifeworld in general, and democratic politics in particular, are to a great extent colonised by the two subsystems of capitalist economy and state administration. According to Habermas, western modernity has progressed through a process of legal codification following four stages, each stage reflecting a tension between the lifeworld and the dynamics of self-contained subsystems. During the era of the absolutist state in Europe, private law served the institutionalization of contractual rights and obligations of persons as the condition of capitalist enterprise in a market economy. Thus, in the bourgeois state, the real lifeworld exists at the disposal of unaccountable market forces and state administration. As this leads to colonization of the lifeworld, Habermas interprets the latter three stages as subsequent attempts to resist the encroachment of the two autonomous subsystems. Thus, law played the socially important role of binding the political sovereign through a constitution (and guaranteeing civil rights), of institutionalizing democracy (through guaranteeing extensive political rights) and the welfare state (through guaranteeing social welfare entitlements). The two last steps in the evolution of law should be particularly understood as reactive ways to protect members of capitalist society from the harsh consequences of the “free market society” in the same period. This perspective is also perfectly in line with Karl Polanyi’s theory in The Great Transformation from 1944, which, together with the work of John Maynard Keynes, paved the way for the post-war international regulatory economic regime (Polanyi [1944] 2001: part two). This regulatory regime, developed on the ruins of a Europe ridden by capitalist crises and two world wars, and with an eye to the importance of social protection, has now been under attack from neoliberal economists and power brokers, acting towards influencing the U.S. government in Washington for over thirty years. That is why Habermas’s theory of juridification from 1981 gains new actuality. In fact, as the neoliberal economic regime paves its way by means of rule of law, the first historically

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crucial step in the evolution of law, the institutionalization of market economy through the rule of law in the sixteenth century, repeats itself on a global scale. This time, law is needed to institutionalize protective mechanisms against the consequences of capitalism on a global level. But now it’s not about creating a historically new way of organising capitalist society, as in the case of the welfare state, but about protecting this hardwon redistributive principle from the policy of deregulation. When Mattei claims that the question of common goods is of a constitutional nature, it is in line with Habermas’s theory of the deliberative constitution. Politics should be understood as the realization of the system of rights that is enshrined in our modern, national constitutions. How can this theory be productive when it comes to the need to protect common goods, i.e. goods that belong to the people, against a weak state under pressure from supranational and national central banks, private banks and the International Monetary Fund (IMF)? The legal question of constitutional protection is at the same time a question of democracy. The reason for this is that legal norms have to be justified towards those who are going to live by them in order to be legitimate. Jürgen Habermas’s deliberative constitutionalism defends a dynamic relationship between constitutional and ordinary politics. It provides a robust model of a continuous constitutional development that is open to new social and historical circumstances. According to one commentator, Habermas proposes a reflexive and continuous constitutional process by stressing the role of ordinary political and public deliberations for influencing constitutional normativity and transformation. With this in mind, I interpret Habermas’s constitution as being […] open to those constitutional changes that are possible through the contribution of citizens’ ordinary political legislation (Vargova 2005: 376).

The purpose of our constitutions is, in other words, to fulfill the system of rights of which they are historical expressions with different national forms, and to do this under new historical circumstances. That is, we, as citizens and legislators, must interpret this system better, give it a more suitable institutionalization and pull out its contents in a more radical way. Consequently, the constitution unfolds historically as a permanent practice of civil self-government through the reflexive interpretation and elaboration of the modern, unfulfilled constitutional traditions. If we interpret the modern constitution as a historically unfolding project for the elaboration and realization of a system of constitutional rights, one of the first amendments we should go for as citizens, is to seize

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this historical constitutional moment and entrench those rights and obligations within our national constitutions necessary to protect the common goods that belong to the people. In this way, constitutional politics could not only become a tool to consolidate democracy and protect it from the colonizing encroachments in the form of commodification and privatization of common goods. It could also take on a more active role in our struggle for a just redistribution of resources globally.

Communicative Reason and Language: Our Ultimate Common Good Hardt and Negri’s reference to language as a common good that is necessary for social interaction and further production highlights language as an action system. In this last section, I argue that there is an action binding potential in linguistically mediated interaction that is instrumental to the maintenance of the social order, and that this kind of communicative rationality is an ultimate common good of vital importance to all of us. In Theory of Communicative Action, Habermas reconstructs what we are doing when we coordinate our action plans through the everyday use of language (Habermas 1981: part III). When we speak and act in common we implicitly or explicitly ask for reasons: what I just said might be true (or morally right), but you may know better and challenge my validity claim by asking for better reasons that could in fact substantiate that what I said is true or morally right. Language use is constantly related to insights in this sense, and communicative freedom is precisely the freedom to say “no” to an utterance by asking for better reasons for the truth or rightness of the statement expressed by the utterance. Thus, language contains a normative structure that is expressed in this reconstruction of linguistically mediated coordination of actions based on mutual understanding of validity claims. Accordingly, we call that person “reasonable” who is able to give good reasons for his statement and who orientates himself to the force of the better argument. The communicative rationality revealed in this capacity to communicate and interact is necessary in order to maintain society as a social fabric regulated by norms and institutions, as well as a place where knowledge can be developed and transferred. This kind of rationality, then, seems to qualify as an inherent public, or common, good as it cannot be directly controlled by others, and because its public character depends on the non-exclusivity of its enjoyment among the members of the society. This capacity is nevertheless precarious and constantly in danger of being marginalised by other kinds of rationality that are operative in, for

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instance, the economic sector. The commodification and monetization of everything that Harvey refers to is one example of this. So how can this capacity be strengthened in order to make a difference in the world? By making the normative structure in linguistically mediated interaction the backbone of his theory of law and democracy, Habermas is able to show how communicative freedom can be institutionalised by means of a legally guaranteed legislative practice. The pulse of this practice is the discussion among citizens in the political public sphere. Thus, what we ultimately need to protect is the quality of life in common where there is a balance between the communicative reason based on reason-giving and mutual understanding in everyday contexts of private and public spheres, on the one hand, and the cognitive-instrumental reason that operates within expert cultures like economy and state administration, on the other. But couldn’t the democratic circulation of power, itself institutionalised by fundamental rights and freedoms, be a candidate for such a task? In the political public sphere deliberations take place, and information is transmitted, between autonomous and self-organised publics, social movements, and economic, political, scientific, administrative and literary expert cultures. As a result, contacting surfaces are created between experts and elites necessary for a modern capitalist society to function properly, and citizens taking part in ordinary everyday practices of different kinds. In this way, the public sphere becomes a filter between the specialised knowledge stemming from expert cultures, and the decision-making procedures within the formal political system. Thus, communicative reason, expressed in our capacity to let our actions be guided by a common understanding of what is true or morally right, could assert itself against the instrumental reason that has dominated our modern capitalist societies up till now. The result could be a better balance between the different perspectives of political, economic, moral, scientific and aesthetic expert cultures, and the perspectives of lay people formed within everyday contexts. When put on the agenda within the formal parliamentary system, this qualified and enlightened public opinion could be transformed into communicative power informing the legislative process.

Conclusion The protection of common goods in our liberal constitutions is weak compared to the protection of private property. The result adds up to a constitutional irresponsibility as governments in office can freely sell goods that belong to all in order to finance their politics or pay their debts. It is therefore high time for the citizens and their representatives in our

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liberal democracies to elaborate a theoretical framework whereby the common goods constitute an independent juridical category, in contrast to both private and public property. “The common” comprise natural as well as non-natural goods like language and knowledge, and do represent an important material and cultural condition for the realisation of citizens’ capacity to exercise their right to democratic participation and justification. At the same time, however, justice demands that the citizens should have their fair share of the common wealth of society, including the common goods, irrespective of their capacity to participate. In the western world, politicians have been busy dismantling democracy led by a blind faith in the blessing of the market mechanism as a universal solution to the management of sectors reaching from water supply and fisheries to universities. The dark side of this kind of post-democratic politics has been the commodification and privatization of the common goods through the rise of accumulation by dispossession. This testifies to the rule of law as a requisite for the integration of global markets through two modern steering-media, money and power, i.e. for a neoliberal politics. Now, the task before us is to bring forth and explicate the normative selfunderstandings inherent in our democratic constitutions. When framing their constitutions through deliberation and interpretation, the citizens should aim at a constitution which shakes western constitutionalism’s ordinary coupling of liberty to the free market to the depths of its foundations. A weakness of the model of possessive individualism in Locke is its inability to explicate the status of the commons as legal category transcending both the private and the public. In addition, this model continues to uphold the reifying image of liberty as equivalent to the right to own property. The point is that property and markets must be regulated if the aim is the most extensive scheme of equal basic liberties for everyone, and not only for a few. For this regulation to be legitimate, it must be grounded in the informed, but critical, debates where the citizens can influence the interpretation and determination of the content and limits of private property rights and the market economy. To enshrine in the constitution fundamental rights protecting the commons is their primary task under the present circumstances of economic globalization.

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References Arendt, Hannah. [1958] 1998. The Human Condition. Chicago: Chicago University Press Bernstein, Richard J. 1986. “Rethinking the Social and the Political”. In Philosophical profiles, 238–259. Cambridge: Polity Press. Bohman, James. 1997. “Deliberative Democracy and Effective Social Freedom. Capabilities, Resources and Opportunities”. In Deliberative Democracy. Essays on Reason and Politics, edited by James Bohman and William Rehg, 321–348. Cambridge: MIT Press. Eriksen, Erik O. and Jarle Weigård. 2003. Understanding Habermas. London and New York: Continuum. Forst, Rainer. 2001. “The Rule of Reasons. Three Models of Deliberative Democracy”. Ratio Juris14 (4): 345–78. Habermas, Jürgen. 1981. Theorie des kommunikativen Handels. Band II. Frankfurt am Main: Suhrkamp Verlag. —. 1992. Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtstaats. Frankfurt am Main: Suhrkamp. Verlag. —. 2007. “Keine Demokratie kann sich das leisten”. Süddeutsche Zeitung, May 16. Hardt, Michael and Negri, Antonio. 2009. Commonwealth. Cambridge (MA): The Belknap Press of Harvard University Press. Hardt, Michael and Negri, Antonio. 2012. Declaration. New York: Argo Navis Author Services. Harvey, David. 2003. The New Imperialism. Oxford: Oxford University Press. —. 2005. A Brief History of Neoliberalism. Oxford: Oxford University Press. Hegel, G.W.F. [1821] 2001. Philosophy of Right. Translated by S.W. Dyde. Kitchener, Ontario: Batoche Books. Holst, Cathrine. 2004. “Frihet og eiendom”. Klassekampen (Norwegian newspaper), February 17 http://www.klassekampen.no/9509/article/item/null# (Accessed September 19, 2013). Locke, John. [1690] 2003. Two Treatises of Government. New Haven and London: Yale University Press. Marx, Karl. [1867] 2008. Das Kapital. Kritik an der politischen Ökonomie. Zweites Buch, Berlin: Akademie Verlag. Mattei, Ugo and Nader, Laura. 2008. Plunder: When the Rule of Law is Illegal. Oxford: Blackwell.

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Mattei, Ugo. 2011. “A Constitution for the Common Goods”. Le Monde Diplomatique, December. Pamuk, Orhan. 2013. “Taksim-plassen i folkets minne”. Aftenposten (Norwegian newspaper), June 10. Polanyi, Karl. [1944] 2001. The Great Transformation. Boston: Beacon Press. Rawls, John. [1971] 1999. A Theory of Justice. Cambridge (Mass.): Harvard University Press. Streeck, Wolfgang. 2011. “The Crisis of Democratic Capitalism”. New Left Review 71: 5–29. Vargova, Mariela. 2005. “Democratic Deficits of a Dualist Deliberative Constitutionalism: Bruce Ackerman and Jürgen Habermas”. Ratio Juris 18 (3): 365–86. Wedel, Janine R. 2009. Shadow Elite. New York: Basic Books.

CHAPTER TEN BEYOND THE NATION-STATE: THE EUROPEAN UNION AND SUPRANATIONAL DEMOCRACY MARTA POSTIGO1

Introduction One of the problems with writing about the European Union is that the characteristics described today may have changed within a fairly short time. At the time of writing, the European Union is a singular political union of twenty-eight member states that share their sovereignty with common institutions. But it is quite likely that by the time you read this chapter another state will have joined the Union. 2 Or, on the contrary, some countries may have opted to totally, or partially, leave it (in fact, the British Prime Minister, David Cameron, has said that he would hold a referendum on the membership of the United Kingdom to the European Union if he wins the next election in 2015). It could also be that by the time the reader has this text in his or her hands, the new German coalition may have promoted a new direction in European economic management. It is also possible, as on other occasions, that the European Union emerges from the crisis strengthened by better fiscal, financial and political integration. In general, this uncertainty over the future of the European Union (and the Eurozone) is a symptom of its dynamism and open-ended architecture, but also reflects the fact that the political, fiscal and financial integration is 1 University of Malaga. This chapter is part of the Civic Constellation project (Spain’s National Research Fund, FFI2011–23388). 2 In 2013, Croatia became the 28th member state after the accession negotiations were completed. Other countries that have applied for membership are, Iceland, Kosovo and Turkey and the constituent countries of the former Yugoslavia.

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still incomplete. This text is a modest reflection on the singularity of the European Union as a supranational political community, and argues that, to strengthen the stability of both the Eurozone, and the European Union as a whole, further progress with fiscal, financial and political integration is necessary. Some of the ways that have been suggested to make the European Union more democratic, and to make its decisions more transparent will be briefly highlighted, stressing the need to improve democratic deliberation at supranational level. The final aim of this chapter is to draw attention to the challenges that exist in devising democratisation mechanisms in a non-national political community such as the European Union.

The Achievements and Limits of the European Integration The European integration project emerged from the rubble of World War II with the aim of keeping the peace and bringing prosperity to a continent divided and destroyed by war. The European Union is the fruit of the endeavours of a group of politicians and bureaucrats, “from resistance fighters to lawyers”, who more than sixty years ago erected the first pillars of integration with the aim of establishing long-lasting alliances between states that were traditionally at odds (Monnet 1986: 383–507).3 Undoubtedly, the integration process has brought peace, prosperity and wellbeing to Europe.4 The European continent has experienced a profound transformation since 1951. On the one hand, the European Union has expanded towards the south and the east, encouraging the transition to democracy in the former European dictatorships and ending the division between the democratic west and the communist east. 5 From the six 3

See the official web page of the European Union, “The history of the European Union”, http://europa.eu/about-eu/eu-history/index_en.htm (accessed on 28 March, 2013). 4 The European Union has a population of about half billion, which makes it the third largest in the world after China and India. Its GDP is larger than that of the United States (€12,945,402 in 2012). Although the European Union is home to only 7 per cent of the world’s population, its trade with the rest of the world accounts for approximately 20 per cent of global imports and exports. It has become the world’s largest exporter and the second largest importer. See the official web page of the European Union, http://europa.eu/about-eu/facts-figures/ living/index_en.htm and http://europa.eu/about-eu/facts-figures/economy/index_en .htm (accessed on 6 February, 2014). 5 In 2004, Slovakia, Slovenia, Estonia, Latvia, Lithuania, Hungary, Poland and the Czech Republic, together with the Mediterranean islands of Cyprus and Malta,

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founding states of the European Coal and Steel Community in 1951 (Germany, France, Italy, the Netherlands, Belgium and Luxembourg) the Union has expanded, now consisting of twenty-eight member states. On the other hand, the Treaty of the European Union, signed in Maastricht on February 7 1992, which came into effect in 1993, completed the creation of the single market (the “four freedoms” of movement of goods, services, people and capital); reinforced the cooperation among states in terms of common foreign and security policy, as well as in justice and home affairs; and established the basis for the creation of the common currency, the euro.6 The European Union thus currently comprises twenty-eight members which, without losing their autonomy, share their sovereignty with the supranational institutions of the European Union; seventeen of them have a common currency. It is the only supranational organisation that has a parliament chosen by direct universal suffrage, the European Parliament, which is made up of 766 members elected in the twenty-eight member states for a five-year period. The consolidated version of the Treaty of the European Union (TEU), which was signed in Lisbon and came into effect in December 2009, has strengthened the role of the European Parliament and expanded its powers by way of what has been called the “Ordinary Legislative Procedure”. This procedure, which is also called “co-decision”, requires European legislation to be approved jointly by the European Council and the Parliament, following a proposal from the European Commission. Article 10 of the Treaty of Lisbon states that the European Union is based around the principles of representative democracy, and defines the European Parliament as the body that represents its citizens. It also stresses that citizens should participate in the democratic life of the Union, and that political decisions have to be transparent to, and accessible for, citizens. In line with this last point, the Treaty establishes that citizens may participate became members of the European Union. In 2007 Bulgaria and Romania joined, thus ending the division of the continent since 1945. Also see note 1 above. 6 There are 17 countries in the European Union that are either part of the Eurozone or share the common currency, the euro: Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovakia, Slovenia and Spain. The euro is also used unofficially in Kosovo, Montenegro and Andorra. Some 330 million Europeans use this currency on a daily basis. The euro is the second reserve currency and the most used in the world after the U.S. dollar. See the official web page of the European Union, http://europa.eu/about-eu/basic-information/money/euro/index_ en.htm (accessed on 31 March 2013).

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directly in the legislative process through the “citizens’ initiative”. By submitting a million signatures, European citizens can invite the European Commission to put forward a new legislative proposal. The Treaty has also given national parliaments more power to examine (and veto) the laws of the European Union before they are approved.7 Despite these achievements, the European Union is perceived as a set of institutions which are excessively bureaucratic, where decisions are made without transparency or democratic accountability. The supranational institutions of the Union are remote from the citizens, they do not have enough transparency and they lack the control mechanisms that are present in the member states. The economic crisis has certainly shown that there are gaps in the institutional structure of the European Union and has revived the debate about what has been called democratic deficit. Despite the reforms introduced by the Treaty of Lisbon to make decision-making processes more democratic and efficient, the economic crisis has thrown into relief the “inter-governmental excesses” of the European Union. The European Parliament and the European Commission have been practically marginalised when it comes to the management and governance of the economic crisis (Kröger and Friedrich 2013: 158; Bellamy and Castiglione 2013: 2017–8; Schmidt 2012). Together with this, the inter-governmental management of the economic crisis has highlighted the profound power imbalances that exist between states. Whilst some states decide on the direction of European economic policies, others feel incapable of changing the fiscal and austerity policy directed from Berlin and Frankfurt (Kröger and Friedrich 2013: 159; Weiler 2012: 830). Tensions between creditor and debtor countries run deep and threaten to destabilise the European Union.8 In the meantime, citizens are astonished to see that they hardly have any decision-making ability or influence on the economic policies decided at the supranational level which directly affect their savings, income, employment opportunities and welfare. As a result, the crisis has revived the debate about the democratic deficit in the European Union. Providing legitimacy to the integration project certainly remains the most important business left unfinished. As stressed by Joseph H.H. Weiler, the European unification process has been led from above and legitimised by “messianic politics”, that is, by the promises of prosperity and peace of the founding fathers (Weiler 2012: 7

The full text of the Treaty of Lisbon is available at: http://europa.eu/lisbon_treaty/full_text/index_en.htm (accessed on 1 April, 2013). 8 “Chipre agrava las fisuras políticas del euro”, (“Cyprus aggravates the political fractures in the euro”) El País, 31 March, 2013, 24.

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825–41). Yet, the integration process also needs public support and legitimation from below (by the citizens). In addition, the European Union has been too complacent with financial and economic markets but too narrow in terms of political, fiscal and financial integration. For these reasons, it is worth exploring how to endow the European Union with greater legitimacy, democracy and transparency. In the pages that follow, though, only a modest reflection on some of the proposals that have been advanced to democratise the European Union will be discussed. Democratic deliberation that takes place at supranational level, that is, in the European Parliament, will be highlighted as a suitable way towards the democratisation of the European Union.

The Democratisation of the European Union: Representation, Deliberation and Participation This section focuses on the singular political nature of the European Union and discusses some of the proposals that have been advanced, and implemented, in recent years to make the decision-making processes more democratic in the European Union. Accordingly, the following pages will present a general description of the political system (representative democracy) that governs in the European Union, stressing the need for more democratic (and parliamentary) deliberation at supranational level. To start with the analysis, it should be noted that the European Union is equipped with a multi-level, decentralised decision-making system that forces us to re-think the mechanisms of representation, citizenship and accountability of governments, beyond the national framework. The European Union is certainly not a state and does not conform to the characteristics of a conventional representational system, but neither is it merely a form of inter-governmental cooperation. The institutional structure of the European Union comprises autonomous supranational bodies such as the European Commission, the European Parliament and the Court of Justice of the European Communities. But it also includes inter-governmental decision-making institutions such as the European Council and the Council (or Council of the European Union) (Bellamy and Castiglione 2013: 206; Kröger and Friedrich 2013; Beck and Grande 2006: 81–83). As mentioned earlier, Article 10 of the Treaty of Lisbon establishes that the European Union is founded on the principles of representative democracy and distinguishes three different channels of citizens’ representation: directly via elections to the European Parliament, indirectly via their heads of state or government in the European Council or in the

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Council by their government, and in domestic elections which hold these last democratically accountable to national parliaments or to citizens. Therefore, the singular representative system of the European Union comprises at least two subjectivities, that is, citizens and states. Whilst the European Parliament represents European citizens, the European Council and the Council represent the states. It can be argued that the first one reflects a possible putative common good for the “European people”, whilst the European Council and the Council of Ministers present the vision of the European Union as an agreement among states which try to protect their mutual self-interest (Kröger and Friedrich 2013: 166; Bellamy and Castiglione 2013: 206; Bellamy 2013: 508). However, in the European Union, political responsibility and democratic accountability are guaranteed at national, not supranational, level. The European leaders (the Heads of State and Government of the member states) who meet in the European Council and the ministers who attend the Council meetings represent the interests of the member states and are accountable to their electorates and national parliaments (Article 10.2 TEU). In that sense, there is no real European demos represented by European leaders to whom they are accountable (Bellamy and Castiglione 2013: 214–20). The ministers and the Heads of State and Government who make decisions in the European Union are frequently concerned about the effect that their negotiations could have on their national electorates. This is a system in which, although decisions made at the supranational level are decisive for the life of many citizens of the Union, accountability occurs on a national basis by elected representatives to their voters and national parliaments. For this reason, it can be argued that political representation and accountability by representatives to voters fail at a European level (Weiler 2012: 729, 780). As stated by Sandra Kröger and David Friedrich (2013: 165), the relationship between representatives and those they represent, at European level, is watered down by opaque processes of intergovernmental negotiation. Likewise, Anand Menon and Stephen Weartherill, Ulrich Beck and Edgar Grande are of the opinion that states have ceded part of their sovereignty to the supranational institutions without proper parliamentary scrutiny of the executive bodies of the European Union (2007: 3; 2006: 316). For its part, in spite of its recent improvements, the European Parliament has not yet acquired sufficient democratic legitimacy and support from the European citizens. European elections continue to be thought of as being of lesser importance and are dominated by domestic matters. The members of the European Parliament represent national

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parties and constituencies and are not authorised or able to promote panEuropean interests. To a large extent, the role of the European Parliament consists in legitimising the laws, rather than in legislating (Bellamy and Castiglione 2013: 214–15; Lord 2013: 243, 253). And from the deliberative point of view, the decision-making processes of the “trialogue” (Parliament, Commission and Council) are performed too often through a complex network of offices, commissions and committees without sufficient transparency or parliamentary debate. Moreover, as has been already mentioned, the chamber has been largely absent in the management of the crisis. But what is even more striking is that it is unclear what model of democracy best fits the reality of a non-state polity such as the European Union. Given the different political subjectivities that coexist in the Union, such as citizens and states: Should and could representative democracy continue to be linked to the framework of the national state? Should and could the institutions and procedures of representative democracy be reproduced at the supranational level? Who should be the subjects of democracy in the European Union: European citizens, the citizens of the states, the states themselves or all of them? “Can the diversity of contrasting and/or overlapping constituencies still be bound together by a common good, a public interest, and if so what could that be?”, “Which problems does a fragmented constituency landscape pose for political equality with public control?” (Kröger and Friedrich 2013: 165, 167). How can the European Union be made more transparent, accountable and democratic? Should models alternative to representative democracy be devised that are compatible with the singularity of the European Union? Undoubtedly, these questions cannot be addressed in detail throughout these pages. However, it should be noted that, as stated by authors such as Philippe Schmitter, and Ulrich Beck and Edgar Grande, regarding the European Union the unfinished business is not only to analyse how it can be democratised, but what must be democratised (Schmitter 2001: 2; Beck and Grande 2006: 317–18). After more than six decades of integration no consensus exists as to whether the European Union should become a federal state, a simple form of inter-governmental economic cooperation, an example of the “post-national constellation” or a “cosmopolitan Empire”.9 Different visions of Europe compete amongst themselves. The disparity of perspectives on the European Union hinders the consensus on 9

On European federalism see Burgess 2000; Castaldi 2007: 1–93; Castaldi 2010: 78–109; Dosenrode 2010: 1–28. The notion of a “post-national constellation” is owed to Habermas 1998. The vision of a European “cosmopolitan empire” has been developed and explained at length in Beck and Grande 2006.

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the institutional reforms needed to move it forward and provide it with better democratic governance and legitimacy. As has been underlined by Beck and Grande, although the failure or success of the integration project depends not only on the understanding of it, that understanding is a fundamental part of the birth and development of the European Union (Beck and Grande 2006: 18–19). Schmitter, for example, believes that this is not the right time to think of a sudden and radical democratisation of the European Union. This is because it is not a state or a nation, but a “multi-level, poly-centric polity”, and, in his view, citizens are not prepared to cede full sovereignty to the supranational level (Schmitter 2001: 5). In any case, the transcendental shift to large-scale democracy requires experimenting with new forms of representation, citizenship, and accountability of governments which have not yet been invented (Schmitter 2000: 2, 14). Together with this, Schmitter considers that it is better to move forward through gradual reforms towards complementing, but not replacing, the accountability mechanisms that exist in member states (Schmitter 2001: 6). It is possible to achieve better results, in his opinion, through innovative governance techniques than through reforms to conventional government institutions. In a political community with multiple decision-making centres, the basic question is not whether to remain or to become a democracy, but if “the quality of this regional network of democracies will suffice to ensure the voluntary support and legitimate compliance of its citizens” (Schmitter and Trechsel 2007: 4). By contrast, Jürgen Habermas wonders how the achievements of the modern democratic state, namely, protection of basic rights, the institutions of democratic representation, and welfare provisions can be devised and reproduced beyond the physical and conceptual limits of the state. The author is confident that the social contract that gave rise to modern civil society, representative democracy, and welfare provisions can take place beyond the nation-state framework (Habermas 2001: 5–26). In addition, some theories concerning the democratisation of the European Union are based around the creation of a European citizenry, or demos, either by reforms to the European Parliament or in alternative models of “post-national” or “post-parliamentary” democracy, for example, associative democracy, participatory democracy, deliberative democracy and consociational democracy (Beck and Grande 2006: 321; Kröger and Friedrich 2013: 155–170). From the perspective of civil society, authors such as Pieter de Wilde, Asimina Michailidou and Hans-Jörg Trenz think that it is possible to improve the participation channels of citizenship at the European level; and further, that civil society (associations, interest

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groups, citizens’ organisations) could become representatives of the legitimate rights of citizens. In their own words: “Through the inclusion of the audience in representation research it is possible to identify a mismatch between ‘new’ constituencies and ‘old’ constituencies, i.e., between the stakeholders of functional interests, at EU level, and the national demoi” (Kröger and Friedrich 2013: 163–164). Yet, without departing from the model of representative democracy, some more concrete measures are based around reforms to the European Parliament and its deliberation mechanisms. The ultimate goal may be a bicameral parliamentary system like that of the states in the Union (Kröger and Friedrich 2013: 158; Beck and Grande 2006: 321). Certainly, theories on the democratisation of the European Union should, in my view, pay more attention to the composition and functioning of the European Parliament and discuss how to improve its deliberative procedures, in so far as it is in parliament where democratic deliberation par excellence, that is, discussion pro and contra, takes place (Palonen 2012: 13–25). Although the European Parliament’s powers have been extended by the consolidated version of the Treaty of the European Union, the European chamber has not yet acquired sufficient democratic legitimacy and its proceedings and composition do not leave enough room for parliamentary debate. On the one hand, European parties are still embedded in, and dependent on, national political systems and politics, whilst the members of the European Parliament remain too distanced from their national constituents. On the other hand, although the European Parliament has acquired the status of co-legislator alongside the Council in a wide range of policy areas (such as economic governance, immigration, energy, transport, the environment and consumer protection) the decision-making processes of the “trialogue” (Commission, Council and Parliament) do not leave room for much parliamentary debate. And this is regrettable since public debate and political argumentation are basic features of democracy (Mouffe 2008: 89–101). This is the reason why I believe that parliamentary debate should be encouraged at the European level. Nevertheless, Beck and Grande, for example, consider that the model of parliamentary democracy is not valid for a “cosmopolitan European empire”. Alternatively, they propose four ways of democratising the European Union: intervention, inclusion, recognition of difference, and control (Beck and Grande 2006: 321). According to these authors, although the European Parliament has gained power, it has not acquired sufficient democratic legitimacy. As has been shown in the participation levels in European elections, citizens do not recognise the European Parliament as an institution that legitimately represents their purposes and

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interests. This institution is seen as an integral part of Brussels’ power and less as an effective instrument of control by citizens. Together with this, European elections are frequently dominated by national political agendas and organisations, and are used as “second order national elections”. Meanwhile, members of the European Parliament operate mainly at European level and are far removed from their voters and national parliaments (Beck and Grande 2006: 322). These are, however, in the view of Beck and Grande, only circumstantial problems that do not reflect the true inefficacy of parliamentary democracy in Europe. The basic problem is that, since power is divided into several decision-making areas, at its best, the European Parliament can only control one part of the decision-making process. Moreover, according to Beck and Grande, even if Parliament saw its powers significantly extended, it would become responsible for political decisions over which it can exercise little control (Beck and Grande 2006: 322–323). For their part, authors such as Richard Bellamy, Dario Castiglione and Kalypso Nicolaïdis propose strategies to strengthen, not the European demos, but rather the deliberation that occurs between the different demoi: “To treat the national demoi of the member states as basic building blocks and deliberative contexts of a European democratic association” (Bellamy and Castiglione 2013: 219; Nicolaïdis 2013). Attempts at integrating the demoi of the European Union into a single European people involves, according to Bellamy, a loss of democratic control and accountability. The author believes that the more suitable way to preserve pluralism and democracy in the European Union is through an “international association of democratic states”, for “if the EU is unlikely to achieve democratic legitimacy as the representative of a European people”, he writes, “it might be able to do so as a Union of democratic peoples on the basis of a form of republican intergovernmentalism” (Bellamy 2013: 500). According to Bellamy, the “European people” has not yet emerged. There is not a European citizenship with pan-European interests and allegiance towards a common supranational polity. No European media of any significance have come into existence, and European political mobilisation is weak. Parties are still embedded in national systems and the European Parliament can be best described, again, as a chamber of “second-order national elections” (Bellamy 2013: 506). This is the reason why he believes that an international association of democratic states might make it possible for all individuals to live in representative states “that possess democratic systems where collective decisions are made in ways that show them equal respect and concern through being under their public, equal control” (Bellamy 2013: 507).

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One of the advantages of the European demoi-cracy is, according to Bellamy, that it allows more counter-majoritarian check and balances than are otherwise found in any national democracy. In his view, this is reflected in the European Union’s decision-making mechanisms. European legislation must secure consensual support from national leaders within the European Council to be placed on the agenda. In addition, it requires a proposal from the majority of the Commission, “a formal 2/3 majority but in practice a consensus of weighted member state votes in the Council of Ministers, a series of absolute majorities within the European Parliament, which as we saw can itself be viewed as involving a series of coalitions between national parties, and the assent and active support of national administrations, legal systems and parliaments responsible for its implementation” (Bellamy 2013: 510–511). Similarly, Kalypso Nicolaïdis believes that the crucial issue in order to recover the spirit of the “community method” is “not about each locus of power individually but about their relationship. How the European Council delegates to the Commission and how it works with the European Parliament to do so. And, crucially, that the democratic control of supranational rule making includes durable mechanisms of collective oversight from national executives, national high courts and increased resources to national parliamentary scrutiny” (Nicolaïdis 2013). However, it remains an open question whether or not a European demoi-cracy can be consistent with a stronger and more deliberative European Parliament. The basic question is whether democratic deliberation par excellence, that is, parliamentary deliberation pro and contra (Palonen 2012: 13–14), can be enhanced at the European level. Although Bellamy and Nicolaïdis do not say it explicitly, it seems that they seek to reinforce instead the existing democratic institutions of the member states and achieve a better balance amongst the supranational bodies of the European Union. Yet, in my view, if the democratisation of the European Union is a goal worth pursuing, the enhancement of democratic deliberation at supranational level, that is, in the European Parliament (or in a bicameral parliamentary system) is a basic task that must be undertaken. As Schmitter has suggested, new forms of representation, citizenship, and accountability of governments must be devised to cope with the democratisation of the European Union (Schmitter 2000: 2, 14). Indeed, these new forms have already emerged. Firstly, as has been shown, representation at the supranational level does indeed combine at least two types of subjectivities, that is, citizens and states. Secondly, a dual form of citizenship has emerged in the Union, that is, national citizenship and

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European citizenship which complement, but do not replace, each other (Article 9 TEU). Finally, better mechanisms of accountability and control of the supranational leaders must, certainly, be improved, either by reforming the European Parliament and/or extending the control mechanisms that already exist in national parliaments. But, as has been pointed out earlier in this chapter, public deliberation is a basic feature of democracy; and this key aspect is currently missing in the European Union.

Concluding Remarks: Three Possible Scenarios for the European Union The economic crisis has highlighted the excesses of the inter-governmental model in the European Union (Schmidt 2012) and has shown the political and economic shortfalls of the integration process. The European Union has been basically configured as a large financial market of goods and services.10 At this time of crisis and uncertainty in Europe there are at least three possible avenues that the European Union could take. First, the option of a total or partial disintegration of the European Union and/or of the single currency, the euro; second, having different speeds or basic inter-governmental (economic) cooperation; and third, a more solid and stable European Union through political, financial and fiscal integration. In my opinion, the first possibility, the total or partial disintegration of the euro (by some economies exiting the Eurozone) or of the European Union (by one or more member states being partially excluded) fortunately seems fairly unlikely. The possibility of some countries leaving the Eurozone and/or the European Union has been examined at greater length by several experts and certainly requires deeper analysis (Nuti 2013; Soros 2013). However, in my view, Europe without the European Union and without the euro would mean an enormous regression and would involve undoing what has been built over decades. Separation and divorce are never easy decisions, whilst certainly possible and frequent. In the case of the European family, most of the states and nations of Europe are simply too small to compete in the global world and deal with the emerging powers separately. Most member states have their business partners within the Union. Outside it, many states would be forced to seek alternative 10

See, for example, the objectives of the creation of the euro in the official website of the European Union: http://europa.eu/about-eu/basic-information/money/euro/index_en.htm (accessed on 1 April, 2013).

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alliances (in the Mediterranean, the other side of the Atlantic, the North Sea, or in the former Hanseatic League, for example). Hence, it is precisely the fact that we live in a globalised world (with globalised markets, transnational flows of capitals, people and information, global threats and disasters) that forces the European member states to remain united. But what kind of Union should the member states belong to? What size? A strictly economic cooperation amongst states or a further strengthened political, fiscal and financial European Union? Should the single currency, the euro, be backed by a European banking union and joint debt? Of course, these questions cannot be discussed thoroughly here. But there is a second scenario for the future of the European Union that can be thought of, that is, a Union of various speeds with little integration: a giant market, but a political dwarf. On the one hand, the economic crisis has shown that a single market and a common currency without coordination of fiscal and financial policies are unable to cope with, or prevent threats from, the financial markets. In the Eurozone, whilst some states have become creditors, others have become debtors, and the disparity of economies (from highly indebted countries that must face very high interest rates to receive credit, to those which pay very low or even negative rates to be funded) is unfair and threatens to destabilise the Eurozone and increase hostility amongst European citizens. On the other hand, Europe represents the achievements of the welfare state. Whilst these achievements must be adapted to the changing times and circumstances of an aging population, the welfare state remains one of the greater achievements of European history, as well as a source of stability, social harmony and sustainable development in a prosperous, just and equal Europe. It therefore seems reasonable to choose the path of a more profound economic and political integration of the European Union in order to end the crisis and bring stability to the Eurozone. The European Union should have a voice (a single voice) in the world, and become a force capable of competing in the global world and addressing global challenges and risks whilst defending its core values: justice, democracy, peace, freedom and respect for human rights. Together with the above, it should combine growth and full employment, and create job opportunities for the youth. For these reasons, the Union should be endowed with more transparent and accountable decision-making processes in order to recover the support of the citizens and achieve market’s confidence and stability.

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Through these pages several proposals for the democratisation of the European Union have been briefly introduced. The need for wider democratic (parliamentary) deliberation at the supranational level has been highlighted. Clearly, only a brief, non-exhaustive list of the different theories of supranational democratisation has been provided here. What is of interest here, however, is to emphasise that the European Union is equipped with a multi-level, decentralised decision-making system that forces us to re-think the mechanisms of representation, citizenship and accountability of governments beyond the state boundaries. In short, the future of the European Union and its institutional organisation will depend on the decisions to be made in the near future. Unfortunately, its citizens will again probably be largely absent in the discussion and decisionmaking process on the future of integration.

References Beck, Ulrich. 2000. “The Cosmopolitan Perspective: Sociology of the Second Age of Modernity”. British Journal of Sociology, 51 (1): 79– 106. Beck, Ulrich and Grande, Edgar. 2006. La Europa cosmopolita. Sociedad y política en la segunda modernidad. Barcelona: Paidós. Bellamy, Richard and Castiglione, Dario. 1997. “Building the Union: The Nature of Sovereignty in the Political Architecture of Europe”. Law and Philosophy 16: 421–445. Bellamy, Richard and Castiglione, Dario. 2013. “Three Models of Democracy, Political Community and Representation in the EU”. Journal of European Public Policy 20 (2): 206–223. Bellamy, Richard. 2013. “‘An Ever Closer Union Among the Peoples of Europe’: Republican Intergovernmentalism and Demoicratic Representation within the EU”. Journal of European Integration, 35 (5): 499–516. Burgess, Michael. 2000. Federalism and the European Union: The Building of Europe, 1950-2000. London: Routledge. Castaldi, Roberto. 2007. “A Federalist Framework Theory on European Integration”. Research Paper, Centro Studi Federalismo: 1–93. —. 2010. “The Dynamic Development of the European Communities (and Then Union) and the Relationship with EFTA and the Council of Europe”. Perspectives on Federalism, 1 (3): 78–109, http://www.onfederalism.eu/attachments/082_download.pdf (accessed 8 November 2012).

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Dosenrode, Søren. 2010. “Federalism Theory and Neo-functionalism: Elements for an Analytical Framework”. Perspectives on Federalism, 2 (3): 1–28. Habermas, Jürgen, 1998. Die postnationale Konstellation. Frankfurt: Suhrkamp. —. 2001. “Why Europe Needs a Constitution”. New Left Review, 11 (September-October): 5–26. Kröger, Sandra and Friedrich, David. 2013. “Introduction: The Representative Turn in EU Studies”. Journal of European Public Policy 20 (2): 155– 70. Lord, Christopher. 2013. “No Representation without Justification? Appraising Standards of Justification in European Parliament Debates”. Journal of European Public Policy 20 (2): 243–259. Menon, Anand and Weatherill, Stephen. 2007. “Democratic Politics in a Globalising World: Supranationalism and Legitimacy in the European Union”. Law, Society and Economy Working Papers 13: 1–29. Monnet, Jean. 1985. Memorias. Madrid: Siglo XXI. Mouffe, Chantal. 2008. “Democratic Politics and the Dynamics of Passions”. In The Ashgate Research Companion to the Politics of Democratization in Europe. Concepts and Histories, edited by Kari Palonen, Tuija Pulkkinen and José María Rosales. Surrey: Ashgate. Nicolaïdis, Kalypso. 2013. “Pragmatism, Idealism and European Demoicracy”. Social Europe Journal, 15 July 2013 http://www.social-europe.eu/2013/07/pragmatism-idealism-andeuropeandemocracy/?utm_source=feedburner&utm_medium=feed&ut m_campaign=Feed%3A+socialeurope%2FwmyH+%28Social+Europe +Journal%29 (accessed 2 August 2013). Nuti, Domenico. 2013. “The Euroarea: Premature, Diminished, Divergent”. Social Europe Journal, 6 August 2013, http://www.social-europe.eu/2013/08/the-euroarea-prematurediminisheddivergent/?utm_source=feedburner&utm_medium=feed&ut m_campaign=Feed%3A+socialeurope%2FwmyH+%28Social+Europe +Journal%29 (accessed 9 August 2013). Palonen, Kari. 2012. “Parliamentary Procedure as an Inventory of Disputes: A Comparison between Jeremy Bentham and Thomas Erskine May”. Res Publica. Revista de Filosofía Política, 27: 13–25. Rosamond, Ben. 2005. “Conceptualizing the EU Model of Governance in World Politics”. European Foreign Affairs Review, 10 (4): 463-78. Schmidt, Vivien. 2013. “Democratizing the Eurozone”. Social Europe Journal, 5 May

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http://www.social-europe.eu/2012/05/democratizing-the eurozone/?utm_source=feedburner&utm_medium=feed&utm_campaig n=Feed%3A+socialeurope%2FwmyH+%28Social+Europe+Journal%29 (accessed 21 May 2012). Schmitter, Philippe. 2000. How to Democratize the European Union – and Why Bother? Lanham: Rowman & Littlefield Publishers. —. 2001. “What Is There to Legitimize in the European Union... and How Might This Be Accomplished?” Jean Monnet Working Paper No. 6/01, Academy of European Law. http://www.eui.eu/Documents/DepartmentsCentres/SPS/Profiles/Schm itter/LegitimizeEU.pdf (accessed 8 November 2012). Schmitter, Philippe, and Trechsel, Alexander H., coords. 2007. The Future of Democracy in Europe: Trends, Analysis and Reforms. A Green Paper for the Council of Europe. Strasbourg: Council of Europe. http://www.thefutureofrepresentativedemocracy.org/files/pdf/resources /schmitter_thefutureofDemocracyinEurope.pdf (accessed 9 November 2012). Soros, George. 2013. “A European Solution to the Eurozone’s Problem”. Social Europe Journal, 10 April. http://www.social-europe.eu/2013/04/a-european-solution-to-theeurozones-problem/?utm_source=feedburner&utm_medium=feed& utm_campaign=Feed%3A+social-europe%2FwmyH+%28Social+ Europe+Journal%29%5B (accessed 9 August 2013). Weiler, Joseph H. 2012. “In the Face of Crisis: Input Legitimacy, Output Legitimacy and the Political Messianism of European Integration”. Journal of European Integration, 37 (7): 825–841.

PART III: JUSTICE, BORDERS AND INTERNATIONAL LAW

CHAPTER ELEVEN CITIZENSHIP AND THE NATION-STATE: SOME NORMATIVE PROBLEMS ANA ISABEL DAPENA1

Introduction Traditionally, citizenship has been strongly linked to the nation-state. In a formal sense, citizens are the members of the state, that is, the political community. Citizenship has an exclusive dimension. Only citizens are entitled to specific rights and benefits, while other individuals are excluded from them. The majority of people obtain citizenship automatically at birth, basically through two different principles associated with the nationstate: children of citizens are citizens too (jus sanguinis) and children born in national territory are citizens (jus soli). Thus, rights and benefits associated with citizenship are assigned following a mechanism which is problematic from an ethical point of view. These entitlements condition people’s lives deeply, affecting issues such as the right to settle in a particular territory, the fulfilment of some basic needs and the participation in policies that affect the life of the individuals. Hence, normative problems arise. Contemporary transnational migrations as well as the interdependence between different countries force us to take these normative problems into account. In normative terms, citizenship refers to inclusion within the community but also to the community exclusivity and to exclusion. This is what some authors call “normative nationalism”. The phrase “normative nationalism” denotes the widespread postulates according to which the nation-state is the proper world of our normative concern. There is a tension within the modern concept of citizenship (Peña 2008: 242). On the one hand, citizenship is a particular condition, related to a community, that is, the 1 University of Santiago de Compostela. This work has been carried out under the research project 2012-PN114, funded by the Ministry of Economy and Competitiveness – Government of Spain.

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nation-state. This implies a division between the people who have citizenship rights and foreigners. On the other hand, the normative base of the idea of citizenship is universalist. It prescribes equal consideration for human beings just because of their humanity, and the equal worth of individuals. The universalist principles of liberal societies seem to be incompatible with a citizenship where recognition and concern is limited to the members of a particular state. A question, then, arises: is it right to exclude people from some of the rights and benefits associated with traditional citizenship taking into account their nationality, the state to which they belong in a formal sense, and at the same time defend universalist principles? In other words, according to universalist principles, is the traditional link between citizenship and the nation-state right? Hence, defending the traditional link between citizenship and the nation-state and universalist principles at the same time provokes normative problems. This chapter is an approach to some of these problems. First, we consider whether traditional citizenship is compatible with the liberal idea of equal moral worth of all individuals. Then, we focus on the boundaries of the community in conventional conceptions of citizenship. Are they correct, according to the universalist postulates? Thirdly, we examine the relationship between the normative democratic principles and the exclusion that traditional citizenship implies. Finally, we discuss citizenship and distributive justice. Taking into account that we live in an unequal world, is it right to distribute benefits depending on conventional citizenship?

Citizenship and the Equal Moral Worth of All Individuals The idea of the equal moral worth of all individuals has played an important role within the liberal tradition. In agreement with this idea all individuals, regardless of the place where they were born or their nationality, deserve the same moral consideration. From the moral point of view, we may ask whether restricting people’s freedom of movement on the basis of their nationality and their formal citizenship is correct. Joseph Carens examines this question in his work “Aliens and Citizens: The case for open borders” (Carens 1987). It is usually considered that the power of admitting or excluding foreigners is inherent to the sovereignty of states. Carens analyses whether this power is justified. In order to do that, he focuses on the normative frameworks of Norbert Nozick, John Rawls and utilitarianism. Carens considers that starting from these three normative frameworks one draws the same conclusion, that is: there is hardly

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justification for the restriction on immigration. These normative frameworks are characterised by two features: 1) the equal moral worth of individuals; and 2) the individual is prior to community. Therefore, according to Carens, starting from these principles, it is hard to establish fundamental differences between citizens and foreigners that also want to be citizens. Carens examines the popular idea that citizens are the owners of the state. This idea could be formulated as follows: “It is our country. We can exclude whomever we want”. This statement is based in the defence of property rights. For this reason, the author analyses it in the light of the theories in which the property rights play a leading role. Specifically, he focuses on the view defended by Nozick in Anarchy, State, and Utopia. He observes that the statement “it is our country, so we can exclude whomever we want” presupposes collective or national property rights. Carens thinks that the statement is incompatible with Nozick’s theory, because collective rights would weaken the individual rights that this theory tries to protect (Carens 1987: 253–254). Private property could not protect the individual from the abuses of the social majority if the property is collective. In short, thinking that we are the owners of our country, and as a consequence, that we can do whatever we want with it, is incompatible with the theoretical framework that Nozick presents. Besides that, according to the author, the actions taken by the state are only legitimate when their aim consists in defending the rights of individuals, whether they are citizens or not. As a consequence, denying an entrance to the state is not a legitimate action of the state. In any case, Carens points out, it seems that starting from Nozick’s theoretical framework, the state has no right to put restrictions on immigration. Carens also uses the theoretical framework that Rawls presents in A Theory of Justice in order to inquire whether rejecting the entrance of aliens to a country has any moral grounds. He considers that the ideas stated in A Theory of Justice would not justify relevant restrictions to the mobility of people. Carens is aware of the controversial way in which he uses the basic ideas of the book mentioned. He comments that Rawls conceptualises society as a closed system, so issues on immigration have no place in this book. Yet, Carens considers that the same reasons that make the original position useful when reflecting on justice in a given society, are also present when one thinks of justice at a global level (Carens 1987: 255). Carens utilises the veil of ignorance with the purpose of neutralising the effects of specific contingencies that are arbitrary from a moral point of view, and that should have no influence in the election of the principles of justice, for instance, people´s nationality or their birthplace. The veil of ignorance helps us to avoid being carried away by

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our own interest or by partisan inclinations in our deliberations, and to view all human beings as free and equal moral persons. In Carens’ opinion, if we put into practice Rawls’s proposal at a global level, those situated at the original position would ignore the particular society to which they would belong. They would choose the same principles of justice indicated by Rawls: equal liberty for all, the difference principle and equal opportunity. These principles would be globally applied. Behind the veil of ignorance, every person would choose the perspective of those in a more disadvantaged situation. In this case, we would be talking about the position of those who want to migrate. Carens thinks that in the original position each person would demand that the right of emigrating was included in the system of basic liberties, just for the same reasons that would lead to inclusion of religious freedom: religious freedom as well as the right to migrate may be fundamental in someone´s plan of life. To quote Carens: “The basic agreement among those in the original position would be to permit no restrictions on migration (whether emigration or immigration)” (Carens 1987: 258). Therefore, Carens asserts, from the theoretical perspective presented by Rawls in A Theory of Justice, relevant restrictions on migration, are not morally justified. However, Carens’s use of the original position is rejected by Rawls. In his work on international justice, The Law of Peoples, Rawls appeals to the original position to argue for principles of justice on the foreign relations of well-ordered societies, that is, societies that have just or decent domestic political institutions. The Law of Peoples does not allow for an original position agreement among all individuals of the world. Representatives of each society would agree on principles for the international basic structure. Carens examines the restrictions to the mobility of the individuals from the utilitarian point of view. He concludes that this theoretical frame does not give moral justifications to these restrictions. One of the main principles of utilitarianism is the maximization of the utility. But the interests of all the people involved in an issue have to be taken into account, regardless their nationality. Nowadays, millions of poor people feel that they can improve their standard of living by emigrating to rich countries. Thus, it is difficult to find a utilitarian calculation in order to justify the strongly restrictive migration policies of the rich countries. In short, at least some (although Carens says “every”) of the previous normative approaches coincide in their result: there is no moral justification for putting significant restrictions on the entrance of foreigners to national territory. This agreement, Carens comments, reinforces the case for open borders. In any case, any possible justification must be based on the

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principle of the equal moral worth of all individuals. Challenges to this principle are unacceptable. Thus, “Free migration may not be immediately achievable, but it is a goal toward which we should strive. And we have an obligation to open our borders much more fully than we do now”. (Carens 1987: 270). According to Carens, political membership should be opened to those people that wish to join the community and cooperate with it. From Carens’s work we conclude that the liberal idea that all individuals deserve equal moral worth implies that foreign people’s basic rights such as freedom of movement could not be denied on the basis of their nationality or their formal citizenship. The traditional link between the nation-state and formal citizenship is problematic.

Citizenship and the Political Community Nowadays, contemporary transnational migrations as well as the interdependence between different countries play a significant role all over the world. Traditional citizenship, confined to the nation-state, is not in agreement with these facts. From the traditional citizenship perspective, members of the political community in a formal sense take priority, while non-members are ignored. Only the citizens of the nationstate are the proper members of the community. Then, a question emerges: are these boundaries correct? Linda Bosniak, in the book The Citizen and the Alien: Dilemmas of Contemporary Membership, discusses the frontiers of the political community. She analyses the status of aliens in liberal societies. She asserts that citizenship is a divided concept. In many liberal societies, non-citizens are entitled to certain rights, such as social and legal rights, because of their personhood, that is, the fact of being within the country grants them some rights. These rights are often expressed in the language of citizenship. Therefore, speaking in terms of the citizenship of “non-citizens” is not necessarily incoherent. Citizenship is not an “all-or-nothing affair”: It makes clear that citizenship is not a unitary or monolithic whole: the concept is comprised of distinct discourses designating a range of institutions and experiences and social practices that are overlapping but not always coextensive. Citizenship is a divided concept. (Bosniak 2006: 2).

Additionally, Bosniak indicates that there is usually a normative division in the conception of citizenship. Almost all theorists eager to extend democratic equality within the limits of a political community stop their

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universalist commitment when thinking of the border or the outside of the country (Bosniak 2006: 124). So, we can find, at the same time, both a universalist and a nationalist engagement in most of the conceptions on citizenship. However, it is difficult to distinguish between the inside and the outside. Aliens do not stop at the border, but they come into the country, legally or illegally, and they live as aliens, as noncitizens, in the national territory. Thus, Bosniak observes that the border and its consequences are introduced into the political community. According to this author, the proposals where residents, whether citizens or alien (legal or illegal), take priority are also based on a particular privilege: the privilege of already being within the national territory and being part of the community. As this concern is only extended to people who are territorially here, their national “hereness” implies a privilege. People who are not in the country would not enjoy the priority given to the territorially-present undocumented who may have evaded border control or broken the terms of their initial admission to the state. Hence, in Bosniak’s view, questions about the justifiability of a position that relies on the contingency of location are exposed. Regarding the border between the United States of America and Mexico, the author writes: “What sense does it make, we might ask, to draw a line of normative consequence at the Rio Grande when success at crossing into or remaining within the national territory is quite often a fortuitous affair?” (Bosniak 2006: 137). It is arbitrary, then, to maintain that only the individuals who accomplish crossing the geographic frontier should be privileged because the fact of being successful in crossing the border is adventitious and mutable. It is usually thought that “hereness” is a measure of the bonds between a person and the community, Bosniak explains. The ties would justify a normative priority. According to this “antiformalist membership-as-socialfact approach”, a person’s contribution to a particular society should provide the grounds for recognition by the community. Nevertheless, this author considers that things look different when the issue is analysed from a global perspective: if actual community ties represent an important foundation of ethical responsibility […] Why not include the large numbers of people around the world who are intimately linked to the nation—familially, culturally, economically, politically—without being territorially present? (Bosniak

2006: 138). Bosniak asks further: why not consider the people who were not successful in crossing the border or who want to come to the country for

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the first time? These people may desire to contribute to the nation as much as people who are already in the country. In short, she notes that the normative lines linked to the geographic frontiers are arbitrary and lack justification. The boundaries of the political community established by the strong link between citizenship and the nation-state are arbitrary. As this link seems to be arbitrary, it is necessary to rethink it. From my point of view, some criticisms addressed to the civic nationalism would apply to Bosniak’s analysis: for instance, an excess of abstraction, and the consequent incapacity to establish criteria to identify political communities (Peña 2008). Taking into account Bosniak’s ideas, it is difficult to find criteria to define political communities smaller than humanity. The claims for rights and justice are satisfied in specific political frames, in political institutions that make these demands effective. In order to do this, political organizations addressing specific political communities, but not humanity in general, may be necessary.

Citizenship and Democracy Democracy is grounded on the idea that people should rule themselves. People should have a say in the making of policies that affect them in a democratic system. Nevertheless, from the traditional citizenship perspective, only citizens in a formal sense have political rights. Then, there is a contradiction between a principle that should be applied universally and the conventional citizenship. Sarah Song in her work “Democracy and noncitizen voting rights” analyses this contradiction. Song states that the boundaries of democracy are usually defined by the boundaries of the nation-states. In the democratic regimes the interests and the will of citizens are taken into account. However, nowadays, there are large numbers of aliens who are not citizens settled in different countries. These aliens lack political rights. Song explains that this fact gives rise to a problem of democratic legitimacy. Noncitizens can vote at least in 45 countries all over the world, but these states are exceptions, for most countries in the world restrict the suffrage to citizens (Song 2009: 608). This situation is against democratic principles. These principles imply political rights beyond the boundaries of formal citizenship and beyond the territorial boundaries. If we accept the democratic idea of popular sovereignty, that is, the principle according to which people should rule themselves, we could not agree with these circumstances. Song focuses on the all-affected-interests principle and on the coercion principle in order to claim for the expansion of democracy beyond the citizenship and the national territory.

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The all-affected-interests principle, Song says, means that all people whose interests are affected by a state’s policies should participate in their making. She mentions Robert Dahl’s thought, specifically his idea on inclusion presented in After the Revolution. Authority in a Good Society. In Dahl’s view, the all-affected-interests principle is probably the best general principle of inclusion. Song argues that this principle supposes an alternative to state-centred democracy where only the formal citizens are taken into account. This idea has important consequences for democracy. It is a fact that the policies of any state affect the interests of the noncitizen residents and even those of the people living out of the country. So, applying the former principle, these people should have the right to participate in making these policies. Song explains that there could be reasons to restrict the scope of the principle. However, even if we limit the scope, the demos probably will not coincide exactly with the demos of the nation-state. Thus, the right to participate is not universal or absolute, but a right that may be invalidated or modulated depending on the circumstances. Not all interests are to be considered relevant. Trivial interests, the cases in which the individuals’ well-being is slightly affected, and the possible interests, the cases in which the individuals would not necessarily be affected, are an example of this. Probably affected interests, Song states, could be the relevant ones, and therefore, the interests that are to be taken into account. Once the trivial interests and the possible interests are discarded, we might even make a final distinction between the basic and non-basic affected interests. In some cases, the basic affected interests are confined to the territory of the state, but in other cases the basic interests of territorial outsiders are affected by a state’s policies. It is clear for Song that these people are entitled to have a say in their making. Song also focuses on another principle of democratic legitimacy, the coercion principle. In accord with it, all those subject to a state should have the opportunity to participate in the political processes to establish how the state power is exercised. Coercion invades personal autonomy, thus, it is only justified as far as those subject to coercion can take part in governing it. In other words, those who are subject to the law should make the law. Immigration laws imply coercion or the threat of coercion in the form of denial of entry at the border, detention and deportation. Hence, Song points out that there are many people outside a particular state´s territory subject to its coercive power that ought to have a say in the exercise of this power. For instance, migrants at the border who try to enter, people living in borderlands officially outside the national territory, non-resident citizens or expatriates. The author concludes that the idea of popular sovereignty, especially the normative principles described above,

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demands “the political inclusion of persons beyond the boundaries of citizenship to include resident noncitizens and also beyond territorial boundaries to include some nonresident noncitizens”. (Song 2009: 611). Furthermore, it supports decoupling citizenship and territorial presence from political rights. Song examines the proposals offered by scholars that try to solve some of these problems. She distinguishes two main strategies: 1) expanding the traditional scope of citizenship; and 2) disaggregating the rights from the status of citizenship. The first consists in extending the legal status of citizenship to resident noncitizens. If we consider the democratic principles enunciated above, the demos requires greater expansion than the expansive citizenship model can provide. Resident noncitizens would be subject to the state and excluded from political participation in it until their naturalisation. Regarding the boundaries of the state, noncitizens outside the territory who have basic interests involved or subject to the coercion of a state would be also ignored. Disaggregating rights from the status of citizenship is problematic too, Song states. In order to expound this stance she follows the work Limits of Citizenship: Migrants and Postnational Membership in Europe by Yasemin Soysal, where a postnational model of community is developed. Here persons, not citizens, are the subjects of political morality, thus, rights should be based on personhood. Nevertheless, Song comments, the universalist position is often limited by the condition of territorial presence. The condition of territorial presence restricts the inclusionary potential of the disaggregation approach. In short, from Song’s point of view, all persons, regardless of their formal citizenship or their territorial presence, who have fundamental interests affected by or are subject to the coercion of a state’s policies should have the opportunity to participate in their making. In Song’s words “the democratic principles challenge not only the linkage of individual rights and citizenship status but also the linkage of individual rights and territorial presence” (Song 2009: 616). In conclusion, we state that the traditional citizenship fails to apply democratic ideas in a universal way. The deep link between citizenship and nation-state is problematic from a democratic perspective. Despite the force of Song’s reasons, the idea of decoupling citizenship and territorial presence from political rights is not shared by all authors committed to the principles of popular sovereignty and worried about noncitizens’ rights. Seyla Benhabib is an example of this position. In the last chapter of her book The Rights of Others, she says that there is a crucial link between self-government and territorial representation. Democracy enacts laws that bind those who have participated in their

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making to respect them. Therefore, democratic legitimacy cannot go beyond a demos linked to a particular territory. Democracy implies accountability to a specific society. According to Benhabib, the active citizenship, democracy and the fulfilment of rights need no distant institutions like the nation-state.

Citizenship and Justice We live in an unequal world where the basic social goods are distributed unequally. The citizens of rich countries usually enjoy the basic social goods, while the citizens of poor countries cannot get them. People’s starting points are significantly conditioned by the fact of being born in a particular state or having a certain nationality, that is, a fact that is fortuitous and irrelevant from the moral point of view. Is it right to distribute benefits according to this fact? Ayelet Shachar examines this question in her work “The Worth of Citizenship in an Unequal World”. From Shachar’s point of view, the traditional conception of citizenship presents a series of normative problems. The author analyses the transmission of citizenship on the basis of birthright. This kind of transmission, spread all over the world, constitutes a major obstacle to mobility and to the opportunities of individuals. As a consequence of this, the great majority of the world’s population acquire the status of citizenship by means that are beyond their control. This status is derived from family or from the country in which one is born. Thus, according to Shachar, citizenship turns out to be a matter of inheritance. In other words, the majority of individuals become members of a political community through an ascriptive mechanism: birthright. Moreover, birthright citizenship ends up unequally distributing opportunities among individuals. In the current world, belonging to different political communities implies that individuals have different starting points. According to Shachar, defending the legal link between political membership and birth benefits the minority of those heir to titles of membership in wealthy societies, while it is detrimental to many others, to those who have been born in poor countries. This unequal distribution of benefits is not justified on the grounds of needs, merit, consent or any other elements worthy of moral consideration. The distribution of the benefits of citizenship based on ascriptive criteria alludes to distributive justice (Shachar 2007: 369). Regarding “citizenship as inherited property” is useful in considering the worth of citizenship in an unequal world. Shachar analyses the two basic principles that rule birth as the source of citizenship: jus soli and jus sanguinis. Though these principles are

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presented as opposites, both start from the same premise: just a limited number of individuals can acquire automatically citizenship. But, which individuals? In Shachar´s point of view, both principles—jus soli and jus sanguinis—solve the problem in a similar way: through the supposedly apolitical birthright transfer of entitlement. The only difference between them consists in that in one case the birthright depends on the territory, while in the other, in depends on descent. Nevertheless, both criteria are arbitrary. One is based on the accidental fact of being born in certain place in the world and the other is based on the luck of having certain family bonds. Therefore, at the present time, belonging to a particular political community depends on an accident, that is, birth. To quote from Shachar: The almost casual acceptance of ascription as a basis for assigning political membership represents a “blind spot” in contemporary citizenship theory: the assumption that reliance on birth is somehow a “natural” and “apolitical” event (Shachar 2007: 371).

In a world with little mobility of people and minimal inequalities among states, the link between birth and political membership might be of no relevance. But the current world is not like that; borders separate the rich from the poor. Thus, the connection between something accidental as birth and the political membership may lead us to great injustices. As Shachar writes: By legally identifying birth, either in a certain territory, or to certain parents, as the decisive factor in the distribution of the lifelong good of membership, the territoriality and parentage principles render citizenship an ascriptive status for the vast majority of the world’s population. It is in this way that citizenship may be thought of as the quintessential inherited entitlement of our time (Shachar 2007: 371).

Current citizenship laws do not create that inequality, but, being based on birth, they perpetuate it. Furthermore, the alleged naturalness of political membership based on birth, obscures these unequal consequences. Shachar rejects the naturalness of the reliance of citizenship on the rights of birth: I further wish to destabilize the notion that such reliance is “natural” and, in this sense, apolitical. This latter notion serves to legitimize (and make invisible) the significant inter-generational transfers of wealth and power, as well as security and opportunity, which are currently maintained under the seal of the birthright regime of jus soli and jus sanguinis membership allocation (Shachar 2007: 379).

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In an unequal world, the transmission of the citizenship according to the circumstances of birth is an obstacle to equality regarding the starting points of the individuals. By criticizing conventional citizenship, Shachar tries to show that the contribution of the rich countries to the welfare of the poor ones is not charity, but an obligation. The fact of regarding citizenship as an arbitrary advantage would contribute to this. From Shachar’s work we can assert that the distribution of benefits according to the conventional citizenship is not acceptable from a normative point of view. The traditional relation between citizenship and the nation-state supports global inequality.

Conclusions In the current world, the nation-state is too small to deal with the problems that affect individuals and communities. Globalisation limits nation-state capacity to satisfy individuals’ demands. The global interdependence of numerous social activities leads us to think that the political perspectives that only consider the nation-state are wrong. Democracy and global justice need post-national institutions. The conventional citizenship, linked to the nation-state, is problematic from a moral point of view and does not determine the boundaries of the political community properly. As a consequence of this, people’s basic political rights are not respected. Additionally, traditional citizenship supports global inequality. There is a conflict between universalist principles and this conception of citizenship. In my opinion, there are two main solutions to it: 1) ignoring the universalist ideas and defending the usual relation between nation-state and citizenship—if we accept minimal universalist postulates within the nation-state this solution is contradictory; and 2) assuming universalist ideas and rethinking the link between citizenship and nation-state. Therefore, defending universalist conceptions makes us reflect on citizenship and on its relation to the nation-state. This link is not natural, neutral or apolitical. On the contrary, it is political, something that is possible to change. In this work I have tried to show the thought of different authors in order to argue that nationality is irrelevant in ethics and politics. So it is necessary to articulate the language of citizenship and the political commitment on the basis of other concepts. As Carens observes, from the liberal perspective based on the equal moral worth of all individuals and the priority of individuals and their rights, it is not possible to justify significant restrictions to people`s freedom of movement according to nationality. Shachar points out that benefits are distributed following an

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ascriptive criterion, the birthright. Bosniak analyses the arbitrariness of the boundaries of the political community linked to the nation-state. Thus, the political community should go beyond the boundaries of the countries. Song notes that the idea of popular sovereignty forces us to listen to those affected by the concrete policies regardless of their formal citizenship. Hence it is necessary to rethink citizenship and its deep relation to the nation-state. If we think that we have duties and rights respecting those who are affected by us or whose actions affect our life, then we should not restrict moral, ethical, or political consideration to people from our particular country. The idea that those affected by a norm should have a voice in their making leads to the multiplication of sites of representation and political participation. However, it is important to be aware of some difficulties that can arise when offering solutions to these normative problems. An excess of abstraction may prejudice the fulfilment of the claims for justice and rights in some aspects. These claims are satisfied in specific political frames, in political institutions that make these demands effective. National institutions, with supranational and intranational institutions can play this role. But at the same time, these demands make sense when they are formulated taking into account universalist principles, which in a circular way call the boundaries of the specific political frames into question. For it seems that every political foundation and political frame includes some individuals while exclude other individuals, totally or partially. As Song comments, political postnational proposals even have an exclusive dimension. For this reason, it is important to keep alive the tension between universalist maxims and the worth of the bounded political communities.

References Benhabib, Seyla. 2004. The Rights of the Others. Cambridge: Cambridge University Press. Bosniak, Linda. 2006. The Citizen and the Alien: Dilemmas of Contemporary Membership. Princeton: Princeton University Press. Carens, Joseph H. 1987. “Aliens and Citizens: The Case for Open Borders”. The Review of Politics, 49 (2): 251–273. Dahl, Robert Alan. 1990. After the Revolution? Authority in a Good Society. New Haven: Yale University Press. Nozick, Robert. 1974. Anarchy, State, and Utopia. New York: Basic Books.

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Peña, Javier. 2008. “Nuevas perspectivas de la ciudadanía”. In Ciudad y ciudadanía: senderos contemporáneos de la filosofía política, edited by Fernando Quesada, 231–251. Madrid: Trotta. Rawls, John. 1971. A Theory of Justice. Cambridge, Mass.: Harvard University Press. —. 1999. The Law of Peoples. Cambridge, Mass.: Harvard University Press. Shachar, Ayelet. 2007. “The Worth of Citizenship in an Unequal World”. Theoretical Inquiries in Law, 8 (2): 367–368. Song, Sarah. 2009. “Democracy and Noncitizen Voting Rights”. Citizenship Studies, 13 (6): 607–620. Soysal, Yasemin Nuhoglu. 1994. Limits of Citizenship. Migrants and Postnational Membership in Europe. Chicago: Chicago University Press.

CHAPTER TWELVE RIGHT TO HOSPITALITY, RIGHT TO MEMBERSHIP: A CRITICAL REVIEW OF KANT’S AND BENHABIB’S COSMOPOLITAN ACCOUNTS ON IMMIGRATION AND BORDERS MELINA DUARTE1

Introduction Can open borders combine with state sovereignty in a cosmopolitan perspective? In a broad sense, cosmopolitanism means that all persons belong to a single community. From this definition, one can advocate for either a negative or a positive cosmopolitanism.2 The negative cosmopolitanism had its (western) origin with the Cynics when Diogenes of Sinope heralded himself a “citizen of the world”.3 By doing so, he meant to have no bounds, personal attachments, and duties to his fatherland. He lived one day here, and another day there, and his connection was directly to the entire globe: with every place, and none, at the same time. Diogenes claimed an immediate relationship between 1

UiT The Arctic University of Norway. Thanks to K. Fjørtoft, J. M. Rosales, H. Fossheim, T. I. Hanstad, Ø. Stokke and L. V. Castor, E. Christensen, T. Dassler, J. H. Alnes, A. Frainer and B. Himmelmann for comments on a previous version of this paper. The paper also benefits from its presentation in different parts in two international workshops in 2012: Ethics, Rhetoric and Democracy. Contemporary Themes in Ethics and Political Philosophy III at UiT and Global Justice and International Economic Institutions at UCLeuven. 2 See further details in Kleingeld 2012: 1–4. 3 See further details, for example, in Long 2008: 54; Delanty 2009: 20; Appiah 2006: xii; Nussbaum 1997: 56–59; Desmond 2008: 1–24,184–208.

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himself as an individual and the world. Because of the nature of this relationship—with no mediation of the states—such conception of cosmopolitanism would lead us to the effacement of state borders and to the possibility of either the absence of a collective government or of the instauration of a world government.4 The negative cosmopolitanism can appear, initially, as a promising alternative when we understand free mobility as a determinant aspect of cosmopolitanism. Persons should have the absolute right to settle where they wish, if this is done without infringing the individual property rights.5 However, the absence of a collective government would result in an atomistic conception of cosmopolitanism where isolated individuals have the right to absolute mobility. It is a radical individual-centric conception of cosmopolitanism, which, finally, does not comport a political dimension. Furthermore, we have learnt from our times that to philosophically justify the adherence to a world government is not an easy task and might neither be a worthy one.6 We can imagine a world government as an empire from the historical examples of the Roman, British or Chinese Empires, but we cannot contemporarily imagine the conditions of possibility of a world government compatible with the individual and universal freedom at the same time. Therefore, the absence of any mediation and balance between singularity and universality would likely result in a totalitarian or despotic conception of cosmopolitanism, where the individual would be suppressed in the name of the common will, or in an anarchist or extreme libertarian conception of cosmopolitanism where the common would be weakened in the name of the individual will. The positive cosmopolitanism, originating in the west with the Stoics, on the other hand, entails the safeguard of particular mediations between individuals and the whole. The Stoics did not advocate for a world government, but their cosmopolitanism was based on the common rationality and emotionality of all human beings exercised conjointly

4

I use the term “world government” to describe a sort of government with no external constraint or mediation of states. In this sense, world government is different from global governance, because global governance presumes some kind of external constraint through the mediation of the states. 5 Like Carens [1987] 2008: 213–215, I argue that if free immigration can be seen as a threat to collective or national property rights, it is not a threat to the individual property rights defended by the libertarian theorists. 6 See further arguments against the necessity and desirability of a world government in Pogge 1988: 284–6 and Beitz [1979] 1999: 182–3.

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through the (city-) states.7 This implies that cosmopolitanism was to them not a static concept, but a movement of interaction between atomic individuals and the world through their political belonging to multiple groups.8 In this sense, a positive cosmopolitanism would require the existence of borders understood as forms of manifestations of these belongings. According to this view, cosmopolitanism is perfectly compatible with political membership at the state level, and with the settlement of state borders as spaces of agency of civic membership. Through such interaction among different levels of membership, cosmopolitanism would not be reduced to an individual- or global-centric position based on a mere private or common will; it in fact involves a dynamic interaction between them, resulting in a universally mediated singular will. Even though it is not individual- or global-centric, positive cosmopolitanism has been criticized for being excessively state-centric when supported by a conception of state sovereignty as an absolute power.9 Belonging to the Stoic tradition, Kant and Benhabib challenged this classic conception. Kant relativized the notion of state sovereignty by introducing the cosmopolitan law to the public right—a new category of right which, according to Kleingeld (2012: 75), is detached from, but still interacts with, international law (Kant [1795] 2000: 93–130). The general consequence of such differentiation was the highlight of the specific roles of the right of states and the right of individuals in relation with foreign states. This resulted in the elaboration of a constitutive theory of state sovereignty at the international level and in the establishment of an, albeit restricted, universal right to hospitality to the individuals at the cosmopolitan level. Following Kantian cosmopolitan federalism, Benhabib masterfully proposes to decentralize the democratic attachments to sub- or supra-national spaces making the state borders flexible (porous) in order to accommodate new forms of political membership (Benhabib 2003: 3).10 Consequently, the restricted cosmopolitan law based only upon the right of hospitality has, according to her, to be expanded to include the right of 7

See more in Nussbaum 1997: 58–67; Delanty 2009: 21–27; Appiah xii. About the relevance of the Stoic recognition of the emotions to morality, see Nussbaum 2001: xvi–xxxvii. 8 See the illustration of multiple memberships through concentric circles in Nussbaum 1997: 60. 9 See, for example, Pogge [1992] 2008: 183–187. 10 By “political membership” Benhabib means “the principles and practices for incorporating aliens and strangers, immigrants and newcomers, refugees and asylum seekers, into existing policies” (2003: 1). I will use the term in a broader sense, meaning all kinds of individual affiliations in determined groups.

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membership as a human right (Benhabib 2003: 42). Kant and Benhabib did not, however, challenge one specific fundamental aspect of the territorial rights of sovereign states: the right to exclude foreigners to enter, settle, work and engage politically in their territory.11 From the responsibility of the states to protect their members, and from the exigencies of a representative political system, both authors establish, in different degrees, the necessity of border control. In this paper I explore whether a positive cosmopolitanism can be compatible with the affirmation of open borders. To do so, I critically review Kant’s and Benhabib’s cosmopolitan accounts on immigration and borders guided by the scrutiny of the concepts of right of hospitality and right of membership in the Perpetual Peace (Kant [1795] 2000: 93–130/8: 343–82) and The Right of Others (Benhabib 2003). I argue that, at the state level, a specific political membership in one or another country should be a question of individual choice rather than regulated by the territorial rights of sovereign states. By “state membership” I understand the right to enter, settle in, work in and engage politically in, the territory of a (postWestphalian) sovereign state. In this sense, state membership does not necessarily equal citizenship in its cultural and societal dimension (e.g. nationhood), rather only in its legal dimension: state members include all persons living for a period within the territory of a nation-state. My argument is, however, restricted to the extension of political rights to all state members, and it does not include a response to the cultural and liberal-nationalist arguments against opening the borders. Therefore, in this paper, I do not discuss the implications of having state membership as a question of individual choice in the cultural and societal dimensions of citizenship, but, rather, the possibility of extending legal rights, including political rights, to all state members.

From the Individual Right to Hospitality to the Individual Right to Choose a State Membership In the third definitive article of Perpetual Peace, Kant argues that the cosmopolitan right towards world peace is to be limited to conditions of universal hospitality (Kant [1795] 2000: 105/8: 357). Hospitality is, to Kant, the right of a stranger not to be treated with hostility when peacefully visiting a foreign territory (Kant [1795] 2000: 106/8: 358). This 11 Lægaard argues that the right to exclude immigrants is wrongly simply implied by a general definition of statehood without proper justification (Lægaard 2010: 245–262).

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restrictive formulation of the cosmopolitan right, limited to conditions of universal hospitality, is articulated with an international political system based on the constitutive sovereignty of republican states in a federation, which excludes from the beginning any possibility of world government (not global governance),12 or any necessary relationship between the right to hospitality and the right to membership. The right of hospitality and the right of membership belong, according to Kant, to different spheres of right, namely: cosmopolitan right (ius cosmopoliticum) and civil right (ius civitatis) (Kant [1795] 2000: 98/8: 349). Whereas civil right covers the relationship among individuals within the states, cosmopolitan right regulates the relationship between individuals and foreign state. Citizenship and state membership are under the jurisdiction of the states, and no foreigner has a universal right to claim for that against the sovereignty of the hosting states. This relation can eventually occur due to a contract of beneficence (wohltätiger Vertrag) (Kant [1795] 2000: 106/8: 359), but it is no longer a right, and it does not need to be enforced in order to establish the world peace he seeks. Even if Kant assumes that the increasing peaceful contact between people(s) from different and distant places were to bring humanity closer and closer to a cosmopolitan constitution (Kant [1795] 2000: 106/8: 359), and even if he assumes an interconnection among these places where any rights violation were to be felt everywhere ([1795] 2000: 108/8: 360), borders and the autonomy of the states should not be dissolved at the risk of originating a despotic system. Although restricted, universal hospitality is, as Kant emphasized, a right and not a philanthropic concern ([1795] 2000: 106/8: 357). This means that if it is a right for foreigners, it must also be an obligation for the states to somehow secure this right. Following this view, the enforcement of the Kantian right of hospitality would not be a matter of a mere voluntary agreement as Benhabib and Ittersum affirm (Benhabib 2003: 29; Ittersum 2007: 1). Both authors rely for their arguments on the, even though constitutive, state sovereignty; where the states cannot be forced to promote the right of hospitality because this would collide with their so claimed sovereignty. However, Kant is clear when he says that every state that wants to influence one another must follow a civil constitution, which, according to Kleingeld, in its development in the 12

Kleingeld argues that even though Kant rejects one type of world government, the universal monarchy, it does not mean that he rejects all types of world government. However, to the kind of world government generated by a federative system, I reserve the name “global governance” (Kleingeld 2012: 189). See note 4 about the difference between world government and global governance.

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Metaphysics of Morals, expressly includes the necessity of an articulation rather than only the adherence to a civil, international and cosmopolitan law (Kant [1795] 2000: 98/8: 349; Kleingeld 2012: 73). Furthermore, to Kant, in the Perpetual Peace, a legal civil state can require another state in the state of nature to adhere to some type of civil constitution or to leave the vicinity. To him, even if there is no centralized global executive law or a neutral supreme institution directly enforcing the exercise of the right of hospitality over the states, their adherence to a cosmopolitan law is not voluntary; only the enforcement is indirect. This is because the state of nature is per se a threat to the constitutional state; although it is not a de facto threat, it constitutes a statu iniusto (Kant [1795] 2000: 98/8: 349). Lawful states are mutually required to observe the right of hospitality in order to exercise their power and sovereignty over one another. Therefore, instead of centralizing enforcement of the cosmopolitan law in one political unity or in one supreme institution with no external constraint, risking again having either an ineffective or a despotic system, it is better, Kant thinks, to decentralize it to the particular level. It is rather a (necessary or induced) self-enforcement than a voluntary one. Nonetheless, according to Kant, achieving world peace requires every nation-state to agree upon applying the preliminary and definitive articles of the Perpetual Peace. Hence, nation-states should be, at least, commonly responsible for the enforcement of the right of hospitality, in legal and not only in moral terms. Otherwise, the right of hospitality would be useless towards world peace, while peace would be nothing more than a period in between wars, which is not what Kant seeks (Kant [1795] 2000: 93/8: 343). A (necessary or induced) self-enforcement of the cosmopolitan law does not imply, to Kant, that the right of hospitality should be unconditional (as a perfect duty is). States can decide to deny this universal right of strangers, allowing a hostile treatment towards them, if the states understand that the strangers’ visit represents a threat to its own citizens. However, especially after the recent resurgence of terrorism, globalization, and the world financial crisis, what is considered to be a threat to citizens is far from being a risk to life. When assessing the limitations of the Kantian right of hospitality, Benhabib also questions, for example, whether the convergence between different cultures can be considered as a moral menace, and the competition on the labour market can be seen as a risk to the current living standards of the citizens (Benhabib 2003: 36–37). She acknowledges that the right of hospitality can be arbitrary (widely or narrowly) interpreted (Benhabib 2003: 36). As a result, it can happen that foreigners are, in a justifiable way, treated with hostility without truly deserving it. However, instead of proposing a solution for such arbitrariness

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at the hospitality level—which she considers to be a limitation of the cosmopolitan law grounded on historical reasons—she will push the problem further by connecting the right of hospitality to the right of foreigners to political membership in the hosting country (Benhabib 2003: 38). To her, the right of membership is not a contract of beneficence, as it was once to Kant, but a human right, as the right of hospitality seemed to be. In order to solve this problem of arbitrariness in general, Benhabib establishes exigencies for both states and foreigners. Nevertheless, she accommodates together the (territorial) rights of sovereign states and universal human rights in an excessively prudent way when applying it to immigration policies. While foreigners must fulfil some conditions instituted by states to acquire a new political membership, states must make such conditions transparent, consistent, and non-discriminatory; the non-observance of these conditions can be justiciable when violated (Benhabib 2003: 4). But conditions are still given by states, and it is difficult to affirm that the problem of arbitrariness is solved, since states need only present “the right reasons” to be able to continue to expel immigrants from their territories denying, although indirectly, the human right to migrate (UDHR: Art.13). If states keep the right to turn foreigners away, in the manner that if they behave peacefully, it will be done without hostility and if they offer some kind of danger, with hostility, then, in practice, all universal rights that foreigners have covered by the right of hospitality is a specification about the mode by which they would be expelled. The only situation that requires a different treatment and a full application of the right of hospitality by the states is, in fact, the case of asylum seekers and refugees, since they cannot simply be sent back to their countries.13

A Human Right for Visitors, but not for Guests? How universal is the right of hospitality? Considering the complete extent of the restricted version of the Kantian cosmopolitan right, one could expect that the right of hospitality, a natural right of the strangers as Kant says ([1795] 2000: 106/8: 358) would seek to be universal because it applies to every foreign person. To him, originally, all persons have the right to common possession of the earth’s surface and no one has any privilege to occupy one area over another. Being equally granted by this 13 This different treatment does not mean that they stay in the country in which they seek refuge. They cannot be sent back to their countries, but they can, of course, be sent to safe, developing, countries.

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right, persons could use the natural resources available to them to travel great distances, to settle in inhospitable areas and to attempt contact with others (Kant [1795] 2000: 106/8: 358). Benhabib interprets the earth’s surface as “the limiting condition of our outer freedom” (Benhabib 2003: 34), i.e. a space of agency of human freedom.14 However, the right extended to every foreign person is merely formal. It is important to notice that to Kant a foreign person is entitled to the right of hospitality only as a Besucher and not as a Gast (Kant [1795] 2000: 106/8: 358). Besucher and Gast are colloquially used as synonyms and often translated by the same words, “visitor” or “guest”, interchangeably, which makes it difficult to understand to whom the right to hospitality really applies, and how universal it is. Nisbet, translator of the Cambridge version of the Perpetual Peace, uses “right of resort” to translate Besuchsrecht and “right of a guest” to translate Gastrecht. The word resort would be an appropriate choice, close to the German text, if, to the translator, the meaning of being entertained was not included only in the right of a guest. Resort has the advantage of being polysemantic and having three different meanings from what is included in the Besuchsrecht; (a) the first meaning is refuge, place of refuge or shelter, which makes it natural for us to understand that asylum seekers and refugees are covered by this right. For them, there is also an additional provision saying that they cannot be sent back to their countries if this can put their lives at risk; (b) the second meaning of resort is place of recreation, which could also include tourists and non-worker migrants as holders of this right, were it not for the explicit exclusion of the entertainment by the translator (Kant [1795] 2000: 105)—Colclasure, translator of the Yale version of the Perpetual Peace, does not mention the word entertainment in his translation (Kant [1795] 2006: 82); it is Nisbet that, not successfully, added this word in an attempt to differentiate the right of resort and the right of a guest; (c) the third meaning of resort is resources, which leads us to Kant’s justification of the right of hospitality by the original common possession of the earth’s surface and the use of its natural resources. Benhabib, instead of semantically exploring these meanings, and taking advantage of not being a translator to be more detached from the German text, offers a description of the concepts charged with further explanations. She chooses to translate Besuchsrecht by “temporary right of sojourn” and Gastrecht by “right to be a permanent visitor” (2003: 27) in 14

In this sense, the Kantian justification of the cosmopolitan law would not rely in the same basis as the Lockean res nullius. See Benhabib 2003: 31.

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order to confront one another. She wants to challenge the gap between those two rights (Benhabib 2003: 38) and extend the universal justifications of the right of hospitality to the right of membership. She wonders if and how it would be possible for a visitor to become a political member of a republican sovereignty (Benhabib 2003: 39). It is possible to infer that, to her, guests should be equally entitled to the right of membership, just as visitors are entitled to the right of hospitality. Both must be considered as human rights and justified on universal principles of morality (Benhabib 2003: 42). However, I doubt that this description is an adequate choice to accomplish her goals. Firstly because “temporary right of sojourn” means that the right is temporary, not the sojourn. This can appear as an excessive concern about the language, the one that only linguists and non-native speakers have, but even if Benhabib did not mean it, it really makes a difference in this case. This is because to be capable of promoting the perpetual peace, the right should be stable, constant, and perennial as a definitive article demands. What is temporary is the period that the visitor is allowed to stay in contact with the visiting country. If this is a minor observation about Benhabib’s description of Besuchsrecht, maybe her choice to emphasize ‘sojourn’ makes it not so minor. The fact that this right is compatible with the right of the states to also deny the entrance of peaceful foreigners, means that Besuchsrecht does not mean the right of temporary sojourn, because no sojourn is covered by this right, but only a contact, an approach to the visiting country. Honig defines the Kantian right of hospitality as a right of a permitted visitation or refuge: a proper right of sojourn is not included in her account either (Honig 2006: 106). About the description of Gastrecht as “right to be a permanent visitor”, Benhabib seems to overlook that the Gastrecht is a “right to be a permanent visitor”, but for a non-stable period of time. The only way for the foreigner to become really permanent is through permanent residence (which does not always guarantee political power) or naturalization. Otherwise his/her stay is dependent on the economic and political circumstances in the host country. Besides that, another problem is that by using the word “visitor” she loses the opportunity to benefit from the different meanings of the English words visitor and guest, as Colclasure later did (Kant [1795] 2006: 82). In English, “visitor” means a non-necessarily invited or a non-specially expected person. Contrarily, a guest is an invited or, at least, an expected person. We have visitors to the museum and guests for dinner, for example. This differentiation can be very useful for exploring the concepts of Besuchsrecht as a right for visitors, i.e. a right for non-necessarily

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invited or non-expected, and Gastrecht as a right for guests, i.e. a right for invited or, at least, expected persons. In this sense, when a country needs an extra labour force and opens its borders to the type of foreigners who could contribute to the economy, as in the case of the Gastarbeiters, for example, the guests are somehow invited or expected to move in and fill in some gaps in the market. Then, the country of destination is not merely a visiting country, but a host country. Conversely, if nothing in the country of destination makes foreigners’ presence conducive to the native-born well-being, but rather that they may even be seen as a social, economic or cultural risk to society, they have only a right to be visitors, not guests, as tourists, refugees or asylum seekers, for example. The country of destination is not properly a host, but a mere visiting country. It is important to notice the differentiation between visiting and host country, because the responsibilities of a country of destination as the one or the other are also not the same. Social security, for example, is excluded from the former and included in the latter. One serious problem with this, besides the instrumentalization of persons, is when paperless immigrants do what guests do, but merely have the rights of visitors. This differentiation becomes important in order to clarify the contradictions of having a human right for visitors, but not for guests. Why would we ascribe a right to non-expected persons and not to the expected ones? Why would we be morally allowed to treat persons primarily as means? This is relevant because it consists in the manner in which the Universal Declaration of Human Rights is currently formulated: persons have the right to emigrate, but not to immigrate across national borders. Notably, Benhabib is not proposing the right of membership and the right of hospitality to become the same right in a manner that a tourist could suddenly acquire political membership in a foreign land. She just wants to found both as human rights: every person has the right not to be treated with hostility when visiting a foreign land, and every person has the right to be a political member of a community. The problem with her formulation arises when the attempt to transfer this claim into immigration policies is limited by the sovereign right of states to control their territories, making the right of membership not less formal than the old Kantian right of hospitality.

Rights beyond State Sovereignty By “classic state sovereignty”, we understand the supreme and absolute power exercised by an independent state within its jurisdiction, which is

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presupposed to be (geographically) territorial.15 This implies that a classic sovereign state is not subject to any external constraint. Therefore, the adherence to international agreements or the accordance of their policies with the individual rights is dependent on their ultimate decision. Pogge showed the contradictory nature between absolute sovereignty and (moral) cosmopolitanism (Pogge [1992] 2008: 183). To him, a “cosmopolitan morality […] centres on the fundamental needs and interests of individual human beings and of all human beings” and therefore “[the] concentration of sovereignty at one level [the state level] is no longer defensible” (Pogge [1992] 2008: 184). We see that when a state claims to be a supreme authority, the tendency is to have a strong centralized power at the state level and a very weak international and cosmopolitan law. The borders would be strongly controlled with a significant propensity to have them totally closed when immigration does not represent any profit or direct advantage for the nation-states. The rights of hospitality and of membership would have different justifications and the right to acquire a new citizenship would be restricted. Consequently, considering the differences in political and economic power among the nation-states, the share of resources, and also the tolerance of different cultures could often be an issue. It could be argued, for example, that it is not fair to make some people share their wealth or tolerate what they understand to be non-reasonable cultures, if their good standard of living results from their own work and from their own capacity of management. Finally, in a sovereign state in classic terms, the well-being of the citizens would be concentrated only at the state level regardless of its interaction with other sovereign states. The worse consequence of this approach is the possibility of justifying the well-being of one individual at the expense of another, when the latter belongs to a different nation-state. However, without the claim to be a supreme authority, a different notion of state (sovereignty) can potentially lead us to its compatibility with positive cosmopolitanism. Kant and Benhabib challenged the classic conception of state sovereignty. To them, a state cannot be sovereign by itself, but only in relation to other sovereign states, i.e. in a federation. This means that other sovereign state(s) must recognize a state as sovereign. How could that be done? Not through military power and obligatory army (preliminary articles of the Perpetual Peace, 1, 3 and 6), and not by coercive economic power (preliminary articles of the Perpetual Peace, 2 and 4), but by their adherence to a republican constitution based 15

About the differentiation of classic state sovereignty, liberal international sovereignty and cosmopolitan sovereignty, see Held 2002.

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on principles of freedom, dependence on the same law and equality (first definitive article of the Perpetual Peace). Thus, if all sovereign states recognize themselves as followers of the same republican principles, why are their borders not open to one another? The problem is that, although there is a self-compulsory adherence to a republican constitution at the international level, the more subtle definitions of freedom, equality, and right are still made at the state level. Why did Kant and Benhabib keep the right of hospitality and the right of membership, respectively, subordinate to the territorial rights of sovereign states? Because of that, Kant and Benhabib were criticized for developing a state-centric conception of cosmopolitanism (Ittersum 2007: 2–4; Honig 2006: 116; Waldron 2006: 92). Aware of the consequences, both authors have different answers to the question. To Kant, in a republican federative sovereignty, borders should be controlled because the states have the obligation to protect their own people and territory against outsiders. They have the right to expel those who could potentially prevent their obligations from being accomplished. Border control was also a necessary procedure to avoid justifying the colonization and the exploitation of some nations by more powerful ones (Kant [1795] 2000: 106). But in order not to suppress the individual freedom of attempting contact with others, a right to hospitality is established as an, albeit restricted, universal right. To Benhabib, the solution goes a little bit further. From the Perpetual Peace, she reconstructs the arguments on the constitutive notion of sovereignty based on mutual recognition attempting to adapt them to our very actual necessities of global justice. She challenges the limitations of the Kantian right to hospitality by arguing that the right of membership must also be understood as a human right (Benhabib 2003: 42). Her solution is to propose still controlled, but porous, borders. From this position she goes two steps further than Kant, but she turns one step back when she keeps defending those rights as imperfect duties and not as unconditional ones. This implies that the states would still give the terms and conditions of application of these rights, and despite her requirements for transparent procedures, the decision would be almost as arbitrary as before. Furthermore, a porous border indeed works very well for specific individuals, for skilled workers, those who bring money, knowledge or development to the host country—and for their close family members (Razin et al. 2011: chapters 2 and 3). It also works relatively well for refugees, asylum seekers, those who really require diplomatic assistance. But for those who do not fit into these categories, a porous border means a

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closed one most of the time. Immigration depends on market circumstances: when there is a need to create a reserve mass of unemployed people to increase the competition and lower wages, immigrants are used as a cheap labour source, and expelled when the situation changes. By this logic, borders should be controlled to avoid a loss of democracy and welfare as when competition overly increases in one or more areas, or when the sort of immigrants require more social assistance than they pay in taxes (Razin et al. 2011: chapters 2 and 3). To keep borders officially controlled would guarantee that only a small number of immigrants, or a number that the state can afford without compromising their welfare and social security, would be registered, because the registration would imply full responsibility by the state to guarantee these rights. However, if to guarantee the safety of all citizens is a good reason to advocate for controlled borders, it is also a good reason to advocate against it, when we notice how convenient it can be for a country to receive illegal immigrants, cheap workers with barely any right. The USA, for example, recruited several illegal immigrants to their military services in times of war in exchange for citizenship. Many of those recruits who died in combat had their families deported as illegal immigrants (Baram & Schoetz 2007; Maceri 2007). The functioning of porous borders is then conditioned to the economic system, as if immigration was a mere question of distributive justice. Benhabib wants to amplify the problem of political membership to a matter of global justice considering the different power relationships among states, but her argument is still confined to the economic restrictions of open borders. Benhabib, Brock (with the argument in favour of the remittances and extra taxation for skilled workers living outside their home country), and Seglow (with the argument of minimal quotes of allocation of immigrants from developed countries), reduce immigration to a matter of (re)distributive justice (Brock 2011: 70; Seglow 2006: 237– 45). However, if we consider immigration as a matter of global justice, it seems that there is no reason to defend border controls since every person should be entitled to the same rights, and free mobility is one of the most basic conditions to enable it. Furthermore, to argue in favour of open borders is in agreement with Benhabib’s Arendtian approach to the right to have rights. Why did she not argue in favour of open borders? She wants to keep the borders controlled not because of the primacy of the states over the cosmopolitan sphere, but because she sees it as a necessary condition for political representation. Borders work as the place where the basic foundation of societal well-being is grounded, which presupposes territorial and juridical demarcation and a representative system. Like

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Kant, Benhabib argues that the representative system is in accordance with the principle of right over the pure participative system. She believes that the government must follow this principle in order to avoid the law being made and directly executed by the same persons, which would make it the result of mere private will. It could still be argued against her position that a representative system does not necessarily require borders for persons. It is understandable that a representative system must materialize itself in a determined place and time, which would justify borders for laws and policies, a functional or jurisdictional border; but would not imply the necessity of having borders for persons. However, to Benhabib, the individual persons have an important role in the political decision making process through the representative system. This is because these political decisions result from democratic iterations, a constant tension between popular and state sovereignty. The people are understood as a unity since, because of their similarities, they agree to link themselves by the same rules. It is through such democratic iterations that the people can exercise their sovereignty by being at the same time the authors of, and, in another instance, subject to, the laws institutionally or popularly claimed. When these people bind themselves together, they create a boundary around themselves, a space of jurisdiction of their democracy. Moreover, borders made for rules also mean borders for people, closing definitively, in her perspective, the possibility of a positive cosmopolitanism compatible with open borders. This justification is, however, contingent upon the emerging new models of popular sovereignty and committed to a restricted interpretation of the concepts of democracy and of state sovereignty. When people with similar needs and interests start to accord to bind themselves irrespective of state borders, it seems that these borders are no longer playing any definitive role in the democratic iterations. This proves that societal membership is not a defining condition for democracy (Beckman 2012: 35). Therefore, democracy, understood as self-governance, does not need state and controlled borders, but the extensive possibility of self-ruling and consequently the possibility of acquiring new political membership(s) also at the state level. Furthermore, Benhabib does not explain why a republican federative sovereign state would have the right to expel immigrants from other republican federative sovereign states if their sovereignty depends on mutual recognition; or, differently put, she does not tell why, in these terms, a sovereign state would have right to deny recognition to a citizen of another sovereign state. In this regard, what would the significant difference between a sovereign state in absolute terms, and in a federation, be? In short, the denial of the possibility of a

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positive cosmopolitanism, to Kant and Benhabib, is based on the unjustified assumption that state sovereignty necessarily implies the control of movement of persons across borders.

Conclusion and Perspectives In this chapter, I argued that positive cosmopolitanism is compatible with open borders, when state membership is considered to be a question of individual choice rather than a prerogative of the nation-states. My starting point was the polarizing of the western origins of the conception of cosmopolitanism, the negative and the positive. Acknowledging that the political dimension does allow the possibility of multiple memberships, including the membership at the state level, the negative conception was dismissed, even though not totally. The lasting aspect of negative cosmopolitanism, in my view, is the attempt to defend the possibility of opening the state borders based on the assumption that individuals are originally “citizens of the world” and thus they have the right to choose their state membership, as they have the right to choose any other (ordinary) type of membership. My argument did not challenge the cultural or the liberal nationalist defence of controlled state borders, but rather only the political perspective that considers people as legal persons, as authors and subjects of the law. Within the positive tradition, I brought back the Kantian cosmopolitan law restricted to the right of hospitality, and Benhabib’s notable attempt to expand it with the inclusion of a right of membership, since they challenged the classic conception of state sovereignty which makes the state borders, if not closed, strongly controlled. However, I argued that even so, neither author challenged one specific fundamental aspect of the territorial rights of sovereign states: the right to exclude foreigners to enter, settle, work and engage politically in their territory. Kant had historical reasons for not doing it, but Benhabib, in opposition, had pressing current reasons for doing it. However, to her, the self-legislating act gives citizens the right to control their surroundings and consequently to control their borders and the movement of persons. The problem is that it seems justifiable not only that insiders can decide upon outsiders, even if their decision could directly affect the outsiders’ life, but that insiders can deny outsiders the right to become insiders even if they want and are prepared to follow rules of the new community—as if democracy was based on cultural and societal membership. When we have members, of course, we have insiders and outsiders. Membership requires, in this sense, borders; and this is the same for state

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membership. However, the definitive point is that state membership does not necessarily imply the right to exclude persons from becoming members and crossing borders. Actual state members have the right to rule themselves, but they do not have the right to rule others without their consent. To deny to the actual state members their alleged “right to exclude foreigners from their boundaries” does not imply the denial of democracy. Democracy is the right to self-governance, but it is the right to self-governance to every single individual as such. Morally, nowadays we all are committed to egalitarianism (Blake 2013). Therefore, it seems that it is no longer justifiable to conceive of democracy as being primarily within the borders of pre-determined (cultural or societal) groups or communities, giving preference to existing members as Benhabib does. When membership implies inclusion of a person in one group, it is certain that the same act of becoming a member of this group will automatically exclude this person from other (directly) opposed groups.16 This is totally legitimate and has nothing to do with democracy. What is neither democratically legitimate, nor justifiable, is membership implying involuntary exclusion, or the exclusion of individuals from non-opposed groups, without any previous act of voluntary inclusion, as this is a violation of self-governing rights. Therefore, state membership should be a question of individual choice, rather than a prerogative of the nation-states. Considering state membership as a question of individual choice would allow us to relate the right of hospitality to the right of membership within the positive cosmopolitan perspective without being state-centric, firstly, because the decision to become a state member would be made according to the individual choices regardless of previous citizenship and, secondly, because the territorial rights of contemporary sovereign states would no longer include the power to control the mobility of persons across their borders. Finally, a state membership based on individual choice is precisely what is going to make open borders compatible with territorial states.

16

However, many groups are not directly opposed and multiple memberships are possible. Whether state membership should be directly opposed to other state membership or not is another discussion. Dual citizenship is a case where citizens are political members of more than one country.

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References Appiah, Kwame Anthony. 2006. Cosmopolitanism: Ethics in a World of Strangers. New York: Penguin Books. Baram, Marcus and David Schoetz. 2007. “A Military Wife’s Rock and Hard Place”. Abc News, June 20, Politics section, USA edition, http://abcnews.go.com/TheLaw/story?id=3297537 (accessed August 2012). Beitz, Charles R. [1979] 1999. Political Theory and International Relations. Princeton: Princeton University Press. Benhabib, Seyla. 2003. The Right of Others: Aliens, Residents and Citizens. Cambridge: Cambridge University Press. —. 2006. Another Cosmopolitanism. With Jeremy Waldron, Bonnie Honig, and Will Kymlicka, edited by Robert Post. New York: Oxford University Press. Beckman, Ludvig. 2012. “Is Residence Special? Democracy in the Age of Migration and Human Mobility”. In Territories of Citizenship, edited by Ludvig Beckman and Eva Erman, 18–39. Chippenham and Eastbourne: Palgrave Macmillan. Blake, Michael. 2013. “We Are All Cosmopolitans Now”. In Cosmopolitanism versus Non-Cosmopolitanism: Critiques, Defenses, Reconceptualizations, edited by Gillian Brock, 35–54. Oxford: Oxford University Press. Brock, Gillian. 2011. “Feasibility, Nationalism, Justification, and Global Justice: Some further thoughts”. Global Justice: Theory Practice Rhetoric 4: 50–76. Carens, Joseph H. [1987] 2008. “Aliens and Citizens: The Case for Open Borders”. In Global Justice: Seminal Essays, edited by Thomas Pogge and Darrel Moellendorf. Vol. I, 211–233. St. Paul: Paragon House. Delanty, Gerard, 2009. The Cosmopolitan Imagination: The Renewal of Critical Social Theory. Cambridge: Cambridge University Press. Desmond, William. 2008. Cynics. Durham: Acumen. Held, David. 2002. “Law of States, Law of Peoples: Three Models of Sovereignty”. Legal Theory 8: 1–44. Honig, Bonnie. 2006. “Another Cosmopolitanism? Laws and Politics in the New Europe”. In Another Cosmopolitanism, edited by Robert Post, 102–128. New York: Oxford University Press. Ittersum, Linde van. 2007. “Toward Perpetual Peace: Essay on Kant’s Cosmopolitan Ideal”. Paper intensive Program “Democracy and Knowledge”, Tilburg: Tilburg University

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http://www.iphils.uj.edu.pl/democracy/htm/papers/Linde_van_Ittersum XXX.pdf Kant, Immanuel. [1795] 2006. Toward Perpetual Peace and Other Writings on Politics, Peace, and History. Edited by Pauline Kleingeld. Trans. David L. Colclasure. New Haven: Yale University Press. —. [1795] 2000. Perpetual Peace: A Philosophical Sketch. Edited by Hans Reiss. Trans. H. B. Nisbet. Cambridge: Cambridge University Press. —. 1795. Zum Ewigen Frieden. Ein Philosophischer Entwurf. Edited by Wilhelm Weischedel. Kants Werke, Bd. 11, 20: 622–712. Frankfurt am Main: Suhrkamp Verlag. Kleingeld, Pauline. 2012. Kant and Cosmopolitanism: The Philosophical Ideal of World Citizenship. New York: Cambridge University Press. Long, A. Anthony, 2008. “The Concept of Cosmopolitan in Greek and Roman Thought”. Daedalus, Summer: 50–58. Lægaard, Sune. 2010. “What is the Right to Exclude Immigrants?” Res Publica 16 (3): 245–62. Maceri, Domenico. 2007. “Deporting Parents of Dead Soldiers is ‘Excessive’ and ‘Harsh’ Punishment”. New America News, September 4, Politics section, New York and Washington D. C. edition, http://news.newamericamedia.org/news/view_article.html?article_id=d 44dad7d12128d8af634c39e814ca402 (accessed August 2012). Nussbaum, Martha Craven. 1997. Cultivating Humanity: a Classical Defense of Reform in Liberal Education. Cambridge: Harvard University Press. Nussbaum, Martha Craven. [1986] 2001. The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy. New York: Cambridge University Press. Pogge, Thomas. [1992] 2008. “Cosmopolitanism and Sovereignty”. In World Poverty and Human Rights, 174–201. Cambridge and Malden: Polity Press. —. 1988. “Moral Progress”. In Problems of International Justice, edited by Stephen Luper-Foy, 283–304. Boulder and London: Westview Press. Razin, Assaf, Efraim Sadka and Benjarong Suwankiri. 2011. Migration and Welfare State: Political-economy Policy Formation. Cambridge (Mass.) and London: The MIT Press. Seglow, Jonathan. 2006. “Immigration Justice and Borders: Towards a Global Agreement”. Contemporary Politics 12 (3–4), September– December: 233–246.

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Waldron, Jeremy. 2006. “Cosmopolitan Norms”. In Another Cosmopolitanism, edited by Robert Post, 83–102. New York: Oxford University Press.

CHAPTER THIRTEEN “SHALL NOT BE DENIED THE RIGHT TO USE THEIR OWN LANGUAGE”: A HOHFELDIAN ANALYSIS OF LANGUAGE RIGHTS MANUEL TOSCANO1

Talk about language rights figures prominently in contemporary discussions on language diversity and language policies. Take for example the collection of essays edited by Will Kymlicka and Alan Patten, Language Rights and Political Theory. It is easy to spot the synecdoche in the title of this ground-breaking book, where “language rights” comes to be the label covering the whole range of issues about languages and languages policy addressed by the volume’s contributors. To be sure, Kymlicka and Patten offer in their introduction an overview of the kinds of issues involved in language disputes realizing that not all of them need to be framed as questions about “language rights” (Kymlicka and Patten 2003: 26). Nevertheless, as a matter of fact, all sorts of claims about languages are wrapped and put forward in the language of rights. This is an inevitable consequence of the pervasiveness of rights in our political culture. Rights talk has become a ubiquitous feature of our public culture, firmly anchored in our moral, legal and political arguments. It is little wonder that language disputes follow the same pattern as everything else. As is well known, the renewed interest in rights in contemporary political theory can be traced back to the seventies, and is linked to the rise 1

University of Malaga. I would like to thank the participants in the International Workshop Ethics, Rhetorics and Democracy. Contemporary Themes in Ethics and Political Philosophy III held at the University of Tromsø for the helpful discussion of a former draft of this paper. I am particularly thankful for insightful comments from Jan Harald Alnes and José María Rosales. This chapter is part of the Civic Constellation project (Spain’s National Research Fund, FFI2011–23388).

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of liberalism and criticisms of utilitarianism in social and political thought. However, the focus on linguistic justice and language rights is much more recent and has grown mostly from the debates on multiculturalism in the nineties and, more precisely, on how to justify claims by cultural minorities in relation to liberal principles and institutions. While the most famous advocate of liberal multiculturalism by far is Will Kymlicka, it is worth highlighting the pioneering work on language rights of the Canadian legal scholars, Leslie Green (1987) and Denise Réaume (1988, 1994). The idea of human rights has played a significant role in the literature on language rights. Broadly conceived, the “language rights paradigm” arises as an interdisciplinary field in response to the global phenomena of language shift and language death, thus interacting with other ecological and sociolinguistic approaches towards language issues. Hence its almost exclusive focus on endangered languages, language decline and minority language speakers (May 2012: 2). Human rights discourse captured the attention of minority language scholars and activists long before philosophers were interested in questions about linguistic justice, and they developed the so-called “human rights approach to language rights” as a normative framework for the protection of lesser-used languages (Skutnabb-Kangas and Phillipson 1994; May 2011). Given this broad interest in language rights, it is all the more striking that it has developed as a subject field practically isolated from legal and philosophical discussions on rights in general, and quite apart from the main concepts, debates and dividing lines in the theory of rights. Rather, the discussion on language rights has been carried out with concepts and typologies of rights completely sui generis and created ad hoc for this discussion. For instance, there is no trace or mention of the deep-seated debate between choice or will theories versus interest theories of rights, the main line of division in the theory of rights having significant normative implications. By contrast, the taxonomy of language rights based on the distinction between tolerance-orientated versus promotionorientated languages regimes is practically omnipresent in the field. This isolation is understandable in so far as research on language rights initially took place in sociolinguistics, applied linguistics and related disciplines, but surprisingly enough, it continued when philosophers, political theorists and legal scholars also began to address this kind of issues. This is a noticeable point as regards discussions on languages rights. More specifically, a set of analytical tools, widely used in legal and philosophical thinking about rights, has been completely ignored in the literature of language rights, where they could be equally helpful. I mean the analytical framework of legal rights developed early in the twentieth

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century by the American jurist Wesley Newcomb Hohfeld.2 In this chapter I do not presume familiarity with Hohfeld’s approach or the literature on rights in general, and the first part is an adapted presentation of his main ideas along with some few contemporary additions. Secondly, I hold that Hohfeld’s account should be seen as a powerful analytical tool for examining language rights and framing issues in normative debates. To put it to the test, the discussion will be focused on the alleged right to speak our own language under human rights international standards, insofar as this is commonly considered as a sort of baseline for language rights.

The Hohfeldian Analytical Framework To philosophers and legal scholars who have devoted substantial attention to studying the concept of rights in the twentieth century, Hohfeld’s work is widely acknowledged as the most impressive contribution to its research (Dagger 1989: 304; Kramer, Simmonds and Steiner 1998; Wenar 2011). As L. Wayne Sumner suggests, when it comes to inquiring into the concept of rights the beginning of wisdom lies in Hohfeld’s celebrated classification of “fundamental legal conceptions” (Sumner 1987: 18). Naturally, as a professor of jurisprudence, Hohfeld was concerned with the term “right” as part of lawyers’ vocabulary, particularly as used in judicial reasoning.3 But this does not preclude the fact that his work might also be useful outside the legal discourse and applied, for example, to moral rights. This caveat should be stressed in so far as in the literature on language rights, most notably in the human rights approach to language rights, it is not always clear whether scholars are talking about legal or moral rights. Hohfeld was bewildered by the fact that legal talk about rights is in a muddle. As he notes, muddled language makes clear thinking difficult and almost inevitably leads to flawed reasoning, a warning that an observer of current discussions on language rights should take to heart. At the root of 2

It is difficult to find any mention of Hohfeld in the literature on language rights. For example, in the volume edited by Kymlicka and Patten, Hohfeld does not appear in either the bibliographic references or in the index. As far as I know, the only exception is Ellis 2005. 3 As the title of his ground-breaking article indicated: “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning”, Yale Law Journal, 23 (1913). Together with a second article with the same title in Yale Law Journal 26 (1917) and other legal essays, they were edited posthumously in 1919 by Walter Wheeler Cook.

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this conceptual mess lies the fact that when lawyers talk about rights they can be actually referring to four different legal positions, which must be carefully distinguished: claims, privileges, powers and immunities. However, before considering each one of these legal conceptions, we should take notice of a paramount assumption in Hohfeld’s approach (Finnis 1980: 199). We are accustomed to talking about rights, like the right to life, the right to property, the right not to be tortured, or, say, the right to speak one’s mother tongue, hence it sounds perfectly natural to think of rights as a relationship between the right holder and the “thing”, good or service to which one is entitled. Instead, following Hohfeld, we have to understand rights not as a two-term, but as a three-term normative relationship. Whenever we ascribe a right to a person A, we mean that A holds a legal position in relation to another person B concerning an actdescription p, which constitutes the content of the right. This latter is a significant point for an accurate grasp of the grammar of rights: whatever the content of a right, it always involves some kind of action, or can be redescribed as an action, provided that certain states of affairs can be seen as the outcome of an action, and actions are understood as comprising omissions and forbearances. In other words, the matter of the right necessarily concerns an action performed by either the holder or the bearer of the correlative position, and this behaviour may consist either in performing some action, like assisting or providing a service, or in refraining from doing something. Of course, we may keep talking as usual about “rights orientated to the thing”, that is, as entitlements to something, but under the condition that such rights can always be spelled out as normative relations between individuals concerning their acts or the consequences of their acts. According to Hohfeld, “the term ‘right’ tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense” (Hohfeld 1919: 36). So, instead of being confusingly subsumed under the loose label of “right”, Hohfeld proposes considering these four fundamental legal conceptions apart as specific positions in different legal relations. However, one must be careful about the labels, since words like “claims”, “privileges”, “powers” and “immunities” have completely different meanings in common usage. To prevent misunderstandings, these legal conceptions are defined as terms of art by means of a scheme of “jural correlatives” and “jural opposites”. All that Hohfeld strictly means by such terms is the normative position in a relationship so explained. We may start by referring to what Hohfeld understands as “a right in the strictest sense”. A claim, as he calls this fundamental legal concept by

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contrast with the “broad and indiscriminate” sense of right, is defined as having a correlative duty, and a no-claim as opposite. Take one example from Hohfeld: if A has a claim against B that B does not enter A’s land, that means that B is under a duty towards A that B does not enter A’s land. Following the excellent presentation of Judith Thomson (1990: 41ff.), we can formulate this relationship: C [A, B, p] Where C stands for the claim-right, A is the holder of the claim, B the person who bears the correlative duty, and p the content of A’s claim, that being logically the same as the content of B’s duty, that is, what has to be the case for B fulfilling his duty, in our example that he refrains from entering in A’s land. Similarly, if D means the correlative duty, that can be represented as D [B, A, p]. Thereby, a claim is defined strictly by the following equivalence: (1) Def. claim: C [A, B, p] l D [B, A, p] A few comments on this definition are in order. Being a logical equivalence, C [A, B, p] implies D [B, A, p] and D [B, A, p] implies C [A, B, p]. This captures the well known thesis about the correlativity between rights and duties, but we have to realize that this thesis does not apply to rights “in the broad and indiscriminate sense”. Correlativity only defines rights “in the strictest sense”. Naturally, the content of A’s claim corresponds exactly to the content of B’s duty, so we can see or find out when A’s claim has been respected or infringed, as in our example whether B stays off A’s land or not. Therefore, the content of the claim always refers to the behaviour of the person bearing the correlative duty, concerning what B must do or must not do. As they involve doing or not doing something, B’s duties may be positive or negative. A second legal notion is privilege. According to Hohfeld, A’s privilege in relation to B is defined by the correlative position of B as regards A, namely, that B has no-claim against A. Suppose, for instance, that A gets the permission of B to enter B’s land. In that case A has a privilege regarding B to enter B’s land since B has no claim against A that A does no enter B’s land. So, the definition of a privilege, symbolised as P [A, B, p], can be formulated as follows: (2) Def. privilege: P [A, B, p] l ¬C [B, A, ¬p]

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Furthermore, if claims are equivalent to correlative duties, a no-claim must be equivalent to the correlative lack of duty. More precisely, a privilege is equivalent to the lack of a duty of opposite content. In other words, A’s privilege to p is equivalent to A not being under a duty towards B, a duty that A discharges if she does not do p, in our example not entering B’s land. By (1), a privilege can also be grasped in this way: (2’) P [A, B, p] l ¬D [A, B, ¬p] If we compare privileges with claims, some points are noteworthy. First, claims have a peremptory or categorical force, as they amount to constraints upon the behaviour of other agents, something lacking in privileges. By comparison, privileges seem weaker in normative terms, for they just imply the absence of the opposite duty. Second, while the content of a claim makes reference to actions or consequences of action from the person who bears the correlative obligation, in the case of privileges the content only concerns the holder’s own actions. In our example, the privilege of A is not about what B is obliged to do or to refrain from doing, but about whether A may enter B’s land. From this a last point follows: unlike claims, there is nothing that strictly counts as violating or infringing A’s privilege. How could it be the case if a privilege is just the lack of a duty with the opposite content? If A has the privilege of entering B’s land, A may enter B’s land or not as he likes, but there is no obligation to comply with it, nor a claim susceptible of being infringed. The distinction between claims and privileges is celebrated as a significant contribution to the study of rights. Being entirely different normative positions, as claims entail duties and privileges the lack of duties, they should not be disguised under a loose and undiscriminating notion of right. Besides, the Hohfeldian account allows us to get rid of a further confusion about the relationship between claims and privileges. Often, people tend to think about cases as A’s privilege to do p as implying something more than just A’s having no duty as regards B of not doing p. So in our example, A’s privilege of entering B’s land has to be accompanied by B’s duty of not interfering in the case that A chooses to enter B’s land. However, as Hohfeld makes clear, there is no logical entailment here: P [A, B, p] does not entail C hence D [B, A, ¬q] neither.

[A, B, ¬q],

if

¬q

stands for not interfering, and

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Remember that, according to (2’), P [A, B, p] is equivalent to ¬D [A, B, ¬p]. A’s privilege is correlative with B’s no-claim regarding A and ¬p, namely ¬C [B, A, ¬p], or equivalent to A’s not having a duty as regards B and ¬p, but nothing else, like A’s claim or an obligation incumbent on B, is conceptually or logically necessary. Moreover, in the case that B had a duty of not interfering with A’s privilege of entering B’s land, the content of this duty would not match the content of the privilege. It would be a different legal relation between A and B. So jumping from the fact that A has a privilege as regards B and p to the conclusion that B has a correlative duty towards A of not interfering is plainly a nonsequitur. In brief, privileges as such do not entail claims. Of course, there may be cases in which privileges are accompanied or protected by claims, but that is a different thing. Take our example that B gives A permission to enter his land. It may be the case that A holds a complex normative relation with B, composed by both a privilege and a claim with different contents: the privilege of entering B’s land (P [A, B, p]) and the claim against B that B must abstain from impeding A’s access to B’s land (C [A, B, ¬q]). Here, A has two Hohfeldian positions as regards B. Nevertheless, the grouping of two or more Hohfeldian incidents is not a matter of conceptual analysis or logical necessity, but something to be established or justified by way of normative, legal, or moral, argument. According to what is common in contemporary rights theory, this complex relation combining two simple Hohfeldian positions can also be considered as a sort of right, namely a molecular right. And this is a very consequential point about rights: packages or clusters of various Hohfeldian incidents are usually called rights, too. What is more, our most cherished rights, the rights we talk most about, such as the right to life, freedom of speech, contractual rights, property rights and so on, are actually complex packages of Hohfeldian positions, as Hohfeld himself recognized (1919: 96–7). We have hitherto found the simplest form of a molecular right to consist of a privilege and a claim. Departing from Hohfeld’s terminology, Thomson labels this kind of cluster-right combining a privilege and a claim “liberty”, understanding that it is more congenial with common usage (Thomson 1990: 53–54). By contrast, Hohfeld uses “liberty” as a mere synonym with “privilege” (Hohfeld 1919: 42), and most contemporary scholars follow him; even if they commonly prefer the term “liberty” to “privilege”, they are referring to the same Hohfeldian position (Finnis, 1980; Sumner 1987; Kramer 1998). Henceforward I will follow Thomson in reserving “liberty” for the kind of complex right consisting in a

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privilege along with a claim. It is merely a stipulation to prevent confusion, but nothing hinges on this terminological choice. So understood, liberties are not simple aggregation of Hohfeldian positions, but they take a characteristic shape. Borrowing Herbert Hart’s well known expression, the claim works as a sort of “protective perimeter” for the privilege, as in our example above, shielding the exercise of the privilege against some unwelcome interferences. 4 Adapting Hart’s idea, Carl Wellman has suggested that all rights display a similar structural pattern: legal and moral rights are clusters of Hohfeldian positions in which we can always discern the existence of a core protected by a number of associated normative positions (Wellman 1997: 7). In our example of a liberty, the privilege constitutes the core, the claim being the protective shield. Obviously, this is a very simple pattern, for all the four Hohfeldian incidents may constitute the core and various combinations of them the periphery of cluster-rights. So far, we have considered claims and privileges only. These are firstorder normative positions in Hohfeld’s account. Claims and duties, privileges and no-duties, refer to actions. By contrast, powers and immunities are second-order legal positions. Not being concerned directly with actions, they are about other legal positions, more precisely, the ability or inability to change legal relations. Nevertheless, although at a different level, power and immunity have the same relationship to each other as claims and privileges. According to Hohfeld, a power is the ability to change one’s own or another’s legal position, to the effect of creating, altering, or cancelling a Hohfeldian incident. The correlative position is someone’s liability to have his legal relation changed by the person holding the power, and the opposite is the inability to make such a change. Thus A holds a power regarding B, if A can change by his acts some of B’s Hohfeldian firstorder positions, as claims or privileges. Very often, a person exerts power over himself, changing his own legal position. A good example is a promise, for by making a promise of doing p the promisor creates a duty towards the promisee of doing p. In the same way, property rights or contractual rights typically include powers too. Indeed, powers can also affect second-order positions as powers and immunities. Taking this into account, if PW stands for a power, A the power’s holder, B the person 4

Actually, Hart speaks of a liberty protected by a perimeter of duties, though not necessarily made up of claims specifically related to the privilege (Hart 1982: 171ff.).

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who is liable to A’s power, and x is the Hohfeldian position affected, whereas L means to be liable, a power can be defined as follows: (3) Def. power: PW [A, B, x] l L [B, A, x] The last Hohfeldian position is immunity. An immunity is correlative to the inability to change the holder’s legal position, the opposite being to be liable to such a change. Obviously, such inability is the same as the lack of power to make such changes. Thereby, A holds an immunity against B in the case that B lacks the power to alter A’s legal position, whereas the opposite would be if A were liable to B’s power. Naturally, if a person had a power over himself, in the same way it would also be perfectly possible that he held an immunity against himself. So, immunities are necessary for understanding the notion of inalienable rights. In short, if I represents the immunity, this legal relationship can be expressed in the following way: (4) Def. immunity: I [A, B, x] l ¬PW [B, A, x] To summarize, in Hohfeld’s account all assertions about rights can be explained in terms of these four legal positions, or a collection of them, without remainder (Finnis 1980: 199). Generally, most rights we talk about are cluster-rights containing several of these Hohfeldian positions. So, my property rights on my apartment, for example, typically involve the privilege of using it, claims excluding others from accessing the apartment without permission, and powers to permit others to get into, rent, or sell it. Besides, while Hohfeld’s analysis was confined to legal talk and judicial reasoning about rights, it is apt to be extended to moral and political talk about rights. And last, in order to appreciate the practical significance of rights, we have to retain the centrality of claims, or “rights in the strictest sense”, and duties in the whole picture. For privileges are defined by the absence of correlative claims. As second-order positions, powers are the ability to alter claims and privileges, as well as other powers and immunities. And, in parallel, immunities imply the lack of correlative powers to alter a Hohfeldian incident.

Language Rights under International Human Rights Law Hohfeld’s explanation developed as a conceptual analysis of rights. It has the advantage of being perfectly neutral with regard to normative disputes, and it enables us to set up an analytical framework. So it happens with the perennial controversy between choice and interest theories in philosophy

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of rights, since using the Hohfeldian analytical tools does not commit us to taking sides, but establishes a common ground for discussion (see Kramer, Simmonds and Steiner 1998). Likewise, applying these analytical tools to language rights is not meant for settling substantive issues or supporting normative standpoints about them. The prospects are certainly more modest. As a legal scholar wisely advises: “Hohfeld provides answers to very few questions. His work is useful primarily for clarifying and framing issues” (Nyquist 2002: 238). But it is a powerful tool for exploring issues as complex and hazy as language rights. Framing language rights in definite terms and clearing the way for argumentation and debate should be regarded as a significant step in current discussions. As a brief reviews shows, many scholars voice their dissatisfaction about the awkward situation of the notion. From the standpoint of an international legal scholar, Lauri Mälksoo sees the growing interest in the notion, but draws attention to the fact that “the content of these rights is at a relatively primitive stage of development” (Mälksoo 2000: 432, 465). Further, he regards “the unclarity about some fundamental aspects of language rights”, in so far as their meaning and scope remain “elusive”, as one main reason why the notion is undeveloped in international law (Mälksoo 2000: 432–3). As another lawyer notices, “scholars disagree vehemently about the appropriate definition of language rights and the significance of the competing interests in the articulation of these rights” (Elias 2009: 264). Moreover, it is well known that philosophers and political theorists have not been interested at all in these matters, at least until recently. So no wonder that Ruth Rubio-Marin considers that “language rights, as moral and legal categories, have thus far received little attention” (Rubio-Marin 2003: 52). More bluntly, in the introduction to a book about linguistic rights, Roland Kibbee contends that “the practical meaning of language rights has not yet been established everywhere” (Kibbee 1998: x). In order to explore the practical meaning of language rights, we can start by asking if something like a basic and straightforward right to use our own language under international human rights standards exists. To begin with, we should remember that this way of speaking of rights as entitlements to something is simply shorthand for a moral or legal relationship between persons, including artificial persons such as corporations and states. Further, sometimes advocates of the human rights approach to language rights take them to be “fundamental human rights”, and this leads to the view that a single unqualified right to use a language exists. Here the distinction between legal and moral rights turns out to be

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indispensable to know if we are talking about the rights actually acknowledged or the rights that should be acknowledged by the law.5 It would also be instructive to ask what kind of Hohfeldian position, or cluster of them, is meant by such a right. For scholars agree that under international law there is not a basic right to use a language, but a variegated collection of rights affecting the use of language (De Varennes, 2001: 16). However, some international legal instruments give the impression that such a simple right exists under international human rights law. So the fourth paragraph of the Preamble of the European Charter for Regional or Minority Languages (1992, entry into force 1998) reads: Considering that the right to use a regional or minority language in private and public life is an inalienable right conforming to the principles embodied in the United Nations International Covenant on Civil and Political Rights, and according to the spirit of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms.

Developed under the auspices of the Council of Europe, the Charter is celebrated as the most advanced international legal instrument for the protection of minority languages. 6 Hence the focus on the right to use regional or minority languages, as it is habitual in the literature on language rights, under the assumption that majority or official language speakers have their rights fully guaranteed by national laws. But is there really any inalienable right to use one’s language in private and public life? What exactly does it mean in Hohfeldian terms? As we have seen, it could be understood as a series of privileges regarding the use of the language, but that does not imply that others have any kind of duties towards the speaker. The idea of liberty, in the sense explained above, may be more promising. Roughly, that would mean that speakers enjoy an unrestricted privilege to use their own language in private and public life, along with some protective claims against unwelcome interferences. But if public life includes official settings like courts of justice, public schools, 5

The lack of distinction between moral and legal rights should doubtless be stressed as a major source of confusion in the discussion of language rights. 6 Nevertheless, the Charter does not say much about language rights. It takes a completely different approach as it aims to protect languages by placing duties on State Parties instead of creating rights for speakers. Besides, there are significant restrictions built into the definition of regional and minority languages covered by the Charter, ruling out, for example, immigrant languages (Woehrling 2005). See the webpage of the Charter at the Council of Europe: http://www.coe.int/t/dg4/education/minlang/default_en.asp.

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health care and welfare services provided by state or local authorities and so on, this cluster-right should comprise as well positive claims to be understood and addressed in the language of our choice by public officials and authorities. Moreover, being an inalienable right, it implies immunities correlative to the lack of powers of governments and legislatures to annul or alter these privileges and claims. Again, is there such a complex right under international law? Looking at the core of international legal instruments on human rights, the so-called “International Bill of Human Rights”, composed of the Universal Declaration on Human Rights (1948), together with the twin International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights (1966, entry into force in 1976; hereinafter ICCPR and ICESCR, respectively), the question is far from having a clear and definite answer, as suggested in the passage quoted. First of all, expressions such as “language rights” or “linguistic rights” are not even mentioned there. Strikingly, given the prevailing understanding of language rights as cultural rights, scant references to languages are found in the catalogue of civil and political rights laid down in the ICCPR, not in the ICESCR. With one notable exception, what we notice in the document are the consequences concerning the idioms of classic civil liberties, in some cases expressly mentioned but implicit in others. For example, Article 14 of the ICCPR includes among the guarantees for a fair trial the defendant’s right to be informed “in a language which he can understand” of the nature of the charges against him as well as the right “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”. From the right to privacy (Article 17) and freedom of speech (Article 18) can also be drawn significant implications for protecting the use of languages. If free speech means the freedom to receive and impart information “orally, in writing or in print, in the form of art, or through any other media of his choice”, that should be interpreted as covering the free choice of the language in which ideas and information are conveyed. The right against unlawful interferences with privacy, home or correspondence protects the use of the language of one’s choice in private life. Besides, discrimination on the ground of language is explicitly forbidden as it concerns the equal enjoyment of human rights (Article 2). Naturally, from these few references, not all explicit in the ICCPR, it does not follow that there is an inalienable right to freely use a language in private and public life. We cannot speak of a basic right in so far as these rights concerning language are various and grounded in other rights, like the right to fair trial, to privacy, freedom of speech and non-

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discrimination, and thus they should be seen as derivative rights implied, subsumed or justified by basic rights. More importantly, these derivative rights are diverse in Hohfeldian terms. At the core of the right to free assistance of an interpreter we see a claim of defendants correlative to the positive duties of courts and public authorities to secure this kind of language services. As related to free speech, free association and privacy, derivative rights have to be understood at most as liberties in the sense stipulated above. Remember that we are using liberties not as synonyms for privileges, but to naming cluster-rights composed by privileges protected at least by negative claims against some sort of interferences. The privilege to use my own language just implies that I am not under the duty of not using it, and the negative claim only adds a protection against others impeding me to use my language. However, to be at liberty to use my language does not mean that another person is under a positive duty of responding to me in the same language, not even paying me attention. For sure, all this falls short of a quite demanding inalienable right to language as seen before. So, the drafters of the European Charter on Regional and Minority Languages must have thought in Article 27 of the ICCPR, where provisions for ethnic, religious and linguistic minorities are laid down as follows: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

This is a remarkable article as it contains the only reference to the protection of minorities in international human rights law, and linguistic minorities are expressly spotted. For dealing with so heated an issue, the careful way in which it is phrased deserves a close inspection. As expected, much attention turned to the individualistic wording of the article meant to prevent a collectivistic understanding of minority rights: it is persons belonging to linguistic minorities, in community with other members of their group, who are entitled to use their own language.7 But not least significant here is the phrase “shall not be denied the right”. While language regimes and linguistic policies vary hugely among states as according to demographic and linguistic local circumstances, this 7

For a discussion of the alleged collective character of language rights and the two ways of understanding collective rights, see Toscano 2011.

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phrase in the article establishes the baseline for language rights under international law. Regrettably, its meaning is far from clear. So, the interpretation of this phrase represents the key point for understanding what kind of right to use their language enjoy members of linguistic minorities under human rights standards. At a glance, there is a noticeable contrast with the language used elsewhere in the Covenant: instead of more positive formulas such as “shall have the right” or “has the right”, the negative wording of “shall not be denied” is striking, even by comparison with prohibitions of state actions expressed as “no one shall be subjected to”. The contrast is even more striking when it is compared with Article 2 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities adopted by the General Assembly of United Nations in December 1992: Persons belonging to national or ethnic, religious and linguistic minorities […] have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.

This provision of the United Nations Declaration on Minorities is a clear reflection of ICCPR’s Article 27, except for some changes. Here we find a straightforward assertion of the right of minority language speakers, adding some specifications: it will be freely exercised, exempt from interferences and discrimination, in both private and public. What such specifications add to the wording of Article 27, whether they are merely redundant, making explicit or developing some points, is open to discussion. Nevertheless, we have to remember that the Declaration is apt for political recommendations, but it lacks the legal force of a binding treaty like the ICCPR. So, back to Article 27: what conclusions can be drawn from its peculiar and twisted turn of phrase? Two competing readings of Article 27 have been proposed (Thornberry 1991: 178 ff.). On the one hand, the negative phrasing, along with the examination of the travaux préparatoires, gives support to a restrictive interpretation of the content and scope of the rights accorded in the article. Formulated in terms of state duties, this first reading concludes that these duties towards minority language speakers are mostly negative in character or duties of non-interference. Accordingly, the right seems to consist in speakers having negative claims against their states, but that would not be entirely accurate. Things are more complex since we are contemplating here a cluster-right according to the pattern of liberties presumably associated to second-order legal positions: at the core lie the privileges of

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speakers to use their language, surrounded by negative claims against public authorities and others, linked to some powers to enforce these claims or seek remedy for breaches of them, and the immunities against having these privileges and claims altered or abolished. But, of course, commentators pick out the negative nature of claims as the most salient feature of the right highlighting which are the correlative duties of states. As these duties are intended for leaving minority language speakers at liberty to use their languages “in community with other members of their group” without let or hindrance, this interpretation is regarded as a typical example of the classic liberal approach to minorities based on toleration (Thornberry 1991: 178), or embodying a sort of linguistic “laissez faire”. In contrast, the alternative interpretation regards this first reading as too restrictive, given that Article 27 admits a more demanding view of the duties of states towards their minorities. 8 According to this revisionist view, states have obligations beyond non-interference to provide assistance and take positive measures on behalf of minority language speakers (Thornberry 1991: 180–181; May 2012: 199–200). Again, the right is understood in terms of claims, except that claims are positive in this interpretation as states have correlative duties of providing services for minority language speakers. Different arguments can be offered to support this new reading. Some are related to the interpretation of the Covenant as a whole, understanding that in the restricted reading Article 27 adds virtually nothing to the protections guaranteed by other civil rights regarding the use of languages. More substantially, there is another welldeveloped reason in contemporary discussions by liberal advocates of multiculturalism. States can leave alone religious communities, but this is much more complicated, if not impossible, with linguistic minorities. Plainly, modern states are very talkative and they need to communicate with their citizens in some language or number of languages, so nothing like a sort of disestablishment as regards language is even conceivable. Thus the argument runs that minority languages will be damaged or doomed in the absence of positive measures and assistance by states. These positive duties are necessary in modern societies for enabling minority language speakers to enjoy a real right. Further, according to this second reading, the right of minority language speakers under Article 27 resembles more social and economic rights in the ICESCR than civil 8

This revisionist reading is mainly due to the Capotorti Report (1979), the influential study on the international protection of minorities by Francesco Capotorti, UN Special Rapporteur on Minorities.

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rights, as it should be regarded in terms of a goal to be achieved or promoted. The disagreement is not over (Thornberry 1991: 184). These two readings of Article 27 exactly match the “two opposing schools” as to whether language rights are to be understood as tolerance- or promotionorientated (May 2012: 199). Furthermore, this opposition has crystalized into a sort of taxonomy of language rights well entrenched in the literature and discussions about them are usually framed in such terms (Dunbar 2001; Arzoz 2007; May 2011). Rather exceptionally, some well-placed doubts have arisen about the analytical usefulness of this distinction. Rubio-Marin has made some trenchant criticisms. On the one hand, the dichotomy leads one to think as if a hands-off policy as regards language is desirable or feasible, when it is not even a realistic scenario. On the other hand, it seems to suggest that when states take active measures or carry out positive duties about language, they aim at protecting or promoting the language at issue, but that is not necessarily true as the duty of providing free translation services in criminal trials makes clear (Rubio-Marin 2003: 55). From the existence of positive duties, one single purpose or justification cannot be inferred. Moreover, the contrast is misleading since it gives the impression that two sizes fit all, despite the wide variety of linguistic measures and arrangements. Actually, the positive duties of states with regard to their linguistic minorities vary greatly according to all kinds of local circumstances. And finally, it is biased because it leads to an underestimating of the importance of civil liberties as concerns the use of language as a sort of minimum that is taken for granted. Yet the basic problem lies in conceiving language rights in terms of language regimes, and postulating two big and exclusive kinds of linguistic regimes defined by their aims of tolerating or promoting languages. Therefore, it can offer only a very rough picture of language rights at best. For sure, the distinction between tolerance-orientated and promotionorientated language rights tries to catch real controversial issues as duties of states regarding minority language speakers, particularly regarding official settings as schools, courts of justice, legislatures, public services or public media. Consequently, language rights are reduced to claims, either negative or positive depending on the invoked correlative duties of states. But this is a remarkable simplification if linguistic rights are understood, as they should, as complex packages of various Hohfeldian positions. Further, there is no reason to think that all instances of “a right to language” have a uniform Hohfeldian interpretation. On the contrary,

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when we talk of “a right to use the language” we typically mean a clusterright, whose components vary with context. Otherwise, there is a risk that significant issues are completely obscured. For instance, the crucial role of privileges, and liberties containing them, in language rights, is downplayed, if not simply ignored. Recall that privileges do not imply claims, and vice versa, as holding a claim does not involve having a privilege. However, privileges are always involved in the free use of languages and the contours of our privileges are determined by the claims of others, not just states, upon us. They are not established by the claims we have upon states, no matter how important they may be. A similar point can also be raised about immunities, since as we have seen we cannot talk of inalienable rights without taking them into the analysis. In sum, the main point of this chapter has been to defend the need to break the relative isolation of the discussion on language rights with regard to the concepts and approaches of the theory of rights. Specifically, I contend that Hohfeld’s tools can provide a clear and fine-grained analysis of language rights. Accordingly, all that can be expressed with the distinction between tolerance-orientated and promotion-orientated language rights can be formulated in a much more precise way with Hohfeld’s conceptual typology. By comparison, this distinction, widely used in the literature on language rights, seems poor, if not misleading. The task ahead is to explore more carefully the practical significance of language rights taking them as varied cluster-rights, whose analysis and interpretation is open to discussion. A Hohfeldian approach does not deliver definitive answers, but a subtler and more accurate way of framing the issues.

References Arzoz, Xavier. 2007. “The Nature of Language Rights”. Journal on Ethnopolitics and Minority Issues in Europe 6: 1–35. Capotorti, Francesco. 1979. Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities. New York: United Nations. Dagger, Richard. 1989. “Rights”. In Political Innovation and Conceptual Change, edited by Terence Ball, James Farr, Russell L. Hanson, 292– 308. Cambridge: Cambridge University Press. De Varennes, Fernand. 2001. “Language Rights as Integral Part of Human Rights”. International Journal on Multicultural Societies 3: 15–25.

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Dunbar, Robin. 2001. “Minority Language Rights in International Law”. International and Comparative Law Quarterly 50: 90–120. Elias, Stella Burch. 2009. “Regional Minorities, Immigrants and Migrants: The Reframing of Language Rights in Europe”. Berkeley Journal of International Law 28: 261–312. Ellis, Anthony. 2005. “Minority Rights and the Preservation of Minority Rights”. Philosophy 80: 199–217. Finnis, John. 1980. Natural Law and Natural Rights. Oxford: Clarendon Press. Green, Leslie. 1987. “Are Language Rights Fundamental?” Osgoode Hall Law Journal 25: 639–69. Hohfeld, Wesley N. 1919. Fundamental Legal Conceptions. Edited by Walter Wheeler Cook. New Haven: Yale University Press. Hart, Herbert L. A. 1982. “Legal Rights”. In Essays on Bentham, 162–93. Oxford: Clarendon Press. Kramer, Matthew H., Simmonds, Nigel E., and Steiner, Hillel. 1998. A Debate Over Rights. Oxford: Oxford University Press. Kibbee, Roland A. 1998. “Presentation: Realism and Idealism in Language Conflicts and Their Resolution”. In Language Legislation and Linguistic Rights, edited by Roland Kibbee, x–xvi. Amsterdam: John Benjamins. Kymlicka, Will, and Patten, Alan, eds. 2003. Language Rights and Political Theory. Oxford: Oxford University Press. Mälksoo, Lauri. 2000. “Language Rights in International Law: Why the Phoenix Is Still in the Ashes”. Florida Journal of International Law 12: 431–65. May, Stephen. 2011.“Language Rights: The ‘Cinderella’ of Human Rights”. Journal of Human Rights 10: 265–89. —. 2012. Language and Minority Rights. London: Routledge (second edition). Nyquist, Curtis. 2002. “Teaching Wesley Hohfeld’s Theory of Legal Relations”. Journal of Legal Education 52: 238–57. Réaume, Denise. 1988. “Individuals, Groups and Rights to Public Goods”. University of Toronto Law Journal 38: 1–27. —. 1994. “The Group Right to Linguistic Security: Whose Rights, What Duties?” In Group Rights, edited by Judith Baker, 118–41. Toronto: University of Toronto Press. Rubio-Marin, Ruth. 2003. “Language Rights: Exploring The Competing Rationales”. In Language Rights and Political Theory, edited by Will Kymlicka and Alan Patten, 52–79. Oxford: Oxford University Press.

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Skutnabb-Kangas, Tove and Phillipson, Robert, eds. 1994. Linguistic Human Rights: Overcoming Linguistic Discrimination. The Hague: Mouton, 1994. Sumner, L. Wayne. 1987. The Moral Foundations of Rights. Oxford: Clarendon Press. Thomson, Judith Jarvis. 1990. The Realm of Rights. Cambridge (Mass.): Harvard University Press. Thornberry, Patrick. 1991. International Law and the Rights of Minorities. Oxford: Clarendon Press. Toscano, Manuel. 2012. “Language Rights as Collective Rights. Some Conceptual Considerations on Language Rights”. Res Publica 27: 109– 18. Wellman, Carl. 1997. An Approach to Rights. Dordrecht: Kluwer Academic Publisher. Wenar, Leif. 2011. “Rights”. The Stanford Encyclopedia of Philosophy (Fall Edition), Edward N. Zalta ed. http://plato.stanford.edu/archives/fall2011/entries/rights/ (accessed 25 March, 2013) Woehrling, Jean-Marie. 2005. The European Charter for Regional and Minorities Languages. A Critical Commentary. Strasbourg: Council of Europe Publishing.



CHAPTER FOURTEEN LAND CLAIMS: ECONOMIC LIBERALISM VS. INDIGENOUS TRADITION— DOES THE GOVERNMENT HAVE A MORAL RESPONSIBILITY TO RECTIFY THE UNJUST PAST? TORE KRISTIAN HAALAND1

This chapter intends to investigate, outline and evaluate the legitimacy of land claims made by the indigenous Zapatistas in Mexico and the corresponding strategy pursued by the various Mexican governments, within a philosophical framework of moral responsibility, justice and reparation. While not forgetting the more than 300 years of Spanish rule, the main historical emphasis will be on the struggle for land in the twentieth century paving the way for armed struggle as the preferred expression of rebellion. A line will be drawn wherever possible between federal and state governments. Attention will be given to the Revolution’s land reform implementation in Chiapas, the post-Cardenas counteragrarian reform and its intensification by the 1992 Constitutional amendment of Article 27 and the government’s reactionary, counterinsurgency strategies. Contradictions between theory and practise will be exposed, as well as the incompatibility of economic liberalism and indigenous groups’ interests. One standing example is the state’s failure to fulfil its International Labour Organisation (ILO) commitments on indigenous rights. Ironically, ILO Convention No. 169 was ratified by President Salinas, who put a definite stop to land redistribution and whose afore-mentioned constitutional amendment aimed at reversing the

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University of Oslo.

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Revolution’s gains by privatising communal and ejido lands, 2 both key events to Zapatistas. This on-going investigation takes place at an important crossroad in Mexican political history, at which the people have voted the Partido Revolucionario Institucional (PRI, who’s 1929–2000 era was famously labelled the perfect dictatorship by Vargas Llosa) back into office, by means of elections fulfilling the liberal minimum requirements for democracy, a term seldom applied popularly. The indigenous Zapatista military insurgency exploded on January 1, 1994, the day the North American Free Trade Agreement (NAFTA) entered into force. To draw attention to their claims, a crucial one being the historical demand of land restitution to Mexico’s indigenous populations, armed men invaded five municipal precincts and withdrew to the mountains and jungles to fight the army of what the movement labels the bad government. 3 Military repression followed, and the human rights situation remains critical. Government strategies have changed from outright official repression to the promotion of paramilitary groups and low intensity warfare. The conflict persists as the government still fails to ratify the San Andrés Accord, whilst the Zapatistas do not recognize the government at any of the three levels as legitimate, rather promoting its own model of autonomy. Currently, several assistance programmes offer cash transfers and services to indigenous communities4 not affiliated with the Zapatistas.5 Further, two so-called Rural Sustainable Cities, supposedly offering increased living standards by moving the indigenous population into cities, have been established and another two are under construction.

Do the Three Levels of Government Have a Moral Responsibility to Rectify the Unjust Past? The question will be answered by evaluating the historical backdrop against three principles of moral responsibility; the principle of contribution, the principle of assistance and the principle of benefiting from injustice. Along the same lines, the arguments commonly applied by

 2

In the traditional Indian system of communal lands, usufruct lies in the hands of the individual ejidatario, whilst property rights are collective, subject to the assembly’s decisions. 3 Referring to all three levels of government. 4 E.g. Salinas’s Solidaridad, Zedillo’s Progresa and Fox’s Oportunidades. 5 During my 2011 International Observer Mission, organised by the Human Rights NGO Fray Bartolomé de las Casas (FRAYBA), a young Zapatista girl died from fever. Government-sent doctors only treated deserters.



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communities in dispute over some land or territory can be divided into these three different strands in terms of morality and legitimacy, and if fulfilled, each category involves weighty moral reasons that appeal to create responsibilities and spark actions to promote the honouring of legitimate claims, either by government, civil society or individuals. While the first principle appeals to an agent’s contribution to harm, the latter two argue in favour of a responsibility to rectify an unjust past despite the agent not having contributed. The Principle of Contribution is based upon an unjust dispossession from a given land, current or historical, in which the community continues to suffer due to its exclusion. The state and the current occupiers, hence, have contribution-based responsibilities to rectify the past and to reform the current legal system perpetuating the injustice. The failure to pay reparations for past injustice, either by government or private individuals, represents in itself a separate claim in addition to the initial injustice committed (Boxill 2003; Cohen 2009). In theory, the argument is applicable to indigenous groups and descendants of former slaves, 6 however, it might also correspond to certain groups of social movements demanding land based on historical poverty arguments, such as former peasants expulsed from the land they worked (under slavery conditions) due to the industrialization of agriculture.7 The Principle of Assistance holds that “because the community is in severe need and the State and affluent persons are in a position to alleviate their need at moderate cost, they have a responsibility to do so” (Barry and Overland 2012). This moral responsibility is highly relevant in a contemporary Latin American context, a region characterised by relative poverty and extreme inequality (except Cuba). As a principle it’s currently being embraced in theory by both right- and left-wing governments, as well as some private businesses through the much disputed corporate social responsibility (CSR). The third argument, the Principle of Benefiting from Injustice, appeals to the moral responsibility to rectify an unjust past due to having benefited from the injustice committed, regardless of culpability and passive consent. On a governmental level, it could be argued that the Mexican government is neither responsible nor to blame for the atrocities committed against the indigenous populations by the Spaniards, despite the majority of its

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Identification of groups and individuals, victims and perpetrators of injustice, is another matter, and is currently very relevant in Latin America given the effects of Evo Morales’s rise to power in Bolivia. 7 The latter group, often impoverished in favelas, forms the prime recruitment target for MST (the Landless Workers Movement in Brazil).



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contemporary inhabitants being of Spanish descent. Regardless, the argument goes, the current government has a moral responsibility to pay reparations because the country it represents has benefited from their lands and cheap labour. On an individual level, one example could be an innocent descendant of an individual that treated indigenous people as second-class citizens or tricked them from their lands by means of, say, alcohol or false promises. Regardless of culpability, the individual currently in possession of the land would have a moral responsibility to rectify the unjust past.

Historical Backdrop Some 3,500 years prior to the Spanish arrival, migrants first came to occupy the Lacandon jungle, and later spread throughout the area today known as Chiapas. The agricultural technique applied was one of slashand-burn practices, which required communities to regularly resettle to open new or old areas for cultivation. Migration took place regularly for several reasons. Some left in search of a better life due to the poor quality of the soil in the highlands, others fled from wars, lost uprisings or even taxes (Womack 2009: 32). Hence, migration and war were nothing new before the Spanish conquest. However, the Conquistadors brought war to a new pitch with the introduction of horses and gunpowder. A majority of the communities were exterminated by epidemic diseases; others were forced into slave labour or displaced in order to be better controlled. This was the injustice against which the first bishop of Chiapas, Bartolomé de las Casas, rebelled in vain. The power holders looked upon the majority of the indigenous as lazy, ignorant children, with reduced mental capacity— prone by nature to extreme violence and religious regression (Van Young 1990: 356). In addition to usurping indigenous land, the Conquistadors sought to destroy the institutions, traditions, culture, liberty and values that made up the indigenous social fabric and cohesion. The invaders were legitimately seen as enemies (Tortosa 2003: 178), and more famous indigenous uprisings include the 1712 Tzeltal Rebellion and the 1847 Caste War in Yucatán, thus the exploitation outlived the Spanish viceroyalty of New Spain. The Conquistadors’ slaughter and robbery on behalf of the Spanish crown allocates contribution-based responsibilities to the crown and the current government, as the former continues as the formal power holder. Although Cortés initially lacked permission, the crown absorbed the land conquered, rendering beneficiary-based responsibility a minimum. Even if one were to successfully argue that today’s government’s was not responsible for the crown’s actions some 2 to 5



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centuries ago, it has beyond doubt benefited economically, and thus has beneficiary-based responsibilities. When the wave of independence that hit Latin America finally led to an independent Mexico in 1821, the instability increased as the oligarchies of San Cristóbal de las Casas took control of the newly-formed state of Chiapas, which only a few years later, in 1824, was annexed to Mexico. By this time, the majority of the population was mestizo or ladino, who denied their indigenous heritage and acted in as dominating a manner as the Spaniards to prove the whiteness of their blood, again indicating both contribution- and beneficiary-based responsibilities. In 1847, the Mayan rebellion known as the Caste War broke out in Yucatán. According to Joseph, dominant communication topics between the indigenous leaders were the universal application of laws irrespective of ethnic origin, land accessibility for all and the jungle not being for sale (Joseph 1988: 178), and hence, referencing the modern concept of equality for all before the law and the ancient understanding of the forests as common property. The liberal State has since the days of Porfirio Díaz (1876–1911) claimed the pre-Hispanic indigenous ancestors to be its own (Gilly 1997: 43). Legally speaking, their living descendants, in the nineteenth century representing the majority of the population, have since the 1824 Constitution been assimilated into the category of citizens and thus, as individuals enjoy equality before the law (Reyna 1993). In practice, however, the indigenous peoples were at best the elephant in the room. The Mexican state, applying methods similar to the Spanish Conquistadors, declared its liberal culture to be superior to that of the natives and consequentially imposed upon them its laws and values. The result of this implacable policy was “an economic, social and spiritual division between those labelled ‘decent people’ and the indigenous majorities and peasants. The ideology that justified the negation of the indigenous values and the overestimation of the governing minority was the conception of modernity” (Florescano 1996: 53). Thus, in order to re-conquer their stolen heritage and become Mexicans, they had to renounce their own identity. In Gilly’s words, “the liberal State not only expropriated the communities’ lands, but also by necessity their world; real, imaginary and past” (Gilly 1997: 44), clearly contributing to the demise of indigenous culture and pride. Rather than revolutions being the locomotive of world history, as in Marx’s view, Benjamin’s interpretation of revolution as “an attempt by the passengers on this train—namely the human race—to activate the emergency brake” (Benjamin 1996: 402), summarises the long history of rural rebellions. Zapata’s 1911 revolution constitutes a prime example, as famously stated by Womack: “Country people who did not want to move



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and therefore got into revolution” (Womack 1969: XI). Generalising, the movements are characterised by their defence of traditional society and their links with the land, and this resistance covers the republic’s history from its first liberal constitutions until the end of Porfirio Díaz’s rule (Gilly 1997: 17). In order to understand the strength of what García de León terms the chiapaneca family, the porfiriato families that owned estates and ranches in the departments of Chilón, Palenque and Comitán (García de León 1985: 205), one has to backtrack to the colonial encomienda ownership and the Catholic church’s land possession—the first landowner in Chiapas and institutor of the estate culture—whose property was converted into private property between 1860 and 1865, following Juarez’s reform that expelled the friars from the country (Montagú 1989: 346). Many of these families still “protrude politics, socially and economically as a demonstration of historical continuity, even though they now have diversified their investments, linking them to activities related to the agricultural colonisation and the urban growth in the municipal capitals” (Leyva and Ascencio 1996: 73). In the Lacandon jungle, forestry and agricultural exploitation existed in the beginning of the twentieth century, and was characterised by large properties in the hands of a few. The land was first accessed by means of exploitation contracts and later by demarcation and purchase of properties (Leyva and Ascencio: 1996). Jan de Vos outlines how large estates were created in Chiapas by means of land hoarding that previously had belonged to indigenous communities. Indigenous people were repeatedly dispossessed from their properties, being left with no other option than to become the serfs of their new owners, known as peones acasillados.8 In this way, the families were agglutinated to the large estates, the majority employed in the production of coffee, tobacco and cattle, where they worked long days for the landlord, earning minimum salaries or sometimes even nothing, in exchange for a place to live and a small plot. In exchange for this “favour”, entire families lost their liberty by abandoning their lands and converted themselves into servile workers for the owners (de Vos 1994: 169). While the chiapaneca families and the landowning elite beyond doubt contributed to the indigenous conditions of today, their descendants cannot be held legally responsible for their forefathers’ actions; they have, however, beneficiary-based responsibilities

 8

Other contentious terms and/or translations include: latifundio/large estate, finca/estate, finquero/estate-owner, hacienda/ranch, terrateniente/large landowner, bases de apoyo/support bases, guardias blancas/whiteguards.



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given that their wealth and dominance was built grain-by-grain in slaverylike conditions. Since the agrarian system of servitude was set up in Chiapas in the early nineteenth century, the estate was in terms of production comparable, but not identical, to the Mexican ranch (García de León 1985: 114), and in 1910 estates and ranches concentrated between 80Ȃ90 per cent of the population. Later, when confronted by revolutionary movements the estates fractured, but without the owning family losing real control (Leyva and Ascencio 1996: 73).

The Mexican Revolution: Land Reform and its Implementation in Chiapas Not even the constitutional pact of 1917 referred to the indigenous peoples as such, but rather as peasants or communities under the general right to land. The new state’s national project, including the official indigenousness ideology, was the assimilation and absorption of the indigenous peoples into Mexican society by means of public education (Rus 1994: 265–300). The revolutionary government’s 1915 Agrarian Law was, however, fundamental, and as ingenious as its Plan de Ayala. The law not only affirmed the right to confiscate property in the name of agrarian redistribution, it even defined the land to be inalienable from the people and specified the maximum number of hectares an individual property could hold, beyond which direct expropriation should be carried out, but also established agrarian tribunals, rural credit, agrarian education and investigation, as well as the right to possess and administer land communally and in ejidos. Further, vast power was vested in the Secretary of Agriculture, whilst implementation was decentralised to the municipal authorities (Womack 1969: 398).9 Chiapas remained on the outskirts of the revolution (Gilly 1997; Villafuerte et al. 2002; García de León 1985). Nor was a “Revolution from Without” imposed, as it was in Yucatán (Joseph 1988). Only in September 1914 did the revolution force entry, embodied by General Castro, who displaced the chiapaneca family caudillos from power and naming himself governor. The centrally promoted Ley de Obreros, which initiated change in Chiapas (Benjamin 1996; García de León 1985; Villafuerte et al. 2002), was handed down by Castro and legally cancelled the peones acasillados’ debts, reduced the workday to ten hours and abolished the tradition of paying salaries in provisions and accommodation. Constituting a heavy blow, the estate-owners labelled the law an assault on the chiapaneca

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The original text of the Agrarian Law can be found in Reyes 1963: 125–34.

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family and the revolutionary army a military occupation; and consequently rose in arms along with their pawns, known as the mapachista-pinedista rebellion (Gonzáles 1989: 40). By 1920, the counter-revolution had been defeated, however, and Obregón’s government made a pact with the local landowning oligarchy owing to the need for pacification. In exchange for political support, the elite’s domination over the peasantry and the indigenous peoples, and hence the servitude model, was left intact. To the oligarchy of Chiapas, this pact represented yet another modernization from above without touching upon social relations. Railways, roads, capital and state administration were all constructed upon a servile relation maintained by force. From then, until 1982, the governors all represented the chiapaneca family, more precisely the mapachada (Gonzáles 1989: 41), an oligarchic rule continued today by Velasco Coello, further adding to the government’s contribution-based, and the elite’s beneficiary-based, responsibilities.

Land Division in Chiapas in the Post-Revolutionary and the Cardenista Period The road that the agrarian reform went down in Chiapas in the postrevolutionary and the Cardenista period was guided by the limits imposed by the local and regional power structures. The reform’s content in itself was opposed/alien to both the interests and the values of the local power holders and the landed elite. This divergence of interest and ideology explain their persistent opposition to agrarian reform, which they interpreted as an imposition from the national government. The landed elite’s political struggle was geared towards autonomy and defence of their agrarian interests. The armed rebellion led by these groups, and its subsequent victory, allowed the new power holders to promote their own political orientation in terms of land tenancy: one that avoided large-scale redistribution and maintained the protection of the landed elite’s private property as the fundamental policy (Reyes 1992). Regardless, new opportunities opened up to the landless peasants along with the agrarian reform of the 30s. The Constitution’s Article 27, and its subsequent law, provided the right to solicit an official recognition as a community, which again laid the legal basis for requesting an ejido. Many developed a collective courage to take on the necessary struggle, and gained collective ownership throughout the 40s. The most important moment in Chiapas’s peasant-federal government relations took place during General Cárdenas’s presidential period (1934– 1940). During his campaign, Cárdenas visited not only Chiapas’ urban centres, but also more inaccessible areas and peones acasillados. His



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government promoted and saw through an extensive land distribution, and more importantly, a practical example of how to achieve such a goal. In collusion with the landowners, the civil government granted nationality to many Guatemalans, converting them into legal subjects, that is, holders of agrarian rights, followed by the granting of ejidal lands in the less productive areas of the estates. Whilst this may at first seem like an odd move by the landowners, from an economic point of view it worked out cheaper to hire a settled Guatemalan than to bring a Tzotzil from the highlands (Villafuerte et al. 2002: 36). On the contrary, a still current practise is the hiring of paramilitaries or contract killers, or pistoleiros in the specific case of Brazil. Recent (at the time of writing) examples include the March 3rd, 2013, murder of indigenous Yukpa leader and land rights activist Sabino Romero in Venezuela (Robertson 2013) and the 15shot execution of MST leader Fábio dos Santos Silva in Bahía, Brazil, on April 2nd, 2013, the third murder this year (MST 2013). Voluntarily or not, the human importation into sparsely populated areas was favoured by the clientelistic federal PRI, and their non-Mexican indigenousness overcome by obliging them to not dress as foreigners and to speak the national language: Spanish (Hernández 1995). One of Cardenas’s local kingpins, Urbina, inspired spectacular land occupations by indigenous crowds-in-arms, often represented in collective memory as a renovated and victorious version of the Caste Wars. Possibly Urbina’s most important contribution to peasants and indigenous peoples in Chiapas, his teaching on how to acquire land is outlined in Villafuerte et al. 2002: 37: a) determine what properties to occupy; b) establish the number of members trained in occupation; c) arrive at the property accompanied by these members, with crowds more, armed with axes, clubs, guns and machetes; d) invade the property; and e) once completed, see through the legalisation steps. The latter included alternatives such as restitution, redistribution, or to a lesser degree, expansion, and in many cases meant mediating to make the proprietor sell and the peasant or indigenous buy. According to Reyes, “throughout this period there are no substantial modifications in the property structure. The paternalistic concept of territory is reaffirmed and the agrarian reform’s penetration is neutralized” (1992: 123). However, one should not attribute this persistence exclusively to the strength of the landowners, but also to other factors such as the weakness of the agrarian demand and the reformist claims of the masses, such as the improvement of working conditions and salaries rather than demanding land. Until 1940, the estate prevailed as the main unit of production, and its general tendency towards monoculture or low



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diversification, as well as the sub-utilisation of land, further impeded modernisation. Urbina’s model was later spread from the northern- and highlands across the state, helped by the Tzeltal Tzotzil Coordination Centre (Aguirre and Pozas 1973), though not without problems as the landowners often preferred murder, or even death, prior to giving up their properties (García de León 1985; Rus 1995), and loss of lives has occurred in both camps. In the long run, this has led to a shared culture of antagonism and exclusion. The peasants and the indigenous tend to consider any landowner their permanent enemy, whilst the proprietors find the peasants, and particularly the indigenous, to be unfair, not trustworthy, and to be taking advantage of any situation: in other words, a class struggle. In the eyes of the landowners, the peasants and indigenous grow stronger every day both in terms of influence and numbers, all thanks to the government. According to García de León, many of these indigenous “social defences” were armed by the federal government to recover communal land snatched by oppressing ladinos, or to defend ejidos. This Cardenism trait, despite being “ephemeral and much more fugacious and timid than in other regions of the country, left a deep footprint in the memories of Tzeltales, Tzotziles and Tojolabales” (García de León 1985: 207). Still today, many remember Cardenas to be the president that helped recover some of their land.

Constructing PRI’s Hegemony: Migration, CounterAgrarian Reform and Exploitation Subsequent presidents slowed down Cardenas’s redistribution. The legal process was bureaucratised and corrupted, and the landowners were privileged once again. Villafuerte et al. characterises the process as: [A] perverse practise, by means of which political clientelism and illicit enrichment closed the door on a correct expedition of justice and rights: the presidential resolutions were not exercised, demarcations were not done correctly, the same land was redistributed to several ejidos, the party politicised the ejidal authorities and their assemblies, justice was negotiated and rights were politicised, transforming the latter two into political weapons rather than recognising its legal sense (Villafuerte et al. 2002: 38).10

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Referring to documents from the Indigenous Congress in 1974.

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Contrary to today’s government policy, which argues overpopulation to be the reason for poverty in Chiapas, in this period population growth and redistribution of land were seen as mechanisms to expand the party’s social bases and to increment production (Gonzáles 1989). From 1940 onwards, the state government applied what Reyes labelled the productivist orientation of land reform, in which virgin areas declared as national land were opened to colonisation, coupled with policies to secure status quo land tenancy, such as certificates of non-affectability (Reyes 1992). The latter protected private properties up to 300 hectares dedicated to raising cattle from redistribution, an activity inevitably leading to further expulsion of peasants. The availability of virgin areas allowed the government to expand both the social and private use of land; the former by establishing ejidos, the latter by allowing colonisation by individual settlers known as nacionaleros. Hence, the agrarian reform not only created ejidatarios, but also laid the ground for land concentration by a new class of landowners; small and medium ones with a capitalist notion of property rights (Reyes 1992: 125). The government’s protagonist role in the colonisation and distribution of ejidal land in the Lacandon jungle, an area of Chiapas that served to release pressure formed by excess peasants from land reform across the country, saturated the jungle with migrants, and by 1970, 60 per cent was converted into ejidos (Womack 2009: 50). Further, the process suffered from lack of planning both in terms of the colonisation and development process (Leyva and Ascencio 1996). Generalising, in this period the government responded to peasant land claims, but laid the ground for the conditions later to stall the agrarian conflict: the exhaustion of virgin areas, land concentration, population growth, Guatemalan refugees and cattle breeding. The resulting emergency conditions triggered politicisation of peasant movements, aided by liberation theology and bishop Samuel Ruiz’s radicalisation, whose joint pressure moulded government policy towards counter-insurgency. To complicate things further, the federal government not only slowed down the distribution process in the jungle, but even tried to backtrack: in 1972, president Echeverría ignored and overruled previous presidential resolutions and issued a decree stating that 614,321 hectares, more than half of the Lacandon jungle, belonged to the Lacandon tribe, and had been communal since time immemorial (Diario Oficial 1972). This “tribe” consisted of 66 families, or 400 persons, and the “restitution” implied a forced resettlement of 37 Chol y Tzeltal communities, some 4000 families. Twenty communities agreed to move to two new camps prepared by the PRI, Frontera Echeverría and Velasco Suárez (named after the president and the governor of Chiapas) along the border river



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Usumacinta (Villafuerte et al. 2002; Womack 2009), whilst the majority refused and stayed behind in their ejidos. Again, it’s worth repeating that many of these communities already had their papers in order, including presidential resolutions and definite handovers, which were ignored by Echeverría. The resettlements caused internal violence and acts of vengeance throughout the 1970s, and even as late as 1983 the Lacandons, backed by public security forces, set fire to sixty-seven houses in Nuevo Progreso (Marion 1984). Further, the government’s persistence in going through with the ghost demarcation, as well as the spreading of rumours that “now it’s going to happen” caused both a surge and continuance of political militancy (Villafuerte et al. 2002). The unquestionable purpose of the expropriation was to exploit the jungle’s precious timber through the trust Compañia Forestal La Lacandonia. Worse still, the original Lacandon tribe was exterminated in the third major attempt by the Spanish in 1695 (de Vos 1980). The current occupants, the indigenous today known as the Lacandons, inherited nothing but the name. Whilst the former spoke mayachol, the latter speak maya-yucatecan.11 Not surprisingly, the demarcation, known as la brecha, stands out as the greatest governmental wrongdoing to the jungle’s peasants, and constituted an early warning of the post-94 strategy of pitting indigenous communities against each other. The government’s construction of hydroelectric dams in productive communal or ejido land was to other communities what la brecha were to the inhabitants of the jungle. The realisation of the three plants in Chicoasén, Malpaso and La Angostura—a process not exempt from repression or the spilling of blood—alone affected 200,000 hectares of the best land. Similar to the above-mentioned case, the never-denied rumours of a fourth dam caused further political militancy on behalf of the peasants and, consequently, state government repression (Marion 1984). Now, how might one explain the state government’s tendency to confront the peasants in a violent manner? The often-cited historical alignment between the various governments on the one hand, and the landowners and the local bourgeoisie on the other, promotes the previously-mentioned distrust towards the peasants and the indigenous people. To an increasing extent, the governors have tended to be of chiapaneca origin, though with links to national politics, and hence suffer from uprooting and lack of local knowledge (Villafuerte et al. 2002). In turn, this makes a coherent understanding of the complexities of challenges difficult, and complicates the creation of a state level development plan. Further, it promotes the applied policy preference of

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Fieldwork conducted in the Lacandon jungle in July and August, 2013.

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repression over dialogue or negotiation, the displacement or relocation of peasants and indigenous groups, as well as the subordination of local and regional politics to that of the nation. While the above might leave a simplistic impression of the conflict, reality is anything but. To grasp the complexity, one has to take into account the diversity of actors, disputes, vehicles to achieve demands and inconsistent government responses. The flourishing plurality of ethnic communities, peones acasillados, day labourers and ejidatarios possessing no or insufficient land apply a mix of strategies to achieve their goals: legal process, demonstrations, land occupations or invasions. In terms of the agrarian authorities’ strategy—whether to bureaucratise, corrupt or see through the process—one has to distinguish between federal and local; the latter, owing to links with local power holders, often thwart federal initiatives. Despite the crystallisation of the struggle against large landowners in the 70s, the conflict is complex: infighting between ethnic communities; small landowners vs. Peones acasillados or day labourers; cattle ranchers confronted by emigrants dispossessed by their own communities, the government or militants of differing political parties. Following the uprising, these very same conflicts have been promoted by the government, though pitted against the Zapatistas aiming at reducing their influence and creating division both internally and between peasant organisations and indigenous groups. To summarise, the agrarian reform’s route in the post-Cardenista period was marked by federal initiative and preference in order to create a party support base, extract natural resources and promote the national development plan. By means of displacements, repressions and fraud, the peasant and indigenous people, whose aspirations were fomented by the predecessor’s encouragement of armed occupations, were betrayed and left to their own destiny. In the indigenous people’s eyes, the alliance achieved by Cardenas had come to an end. Throughout the period, which former governor Garrido labelled “the long night of Chiapas”, the government was rather an enemy favouring the bourgeoisie and preparing the ground for the Zapatista uprising (Villafuerte et al. 2002). As a whole, agrarian redistribution was applied selectively to non-affiliated communities or individuals to deactivate independent peasant movements. Hence, while significant redistribution did take place, far from solving the problem, the state programmes’ political character often sharpened the conflict (Reyes 1992), adding contribution-based responsibility for rectifying the unjust past.



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The Rise of the Chicago Boys—Salinas de Gortari, PRI (1988–1994) The rise of Salinas, Mexico’s version of Menem, whose liberal Chicago Boys policies failed spectacularly in Argentina, marks a shift in the implementation of economic liberalism. Widespread privatisations were accompanied by social liberalism through the national programme against poverty, Solidaridad (today known as Oportunidades, as presidents fancy making small changes and renaming programmes to appear productive), whose 1989–93 US$ 450 million budget was targeted at those who had less. The programme marked the beginning of numerous social, counterinsurgency initiatives, such as Tercera Edad, Tornamil, Mejoramiento del Cafetal, Copladen and Seguro Popular. Further, Mexico was the second country to ratify the ILO Convention No. 169 in 1990, and thus has moral and legal obligations to comply. The treaty recognises indigenous and tribal peoples’ rights to their lands, traditions, languages, culture and identity, amongst others, and to all human rights without discrimination. It was the first international convention to recognise self-identification of indigenous and tribal peoples as a criterion, and the right to consultation and participation in issues that affect them is a cornerstone of the treaty. Communication between involved parties is required to be in good faith, aiming at an agreement, and should be sustained with the communities’ representative institutions. Further, the agreement stipulates the right to partake in formulation, implementation and evaluation of projects; hence an opportunity to influence the decision is assumed. As of today, 22 countries have ratified the treaty, upon which a country has “one year to align legislation, policies and programmes to the Convention before it becomes legally binding”.12 Even though the member countries are subject to a supervisory system, implementation remains a challenge. Whilst surprisingly little happened in terms of reinforcing the counteragrarian reform during the first neoliberal period, de la Madrid’s presidency (1982–88), Salinas’s amendment of the Constitution’s Article 27 entering into force on February 23, 1992, is crucial to understanding the Zapatista uprising. According to government propaganda, the purpose of reform was to modernise the countryside, provide legal security in terms of landownership, permit private investment (both national and international) and establish mercantilist societies. More explicitly, the idea was to prepare the ground for the sale of ejido lands, adding to the

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ILO Convention No. 169 (accessed 19 August, 2012): http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm



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government’s contribution-based responsibilities. Its vehicles were Procede and Procecom, government land-titling programmes to privatise ejido and communal land, respectively. Under Calderon, the wolf changed his coat, but not his disposition, reappearing as FANAR13 accompanied by fresh discourse. Ironically, the reform was not welcomed either by its direct beneficiaries, the private sector, owing to properties still not having been regularised, or by the social sector, which met the reform by open protest as it meant the end of land redistribution and opening up to privatisation (Villafuerte et al. 2002). To the indigenous peoples, land and territory not only mean access to work and food, but also represent community, culture, history, ancestors, mother earth, future dreams and life. Land, terrain, native land and territory (banamil, osil, and the tzotzil and tzeltal sequence lum, jteklum, lumaltik) make up a common, trans-generational good that guarantees future existence, and are “not for sale, nor purchase, and cannot be confiscated as they belong to the many who owe to them their collective, historical and cultural existence” (Aubry 2007). Come 1994, the EZLN bypassed the juridical framework, launched its own Ley Agraria and called for the occupation of any property above 50 hectares (EZLN 1994). Some 80,000 hectares legally belonging to about 700 proprietors in the municipalities of Ocosingo, Las Margaritas and Altamirano were invaded (Villafuerte et al. 2002: 12), despite the threat of the landowners’ white guards. Other non-affiliated groups occupied a further 160,000 hectares. The quantity of land for sale rose dramatically owing to the fear of further invasions, not as a result of either the amendment to Article 27, or the free market’s invisible hand. Still, there is no solution in sight in terms of land tenancy. In 1996, a partial agreement was negotiated in San Andrés, excluding a settlement of the land dispute. Never the less, Congress never ratified the accord. Contrary to predictions by experts on land issues in Mexico, a re-peasantisation took place within a legal framework that represented a deathblow to redistribution and promoted the privatisation of land. Since January 1995, the Zapatistas have not only had to defend themselves against the army, but also against various paramilitary groups, whose intention has been to wear out the movement’s support bases, and “to create conditions conducive to divide communities and to sow fear” (Harvey 2012: 4). This low-intensity, government counter-insurgency strategy of repression, division and co-option has been more successful in some communities than others in terms of converting Zapatistas into party

 13



Fondo de Apoyo para los Núcleos Agrarios sin Regularizar.

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members.14 A “successful” example is the San Marcos Avilés community, where I myself worked as an international observer in 2011. As I write these words, a new warning has been issued by FRAYBA regarding the security situation in which former Zapatistas, now members of various parties, threaten to expel their own family members from the community. The end of the PRI era offered more of the same despite the party’s former left wing, the Party of the Democratic Revolution (PRD), taking power in Chiapas, the neo-liberal National Action Party (PAN) gaining federal office and Fox’s reference to the indigenous in his inauguration speech: “Never again a Mexico without you. In Mexico and Chiapas, there will be a new dawn” (Canal 6 de julio 2003).

Calderon’s Legacy: A Last Minute Attempt at Counter-Agrarian Reform The former president, PANs Calderon (2006–2012), responsible for launching the war against the drug cartels, made a few last minute attempts at modifying his reputation. In addition to slashing worker’s rights to improve Mexico’s comparative advantage in the race to the bottom, he found it important to change the nation’s official name from “Mexican United States” to “Mexico”. More importantly, on November 27, only days prior to finishing his mandate, to battle Procede’s inefficiency in privatising ejidos Calderon sent a law proposal to the Senate in an attempt to reform, amongst others,15 Article 27 of the Constitution on agrarian law, the very same article that Salinas changed controversially in 1992. According to Calderon, the principal motive was to attend to a much-felt demand in the rural sector: the genuine granting of property rights to the ejidatarios. In a seminar arranged to analyse the proposal, Flores, a Centre for Women’s Rights lawyer in Chiapas, argued the law, citing the juridical antecedents of the social property in a partial, specific and subjective manner, in order to give the impression that the spirit of the law proposal was to grant complete property rights (freehold) to the holders of ejidal plots, at the expense of common ownership (Flores 2013). Importantly, the document officially recognised that the objective of the 1992 reform of

 14

No academic work has been done on the impact. According to Gloria Flores Ruiz, a lawyer at the Chiapas Centre for Women’s Rights, the proposal attempts to reform Articles 14, 20, 23, 26, 27, 46, 56, 57, 60, 62, 78, 80, 81, 83–85, 152, 155, 156, 161 and 162; to add a third paragraph to Article 17, a last paragraph to Article 75 as well as an Article 162 bis; and to abolish Articles 18, 48, 76, 79 and 82. 15



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Article 27 was to transform the collective land ownership regime into private property to promote its commercialisation and the modernisation of the countryside, as well as the granting of greater autonomy to the ejidatarios in decision-making processes. The objective of Calderon’s proposal was to speed up the privatisation process embarked upon in 1992 of transferring the title from the ejidoto to the ejidatario. Further, it intended to redefine the ejidatario’s rights in relation to the use, succession and destiny of the land plot, and to modify the assembly requirements to collectively adopt the private property regime. In sum, the proposal would have contributed to further deterioration in the conditions for indigenous peoples in Mexico. Resistance techniques adopted in the seminar included attempts to deny government officials promoting privatisation entry to the communities, and, in the case of reaching plenary decision-making, to vote against, taking advantage of the two-thirds majority needed. And to avoid the risk of losing, a better strategy would have been to abstain from voting by leaving the assembly, as three quarters are required to be present to pass any change. The consequences, unless stopped or resisted, were likely to be the gradual disappearance of the ejido and its assembly, and subsequently a reduction in the sense of community and culture, putting ancestral respect and knowledge at risk. A further individualisation of rights would amplify the grave divisions and dispossessions of land and natural resources, as well as poverty and migration, seen today in indigenous communities as a result of the government’s social assistance programmes, which again promote the sale of land. Further, privatisation would facilitate hoarding of land by businesses and banks, both national and international ones, as well as the already rich. Ultimately, privatisation of ejido land reverses the gains made by land reform and facilitates land hoarding and concentration of ownership, including in foreign hands. Ironically, whilst governments across the hemisphere and the world are taking measures to limit foreign ownership of land, Mexico is attempting to liberalise its legislation to facilitate land grabbing. Ironically, Calderon’s government voted in favour of the UN Declaration on the Rights of Indigenous Peoples, which was adopted by the General Assembly in 2007. Even though it is not a legally binding treaty, it marks the broader acceptance of the ILO Convention No. 169 beyond its low number of ratifications, and according to the UN Permanent Forum on Indigenous Issues, the declaration represents “the dynamic development of international legal norms and it reflects the commitment of the UN’s



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member states to move in certain directions”. 16 Hence, Calderon’s government invoked contribution-based responsibilities to rectify the unjust past given its promotion of harmful laws, whilst Peña Nieto’s current government has a moral responsibility to change the inherited legal framework. At the time of writing, Article 27 once again finds itself under fire, this time around from Peña Nieto, who rather than rectifying the unjust past by annulling Salinas’s reforms, or simply keeping his campaign promise not to privatise PEMEX, the Mexican state-owned oil company, is attempting to partially privatise it following the Norwegian model. Regardless of the legal battles and policy implementation, the agrarian problem in Chiapas continues, and normally invasions and violence peak around the turn of government.

Conclusion The majority of Chiapas’s population is mired in poverty, a fact accepted even by the Zapatistas’ fiercest opponents, which allocates moral assistance-based responsibilities to all three levels of government and the affluent to alleviate the situation. Whilst the government does provide assistance to communities, discursively to reach the UN Millennium Development Goals, the counter-insurgency intentions behind the programmes indicate non-compliance with the moral aspect. On the contrary, the laws and policies promoted, particularly Salinas’s 1992 amendment of Article 27, and Calderon’s counter–agrarian reform proposal, in addition to the all too obvious military repression following the uprising and the subsequent, current low-intensity warfare, allocate contribution-based responsibilities to the government. Given Mexico’s ratification of the ILO Convention No. 169 and its moral renewal expressed by signing the UN Declaration on the Rights of Indigenous Peoples, the state not only has a legal, but also moral, obligation to implement the policies. Further, it has a moral responsibility to rectify the unjust past as it failed to change the juridical system and the property rights regime imposed by the Spanish crown, conquerors and descendants, who in turn contributed more than anyone by launching the wave of injustice submerging the indigenous into the long night of 500 years. In practise, however, rather than rectifying an unjust past in which the indigenous peoples were originally the legitimate owners by discovery, the Mexican government has attempted to do the very opposite, with the

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UN Permanent Forum on Indigenous Issues (accessed 19 August, 2012): http://www.un.org/esa/socdev/unpfii/documents/dec_faq.pdf



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honourable exceptions of the Revolution’s land reform and Cardenas’s redistribution. The post-independence, liberal state contributed by expropriating the indigenous cultures as its own without recognising their explicit rights, and continued down the road embarked upon by the colonisers. Despite the cowardly murder of Zapata, the revolution’s land reform helped the indigenous recover some land in Chiapas in a piecemeal redistribution. Although the creation of ejidos continued in the postCardenista period, it was achieved by colonising the jungle and politicising the indigenous, not by confronting the underlying factors of injustice and inequality, and hence continuing sowing seeds for the Zapatista uprising. Since 1992, the government has attempted to back track on the gains of the revolution by privatising ejidos, further contributing to injustice. Not even the supposedly left-wing PRD escapes this classification despite never having had federal power to implement its discourse, as it failed to ratify the San Andrés Accords at a state level and represented a relative continuance of the counter-insurgency strategy during its 12 years in power in Chiapas. In terms of benefiting from injustice, even if one were unable to draw a contribution-based line of responsibility from the perpetrators of injustice to the current occupiers of power, the latter or the affluent have beyond doubt benefited from the injustice committed. The superficial introduction of liberal democracy has not only failed to alter the chiapaneca family’s political monopoly, but has rather served to justify the grip on power. Hence, both the government and the affluent have moral beneficiary-based responsibilities to rectify the unjust past. More specifically, even though the chiapaneca families cannot be held legally responsible for the actions of their forefathers, they have benefited. Further, this line of argument applies, although with lesser strength, to descendants of those non-holders of political power that still took advantage of the indigenous by means of the legal system. To the untrained eye, the government’s numerous materialistic, cashtransfer, poverty combating social programmes constitute a shallow trap leading to the erroneous conclusion that the government is gradually fulfilling its moral responsibility to rectify the unjust past. A more integral analysis, taking into account historical events such as for example, Procede (intended to privatise ejido land), NAFTA (increasing competition and ruining the livelihood of (small-scale) farmers), the San Andrés Accords (peace negotiations signed, but never ratified by congress), the betraying 2001 Indigenous Law, as well as the recent release of the alleged perpetrators of the Acteal massacre (having caused a new surge in violence and expulsion), reveals the flip-side of the coin. While the small cash



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transfers make a considerable material difference to the indigenous nonZapatistas, the rebels point to the negative effects of the government’s “giving fish, not teaching how to fish” policy17: peasant dependency on the government, gradual assimilation and decrease in the importance of working the land, in many cases leading to entry into Procede and subsequent sale of communal and ejido land. On the other hand, while the counter agrarian reform is well and alive, and the recovered land remains unrecognised by the government, the Zapatistas,, although reduced in numbers as a result of the counterinsurgency policies, refuse to nibble at the crumbs and stand firm on their justifiable claim to land and autonomy.

References Aguirre Beltrán, Gonzalo, and Ricardo A. Pozas. 1973. La política indigenista en México: métodos y resultados. Tomo II. México: Instituto Nacional Indigenista. Aubry, Andrés. 2007. “Tierra, terruño, territorio”. La Jornada, June 1. (Accessed 9 March, 2013) http://www.jornada.unam.mx/2007/06/01/index.php?section=politica& article=024a1pol Barry, Christian, and Gerhard Overland. 2012. “Who Owns It? Ȃ Land Claims in Latin America: Their Moral Legitimacy and Implications”. Project description. Oslo: CSMN. (Accessed 13 April, 2013) http://www.jus.uio.no/smr/english/research/projects/land-claimslatinamerica/ Benjamin, Walter. 1996. Walter Benjamin: Selected Writings, Volume 1: 1913Ȃ1926. Edited by Marcus Bullock and Michael W. Jennings. Boston: Harvard University Press. Boxill, Bernard. 2003. “A Lockean Argument for Black Reparations”. The Journal of Ethics 7 (1): 63Ȃ91. Canal 6 de julio. 2003. “Zapatistas, Crónica de una Rebelión”. Documentary. Mexico: Canal 6 de julio. Cohen, Andrew. 2009. “Compensation for Historic Injustices: Completing the Boxill and Sher Argument”. Philosophy and Public Affairs 37 (1): 81Ȃ102. Diario Oficial. 1972. Diario Oficial de la Federación, March 6, 1972. (Accessed 19 February, 2013) http://www.congresomich.gob.mx/dof/index.php?option=com_docman &task=cat_view&gid=569&Itemid=1

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EZLN. 1994. “Declaración de la Selva Lacandona”. In Documentos y Comunicados, Tomo I, 33Ȃ36. México: Ediciones Era. Florescano, Enrique. 1996. “Los indígenas, el Estado y la nación”. Proceso 1049: 53. Flores Ruiz, Gloria. 2013. “Historia de la propiedad de la tierra en México a través de las leyes”. Paper presented at the Seminar Análisis Jurídico y Político de la Reforma y la Contrarreforma Agrarias en México y Chiapas, CIDECI-Uni Tierra, San Cristóbal de las Casas, Chiapas México, March 6Ȃ7. García de León, Antonio. 1985. Resistencia y Utopía: Memorial de agravios y crónica de revueltas y profecías acaecidas en la provincial de Chiapas durante los últimos quinientos años de su historia. México, Ediciones Era, Colección Problemas de México. Gilly, Adolfo. 1997. Chiapas la razón ardiente. Mexico: Ediciones Era, Colección Problemas de México. Gonzáles Esponda, Juan. 1989. El movimiento campesino chiapaneco 1974Ȃ1984. San Cristóbal de las Casas, Mexico: UNACH. Harvey, Neil. 2012. “Contrainsurgencia y resistencia zapatista”. La Jornada, December 31. (Accessed 18 February, 2013) http://www.jornada.unam.mx/2012/12/31/politica/012a1pol Hernández Castillo, Rosalva Aída. 1995. “Invención de tradiciones: encuentros y desencuentros de la población mame con el indigenismo mexicano”. Anuario: 146Ȃ171. Centro de Estudios Superiores de México y Centroamérica. Mexico: UNICACH. Joseph, Gilbert. 1988. “The United States, Feuding Elites, and Rural Revolt in Yucatán”. In Rural Revolt in Mexico and US Intervention, edited by Daniel Nugent, 173Ȃ198. San Diego: Center for US-Mexican Studies. Leyva Solano, Xochitl, and Gabriel Ascencio Franco. 1996. Lacandonia al Filo del Agua. Mexico, Fondo de Cultura Económica. Marion Singer, Marie-Odile. 1984. El movimiento campesino en Chiapas 1983. Mexico: Centro de Estudios Históricos del Agrarismo en México. Montagú, Roberta. 1989. “Autoridad, control y sanción social en las fincas tzeltales”. In Ensayos de antropología en la zona central de Chiapas, edited by Norman McQuown and Julian Pitt-Rivers, No. 7. Mexico, Consejo Nacional para la Cultura y las Artes/Instituto Nacional Indigenista, Colección Presencias. MST. 2013. “Dirigente do MST é executado por pistoleiros com 15 tiros na Bahía”. Movimento dos Trabalhadores Rurais Sem Terra, April 2, 2013. (Accessed 2 April, 2013)



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http://www.mst.org.br/content/dirigente-do-mst-%C3%A9-executadopor-pistoleiros-com-15-tiros-na-bahia Reyes, Alfonso H. 1963. Emiliano Zapata: su vida y su obra. México: Libros de México. Reyes Ramos, María Eugenia. 1992. El reparto de tierras y la política agraria en Chiapas 1914-1988. México: Universidad Nacional Autónoma de México / Centro de investigaciones humanísticas de Mesoamérica y del estado de Chiapas. Reyna Aoyama, Leticia. 1993. “Introducción”. IN Indio, Nación y Comunidad en el México del siglo XIX, edited by Antonio Escobar, xiȂ xvii. México: La Casa Chata. Robertson, Ewan. 2013. “Venezuelan Indigenous Yukpa Leader Sabino Romero Assasinated” (Accessed 5 March 2013). http://venezuelanalysis.com/news/8021 Rus, Jan. 1994. “The ‘Comunidad Revolucionaria Institucional’: The Subversion of Native Government in Highland Chiapas, 1936Ȃ1968”. In Everday Forms of State Formation. Revolution and the Negotiation of Rule in Modern Mexico, edited by Gilbert M. Joseph and Daniel Nugent, 265Ȃ300. Durham: Duke University Press. —. 1995. “La comunidad revolucionaria institucional: la subversión del gobierno indígena, en Los Altos de Chiapas, 1936Ȃ1968”. In Chiapas, los rumbos de otra historia, edited by Juan P. Viqueira and Mario H. Ruz, 145Ȃ174. México: UNAM. Tortosa Blasco, José M. 2003. “La Construcción Social del Enemigo”. Convergencia, year10, 33, SeptemberȂDecember. Van Young, Eric. 1990. “The State as Vampire: Hegemonic Projects, Public Ritual, and Popular Culture in Mexico, 1600Ȃ1990”. In Rituals of Rule, Rituals of Resistance: Mexican Street Culture, edited by William H. Beezley, Cheryl A. Martin, and William E. French, 343Ȃ 374. Delaware: Scholarly Resources. Villafuerte Solís, Daniel, Jesús M. Bermúdez, Gabriel A. Franco, María del Carmen G. Aguilar, Carolina R. Farfán, Miguel L. Guillén, and Salvador M. Díaz. 2002. La tierra en Chiapas, viejos problemas nuevos. México: Fondo de cultura económica. de Vos, Jan. 1980. La Paz de Dios y del Rey. La conquista de la Selva Lacandona (1525Ȃ1821). México: Fondo de Cultura Económica. —. 1994. Historia de los pueblos indígenas de México. Vivir en la frontera: la experiencia de los indios de Chiapas. México, CIESAS. Womack, John Jr. 1969. Zapata y la Revolución Mexicana. México: Siglo Veintiuno. —. 2009. Rebelión en Chiapas: una antología histórica. México: Debate.



CHAPTER FIFTEEN HISTORICAL EXPERIENCE, MORAL LEARNING AND INTERNATIONAL LAW ARNE OVERREIN1

Approaches to Historical Progress Every viable political philosophy needs to take as a departure point an understanding of the political reality to which that same political philosophy is related, and in which it wants to intervene. We may very well imagine a political philosophy which constructs an ideal of pure norms and values, without any connection to empirical reality. It may be that this ends up with an ideal description of a political society which could get sympathetic acclaim, but it would be an ideal for an imaginary world, not that one we call ours. A sound beginning, therefore, is to reflect upon the three levels: what is, what is possible, and what is desirable (what ought to be), and the relations between them. When John Rawls defends his theory of justice as fairness he insists that this theory is “realistically utopian”. He thereby presupposes a distinction between realistic and un-realistic utopianism. He must mean that it is possible to transform the given reality (today’s political order) into something which is desirable (this new order of things being the essence of Rawls’s theory of justice). The desirable must in some way be possible, and this possibility can only be demonstrated or argued through an analysis of what actually is. According to Rawls, his theory is a theory “in our world (given its laws and tendencies)” (Rawls 2001: 13). Rawls does not, however, goes into anything like an analysis of this world, and its laws and tendencies. He does not much argue why his justice as fairness is realistic, nor if there are other, competing realistic alternatives. In particular he does not explain how the transformation 1

UiT The Arctic University of Norway.

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process from the present to his realistic utopia is to be imagined, nor does he inquire into related questions such as by what social or political agents this transformation is to be wrought. With regard to international law, Rawls likewise emphasizes that his ideas of a just world order are realistically utopian (Rawls 2002: 5–6 and §1). In what follows I will comment on international law and its origins in a specific historical constellation of European and world history. International law is to be considered both as conditional on a process of moral learning or moral evolution going on in at least parts of our world, and, on the other hand, as stimulating the further development of such a moral learning process. Moral learning in global society, and a civilizational process, especially in the area of war and peace, is possible, and has actually taken place over the last hundred years. I will define as a civilizational process a broad historical development where gradually stronger restrictions against the use of violence are accepted and made a custom by the members of a particular society and, ultimately, in world society (Elias 1976). It is not possible to put back the clock completely with regard to mass attitudes towards rights, justice and violence. On the other hand, the developments of moral and civilizational attitudes are embedded in conflicting historical processes. They have evolved against the background of power struggles in international society over a long period of time, and from specific compromise constellations. I am particularly interested in the historical compromise coming out of the Second World War, which is the beginning of the prevailing system of international law. These compromises are not so much the result of enlightened thinking or any “ethical turn” among governing politicians, as they have grown out of negative mass experiences which people all over the world have gone through, especially as soldiers, prisoners of war, civilian victims of modern high-technological warfare, victims of ethnic cleansing and genocide, or as victims of political (state or non-state) organized terror. In the twentieth century, taken together, these victims and their affected relatives amount to no small part of humanity. The dead alone from all the wars in that century number nearly 100 million (Overrein 2007: 145). The focus on human rights and on social justice, so typical of our epoch, is in itself a reaction against experiences of injustice on a mass scale, both in wars and through “peaceful” exploitation. Behind our moral concepts of justice and rights lies the memorizing and learning of human beings who had their elementary feelings of rights and justice violated. Revolutionary, anti-colonial and national mass movements, mainly in the non-western world, and the on-going democratization of public and social life in the western world, were in themselves very much

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a reaction against war catastrophes and national or economic exploitation. These negative experiences, the outstanding example being the Nazi atrocities which nearly every person living today has heard about, became one very important aspect of communication going on in the public sphere. In the twentieth century, public opinion and the increasing interdependence between state and civil society became critical in the development of international law. It has been pointed out that Rawls’s liberalism is historicist in its defence of liberalism: “A particular philosophy of history is presupposed” (Gray 1995: 90). In so far as liberal political theories, like Rawls’s, do have a vision of historical progress, this is certainly true, although there are also anti-historicist types of liberalism (Berlin, Popper). In so far as liberalism and Marxism (or socialism) see political progress and human emancipation as possible, they both need a concept of historical development. They depart from each other, however, in their analysis of the present capitalist world. Marxism is, in opposition to liberalism, more focussed on the conflicts, especially class conflicts, both on a national and a global scale, and takes these conflicts as the basis for possible radical transformations in world society. Liberalism, on the other hand, is the hegemonic ideology of the ruling political elites in the western world. There is in the case of liberalism a fluid crossing over between a philosophical, well-argued theory, and liberalism as hegemonic ideology. It is generally less critical towards the prevailing capitalist conditions and does not focus on analysing the present situation, but is more occupied with the working out of principles for an ideal liberal society. A third theoretical tradition, realism, which has made important contributions to international law and politics, is first and foremost occupied with the analysis of power conflicts, mainly in a state-centred approach. For realism, international politics is the arena of endless power struggles between states. Realism therefore appears to be pessimistic or sceptical towards the possibility of progressive transformations of the world order.

Moral Learning Marxist (but probably not post-modern Marxism) and important liberal theories view social development in a progressive, civilizational perspective and this separates these traditions from realist theories of international politics. The question of moral learning, and the problem of how to view the progressive potential in today’s international law should be considered in this light.

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“Moral learning” and related terms are to be found in many authors from Rousseau on. Immanuel Kant uses the phrase “moral education of a people” in his Perpetual Peace. John Rawls writes about the possibility of moral learning in world society as a presupposition of a “law of peoples”, which different peoples would choose behind a veil of ignorance. “Without such a psychological process, which I shall call moral learning, the idea of realistic utopia for the Law of Peoples lacks an essential element” (Rawls 2002: 44). Rawls also, in his Theory of Justice, discusses theories of the moral development of the individual, but he has relatively little to say about collective moral learning, comprising society as a whole. He does not stress, as Marx did, that different groups of people, different classes and different nations, often develop different moral attitudes, although Rawls acknowledges that in a well-ordered society “the strength of the sense of justice will not be the same in all social groups” (Rawls 1971: 500). Marx not only spoke of European civilization as something which takes hundreds of years to develop (Marx 1962: 203), but he also criticised, in the third Thesis on Feuerbach, those who “forget that circumstances are changed by men and that the educator must himself be educated” (Marx 1963: 82–83). Marx concentrates on the education of the working class individual from “the detail worker of today, the limited individual” to the “fully developed individual” (Marx 1963: 258), because he sees this education as the condition for socialism. To all three of these thinkers, it is clear that historical changes involving collectives of human beings—either as classes, ethnic groups, whole nations or humanity—also implies moral changes on a mass scale. Kant, Marx and Rawls presuppose “a sense of justice” which is to be found in everyday life. However, Marx is much more sceptical than Rawls about the possibility of reaching so-called considered moral judgments through the method of reflective equilibrium, although not necessarily sceptical about the method as such. This method has the advantage of openness to different historical situations and to existing different opinions on political questions. Rawls himself underlines that this opening is necessary for a theory of justice: “It is obviously impossible to develop a substantive theory of justice founded solely on truths of logic and definition [...] Moral philosophy must be free to use contingent assumptions and general facts as it pleases” (Rawls 1971: 51). But exactly because of this openness to different empirical judgment it is so difficult to imagine a wide reflective equilibrium, which is a broad consistency between the prevailing and differing judgments in a society. The difficulties are even more serious on the international level. Rawls sets as a condition that a range of political opinions must be “revised, suspended, or

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withdrawn, if the practical aim of reaching reasonable agreement on matters of political justice is to be achieved” (Rawls 2001: 30). But who shall decide about that, and how is it to be put into practice? On this point, Marx will stress the role of force and power in the foundation of a legitimate state. But force and power are implicit in Rawls’s theory as well—against those who do not fit into the frame of the overlapping consensus and reasonable agreement. Kant, in his Anthropology, believes in historical progress through a range of generations. Men are destined to live together with each other in a society, and be cultured, civilized and moralized (Kant 1968: VII 324). Kant makes the people an acting subject, as opposed to states governed by monarchs with absolute power. Thereby he presupposes a certain moral and political learning process. His political writings can be read as a protest against meaningless wars which the monarch alone decides upon, but where the people, as soldiers and as taxpayers, bear the burdens. In his On the Common Saying we read that the states ...with their growing propensity to aggrandize themselves [...] must multiply wars and give rise to higher and higher costs because of ever larger armies [...] equipped with ever more instruments of war; meanwhile the price of all necessities constantly rises [...] moreover, no peace lasts long enough for the savings during it to catch up with expenditures on cost for the next war, and the invention of a national debt against this [...] is in the end a self-defeating one; hence impotence must eventually bring about what good will ought to have done but did not do: that each state becomes so organized internally that it is not the head of state, whom war really costs nothing (since he wages it at another’s costs, namely that of the people), who has the decisive voice as to whether there is to be war or not, but instead the people. For the people will not readily put itself in danger of personal poverty [...] out of a mere desire for aggrandizement or because of some supposed, merely verbal offence (Kant 1996: 308).

This quotation gives us a political-economic analysis of the relation between state, war, economy and the people in the absolutist epoch. It explains why Kant in the Perpetual Peace will secure peace by the following proposals: 1) republican governments which give the people’s representatives a veto power over warfare and the financing of war; 2) abolishing of standing armies; 3) no national debts for the financing of wars; 4) non-intervention in the constitution and government of another state, e.g. regime change is prohibited and only wars in self-defence are legal. These points, and some others, Kant invites the states to agree on in a treaty which will constitute a perpetual peace among the member states. With these proposals, Kant not only indicates that he is no pacifist or a

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cosmopolitan (here he agrees with Rawls), but takes the existing system of European states as his starting point. In fact, he anticipates the two most important principles which were agreed on in the United Nations Charter 150 years after the Perpetual Peace—the principle of non-intervention and the principle of the equal right to self-determination between the states. We may speak of moral learning in connection with Kant’s view of international law. Humanity can change for the better and a perpetual peace, although characterized as a regulative idea, is realistically utopian. But moral learning is something which follows through conflicts and some sort of climaxing of a crisis, in which those negatively affected by war protest. This is not quite what Kant wrote, but it follows from his principles; there is no misunderstanding of Kant when modern peace movements refer to him as one of their forerunners. On the other hand, Kant does not believe in moral appeals, but criticizes how the political leaders make use of the unsatisfactory theories of international law of Grotius, Vattel and others, to justify every war they are waging (Kant 1996: 326). The context of this criticism shows the very low expectations he has of the effects on the politicians of the existing theories of international law. He simply does not believe that politicians can be morally educated, but speaks about, as already cited, “what good will ought to have done, but did not do”. In line with both Rawls and Marx, Kant in fact believes that changes in the structure of societies usually come first, and the moral changes later: “It is not the case that a good state constitution is to be expected from inner morality; the good moral education of a people is to be expected from a good state constitution” (Kant 1996: 335–336). In other words: even as there is, according to Kant, a moral apriority that “pronounce[s] in us its irresistible veto: there is to be no war” (Kant 1996: 491), this inner morality is not strong enough to have any influence on political reality. Its function is to be a moral ideal which points to the direction of political actions. The creation of a good state is something forced upon a people by power relations, either by internal discord or by war (Kant 1996: 335). I do not imply that there is a completely elaborated theory of moral learning in Kant’s writings, and neither are there in Marx and Rawls, but undoubtedly there are important insights in Kant that are easily forgotten if we interpret his political philosophy too idealistically.

International Law – Some Important Features Today’s International law may be considered a minimum standard of civilized behaviour in international politics. International law is not a

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utopian description of a future ideal world society. It is a system of legal rules operating in the present world and based on treaties, conventions and other types of agreement between states. Its foundation is certain realistic assumptions; in particular the fact that our world is organized as a plurality of territorial states, which recognize each other as equals and as independent. This does not mean that no values or moral ideals are contained in this system; the human rights treaties are outstanding examples of the opposite. In fact the fundamental goals inscribed in the UN Charter—international peace and order—are in themselves moral values (Bull 1977). Even if a state does not take part in any human rights convention, it is legally obliged by the UN Charter, as the minimum requirement of UN membership. International law is indeed a standard of justice, and in some senses a moral standard, which is widely accepted by all member states. From this standard breaches of law can and should be criticized. So, it is appropriate to consider international law both as part of political reality and as an ideal with authority and reputation in all different parts of the world. The states are not only the main subjects of international law with rights and obligations, but they are the only creators of international law, meaning that they either create law or create international organizations, like international courts, which are sources of international law. Only states, not individuals or collectives of humans are members of the UN and have a seat in the General Assembly. To a certain degree individuals, peoples without a state, and minorities, are protected by international law rules. But the states are the only indispensable institutions for international law to exist. Without them there is no international law (Geiger 1994: 19– 20). From the political fact that international law and the system of UN international institutions, among them the Security Council with its five permanent members with powers of veto, are created by the community of states, we may assume that this system of rules and institutions reflects the interests of the states. As Hedley Bull says in The Anarchical Society, “rules serve as the instruments, not of common interests of members of a society, but rather of the special interests of its ruling or dominant members” (Bull 1977: 55). If that is so, international law should reflect the interests of its creators, especially the dominant powers. This is, of course, not flatly wrong, because one of its most important functions is to secure and legitimize the independence of the states and stability and peace within the system of states. However, with the founding of the UN in 1945 both the American and the Soviet Union respectively, believed that the UN would emerge as a suitable instrument for the foreign policy of the two big

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powers. This proved to be only partially true. In particular, the many new states which won independence through the de-colonization process in the Third World became much more influential than was originally anticipated. Today, the US, the only remaining superpower, has the power to veto and paralyse the UN, like the other permanent members. But it is not that easy to use that power as an instrument for attaining positive goals. Of course the permanent members have always dominated the Security Council, but they also keep each other in check, thereby sometimes putting the system out of function. In addition, there is the potentiality of conflicts between the Security Council and the General Assembly, as the organ which in a more legitimate way expresses “world opinion”. Also, the other institutions of the UN and its staff members and the aligned NGOs working in a sort of cooperation with the UN system, will influence the creating of new ideas and new politics (Weiss 2010). So, when I said that the states are the creators of international law and the UN institutions, one should not draw the conclusion that international law is merely a reflection, a political instrument, of the states and especially the most powerful among them. The UN has a bad reputation for being unable to secure peace, but we may still conclude that the system has made a positive difference since 1945, compared to other options. Without this system, our world would have looked quite different. Many legitimate claims of justice, for example Palestinians’ claims to independence, would have been forgotten by the international public, whereas today they are still remembered, negotiated and fought for. We may also say that the UN system has a bad reputation because of the phenomenon of rhetoric and “empty talk” it produces. But in a way, it cannot be otherwise. The good thing, as Christensen remarks with reference to the UN Universal Declaration of Human Rights, is that “it is much more common now than it ever was in earlier periods […] to at least pay lip service to the belief that all living human beings possess some kind of equal moral status that requires respect” (Christensen 1994: 35). International law and the UN system have unfolded their own logic since they were set in motion by the community of states in 1945. This logic, which in important respects has contradicted both the original expectations and sometimes vital interests of the most powerful actors, is much more complex than would be the case if the law was just a reflection of the strongest interest. If such had been the case, law would have been nothing but power, and the realistic interpretation of international law would be the correct one. The international law system is characterized by the absence of any strong central authority in world society, and the absence of one central

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and effective organ which is obliged to punish all breaches against international law. The UN’s punishment system is not like equivalent national counterparts, but is highly contingent, depending on day to day political agreements between the veto powers. There are no “rules about rules” in the system which determine the sources of law, the way law can be changed and what happens when different sources of law contradict each other. International law is therefore highly open to all sorts of political and moral pressure. The degree of system coherence is much lower than in a national law system. A national law system normally has specific rules about how new laws come into being. International law is not clear on this point. One case is the struggle on a right to humanitarian military intervention, which in particular is promoted by the members of the NATO alliance. These countries use as a premise that new international law will develop when humanitarian interventions have emerged as a custom of international behaviour. They also argue that a resolution in the UN General Assembly which contains the so-called responsibility to protect, implies making certain types of military intervention a part of international law. Other states and legal experts dispute this, and point to the obligation all UNmembers have to the Charter rule of non-intervention. The most important UN document on this issue, the so-called Outcome Document of the World Summit (2005), is said to be “rather confusing” in this regard (Stahn 2007: 110). This case illustrates not only disagreement about the substance of international law, but also a deep confusion about how international law should be altered. International law is to be understood as a law-regulated order. Such an order is more than the system of written laws. It is the total relation between this law system and the society for which this law system is created. To understand a law-regulated order, we must have some knowledge of this society. A legal order in this broad sense in fact embraces the feelings of right and wrong and the moral attitudes which prevail in different nations. Kant pointed to such feelings when he, in the Perpetual Peace spoke of a world citizen right (Weltbürgerrecht). This is now a reality, Kant remarked, because the “community of nations has now gone so far that a violation of rights in one place of the earth is felt in all” (Kant 1996: 330). We may have doubts about Kant’s observation, because there still are lots of violations which go on unnoticed in today’s world. The point is, however, that feelings of right and wrong in world society do have great importance for the development of international law. The fact that human rights were integrated as a central aspect of international law in the period following 1945 has been historically

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important. The UN Charter only mentions “our belief” in human rights in the preamble of the Charter. The famous General Assembly declaration on human rights from 1948 does not legally bind the declaring nations. But from the end of the forties we have seen an increasing pre-occupation with human rights issues, resulting in a range of conventions which are binding in international law, as for example conventions on genocide, racism, torture, children, woman, and social and economic rights, and so on. These conventions have been decisive in giving the UN system a global reputation as the international institution which comes nearest to a universal expression of the needs and opinions prevailing in global mankind. No other international organization can count on a similar legitimacy. When critical voices point to the fact that human rights can be interpreted in a way that makes them serve the goal of dominant states and that “the vocabulary of virtue has been appropriated in the service of power” (Takhur 2010: 26), this cannot be denied. On the contrary, the diplomatic and mass media rhetoric of human rights and legal language is characteristic of the entire ideological situation in our epoch. All state leaders express themselves within the frame of a human rights-orientated rhetoric. Adolf Hitler did not conceal his contempt for all sorts of humanistic attitudes and openly declared his racist ideology. But in today’s world there are no longer any Hitlers. Politicians disclosing racist attitudes are smoothed over and declared to have been “misunderstood”.2 Still, this radical critique of international law as an ideology of the powerful (Hardt and Negri 2001: 6) should not stand as the whole truth. Human rights and humanistic language also express in a genuine way the interests of people all over the world suffering during wars, or social or political suppression. Appeals to human rights can be used, and in fact are used, to defend progressive political goals and basic human needs, as in the case of the Palestinians. There will always be a struggle over the interpretation of international law, reflecting conflicting interests, also reflecting different perspectives from above (state level) and from below (mass movements, civil society). Within this frame of political dialectic, compromises will be reached and decisions clothed in a diplomatic and human rights-orientated language (for this perspective, see Overrein 2007).

2

In 1986 the Japanese Prime Minister Yasuhiro Nakasone, in a speech intended solely for Japanese ears, caused consternation when he said that the USA was a less “intelligent” society than Japan because of its black and Hispanic minorities. The Japanese Foreign Affairs Ministry tried to tell the public that Nakasone was quoted out of context (van Wolferen 1990: 267).

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A Great Historical Compromise In general terms we must say that the transformation from European international law (equal legal rights only between Christian, civilized powers) to a global international law (universal and equal rights for all peoples and states), amounts to a revolution in world affairs. This was the result of a great historical compromise culminating in the founding of the United Nations in 1945. We may speak of a historic compromise emanating out of the Second World War. It was a compromise between the United States and the Soviet Union as the victors over the Axis Powers. It was a compromise between old western colonialism and movements for national independence and against colonial rule in the third world. It was a compromise between modern technological ways of waging war (especially nuclear war and aerial bombing of civilians) and peace movements and anti-war sentiments which were strong after both world wars, especially in Europe, the United States and Japan. And we may say, as the Norwegian law scholar Frede Castberg formulated it, international law was marked by a compromise between power politics and claims of justice (Castberg 1952: 40). This last contradiction implies that it was also a compromise between the old state forces from above and emerging forces in world society from below. This compromise created a new international law. The proposals for the UN Charter came from the American side and was negotiated mainly between the Americans and the Soviet Union during 1943–44, and then presented to the UN founding conference in San Francisco in 1945. Owing to its compromise nature we cannot say that the new international law was the single product of the western liberal tradition or the Judaeo-Christian tradition. It was more of a strange fusion of traditions and tendencies. And it involved both different theoretical, social, political elements and in addition the different cultures of the world. One more important point should be mentioned which helps us understand how the social and political forces from below, could gain influence on the making of international law. Classic international law before 1914 was determined by a power politics which was operating in secrecy. Negotiations went on behind closed doors between small elites, and important agreements were not publicly known. The great mass of working people, the victims of wars, only heard rumours and had no chance to understand the social and political causes behind war. There was no familiarity with open and intense discussing of foreign policy in the public.

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Twentieth century democratization and development towards a mass public sphere turned this upside down. A decisive change came at the end of World War I. The new Bolshevik government opened the Russian archives and published the secret treaties between Russia, Britain and France about the division of spoils after a future victory. There was strong support for this in the workers’ movements and among pacifists. And it was followed up by president Wilson in the United States who criticised what he called “the war of the state leaders” and labelled the war a “war of the peoples”, which “peoples” should therefore be about the war treaties. From that time a new diplomatic culture was created, and public opinion intruded into the sphere of foreign politics in a quite new manner. This made the public justification or rationalisation of foreign policy mandatory for all governments, to both domestic and international audiences (Bull 1977: 176).

Law and Power International law as a law-regulated order is always functioning in conformity, but also in tension with the prevailing order of power. Law and power are interrelated. The capitalist mode of production, which dominates the world, could not have developed without a corresponding legal system. The relation between the capitalists, owners of the means of production, and workers, is a legal relation. The two parts enter into a contract as free individuals. The contract regulates the selling of the workers ability to work. On the other hand, the relationship between capital owner and worker is a power relation. Legally they are equals, while the power relation usually is to the advantage of the capital side. In the world society, states are legally equals. This is perhaps the most fundamental principle inscribed in the UN Charter. But with regard to power, states are extremely different, from the only remaining superpower, which accounts for nearly half of the world’s total military spending, via small and weak states, to some really failed states where chaos prevails. International law as a legal structure is expressed through the principle one state, one vote. The UN General Assembly and other UN organizations are organized in accordance with this principle (the right to veto ascribed to permanent members of the Security Council being the important exception). However, outside the UN system there are important organizations which are self-appointed, as are the G-20, or the International Monetary Fund (IMF). In the IMF voting power depends on the financial support given to the funding of that organization.

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A legal scholar says about the relation between power and law: “But power and law do not stand in a contradiction to each other. They even belong in one single conceptional unity. Power without law is naked violence; law without power becomes a pure farce” (Kimminich 1993: 41). Law is always mediated by power. But we must remember to take all types of power into account, not only state power, but also civil society. If we want to understand the moral learning processes and modern legal consciousness, it is necessary to consider class struggles, social and national movements and wars as something which affects the mentality of whole peoples.

European and Global International Law The great divide in the history of international law was the two world wars which ended with the creation of the United Nations. From then on, Europe no longer dominated the rest of the world. European colonial expansion had arisen in the renaissance period and was ending mainly between 1920 and 1970. Western dominance was challenged by the Russian and Chinese revolutions, and by anti-imperialistic struggles. The two world wars were terrible events, both because of their length and the development of military technology, especially aerial bombing, in the twentieth century. Peace movements sprang up after the First World War. The old types of war heroism and war chauvinism went down. Democratic rights and an open public sphere got a breakthrough. Soldiers in their millions asked themselves why they were fighting the war, and in whose interest. According to one calculation, 74 million soldiers were mobilized in the First World War (Wehler 2003:103). In Germany one third of all soldiers were wounded, in addition to the 15 per cent who died (Wehler 2003: 103). Among the total number of 74 million, there were several millions from colonial areas in Africa and Asia. National movements against colonialism sprang up everywhere. A new mass society marked by crises and conflicts was the result. The pre-1914 world disappeared. We may say that the collective experiences of the victims of war and suppression were beginning to be heard in Europe in the last part of the nineteenth century. The establishment of the Red Cross Organization in 1863 was one important beginning. Before that time only individual thinkers, like Immanuel Kant in his Perpetual Peace, condemned war as a legitimate means in international politics. Classic international law before 1914 was restricted to Europe. Outside Europe there was no real international law. Here the European powers allowed themselves the most brutal methods of warfare, colonialism and

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even slave trade. The important dividing principle used by the European was that between civilised and uncivilised peoples, also named barbarous or savage. This dividing principle was explained in the legal textbooks used at the universities in Europe. According to a Norwegian textbook on international law from 1915 international law obligations are only binding between civilised states. Some independent states, among them Ethiopia, was not members of the international law community. Towards such states, we had only moral, but no legal obligations. The Europeans should not behave in a “brutal, un-Christian and inhuman way” towards them (Gjelsvik 1915: 2). Unfortunately, that was how the Europeans behaved, for example when they partitioned the African continent between themselves at the 1885 Berlin Conference. The principle of equality between independent states was valid only in Europe. The first international conference with a non-European state present was in Paris 1856; the non-European state present was Ottoman Turkey. The first international meeting with a majority of non-European states was the 1945 founding meeting of the UN. Classic international law in Europe was a system that allowed a state to attack and occupy another state. War was not forbidden, it was a legitimate means to achieve political goals. Through great meetings, diplomacy and peace negotiations the European powers tried to check and regulate war. Examples are the 1648 Westphalia settlement, the Congress of Vienna 1814/15, and the Treaty of Versailles after World War One. As for the humanitarian law of war, which covers how war is waged, there was almost no legal progress until the Hague Conventions of 1899 and 1907. The important breakthrough came in 1949 with the fourth Geneva Convention. But the decisive change was that to start a war, to attack another country, was forbidden in the new 1945 UN Charter. “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” (Article 2.4). War was criminalized, and the only war that could legally be waged was a defensive one following an attack. These were all a reaction against the aggression of fascist powers. Indeed, attacking other states was the main point of indictment against the Nazi leaders at the Nuremberg trial. After 1945, all states were recognized as equals, regardless of economic and political strength. It was no longer possible to talk of civilised and un-civilised states. By 1960, the 46 states from the founding assembly of the UN, were already in a minority among the UN members. In 1965, the majority in the UN General Assembly adopted a Resolution

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on the right to use force in wars of national liberation. The resolution, adopted against the votes of the western states, considered all colonies which at that time had not gained independence, as occupied territories and hence armed struggles against colonial powers was legitimate. This high point of anti-western sentiment showed that the earlier victims and objects of western imperialism had now reached an unprecedented degree of self-consciousness. The composition of the international law community had been completely transformed.

A New Global Normativity International law and human rights conventions have institutionalized a new moral rhetoric and a global normativity with lasting influence on the way we all, but especially political and educated elites, are addressing and discussing moral and political problems. Traditional imperialist ideology is today an undercurrent, so is, at least in the elites of society, racism and sexual discrimination as well. It is simply not possible to speak of different races or sexes as being of different moral worth. It is an all too narrow definition of law to say that its only function is to restrict the actions of the subjects which are subordinated under the law, or to define law as rules which depend on a sovereign power standing behind the law and able to punish breaches against the law. These are important aspects of law, but law has some other functions as well. The existence of law, and in particular a “politicized” law as international law, compels the states always to state the reasons for their behaviour in conformity with international law. They cannot disagree with a law that is legally binding. As Castberg said, a state foreign policy action which in reality constitutes a breach against the law, is always clothed in a law-abiding, diplomatic language (Castberg 1952: 49). The states have no choice but to appear in the most humanistic and peaceful way, and these appearances have deep effects on the way international politics and moral are generally talked about. No state declares that its actions contradict international law or human rights, but one rare exception was when the Soviet Union made a self-criticism because of the invasion in Czechoslovakia in 1968; but this self-criticism came in 1989, 22 years too late. Another aspect of international law is that it presents us with a picture of a global world as it ideally should be, and provides us with some value concepts (as humanity, global justice, peace, solidarity, human rights, selfdetermination, etc.) which politicians must adopt as theirs and which opposition groups can make use of when they formulate their political claims. This ideal picture and the norms of human rights are today more or

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less integrated in schools, universities and mass media. This officially accepted common language has deep effects on the legal and moral consciousness across the world. This universal rhetoric, often declining into hollow phrases and sheer hypocrisy, is a precondition, and in a way the only possible common platform, for the on-going global dialogue between states and peoples belonging to different cultures and different political orientation. With the old Eurocentric dichotomies about civilised and uncivilised, it would not have been possible to talk together in this way. There would have been no common normative platform. International law after 1945 was forced to find a new language. It is not possible to declare universal equality between states and humans and at the same time express racist, imperialistic and paternalistic attitudes towards other states and cultures. The new language could only be a language beyond fixed world views and ideologies. What was required was some sort of what Rawls calls “overlapping consensus” on a global level, although this actually existing consensus is much looser than the one in Rawls’s theory. I mentioned that Kant saw moral learning not necessarily as a conscious process where rational arguments are put forward. He was well aware that the participants in international politics always try to give the best diplomatic appearance. But, as Kant noticed in the Critique of Pure Reason, “this tendency to conceal ourselves and to assume the appearance of what contributes to our advantage has, undoubtedly, not only civilised us, but gradually, in a certain measure, moralised us” (Kant 1965: 599). Our world is a world of real conflicts between states, classes and ethnic groups. But these conflicts are framed within a diplomatic and political language where international law plays a significant role. Political discourses regularly evolve into struggles around the interpretation of key international law concepts. When the US and the United Kingdom began the war against Iraq in 2003, they argued that this was a war of defence and not of aggression. Others labelled the beginning of that war an attack on Iraq. In other words, there was, and still is, great confusion about what constitutes an “attack” and how “defence” is to be defined. Another example is the struggle around human rights. Debates on human rights offences are transformed into debates on the interpretation the human rights. Hence we have western, Islamic and Chinese theories of what human rights really are. The states reserve to themselves the right to give their own interpretation of the human rights conventions. The negative costs of these interpretation conflicts are the watering down of legal concepts, the inflation in the use of human rights rhetoric and in the longer run, the danger of fragmentation and disintegration of international law and institutions.

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US versus UN: What Future for International Law? Classic realistic logic says that after the demise of the Soviet Union, the balance of power radically changed. Hence there should be no real conflict between international law and the only remaining superpower, the United States of America. And in fact, the United States has tried to change and re-interpret international law in a way that serves the interests of that state. In particular, the US and NATO have tried to lessen the restrictions on the use of armed force imposed by international law, culminating in the new NATO Charter of 1999, which declared a specific right to wage wars “out of area” and without any preceding attack, and even without Security Council support. There is no international agreement about these changes. Therefore we have experienced conflicts and new uncertainties about the future of international law. In the so-called “war against terror”, the US has gone to the limits, or transcended the limits, of international law through its camps for detainees (Guantanamo and others), the killing of alleged terrorists through drone attacks, and through bestowing upon itself a limitless right to wage global war against any group of private persons which the US government defines as terrorists (O’Connell 2004). When the war against Iraq started the United States tried hard, but did not succeed, in getting UN Security Council support, not even from close friends and NATO allies. These examples indicate serious frictions between US policies and the international law system. Connected to the Iraqi war was also the open conflict between the then General Secretary Kofi Annan and the “coalition of the willing”. In an interview, Annan went so far as to say that the war was illegal: “From our point of view and from the Charter point of view it was illegal” (Annan 2004). These examples make it difficult to assume that international law is only the reflection of the strongest. The Iraq war provoked the biggest demonstrations worldwide since World War II. Opinion polls in several European countries showed that the US was considered a bigger danger against peace than any other country. Kofi Annan, when uttering his critique, was defending what his position obliged him to defend: the status and integrity of the UN and hence international law. If he had not criticized the US, it could have been interpreted as the complete capitulation of the UN before the remaining superpower. He had to remind the world, and not only behind the diplomatic scenes, but in public, about some core values of international law. In fact, a half year ahead of the invasion of Iraq he underscored that there was “no substitute for the unique legitimacy provided by the United Nations” (Annan 2002). Even as the UN system was placed on the sideline

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in 2003, making itself “irrelevant” according to the then Bush Administration, the system was not destroyed. In the end, the increasing difficulties both in Iraq and Afghanistan motivated the US to seek cooperation through the UN and the Security Council. The permanent members found a compromise whereby the US was accepted as the occupier of Iraq, and whereby the fact that the US originally had attacked a country without the support of the Security Council was passed over in silence (Overrein 2007: 187–190). International law is by no means the ideal system, but it gives some genuine standards from which great power politics can be evaluated and criticized. It is not mere hypocrisy which serves to manipulate opinion, although states always try to do that. We should therefore avoid being cynical realists who refuse to see any form of progress in the development of modern international law. International law is not only an important “term of reference” for any critique of world politics, it provides the ongoing world public discourse, the so-called dialogue of mankind, with its key concept, thereby setting the premises of rhetoric, style and, we may hope, civilizational influence of this discourse.

References Annan, Kofi. 2002. “Bush to Warn U.N.: Act on Iraq or U.S. Will”. New York Times, September 12. —. 2004. “U.N. Chief Ignites Firestorm by Calling Iraq War ‘illegal’”. New York Times, September 17. Bull, Hedley. 1977. The Anarchical Society. A Study of Order in World Politics. London: Macmillan. Castberg, Frede. 1952. Studier i folkerett. Oslo: Akademisk Forlag. Christensen, Kit. 1994. The Politics of Character Development. A Marxist Reappraisal of the Moral Life. Westport Conn.: Greenwood Press Elias, Norbert. 1976. Über den Prozess der Zivilisation. Frankfurt: Suhrkamp. Geiger, Rudolf. 1994. Grundgesetz und Völkerrecht. München: C.H. Beck. Gjelsvik, Nicolaus. 1915. Lærebok i folkerett. Kristiania: Samlaget. Gray, John. 1995. Liberalism. Second ed. Buckingham: Open University Press. Hardt, Michael, and Negri, Antonio. 2000. Empire. Cambridge, Mass.: Harvard University Press. Kant, Immanuel. 1965. Critique of Pure Reason. Transl. Norman Kemp Smith. New York: St. Martin’s.

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—. 1968. Kants Werke. Akademie Textausgabe, Bd VII. Berlin: de Gruyter & Co. —. 1996. Practical Philosophy. The Cambridge Edition of the Works of Immanuel Kant. Cambridge: Cambridge University Press. Kimminich, Otto. 1993. Einführung in das Völkerrecht. Tübingen: J.C.B. Mohr. Marx, Karl. 1962. “Rede auf dem Polenmeeting in London am 22. Januar 1867”. Marx-Engels-Werke, Bd 16. Berlin: Dietz. —. 1963. Selected Writings in Sociology and Social Philosophy. Edited by Thomas Bottomore and Maximilien Rubel. Harmondsworth: Penguin Books. O’Connell, Mary Ellen. 2004. “The Legal Case against the Global War on Terror”. Case Western Reserve Journal of International Law 36: 349– 357. Overrein, Arne. 2007. Kampen om folkeretten. Andre opplag. Oslo: Abstrakt forlag. Rawls, John. 1971. A Theory of Justice. Cambridge, Mass.: Harvard University Press. —. 2001. Justice as Fairness. Cambridge, Mass.: Harvard University Press. —. 2002. The Law of Peoples. Cambridge, Mass.: Harvard University Press. Stahn, Carsten. 2007. “Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?” The American Journal of International Law 101: 99–120. Wehler, Hans-Ulrich. 2003. Deutsche Gesellschaftsgeschichte Bd. 4. 1914–1945. München: C.H. Beck. Weiss, Thomas. 2010. “How United Nations Ideas Change History”. Review of International Studies 36: 3–23. Van Wolferen, Karel 1990. The Enigma of Japanese Power. New York: Vintage Book.

CHAPTER SIXTEEN NORMATIVE CONSIDERATIONS ON THE DEVELOPMENT PROCESS FROM A LIBERAL PERSPECTIVE: AMARTYA SEN AND CELSO FURTADO FABIAN SCHOLZE DOMINGUES1

Introduction Amartya Sen and Celso Furtado analyse the economic development process from a liberal perspective, despite their critiques of laissez faire economics. They share similar assumptions about the ends of development: the expansion of individual and collective freedoms and democracy as a form of government. These are some of the most important concepts in political liberalism. Sen highlights the importance of a multidimensional normative analysis to evaluate the complex issues related to underdevelopment and poverty, and how misleading a living standard analysis based only on income metrics can be (Sen 2000). According to Sen, health and education are other dimensions that must be taken into account in the analysis of the development of nations. Likewise, Furtado suggested a broad analysis of the development of nations as a historical and global process. Following the ideas of the Economic Commission for Latin America and the Caribbean (ECLAC, better known by its acronym in Spanish and Portuguese, CEPAL), Furtado theoretically explored the difference between rich, developed countries, and poor or backward countries to create an original theory of development. The analysis of the development process is based on the centre-periphery dichotomy of the international economic organization and on structural parameters, that is, non-economic variables that have influence on economic variables. Structural parameters 1

Federal University of Rio Grande do Sul (UFRGS), Brazil.

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(non-economic variables), such as the structure of land ownership and structural unemployment, interact in the long term with the economic variables, and it affects the pace of growth, inequality rates and living standards. The goal of this paper is to offer methodological insights on the development process from the liberal perspective of Amartya Sen and Celso Furtado. In the first section I present the concept of development. Sen and Furtado distinguish between means and ends of development and emphasize the priority of the ends, that is, human realization, rather than the means to achieve it, which includes natural resources, commodities and income. In the second section I discuss some of the core ideas of Sen’s capabilities approach: a multidimensional framework of development, basic and complex functionings, absolute and relative poverty. In the third section, I present Furtado’s theory about the development process through three main ideas: 1) the methodological approach to development economics; 2) the consequences of the duality between a centre of developed countries and a periphery of underdeveloped countries in the global economy; and 3) the historical characteristics of this process in Latin America, particularly in Brazil. As a final remark, I present a summary of the points the authors have in common and discuss the limits of each approach. While Furtado provides a historical and political meaning to the economic development process from the structuralist perspective, based on the national state analysis category, Sen’s approach goes beyond the nation’s borders and brings new analytical categories from a comparative perspective, with no emphasis on the historical and political process.

Means and Ends of Development Amartya Sen and Celso Furtado organized their theories on development from a normative perspective. The core of this perspective is trying to define the good life for human beings, as well as the material and political conditions needed to achieve it. Income, wealth and production are seen as means to achieve human development. The ends of development are the expansion and realization of individual and collective freedoms. Sen and Furtado share a core conception of political liberalism, but both criticize in a very similar way the two main assumptions of liberal economics and its consequences to developmental policies: the traditional view of homo economicus, with egoistic rationality, maximizing behaviour and access to complete information; and, the methodological limits of the ceteris paribus principle in developmental issues. According to them, these

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assumptions result in a distorted view of real human motivations and an equally distorted view of the ends of development. Sen states in Development as Freedom: The ends and means of development require examination and scrutiny for a fuller understanding of the development process; it is simply not adequate to take as our basic objective just the maximization of income or wealth, which is, as Aristotle noted, “merely useful and for the sake of something else”. For the same reason, economic growth cannot sensibly be treated as an end in itself (Sen 1999: 14).

The ends of development, according to Sen’s approach, are about freedom of individuals to choose the life they consider suitable and fair, freedom of thought, personal and community security and the social bases of selfrespect. From this perspective on economics based on a normative and multidimensional approach, democracy and active political participation are considered values in themselves, goals to be achieved in the development process. Similarly, from Furtado’s perspective, democracy cannot be left aside for a high economic growth or arbitrary economic adjustments. The apparent alternative to freedom—accelerated development—can be hazardous to the collective aspiration to freedom, because it could be inferred that the access to freedom by a minority is paid through the sacrifice of the well-being of the vast majority [...] so it is not only about the sacrifice of people but also of values, and it’s not possible to assure that the values destroyed today can be rebuilt tomorrow (Furtado 1962: 162).

Despite their terminological differences, the appropriate informational space to evaluate the development process, a sharp distinction between its means and ends, the emphasis on a broader view of human motivations and aspirations, and the role of democracy as a value in itself are relevant topics to both theories. Sen argues that a single principle—for example, efficiency maximization—is not enough to deal with normative economic problems. Instead, a plurality of principles should be considered. Welfare economics is a major branch of “practical reason”. There are no good grounds for expecting that the diverse considerations that are characteristic of practical reason, discussed, among others, by Aristotle, Kant, Smith, Hume, Marx, or Mill, can, in any real sense, be avoided by taking refuge in some simple formula like the utilitarian maximization of utility sums, or a general reliance on optimality, or going by some

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When several principles are used to evaluate welfare, the informational basis for appropriate normative judgments about the development process gets more comprehensive than the informational basis provided by traditional economics. Broad informational bases of welfare, as well as an evaluation of the development process through combining principles, result in a more realistic set of assumptions about human beings, their real problems and the best public policies to deal with them. In this sense, the view of persons as agents who have diverse valued-goals and commitments on behalf of themselves and society implies that “the [capabilities] approach cannot coherently employ an entirely self-interested model of human motivation” (Alkire and Deneulin 2002: 125). A set of other motivations, perhaps including identity, cooperation, altruism, habit, and sympathy, must also be included (Sen 1997: 12). Thus the capability approach also has consequences for the model of homo economicus, with its limitations to explain the real motivations of human beings. Traditional economics does not focus much on political rights, democracy and quality of life. This perspective has been supported by the military governments of several underdeveloped countries during the twentieth century. In search of economic growth, the governments and elites of countries like Taiwan and Brazil got involved in the catching up process, many times consciously neglecting political and civil liberties. These governments may have contributed to the growth of the Gross Domestic Product (GDP), but not necessarily to a social development. In Positional Objectivity (Sen 1983b), Sen also suggests that different social contexts require different informational bases to evaluate development, and each context requires a specific set of principles for a good normative evaluation. Furtado studied the “structural parameters”, which provide the economic and social context usually put aside by the ceteris paribus clause of traditional economics. Some of these structural parameters include the consumption standards in underdeveloped countries, political rights, property rights on land and so on. Thus, by studying a broad range of dimensions, a multidimensional framework, both authors provide analytical tools to understand the process of development in a more comprehensive way than usually done by the income theories of development.

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The Capabilities Approach This section focuses on three topics from the capabilities approach perspective. The first is the distinction between ends and means of development. The second is the definition of poverty as a deprivation of capabilities and its implications for the study of underdevelopment. The third is Sen’s criticism of theories of development focused exclusively on its means, that is, utility, income and resources. Human beings are the agents, beneficiaries and judges of progress, as well as, directly or indirectly, the primary sources of all production. This dual role of human beings provides a broad range of confusion between ends and means of development. To emphasize production and wealth as the basis of progress is to treat people as the means by which progress can be reached. A country can be very rich in terms of traditional economic indicators, such as GDP, and very poor in terms of quality of life (Human Development Index—HDI). This is what happens in South Africa and Brazil. In order to avoid the confusion between means and ends, Sen identifies the ends of development in terms of how the effectiveness of the means can be systematically confirmed. In this aspect, he sees human life as a set of “beings and doings” called “functionings” that enable people to behave as human beings. Sen distinguishes elementary functionings, like the avoidance of morbidity and premature mortality, appropriate nourishment, and the ability to make the usual movements, from complex functionings like selfesteem, taking part in the community life and appearing in public without shame. A person is constituted by a set of functionings and an evaluation of anyone’s welfare has to include the monitoring of these elements. Sen illustrates the relation between resources, functionings and capabilities in the well-known example of the bike (Sen 1983b). The bicycle is a resource. However, the availability of the resource is not enough to ride a bike. It is also necessary make the usual movements, to be well nourished, and so on. In other words, the appropriate functionings to be able to ride a bike are as important as the resource. Furthermore, a capability is required, the appropriate skill to ride a bicycle. The agent is able to flourish because he or she is free to use the resources, functionings and capabilities according to his or her will. Since a person’s capabilities are in the core of Sen’s normative evaluation of development, he also defines its contrary, poverty. It is primarily the deprivation of functionings and capabilities, not necessarily the lack of resources. According to this view, there is an important difference between relative and absolute poverty that traditional

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economics does not take into account. On the one hand, the relative poverty measurement helps comparing degrees of deprivation using income indicators. Relative poverty is often measured as the percentage of poor people in an overall population. On the other hand, absolute poverty represents an absolute form of deprivation and it is not related to deprivation of income, but to values. To exemplify the concept of absolute deprivation, Sen uses Adam Smith’s example of the linen shirt. In seventeenth century England, workers that did not have a linen shirt felt ashamed about it. For this reason, they would not go to certain places, such as restaurants. Not having a linen shirt and feeling ashamed about it are signs of absolute deprivation. In Smith’s example, shame is an expression of absolute poverty, and, therefore one of the reasons why these workers avoided some social relations. Sen realizes that absolute deprivation occurs when one pays attention to realizations more than to resources. In the usual measurement of poverty that establishes its thresholds and cutoff lines based on income metrics, only a person with no income would be in an absolute deprivation situation. But from Sen’s perspective, a poor person is the one who does not realize freedom and cannot flourish. This can happen even if he or she has money and resources (like land), but does not have the appropriate functionings and is not able to turn resources into realizations. Sen criticizes the traditional theories about economic development because they are based on the informational basis of utilitarianism and on the income metrics. Their perspectives reduce the perception of the real problems of development to a subjective and income matter. The capabilities approach is complementary to traditional income-product or resource-based theories because, from this perspective, human life is seen as a combination of many functionings and capabilities, which are expressions of the realization of human freedom. In this sense, achieving human freedom is a central aspect of economic and social life in which the development process should be framed and evaluated. The rhetoric of “growing the pie before sharing it” was supported in many places where democracy was considered less important than an alleged accelerated growth. But this rhetoric based on GDP frequently hides a distributive conflict between those who are able to enjoy the present, and the others, who must wait for the outcomes of progress. According to Sen, the analysis of development must begin with a normative discussion about its goals and its primary variables. Thus, the normative analysis of development should include a perception about the good of man in its different dimensions. Even though a single dimension can be an imperfect measure, different dimensions considered together can

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provide a more complete overall picture of the development process. Sen (2010) recognizes that his approach is consistent with many theories about the expansion of substantive freedom. In Part 3, I suggest that Furtado has a complementary explanation to that of Sen.

Celso Furtado and the Persistence of Underdevelopment Furtado’s work is an attempt to discover the underdevelopment causes and to offer solutions for reducing poverty and improving quality of life through public planning. He analysed the underdevelopment process in Latin America during the 1950s and 1960s. Poverty, malnutrition, starvation and all kinds of deprivation reached alarming levels, even taking into account the fact that the Latin American countries are rich in natural resources, with favourable weather conditions and large populations. The explanation of traditional economics, based on the comparative advantage theory, was not compatible with this situation. Countries with a lot of natural resources like Brazil, Bolivia and Mexico should not have the very high levels of poverty they have, with considerable relative backwardness and inequality. Furtado’s theory aims to explain the economic and social reasons for such relative delay. He was influenced by Mannheim’s sociology of knowledge, Weber’s comprehensive methodology and Myrdal’s circular cumulative causation in his attempts to understand the persistence of underdevelopment as a historical phenomenon. Against Rostow’s theory of stages of growth, he concludes that underdevelopment is an autonomous historical process, and does not necessarily constitute a preliminary stage to a higher level of development. Thus, according to Furtado, there is a stable duality in the world economy organization: it is divided in a core of industrialized nations and a periphery of underdeveloped countries. The industrialized nations supply manufactured products and capital, and the underdeveloped nations supply commodities and labour-intensive products to the international markets. The structure of international trade causes a permanent flow of resources from periphery to centre countries, worsening the vicious circle of poverty in the periphery of the international economic system. In his first works, Furtado referred to the industrialization of periphery countries as the solution to breaking the vicious circle of poverty. After that, he carried out his research in Cambridge, where he wrote his major work, Economic Formation of Brazil (1959), based on Keynesian economic theory and on historical analyses to understand the historical movement of Brazilian economic structures. In his late works, Furtado put together economics and cultural analyses, to understand the role and

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influence of values in the process of development. Expansion of human freedom and democracy are ends to be pursued in this process and the democratic and humanist values play a fundamental role in achieving social development. This section is about the main ideas about development as a historical process in Furtado’s work. Firstly, I make some methodological remarks about objectivity in economics of development. Then I present the core of Furtado’s dualistic and structuralist view of development. Finally, I discuss the relation between values, poverty and underdevelopment from his theoretical perspective. Furtado recognizes the methodological limitations of traditional economics in understanding the persistence of underdevelopment. He criticizes the methodology of traditional economics due to its “inability to grasp structural transformations, that is, the interaction of economic with the non-economic variables”. As a theoretician, Furtado focuses on the relationship between economic and non-economic variables because the main questions about the persistence of underdevelopment depend on political, economic and historical context. For the economist, objectivity means understanding that the economic phenomenon cannot be caught outside its context, and in order to place it within this context, value judgments that take into account the acceptance of principles are required [...] In the highly developed nations, which have therefore reached a high level of social integration, a relative agreement on certain basic principles can easily be achieved. The same, however, cannot be said about a rapidly transforming and heterogeneous country, like Brazil (Furtado 1981: 63).

The difference between developed and underdeveloped countries, according to Furtado, is found in social and economic heterogeneity in terms of structures, positional perception and human development. Principles and values constitute the basis of any collective project. In particular, the historical process of development requires a long-term agreement about the basic values to be pursued by a society. This agreement should occur in an open society, in democratic terms. Although there are few clear references to method in Furtado’s work, he presents some considerations about it in Teoria e Prática do Desenvolvimento (Theory and Practice of Development, not translated into English), from 1983. In this work, Furtado defines himself as a member of Latin American structuralism—unlike the French structuralism of Levi Strauss—with strong influences of the sociological method of Max Weber. Furtado captures the methodological similarity between the creation of ideal types used by Weber to explain how society works and the economic

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models of traditional economics. He emphasizes the variables that are usually not taken into account in the traditional economic evaluation of development and can be explained by Weber’s method. Furtado wanted to bring together the variables included into the ceteris paribus clause in his analyses. The objective of this methodological discussion is to expand the informational space (Sen’s terminology) used to study the development process. Furtado created a typology of social and economic variables: “Type 1” deals with purely economic phenomena, and its significance lies in the economic aspect of society; “Type 2” refers to economically important phenomena such as religious and social variables; “Type 3” deals with economically conditioned phenomena, showing relationships between non-economic variables as endogenous, but influenced by economic variables. According to Fonseca (2009), Furtado acknowledges that his structuralist conception concentrates the study of economics in the “Type 2”, while conventional economics concentrates its attention in the “Type 1”. Thus, what is constant in a ceteris paribus clause is perceived as variable in Furtado’s structuralist theory. History, path dependence and social context are considered inseparable from economic diagnoses. In Furtado’s view, the copy of consumption standards of developed countries by local elites is one of the deepest causes of Latin American underdevelopment. The copy of consumption standards promoted by mass media, fashion and entertainment industry and transnational companies changes the structural parameters of periphery economies. That unusual behaviour of demand creates, apart from others consequences, economic dysfunctions in the long-term variables, such as structural unemployment, high inflation rates and deficit in balance of trade. As a consequence of this standard of social behaviour, an anomalous behaviour of the factors of production is verified in Latin American economies, especially due to the high cost of the scarce factor, capital, in relation to the abundant factor, labour. The elite’s adoption of foreign cultural standards forms the consumption habits in the long-term economic dynamics. Therefore, values—the cultural standards—have an important role in explaining the relative backwardness of Latin American countries. Furtado provides a dynamic explanation for the persistence of underdeveloped economies. He points out that underdevelopment is a process that exists concurrently with development. The copy of consumption and cultural standards of developed countries results in a specific operation of technological progress in underdeveloped countries.

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At first, only the elites of underdeveloped countries have access to consumer goods produced in the developed countries. In this model, the concentration of income is functional to the local elite copy of the consumption standards of developed countries. The modern methods of production with cutting edge technologies are imported due to their higher productivity. These technologies are at the core of the process of import substitution and they are labour-saving and capital-intensive. Technological progress underuses the abundant factor present in underdeveloped countries, labour, vis-à-vis the scarce factor, capital. Thus, according to Furtado’s analysis, Brazil and Latin America were in a situation in which a lot of people could not be consumers because there was long term structural unemployment caused by the new productive methods. This anomalous behaviour of labour market hindered the endogenous development of the productive forces and increased social and economic inequality. Furthermore, the highly concentrated nature of income and land ownership meant that available income in underdeveloped countries did not allow the scale increments for the endogenous development of industrial products in competitive markets. Furtado suggested structural reforms in order to deal with the problems generated by the dichotomy of consumption standards and by the underused factors of production seen in peripheral and dependant economies. The reforms were supposed to reduce social inequality and expand the internal markets, with land reform, real increases in wages and public education in rural areas. Social values rooted as habits and institutions have strong influence in long-term variables such as population growth, technical change and property rights over land. Furtado realized that the consumption standard, which is a cultural matter, has a deep impact on macroeconomic policies. The study of preferences in underdeveloped countries explains much of social inequality: Poor people have adapted their preferences to the scarcity of their living standards; rich people’s consumption standards become the consumption standards of developed countries. As Sen, Furtado states that adaptive preferences lie in the core of the study of poverty. People subject to a sharp deprivation for long periods adapt their preferences to the material conditions available. In this sense, utility measurements used by traditional economics do not capture the real state of poverty and underdevelopment problems. Finally, Furtado was very interested in democracy as a form of government compatible with a country that aims to improve social development. He was one of the few Brazilian scholars who stated that democracy was a suitable form of government during the democratic period that started in 1945 in Brazil and ended with the military coup in

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1964. Furtado identified a distributive conflict between the majority deprived from the outcomes of development and the empowered minority that decides the criteria of allocation of public resources. At that time, Furtado suggested long-term planning based on rational principles and base reforms as an alternative to overcome the distributive conflict in Brazil. He was a scholar, but he also worked as a public planner. In the late 1950’s and early 1960’s he was the superintendent of Sudene, a federal institution created to encourage economic development in Brazil’s north-east. After that, he became minister of national planning during João Goulart’s government. When the Brazilian military government began in Brazil, Furtado lost his political rights and had to leave Brazil for ten years. As a consequence, his economic and social planning was forgotten and the social conditions grew worse.

Final Remarks I have presented Sen’s and Furtado’s contributions to development studies. From a political point of view, both authors share a similar perspective about the ends of development, as a process of expansion of individual and collective freedom. They believe that democracy is the most suitable political system to achieve this end. In my final remarks, I summarize the ideas they have in common and briefly point out their main theoretical and methodological differences. The main ideas to be highlighted are: 1) historical reality and empirical data (context) are critical to understanding economic phenomena (against general methods from traditional economics); 2) social reality affects and directly influences the economic phenomena (non-economic variables or a broad multidimensional informational basis); 3) the goal of development is to change the structures of underdeveloped societies according to the goals and the values desired by society through democratic functioning of the political system; 4) the ultimate goal of the development process should be the good life for human beings—the expansion and realization of their freedom, which is the core idea of political liberalism. The capabilities approach has gained popularity among economists, governments and public planners over the last twenty years. The HDI has been used to implement policies against poverty in income, healthcare and educational programmes in underdeveloped countries. However, despite the wide use of this methodology, the capabilities approach does not have an appropriate historical and political explanation for the persistence of systematic deprivation in some countries or territories. The dualistic explanation of international economic organization, the adverse trade

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conditions to the underdeveloped countries, and the structural analysis help understand the political questions behind the persistence of low levels of healthcare, education and income systematically captured by HDI maps and reports. As Furtado pointed out, the vicious circle of poverty has structural causes in economic and political asymmetries. For this reason, a more comprehensive analysis of underdevelopment is possible using HDI data with a more solid theoretical basis. Comparisons and ranking lists of countries—the core of Sen’s comparative approach—are not enough to explain why some regions, groups or countries are so poor while others are so rich, so a theory is required. Sen considers the analysis of poverty from the perspective of individual freedom, elucidating some questions that were not clarified in Furtado’s theory. Furtado frequently treats underdevelopment as a territorial issue. Regions and nations are crucial to understand structural changes according to him, but there are other forms of deprivation and poverty that are not perceptible through territorial categories. One of the methodological contributions of capabilities approach’s radical individualism is a break down with the indivisibility of family as basic social unity in the development studies. The approach investigates the distribution of functionings and capabilities in families and provides important statistic data to study intra-family inequalities. This perspective allows the creation of public policies and designing incentive mechanisms to improve the distribution of resources and opportunities among family members. Some important income programmes—like Bolsa Família, a huge Brazilian income distribution programme for low-income families with children— give money directly to mothers. As a result, it strongly reduces premature mortality and increases the years of formal education for children. This operational change was very effective to help better understand the different dimensions of the underdevelopment phenomena even in a family structure. The theoretical background—the role of women in the distribution of family’s resources and opportunities—was not covered by Furtado’s theory of development and his political concerns to reduce poverty. However, a structural analysis of development can use these data to better understand some important causes of underdevelopment, such as sexism and prejudice against children and elderly people.

References Alkire, Sabina and Deneulin, Severine. 2002. “Individual Motivation, Its Nature, Determinants and Consequences for Within-Group Behaviour”. In Group Motivation and Development: Is the Market Destroying

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Cooperation?, edited by Judith Heyer, Frances Stewart and Rosemary Thorp, 51–74. Oxford: Oxford University Press. Bresser-Pereira, Luiz Carlos. 2001. “Método e paixão em Celso Furtado”. In A Grande Esperança em Celso Furtado, edited by Luiz Carlos Bresser-Pereira and José Márcio Rego, 93–112. São Paulo: Editora 34. Bresser-Pereira, Luiz Carlos. 2006. “O Conceito Histórico de Desenvolvimento Econômico”. Working papers 157. São Paulo: FGV. Cêpeda, Vera Alves. 2003. “O pensamento político de Celso Furtado: desenvolvimento e democracia”. In Anais do V Encontro Internacional sobre Globalização e Problemas do Desenvolvimento, Havana, 3: 1152 –1167. —. 2006. “Estado, democracia e nação na teoria do subdesenvolvimento”. Revista Versões 1: 49–68. —. 2008. “Revendo o lugar da democracia no processo de modernização: as matrizes da teoria furtadiana do desenvolvimento”. Revista Teoria & Ação 17 (2): 93–112. Escosura, Leandro Prados. 2010. “Improving Human Development: A Long-Run View”. Journal of Economic Surveys 24 (5): 841–894. Fonseca, Pedro Cezar Dutra. 2004. “Desenvolvimento Econômico e Distribuição de Renda.” In Uma Nova Relação entre Estado, Sociedade e Economia no Brasil, edited by Mauro Salvo and Sabino Porto Jr, 269–292. Santa Cruz do Sul, RS: Unisc. —. 2009. “A Política e seu Lugar no Estruturalismo: Celso Furtado e o Impacto da Grande Depressão no Brasil”. Economia 10: 703–721. Fukuda-Parr, Sakiko and Kumar, A. K. Shiva. 2003. Readings in Human Development. Oxford: Oxford University Press. Furtado, Celso Monteiro. 1959. “About the Objectivity of the Economist”. In Subdesenvolvimento e Estado Democrático, 9–15. Recife: Condepe. —. 1961. Desenvolvimento e subdesenvolvimento. Rio de Janeiro: Fundo de Cultura. —. 1962. A pré-revolução brasileira, Rio de Janeiro: Fundo de Cultura. —. 1964. Dialética do desenvolvimento. 2 ed. Rio de Janeiro: Fundo de Cultura. —. 1969. Um projeto para o Brasil, edited by Celso Furtado and Francisco de Oliveira. São Paulo: Ática. —. 1981. Pequena Introdução ao Desenvolvimento. Enfoque Interdisciplinar. São Paulo: Companhia Nacional. —. 1983. Teoria e Política do Desenvolvimento Econômico. São Paulo: Abril Cultural. —. 1989. Fantasia Desfeita. Rio de Janeiro: Paz e Terra.

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—. 2006. “Perspectivas da economia brasileira”. Cadernos de Desenvolvimento 1 (2): 157–234. Rio de Janeiro: Centro Internacional Celso Furtado de Políticas para o Desenvolvimento. Kang, Thomas. 2011. “Justiça e desenvolvimento no pensamento de Amartya Sen”. Revista de Economia Política, 31 (3): 352–369. Marreca, Pedro Paiva. 2011. “Celso Furtado: Desenvolvimento e Democracia no Brasil pré-revolucionário”. Ph.D diss. PUC-Rio. Medici, André. 2005. “Autonomia, democracia e reformas estruturais, como indutores do processo de desenvolvimento no Brasil, na obra de Furtado”. Aparte. Instituto de Economia, UFRJ Ricupero, Bernardo. 2005. “Celso Furtado e o pensamento social brasileiro,” Estudos Avançados 19 (53): 371–377. Sen, Amartya. 1983. “Positional Objectivity”. Philosophy and Public Affairs 22 (2): 126–145. —. 1983. “Poor, Relatively Speaking”. Oxford Economic Papers, New Series 35 (2): 153–169. —. 1990. On Ethics and Economics. Oxford: Oxford University Press. —. 1995. Inequality Reexamined. Cambridge: Harvard University Press. —. 1996. “On the Foundations of Welfare Economics: Utility, Capability and Practical Reason”. In Ethics, Rationality and Economic Behavior, edited by Francesco Farina, Frank Hahn and Stefano Vannucci, 50–65. Oxford: Clarendon Press. —. 1997. “Economics, Business Principles and Moral Sentiments”. Business Ethics Quarterly 7 (3): 5–15. —. 1999. Development as Freedom. Oxford: Oxford University Press. —. 2009. The Idea of Justice. Cambridge: Harvard University Press.

INDEX

Abdol-Hamid, Asmaa 20 Adorno, Theodor 14 All-affected-interests principle 196– 197 Alnes, Jan Harald 48n Andreassen, Rikke 22 Annan, Kofi 280 Anthropology xxv, 92–93, 105 Anthropology of science 41, 49 Philosophical anthropology 25 Appiah, Kwame Anthony 204n, 206n Applied ethics xxi–xxii, 52–58, 61, 63–64 Arendt, Hannah 140, 155–156, 162, 216 Aristotle 55, 285 Art and science xxii, 55–59, 63 Art of Life xxii, 60 Asad, Talal 22 Austin, John L. 120 Austrian School of Economics 161 Autonomous, see Autonomy Autonomy xvi, xxv, xxxii, 2–7, 9– 11, 13–14, 16, 25, 54, 61, 64, 74–75 Autonomy and individuality as comprehensive values 75, 77, 80, 84–85, 86n Autonomy of minorities 141– 142 Autonomy of states 174, 208 Critical autonomy and reasoning xxv, 90–92, 97, 99, 101– 103, 105–106 Co-originality of public and personal autonomy 4, 7, 11, 157–158

Individual/personal autonomy xxvi, 2–7, 9, 11, 25, 54, 130–131, 144, 197 Moral autonomy 13, 74, 75n Political autonomy xviii–xix, 4– 7, 13–14, 16, 75n Political versus moral autonomy 75n Professional autonomy 60 Baker, Edwin 3, 6 Beauchamp, Tom L. 53–54 Beck, Ulrich 176–181 Beckman, Ludvig 217 Beitz, Charles R. 205n Bellamy, Richard 175–178, 181– 182 Benhabib, Seyla xxix, 10, 21, 29, 41, 140, 198–199, 206–219 Benjamin, Walter 246, 248 Bentham, Jeremy 55, 61 Berger, Fred 56 Berlin, Isaiah 64, 84, 132, 266 Bertelsen, Bjørn E. 97 Besucher and Gast 211 Besuchsrecht and Gastrecht 211– 213 Bildung 79n Bluitgen, Kåre 21 Bohman, James 9, 12, 14, 152 Borders xxviii–xxix, 191–194, 200, 204–208, 213–219, 284 Bosniak, Linda 194–196, 202 Brettschneider, Corey 3 Brix, Knud 20 Brock, Gillian 216 Brown, Wendy 21 Bull, Hedley 270, 275

298 Burdens of judgement xxiv, 73–74, 78–80, 82–85, 87 Burg, Wibren van der 15–16 Callan, Eamonn 71, 81–85 Callon, Michael 37–38, 40, 42, 46– 47 Cameron, David 172 Camre, Mogens 20 Capabilities approach/theory xxxii, 12, 284, 286–288, 293–294 Capotorti Report 237n Carens, Joseph 191–194, 201 Castberg, Frede 274, 278 Caste War in Yucatán 245–246, 250 Castiglione, Dario 175–178, 181 Cavallo, Domingo 165 Chiapas xxx, 142, 242, 245–250, 252, 254, 257, 259–260 Chicago School of Economics 161, 255 Christensen, Kit 271 Citizen/citizenship xvii, xix, xxii– xxx, 2–4, 6–10, 13, 16, 24–25, 28–29, 31, 70–73, 75n, 76–79, 82, 84, 86–87, 90–91, 94, 97, 102–106, 131–137, 139–141, 143–144, 150–152, 154–155, 157–159, 166, 168–169, 174– 185, 190–192, 194–202, 207– 209, 214, 216–219, 237, 245– 246 Citizen-jury 36, 39 Lay citizen (versus experts/scientists) 35, 37– 39, 43–47 World citizen 204, 218, 272 Civic culture studies 91, 94, 105 Civil right (jus civitatis) and Cosmopolitan right (jus cosmopoliticum) 207–208, 210 Coercion principle 196–197 Cohen, Joshua 47 Cohesion 110–111, 117–118, 120– 126

Index Coleridge, Samuel T. 110, 121, 123–125 Collective learning 37, 39n, 42, 45– 49 Collins, Harry M. 36–37, 39, 42–46 Comprehensive doctrines 48, 70–71, 72n, 74n, 75–79, 81–84, 87 Reasonable comprehensive doctrines 70–71, 74n, 75– 77, 81n, 82–84 Common/collective goods xxiixxiii, xxvi–xxvii, xxxn, 150– 154, 156–161, 163, 166–169 Public goods (contingent versus inherent) 152–153, 155– 156, 161, 167 (see also Public property) Communicative democracy 35, 37, 39, 46–47 Communicative reason 167-168 Community/communities xxxii, 5, 7–8, 12–13, 25–27, 45, 97, 115, 118–119, 125, 135, 141–142, 153, 190–192, 194–195, 201, 204, 218, 235, 237, 243–249, 252–259, 285, 287 Community versus society xxxii, 71, 77, 79, 82–83, 85, 87 Political community xix, xxvii, 7, 16, 116, 120, 136–137, 150, 173, 179, 190, 194– 196, 199–202, 213 (see also International community/ community of states/nations) Comte, Auguste 110, 121, 123–125 Congress of Vienna (1814/1815) 277 Conquistadors 245–246 Cosmopolitan / Cosmopolitanism xxix, 178, 180, 205–207, 214– 215, 217–218, 269 Costa, M. Victoria 70–71, 78, 80n, 81n Council of Europe 233

Varieties of Liberalism: Contemporary Challenges Crittenden, Jack 72 Cultural analysis 92-93, 102,105, 289 Cultural identity xxx, 29–30, 110, 115–116, 119, 125, 246, 255 Cultural values/standards 30, 245– 246, 291 Customary morality 56–57, 62 Cynics xxix, 204 Dahl, Robert 139, 197 Dahlgren, Peter 93 Danish Board of Technology 38 Danish cartoons xix–xx, 19–28, 30– 31 De la Madrid, Miguel 255 De las Casas, Bartolomé 245 De Vos, Jan 247, 253 Deliberation xvii–xix, xxi–xxii, 4, 6–7, 9–11, 13–14, 16, 29, 35n, 37–38, 40–42, 45, 47, 52–53, 55, 57, 59–61, 63–64, 73, 75, 82–83, 85–86, 106, 160, 166, 168–169, 173, 176, 180–183, 185, 193 Deliberative constitutionalism 165– 166 Deliberative democracy xv, xviii– xix, xxi, xxix, 4n, 9, 14, 29, 35– 36, 39 41–43, 86n, 157, 179 Deliberative turn 35, 37 Democratic deficit (UE) xxvii, 175 Democratisation 139, 173, 176, 179–180, 182, 185 Demoi-cracy 182 Deontologism 53 Development process, see Economic development process Dewey, John 71, 72n Diamond, Cora 71n Diogenes of Sinope 204 Discourse Principle (D) 157 Doctrine of Ends, see Teleology Dos Santos Silva, Fábio 250 Durant, Darrin 36, 41–43, 48

299

East Germany/German Democratic Republic xxiii, xxv, 90, 92, 94– 98, 102–103, 105 Echeverría, Luis 252–253 Economic Commission for Latin America and the Caribbean (ECLAC/CEPAL) 283 Economic development process xxxi–xxxii, 283–294 Economic and non-economic variables 282–283, 290– 291, 293 Economic crisis xxvii, 159–160, 163, 175, 183–184, 209 Education xxii, xxiv, 56, 70–81, 83– 87, 122–123, 142, 152, 157, 248, 267, 269, 283, 292–294 Civic education xxii, xxiv, 71n, 72 Democratic education 70–73, 75–81, 84–85, 87 Private education 72, 79–80, 87 Ejido/Ejido land 243, 248–249, 251–253, 255–258, 260–261 Equality xv, xvii, 27, 75, 122, 132, 134, 163, 194, 201, 215, 246, 277, 279 Formal equality xviii, 3–4, 6–7, 9, 11, 13–15 Political equality 3–4n, 12, 178 European Charter for Regional or Minority Languages 233, 235 European Commission 38, 42, 91, 174–176, 178, 180, 182 European Convention on Human Rights 233 European Council 174, 176–178, 180, 182 European demos 177, 179, 181 European integration 172–173, 175– 176, 178–179, 183–185 European legislation 174, 182 European Parliament 20, 174–183 European Union xxiii, xxvii, 40, 139, 172–185

300 European Union, treaty of (Maastricht/Lisbon) 174–176, 177, 180, 183 Eurozone 172–173, 174n, 183–184 Evans, Robert 35–37, 39, 42–46 Facts and values 39, 46, 48n Feinberg, Joel 76n Fischer, Joschka 98 Flores Ruiz, Gloria 257 Fonseca, Pedro Cezar Dutra 291 Forst, Rainer 4n, 157–159 Frankfurt School 94 Fraser, Nancy 24n, 25-30 Freeden, Michael xiii–xiv, xvin, 91, 93, 122n Freedom 59, 70, 75, 122–123, 131– 132, 184, 205, 211, 215, 285, 288–290, 293 Basic rights and freedoms xxiv, 168 Communicative freedom 12, 167–168 Effective social freedom xxvii, 152, 157 Free association as right 133 Free speech xvii–xix, 2–6, 8–9, 14–16, 21–24, 63, 102, 155, 229, 234–235 Freedom of conscience/freedom of thought/religious freedom xxiv, 5, 76–77, 193, 285 Freedom of movement 191, 194, 201, 205 Four freedoms (European single market) 174 Idea of freedom 164 Individual and collective freedom 130, 140, 283–285, 293 Negative freedom xviii, 3, 4n, 6–7, 11–13, 15 Political freedom 156

Index French revolutions (1789, 1830, 1848) xxvi, 104, 123, 131–138, 140, 144 Frevert, Louise 20 Friedrich, David 175–180 Furtado, Celso xvi, xxxi–xxxii, 283–286, 289–294 Gallie, Walter B. xvn García de León, Antonio 247–248, 251 Galston, William A. xxviiin, 70, 73, 81n, 85–86 Gelber, Katharine 11–12 General Cárdenas 249–251 Geneva Convention, Fourth (1949) 277 German philosophy 91, 94 Globalization xxvii, 95–97, 101, 151, 169, 184, 201, 209 Grande, Edgar 176–181 Green, Leslie 224 Gutmann, Amy 14, 41–42, 70–72, 81, 85–87 Habermas, Jürgen xv, xix, xxvii, 4, 7, 11–12, 14, 29, 97, 104, 154– 155, 157–158, 160, 165–168, 178n, 179 Hague Conventions (1899 and 1907) 277 Half-measures 61–64 Hanson, Jarrod S. 86n Hardt, Michael 152–153, 162–163, 167, 273 Hart, H.L.A. 230 Harvey, David 152, 161–162, 168 Hate speech 2, 7–8, 12, 16, 20 Hayman, Steven J. 3, 8 Hegel, George Wilhelm Friedrich 22–23, 94, 104, 163–164 Heinze, Eric 3 Hervik, Peter 20–21 Hijab 20, 26, 29

Varieties of Liberalism: Contemporary Challenges Hitler, Adolf 20, 273 Hobsbawm, Eric J. 112, 114 Hohfeld, Wesley Newcomb xxx, 225–232, 239 Hohfeldian analysis of legal rights xxx, 224–231 Claims 226–231, 233–239 Immunities 226, 230–231, 234, 237, 239 Molecular/cluster rights xxx, 229–231, 233-236, 239; and liberty as cluster right 229– 230, 233, 235, 237 Powers 226, 230–231, 234, 237 Privileges 226, 228–231, 233– 237, 239 Homo economicus xxxii, 284, 286 Honneth, Axel xix–xx, 19, 22–32 Horkheimer, Max 14 Howe, Kenneth R. 86n Human Development Index (HDI) 287, 293–294 Humanism 91 Humanities 79n Ideal-type xxvi, 130–132, 135, 138– 141, 144, 290 Imaginaries xxv, 92, 94, 98, 102, 104–106 Indigenous peoples/communities xxviii, xxx-xxxi, 142, 152, 242– 251, 253–261 Indigenous rights 142, 151, 242, 259 Integration 141, 160, 290 International community/community of states/nations xxviii, 270–272, 277–278 International Covenant on Civil and Political Rights (ICCPR) 234– 236 International Covenant on Economic, Social and Cultural Rights (ICESCR) 234, 237

301

International Labour Organization (ILO) 242, 255, 258–259 International Monetary Fund (IMF) 166, 275 International law 265–266, 269–281 Islam/muslims xixn, xx, 19–24, 26– 28, 30–32, 279 Ittersum, Linde van 208, 215 James, William 46 Jasanoff, Sheila 37, 39, 42, 47 Joseph, Gilbert 246, 248 Judicial reasoning 225, 231 Juridification 165 Jus sanguinis/ jus soli xxix, 190, 199–200 Justice xii, xxix, xxxi, 2–4, 6–7, 9, 11, 15–16, 24, 64, 74n, 77, 80n, 91, 142, 150, 158, 169, 174, 184, 191–193, 196, 199, 201– 202, 215–216, 242, 251, 264– 265, 267–268, 270–271, 274, 278 Global justice 53, 192–193, 201, 215–216, 278 Linguistic justice 224 Jyllands-Posten xix-xx, 19, 21–24, 26–28, 31 Kant, Immanuel xv, xxix, 75, 78, 90, 206–212, 214–215, 217– 218, 267–269, 272, 276, 279, 285 Kapferer, Bruce 92–94, 97 Kibbee, Roland 232 Kimminich, Otto 276 Kleingeld, Pauline 204n, 206, 208– 209, Krarup, Søren 20 Kröger, Sandra 175–180 Kultur 103 Kymlicka, Will xv, xxv, 26–27, 42, 90–91, 97, 112, 115–116, 119, 223–224, 225n

302 Laborde, Cécile 29 Laissez faire economics xvi, xxxii, 156, 283 Laissez faire and languages 237 Language rights/linguistic rights xxviii, xxx, 223–225, 231–236, 238–239 Tolerance-oriented and promotion-oriented language rights or linguistic regimes 224, 238–239 Language shift/language death 224 Latour, Bruno 39–40, 46 L’Echo de la Fabrique, journal industriel et littéraire de Lyon 134 Liberal, see Liberalism Liberalism xii–xviii, xxi–xxxi Classic liberal approach to minorities 237 Classic liberalism 2 Comprehensive versus political xxiii–xxiv, 71, 75, 78–79, 81 Conservative liberalism xxiii, xxvi, 131, 133–140, 143 Economic liberalism (see also laissez faire economics and neoliberalism) xvi, xxx– xxxi, 163, 242, 255, 284 Historicist versus anti-historicist types of liberalism 266 History of French liberalism 131–139, 144 Liberal approach to applied ethics 52–54, 57, 61, 63–64 Liberal multiculturalism 42, 224, 237 Liberal nationalism xxiii, xxv, 110, 112, 114n, 115-116, 119, 125, 207, 218 Liberalism and egalitarianism 42, 191–194, 201 Liberalism as configurations of concepts 91, 93, 105–106

Index Liberalism as ideology xiv-xvi, xxvi-xxvii, 130–131, 266 Philosophical liberalism (also liberalism as philosophy) xiv–xvii, xviiin, xxi, xxiv, xxix, xxxi, 91, 150, 266 Political liberalism 70-76, 7882, 84-85, 87, 112, 115, 125, 152, 283–284, 293 Libertarianism/libertarian xvi, xxix, 205 Locke, John 150, 153, 169 Logic of practice 52-53, 61–64 Lord Acton 114 Lövbrand, Eva 35-38, 41–42, 48 Luxembourg Commission 137, 140 Macedo, Stephen 70-71, 81n, 84 Mälksoo, Lauri 232 Mannheim, Karl 289 Mansbridge, Jane 139, 142 Marketplace of ideas 4-5, 9, 14–15 Marres, Noortje 39–40, 46 Marx, Karl 104, 137, 152, 156, 160– 161, 164, 246, 267–269, 285 Marxism xiii, xvi, 152–153, 266 Mattei, Ugo 150-151, 153–154, 162, 164, 166 Mecklenburg-West Pomerania 9596, 101 Membership Multiple memberships 206n, 218, 219n Political membership 194, 199– 200, 206–207, 210, 213, 216–217 Right to membership 206–208, 210, 212–213, 215, 218–219 State membership 207–208, 218–219 Menon, Anand 177 Mexican Revolution 242–243, 246– 249, 260 Michailidou, Asimina 179

Varieties of Liberalism: Contemporary Challenges Mill, John Stuart xiv–xv, xvii–xviii, xixn, xxi–xxiii, xxv–xxvi, xxviii, 39n, 52–64, 75, 78–80, 85, 110–126, 285 Minority/minorities xxviii, 9, 19, 21, 24, 26–28, 119, 141, 144, 152, 199, 224, 235–238, 246, 270, 273n, 285, 293 Minority language 224, 233, 235–238 Modood, Tariq 21 Moral learning xxxi, 71, 265-269, 276, 279 Moral/ethical responsibility xxx– xxxi, 64, 195, 242–245, 259– 260 Principle of assistance 243–244, 259 Principle of benefiting from injustice 243–247, 249, 260 Principle of contribution 243– 246, 249, 254, 256, 259–260 Responsibility of states 207, 216 Responsibility to protect 272 Mouffe, Chantal 47, 130, 180 Motyl, Alexander 112 Muhammad 19, 21–23, 27 Multiculturalism (see also liberal multiculturalism) 29, 224, 237 Myrdal, Gunnar 289 Nader, Laura 154, 164 Nationaldemokratische Partei Deutchlands (NPD) 96–97, 99– 101 Nationality xxv–xxvi, 110–126, 191–194, 199, 201, 250 Nationalism xv, xxiii, xxv, 110–116, 119, 125 Liberal/civic nationalism xxiii, xxv, 110, 112, 114n, 115– 116, 119, 125, 196, 207, 218 Normative nationalism 190 Nation-state xxii–xxiii, xxvii–xxix, 131, 159–160, 179, 190–191,

303

194, 196–199, 201–202, 207, 209, 214, 218–219 North Atlantic Treaty Organization (NATO) 272, 280 Nazism 91–92, 94, 104–105 Negri, Antonio 152–153, 162–163, 167, 273 Neoliberalism xxvii, 161, 162, 164 Neoliberal government and politics 151, 153–154, 162, 164–165, 169, 255, 257 Neophyte Writer’s Society 53 Nicolaïdis, Kalypso 181–182 Norman, Wayne 90–91, 97 Nozick, Robert xxix, 191–192 Nussbaum, Martha 12, 204n, 206n Oikos 156 Order and progress 111, 122–125 Original position/veil of ignorance 192–193, 267 Palestinians 271, 273 Palonen, Kari 120, 121n, 180, 182 Partido Revolucionario Institucional (PRI) 243, 250– 252, 255, 257 Paternalism/paternalistic 14, 250, 279 Patten, Alan 223, 225n Peña, Javier 196 Peters, Bernard 26 Philosophy of technoscience 40 Plato 55, 80 Plows, Alexandra 35–37, 39, 43–46 Pielke, Roger Jr. 36, 41–42, 48 Pluralism Pluralism and sociotechnical controversies 37–39, 41–43, 45–47, 49 Radical pluralism xxvi, 131– 133, 135, 137–144 Reasonable pluralism xxiv, 70– 75, 80–81, 87

304 The burden of pluralism 10 Value pluralism 60 Poiesis and praxis 55 Pogge, Thomas 205n, 206n, 214 Polanyi, Karl 165 Polis 156 Political language xiv, 110 Human rights language/rhetoric 224, 273, 279 Language of citizenship 194, 201 Language of rights/rights talk 223, 225–226, 231 Political discourse xiv, 20, 93, 9899, 102–103, 106 Political philosophy xiv, xvi, xxi– xxvi, xxviii, xxxi, 25, 36-38, 40–41, 43, 46, 48, 71, 74n, 80, 82, 94, 104–105, 116, 151, 264 Classical and modern political philosophy 159 Political philosophy and realistic utopia xxxi, 264–265, 267, 269 Political philosophy and social sciences/theory xxv, 91, 93, 104–105 Political philosophy of goals (see also teleology) 52, 59 Political realism and international order 266, 270, 271, 280–281 Positivism 55, 59, 124–125 Post, Robert xviii–xix, 3–16 Poverty 96, 101, 136–137, 244, 252, 255, 258–260, 268, 283, 287, 289–290, 292–294 Absolute and relative poverty 284, 287–288 Pragmatism (philosophical) 39, 46 Proudhon, Pierre-Joseph 141 Public discourse (see also political discourse) xix, xxiv, 4–9, 11– 14, 32, 90, 97, 281 Public knowledge deficit model 37– 38, 49

Index Public property/ownership 151, 153, 159, 161, 169 Public sphere xvii-xix, xxii, xxvii, 2–12, 14–16, 19, 21, 28–31, 47, 78, 82, 93–94, 98, 104, 106, 136, 152, 154–156, 160, 168, 266, 275–276 Putnam, Anna 72n Putnam, Hillary 72n Quran 20–21 Rancière, Jacques 134 Rawls, John xv, xxiii–xxiv, xxvii, xxix, xxxi, 7, 12, 39, 41–43, 48, 64, 70–80, 81n, 82–87, 152, 157–158, 191–193, 264–269, 279 Raz, Joseph xiii, 152, 155 Reasonable disagreement xxiv, 72– 75, 80–81, 87 Reasonable pluralism xxiv, 70, 72– 75, 80–81, 83, 87 Réaume, Denise 224 Recognition xx, 8, 12, 15, 19, 22– 26, 29–30, 139, 141–142, 180, 191, 195, 215, 217, 249 Reflective equilibrium 267 Reyes Ramos, María Eugenia 249– 250, 252, 254 Reynaud, Jean 134 Rights (see also Freedom, Hohfeldian analysis of legal rights, Language rights, Membership, Indigenous rights) xxviii–xix, 2–4, 6–7, 11, 13–14, 25–26, 64, 196, 202, 265 Basic/fundamental rights xix, xxiv, 3, 76, 151, 155, 157– 158, 168–169, 179, 194, 201 Citizenship/citizen and rights 104, 136, 154–155, 160, 180, 190–192, 194, 196– 201, 218

Varieties of Liberalism: Contemporary Challenges Civil and political rights xxix – xxx, 28, 134, 151, 154–158, 165, 169, 196–198, 207, 286, 293 Concept/notion of rights xxxii, 225–228 Conflicts and balancing of rights 2–3, 6, 9, 15 Cultural rights xxviii, 112, 125, 152, 234–235, 255, 260 Human rights xix, xxx–xxxi, 20, 91, 184, 207, 210, 212–213, 215, 224–225, 231–236, 243, 255, 265, 270–273, 278–279 Liberal rights 95, 100 Natural rights (also pre-political rights) xviii, 150, 153, 210 Property rights xviii, 6, 14, 150, 153, 161, 169, 192, 205, 229–231, 243n, 248, 250, 252, 257, 259, 286, 292 Right of assembly 63 Right to have rights 216 Right to hospitality 206–215, 218–219 Right to justification 13–14, 157n, 169 Right to land/land rights 151, 161, 243n, 248, 255, 257– 258, 286, 292 Right to social esteem 29–31 System of rights (Habermas) 157–158, 166 Territorial rights xxix, 207, 210, 213, 215, 218–219 Theories of rights, choice/will versus interest/benefit 224 Romero, Sabino 250 Rosales, José María xiv, 204n, 223n Rosanvallon, Pierre 132–134, 140, 143 Rose, Flemming xx, 21–22, 31 Rostow, Walt Whitman 289 Rousseau, Jean-Jacques 135, 267 Rubio-Marin, Ruth 232, 238 Ruiz, Samuel 252

305

Rummens, Stefan 11 Russian and Chinese revolutions 276 Representation xv, xxii–xxiii, xxvi– xxviii, 131–144, 176–177, 179– 180, 182, 185, 198, 202, 216 Group representation 139–141 Plural representation 135–138, 141–142, 144 Sachlichkeit xxv, 98–103, 106 Salinas de Gortari, Carlos 242, 243n, 255, 257, 259 San Cristóbal de las Casas 246 Scanlon, Thomas M. 6 Schiller, Friedrich 104 Schluchter, Wolfgang 94–95n, 102, 105 Schmitter, Philippe 178–179, 182 Schröder, Gerhard 95, 97–98 Schwerin 95–96, 99–100, 103, 105 Science and technology studies (STS) xxi, 35–37, 40–43, 46–48 Seglow, Jonathan 216 Self-government (also selfgovernance) xxvii, 3, 5–6, 8–9, 11, 142, 166, 198 Sen, Amartya xxxi–xxxii, 283–289, 291–294 Shachar, Ayelet 199–201 Skinner, Quentin 110, 117, 120– 121, 124, 126 Smart, Peter 110, 113, 117 Smith, Adam 55, 285, 288 Social sciences/social theory xxv, 54–55, 58, 91–92, 104–105 Solidarity xx, 19, 22, 29–31, 97, 278 Song, Sarah 196–198, 202 Soysal, Yasemin 198 Space of reasons 23 Stirling, Andy 37–38, 45 Stoics xxix, 205 Streeck, Wolfgang 159–160 Structuralism/structural perspective 284, 290–291, 294

306 Süddeutsche Zeitung 155 Sunstein, Cass 3, 15 Supranational democracy xxvii, 173, 176, 182, 185 Supranational institutions/level 166, 173–179, 181–182, 185, 202 Tamir, Yael xxv, 112, 115 Taylor, Charles xxv, 7, 26, 29, 92, 94, 104, 106 Taksim Square 163 Teleology 56, 59–60, 94, 106 Thomson, Dennis 41–42 Thomson, Judith 227, 229 Tolerance/toleration 8, 77, 80, 84, 152, 214 Toscano, Manuel 74n, 76n Treaty of Versailles 1919 Trenz, Hans-Jörg 179 Tzeltal Rebellion (1712) 245 UN Declaration on the Rights of Indigenous Peoples 258–259 UN Declaration on the Rights of Persons Belonging to Minorities 236 UN General Assembly 236, 258, 270–273, 275, 277 UN Security Council 270–271, 275, 280–281 UN Charter 269–270, 272–275, 277, 280 Underdevelopment xxxii, 283, 287, 289–292, 294 Universal Declaration of Human Rights (UDHR) 210, 213, 234, 271, 273 U.S. Supreme Court 5, 78, 140 Utilitarianism xxix, 53–56, 59, 61, 191, 193, 224, 285, 288 Utility Principle 56–57, 60–64, 193 Varouxakis, Georgios 110,113–114, 117, 119n

Index Villafuerte Solis, Daniel 248, 250– 251, 253–254, 256 Virgina versus Black 12 Virtue Civic virtue xxii-xxv, 90–94, 97, 102–106 Democratic virtue xx, 22; and virtue and democratic ethos 157 Equal respect as procedural virtue 27–28 Political virtues 74n, 76–78, 80, 87, 94 The vocabulary of virtue 273 Virtue ethics 53 Virtues and democratic education 72, 76–78, 80, 86–87 Volokh, Eugene 5 Waldron, Jeremy xiii, 2-3, 23n, 27n, 215 Weartherill, Stephen 177 Weber, Max xxvi, xxxii, 54, 94, 95n, 99, 104, 289–291 Weiler, Joseph H.H. 175, 177 Weinstein, James 3, 13 Wellman, Carl 230 Westergaard, Kurt 21 Westphalia settlement (1648) 277 Wilde, Pieter de 179 Wittgenstein, Ludwig xiii, 71n, 120 Womack, John Jr. 245–248, 252– 253 World government 205, 208 Wynne, Brian 37–40, 42, 45, 47 Young, Iris, M. 35n, 36, 39, 42, 46, 48, 139 Zapatistas/EZLN xxx, 142, 242– 243, 254, 256–257, 259, 261