No question, Cristina
Lafont has written a path-breaking book, and I agree with almost everything she
says. However, I have two points that I would like to address. My first point
is a clarification of the exact role that randomized minipublics (deliberative
panels) can play within the process of popular will-formation. The second point
concerns the societal conditions that might trigger deliberative learning
processes, such as national and international higher courts.
(1) I think that there is
an internal relation between revolution, legislation and the truth
(or correctness) of the volonté générale in democratic societies.
“Figuring out the truth” is the basic epistemic idea of “deliberation” (Lafont,
164), and it should not be understood representationally but normatively (and
“transparently epistemic”). Rousseau was right if we understand his theory of
the volonté générale (general will) as not representational but first,
as a method of constructing the general will (hence procedural), and
second, as a theory of universal (or cosmopolitan) will-formation.
The latter is just an
implication of Rousseau’s basic idea of autonomy (self-legislation),
i.e. the all-affected principle. For instance, every illegal migrant who
crosses the borders of a country must have some participatory rights, e. g. the
right to participate in the concretization of legal norms by launching
proceedings in a court.[1]
Even a national law that allows the contamination of national, and, as a
side-effect, international waters, generates a right of affected foreign agencies
to participate at a certain point in the procedure of democratic legislation
(hence, the formation of the general will).
The legislative power
depends on the conjecture that the procedural participation of everybody
affected by a legal norm guarantees that the norm is legitimated by the voice
and vote of all of us; hence it is true (correct), or at least
transparently epistemic. Such a Rousseauian, Kantian and Habermasian theory of
legitimization implies that the pouvoir constituant is permanent. This
is so because not only explicit changes or interpretations of constitutional
law, but also every ordinary legal act of public will-formation and
enforcement, changes the constitution – howsoever imperceptible and
evolutionary. As Kelsen has argued, we are living and acting politically and
legally always already in a continuum of constituted and constituent power (see
Brunkhorst 2011).
The continuum of
constituent and constituted power does not blur all differences, in particular
not the difference between the constituent and constituted use of power, in the
same way as the continuum of practically being in the world does not blur the
differences between thinking and talking, or between the use of language and
the use of force.
The continuous public
procedure of democratic legislation begins with political small talk and
disputes at the kitchen table, goes through national and international
legislative bodies, and ends with always already interactive law-enforcement in
the streets. Because of its internal connection with the pouvoir constituant,
the legislature is a latently revolutionary power. We know of it through
its manifestations. According to the young Marx, “the legislature has made the
French revolution,” and “all great, organic, universal revolutions” (Marx 1843,
260). However, once institutionalized, legislatures do not make every day a
great revolution. There is a crucial difference between revolution and evolution
within the legislative continuum. However, there is no dualism between
the two. Therefore, no democratic legislature exists any longer once the
“heartbeat of the revolution” is silenced within everyday legislative
will-formation, and only technocracy is left (Habermas 1989).
Dewey was right, and
Lafont quotes it as a mantra of her own theory, that “majority rule, just as
majority rule is as foolish as its critics charge it with being” (Lafont 2020,
34). However, in a functionally and normatively working democratic regime it is
based on inclusive and egalitarian deliberative procedures. These procedures
are (and should be) “anarchic”, hence in a way revolutionary procedures
of problem-solving learning processes. But they are interrupted ever
again by electoral, direct-democratic, parliamentary, legislative, contractual
and administrative procedures of decision-making. They firstly transform
the present and contingent deliberative state of will-formation into changeable
binding decisions (positive law). At the same time, secondly, they satisfy
the ravenous hunger of functionally differentiated capitalism for an ever
higher legislative scaffold.
My point is that the
difference between voice and vote (problem-solving and
decision-making) is a clear criterion for deciding when randomized deliberative
panels are good for democracy, and when not. They are as bad for
democratic decision-making as every other randomized procedure that might be
useful in non-democratic and functionally specified contexts, simply because,
(and here I agree completely with Lafont), we, the people have to decide.
However, these panels are good for democracy as a means to
“re-politicize” a “dried-up public sphere,” and to break the power of the
manipulation machinery of media conglomerates and “cartel-parties” (Katz &
Mair 1995), which put themselves in the service of the capitalist state. They
are good because and as far as they are strictly egalitarian, and as far
as they include not only citizens but also all available voices from
wherever. Public debate must be anarchic and borderless, as rightly
emphasized already in Alexander Meiklejohn’s criticism of McCarthy (Meiklejohn
1979, 94).[2]
Borders matter for vote, not for voice. To come to the right decision, all
arguments are equally important, and all arguments available wherever and by
whomever articulated, should be taken into account equally. The foreigner’s
voice matters as much as every other voice for those who have the right to
election and vote. At least in this respect the freedom of us (every “us”) is
always already universal: ”The freedom in question is ours.“ (Meiklejohn 1979,
53). The realm of voice is the realm of discourse, and the “discourse is not an
institution but the counter-institution per se.” (Habermas 1971, 201).
A brilliant example for
randomized deliberative panels is Claus Offe’s suggestion for a revised Brexit
procedure of referendum (Offe 2017). Carefully institutionalized, equipped with
people like us, these panels can operate as one of – hopefully many – voices of
the people, which are not yet colonized by money and administrative power. In
this case the paradox of institutionalizing discursive anarchy can be solved
if, from wherever, not only citizens are allowed as panellists, but also expert
voices.
(2) This brings me to the
second point. The question is why are there so many interesting and feasible
suggestions and successful laboratory experiments with models of deliberative
democracy all over the world – yet none has been tried in serious praxis? The
answer is simple: because that would require a deep, maybe even revolutionary,
change of the political and economic power structure of late-capitalist
societies. Deliberative democracy fails because of the “existing
contradictions” of the capitalist state, especially the contradiction of
capitalism and democracy (Offe 1972). It is hard to imagine the implementation
of deliberative panels at prime-time for four hours on all major TV-stations
and social media for five or six times during an electoral or referendum
campaign period without changing, restricting and regulating the property- and
power-relations of all major media of dissemination.
Models as suggested by
Offe and many others are not, however, useless, and not only because they show
us that small institutional innovations can lead to great change. The
repression and denial of deliberative democracy by the political-media class
negatively indicates that the established political party system, the
established Rechtsstaat, the capitalist state, and the capitalist media
industry, are destroying the substance of democracy that is concentrated in the
latently revolutionary character of the legislative power.
A conceptual remark on
legislative power. The legislative power is the gradually differentiated
continuum of constituent and constituted power. All constituted
legislative acts on all levels (referenda, elections, parliamentary decisions,
administrative orders, judgments, enforcement orders, and the everyday
behaviour of all legal entities), are contributing to gradual change of
constituent power. On all levels of the legal hierarchy – especially on
that of elections and referenda – deliberative panels can contribute to it.
This is shown by, for example, the “Me too” campaign on the level of court
decisions and the “Black Lives Matter” and “No Justice, No Peace” movements on
the level of the anarchic public sphere. The difference between public
discourses (including now and again riots, occupations of buildings and
places, etc.) and deliberative panels is that the latter is more like an
academic debate covered by formal rules, an agenda of topics, normative
exclusion of all kinds of violence and informal pressure, time-limits,
egalitarian and representative selection and participation etc., whereas public
discourses are much more anarchic, diffuse, inclusive, permeable, holistic and
comprehensive. In a working democratic regime, the entire process of
constituent and constituted legislative practices (the public sphere)
terminates in legislative decisions which sometimes are explicitly constituent
and sometimes even formally revolutionary (creating a new constitution).
Moreover, in the long course of legislation (from bars and street activities,
to parliamentary debates, filibuster, and mutton jump) rights and procedural
rules of democratic decision-making are formally intertwined and
overlapping. Courts, including the Supreme Court, are only one of the
many formal and informal players in the democratic process of legislation. The
dense intertwinement of rights and democratic self-organization in
constitutional law is not designed normatively to save and maintain the
existing structure of society, law, and rights, but to save the utopian and (at
least conceptually) revolutionary possibility to realize – to say it in
Kantian terms – progress for the better (Wihl 2019, 15,33, 211ff). This
is why Kant was so much in favour of, and enthusiastic about, the French
Revolution even though it was “filled with misery and atrocities” (Kant 1979,
159). Kant calls the revolution a historical sign because it incarnated the
progressive, permanently revolutionary, reflexive freedom of the real subjects
in constitutional law. Therefore he (as Sieyès earlier, and Marx later) interpreted
the legislative power as the revolutionary power of the people.
Lafont, as I understand
her, follows this track. Therefore, she is right to reject most of the existing
models of deliberative democracy (minipublics etc.) as bad abstractions, and to
reconstruct what already exists within the gloomy reality of the existing
public sphere. At this point, the dialectical interaction between supreme
courts and social movements delivers some good examples.
However, it should not be reduced to that relation. Also, the US Supreme
Court is not the legislative power that (under pressure of heavy
class-struggles and strong protest movements and riots on the streets) has made
the great reforms of the New Deal of the 1930s and 40s and the great reforms of
the civil rights movements of the 1960s and 70s. It was the American Congress
that translated the will of the people and the street fights into a new social
and civil law. The Supreme Court (and many other federal and state courts) had
an important but small part during this comprehensive process of
legislation that by far is not comparable with that of the Congress. During the
New Deal era the most important decisions of the court came about only through
legal blackmailing by the Congress, and the by far greatest successes of the
civil rights movement were not such (important) landslide decisions of the
Court as Brown v. Board of Education and Times v. Sullivan, but
the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Bruce Ackerman has called the New Deal and the civil rights movement
revolutionary, and rightly so because of the role of the movements and the
Congress.[3]
To save the utopian and revolutionary possibility to realize progress
for the better, democracy must combine (1) social movements and campaigns
in a discursive and antagonistic public sphere, with (2) parliamentary
legislation and (3) governmental/administrative and judicial etc.
concretization. Therefore, the Lafont-style deliberative democracy should be
implemented on the three levels of (1) will-formation, (2) law-making
and (3) norm-creation by the concretization of law.
I guess it is mistaken not
to take into account the structural causes of the failure of deliberative
democracy in late-capitalist societies, to reduce the analysis to a
normative problem and to leave the empirical problems to positivistic social
science and social technology. Critical theory always had good reasons to
reject this separation of intellectual labour, because the normative
(constitutional) justification of deliberative democracy is internally related
to the primacy of the legislative power of peoples and parliaments that binds
all other powers, and only then to the legally bound (and secondary
legislative) power of courts, governments and police stations to create legal
norms by concretizing the law this way, (e.g. right), or that way, (e.g.
left). Only democratically (hence deliberatively) engendered law can
transform modern capitalism into capitalism with ever more socialist
characteristics from within the capitalist state, which by penalty of
its doom must make the world a safe place for investors (as long as we have
capitalism - and we have it still).[4]
However, if democracy is reduced to the formula: “NGO’s + judges = democracy”
instead of “people + parliaments = democracy” then even the best version of
deliberative democracy is only an improvement of a post-democratic and
technocratic government of elites. Therefore, Lafont’s brilliantly developed
model of deliberative democracy can save democracy from post-democratic
technocracy only as far as it is organized within the comprehensive democratic
model of “people + parliaments = democracy”. Here Offe’s suggestion to make
even anti-democratic referenda like the Brexit one democratic by deliberative
panels is convincing, and combined with Lafont-style deliberative panels it
could be implemented on all levels of legislation and concretization, but not
primarily on the level of courts. As the New Deal and the Rights Revolution
proved, the Court is not the primary addressee of radical social movements in
the US but the legislative power of the Congress and President which can make
laws to enforce socialist ideals – if the public is deliberative enough to form
a general will that is not just a will of the “compact majority” (Adorno), like
Richard Nixon’s silent – hence pre-deliberative – majority which was unfit to
establish a general will because of its lack of deliberation and thus
legitimation.
The very problem of the
present evolution of the legal system comes to the fore once we switch to
international courts as Lafont does on the last pages of her book. The
heartbeat of the revolution, the legislative power in transnationally
integrated systems like the EU, has already been overcome by the “retrograde”
or “reactionary” power (Marx) of the united executive bodies of Europe, but
only after the executive power became hegemonic within the democratic, but at
the same time counter-democratic, capitalist nation-states. The now united
executive bodies are the driving force of the transnationalizing and
globalizing capitalist nation-states. It is easier and less dangerous for the
increasingly technical rule of the executive branch to do that together with
the establishment of transnational courts than with a democratic legislature.
In the case of the EU the
judiciary is bound only to the constitutional law of the Treaty of Lisbon with
its primacy of competition law over democratic solidarity. The result is that
the subsumption of the judiciary under the law, and not only under the constitution,
is abolished and ordinary legislation increasingly replaced by the constitutionalization
of legal norms.
The heartbeat of the
revolution is silenced. Therefore, it doesn’t make much sense to implement
constitutional legislation as a trigger for deliberative learning before the
constitutional and societal structure changes. This does not rule out
deliberative learning, but leads to the suggestion of a further distinction
between revolutionary (system-changing) and evolutionary
(system-immanent) deliberative learning. Only a deliberative institutional
revolution of the EU – i.e. a new foundation – can enable evolutionary
deliberative learning within a full-fledged European democracy. Deliberative
movements, deliberative NGO’s, and deliberative courts cannot achieve this
alone.
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Biography
Hauke Brunkhorst
Senior Professor of Sociology at
European University Flensburg. Books: Critical Theory of Legal Revolutions –
Evolutionary Perspectives, New York/ London: Bloomsbury 2014; Solidarity
– From Civic Friendship to Global Legal Community, Cambridge MA: MIT Press 2005)