Constitutionally speaking, "democracy"
in our times signifies something beyond the rule of the many or the crowd
as opposed to the few, the best, or "the one." Constitutional democracy
marches arm-in-arm with freedom (by which I don't mean to exclude its conceptual
and polemical alliance with equality and community). The term names a standard
by which a country is not free, its inhabitants not free men and women, unless
political arrangements are such as to place the people under their own joint
rule. "Self-government," it's often called.
| No doubt the prevailing democratic ideal does
accept a large amount of rule pro tanto by legislative, administrative,
and judicial officers, operating within schemes of representative government.
What the ideal tests, in the end, are the constitutive or fundamental
laws of a country; the laws, that is, that fix the country's "constitutional
essentials"-charter its political institutions and offices, define
and limit their respective powers and jurisdictions, establish basic obligations
of government and rights of the governed. "Constitutional democracy,"
in sum, connotes (1) an appraisal of fundamental laws, with (2) a view
to joint popular political self-rule, as (3) a condition of political
and personal freedom.
Dworkin no less than Habermas [desires] to
find a place in liberal constitutional theory
for the positive aspect of political
freedom-the dimension of freedom that consists
in authoring the laws you live by.
No credible view denies that procedures of governance-for example,
rules and schemes for the election of representatives-are central to the question
of constitutional democracy. There is nevertheless a way of treating the question
as one of substance as opposed to procedure, and that is by making the test
of a regime's democratic credentials a matter of the prescriptive content
of its fundamental laws but not the authorship of those laws themselves-a
matter of what the laws require, rather than who wrote them. Indeed among
pro-democratic theorists who would comparably rate the more-or-less democratic
characters of various countries' political constitutions, there is sharp disagreement
over the following seemingly crucial question: Is it fundamental law, or is
it rather fundamental lawmaking, with whose democratic character we finally
have reason to be concerned?
In the substantive view of constitutional democracy, the question
of a given regime's democratic character depends only on what its fundamental
or constitutive laws prescribe and not at all on how they came to prescribe
it.1 We ask whether
those laws provide for more-or-less popularly accountable day-to-day government
based on a more-or-less equally distributed franchise; for nondiscriminatory
lawmaking and prohibition of caste distinctions; for protection against arbitrary
and oppressive uses of state powers; for strong rights of moral autonomy,
freedom of thought, freedoms of political expression and association; whatever.
If the answers match our profile for democracy, we judge the regime democratic,
no matter its authorship. On the procedural view, in contrast, the regime
is not democratic, no matter the democratic nicety of its fundamental-legal
prescriptive content, unless the country's people at all times retain appropriate
joint control over that content, too.
Controversy between these two views is currently live in liberal
constitutional theory. Jürgen Habermas takes the procedural side in Faktizität
und Geltung (1992), recently published in English as Between Facts and Norms:
Contributions to a Discourse Theory of Law and Democracy. Ronald Dworkin takes
the substantive side in Freedom's Law: The Moral Reading of the American Constitution.
What are the stakes over which these champions contend?
To get a sense of what they might be, consider some disputes
that currently rage over what the prescriptive content of a set of fundamental
laws must be if the regime constituted by those laws is to be approved as
ideally democratic. Is the regime properly democratic only in the absence
(as some claim) or only in the presence (as others oppositely claim) of state-administered
corrections of market-based distributions of economic means? Only in the absence
(or, oppositely, only in the presence) of affirmative action, or of cumulative
voting or proportional representation? Only in the absence (or only in the
presence) of federalism, separation of powers, and other checks and balances?
In the absence (or in the presence) of gun control, or of regulation of political
spending, or of guarantees of procreational autonomy, or of barriers to religious
expression in public educational and other spaces?
All these variables and others are sharply contested in our
political culture, precisely as matters of what is required by the best distillation
of the abstract ideal of democracy from settled aspects of democratic practice.
But then the same contests may also and by the same token be disputes over
what judges ought to do when they face constitutional questions. They will
so appear to all who take democracy to be such a central aim of the Constitution
that questions of constitutional-legal interpretation must depend to some
degree on what democracy demands.
Take for example current controversy over whether a constitutional
mandate against abridgements of "the freedom of speech" is best-most
democratically-construed as sweepingly prohibiting all legal curbs on blatantly
racist expression in public. Some argue that such curbs are required in order
to secure political equality, others that they attack the very notion. According
to the substantive view of constitutional democracy, the regime ought to be
judged democratic just insofar as it resolves this question in whichever way
is really democratically correct; the standard is, in Dworkin's terms, "result-driven."
According to the procedural view, the regime is democratic just insofar as
the question is resolved by democratic procedures. One might think it would
matter crucially which view one takes in deciding, for example, how deferential
the Supreme Court ought to be towards a state legislature's decision to enact
a "hate speech" law.
It's a striking fact, though, that the choice of views does
not have precisely that kind of significance for either Habermas or Dworkin.
Habermas does not suppose that his proceduralism precludes a judicial-review
institution much like the one we have, nor does Dworkin suppose that his substantive
conception necessitates any such institution at all. Some other concern is
evidently driving our authors' respective encounters with this particular
substance/procedure distinction. I want to suggest that both encounters, Dworkin's
no less than Habermas's, reflect desires, in the face of perceived difficulties,
to find a place in liberal constitutional theory for the positive aspect of
political freedom-the dimension of freedom that consists in authoring the
laws you live by.
Habermas's proceduralist colors fly from his English title. His text emphatically
keeps the promise, declaring, for example, that in "the democratic procedure
for the production of law" lies "the only postmetaphysical source
of legitimacy." (As we proceed, it will become clear beyond doubt that
by "law" here Habermas means the most fundamental law we can conceive.)
Recently Habermas launched the following complaint against the effort of John
Rawls to find support for liberal constitutional principles in the hypothetical
deliberations of parties in a philosophically constructed "original position":
From the perspective of the [philosophically elaborated] theory
of justice, the act of founding the democratic constitution cannot be repeated
under the institutional conditions of an already constituted just society
. . . . It is not possible for the citizens to . . . reignite the radical
democratic embers of the original position. . . for . . . they find the results
of the theory already sedimented in the constitution. . . . [T]he citizens
cannot conceive of the constitution as a project."2
This, plainly, is a call for democratic procedure even at the
point of deciding the most fundamental laws of the regime or, indeed, of formulating
principles or norms by which to test the laws.
That is precisely the call that Ronald Dworkin argues we cannot
make-can't make, at any rate, on the constitutional conception he defends
as the most satisfactory account of what in fact we do and claim in democracy's
name. On Dworkin's conception, "democracy" points not to a procedure
but to a state of affairs-points to government treating "all members
of the community, as individuals, with equal concern and respect." If
that indeed is what democracy as best understood requires, then given the
obvious points that (i) popularly based determinations of fundamental legal
content might deviate from the stated aim, and that (ii) some other arrangement
might better protect and respect the aim-for example, an arrangement for control
of fundamental legal meaning by an independent judiciary-there can in principle
be no objection, "in the name of democracy," to resort to such other
Dworkin does in fact cast this argument as a partial defense
of the American practice of judicial review-a defense of it, specifically,
against what Alexander Bickel named the "counter-majoritarian difficulty"3
and Dworkin now calls the "majoritarian premise." Both these terms
refer to an ostensibly pro-democratic intuition or claim: that acts of representative
assemblies based in majority rule ought presumptively, as an elementary point
of democratic principle, to prevail against the contrary views of electorally
unaccountable judges. Although some have tried, one can't beat back this claim
with any doctrine of what constitutional interpretation properly involves.
Take for example Dworkin's own advocacy of a "moral reading" approach
to the constitution's abstract rights-declarative clauses-"freedom of
speech," "free exercise of religion," "due process"
and "equal protection" of law. A moral reading treats these clauses
as "invocations" of great political-moral principles in a unified
"political theory" that the interpreter distills from major fixed
points of constitutional law and culture. As Dworkin now makes clear,4
such an approach only serves to accentuate the counter-majoritarian difficulty
(or, if you prefer, the majoritarian premise). A fundamental law that speaks
at the level of high political-moral principle necessarily leaves innumerable
issues for resolution at various points and stages of more concrete application
("interpretation")-"great and defining issues," Dworkin
calls them-that are themselves sites of major political-moral controversy
on which reasonable people can and do differ. Issues such as, for example,
whether a mandate against abridgements of the freedom of speech is best (or
most democratically) construed as sweepingly prohibiting all legal curbs on
blatantly racist expression in public.
Assigning resolution of such grand interpretative controversies
to law-courts rather than leaving it to the organs of directly representative
government strikes many as wrongheaded in a system in which supposedly (I
use the singing prose of the Republican Platform) "the people and their
representatives decide issues great and small." In a word, it seems undemocratic.
Observe, however, that it's only so on the procedural understanding of what
constitutional democracy requires. According to the substantive view, the
object is to get the controversial issues resolved in the way that best conforms
to (let us say) treating everyone with equal concern and respect. Since it's
an empirical question what role for judges will best serve this aim, no role
we give them can be classed as counter-democratic "in principle,"
just as such. That is certainly one major thesis that Dworkin is out to establish.
Habermas rejects neither judicial review nor the moral-reading approach
to constitutional adjudication. But he disagrees radically with Dworkin over
how best to explain and defend these things as pro- rather than counter-democratic.
And here we run into a surprising twist: On the argumentational axis that
runs from "individualism" on the right to "collectivism"
on the left, Dworkin's terms of argument in favor of democracy-as-substance
stand apparently to the left of Habermas's terms of argument in favor of democracy-as-procedure.
That's of course an apparent reversal from our accustomed sense of a populist
or communitarian background for strong democratic proceduralism as opposed
to an individualist-liberal background for substantive "rights-foundationalism,"5
and it accordingly leaves puzzles on both sides of our divide. On Habermas's,
the puzzle is the unlikely-looking attempt to wring a relentlessly democratic-proceduralist
conclusion from decidedly individual-regarding starting points, in an intellectual
milieu where it has long been axiomatic that one has to choose between (substantive)
individual rights and (procedural) democracy.6
On Dworkin's side, the puzzle is the flow of communalist rhetoric from the
author of Taking Rights Seriously, who declared in that work that the distinguishing
mark of a rights-based political theory is that such a theory "places
the individual at the center and takes his [independence] as of fundamental
Habermas, along with Dworkin, belongs to the family of political moralists
who judge political arrangements by asking whether the arrangements sufficiently
honor the elementary moral entitlements to consideration that these moralists
ascribe to entities in some class. Suppose we call "liberal" any
thought of this kind that makes individuals the bearers of elementary entitlements
to consideration. We opposingly classify as "populist" the thought
that assigns elementary political-moral entitlements to the people, somehow
collectively conceived as a locus of agency, experience, or "energy."8
Then the thought of Habermas falls decidedly on the liberal side of the line.
It deeply shares with the thought of Locke, Kant, Mill, Rawls, and Dworkin
a view of human individuals as severally possessed of capacities for rational
agency, for taking some substantial degree of conscious charge of their own
minds and lives, making and pursuing their own judgments about what is good
and what is right.9 Accordingly, it also
deeply shares with theirs a sense of the ineliminable coerciveness of political
government and a concomitant view of what it must mean to defend against complaint
the governmental presence in people's lives-which is, to show that all affected
persons severally have what are actually, for them as individuals, good reasons
for consent at least to the fundamental laws that constitute the system of
government they are under.
A Habermasian version of this line of thought appears in the
twin propositions that he labels "U" and "D":
[U] For a norm to be valid [meaning for the norm be
observable "out of respect for" it], the consequences and side effects
that its general observance can be expected to have for the satisfaction of
the particular interests of each person affected must be such that all can
accept them freely;
D as written is not quite a procedural equivalent or translation
of U; rather, the two propositions jointly asserted reflect upon each others'
meanings.10 But it's
clear that the statements together characterize political justification in terms
of hypothetical universal agreement, by those who stand to be affected and who
reason correctly. And hypothetical consent based on correct reasoning is a substantive,
not a procedural, test for the justified character of a set of fundamental laws.
So if-as the U-D coupling apparently implies-liberal-individualist premises
require that sort of test, then not only has Habermas no argument yet for a
requirement of an actual democratic-procedural provenance for a set of fundamental
laws, he has an argument against such a requirement. For as Dworkin would doubtless
be quick to point out, there's an obvious conceptual gap between (i) a procedure
designed to issue in fundamental laws that are rationally approvable by everyone
and (ii) a procedure designed to afford a full and equal part to everyone in
fundamental lawmaking. An elitist institution could turn out to be just the
ticket for the first requirement, even as the second would surely disqualify
it. We want to know how Habermas bridges this conceptual gap between hypothetical
consent and actual democratic practice, and why he spurns the substantive-democratic
or rights-foundationalist anchorage that seems so naturally congenial to individualist-liberal
[D] "[O]nly those norms of action are valid to which
all possibly affected persons could assent as participants in rational discourses."
Two possibilities you may think of can be quickly rejected.
First, some moralists (Kant would seem to be the modern-liberal godfather)
think of individual freedom as having a "positive" as well as a
"negative" aspect; as consisting, that is, in moral self-direction
as well as in the absence of external social constraint on what one does.
On that view, my freedom depends on my having approved, on due reflection,
the fundamental laws of my country as true laws of justice. Assuming that
Habermas shares this view of freedom, as well he may, it's still not enough
to explain his insistence on actual discursive engagements among citizens
over the contents of their country's constitutive laws. That is because a
requirement of reflective approval can be satisfied by the very sort of Rawlsian
grounding for constitutional principles-everyone arrives separately at a reflective
considered judgment that some-or-other philosopher has gotten them right-that
Habermas has said he finds democratically wanting.
But what if Habermas further thinks that every person simply
has a primal interest and correlative moral right to an equal part with others
in determining the fundamental laws of the regime to which he or she is subject?
That view's ultimate tendencies are more apparently rights-foundationalist
than they are democratic-proceduralist, in this respect: This universal moral
entitlement of fundamental-legal co-authorship presumably doesn't just present
itself for no reason. It must rather come out of some already-executed stage
of reasoning. Someone has concluded that there ought to be "sedimented"
into the fundamental laws of a country-from here on in, and always subject
to this very requirement of which we now speak-provision for universal individual
rights to take part as free and equal in fundamental lawmaking. This conclusion,
though, would itself have to stand as a dictate of reason for which some philosopher
(there might at any time be countless of us) has to take responsibility. Rights-foundationalism,
in a word.
Where, then, from here? How does Habermas get to the conclusion
that "the democratic procedure for the production of law. . . forms the
only. . . source of legitimacy?"
To begin with, "legitimacy" in this usage carries
a special signification. It means to all intents and purposes "validity,"
and "validity" refers to a particular notion of what lends moral
defensibility to acts of submission to a lawmaking system or, where necessary,
of forcible imposition of it: and that is, a sufficiently strong if still
imperfect tendency in the system to issue in results that conform to the U-D
standard of normative rightness. For Habermas, a crucial further proposition
appears to be this: Only someone aided by actual dialogic encounter with the
full range of affected others can reliably appraise the rational acceptability
of proposed fundamental laws to all those affected by them. More precisely,
only such a person can appraise the laws reliably enough (or apparently reliably
enough) to confer the validity that we demand of a coercion-backed political
regime. "[I]ndividual private rights," Habermas writes in one exemplary
cannot even be adequately formulated, let alone politically
implemented, if those affected have not first engaged in public discussions
to clarify which features are relevant in treating typical cases as alike
or different, and then mobilized communicative power for the consideration
of their newly interpreted needs.11
Roughly, the idea is to draw an evidentiary connection between
what's actually agreed by most under adequate procedural conditions and what
would hypothetically be agreed by all under ideal conditions. Suppose that,
under adequate conditions, most people agree that a norm is right (would be
universally accepted under ideal conditions). Then, although it may not be
right, it is nevertheless valid (observable out of respect for it) and as
such may legitimately (with moral justification) be imposed by force of law.
In the words of Habermas, only the submissibility of the hypothetical question
at any time to an actual democratic-discursive forum can sustain a "presumption"
that enacted laws are universally rationally acceptable-a presumption required
for conferring validity on laws. We have here an "epistemic" theory
of democracy, one that cites as a reason for favoring democratic procedures
a supposed tendency they have to reach outcomes approximating to procedure-independent
standards of rightness.
We also have here a trap. Recall our list of controversies
over what is required of the prescriptive content of a set of fundamental
laws in order to qualify them as properly democratic-economic distribution,
affirmative action, proportional representation, campaign finance, etc. Take
again our example of the hate-speech question. Suppose Habermas is correct
in general that only in the wake of an adequate or proper democratic debate
can questions of fundamental-legal content be resolved in a way that morally
permits the resolution's imposition by force of law. The trap is that the
question of the regulability of "hate speech" is one of fundamental-legal
content, just by virtue of being one about what makes for a proper democratic
debate, the very debate that Habermas says is required for a valid resolution
of that very question. So we cannot decide whether the conditions of debate
were adequately democratic without first deciding whether democracy requires,
permits, or excludes the regulation of hate speech. Presuppositional to proper
democracy, it seems, is a set of institutionally supported norms-one may as
well call them, as Dworkin does, "constitutive rights"-respecting
treatment of persons by one another and by the state, in respects pertinent
to participation in public discourse. Habermasian validity, in short, requires
the presence on the scene of individuals already constituted by fundamental
laws as free and equal; yet only they can validly decide what content is required
for the fundamental laws that thus constitute them.
This point has not, you may be sure, escaped Ronald Dworkin.
Preferring the substantive ("constitutional") conception to the
procedural conception of democracy, Dworkin points to the radical incompletion
of the procedural view: In his words, that democracy procedurally understood
"cannot prescribe the procedures for testing whether the conditions for
the procedures it does describe are met." More intriguing is that the
point has by no means escaped Jürgen Habermas. Over and over he recurs
to, as if savoring, the paradox: He touts as "the democratic principle"
the proposition that only those laws can be legitimate that can gain the assent
of all in a procedure "that has itself been legally constituted."
"The idea of the rule of law," he says, "sets in motion a spiraling
self-application of law." And the citizens themselves.
. . decide how they must fashion the rights that give the discourse principle
legal shape as a principle of democracy. . . . [They] make an originary use
of a civic autonomy that thereby constitutes itself in a performatively self-referential
Indeed. But the question hangs achingly: Where in history can
this originary-yet valid-constitutive lawmaking ever conceivably be fixed
At this point Habermas has to yield on something, and he does.
What gives way, to a degree, is fundamental lawmaking by the people, sometimes
called "popular sovereignty." Habermas designates civil society
to serve as a proto-legislative-but not quite a legislative-constitutional
organ. He posits concurrent formal and informal democratic-discursive arenas,
the informal for democratic "opinion"-formation and the formal for
democratic "will"-formation issuing in authoritative declarations
of fundamental- legal content. The formal arenas are the representative assemblies-one
could add constitutional courts, subject to qualifications-where proposals
regarding fundamental-legal content can be docketed, debated, adjusted, dickered,
and authoritatively enacted over remaining disagreement.12
The informal arenas are the more open and fluid structures of civil society
to which everyone has access from a base secured in part by "liberal
patterns of socialization," but also in part by determinations of fundamental-legal
content issuing from the formal arenas over which the informal one retains
its influence. If all goes well, the informal arenas exert a "subjectless"
influence on the formal ones: They are incapable of enacting or authoritatively
construing fundamental laws but capable of inspiring enactments and constructions,
and are protected by the laws and constructions they inspire against colonization
by those who enact and authoritatively construe the laws. In the end, we are
left relying for democratic-discursive validation not on "a collectively
acting citizenry" but on a somewhat mechanistic "interplay"
between democratically institutionalized will-formation (and will-construction)
and informal opinion-formation.
For many democrats, surely, this will be a dispiriting meltdown
of popular sovereignty. How confident can we be of either the democratic-discursive
virtue or the effective influence of such a weakly institutionalized forum
as the "civil society" we know? How does informal talk in multiple
social settings translate into control over political authorities? And wasn't
it, anyway, a collectively acting citizenry that we precisely envisioned and
wanted-an authoring subject, a master of the machine not just a cog in it?
Along with these plaints goes the somewhat tinny sound, to devotedly pro-democratic
ears, of the epistemic reason for the moral mandate of democracy: Surely,
we-and he-have all along meant something more soul-rousing than that! Behold,
then, Ronald Dworkin waiting to show us how to reignite the embers, where
to seek and how to recover the Lost Chord. Where? In the precincts of the
equal dignity of humankind and foundational human rights. How? By just letting
go these scruples about a philosophical or speculative grounding for true
democratic principles, in hypothetical agreements or axioms of equality.
A Dworkinian substantive ("constitutional") conception of proper
democracy means some form of institutional entrenchment of basic human-rights
interpretations against procedural-democratic revision. It looks like rejection
of that basic human right or good of moral and political self-determination
that we call positive political liberty. To reply to the majoritarian objection,
Dworkin nevertheless needs to uphold the constitutional conception. To uphold
that conception persuasively, he needs to demonstrate its consonance with
endorsement of positive liberty as a basic human interest.
Crucial to the demonstration is Dworkin's distinction between
two "kinds" or "readings" of collective action-between
two ways of interpreting the idea that a decision has been made "by the
people." Collective action is "statistical" when construed
as a function of individual actions to which it's reducible without remainder.
Market price is Dworkin's leading example. "The market," he says,
names no "actual entity," and nothing is lost in translation if
we say that what sets the price is a series of co-responsive actions by individual
traders. The statistical form of decision-by-the-people is, of course, a nose-count.
"Communal" is Dworkin's term for collective actions
that are not seen as reducible to individual actions: Detectable actions of
a severalty of individuals "merge" into a "further, unified,
act that is together theirs," the act of a "collective agency."
Dworkin offers as one example the sense of responsibility for Nazi atrocity
that many members of the German nation carry to this day. On a communal reading
of decision-by-the-people, it's not "individuals taken one by one"
that do the deciding but "a distinct entity-the people as such."
Dworkin at this point is sounding like the principled populists I mentioned
above-the ones who believe that an organized people is the basic subject of
entitlement and agency. He sounds like them although he certainly is not one
of them, and thereby hangs a part of our tale.
Dworkin's self-assigned task is defense of the constitutional
conception of democracy against the charge of defeating positive liberty.
The charge is highly plausible, because the constitutional conception obviously
restricts the scope of popular self-government by entrenching certain individual
rights. The defense proceeds in two steps: First, Dworkin argues that the
very idea that democracy serves positive liberty presupposes a communal conception
of decision-by-the-people. Second, he argues that a communal conception of
decision-by-the-people implies the constitutional conception of democracy.
Why does the very idea that democracy serves citizen self-government
presuppose a communal conception of decision-by-the-people? Because as to
any individual taken separately, it's perfectly likely that leaving interpretation
of basic liberal rights to a non-popular forum expands rather than contracts
that person's "control of his own fate." Submitting the question
of procreative autonomy rights to popular determination gives me virtually
no more control over the outcome of this morally charged event than I have
when a governor-general decides it. Yet it could well be that the governor-general
will decide or construe the basic law in a way that leaves each individual
more control over his or her own fate than the people acting collectively
would do. Dworkin concludes that if any being's positive liberty is in principle
infringed when the constitutional conception allows non-popularly determined
basic-rights interpretations, it can only be that of the citizenry taken whole.
Dworkin, however, is decidedly no populist. Democracy's aim,
in his view, is to assure the community's individual members proper treatment.
So he needs to yoke the individual's positive political freedom to that of
the citizenry taken whole: What makes it "sensible" for a person
to treat himself-hence "fair" for the rest of us to treat him-as
self-governing by virtue of a collective act from which he may have statistically
dissented? Dworkin's answer is that it can only be a person's warranted sense
of "moral membership" in the community that allows and disposes
him to claim the community's act as his own.
For such a sense, however, Dworkin sets strong preconditions.
"Membership" here has to mean recognition by the rest as free and
equal; I can sensibly regard myself as a member only if the body's decisions
are consistent with such recognition. Those decisions, therefore, must treat
me as someone having a "part" and a "stake" in collective
decisions and also moral "independence" from those decisions. But
I can only have such a part and a stake and independence if certain conditions
obtain: rules of equal suffrage and representation and safeguards of political
expression and association; equality of legal standing and protection against
abusive discrimination; freedom of thought and conscience, and autonomy in
matters beyond the community's legitimate concern; in short, only in a scheme
that assures liberal constitutive rights. To turn the point around: If the
group does not respect those liberal rights, then I cannot identify myself
as a member; and if I cannot so identify myself, then I am not politically
self-governing when I comply with the laws authored by the group. In sum:
Advancement of positive liberty through democracy is initially mysterious,
but there is a path of clarification and it interestingly happens to pass
through holistic-collective agency-the positive freedom of the citizenry taken
whole-before landing us safely back in the individualist-liberal constitutional
conception of democracy.
As arguments to such conclusions go, this may be one to gladden
the civic soul. I wonder, though, whether by any chance such gladdening is
all the work that is done by the argument's circuit through communalism. I
want to ask whether this loop is perhaps a conceptual or rhetorical extravagance.
Dworkin's notion of communalism is not always very robust.
A symphony orchestra performance, he says, exemplifies collective agency of
the communal kind. It would be a statistical case, reducible to the actions
of the players, if it were just a matter of each musician playing the score
in time with the conductor's beat, but it isn't. Further required for "success"
is that the musicians play as an orchestra, each intending to make a contribution
to the performance of the group, and each taking part in a collective responsibility
That amounts to an account of what "each" must do
and intend. But intention is always an aspect of action-you can't ever speak
intelligibly about what someone is doing without attributing an intention.
So where is there here any irreducibility-without-remainder of the group's
performance to the actions of the several players? Dworkin cites the contingency
that the performance won't succeed unless each player cares about the combined
effect of all their actions, but that is still not to introduce any "agency"
or "entity" that's "distinct" from them and their actions
in the aggregate; they had all-each-just better care in the reciprocatingly
right ways about the combined effect.
In one respect the orchestra example's apparent shallowness
may be reassuring to some liberals: It suggests that Dworkin is not here really
venturing into "ontological" collectivism,13
but is only, in effect, affirming (or extending) the point that a liberal-individualist
anthropology need by no means be (perhaps it cannot be) an atomistic one.14
But now let us ask: What is the analogy between the orchestra example (thus
innocuously construed) and the "communal" view of government by
the people that Dworkin says is required to make sense of the widely held
idea that democracy serves positive liberty? It seems to me that the answer
is: None to speak of.
Dworkin's orchestra stands for the case of an instrumental
necessity (for the sake of "success") of reciprocating sensitivity
on a group-membership's part to the doings (including intentions) of their
fellows. What would be the analogies in contemporary individualist-liberal
constitutional thought? Maybe the argument of John Rawls that the moral success
of constitutional democracy depends on observance by citizens, when they act
politically, of a constraint of "civility" or "public reason."
Maybe the concern of Jürgen Habermas to find institutions that can "secure
relations of mutual recognition" by providing a trace in daily life of
the integrative force of civic friendship based on agreement in reason. Dworkin's
positive-liberty argument is like these examples in the respect that it makes
the moral success of democracy-specifically, its furtherance of positive liberty-
depend on everyone's respect for everyone else's constitutive rights. It is,
however, unlike them in making that conclusion depend on an idea we are all
supposed to have of an acting entity that's bigger than any of us. That seems
a sort of idea that goes well beyond anything that the orchestra example need
be taken to require.
Community, it turns out, does have a load-bearing part in Dworkin's
total case. It supplies the interface between support of judicial authority
to declare fundamental-legal meaning and devotion to positive political freedom.
Dworkin evidently sought to maintain the substantive-democracy defense of
constitutional-court authority, without breaking faith with the widely cherished
sense of an essential tie between democracy and positive political freedom.
If we see as apt and commendable this effort to keep the faith, we must also
be struck by the fact that it took Dworkin on a surprising walk through the
valley of the shadow of ontological community, the agency of the people taken
Is there really a need, though, for this purpose, to ascribe agency to the
citizenry taken whole? We can read Habermas to offer another way. For suppose
we ask: Under what social conditions is it possible for individuals (regarding
themselves as free, equal, reasonable, and rational) to find they have reason
to affirm the consonance of an existent, coercion-backed political regime
with their own, respective moral and other interests? And suppose we conclude
that it's in the nature of that question that answers can't be adequately
specified without recourse to the best approximation of a democratic procedure
that we currently have at our joint disposal. We then have the form of the
procedural pro-democracy argument that Habermas derives from liberal-individualist
premises. This vindication of democracy-as-procedure comes, however, at a
cost worth remarking. It involves the very sort of reduction of positive political
freedom that Habermas finds regrettable in the work of Rawls: from being a
matter of joint active control of the laws to being one of the internal reflective
states of individuals.
Bridging positive political freedom with liberal individualism
is not a new project. However grateful we may be for these latest efforts
and however much we may learn from them, neither yet brings the project to
a fully satisfying completion.