The need for recognition as the social context within which claims of right and good are asserted.
By Dr. Eoin Daly
Professor of Law
University of Galway
Abstract
Many political and legal philosophers believe that disagreement forms part of the “circumstances of politics”, even to a point where we might say that disagreement is the definitive circumstance of politics. That is to say, disagreement is understood as a central problem of politics, with which the enterprise of constitutional design is centrally concerned. Disagreement is both insoluble and is constitutive and characteristic of politics as such. And, for the most part, liberal and republican theorists dispute only the subject or extent of disagreement, with Rawls emphasizing disagreement as to questions of the good amidst a presumed consensus on questions of right or of justice, but with Bellamy and Waldron arguing that disagreement extends to questions of right as well as good, and that constitutions should be designed accordingly. In turn, such framings of disagreement underlie questions of institutional design, most notably the problem of judicial review and its relation to democratic legitimacy. The purpose of this paper is to challenge this dominant understanding of disagreement as such as being a definitive circumstance of politics, and therefore, as a central problem of constitutional design. I make this argument with reference to two thinkers in particular, Jean-Jacques Rousseau and Pierre Bourdieu. Drawing on Bourdieu, I will argue that ostensible disagreement – as expressed in competing assertions or claims as to the right or the good – need not necessarily be framed in propositional terms, but can rather be understood as socially performative and as exercises of symbolic and social power. Thus, disagreement as such is not antecedent to political and social order but is rather constituted and formatted by it. In turn, I will argue that Rousseau’s constitutional projects can be understood as reflecting a similar insight. In contrast to Rawlsian liberalism, the fundamental problem of political order, for Rousseau, is not a propositional one at all, concerning disagreement as to the right or the good. The starting point of political order is not the search for the good (or the right), but rather, the problem of, and the need for recognition, as the social context within which claims of right and good are asserted. A central challenge of politics, then, is how it is possible to constitute a shared symbolic universe in which political communication and political discourse can assume transparent and non-dominating forms. I will conclude by offering examples as to how constitutional design can account for this problem.
Introduction
Political theorists contest the extent to which disagreement in political life is insoluble or intractable, and conversely as to the range of agreement or consensus that is aimed at or assumed. On the one hand, normativist liberals led by Rawls assume intractable disagreement as to the good life, but build their theories on an assumed agreement or consensus as to justice itself.1 On the other hand, those I will call the procedural republicans, led by Bellamy and Waldron, reject the idea of basing political unity or stability on substantive moral consensus, or on any “overlapping consensus” of comprehensive doctrines, and instead they contend that disagreement extends to questions of justice as well as questions of the good.2 For a realist sensibility, it seems important to understand disagreement – as to the good and the right – as being part of, or even as defining the circumstances of politics, as the set of circumstances that define politics and make it necessary. However, I will argue that a better realist response to normativist liberalism – compared with that exemplified by the procedural republicans – is not to contest the range or extent of disagreement and its insolubility in politics, but rather to challenge the centrality of agreement (and disagreement) as central concerns of statecraft and political thought. I will make this argument – for a different realist approach to agreement and disagreement – with reference to two, ostensibly very different thinkers, Rousseau and Bourdieu. Both are skeptical, at least implicitly, as to the political relevance or centrality of disagreement, because both view political argument itself not primarily as propositional, but rather as socially performative, as an exercise of social and symbolic power and as a site of insidious domination. The suggests that the starting point of political order is neither the search for agreement on the good (or the right), nor the establishment of an agreed decision-procedure in contexts of disagreement, but rather, the difficulty of establishing political communication in a social context defined by intractable inequalities of symbolic power. A central challenge of politics, then, is how it is possible to constitute a shared symbolic universe in which political communication and political discourse can assume transparent and non-dominating forms. I will conclude by offering examples as to how constitutional design can account for this problem.
Speech, Argument, Domination: Rousseauian Insights
While Rawls suggests that reasonable pluralism3 – the coexistence of contradictory comprehensive doctrines – is the central problem and the starting point, so to speak of political theory and constitutional design, such considerations are curiously absent in Rousseau’s thought. In fact, he depicts the starting point of politics in a radically different way. The central problem of politics is not that citizens disagree about conceptions of the good, or indeed about justice either; it is not in fact that they disagree, as such, at all. It is, rather, that any such disagreements take place in a context of what we might now call symbolic power and symbolic violence.4 And Rousseau’s constitutional preoccupations differ accordingly. The challenge of constitutional design is not to establish stability and consensus amidst disagreement as to the good; rather it is to constitute a shared symbolic universe in which political communication can occur in non-dominating ways.5 Thus political unity or stability can be grounded neither in a principled moral consensus nor in the agreement-procedure itself.
The Genealogy of Domination
Rousseau’s skepticism as to reasonable pluralism is evident in the historical genealogy he sets out in the second Discourse, which speculatively describes the emergence of domination and servitude in different stages following man’s exit from “nature”.6 A key event in this genealogy is first the emergence, and then the inflammation of man’s amour-propre, a form of self-love that is consummated by external recognition. Rousseau hypothesises that when the first societies formed, “a value came to be attached to public esteem … [to] whoever sang or danced best, [or] was the most eloquent … and this was the first step towards inequality”.7 Man’s “rank and condition” came to depend not only on his “property and power”, but also his “wit, beauty and talent” – including particularly his “eloquence” – an attribute which it became necessary to “possess or affect”.8 Thus with the emergence of both first property and then social complexity, society becomes a “frenzy for distinction”,9 as man’s psychological needs, and thus his propensity to both dominate and be dominated, grow exponentially. Thus the genesis of social domination lay not solely in brute coercion or even material inequality, but rather in the emergent need for recognition – as humans begin to “live in the opinion of others”.10 And Rousseau’s conjecture was that this corruptible sociability became inflamed in the world of the early moderns, as opportunities and incentives for insidious forms of self-distinction exponentially grow, in particular with the emergence of luxury and the refined arts.
While Rousseau, like other republicans, understands domination as subjection to the alien other condition of being subject to the powers of an alien other, he identifies domination, then, not just with dependency on the will of others, but also with dependency on their recognition.11 And dependency on recognition leads to domination in a number of respects. In particular, it means hierarchy and subordination become deeply insidious, compared with the earliest stages of society. Following the development and inflammation of amour-propre, social hierarchy assumes symbolic forms; the “great and rich” distinguish themselves and cement their status by creating “a different symbolic universe” and “trapping the rest into believing”.12 Social power is increasingly exercised as symbolic power, and it is internalised by its subjects, leading to a form of what we might now call symbolic violence or symbolic domination. Ostensibly innocent pursuits, particularly culture and arts, become instruments of hierarchy, driven by a “desire for distinction”.13
For Rawls, by contrast, the historical context for the “political” conception of justice – the historical starting-point from which the need for such a conception of justice is appraised – arises with the early-modern Wars of Religion, and relatedly, with the “fact of pluralism”.14 Thus, it is a conflict based on doctrines and beliefs. The ‘circumstances of justice’ are predicated on a propositional problem of disagreement, and it is around this presumed starting point on which much of liberal political though centres. For Rousseau, by contrast, the context for constitutional design arises much more primordially with the inflammation of amour-propre and the emergence of social distinctions and hierarchies that are based on symbolic power. The departure point of political theory, then, is not the propositional problem of disagreement, at all, but rather a problem of performativity, within social interaction and communication, that leads to symbolic domination.
Discourse as Domination
Rousseau’s pessimistic view of social practice, in liberal and commercial society, applies with particular force to political discourse. Notoriously, he is deeply apprehensive towards political deliberation and speech as potentially destructive practices.15 Seeing dissensus and debate as signs of factionalism, he argued that, far from having an illuminating or emancipatory effect, political discussion would actually prevent citizens from discerning the “general will”. He suggests that the general will would emerge when citizens are informed but have “no communication with one another”; while “long debates, dissensions and tumult herald the rise of particular interests and the decline of the State”.16 When the general will prevails, “there are no embroilments or conflicts of interests; the common good is everywhere clearly apparent, and only good sense is needed to perceive it”.17 Thus he prefers the solemn sanctity of voting itself, over deliberative processes which he views as susceptible to manipulation and abuse. Thus “there is no question of ploys (brigues) or eloquence in order to secure the passage into law of what every one has already decided to do”.18 Far from the act of voting being or disciplined by deliberation, it is protected from it, an insight which he illustrates with classical reference:
As for the method of taking the vote, it was among the ancient Romans as simple as their mores, although not so simple as at Sparta. Everyone declared his vote aloud, and a clerk duly wrote it down; the majority in each tribe determined the vote of the tribe, the majority of the tribes that of the people, and so with curiæ and centuries. This custom was good as long as honesty prevailed among the citizens, and each man was ashamed to vote publicly in favour of an unjust proposal or an unworthy subject; but, when the people grew corrupt and votes were bought, it was fitting that voting should be secret in order that purchasers might be restrained by distrust, giving rogues the means of not being traitors.19
Certainly, other republican thinkers, ancient and modern, understood the potential abuses of different modes of political discourse – not only of “deliberation” as it is now called, but especially of oratory, rhetoric and so on.20 But generally, deliberation, subject to constraint, is otherwise understood as a foil to political domination. What makes Rousseau’s view distinctive, then, is his understanding of discourse and deliberation as such – as processes centring ostensibly on disagreement and agreement – as being inherently suspect. They are inherently suspect because they offer sources of distinction, and thus outlets for corrupted amour-propre and accordingly, represent sources of insidious social hierarchy and of domination. They are part of the performative theatricality of early-modern commercial societies, the world of the phoney bourgeois who is concerned with refinement and manners over virtue and action. For Arendt, by contrast, political speech is a form of political action, through which men insert themselves in the public realm, and for Atlanticist neo-republicans like Pettit, it is a way of subjecting public power to democratic control through the formation of common interests, but for Rousseau, it is – in the liberal social universe – an instrument of artifice, of deception and ultimately of political domination.21 In a sense, then, he rejects the kind of optimistic assumptions frequently made by deliberative-democracy theorists concerning the nature of deliberation itself as a social activity – that it can be rendered benign, sincere, egalitarian and so on.22 Such theories imagine that Habermas’ idealised description of the 18th century bourgeois public sphere – an elite and solidaristic space – can realistically be extended across a heterogenous mass society.23
Instead, Rousseau understands political speech as offers a mechanism of distinction and thus, of symbolic domination. Indeed, he explicitly associates the development of inequality with the emergence of “eloquence”, and thus of performativity in speech, in the first societies. And it is because amour-propre engenders performativity-in-speech that Rousseau downplays the propositional aspect of speech in favour of its function in relation to recognition and social distinction.
In terms of the social mechanics of political speech, Rousseau, like later thinkers, recognises that discussion and speech are not primarily cognitive, but rather social competences, and that speakers are evaluated on rationally arbitrary grounds, based on the mastery of speech as a social technique (what he refers to as “eloquence”), rather than as participants in an intellectual exercise. Speech, in this view, is appraised based on what Pierre Bourdieu calls the habitus,24 the set of unconsciously acquired techniques through which agents navigate “fields” of social power and acquire a “feel for the game”. And correspondingly, “dominated agents … tend to attribute to themselves what the distribution [of value and status] attributes to them, reproducing in their verdict on themselves the verdict [pronounced] on them”.25 Like Rousseau, Bourdieu argues that the social authority or efficacy of speech depends, in practice, on a morally arbitrary “articulatory style” – encompassing factors as ostensibly mundane as “accents, gestures, intonations, and other bodily techniques for speaking”.26
This view finds support in contemporary political theory. Hayward has shown that the persuasiveness of political speech depends on considerations of “form and “style”, that are linked to the dominant habitus – and that this inequality cannot be overcome by the safeguards that have sometimes been suggested by deliberative-democracy theorists.27 As Olson argues, “people of dominant identities are ascribed greater competence than others, and not coincidentally those people are more likely to have political opinions and feel entitled to express them” .28 Those unwilling or unable to deliberate, or who find themselves dominated in deliberation, may simply lack the required habitus; in Bourdieusian terms, “persons lacking the linguistic competences valorized in particular social and institutional domains are de facto excluded from participation in them”.29 Notwithstanding formal processes for inclusion, people’s “linguistic-bodily competence” may represent a barrier to authoritative political speech. The social efficacy of speech has been shown to depend on arbitrary criteria that Bourdieu argues are efficacious because “they function below the level of consciousness and language, beyond the reach of introspective scrutiny”.30
Thus Rousseau presages a later branch of critical linguistics that “sought to explore and expose how language is used as a tool for power, a means of concealment and method of marginalisation”.31 Political speech may become “a weapon to leave individuals in a state of befuddled inferiority”.32 It is this sceptical view of political speech that underlies his disparaging reference to the “refined flourishes” of political speech,33 and his allusion in The Social Contract to those “political subtleties” – essentially, sophisticated forms of discourse – that he understands as undermining political equality.34
This invites us to reappraise the emancipatory potential of political speech. Topper argues that while Arendt focuses on the political consequences of citizens’ “loss of voice”, Bourdieu is more centrally concerned by “the often inconspicuous ways in which language itself becomes a mechanism of silencing, domination, or exclusion”.35 Arendt, Topper suggests, overlooks the political significance of “social distinctions embodied in and expressed through speech”.36 Bourdieu, in contrast, shows that “domination and exclusion are enacted through concrete linguistic exchanges.37
By contrast, liberalism and liberal neo-republicanism – theories that most tend to valorise disagreement, deliberation and speech – offer unconvincing explanations of why citizens decline to deliberatively participate. Philip Pettit, for example, suggests that while non-domination means we should be able to “eyeball” others – to look them in the eye without ingratiation or deference – we sometimes may simply decline to look others in the eye because of natural timidity.38 From a Bourdieusian perspective, this overlooks the subtleties of social domination, forgetting how the “ordinary violences” of social practice are “inconspicuous and gentle”.39
Moreover, liberals and liberal neo-republicans tend to overlook how, far from reconciling differences, deliberation itself constitutes distinctive but insidious grounds of social distinction. For Rousseau and Bourdieu, political expression cannot be conceptualised primarily as a form of “identity disclosure”,40 because we do not use political speech primarily to disclose our identities in the Arendtian sense – or perhaps our conceptions of the good in the Rawlsian sense – but rather simply to distinguish ourselves. Both share the insight, described by Kohn, that “miscommunication and manipulation are not accidental … but part of the nature of language itself”.41
To conclude this section, Rousseau believes that a stable republican community is based not on discussion and agreement, on political speech or deliberation, or indeed on an intellectual consensus derived from or aimed at propositional questions, at all. Rather it is based on austerity, which, in his understanding secures a transparent social universe and a communicative sphere free of encoded complexity and symbolic violence. He says: “honest (droit) and simple men are difficult to deceive because of their simplicity; illusions (leurres) and refined pretences (pretexts) fail to impose upon them, and they are not even subtle enough to be dupes.” Thus, effective political communication occurs not through complex deliberation or reason-giving but based on a wider social austerity that precludes subtle forms of domination. He continues: “When, among the happiest people in the world, bands of peasants are seen regulating affairs of State under an oak, and always acting wisely, can we help scorning the ingenious methods of other nations, which make themselves illustrious and wretched with so much art and mystery?42
Agreement, Disagreement, and Political Unity
What can we conclude from this overview, then, regarding Rousseau’s understanding of agreement and disagreement in politics? On the one hand, “reasonable pluralism” – or simply, the diversity of conceptions of the good in liberal society – cannot simply be understood as an exercise or expression, as Rawls claims,43 of man’s “moral powers”. Rather, such doctrines are held and performed within a corrupt moral universe that is structured around distinction, symbolic power, and amour-propre. Therefore, a stable political conception of justice cannot be based on any overlapping consensus between comprehensive doctrines, because these competing doctrines themselves emerge within the fragmented symbolic and social order of liberal society; such identities arise and are formed or formatted within competitive social “fields” that are structured by the distribution of social, cultural and symbolic capital. More generally, republican stability, then, cannot be founded on an intellectual consensus, because the world of ideas, for Rousseau, is not a source of political unity, but rather a source of distinction and performativity.
Indeed, Larmore has argued that the Rawlsian idea of people living based on a “conception of the good” or “life plan” is a “procrustean habit of thought” peculiar to philosophers, and itself an affirmation about the form of a good life – and going further again, the idea of a life lived in such a (broadly speaking) philosophical way is itself something of a philosopher’s affectation, something that is fanciful in “real life”.44 And while theorists of agonistic politics argue that deliberative democracy is “incapable of processing deep difference”,45 Rousseau is focused more on the arbitrariness and contingency of moral identity itself, viewing intellectual differentiation itself as a product and site of moral corruption.
And crucially, while Rousseau’s insights on symbolic power discount the idea of political stability being derived from intellectual or rational consensus, his theory implies that disagreement, equally, occurs, and is performed in a context of symbolic power and symbolic violence. On the one hand, Rousseau clearly rejects the Machiavellian idea of fractiousness and tumult as a source of republican energy, fearing instability and discord from any conflict of political factions. On the other hand, his positions cast doubt on the procedural republican stance now associated with Bellamy and Waldron, which posits disagreement itself – on the right as well as the good – as defining the “circumstances of politics.” Their stance is realist, in that it rejects the possibility of durable consensus concerning rights and justice. However, it still posits the procedure of argument, the procedure around disagreement, so to speak, as being itself the basis of republican and democratic stability. Thus, while citizens are presumed, in this liberal-republican view, to disagree about justice and rights, they are nonetheless assumed to agree, to a sufficient extent, on the procedure for mediating such disagreement. This procedure is itself based on discussion and argument – processes that are themselves dubious as sources of political unity, for the reasons outlined. Indeed, the procedural republicans’ reasons for scepticism as to agreement on justice seem to apply with equal force, in many ways, to their idea of agreement on political procedure, because without a sufficient affective and motivational basis for political unity, there seems scant ground for republican stability in a decision-procedure that is itself supported by normativist claims about equal respect, reason-giving and so on.
Thus, any procedural republicanism, centred on the problem of disagreement and its mediation, relies on the same mystique around the agreement-process – and its norms – that its exponents identify in the substantive principles or overlapping consensus of normativist liberalism. Moreover, the idea of the agreement-process as itself a source of political unity – a source which remains, in a sense, principled, rational and intellectual – seems equally bereft of motivational and affective force within highly differentiated, and atomized contemporary societies.
Accordingly, it seems that theories positing disagreement as the circumstance of politics, and as the central challenge of constitutional design, ironically seem to place groundless faith in the moral force of the agreement-procedure, in a manner that is just as dubious as the faith placed by normativist liberals in the substantive consensus itself. Moreover, because the antecedent agreement that supplies political unity is based on a decision-procedure, it runs up against many of the same objections that have been identified by critical theorists in relation to “deliberative democracy” – particularly in relation to the efficacy, transparency and fairness of speech itself. Its main institutional focus is the elected legislature, and its moral focus is the exchange of conflicting principled views in parliamentary debate, in particular. But this is as empirically and socially implausible as the Rawlsian emphasis on the substantive moral agreement that is institutionally expressed, typically, in judicial review. Despite aiming to institutionalize dissensus, it ends up relying, at least implicitly, on some version of the Habermasian vision of ideal speech. But it is questionable whether parliamentary deliberation provides either sufficient historical exemplars, or even a theoretical-regulatory ideal, for a reasoned decision-procedure. As Geuss and Bourdieu have both argued,46 the ideal-speech theory is so far removed from reality as to be unhelpful, or actively a distortion, as a moral framework for political life, because it stigmatizes non-rational uses of speech as aberrational. For both Rousseau and Bourdieu as I have explained, confusion and manipulation are not accidental features or deviations in language, because symbolic domination and befuddlement are intrinsic to language, not aberrational or accidental features. Bourdieu contests Habermas’ conception of an ideal speech situation in which the “rational character of communicative action would be unhindered by social constraints” – because “whatever power of force speech acts possess is … ascribed to them by the social institution of the utterance of which the speech act is part”.47 Language has no pure form – even hypothetically – outside of social power relations, meaning that no hypothetical speech situation can offer a useful benchmark for political freedom.48 Remer, for example, details how historical instances of ostensibly deliberative exercises such as the ratification of the United States Constitution – while supposedly characterized by egalitarian reciprocity and sincerity – actually resembled “oratory” more than “deliberation”, proving agonistic, emotive and a-rational, and prizing eloquence over the reasoned argument celebrated by Habermas.49 Madison, for example, worried that “irregular passions” – or the “artful misrepresentations of interested men” – might prevail over the “cool and deliberate sense of the community” (represented by institutions like the Senate.50 But the Rousseauian perspective invites us to question the distinction between deceptive and illegitimate forms of political speech, on the one hand, and rational discourse on the other, emphasising those forms of domination that elude the proper regulation or institutional structuring of political discourse.
From Agreement to Austerity
Instead of consensus and agreement, then, Rousseau emphasises the non-rational basis of political community. For example, in preference to deliberation, he emphasises the value of public ritualism, placing an eccentric emphasis, in his constitutional design projects, on seemingly obscure aspects of statecraft such as ceremonies, festivals, rituals and symbols.51 Since he is conscious of the limits and abuses of speech, verbal communication occupies a relatively modest role in this ritualistic programme. Since citizens must not only be rationally “convinced” of republican norms but also “persuaded”, a-rationally, Rousseau’s constitutionalism aims at “establishing a community of shared meanings”.52 Thus republican ritualism deploy various forms of “non-verbal communication … symbols, sound, sight, ritual”,53 and Rousseau’s constitutional prescriptions extend, beyond formal ceremonials such as oath-swearing, to embrace a diverse scheme of pageantry – festivals and parades, games and celebrations – deploying “the intoxicating power of … rich sensual delights”.54 In certain surprising ways, this presages the insights of later critical discourse theorists sceptical of deliberative democracy – that we need to be emotionally connected to our co-deliberators in a manner which can “make that other person’s pains and pleasures one’s own”.55
On the one hand, these ritual devices reflect his emphasis on the passions and on the a-rational aspects of political community. It also speaks to a certain view of the nature of political cognition and political reason. Rousseau’s emphasis on rituals and symbols reflects a broader scepticism towards any vision of abstract political reasoning that is unsupported by passion and emotion.56 Unless ideas take life in ritual and symbolic form, they risk, in their purely abstract or propositional form, becoming simply a plaything, an intellectual parlour game (Rousseau 012/1751). Rousseau thus understands that political morality is internalised – and political stability realised – through emotional and aesthetic processes. Thus symbols provide the “emotional power and persuasiveness” that give life to abstract political language.57 Thus Rousseau envisages political ideas as taking life in public symbols – with obvious, although possibly arcane examples lying in flags, public statuary and so on.58 Rituals, similarly – think of public awards, festivals, state funerals and the like – offer a similarly concrete, even embodied source of political meaning, although their utility in the late-modern world is of course equally questionable.59
These concrete constitutional devices illustrate again how, for Rousseau, the central problem of politics – and thus, the central concern of constitutional design – is not our disagreement concerning questions of the good, or the plurality of comprehensive doctrines. Rather, the starting point is the problem of establishing effective political communication in a context of symbolic domination. The origin of this symbolic domination lies in the corrupting self-love wrought by humans’ need for external recognition – their need to live in the eyes of others – once they enter society. The challenge of politics is how it is possible – notwithstanding this corrupted amour-propre – to constitute an authentically shared and coherent universe of symbols and meanings in which not only discourse and political communication, but social practice generally, can assume transparent and non-dominating forms. Because the challenge of political theory is to create a society in which political communication can be rescued from symbolic violence, this suggests that, in contrast with Rawlsian liberalism, the fundamental problem of political order is not a propositional one at all, concerning disagreement as to the “good”, or agreement on the “right”. Rather, it concerns the possibility of political communication itself, and more specifically the problem of establishing a form of communication that is not intrinsically or insidiously dominating. Thus “establishing a community of shared meanings … is essential to [Rousseau’s] project”.60
In response to the problem of symbolic violence, Rousseau’s programme is focused not so much on the rational inculcation of republican ideas, but rather on the economy of recognition and symbolic power, which he aims to reorient towards transparency and equality. His constitutional programme emphasises the incentivisation of approved behaviours and habits through mechanisms of recognition – particularly through public awards, though which “the patriotic virtues should be glorified”.61 This seeks to harness, what Pierre Bourdieu later referred to as “all the hierarchies and classifications inscribed in objects … in institutions or … in language” (Bourdieu 1987: 471). Our amour-propre, is to be reoriented in productive and benign ways.
Liberalism, by contrast, tends to ignore the symbolic dimensions of the social and political universe, and the integrative function of political and social symbols. And arguably, by the same measure it offers implausibly optimistic accounts of how principles of justice can be realised under intractable conditions not only of scarcity and conflict, but also of alienation. Rawls (1996) envisages an “overlapping consensus” in which people with conflicting “conceptions of the good” endorse a “public conception of justice” based on their common faculties of reason. But for Rousseau, like other anti-liberals, the central problem of politics is not, as I have argued our disagreement as to the “good life”, or question of ultimate truth. Rather, the challenge of political co-existence, in conditions of scarcity and conflict, is defined in large part by affect and sentiment, which in turn are dependent on social and economic life. The sources of stability (in this sense) lie both in social and economic structure and the world of symbolic power, rather than in the intellectual consensus Rawls envisages.62
Implications for Political Theory and Constitutional Design
The Rousseauian perspective I have described is based on a deep skepticism concerning the emancipatory potential of political speech, and the possibility, accordingly, of basing political unity either on any intellectual consensus, or on respect, alternatively for disagreement and the associated agreement-procedure. By contrast, while most republican theorists value deliberation for its role in a politics aimed at stemming public and private domination across a range of social relationships, they generally under-account for those forms of domination that are embedded in deliberative practice itself. Such concerns are all the more salient in our contemporary politics given the apparent fragmentation of the public sphere into specialised mini-publics or ‘echo chambers’, the problems of populist anger and resentment, of post-truth, ‘fake news’ and so on, which make the deliberative ideal seem less realistic than ever.63
Such insight, in turn, might inform contemporary questions of constitutional design, and particularly those aspects of constitutional design that are aimed at or predicated on disagreement and deliberation. The Rousseauian injunction is not, perhaps, to reject or remove deliberation as such, but rather to pay more heed to the social context of deliberation, and particularly the problems of alienation and symbolic power in contexts of social complexity and differentiation.
On the one hand, and most obviously perhaps, this sceptical perspective on disagreement might cast doubt on the transformative powers of the ‘deliberative wave’ that has taken place in European constitutional practices in recent years, and particularly the capacity of staged deliberative exercises to regenerate political and social stability.64 On the other hand, perhaps less obviously, this sceptical perspective casts new light on the dispute between proponents of legislative and judicial supremacy. Exponents of judicial review invoke the defence of a principled moral consensus, whereas exponents of parliamentary supremacy tend to emphasise procedural fairness, in an agreement-process, in a context of intractable disagreement on questions of justice. From the Rousseauian perspective, however, the normativist liberals rely on an implausible account of principled consensus, while the procedural republicans on an implausible account of the justice of the agreement process itself, and both ignore a more fundamental question as to the problem of mystification and non-transparency in the ways that discussions on questions of justice are conducted. For example, the problem with judicial review, perhaps, is not that it undermines an abstract idea of procedural equality, but rather that it clothes moral debate in a specialised and esoteric language from which lay citizens are excluded.65
Furthermore, an understanding of deliberation and discourse as insidious sources of domination invites reconsideration of how constitutions aim to structure the public sphere. On the one hand, constitutional design might take account of the pitfalls of deliberative democracy and particularly, as Afsahi puts it, “the ways in which ideals of rational and dispassionate discourse can limit the full participation of the most marginalized members of society”.66 On the other hand, however, a constitutional project might extend beyond the framework of deliberation itself as a horizon of political and social unity, looking to alternative bases of political community. Republican austerity might not take the bracing form Rousseau envisages in the 18th century context: there can be no return to a project of autarky or of social homogeneity, but unfeasible and normatively unappealing. But republican austerity might be reconceptualized around a broad aim of transparency in public life, where transparency is a foil to domination in the symbolic and social realms.
Deliberation, and political discourse generally, are more likely to fulfil their aims – and to remain benign – within a shared symbolic universe. However, dissensus, as well as political unity, might be conceptualised beyond rational-propositional terms. Accordingly, a greater regard for types of communication typically understood as “non-deliberative’ or “anti-deliberative” – even those normally seen as provocative, nihilistic or ostensibly vacuous speech – might actually foster greater inclusion.67 Thus, for example, constitutional free-expression doctrines, sometimes conceptualised based on the need for a democratic sphere, might instead encompass a broader sense of the kinds of communication or expression that are democratically valuable, and certainly extend beyond ‘propositional’-type speech aimed directly at consensus or understanding.
More generally, the perspective outlined invites us to consider how certain features of constitutional design might harness a public socialisation process that maximises transparency and inclusion, and minimises obfuscation and befuddlement. It is neither plausible nor attractive for a constitutional project to foster the kind of social and cultural homogeneity that Rousseau sees as the basis of republican austerity. Nonetheless, it might attend to problems of transparency and inclusion in political communication and include non-rational aids to political deliberation, perhaps by fostering the ritual and symbolic aspects of the public realm, and a consideration of how these might foster such a shared symbolic universe. For both Rousseau and Bourdieu, the problem of both deliberation and political unity is not differential identity or belief, or even differential interests, but rather differential habitus – a social division that undermines the possibility of transparent political communication. Similarly, even for Arendt, “the problem of politics is not when people are different, but when they are unable to communicate”.68 But whereas Arendt celebrates the emancipatory effects of political voice, Rousseau and Bourdieu offer sceptical perspectives on the efficacy of political discourse in a context of deep social stratification sustained in economic, symbolic and cultural domains. Certainly, such concerns have already penetrated in the concept of “deliberative democracy” itself, as evidenced in a shift away from a strict model of reasoned speech, to a more inclusive concept that incorporates or admits a broader range of communication types, including testimony, storytelling and so on, along with provocative or sarcastic modes of speech not normally thought of as meeting the requisite criteria for democratic participation.69 Indeed, there is a growing trend in literature to recognise what Rollo calls those “forms of domination related to the imposition of speech on those who are either unwilling or unable to speak”.70 What I have suggested, in this paper, is that such concerns can usefully be connected with a deeper theoretical debate on the centrality of disagreement as such as a definitive circumstance of politics. This is a concern to which Rousseau responded with an strategy of social and cultural austerity that is both unpalatable and unfeasible in the contemporary world. It is an open question, however, whether or not constitutional design can attend to this problem say, by attempting to sustain a shared symbolic realm or ritual life, or whether the countervailing risks and costs, in terms of statist oppression, are unacceptable.
Appendix
Endnotes
- Rawls 1996
- E.g. Bellamy 2007; Waldron 2006.
- Rawls 1996.
- Daly 2017.
- Daly 2017.
- Rousseau 1755/2008.
- Rousseau 1755/2008: 141.
- Rousseau 1755/2008: 141.
- Rousseau 1755/2008: 142.
- Rousseau 1755/2008: 142.
- E.g. Gauthier 2006.
- Dobel 1986: 651.
- Barber and Forman 1978: 547.
- Rawls 1996: ch. 1.
- E.g. Daly 2017: ch. 4.
- Rousseau 1988/1762: II, ch. 3.
- Rousseau 1988/1762: II, ch. 3.
- Rousseau 1988/1762: II, ch. 3.
- Rousseau 1988/1762: IV, ch. 4.
- E.g. Remer 1999
- Arendt 1977.
- E.g Chambers 2003.
- Dryzek 2001.
- Bourdieu 1987.
- Bourdieu 1987: 452.
- Olson 2011: 533.
- Hayward 2004.
- Olson 2011: 535.
- Topper 2011: 354.
- Bourdieu 1987: 466.
- Finlayson 201: 315.
- Dobel 1986: 655.
- Rousseau 1755/2008: 142.
- Rousseau 1988/1762 : IV, ch. 1.
- Topper 2011: 354.
- Topper 2011: 357.
- Topper 2011: 358.
- Pettit 2013: 84-5, 169.
- Topper 2011: 355.
- Topper 2011: 359.
- Kohn 2000: 410.
- Rousseau 1988/1762: Book IV, ch. 1.
- Rawls 1996.
- Larmore 1999: 96.
- Dryzek 2005: 220.
- Geuss (2019); Bourdieu (1987).
- Bourdieu 1987: 10.
- Finlayson 2013.
- Remer 2000.
- Madison et al 1987.
- Daly 2017: ch. 3.
- Dobel 1986: 639.
- Dobel 1986: 639.
- Putterman 2001: 487.
- Putterman 2001: 487.
- Daly 2017.
- Dobel 1986: 648.
- E.g. Cohen 1989
- Putterman 2001.
- Dobel 1986: 629.
- Rousseau 1953/1782: ch. 3.
- See generally Jubb 2011.
- Curato et al. 2020.
- OECD 2020.
- Daly 2020.
- Afsahi 2020: 2.
- Afsahi 2020.
- Honohan 2002: 124.
- Gormley 2019.
- Rollo 2017: 587.
Bibliography
- Afsahi, A. (2020). Disabled Lives in Deliberative Systems. Political Theory, 48(6), 751–776. https://doi.org/10.1177/0090591720913093
DOI : 10.1177/0090591720913093 - Arendt, H. (1977) Between Past and Future. Penguin.
- Barber, B. and J. Forman (1978). Jean-Jacques Rousseau’s ‘Preface to Narcisse’. Political Theory 6, 537-552.
- Bellamy, R. (2007). Political Constitutionalism. Cambridge University Press.
DOI : 10.1017/CBO9780511490187 - Bourdieu, P. (R. Nice translation) (1987). Distinction: A Social Critique of the Judgement of Taste. Harvard University Press.
- Chambers, S. (2003). Deliberative Democratic Theory. Annual Review of Political Science 6, 307-326.
DOI : 10.1146/annurev.polisci.6.121901.085538 - Cohen, W. (1989). Symbols of power: Statutes in Nineteenth-Century Provincial France. Comparative Studies in History and Society 31, 491-513
- Curato, N., Sass, J., Ercan, S. A., & Niemeyer, S. (2020). Deliberative democracy in the age of serial crisis. International Political Science Review. https://doi.org/10.1177/0192512120941882
DOI : 10.1177/0192512120941882 - Daly, E. (2017). Rousseau’s Constitutionalism: Austerity and Republican Freedom. Hart Publishing.
- Daly, E. (2020). Transparency as a justification for legislative supremacy. Critical Review of International Social and Political Philosophy 23, 807-830.
DOI : 10.1080/13698230.2018.1497247 - Dobel, J.P. (1986). The Role of Language in Rousseau’s Political Thought. Polity 18, 638–659
- Dryzek, J. (2001). Legitimacy and economy in deliberative democracy. Political Theory 29, 651-669
DOI : 10.1177/0090591701029005003 - Dryzek, J. (2005). Deliberative Democracy in Divided Societies. Political Theory 33, 218-242
DOI : 10.1177/0090591704268372 - Finlayson, A. (2013). Critique and Political argumentation. Political Studies Review 11 (3), 313-320.
DOI : 10.1111/1478-9302.12023 - Gauthier, D. (2006). Rousseau: The Sentiment of Existence. Cambridge University Press.
DOI : 10.1017/CBO9780511616235 - Geuss, R. (2019, June 18). A Republic of discussion: Habermas at 90. The Point, 18 https://thepointmag.com/politics/a-republic-of-discussion-habermas-at-ninety/.
- Gormley, S. (2019). Deliberation, Unjust Exclusion, and the Rhetorical Turn. Contemporary Political Theory 18, 202-226
- Hayward, C. (2004). Doxa and Deliberation. Critical Review of International Social and Political Philosophy 7, 1-24
DOI : 10.1080/1369823042000235958 - Honohan, I. (2002). Civic Republicanism. Taylor and Francis.
DOI : 10.4324/9780203460894 - Kohn, M. (2000). Language, Power, Persuasion: Towards a Critique of Deliberative Democracy. Constellations 7, 408-429.
- Larmore, C. (1999). The idea of a life plan. (Social Philosophy and Policy 16, 96-112.
DOI : 10.1017/S0265052500002260 - Madison, J, A. Hamilton, and J. Jay (1987). The Federalist Papers I. Kramnik (ed.) Penguin.
- Olson, K. (2011). Legitimate Speech and Hegemonic Idiom: The Limits of Deliberative democracy in the Diversity of its Voices. Political Studies 59, 527-546.
- Organisation for Economic Cooperation and Development (2020). Innovative Citizen Participation and New Democratic Institutions: Catching the Deliberative Wave. OECD Publishing. https://doi.org/10.1787/339306da-en
DOI : 10.1787/339306da-en - Pettit, P. (2013). On the People’s Terms: a Republican Theory and Model of Democracy. Cambridge University Press.
- Putterman, E. (2001). Realism and Reform in Rousseau’s Constitutional Projects for Corsica and Poland. Political Studies 49, 481-494
DOI : 10.1111/1467-9248.00322 - Rawls, J. (1996). Political Liberalism. Columbia University Press.
- Remer, G. (1999). Political Oratory and Conversation: Cicero versus Deliberative Democracy. Political Theory 27, 39-64.
DOI : 10.1177/0090591799027001003 - Remer, G. (2000). Two Models of Deliberation: Oratory and Conversation in Ratifying the Constitution. The Journal of Political Philosophy 8, 68-90
- Robert, J. (2011). Rawls and Rousseau: amour-propre and the strains of commitment. Res Publica 17, 245-60.
- Rousseau, J.J. (1755/2008). Discours sur l’origine et les fondements de l’inégalité parmi les hommes. Flammarion.
- Rousseau, J.J. (1953 [1782]). Considerations on the Government of Poland. In Watkins F., Jean-Jacques Rousseau: Political Writings. Thomas Yelsen.
- Rousseau, J.J. (1988/1762). Du Contrat Social. Paris: ENAG.
- Topper, K. (2011). Arendt and Bourdieu between word and deed. Political Theory 39, 352-377.
DOI : 10.1177/0090591711400028 - Waldron, J. (2006). The Core of the Case Against Judicial Review. Yale Law Journal 115, 1346-1406.
DOI : 10.2307/20455656
Originally published by Revus 46 (10.31.2021) under the terms of an Open Access license.