Liberal Democracy and the Critical Alternative

CHAPTER 1

Liberal Democracy and the CriticalAlternative

My exploration of how the theory of democracy might look in thewake of the deliberative turn begins with an examination of thesources of that turn. The story has two starting points: in liberal con-stitutionalism (which turns out to be mostly from and about theUnited States), and critical theory. While these two frameworks oncerepresented sharply different outlooks on the world of politics anddemocracy, they have recently met—on mostly liberal terms. I arguethat there are good reasons to lament this convergence, especiallygiven that its terms connote a blunting of the critical edge of delibera-tive democracy. I try to retrieve this critical edge by renewing the dis-tinction between liberal constitutionalist and discursive strands ofdeliberative democracy. Deliberative democracy should involve a con-tinued quest for democratic authenticity, rather than easy accommod-ation with the prevailing liberal political economy.

By authenticity I mean the degree to which democratic control isengaged through communication that encourages reflection uponpreferences without coercion. As I pointed out in the Introduction,this condition is met to the degree that domination via the exercise ofpower, manipulation, indoctrination, propaganda, deception, expres-sions of mere self-interest, threats, and the imposition of ideologicalconformity are all absent. These distorting agents will diminish to theextent of equality in deliberative competence across political actors.Towards the end of this chapter I will link these authenticity condi-tions to the critical theory of democracy, and so discursive democracy,demonstrating the need to resist the embrace of liberal constitutional-ism.

Deliberative Democracy in Liberal Constitutionalism

As befits the most pervasive political force of the modern era, liberal-ism comes in many varieties. But at its core is a common doctrinebased on the assumption that individuals are mostly motivated by self-interest rather than any conception of the common good, and thatthey themselves are the best judges of what this self-interest entails.When the interests of different individuals cannot be reconciled totheir mutual benefit through operation of the market economy, pol-itics comes into play. Liberal politics is therefore mostly and properlyabout the reconciliation and aggregation of predetermined interestsunder the auspices of a neutral set of rules: that is, a constitution. Afear that self-interested individuals, even if they are in the majority,may turn public power to private advantage then necessitates a set ofconstitutional rights to protect individuals against government, andagainst each other. These rights come with corresponding obligationsto respect the rights of others and duties toward the government thatsecures rights.

Liberalism so defined is actually silent on the issue of democracy.Some liberals, especially those with unlimited faith in the market andunlimited scepticism about government, are not democrats of anysort, stressing the protection of freedom against oppressive democra-tic majorities. Such protection can be achieved through legal means; itdoes not have to matter whether or not the laws in question are demo-cratically determined. Historically, the rise of liberalism preceded therise of modern democracy. Liberals until the early twentieth centurygenerally regarded democracy with unease, fearing that untutored andunrestrained masses would show little respect for liberal rights andconstitutional niceties. The most democratic of nineteenth-centuryliberals, John Stuart Mill, is also associated with the overwhelmingneed to protect individuals against the ‘tyranny of the majority’. Infact, Mill anticipated an uneasy relationship between liberalism anddeliberative democracy: he sought to promote more expanded andinformed public debate, but at the same time wanted to contain it and prevent it from upsetting the rationality of government (Mill, 1962[1835]). Mill can be interpreted as the grandfather of contemporaryliberal constitutionalist deliberative democracy, the contradictions ofwhich can already be discerned in his writings.

It is only in the twentieth century that liberalism and democracyreally reached an accommodation, such that ‘liberal democracy’ couldfall easily from the lips, and indeed become by century’s end theworld’s dominant political ideology. Yet still liberal democracy

Liberal Democracy 9

remained only a rough compromise between two different sets ofprinciples. Political theorists still have trouble deducing a set of liberaldemocratic principles from a common set of premises, even as liberaldemocracy in practice flourishes as never before. (Elsewhere—Dryzek1996a—I have argued that there is little point in trying to finalize thedetails of any model of democracy; but many liberal political theoristsbelieve deductions from philosophical foundations to models ofdemocracy are important.)

At first sight, a deliberative conception of democracy would seemby definition irreconcilable to a liberal version of democracy. Fordeliberative democracy by definition is open to preference transfor-mation within political interaction, while liberal democracy by defin-ition deals only in the reconciliation and aggregation of preferencesdefined prior to political interaction (Miller, 1992, and Warren, 1992,are among those who emphasize this distinction). Yet liberalism is aflexible doctrine, and as we will see some liberals now allow that thereare circumstances in which individuals can be open to deliberative per-suasion, even if this does involve considerable softening of what waslong thought to be a part of liberalism’s hard core. Thus a deliberativeconception of democracy turns out to facilitate a more effective re-conciliation of liberal and democratic principles—in connection,moreover, with the specifically constitutional aspects of liberalismlong thought most resistant to democracy. Of course, the mere factthat deliberative democracy helps solve some problems for liberalswould be insufficient reason to endorse it. But liberal deliberativedemocrats argue that the resultant political theory is both intrinsicallyattractive and attuned to key features of this liberal, democratic, andculturally plural age.

There are three analytically distinct, but practically reinforcing,ways in which the idea of deliberation can be deployed to develop atight connection between liberalism and democracy; and so three waysin which deliberative democracy can be assimilated to liberalism. Theyare as follows.

1. Deliberative Principles Justify Liberal Rights

Liberal democrats by definition believe in popular control and indi-vidual rights. Of course, these two principles are often in tension,because democratic majorities can easily decide not to respect particu-lar rights, especially those of unpopular minorities. Liberal delibera-tive democrats can help resolve this tension by arguing that there aresome basic rights that must be respected, namely those necessary for

10 Liberal Democracy

the effective exercise of democratic citizenship, and so for deliberativedemocracy itself. These rights would include those to free expressionand association, and to a basic education, perhaps even a certain levelof material well-being.

Deliberation by definition specifies that individuals must commun-icate about collective decisions in terms that are capable of reflectiveacceptance on the part of those subject to the decision. At first sightthis characteristic might suggest that deliberation is incompatible withthe liberal account of politics as the pursuit, interaction, and aggrega-tion of interests defined in advance and privately by individuals.However, this politics of private interests requires some kind of insti-tutional framework. When it comes to making decisions about thisframework itself, some liberals, notably Rawls (1993), argue that ‘pub-lic reason’ should filter political arguments, which can be couchedonly in terms of interests based on the common humanity of free andequal citizens. Rawls himself promotes public reason only in the con-text of a specified range of issues—concerning the content of the con-stitution and questions of ‘basic justice’.

Other deliberative democrats, notably Joshua Cohen (1996), seekbroader application of this kind of reasoning. Claus Offe (1997) wouldclassify this more expansive view as a species of ‘left-liberalism’ thatdeparts from the assumption of liberalism proper (or what Offe calls,departing a bit from standard usage, ‘libertarianism’) that preferencesare rightly determined prior to political interaction, and do not changein the context of interaction. Cohen attempts to derive the main rightsand equalities central to liberalism through reference to the idea of‘free public reasoning among equals’ (p. 99), under which ‘participantsregard one another as equals; they aim to defend and criticize institu-tions and programs in terms of considerations that others have reasonto accept’ (p. 100). Cohen, like Rawls, accepts that ‘reasonable plural-ism’ means that arguments that persuade like-minded individuals (forexample, members of the same religion) will not be persuasive to allmembers of society, which gives force to the need to couch argumentsin terms differently-minded individuals (such as members of a differ-ent religion) can accept.

The direct implications of public reasoning so conceived begin withfreedom of expression, simply as a matter of respect for ‘reasonablepluralism’ and the equal deliberative standing of those with whom onedisagrees (Cohen, 1996, p. 105). Religious freedom follows becausereligious reasons cannot count as public reasons. These commitmentsare therefore immune to public reason, and so properly off-limitswhen it comes to public policy (p. 103). Political equality, in the form

Liberal Democracy 11

of equal political rights, follows because it is impossible to argue interms compelling to all that some should have fewer political rights(pp. 106–7). In short, Cohen argues that deliberative democracyrequires commitments to a set of substantive political principles, manyof which turn out to be those traditionally valued by liberals. Yet hisbroad view of deliberation’s domain fits uneasily with liberalism’s coretenet that ordinary (as opposed to constitutional) politics is mostlyabout the pursuit and aggregation of predefined interests. Cohen’sargument does not begin from liberalism’s hard core of principles;rather, his achievement is to derive some (but not all) liberal principlesfrom a starting point in democracy. Thus it is perhaps not surprisingthat some liberal principles—notably the idea that politics is mostlyabout the aggregation of predefined interests—are not reached by hisargument.

2. Liberal Constitutions Promote Deliberation

A basic liberal argument is that constitutions are necessary first andforemost to enable individuals to enjoy a private life immune frompublic invasion, though of course constitutions also set up the institu-tions of government. A deliberative interpretation of the liberal con-stitution emphasizes instead its role in the creation of a public realmfor deliberation. This realm is composed in part of institutions of gov-ernment, notably courts and legislatures, which are treated as effective,rational, and legitimate only to the extent they incorporate authenticdeliberation. But this realm also encompasses informal processes ofpublic debate to which larger publics can be admitted.

To begin with legislatures, Rawls (1997, p. 772) specifies ‘a frame-work of constitutional democratic institutions that specifies the set-ting for deliberative legislative bodies’ as one of the ‘three essentialelements of deliberative democracy’ (the other two are public reasonand ‘the knowledge and desire on the part of citizens generally to fol-low public reason’). The term deliberative democracy was first used byJoseph Bessette (1980) in the context of an interpretation of the UnitedStates constitution as a set of principles to ensure effective publicdeliberation, especially within Congress. For the most part Bessettebelieves that Congress measures up to the deliberative task, though healso recognizes and laments departures from the ideal. Obviously thisis not the only way this particular liberal constitution can be inter-preted. Other interpretations highlight particular specifications ofpolitical authority, obligations, and, as I have noted, individual rightsfor the sake of protecting private life. Bessette expands his argument


about Congress in his book The Mild Voice of Reason (Bessette, 1994).(This title should start alarm bells ringing among those who think thatmild reason is necessarily conservative, such that we should seek moreunruly alternatives to it. I will address this issue at length in Chapter3.) In a rare non-American contribution to this genre, John Uhr (1998)too emphasizes the legislature, applying deliberative principles toreform of the Australian parliament.

Deliberation within liberal institutions has also been highlighted bydeliberative scholars of a legal bent. In this light, decision makingunder constitutional law is not merely the application of categoricaljudgement in applying general rules and rights to particular cases, ordeciding what to do when rules and rights conflict. Instead, delibera-tion about the meaning and applicability of rules is central. Whatrights mean in particular cases has to be the subject of deliberation, beit in a parliamentary assembly, a court, or in more wide-ranging polit-ical debate. For rights only have real force if they are given reflectiveacceptance by the citizens who both take advantage of these rights forthemselves and respect these rights as held by others.

Such deliberation can occur within panels of judges, such as theUnited States Supreme Court (which Rawls, 1993, p. 231, among others, regards as the exemplary deliberative institution), and withinjuries. It can even be found in adversarial encounters of lawyers, in thecourtroom or outside. Adversarial encounters are largely strategic inthat the goal is to out-manoeuvre one’s opponent within the con-straints of formal rules (as opposed to principles of free discourse) inthe interests of a pre-established position. However, those with aninterest in presenting the truth about a case also have an incentive toprove it and convince judge, jury, and onlookers.

Constitutional promotion of deliberation within a larger publicrealm is highlighted by a leading deliberative democrat among consti-tutional lawyers, Cass Sunstein, who goes so far as to define delibera-tive democracy in terms of constitutionalism (Sunstein, 1997, pp.94–5). Sunstein interprets the United States Constitution in itsentirety, rather than its legal order in particular, as a device for the pro-tection and promotion of generalized political deliberation across thepolity as a whole, not only (or even primarily) the court system(Sunstein, 1993a). Michael Walzer (1991) argues in similar spirit thatthe deliberative function of the United States Constitution lies not inthe opportunities it specifies for deliberation within governmentalstructures (be it courts or Congress), but rather the broader publicrealm which it protects. For Walzer, the Bill of Rights is the crucialdocument that makes possible a vibrant civil society of associational


life where debate can proceed on public issues of all sorts. NeitherSunstein nor Walzer is a liberal; but it is easy to see how their argu-ments could be adopted by liberal deliberative democrats.

3. Constitution-Making is Itself a Deliberative Process

Some liberal deliberative democrats believe that deliberation shouldorient and pervade all institutions at all times. Other liberal scholarsbelieve that deliberation is essential, but wish to restrict it to particu-lar kinds of occasions: especially constitution-making ones (seeEstlund, 1993). Here liberal democrats differ from their less democra-tic liberal kin, who have treated constitutions and (in particular) theirembodied rights as a matter for specification informed only by moraland legal philosophy, not the popular will. Among constitutionalistliberal democrats, Bruce Ackerman (1991) in We the People treatsdebates such as those attending the writing and adoption of the UnitedStates Constitution as exemplars of deliberative democracy in action.But he also believes that the capacity to deliberate is a scarce resource,so reasons of economy dictate that most issues and occasions cannotand should not receive this sort of treatment. Only great crises of thestate such as the Constitutional Founding, the Great Depression andthe Civil War (in particular its associated constitutional amendments)could and did bring forth deliberation by the American people, asopposed to their government. One might question here whatAckerman means by ‘the people’—he certainly does not mean all thepeople, or perhaps even very many of them. (I hope he doesn’t mean‘people like me’.)

Deliberative democracy’s place at the heart of liberal constitutionalthinking has been confirmed by the announcement of liberalism’sleading thinker, John Rawls, that his idea of ‘a well-ordered constitu-tional democracy’ should be ‘understood also as a deliberative democ-racy’ (Rawls, 1997, pp. 771–2). For Rawls (1993), as for Ackerman,deliberation is not to be the normal mode of governmental decision-making. To Rawls, deliberation guided by public reason should onlybe about constitutional affairs, and about legislation inasmuch as itaffects matters of the constitution and what he calls ‘basic justice’.Basic justice refers to equality of opportunity and the distribution ofmaterial goods. Applying public reason, ‘citizens are to conduct theirfundamental discussions within a framework of what each regards asa political conception of justice based on values that the others can reasonably be expected to endorse’ (Rawls, 1993, p. 226). The productis ‘a constitution, the essentials of which all citizens as free and equal


citizens may be reasonably expected to endorse in light of principlesand ideals acceptable to their common human reason’ (1993, p. 137).

Benhabib (1996b, p. 75) among others points out that public reasonis for Rawls first and foremost an ideal for the content of argumentsmade by individual citizens or their representatives. Arguments mustbe couched in terms capable of acceptance by all members of thepolity, ruling out both material self-interest and partial worldviews asreasons and motives. Rawls downplays the social or interactive aspectof deliberation, meaning that public reason can be undertaken by thesolitary thinker. This is deliberation of a sort—but only in terms of theweighing of arguments in the mind, not testing them in real politicalinteraction. Moreover, there is in Rawls no particular reason to extenddeliberation from personal reflection to political interaction. For inspecifying that public reason adduces only arguments in terms that allindividuals can be expected to accept, Rawls implies that all indi-viduals will reason in the same way, and must ultimately reach thesame conclusions. Rawlsian public reason is singular, and producesconsensus. Given that reason is singular, no interactive process is nec-essary to enable it to produce its conclusions.

Now, Rawls does believe that one of the three essentials of deliber-ative democracy (beyond public reason itself and a constitutionalframework) is ‘knowledge and desire on the part of citizens generallyto follow public reason and to realize its ideals in their political con-duct’, which in turn requires ‘public occasions of orderly and seriousdiscussion of fundamental questions and issues of public policy’ (1997,p. 772). Yet these occasions provide only expressive opportunities; forRawls, there is nothing endogenous to interactions that induces indi-viduals to reason and behave according to the precepts of public reason. Public reason is a set of commitments that individuals mustadopt before they enter the public arena, not what they will be inducedto discover once they are there.

The right conclusions can, then, be discovered by any reflectiveindividual; and who better to reflect, and to set aside material self-interest and sectarian argument, than the professional politicalphilosopher or legal theorist? Rawls himself does not shrink fromspecifying in great detail the constitutional arrangements to which hebelieves the exercise of public reason must point. And he regards theUnited States Supreme Court as an exemplary deliberative body, thebest and proper home for public reason in the US polity (Rawls, 1993,p. 231). The Court is hardly a democratic body (it is accountable tonobody), nor is it really a deliberative one in the interactive sense. Butits members are professional experts in the exercise of public reason,


which they follow in personal reflection. In short, and his self-descrip-tion notwithstanding, Rawls is a deliberative democrat in a very thinsense. This is not to gainsay the important influence that Rawlsiannotions of public reason have in thinking about deliberative demo-cracy, even if they must be detached from Rawls’s own anti-social—and so anti-political—approach to deliberation.

Having surveyed three ways to link deliberative democracy and liberalconstitutionalism, it should be stressed that these links are not mutu-ally exclusive alternatives. There is at first sight a slight inconsistencybetween the first and the third: for if the very idea of deliberationrequires a specific set of liberal rights, as the first linkage suggests, howcan we subject the content of these rights to deliberation, as the thirdlinkage mandates? This apparent problem may be less severe in prac-tice than it appears in theory, for constitution-makers could deliberateabout what (say) freedom of expression means, and the best way ofprotecting it, even though they could not contemplate dispensing with rights to protect freedom of expression altogether. If Cohen iscorrect that the very idea of deliberation requires such rights, then anyparticipant in constitution-making could only argue against them byengaging in a performative contradiction.

This minor difficulty aside, there is nothing to prevent liberal delib-erative democrats combining all three of these linkages. For example,the liberal schools of thought that emphasize, respectively, delibera-tion within constitutional structure and deliberation about constitu-tional structure (links 2 and 3) are united in the hands of AmyGutmann and Dennis Thompson (1996), who also believe that partic-ular liberal principles can be derived from deliberative precepts (link1). Gutmann and Thompson explicitly call for deliberation to proceedunder constitutional arrangements that are themselves constructed bydeliberative means (1996, p. 200). When it comes to the first kind oflink, Gutmann and Thompson specify the degree of liberty necessaryfor individuals to be effective deliberators—echoing Cohen’s deriva-tion of particular freedoms from the idea of deliberation. More con-troversially from the liberal point of view, they argue for welfare statearrangements that would guarantee the basic material needs that individuals must have met before they can participate effectively indeliberative politics. The welfare state can also equalize material con-ditions for deliberators.

Gutmann and Thompson also believe in a set of ideals that resembleRawlsian public reason. These are the foundational principles of delib-erative democracy: reciprocity, or ‘the capacity to seek fair terms of


social cooperation for their own sake’ (pp. 52–3); publicity; andaccountability, to constituents and other citizens, to citizens of otherpolitical systems, and to future generations. The principle of recipro-city rules out sectarian arguments; also banned are arguments that vio-late principles of human integrity and political equality. However,Gutmann and Thompson depart from Rawlsian public reason in thatthey do not believe that argument should be confined to what is in thecommon interest of all. Rather, deliberators should endeavour to makearguments that are intelligible in the terms of partial views (such asreligious doctrines) which they do not themselves share. The productwill not generally be consensus, but it may be mutual respect and amodus vivendi (thus providing an effective response to critics such asFemia, 1996, pp. 378–80 who mistakenly believe that deliberationmust culminate in a ‘unified public will’).

Gutmann and Thompson have a particularly expansive view ofdeliberation’s liberal domain, believing that all political issues that fea-ture deep moral disagreement should be treated through deliberation.They do not expect deliberation to produce consensus, but they doexpect it to yield understanding and mutual respect, thus making evendeep moral conflicts on issues such as abortion more tractable. In thehands of Gutmann and Thompson, deliberative democracy begins tolook like a complete political theory.

The Limits of Liberalism

At one level it is hard to object to these liberal deployments of delib-erative democracy, as they promise to make democracy within (andoccasionally about) constitutional structure more authentic. However,there are a number of hard questions that can be pressed against theliberal constitutionalist account of deliberation. First, constitutionalstructure does not fully determine the kinds of politics that occurs inany system. It is widely observed that the constitution of the UnitedStates facilitates pluralist politics, in which interest groups have a widerange of points of access to the political system. Liberal deliberativedemocrats accept that the reality has often fallen short—for example,in the long exclusion of African-Americans from effective participa-tion. But they believe that such shortcomings can themselves be reme-died by constitutional amendment, or by legislation (such as theVoting Rights Act) or by court decisions (such as the famous 1954Brown vs. Board of Education decision that overturned the ‘separatebut equal’ doctrine). Yet some such inequalities and exclusions cannot


be remedied by constitutional means: in particular, inequality betweenthe voice of business and the voices of everybody else (not just labour).Business inevitably holds what Lindblom (1977) calls a ‘privileged’position in policy deliberation because government relies on corpora-tions to carry out essential tasks in organizing the economy, withoutwhich government itself could not function.

Constitutional structures are not, then, the only forces that orderdeliberation in the liberal polity. Also important are material forcesand discourses (often intertwined). The material forces mostlyemanate from the capitalist political economy in which the liberal stateis embedded. Discourses matter too. A discourse is a shared means ofmaking sense of the world embedded in language. Any discourse willalways be grounded in assumptions, judgements, contentions, dis-positions, and capabilities. These shared terms of reference enablethose who subscribe to a particular discourse to perceive and compilebits of sensory information into coherent stories or accounts that canbe communicated in intersubjectively meaningful ways. Thus a dis-course will generally revolve around a central storyline, containingopinions about both facts and values.

Whereas formal rules of the kind that constitutionalists stress constitute institutional hardware, discourses constitute institutionalsoftware. The software is important: this is why, for example, whenWestminster-style constitutions were parachuted into former Britishcolonies in Africa, the politics they hosted proved vastly differentfrom what happened in Westminster itself.

Discourses can be bound up with material forces. For example,material economic constraints on politics now make themselves feltthrough the discourse of market liberalism. A competing discourse ofecological modernization enables (moderate) environmentalists to takea more equal place in the policy-making forum from which they aregenerally excluded by market liberalism. The reason is that ecologicalmodernization ties environmental conservation to business profitabil-ity. Other things being equal, a polity where ecological modernizationis strong will have more authentic deliberation within governmentalstructures than one where market liberalism dominates—even if theconstitutional rules are identical. In subsequent chapters I will arguethat the contestation of discourses is a vital part of deliberative demo-cracy, but that this contestation cannot be confined to liberal constitu-tional structure. Discourses can be both constraining and enabling, butone cannot wish them away. Critics of particular discourses (for exam-ple, Michel Foucault in his classic works on criminality, mental health,and sexuality) often emphasize the constraints.


There are other agents of constraint and distortion generally unap-preciated by liberal constitutionalists. Social choice theorists, to bedealt with in Chapter 2, have called into question the possibility of thevoting mechanisms that are central to aggregative democracy ever pro-ducing stable and non-arbitrary results. Difference democrats, whowill appear in Chapter 3, have criticized supposedly neutral liberalpremises about access to argument on the grounds that in reality thesepremises exclude the voices of particular individuals and groups.Those so excluded are generally on the margins of society to beginwith, and they do not fit the liberal paradigm of personhood, or fit lib-eral assumptions about what kind of communication is reasonable.

Sometimes extra-constitutional forces can constitute a de factopolity sharply at variance with constitutional appearances. For exam-ple, corporatism, defined as co-operative policy-making among gov-ernment officials (normally from the executive branch) along withleaders of business and labour federations, has nowhere been legislatedinto existence. Yet it captures the reality of policy-making in a numberof countries, such as Austria, the Netherlands, and Sweden, whereparliamentary democracy has often proved to be a sideshow.Corporatism is secretive and exclusive, and as such likely to horrifyliberal constitutionalists. However, as I will argue in Chapter 4, thereare times when this very exclusiveness can actually benefit the deliber-ative democratic well-being of the polity as a whole, if not the stateitself (which is only part of the polity). Thus what seems like an alto-gether worthy bias to inclusion on the part of liberal constitutionalismturns out to be suspect in practice.

Finally, liberal constitutionalism is largely silent on what should bedone when control over important policy issues eludes nation-states.A liberal approach to transnational democratization is conceivable,but, I will argue in Chapter 5, insensitive to the relative weight of theforces that order international politics. Government of the kindfavoured by liberals is extraordinarily weak in the global polity, whichmeans that alternative discursive sources of order are especiallyimportant therein. The possibility of democratizing these discursivesources of order resonates with the importance to deliberative demo-cracy I accord to the contestation of discourses in civil society.

For all these reasons a complete assimilation of deliberative demo-cracy to liberal constitutionalism is undesirable. These criticisms of liberal constitutionalist deliberative democracy set the agenda for con-templation of what discursive democracy can and should entail. Whatother resources can be brought to bear in this quest? Let me now takea look at the other major theoretical source of deliberative democracy,


critical theory, in this light. As we will see, critical theory has lost itsway to the extent it has embraced liberalism, thus highlighting theneed to retrieve a truly critical deliberative democracy.

Critical Theory

So far my account has emphasized the liberal roots of deliberativedemocracy, and thus its accommodation with the constitutional orderof the liberal political system. The other major source lies outside lib-eralism, and so begins (though it turns out not to end) with an attitudeof deep scepticism concerning the possibilities for effective delibera-tion within the vicinity of the liberal state. This root comes from crit-ical theory. My introduction of the ‘state’ terminology here isdeliberate: liberals, especially US liberals, are more comfortable withterms such as ‘government’ or ‘the political system’ rather than ‘thestate’. The state may be defined in the first instance as the set of indi-viduals and organizations legally authorized to make binding de-cisions on behalf of a society. But those who use the concept, includingcritical theorists, are often attuned to the manifold constraints upon oropportunities for the state as an entity, as opposed to its componentparts. (In Chapter 4 I develop a more nuanced definition of the state interms of the imperatives to which public officials are often but notalways subject. In this light, the state is a particular zone of govern-ment subjected to these imperatives, not government in its entirety.)

In its broadest sense, critical theory is concerned with charting theprogressive emancipation of individuals and society from oppressiveforces. It follows that such forces are ideological contingencies ratherthan structural necessities (from which there is no escape).Emancipation follows understanding of these forces on the part ofthose at the receiving end, who come to understand both the contin-gent character of the forces in question and what might be done tocounteract them.

This brief characterization of critical theory might suggest that thekey difference between liberal and critical theories of democracy isthat the latter cannot accept the status quo to which the former is rec-onciled. But to put matters in these terms would be erroneous. For lib-eralism itself was once revolutionary—beginning, in a way, as a criticaltheory of feudalism and absolute monarchy. Bruce Ackerman (1992),for one, thinks liberalism can and should be revolutionary once again.Some critical theorists, for their part, came to accept oppressive forcesas so pervasive and immutable that in the end little or nothing worth-


while could be done to oppose them, save perhaps individual artisticexpression (see, notably, Adorno, 1973).

When it comes to contemporary political theory, and democratictheory in particular, the real difference is that liberalism operates onlyon the surface of the political economy. Liberal constitutionalists andcritical theorists alike can believe in distortion-free political dialogueas the essence of deliberative democracy (setting aside those liberalslike Rawls for whom deliberation does not have to involve actual dia-logue). Liberals are keen to devise constitutional and legal arrange-ments that will counteract distortion: bills of rights, freely-electedlegislatures, and so forth. Even Rawls (1997, p. 772) speaks of the needfor deliberation to be ‘set free from the curse of money’ through theremedy of public financing of election campaigns. What liberals fail torecognize is that getting constitutions and laws right is only half thebattle. They fail to recognize extra-constitutional agents of distortionthat cannot easily be counteracted through such means. These agentsinclude dominant discourses and ideologies, often intertwined withstructural economic forces. In today’s world, the most compelling ofsuch forces emanate from the transnational political economy, impos-ing severe constraints on what is possible in terms of both the contentof public policy and the degree of democracy that can be tolerated inthe state’s production of policy (see Dryzek, 1996 for a catalogue ofthese forces).

The critical theory of democracy is not just about the identificationof such forces and contemplation of what might be done to counteractthem. It is also concerned with the competence of citizens themselvesto recognize and oppose such forces, which can be promoted throughparticipation in authentically democratic politics. Liberals believeindividuals are left unchanged as a result of political participation;individuals possess preferences that are given, such that before, during,and after participation they are the best judges of their own interests.Critical theorists, in contrast, are among those who take the view thatdemocratic participation can transform individuals, who ideallybecome ‘more public-spirited, more tolerant, more knowledgeable,more attentive to the interests of others, and more probing of theirown interests’ (Warren, 1992, p. 8).

The major contemporary exponent of critical theory is JürgenHabermas, who has recently turned to the explication of a theory ofdeliberative democracy—though, as will become apparent, that theorydoes not quite fit the requirements of a critical theory of democracy as I have just outlined them. Habermas has long contemplated thesorts of reason that can operate in society since the Enlightenment,


distinguishing between instrumental rationality (the capacity todevise, select and effect good means to clarified and consistent ends)and communicative rationality (Habermas, 1984). Communicativeaction is oriented to understanding between individuals rather thansuccess in achieving predefined individual goals. Communicativerationality is found to the degree that communicative action is freefrom coercion, deception, self-deception, strategizing, and manipula-tion. Both forms of reason have their proper place in human affairs.The central problem of modern society to Habermas is that instru-mental rationality has invaded and conquered realms where it does notbelong, leading to the thorough scientization, bureaucratization, andcommercialization of social life and politics. Thus the full potential ofcommunicative rationality has not been realized.

The similarities between communicative rationality and the condi-tions of effective deliberation should be obvious, and so communica-tive rationality can be deployed to underwrite a deliberativeconception of democracy. It is a straightforward matter to apply thecomponents of communicative rationality as a set of criteria for delib-erative democratic authenticity (Dryzek, 1990a, esp. pp. 14–19),though Habermas himself did not at first move in this direction. Hedid develop the political implications of his theory of communicativeaction, but only so far as to distinguish between the ‘system’ and the‘lifeworld’ (see especially Habermas, 1987). The system is composedof society’s basic steering systems, notably the state and the economy.The lifeworld, in contrast, is where meanings are negotiated and iden-tities constructed by individuals; it is the home of communicativeaction.

Habermas was careful to relate the lifeworld and the potential forthe realization of communicative rationality not to the liberal (or anyother) state. Indeed, he treated the state as pretty much inevitablyunder the sway of instrumental rationality and system imperatives.Habermas looked instead to public spheres that consisted of politicalassociation and interaction separate from, and often confronting, thestate. Whereas the deliberative paradigm for many liberal constitu-tionalists is the American Founding, for Habermas the historicalexemplar is the early bourgeois European public sphere that flour-ished in the seventeenth and eighteenth centuries in opposition to thefeudal state from which the bourgeoisie was excluded (Habermas,1989). The early bourgeois public sphere consisted of conversations inmeeting places (including informal ones such as coffee houses),debates in newspapers, and political association. It declined along withthe commercialization of the press in the nineteenth century and the


entry of the bourgeoisie into the state that had once excluded them. Inaddition, expansion of the franchise meant that propaganda became anefficient political use of newspapers.

Contemporary parallels to the early bourgeois public sphere couldbe found in new social movements oriented to peace, ecology, fem-inism, and social justice, and which have often sought or been forcedinto confrontation rather than accommodation with the capitaliststate. Thus theorists of deliberative democracy influenced byHabermas (for example, Bohman, 1996, Dryzek, 1990a, and Fraser,1992) emphasized deliberation in public spheres. Some of them alsoshared Habermas’s tendency to notice only progressive movements,and ignore public spheres inhabited by (say) fundamentalist religiousmovements, nationalists, or anti-abortion groups. The public sphereas an empirical category encompasses the whole range of such move-ments, though both far-right militias and leftist groups that haveresorted to violence (such as the Red Army Fraction in Germany, orRed Brigades in Italy) can be excluded on analytical grounds becauseof their lack of any orientation to the state (other than to seek itsdestruction). Those who use the public sphere as a normative conceptshould be careful to apply critical standards to the public sphere noless than elsewhere, rather than assume that anything happeningtherein is by definition praiseworthy, defining out anything that isugly.

Public spheres can also be linked (in both theory and practice) to theincreasingly popular concept of civil society. Civil society remains acontested and sometimes murky concept (for a discussion of the con-cept’s importance in political theory, see Jean Cohen and AndrewArato, 1992). In the first instance, it is made up of all social interactionnot subsumed by the state or the economy. Private life is also normallyexcluded, though feminist critiques of the public/private distinctionmake this boundary less hard and fast. From the point of view ofdemocracy it is the political aspects of civil society that are most inter-esting. Martin Jänicke (1996) defines civil society in functional termsas public action in response to failure in either the state or the eco-nomy. Such activity can entail protest against and pressure upon stateactors; or it might involve ‘paragovernmental’ action directed at eco-nomic actors, bypassing government. An example of the latter wouldbe a consumer boycott organized to force a company to stop usingchild labour in its Third World factories.

The politicized aspects of civil society that constitute the publicsphere consist of voluntary political associations, whose basic orienta-tion is determined at least in part by the state’s activities. For example,


peace movements normally only take shape when the state is engagingin warlike activities, such as introducing new missile systems. Butthese associations in civil society are self-limiting in the sense that theyare not pursuing any share of state power (Isaac, 1993). Obviously anyemphasis on the public sphere and civil society opens major questionsabout the relationship of deliberation to public decision as made byand in the state, which I will address in subsequent chapters.

The danger involved in taking Habermas’s earlier approach to com-municative action and applying it in literal fashion to deliberative pol-itics is that we end up with a political theory that has little to say aboutpolitical structure—except to condemn it as an agent of distortion. Forunder communicative rationality—especially in its counterfactualextreme of the ‘ideal speech situation’—the only force that applies isthat of the better argument. Decision is ideally secured by consensus;implementation of the decision is secured only by the commitment ofthe individuals involved to the content of that consensus; and sub-sequent compliance relies on free consent. Such a sequence is not easilyrelated to real-world political institutions and processes, especiallythose in complex and plural societies.

By the time Habermas finally got around to writing his own theoryof democracy in Between Facts and Norms (Habermas 1996a; theGerman edition appeared in 1992) he was sensitive to these problems.Indeed, he criticized Joshua Cohen’s 1989 formulation for its inatten-tion to the pluralistic complexity of contemporary society and to thequestion of how deliberation might proceed within differentiatedpolitical structures (Habermas, 1996a, pp. 304–5). The theory ofdemocracy that appears in Between Facts and Norms departs substan-tially from earlier Habermasian abstractions about communication.While Habermas remains a critical theorist in principle, his reconcili-ation to a range of immutable facts about the modern world—the plu-ralistic complexity of society, the intransigence of political–economicstructure—means that his distance from liberal theorists of delibera-tive democracy is now harder to discern. At first glance, Habermas’sacceptance of an unyielding world suggests that he has followed thefootsteps of one of his foremost predecessors in the Frankfurt Schoolof critical theory, Adorno. But while Adorno turned his back on theworld, Habermas decided to try to make the best of it.

In Between Facts and Norms, Habermas retains an emphasis onpublic spheres and civil society, as they form the locus for the forma-tion of truly public opinion via communicative action. The kind ofadmissible discourse is now extended to include not just issues of truthand morality, but also pragmatic discourse about what should be done


in terms of translating consensus into binding decisions capable ofimplementation, and negotiations concerning what to do when valuesand interests irreducibly conflict. Habermas is also more attuned tothe complexity of contemporary societies, such that opinion forma-tion occurs in a variety of interacting publics. He speaks of diffuse‘subjectless communication’ to highlight his contrast with particip-atory models of democracy that proceed on a face-to-face basis insmall communities.

Despite many continuities with his earlier work, Habermas is nowmuch more concerned with how the communicative processes of civilsociety influence the legislative and policy processes of the state. Tobegin, the state should be structured so as to guarantee constitutionalsupport and protection to civil society—now treated in more pluralis-tic terms than before (so there is no unitary republican conception of‘the people’ deciding on one common set of ends). Such protection isensured first and foremost by a set of human rights inscribed in law.Thus law is treated as the main prop for moral and political discourse,not just the force for social control which an earlier Habermas wouldhave stressed. Here Habermas sounds much like the American consti-tutional theorists I discussed earlier. He highlights ‘judicial discourse’concerning how to put collective decisions into legal practice in a waythat does not conflict with established rights and other policy pro-grammes.

Habermas addresses the issue of how public opinion can influencethe policy practice of the state, no longer treated in obtuse terms. Heframes the issue as the translation of the ‘communicative power’ gen-erated in the public sphere into the ‘administrative power’ of the state.‘Communicative power is exercised in the manner of a siege.’ But thesiege is self-limiting: ‘it influences the premises of judgment and de-cision making in the political system without intending to conquer thesystem itself’ (Habermas, 1996a, pp. 486–7). Habermas accepts keyaspects of that system, notably elections, law-making by legislatures,and lawful administrative implementation of policy. Indeed, he makesthese aspects central to his democratic theory. As he puts it, ‘Informalpublic opinion-formation generates “influence”; influence is trans-formed into “communicative power” through the channels of politicalelections; and communicative power is again transformed into“administrative power” through legislation’ (Habermas, 1996b, p. 28).

These views would be regarded as old-fashioned by many politicalscientists (if not constitutional lawyers): that law-making constitutesthe only rightful mechanism for transforming public opinion intoadministrative decision. Setting aside the public sphere, Habermas’s


normative theory of the state is virtually identical to that proposedlong ago by Theodore Lowi (1969) under the rubric of ‘juridicaldemocracy.’ Lowi was widely criticized at the time for proposing anaïve, civics-textbook version of democracy as an antidote to the illsof interest-group domination of US politics and administration.

Habermas’s emphasis on elections as the main channel of influencefrom the public sphere to the state would also strike many political sci-entists as old-fashioned. What are we to make of the multiple channelsof influence that for better or worse do not involve elections—such asprotests, demonstrations, boycotts, information campaigns, mediaevents, lobbying, financial inducements, economic threats, and soforth?

Just because a normative theory is old-fashioned does not mean thatit is wrong. However, when the theory appears old-fashioned pre-cisely because it does not square with the empirical realities that are itsalleged justification, perhaps something deeper is amiss. Here I thinkHabermas falls prey to a familiar, indeed near-universal, tendencyamong political theorists: to treat empirical reality in terms of a fewstylized facts, rather than attending seriously to the findings of empir-ical political science (see Gunnell, 1986 on the more general alienationof political theory).

Habermas’s democratic theory differs from republican theories inits denial of any undifferentiated popular sovereignty. It differs fromcommunitarian theories in its rejection of the need for any pre-exist-ing community and associated tradition that must impose boundarieson the content of deliberation. And unlike many liberal theorists, hedoes not accord primacy to rights for the sake only of their bearers—but rather for the sake of securing a space for deliberation. Also unlikemost liberals, he does not see ordinary (as opposed to constitutional)politics in terms of the reconciliation and aggregation of interestsdefined privately, for Habermas recognizes too the need for solidarityto be generated through politics. And he regards debate in the legisla-ture as less important than the more diffuse formation of public opinion.

These differences notwithstanding, it is not hard to discern inHabermas’s model of law and democracy an accommodation with keytenets of liberal constitutionalism, especially as interpreted by the lib-eral American deliberative democrats. There is no sense that theadministrative state, or economy, should be democratized any further.All that matters is that they be steered by law, itself democraticallyinfluenced. Habermas has turned his back on extra-constitutionalagents of both democratic influence and democratic distortion. Earlier


I distinguished the critical theory of democracy precisely in terms ofits attention to such extra-constitutional aspects. If this distinctionholds, then Habermas’s democratic theory is no longer a true criticaltheory of democracy. The administrative state and its legal systemacquire easy legitimacy that was denied in earlier formulations of crit-ical theory, including Habermas’s own. Perhaps this shows, onceagain, that liberalism is the most effective vacuum cleaner in the his-tory of political thought, capable of sucking up all the doctrines thatappear to challenge it, be they critical theory, environmentalism, fem-inism, or socialism. Some liberals, and some of those vacuumed up,might regard this capacity as a strength. I would argue in contrast thatit depletes political imagination of the critical distance necessary tothink about how dominant political institutions and practices mightbe changed for the better.

Retrieving the Critical Voice

The assimilation of deliberative democracy to liberal constitutional-ism has been strengthened by the seeming defection of Habermas andHabermasians such as Bohman (1998b). Yet there have always been anumber of advocates of the theory for whom liberal institutions—andespecially the contemporary liberal capitalist state—deserved more inthe way of critique than celebration. Theorists such as BenjaminBarber (1984), Seyla Benhabib (1996b), David Miller (1992), NancyFraser (1992), Habermas in his earlier work and myself (Dryzek,1990a) have contrasted the deliberative model to more entrenchedmodels and real-world practices. In particular, they have criticized thelimited aggregative account of democracy that appears in much liberaltheory and practice (what Barber would call ‘thin democracy’). Suchtheorists have sought either radical reform of the liberal state, to makeit more authentically deliberative, or the specification of alternativevenues where deliberation might be sought. These alternatives mightinclude civil society in confrontation with the state, or public spheres,or workplace democracy. Again, not all developments in publicspheres and civil society need to be endorsed (just as liberal democratsshould not endorse everything that happens within liberal govern-ments). The point is simply that from the point of view of democracythere are constraints on the state as a venue that do not apply to civilsociety.

Bohman (1998b) in a review essay celebrates the ‘coming of age’ ofdeliberative democracy in terms of the maturity of the field. On this


account, what began as a critical alternative to established liberaldemocratic practices has matured, to the point where it now sees theliberal institutions which it once rejected in favour of more participa-tory alternatives as themselves the proper home for deliberation.Bohman himself had until recently favoured an alternative home fordeliberation. As he had put it (1996, p. 241), ‘public reason is exercisednot by the state but primarily in the public sphere of free and equal citizens’.

Bohman’s characterization of this coming of age is actually a bitover-simplified. As I have already demonstrated, liberal constitution-alism had a very large presence in the theory of deliberative democracyfrom the very beginning, and so is not a recent arrival. In this light,‘maturity’ means really that the more radical aspect of discursivedemocracy has been gradually squeezed out. I will set aside the factthat a field of inquiry barely ten years old (at least in its contemporaryincarnation) seems a bit young to qualify for ‘maturity’.

There remains a rather large question about what this alleged mat-uration has accomplished. Burkean conservatives would have no prob-lem here: mature judgement involves reconciliation with the statusquo that youthful zeal finds it all too easy to reject. Bohman is no con-servative, but in the end comes up with no better defense of thesedevelopments than a rhetorical invocation of ‘maturity’ and ‘comingof age’. It is hard to see how he could do better, given that the criticaledge that was once more pronounced in the deliberative democracyfield was never blunted by argument. The fact that no argument hasbeen carried (or so far as I know even attempted) against it means thatany celebration of the demise of the critical aspect is untrue to coreprinciples of deliberation, in which of course such matters should bedecided by argument rather than assumption, proclamation, or drift.

If I am correct in the contention with which I began, that the agendafor democratic theory is now set by the deliberative turn, and if delib-eration has been largely assimilated to liberal constitutionalism, thenthis loss of critical edge is very serious indeed, for two reasons.

The first concerns the character of democracy itself. Democracy isnot a static concept, whose essence could ever be decided once and forall. Rather, it is a dynamic and open-ended project. To seek a model ofdemocracy that is supposed to apply across all times and places, oreven to a limited range of particular times and places (such as the set ofcontemporary developed liberal democracies) is, I believe, pointless.The history of political theory is of course littered with such generalprescriptive models. What is striking about recent political theory,especially as it pertains to democracy, is the abandonment by some


leading figures of such generalized models in favour of theories thatspeak to or accept the ‘facts’ of the contemporary world. Be it Rawls’s‘fact of reasonable pluralism’ or Habermas’s complexity and differen-tiation, these facts enter political theory in stylized form, off-limits tocritical empirical analysis. I would suggest that rather than accept such‘facts’ at face value, those faithful to the democratic project shouldlook at the range of constraints and possibilities for furthering thatproject in particular times and places.

In this light, models of democracy are less interesting than processesof democratization. Democratization in this sense is not the spread ofliberal democracy to ever more corners of the world, but rather exten-sions along any one of three dimensions (Dryzek, 1996, pp. 5–6). Thefirst is franchise, expansion of the number of people capable of parti-cipating effectively in collective decision. The second is scope, bringingmore issues and areas of life potentially under democratic control(though a polity may deliberatively decide not to regulate particularissues). The third is the authenticity of the control (as defined at thebeginning of this chapter): to be real rather than symbolic, involvingthe effective participation of autonomous and competent actors.

It is on the third of these dimensions that deliberation can make itsspecial contribution. Liberal democrats might argue that there isplenty of scope for increased democratic authenticity within the con-fines of the liberal state; I would argue that there is not. For this stateis increasingly subject to the constraints imposed by the transnationalcapitalist political economy. The first task of all states in this system isto maintain the confidence of actual and potential investors, to avoidcapital flight. This imperative conditions policy-making, for democra-tic influence on policy-making introduces a dangerous element ofindeterminacy, and so becomes increasingly curtailed. Public officialsunder the sway of such imperatives are highly constrained when itcomes to the terms of the arguments they can accept; it is very hard fordeliberation to reach them. I have argued this point about the limits ofstate democratization elsewhere at length (see Dryzek 1996), and willrevisit the issue in subsequent chapters (especially Chapter 4).

If we give up on the pursuit of more authentic democracy, thendemocracy itself is impoverished. The deliberative turn promised tobring new energy to democratic development, and especially to thepursuit of democratic authenticity. If indeed it is accommodating itselftoo comfortably to the existing liberal state, then this promise is notbeing fulfilled.

The second reason to lament any loss of a critical edge is that itleaves deliberative democrats bereft of resources necessary to confront


both their critics and major challenges presented by the character oftoday’s world. In Chapters 2 and 3 I will show that effective replies tocriticisms made by social choice theorists, difference democrats, andpost-structuralist sceptics require the stronger and critical version ofdeliberative democracy which I develop and defend. I will argue inthese and subsequent chapters that a domesticated liberal constitu-tionalist and statist version of deliberative democracy is not wellequipped to respond to challenges presented by deep plurality and dif-ference in the political composition of society; by ecological crisis; byeconomic transnationalization and globalization. In short, for the sakeof both democratic theory and democratic development, it is vital thatthe critical voice in deliberative democracy be retrieved. This is theproject of discursive democracy.


Liberal Democracy and the Critical Alternative

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