A Natural Law Critique of Deliberative Democracy A
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SELF-CONTRADICTIONS AND MORALITY: A NATURAL LAW CRITIQUE OF DELIBERATIVE DEMOCRACY A Thesis Presented to the faculty of the College of Arts and Sciences of Ohio University In partial fulfillment of the requirements for the degree Master of Arts Robert W. Sidwell June 2007 Abstract Should democracy itself be a value worth striving for? If so, should it take precedence over other values? Is it possible to “add” democracy to a list of these other valuables and treat them all as equally good? Finally, how did the Framers of the United States Constitution view democracy, and why? This thesis seeks to answer these questions. It argues that theories of natural law, not deliberative or direct democracy, offer a level of theoretical precision and protection for human rights and freedoms that democracy cannot be safely trusted to do if it is without the guidance of such a law. This thesis utilizes such natural law theories as those of St. Thomas Aquinas and John Locke to critique deliberative democratic theories, and concludes that democracy has been seen as usually good, but never as an end-in-itself, and thus only as an instrumental end for fulfilling some other good. 3 Table of Contents Page Abstract............................................................................................................................... 2 Table of Contents................................................................................................................ 3 Introduction......................................................................................................................... 4 Chapter 1........................................................................................................................... 24 Chapter 2........................................................................................................................... 59 Charles Beard’s Conception: “Progressive” Democracy.............................................. 60 Benjamin Barber’s Conception: Deliberative Democracy ........................................... 65 Edmund Burke’s Conception: Very Limited Democracy............................................. 67 Constitutional Democracy: A General Definition ........................................................ 69 The American System................................................................................................... 75 The “Princeton School” ................................................................................................ 81 The “Constitutional Change” School............................................................................ 85 Conclusion: Implications of the Definitions of “Democracy”...................................... 94 Chapter 3........................................................................................................................... 98 Introduction: Constitutions, Laws, Democracy, and Justice......................................... 98 Deliberative Democratic Views: Justice Through Democracy................................... 102 Whittington’s Conception: Written, Concrete Constitutions Establish Justice .......... 123 The Natural Law Perspective: Only the Universal, Absolute Law Can Bring Justice127 Conclusion ...................................................................................................................... 135 Normative Conclusions............................................................................................... 135 Afterword: Research Notes......................................................................................... 144 Bibliography ................................................................................................................... 147 4 Introduction Democracy is a fascinating concept. It is simultaneously fought for and fought over, defined and redefined, praised and feared. Some say it is highly subjective; what may count as “democratic” for some people fails to satisfy others as “democratic”, and others insist that it does have a fixed set of criteria that a system must meet to be properly “democratic”. As has been noted by many authors, liberal democracy apparently triumphed over totalitarian communism in 1989-1991, and this victory has vastly accelerated the worldwide drive for democracy while also raising multiple questionsregarding the nature of “true” democracy.1 In the contemporary world, most people say they favor democracy, but we have a shared understanding of “democracy”? If we did, would we strive for it as an end-in-itself, or would we see any need to restrain it? While widespread disagreement prevails among those who attempt to define “democracy”, one broad consensual definition has emerged. Democracy is commonly defined literally, as the rule of the demos, or “people”.2 Problems and contentions arise, however, when scholars and legislators attempt to define “the people”. At one time, only white propertied Protestant males were fully considered “people”, and theirs was the only voice considered worthy of governing. Gradually, in the West, over the last two centuries, this narrow definition of “the people” has been extended, at least formally, to include all rational adults of both sexes and all races and creeds. Overall, we have seemingly determined who “the people” are. 1 Most notably, Francis Fukuyama declared that democracy had “triumphed” in 1989-1991. 2 See Aristotle, Politics, trans. Carnes Lord (Chicago: University of Chicago, 1984), Book 4, Chapters 3-4. 5 “The people” govern themselves via politics. As utilized in this thesis, politics refers to the various series of debates, discussions, bargains, compromises, and even threats that take place in the human condition, especially in relation to matters of physical human governance. Humans interact, discuss their preferences, and, in a democratic system, vote according to their beliefs. This thesis fully subscribes to the idea that politics is an inherently normative practice; one’s values play an integral role in determining the fashion and motives behind one’s participation in politics. In politics, discussion and debate are key. As an abstract concept under the natural law position taken here, politics is value-neutral, since these discussions are seen as helping to frame one’s values, and never ultimately to create them. Ultimately, one is responsible for one’s own actions and beliefs, and humans bring these beliefs into politics where these discussions and compromises help to shape them further.3 However, when one turns to the problem of how “the people” should rule themselves, considerable dissent emerges. Can the people govern themselves directly, discussing and voting on all of the pressing or most important issues of their governance, or should such tasks be left to representatives chosen by the people according to set rules and procedures, and who are bound to speak for and in place of the people?4 In democracy’s historical birthplace, classical Greece, the former approach was tried, while in the modern era, representative democracy has been the norm. The institutions of this 3 Definitions of politics are hard to locate within natural law theories; the above definition draws upon those of Stephen Griffin and Ian Shapiro. See also Ibid, Book 1, Chapter 2, 1253a1-a40. 4 There are also disputes regarding how “bounded” representatives should be to honor their constituents’ wishes even when doing so would violate their better judgment; for opposing views on the appropriateness of such arrangements, see Edmund Burke, Reflections on the Revolution in France, and Jon Elster, “Deliberation and Constitution-Making, in Jon Elster (ed.), Deliberative Democracy (Cambridge, UK: Cambridge University, 1998), 97-122. 6 representative democracy have been constructed for the purpose of limiting the direct rule of the people over themselves, as direct democracy has been deemed impracticable and even dangerous. As this thesis will demonstrate, such fears have considerable normative merit. As for the Enlightenment thinkers who “refounded” democracy in the modern era, the most prominent of them, John Locke, firmly supported a representative government governed by a “social contact”, or constitution. Locke felt that the political life of man was actually contrary to his nature; he was freest without government, or failing that, living under as limited a government as possible. Accordingly, he prescribed a small, democratically-elected government whose job it was to enforce the natural law, and very little else. Its mandates were not to be considered as equal to the commands either of Christianity or the natural law, and it was not to impose its will on the private lives of the people contrary to these laws.5 For this reason, the natural law perspective favors the establishment and maintenance of various constitutional and extraconstitutional safeguards to protect its preexistent values and morals against “too much democracy”. Since the time of Locke, others have arisen to defend the idea of natural law; perhaps the best-known was Dr. Martin Luther King, Jr. In his 1963 “Letter From a Birmingham Jail”, King spelled out his basic philosophy for his fellow Protestant clergy, and for his followers at large.6 King insisted that a higher law than man-made statutes or even constitutions existed, the natural law installed by God Himself. He then argued that 5 John Locke, Second Treatise of Civil Government. See also Chapter 1. 6 This is partially reprinted in Robert L. Hayman, Jr., Nancy Levit, and Richard Delgado,