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Democratic Legitimacy and the Politics of Rights

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Democratic Legitimacy and the Politics of Rights Democratic Legitimacy and the Politics of Rights A comparative analysis of the conceptual relationship between democracy and rights in contemporary political theories Iivi Anna Masso Academic dissertation To be publicly discussed, by due permission of the Faculty of Social Sciences at the University of Helsinki in auditorium XII, in the main building, Fabianinkatu 33, on the 6th of July, 2006, at 12.00. HELSINKI 2006 ISBN 952-92-0424-8 (paperback) ISBN 952-10-3189-1 (pdf: http://ethesis.helsinki.fi/) Helsinki University Press Helsinki, 2006 2 Abstract Democratic Legitimacy and the Politics of Rights is a research in normative political theory. It is based on comparative analysis of contemporary democratic theories, classified roughly as conventional liberal, deliberative democratic and radical democratic. Its central question of focus is the conceptual relationship between alternative sources of democratic legitimacy: the democratic values of participation, inclusion and equality on the one hand and the liberal politics of individual rights on the other hand. The relationship between rights and democracy is studied through the following questions: are rights to be seen as external constraints to democracy, or as objects of democratic deliberations and decision making processes? Are individual rights threatened by public participation in politics; or reversely, does a constitutionalist conception of rights limit the inclusiveness of democratic processes? Are liberal values such as individuality, autonomy and liberty; and democratic values such as equality, inclusion and popular sovereignty mutually conflictual or supportive? Following feminist and postmodern critique of liberal rights discourse, the dissertation also revives the question about the relevance of Enlightenment ideals in current political debates: are the universalist political norms that liberal democracy represents inherently dependent on the rationalist “grand narratives” of modernity and thus in conflict with the ideals of difference and diversity? The thesis is divided into three parts. Part I introduces the sources of democratic legitimacy as presented in the alternative models of democracy identified as conventional liberal, deliberative, and participatory or radical democratic. Part II analyses how the relationship between rights and democratic legitimacy is theorized in each of these models. Part III contains some major arguments posed by feminist and radical democratic theorists against the central tenets of universalist liberal democratic models, and responds to that critique by partly endorsing and partly rejecting it by arguing that while some versions of conventional liberal theory indeed rely on strong rationalist justificatory arguments that are hard to defend as genuinely democratic; the moral and legal universalism of political liberalism is not inseparable from such semi-metaphysical visions and is inherently connected to the notion of democratic inclusion, not opposed to it. The central argument promoted in the thesis is that while the deconstruction of modern rationalism indicates that rights are essentially political constructions as opposed to externally given moral constraints to politics, this insight does not delegitimize the politics of universal rights as an inherent part of democratic institutions. The research indicates; contra those conventional liberal as well as radical democratic theorists who conceive the tension between constitutionally protected rights and participatory democracy as an insoluble conflict; that democracy and universal individual rights are mutually interdependent and supportive rather than oppositional. Indeed, it shows that democracy is more dependent on an unconditional protection of universal individual rights when it is conceived in inclusive, participatory, agonistic and diversity-friendly terms and not just as robust majoritarian rule. Thus liberal rights are the sine qua non of genuinely inclusive democracy, constituting the necessary, even if not sufficient condition of deliberative and pluralist democratic politics. The central concepts used and analyzed in the thesis are liberalism, democracy, legitimacy, deliberation, participation, inclusion, equality, difference, diversity, conflict, public sphere, rights, individualism, universalism, contextuality and contingency. The thinkers whose democratic visions are central for the research are John Rawls, Ronald Dworkin, Jürgen Habermas, Seyla Benhabib, Iris Marion Young, Chantal Mouffe, Wendy Brown and Stephen Holmes. The research focuses mostly on contemporary political theory; but arguments from the more classical work of John Stuart Mill, Benjamin Constant, Isaiah Berlin and Hannah Arendt are also included, as they bring continuously relevant insights into the current discussions on democracy, legitimacy and rights. 3 Contents: Acknowledgements 6 Introduction 7 Part I: Alternative sources of democratic legitimacy: rights, deliberation, participation Introduction to part I 9 1. Conventional liberal model: rights and universal reason 12 1.1. The Rawlsian model: legitimacy by impartiality 14 1.2. Scanlon’s objective ideal of reasonableness 20 1.3. Equality of rights as basis for legitimacy 22 1.4. Arguments for the universality of reason 25 1.5. Public justice vs. private morality 28 2. Deliberative model: rational discourse and consensus 32 2.1. The democratic ideal of the deliberative model 34 2.2. The deliberation procedure 38 2.3. Universal moral conditions 41 2.4. Intersubjective rationality and the ideal of openness 43 2.5. Morality in Politics: blurring the distinction between the right and the good 45 3. Participatory models: agonistic democracy and identity politics 47 3.1. The agonistic ideal of politics 49 3.2. Young’s politics of diversity 55 3.3. The genealogical approach: subversion and deconstruction 58 3.4. Identity, agency and subversion in the legitimacy discourse 62 4. Is there a conflict between democracy and rights? 64 Part II: The tension between democratic values and individual rights Introduction to part II 68 1. The liberal argument: the threat of majority tyranny 72 1.1. Traditional liberal view: the fear of majority tyranny 73 1.2. Rawlsian political liberalism: the public Vs the political 79 1.3. Constitutionalism: defending democracy from itself 84 1.4. Internal critique of “apolitical” liberalism 89 2. The egalitarian argument: rights as privileges 97 2.1. Democratic critique of liberalism 100 2.2. Feminist critique of liberalism 106 2.3. Poststructural critique of rights discourse 112 2.4. Inclusiveness as a political ideal 116 4 3. Deliberative democracy: dissolving the tension 120 3.1. Universalism and the ideal of openness 122 3.2. Reconciling rights and democracy? 126 3.3. “Rules of the game” as justificatory criteria 129 3.4. Discursive morality and constitutionalism 134 4. Agonistic pluralism: politicizing the tension 138 4.1. The return of the political 140 4.2. Critique of deliberative rationality 145 4.3. Democracy as Conflict 150 4.4. Agonistic pluralism and the politics of rights 154 Part III: Rights in democratic politics Introduction to part III 162 1. Rights and Inclusion 163 1.1. More feminist discussion on rights talk 165 1.2. Injustices beyond legal remedy 172 1.3. Identity politics and its limits 178 1.4. Rights, recognition and diversity 188 1.5. Rights, inclusiveness and equality 192 2. The contextuality of rights 195 2.1. Liberalism and progressivist rationalism 198 2.2. The historical and political contingency of rights 201 2.3. Rights and contexts in liberal thought 204 2.4. Conflicts of rights 209 2.5. Rights and discursive power 215 2.6. Contingency and universalism 222 3. Politicizing rights discourse 230 3.1. The political nature of rights 232 3.2. Rights, individualism and humanism 238 3.3. Rights and the politics of the powerless 247 3.4. Equal rights and participatory parity 251 4. Rights and democratic legitimacy 257 4.1. The politics of rights vs. democracy? 259 4.2. The politics of rights as democracy 268 4.3. Rights as enablers of inclusive democracy 274 4.4. A democratic politics of rights 279 Conclusion 286 Bibliography 291 5 Acknowledgements The research and writing process resulting in this dissertation has been a long and winding road, with many twists and turns geographically, academically and intellectually. It included traveling between different countries and different universities and was occasionally interrupted with periods when I was, for reasons stemming from both need and inspiration, mostly engaged in different kind of work. Apart from the Department of Social and Moral Philosophy at University of Helsinki where I completed this research, I also owe gratitude to the Political Science departments at Central European University in Budapest where I started my postgraduate studies, completed the doctoral course program and sketched the preliminary research plan for this dissertation; and at the Graduate Faculty of New School University in New York City where I spent my initial year of doctoral research as a visiting scholar. I particularly thank my advisor, Professor Heta Gylling at University of Helsinki for her encouragement and support and for offering an academic “home” to my project upon my return to Finland after the years abroad; and my teachers and advisors at Central European University, Professors Nenad Dimitrijevic and János Kis, for their high quality postgraduate seminars and for inspiring me to go ahead with the research project. I also thank Professor David Plotke
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