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Liberal Constitutionalism: Re-Thinking the Relationship Between Justice and Democracy

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Liberal Constitutionalism: Re-Thinking the Relationship Between Justice and Democracy Liberal Constitutionalism: Re-thinking the Relationship between Justice and Democracy Harald Borgebund PhD The University of York Department of Politics February, 2010 Abstract Liberal constitutionalism is a dominant approach to contemporary political and democratic theory. A defining feature of liberal constitutionalism as it has been outlined by some of its proponents (Rawls: 1996, 1999a and Barry: 1995) is a commitment both to pre-political standards of justice and to the claim that democracy expresses the sovereignty of the people. Combining pre-political rights with the sovereignty of the people seems contradictory. The difficulty is how the people can be fully sovereign if they are constrained by rights outside the reach of popular sovereignty. Because both justice and democracy are foundational to liberal constitutionalism, this contradiction threatens to undermine the plausibility of the entire theory. If liberal constitutionalism fails, this calls for a re-thinking of how to conceptualize the relationship between justice and democracy in contemporary liberal thought. This thesis asks: how can liberal constitutionalists sustain their double commitment to justice and democracy? To answer this question I address three central questions for liberal constitutionalists concerning democracy. First, what is the role of reason in their theories; second, what type of democracy are they committed to; third, I question the role of civil and political rights in democracy. On the first question, I argue that a weak notion of public reason will serve liberal constitutionalism best. Furthermore, liberal constitutionalism fits best with a model of democracy emphasising deliberation combined with a weak notion of the common good. Finally, some of the underlying thinking behind both civil and political rights and democracy is derived from the same sources, which reduces the conflict between justice and democracy. Through an examination of these questions, I show that the critics of liberal constitutionalism often overstate the difficulties of combining justice and democracy. This warns us against an outright rejection of the tenets of liberal constitutionalism as is recommended by some critics. 2 Table of Contents Acknowledgements 5 Author’s Declaration 7 Introduction 8 1. The Ideals of Liberal Constitutionalism 9 2. Three Challenges for Liberal Constitutionalism 15 3. Overview of the Thesis 19 4. Concluding Remarks 25 Chapter 1: The Context of Liberal Constitutionalism 26 1. Two Background Conditions of Liberal Justice 28 2. Social Justice: Principles of Justice and their Implications 36 3. Political Justice: The Possibilities of Democracy 43 4. Concluding Remarks 46 Chapter 2: The Boundaries of Reason in Liberalism 48 1. Reformation and Enlightenment Liberalism 50 2. Politics as Coordination 54 3. The Politics of Consensus 59 4. Balancing Divergence and Convergence of Reason in Liberalism 65 5. Concluding Remarks 68 Chapter 3: The Impartial Alternative 70 1. The Structure of Justice as Impartiality 71 2. Two Requirements of Justice as Impartiality 81 3. Political Implications: Social Justice and Group Rights 89 4. Concluding Remarks 99 Chapter 4: Impartiality: Convergence or Divergence? 100 1. Reason and Contractualism 101 2. Universalism and Relativism 106 3. The Right Level of Impartiality 111 4. Is the Weak Interpretation too Weak? 115 5. Concluding Remarks 120 Chapter 5: Democracy between Aggregation and Deliberation 122 1. Three Ideals of Liberal Democracy 122 2. Democracy as Process and Aggregation 126 3. Deliberative Democracy 131 4. Defining the Scope of Democracy 138 5. Concluding Remarks 143 Chapter 6: The Rights Question 145 1. What is Wrong with Substantive Rights? 147 2. The Co-originality of Procedural and substantive Rights 151 3. The Analogy between Contractualism and Democracy 156 4. Defending the Analogy 161 5. Concluding Remarks 168 3 Chapter 7: A Liberal Democratic Order 170 1. A Model of Democracy: Deliberative Proceduralism 171 2. Equal Opportunity and Group Rights Revisited 177 3. The Liberal Dilemma I: Too Weak? 183 4. The Liberal Dilemma II: Too Strong? 190 5. Concluding Remarks 195 Conclusion 196 1. Liberal Legitimacy and Impartiality 196 2. Politics and Philosophy 201 3. Final Reflections 205 Bibliography 207 4 ACKNOWLEDGEMENTS The work on this thesis started optimistically in October 2006. At that time the three years ahead until I was supposed to submit seemed like an immensely long time. Surely, three years is a fairly long time, but there is no doubt that the time has passed only too quickly. Although this project is now completed, during these three years the life of this thesis has experienced many ups and downs. Luckily I have had the fortune of benefitting from the help of so many people in completing this project. Without their encouragement and help it would have been impossible to finish. First I would like to thank my supervisor Matt Matravers for his continuous support and encouragement throughout these three years. Matt has patiently read and commented on my rough and often inarticulate drafts, and always constructively helped me to articulate my often-infant arguments more clearly. Matt has not only helped me through the process of writing this thesis but he has also been a model scholar and inspired me to continue even at times when I did not seem to be making any progress. I would also thank my backup supervisor Matthew Festenstein who at various stages has offered valuable feedback on my thesis and helped me refine my arguments further. In addition, I am extremely grateful to Sue Mendus who read a nearly complete draft of my thesis and gave detailed and extensive written comments helping me both to clarify my thinking on many of the points made in this thesis and to make the structure and argument much clearer. The Department of Politics at York has offered a great environment to work on this thesis and without its encouraging and friendly atmosphere writing this thesis would have been a much harder task. Various drafts of some of the work in this thesis have been presented in workshops and reading groups in the Department and I want to thank everyone participating for taking the time to read my work and for helpful questions and comments. In York I have also been fortunate enough to be surrounded by many good friends and coursemates whose support and encouragement have been invaluable. I would particularly thank Alfonso Donoso, Tim Fowler, Kei Numao, Yidan Tan, Mike Wood, Britain Brady and Chiayu Chou for reading and commenting on my work and 5 for being such good friends. Without you the time in York would have been dull and boring. Finally, I am grateful for the warm support and encouragement from all my colleagues at NLA University College in Bergen. I would particularly thank Åshild Samnøy and Lars Gaute Jøssang for encouraging me and helping me keep up the momentum together with teaching and other responsibilities. I am also grateful for some good suggestions by Ruth Mjanger towards the very end. Without the understanding and strong support from my colleagues at NLA during the months just before my submission this project would have been much harder to complete. With their continuous support the transition from PhD studies to teaching has been smooth and pleasant. 6 AUTHOR’S DECLARATION I hereby declare that all the material contained in this thesis is based on my own research. 7 INTRODUCTION Is it possible to combine justice and democracy into a coherent political order? Liberal constitutionalism suggests so. There are two foundational features of liberal constitutionalism that suggest this possibility. First, liberal constitutionalism is defined by a political order based on a constitution outlining the workings of the political system including a set of civil and political rights derived from principles of justice. Second, it holds that democracy and the sovereignty of the people is an integral part of a legitimate political order. Holding both these propositions seems contradictory and untenable; it is difficult to maintain both an ideal of justice relying on pre-political commitments whilst at the same time being fully committed to the ideal of the people as fully sovereign. This contradictory feature gives rise to a dilemma for liberal constitutionalism: If justice requires pre-political rights outside the reach of democracy, this undermines the idea of democracy understood as the people being fully sovereign, and if democracy excludes pre-political rights this undermines liberal justice understood as a commitment to rights out of reach of democracy. Either liberal constitutionalism must choose justice over democracy, or choose democracy over justice. Holding on to the idea that both justice and democracy are equally important seems untenable. The central aim of this thesis is to analyse how this dilemma can be resolved. I will not suggest a solution that will once and for all resolve this dilemma, but I will suggest some ways in which the tension between justice and democracy can be eased based on contemporary theories of justice and democracy. Liberal constitutionalism has for long been a dominating force in theorizing about both justice and democracy. It has not only been influential but has for long been labelled as a successful way to organize political life under modern conditions more generally. Despite its widespread influence and dominance, many theorists are now questioning the seriousness of its democratic credentials. Both the defining features identified above are subject to criticism. First, some political theorists argue that liberal constitutionalism is unable to accommodate the increasing diversity and pluralism found in modern societies. Its strong commitment to pre-political principles of justice makes it insensitive and unable to respond adequately to political claims based on (among others) culture, identity, religion, race, ethnicity and gender. In addition, liberal constitutionalism has been criticized for not being sensitive enough to 8 the importance of citizen participation in the democratic process. Furthermore, these critics see the commitment to principles of justice as undermining the people as the authority of a society‟s positive law.
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