Can Deliberative Theory be Liberal?

Deliberative Theory

John Dryzek is among the foremost scholars of deliberative democratic theory. His book Deliberative Democracy and Beyond: Liberals, Critics, Contestations offers a strong defense of deliberative theory against rival schools of democratic theory. Justin Kempf reflects on this seminal work of deliberative democratic theory. 

Liberal Democracy Defined

Liberal democracy is a marriage between two independent ideas which are incomplete without each other. Many scholars view liberalism as a limitation upon democracy. Indeed, it does take off some of the rough edges. But too many overlook the capacity of liberalism to elevate democracy. Allow me to emphasize this point: Liberalism makes democracy more democratic. Like any good marriage, the union accentuates positive aspects, while it restrains others. 

Nonetheless, the linguistic construction of “liberal democracy” allows some scholars to imagine different pairings for democracy. However, “liberal” is not descriptive in the term “liberal democracy.” The adjective intensifies the noun. In this sense, “liberal” cannot simply be replaced by “illiberal” without a fundamental change in the quality of “democracy.” 

Similarly other adjectives like “deliberative” or “radical” cannot replace “liberal” in their description of democracy. A liberal democracy can be either deliberative or radical in its construction. At the same time, these descriptive terms do not require democracy to be liberal, but it is hard to imagine their aims can be achieved outside of a liberal political order. 

Constitutionalism, on the other hand, is more of a child of the marriage between liberalism and democracy. While authoritarian governments can have constitutions, liberal democracy almost inevitably produces some semblance of constitutional government. The reason is the tie between liberalism and democracy travels through the rule of law. Constitutions, written and unwritten, define the law and remove the possibility of arbitrary rule. So while constitutionalism establishes limitations on democracy, it also empowers it through clearly defined rules for its participants. Moreover, constitutions enshrine civil liberties within them. It is constitutional law which secures the freedom of thought and expression that deliberative forms of democracy take for granted. 

Deliberative Theory as an Alternative

John Dryzek emphasizes the limitations liberalism imposes upon democracy. His Deliberative Democracy and Beyond distinguishes the different schools in democratic thought active in contemporary political theory. It benefits students in its attempt to categorize different views in a wide ranging assessment of the landscape in democratic thought. 

Few scholars take the opportunity to categorize themselves into a school or discipline. Categories become limitations upon intellectual thought. They establish boundaries and orthodoxies necessary to follow. Marxist thought, for example, is challenged to remain vibrant and innovative, while consistent with the thought of Marx himself. Chantal Mouffe and Ernesto Laclau are among the most active scholars of the left, but consider themselves as post-Marxist. They recognize the tradition of Marx, but refuse to accept the limitations of its orthodoxies. And even this classification is possibly too rigid for them. 

Nonetheless, categorization helps the student to recognize the linkages and connections between different political theorists and philosophers. It recognizes Habermas and Rawls are considered deliberative democrats, even though this simplistic classification is a bit misleading. Dryzek differentiates between what he describes as the schools of liberalism and critical theory to explain the important distinctions between their ideas. 

But Dryzek offers an engaging examination of political thought not simply because it surveys the popular schools of thought, but because he refuses to disguise his bias. His survey is a backdrop for a defense of deliberative theory in political thought. So while the survey itself is interesting, his defense of deliberative theory is where the emphasis ought to lie. 

Is Deliberative Theory Liberal?

Liberalism, for Dryzek, is not compatible with a fully deliberative form of democracy. He recognizes many scholars of deliberative theory have found room for liberalism within sophisticated deliberative models including, indeed especially, Habermas. Nonetheless, Dryzek finds the limitations liberalism imposes on democracy too much to bear. He advocates for a divorce between democracy and liberalism so democracy can become more deliberative. 

At first glance, this demand is difficult to imagine. Deliberative democracy relies on preconditions made possible by liberalism. It is hard to imagine a deliberative model without free speech and expression. Any departure from liberalism opens the door to abandon these guarantees. Indeed, it is unclear whether a deliberative form of democracy divorced from liberalism would not one day find the community improved with less deliberation and more execution. So does it remain a deliberative democracy when the deliberation converges around a decision to limit or restrict deliberation? Liberalism has historically been the antidote to this paradox. Once liberalism is abandoned, it is unclear how long a democracy may remain democratic.

Nonetheless, Dryzek recognizes an important limitation liberalism imposes upon democracy. I have said the rule of law is the tie between liberalism and democracy. Now Dryzek does not see this connection, but rather views it as a liberal invention. Indeed, many of his critiques on liberalism are aimed at the rule of law rather than liberalism itself. Nonetheless, liberal democracy is an impossibility in the absence of the rule of law so his arguments stand no matter how we describe them.

Law and Democracy

And without a doubt, the law is a rather peculiar feature in a democracy. Even in a perfect democracy, the law cannot represent the present demos. It is always the will of a past construction of the demos. The longer a law remains, the farther it becomes from the will of the people. Nonetheless, the law also becomes more revered, the longer it remains in effect. For this reason, people have long accepted precedence as a justification of an argument.

Jurists find it difficult to overcome precedence once they establish a precedent. It is easier to overturn precedence when they find an inconsistency in the application of the law due to two different precedents which contradict one another. However, the complete overruling of a precedent is difficult for a judge because it opens a Pandora’s Box of legal possibilities. Precedence is valued because it establishes a sense of order and reliability based on past decisions. 

Still, the law ties the people to the decisions of past generations. It does not reflect a true reconsideration or deliberation based on the needs of the community as it is currently constructed. Indeed, constitutions are designed explicitly to limit the options of future generations. The American Bill of Rights is designed to remove certain issues from public deliberation. Free Speech, for example, is off the table from political restrictions or limitations. So while constitutions offer the possibility of amendment or change, they are designed to make those changes so difficult as to prevent their change or even the consideration of any change. 

Substance vs Procedural Arguments

Dryzek recognizes how the liberal mindset emphasizes legal arguments rather than substantive reasons. This line of thought is particularly prevalent among Americans. He notes how the question of constitutionality too often silences debate. For Dryzek, constitutionality has no substantive meaning. Deliberation should continue to consider whether the constitution or law deserves reform or amendment. American politics, indeed, is guilty of using constitutionality as a cudgel to silence debate. 

Strict constructionists, in particular, use the constitution as a way to limit choices. The constitution, in their eyes, becomes a veto over many proposals and reforms. Strict constructionists weaponize the constitution. It becomes a way to compel their political opponents to concede due to limited options. But its commitment is often to a political ideology rather than a commitment to the constitution. 

The same politicians who use the constitution as a veto over reform, never consider the obligations and duties the document imposes. For example, the American constitution gives the Senate “advise and consent” authority over key Presidential appointments. However, when Obama nominated Merrick Garland to the Supreme Court, the Senate neither chose to advise nor consent. They punted on the decision until after the election. Ted Cruz even went so far as to claim the Senate could veto any appointment until their party held the Presidency. 

Hypocrisy in Strict Constructionalism

Recently, Rand Paul claimed the impeachment trial of former President Donald Trump was unconstitutional because he was no longer President. His explanation did not rely on what the constitution said, but what he imagined its intent might have been. The hypocrisy in his argument is unforgivable, especially in light of the fact he never rose this issue when the Senate had the ability to conduct a trial while Trump was in office. Had Senator Paul any sincerity in his claims of constitutionality, he would have demanded an immediate trial so it could conclude before Trump left office. Trump had already left office before he raised this concern. The argument is simply an excuse for inaction. It appears Senator Paul does not believe the constitution imposes any duties upon its officeholders. The constitution for Senator Paul is just an excuse to avoid decisions he wants to avoid.

The problem of liberalism is it overemphasizes rights. Conservatism offers a necessary counterbalance in its emphases on duties and obligations. Of course, the Republican Party has long claimed the mantle of conservatism, despite its abandonment of conservative principles long ago. The American political divide today is not between liberals and conservatives, but liberals and neoliberals. Then again Donald Trump has transformed the Republican Party beyond neoliberalism to something else. But it is not conservative. It is a perverted sense of liberalism focused on the rights of one’s self without any sense of responsibility for others. Trumpism is a philosophy of radical individualism closer to what Plato derided as sophism. It gives license for Trump to break the law with impunity while simultaneously claiming victimhood when anyone claims damages. 

Is Deliberative Theory Conservative?

Deliberative theory, on the other hand, depends on elements of liberalism and conservatism. It relies on a mutual sense of obligation and responsibility to allow others to contribute to the discussion. It focuses less on a commitment to the law than unspoken norms necessary to facilitate conversations between different members of the community. 

Dryzek makes many strong arguments as to why liberalism interferes in the deliberative process. Yet he offers no path for how the community can abandon liberalism and remain deliberative. Conservative principles offer the necessary counterbalance to liberalism’s focus on the individual. Indeed, democracy itself is a conservative project because it relies on a commitment to the community and strong institutions to realize its ambitions. Of course, I doubt Dryzek would appreciate a conservative label. In fact, his intentions for economic policy border on the revolutionary. Alas, this is the problem we find whenever we categorize.

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Carolyn Hendriks, Selen Ercan and John Boswell on Mending Democracy

Thoughts on James Fishkin’s When the People Speak

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