Democratic procedures and substantive principles

Cohen defends his deliberative model, in contrast to Peter’s, as aimed at instrumental outcomes. That is, Cohen thinks that by adhering to the norms of the deliberation we can reach more just outcomes. Cohen argues that this is not because we justify our positions rationally and pick the correct decision but because, under his theory, the aim of deliberation is to promote the common good:

[T]he relevant conceptions of the common good are not comprised simply of interests and preferences that are antecedent to deliberation. Instead, the interests, aims and ideals that comprise the common good are those that survive deliberation, interests that, on public reflection, we think it legitimate to appeal to in making claims on social resources. (Cohen 2003, p.349)

From this quote, I think we can align Cohen’s position somewhat with Peter’s, in that the validity of the outcome of deliberation is not tied to something external to the

46 process: the common good is rather produced through the process.14 Furthermore, for Cohen, we can create a common good out of deliberation only because of the norm of reasonableness at the heart of the process. This norm, he argues, requires all interlocutors to step beyond their personal desires, or at least to present solutions that align with their desires in terms that others can accept (as I discussed in greater detail, above). Bald self- or group- promotion at the expense of others, Cohen believes, would be hastily dismissed when this norm is observed, and thus ‘the likelihood of a sincere representation of preferences and convictions should increase.’ (Cohen 2003, p.349) With sincere justifications aimed at securing the common good, Cohen argues, our intersubjective realisation of what that common good is or should be, becomes apparent.

Thus, Cohen seeks to show how the procedure works to create and preserve a substantive principle, the common good, while simultaneously not prescribing the form of that good: no pre-existing correct common good exists independently of the procedure. If this was predetermined, Cohen argues, it would overwrite the reasonable pluralism that he wishes to preserve, following Rawls (Cohen 2003, p.343, Rawls 1973, 1993). In other words, if the form of the collective good is given up front, we preclude other goods from being considered in deliberation. According to Cohen, in order to test the legitimacy of our democracy, we can consider only how far the ideal procedural norms were adhered to in the decision-making process. As such, the procedure itself acts as a marker of democracy’s legitimacy, rather than the correctness of our democratic decision. In this sense, Cohen is a pure proceduralist: he does not invoke the notion of outcomes being independently correct in order to defend his theory; although he thinks that a strength of the procedure is that it has some

14 _{It is important to note, however, that Peter contends that Cohen endorses a instrumentalist view} because the reasonability requirement will result in the outcome being one that people ‘can endorse, or at least that no one can reject with good reasons.’ (Peter 2007, p.335)

47 notion of the common good as its objective. Outcomes can always be challenged and possibly improved upon, but even this notion of ‘improvement’ sits with difficulty in Cohen’s ideal procedural model; it’s not clear that we get to increasingly better outcomes with more deliberation.

However, it is clear that Cohen differs from Peter in that he believes that defending deliberative legitimacy rests upon the fact that the deliberative procedures are employed in the service of finding a common good. Cohen considers that the constraints of deliberation and its aim towards an outcome that is satisfactory for all, means that outcomes should not lead to inequality or exclusions. In my view Cohen is correct to highlight that deliberation should aim at constructing a common good, because its aim is to find acceptable solutions to political conundrums—as long as we add the caveat that this good will not be final, unchangeable, or be something we can reach full consensus upon. It seems to me that without such an aim, deliberative democracy loses something of its power: we could ensure, for example, that subjects in a direct democracy must consider different perspectives before voting, which would meet Peter’s point that democracy should increase knowledge and understanding as well as promote citizens’ agency. Yet, under such a model, participants are under no obligation to try to promote the cause of their fellow citizen. The reciprocity held in the norm of reasonableness, and thus the notion that we want to aim for an outcome that is at least in principle acceptable for all, must therefore still be central to the workings of pure epistemic proceduralism. To go back to Peter’s example of the process of science: while science may not hold to determinate truths that cannot be challenged, the procedures of science are nevertheless aimed at uncovering truth. In the same way, I submit, democratic debate should be aimed at constructing common goods and finding acceptable solutions.

48 In contrast to Cohen’s contention that the procedures of deliberative democracy can aim at constructing the common good, Gutmann and Thompson argue that other principles are required, in addition to the deliberative procedural norms, in order for deliberative models to guarantee justice. In Why Deliberative Democracy

(2004) Gutmann and Thompson are sceptical about the probability of the norms of deliberation resulting in just outcomes and argue instead that substantive principles need to be instituted in order to ensure rights are not infringed. Gutmann and Thompson’s argument is twofold: (i) reciprocity within the procedure requires substantive principles; and (ii) we should judge the outcomes of deliberation on how well they preserve or infringe upon certain regulatory, fixed principles. In terms of (i) they argue that:

The practice of deliberation is an ongoing activity of reciprocal reason-giving, punctuated by collectively binding decisions… The principle of reciprocity itself expresses neither purely procedural nor purely substantive values. A reciprocal perspective is both procedural and substantive because mutual justification cannot proceed without appealing to reasons that refer to both procedures of government and substance of laws, often at the same time. (Gutmann and Thompson 2004, p.102-3)

Here, Gutmann and Thompson consider that the norms of deliberation are always fleshed out by substantive principles during debate: in deliberation, substantive principles or existing laws are constantly invoked as reasons why we should or should not support a particular outcome; for example, we might justify a course of action as favourable because it upholds equality. This, I submit, is not a controversial argument. In terms of (ii), however, Gutmann and Thompson argue that there are certain principles that everyone would agree we should not disregard:

At a minimum, no one would seriously dispute that justifications should recognize some of the values expressed by substantive principles, such as liberty and opportunity. It would hardly be sufficient for NICE to justify a decision to deny prescription drugs to West Indian immigrants on the ground that they are not white. (Gutmann and Thompson 2004, p.103)

Thus, Gutmann and Thompson are convinced that, even with a fair procedure, without a clear view of some additional substantive principles, there may be situations where a

49 person or group agrees to relinquish their basic rights. However, it’s not clear why this is not a failure of the process, rather than a result of interlocutors not having pre- agreed substantive principles. In their example above, there is no way in which the West Indian immigrants could reasonably accept the decision to deny them prescription drugs on the grounds of their ethnicity. Gutmann and Thompson suggest that owing to power differentials there could be a situation where a group could accept this, where they ‘had no better alternative in a bargaining situation.’ (Gutmann and Thompson 2004, p.103) However, what the authors fail to countenance is that this is in fact a breakdown of the procedure itself, because the majority have failed to consider that this is an unreasonable request to make from this group, and have lapsed from deliberating to bargaining. So, let’s consider another example: imagine a state in which most people believe in principles of individuality and personal choice as paramount to selfhood. Under such conditions, one might find that people who were morbidly obese, and who believed their obesity was entirely their personal choice,

couldreasonably accept a democratic proposal that they should pay for any medical

expenses owing to complications attributed to their weight. This could result in some of them not being able to access life-saving medical attention, which would violate their equality and opportunities. In this case, the procedure has been fair, and yet the outcome seems wrong: because of their core values, the group who are overweight can accept some infringement of their basic liberties.

However, even an example such as this it’s not the case that the procedure has failed to generate the ‘right’ outcome at all. Rather, those who disagree with the outcome would want to argue that the starting principles were not correct and that the relative weighting of the notion of choice and right to access healthcare was incorrect in this instance. As I have argued above, a pure procedural model always allows us to

50 argue such a case, even after a decision has been taken, as Gutmann and Thompson themselves claim (e.g. Gutmann and Thompson 2004, p.6). Furthermore, as I have argued, owing to the fact of irreducible pluralism we can’t institute the ‘correct’ values outside of the procedure. Gutmann and Thompson are right that we will appeal to substantive principles, such as that of equality, in deliberation and that debate will result in us weighting such principles against one another in our bid to come to decisions. However, their arguments entail us establishing and imposing a value hierarchy prior to deliberation, which, although apparently from a compassionate position, is rather undemocratic. Furthermore, by instituting such principles, we are in danger of reducing the agency of the deliberators by pre-deciding what they can reasonably accept. On the other hand, it may be fair to argue that Gutmann and Thompson are being realistic about how deliberation might work in practice. It could be that they too think that under perfect conditions, with flawlessly rational subjects who all respect the same values, the procedure could have faultless outcomes, but that non-ideal conditions mean that we always have to re-inspect decisions and constantly challenge them according to some pre-agreed substantive principles.

In this sense Gutmann and Thompson work in the opposite direction to Cohen —they try to show how the procedures can’t work effectively and maintain crucial reciprocity without substantive principles. Cohen, on the other hand, argues that the procedure itself is the best way of obtaining a fair democracy in order to aim towards a common good. I conclude that Cohen is correct that deliberation should aim at acquiring the common good, but have suggested that his work needs a simultaneous caveat that the good constructed in deliberation cannot be understood to be final, or a version of the good all will agree with. On the other hand, I think that Gutmann and Thompson are wrong to institute universal substantive principles that act as limit-

51 points for the procedure, as the relative weighting of these principles is already captured by a pure epistemic proceduralist account that holds that the aim of debate is to try to find a good outcome.

In the rest of the thesis I will look at these issues in more depth, with specific reference to social identity. I will, for example, consider whether the democratic principles that are assumed to preserve reasonable pluralism in fact obscure it, when considering Habermas’s work in chapter two. For now, I have given an overview of the foundational concepts of deliberative theory, as well as some debates between deliberative theorists. Moreover, as an aside, I have shown, by looking at these debates, that Mouffe’s argument that deliberative democracy’s focus on consensus means it cannot deal with difference, is overdrawn: both Cohen and Peter, as well as Gutmann and Thompson, are attentive to the fact that consensus is potentially exclusionary, and are attempting to theorise from the viewpoint of plurality. However, as I will argue in the following chapters, deliberative theory does not always deal effectively with difference and often theorists do attempt to limit difference in favour of promoting neutrality or consensus.