英文民主、审议与不服从

WILLIAM SMITH DEMOCRACY, DELIBERATION ANDDISOBEDIENCE ABSTRACT. This paper develops a theory of civil disobedience informed by a deliberative conception of democracy. In particular, it explores the justification of illegal, public and political acts of protest in constitutional deliberative democ- racies. Civil disobedience becomes justifiable when processes of public deliberation fail to respect the principles of a deliberative democracy in the following three ways: when deliberation is insufficiently inclusive; when it is manipulated by powerful participants; and when it is insufficiently informed. As a contribution to ongoing processes of public deliberation, civil disobedience should be carried out in a way that respects the principles of deliberative democracy, which entails a commitment to persuasive, non-violent forms of protest. KEY WORDS: civil disobedience, contestation, deliberative democracy, justifica- tion, non-violence Work in contemporary political philosophy offers several perspec- tives on how principled acts of civil disobedience might be justified within a constitutional democracy.1 One of the most common approaches can be found in the work of leading liberal theorists of justice, such as John Rawls and Ronald Dworkin.2 Their intuitive idea is that civil disobedience is justifiable when laws or policies seriously violate principles of justice, such as equal basic liberties. Political philosophers commenting on these theories often accept the value of a justice-based defence of civil disobedience, but suggest that these accounts are too restrictive in the conditions they place on justified civil disobedience. In particular, one idea that has continually resurfaced is that, in some circumstances at least, civil 1 Civil disobedience is understood in this paper as public, illegal and political protest carried out against state laws or policies. Justification here is understood as a moral or political justification – where civilly disobedient citizens claim that they are morally or politically entitled to disobey law. It does not imply legal justification. 2 John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972); Ronald Dworkin, A Matter of Principle (London: Harvard University Press, 1985). Res Publica 10: 353–377, 2004. � 2004 Kluwer Academic Publishers. Printed in the Netherlands. disobedience might also be justified by appealing to democratic principles.3 In this paper I contribute to a democratic defence of civil dis- obedience by sketching an account informed by a deliberative theory of democracy. Despite the fact that there has been a surplus of material written on the theory and practice of deliberative democracy in recent times, few attempts have been made to apply deliberative ideas to the issue of civil disobedience.4 Yet as a theory about the production of legitimate law through democratic procedures, delib- erative democracy clearly has something to offer to debates about the extent of our moral duty to comply with democratic decisions. Using principles gleaned from a family of deliberative conceptions of democracy, this paper suggests certain circumstances where illegal disobedience might become a justifiable course of action in a con- stitutional deliberative democracy. Such a theory is offered here as a complement to existing theories of civil disobedience that defend illegal protest in the context of rights-violations.5 The paper is divided into three sections. The first offers a general outline of deliberative democracy. The outline brings together themes in the existing literature on deliberative democracy and places special emphasis on the ideas of democratic inclusion, reason-giving through public deliberation and informed public debate. In the second section a theory of civil disobedience as ‘deliberative contestation’ is devel- oped by applying the idea of deliberative democracy to the justifi- 3 Peter Singer, Democracy and Disobedience (Oxford: Clarendon Press, 1973); Carole Pateman, The Problem of Political Obligation: A Critique of Liberal Theory (Cambridge: Polity, 1979); Ju¨rgen Habermas, ‘Civil Disobedience: Litmus Test for the Democratic Constitutional State’, Berkeley Journal of Sociology, 30 (1985), 95– 116; Jean L. Cohen and Andrew Arato, Civil Society and Political Theory (London: The MIT Press, 1992); Holloway Sparks, ‘Dissident Citizenship: Democratic Theory, Political Change, and Activist Women’, Hypatia: Journal of Feminist Philosophy, 12/ 4 (1979), 74–109; Iris Marion Young, ‘Activist Challenges to Deliberative Democ- racy’, in eds. James S. Fishkin and Peter Laslett, Debating Deliberative Democracy (Oxford: Blackwell, 2003), 102–20. 4 Exceptions are the articles by Sparks and Young, op. cit. 5 This is an important point: I believe that the moral case for disobedience of laws that seriously violate basic liberties has already been defended strongly in Rawls and Dworkin, op. cit. What follows is a discussion of civil disobedience as a contribution to democratic practices. Though I do not argue for it in this paper, I presume that a democratic account and a rights-based account of civil disobedience can be mutually compatible (an argument for this position is developed in Cohen and Arato, op. cit., 564–604). 354 WILLIAM SMITH cation of civil disobedience. Civil disobedience as deliberative con- testation suggests that civil disobedience is justified when deliberation has been insufficiently inclusive, when powerful participants have unduly influenced deliberation, or when deliberation has been insufficiently informed. The third section briefly discusses how foregrounding the idea of public deliberation allows us to grasp and defend the importance of a non-violent code of conduct for citizens engaged in civil disobedience. THE PRINCIPLES OF A DELIBERATIVE DEMOCRACY The deliberative theory of civil disobedience presents an account of the fundamental principles of a deliberative democracy, and then discusses the kinds of violations of these principles that might justify acts of civil disobedience by citizens. In this sense, it adopts an ap- proach similar to Rawls’ theory of civil disobedience. Rawls provides an account of fundamental principles of justice and discusses the kinds of infringement of these principles that create the conditions for justified civil disobedience. The theory developed here follows Rawls’ method in assuming that its prescriptions apply to a society where there is general commitment to the principles of a deliberative democracy, but in which serious violations of those principles nev- ertheless occur.6 One difficulty in developing a deliberative theory of civil disobe- dience is that there are many conceptions of deliberative democracy within the existing literature, several of which conflict with one an- other in their normative prescriptions and interpretations of the deliberative ideal. In order to try and get round this problem, I present in this section some fairly general principles that are shared by a family of conceptions. The aim is not to provide a robust jus- tification or institutional blueprint for deliberative democracy, or a thorough treatment of how these principles might be interpreted. The aim is, rather, to delineate some fundamental deliberative principles and use them as a guide for discussing the justification of civil dis- obedience within a deliberative republic. I focus, therefore, on the reasons citizens might have for criticising actual deliberation and deliberative outcomes, given the requirements loosely set by the 6 Rawls, op. cit., 363. 355DEMOCRACY, DELIBERATION AND DISOBEDIENCE principles. Generally speaking, the principles seek to reflect a con- ception of democracy as an association of free and equal citizens, who come to an agreement, or at least a decision, about the proper exercise of their political power after inclusive, reasonable and informed processes of public deliberation. The first principle shared by most conceptions of deliberative democracy is that public deliberation should include all members of the relevant political community. Deliberative democracy shares with most normative accounts of democracy the idea that political power should be forged through collective decisions taken by those who are governed by that power.7 This means that all citizens must be al- lowed to participate in processes of public deliberation and have some kind of voting rights within the democratic community. In practice, this might translate as an entitlement to engage in public debate with fellow citizens at different levels of the deliberative pro- cess (for instance public forums or associations in civil society) and an entitlement to vote for representatives in public elections.8 Despite the fact that almost all accounts share this commitment to democratic inclusion, there is potential for disagreement over the scope of inclusion. Joshua Cohen, for instance, is adamant that inclusion is based on whether or not persons are governed by the relevant democratic institutions, not on whether or not persons are merely affected by the decisions of those institutions.9 This is based on the idea that democratic procedures are a necessary condition of exercising legitimate political authority over persons, not mere influence over persons. Other accounts provide a slightly different interpretation of inclusion. Iris Marion Young claims that demo- cratic decisions are legitimate only if everyone affected by those decisions is incorporated in processes of decision-making.10 ‘Affected’ is defined as having one’s options for action significantly conditioned by democratic decisions. The idea has some affinities with Philip 7 Joshua Cohen, ‘Procedure and Substance in Deliberative Democracy’, in eds. James Bohman and William Rehg, Deliberative Democracy: Essays on Reason and Politics (London: The MIT Press, 1997), 407–37, p. 407. 8 Philip Pettit, ‘The Discursive Dilemma and Republican Theory’, in eds. James S. Fishkin and Peter Laslett, op. cit., 138–62, p. 139; Ju¨rgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by William Rehg (Oxford: Polity, 1996), 170. 9 Cohen, op. cit., 432ff. 10 Iris Marion Young, Inclusion and Democracy (Oxford: Oxford University Press, 2000), 23. 356 WILLIAM SMITH Pettit’s belief that political power should not arbitrarily interfere or ‘dominate’ citizens. This means that political power must not be exercised in such a way that the interests of all those seriously affected are not taken into account, providing the basis for norms of inclusion and opportunities for contestation.11 The notion of advocating the inclusion of all those who might be affected by democratic decisions is potentially more expansive than advocating inclusion of all who are governed. Democratic decisions might have serious implications for many citizens outside of the relevant democratic community: for in- stance, national decisions about foreign policy, immigration policy or trade policy seriously affect persons in other nation-states. Disagreement over whether and how to include all those affected by decisions is widespread, and often figures in arguments about the desirability of all-inclusive global or cosmopolitan democratic insti- tutions.12 In order to pursue the aim of deriving some grounds for criticising actual deliberation and decisions it is necessary to suggest an answer to the question of who should be included or represented in deliberative procedures. This is because if deliberation is accused of being insufficiently inclusive, then some indication must be given of the grounds for this charge. In order to derive a position that captures the spirit of the existing literature on this question, I suggest that actual deliberation can be reasonably criticised if it excludes persons who are directly governed by the power generated via that delibera- tion and/or if it neglects the interests of anyone outside the relevant political community who is seriously affected by the outcome of that deliberation. This captures the importance, noted by Cohen above, of the inclusion of everyone governed by political power within the procedures that generate that power. It also captures the importance of relevant interests being acknowledged and respected in delibera- tion, even if for practical reasons it is impossible for the persons or groups with those interests to be included. For instance, it would be unrealistic to expect nations like the U.S. to allow all those who are affected by its policies a vote in its national elections. However, it should not be unrealistic to expect deliberation at least to take into account the interests of those who might be affected outside of the democratic community. It would be a valid criticism of deliberation 11 Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997), 190–94. 12 David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Oxford: Polity, 1995), 21–22. 357DEMOCRACY, DELIBERATION AND DISOBEDIENCE within a bounded political community if it blatantly disregarded the interests of those outside the community who were seriously affected by deliberative outcomes. The second principle of deliberative democracy is that citizens must publicly deliberate with one another on the basis of their sincere and reasonable beliefs to decide law and policy. The significance of deliberation is that decision-making is conceived as a matter of per- suasion and reason-giving, not coercion or aggregating preferences. By focusing on deliberation, the democratic process is invested with stronger normative connotations than would be the case if it were conceived as a process of mere bargaining or preference aggregation. This approach makes democracy a normatively appealing idea by guarding against the threat that interests in powerful bargaining positions might unduly influence decisions; reason and persuasion must win the day, rather than entrenched power or aggressive bargaining.13 Generally speaking, the idea of public deliberation has at least two specific dimensions. The first dimension has to do with an ideal of democratic citizenship. Citizens in a deliberative democracy are sup- posed to be committed to discussing and voting on their beliefs about political decisions that best reflect the general interest, not just their own private interests.14 Conceptions of deliberative democracy do not necessarily have to explicate a particular ideal of the general interest, but they do insist that participants in deliberation are con- cerned to discover policies that best reflect the general interest.15 Citizens in a deliberative democracy are also supposed to be com- mitted to processes of persuasion through reason-giving. The aim of public deliberation is to reach agreement or mutual understanding with fellow citizens about the direction of public policy. This does not necessarily mean that a general consensus is a precondition of deci- sions having democratic legitimacy. Procedural mechanisms like majority rule are appropriate means of resolving disagreements, in order that lawmaking processes are not brought to a standstill.16 It does mean that citizens should take as a regulative ideal the aim of 13 Joshua Cohen, ‘Deliberation and Democratic Legitimacy’ in eds. James Boh- man and William Rehg, op. cit., 67–91, p. 74. 14 Will Kymlicka, Contemporary Political Philosophy: An Introduction, Second Edition (Oxford: Oxford University Press, 2002), 293. 15 Pettit, ‘The Discursive Dilemma and Republican Theory’, op. cit., 140. 16 Habermas, Between Facts and Norms, op. cit., 171. 358 WILLIAM SMITH reaching agreement through deliberation, entailing a commitment to the give and take of reasons and beliefs about public policy. The second dimension has to do with securing fair background conditions for public deliberation, in particular avoiding excessive inequalities in political power. Political power is understood as the opportunity to set the agenda for discussion, influence the course of public deliberation, and influence the outcome of discussion. Most theories of democracy accept that absolute equality of political power is both an impossible goal and perhaps an undesirable one, because some citizens in a deliberative democracy are more likely to pursue political influence than others, given their differing concep- tions of the good.17 Nonetheless, there is general commitment to achieving a fair opportunity to influence democratic deliberation for all citizens, and a firm commitment to avoiding excessive inequality of political power.18 One of the reasons often cited for this com- mitment is that public deliberation is conceived as a process of unforced dialogue in which citizens are able to advance their views free from coercion or intimidation.19 Situations where some citizens are powerful enough to influence the course and outcome of deliberation tend to frustrate the sense in which public dialogue is free of potential coercion or intimidation. It frustrates the sense in which decisions are made on the basis of reasons rather than of power or coercion, and also the sense in which decisions track general public interests rather than the private particular interests of powerful participants.20 The third principle of deliberative democracy states that in order at least to try to ensure that decisions are of a requisite quality, 17 Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (London: Harvard University Press, 2000), 190–200; John S. Dryzek, Deliberative Democracy and Beyond (Oxford: Oxford University Press, 2000), 172–73. 18 Rawls, op. cit., p. 224; James Bohman, ‘Deliberative Democracy and Effective Social Freedom: Capabilities, Resources, and Opportunities’, in eds James Bohman and William Rehg, op. cit., 321–48, pp. 322–24; Jack Knight and James Johnson, ‘What Sort of Equality Does Deliberative Democracy Require?’, in ibid., 279–319. 19 Pettit, ‘The Discursive Dilemma and Republican Theory’, op. cit., 139–40. 20 It is worth mentioning that most theorists of deliberative democracy believe that current patterns of inequality in constitutional democracies frustrate the ideal of public deliberation in this way. See Rawls, op. cit., 226; Dworkin, Sovereign Virtue, op. cit., 202; James Bohman Public Deliberation: Pluralism, Complexity and Democracy (London: MIT Press, 1996), 140; Young, ‘Activist Challenges to Delib- erative Democracy’, op.cit., 110; Pettit, Republicanism, op. cit., 194. 359DEMOCRACY, DELIBERATION AND DISOBEDIENCE participants should seek to incorporate and assess as much relevant information and data as possible within ongoing processes of public deliberation. This principle tries to capture in a weak sense the intu- ition, shared in much of the recent literature, that a full defence of democratic deliberation will include some reference to the epistemic quality of deliberation. According to Habermas, ‘deliberative politics acquires its legitimating force from the discursive structure of an opinion and will formation that can fulfil its socially integrative function only because citizens expect its results to have a reasonable quality’.21 Philip Pettit says that contestation and deliberation pro- vide an important function in allowing ‘the requirements of reason [to] materialise and impose themselves’, implying that decisions should be sufficiently informed.22 Iris Marion Young defends her ‘inclusive’ model of deliberative democracy on the grounds that it allows decisions and deliberation to be more knowledgeable about social problems and relevant concerns.23 John Dryzek contends that deliberative democracy can be defended on the grounds that it con- tains the ‘epistemic dimension’ of being the best means of sorting good arguments from bad.24 Theorists disagree over whether the epistemic quality of democratic del