1 Integrating conflict and self-interest into deliberation
To today’s generation of democratic theorists falls the task of finding ways to integrate normatively the legitimation of ongoing conflict in material interests with a larger commitment to the public good. Accomplishing this goal requires repudiating the position that self-interest has no legitimate role in deliberation, along with the position that negotiation and even bargaining in all their forms are contradictory to, and thus must be excluded from, democratic deliberation.
Whenever questions of common concern have distributive implications, conflicts in material and other interests will arise. In such situations, a fair resolution almost always requires not only acknowledging but also exploring these conflicts, some of which cannot be simply subsumed into an overarching common good. Refusing to allow on the table statements of self-interest and the reciprocal questioning of self-interest inhibits self- and mutual understanding and makes it almost impossible to craft even relatively fair partial resolutions to the ongoing conflict.
Among the irreducible plurality of goals of democratic deliberation, the purpose of democratic decision makes paramount the clarification of interests broadly understood. No decision putatively for the common good is normatively legitimate if created by ignoring conflicting interests. In practice, moreover, decisions made on the basis of interests (including interests in the common good) that are relatively well understood and behind which the parties to the decision can continue to stand will last longer and be better for the group than decisions made on the basis of interests that are less well-examined or understood. As a consequence, the rational and emotionally-based elements of deliberation that propel a decision-making group toward consensus or conflict should be judged not only by how well these elements help a group forge a common good that can command genuine consensus but also by how well these elements help clarify conflicts. Those conflicts then require disposition by either negotiation or some aggregative form of democracy such as majority rule. By clarifying “interests,” I mean that a good deliberative process should clarify, as well as possible in any given circumstances, what the citizens involved would prefer if they had access to all information, including information about the others involved. I call these hypothetical enlightened preferences “interests.”2
Democratic deliberation also has other goals, including forging the bonds of solidarity that help to solve collective action problems. Collective action problems arise from the many goods humans need that must be supplied jointly but are “non-excludable” in the sense that once provided, no one can be excluded from their benefits. From national defense, clean air and ample fish populations through clean dishes in the cupboard, when a society cannot exclude those who do not contribute from reaping the benefits of the good, the self-interest of those who will benefit provides an incentive to “free ride” on the contributions of others. The most efficient societies, as well as often the most just, solve many such collective action problems by appealing for contributions to a “moral core” within each individual that consists both of cognitive commitments to principles of duty, fulfillment of promises, and the like and of more emotionally-based reasons for making the good of others one’s own. The larger the moral core that prompts voluntary contribution, the smaller the need for state or social coercion (Mansbridge, 2001). Deliberative processes, which include talking with others, recognizing the real commitments of others to the common good, pooling talents and insights, experiencing interdependance, and together making the sometimes small sacrifices of other options that all decisions require, can activate, maintain, and even create (as well as undermine) this moral core of principled commitment and identification. When we speak of the “transformations” that deliberation makes possible, we often have in mind processes that help forge elements of this moral core. In practice such processes are sometimes, but not always, congruent with the first goal of clarifying interests.
Other goals of deliberation, both in democracies and elsewhere, include the quest for mutual understanding, understood not as a means to an end but as an intrinsically valuable human good, and the expression and reflection of respect for the individual persons in the interaction, also a good in itself.
This assessment of the normative goals of deliberation in democracy applies to deliberations intended to end in a decision binding on the participants. In the pluralist ideal that I propose here, the participants sometimes rightly differ from one another both in their opinions and in their material interests, and some of the ensuing conflicts in interests rightly cannot without distortion be subsumed in a larger common good. Pluralist deliberative theorists must thus help parse out the appropriate role for conflict and self-interest in deliberation both when the group is trying to forge a common good and when interests fundamentally conflict.
The bulk of this analysis evaluates conflict and self-interest in deliberation in the light of the four goals of clarifying interests, forging solidarity, searching for understanding, and expressing or reflecting equal respect. It treats conflict and self-interest as valued components of an ideal democratic state and argues for the normative legitimacy, among democratic methods, of bargaining, negotiating, and voting. It also suggests that in practice the recognition of conflict and the expression of self-interest can help to illuminate interests, forge common bonds, and even promote mutual understanding and respect.
2 The Early Habermas and the Tradition in which He Wrote
The positive valuing of conflict and self-interest promoted here explicitly contravenes a prominent European philosophical tradition that has had great weight in discussions of deliberative democracy. Visible most clearly in the early work of Jürgen Habermas but also in the work of Hannah Arendt and Carl Schmitt, that tradition insists that the source of law should never be merely the people’s will in matters of conflicting interest but always and only the exercise of reason on matters of the common good. In this tradition democracies take their legitimacy (and should make “law”) only from this exercise of reason.3 This tradition excludes from “deliberative democracy” the elements of conflicting interests and self-interest that I argue should play legitimate and important roles in democratic deliberation.
In 1962 Jürgen Habermas contended in his Habilitationsschrift (post-doctoral dissertation, or “professor’s thesis”), later translated into English as The Structural Transformation of the Public Sphere (1989), that “the bourgeois public sphere” in the eighteenth century was characterized by the “people’s public use of their reason” (Habermas, 1989, p. 26) in “rational-critical debate.” He characterized this rational-critical debate as renouncing any “form of a claim to rule” and standing thus in opposition to “domination” (Habermas, 1989, p. 28). It rested only on “the standards of ‘reason’” (Habermas, 1989, p. 28) and “the authority of the better argument” (Habermas, 1989, p. 36) on matters of “common concern” (Habermas, 1989, p. 37).4 “[T]he public process of critical debate,” he wrote, “lay claim to being in accord with reason; intrinsic to the idea of a public opinion born of the power of the better argument was the claim to that morally pretentious rationality that strove to discover what was at once just and right” (Habermas, 1989, p. 54).
In line with many German theorists of the nineteenth and early twentieth centuries, Habermas opposed “the concept of law as an expression of will” and promoted in contrast “the concept of law as an expression of reason” (Habermas, 1989, p. 81), approvingly quoting Carl Schmitt as saying, “law is not the will of one or of many people, but something rational-universal; not voluntas, but ratio” (Habermas, 1989, p. 81).5 Describing the golden era before the negative “transformation” of the public sphere, Habermas wrote, “although construed as ‘power’, legislation was supposed to be the result not of a political will, but of rational agreement” (idem). Similarly, public opinion was held to be a refining mechanism that allowed reason, not will, to emerge:
Public opinion was in principle opposed to arbitrariness and subject to the laws immanent in a public composed of critically debating private persons in such a way that the property of being the supreme will […] could strictly speaking not be attributed to it at all. (Habermas, 1989, p. 81)
Public debate was supposed to transform voluntas into a ratio that in the public competition of private arguments came into being as the consensus about what was practically necessary in the interest of all.(Habermas, 1989, pp. 82-83)
The structural transformation that Habermas lamented came about, he believed, in the move from common to conflicting interests. Before this transformation, “the model of a public sphere in the political realm […] claimed the convergence of public opinion with reason” (Habermas, 1989, p. 130). It was thus supposed to be “objectively possible (through reliance on an order of nature or, what amounted to the same, an organization of society strictly oriented to the general interest) to keep conflicts of interest […] to a minimum” (Habermas, 1989, p. 131). Even the “firm rules of equality and frankness, under a code of self-protection and courteousness” that structured discussion in environs such as the coffeehouses were “based on a justifiable trust that within the public – presupposing its shared class interest – friend-or-foe relations were in fact impossible” (Habermas, 1989, p. 131). Yet once “the public was expanded” by the press and presumably by an extended franchise,
conflicts hitherto pushed aside into the private sphere now emerged in public. […] The public sphere, which now had to deal with these demands, became an arena of competing interests fought out in the coarser forms of violent conflict. Laws passed under ‘the pressure of the street’ could hardly be understood any longer as embodying the reasonable consensus of publicly debating private persons. They corresponded more or less overtly to the compromise between competing private interests. […] The unreconciled interests which, with the broadening of the public, flooded the public sphere were represented in a divided public opinion and turned public opinion (in the form of the currently dominant opinion) into a coercive force, whereas it had once been supposed to dissolve any kind of coercion into the compulsion of reason. (Habermas, 1989, pp. 132-33)
After this transformation, political thinkers had to resign themselves to “the inability to resolve rationally the competition of interests in the public sphere” (Habermas, 1989, p. 144). Society was now “forced to relinquish even the flimsiest pretense of being a sphere in which the influence of power was suspended” (ibid., 144) and became “a mere nexus of coercive constraints” (Habermas, 1989, p. 145). Once “[…] the masses […] succeeded in translating economic antagonisms into political conflicts” (Habermas, 1989, p. 146), “the foundation for a relatively homogeneous public composed of private citizens engaged in rational-critical debate was […] shaken” (Habermas, 1989, p. 179) and “competition between organized private interests” entered the fray. “The consensus developed in rational-critical public debate […] yielded to compromise fought out or simply imposed nonpublicly. The laws that come into existence in this way can no longer be vindicated as regards their elements of ‘truth’ […]” (Habermas, 1989, p. 179). Any consensus that might arise in these conditions “does not seriously have much in common with the final unanimity wrought by a time-consuming process of mutual enlightenment, for the ‘general interest’ on the basis of which alone a rational agreement between publicly competing opinions could freely be reached has disappeared” (Habermas, 1989, p. 195). After this transformation, it was no longer possible “within the political public sphere to resolve conflicts on the basis of relatively homogeneous interests and by means of relatively reasonable forms of deliberation” (Habermas, 1989, pp. 197-198), no longer possible “to encase the parliamentary conflict settlements in a system of abstract and general laws with a claim to rationality and permanence,” because economic decisions were no longer made by the market “in principle […] apolitically” but were now settled in the political system. This transformation made a politics based on “reason” no longer possible:
[A]s soon as private interests, collectively organized, were compelled to assume political form, the public sphere necessarily became an arena in which conflicts also had to be settled that transformed the structure of political compromise from the ground up. The public sphere was burdened with the tasks of settling conflicts of interest that could not be accommodated within the classical forms of parliamentary consensus and agreement; their settlements bore the mark of their origins in the market. Compromise literally had to be haggled out, produced temporarily through pressure and counterpressure and supported only through the unstable equilibrium of power constellations between state apparatus and interest groups. Political decisions were made within the new forms of “bargaining” that evolved alongside the older forms of the exercise of power: hierarchy and democracy. (Habermas, 1989, p. 198)
To Habermas’s dismay, sometimes the “haggling out of compromises” even “moved to extraparliamentary sites” in the German neocorporate system of blessing with state support agreements on wages and working conditions reached by organized unions and business. In his view, “the creation of collective bargaining regulations so shatters the forms of the old style public sphere (founded on trust in the power of reason) and the antagonism between interests which lies at its basis objectively affords so little chance for a legislation in accord with liberal criteria that these compromises are kept away from the procedure of parliamentary legislation” (Habermas, 1989, p. 199). This new system produced a form of “compromise formation that is largely a matter of organization-internal maneuvering,” far from the old ideal of “the power-free flow of communication within a single public” and “neutrality as regards interests” (Habermas, 1989, p. 202).
Habermas thus agreed with Carl Schmitt, who wrote in 1923 that the parliament was no longer an “assembly of wise men chosen as individual personalities by privileged strata, who sought to convince each other through arguments in public discussion on the assumption that the subsequent decision reached by the majority would be what was true and right for the national welfare” (Schmitt, 1988, quoted in Habermas, 1989, 205-206). For Habermas, once irreconcilable conflict emerges, “public opinion” in the strict sense (public rationality exercised on a general interest) is almost impossible. Today, for example, “the unresolved plurality of competing interests […] makes it doubtful whether there can ever emerge a general interest of the kind to which a public opinion could refer as a criterion. A structurally ineradicable antagonism of interests would set narrow boundaries for a public sphere […]” (Habermas, 1989, p. 234).
A few years later, in a preface to the second edition of his 1923 work, Schmitt deplored the dominance of conflicting interests in the Weimar parliament and the lapse of what he called Diskussion. By “discussion” Schmitt did not mean any form of talk:
“Discussion” here has a particular meaning and does not simply mean negotiation. […] Discussion means an exchange of opinion that is governed by the purpose of persuading one’s opponent through argument of the truth or justice of something, or allowing oneself to be persuaded of something as true and just. Gentz […] puts it well: […] that laws [should] arise out of a conflict of opinions (not out of a struggle of interests). To discussion belong shared convictions as premises, the willingness to be persuaded, independence of party ties, freedom from selfish interests. […] By contrast conduct that is not concerned with discovering what is rationally correct, but with calculating particular interests and the chances of winning and with carrying these through according to one’s own interests is also directed by all sorts of speeches and declarations. But these are not discussions in the specific sense.6 In that 1923 work, Schmitt saw in the parliament of the Weimar Republic the demise of a tradition of “public discussion, that is, reason” which he explicitly contrasted to “force.”7 In his view, proponents in the class struggle in the Weimer Republic had no scruples at using the “kind of force” in which the enemy “is not to be educated, but eliminated. […] a real and bloody struggle” based on “the direct use of force,” requiring on occasion that one “spill blood.”8
Schmitt wrote these thoughts one year after Joseph Schumpeter had suggested that extending the franchise had doomed parliamentary deliberation. In Schumpeter’s view, universal suffrage had produced party machines and organizations that used irrational appeals to the masses. This fact alone, he argued, “disposes of rational argument […]” Now “agitation and victories outside [parliament] will be more important than a good speech in the house. […] That has destroyed the original sense of parliament, broken its original technique, made its activity look like a farce.”9 Although parties that had come to represent particular social classes could reach compromises, he wrote, they had “basically nothing to deliberate or discuss with one another.”10
Forty years later, Hannah Arendt similarly contrasted deliberation and interests:
Opinions are formed in a process of open discussion and public debate […]. The same is not true for questions of interest and welfare, which can be ascertained objectively, and where the need for action and decision arises out of the various conflicts among interest groups. Through pressure groups, lobbies and other devices, the voters can indeed influence the actions of their representatives with respect to interest, that is, they can force their representatives to execute their wishes at the expense of the wishes and interests of other groups of voters. In all these instances the voter acts out of concern with his private life and well-being, and the residue of power he still holds in his hands resembles rather the reckless coercion with which a blackmailer forces his victim into obedience than the power that arises out of joint action and joint deliberation. (Arendt, 1965, pp. 272-73)
Arendt thus excluded not only the conflict of material interests but also the power as coercion that majority rule entails from the realm of legitimate democracy.
Jürgen Habermas’s thought has evolved considerably in the forty-three years since his Transformation of the Public Sphere, published about the same time as Arendt’s conclusions on these matters. Yet he has never in that time allowed any legitimacy to the aggregative aspect of democracy, which rests to some degree on coercive power (for example, in theory, on the equal power of every voter), which Arendt compared to the “reckless coercion” of the blackmailer. Habermas has nevertheless moved toward some acceptance of “strategic” action (aimed at winning) in addition to his preferred “communicative” action (aimed at understanding) in democratic politics. In a 1976 article that mostly lauded Hannah Arendt for opposing any use of coercive power in politics, he lightly criticized her for not giving strategic action any role at all in the “realm of the political” (Habermas, 1985, p. 182). As he delicately put it, strategic action “has taken place also within the city walls” (Habermas, 1985, p. 182); thus “we cannot exclude the element of strategic action from the concept of the political” (Habermas, 1989, p. 183). Both then and now, however, Habermas has never accorded the word “legitimate” to strategic action, with its concern for acquiring and exercising political power. Rather, as he put it then, “legitimate power arises among those who form common convictions in communication free from coercion” (Habermas, 1989, p. 183). In his analysis, common convictions formed in coercion-free communication create the legitimate power for which strategic actors then compete, in ways that can be “normalized” (Habermas, 1989, p. 182) and “institutionalized” (Habermas, 1989, p. 183). In Between Facts and Norms, his most recent major work, Habermas continues to claim that “only those statutes may claim legitimacy that can meet with the assent (Zustimmung) of all citizens in a discursive process of legislation that in turn has been legally constituted” (Habermas, 1996, p. 110, emphasis mine).11 In Habermas’s view the justificatory apparatus that in a situation of conflicting interests legitimizes the exercise of political power by some citizens over others has no value in itself.