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Public Law & Legal Theory


The theory and the practice of democracy alike are entangled with the prospect of failure. This is so in the sense that a failure of one kind or another is almost always to be found at democracy’s inception. Further, different kinds of shortfalls dog its implementation. No escape is found in theory, which precipitates internal contradictions that can only be resolved by compromising important democratic values. Out of localized failure, indeed, comes wholesale breakdown. A stable democratic equilibrium proves elusive because of the tendency of discrete lapses to catalyze wider, systemically disruption. Worse, the very pervasiveness of local failure also obscures the tipping point at which systemic change occurs. Social coordination in defense of democracy is therefore very difficult, and its failure correspondingly more likely. This thicket of intimate entanglements has implications for both the proper description and normative analysis of democracy. At a minimum, the nexus of democracy and failure elucidates the difficulty of dichotomizing democracies into the healthy and the ailing. It illuminates the sound design of democratic institutions by gesturing toward resources usefully deployed to mitigate the costs of inevitable failure. Finally, it casts light on the public psychology best adapted to persisting democracy. These epistemic, psychological, and institutional projects have not been identified, or extensively discussed, in recent political philosophy. That latter tends to focus on social choice questions, deliberative democracy, or accommodations with Rawlsian political liberalism.1 But to grasp the proximity of democracy’s entanglements with failure is to temper the aspiration for popular self-government as a steadystate equilibrium, to open new questions about the appropriate political psychology for a sound democracy, and to limn new questions about democracy’s optimal institutional specification. It is, for these reason, a worthwhile enterprise for political philosophy.

In developing these claims, I use the terms ‘democracy’ and ‘failure’ in the following capacious senses. By failure, I mean simply a falling short of an aspiration or goal that is inherent in a specific enterprise. Consider, by way of example, what it means to fail as a parent. I also fail if I expose my child to avoidable, yet disabling injury. I also fail her, though, if I needlessly lose my temper at her trivial mischief. This second sort of failure is not in isolation fatal, but can have grave effects over time. This is a capacious understanding of failure: It takes as a counter-factual an idealized well-functioning and inclusive democracy, one that enfolds the best of the manifold flawed polities we can observe in the world. I adopt this definition in part because of the possibility that small dysfunctions can, over time, aggregate to systemic threats. Hence, in the parenting context, a broken leg may heal, but the cumulative effect of my repeated failures to maintain my composure may, in the fullness of time, inflict great harm on my daughter’s psyche and well-being. Big things, that is, can have small beginnings.

I define a democracy for present purposes as a set of institutions through which all the adult citizenry of a nation routinely and effectively shapes how political power is exercised.2 Although relatively thin, this definition still embodies a certain number of normative commitments: It entails a certain kind of inclusion of all the polity; a linkage between that whole people and political power (i.e., not control by a minority); and a commitment to maintaining the system of popular control. My definition is, however, mechanistically catholic. It allows for elections, direct democracy, and sortition. Deliberation is not required.3 And no one mechanism has a monopoly on the democracy label.4 More important than any procedural entailment is the system-level possibility of public views materially influencing how state power is deployed. A litmus test for democracy is hence the presence of substantial uncertainty, before new leaders or new policies are selected, about who those leaders or what those policies will be.5 Alternatively, one might ask whether the modal adult citizen has the possibility of participating in the choice of who exercises political power.6

These institutional preconditions pertain directly to a democracy’s claim to legitimacy qua democracy. In the absence of uncertainty over elective choice, and in the absence of some relationship between electors and those elected, there is no plausible argument that a government has a moral argument for compliance on the ground that it is a democracy. Although the actual sociological predicates of state legitimacy and legal compliance likely vary across polities, I think it is fair to say that in observable democratic systems, participants generally believe, to some degree, that citizens have an obligation of compliance with law, even some law with which they disagree, simply because they are participants in a democracy. Moreover, the rule of law necessary to democratic endurance requires officials and judges to have a specific disposition of respect and acceptance toward the law. Continued electoral competition requires incumbents to hold a certain attitude of restraint toward their opponents. Being a member of the loyal opposition remains its own ethics of patience and restraint. Mere “legalism”—the position that ethical obligations are exhausted by rule-following alone7—is singular unpropitious as a psychology of democracy. Unlike chess or Go, therefore, democracy is a game that rests on normative choices and that requires normative commitments from its participants. The plausibility of these normative demands turns on how well basic democratic institutions work. Hence, the manner in which democracy’s necessary mechanisms are vulnerable to failure has implications for the strength of a state’s moral claim to legitimacy, and perhaps the strength of its sociological legitimacy.

The argument of this article has two strands. One aims to tightly hitch the idea of democracy—which typically has a positive valence—with the prospect of failure—usually glossed as negative. Despite incompatible evaluative tilts, I will suggest that democracy cannot be understood except in light of its likely and certain failures, both theoretical and practical. A second strand of the argument then links failure writ small to failure writ large.

The thought that democracy itself is a kind of failure is not new. A long tradition of political thought, starting in Book VIII of Plato’s Republic, condemns democracy as flawed in its inception and practice.8 The republican thought of the Florentine republics, as John Pocock argued, also recognized an especially rich array of “theoretical reasons” for self-government’s failure.9 One can thus imagine an ‘anatomy of anti-democracy,’ akin to the genealogies of anti-liberalism carved by Isaiah Berlin and Stephen Holmes, one that carries Plato’s theme forward to Hobbes and Schmitt, and thence to anarchists, contemporary libertarians, and critical theorists.10 That’s not my project here, although the republican intuition that self-government coexists with its incipient failure chimes with my analysis. Equally, I am not concerned with limning an alternative to democracy. I accept Churchill’s familiar dictum that democracy is the least bad option available.11

Further, I concede that ‘democracy’ as an ideal type does not exist. There are only actual, existing democracies that are congeries of imperfectly formed, variably managed institutions and political formations. None are as good as they could be, but only some are fairly denominated as failing. Indeed, it is useful to think about democracy in terms of those actual, existing institutions as a means to develop from the ground up an understanding of how democracy is constrained by its own normative and pragmatic commitments. It is a way of surfacing what a Marxian would call democracy’s ‘internal contradictions,’ the seeds of its inevitable crises. This inductive approach is different from the posture adopted by other prominent theorists who offer instead “a model for institutions to mirror.”12 My approach thus stands in a revived tradition of non-ideal theory, or political realism, although I hope to avoid having the gravitational pull of brute facts push me into any “uncritical defense” of the status quo.13 Although not all of tensions I highlight can be avoided, almost all can be managed to some extent though institutional design, legal checks, or shared normative commitments among political elites.



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