Annual Theme 2012-2013
The theme was devised in consultation between Professors J.H.H. Weiler, Samuel Issacharoff and Richard H. Pildes.
Orientation Paper
The Straus Institute for the Advanced Study of Law & Justice
2012-2013
THE BURDEN OF DEMOCRACY
Within the United States and around the world, the foundations, possibilities, and meanings of democracy are as up for grabs as at any time since the formation in the late 18th century of modern liberal democracy. Internationally, with the fall of the Soviet Union the “third wave” of democracy has yielded the largest surge of new constitutional democracies since the end of the colonial period after the two world wars. As with any sudden development, it comes as no surprise that the results have been mixed, the machineries of voting frequently imperfect, the commitment to accompanying liberal values problematic. And, yet, it seems that no new country can avoid some aspect of democracy if it is to claim a place at the table of legitimate governments.
What renders these efforts at democracy truly an experiment is the difficult national contexts in which they emerge. The demise of the Soviet Union and the fall of apartheid re-opened the frailty of the very idea of a nation in many of these democracies. Many, if not all, of these societies face the problems of religious and ethnic fracture. Comparative analyses shed light on the successes and failures in trying to stabilize democratic rule. But the distinctive feature of the new democracies is that they largely emerge without a preformed demos, a national identity and a recognizable people whose common destiny was forged before the particulars of governance were organized.
What unites the various experiments in democratic governance is that the institutions of democracy are harnessed for the purpose of managing conflict along deep-seated social cleavages. The idea of using democracy to rein in social conflict defined by race, ethnicity, language, religion, and other such critical divides is of recent vintage. Democratic theory, from John Stuart Mill to John Rawls, presupposed some settled community before setting out the terms that would define legitimate democratic governance. And, yet, this is the political reality of many of the world’s democratic states, particularly the recent entrants onto that stage. And as pressures for regional and racial representation continue to mount in older democracies, including the U.S. and Britain, the same patterns may be observed even in more stable democratic societies.
The modern efforts at democratic stabilization have largely eschewed the formal divisions of power among rival social groups, the signature efforts of consociationalism. Unlike efforts to divide power formally, the new democracies typically pursue a different avenue of nation-building. Rather than securing national unity through formal power sharing along the major axes of social division, these regimes adopt strong constitutional limits on power that seek to constrain the range of decisions that democratically elected governments may take. And, perhaps just as critically, the new democracies of the third wave have focused great attention on a new governmental actor to enforce the constraints on the majoritarian political branches. Thus, the new democracies have either created constitutional courts or endowed supreme courts with ample power of judicial review to enforce the democratic commands of the constitution. What emerges is a species of constrained democracy in which the dominant constraint has been a strong set of constitutional limitations on political power, and with constitutional courts emerging as the major institutional enforcers of the bargained-for constraint.
Within the United States and other mature democracies, at the same time, the longstanding practices central to democratic processes have been under profound challenge. Political parties, long the essential intermediary institution that gave form and coherence to democracy in mass societies, have been withering away. Voters across mature democracies express alienation and disaffection with conventional political parties, and this flight from the political parties can now take more realistic forms with the dramatic rise of ideological and interest groups that can effectively mobilize political support outside the party structure. Similarly, the fragmentation of the modern media, along with the ability to organize new forms of political groupings through the internet, have made the maintenance of a “democratic public” or of a meaningful “public opinion,” far more complex and difficult. The rise in recent decades of identity politics and the politics of recognition have also put tremendous pressure on longstanding means of organizing democracy in the mature democracies. In the United States, the relationship between money and politics, and the question of whether it remains possible for a democratic sphere to be sufficiently insulated from the economic sphere to maintain the former’s legitimacy has become all the more urgent with recent Supreme Court decisions that liberate individual and corporate money to play a virtually unlimited role in the electoral arena. Yet while the United States puts these issues in their most extreme form, many mature democracies continue to struggle with the proper role of money in politics.
Thus, more is asked of democracy today than at any time in the past, particularly with respect to the range of contexts for which democracy is thought to be the appropriate solution. And yet in the places where democracy has been established the longest, dissatisfaction with democracy and challenges to it along numerous fronts are more profound than at any other time. Engaging with this paradox will be the central theme of the year.
