Journal of Global Ethics
Vol. 1, No. 2, December 2005, pp. 207 – 238
REVIEW ESSAY
James W. Nickel and James Bohman review Carol Gould’s Globalizing Democracy and
Human Rights, and Carol Gould responds.
Gould on Democracy and
Human Rights
Globalizing Democracy and Human Rights
CAROL GOULD
Cambridge, Cambridge University Press, 2004
In Globalizing Democracy and Human Rights, Carol Gould offers a political philosophy
based on a principle of ‘equal positive freedom’. Gould’s view has three broad normative dimensions:
1. A commitment to ‘negative liberty’ or ‘absence of constraint on people’s choices’
(p. 34). ‘[T]he guarantee of civil liberties and political rights is central in the
view I propose’ (Gould 1989, p. 41).
2. A strong egalitarian commitment as seen in the commitment to equality of basic
liberties and rights (p. 72), the emphasis on equal positive freedom where that
means access to the social and material conditions of developing and using a
capacity for choice, the emphatic rejection of racism and sexism, the demand for
‘recognition . . . of each other’s freedom’ (p. 34), and the commitment to economic
and social rights worldwide.
3. A radical commitment to the extension of democratic practices to economic life
and international politics. Gould describes this commitment as ‘normatively
quite demanding’ because it takes democracy ‘to require equal rights of deliberation and participation and, optimally, equally effective rights rather than purely
nominal ones’ (p. 36; see also p. 163).
Gould’s theory gives a prominent role to international human rights. There are lots of
interesting topics in Gould’s book to discuss, but I’ll treat just three. One is to say a
little about Gould’s starting point: an ideal or norm of equal positive freedom. Next
I’ll make some remarks about how one gets from an abstract norm of equal positive
freedom to specific rights and duties. The third topic is Gould’s idea that the right
of democratic participation applies to international organizations.
ISSN 1744-9626 (print)=1744-9634 (online)=05=020207–32
DOI: 10.1080=17449620500327810 # 2005 Taylor & Francis
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Equal Positive Freedom as a Starting Point
The root idea of Gould’s political philosophy is equal positive freedom. Gould takes this
norm to be the principle of justice. She explains it as asserting that ‘there is an equal
and valid claim—that is to say, a right—to the conditions of self-development on the
part of each human being’ (p. 34).
It is not uncommon for contemporary political philosophers to combine demands
for freedom, opportunities and equality (e.g., Rawls 1971, Sen 2000, Raz 1987, and Van
Parijs 1998). Gould’s version has some distinctive features, however. These can be seen
in its inclusion of themes and ideas drawn from Fichte, Marx and Hegel (social ontology, concrete universals); communitarianism (empathy and the ethics of care, group
rights); feminism; international human rights law; and globalization theory. Most distinctive of all is Gould’s advocacy of the extension of democracy to the workplace and
to international organizations.
Gould’s root idea seems to be a single principle, but in fact it contains three
elements—equality, negative freedom and positive freedom or fair access to opportunities and resources—that will often pull in opposite directions. It might have been
better to distinguish a negative freedom norm, an access to opportunities and
resources norm, and a fairness/equality norm.
As a pluralist about fundamental values, I’m not sure that this single (or triple)
principle provides all the resources needed by a theory of political justice. In particular,
I think that a principle of humaneness requiring the avoidance of cruel and degrading
treatment is needed for the justification of some human rights.
The Question of a Specificatory Framework
If one’s starting point is something as abstract as ‘equal positive freedom’ a framework
for working out the meaning of those three words is sure to be needed. The framework’s first job is to structure the derivation of middle-level principles such as specific
human rights and the requirements of democratic participation. After that, it
can guide the elaboration of those middle-level principles and help in dealing with
conflicts between them.
For illustration, this is the job done by Rawls’ Original Position idea and the account
of stages (Rawls 1971). The Original Position takes one from an abstract concern for
fair access to primary goods to specific political principles such as the Difference
Principle. And the theory of stages takes one from the two principles of justice to
the Constitutional Stage, the Legislative Stage and the Application Stage.
Globalizing Democracy and Human Rights mostly deals with specification in an intuitive rather than a structured way. If this part of Gould’s philosophy were more developed we would have better reason to believe that Gould’s elaborations are the ones
required by equal positive freedom—or at least among the best interpretations of
that abstract idea. Gould generally attends to the questions that a specificatory structure would require to be answered, but not always. As we’ll see, Gould sometimes gives
insufficient attention to the requirements of justifying rights-related duties on others.
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If one wants to go from equal positive freedom to a human right to due process in
criminal punishment, for example, one needs to explain what it is about criminal punishment that makes due process rights necessary. First, one needs to show that there are
distinctive threats, abuses or problems present in the application of criminal law. These
are often known through experienced injustices or problems. Second, one needs to
show that these threats, abuses or problems are sufficiently important to justify standing
constitutional or international rights. If the experienced problems were the absence of
public swimming pools or the failure of government to subsidize air conditioners we
would probably say that these problems are not severe enough to justify constitutional
or human rights. Discomfort does not get one into that realm. Here one would appeal
to the root idea of equal positive freedom and try to decide how important swimming
pools and air conditioning actually are to having equal positive freedom.
To aid in making decisions about importance, I have long advocated viewing
human rights as minimal international standards, as ones that pertain to having a
minimally good life (Nickel, 1987). In proposing that idea I was influenced by
Henry Shue’s (1980) suggestion that human rights provide a morality of the depths,
not a morality of the heights. I think that the role of international human rights is
to protect the conditions of a minimally good life for all.
Consider the justification of due process rights. If we can show that such rights are
so useful in dealing with very serious problems in the operations of legal systems as to
be indispensable to the protection of our fundamental interests, then we will have
established that people have a claim-to due process in criminal investigations and
trials. If such rights were not very useful in practice then we would not have a
strong claim to them. One reason the claim-to due process (that is, the rationale
for ensuring that people get due process in criminal matters) must be very strong is
that it will play a key role in justifying imposing duties on judges, police and legislators. The generic individual interest in equal positive freedom must be very
strong, and that interest must connect with due process rights via the great usefulness
of such rights in avoiding unfairness and cruelty in criminal punishments.
Feinberg (1973) was surely right in thinking that establishing a valid claim-to due
process is only half of the justification of such a right. After showing that there is a
justified claim-to due process, one must justify duties on some party or parties to
provide due process. This is what Feinberg called a claim-against. To justify a claim
against, we need to: (1) nominate certain parties as the ones to have duties to
provide due process; (2) show that it is justifiable to impose the necessary duties on
those parties; and (3) show that they have the capacity to carry out those duties in a
sustainable way.
Justifications for claims-against need to take feasibility and efficiency into account
for four reasons. First, rights are expensive to implement and there are lots of them.
Second, there are other goods of high priority that need to be served (infrastructure,
economic development, scientific knowledge, culture). Third, we need to keep the
economy running in order to pay for these rights and goods. Finally, some rights
are fundamental freedoms—and those freedoms constrain how much law and government can impose on people. So does the operation of democratic institutions.
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Joseph Raz (1994) suggests that if there is a direct individual interest in something,
but not one that is strong enough to justify putting others under a duty, the usefulness
of a right to that thing can provide additional (and possibly sufficient) grounds for
putting others under a duty. Raz wrote:
The right of free expression serves to protect the interest of those who have it and
who may wish to use it to express their views. It also serves the interest of all
those who have an interest in acquiring information from others. But here again
the right serves the interests of those who are neither speakers nor listeners. Everyone who lives in a democracy is affected by the fact that this is a society enjoying a
free exchange of information. One may go one step further. If I were to choose
between living in a society which enjoys freedom of expression, but not having
the right myself, or enjoying the right in a society which does not have it, I would
have no hesitation in judging that my own personal interest is better served by
the first option. (Raz 1994, p. 39)
Raz also thinks that the limited direct contribution of civil liberties to one’s own good
helps explain why many people undervalue civil liberties: ‘Many people judge [the
value of civil and political rights] by their contribution to their well-being, and it is
not much. Their real value is in their contribution to a common liberal culture’
(Raz 1994, p. 40).
Raz underestimates the direct interest people have in civil and political rights, but
the general point is well-taken. In justifications of human rights both direct and
indirect beneficial effects on fundamental interests need to be considered. Indirect
beneficial effects boost the priority of the direct individual claim.
Political Liberties and the Right to Democracy as Human Rights
Having sketched a possible framework for deriving specific human rights from equal
positive freedom, let’s now turn to an area in Gould’s book where I think such a framework is helpful, namely in deciding the areas where democratic institutions are to be
used. I’ll first discuss the justification of political liberties and rights at the national
level, and then say a little about extending such rights to international organizations.
Political Liberties and Democratic Rights at the National Level
Gould emphasizes that ‘democratic participation is . . . one of the human rights’
(p. 183). I agree, but it is worth mentioning that democracy has actually been very controversial as a human right. Authoritarians have rejected it because it can destabilize
functional regimes that may be hard to replace with ones that are equally good; representatives of hierarchical societies have rejected it because it licenses the political involvement of women, minorities and nonbelievers; and political scientists have claimed
that it often inflames ethnic tensions. Beyond this, it is widely recognized that the
effective use of democratic institutions is very difficult for low-income countries to
achieve.
Journal of Global Ethics 211
Before turning to the right to democracy, let’s consider rights to political liberties.
The International Covenant on Civil and Political Rights (United Nations 1966)
addresses them in Articles 19, 21 and 22.
. Article 19 (2). Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers.
. Article 21. The right of peaceful assembly shall be recognized
. Article 22. (1). Everyone shall have the right to freedom of association with others.
These are personal liberties covering but not limited to the political realm. They are
individual rights, justified at least in part by their importance to the ability of individuals to have and lead lives of their own. They impose duties on governments to respect
and protect these liberties, and those duties are plausible and feasible.
The political liberties will be more meaningful if there is a duty of governments to
receive and consider petitions. The right to petition government, found in the First
Amendment to the US Constitution, imposes a duty on government to receive and
consider petitions from citizens, but it gives full discretion to government to decide
what to do about such petitions. This modest political right is not found in contemporary human rights documents, but it was resurrected by Rawls in the Law of Peoples
when he suggested that a minimal participatory requirement on non-liberal but
decent peoples is that they run a system that allows complaints to be received and
considered (Rawls 1999).
The International Covenant sets out the right to democracy at the national level in
Article 25:
Every citizen shall have the right and the opportunity . . . (a) To take part in the
conduct of public affairs, directly or through freely chosen representatives; (b) To
vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression
of the will of the electors; (c) To have access, on general terms of equality, to public
service in his country.
This is not just a liberty right. It requires governments to conduct ‘genuine periodic
elections’ that allow all citizens to participate. A right to democracy gives a positive
dimension to the freedoms of political participation found in Articles 19, 21 and
22. It requires governments not just to tolerate political activity or to receive petitions
from citizens, but to share power with them by allowing them to participate in general
elections that will select leaders and policies.
To briefly apply the specificatory framework I sketched earlier to this right, note that
the framework will require showing that:
. People everywhere have a very strong interest in living under and being free to participate in democratic institutions. (Showing this justifies the claim-to.)
. National governments everywhere are justifiably placed under an (exceptionless?)
obligation to govern democratically, and most of them are capable of governing
democratically. (Showing this justifies the claim-against.)
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To justify the claim-to democracy Gould would appeal to the equal right to positive
freedom. She says, quite generally, that ‘the conception of equal rights to the conditions of freedom . . . gives rise to a requirement of democratic decision making in
contexts of common activity’ (p. 196). Without democratic participation there is
the possibility of domination. I’m prepared to allow that democratic participation
in collective activities is a requirement of equal positive freedom, but on my view it
needs to be shown that it is quite generally an important part, that it really does a
lot for a people’s interests in effective freedom. Here’s where we can use Raz’s idea.
We can appeal to all of the social and cultural benefits of democracy to show that it
does a lot to promote people’s interests in effective freedom (and perhaps other
important interests as well). These indirect benefits will boost the priority of the
claim. If the claim-to democracy is very strong, that will make it easier to justify
imposing duties of democratic governance on national governments.
Political Liberties and Democratic Rights at the Global Level
Gould considers ways of ‘instituting democratic accountability in the supranational
bodies that play an important role in steering the course of economic globalization
(e.g., the International Monetary Fund and the World Trade Organization)’ (p. 1)
This is an interesting topic and Gould has a number of useful and sensible things to
say about it.
Gould might have noted—although to my knowledge she did not—that individual
political liberties to speak and publish and to peaceably assemble and protest are
already applicable to supranational bodies. If there is a meeting of the WTO, activists
have human rights permitting them to communicate, assemble, protest and attempt to
be heard by the official participants. But these liberties do not put WTO officials and
participants under duties to listen or to consider what the protesters have to say. The
political liberties provide a way of trying to influence international institutions, but a
very modest one.
A possible move here is to extend the right to petition to supranational organizations. That right would give people liberties and powers to make such petitions
and would impose a duty on supranational organizations to receive and consider
them. Such a right seems likely to be justifiable and may offer a feasible step in the
direction of greater participation by ordinary people in supranational organizations.
A right to democratic participation in supranational organizations that is an international analogue of Article 25 would put supranational organizations under a duty to
allow people in all countries to participate in the selection of the leaders of and representatives to these organizations. Much is unclear about how this might be done.
Gould sensibly emphasizes that new forms of participation will be needed, and she
holds that international democracy, like national democracy, should be constrained
by human rights (p. 181).
Can a right to democratic participation in supranational organizations be justified?
Gould thinks that the claim-to democracy can be easily established, since she holds
that individual participants in any joint activity with shared goals have a right to
Journal of Global Ethics 213
participate in shaping the activity and its goals. For her, the issue is not the claim-to, it
is the content and feasibility of the claim-against. She raises the question of how
worldwide democratic participation could be ‘even remotely feasible with respect to
global bodies for which there are not correlate political constituencies, practically
speaking’ (p. 163).
My own worry begins earlier, with the justification of the claim-to participation in
supranational bodies. The fact that democratic participation has proved supportive of
effective freedom at the national level by preventing domination and other evils gives
us insufficient reason to believe that it can now serve the same role at the international
level, given the institutions we currently have. Our interest in international political
participation is not known to be a strong one, and that means we cannot be sure
that our claim-to such participation has very high priority. And without a strong
claim-to we cannot justify putting supranational organizations under a duty. Feasibility is not the only reason why we cannot justify a right to international political
participation.
It might be objected that this puts us in a bind, since we cannot prove that we have a
strong interest as individuals in international political participation without demonstrating practically that international political participation will substantially enhance
individual positive freedom. But we have little chance of showing that unless people
commit themselves to making international political participation work, and that
requires that they believe they have a strong interest in doing so.
My response to this objection is that we should switch here to the language of value.
New institutions can be developed, tried and refined because they have potential of
strongly supporting important values. Effective freedom for all is an extremely important and attractive value that can inspire and motivate efforts to develop democratic
institutions at the international level. When those efforts have begun to succeed we
will have a better idea of whether human rights require such institutions.
References
Feinberg, J. (1973) Social Philosophy, Prentice Hall, Englewood Cliffs, NJ.
Gould, C. (1989) Rethinking Democracy, Cambridge University Press, Cambridge.
Nickel, J. (1987) Making Sense of Human Rights, University of California Press, Berkeley, CA.
Rawls, J. (1971) A Theory of Justice, Harvard University Press, Cambridge, MA.
Rawls, J. (1999) The Law of Peoples, Harvard University Press, Cambridge, MA.
Raz, J. (1987) The Morality of Freedom, Oxford University Press, Oxford.
Raz, J. (1994) Ethics in the Public Domain, Oxford University Press, Oxford.
Sen, A. (2000) Development as Freedom, Anchor Books, New York.
Shue, H. (1980) Basic Rights, Princeton University Press, Princeton NJ.
United Nations (1966) International Covenant on Civil and Political Rights [online] Available at:
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
Van Parijs, P. (1998) Real Freedom for All, Oxford University Press, Oxford.
JAMES W. NICKEL
Arizona State University
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Rights, Democracy and Global Justice
Carol Gould’s Globalizing Democracy and Human Rights belongs to the second wave of
books on democracy in the age of globalization. In it, Gould not only further develops
her own rich theory of democracy based on an ideal of equal positive freedom but also
extends it to the global level. Like most theorists of global democracy today, Gould
clearly rejects both a world state and a single overarching global political order, in
favor of a plurality of types of democracy and a multiplicity of political communities
and associations at different levels. Also, like many theorists of the second wave, Gould
sees a democratic deficit at the international level and seeks to solve it by more democracy. Given that current democracies have worked together to produce the international system (such as it is), the question of Gould’s book is this: how might
global democracy promote the realization of human rights and the commitment to
human rights through more democracy, where these human rights are understood
to be grounded in a complex ideal of positive freedom?
The complex relationship between rights, democracy and human freedom is certainly one of the central issues of global justice. However, this way of posing the
issue presupposes a different, perhaps more fundamental question: more of what
sort of democracy? Given the circumstances of global politics, it is difficult to determine just what standard of democracy ought to be employed in various transnational
and international contexts and even more difficult to determine whether or not
democracy could be realized under current circumstances. At the very least, a
double transformation of democracy beyond the state model is necessary, a transformation both of its institutional form and of the content of its existing normative ideal.
First, global democracy must become an even better means than the state to realize
human rights and freedom, especially now in the face of the socially destructive features of globalization. And, second, the scope of democracy must be extended and deepened, as the recognition of human rights to political participation transforms just
who it is that is part of the demos and even what a demos could actually be. A plausible
theory of global democracy cannot hold the current democratic ideal and its
institutional structure constant.
I am very sympathetic with the pluralistic and transformative project that Gould
undertakes in this book. Gould accurately diagnoses the failure of nerve in most cosmopolitan theories, and takes the debate some steps further with her careful consideration of the two main issues of global democratic theory: the proper relationships
between democracy, human rights and global justice on the one hand, and the
scope of the democratic community on the other. However, I will argue that the particular answers that she gives to these two questions, while compelling, do not fully
meet the challenge of capturing the deeper structural transformation of democracy
needed for it to be applied beyond and across borders. Indeed, I argue that what is
required is not the philosophical grounding of a new and more demanding conception
of democracy in independent conceptions of rights and positive freedom, but rather in
the first instance a theory of democratization. This practical theory is based neither
Journal of Global Ethics 215
on a particular democratic ideal nor on a theory that justifies the full range of human
rights and freedom, but rather on a conception of the democratic minimum that
would be sufficient to permit democracy to be a means to global justice, and would
ensure that human rights struggles become a means to transforming democracy.
Such an account of democratization requires somewhat different answers to the
main theoretical debates that are the basis of Gould’s account: first, it requires rethinking the relation of democracy, rights and justice; and, second, it demands giving a
different solution to the problem of the scope of the democratic principle. I shall
deal with each of these issues in turn, starting with the relationship of human rights
and democracy, and then turning to the issue of the right to democratic participation.
My argument is transformationalist in Held’s sense of the term (Held et al. 1999):
insofar as it holds that the circumstances of politics in the age of globalization
are sufficiently different so as to require not simply more democracy in order to
promote justice, but a different kind of democracy, and not simply more pluralism,
but a different and more democratic kind of pluralism.
Democracy and Human Rights: Constitutive or Independent?
Gould begins her book with a series of arguments concerning some of the most fundamental issues of democratic theory, particularly the philosophical justification of
democracy in a substantive theory of rights and freedoms. The basic argument is concerned with two possible positions. The first argument takes justice to be prior to
democracy. This claim entails that democracy must fulfill its requirements, and
these requirements can be specified by an independent account of human rights.
Using Gould’s terminology, call this the ‘independent standard account’. The second
argument sees an ideal democratic procedure as itself defining the norms of justice,
and thus could be called ‘the democratic justice account’. Gould puts the problem
with such a constitutive and not merely instrumental account of the relation of
democracy and justice in this way: ‘if democracy is understood as that procedure
that most fully realizes justice (by recognizing equal rights of participation in decision
making), how can it in turn need to be constrained by the requirements of justice?’
(p. 13). Such obviously circular theories come in two varieties, which are not always
clearly distinguished in this chapter. The first could be called ‘fully democratic
justice’, as articulated by Iris Young (2002) among others. This account claims that
justice just is what an ideal and fully democratic procedure would yield, thus
making democracy constitutive of justice. The second is, following Gould, ‘quasidemocratic justice’, where the adjective ‘quasi-democratic’ refers to views like those
held by Habermas or Cohen and Sabel, who argue that justice is not the outcome
of a democratic procedure such as voting, but rather is a deliberative ‘process of
coming to an agreement’ (p. 19) (Habermas 2001, Cohen & Sabel 2004). I think
that the particular claims made in the deliberative theories of democracy described
by Gould as objectionably ‘quasi-democratic’ are not directly concerned with justice
but with legitimacy, where legitimacy is judged in terms of the acceptability of procedures rather than substantive outcomes. According to Gould, what is lacking in
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both of the false conceptions of the relationship between democracy and justice is ‘an
external and independent normative criterion’ that would settle the matter of when
democracy is unjust. This is the central starting point of Gould’s argument, since it
shows the theoretical gap to be filled by her more substantive account in which a
particular conception of rights and positive freedom provides just such a standard.
While this argument has the strength of pointing out a potential circularity in many
conceptions of democracy, the charge is too general to tell against all ‘quasidemocratic’ conceptions. It especially misses the mark by ignoring the role of ideal
proceduralism as it is typically employed in many quasi-democratic accounts. The
claim made in most deliberative theories is not that some actual democratic procedure
is just, but that it is legitimate only to the extent that it fully reflects the conditions
specified in the ideal procedure. As David Estlund (1997) and others have pointed
out, this gap between the ideal counterfactual conditions and any actual decision
already allows for the requisite independence of ideal and actual conditions sufficient
to avoid both circularity and pure proceduralism. The ideality of the procedure
provides an independent standard by which to judge the legitimacy of any actual
democratic procedure. Typically, such procedures embody substantive aspects of
justice, such as freedom from domination and equal consideration. The problem
with quasi-democratic views is not the claim that democracy is essentially related to
justice, but that it is taken to be a means to achieve particular substantively just outcomes. This difficulty holds even if the protection of human rights is the specific just
outcome that democracy is supposed to ensure. Given the variety of human rights
defended by most theorists of positive liberty including Gould, it is equally apparent
that the realization of these rights can be too independent a standard by which to assess
the quality of democracy.
This difficulty can be shown, following Isaiah Berlin, by the possibility that nondemocratic institutions may in fact often be a better means for achieving some of
these same human rights, including economic rights and personal liberties. As
Berlin (1969, p. 129) puts the point with respect to individual liberty: ‘Just as a democracy may, in fact, deprive the individual citizen of a great many liberties which he
might have in some other form of society, so it is perfectly conceivable that a
liberal-minded despot would allow his subjects a large measure of personal
freedom’ (or whatever substantive freedoms one wishes to substitute). Judged by an
appropriate external criterion of the realization of the human rights to these individual
liberties or particular substantive social rights, this outcome would be just. Not only
that: as defined independently of the democratic process itself, this argument would
just as often provide a justification for the superiority of non-democratic institutions
should they be shown to be more effective. I would argue that there is only one form of
freedom that escapes this criticism: the freedom from domination, including the domination of the liberal despot or democratic sovereign. Since the independent standard
proposed by Gould is the full realization of all human rights and positive freedoms,
global democracy may often not be the best way to achieve the ends of justice. This
dilemma can be avoided only if human rights are internally related to democracy,
either constitutively or instrumentally.
Journal of Global Ethics 217
Consider another example that shows how democracy and human rights can come
apart. In Algeria and other places, interventions by non-democratic institutions such
as the military are justified by arguing that they are saving democracy and various
human rights from being overturned by the victory of theocratic parties. Yet in all
such cases, these institutions turn out themselves to be tyrannous and dominating.
In these cases, the external standard of justice has the danger of being too independent
of democracy. But as it is justified in the Universal Declaration of the Rights of Man,
democracy is thought of instrumentally as the best way to ‘foster the full realization of
all human rights’,1 where the important emphasis is on ‘all human rights’. According to
these documents, the best way to conceive the relation between democracy and justice
is then between instrumental and constitutive rather than independent terms. Put the
other way around, the full range of human rights is now seen to imply a ‘democratic
entitlement’, a right to democracy, as well as a ‘right to nationality’ understood as a
right to political membership as such that is the basis of all human rights law
related to refugees and immigrants. If justice is defined in terms of human rights
and these rights are constitutive of democracy, human rights justify democracy not
as an independent standard but as a way of elucidating the aspects of the democratic
ideal. By the same token, it is still wrong to assert with Iris Young that justice depends
upon the ideal constitution of the demos, since rights are necessary conditions to
achieve justice whether or not democratic institutions are ideally constituted.
Indeed, it is difficult to square the dialectical relation of democratization and
human rights that Gould defends in Chapter 9 of her book with the view that
rights are independent standards. A form of democracy that is defective by these
same standards may well be the means by which greater and deeper democracy can
be achieved; conversely, a democracy that realizes many human rights may lack the
institutional capacity to promote democratization.
These considerations suggest that the theory of global democracy ought to have a
different practical orientation. Rather than seek the realization of the full range of
human rights, it ought to be concerned with elucidating the conditions for democratization, or with the use of democracy to promote more or better democracy, thus
lending support to Jane Addams’ old adage that ‘the cure for the ills of democracy
is more democracy’. Many have charged this account with the circularity that comes
with ‘fully democratic’ views, and in some cases the charge hits its target. But it is
not so easy to show that this circularity must be in every case vicious, both with
regard to the problem of creating the conditions for global justice, and especially
when many of the paradigmatic cases of the injustice that globalization produces
concern increased domination and the undermining of the normative status of citizens
and human beings on which legitimate participation is based. Even when quoting
Addams’ saying for its hopeful pragmatic stance, John Dewey immediately adds an
interesting proviso: it can remedy its ills only by becoming a democracy that is ‘genuinely different in kind’ (Dewey 1988, p. 325). It is on the basis of this different sort of
democracy that we make judgments about the injustice of previous democratic practices, such as the slave-holding democracy of the United States before the Fourteenth
Amendment and the more explicit recognition of racial diversity after it. Without such
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a capacity for transformation, democracy may face another vicious circularity: ‘for
democracy to promote justice, it must already be just’ (Young 2002, p. 35). Call this
the ‘democratic circle’. If we treat the democratic principle in a maximalist sense, as
requiring the full realization of a variety of independently specified rights and freedoms, it will be difficult to make democracy a means to global justice. Ultimately,
democracy promotes justice precisely because it enables citizens to demand to be
treated justly, as free and equal persons, from within the democratic process by appealing to democratic norms. In this way, democratization is linked not to the ideality of
procedures but to the minimal justice sufficient for reflexivity, where the more just
arrangement that is the possible outcome of democratic transformation is the
standard by which current democratic practice is judged by citizens who demand
justice.
Next I turn to Gould’s discussion of the scope of the democratic principle. This issue
not only raises the question of global political inclusion, that is, of who has the right to
participate in what decisions, inclusion in decision making raises a deeper issue for
democratic theory applied to global contexts. Despite her acceptance of a plurality
of forms of democracy, it is not clear either that Gould fully distances herself from
the assumption of a single demos or successfully delimits the domain of global
democracy.
From Demos to Demoi
The problem of global political inclusion seems to have a straightforward solution. If
everyone has the right to political participation as one of their basic human rights,
then it is clear that ‘all those affected’ by a decision should have the right to participate
in making it. It would then be tempting to see all human beings as constituting a global
demos, at least in central areas of decision making, in the age of global warming and
global production processes. This cosmopolitan position is well articulated by Held
and other political cosmopolitans. Gould shows that this answer is too simple, in
that it runs straight up against one of the main paradoxes of democratic theory.
While democracy ‘presupposes a conception of the demos, or the collectivity that
has the right to participate in decision making’, Gould immediately concedes (to
Dahl and others) that the scope of this demos and its boundaries cannot itself be
settled democratically (p. 174).2 For this reason we must once again appeal to one
of two possible independent criteria: the first, that ‘rights of democratic participation’
arise in the context of ‘joint activity;’ and second, that rights should extend to ‘all those
affected’. Only the first seems to Gould to allow the delimitation necessary to constitute a demos of the appropriately limited sort. These limits need not be territorial. At
the same time, the second can be justified in a specific domain: when concerns of
human rights are at stake: ‘people at a distance are to be regarded as affected by a
decision if their human rights are affected, where these include economic and
social, as well as civil and political rights’ (p. 178). This implicit shift to an unlimited
domain seems to ensure that everyone would have at least a pro tonto justification for
inclusion in just about any decision under the circumstances of global politics,
Journal of Global Ethics 219
especially since the right of political participation is itself a human right. At the very
least this account leaves the domain of global democracy very large, while leaving
room for local autonomy and self-determination.
Since rights of participation are not merely a matter of de facto membership and
citizenship, a regress looms. To the extent that all people have human political
rights, persons may legitimately claim that any interdependence with others creates
at least a prima facie right to participate in decisions. Moreover, if the issue concerns
the scope of political rights themselves, even if a person or group is not party to
some legal dispute they have a material interest in its resolution. Since human
rights are nearly always at stake in a variety of direct and indirect ways, rights
bearers are able in principle to claim that they have the right to participate in
almost any actual decision at all. Similarly, given the indefinite nature of many
social activities tied to large-scale social institutions and processes, the set of significantly delimited joint activities seems to be rather small. The global and the local
are often thoroughly interwoven, and are often dependent on new forms of global
political authority operating in the background. Here we might think of the decisions
of the WTO, the IMF and so on.
Neither criterion considered by Gould settles what I call the demoi problem. Indeed,
global democracy is not some search for lost congruence between the politically organized space of the authors of the law and the non-political space of the subjects and
addressees of those laws. In any given case of democratically legitimate decision
making as decided by non-democratic means such as historical borders, nationality
and so on, we might ask the following question as a matter of justice: why should
any particular demos have the right to make a decision? Suppose there is a conflict:
should we favor the larger and more inclusive demos? (see Dahl 1983, p. 96). In the
case of borders and jurisdictions more generally, these issues are taken by Dahl to
be simply parametric, leaving little room to develop a normative vocabulary capable
of settling such questions. This explains the lack of fit between much of democratic
theory and a transnational polity such as the European Union. While categories of
modern democratic theory revolve around the state and ‘typically presuppose the
existence of a demos’ (Weiler 1999, p. 268ff.), the transnational polity consists of
demoi. As such, it raises new democratic possibilities and new dangers of domination.
There are many other related problems of institutional design in established democracies, to the extent that such institutions have over time promoted and entrenched
conditions of ever-increasing pluralism, complexity and interdependence. Under
these circumstances, it may also be the case, for example, that some members, qua citizens in one or more units, have lost the full range of their constituent power to initiate
deliberation. It is widely recognized that democratic states may dominate one another
in some particular respect, as is the case in various international financial institutions
with weighted voting indexed to contribution; but political domination is also
common within states as either a consequence of centralization or as the domination
of one unit by another. Such political domination emerges wherever there are multiple
units necessary for good governance. Yet the most common institutional designs are
still guided by the principle that popular sovereignty requires control by a singular
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demos. A good example of this problem is the legal powerlessness of cities as units and
the troubling and persistent injustices that this fact causes for those who live in them.
This example serves to illustrate the conditions under which a transnational democracy of democracies could promote conditions of justice across borders. As many
have suspected, positive law does not necessarily help matters. Since the coercive
aspect of law brings with it the potential for juridification, law brings with it the potential for domination as much as for integration under non-ideal democratic conditions.
In a word, law does not always guarantee the legitimacy of those who exercise the
power of the demos and thus creates the means by which a demos can become a potential dominator of other demoi. Even if cosmopolitans strip sovereignty of its territorial
form through its multiple embodiment at various levels and in different centers of political power, ‘subordination to the general framework’ leaves open the possibility of
legal domination, of the rule of law that is not sufficiently tied to the democratic
tests of popular legitimacy to extend legitimacy directly to the general framework
itself.
I cannot here further address this deep problem of the theory of global democracy,
except to note that Dahl’s approach cannot yield any satisfactory solution. Here I only
note that there is an alternative republican and cosmopolitan tradition that recognizes
the possibility of demoi. Historical forebears of this tradition can be found in the
nearly forgotten federalist tradition of the Enlightenment that emerged from their
rejection of the antiquated form of a centralized Empire. For many republicans
(including Price, Diderot and Turgot, among many others), federalism had the suitable dispersion of power necessary to overcome the increasingly coercive domination
of colonies by the center.3 Given that the problem to be solved was domination,
republicans rejected the idea that the size of the polity was the decisive consideration.
Neither hypothetical nor real contractualism based on counterfactual agreement or
actual consent serve to overcome the potential for domination built into sovereignty
as hierarchical authority. Nor is decentralization as such the solution by itself. Rather,
it is in virtue of being part of a larger, well-ordered republic that the lower units may
effectively govern themselves and be responsive to minority demands. Gould’s criticisms of Held’s top-down cosmopolitan approach take the first steps in the right
direction. However, her rejection of deliberative democracy limits the conceptual
space both for a democracy that is based in interaction and institutionally mediated
deliberation across democratic communities (each claiming local self-determination)
and for an account of transnational democratization based on rights to participate in
decision making not tied to the constitution of some higher demos. While her
discussion of the constitution of human rights through cross-cultural dialogue
seems to accept the importance of deliberation over the substance of human rights
as standards, she draws back from the reasonable conclusion that in a democracy
of demoi these standards are to be worked out through the common deliberation
of those who will live by these rules. How would such a dialogue be organized
institutionally?
This sort of interactive approach is the normative basis for an emphasis on deliberative institutions at the transnational level. In particular, Cohen and Sabel and
Journal of Global Ethics 221
others have discussed interactions between publics and institutions that facilitate
citizens’ influence over dispersed but empowered decision making processes, such
as the Open Method of Coordination (OMC) in the European Union (EU) (Cohen
& Sabel 2004). As I discuss elsewhere, this process is directly deliberative, but not legislative; it does not aim at developing a uniform policy or law that can become the ‘will
of the demos’, but rather organizes a process of deliberation among multiple demoi (see
Bohman 2004). Above all, novel institutions such as the EU committees that coordinate the OMC can act as institutionalized intermediaries that facilitate interaction,
communication and the exchange of information across sites and levels in a
complex and iterated process of decision making. Even if the actual processes in the
EU today are still in need of further democratization, they exhibit two core institutional features that civil society associations and cross-border communities lack:
because they are deliberative and recursive, they can open the agenda and the normative framework that empowers the public to democratic influence and revision. They
permit just the sorts of interaction among publics and institutions that, as Dewey puts
it, ‘break existing political forms’, here by establishing robust connections across
various European publics and levels of decision making. The OMC has also been
applied to the human rights regime of the EU, thereby subjecting the rights
policies of member states to testing and criticism. Indeed, an advantage of the
multiple realizations of rights in the Europolity is that the European Convention of
Human Rights already entitles foreigners without nationality in any EU Member
State to appeal to the European Court of the Rights of Man and the EU Court of
Justice for the juridical recognition of rights.4 Such an approach would not replace
judicial institutions, but rather would create avenues of regularized participatory
and deliberative testing of rights policies in addition to initiating legal proceedings (see Bernard 2003). Such a process would then make member states more
democratic and better at respecting human rights; in a word, it is a process of
democratization.
Gould considers such institutional alternatives and rejects them, including Cohen
and Sabel’s arguments that processes such as the OMC in the EU represent a viable
conception of the institutionalization of transnational democracy in the form of a
directly deliberative polyarchy. I agree that as it stands Cohen and Sabel have not
fully developed their account of the democratic credentials of these practices, and
indeed even admit that as of yet the uses of the OMC have not become fully public.
Using the master argument of her book about the proper relationship between
democracy and human rights, Gould argues that directly deliberative polyarchy is
merely ‘quasi-democratic’ and circular. ‘The rights required to ensure that these
processes are democratic are said to be determined at least in part by the course of
deliberation and thus such rights are left open for redefinition’ (p. 205). Of course,
it cannot be asserted that in any actually existing democracy, liberal or otherwise,
rights are not also open to redefinition in various institutional contexts. Given that
there is no history of jurisprudence and no workable cross-cultural agreement on
the substantive force of human rights as standards, the policies for implementing
human rights as ends should be deliberated upon publicly and in ways permitting
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comparisons across democratic units. The OMC as defended by Cohen and Sabel is
simply one of many different ways to provide an institutional basis for such recurrent
deliberation about standards, including the legal and political interpretation of
various rights.
More importantly, Gould’s criticism of opening rights to public deliberation can be
answered normatively in two ways. First, the redefinition of rights in the course of
deliberation has been part of any historical process of democratization and indeed
is the means by which democracy has historically been used as a means to justice.
More often than not, democratic transformations bring with them new rights and
innovative reinterpretations of old ones. Second, such a process of redefinition is legitimate only if the process meets the democratic minimum (rather than fully maximal
requirements of some putative democratic ideal); that is, if the process permits more
than just consultation or contestation, but rather the development of robust normative powers of initiation and deliberation by participants, including deliberation
about the terms of democracy itself. It is precisely when the interpretation of the substance of rights is open to debate that the dialectic between rights and democracy takes
place. The dialectic is fully reciprocal: if rights are to bring about greater democratization, it is only by incorporating them as norms within various democratic processes. It
is essential to the recursive character of democratic institutions that they function to
create space for new publics if they are to be responsive to new claims to justice. These
claims to justice often concern interpreting various rights and entitlements so that they
become endogenous to the democratic process, as when they become the basis for new
rights and statuses.
Conclusion
I close with one last remark. Suppose that we accept the rich, interactive and dialectical relation between human rights and democracy that Gould so cogently develops.
We might think that in this process the most basic political rights that are related to
having the normative status of a citizen—a self-originating source of claims—are not
up for democratic revision as such. Perhaps this closes the gap between Gould’s
account of human rights and democracy and the alternative that I have only been
able to sketch here.5 Still the gap does not go away, since this very freedom is deepened, widened in the creative acts of democratization that comes from participating
in the demoi of global society. The very fact that people have the right to participate
in any decision that affects their basic human rights shows that democracy cannot be
fully constituted by one demos or another, but can only be multiply realized in a
variety of demoi, including ultimately humanity as a political community, to
whom each individual can ultimately appeal for justice on the basis of human
rights. I am sympathetic with Gould’s diverse solutions to the problem of the
scope of democracy, but they gain more force and some coherence by, among
other things, rejecting the idea that a singular demos is a necessary condition of
democracy and by adopting an account of democratization based upon the role of
Journal of Global Ethics 223
rights in democratic institutions as both the subject and terrain for the exercise of
global political rights.
Notes
[1] UNCHR Resolution 1999/57, paragraphs 1 and 2.
[2] This is a widely held assumption of liberal democratic theory. In order to show that it is
not specific to Gould’s account, it, can be shown that authors whom she otherwise criticizes clearly accept this same argument about the scope of global democracy. See, for
example, Habermas (2001), p. 63. See also Benhabib (2004). She says that there is ‘no
way’ to cut the ‘Gordian knot linking territoriality, representation, and democratic
voice’ (p. 219).
[3] As Anthony Pagden (1995) puts it, ‘the Enlightenment was, perhaps more than has been recognized, the product of a world which was ridding itself of its first, but by no means, alas, its last
imperial legacy’ (p. 200).
[4] Joseph Weiler (1998) points to the case of Gayusuz versus Austria that went to the European
Court of Human Rights and led to the extension of social security benefits to third-country
nationals (p. 719).
[5] For a fuller account of these arguments, see my Democracy Across Borders: From Demos to Demoi
(forthcoming).
References
Benhabib, S. (2004) The Rights of Others, Cambridge University Press, Cambridge.
Berlin, I. (1969) ‘Two concepts of liberty’, in Four Essays on Liberty, Oxford University Press, Oxford.
Bernard, N. (2003) ‘A “new governance” approach to economic, social, and cultural rights in the EU’,
in Economic and Social Rights Under the Fundamental Charter of Social Rights of the European
Union, eds T. K. Hervey & J. Kenner, Hart Publishing, Oxford, pp. 247– 68.
Bohman, J. (2004) ‘Constitution making and institutional innovation: the European Union
and transnational governance’, European Journal of Political Theory, vol. 3, no. 3, pp. 315– 337.
Cohen, J. & Sabel, C. (2004) ‘Sovereignty and solidarity: EU and US’, in Governing Work and Welfare
in a New Economy: European and American Experiments, eds J. Zeitlin & D. Trubek, Oxford
University Press, Oxford, pp. 345– 375.
Dahl, R. (1983) ‘Federalism and the democratic process’, in Liberal Democracy, ed. J. Pennock &
J. Chapman, New York University Press, New York.
Dewey, J. (1988) ‘The public and its problems’, in The Later Works, 1925 – 1927, Vol. 2, Southern
Illinois University Press, Carbondale, IL.
Estlund, D. (1997) ‘Beyond fairness and deliberation’, in Deliberative Democracy: Essays on Reason
and Politics, eds J. Bohman & W. Rehg, MIT Press, Cambridge, pp. 173– 204.
Habermas, J. (2001) The Postnational Constellation, MIT Press, Cambridge.
Held, D. A., McGrew, A., Goldblatt, A. & Perraton, S. (1999) Global Transformations: Politics,
Economics, and Culture, Stanford University Press, Stanford, CA.
Pagden, A. (1995) Lords of All of the World, Yale University Press, New Haven, CT.
Weiler, J. H. H. (1998) ‘An “ever closer union” in need of a human rights policy’, European Journal of
International Law, vol. 9, pp. 658– 723.
Weiler, J. H. H. (1999) The Constitution of Europe, Cambridge University Press, Cambridge.
Young, I. M. (2002) Inclusion and Democracy, Oxford University Press, New York.
JAMES BOHMAN
Saint Louis University
224
Review Essay
Beyond Minimalism in Human Rights
and Democracy: a Response to Nickel
and Bohman
Introduction
I am honored to have James Nickel and James Bohman comment on my book
Globalizing Democracy and Human Rights, and each offers an interesting and challenging critique of some of my key points. James Nickel focuses on the need for specifying my principle of equal positive freedom by way of giving middle-level justifications
of human rights that are entailed by it, and especially of the right of democratic
participation in national and international contexts. He further characterizes his
own position as a minimalism of human rights. James Bohman argues against my
conception of democratic participation as applicable to all contexts of common
activities and as required when transnational institutions significantly impact
people’s possibilities of realizing their human rights, where these democratic
processes can in turn be legitimately constrained by human rights themselves. He
proposes instead what he calls a more minimalist and pragmatic account of
democratic deliberation that operates to generate accountability of international institutions to the new public spheres that form around them. Implicitly, then, I am asked
to defend what is regarded as a more maximalist account of democracy and human
rights, and I indeed accept this characterization in certain respects and will address it
here.
Beyond my core concern with the relations between democracy and human rights,
my book deals with a significant number of additional issues, which I take to be
strongly related to this core concern. As Nickel points out, these topics range from
the idea of concrete universality and the role of care and solidarity in democratic
theory, to the idea of embodied politics and an account of needs, to cultural identity
and group rights, racism and democracy, stakeholder theory in the context of the
corporation, technological networks for democratic participation, and finally to
understanding terrorism in relation to concepts of empathy and democracy. While
it would be good to be able to discuss these additional themes in more detail in
this reply, my two commentators legitimately focus on certain main questions in
the book’s treatment of human rights and democracy, where these issues are also
of interest to those authors in their own important work. I trust that some of the
additional concepts I have just mentioned will come into this discussion at various
points and that readers will be prompted to follow up afterwards on those that
interest them.
James Nickel’s comments
First, I should say that I take much of Nickel’s account of the specificatory framework
for human rights as a sort of friendly amendment to my own views, at least until he
Journal of Global Ethics 225
gets to his concluding challenges regarding democracy in international institutions.
Nickel’s account of the middle-level justification of human rights in terms of protecting people’s various important interests is helpful, and represents a way to fill out my
own view. In my book, I too characterize human rights as protecting certain basic freedoms, needs and interests, and take rights as valid claims. Thus, I find his lucid
account of claims-to and claims-against congenial to my own approach.
Moreover, Nickel quite correctly identifies equal positive freedom as the principle of
justice that I advance and analyzes it nicely. But he proposes that its three elements be
separated—namely, the commitment to negative liberty, the commitment to equality,
and the idea of positive freedom as access to the material and social conditions for
activity and for the development of capacities, understood as a process of selfdevelopment or self-transformation. For Nickel, a negative freedom norm, a
fairness/equality norm and an access to opportunities and resources norm are disparate, and in addition require supplementation by a principle of humaneness if we are
to succeed in justifying all the human rights.
However, I suggest that the strength of the principle of equal positive freedom as a
principle of justice is that it holds these multiple facets together, for they are essentially
interrelated. Thus, access to opportunities needs to be prima facie equal. And why is
this? Because of their tie to freedom as self-transformation, which requires not only
free choice and its protection through civil liberties and political rights but also
access to enabling material and social conditions. Without these interconnections, it
seems to me that each aspect of the principle would become ad hoc. I would
further observe that since the freedom in question is that of human individuals, it’s
puzzling to suppose that we could recognize these persons and their agency, as
required by equal positive freedom, without in fact treating them humanely.
One reason that I do not dwell on the intermediate justifications of civil liberties
and political rights is that I see negative freedom as entailed by the conception of
equal positive freedom itself, and I believe that traditional civil and political rights
have been well derived and substantiated by many other theorists. Hence, in part, I
simply take over those justifications, already given by numerous others, while extending the justification of democracy more broadly than they do. Yet I draw a closer connection between democracy and freedom than is customary in standard accounts and
I see democracy as more than a form of government or set of procedures. I will make
some comments on that in what follows and will also address Nickel’s skepticism in
regard to justifying a right to democratic participation beyond the traditional
nation-state framework.
It would be helpful first, however, to clarify how the conception I advance of
freedom and its conditions grows out of my earlier social ontology of individualsin-relations and is thus distinct from the established liberal notion of persons, with
their various interests, on which Nickel relies in his comments. In the alternative I
advance, the practical and concrete agency of individuals over time is crucial, and
their activity is understood to require access to conditions, both negative and enabling.
The negative ones include not only the traditional absence of state interference, but
also freedom from domination by others, and the positive or enabling conditions
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include both material and social ones. Activity in this view is taken to involve the
transformation of given conditions and requires social recognition and a strong
conception of social relationships; through this process it is self-transformative, or
involves the development of capacities, where such transformation can take place in
individual or social contexts. I prefer this account of activity within conditions
to the idea of the individual as a bundle of interests (the language that Nickel
employs).
Human rights, both basic and non-basic, can then be seen to specify the conditions
that people need if they are to realize projects or transform themselves individually or
socially. In the most general sense, they are claims not only against a government, but
are claims that each rightly make on all others to organize our social, economic and
political lives in ways to make possible the fulfillment of our freedom, needs, and fundamental interests. In this future-oriented sense, human rights are quite demanding.
And while I am sympathetic to Nickel’s desire to keep the account of the recognized
human rights rather minimal, I seek to do so by giving priority to what I call basic
rights as conditions for any human action whatsoever, and yet allow for a set of
non-basic rights that specify conditions for the further elaboration of this activity in
self-transformation or self-development.
Among the conditions for freedom is participation in common activities, because of
the social character of individuals and because systems of cooperation and the realization of shared goals permit the achievement of ends that individuals cannot accomplish on their own. The argument for democracy follows from the character of
freedom as presupposing self-determination and as requiring the absence of domination, in both personal and in social and political forms. If participation in common
activities is a condition of freedom (as self-transformation), then if people are to be
self-determining in regard to such common activities, which are defined by shared
goals, they must have rights to co-determine the activities (since no one of them
has more of a right to self-determination than do the others, and therefore no one
can legitimately determine this collective activity for another), that is, they have
equal rights to participate in deliberations and decision making about it. This is
the principle of democracy, which is seen to extend to economic and social institutions
as well as political ones, and which needs to be based on reciprocal relations in personal life as well. In this conception, democracy is understood normatively not
simply as a set of procedures but also as a substantive form of social relations characterized by reciprocal recognition of the equal freedom of the participants and their
shared role in co-determining their activity. Democracy in this sense is not only
required instrumentally as a way to realize people’s basic interests, but is required as
an expression of their free activity in social and political institutions and more generally in associational contexts.
Thus, in regard to the extent and the form of democracy, the conception in this
book, as in my earlier one, is indeed a maximalist one, perhaps even one of radical
democracy. It should be stressed, however, that it does not entail that all decisions
of communities and institutions, whether at local or transnational levels, need to be
made by everyone involved in them or subjected to votes. Rather, the argument is
Journal of Global Ethics 227
that there is a prima facie requirement of rights of participation in deliberation and
decisions by those engaged in common projects.
Given globalization, however, potential democratic communities are increasingly
cross-border or transnational, and this poses the question of how to apply democratic
modes of decision-making, both in my sense and in more traditional ones, to the
variety of these new communities. Some of these new communities are what I have
called emerging cross-border or transnational localities. The suggestion in my book
is that democracy will apply to these associations and communities in a plurality of
ways. I also argue that a variety of interpretations of democracy (and human rights)
are in fact normatively acceptable, provided they involve equal rights of participation
and no permanent renunciation of the power of decision. Thus the concept of
democracy should not be taken in exclusively American or Western European
incarnations.
My approach differs from standard conceptions of democracy that see it as entailing
rights on the part of all affected by a decision to participate in making it. I criticize this
‘all affected’ principle in the book, especially in view of the difficulties of delimiting all
who may be affected, a feature exacerbated by globalization, which renders the principle in this pure form inapplicable. Nonetheless, in addition to my somewhat communitarian emphasis on common activities and associations, I do propose a certain
role for permitting input from (or, in some cases, more strongly allowing for fullfledged participation) on the part of those affected by decisions in the context of
economic and social globalization.
In regard to decisions by important multilateral institutions like the WTO and the
IMF, which set conditions for people’s ability to gain means of subsistence and otherwise realize their basic human rights, particularly for those in the Global South, I argue
that people at a distance who are importantly affected in their ability to realize their
basic human rights ought to have input into these decisions. Thus the fundamental
principle remains that of rights of participation in common activities; but given the
growing impact of decisions on people at a distance, it is supplemented by an
additional principle that specifies when those affected need to have input into these
decisions, namely, when they are affected in their human rights, or at least in their
basic human rights.
This latter principle can be brought closer to the earlier one of common activity by
recognizing that democratic self-determination also requires some degree of (shared)
control over the conditions of one’s activity (and not only over the activity itself)
(see Gould 1988, especially Chapter 6). Accordingly, where people at a distance are
fundamentally affected by decisions of multilateral organizations or transnational
corporations, there may well not be fully shared goals at stake, but the decisions of
these powerful agents do set conditions for the activities of those at a distance,
where these may seriously affect their ability to realize their human rights. Thus to
the extent that they are to have some control over the conditions of their activity,
they need to have some input into these decisions.
In terms of these considerations, I can now address Nickel’s objections to recognizing a right to democratic participation in relation to international institutions. While I
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reject the idea of world government or a single world community that would entail
rights of participation or representation analogous to those we recognize in nationstates, I would say that, to put it in Nickel’s terms, people’s basic interests (as protected
by human rights to means of subsistence and security of the person) may in fact
readily be significantly impacted by decisions of these multilaterals. A further factor
from the standpoint of justice is that these transnational organizations and the governments that support them may in part be responsible for these impacts. Even apart
from such a direct tie, however, the importance of the basic economic and social
rights, particularly the right to means of subsistence, supports the idea that human
rights impacts need to be considered in the decisions of corporations and the institutions of global governance. We can further recognize that the people who are
affected are indeed concerned with realizing these human rights (not a difficult
assumption) and moreover that to understand the impacts of decisions on them we
in part need to hear from them concerning these effects and concerning their fundamental interests and needs. Relying on Mill’s old observation that people are the best
judges of their own interests, people affected at a distance therefore have rights of
input into these decisions by transnational organizations, if not fully equal rights of
participation in making them.
This democratic right can take various forms, from current weak though helpful
proposals for consultation by these institutions with international NGOs, to
Nickel’s own very convincing proposal of recognizing a right to petition in these
new contexts, to Bohman’s recommendation of input into the deliberation of
experts by new publics (whether this is to operate through the Internet or in faceto-face ways). But such a right to democratic participation also requires the development of new modes of transnational representation within these institutions, beyond
those currently available. Institutional design or redesign to facilitate such influence is
clearly needed. In addition, where people are increasingly connected in new crossborder or transnational communities of various sizes and types—whether economic,
environmental or simply communicative through the Internet—I have suggested that
we need to recognize rights to co-determine the direction of those activities by all
those engaged in them. My view is thus more maximalist than that of my commentators with respect to the scope and extension of democracy, but it is certainly not maximalist in insisting on just one interpretation or understanding of it for everyone, or on
specifying the forms it may take.
It is indeed difficult to imagine the forms that new institutions and new modes of
democratic delegation could have, especially in view of the multiplicity of cross-border
or transnational communities that are emerging. My concern in the book, however, is
mainly to offer a justification for extending democratic participation to these new
transnational institutions and communities. Without such a justification, we would
lack any convincing argument as to why powerful new multilateral or transnational
institutions should in fact be open to such participation.
However, I also suggest that an adequate conception of cross-border democratic
participation, as in more traditional political democracies, sees it as legitimately
constrained by human rights frameworks in case these democratic decisions violate
Journal of Global Ethics 229
the rights of minorities or otherwise infringe on the recognized human rights. Thus I
am sympathetic to the establishment of regional agreements to protect and enforce
human rights, including regional courts to which people could appeal even against
the decisions of their own governments. These represent only some of the complex
interrelations between democracy and human rights that are my focus on in the book.
James Bohman’s critique
That democratic decisions can be constrained by human rights also casts doubt on
Bohman’s formulation of what he takes to be the main question of my book: how
might global democracy promote human rights grounded in positive freedom. It is
clear from the analysis I have given that I see democracy and human rights as mutually
supporting, where both of them are normatively based on the value of freedom (in its
full, positive sense). As I indicated in the previous section, on my view human rights
specify the conditions for freedom, and democracy is required by equal positive
freedom as the norm of justice. Because of its connection to free agency in social
contexts, democracy takes a more substantive form—of reciprocal recognition of
each person’s equality in social interaction, and additionally requires new forms of
solidarity with those at a distance. It will become clear, I think, that many of
Bohman’s criticisms in his interesting article miss the mark by failing to see the integral
connection that both democracy and human rights have to freedom in my theory. In
Globalizing Democracy and Human Rights, my central concern is with understanding
the relation of democracy and human rights in the context of globalization, but I
retain the tie to positive freedom that I developed in earlier work, where this involves
both freedom from domination and access to enabling material and social conditions.
In this book, I am also concerned with working out a new conception of universality
that supports a certain social and historical contextualization of these norms and
allows for a greater multiplicity of cultural interpretations.
To recognize the interdependence of democracy and human rights as I do does not
imply that human rights do not have a certain priority. Thus I do not argue that
democracy and human rights are simply conditions for each other or that they
come into being contemporaneously as Habermas suggests in Between Facts and
Norms (1996, especially pp. 104– 131). And I will try to show that, despite
Bohman’s arguments to the contrary, any alternative to regarding freedom (understood as equal freedom, explicated through and protected by human rights) as
having fundamental normative status will likely be circular or question-begging.
I will turn to that question shortly, and also to Bohman’s arguments regarding
the issue of the scope of new forms of transnational democracy. But it would first
be helpful to clarify why I think that Bohman is mistaken in his use of Berlin to
propose that non-democratic institutions can sometimes be better than democratic
ones for achieving human rights or perhaps even for achieving democracy itself, as
his reference to Algeria suggests. If democracy is understood, as I have proposed, in
terms of democratic self-determination, it follows that it can never be right to
impose it, either internally within a community or state, or on other communities
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or nation-states. Since democracy on my view is an expression of freedom and
required by it, and is the collective form of self-determination, it is in principle up
to the agents directly involved in the common activity to implement democratic
forms of decision through their own actions. Where people live under authoritarian
regimes, it can certainly be legitimate to aid them in establishing democracy, provided
a majority or substantial minority want and ask for this aid, but any imposition is not
justified.
Further, I would suggest that Bohman’s argument at this point wrongly implies that
freedom is only personal freedom, which a liberal-minded despot might then conceivably allow his subjects. Freedom is also a social conception in the form of collective
self-determination, and is an active process where the ends are not achievable through
undemocratic means. Likewise, inasmuch as human rights specify the conditions for
free activity, they cannot be successfully imposed on people without undercutting that
for the sake of which they are adopted. As already noted, freedom requires the absence
of domination, in both personal and socio-political contexts, as well as participation
in controlling one’s own activities and their conditions. This right of participation in
fact amounts to a (rather demanding) requirement for democracy across the range of
associations and communities to which a person belongs.
We might add that it is a further mistake to suppose that the economic human
rights can be separated from the civil and political rights and successfully imposed
by dictators or authoritarian regimes. This claim has, I think, been effectively
refuted in empirical terms by Amartya Sen and others (see Sen 1999, especially pp.
171– 173). In a theoretical perspective, Shue (1980) has shown how rights to democratic participation are essential for people’s claiming and protecting their economic
rights to means of subsistence and conversely that the realization of economic
rights are essential for equal liberty and effective democracy. I rely on this argument
as well in Chapter 9 of my book, where I argue for the interdependence of democracy
and human rights, in this and other senses.
In his own analysis, Bohman in fact appeals to the idea that particular rights against
tyranny and domination are constitutive of justice and he sees democracy as a means
to achieving justice in this sense. But his important emphasis on freedom from domination, which I fully share (though, as indicated, in a broader sense that encompasses
freedom from personal and social, as well as political, domination), raises the question
of whether in fact Bohman—along with other deliberative democrats—is tacitly
appealing to just such a conception of freedom and human rights as the one I
advance or one closely related to it; and indeed, he seems to be in accord with my
approach when he suggests at one point in his article that democracy is required by
justice. For we can ask, where else are we to find the source of the value of freedom
from domination if it is not a feature of human activity? Indeed, when freedom
from domination is proposed as a core value by republican theorists, I do not see
its distinctiveness from an account of freedom of the sort I and some others
present, except that for them freedom from domination is limited to the political
domain. Moreover, to the degree that republican views retain an emphasis on sovereignty and the nation-state, it is difficult to see how they can maintain their full
Journal of Global Ethics 231
significance in the context of transnational democracy and globalization. In this connection, it is somewhat puzzling to continue to rely on the concept of ‘citizens’, as
when Bohman speaks of the new sorts of publics relevant to transnational contexts.
If he means to speak of global citizenship in some new understanding, then it
would be helpful to specify this somewhat further.
Bohman’s central critique of my book, through which he also differentiates his own
influential approach, proceeds by reference to my critique of quasi-proceduralist
theories of democracy. Bohman holds that on my view human rights provide an
independent normative criterion by which democracies can be judged. But this is a
misleading statement of my view. I do argue that democratic decisions can be
rightly constrained by human rights, particularly where these decisions violate the
rights of minorities, and I also argue that a conception of justice as equal positive
freedom, protected and fulfilled by human rights, gives rise to the requirement for
democracy and is in this sense prior to it. In this approach, human rights are not
simply necessary conditions if we are to have democracy, but rather require democracy
(in fact, a right to democracy has come to be recognized as one of the human rights, as
Nickel points out). It is thus the value of (equal) freedom as self-transformative
activity that has priority in my theory and we might say a sort of independence,
where human rights are understood as conditions for its realization. Thus it is possible
to have divergent interpretations of these human rights and to recognize the importance of genuine intercultural dialogue and hopefully achieve greater agreement about
them over time.
We may observe, however, that freedom, as well as the human rights that protect
and enable it, has only a very limited sort of independence in my account, namely,
the sort that it can gain from a social ontology. Freedom and human rights are not
grounded in any kind of transcendent metaphysics, nor do they have an otherworldly
foundation of any sort. Rather, they are based in features of human activity and interaction, and reflect the claims that we reciprocally make on each other for recognition
of our equal agency and our common humanity.
I would propose that this sort of social ontological basis succeeds in avoiding the
question-begging nature of most discourse theories, which ( pace Bohman) in fact
tend to presuppose that freedom, equality and reciprocity are built into ideal discourses. If these normative desiderata are inserted as presuppositions (whether ideal
or real) of the discourse, without independent status or argument, it is not surprising
that they will also emerge from the discourse as constitutive of a norm of justice. It is
also not sufficient to posit human rights simply as conditions for democratic deliberation itself, because this would amount to asserting without further argument that
democracy is an end in itself. Moreover, if these rights are merely instrumental to a
functioning democracy, as in some of Robert Dahl’s formulations, it becomes only
a hope that they will be consistently recognized, and that the rights of minorities
will be sustained by majorities. There is also then no basis for appeal if they are violated.
Bohman presents a related critique that needs addressing: He writes, ‘If we treat the
democratic principle in a maximalist sense, as requiring the full realization of a variety
of independently specified rights and freedoms, it will be difficult to make democracy a
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means to global justice’. I think it partly depends on the meaning of ‘independently’. In
my view, the only really independent element is in fact the self-transformative activity
of people, more richly interpreted than on most traditional liberal views; this freedom,
moreover, presupposes social interaction, including in common or joint activities.
In this way, equal freedom and the human rights that serve as conditions for its
realization are not merely contingent on people’s agreeing to them in a democratic
deliberation, or even hypothetically in an ideal discourse.
This is not to say that interpretation plays no role in explicating this freedom and its
human rights conditions, nor is it to deny that the particular interests and needs that
specify the conditions themselves have a history and depend in part on their social
context. In this sense, the conception of human rights is rather minimalist in seeing
them as core understandings open to divergent cultural interpretations, which, moreover, are transformed and expanded (or hopefully expanded) over time. Of course, to
assert that means of subsistence are basic conditions for people’s activity is also not
purely a matter of interpretation, and requires elaboration in a theory of basic
needs. Yet, the caution that Bohman expresses in his remark is in order in one
crucial respect: we need to remember that there is a danger of excessively limiting
democracy if constitutional or human rights protections become too strong. Good
judgment and a sensitivity to diverse cases are required in their implementation,
and the rights themselves need to be held open to new and broader cultural and
social interpretations.
Bohman’s effort to show that there is a non-circular interpretation of a democratic
minimum may succeed, but I fear it is at the cost of leaving freedom, human rights and
also minority rights too dependent on decisions by rational/ideal or actual democratic
deliberators (even leaving aside the excessively rationalist and cognitivist aspects of
such a view, a point I also develop in my book). Thus Bohman speaks of the
desirability of achieving a democratic arrangement sufficient for citizens to exercise
their creative powers to reshape democracy according to the demands of justice.
But where do these demands of justice come from on his view? It seems that for
him they include self-development and self-government. But isn’t this precisely a conception of freedom of the sort I speak of? Further, he implies that practices are just to
the extent that they treat persons as ‘free and equal’. But this presumably entails that
people are free and equal, as on the equal positive freedom argument. It is not a feature
derived simply from deliberation. To put the point more sharply (and it is unclear
whether or not this applies to Bohman’s view), my impression is that to the degree
that deliberative democrats deny that they are presupposing freedom and equality,
seeing them rather as norms that emerge from deliberation, they may be operating
in bad faith; for they inevitably tacitly appeal to those very presuppositions in
framing their argument and making their case. Of course, I can agree with
Bohman’s statement that ‘democracy promotes justice precisely because it enables citizens to demand to be treated justly, as free and equal persons’. But the question is, are
they free and equal persons? If so, this view is very much like mine. If this is only a
presupposition necessary for democracy, then that would be a different view, but I
would say one that is dangerous from the standpoint of possible tyranny, and
Journal of Global Ethics 233
ungrounded. I am also puzzled by the recursive idea, as he presents it in his article, if
this means that democratic practices can be judged for adequacy only in retrospect.
This certainly would seem to eliminate the possibility of any current critique of
their inadequacies and injustices within them, where such contemporary critique is
in fact an urgent need.
I propose that Bohman’s criticisms sometimes miss the mark because of one
additional misinterpretation of my view. In Chapter 1 of my book, I in fact distinguish
three positions concerning the relation of democracy and justice, not simply the two
that Bohman discusses in his article. There he seems to conflate two of the three
possibilities that I analyze in the book, assimilating the idea that democracy is required
by the norm of justice with the third position I discuss, namely, that democracy is
instrumental to achieving just outcomes in decision making or legislation, and is
legitimated in these terms. But this in fact contrasts with the first position, in which
equal liberty or freedom requires equal opportunities to participate in decision
making independent of the outcome of the decisions. My position is generally
aligned with this first one, whereas Bohman seems to think of me as an instrumentalist
of the third sort. For readers unfamiliar with the book, I should add that the second
position analyzed there holds that democracy is the prior or basic value and civil
liberties and equal rights are justified primarily as necessary for the preservation
and viability of democracy, a position sometimes advocated by Robert Dahl.
In regard to the third position, where the justification of democracy is that it is
instrumental to just outcomes, I distinguish two versions: in one, the criterion
for the justness of the outcomes of democratic decision making is not merely the
appropriateness of the procedure, because even with properly democratic procedures,
unjust outcomes are possible. A second version instead holds that an outcome is just if
it is produced by an ideal democratic procedure, as in the formulation by Iris Young.
On such a view, there would seem to be no appeal possible to any independent criterion of justice. I further distinguish from these the rather complex approach of
Habermas (which has itself undergone some important transformations over time),
yet I raise certain difficulties with his theory as well. Without reciting the extended
argument, and simplifying it here, we can say that the core problem with what we
might call discursive proceduralism is that it appears to build the freedom, equality
and reciprocal positions of the discussants into the ideal procedure that is in turn
supposed to eventuate in agreement about norms, especially that of justice. But
these counterfactual conditions of free and equal participation sound very much
like equal liberty as a traditional principle of justice. The account would then be
rendered circular. It also apparently adduces independent normative criteria not
themselves constituted as consensual norms but rather presupposed for procedurally
legitimate decisions.
Habermas did not originally present discursive practice or dialogue as a model of
democracy per se, which he saw as a question of political organization. More recently,
while regarding the discourse principle as applicable to both law and democracy on the
one hand and to morality on the other, he sharply separates these two domains,
regarding justice as pertaining to the sphere of morality. Regrettably, on my view,
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human rights on this later approach belong only to the sphere of political institutions,
not to that of morality. They are no longer what used to be called the ‘rights of man’
and thus seemingly cannot function as claims that people can make on each other
independent of their nation-states, as I have argued they should be understood.
I believe that the appeal of deliberative democracy in these versions depends on
theorists’ presupposing, often without the necessary argument, the freedom and
equality of the participants, which they build into the discourses. The alternative
(second) position referred to earlier—which simply regards freedom, equality and
human rights as presuppositions for a successful democracy—in turn leaves democracy itself ungrounded. Granting that the ideal of democracy has considerable and
widespread popular appeal in recent times, simply positing its value in this way
would be philosophically unsatisfying. Further, I believe it does not help to appeal
to Estlund’s concept of legitimacy to settle the issue of justification. For one thing,
he advances an epistemic sort of justification for democracy; unlike all these other
approaches, he points to democracy as the best way to achieve correct choices
(making some allowance for justice in his own account). Further, legitimacy on his
approach seems to primarily concern the relation between outcomes (taken as
decisions or choices) and the majority rule procedures employed to arrive at them
(Estlund 1997). This is a rather different issue from the justification of democracy
in relation to justice, which is the main focus of the views I consider in my book.
We can observe, then, that there are in fact two sorts of deliberative democrats and I
count myself one of the first type. In this type, deliberation is recognized as playing an
essential role in the form and practice of democracy. Thus I have argued that democratic participation has to be widely open to discursive contributions from all those
with a stake in the outcomes, which I argue extends to some residing at a distance
from a given community, and has to be inclusive of all who belong to an institution,
association or community, whether political in a strict sense, or social or economic.
Discourse and deliberation, where this is reciprocal, and I would add empathic,
plays a crucial role, then, and indeed needs to be considerably expanded on
grounds not only of conducing to just outcomes but in recognition of the equal
freedom of agents.
Nonetheless, I believe that a second sort of deliberative democracy is not successful
normatively and has been overplayed: that is the attempt to argue that discursive
democratic procedures, even ideal ones, are sufficient for democracy and for assuring
just outcomes. Such views do not give an account of the way democracy is itself
required by justice, where this principle of justice cannot be understood as itself
arrived at consensually, through an ideal or real procedure. Moreover, we need an
analysis of the way in which institutions and associations can embody (or, by contrast,
obstruct) democratic deliberation and decision making, and also of new ways in which
they can protect and fulfill human rights.
This brings us finally to the questions concerning implementing democratic
decision making in contemporary contexts of transnationalism and globalization.
Here, I would like to defend my idea of the importance of considering the scope of
democratic decision making in the face of Bohman’s critique. I will leave aside his
Journal of Global Ethics 235
occasional questioning of the importance of the pluralism of demoi in my own
approach; this pluralism is, of course, as central to my account as to his, as is the
transformation of the idea of democracy itself and its elaboration in global contexts,
though we interpret these factors somewhat differently.
As I indicated earlier, despite the new emphasis I place on the requirement of input
from people at a distance when their fundamental human rights are affected, I rule out
the simple use of ‘being affected’ as the basis for the constitution of a demos; in fact this
is a central argument in my account. And I wish to retain the emphasis on democratic
participation as pertaining to already constituted institutions, associations and communities, understood as characterized by common activity, involving a range of shared
goals. In the account I give, then, common activity is not the same as the more general
notion of interdependence (contrary to Bohman’s apparent assimilation of these two
notions in his criticism). The latter has indeed become ever more transnational. And
were one to take a set of interconnections as a sufficient criterion for the constitution
of a demos, that would indeed make any demarcation of democratic communities
impossible.
Beyond existing communities and associations, I argue in my book that the institutions of global governance ought to permit input, representation, and even a
degree of direct participation when people’s human rights are importantly affected
by the decisions of these institutions (as well as where there are genuinely shared interests that communities or nation-states may rightly co-determine). Apparently like
Bohman in his recent work, my own view is definitively anti-sovereignty (though in
a recent paper [Gould forthcoming, a] I argue for a new conception of self-determination). Thus Bohman’s argument against a single demos and against old-fashioned
sovereignty misses the mark, since I also argue in this way. Further, to the degree
that Bohman calls for a minimum set of powers and conditions that make it possible
for citizens not to be dominated and free to make claims to justice in unjust circumstances, I do not see how they can do this without protection of their human rights.
Indeed, Bohman seems to concede this as an interpretation of his view at the end of his
text. I am apparently more willing than he to see some binding human rights agreements across borders, which can also support regional human rights courts. Yet I
would suggest that this does not entail the sort of domination he fears, if it is introduced through genuine intercultural dialogue and agreements, and if it remains
only a supplemental framework for democratic associations and communities, now
increasingly cross-border.
My approach to transnational democracy thus calls for democratic deliberation and
decision making within existing associations, communities and nation-states, as well
as in new cross-border ones. In addition, I am developing proposals for transnational
representation, and for new forms of deliberation and participation in case people’s
capacities for fulfilling their basic human rights are affected through the functioning
of transnational institutions, whether they be global corporations or the institutions of
global governance (Gould forthcoming, b). Note, too, that I have recently clarified that
it is impact on the basic human rights, rather than the entire range, that most urgently
requires these opportunities for participation. I suggest that open deliberation in what
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I have called an ‘open source model of democracy’ is central to facilitating this input by
distant stakeholders (Gould 2005). Their participation can serve to expand the epistemic communities—most often composed exclusively of elites—that currently
decide important global issues. I see this occurring through the mediation of the Internet and other new technologies, including video in addition to text-based ones, but
with a component of face-to-face interaction as well. Such deliberative modes go
along with a new emphasis on horizontally networked relations among relatively
autonomous local associations and communities. In my book, I call this model one
of intersociative democracy, and see it as requiring new relations of solidarity among
people participating in a variety of overlapping networks and associations.
In the book, I place considerable emphasis on these new social networks and global
civil society. But I do not see the possibilities of democratization as limited to them, or
as eliminating the questions concerning the scope of communities and participation
within them by all their members. Relying on an aspect of Dewey’s view, updated
with a Habermassian account of the public sphere, Bohman calls for the interaction
of institutions with new publics that may form around them. I agree that this is
important and is perhaps the best we can hope for in the near term, with various
sets of non-state actors interacting with and making demands on the new multilateral
institutions of global governance. But it is hardly a recipe for enduring or deep democratic transformation along the lines that Dewey was calling for, which he saw, as I do,
as extending to the multiple associations and institutions of economic, social and political life at all levels. With Bohman’s approach, we will certainly have more transparency and influence of publics on existing governmental institutions. Yet, it is not clear
that these amorphous publics are given an essential role in transforming the transnational institutions themselves or creating new ones. Without further clarification,
which I trust Bohman presents in his own forthcoming book, it may even be
unclear how they can be distinguished from the older idea of ‘pressure groups’. I
would agree that where experts are deliberating, say on the Law of the Sea, it would
indeed be beneficial to have strong input from the public, but how this will
proceed, whether any credentialing is to be introduced for any part of the discourse,
how much input distantly and less affected people ought to have, all remain to be
formulated.
Bohman places emphasis on a specific proposal by Cohen and Sabel for using the
EU’s Open Method of Coordination as a model, particularly for testing rights policies.
Although I find this method of interest as one effective model of networked decision
making, I have two main problems with it. First, it is primarily carried out among
elites and bureaucrats, and does not yet give much public access to the shaping of
policy or decisions. Further, I argue that it cannot be correct to regard the rights to
be adopted as only those that emerge from such a deliberative process. Indeed, this
method already operates within a quasi-constitutional framework of rights, one that
Europe has developed over the past decades.
My objection here as elsewhere is not to the idea that rights should be open to
dialogue, interpretation and agreements across cultures—I have strongly argued for
that view in my book, even in regard to human rights. Rather, my claim is that it is
Journal of Global Ethics 237
incorrect to regard the ground of human rights as simply dialogue itself, as Bohman
sometimes appears to. By contrast, in his concluding remarks he comes very close to
my view of the priority of freedom and justice, in acknowledging the need to recognize
a basis for these rights in being ‘a self-originating basis for claims’. But, unfortunately,
he limits this only to the political rights pertaining to citizenship, rather than the range
of human rights pertaining to human beings. I also precisely share his idea that
freedom expands through ‘participating in creative acts of democratization’, resulting
from participating in multiple transnational demoi. For me as well, freedom is a
process of development and transformation over time, where a certain concrete universality of networked relations can be expansive of human possibilities (though this
must not be conceived in a way that would denigrate or diminish the role of more local
forms of expression).
In conclusion, then, I think we need to fully accept but also to go considerably
beyond Bohman’s important proposals for interaction between governmental institutions and new publics outside them, if people are to gain some measure of real
control over their lives and their joint activities in contexts of globalization, as well
as some modicum of influence over the distant forces that increasingly impact their
basic life possibilities. I would argue that governments, whether national or transnational, need to be brought back into their relation to societies, understood in terms
of the freedom and power of associated individuals, connected in horizontal and overlapping networks, and in new, often cross-border communities. These networks and
communities are not only discursive, but importantly also action-oriented and sometimes affective. To remain simply with governmental institutions on the one hand and
social publics on the other would be to retain the old, sharp separation of state and
society. We can say that in addition to public deliberation, people need opportunities
to participate in decisions, whether directly in innovative ways or through transnational representatives or delegative structures. Further, this democratic participation
would need to take place in a context in which their human rights—including the
full range for which James Nickel has forcefully argued in his work—are adequately
safeguarded.
In short, then, while I share the emphasis on deliberation and on the multiplicity of
new and overlapping transnational democratic communities, I believe we need to be
more explicit in our commitment to freedom and human rights than are many deliberative theorists and we have to address the question of scope of decisions and argue
for input into them by relevant others situated at a distance. In this way, we can make
room for a rather maximal account of a renewed role for democratic participation in a
wider array of institutions and communities and under more diverse interpretations
than is presently recognized, both in theory and practice.
References
Estlund, D. (1997) ‘Beyond fairness and deliberation: the epistemic dimension of democratic
authority’, in Deliberative Democracy, ed. J. Bohman & W. Rehg, MIT Press, Cambridge,
MA, pp. 173– 204.
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Gould, C. C. (1988) Rethinking Democracy, Cambridge University Press, Cambridge.
Gould, C. C. (2005) ‘Global democratic transformation and the Internet’, Keynote Address, North
American Society for Social Philosophy Annual Conference, Rensselaer Polytechnic Institute,
Troy, NY, 28 July.
Gould, C. C. (forthcoming, a) ‘Democratic governance and the idea of self-determination: relating
transnational decision making to local autonomy’, Journal of Social Philosophy, vol. 37, no. 1.
Gould, C. C. (forthcoming, b) ‘Transnational representation: extending participation in crossborder decision making’, in Global Democracy, the Nation-State, and Global Ethics, eds
R. Axtmann, N. Dower & R. Robertson.
Habermas, J. (1996) Between Facts and Norms, MIT Press, Cambridge, MA.
Sen, A. (1999) ‘Human rights and Asian values’, in Ethics and International Affairs, ed. J. Rosenthal,
Georgetown University Press, Washington.
Shue, H. (1980) Basic Rights, Princeton University Press, Princeton, NJ.
CAROL C. GOULD
George Mason University