Hyperpluralism and the multivariate democratic polity
Alessandro Ferrara, University of Rome Tor Vergata 24 June 2013

The general topic chosen for the Istanbul Seminars of 2011 is “Overcoming the Trap of Resentment” and in this paper I would like to focus on one specific aspect of this large topic: how to address the possible political consequences of the cultural hyper-pluralism that has become typical of European and Western societies in general? How to prevent the widening gap between the existing and dominant political cultures in European societies and the cultures of immigrants and alien residents to result in a spiral of mounting resentment on both sides — a resentment directed against the symbols of a diversity that refuses to melt into the mainstream and against a pressure to assimilate coming from the majority?

One among the many ways to contribute to answering these questions is by way of pushing the political-philosophical imagination in the direction of critically examining one of the presuppositions we share about what makes for a legitimate democratic rule of law.

We live in societies that are quite different from what standard liberal theory envisaged them to be. They are societies where massive immigration for all regions of the world, the intrinsic dynamism of civil society and the public sphere, and religious evolution have created the condition for which the term “hyper-pluralism” is worth introducing. Religious and ethnic groups have come under public attention, who resist integration into the mainstream of society. France, Germany and more recently Italy and Spain show evidence of this phenomenon. At the same time, mainstream democratic culture over the long run has moved from assimilationist ideals — turning immigrants into members of the hegemonic culture — into allowing for a more flexible pattern of integration, which includes multicultural provisions of diverse scope. This is true even though recently prime ministers of some of these countries have launched powerful signals as to the “death of multiculturalism” and a return to a pristine emphasis on communal, that is mainstream, culture and symbolics.

Yet this somewhat new predicament must prompt a new reflection on the side of a theory of democracy. If “integration” is understood as living together in the same polity as “free and equals”, then it can never be a one-way process of adaptation of one or more “minorities” to the cultural hegemony of the majority, without thereby turning into oppression. Furthermore, integration cannot be just a matter of legal provisions and their relation to the existing rule of law. It presupposes a more general framework for understanding the function and the legitimacy of legal provisions that accommodate diversity within a democratic picture.

The considerations presented here are meant as a contribution to amending the general framework of political liberalism. The argument will start from closer to home — in this case the framework of liberal-democratic theory that forms the backbone of the Western polities. This perspective is meant as conveying a stance of humility and abstention from any patronizing attitude. Before telling anyone else what is best to do or not to do, I think political philosophy ought to offer a critical reflection on what we — meaning by that pronoun those who already identify with the practice of democracy with the spirit of democracy — can do in order to amend the received view of political liberalism in view of the phenomenon of hyperpluralism. This is not just a philosophical challenge. It represents also a contribution that political philosophy can offer in order to prevent the widening gap between the existing and dominant political cultures in European societies and the cultures of immigrants and alien residents to result in a spiral of mounting resentment on both sides — a resentment directed against the symbols of a diversity that refuses to melt into the mainstream (whether the chador which proves so offensive to the French republican sensibility, or the sight of the towering minarets in the Swiss urbanscape), and against a pressure to assimilate coming from the majority. One among the many ways to contribute to that goal is by way of pushing the political-philosophical imagination in the direction of critically examining one of the unexamined presuppositions we share about what makes for a legitimate democratic rule of law.

1 – What is hyperpluralism?

My argument will start then from familiar ground — the notion of a liberal-democratic regime as famously outlined by John Rawls in Political Liberalism — to subsequently move to show in what respect the predicament that I call “hyper-pluralism” represents a challenge to it. Political Liberalism is often presented, especially by those interpreters of Rawls who tend to see a loss of “normative force” in it, relative to A Theory of Justice, as a book that investigates the conditions for the stability of an overlapping consensus around a political conception of justice. These interpreters fail to notice the high degree of normative idealization that is still present in Political Liberalism.

In the first paragraph of the on “Fundamental Ideas”, Rawls starts out with the observation that “there is at present no agreement on the way the basic institutions of a constitutional democracy should be arranged”.[1] Contestation concerns “how the values of liberty and equality are best expressed in the basic rights and liberties of citizens”, and if we want to associate names to the alternatives in dispute, continues Rawls,

“we may think of this disagreement as a conflict … between the tradition associated with Locke, which gives greater weight to what Constant called ‘the liberties of the moderns’, freedom of thought and conscience, certain basic rights of the person and of property, and the rule of law, and the tradition associated with Rousseau, which gives greater weight to what Constant called ‘the liberties of the ancients’, the equal political liberties and the values of public life.”[2]

With this diagnosis in mind, Rawls then understands his own proposal for a political conception of justice — famously called “justice as fairness” — as an attempt to “adjudicate between these contending traditions”, to bring them together, to reconcile them under two principles of justice that can “serve as guidelines for how basic institutions are to realize the values of liberty and equality”.[3] Thus justice as fairness aims at providing a conception of justice that speaks to citizens who subscribe to either of these two contending views and by virtue of that it aims at constituting the core of an overlapping consensus that in turn can ensure the durability of a just society of free and equal citizens over time.

The element of idealization contained in this construction lies in the fact that in very few places in the world can we encounter a polity where these two conceptions are embraced by a majority of citizens. What Rawls calls the fact of reasonable pluralism — the simultaneous presence within the public space of a liberal-democratic society of a plurality of reasonable comprehensive conceptions — turns out then, on closer inspection and especially when his seminal work is drawn on for inspiration in parts of the world other than the United States, to be based on a highly stylized picture. The societies in which we live, especially in Europe, are populated by large sections of the population that adhere to Roman Catholicism, to Islam, to Orthodox Christianity, to Marxism, to Hinduism, to Confucianism, but of course these are also present in the United States, together with orthodox Judaism and evangelical fundamentalism. Of course religious affiliation constitutes in and of itself no obvious impediment to embracing Lockean and Rousseauian views, but on the other hand one could easily imagine that within the seedbed of some of these comprehensive views one or other of the basic constitutional essentials — the idea of equality among all citizens, gender equality, the idea of the citizen as a self-authenticating source of valid claims, freedom of conscience, the consequent ban on apostasy, etc. — could become problematical at least for some of the more traditional citizens.

This is the widespread condition for which I suggest the name “hyper-pluralism”. Such predicament enjoins us to modify Rawls’s famous opening question of Political Liberalism in the following new terms: “how is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by religious, philosophical and moral doctrines some of which are reasonable and susceptible of giving rise to an overlapping consensus, and some of which are only partially reasonable, display only an incomplete acceptance of the burdens of judgment and cannot be brought to endorse all of the constitutional essentials?”

It was obviously beyond Rawls’s intention to explore the potential for “justice as fairness” to constitute the focal point of an overlapping consensus under such extreme conditions, but we may well draw inspiration from his work in order to investigate the prospect for justice in societies other than the one he considered. In so doing, however, we should stay clear of one all too easy and disparaging answer: namely, under the condition of hyper-pluralism there is no chance for an overlapping consensus to materialize that could be robust enough to sustain and legitimate the basic structure and the constitutional essentials, and thus the only options that remain open to such a society are “stability for the wrong reasons” or just a modus vivendi. It is my conviction that Rawls’s political philosophy is rich enough to offer us a better solution.

The first option to be rejected — which I have called “stability for the wrong reasons” — is a predicament in which the liberal-democratic core of the polity in question, namely the citizens who are able to converge on a political conception of justice, basically impose that view, and the constitutional essentials and view of the basic structure therein contained, onto the rest of the citizens by force or the threat of the use of force, or by such means as systematic misrecognition of all cultural alternatives, propaganda, indoctrination, and the like. Such option is unattractive in principle, because it instantly turns the “political-for-the-mainstream-conception-of-justice” into a comprehensive conception when the whole of society is considered, and of course to enlist the coercive force of the law to affirm a comprehensive conception, even if the substance of such conception happens to be some kind of liberalism, is a form of oppression. Such option is also empirically of dubious effectiveness, for stability for the wrong reasons quickly turns into instability, as countless episodes of unrest, rebellion or revolution inspired by religious motives testify.

The second option to be rejected is to suppose that when hyper-pluralism prevents the obtaining of one of the conditions presupposed by the Rawlsian model of overlapping consensus or causes one of these previously satisfied conditions no longer to obtain — namely, when no actual majority of citizens is aware of and accepts the burdens of judgment, the standard of reasonableness, or confers priority to political values over non-political ones — then the whole of the polity in question is bound to regress, so to speak, to a “modus vivendi”- form-of-integration. The reason why this option can be rejected is that there is no argument provided by Rawls, and no conceptual necessity stemming from his line of reasoning, for the assumption that a polity must evolve all of a piece from one stage, say that of religious strife and conflict, onto the next stage of modus vivendi, then on to a constitutional consensus, then on to an overlapping consensus. The impression that such homogenous evolution is the norm may be the effect of the special historical case on whose basis Rawls constructed his theory — the United States (and to some extent some European societies involved in the religious wars of the 17th century). What alternative could be envisioned?

2 – Facing hyperpluralism: conjectural strategies and the original position

In order to think of a different response to the challenge of hyper-pluralism it might be important to look at a model of constructing convergence which is different from public reason. Public reason derives conclusions that are reasonable, or that are reasonably non-rejectable, from shared premises. It is not surprising then that under conditions of hyperpluralism public reason often might idle in a somewhat impotent way for lack of a sufficiently thick layer of “shared premises”. Simply, it fails to reach out to those citizens whose comprehensive conceptions should be included in the overlapping consensus or, if it does, it reaches them with premises that are so abstract and thin as to fail to generate results of any consequence. The next best thing, then, is to resort to conjectural reasoning, explicitly acknowledged by Rawls as another acceptable form of public discourse, along with “declaring” and “witnessing”.[4]

In “Reflexive Pluralism”[5] I have outlined how this conjectural way of proceeding could work for the specific case of accepting the standard of reasonability and the burdens of judgment, and have given above some outline of how such a conjectural argument could run from the standpoint of the Christian and the Jewish tradition. The conjectural strategy belongs in a family of recent attempts to amend the classical model of Political Liberalism in order to make it applicable to context where either no majority of citizens subscribes to political values or the area of overlap among the many competing conceptions of the good is too thin to sustain a viable overlapping consensus on enough constitutional essentials.[6]

It is a strategy that aims at one specific comprehensive conception at a time, and is designed to tap the entire gamut of hermeneutic resources of a religious (or secular, for that matter) comprehensive conception, which obviously is never just of a mind. There should ideally be forms of conjectural arguments aimed at Catholic, Jewish, Moslem, Buddhist, Confucian, Hindu, Taoist believers. Each conjectural argument should then differentiate into specific lines that address the main building building blocks of the liberal-democratic order. While in “Reflexive Pluralism” conjectures in support of the acceptance of pluralism were examined, more arguments of this sort are needed to justify the value of the rule of law, equality of citizens across religious, ethnic and gender lines, to justify rights or their functional equivalents, or the idea of due process, and the like.

In this sense the use of conjectural argument as I suggested in the present paper is a somewhat different exercise than the otherwise interesting attempt pursued by Lucas Swaine in his The Liberal Conscience. Swaine starts from a similar diagnosis of the shortcomings of contemporary liberalism. Liberal views are mainly addressing those who already are convinced and fail by an large to win over the constituencies which identify with the religious Right and most of the orthodox-minded believers of many of the world religions, and fail at that because despite the epoch-marking Rawlsian distancing from the atomistic self, still liberalism fails to show how non-individualistic, communitarian minded views of the social fabric, with their emphasis on duties over rights, on mediation over litigation, on tradition over innovation, might have any reason to wholeheartedly join in the discourse of public reason.[7]

The remedy advocated, however, runs in the direction of devising one and the same master-argument for a generally constructed category of the “theocrats”, i.e. religiously minded non-liberals of all denominations. Swaine ‘s strategy is to dig conceptually down to the bedrock of all religious beliefs and he claims to have found “three normative principles of the liberty of conscience”, ultimately unrejectable regardless of the hermeneutic starting point: they are 1) the principle of rejection, to the effect that “conscience must be free to reject lesser religious doctrines and conceptions of the good”; 2) the principle of affirmation, to the effect that “conscience must be free to accept the good”; and, 3) the principle of distinction, to the effect that “conscience must be free to distinguish between good and bad doctrines and conceptions of the good”.[8] It seems to me not plausible that an argument that lacks specificity might prove more convincing than one couched in his own shared vocabulary to the religious citizen who is embedded in a thick network of relations, sometimes hiearchically structured, with his coreligionists, is steeped in the tradition and memories of this congregation, is often wary of an external public world perceived as the locus of forms of reason insensitive to his values.

This is not to say, however, that attempts such as Swayne’s could not be helpful in their own way: they certainly can shed light onto the “seafloor of public reason” and correct the biased impression, in many circles attributed to the Rawlsian original account, that public reason can only function in a democratic context. Under a certain reading it certainly amounts to being the organon of deliberation in the public forum of a democratic polity, but in a broader sense public reason can be understood — in keeping with the Aristotelian notion of a dialectical argumentation proceeding from endoxa, or shared truths — as the form of reason that in all contexts allows us to coordinate action, address divergencies, build justified consensus and make decisions that are binding across deep and persisting divides. Exploring the normative seafloor where public reason cuts across liberal and non-liberal conceptions and forms of conscience is certainly a service to the cause of handling hyperpluralism. Whether the general truths about the requirements of freedom of conscience can indeed move anyone in the “theocratic” camp to cross over the line and join the ranks of the “reasonable pluralists”, is another matter.

A similar inspiration motivates also Mark Rosen’s original proposal for expanding the receptivity of the Rawlsian framework in order to adapt it to a condition of hyperpluralism.[9] Rosen is concerned with “perfectionist religious groups” that would suffer exclusion on account of their embracing thick conceptions of the person that prevent them from embracing the Rawlsian “political conception of the person” and consequently are disqualified from partaking in the original position. Rosen’s strategy does not pivot on conjecture, and thus on the standard of reasonability, but rather on the very normative core of justice as fairness as such. In a more critical vein than Swayne, March or myself, he claims that the exclusion of perfectionists from the original position is normatively ungrounded, and can only be explained by Rawls’s attempt to make a plausible case for the unanimous support of the two principles. Indeed, as he himself concedes, underlying his reformed, more inclusive original position, is the supposition that the participants, even if the veil of ignorance would prevent them from knowing whether in the future society they will embrace a perfectionist or a non-perfectionist conception of the person, would still “think it fair to create a basic political structure consistent with Rawls’ first principle of justice”.[10] The basis for such claim is that to create a basic structure such that only non-perfectionists would be given the opportunity “to self-actualize in accordance of their views — but that does not afford the same opportunity to Perfectionists to the extent that this is possible — would violate the first principle of justice”.[11] The clause “to the extent that this is possible” is obviously crucial, and Rosen proposes a distinction between perfectionists who can be accommodated and perfectionists who still could not, even within the more inclusive model. The requirement for inclusion includes “having a peaceful disposition”, on the part of perfectionists, towards non-perfectionists fellow citizens, and granting their in-group members a “right of opt-out” which is “meaningful and real, and not merely theoretical”.[12] This leaves as candidates for inclusion in the liberal-democratic polity only those “localist perfectionists”, as Rosen calls them, who give up on forcing others to join their ranks, and instead either opt for a voluntary insulation or purport to exert influence on others or the larger society solely via the force of the example.

Again, this “non-specific” strategy goes at some length toward rethinking liberalism in a more inclusive direction, but the reshuffling of the credentials for participating in the original position is not likely, I suspect, to impress the addressees of the reform — the religiously minded perfectionists — and convince them to wholeheartedly embrace the fundamentals of the liberal-democratic polity.

Rosen’s and Swayne’s proposals, however, do contain in my opinion an insight that acquires all its importance, at the stage of the argument when we have to consider the alternatives left open by a possible failure of the conjectural strategy or the original position strategy. Both advocate a sort of multi-jurisdictional arrangement that can accommodate sub-units of the polity which function according to more diverse principles, than any standard version of liberalism, including political liberalism would thus far allow. In the next section I will elaborate on this insight and will offer an account of how we should free political liberalism from an unwarranted assumptions often attributed to it and how the challenge of the empirical failure of conjectural arguments — an occurrence which is well within the field of the possible — can still be met with liberal-democratic resources.

3 – The multivariate polity

What if conjectural arguments fail? What if a liberal-democratic society is or becomes composed of a majority of minorities embracing comprehensive conceptions that only partially overlap on certain constitutional essentials but not all on all constitutional essentials in the same way? Are we then thrown back to the gloomy alternative of having either liberal oppression on the minorities, with the ensuing dual pattern of resentment, or having the whole polity regress to a modus vivendi pattern of political integration?

I think that the only reason why we seem to be locked into this uncomfortable alternative is a sort of mental cramp of ours — a sort of unscrutinized and indeed unsupported presupposition that we seem to implicitly but needlessly read into Rawls’s Political Liberalism. Namely, we unreflectively read Rawls’s argument as though it presupposed that a polity moves homogeneously and all of a piece through the sequence of stages reconstructed by him: religious conflict, modus vivendi, constitutional consensus and finally overlapping consensus.

Instead, if we leave aside for a moment Political Liberalism and look at The Law of Peoples we might be able to draw inspiration from an altogether different picture. Let us consider “the world”, as understood by Rawls qua political entity. For Rawls the world as a political object is constituted by a finite number of peoples, understood as demoi — say, 192. Of these 192 peoples, two groups — the group of the liberal and the group of the decent peoples — constitute presumably the majority and together form a Society of Peoples, where relations among peoples are oriented by eight principles designed to capture a normative idea of justice in international relations.

The peoples included in the Society of Peoples, however, do not exhaust the totality of peoples of the planet and jointly relate to three other kinds of peoples: peoples governed by benevolent despots, burdened societies and outlaw-States.[13] In what way do the peoples included in the Society of Peoples relate to these other peoples? Rawls is completely silent on this issue. We can only guess. In any event, whether the relation between the first composite group of peoples and these other three groups ought to be understood in terms of a state of nature, of a state of nature mitigated by a ban on aggression or in terms of a modus vivendi of sorts, is an open question. What is not an open question is the fact that for Rawls the world, qua political entity, exhibits not a unitary but a multivariate structure: one larger section of it is composed of peoples relating via principles of justice to one another, another section is composed of the same peoples relating to other types of peoples on a mix of considerations of justice and of prudential considerations about the use of force. Furthermore, the liberal-democratic and decent peoples included in the “Society of Peoples” enter a relation among themselves which certainly cannot be understood as a modus vivendi. Rather they relate to one another on the basis of an idea of justice which is more limited than the idea of justice at the center of liberal-democratic polities: in fact, such idea of justice in international relations include only a very reduced version of the second principle and does not include the premise of the full equality of citizens (for that premise is shared only within liberal-democratic peoples).

Let us now go back to the domestic scene of our hyperpluralistic societies with this picture of the world-order in mind. We could then without difficulty envisage a multivariate polity where a majority, or even a sizable minority, of citizens embrace comprehensive conceptions of the good that do allow for the formation of an overlapping consensus on the basic structure and all of the constitutional essentials (say, citizens subscribing to the Lockean and the Rousseauian traditions reconciled in Political Liberalism), and then at the same time these citizens might relate in a modus vivendi way with one or more minorities whose comprehensive conceptions overlap to a lesser extent with the fully reasonable ones and allow them to endorse only a subset of the constitutional essentials.

This is how The Law of Peoples can retroactively, so to speak, modify our understanding of Political Liberalism and indicate a path more fruitful than the one centered on public reason for the purpose of accommodating perfectionist culture, of a religious or secular variety, within the domestic picture of a polity integrated via a “political”, non-perfectionist liberalism. In a way, we meet here another facet of that thorough reshuffling of the political categories that follows from the rise of that new global horizon of which we are witness. While for a long time we thought that to clarify what a just society is we would gather an indication for understanding what it might mean for the world to be just, now in the global world and in the condition of hyperpluralism, the reverse is the case: from our idea, not yet fully explored of what a just world might be, we can draw suggestions for thinking of the just society.

Thus, to conclude, even when conjectural arguments fail to remedy the shortcomings of public reason, there is still a last resort way of dealing with the challenge of hyper-pluralism without allowing ourselves to be cornered between the devil of liberal oppression and the deep sea of wholesale regression to modus vivendi. This last resort way consists of conceiving of the polity as a multivariate unity which includes both an overlapping consensus and modus-vivendi-type relations between the citizens included in this overlapping consensus and other groups of citizens embracing partially reasonable comprehensive conceptions.

Such a multivariate liberal-democratic polity would then include three kinds of citizens: a) citizens who embrace all the constitutional essentials in the light of principles rooted in their comprehensive moral conceptions (the Lockeans and Rousseauians); b) citizens who embrace some of the constitutional essentials in the light of principles rooted in their comprehensive moral conceptions and other constitutional essentials (for example, free exercise of religion) out of prudential reasons, and c) citizens who embrace all of the constitutional essentials out of prudential reasons.

Such multivariate polity could, if not emancipate us entirely from the trap of mutual resentment within which majorities and minorities could end up being caught, at least mitigate its effects and impact on the condition of hyperpluralism under which democracies must function today.

Department of Philosophy, University of Rome “Tor Vergata”

Footnotes

[1]John Rawls, Political Liberalism (1993), expanded edition, (New York: Columbia University Press, 2005), p. 4.

[2]Ibid., p. 5.

[3]Ibid., p. 5.

[4]While public reason aims at generating binding conclusions from shared premises, conjectural arguments (like “declarations” and “witnessing”) do not presuppose that premises are shared. Conjectural arguments contribute to strengthen public reason in that they can attract more citizens to participate in its process, but this is true, as Rawls reminds us, only insofar as they are “sincere and not manipulative”. See John Rawls, “The Idea of Public Reason Revisited”, in The Law of Peoples, with “The Idea of Public Reason Revisited”, (Cambridge, Mass.: Harvard University Press, 1999), p. 156.

[5]See Alessandro Ferrara, “Reflexive Pluralism”, in Philosophy and Social Criticism, special issue edited by A.Ferrara, V.Kaul and D.Rasmussen on Postesecularism and Multicultural Jurisdictions, 2010, vol. 36, n. 3-4, pp. 353-64; for an extensive and illuminating attempt to develop a conjectural argument addressing Islam, see Andrew March, Islam and Liberal Citizenship: The Search for and Overlapping Consensus (Oxford: Oxford University Press, 2009).

[6]For a definition of conjecture as “reasoning from premises one does not accept” and for a discussion of the ethical requirements of acceptable conjectural reasoning (the “principle of full disclosure”, as opposed to “leveraging by reasons”), see Micah Schwartzman, “The Ethics of Reasoning from Conjecture”, Journal of Moral Philosophy, 2011, forthcoming.

[7]Among the “moral failures of liberalism”, Swaine mentions the lack of a “well-devised and justifiable schema for treating theocrats dwelling in liberal democracies”, a lack of “proper and identifiable grounds in hand for governing theocrats”, often faulty motivations for legal verdicts and opinions imposing mainstream mores (e.g. the ban on polygamy against the Mormons) and, finally, the lack of non-rejectable justifications for enforcing laws that fail to meet with the consensus of certain religiously minded citizens. See Lucas Swaine, The Liberal Conscience. Politics and Principle in a World of Religious Pluralism (New York: Columbia University Press, 2006), pp. 16-19.

[8]See ibid., p. 49.

[9]Mark Rosen, “The Educational Autonomy of Perfectionist Religious Groups in a Liberal State”, in Journal of Law, Religion & State, 2012, 1, pp. 1–29.

[10]Ibid., p. 6.

[11]Ibid., p. 7.

[12]Ibid., p. 12.

[13]See John Rawls, “The Law of Peoples”, in The Law of Peoples, with “The Idea of Public Reason Revisited”, (Cambridge, Mass.: Harvard University Press, 1999), pp. 4-5.

A version of this article was presented at the Reset-Dialogues Istanbul Seminars 2011 (‘Overcoming the trap of Resentment’) that took place at Istanbul Bilgi University from May 19-24, 2011.

The final/definitive version of Alessandro Ferrara’s essay was published in Philosophy&Social Criticism, vol 38 number 4-5 May 2012, SAGE Publications Ltd, (LA, London, New Delhi, Singapore and Washington DC), all rights reserved, p. 435-444, Special Issue: “Overcoming the Trap of Resentment”, Reset-Dialogues on Civilizations Istanbul Seminars 2011, Edited by: Alessandro Ferrara, Volker Kaul and David Rasmussen. Link to the issue http://psc.sagepub.com/content/38/4-5.toc