Political realism has come a long way from the crude versions that prompted the Western conversation on justice and legitimate government, when Thrasymachus stated that “justice is what is in the interest of the stronger party” (338c) and Thucydides narrated the Athenian ambassadors' speech to the Melians. Certain moderate forms of political realism can be integrated within a normative understanding of politics: so is the case with realism as the anti-utopian urge that normative theorizing start from premises anchored in existing political realities, or with realism as an emphasis on unveiling the real workings of the political process and never taking its professed expressions at face value. A form of radical realism that instead remains at odds with normative theorizing is the one keen on relativizing the fundamental distinction, at the core of every normative theory, between legitimate authority and arbitrary exercise of power. Such sidelining of the question of legitimacy is achieved usually by way of equating legitimacy with belief in legitimacy: consequently, any power configuration achieved on the ground can potentially, with time and under propitious conditions, come to be accepted as legitimate authority, thus rendering futile all normative speculation about the ground of legitimate rule.
Against the backdrop of this age-old contest of realism and normativism, one of the most sophisticated restatements of the “political realist” approach has been articulated in the 21st century by Bernard Williams, in his posthumous volume In the Beginning Was the Deed (2005). Groundbreaking in his account is the suggestion that political realism need not eschew the (prima facie normative) question of what authority deserves to be considered legitimate. Differently than those theorists who all along the 20th century, in the footsteps of Weber and Schumpeter, have acknowledged the importance of the legitimacy of authority, but then enervated the critical import of legitimacy by way of equating it with the mere fact of belief in legitimacy, regardless whether such belief is justified or not, Williams must be credited with challenging what he calls “moralism” – the subordination of politics to a standard of legitimacy couched in terms of moral principles or of a moral reading of the Constitution – on the decisive terrain, by giving us a realist account, as it were, of what can count as a justified belief in the legitimacy of authority.
Williams starts with identifying the “first political question”, the foundational stone on which the edifice of political philosophy rests, along Hobbesian lines, “as the securing of order, protection, safety, trust, and the conditions of cooperation. It is 'first' because solving it is the condition of solving, indeed posing, any others”. While crude forms of realism in the past failed to adequately distinguish between legitimate authority and arbitrary power, Williams vindicates realism for the 21st century by incorporating in it the normative assumption that such distinction does make sense. Relative to normative theorizing, He merely modifies the ground of the distinction. Rejecting the “moralist” move – attributed to utilitarians and deontological (Rawlsian or Dworkinian) views – of harnessing the test of legitimate authority to some kind of “moral” principle, Williams revives the traditional battle-cry of political realism: namely, the autonomy of politics. In his view, answering the “first question” does and should not presuppose any reference to moral principles. Such answer is, as we have seen, only the first step towards meeting the “basic legitimation demand”: in other words, at any given time a plurality of political arrangements may all answer the first question while meeting the “basic legitimation demand” to a different extent, which raises a second, even more fundamental question, which I'll formulate by drawing on a Rawlsian phrase:
Which of these schemes of political authority is the most reasonable for us? It goes to Williams' merit to have developed the political-realist stance up to the point of closest possible contact with normativism compatible with still retaining the distinction: for a state to meet the basic legitimation demand (and thus for its authorities to be legitimate) means to provide an “acceptable” solution to the first political problem – as opposed to its providing a solution that is merely de facto accepted by the subjects of that state. One is left even wondering why this position should be considered a realist one. The reason can be stated in the following way. Although all forms of political authority must answer the “first question” in order to be considered legitimate, not all need to meet the “basic legitimation demand” in the same way. In some parts of the world, people may find it reasonable to place additional requisites on authority, over and beyond answering the first question: for example, people may require that authority also meet certain liberal-democratic standards. This is the element of realism that survives in Williams. There is nothing more than can be said for liberal-democracy, other than the fact that in some parts of the world people see it as a requisite for their recognizing the legitimacy of the authorities they obey.
Two important consequences follow. First, both democratic and non-democratic forms of authority may be legitimate. And, second, those who once posed these additional liberal-democratic constraints on authority (say, in the guise of a bill of rights, or the presumption that political justification must be equally acceptable to everyone subject to the authority being justified), as a precondition for attributing legitimacy to it, in a changed historical constellation may cease to pose them. There is no moral structure outside politics – no freestanding conception of justice, no discursive principle – that we can fall back on to develop a normative argument to the effect that things should be otherwise.
Concerning the equal legitimacy of democratic and non-democratic forms of authority, Williams discusses the issue in retrospective terms. If it is only with modernity that legitimate authority has come to have to satisfy liberal standards, then this fact “gives no ground for saying that all non-liberal states in the past were illegitimate, and it would be a silly thing to say”. For a structure of authority to claim legitimacy within its own parameters means that “it makes sense to us as such a structure”, where making sense means something more than just the observation of the factual operation of a certain power structure. To make sense is understood by Williams as a non-normative notion when applied to the understanding of a political situation other than our own, but as one that “becomes normative” when applied to our case, in that we then think that the structure of authority confronting us is one that “we should accept”. What does that “should” mean? Criticizing the “moralist” position of those who, like Rawls and Dworkin, aspire to anchor that ought to unsituated principles or to the competition of interpretations of the same text (the moral significance of the Constitution), Williams advocates a Weberian ethics of responsibility and a rethinking of “the political”.
According to him, we should engage those who challenge our sense of the legitimacy of authority as opponents, and embrace the conclusion that a political decision “does not in itself announce that the other party was morally wrong or, indeed, wrong at all. What it immediately announces is that they have lost”. Here Williams describes his position as realist in the sense that “liberal political theory should shape its account of itself more realistically to what is platitudinously politics”. Concerning political judgment as applied to contemporary societies other than our own, Williams claims that we can consider legitimate certain contemporary non-liberal States and that the notion of legitimacy being used in this case is normative insofar as these non-liberal societies “co-exist” and enter relations with ours and thus “cannot be separated from us by the relativism of distance”.
“In the beginning was the deed” means that discussions about legitimate authority must proceed from realistic assumptions about the chances of these societies to achieve stability: in particular “If the current legitimation is fairly stable, the society will not anyway satisfy the other familiar conditions on revolt”. Citing Habermas' Between Facts and Norms as a text that outlines the conditions of democratic legitimacy underlying our modern perception of legitimacy, Williams engages Habermas's claim that the political process in our societies is “a process of law-making in which the participating citizens are not [his emphasis] allowed to take part simply in the role of actors oriented to success”. What if the citizens did orient themselves to success? Then – and this is Williams' realistic rejoinder to normative theories – transcendental or quasi-transcendental argument will have no traction.
Rather, if Habermas is correct, we should observe that the “political system will break down, and the political process will begin to lose significance in relation to other activities and the life world”. Again, our search for remedies to this unfortunate predicament will have to proceed from political ideas that already make sense to the public: remedies will not come from transcendental arguments. Before outlining a normative approach to the same question, let me highlight three difficulties that Williams' position incurs. First, Williams' adoption of a Hobbesian question as the fundamental one of political reflection cannot go unquestioned. Although trust and the conditions of cooperation are mentioned, order, protection and safety loom larger.
A residue of the old-type realism survives in his view of the function of politics and political authority: let me call this residue “the priority of stability over justice”. For a different view, rooted largely in the same historical context, let us recall Locke's point that unjust political arrangements may result in a worse predicament than lack of order and that therefore the test of political legitimacy needs to be more demanding than the ensuring of order and the protection of life. The purpose of the commonwealth is to avoid oppression, where oppression certainly includes the deprivation of life, but also includes being forced to live according to rules and principles one cannot endorse. A just commonwealth is one in which rights are respected, authorities are subject to the law, and the principles of government are endorsed by the citizens: together these features define an alternative “first question of politics” premised on “the priority of justice over stability”, a priority that reaches all the way to authorizing rebellion against established authority.
Authorities abusing their mandate, according to this view, are the first breakers of the order and the responsibility for the ensuing unrest lies with them, not with the resisting citizens. As Locke eloquently puts it, if “the innocent honest Man must quietly quit all he has for Peace sake, to him who will lay violent hands upon him, I desire it may be consider'd, what kind of Peace there will be in the World, which is to be maintain'd only for the benefit of Robbers and Oppressors”. Williams' selection of a Hobbesian version of the first political question, unsupported by argument but just stipulated as self-evident, then prejudges the basic legitimation demand, on which the notion of legitimate authority in turn depends, in a minimalist direction: “Have you protected my life? Have you ensured order?” are the benchmark questions on the basis of which authority's legitimacy is tested. A Lockean version of the first political question would generate a different benchmark question, which does not reject but expands the Hobbesian one: “Have you safeguarded me from oppression?”. Williams' selection of a Hobbesian “first question” leads his realism to be question-begging.
In fact, the apparent cogency of his anti-normative argument depends on his having already presupposed a realist understanding of how the question of legitimate authority must be approached. The real contest between realist and normative approaches to legitimate authority then lies in the framing of the benchmark question. As Williams puts it: “If the current legitimation is fairly stable, the society will not anyway satisfy the other familiar conditions on revolt”. An authoritarian regime, even a totalitarian one, may then pass a legitimacy test geared to the Hobbesian version of the first political question, yet fail the Lockean version.
The second difficulty is that while Williams acknowledges that a number of competing assessments of the legitimacy of authority – some critical, others apologetic – will vie for public acceptance at any given time in the public forum, given the absence of a normative standpoint he appears unable to distinguish a structure of authority making sense to us in the sense that we should accept it, and one merely prevailing on the ground. In spite of his sensible programmatic declaration that in the case of our assessing our own society this “making sense” of an authority structure is normative, it remains unclear on what basis the factually prevailing assessment could be challenged. The third difficulty concerns the polemical target. Much as Williams' first political question has a built-in realist perspective that leads him to reject all connection of politics to morality, his picture of “political moralism” is not sufficiently charitable. Normativism can do much better in defending a ground of legitimate authority as linked with safeguarding from oppression than Williams is crediting Rawls and Dworkin with.
In the rest of this paper I will focus on Rawls. Williams downplays the significance of Rawls's turn from the framework of A Theory of Justice to that of Political Liberalism, based on which it is inaccurate to sum up Rawls's view of legitimacy as connected with a moral principle. The gist of Political Liberalism is precisely to harness the standard of legitimacy to a political conception of justice endorsed by citizens who embrace diverse moral comprehensive conceptions. Not incidentally, Rawls's declared goal is to investigate the conditions that enable a stable and just society to last over time despite the broad reasonable disagreement among its citizens. This modified understanding of legitimacy is partially acknowledged by Williams in his review of Political Liberalism, which contains important insights to which we will come back below, but overlooked in his “Realism and Moralism in Political Theory”.
One could not imagine a view of legitimacy that while remaining normative was more respectful of the autonomy of politics from moral outlooks. The Rawlsian principle of legitimacy, in Williams' account of political liberalism, is simply ignored: it is instead the most promising starting point for addressing the legitimacy of authority from a normative point of view. In fact, the framework of Political Liberalism completes the autonomization of politics beyond the autonomization from morality, bringing it include the autonomization from theory.
To sum up this first section, while Williams' realist approach fails to offer a compelling answer to the question when authority should be considered legitimate, nonetheless its invaluable merit is to point to three challenges that any normative account should address and, hopefully, be able to meet. First, a normative theory should embed differentiated accounts for what the legitimacy of authority means for modern and non-modern structures of authority. Only on the basis of a dubious philosophy of history could we imagine that human populations have lived in the throes of arbitrary power for millennia before liberal constitutionalism arrived on the scene.
Second, it should embed a differentiated view of what in our times makes authority legitimate within a liberal-democratic polity and in other kinds of polities. Only on the basis of an ideological fundamentalization of liberalism, in fact, could the idea be conceived that only in the 90 something democracies counted by Freedom House is legitimate authority to be found, whereas the rest of the 193 States of the world are ruled by illegitimate structures of arbitrary local power. Third, a normative liberal theory ought not to renounce articulating a sense of what is attractive in the liberal-democratic idea of legitimate authority, so as to contribute to its diffusion in the world, without at the same time denigrating the forms of political association embraced by those who hesitate to embrace liberalism.
Political Liberalism as Normative Approached to the Legitimacy Authority How to understand the legitimacy of authority from a normative perspective in a way that can meet these three challenges? Today's normative approaches, no less than political realism, have come a long way from the initial classical versions. In the past, from Plato's justice-oriented epistocracy up to the modern “perfectionist” liberal schemes, all normative approaches have posited some substantive value (justice, freedom, equal citizenship) or some moral principle as the highest benchmark and evaluated political systems according to the extent to which their institutional core embeds such value or procedure or Grundnorm.
Even A Theory of Justice remained within this scheme, only replacing these keystone values with the two principles included in justice as fairness and failing to differentiate justice in a moral sense from what later was to be known as a “political conception of justice”. The major breakthrough, whose magnitude has escaped most otherwise perceptive commentators, occurs with the scheme of non-perfectionist liberalism known as “political liberalism”. With one and the same philosophical gesture Rawls breaks the spell of two powerful myths. The first is Plato's myth of the cave, which for millennia has placed politics under the aegis of a truth located outside politics, out of the cave.
In Political Liberalism the autonomy of politics from morality, already affirmed by Machiavelli albeit in a skeptical vein, is complemented with a non-skeptic autonomy of politics from Theory. The second is the Hobbesian myth, so to speak, of having politics revolve around the question of survival, the protection of bare life and the fear of violence. In Political Liberalism we find a reformulation of the “first political question” which finally frees us from both of these age-old mental strictures: “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 reasonable religious, philosophical, and moral doctrines?”This reformulation of the first political question accommodates both the Hobbesian quest for stability and the Lockean quest for justice, dissolving the priority either of stability over justice or of justice over stability, and at the same time avoids the pitfall, rightly denounced by Williams, of forfeiting the autonomy of politics to a kind of perfectionist epistocracy and moralism. Like in Williams' scheme, from this formulation derives a way of responding to the “basic legitimation demand” which is indexed to our late-modern condition in two senses.
First, the normative credentials of “justice as fairness” are no longer grafted upon some kind of foundational scheme, on its “being true to an order antecedent to and given to us” but onto its being the one political conception of justice “most reasonable for us”, given “its congruence with our deeper understanding of ourselves and our aspirations”. Second, the legitimacy of authority is understood in terms of the following principle of liberal legitimacy: “our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason”. This definition of legitimate authority deserves two sets of comments, one doctrinal so to speak, and one contextual. As to the doctrinal aspect, this Rawlsian formulation speaks to us through what it does not say. The crucial sentence “in accordance with a constitution” stands over against the alternative formulations that have been used in the past and to some extent are still on offer. For example, Rawls’s definition stands over the idea that political authority acts legitimately when it acts “in accordance with the will of the majority as expressed in the latest elections”, or “in accordance with what the public wishes, as attested by reliable polls”, or “in accordance with our political tradition”, or “in accordance with the Bible, the Qur’ân, or any other sacred text”, or “in accordance with our manifest destiny”, or “in accordance with our idea of morality”.
Furthermore, Rawls’ formula sets the requirement that the constitution be endorsed, not necessarily in its entirety but in its essential elements, by all the citizens as free and equal (not just the well-to-do, the believers, those belonging to a certain ethnicity, to a certain geographical territory, to a certain gender, and so on). Finally, the citizens’ endorsement of the essential elements of the constitution must proceed from principles and ideals acceptable to their common human reason. Also in this case Rawls’s formula speaks to us through the excluded alternative. Consent must be based on considerations of justice as opposed to considerations of prudence, such as the fear of the consequences of refusing to consent. In other words, a constitution accepted out of preoccupation for the political consequences of the conflict ensuing from lack of agreement can at best legitimate a modus vivendi, a truce, a cease-fire among parties that secretly keep their arms as ultimate guarantee for their defense, but cannot legitimize the authority structure in a “stable and just” society, but perhaps only in the Hobbesian stable society.
Concerning the contextual aspects, this normative core of political liberalism be understood as a creative response to a set of inhospitable historical conditions for democracy that have arisen during the 20th century: the immense extension of the electorates, which encourages “rational ignorance”; the institutional complexity of contemporary societies, which negatively affects the accountability of authority; the increasing pluralism of contemporary publics; the anonymous quality of the communication processes whereby public opinion is formed. By incorporating, within his definition of the legitimate exercise of political power, Ackerman’s view of “democratic dualism”, adopted also by Frank Michelman, Rawls responds to these inhospitable conditions by revisiting the traditional liberal understanding of the “consent of the governed” as the ground of legitimacy and the guarantee that authority is not acting in an oppressive way.
It is simply misguided and unrealistic to interpret that standard as the requirement that citizens should endorse all details of the legislative, executive and judicial activity of democratic institutions. If the democratic plant is to survive, we must settle for a less demanding criterion that exempts single aspects of such activity from direct justification and reconcile ourselves with the reality of groups of citizens – considered from a religious, ethnic, economic, gender or other perspective – who will always dissent and consider one or another verdict, statute, or decree unjust and coercive from their own point of view. And yet the idea of the consent of the governed must and can remain the lodestar for assessing the legitimate exercise of democratic authority when properly reformulated as a reflective judgment passed on the “constitutional essentials” with which all of the subordinate legislative, judicial and executive acts must conform and be consistent. To conclude this section, Rawls' reformulation of the first political question and the principle of legitimacy connected with it represent the best contribution that a non-foundational liberalism can offer to our need to understand the nature and proper limits of legitimate authority in the context of a liberal-democratic polity.
However, while Williams' accusation of “moralism” misses the target, his sophisticated realism points to contemporary phenomena that raise three challenges that deserve careful consideration: a) forms of pluralism that go well beyond the “fact of reasonable pluralism” addressed in Political Liberalism; b) forms of legitimate but non-democratic authority; c) forms of entrenchment of democracy and their legitimacy. To these three challenges is devoted this final section. The first has been at the center of my recent work, under the name of “hyperpluralism”. The whole conceptual apparatus of Political Liberalism – the political conception of justice, overlapping consensus, public reason, etc. – has been developed with an eye to bridging the gap between a cluster of comprehensive conceptions steeped in the primacy of the liberty of the moderns and competing comprehensive conceptions pivoting around the liberties of the ancients.
If we want to make the paradigm of political liberalism applicable in contexts other than the US and a few English-speaking countries, we must modify certain important aspects of it while preserving its valuable normative core. Once again, Williams provides a sharp diagnosis of where normative theory is at difficulty. It goes without saying that Rawls' exclusive focus on his own society, when writing Political Liberalism, was a perfectly legitimate choice. However, Williams correctly points out that Rawls's account even of America, the heartland of his conception, sometimes seems disembodied and idealistic. It is not that he mistakes abstract moral theory for concrete political reflection; he is very good on the role of abstract thought in politics, and he has many sensible reflections on the psychological and political effects of adopting one or another attitude to social justice.
What is lacking, rather, is the dimension of what might be called the sociological imagination, a sense that the peculiarities (including the peculiar successes, to date) of American constitutionalism may depend on features of American society which are grounded neither in its political organisation nor in its ideals, but in such things as the history of its immigration and its dedication to the aims of commercial society. Without some discussion of the peculiarities of America, it is very hard to do what Rawls wants us to do, which is to agree that a system based on America’s experience (though it registers some limitations of that experience) can serve as the basis for reconciling, in order and decency, conflicting moral or religious claims as they occur in very different sorts of society.
To address this challenge I have suggested to expand the framework of political liberalism at four specific junctures. Contrary to those who favor immunizing political liberalism from hyperpluralism by restricting the circle of the addressees of political justification to the reasonable citizens only, thereby paving the way to “liberal oppression”, in my opinion the proper response consists in taking up the challenge of making the partially reasonable citizens fully reasonable. The way this result can be achieved is by way of complementing the role of public reason with conjectural arguments (envisaged also by Rawls by confined to a peripheral role) that engage citizens endorsing partially reasonable comprehensive conceptions and try to convince them with internal reasons to recognize the burdens of judgment and to subscribe to the liberal constitutional essentials. This “conjectural turn” within political liberalism would generate a sort of reflexive pluralism, in which citizens reasoning from different comprehensive conceptions would embrace pluralism for diverse reasons. A whole stream of Rawlsian literature has produced examples of this way of proceeding.
However, there is no guarantee that conjectural arguments, given their hermeneutic nature, would deliver the desired result. What then? What to do when not all the citizens endorse the constitutional essentials “in the light of principles and ideals acceptable to their common human reason”? In this case, the framework of political liberalism could be expanded by questioning the assumption, hitherto accepted by all interpreters of Rawls, that the polity moves all of a piece, holistically, through the various stages of political conflict, modus vivendi, constitutional consensus and finally overlapping consensus. Even a cursory look at The Law of Peoples shows that Rawls envisaged the possibility, in the case of ‘the world’ qua political entity, of a multivariate political entity based on a mix of principled and prudential, justice-oriented and balance oriented, considerations endorsed by different groups of actors.
One larger component of ‘the world’ includes peoples that relate via principles of justice to one another in the context of a ‘Society of Peoples’, and then jointly relate to other types of peoples (peoples ruled through ‘benevolent absolutism’, ‘burdened societies’ and ‘outlaw states’) on a mix of considerations of justice and prudential considerations about the use of force. Thus, even when hyperpluralism proves intractable not only for public reason, but also for conjectural arguments, a properly renewed political liberalism can still offer a solution, namely the idea of a multivariate polity, where some of the citizens embrace all the constitutional essentials in the light of principles rooted in their comprehensive moral conceptions (as in the standard version), while other citizens or groups of citizens embrace some of the constitutional essentials in the light of principles and other constitutional essentials out of prudential reasons, and then a third group of citizens embraces all of the constitutional essentials out of prudential reasons. The legitimation of authority could accordingly follow a differentiated pattern, but still remain true to the mandate of protecting all citizens from oppression.
Furthermore, political liberalism can only benefit from developing the notion of the democratic ethos inherent in it. The most insidious competitor of democracy on today's world scene is not secular dictatorship or authoritarian theocratic rule: both are easy to recognize. The most insidious competitor is “elective oligarchy”, a type of regime which can camouflate itself under the guise of elections and a perfunctory pluralism and freedom of the press. The best way to sort out these two forms of political rule is by reference not so much to procedure and rules – always at risk of being paid lip service to while being actually enervated – as to the public ethos that undergirds the operation of institutions. Now, the democratic ethos has been investigated and reconstructed since the time of Montesquieu and Rousseau and that two century old discussion has left a sediment in the guise of a list of democratic virtues that are integral to the democratic ethos, including an orientation towards the common good, a passion for equality, a passion for individuality, and the virtues of toleration, reasonableness, and civility emphasized by Rawls.
That list urgently needs to be updated in the face of new inauspicious conditions confronting democracy in a global world where disembedded financial markets have come to exert a sort of renewed “absolute power” and where domestic hyperpluralism has brought significant segments of the citizenry to relate “prudentially” to some constitutional essentials (e.g., gender equality, freedom of conscience, the consequent ban on apostasy, etc.): a debate has been underway and the virtue of “openness” – understood as the quality of a public culture oriented towards accepting unconventional solutions and motivated by an attitude of receptiveness to novelty, of exploration of new possibilities for a life form or a social configuration – seems to be an ideal candidate for enriching our notion of the democratic ethos. Openness somehow addresses concerns for which other authors in recent years have suggested other democratic virtues, such as agape, hospitality, and presumptive generosity.
Finally, one of the problems with understanding democratic legitimacy as related not just to rules and procedures enriched but also to the ethos of citizens is that the democratic ethos has thus far been reconstructed along Western-centric lines – an unfortunate predicament which needs to be thrust at the center of a reflection on political liberalism. Then a fourth suggestion for expanding the framework of political liberalism, inspired by the studies on the Axial Age and on ‘multiple modernities’, leads to investigating whether democratic cultures anchored in different civilizational contexts may generate multiple versions of the ‘just and stable society of free and equal citizens’ at the center of political liberalism.
In fact, an expanded version of political liberalism might want to keep the ‘democratization’ and ‘westernization’ of decent societies as separate as the research program of ‘multiple modernities’ has taught us to separate the ‘modernization’ and ‘westernization’ of traditional societies (conflated in one and the same notion by the ideological theories of modernization of the 1960’s).This way of proceeding would expand the Rawlsian program from being the narrative of the transition to liberal-democracy of some mainly Protestant polities where the echo of the religious wars of 17th century Europe still is audible, to constituting the framework in terms of which to understand the transition to democracy of any society.
To offer one example of how this investigation could be pursued, four ideal types of democratic ethos can be distinguished if we bracket the many points of convergence, among the major historical religions, concerning the priority of the common good, the acceptance of pluralism, the desirability of collegial deliberation, the equality of citizens, the value of individuality and focus instead on two important points of dissonance: a) the idea of the priority of rights over duties and b) the role of political conflict within a democratic polity. The idea of a priority of subjective rights, qua prerogatives of the single individual against authority and potentially against the whole political community, over duties runs against the grain of religious approaches to communal life. This is true of a Muslim perception of the Western “rights-discourse” but it applies to many other religious cultures. Rights are invoked as a restorative concept after harm has been inflicted or a tort perpetrated.
What remains difficult to metabolize is the idea of rights “in general”, as an unconditional prerogative of individuals before they become victims deserving compensation. The point is that such views are well represented also within Western culture. In the wake of the French Revolution, Edmund Burke and Joseph De Maistre reacted with repulsion to the “abstractness” of the rights of man as such and to the priority of rights over duty. Hegel too argued that the modern ethical life is traversed by a tragic tension between the “abstract” morality of the Kantian subject and the thick values embedded in the “Sittlichkeit”, i.e. in practices which contribute to the cohesion of the social fabric and embed a concrete, situated, “rational” normativity of their own. This emphasis on duties over rights can be found also in contemporary Western philosophy: some examples are a) Taylor's articulation of a notion of “duty to society”, of which the liberal “rights-discourse” becomes entirely forgetful, b) Böckenförde's preoccupation with the seemingly parasitic relation between liberal institutions and pre-liberal reservoirs, and c) the feminist opposition of an ethics of care versus one centered on rights. However, the most decisive evidence against understanding the priority of rights over duties as indicative of a dividing line between the West and the rest of the world comes from the very mainstream of Anglo-American moral philosophy – i.e., from utilitarianism.
The formulations of Jeremy Bentham and John Stuart Mill leave no doubt as to the fact that rights possess no normative cogency independently of their “social utility”. Even the 20th century distinction of “act” vs. “rule” utilitarianism, and “preference” utilitarianism, did not modify the picture.For all the philosophical effort gone into demonstrating that utilitarianism can accommodate rights, still the crucial assumption is that rights are planets that can only reflect a light coming from the star of social utility. The other point of friction concerns the role of contestation within democratic life. Rights-centered democracies expand and institutionalize an insight that dates back to Machiavelli's reflections on the positive role of the conflict between nobility and common people in the Roman republic. A confrontation of contending interests and values in the public arena is understood as a sign of a healthy democratic life and as leading to a better articulation of points of view, a better public choice and to the selection of a more efficacious leadership. When it functions within a duty-centered political culture, democracy has to meet the challenge of an ethos which is much more wary of the “disharmony” implicit in conflict, much more suspicious of the divisive potential unleashed by a plurality of organizations, parties, associations, newspapers, media.
Political cultures nurtured within Catholic, Muslim, Confucian, Buddhist, Hindu religious backgrounds, and their secularized successors, even when they do prize pluralism, majority rule, the separation of powers, nonetheless do so with an instinctive aversion to conflict and contestation, to voting and coalition forming. The fear of divisions and conflict often paralizes the democratic institutions implanted in these cultures. Thus we can have consociationalist democratic cultures and democratic cultures that incline towards agonism. Provisionally, then, the pluralization of the democratic ethos must start from construing four versions of it. The classical path, taken as canonical by reductive theories of democratization, combines an agonistic and rights-centered understanding of the democratic process and is most resonant with the Protestant and especially Puritan version of Christianity. However, agonism and the valuing of contestation could be combined with a duty-centered political culture, which emphasizes the social and political mediation of conflict over juridified litigation premised on the “rights-discourse”. This combination can be observed in all forms of strong republicanism, endorsed by Machiavelli and Arendt, such as Athens and the Roman republic in ancient times, Harrington's Venice and Machiavelli's Florence before 1512, the Puritan republic of Cromwell, and in modern times is difficult to find except in transient stages of history such as the Paris Commune, the Kronstadt uprising, and the Spanish Republic at the time of the Civil War of 1936-39.
On the consociationalist side of the spectrum, “pure consensualist” democratic cultures combine both aversion to conflict and a propensity for the centrality of duties over rights, as the case might be with the Islamic retributive and restorative understanding of rights, with the Confucian emphasis on harmony and with Buddhism: examples could be here the Malaysian form of democracy, and Taiwan's Buddhist-Thaoist culture. This could also be a possible avenue for a future Chinese Confucian democracy. On the other hand, democratic regimes exist, especially in Continental Europe, that formally endorse and prize the priority of rights but do so with a consociationalist bent and a strong aversion to democratic contestation: examples are Italy's formerly Christian-Democratic-dominated polity, pluriconfessional polities such as Belgium and Switzerland, and the case of Germany's practice of concertation certainly also belongs in this area. In sum, Williams criticism about the context-boundness of normative Rawlsian liberalism is well taken, but political liberalism has enough internal resources to meet this challenge if properly reconfigured. Non Democratics Legitimate, The second challenge confronting political liberalism concerns the notion of legitimate authority that undergirds it. According to Rawls, the principle of liberal legitimacy responds to the first political question and generates a notion of legitimate authority as operating in due respect of constitutional essentials that in turn derive from a political conception of justice “most reasonable for us”, where “us” refers to the citizen of any late-modern dualistic liberal-democracy.
Williams “left-Wittgensteinian” and “political-realist” question shows here all its force: does that view authorize “us” to label as illegitimate all other state based (as well as sub- and supra-national) schemes of authority? Are the citizens of those states not counted among the 90 democracies credentialed by Freedom House in the throes of arbitrary power? How can we, situated where we are, distinguish those who indeed are in such predicament and those who instead are ruled by legitimate yet non-democratic authorities? Can we draw that distinction without falling prey to the standard realist conflation of legitimacy and belief in legitimacy? One way of approaching the problem is by drawing on the notion of “decent societies”. It would be inconsistent to assume that the authorities ruling those societies are entitled to make their countries co-signatories of the 8 principles of the Society of Peoples and at the same time are acting beyond the bounds of legitimacy, albeit a non-democratic one. This strategy, however, leaves indeterminate the internal criterion by which a non-democratic society can assess the legitimacy of authority. In order to identify an internal criterion for the legitimacy of authority we need to rethink, once again, the concept of legitimacy embedded in the Rawlsian framework.
First, the term “constitution”, in a more ecumenical version of the principle of legitimacy, need not be interpreted in the modern sense of a written authoritative document (which in the cases of the UK and the EU does not exist, at least under that name) but could be understood in the more general sense of what Plato and Aristotle used to call “politeia”, namely a structured complex of interrelated institutions and the principles (whether positively codified or customary) regulating their functioning. Second, the requirement that “all” citizens, considered as “free and equal”, should be “reasonably expected” to potentially endorse the essentials of the politeia must be modified when considering non-liberal polities. The legitimacy of authority need not be an all-or-none concept, but may admit of degrees on a continuum. Citizens of a non-democratic polity may accept all or various kinds of inequalities connected with religious faith, gender, race, ethnicity, sexual orientation out of reasons of principle rooted in their comprehensive conceptions.
This predicament makes the authorities that exercise power in accordance with that constitution non-democratic, but not illegitimate. In what sense is this still a normative notion of legitimacy? It is a normative view in the sense of a situated, non-perfectionist understanding of normativity: we liberal-democrats do not share the idea of justice, largely comprehensive and not political, that underlies their institutions but acknowledge, based on their accounts, that it is pro tempore “the most reasonable for them”, not just what they believe to be reasonable and that structures of authority responding to it are locally legitimate not just in a de facto sense.
We can freely voice our dissent, point to the discrepancy of their comprehensive conceptions and the rights included in the Universal Declaration signed by many of these non-democratic polities, we can even use our political and economic leverage to create incentives for change, we can actively support the sectors of their citizenry who advocate democracy, but we cannot regard their structure of authority as on a par with a band of usurpers exercising arbitrary power. This attitude extends to the people who are under “benevolent absolutism” and the same criterion for legitimacy applies to their authorities.
Third, another aspect of normative thinking found in this reflective-pluralist approach to the legitimacy of authority is the possibility of critically questioning the self-declared allegiance of citizens out of reasons of principle: in the face of powerful costs associated with disagreement it is reasonable to demand a higher standard of evidence for principled allegiance and to assume a default kind of prudential allegiance. To sum this section: in response to Williams' political realist approach to legitimacy, political liberalism can both preserve its normative bent and avoid imposing an alien liberal standard on the evaluation of the authority structures non liberal societies (present and past) by rethinking its principle of legitimacy as a special case, applicable only to contemporary liberal societies. For all other societies, it is possible to adjust the principle at three junctures.
The central notion of a constitution can be understood as referring to the central institutional complex and the principles (customary or codified) undergirding it. The principles embedded in the constitution so understood can be assessed as more or less reflective of a conception of justice “most reasonable” for and endorsed by all those included (as rulers or subjects) within the authority system. The basis for the endorsement of the essentials elements of such reconceived constitution can be expanded from including principled motivations alone, to including a mix of principled and prudential motivations. This latter modification of the Rawlsian principle allows for a wide range of degrees of legitimacy to be attributed to existent structures of authority, without falling into a realist view or in a liberal-centric normativism. The limit-case of constitutional essentials entirely endorsed by everyone solely on prudential grounds marks the extreme hypothetical case where from a normative point of view authority borders on arbitrary power and is not fully legitimate.
Finally, Williams points out the moment of historical contingency inherent in the modern, liberal positing of additional requisites, over and beyond fulfilling its life-protecting function, for legitimate authority. Contingency entails reversibility. Consequently, contrary to what stipulated by Rawlsian (and Dworkinian) moralism, in a changed historical constellation the successors of the publics who imposed those liberal requisites may withdraw them. This third realist challenge can be met by political liberalism in two distinct moves. First, it could be observed that no other contemporary liberal theorist has gone further than Rawls in building the insight into the ineliminability of contingency into his understanding of the “stable and just society of free and equal citizens”. It could even be claimed that Williams' theme of “moral luck” can be traced, unbeknownst to the author of Political Liberalism, in Rawls's idea that “hope” is the best description of the relation between the free-standing enunciation of a political conception of justice and the materializing of an overlapping consensus on its central principles.
It would be perfectly compatible with the situated normativity of justice bequeathed to us by John Rawls to refer to “political luck” – namely, an irreducible moment of contingency consisting in the existence, within the same political space at the same time, of comprehensive conceptions that do allow for the formation of an overlapping consensus thick enough to legitimate the institutional implementation of a political conception of justice. In the absence of such contingent propitious configuration of comprehensive views coexisting side by side, a political space would lack any communal form of rule and would be best described as besieged by the “fact of conflict”.
Second, concerning the reversibility of liberal patterns it is possible to challenge Williams's challenge from an even more realistic point of view. A certain lack of awareness of the exceptionality of his British context affects his view and leads him to generalize his trust that regression might remain only a virtual and remote possibility. The written constitutions of many countries, instead, respond to the challenge of a possible anti- or post-democratic regression by their very rigidity, namely by making it much more impervious, for fleeting majorities, to revise the constitution and, secondly, by entrenching certain provisions against any future revision. Furthermore, there is then a contest of normative arguments in support of “structural entrenchment” – namely, in support of the substantive illegitimacy of higher-law making aimed at dismantling the liberal-democratic additional requisites for legitimate authority, or fundamental rights. Rawls and Dworkin develop two such arguments, flawed in my opinion by a dubious philosophy of history in one case and a foundationalist view of morality in the other.
The Italian legal philosopher Ferrajoli has provided a non-foundationalist argument for the structural entrenchment of fundamental rights which avoids these pitfalls. First, Ferrajoli introduces the distinction between “patrimonial” and “fundamental” rights. Patrimonial rights, being subjective prerogatives over goods and services, are singular and alienable. Fundamental rights instead are universal, i.e. equally distributed among the citizens, and inalienable. Were they put at the individual's disposal or at the disposal of public institutions, they could then be alienated and consequently some individual could end up dispossessed of them: at that very moment, fundamental rights would cease being universal and thus they would also cease being fundamental. In fact, they would become undistinguishable from patrimonial rights, which are singular, i.e. a prerogative of somebody but not of everybody.
Then fundamental rights cannot be the object of curtailment, limitation or downright denial on the part of a legislative majority, without thereby resulting in their transformation into patrimonial-like, no-longer-universal rights and in the collapse of the democratic form of a regime. As he puts it: if we were allowed to alienate our personal freedom or other fundamental liberties, these liberties would thereby cease being everybody's liberties. ... If a majority were allowed to deprive a minority of its political rights, political democracy would thereby come to an end. And the same holds for civil rights: were a citizen's negotiating autonomy alienable, the existence of the market would come to an end and with it also civil autonomy.
Following Ferrajoli then, a modified version of political liberalism could offer the following argument: limitations to the exercise of the democratic majority's legislative and political autonomy, in the guise of fundamental inalienable rights protected by explicit or structural entrenchment, are necessary in order to preserve the very nature of rights as prerogatives of every and each citizen. If a majority legislates, even though in a formally correct way, to reduce the scope of rights, it thereby abuses its prerogative by appropriating, modifying or otherwise limiting something which its members do not own and that belongs to every citizen, including those who do not identify with such majority.
In the light of the above argument, political liberalism can embed a full awareness of the contingency of its stabilization and at the same time develop a non-moralist justification for its self-entrenchment as a form of legitimate rule. Departing from the Rawlsian defense of the structural entrenchment of constitutional essentials on the basis of a linear view of the historical expansion of liberal rights, political liberalism can protect itself from the risk of turning into yet another comprehensive conception by adopting a more formal or conceptual defense of the irreversibility of the rights stipulated as “fundamental” by the sovereign democratic will. In closing, let me return to the initial questions. Democratic legitimacy – best defined by Rawls's principle of liberal legitimacy – cannot be taken as the only foundation for legitimate political authority: it only spells out what counts for us liberal-democrats as the dividing line between on the one hand all forms of authority that place legitimate demands on us and place us under a legitimate obligation to obey and, on the other hand, configurations of arbitrary power that come to prevail on the ground.
Democratic legitimacy so conceived, at the same time, defines the proper limits to the exercise of authority: authorities operating beyond the bounds of the constitutional essentials endorsed by the citizens lose their legitimacy, despite the plebiscitary consensus that may temporarily bless their action. The challenge raised by Williams' political realism – how can the legitimacy of non-democratic authorities be accepted without blurring the line that separates them from arbitrary power and thus forfeiting the normative credentials of a liberal view? – can be met by elaborating a more general version of the principle of legitimacy, relative to which the Rawlsian version becomes a special case.
According to this broader principle, non-democratic political authority is legitimate when it operates in accordance with the principles that underlie the central institutional complex of a society and can understood as part of a conception of justice most reasonable within the cultural horizon shared by all those who participate in the system of authority. Alignment of the operation of authority with this broader normative backdrop is the key for making sense of the difference between legitimate authority and arbitrary power in contexts historically or geopolitically other than our own. Such view of legitimate authority also helps us spell out the non-liberal limits to the exercise of authority in these contexts: these limits are coextensive with the persistent alignment of governmental action with the local view of justice that inspires acceptance of the principles undergirding the central institutions.
Finally, a political liberalism duly expanded properly defended against the allegation of “moralism” is in a position to raise a counter-challenge of its own against all non-liberal conceptions of political authority. “Political realist” conceptions – by having their view of legitimacy respond to a Hobbesian “first political question” – usually privilege stability or the alignment of the authorities' conduct with the broader moral views of the more powerful, more influential or the majority sectors of the population. Political liberalism and liberal democracy, instead – by having their view of legitimacy respond to a more inclusive “first political question” – offer an understanding of legitimacy premised on the alignment of authority's conduct with the broader moral views not just of the more powerful, more influential or more numerous sectors but of each and every member of the society. Not in transcendent principles, but in this greater capacity for inclusion lies perhaps the secret of the appeal exerted by liberal-democracy on so many of those who don't live under democratic authority.