Unless the democratic process and the primary political rights necessary to it were supported in this way by the political culture of a people, it's unlikely that the democratic process would persist.
C
RITIC: But maybe what's needed to ensure that it really does persist is a judiciary with the constitutional authority to uphold the fundamental rights no matter what the majority want.
A
DVOCATE: When the democratic process can no longer be sustained in the face of a weak or hostile political culture, it strains credulity to believe that primary political rights will be preserved for long by courts or any other institution. Surely you aren't going to ask me to believe that a supreme court with authority to enforce substantive rights would have prevented the overthrow of democracy by the forces of dictatorship in Italy in 1923, Germany in 1933, Chile and Uruguay in 1973, and so on!
C
RITIC: Even if no conflict exists between the democratic process and a broad array of fundamental rights necessary to it—the primary political rights—it's possible that in a moderately wellfunctioning democratic system supported by a democratic political culture, lapses may occur from time to time in protecting the primary political rights—free speech, for example. Isn't it also possible that an alternative process could correct these errors without greatly displacing the democratic process? Many Americans believe that just such a process exists in an independent judiciary with authority to declare unconstitutional legislation that infringes on constitutionally prescribed rights.
Your treatment of primary political rights also leaves open the possibility that the democratic process could harm other rights and interests beyond those counted
among primary political rights. Earlier I suggested that the democratic process might violate the Principle of Intrinsic Equality either by failing to give equal consideration
to the interests of all or by harming an interest so fundamental that it ought to be constitutionally inviolable. In this case, even while perfectly preserving every citizen's
primary political rights and in other ways ensuring equal consideration, the democratic process would infringe upon an inviolable good, interest, or right.
Page 174 acquire an understanding of their interests fully as enlightened as yours. How then could you justify a claim to a more enlightened understanding of their interests than they would acquire themselves in the course of discussion?
C
RITIC: You might be right if we all engaged in the free, unfettered, and uncoerced discussion you speak of. Unfortunately, we don't live in that kind of world.
A
DVOCATE: I agree. The point I want to make, however, is that the democratic process is far superior in that respect to any alternative. While the criteria of the democratic process are of course never perfectly satisfied, they can be satisfactorily met only to the extent that citizens do possess opportunities for free, unfettered, and uncoerced discussion. No alternative to the democratic process proposes such a severe standard against which its performance is to be judged.
C
RITIC: You keep circling around my main point. You continue to portray the democratic process in ideal terms. Yet you know as well as I that in actual practice political life in democratic countries never fully meets ideal standards for the democratic process. Often, maybe most of the time, actual practice falls very far short of the ideal. When that happens, even on your showing serious injustices may occur. The interests of some citizens simply are not given equal consideration. Even if there were no other violations of that principle, those cases surely require an alternative process to guarantee the right substantive outcomes.
A
DVOCATE: If I have seemed to avoid your point, it's because I wanted you to see that much of the conflict that you suppose to exist between process and substance is not truly a conflict between substantive justice or right and the democratic process. On the contrary, it reflects a failure of the democratic process. That conclusion is not merely of theoretical significance. It's of practical importance, for it informs us that the solution may not be to impose limits on the democratic process or to guarantee the right outcomes by means of an alternative and presumably less democratic process. The solution may be instead to improve the operation of the democratic process: to make it more truly democratic.
C
RITIC: It's obvious to me that we haven't yet confronted the main differences between us. Early in our discussion you suggested that we distinguish between three different kinds of rights or goods. So far we've talked only about substantive rights and goods integral to the democratic process itself, assuming that the process comes reasonably close to meeting its criteria. Your last point reminds me, however, that we still need to consider the question of feasibility. What you say about improving the democratic process is all very well as an ideal goal, but in practice that solution may be less feasible than, say, a set of constitutional guarantees and a supreme court with the final authority to interpret them.
Second, you haven't confronted the problem raised by substantive rights or goods external to the democratic process but necessary to it. I think I can see the makings of a nice paradox there.
Third, you haven't confronted the problem of rights or goods external to the democratic process, and not necessary to it, but necessary if the Idea of Intrinsic Equality and the Principle of Equal Consideration of Interests are to be upheld.
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You mentioned as an example a fair trial in criminal cases, and I could probably furnish others.
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Although the discussion between Advocate and Critic breaks off at this point leaving some crucial problems unsolved, before turning to these in the next chapter I want to emphasize the importance of Advocate's argument.
The supposed failure of the democratic process to guarantee desirable substantive outcomes is in important respects spurious. We need to reject, as Advocate does, the familiar contrast between substance and process. For integral to the democratic process are substantive rights, goods, and interests that are often mistakenly thought to be threatened by it.
Among these is the right to selfgovernment by means of the democratic process. This is no trivial right but one so fundamental that the authors of the American Declaration of Independence called it inalienable. Nor is the right to selfgovernment a right to a ''merely formal process," for the democratic process is neither "merely process" nor "merely formal." The democratic process is not "merely process," because it is also an important kind of distributive justice. For it helps to determine the distribution of the crucial resources of power and authority and thereby influences the distribution of all other crucial resources as well. The right to the democratic process is not "merely formal," because in order to exercise this right all the resources and institutions necessary to it must exist; To the extent that these are absent the democratic process itself does not exist. Nor is the right to the democratic process "merely an abstract claim." It is instead a claim to all the general and specific rights—moral, legal, constitutional—that are necessary to it, from freedom of speech, press, and assembly to the right to form opposition political parties. That authoritarian rulers bend every effort to destroy all the institutions necessary to the democratic process demonstrates how fully aware they are that the democratic process is not "merely formal" but would lead a structural transformation of their regimes.
Viewed in this way the democratic process endows citizens with an extensive array of rights, liberties, and resources sufficient to permit them to participate fully, as equal citizens, in the making of all the collective decisions by which they are bound. If adult persons must participate in collective decisions in order to protect their personal interests, including their interests as members of a community, to develop their human capacities, and to act as selfdetermining, morally responsible beings, then the democratic process is necessary to these ends as well. Seen in this light, the democratic process is not only essential to one of the most important of all political goods—the right of people to govern themselves—but is itself a rich bundle of substantive goods.
Copyright © 1989. Yale University Press. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.
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