Pragmatism and Democratic Legitimacy: Beyond Minimalist Accounts of Deliberation

In democratic theory, a series of related questions have oriented attempts to define the legitimacy of states and other wide-ranging social institutions. If a government is legitimate only when it expresses the will of the people, then what do the people will, and how do we know if a government expresses it? What are the limits of the state or of individual freedoms? When are people morally obligated to obey laws with which they do not agree, and when can the coercive power of the state be employed legitimately? According to Rawls, for example, “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” (1993, 137). Whether political legitimacy is defined by a set of thin procedures or substantive ends, however, these motivating questions are all part of the same attempt to determine right rule.

For my purposes, it will be helpful to characterize roughly two positions that have been taken in response to the problematic of legitimacy. First, foundationalists have tried to provide a framework that delimits democratic practices by seeking a universal criterion that everyone could and should accept. Because their norms or procedures must be universally valid, and because moral pluralism has become more and more salient in our increasingly globalized world, they have continually refined their position on grounds that are less contestable or more minimal. For instance, Jürgen Habermas (1998) has recently suggested that the bare requirements of communication define the essence of democracy. Antifoundationalists, on the contrary, deny that any such norms or procedures could be found, because there are no widely shared beliefs or because any universals that might exist are not thick enough to define democratic legitimacy. Richard Rorty (1991), for example, has based such a position on his account of incommensurable language games. Deliberative democratic theory, one of democratic theory’s newest formulations, has predictably grown into a cottage industry that replays this polarized conflict. Here it is asked if the norms of deliberation are necessary because of our necessary interest in truth or if they are just preferred by Westerners.¹

In Democracy After Liberalism (2005), Robert Talisse traces the history of foundationalist liberalism and finds that its moral bases—though formulated more and more modestly—do not accord with the plural beliefs it fosters.² While recognizing this tension, Talisse tries to solve it by providing an even more “minimal” (2005, 141) foundation for politics, grounding his proceduralism not in contestable and plural moral claims like “fairness” or “reciprocity” but in the epistemological norms that he thinks everyone could be shown to hold, thereby providing one of the most consistent attempts to carry out the foundationalist project so far. Nevertheless, these epistemological norms still entail moral, political, and other commitments that are neither universal nor minimal, because no value can justify itself. Since Talisse fails on his own terms, his work is highly instructive in guiding us toward a more successful and pragmatic account of deliberation that does not pretend universality or flee to ironic relativism but, instead, embraces the “thickness” of existing norms and practices as well as their criticism.

Talisse’s inability to adequately address pluralism is not logical or idiosyncratic but, rather, is related to a larger problem, the traditional question of legitimacy itself. The repetitions of the debate between foundationalists and antifoundationalists—and the ever more subtle attempts to refine either position—are related in large part to a shared notion of legitimacy that sets its terms. Avoiding the pitfalls either of inventing more and more minimalist foundations or of abandoning the possibility of criticism will therefore require a reconstruction of legitimacy. Accordingly, I will turn to John Dewey as well as recent work by Noëlle McAfee to help point to an alternative vision of politics that avoids these polarized disputes. Legitimacy can be reconfigured plurally, contextually, and empirically—that is, pragmatically—thus obviating the quest for certain foundations while maintaining...