Democratic Community: Nomos XXXV

7. Between Democracy and Community: The Legal Constitution of Social Form

7 BETWEEN DEMOCRACY AND COMMUNITY: THE LEGAL CONSTITUTION OF SOCIAL FORM ROBERT C. POST I discuss the concept of "democratic community" from the specific perspective of the American legal system. This perspective, in Ronald Dworkin's elegant and accurate formulation, entails the continual effort interpretatively to grasp the internal point ofsocial institutions.1 The enterprise is neither purely descriptive nor entirely normative. It instead involves a hermeneutic apprehension of social practices, which are understood as existing independently of the observer and yet as subsisting in purposive structures whose requirements are perennially subject to debate and determination. The American legal system, through the medium of doctrine, aspires to uncover the meaning of social practices and to translate them into governing principles of conduct. In brief, I argue that for the past sixty years American constitutionallaw has regarded democratic community as a complex dialectic between two distinct and antagonistic but reciprocally interdependent forms of social organization, which I call "responsive democracy" and "community." I define these forms of social organization in terms of the hermeneutic project of the 163 164 Robert C. Post law. When the law attempts to organize social life based on the principle that persons are socially embedded and dependent, it instantiates the social form of community. When it attempts to organize social life based on the contrary principle that persons are autonomous and independent, it instantiates the social form of responsive democracy. My thesis is that the tension between responsive democracy and community has a characteristic shape. Although the principles of responsive democracy and community often conflict in the outcomes they require for specific cases, American constitutional law has nevertheless recognized that the systemic maintenance of a healthy and viable democracy necessarily entails the maintenance of a healthy and viable community .2 The concept of "democratic community," therefore, although unstable and contestable, has an essential and respected place in the history of our constitutional jurisprudence. This chapter has a simple structure. Part I considers legal perspectives on the form of social organization I call community. Part II addresses our constitutional understandings of responsive democracy. Part III explores the distinct and controversial domain of democratic community. I. COMMUNITY Although the concept of "community" is "the most fundamental and far-reaching of sociology's unit-ideas,,,3 it has proven exceedingly "difficult to define.,,4 The temptation is to think of community as exemplified by a particular culture, having a specific content, and actually situated in time and space. This is certainly what Tonnies had in mind when he charted the development from "Gemeinschaft" to "Gesellschaft."5 In the 1960s modernization theory displayed similar assumptions using the more sophisticated (but essentially analogous) dimensions ofTalcott Parsons's pattern variables.6 The enterprise of attempting empirically to locate historical "community," however, has collapsed into a hopeless muddle. In his amusing study of American historiography, for example, Thomas Bender documents how historians have found "community " to be always and continuously dissolving. Respectable monographs, when "placed in serial order, ... offer a picture of BETWEEN DEMOCRACY AND COMMUNITY 165 community breakdown repeating itself in the 1650s, 1690s, 1740s, 1780s, 1820s, 1850s, 1880s, and 1920s.,,7 Whenever we look, apparently, we can be certain to find "community " slipping away. Bender suggests, therefore, that we abandon the concept of community as occupying "a specific space," and instead think of it as "a fundamental and enduring form of social interaction."g The methodological inquiry would thus shift away from the question of whether a particular culture represents "community," and toward the question of how communal forms ofsocial interaction are instantiated and how they intersect with other kinds of social organization. The shift, in essence, would require us to abandon a concept of community that has determinate content, and to substitute instead a concept of community that entails a substantively empty but formally specific structure of social ordering. Following Bender's suggestion, and building on the work of Michael Sandel, I define "community" as a form of social organization that provides for its members "notjust what they have as fellow citizens but also what they are, not a relationship they choose (as in a voluntary association) but an attachment they discover, not merely an attribute but a constituent of identity.,,9 Within community, therefore, social order is maintained through the inculcation among members of deep and parallel forms of personal identities. This formulation permits us to ground "community" in the empirical processes of primary socialization . George Herbert...