Re-Thinking Democratic Legitimacy in a Time of Crisis

By Tedd Siegel


What’s this? What’s this?
There’s something very wrong.
What’s this?
— Jack Skellington, The Nightmare Before Christmas

We’re not Number One!

In 2016, The Global Democracy Index issued its annual report, and on this occasion felt it necessary to downgrade the United States from “Full Democracy” to “Flawed Democracy” status, because the USA’s total weighted score in their study fell below 8.0 for the first time.

Whereas the US used to keep company with most of the northern Europeans (and Uruguay), today we find ourselves 21st in the world out of 167 countries, and headed on average toward lesser European democracies and most Latin American countries. After Trump’s attacks on the media and the judiciary, voting rights, and immigrant rights, one can only assume that this downward movement will continue to accelerate.

Fall below 7.0 on the EIU scale, and we are bunking with Indonesia and Argentina at the top tier of that group. Admittedly, there’s a long way to drop in free fall before we land in the neighborhood of Russia and China (3.24 and 3.14 respectively). But for a country that annoyingly prides itself on being “number 1” in all things that matter to us (we regularly spurn silver and bronze medal Olympians) the passing of this threshold without any significant fanfare is really rather striking.

As we have moved apace through the too-numerous-to-count Trumpian outrages against the spirit and institutional practice of American democracy, the obvious question has continued to haunt me: does anybody actually even care about our (imperfect) American democracy? If not, why not?

This project was conceived when I was forced to ask myself a question that my prior understanding of democratic political legitimacy could not answer: Can the legitimacy of democratic institutions as such simply collapse? This question isn’t so much about why some people, even large numbers of people, might be attracted to some form of authoritarian political decisionism during times of crisis. I have written about these things in other places.

The question that concerned me here was, “how do I have to understand the legitimacy of liberal democratic institutions in order to explain the fact that large numbers of people are apparently willing to rescind their commitment to them? Or perhaps another, more Kantian formulation: Mature democracies can apparently collapse on their own. How is that possible?

These questions, I readily admit, rouse me out of my apparent educated lib-tard slumber.

Believe it or not, I had simply assumed–well into sclerotic middle age–that most people, when pledging their allegiance to the flag and the republic for which it stands, and feeling some reverence for the US Constitution, were like me, performing some version of an internal rational procedure. In this procedure, they understood themselves imaginatively to be personally ‘signing on the bottom line’ of the US Constitution, saying to themselves, “had I been there, that September day in Philadelphia, I would have taken the quill in hand, and with a cursive flourish unknown to this century, signed my name to the document, thereby recording my acceptance of it as a serviceable (albeit flawed) exemplar of the social contract.”

Ok. Go ahead, laugh. But my guess is there must be at least a few other people who grew up thinking like this!

Rational Reconstructions of the Social Contract

Now that the laughter has started to die down, it behooves me to point out that a lot of political theory produced in the second half of the twentieth century has also sought to “reconstruct” classical theories of social contract(from Hobbes to Locke to Rousseau and Kant) by inviting us to enter into internal rational procedures or thought experiments that are not too dissimilar. In Hobbes, Locke, and Rousseau, we find variations on a kind of a thought experiment concerning the transition from a “state of nature” to “society” that serves as a sort of rational justification for the legitimate authority of the state. While the notion of popular sovereignty and the consent of the governed survives into our own times, this classical political theory of the social contract presents a number of serious difficulties. Antiquated eighteenth century notions about such things as human psychology and natural law are now highly problematic, even where the basic intuition about the social contract ring true in various ways.

The standpoint of these projects turns out to be the shared liberal assumption that economic and political liberalism have simply “won the day” in the modern age, and are thus a permanent horizon and touchstone.

Latter day social contractarians such as John Rawls and Jurgen Habermas have sought to circumvent the many problems with eighteenth century political philosophy that begin with the thought experiment, “imagine the transition from a state of nature to the first civil society arrangements”. Seeking to retain the basic rational kernel in the theory of social contract, while dispensing with things like mechanistic psychological egoism and early modern natural law, Rawls invites modern persons under conditions of liberalism to arrive at principles of justice fairly in his book, A Theory of Justice.

He does so by inviting us to enter into a thought experiment with key information bracketed in what he calls “the original position, behind a veil of ignorance” — you must judge what is right and fair without knowing who you are: your gender, race, particular talents and abilities, age, social status, and more). In this fashion, instead of recourse to some imaginary “time one” where human beings rationally consented to live in society with one another, Rawls shows us what we must be willing to accept as rational persons in order to be capable of living in a just society where justice is fairness plus equality of chances to live a good life.

For his part, Habermas is concerned to investigate the functioning of normative validity claims in a general theoretical reconstruction of everyday communication competence, in which we regularly and unavoidably establish and redeem claims to normative validity or moral rightness in our interactions with others aimed at arriving at various sorts of consensus. In showing what we always do, whenever we communicate and reach understanding with others, when we say that this or that ought to or should be the case, or that something is morally right, Habermas seeks to point out the unavoidability of certain idealizing presuppositions as a way to ground them for us thereby, without recourse to some set of metaphysical assertions about God or nature, etc.

The Questionable Persistence of the Liberal Constitutional State

My point in bothering to sketch this out is not merely to try to show that my naïve “constitutional patriotism” bears a striking resemblance to the reflective rational procedures called for in the work of leading political theorists in the latter half of the twentieth century. While I believe this to be very much the case (ok, except for my dancing in front of the tv to the songs of the musical 1776) my intention is to point out something else, namely the real vulnerability of projects that seek to ground legitimacy claims and/or claims to moral rightness in the underlying fundament of a shared commitment to live like rational people in a just society.

To be clear, I am not here pointing out the oft cited “problem of application” that must be addressed whenever theorists wrestle with procedural aspects of the justification of norms in social action. If a moral or social norm is deemed to be valid such that it can in principle command the rational assent of all affected by its observance, then there is also the problem of how to apply it to the full range of possible situations.

No, the problem here has to do with justification itself, some assumptions relating to confidence in the growing share of rationality in modern societies. There are clearly things that rational people do, as a matter of course, when they go about the business of seeking a rational consensus; and there are procedures that individuals can undertake, as a kind of rationality test, when they go about judging candidate principles of justice that will apply to all in a putatively just society.

Time and time again in Rawls, especially in his later work, we see appeals that are based on recognition of the superiority of democratic socio-political legitimation mechanisms and institutions over and against any and all possible alternatives where pluralism is decisive (something that is found pretty much everywhere in complex modern societies). All things being equal, so the argument goes, anybody and everybody can see that since leaders and programs and projects can be legitimated and de-legitimated without violence and instability under conditions of liberal democratic politics, any rational person would have to recognize that this arrangement is the best possible socio-political arrangement we can hope to find.

So too, with Habermas, something similar, but in a different way. Running like a thread from early to late at a certain level of his analysis, we find a consistent and confident assertion of the “evolution of society.” For Habermas, the fruitfulness of reconstructing communicative competence (so as to create awareness of necessary presuppositions about normative validity) is found in a recognition that human history needs to be understood as a cognitive/technical and moral/practical learning process, and as such can be structured into developmental stages, with the latter ones marked by ever greater degrees of societal rationalization.

In the work of both Rawls and Habermas then, the starting point for establishing the binding force that should compel people to recognize and perform a set of rational procedures to ground their normative commitments is the conviction that, by and large, and ever more so over the course of human history, people do and will consult their rational endowment and choose to live under conditions of procedural justice as fairness under a liberal constitution.

What if most people are not particularly reflective about normative validity claims?

The assumption that the post-war order of increasing global democratization is both progressive and irreversible, especially after the collapse of the Soviet Union in 1989, itself turns out to be a condition of the political theory intrinsic to liberal constitutional democracy. As Claus Offe wrote in 1996, in Modernity and the State, “As soon as we start talking about legitimating justifications…there is no alternative to the will of the people as the final agency justifying political rule…there is, in other words, no alternative to liberal democracy…”

Offe’s point is not that there aren’t better or worse (or even more or less perverse) instances of recourse to “the will of the people.” Rather, it’s that every regime, no matter how liberal or illiberal, must in some sense call itself a democratic republic, and then wrap itself in at least some trappings of democracy–even where their justification for a prorated democracy (via claims to having a unique system because of culture and historical considerations) remains something of a farce to European and American ears.

Offe is saying here what Rawls and Habermas are thinking, namely that even where things like positive law and economic conditions limit the scope of actual democratic decision-making, still, from the point of view of ultimate legitimacy, “…alternatives that have their foundation in a dynasty, a theocracy, a particular philosophy of history or in natural law simply no longer come into consideration…modern societies are condemned to rely solely on the will of the people.”

But what if it turns out that these assumptions simply can longer be taken for granted? What if most people are not particularly reflective about normative validity claims? What if society is becoming less reflexive in this domain rather than more so?

What if, rather than making my confessed constitutional patriotism less laughable by referring it to this massive corpus of philosophical erudition, I only succeed in showing these intellectual projects to be, in themselves, of only a limited, academic interest? What if all that gets accomplished via this introduction is to widen the sphere of laughter and ridicule?

The standpoint of these projects turns out to be the shared liberal assumption that economic and political liberalism have simply “won the day” in the modern age, and are thus a permanent horizon and touchstone, even though complex modern societies continue to evolve in new and unpredicted ways under conditions of advanced or late capitalism.

A More Realist View of Political Legitimacy

The subject of this set of posts isn’t why most people seem not to care about the erosion of our republican form of government as enshrined in the Constitution, and why we have recently drifted from liberalism (as seen in both Democratic and Republican governance from FDR to Reagan) to out-and-out illiberalism. I have attempted to address this elsewhere. Nor is the purpose to attempt some rational reconstruction of why anybody should care in the first place.

Instead, my objective will be to try to think anew about what happens when (advanced capitalist) democratic socio-political legitimation veers into the territory of political crisis. The topic of this series of posts, therefore is not why nobody cares, but rather, in the end, why it may no longer matter whether they do so or not.

In taking this approach, I am following Raymond Geuss who, in 2008, criticized the idea of an “ethics first” political theory, as if the right way to begin when studying the social world is to assume that politics is applied ethics. Geuss instead called for a more “realist political theory” where the starting point should not be concerned with how political agents ought ideally to act or value, but rather with the way the social, economic, political institutions actually operate…” Narrowing still further, I take the suggestion of Daniel Gaus, who, following Geuss, wants to inject more realism specifically into the study of political legitimacy per se. But mercifully, enough about Geuss and Gaus.

For what reasons do actual people in complex societies believe in the legitimacy of democratic institutions? Is there a specific set of crisis conditions for the breakdown of otherwise competitive democratic regimes? Finally, in a subsequent installment of the this post I will be asking: is there a unique set of crisis conditions relating to legitimacy under present conditions of advanced capitalism?

On the Breakdown of Democratic Regimes

In the introduction to his 1978 work “The Breakdown of Democratic Regimes” Yale political scientist Juan Linz stakes out the space for his investigation by saying that although there has been a lot of work done on conditions leading to stable democracies, there hasn’t been very much done on trying to understand the process of the breakdown of competitive or mature democracies. He credits this state of affairs to a pervasive “postwar optimism about the durability of democracies.”

Social scientists of a more Marxist orientation, of course, tend to focus on structural characteristics of society leading to class conflicts. Since Marxists by and large don’t think liberalism per se is inherently stable, what is surprising is the creative persistence of liberalism in papering over its contradictions, and not democratic collapse, when and where it might occur. While it is true, Linz writes, that breakdown, where it occurs, can be explained by things like social and economic inequity and concentration of economic power, etc., answering the why would still leave open the question of precisely how.

Hitler did not take power because of a putsch, and Mussolini did not march into Rome at the head of fascist legions — he was summoned by the king, and traveled in a sleeping car.

Linz goes on to say that his concern is with the space of political action and the decisions of political actors. He is convinced that once the dynamics of breakdown have been exposed, it is possible to lay out various probabilities, and that this calculus might be used to help assure consolidation, stability, persistence, and re-equilibration of democratic regimes. Alternatively, they might also be employed, Linz admits, as something useful in a “school for dictators.”

To understand how democratic regimes breakdown, we must first grasp something about where obedience to these regimes comes from. Linz says that among defenders of democracy, there are those significant sectors of society who value democratic processes in and of themselves, and there are those who value democracy only insofar as they produce policies that are found to be satisfactory; for this group, democracy is not valued in and of itself, but rather as a means to an end.

Linz says that in his view, these two standpoints represent ideal type extremes, and neither of them capture the real sense of the legitimacy of democratic regimes for the majority of people whose allegiance is the basis for the stability of democratic political institutions. A democracy cannot be based exclusively on an abstract claim of legitimacy (this is the standpoint described above where I invited you to laugh at me). Yet we must also reject the assumption, Linz writes, that a democratic regime’s legitimacy is reducible to the expression and defense of a particular socioeconomic, cultural, or religious order.

In Linz’s view, democratic socio-political legitimation must be understood to depend upon “activation of commitments to decisions that are binding on the collectivity.” Since expecting that people do this out of some “abstract or rational claim to legitimacy” has already been previously rejected, we are apparently supposed to understand that along with various other particularistic motives (custom, advantage, solidarity, etc.) people with diverse programmatic political allegiances commit to a democratic politics pragmatically, because they recognize that this is the best possible socio-political arrangement under conditions of value pluralism. In principle, a democratic system should be able to rally legions of people pursuing widely varying goals over time. In a democracy, Linz writes, a government should enjoy legitimacy even among those who constitute its opposition (they become known as the loyal opposition).

In this pragmatic conception (to be honest it’s hard for me to see how this conception doesn’t ultimately derive from an abstract approach, since it’s all about rational self-interest) there is also the role of what Linz calls “efficacy and effectiveness” since these can be seen to strengthen or weaken legitimacy over time.

Democratic regimes exhibit efficacy when they are capable of developing programs that represent goals that are acceptable the majority without representing excessive deprivations for their opponents, and which also appeals to vested economic and international interests as well. Obviously, this is a pretty tough balancing act. Linz says that regimes sometimes rely more or less heavily on what is called the tunnel effect (in which satisfaction of the expectations of some sectors of the society serves to give hope to other who do not see any immediate outputs).

Along with efficacy, there is also the aspect of effectiveness, namely the regimes ability to carry out the plans for which they were placed into power. A regime that overplays its hand at the level of efficacy (promising all things to all people) can end up with weakened legitimacy if they can’t manage expectations.

The Loyal, the Disloyal & the Semi-Loyal

In order for Linz to proceed to his account of the dynamic process of democratic breakdown, he must first finish setting the stage, with the introduction of the dramatis personae. First, we have the loyal opposition, as mentioned previously. Linz has a ten-point list of essential characteristics of a loyal democratic opposition. The list includes, among other things, an unambiguous commitment to achieve power only by electoral means, and a readiness to surrender it to others with the same commitment. There is also the rejection of violence, a willingness to denounce those who call for extra constitutional regime change, and a willingness to participate in governing, by partnering with ideological opponents, etc.

In societies with stable democracies, one tends to see two-party systems, or moderate multi-party systems with stable governing coalitions. Where there is greater polarization, you have greater distances among them. Under these conditions, it is harder to distinguish loyal opposition players from disloyal ones, because we see the emergence of a third player, what Linz calls the semi-loyal opposition. Semi-loyal opponents of the democratic regime are enfranchised participants in the system who nevertheless stand for its destruction (as opposed to the obviously disloyal opposition, like anarcho-syndicalists and others who fundamentally reject state authority, or fascists who insist on unitary executive power).

Moving to the process of breakdown, Linz writes, “no regime is without disloyal opposition. Most of the time, existing regimes tend to have the benefit of the doubt of large sectors of the society. Except in crisis situations, this allows it to isolate and otherwise discourage disloyal oppositions. “These facts he writes, “give semi-loyal oppositions a decisive role in the process of loss of power by democratic regimes.”

Semi-loyal are rightfully legal political actors who are nevertheless willing to cooperate with parties or interests that are perceived to be disloyal — they display a willingness to encourage, tolerate, cover-up, treat leniently, excuse or justify the actions of other participants that go beyond the limits of legitimate patterns of politics in a democracy. Bad behavior on both sides! So many sides!

Ultimately, Linz writes, “semi-loyalty marks a system-oriented party’s greater affinity for extremists on its side of the political spectrum than for system parties closer to the opposite side.”

Mussolini Traveled to Rome in a Sleeping Car

As mentioned before, per Linz, the stage is set when leaders in an incoming democratic regime offer up an overly-aggressive, and thus over-optimistic agenda, and thus having over-promised more than they can deliver under a set of complex interests needing to be balanced. Then when under pressure, they make certain mistakes. They engage in the politics of resentment, overly demonizing opponents, and in so doing, they miss their chances to incorporate potentially loyal forces into the ruling coalition.

Next, because of the intensified polarization, it becomes difficult to distinguish the loyal from the semi-loyal, since inter-party strife, discrediting of opponents, and identifying the opposition with narrow special interests are otherwise normal (except that the semi-loyal engage in it with an abnormal intensity and lack of fairness).

Crisis starts when a democratic regime, weakened by a lack of efficacy and/or effectiveness in the face of complexity, confronts a direct challenge to its legitimacy when semi-loyal forces join with disloyal ones to attack the system itself, and invoking ultra-nationalist and authoritarian themes, demand the power to implement sweeping and simple solutions to complex problems.

In the end, the breakdown occurs when semi-loyal forces take power legitimately, but then declare “a state of emergency” suspending constitutional protections and norms. As Linz reminds us, “Hitler did not take power because of a putsch, and Mussolini did not march into Rome at the head of fascist legions — he was summoned by the king, and traveled in a sleeping car.”

Legitimacy and Crisis under Conditions of Advanced Capitalism

As I said at the start of this post, this project was conceived when I was forced to ask myself a question that my prior understanding of the basis of democratic political legitimacy could not answer: Can the legitimacy of democratic institutions as such simply collapse? How do we need to understand the legitimacy of liberal democratic institutions in order to explain the fact that large numbers of people are apparently willing to rescind their commitment to them? It is apparently the case that mature democracies can apparently collapse on their own. How is that possible?

This first installment of this post reflects my attempt to inject some elements of realism in to the way that I had previously thought about the basis for democratic political legitimacy. But while the account from Juan Linz about how breakdown occurs in democratic society is clear enough, his treatment of legitimation is not fully developed.

Perhaps I still need some idealist chocolate with my realist peanut butter. In the second part, I try to zero in on the topic of legitimation, looking at treatment of the topic by Max Weber, and I also take a detour through Joseph Tainter’s The Collapse of Complex Societies. My overall intention in this second installment is to set the stage for thinking about the notion of legitimation crisis, revisiting the 1973 work by the same name by Jurgen Habermas in my third and final installment.

In this work, written before Habermas had fully developed his mature academic project of a theory of communicative action, the author offers a very compelling account of how it is that society has entered a phase of overall development that exhibits a very unique aspect of crisis with respect to political legitimacy. Through this reading, I try to explain why it’s not so much that nobody cares about democracy, it’s rather that it no longer matters whether they do or don’t.

Following the 2016 presidential election, people seemed to be saying these words repetitively — “clearly, we’re living in dark times.”