George Kateb wrote:
Chapter 2:
Remarks on the Procedures of Constitutional Democracy
Here I explore tentatively the view that certain political and legal procedures, those of constitutional democracy, have intrinsic moral value. …
… Undoubtedly, it is extremely tempting to think of procedures as neutral. On many occasions … one hears that disagreement over ends or values, over policy and choices, is endless and would be fatal in the absence of a procedure to work things out. The assumption is that the essence of any procedure is regularity; that regularity is both the antithesis to strife and the guarantor of its absence; that regularity is a matter of efficient functioning; that inefficiencies are corrected by technical improvements; and that though the results of a procedure, the decisions or “outcomes” are ends or values, the procedure itself has worked neutrally to attain them.
Why is it tempting to think of procedures in this way? One main reason is to seek relief from moral perplexity. A procedure in its seeming automatism may appear to be an impersonal agent —some great machine which, once activated, accomplishes its task without the intervention of personality and all its deviations, all its deviance. It seems to be a way of choosing in which no one chooses, like throwing dice or picking the short straw. Human agents are involved, but not as real agents—only as the vehicles of something not human, something outside themselves.
Those unhappy with the decision may be told that they have no reason to complain: they had their chance, and no one can be blamed. The procedure was neutral and its decision must be accepted. To refuse to accept it is to try to replace neutrality by partisan or willful imposition, to reintroduce the moral confusion that the procedure was meant to dissipate.
This way of thinking need not be malign. Yet insofar as it is in the service of exonerating an established arrangement it can operate to discredit a proper sense of grievance, to silence complaint by a counterclaim of helplessness. But whatever the conservative uses of the view of procedures as neutral, the view itself is inadequate, as I hope to indicate. If we seek relief from moral perplexity in procedures, we seek it in the wrong: place. If failure to agree on ends is felt as intolerable, we would inevitably have the same feeling when we looked again at the nature of procedures. Procedures are not “value-free” devices of deliverance but morally charged and therefore morally problematic modes of activity.
Alternatively, one may believe that procedures are merely neutral means to a clearly specifiable end, a serviceable technique that has been discovered under the stimulus of a commonly experienced lack. A job has to be done; everybody knows that a job has to be done. The people need a government, or there has to be a system in which a person will be tried for an alleged crime. If, in the first account, all ends but peace appear as hopelessly contestable on any given occasion, here, in the second account, ends appear as obvious: they pertain to the most basic and general human needs. Circumstances will dictate which government or which legal system (or which particular procedures) will be the best. The ends are fixed and not affected by the means used to attain them; the means have no separate moral identity and may be picked up and dropped without moral compunction. Nothing is morally at stake in the choice of procedures.
From this practical-minded or pragmatic outlook, political and legal procedures appear, then, as without intrinsic moral meaning. In response, one must acknowledge that procedures are means, are methods of getting a job done; that they would not exist without some initial need, some end in view; and that unless they are seen to get the job done, they will be distorted and perhaps discarded. Such acknowledgment, however, is compatible with further assertions that this practical outlook ignores. The great political and legal procedures of constitutional democracy are means, but not merely means; and they partly redefine the ends they serve, as they are changed by their own consequences and the emergence of new ends for them to attain. Called into being by some necessity, they convert that necessity into a positive moral opportunity, while altering the very understanding of necessity. Procedures may transcend their own root nature and become the real ends, the real raison d’être, of the society in which they exist. Certain procedures are the soul of constitutional democracy, precisely because of their intrinsic value. I hope to indicate how the pragmatic view, like the morally skeptical view, is seriously deficient.
Other reasons for finding tempting the idea of procedures as neutral may be given. And of any given procedure one can rightly say that it shows neutrality in the sense, for example, of impartial maintenance or enforcement of the rules in all cases. I do not mean to say that this idea as a whole is either implausible or without the power to instruct. I want, rather, to resist it, certain that it is immune to annihilation: the temptations to espouse it are strong.
We usually say that restriction or limitation on the power of the government is the soul of constitutional democracy and that the political and legal procedures are modes of restriction (or limitation). Specifically, the political procedure (the filling of offices through contested elections held at suitably frequent intervals, decided by the majority, on the basis of universal adult suffrage) and the procedure of criminal law (due process) are modes of restriction. These two procedures would seem to be the most important procedures of constitutional democracy. We go on to say that one other mode of restriction is characteristic of constitutional democracy: absolute prohibition of governmental intervention in certain areas of life, such as religion, speech, press, and assembly. Taken together, all these restrictions are preliminarily justified in the name of avoiding gross oppression (in the most general sense). Submission to the electorate is meant to keep officeholders on their best behavior; acceptance by the government of rules guiding it in its dealing with suspected or actual violaters of the law is meant to prevent arbitrary action; total abstention by the government in regard to many of the most sensitive areas of life is meant to leave them strong and spontaneous. Putting aside the absolute prohibitions of the First Amendment, we may say that, at its simplest level, the defense of the procedures of constitutional democracy is oriented toward an outcome or result, even if “negative” in nature—the avoidance of gross oppression. The pragmatic outlook on procedures in general is thus brought to bear on the political and legal procedures of constitutional democracy. The end is defined in a fairly clear way: the avoidance of gross oppression; and the appropriate means, if not forever, then in the modern age, is some version or other of the electoral system and some version or other of due process of law. The means have enormous importance, but only as instruments; they are not considered to possess intrinsic value.
At the same time, the morally skeptical outlook may furnish another initial justification of the procedures of constitutional democracy. They may be seen as peculiarly likely to elicit popular acceptance because of the overall indulgence the people receive by means of them. Elected government gives the people what they want; due process of law makes it comparatively easy on them in their waywardness. With such complaisance, with this congruence of what the people want and what officeholders do, the question of values subsides. Consequently, complaint should be severely limited: it should not touch the procedures themselves, while complaint about any outcome is tolerated but seen only as a subjective expression. The political or legal procedure has spoken: the vote or verdict must be accepted. To say it again, those unhappy with the result had their chance; no one can be blamed. Hence the procedures, if understood by society in this way, attain the valuable outcome of stability but have no intrinsic value.
But the procedures of constitutional democracy deserve a richer defense. This is not to disparage either the avoidance of gross oppression or the stability of popular acceptance. It is only to say that valuable outcomes are not the only matter of value attached to the political and legal procedures of constitutional democracy. These procedures are not neutral or value-free in themselves. They attain values but are also themselves valuable. Even when we take the broadest possible view of the valuable outcomes (besides the avoidance of gross oppression and the stability of popular acceptance) which the procedures attain, we have not reached the essential matter. Even when we say—on the assumption that our reality permits us to—that the electoral procedure conduces to the attainment of sensible and equitable social policy, and the due process procedure conduces to the attainment of correct verdicts and punishments, and each procedure is more likely to attain these things than other procedures, we have still not reached the essential matter. We still have not given constitutional democracy the defense it deserves—or that it would deserve if social conditions were different and better.
We may say that the procedures of constitutional democracy not only attain valuable outcomes (attain values); they also accommodate, embody, and express values. The meaning of saying that these procedures have intrinsic value or that they contain values is that they accommodate, embody, and express or sponsor) values.
[MGH: There follows a much more detailed examination firstly of the ‘electoral system’ and secondly of ‘due process of law’. We skip to the conclusions.]
It could be said that it takes no great wit to see that the outcomes of the electoral system and due process are open to systemic criticism, It is not that on occasion both procedures lapse. It is that their outcomes compose a pattern that cannot withstand moral scrutiny. If that is so, then it is likely that the procedures accommodate, embody, and express vice and irrationality. Granted that the connection between procedures and outcomes is essential and not slight or accidental: that is precisely the trouble. We are familiar with the leftist critique of the electoral system: roughly, the procedure of energy is a procedure that accommodates deception, manipulation, corruption, and irrationality; that embodies relationships of unchanging inequality between the government and all citizens and among all citizens; and that expresses values no better and really not different from those it accommodates and embodies. The electoral system is rigged in behalf of various kinds of privilege, but especially wealth. When it does not serve as an empty ritual that distracts attention from those unelected people who wield the basic power in society, it works with an irreversible bias toward the preservation of privilege. Its contests, struggles, differences, choices, debates all take place within a preposterously narrow range—especially preposterous because falsely thought indefinitely wide. The electoral system in a capitalist society is an instrument of elite dominance.
We are also familiar with the rightist critique of due process, a critique summarized in [the] “Crime Control Model”. Due process accommodates the distortions and withholdings of lawyer and client, the general sophistry and trickery of counsel, and the irrational pedantry of old, complex, and inconsistent rules; it embodies relationships of irresponsibility, evasion, and egocentrism; and it expresses the general idea that it is all right in everyday life to go easy on yourself, to get away with anything you can, to use any method to gain an advantage, to misrepresent yourself, and to avoid merited penalties. The upshot, inevitably, is that guilty people go free or are punished much less severely than they deserve; while individual victims go unrequited, and the whole of society suffers from a legal procedure that encourages crime itself, not just noncriminal selfishness.
(A rightist critique of the electoral system and a leftist critique of due process have also been made; but at the present time they are less intimidating than the two I have just mentioned, and I can do no more here than refer to them.)
Another line of criticism challenges the indissolubility of procedures and outcomes, and the hesitations I have indicated concerning my view partly derive of course from awareness of this line. At issue is the constant possibility that a procedure—understood rightly as a mode of human activity —must fail on not infrequent occasions to attain ends that are worthy of that procedure. This is not systemic criticism. All it asks is that we remember that human agency is imperfect. The defense of an enhanced view of procedure should not, in its turn, repeat the inadequate idea that procedures work with an impersonal agency. Once we recall that, we are enabled to retain the right to examine the outcomes and judge them independently of the procedure that attained them. That is, we should be allowed to say that some outcomes are so gravely wrong (evil done or not prevented or not rectified) that the intrinsic value of the procedure cannot outweigh them. Impossible as it is, the effort to compare the relative importance of the values attained with the values contained must be undertaken. Ordinarily, we go along: we accept the outcome just because it is the outcome of an intrinsically valuable procedure that is preponderantly nonatrocious in its outcomes—and is nonatrocious precisely because of the nature of the procedure and the values it contains. But there are supervening occasions of individual or constitutional conscience when rejection is the rightful response, especially in regard to the political procedure.
The last line of criticism I point to is reducible to the insistence that some outcomes, actually end results or steady conditions, are attainable variously. They do not gain their identity from the procedures that bring and keep them in being. Some examples are the preservation of life; the reduction of violence; the avoidance of war; the successful conduct of diplomacy and war; the provision of the means of subsistence; the prudential toleration of many religious, intellectual, cultural, and technological endeavors; and many other policies. Specifically, governments not constituted by the electoral system may attain all these end results. In addition, the “Crime Control Model” or, indeed, some other legal procedure, may, despite all sophistry to the contrary, be able to ascertain guilt and innocence. A murderer is a murderer.
Full answers to these several lines of criticism are beyond me. To the last one, I can only concede the point. Some ends are variously attainable. But then I would insist that the status and activity of citizenship remake the world in which they exist.
Life is life, peace is peace; but there is no truth in modern constitutional and democratic theory if we would be right to settle for order and security on any terms. We are not supposed to want any benefit if it is imposed, when we can have that benefit as well as an entirely transformed conception of benefit in general without nondemocratic imposition.
Constitutional democracy promotes a way of life, and its distinctive features constitute its claim to moral superiority. These features are accommodated, embodied, and expressed in its political and legal procedures. On due process, specifically, no other legal procedure does justice justly. That is its specific claim to moral superiority. A murderer is a murderer, and due process will find him out without having the government itself perpetrate wrong by refusing to recognize the murderer’s rights. A government loses its status as government when it does unnecessary wrong in pursuit of good; good ceases being good when unnecessary wrong has produced it.
The first two mainlines of criticism are more vexatious. What they have in common is the demand that any defender of an enhanced notion of procedure pay attention to the context, to the social reality in which the procedures work. If in some respects political and legal procedures are like games in that they seem to constitute a whole world, gathering all our interest into the play, we would be mistaken if we were to lose sight of the elementary fact that a political or legal procedure is not a game. The social world is not constituted anew every day. It is there day after day in its overwhelming presence and it will intrude on the playing of a game (or the performance of any self-contained activity). Indeed, “intrude” is too remote a word, too connotative of aestheticism. Procedures absorb or “process” what is external to themselves, problems and issues; and do so because they exist to do so. Procedures have a reciprocating influence on the society that influences them. Games do not, or at least not nearly to the same degree. History and nature and culture do their mysterious work to create interests, attitudes, commitments, prejudices, traditions, passions, and reasons. People become what they are. And they, after all, are the agents and experiencers of the procedures, and the ones who are influenced by them inwardly and who benefit or fail to benefit from the results of their working. It cannot but be the case that the same procedures will, in different circumstances, yield different results. But to say that is not only to readmit the rightness of judging the procedures and the outcomes independently; it is also to say that social reality substantially affects every aspect of a political or legal procedure. I think this consideration applies with special force to the political procedure.
In America, the political procedure coexists with and preserves a condition in which many people live below the socioeconomic level of a decent life. The result is that the procedure’s integrity is impaired. To revert to our analogy, the content spoils the form because the context is not wholly appropriate to the form.
Yet this point marks the limits of the concessions I would make to the view that procedures and outcomes maybe judged independently. The (conceptual) right to judge in this way is a sign of the serious imperfection of social reality. With lesser imperfection we would be entitled —or more entitled—to insist on the indissolubility of means and ends, procedures and outcomes. This is not to say that the means morally outweigh the ends, but that the ends are really the ends because the only morally permissible means have attained them.
I hold on, then, to the belief that, ideally, the social reality of constitutional democracy could be such as to permit its great procedures to be perfectly themselves, untrivialized or undistorted by the degradation of millions and other deficiencies. That society does not exist in America, except approximately, or in some sectors, or in recurrent phases, or for some groups. However, only that society is genuinely a constitutional democracy, the developed civilization of constitutional democracy. Far from being neutral, the great procedures must beat the heart of thought about the moral nature of that civilization.
The Source:
George Kateb, The Inner Ocean: Individualism and Democratic Culture, Cornell University Press 1992
Evolutions of social order from the earliest humans to the present day and future machine age.