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DEMOCRACY / Vol. 50, No. 4 (Winter 1983)

Andrew Arato and Jeffrey Goldfarb, Guest Editors
Arien Mack, Journal Editor

Emil Oestericher was one of those people whose lives have the character of legend—not only because of his living experience but because he was a man of deceptive surfaces and profound paradoxes. To give a coherent, not merely a chronological, account of his life is perhaps impossible.

Since the revolutions of the eighteenth and nineteenth centuries a steadily increasing number of social phenomena have been justified as being democratic. Forms of democratic legitimation range from “peoples’ democracies” to “liberal democracies,” even though the former term is patently redundant and the latter exposes what has been, at least historically, a contradiction. Yet it is not at all that such legitimations have very much to do with normative democratic principles as they have been formulated in political theory. In this issue of Social Research we hope to bring some enlightenment to this rather confusing state of affairs.

J. S. Mill presupposes that "true" norms as such can be established only and solely through their stability, which is tested in the context of constant rivalry with "false norms." For the contemporary dogmaticians of public law, this is an absurd and, moreover, politically risky idea. Nevertheless this idea is at least negatively confirmed by numerous social-scientific and political works insofar as (a) they articulate doubts as to whether those procedural rules which the constitutions designates for the acquisition and use of power could be recognized by the mass of citizens as "correct" and thus granted legitimacy and (b) as a result of this discrepancy, they foresee risks for the maintenance of the constitutional order itself. This idea, variously expressed today through the catchwords of hostility to parties, to democracy, and to the state, attests to nothing less than the fact that procedural rules for political decisions, in order to exist at all, have to be--really sociologically--compatible with and supported by the cultural and economic structures of a society. That means that such rules, despite massive juridical-intellectual and other efforts, are not in the position to guarantee or confirm themselves as procedural decisions established once and for all. Rather, in addition, they must continuously stand the test of their real recognition.

"Authority, in the sense of the right to command, can be allocated in different ways within a society--it may be distributed according to a democratic, aristocratic (oligarchic), or autocratic norm. Even if we were to accept the proposition that whatever rules the legislator commands are just, a fundamental question would remain unanswered: What person or council should be the legislator? In appealing to authority to discriminate in rule conflicts, we are confronted with the problem of what 'particular authority' do we recognize as being legitimate."

This paper’s claim is that modern reactions to the early modern position on democratic participation and economy share its view that the fundamental purpose of law is protection against domestic violence, and that the sole possible relationship of state to economy, whether through regulation or direct management, is coercion. The claim is further that this view about law and the relationship of state to economy is in error, and that the source of the error lies in the desire to preserve the spirit of ancient democracy under inappropriate economic conditions. A decent theory of democratic participation and modern economy must accede to the involvement of state in economy, not principally through mechanisms of coercion but through the ability of the state to provide the process of production with specialized facilities as part of the process of production. Jurisprudence, in turn, must be prepared to recognize law as a facility, as well as regulation or management.

I propose to defend the argument that what some call a classical understanding of the public is indispensable in the modern democratic context, although I think I shall do so with due deference to the anxieties of those who think otherwise. This deference is a consequence of my belief that some defenses of civic rhetoric are morally and politically dangerous in a democracy. The rhetoric of the civic commons seems to me essential in our time, but not just in any form. The first section of this essay sets forth the dangers of the civic rhetoric as reflected in the objections of those who oppose it. Second, I present a working typology of "publics" intended to display the range of meanings the term has taken on in contemporary social science and policy literature. I then take up the main question of this essay: Who needs the older sense of public and why? In a modern secular, pluralist, democratic society in which all candidates for a nontrivial, unitary conception of public good are treated with extreme suspicion, can a persuasive argument be made for a revival of classical civic rhetoric?

This essay is an effort at neither restatement nor retrieval. It aims at a reconstruction of democratic theory. It will attempt to examine critically the implications and consequences of the emergence of neocorporatist arrangements for the practice of democracy in advanced industrial/capitalist societies without, as Hoffman puts it, "[indulging] in the fantasy of an unconstrained ideal order." In other words, it accepts the fact that important structural changes have occurred in the way class, sectoral, and professional interests are organized and in the way these organizations relate to each other and to the state in polities which have otherwise retained open, competitive electoral processes and civic liberties. However, it neither accepts these changes as democratic because they seem to have been spontaneously created and voluntarily agreed upon, nor does it engage in the wishful fantasy that they represent merely temporary aberrations doomed to collapse in short order before the opposition of democratic forces. Neocorporatist arrangements are well entrenched--much more so in some polities than in others- and, at least at the level of popular consciousness, they have yet to be rejected as manifestly undemocratic.

Spain’s surprisingly smooth transition from authoritarianism to democracy has awakened academic as well as broad general interest. The death of Franco, the last of the European dictators of the interwar periods, finally closed "the Fascist Epoch." Worldwide ideological polarization called forth by the Spanish Civil War; Franco’s association with Hitler and Mussolini; brutal postwar repression and renewed violence in the last years of the regime; frequent demonstrations of solidarity with the Spanish democratic opposition--all these factors helped to keep alive the question, "After Franco, what?" What makes the study of the Spanish case especially relevant is precisely the way in which the transition took place. The democratization of Spain, unlike most transitions from authoritarian regimes, was a "legal" transformation. Usually the transition to democracy has taken the form of a "break" with the old regime through various "extraordinary" procedures: downfall of the old monarchical rule, revolution, defeat in war, foreign occupation, war of national liberation, military coup d’etat, or simply collapse of the regime, which hands power over to the opposition after having been unable to institutionalize a post-democratic authoritarian regime. The Spanish case is different from all these. It is a rare case of an authoritarian regime that, after almost forty years of existence, transforms itself, or rather dissolves itself, through self-reform.

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