The conjectural strategy is, on the contrary, positively resumed in Chapter 3’s title (“Reflexive Pluralism and the Conjectural Turn”) with a number of examples dedicated to its application. As far as conjecture is concerned, it is stated that it consists in emphasising what would result in the exemplary realisation of the value core of the comprehensive conception addressed (necessarily a conception of others or else, according to Rawls, it becomes a “declaration”) and it is also stated that it is a far more versatile instrument than public reason for providing a political justification in hyper-pluralist contexts, such as ours. While public reason depends on shared assumptions that, in situations of this kind, are notoriously rare, a conjectural strategy does not depend on them but can instead favour the settling of those consensus nuclei that public reason can avail itself of only at a later moment. Hence, in the structure of The Democratic Horizon, conjectural strategy is anything but rejected and is instead one of the tools with which I try to expand the paradigm of Political Liberalism so as to enable it to work in a context differing from the one, initially far more favourable, in which it originated.

This misunderstanding, however, does not prevent Bianchin from identifying one of the problems linked to conjectural strategy; there is no guarantee it will succeed in including within an  “overlapping consensus” significant segments of the followers of a given comprehensive conception and, in any case, this may take so long that it would extend beyond the range of all political action. Bianchin agrees with my solution for such an eventuality – namely,  hypothesising a “multivariate” democratic regime in which some underwrite the “constitutional essentials” for reasons of principle and others simply do so totally or partially for reasons of prudence – but raises the issue of “why, in a hyper-pluralist society,  in which unreasonable religious and moral ideas are present, liberal principles should enjoy, more than others, the privilege of forming the nucleus of “constitutional essentials”, which non-liberals would have no choice but to follow, be it for reasonableness or prudence. Secondly, Bianchin says we should also expect “the interpretation of constitutional principles to change according to the variations in the composition of the population and the prevalent political culture,” with “unreasonable religious or moral cultures” possibly becoming a majority. So what should be done? “Should we trust in Rawls’ “progressive” option, resign ourselves to a competitive idea of democracy, or resort to a hermeneutic concept of a conjecture”? This is the three-sided dilemma he poses as the issue to be resolved.

These are separate issues. The first, in my opinion, allows one to see how difficult it still is to grasp the fundamental difference separating Rawls’ political liberalism from comprehensive  liberalisms – the difference that makes it revolutionary compared to all frameworks of the normative political philosophy of the past and the more promising paradigm for the 21st century. The so-called “liberal principles” should not at all enjoy a privileged position if they are understood as part of a comprehensive conception alongside others. For example, in the case of the Italian constituent process, strictly liberal ideas historically did not have a central role compared to the “Communist” and “Christian Democrat” comprehensive conceptions. If we instead understand them in the sense of political liberalism, as the normative holding up a political conception of justice that cuts across the comprehensive doctrines present in the field (and it is in this sense that I discuss them The Democratic Horizon), this already provides an answer to the question concerning why “compared to others they should enjoy the privilege of forming the nucleus of ‘constitutional essentials’”. Such principles are by definition “central” because they are “political” and not partisan, and that is why it makes sense to ask those who follow alternative comprehensive visions to consider, “via  conjecture”, endorsing them rather than vice versa.  Equally, for the same reason, we would like those who have not yet underwritten them (or have stopped sharing them, a hypothesis not contemplated by Rawls but extremely plausible) to reconsider the implications of their comprehensive moral conceptions and only at the end of the day, should such a reconsideration yield no results or not occur, ask them to underwrite the constitutional essentials for reasons of prudence. Italian constitutional history may clarify this point. While it would have made no sense to expect a Communist or Christian Democrat of the Fifties to embrace liberalism as the credo of the Italian Liberal Party, the Constitution’s “political-liberal principles” such as “rejecting  war as an instrument of aggression against the freedom of other peoples”, the “equal social dignity” of all citizens, the “equally free” status of all religious denominations, or the Republic’s commitment to “remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person” are principles one can legitimately ask anyone wishing to be an Italian citizen to adhere to.

Let us address the second question. These fundamental principles of a political order remain silent and ineffective if not interpreted, and all interpretations respond to a context. We do not even know what we should reject if we do not assign a reference to the word “war”. War cannot sic et simpliciter mean “armed conflict”, but rather refers to an armed conflict started in order to “bring an aggression against the freedom of other people,” hence an armed conflict embarked upon for self-defence, or to stop a genocide in progress, should not be rejected. There is, however, an entire semantic grey area in the middle, in which an interpretative effort is indispensable. It is also obvious that in addressing the context in which a new question concerning the constitutionality of a new statute or government policy emerges, an interpretation may modify the meaning of principles. Taking as an example the 14th Amendment of the Constitution of the United States of America (1868), the “equal protection of the laws” to which every citizen is entitled, was interpreted in 1896 by the Supreme Court as compatible with segregation on the basis of the clause “separate but equal” (Plessy v. Ferguson) and in 1954 as no longer compatible with segregation (Brown v. Board of Education) at least in the field of education. There is no scandal in the evolution of the interpretation of constitutional principles. A hyper-originalist constitutional culture that crystallises “constitutional essentials”  to their idiosyncratic meaning dating back decades or centuries – for example establishing forever that “spouses”, for whom Art. 29 of the Italian Constitution sanctions “moral equality”, must necessarily be of different genders – would condemn such principles to irrelevance or subject living citizens to the tyranny of the dead. A constitutional culture according to which the interpretation of the central principles of a political regime must instead reflect the opinion prevailing at a given historical moment, would amount to the destruction of the constitution’s authority. The Constitution would no longer be a constitution, but rather a projection of the dominant political-juridical prejudices. Constitutional Courts exist precisely in order to balance, with an oriented reflective judgment, these two opposing tendencies and to link fundamental principles to a historical context without distorting the former or inflicting violence on the latter.[1]

Hence the next problem raised by Bianchin – “to what extent would [the changing interpretations of principles] preserve the core of political liberalism” – finds an answer within this framework. A Supreme or Constitutional Court’s mandate is exactly that of preserving not a comprehensive liberal conception, but the central core of the political idea of justice linking by way of linking it to the changing historical contexts. How this is methodologically possible is the object of a philosophical theory of judgement, in turn resting on an interpretation of Kant’s critique of judgement impossible which is to address here, but is discussed in my Justice and Judgment. 

And what if in a given context “unreasonable religious or moral cultures were to prevail?” I believe that the task of those entrusted to interpret constitutional principles, namely to say what the constitution exactly says, is that of denouncing the subversive import aspects of any attack that such cultures were to bring on the core principles. Do we not perhaps complain about the fact that the Weimarian rule of law allowed an unreasonable culture, led by Hitler, to come to power and alter  the constitutional regime, stating that all this was not lacking in legality simply because a degree of formality was observed? But here we come upon the problem of how to justify the “structural”, i.e.  implicit, entrenchment of the fundamental principles of a constitution, and on this subject quartum datur. Over and beyond Rawls’ cumbersome progressive option, or resignation to the “agonistic” option or relying on a hermeneutics of sorts, albeit of conjecture, I will just point out that the best answer on the table nowadays is the one provided by Luigi Ferrajoli with his “rights-protecting constitutionalism” (costituzionalismo garantista).[2]

Corrado Del Bò’s paper starts with a broad and accurate reconstruction of my arguments, regarding which I have only one observation to make concerning the concept of democracy as a horizon. I always repeat that the clearest linguistic indication of how “for us” the democratic form has changed from being one of various forms of legitimate government to being the only justified and desirable one, consists in the fact that, when one thinks of the current political regimes in the United Kingdom, Belgium, Spain, Holland, Denmark, Sweden or Norway, no one dreams of doubting their democratic quality simply because the head of state in those countries is a king or a queen. This was unthinkable for 24 of the 25 centuries of history that have accumulated on the concepts of democracy and monarchy; until recently these two forms of government were one alternative to the other. As far as the universality, or not, of this passage is concerned, I believe that the issue should be addressed in a descriptive manner. In 2013, Freedom House counted about 90 “democracies” on the planet, which means about half the world’s population. If one looks to the other half of the population, it is reasonable to say that, in spite of not living in democratic regimes, many of them aspire to and some struggle to achieve this. One can therefore state that, for the majority of human beings alive today, democracy is the regime they live in or aspire to. Such success can only be ruined by those zealots who believe that democracy can be exported with the force of weapons or financial pressure, and can be exported as a pre-wrapped package leading the receivers to become more culturally similar to the exporters – the perfect recipe for alienating from democracy many who simply are not dying to Westernise their way of life. Democracy can instead become a really universal political form only if allowed to follow in the footsteps of the nation-state, another political form created in the West, imposed on others with colonialism, but that has now become the aspiration of almost every independentist movement and people aspiring to self-determination. In the days when it is confronted with global challenges, the nation-state has lost its ethnocentric connotations. Democracy may be the next political form to follow this path. However, I see this as an empirically traceable process, not as a normative hypothesis. One can perfectly well imagine a far more pessimistic scenario. A world trapped between neoliberal “post-democracy” in the North of the world and a Chinese model merging economic development and oligarchic rule in the global South – two competing forms of oligarchy, with almost no room for the Lincolnian “government by the governed.”

Both Del Bò’s critical observations concern areas of dissonance between a democratic ethos inflected in Western style and non-Western cultures, namely the concept of subjective rights and the positive role to be attributed to conflict in a democratic framework.  In the first case, I would implement a dubious separation between the attribution of value to individuality and the form of subjective rights, a separation that would allow me to restrict inter-cultural friction only to the latter. Del Bò instead argues that if cultural resistance is understood as relative not so much to the concept of subjective rights – in which case it becomes possible to find conceptions valorising the individual without agreeing with the concept of rights (Bentham for utilitarianism, but also Hegel naturally, if one thinks of his identification of the ethos of modernity with the principle of subjective freedom and of his simultaneous rejection of the “abstractness” of rights in the sense of natural law) – but as related to the “value content that this thesis conveys”, then “it really seems that the rejection of the idea of subjective law is the picklock through which the value of individuality is demolished”. Basically Del Bò finds it, to say the least, “doubtful that individualistic theories (or at least not hostile to individualism) rejecting the value content of rights can exist.

I would answer this objection saying that unless one by definition equates the “value content of rights” with the protection and affirmation of the value of an individual, in which case it becomes tautologically true that each theory acknowledging the value of the individual must suscribe to the value content of rights aimed at the affirmation of the individual’s value, there is broad conceptual room for political cultures that affirm the value of the individual without connecting this value with an entitlement to rights. Think not only of Bentham and Hegel, but also of the entire republican tradition, both classic and neo-Roman. In Aristotle and Machiavelli, Montesquieu and Rousseau, we find a full affirmation of the individual without resorting to the notion of rights. If this is possible in the West, it is possible elsewhere.

In reality, I would say that the bone of contention is not even rights “broadly understood”, as the flip side of duties. This is only a matter of translation. Even in cultures centred on duties rights can be conceived, albeit in a derivative manner, as entitlements one is owed, based on the duties others have towards one. Thus, for example, in Confucianism one can construe the functional equivalents of rights as correlates of the duty of benevolence (ren).

The real dispute is with the purely deontological concept of rights as trumps, the Dworkinian one to be clear. According to this hyper-deontological idea, rights are defined by contrast with social utility; for as long as a right is considered such because it “contributes to social utility” it does not really count as a right. It counts as such only if considered preeminent against social utility. The inviolability of the person is a “real” right when it is worth more than the immense social utility that can be obtained by making me confess under torture the whereabouts of all the mafia’s assets. I will once again emphasise that this dispute – between rights understood as stars that emanate their own light or as planets that receive light from the star of  “social utility” –  is a totally intra-Western conflict, an eternal philosophical contest between two kinds of normativism, the deontological and the consequentialist, and as such has little to do with the division between the West and the rest of the world. Aristotle and Hegel would both have objected to a vision of “justice” and “rights” as something that can come into conflict with the good of society, be this perceived as eudaimonia,  as the realisation of one’s own rational nature, utility, or as harmony. So why should we be surprised that a Confucian or a Buddhist may exalt an individual’s capability for moral self-perfecting or for gaining access to a less deceptively voluntaristic order, without believing that something could be worth more than social harmony? And finally, what did the democracy that many republicans consider the best, the real original of which modern representative democracy is allegedly just a pale copy, namely Athenian democracy, know about rights?

Del Bò’s second objection actually finds me totally in agreement. Agonism, as an appreciation of the positive value of conflict, is not, in my opinion, a defining feature of democracy, but one of the components of a kind of ethos than undergirds it (Democratic Horizon, pp. 138-140). Here we are made aware of the ideological import of certain constructions of political theory. Agonism is the exception that wants to impose itself as a rule. It exists only in the English-speaking world and perhaps to a certain extent in France, but already in the German-speaking and north-European area, not to mention the south-European and east European areas, people have a far more consociationalist vocation. Agonism is therefore far from being the norm even only in the West. One should not be surprised if it meets resistance in other cultural areas too. In order to not repeat the mistakes of certain ideological theories of modernisation, the theoretical work that awaits us consists of understanding which polarities divide various ideal-types of equally legitimate democratic cultures.

The idea of “multiple democracies” continues and develops that of “multiple modernities”, in turn based on the revival of an interest in the axial age. Studies about this era have taught us two fundamental things; to take the longue durée of centuries as the measure for cultural sedimentation processes, and to consider the variety of religious-cultural sources converging in the axial revolution as a factor of human enrichment, and the operation of “ranking them in a hierarchy” (still  visible in the Weberian framework, with rests on the question, if I am allowed a somewhat irreverent translation, “why is it that only we have managed to reach the point we are at and others have been left behind?”), as ethnocentric reductionism. But the field of political philosophy still has to confront the overcoming of a number of “Occidentalist” prejudices and to apply, to put it once again in Rawlsian terms, reasonable pluralism first to itself, by making one’s own pluralism “reflexive.” Political liberalism’s legacy, when not crystallised in a scholastics but suitably enriched, is for the moment the most promising basis on which to start on this task.

Notes

[1]See my “Constitution and Context: Reflections on Bruce Ackerman’s The Civil Rights Revolution”, Jerusalem Review of Legal Studies, 2015, forthcoming.

[2]See L.Ferrajoli Principia Juris, 3 voll., Rome-Bari, Laterza, 2007 and La democrazia attraverso i diritti, Roma-Bari, Laterza, 2013. On this specific point see my “Ferrajoli’s Argument for Structural Entrenchment”, in Res Publica, Vol. 17, n. 4  (2011), pp. 377-383.

Bibliographical references

Ferrajoli, L. (2007), Principia Juris, 3 voll., Rome-Bari, Laterza.

—–,  (2013),   La democrazia attraverso i diritti, Rome-Bari, Laterza.

Ferrara, A. (1999) Justice and Judgment. The Rise and the Prospect of the Judgment Model in  Contemporary Political Philosophy, London and New York, Sage, 1999.

—–,  (2011), “Ferrajoli’s Argument for Structural Entrenchment”, in Res Publica, Vol. 17, n. 4  (2011), pp. 377-383.

—–,  (2014), The Democratic Horizon. Hyperpluralism and the Renewal of Political Liberalism, New York, Cambridge University Press.

—–, (2015), “Constitution and Context: Reflections on Bruce Ackerman’s The Civil Rights Revolution”, Jerusalem Review of Legal Studies, to be published in the near future.

Rawls, J. (2005), Political Liberalism. Expanded Edition, New York, Columbia University Press.