Political Liberalism, Indigenous Unreasonability and Post-liberal Democracy


[MUSIC PLAYING] Political liberalism,
inspired in this case by studies on the actual age
and multiple alternatives, leads us to ask whether
democratic cultures anchored in diverse civilization context
may generate multiple versions, different versions of the
just and stable society of free and equal citizens. Now, various ideal types
of democratic ethos then can be distinguished
if we bracket the points of convergence, and
if we focus instead on just two points of divergence. One being the idea of the
priority of rights over duties. And the other one being the
role of political conflict within a democratic politic. Now the idea of a priority
of subjective rights, rights as prerogatives of the single
individual against authority and potentially against the
whole political community, that idea runs against the grain
of most religious approaches to communal life. And the other point
of friction concerns the role of confiscation. Right-centered
democracies somehow institutionalize
Machiavelli’s reflections on the positive
role of conflict, of the conflict between
nobility and commoners in the Roman Republic. Now political cultures steeped
in Catholic, Muslim, Confucian, Buddhist, Hindu backgrounds,
even when they do prize pluralism– majority rule
but separation of powers– they do so with a kind
of instinctive aversion to conflict and
contestation, which gives a different pleasure
to the democratic ethos. So that provisionally,
the pluralization of the democratic ethos
must start from constraining four versions of it. The combination of an agonistic
and right-centered view of the democratic
process resonates only with a puritan version
of Christianity, in English-speaking
world mostly. However, agonistic
contestation could be combined, not with
the rights oriented– but with a duty-oriented
political culture, which emphasizes instead the
political mediation of conflict over jury-defined litigation. A mix that is found in all
forms of strong republicanism. Think of ancient Athens,
the Roman republic, Venice and the Floritan Republish
and the Puritan republic of Cromwell. On the– what I call
the [INAUDIBLE] side, so those who prize the
priority of duties, some democratic cultures
combine both aversion to conflict and the centrality
of duties, as the case might be with Islamic retributive
understanding of rights, the Confucian emphasis on
harmony as a normative concept, and with Buddhism. On the other hand, we also
have democratic regimes, fully democratic
regimes, that formally endorse the priority of rights. but do so with a strong aversion
to democratic contestation. I’m thinking here of
Italy’s formally Christian democratic-dominated polity
before Boskone came along. I’m thinking of political
[INAUDIBLE] Belgium and Switzerland, and Germany’s
practice of consultation. [INAUDIBLE] Now these four
editions that I just mentioned– so conjectural
arguments, an enriched notion of the democratic ethos,
decentering, though, to democratic ethos in
several local varieties, as well as the remedial model
of the multi-viable democratic polity altogether jointly
enable political liberalism to meet the challenge
of hyperpluralism. But let me go back to
my tripartite title that signals that my main point today
aims to be broader than that. Last year, Brexit and
the presidential election in this country
have made it evident that the most serious insidious
challenge for liberal democracy today comes, not from the
comprehensive conceptions of newly incoming
citizens, but from within. From a political resentment
that seeks representation and can carry the electoral day. These adjustments that
I mentioned earlier, they can do something. They can lead us some way
towards meeting the challenge of hyperpluralism. But are not enough to meet
the challenge of what I call indigenous unreasonability. Now, the challenge
of coming to terms with the partial reasonability
of new constituencies, the immigrant constituencies,
that difficulty pales by comparison with
the challenge of coping with the rise of what I call
indigenous unreasonability. Something that in
Europe, we begin to experience over 20 years
ago, back when the Berlusconi government still looked like
an anomaly to be laughed at. And my intention today is
to focus on what political liberalism as a paradigm
can tell us about this new phenomenon, and what can be
done to contain its effects . Normative political
philosophy, which is often bashed for it’s
propensity for ideal theory, today is called upon to perform
a much more modest task, namely damage assessment and control. And the first task is to
understand what the– why is political phenomena grouped
under the name of populism have in common with a move here
to this section on populism indigenous unreasonablity. Populism risks becoming
an umbrella term for many different things. And prominent
constitutionalists, I’m thinking here of Bruce
Ackerman, prefer not to use it. But I’m somewhat
confident that we can tame this extreme
diversity of manifestations and bring them to one
common denominator. Think of, by way of imagining
focusing on this variety, right-wing populism,
the kind of populist, both the National
Front in France, the UK Independence Party,
the Northern League in Italy, Dans Falkan party in Denmark,
the Sweden Democrats, the Finns party, primitively
called the true Finns, the Dutch party for freedom. The Belgium [? clubs ?]
plus Flemish interest party, then out [INAUDIBLE] Deutschland
and then Golden Dawn in Greece. And on the other hand, we
have left-wing populism. Think of Podemos in Spain
or Syriza in Greece. The five-star movement
in Italy, though there is much to be said for that. And the historical
Latin American examples of Peron, Chavez,
[? Barabas ?] would count as left-wing populism. Then we have appeals to the
people on the part ruling authoritarian figures. Think of Erdogan in Turkey,
or Orban in Hungary. And manifestations of what
I call muscular democracy, think of Prime Minister Modi– Modi’s decision in
India to withdraw what we use 501,000 rupees
notes from circulation on a four-hour notice, throwing
the country into utter chaos. Now, Rose’s pardon
directs our attention to one crucial
feature underlying these diverse manifestations. An indigenous
unreasonability arising from within native
constituencies that were previously integral to
the constitutional consensus, and unreasonability can
be understood, I claim, both from the point
of view of theory and from the common sense angle. And let me try to spell
out what I mean by that. It is easier to say, first
of all, what populism is not than to say what it is. It is not– it cannot be reduced
to the ideology of a specific social class embraced by
farmers and peasants in the 19th century in the US and Russia. Populism later
became the preserve of the lower-middle
class to resurface in the 21st century within
a despondent working class. Second, defining populism merely
as resentment against the elite or as anxiety vis-a-vis
downward mobility obscures the political core of populism. It just psychologizes it. Third, it is impossible
to associate populism with certain policies given the
variety orientations that is can assume, left wing,
right wing, and so on. Fourth, populism cannot be
understood as the preserve of a oppositional movements. Some of the lines of President
Trump’s inaugural address, reminiscent of President Chavez,
claim that with them in charge, the people rule, leave, in my
opinion, no doubt as to that. Quoting from him, We
are transferring power from Washington DC and giving
it back to you, the people. And then also, January 2017
will be remembered as the day the people became the
rulers of this nation again. Finally, populism cannot be
equated with the rejection of representative democracy
in favor of direct democracy. Often populist movements
do accept elections and representative institutions
in their effort to bring them from the corrupt elite. So although it may comprise
some of the above elements, populism consigns with
none of these features. Political liberalism, in its
core standard of reasonability, linked with public
reason, in my opinion, direct our attention to three
aspects of populism that together add up to
this common denominator that we are seeking,
which for brevity’s sake, I just call indigenous
unreasonability. And these three aspects
are the following. First, the people [? where ?]
democratic sovereign is conflated with the electorate
or with the actual voters, which in some cases, do
not go beyond 50% of those who have the right to vote, and
the electorate with the nation. Second, as the
embodiment of the people, the electorate is attributed
constituent power. And third, only one
legitimate interpretation of the common good
is deemed to exist. All different opinions being
detrimental to the people and to its democratic life. The burdens of judgment are
inoperative in populist reason. And so the liberation
is superfluous and is a vehicle of distraction. Let me briefly now illustrate
these three aspects of populist unreasonability. First, the first one,
people is the electorate, and the electorate
is the nation. Now the people is
a crucial element of all democratic order. We just need to recall the
reference to we, the people, in the preamble of the
Constitution, the US Constitution. Or the Lincolnian government
of the people, by the people, for the people, which
also appears in Article II of the French Constitution. The difference of these
references to the people, the difference with the populist
understanding of the people, lies in how we, to
use Claude Lefort’s famous expression,
how we extract the people from the people. Or actually tell who among
all the persons residing within a given political
space, the people truly is. Now populist forces provide
three oversimplified responses to the difficulty of
identifying the actual people. The first
oversimplification consists of seeing the people as a
homogeneous, or really just trivially differentiated,
social entity once the corrupted,
self-serving, predatory oligarchies have been removed. The second
simplification consists of understanding all the
institutional segments of democratic polity
as corrupt bodies in the hands of the
elites and standing in the way of the
empowerment of the people. And the third
simplification consists of understanding the unity of
the people as grounded, not so much in the quality
of social relations– think of Rawls’ famous
expression, the idea of society is a union of social unions. But understanding the people
instead as an identity, shared in opposition to
the identify of others. Now, if the electorate
is the people, then populism tends to
produce messianic expectations around every electoral round. Elections are no longer the
test for the public approval of alternative policy platforms. But they are showdowns where the
corrupt politicians are finally ousted by those who
represent the people. And again, President Trump’s
inaugural address, I think, can be taken to exemplify this
point if we read one passage. Washington flourished,
but the people did not share in its wealth. Politicians prospered,
but the jobs left and the factories closed. The establishment
protected itself, but not the citizens of our country. Their victories have
not been your victories. Their triumphs have
not been your triumphs. And while they celebrated
in our nation’s capital, there was little to celebrate
for threatened families all across our land. That change is starting
right here and right now because this moment
is your moment. It belongs to you. Now, not only the
presentification of the people, as the current electoral
body annihilates the historical depth
of the people, which spans in this case over
two centimeters and more, but it centralizes the
people as the nation. This marks the difference
between mainstream modists, as a jargon they’re
called, theories of parliamentary supremacy,
majority type approaches to the democracy, or so-called
political constitutionalism. Thinking of Richard
[? Bellham, ?] and populism proper. So President Trump’s
electoral slogan significantly was Make America
great again, not make the United States great again. And similarly in France. And in Italy, the rhetoric
of the National Front, or the Northern League,
is all about the defense of the nation. Marine Le Pen frames her
presidential platform [FRENCH].. Put France back in order
in the name of the people. But already 20 years before,
20 years earlier, her father’s Jean-Marie Le Pen, version
of the National Front called for a [INAUDIBLE],, French First
in the allocation of jobs, housing, and social welfare. So from the standpoint
of public liberalism, unreasonable is this reduction
of the people to the electorate because it overlooks three other
meanings of the expression, the people, that
completely disappear from the populist
notion of the people. So first, populism
casts out of sight. It obscures the
people as the author of the Constitution
over a time that spans from the initial framing
to the raised amendment. The people in the name of which
then adjudication is carried out and whose will
constitutional courts reconstruct in their arguments. Second, many populist
accounts fail to include the
participating people. The participating
people, those who are mobilized in social
movements, who strike, demonstrate, protest
through marches, sit-ins, and other activities. And who through voice,
so-called voice, contribute to the
shaping of public opinion in a public sphere. The five-star movement
in Italy goes some way towards including
Internet participants. But they reductively treat
their own rank-and-file as the only significant segment,
the only significant segment of the participating people. And they ignore all the rest. Third, the people
also designates– this expression also designates
what is called by [INAUDIBLE] the random people. Namely, the sum total of all
those who respond to polls run through random sampling. Their opinion counts very
much and exerts a lot of influence over contemporary
politics, as documented by a number of works
and political theory. And these three different
images of the people, so the number-based electorate,
the social people who mobilize, then the
people as a principle, those who stand behind the great
causes of the Constitution, and the regular people. They jointly form an antidote
to the poisonously simplistic notion of the people as the
present-day native, only native and national voters. The second aspect of populism–
impersonating the people, the electorate is the
protemporate consequent power. We should not equate the
rise in populist forces with the rise of
anti-democratic attitudes. Because differently than
forms of populism early in the 20th century,
present-day populism is not against democracy
but against liberalism. it worships majorities,
electoral majorities, but rejects all
checks and balances that contain majorities. And in a way, populism
revives an ancient split between liberalism
and democracy, which democratic theory of the
late 20th century, especially deliberative democracy, had
healed, as in the phrase, liberal-democracy. So post-democracy, the famous
term coined by Colin Crouch, is a kind of wrong
and misleading label. Populism is majoritarian
anti-liberalism or post-liberalism. Against the dualist
picture of democracy allocated by [? Ackerman ?]
and in a different way, by Rawls’ populism
is, instead, strongly modest and majoritarian. Because the electorate is the
people’s current incarnation, the Constitution is in
the electorate hands. What this means concretely is
the judicial branch, especially Constitutional Court, or
as supreme interpreter, of what the Constitution
says, should be in their view, in the view of
the populist view, responsive to the
orientation and ways of the thinking of the
majority of the electorate. In such understanding of the
relation of the Constitution to prevalent opinion, was
aired even in the Supreme Court itself in the dissenting opinion
of Justices Roberts, Scalia, and Thomas in the case
of Obergefell in 2015. They, the dissenters,
pointed to the illegitimacy of five lawyers enacting
the wrong vision of marriage as a matter of
constitutional law and stealing this
issue from the people. In their view, the
court’s opinion amounted to the judicial
creation of a new right to send same-sex marriage,
allegedly dissenting from the equal protection clause
of the 14th Amendment, where the legislatures of more
than half the states elected by local majorities that add
up to a national majority, had pronounced themselves
against such right. That view is majoritarian
but not populist in the absence of the
other constitutive traits of populism. Now from the perspective
of political liberalism, this specific aspect
of populism erodes the institutional
anchoring of public reason in a supreme or constitutional
court as it is in roles, and confines reasonability
to an occasional virtue of political actors as single
persons or individuals. And this aspect
of populism can be considered also unreasonable. Not in the technical
sense, in the Rawls’ sense, but unreasonable in
the common sense, in the common sense
understanding of the term. Why? Because first, it violates
the common sense intuition that conceptual and
practical separation ought to exist between
any game that we play and the rules that
define the game. The idea that the
rules of the game could be changed in
the midst of a game, and by the players themselves
while they’re playing the game, is deeply counterintuitive
in my opinion. And yet, the notion of having
constitutional essentials modified, not by special
constitutional conventions, but by parliaments elected
in regular interest-driven campaigns, where this is
possible by the legal system, as the ruling parties
unsuccessfully tried to do recently in Italy,
in a referendum December last year. This view reflects this
unreasonable, anti-dualist conceptional of the
electorate as endowed with constituent’s power. Second, common sense way which
populism is unreasonable. The idea of constantly
reinterpreting the constitution essentials in light of the
orientations of the electorate is, to me, self-defeating. In legal order, where
the living constitutions that promptly adopts
the changing orientation of the majority of citizens is
no different from the polity of no constitution at all. Just the majority rules. Populism leads to an implicit
deconstitutionalization of our democratic polities. And the third sense in which
it is common sensically unreasonable is that,
distrustful though populist might be of constitutional
constraints on majorities, populist voices
will wish presumably to prevent their hard-won
results from being overturned by the first electoral setback. And the temptation to rewrite
the rules of the game so is very powerful. And it is hard to
imagine, however, that no diversity of emphasis
exists among populist forces. Would the framers of,
if it could exist, that populist constitution,
carve in marble just one passing version
of their ideas? Or would they not
aim at a constitution capable of accommodating a
slight diversity of emphases. Then they would be back
to imagining guarantees for plurality. And the elements of
unreasonability, in this case, lies in the unawareness
that one’s wish to make one’s political
values last over time, cannot be fulfilled unless the
notion of constitutionalism system of guarantees
for plurality is used, is resorted to. Then the third and final
feature all forms of populism is the rejection of pluralism. [? Evan ?] [? Crusthave ?]
has captured this aspect as the view that society
falls into two homogeneous and antagonistic groups, the
people as such and the corrupt elite. Now inverting Gaetano
Mosca’s and Vilfredo Pareto’s and Roberto Michel’s theory
of elites, according to which, this early theories of
the early-20th century, according to which, constants
across diverse political regimes is only and always
the vertical division between an organized
minority rulers and an unorganized silent
majority of people who are variously taken advantage of. And that the principles
of legitimation through which a political
class or ruling elite demands compliance, which is rhetorical
devices, for securing obedience on the part
of the forgotten man. Against that
background, populist forces trying to mobilize
the root the majority against the ruling elite. And in such use of elections for
punishing the political class, the protagonist is almost
invariably and imaginary [? we ?] taken advantage
of by his loyal elites and [? equally ?] his loyal
outsiders, immigrants, minorities, and so on. Distinctive of this anti-liberal
but not antidemocratic, in my opinion, populism, is
a rejection of pluralism, or a belief in what I
call justified tolerance. Populism presupposes not
only like nonpopulist deliberative democracy,
the existence of a noble common good
about which deliberation is [? torts. ?] But also there is only one
and only one proper common good to be discerned
by authentic people. And hence, there
can be no such thing as a legitimate opposition. As one of the most insightful
commentators on populism, Jan-Werner Muller points
out, often populism harps on the resilient
theme of the will of all not being the same as
the true general will, in order to question the
results of regular elections. Examples are Orban
in Hungary, Obrador in Mexico, 2006, and also
Berlusconi, again 2006, but he lost the elections. All of them challenged
the electoral results, though in the end,
they bowed to legality. Justified intolerance
derived from a rejection of the brilliance of judgment
and the epistemic humility that is mandated by them,
explains another aspect of the populist
outlook, impatience with internal dissent. The leader and chief reaches out
directly to the rank and file, and there is less collegiality
in decision-making and a small number of
intermediate organization layers between the rank and
file and the leader in chief. Thus democracy, seen
from the populist angle, is no longer an arena where
alternative elites compete for election, like
in [INAUDIBLE],, or where different
platforms for policy are debated, but morphs
into a public space where one political actor is
blessed by electoral success because it supposedly
represents the true people, or the nation’s vision
of the common good. And populism in this sense
is a curious flip side of democratic neoliberalism. Because both reduce the
plurality of opposition to one right take, one
right interpretation of the popular will, in
the case of populism, or one right technical
solution that eliminates the space for
reasonable disagreement, as Margaret Thatcher
would put it. TINA, there is no alternative. They both concur in this
rejection of pluralism. Now, damage assessments. If we accept this
outline of what populism is all about in
its diverse forms, then another thing that we can
draw from political liberalism, and also from Habermas’ version
of deliberative democracy, is a standard for assessing
the amount of damage that this phenomenon
has inflicted onto democratic polities. Both paradigms, the Rawls’
and the Habermas’, share a distinction between
an institutional core of the polity, the
public forum for Rawls and strong [? publics ?]
for Habermas, where legislative and
administrative and judicial decision binding
for all are made, and then a broader and
less-structured domain, the background culture. For Rawls, the public’s fear. For Habermas, where
deliberative exchanges take place and public
opinion is formed. And then this outer space, outer
sphere, less stringent criteria of propriety apply. For Rawls, the standards of
public reason are suspended. Actors are entitled to advocate
their comprehensive conception over competing ones. And for both
[INAUDIBLE],, certain requires dispositions,
however, must be presupposed in order for
the informal public sphere not to be disruptive of
the democratic process. For Rawls, the epistemic
humility generated by the acceptance of the
prudence of judgment, tolerance, the
virtue of civility must be assumed for the
background culture to work. And for Habermas, what
qualifies a public space as a public sphere is a kind
of disinterested interrogation, honest interrogation on the part
of the participants concerning the best answer to be given. Now, in context, where populist
anti-liberalism instead has come to prevail,
these attitudes are the first to fade away. We can then distinguish, using
these two paradigms, two cases of diverse reality, so to
speak, in feeble democracies and post-liberal democracies. In feebled democracies,
weakened democracies, are those where
populist-justified intolerance has only infected the outer
circle, the public sphere or the background culture. The actors, then, no
longer relate to one another as fellow
inhabitants of a space of reasons, who deliberate
about what is best for them. About policies to be
pursued, the way institutions function, or any issue
of common interest. They rather relate
to one another as members of
opposite fan clubs. They exchange insults,
derogatory terms of address, and hardly exchange anything
that resembles reason. When this happens,
the public sphere degenerates into a
mere public space. This is a distinction
between a public sphere and a public space, which
I owe to a friend of mine, a fellow political theorist,
Walter [INAUDIBLE] from Italy. In a mere public space
like the stadium is. Think of the stadium. The stadium is certainly
not a private place. It’s a public space,
but where publics only cheer their favorite teams,
and never cross their divides. Their communicative acts
are only expression and vent often intolerance of each
other, at each other. Now one of the most
poisonous fruits of the populist
style of government is the polarization of
society to such an extent that opposite camps clash,
no longer on policy, on political values,
of different views about the implication
of rights, but question each other’s status as
legitimate contender in the democratic arena. The charisma of populist
leaders may wane over time, so it happened with
Berlusconi in my own country, but their poisonous
style lingers on. And it is difficult for
constituencies now used to smearing their opponents
as undignified enemies, to ever backtrack into
exchanging reasons with them. So political adversaries can
easily turn into enemies, but enemies rarely
revert to being mutually recognizing adversaries. That’s the– it’s the single
most severe damage inflicted to [INAUDIBLE] governments
between 1994 and 2011. Communism, long gone
as a political movement of any substance
after 1989, was still used in electoral campaigns
as a term for de-legitimizing the Democratic Party,
eventually headed by [? Grandsy, ?] as an
enemy of freedom, as though Communism still existed. Polities where this
degeneration effects primarily the public sphere, but
the public forum somehow continues to function according
to standards of propriety, civility, and reasonableness,
can be described as enfeebled democracies. Post-liberal
democracies, instead, are regimes in which
indigenous unreasonability has infected the public forum. Through the demise of civility,
principled intolerance, factionalism, the demonization
of political adversaries. Usually parliaments
are affected first. Because of their elected
nature and direct contact through the electoral
campaign with the moods and feelings of public opinion. But once parliaments are
filled with elected supporters of populism, it is a short step
before they nominate populists and government plots where this
is possible in parliamentary, democracies, for instance. And the last institution
to be reached, on account on it’s
mostly not-elected mode of recruitment,
is the judiciary, with the exception
of Venezuela now, which is a matter for
rethinking this theory. This process takes place
by way of a deep change in style in the operation
of the public forum. What [INAUDIBLE] has called
a democracy of interaction slowly shrinks to a
democracy of authorization. In post-liberal democracies,
an executive branch that inspires indeed
to being unbound, to use the expression of Posner
and Vermeule, in their book The Executive Unbound, after
the Madisonian Republic, an executive branch that aspires
to being unbound on account of its superior ability,
relative to the legislative and judicial branches, to
keep abreast of events, to master a comprehensive
view of the situation, to envisage and carry out
rapid response measures, tries to bypass such
unbound executive. All interaction with the other
segments of the public forum and with significant
intermediate plaudits of civil society. It’s aim of the
executive unbound is to free itself
from these factors, unfold it’s action above
them, obtain tangible results, and then reach out directly
to the electorate in search for acclamatory confirmation
at the next elections. As Waldron, Jeremy Waldron,
has been keen on emphasizing, the unbound executive does
not, as in the totalian regimes of the past, aims at suspending
democratic elections, but rather turning
them [INAUDIBLE] into a showdown between
enthusiastic supporters of the action of government and
defeatist, nostalgic, corrupt defenders of the views that
are contrary to the best interests of the nation. The preferred style then,
is what Bruce Ackerman has called government by emergency. The post-liberal executive
tries to cast itself as the savior of the national
interest in some security or economic emergency,
either of the two, in a [INAUDIBLE] direct
dialogue with the electorate and the public of polls. Accountability
seizes to be then, in post-liberal democracies, a
matter of checks and balances, and degenerates into
plebiscitarian mass approval. Concluding, how can
liberal democracy respond to this challenge? And we still have to see the
results of the French elections in a couple weeks from now. Not simply by
seeking to entrench constitutionalism as we know it. I think the populist upsurge
is a dubious response to real problems. We need to explore its
causes, not only the symptom. And two of its plausible
causes, are, in my opinion, the exponential growth of
inequality in all advanced and emerging economies. And b, what I call the
new absolute power, that these embedded
financial markets exert on democratic
national legislatures. We need to explore those causes. We live in societies where
an increasing proportion of profits originates
from financial gains, not from manufacture or service. Nothing is produced. In 2010, 40% of all
profits in the US came from finance, so
Stiglitz in an article of his. And this is an expanding trend. There’s also
another famous book, Profiting without Producing. During this momentous
transformation towards financialization,
the value of labor is constantly being diminishing,
as the share of the GNP that can be brought
back to labor. And the impact of this
process jointly called by the technical
rationalization, and by the geopolitical
[INAUDIBLE] of the global labor
market, goes well beyond the economic sphere. And it becomes flexible,
precarious, underpaid, subcontracted, and outsourced
wage labor also becomes increasingly de-unionized
and loses the capacity to attract consensus. And this development massively
impacts the electoral fortunes everywhere of the
parties that historically have represented labor. And opens opportunity
windows for the indigenous unreasonability
of public leaders. At the same time, a deep turn
toward inequality has occurred. Not only the income and wealth
of the top 1% of the population has reached spectacular
levels in comparable to the everyday reality
of everybody else, as the social movements claiming
to represent the 99% testify, but a deep restructuring
of the basis of inequality has been underway. This new inequality, based
on financial [? writ, ?] rather than profits from
productive activities has profound implications
for democracy. And as Thomas Piketty
has eloquently put it in his book, Capital in
21st Century, when the rates– and I’m quoting from him–when
the rate of return on capital significantly exceeds the
growth rate of the economy, then it logically follows that
inherited wealth grows faster than output and income. Under such conditions,
inherited wealth will dominate wealth amassed
from a lifetime’s labor by a wide margin. And a concentration
of capital will attain extremely high levels. Levels potentially incompatible
with the meritocratic policies and principles of social justice
fundamental to modern society. Furthermore, financial activity
has become ever more disjointed from the measurable
and material bench work, any measurable
and material benchmark in the real world. And since three decades,
finance produces profits no longer through
facilitating investment, as has been traditional
in the case, but through speculation
of markets, which are global, disembanded
from any national or regional or industry context,
and increasingly virtual. And this is a further step
towards the disembandment trend explored by Polanyi in
The Great Transformation. So ironically, this is
kind of basis of populism, the elusive,
philosophical chimera of the view from nowhere has
finally incarnated itself in this markets and firms this
amendment from three things. From territorially based
resources and manufacturing processes; b, from corporate
social responsibility towards any locally
situated stakeholder; and c, from tangible and
verifiable fundamentals linked to the value of
commodities, assets, stocks, market shares, and so on. The negative effects of
this tribal disembandment for democracy are compounded
by the volatility induced by lack of transparency and by
the sheer quantitative volume of the markets. The aggregate value of the
equities and derivatives being exchanged
on the gold market has been calculated
by the International Bank of Settlements based
in Basil to far exceed any material
counterpart represented by material assets, real estate,
commodities, in the order of– in the data of 2013– in
the order of $693 trillion, the total amount of
this financial equities, relative to a global GNP that
ranges between $50 and $60 trillion, so nearly 14 times. The rise, now, of
indigenous unreasonability must be understood against the
background of this situation and the concomitant
resurgence of a new kind of absolute power. The markets, once
limited and subjected to the absolute
power of the kings, before liberal
constitutionalism, now wield an absolute power
over the democratic polities. One may object to this
thesis of the absolute power of financial markets. The markets are
constantly immersed in a web of
regulatory provisions. Some of statutory form,
others in the form of guidelines, regulations,
benchmarks, and so on. But the law itself is often– especially statutory law made in
parliaments formed in elections influenced by
corporate contributions and media, the law itself is
often drafted in anticipation of what the markets, including
crypto-actors, such as rating agencies, or
serio-economic actors, such as sovereign funds, will
like and are willing to accept. In this sense, one
could say markets influence lawmaking more
than law influences markets. And therein, in my opinion, lays
the late-modern absoluteness of their power. In an ironic replica of
the relation of parliaments to kings, before liberal
constitutionalism, in the 21st century, governments
and parliaments often aim and wink the approval of
the markets, or staying off their disapproval, because
the key to electoral survival is the ability of one
party or coalition to ensure prosperity,
or at least avoid financial downturns. Just as absolute monarchs could
rejects parliamentary lawmaking dissolve or convene
parliaments– think of the tension
between the Stuart monarchy and the Westminster parliament
of the 17th century, so today’s markets
have the power to withdraw legitimacy
from democratic lawmaking by way of controlling
prosperity. The prosperity around which the
democratic electoral contest is fought. Seven governments in Europe
have been brought down by the pressure of the markets
in the wake of the 2008 crisis. First in Portugal, 2009, then
Spain, [INAUDIBLE],, 2011. Then Greece, Ireland,
and Iceland, 2009. And Italy, 2011. And Latvia, 2011, as well. Now, why am I going over this? Because I think that no taming
of the populist upsurge can be envisaged unless
rampant inequality and the absolute power of these
embedded financial markets are offered some kind
of remedy alternative to protectionist culture. Instead, center-left
progressive parties have often flirted with the
market’s absolute power, promising to tame it in the
general interest, while, in fact, failing to represent
those most exposed to it, and thus, opening a
window of opportunity for indigenous unreasonable
parties and movements that advocate national culture. This is the moment
of truth that we need to confront in the
narrative of the forgotten man. The prospect for reclaiming
liberal democracy, as opposed to
populist democracy, is linked with the ability to
offer an alternative response. And let me end on just
one thought and respect. Outlining such
alternative response depends, in my opinion,
on jettisoning two dogmas of progressive thinking. The stigma and these two dogmas
are the stigma of consumption, and second, mistrust of the law. Many radical democratic
critical theorists consider law the
[? locus ?] impropagator of the strategic
habitus, detrimental to social integration,
and understand so-called juridification
as one of the main causes for widespread depolitization. They overlook the fact
that law has the advantage. Crucial in our contest
of not presupposing collective subjects
share narratives and memory in the
way politics does. Law may presuppose
some of these things when it is enacted by
legislative assemblies composed of parties and
electoral competition. But not when it
functions as common law or when it is enforced. Furthermore, one social
economic function that has escaped
fragmentation and has remained truly universal,
though not highly regarded in critical
circles, is consumption. Broadly understated. Not consumerism. But– which is a cultural
degeneration of this, but the function of consumption. We participate in
social production in various capacities that
are difficult, notoriously, to reconcile in and
antihegemony project. But we are all consumers. And in such role, we all face
the alienating experience of being a
dispensable item, just one individual person confronted
with enormous economic forces. Private sector companies,
utility companies, insurance companies,
telecommunication companies, and other times regulatory
agencies, rating agencies, banks, all these that
dictate rules all which we have virtually no influence. Now consumer protection
has been constitutionalized in the European Union. Article 38 of the charter
of fundamental rights of the European Union,
now we include it in the Lisbon Treaty,
provides for a high level of consumer protection. Whereas anti-trust
legislation is an application of the principle of
equality in the sphere of economic relations
among major market players, the aim of this
article, article 38, is to bridge the gap between the
influence of the great market players and the single,
atomized consumer without falling back
into the regressive utopia of the abolishing
of the market. Now, nothing prevents
liberal Democrats, I think, from injecting a
strong, normative content substance into
consumer protection through class action. And from understanding
class action, especially legal systems
that supplement it with punitive damages,
not all of them do, is the implementation of the
strong principle of equality, that forces the market
to truly vindicate the premise of the equal
standing of the contracting parties. Nothing prevents liberal
democratic theorists from bringing class action
and punitive damages a new twist, capable of
representing that desired third course between populist
neonationalist closure and new liberal globalism. Nothing accepts our traditional
image of class-based resistance to manufacturing against
manufacturing capitalism, except that traditional
image prevent us from turning class action
into a flexible tool capable of affirming
the value of equality. And nothing but prejudice
against consumption prevents us from
understanding this universal social and economic relation
as a terrain of contestation. Where at stake, precisely like
when [INAUDIBLE] exploitation held center stage,
where at stake is nothing less than the
principle of equality. Equal protection
of the laws needs to acquire a new meaning beyond
racial and gender equality. One connected with equality
opportunity in the market. Now consider financial prime
movers as rating agencies. Standard and Poor, Fitch,
Moody’s among others, all purport to
sell their capacity for reliable assessment of
the prospects of institutions, banks, governments,
and financial products. But they often
effect the reality that they claim to
observe and analyze. Standard and Poor
famously downgraded the US sovereign credit
rating in April of 2011, a controversial decision given
that the other agencies didn’t concur. And also, Standard
and Poor downgraded Spain in October 2012 and bashed
the so-called Euro bonds yet to be issued by the
Central European Bank. They bashed them as trash
before they existed. So hardly an observation. And finally, in the
aftermath of Brexit, Standard and Poor downgraded
the credit rating of UK. An example now of class
action led by local government comes from Australia. An eight-year legal
battle between the city of Swan in Western Australia
and Standard and Poo over misleading conduct in
the handling of ratings prior and during the collapse
of Lehman Brothers. It involved a
group of 92 members led by the city of Swan,
[INAUDIBLE] in New South Wales. And among these claimants were
investors, councils, churches, and charities. Democracy is incompatible
with impunity, and impunity is the prime
feature of absolute power. The reclaiming of democracy
for democratic citizenry begins, I think, with holding
these and other actors, accountable. These and other actors like
[INAUDIBLE],, for instance, accountable through
government-sponsored class actions combined,
where possible, with punitive damages. Government-sponsored
class action aimed at compensating
citizens unduly damaged by so-called
ratings that [INAUDIBLE].. Now, one could dismiss
these lawsuits as internal to the logic of an instrumental
use of the law subservient to the new liberal hegemony
credo, but burden of proof, I think, is on radical
new marks as critics to show that under present
conditions of hyperpluralism, of flexibilization of
work, of fragmentation of social classes, and of
lack of [INAUDIBLE] hegemony comprehensive vision,
understandably absent in times of post-metaphysical thinking. Under all these
conditions, it is possible to oppose
financial as capitalism more effectively through
traditional street demonstrations,
petitions, strikes, press campaigns, and so on. Until their case is convincingly
made, the demand for protection need not be left in the
hands of Pablo’s forces, but may take a form very
different from legislation enacted in the wake of
classical protest movements. Namely, it could take the
form of successfully argued legal cases that proceed from
the global constitution’s human rights and from
interlocking court judgments. In the end, the
growth of indigenous unreasonability
has not yet culled, I think, the democratical
rise in question. It has subverted
important aspects of it, and constitutes certainly a
new inhospitable condition with which democratic
regimes must reckon in our historical context. And liberal democracy, however,
cannot be globally rescued unless this new inhospitable
conditions for democracy are addressed in an efficacious way. And unless equal
protection of the laws is reinterpreted as a third
course between the central left complacent acquiescence
to neoliberalism, and on the other hand,
the populist promise of remedial closure
against globalization. Thank you for your attention.

Author Since: Mar 11, 2019

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