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Democratic Experimentalism or Capitalist Synchronization? Critical Reflections on Directly-Deliberative Polyarchy

Published online by Cambridge University Press:  20 July 2015

William E. Scheuerman
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Contemporary “flexible capitalism” requires novel forms of legal regulation. In this vein, Joshua Cohen, Michael Dorf, Archon Fung, and Charles Sabel have developed a provocative set of proposals for a new mode of regulatory law, what they describe as “democratic experimentalism” or, alternately, “directly deliberative polyarchy.” Their proposal are criticized: they not only fail to take traditional liberal democratic rule of law virtues seriously enough, but it remains unclear whether they can effectively tame and humanize capitalism. Instead, some evidence suggests that their proposals simply amount to a normatively problematic synchronization of the legal system with contemporary high-speed capitalism.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 17 , Issue 1 , January 2004 , pp. 101 - 127
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Copyright © Canadian Journal of Law and Jurisprudence 2004

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References

The author would like to thank Archon Fung and Colin Harvey for their helpful comments and criticisms, as well as Harry Arthurs for timely words of encouragement.

1. For a perceptive analysis of the dangers at hand, see Arato, Andrew, “The Bush Tribunals and the Specter of Dictatorship” (2000) 9 Constellations 457 Google Scholar.

2. Other important contributors include Bradley Karkkainen, Dara O’Rourke, and Erik Olin Wright. The progressive publication Boston Review (edited by Joshua Cohen) and academic journal Politics & Society have served as important vehicles for democratic experimentalist ideas, as has Beacon Press of Boston. This body of work has also spawned some critical responses, the most provocative of which is probably Tushnet, Mark, The New Constitutional Order (Princeton, NJ: Princeton University Press, 2003) at 168–72 Google Scholar. In my view, however, Tushnet does a disservice to the political ambitions of democratic experimentalism by focusing on its affinities to (the sad state of) contemporary constitutional practice in the United States. For (more appreciative) European discussions, see Gerstenberg, Oliver, “Law’s Polyarchy: A Comment on Cohen and Sabel” (1997) 3 Euro. L. J. 343 Google Scholar; also, Schmaz-Bruns, Rainer, “Deliberativer Nationalismus. Demokratisches Regieren jenseits des Nationalstaats” (1999) 6 Zeitschrift fuer Internationale Beziehungen 185 at 236–38 Google Scholar For reasons that should become clear later in this essay, democratic experimentalism seems to me to be the most apt terminological characterization of the overall project. Although thereby reminiscent of Roberto Unger’s terminology, his work does not appear to have had a significant impact on Cohen, Fung, or Sabel; they do share Unger’s interest in achieving institutions suited to the imperatives of rapid-fire social and economic change, however. The term “directly-deliberative polyarchy,” which some contributors appear to prefer, undoubtedly captures a crucial facet of democratic experimentalism, namely its demand for localized forms of directly deliberative decision-making. (“Polyarchy” is taken, as in Robert Dahl, to refer to basic conditions of legitimate democratic rule, including universal suffrage, basic political rights, fair and free elections). Fung and Wright speak of “empowered participatory governance,” in part because they are probably more committed to an advancing popular participation and a traditional left-wing social and economic agenda than Sabel and others. However, the basic decision-model proposed by them is closely related to their interlocutors’, and they rely, in many crucial ways, on assumptions taken from Sabel’s work in political economy. For this reason, I believe that the criticisms developed below, many of which focus on Sabel’s analysis of recent economic changes, apply to them as well.

3. Harvey, David, Justice, Nature and the Geography of Difference (Oxford: Blackwell Publishers, 1996) at 240–41 Google Scholar.

4. Harvey, David, The Condition of Postmodernity (Oxford: Blackwell Publishers, 1989) at 240 Google Scholar.

5. Ibid. at 157.

6. Ibid. at 147.

7. Ibid. at 121-326.

8. For an overview of this danger from the perspective of normative political theory, see Held, David, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, CA: Stanford University Press, 1995)Google Scholar.

9. Scheuerman, William E., “Rethinking Crisis Government” (2000) 9 Constellations 492 at 497–500 Google Scholar.

10. On statutory obsolescence, see Calabresi, Guido, A Common Law for the Age of Statutes (Cambridge, MA: Harvard University Press, 1982)Google Scholar. I develop the general claims made in this section in greater detail in Scheuerman, William E., Liberal Democracy and the Social Acceleration of Time (Baltimore and London: Johns Hopkins University Press, 2004)Google Scholar.

11. For some of the relevant data, see Castaneda, Jorge G., Utopia Unarmed: The Latin American Left After the Cold War (New York: Vintage, 1993) at 255–66 Google Scholar.

12. Wolin, Sheldon, “What Time is It?” (1997) 1 Theory & Event 1 Google Scholar.

13. Hayek, Friedrich A., Law, Legislation, and Liberty, vol. 3 (Chicago, IL: University of Chicago Press, 1979) at 113 Google Scholar. See also Gamble, Andrew, Hayek: The Iron Cage of Liberty (Cambridge, UK: Polity Press, 1996)Google Scholar.

14. Dorf, Michel C. & Sabel, Charles F., “A Constitution of Democratic Experimentalism” (1998) 98 Colum. L. Rev. 267 at 286 Google Scholar.

15. Ibid.

16. Ibid. at 314-15.

17. Ibid. at 287.

18. Ibid.

19. Ibid.

20. Ibid. at 309.

21. Sabel, Charles F., “Bootstrapping Reform: Rebuilding Firms, the Welfare State, and Unions” (1995) 23 Pol. & Soc. 5 at 10–11 Google Scholar.

22. The democratic experimentalists criticize Weberian-style administration at many junctures, but a particularly interesting version of the argument can be found in Dorf, Michael C. & Sabel, Charles F., “Drug Treatment Courts and Emergent Experimentalist Government” (2000) 53 Vand. L. Rev. 831 at 853–59 Google Scholar. See also Dorf & Sabel, supra note 14 at 278.

23 Cohen, Joshua & Sabel, Charles F., “Directly-Deliberative Polyarchy” (1997) 3 Euro. L. J. 313 at 330 Google Scholar. Also, Sabel, Charles F., “Learning By Monitoring: The Institutions of Economic Development” in Smelser, N. & Swedberg, R., ed., The Handbook of Economic Sociology (Princeton, NJ: Princeton University Press, 1994) 137 Google Scholar.

24. Piore, Michael J. & Sabel, Charles F., The Second Industrial Divide: Possibilities for Prosperity (New York: Basic Books, 1984) at 17 Google Scholar.

25. Ibid. at 269.

26. Sabel himself has directly connected democratic experimentalism and his earlier analysis of flexible specialization. See Dorf & Sabel, supra note 14 at 292.

27. Dorf, & Sabel, , supra note 14 at 292–322 Google Scholar.

28. Dorf, & Sabel, , supra note 14 at 388–403 Google Scholar.

29. Fung, Archon, O’Rourke, Dara, & Sabel, Charles F., Can We Put an End to Sweatshops? (Boston, MA: Beacon Press, 2001) at 30 Google Scholar. See also the powerful critical responses to this proposal in the same volume. For an astute critical discussion of this proposal, see also Arthurs, Harry, “Corporate Self-Regulation: Political economy, State Regulation and Reflexive Labour Law” (2002)Google Scholar [unpublished, on file with author].

30. Dorf, & Sabel, , supra note 14 at 351–53 Google Scholar.

31. Cohen & Sabel supra note 23 at 331.

32. Dorf & Sabel supra note 14 at 316.

33. In some formulations, a radicalized reformulation of Juergen Habermas’ model of deliberative democracy seems to provide philosophical inspiration for this model; in others, John Dewey’s pragmatist democratic theory appears more influential.

34. Cohen & Sabel, supra note 23 at 332. For an illustration of how this might work, see Fung, Archon, “Deliberative Democracy, Chicago Style: Grassroots Governance in Policing and Public Education” in Fung, Archon & Olin Wright, Erik, eds., Deepening Democracy: Institutional Innovations in Empowered Participatory Governance (New York: Verso, 2003) 111 Google Scholar.

35. Cohen & Sabel ibid.

36. Fung, Archon & Olin Wright, Erik “Thinking About Empowered Participatory Governance” in Fung, & Wright, eds., supra note 34 at 25 Google Scholar. The claim for the speedy character of democratic experimentalist decision-making is then repeated in Thomas Isaac, T.M. & Heller, Patrick,” Democracy and Development: Decentralized Planning in Kerala” in Fung, & Wright, , eds., supra note 34 at 96 Google Scholar.

37. Fung & Wright ibid. at 25.

38. Cohen & Sabel, supra note 23 at 326.

39. Ibid. at 331. This faith is particularly striking in Fung, , O’Rourke, , & Sabel, , supra Google Scholar note 29, where the authors expect ambitious reforms in transnational labor norms to be motored by negative publicity that allegedly spurs corporations to improve exploitive workplace conditions. Needless to say, there is significant room here for skepticism.

40. Ibid. at 335.

41. Dorf & Sabel, supra note 14 at 389.

42. Ibid. at 397.

43. Fung & Wright, supra note 34 at 3.

44. Dorf, & Sabel, , supra note 14 at 292–322 Google Scholar.

45. Dorf, & Sabel, , supra note 14 at 341–45 Google Scholar.

46. Dorf & Sabel, supra note 22 at 837, 859. For similar remarks, see Fung, and Wright, (who criticize “centralized and uniform” rules, which allegedly plague contemporary administration), supra note 34 at 21Google Scholar; also, Bradley C. Karkkainen, “ Toward Ecologically Sustainable Democracy?” ibid. at 209; Fung, & Wright, supra note 36 at 274Google Scholar (where “rigid legal prescriptions are criticized); Fung, , O’Rourke, , & Sabel, , supra Google Scholar note 29, is filed with negative claims about “fixed” rules, as is Sabel, Charles F., Fung, Archon, & Karkkainen, Bradley, Beyond Backyard Environmentalism (Boston: Beacon Press, 2000)Google Scholar, where generality in the law is associated with “cookie-cutter laws” (at ix). This argument occasionally relies on caricature: when properly constructed, generality in the law hardly requires undue rigidity.

47 Another strong candidate would be “reflexive law,” as recently defended by Cohen, Jean L., Regulating Intimacy: A New Legal Paradigm (Princeton, NJ: Princeton University Press, 2002)Google Scholar; also, Scheuerman, William E., “Reflexive Law and the Challenges of Globalization” (2001) 9 J. Pol. Phil. 81 Google Scholar (where I try to acknowledge the necessity for high-speed regulatory instruments while salvaging traditional rule of law virtues).

48. Fung, & Wright, , supra note 34 at 33–40 Google Scholar; Isaac, & Heller, , supra note 36 at 101–02 Google Scholar; Fung, , supra note 34 at 124–27 Google Scholar; Thomas, Craig W., “Habitat Conservation Planning” in Fung, & Wright, eds., supra note 34 at 150–56 Google Scholar. See also Dorf, & Sabel, , supra note 14 at 404–17 Google Scholar.

49. Cohen & Sabel, supra note 23 at 332.

50. Cohen, Joshua & Rogers, Joel, “Power and Reason” in Fung, & Wright, , eds., supra note 34 at 248–53 Google Scholar.

51. See the case studies collected in Fung & Wright, supra note 34.

52. However, it is noteworthy that it shares some of Hayek’s animosity towards existing central legislatures.

53. For example, Cohen alludes to the possibility that the dissolution of liberal democracy might allow politics “to degenerate into a patchwork of particularistic deals and local privileges” reminiscent of the worst ills of the pre-liberal era ( Cohen, & Sabel, supra note 23 at 324Google Scholar). To his credit Cohen—the normative political philosopher of the group—seems most aware of such dangers.

54. For a recounting of them, see Waldron, Jeremy, The Dignity of Legislation (Cambridge: Cambridge University Press, 1999)CrossRefGoogle Scholar.

55. Fung & Wright, supra note 36 at 25.

56. Held, David, McGrew, Anthony, Goldblatt, David, & Perraton, Jonathan, Global Transformations: Politics, Economics and Culture (Stanford, CA: Stanford University Press, 1999) at 15 Google Scholar.

57. Reinicke, Wolfgang H., Global Public Policy: Governing without Government? (Washington, D.C.: Brookings Institutional Press, 1998)Google Scholar.

58. For some examples from transnational labor law, see Scheuerman, William E., “False Humanitarianism? U.S. Advocacy of Transnational Labor Standards” (2001) 8 Rev. Int’l Pol. Econ. 359 Google Scholar.

59. Rosenau, James N., “Governance and Democracy in a Globalizing World” in Archibugi, Daniele, Held, David, & Koehler, Martin, eds., Re-Imagining Political Community: Studies in Cosmopolitan Democracy (Stanford, CA: Stanford University Press, 1998) 28 at 31 Google Scholar.

60. Dewey, John, The Public and Its Problems (Athens, OH: Swallow Press [1927], 1954) at 140 Google Scholar.

61. Ibid.

62. In fairness, the democratic experimentalists occasionally argue that a place remains in their model for centralized uniform legislation when the “conditions of diversity and volatility,” for example, are missing. See, for example, Cohen & Sabel, supra note 23 at 334–35; Fung & Wright, supra note 36 at 39. However, it is clear from their analysis that such incidents are likely to remain exceptional.

63. I have been harping on this point for awhile now, in part inspired by the Frankfurt legal theorist Franz L. Neumann. See Scheuerman, William E., Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge, MA: MIT Press, 1994)Google Scholar. Theodore Lowi, who has been harping on it for far longer, ex Presses similar anxieties about democratic experimentalism in his “Frontyard Propaganda “in Sabel, , Fung, , & Karkkainen, , supra note 46 at 70–76 Google Scholar.

64. Thomas, supra note 48 at 168.

65. Dorf & Sabel, supra note 14 at 292.

66. This is a central theme in Piore, & Sabel, , supra note 24 at 49–104 Google Scholar.

67. Dorf & Sabel, supra note 14 at 297.

68. From an impeccably social democratic perspective, Franz L. Neumann criticized this type of left-wing legal argumentation well over sixty years ago. See the essays collected in Scheuerman, William E., ed., The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer (Berkeley: University of California Press, 1996)Google Scholar.

69. On occasion, the democratic experimentalists themselves seem familiar with this fact. But I do not see how such empirical observations mesh with the repeated claim that we need to move beyond a “fixed” rule regime.

70. Recall, for example, American Legal Realism or early twentieth-century continental European defenses of “social law.”

71. Weber, Max, Economy and Society, vol. II (Berkeley: University of California Press, 1979) at 882–92 Google Scholar.

72. Dorf & Sabel, supra note 14 at 313.

73. Sennett, Richard, The Corrosion of Character: The Personal Consequences of Work in the New Capitalism (New York: W.W. Norton, 1998) at 55 Google Scholar.

74. Ibid.

75. Ibid. at 20.