Democracy, Agency, and the State: Theory with Comparative Intent (Oxford Studies in Democratization) [1 ed.] 9780199587612, 0199587612

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OXFORD STUDIES IN DEMOCRATIZATION Series editor: Laurence Whitehead

.................. DEMOCRACY, AGENCY, AND THE STATE

OXFORD STUDIES IN DEMOCRATIZATION Series editor: Laurence Whitehead













Oxford Studies in Democratization is a series for scholars and students of comparative politics and related disciplines. Volumes will concentrate on the comparative study of the democratization processes that accompanied the decline and termination of the cold war. The geographical focus of the series will primarily be Latin America, the Caribbean, Southern and Eastern Europe, and relevant experiences in Africa and Asia

OTHER BOOKS IN THE SERIES Regime-Building: Democratization and International Administration Oisı´n Tansey Rethinking Arab Democratization: Elections without Democracy Larbi Sadiki Accountability Politics: Power and Voice in Rural Mexico Jonathan A. Fox Regimes and Democracy in Latin America: Theories and Methods Edited by Gerardo L. Munck Democracy and Diversity: Political Engineering in the Asia-Pacific Benjamin Reilly Democracy and the State in the New Southern Europe Edited by Richard Gunther, P. Nikiforos Diamandouros, and Dimitri A. Sotiropoulos International Democracy and the West: The Role of Governments, Civil Society, and Multinational Business Richard Youngs Democratic Accountability in Latin America: Edited by Scott Mainwaring and Christopher Welna Democratization: Theory and Experience Laurence Whitehead

Democracy, Agency, and the State Theory with Comparative Intent ..................

GUILLERMO O’DONNELL

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Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York # Guillermo O’Donnell 2010 The moral rights of the author have been asserted Database right Oxford University Press (maker) First published 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available Typeset by SPI Publisher Services, Pondicherry, India Printed in Great Britain on acid-free paper by MPG Books Group, Bodmin and King’s Lynn ISBN 978–0–19–958761–2 1 3 5 7 9 10 8 6 4 2

.................. Contents .................. List of Tables

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Introduction 1. The Democratic Regime (or Political Democracy), and Citizenship as Agency 2. Agency: Origins, Concomitants, and Expansion 3. The State: Definition, Dimensions, and Historical Emergence 4. The Varying Referents of the State: Nation, People, Citizenry 5. The State as Law: Contributions and Ambivalences 6. The Multiple Faces of the State and its Underlying Unity 7. Dialogics, Agency, and Democracy 8. An Overview of Latin America 9. Social Context, Options, and Convergences 10. The Conundrums of Globalization and Legal Pluralism 11. Conclusion

1 13 31 51 73 93 115 133 145 167 183 203

Bibliography Index

217 255

....................... List of Tables ....................... 1. For the benefit of whom the government rules (%) 2. Perceptions of the progress (or lack thereof) of reduction of corruption in the state (%) 3. Perceptions of the good use (or not) that the state makes of its fiscal income (%) 4. Trust in the police (%) 5. Trust in political parties (%) 6. Trust in Congress (%) 7. Trust in the Judiciary (%) 8. The courts punish those who are guilty without looking at who they are (%) 9. Opinions about equality before the law (%) 10. Preference for democracy I (%) 11. Preference for democracy II (%) 12. Trust in the electoral court (%) 13. Responses about a “decisive leader” (%)

150 151 152 153 156 157 158 159 160 161 162 163 164

....................... Introduction .......................

1. This is a book of political theory; it deals with several aspects of democracy and the state, individually and within their relationships. Its point of departure is my belief that those relationships are as important as they are relatively neglected, and that their examination helps us to take a fresh look at both democracy and the state. The basic argument is that democracy, even in its partial version as a political democracy, entails a view of the human being as an agent who has achieved the title to be recognized, and legally backed, as the holder of rights to not only political but also civil, social, and cultural ones. This entity, the human being as an agent/citizen, grounds as its microfoundation the empirical and normative aspects of democracy. This grounding reverberates, among other spheres, on democracy, on the state, and on their intertwining. I pursue these reverberations throughout this volume. As the subtitle indicates, this book also has a comparative intent. It hopes to open the way for disciplined empirical and comparative enquiries—which, I hasten to warn the reader, are in themselves beyond the scope of this present volume. It is also a morally and politically motivated book, geared by concern for the many flaws of contemporary democracies—especially, but not exclusively, in Latin America—and the cruel social realities that underlie these flaws. The book’s origination began with a personal story, which I allow myself to tell briefly in the following section.

2. I have always been voraciously interested in politics. In my youth this interest led me to become a politician, first as a student leader in the National University of Buenos Aires—but I quickly discovered that I was an irredeemably bad one. By then I had earned a law degree, following what, at that time,

2

Introduction

was a typical path toward a political career, and also as a way to support my family. These studies allowed me to learn some political theory in the Law School, the only kind of institution that in those times offered some related courses. But these courses, of constitutional and comparative law, were for the most part formalistic recitations of legal texts—terribly boring. So after abandoning any hope of becoming a politician and tired of being a practicing lawyer, in 1968 I decided to go to the United States to study political science. I went to Yale, attracted by the constellation of scholars who at that time were teaching there: Robert Dahl, Karl Deustch, Robert Lane, Harold Lasswell, and Douglas Rae, among others. Furthermore, I was fortunate that in the same year I commenced my studies, David Apter came to Yale from Berkeley—he was to become my main mentor and generous friend. In addition, the departure of Deustch to Harvard was more than compensated by the arrival at Yale of other great scholars friends and future friends: Juan Linz and Alfred Stepan. Privileged by such a milieu, some brilliant classmates and a wonderful library, I concentrated totally on my political science studies. Those times, the late 1960s, were shaken by the Vietnam War and the increasing opposition to it in the United States, the events of May in Paris, and other unsettling incidents of this kind. They were also times when the behavioral approach that had been pioneered among others by Dahl was fading and the structural functionalist theories of Talcott Parsons and their applications to political science and political sociology—under the guise of modernization and political development theory—had gained currency. It was good for graduate students such as myself that none of the Yale faculty shared these views, with the partial exception of Apter, whose own version of modernization theory significantly differed from that of the mainstream anyhow. It gave me a great opportunity to study and discuss my obsessive interest in the kind of authoritarian rule that was emerging in South America, and how this related to the travails of democracy—something I had learned to cherish through the already abundant political misfortunes of Argentina. This interest of mine was fostered by Apter, who had studied “bureaucratic systems” on the basis of his research in Africa;1 by Linz, who had recently written his memorable paper on “Authoritarian Spain,”2 and by Stepan, who came to Yale fresh from his Columbia Ph.D. dissertation on the Brazilian military and the authoritarian regime that in that country was inaugurated in 1964.3

1 2 3

See Apter 1967 and 1971. Linz 1964. Published in Stepan 1971.

Introduction

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Given that I arrived in Yale two years after the Argentine coup of 1966, charged with the interests mentioned above, these scholars and their work were a most valuable source of learning and inspiration. Later on, in 1972, I published my first book, Modernization and Authoritarianism. Studies in South American Politics (Berkeley: Institute of International Studies), thanks to Apter’s generous support as my mentor and director of the series that published it. I labeled the emerging regimes “bureaucratic-authoritarian,” uniting the terms that had been used, respectively, by Apter and Linz, but defining the meaning of this awkward term as a type of authoritarian rule specific to the South American cases I dealt with.4 In so doing I was arguing against two lines of interpretation. One, broadly based on modernization and political development theory, because it could not account, except as odd deviant cases, for the emergence of those authoritarianisms in the more modernized, industrialized, and urbanized countries of South America. The other line of interpretation saw those cases as just another expression of traditional authoritarianism or, from the other side of the ideological spectrum, as cases of “colonial, dependent fascism.” When soon afterwards Chile and Uruguay, in 1973, and once again Argentina, in 1976, fell under this kind of rule, these unfortunate events helped to draw attention to my book; including the concerns I had expressed in it about the likelihood of its future emergence. The research and reflections I undertook at Yale were academic activities. But as I returned to Argentina in late 1971, in the midst of the collapse of the bureaucratic-authoritarian regime inaugurated in 1966, my work was obviously—at times too obviously—part of agitated, and increasingly violent, conflicts. From then on follows a personal story that included leaving Argentina for Brazil in mid-1979, starting in 1982 as academic director of the Kellogg Institute of International Studies of the University of Notre Dame, since then sharing my time between Notre Dame, Brazil, the Center for Advanced Studies in the Behavioral Sciences, two year-long stays in the United Kingdom as visiting professor at the Universities of Cambridge and Oxford, and increasingly Argentina, to where I have returned and hope now to stay permanently. I do not want to bother the reader with further details of this story. I revealed part of it because I want to highlight some points that are relevant for the contents of this book. The first is that my studies of bureaucratic-authoritarianism led me 4

I pursued this topic in another book, O’Donnell 1988. I first published it in Argentina in 1983 after having basically completed it several years before, but I could not publish it before because of the highly repressive conditions until then prevailing in my country (for recollections of this period see Chapter 7).

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Introduction

to research the kind of state that supported and enacted this kind of rule, and to examine the literature that at the time existed on the state. A second point is that during those studies, while living under a particularly vicious version of this kind of rule in Argentina from 1976 until mid-1979, I did not stop thinking, and hoping for its counterpoint, democracy. The third point is that when the South American transitions came I had already written some pieces on this topic,5 and from then on I devoted myself to the study of the newly emerged democracies and, increasingly, to what I argue is the necessary democratic critique of these and, for that matter, all democracies;6 this led me to a period of study of democratic theory, which I had begun at Yale. The final point is that these studies helped me acknowledge the crucial importance of the law for democracy; thus, after some thirty years of neglecting legal theory I found myself rereading theorists I had studied at the Law School and expanding them with less formalistic, contemporary ones. These points permeate the present book: the memory of bureaucraticauthoritarianism and the persuasion that, in spite of many flaws of existing democracies, nothing could be worse than a return to authoritarian rule; a view of the state that, in addition to its bureaucracies, includes, among other co-constitutive dimensions, the legal system; the conclusion that in addition to a regime and the political citizenship it entails, democracy should be understood as including other dimensions of citizenship—civil, social, and cultural—as well as complex relationships with the state in which it is embedded; the view that, even though democracy should be the object of careful analytical and empirical study, it also has an intrinsic moral dimension. And, infusing all of the above, my conviction that a proper understanding of democracy not only as a set of institutions and practices but also as a powerful normative force, demands recognizing that, starting from old origins, it is grounded on the idea that the citizen is an agent, a being endowed with practical reason and capable of moral judgment; this condition makes the citizen a carrier of the legal “personality” that underlies and grounds his/ her various rights. Throughout this book I argue that this idea infuses not only the various aspects of citizenship but also other topics that are basic for

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This initial work was reflected later on in the volume that I co-edited with Philippe Schmitter and Laurence Whitehead (1986), especially in volume IV of this work (Tentative Conclusions about Uncertain Democracies), that I coauthored with Schmitter. Some of my writings of that time, including the paper I originally wrote for that project, are collected in O’Donnell 1999. Another collection, of even older studies that were originally circulated as samizdats during the extremely repressive 1976–78 bureaucratic-authoritarian regime in Argentina, has been published in Spanish under the indicative title of Catacumbas (O’Donnell 2008). 6 Some of these more recent works I collected in O’Donnell 2007a.

Introduction

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the conceptualization and practice of democracy, the state, and their interconnections.

3. Among the lessons I learnt at Yale was that there is much valuable knowledge available in the great academic institutions of the Northwestern part the world. But I also became persuaded that this knowledge should not lead us to omit investigating the historical specificity of countries situated in other parts of the world. In fact, the recent emergence of regimes that are or claim to be democratic has generated important challenges to the theories of democracy and democratization that prevailed until quite recently. There is, to begin with, confusion and disagreement on how to define democracy. Some of these disagreements are unavoidable, but confusion is not. The need for conceptual clarification is shown by the proliferation of qualifications and adjectives attached to the term “democracy” that has been registered and fruitfully analyzed by Collier and Levitsky 1997.7 Most of these qualifiers refer to newly emerged democracies, suggesting the vacillations, in the comparative literature as well as in national and regional studies, about the criteria by which given cases may or may not be dubbed democracies.8 The main reason for these vacillations is that many new democracies, and some older ones, in the South and the East, exhibit characteristics that are discordant with those that, according to the theory or expectations of observers, a democracy “should have.” This presumption, however, is problematic if the core concept itself is not clear. As Hart (1961: 14) said, “a definition which tells us that something is a member of a family cannot help us if we have only a vague or confused idea as to the character of the family.”9 Adding to this problem, we face a historical/contextual issue. Practically all definitions of democracy are, naturally enough, a distillation of the historical trajectory and present situation of the Northwestern countries.10 However,

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For relevant further discussion see Newey 2001 and Collier et al. 2006. A step further in the needed conceptual clarifications is the growing recognition of a subtype, not of democracy but of authoritarianism, the “electoral authoritarianisms” discussed in the pioneering work of Karl 1986, and in the recent work of Diamond 2002, Levitsky and Way 2002, and Schedler 2006, as well as the discussion of democraduras by Whitehead 2002. 9 Actually, this author discusses definitions of the law, but he might as well have referred to democracy. 10 With considerable license, I use this term as a shorthand for referring to the early democratizing countries located in the Northwestern quadrant of the world, excluding the 8

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Introduction

the trajectories of other countries that nowadays may be considered democratic differ considerably from the former ones. In this case, a theory of adequate scope should assess these differences, per se and as to how they may help identify specific characteristics of democracy and generate subtypes across the whole universe of cases. Thus the present study is based on the view that current theories of democracy need some revisions, even if this entails loss of parsimony. Such revisions may yield conceptual instruments appropriate for achieving a better theory of democracy (and consequently of democratization) in its various incarnations. With this book I hope to contribute to this task.

4. Perhaps the best way to guide the reader through the pages that follow is to point out the main aspects I discuss in each chapter. 1. I begin in Chapter 1 with the institutional core of democracy, the regime and its concomitants, political citizenship and the “political” rights and freedoms attached to it. There I propose to add to the usual list of characteristics of elections, two that are sometimes omitted, mainly because they are considered obvious in the Northwest but are not so in other regions: that those elections should be decisive and institutionalized. 2. Another argument of this chapter is that in the democratic regime its individual unit is not the voter but the citizen, understood as a legally enabled and backed agent. A related point is that as carriers of (at least) political rights, citizens are holders of legal personality, and that this condition is a legally-enacted one that, for its effectiveness and action ability, is independent of inter-subjective recognitions. This condition underlies the present extension of what I call the universalistic wager that embodies the change from authoritarian rule and oligarchic democracies to inclusive democratic regimes. These observations conclude the theme of Chapter 1.

Southern European ones, that followed historical paths quite different to those of most of their Northern neighbors. A complicated case is the United States, with its considerable past and present differences in relation to most European countries; thus after some doubts I decided to include the United States in the set I am trying to delimit, but added in Chapter 4 some comments and qualifications. Furthermore, even though I believe that at the level of generalization I refer to “Northwestern countries” is by and large warranted, when some significant differences exist, especially in relation to Germany, I comment on them, also in Chapter 4.

Introduction

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3. That the citizen/agent is the core individual unit, the micro-foundation of democracy, has implications I explore in Chapter 2. There I argue that contemporary democracy owes a huge debt to a conception of human agency that has had long elaboration in some currents of moral philosophy and legal theory. Further examination in this chapter of the rights and freedoms entailed by a democratic regime shows two additional aspects. One is that the “political freedoms” it contains actually are part of much older civil rights, the evolution of which helps us understand the emergence and expansion of ideas of agency and its legal backing. The other aspect is that what I call the internal and external boundaries of those freedoms are theoretically undecidable, something that should be explicitly theorized, especially because it helps us to understand the peculiar tensions, dynamics, and open-endedness of democracy. 4. Another point, first noted in Chapter 1 and pursued in Chapter 3, is that already at the level of the regime we find the state. One aspect of this presence is widely recognized by the literature, as the territorial delimitation of the electorate. But we find two other aspects entailed by the definition of a democratic regime: one, as the legal system that enacts and backs the rights and freedoms sanctioned by this regime; and second as (at least) the subset of its bureaucracies that act in ways consistent with the effectuation of said rights and freedoms. These considerations lead me in Chapter 3 to offer a conceptualization of the state, an entity sometimes neglected by democratic theory or, if acknowledged, reduced to its bureaucracies and to its role as the above mentioned territorial delimitation. In this chapter I argue that in addition to those bureaucracies the state should be recognized as a legal system, as an attempted focus of collective identity, and as filter in relation to its “outside.” I argue that these four dimensions of the state, provided they are understood as historically contingent, are useful for its proper conceptualization. I pursue this matter with a summary discussion of state-making. In addition, in Chapter 3 and later, I underline some intrinsic tensions between democracy and the state, even of the more fully democratized states. These considerations, in turn, are part of an argument that runs through the book, that the relationships between democracy and the state require more attention than they have received.11

11 I first made this argument in chapter VII of O’Donnell 1999 (first published 1993), based on a critique of theories of democracy that I see as too narrowly centered on the regime. Some valuable works discuss relationships between democracy and the state, although as the present work itself will make clear, we have much work ahead. See Alford and Friedland 1985, Cavarozzi 1996, Diamond 1999, Fishman 1990, Garreto´n 1994, Gonza´lez and King 2004,

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Introduction

5. Contemporary states usually have a collective identity as their referent, variously predicated as nation(s), people(s) and/or a citizenry. I discuss various aspects of this matter in Chapter 4. 6. Another constitutive aspect of the state is the legal system that normally penetrates and contributes to give order and “previsibility” to manifold social relationships. I discuss this matter in Chapter 5, including several issues related to the ways and degrees to which a democratic rule of law may (or may not) exist. 7. However, at this point I note that the four dimensions of the state I predicate are insufficient for its proper conceptualization. In Chapter 6, I argue that another necessary angle is the examination of the various faces that the state shows, with special attention to the ones it often presents to poor, excluded and/or discriminated sectors of a population. These aspects impinge not only on the workings of the state but also on the quality and, at the limit, the very existence of democracy. In this chapter I also discuss some ambivalent faces of the state that unavoidably result from bureaucracy and capitalism. 8. The preceding discourse is closely linked to my discussion in Chapter 7 of the personal experience of living under a terrorist state and, contrariwise, of the dialogical communicative networks that are congenial to human agency, and the crucial contribution that a democratic social context provides to the practice and flourishing of those networks, including the possibility of re-appropriating the true meaning of the powers and authority held by states and governments. 9. At this stage of the book I felt I had to provide some comparative context to various observations I had made thus far. Hence, Chapter 8 contains a broad overview of some background conditions and of the present political situation of Latin America. But this overview is not meant as a substitute for the comparative work that several scholars are nowadays undertaking and to which I intend to contribute with a future book. 10. A corollary of the preceding is that, if citizens are agents, then the issue of the options available for enabling their agency is a matter directly relevant for a political theory of democracy, not just for other social sciences or exclusively normative theories. In discussing this matter in Chapter 9, I find an important convergence: that of a similar view of human agency among democracy (as here conceptualized), and the main currents of human rights and human development, even if the respective views do not overlap completely. From this perspective I discuss processes that may be politically involved in broadening agency-enabling options. Gunther et al. 2007, Iazzetta 2006, Linz and Stepan 1996, Mainwaring 2006, Mariani 2008, Mazzuca 2007, Nun 2000, and Oszlak 2007.

Introduction

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11. The preceding chapters lead me, in Chapter 10, to the complex issue of the conflicts and possible accommodations between, on one hand, citizenship and a universalistic conception of agency and, on the other, the presently high and increasing globalization and pluralism, and consequently differing identity-recognition expectations. I begin by commenting on the welcome variety of democracies that are emerging. But on several matters of multiculturalism and legal pluralism I find myself unable to offer clear-cut solutions; albeit with some caveats, I conclude in dubio pro-agency, without ignoring the sharp disagreements existing on this and related matters. 12. Throughout these chapters I question, in a comparative mood, an implicit assumption of quite a few mainstream democracy and democratization studies centered on the regime. Naturally, reflecting the situation of Northwestern countries, the assumption of these studies is that the respective countries have a high degree of internal homogeneity. This means presupposing that if the national regime is democratic, then subnational regimes are also democratic, and that the legality of the state extends over practically all regions and social relations; I argue that these assumptions are untenable for many democracies existing in other parts of the world, and that this fact ought to be empirically taken into account and duly theorized. 13. In the final chapter, after taking a look back to the road we have traversed, I detail the reasons (some picked up from the existing literature and others derived from the analyses of this book) why democracy, even democracies that exhibit serious flaws, is preferable to any other type of political rule. There I also emphasize the need to recognize that democracy, regime, and state are linked in ways that create some structured, unsolvable tensions. I further argue that, despite the practical and theoretical complications they raise, those tensions are to be celebrated, insofar as they underlie the peculiar historical dynamics and openness that differentiates democracy from all other types of political rule. Throughout this volume there is a guiding thread. It is that even at the partial side of democracy entailed by a democratic regime and its concomitant political citizenship, we should be aware of the immense moral and political importance of the recognition it entails of the citizen not just as an agent, but as one who is legally sanctioned and backed. This is the product of a long and conflictive history that has combined with manifold factors across time, regions, and cultures that raise many important, and some perplexing, issues. This book does not contain answers to all of those issues, but I would like to believe that it provides a useful standpoint for their further empirical and normative examination, based on the crucial fact that in and with democracy, the political power and authority exercised in and by a state can

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Introduction

only be validly conceived as emerging from citizens/agents. The corollaries and concomitants of this fact permeate the discussion of the topics that occupy this book: the regime and its attached political rights; the various dimensions of the state and their underlying unity; the referents and faces of the state; the options and dialogical spaces entailed by the social enactment of agency; the conflictive relations between the equalities of political and civil citizenship, on one side, and the inequalities continually generated by, especially, bureaucracy and capitalism, on the other; and the diversity and pluralisms that agency itself entails and generates. After those incursions, in the Conclusion I come back to agency as the ground of the empirical and normative import of democracy. Along the way, I was forced out of my discipline, political science, toward various themes that are discussed by rich and complex literatures that I have benefited enormously from studying. I have used these literatures selectively, guided by the specific interests that inspire this book, hoping that their respective scholars forgive me for not having fully discussed them, something that was beyond the scope of this book and, I confess, in some subjects also beyond my own qualifications as a fascinated traveler but not a specialist in the landscapes those scholars cultivate.

5. I have been carrying this book mentally for some ten years. Some of its themes I tangentially approached in books I co-edited and in my personal contributions to them,12 and in a series of variously published essays that I collected in two volumes, already cited. I would like to think that these writings have an entity of their own, but I also saw them as ways of approaching the themes of the present book. Along this journey I have greatly benefited from discussions and exchanges with many friends and colleagues in places and institutions that have included the University of Notre Dame and its Kellogg Institute for International Studies, the Center for Advanced Behavioral Studies in the Social Sciences, the Universities of Cambridge and Oxford, and more recently the Escuela de Polı´tica y Gobierno of the National University of San Martn, Argentina. I shall make no attempt here to list the many individuals to whom I owe a significant intellectual debt at those institutions, as well as others I encountered in 12 In Tokman and O’Donnell 1998, Me´ndez, O’Donnell, and Pinheiro 1999, and O’Donnell, Iazetta, and Vargas Cullel 2004.

Introduction

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various meetings and seminars, but I am sure many of them know of my appreciation. Yet for the final push in the termination of this book the contributions and encouragement of some colleagues were so important that it would be extremely unfair to omit them here; I refer to Scott Mainwaring and Rev. Timothy Scully C.S.C. at Notre Dame and the Kellogg Institute; Laurence Whitehead and Desmond King at Oxford University; Marcelo Cavarozzi and Mara Matilde Ollier at the National University of San Martı´n; and through various encounters here and there, Ernesto Garzo´n Valde´s. And, indeed, there is another person that I want to mention very especially: my wife, companion, colleague, and critic, Gabriela Ippolito-O’Donnell. She has supported and inspired me wonderfully, and sometimes suffered with me, during the length of time and the many journeys—physical and intellectual— that it took me to write this book. It is to her that I lovingly dedicate it. Buenos Aires, October 2009

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The Democratic Regime (or Political Democracy), and Citizenship as Agency1 In this chapter I deal with the very core of democracy, the component without which democracy cannot possibly exist—the regime. After reviewing some definitions of democracy (Section 1.1), I discuss themes that result from the definition I propose of a democratic regime or a political democracy, terms that I use indistinctly; the kind of elections it entails (1.2), the political freedoms and rights that surround and make possible that kind of regime, and some of the issues raised by the “undecidability” of those freedoms (1.3); what I call the universalistic wager to which every citizen in a political democracy is willingly, or not, submitted, a point that helps me define the concept of political citizenship (1.4); and our first encounter with the state, as an indispensable co-constituent of political democracy (1.5). Furthermore, along these analyses I detect an entity, the citizen as an agent. This I argue is an absolutely crucial aspect of democracy. This topic opens the discussion in Chapter 2, and then I pursue it throughout the book as an axial component of the various topics I deal with.

1. 1. ON SOM E DE FINITIONS O F ( POLITICAL ) D E M O C R AC Y An examination of some influential definitions of democracy offers a useful entry point into my analysis. I start with Schumpeter 1975 [1942] and his famous definition; it has been critically examined by a number of scholars but it might be worth revisiting it. After stating that “Democracy is a political

1

The present chapter and the following one are extensively revised versions of work I previously published (chapter I of O’Donnell 2007a). I indulge in this partial repetition because the points I make in this volume are necessary for a proper understanding of the chapters that follow.

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The Democratic Regime, and Citizenship as Agency

method . . . a certain type of institutional arrangement for arriving at political— legislative and administrative—decisions,” Schumpeter offers his famous definition of the “democratic method”: “that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote”; ibid. 242. This is the paradigmatic “minimalist” definition of democracy. However, Schumpeter does not stop here. First, he clarifies that “the kind of competition for leadership which is to define democracy [entails] free competition for a free vote”; ibid. 217. In the same breath, he introduces a caveat when, after commenting that “the electoral method is practically the only one available for communities of any size,” he adds that this does not exclude other, less than competitive “ways of securing leadership . . . and we cannot exclude them because if we did we should be left with a completely unrealistic ideal”; ibid. 271. Significantly, this sentence ends with a footnote that reads “As in the economic field, some restrictions are implicit in the legal and moral principles of the community”; ibid. 271, n. 5. The meaning of these assertions, in contrast to the definition Schumpeter offered shortly before, is rather nebulous. The reason is, I surmise, that the author realized that he is close to opening a can of worms: if the “competition for leadership” has something to do with “the legal and moral principles of the community,” his definition or, equivalently, his description of how “the democratic method” works, turns out not to be so minimalist as an isolated reading of the famous definition might indicate. Furthermore, Schumpeter realizes that, in order for the “free competition for a free vote” to exist, some conditions, external to the electoral process itself, must be met. As he puts it: “If, on principle at least, everyone is free to compete for political leadership by presenting himself to the electorate, this will in most cases though not in all mean a considerable amount of freedom of discussion for all. In particular it will normally mean a considerable amount of freedom of the press”; ibid. 271–2; italics in the original. In other words, for the “democratic method” to exist, some basic freedoms, presumably related to “the legal and moral principles of the community,” must be effective, and as Schumpeter italicizes, for “all.” Finally, when this author looks back at his definition and his cognate statement that “the primary function of the electorate [is] to produce a government,” he further clarifies that “I intended to include in this phrase the function of evicting [the government]”; ibid. 272, also 269 and 273. Thus, albeit implicitly, Schumpeter asserts that he is not talking about a one-off event but about a way of selecting and changing governments over time; consequently, his definition slips from an event—elections—to an enduring regime. We should also notice that, in the pages that follow the passages I have quoted, Schumpeter proposes several “Conditions for the success of the Democratic

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Method.” These conditions are: (1) Appropriate leadership; (2) “The effective range of policy decision should not be extended too far”; (3) The existence of “a well-trained bureaucracy of good standing and tradition, endowed with a strong sense of duty and a no less strong esprit de corps”; (4) Political leaders should practice a good amount of “democratic self-control” and mutual respect; (5) There should also exist “a large measure of tolerance for difference of opinion,” for which, going back to his above-mentioned footnote, our author adds that a “national character and national habits of a certain type” are apposite; and (6) “All the interests that matter are practically unanimous not only in their allegiance to the country but also to the structural principles of the existing society”; ibid. 289–96. These assertions are far from clear, either in themselves or in relation to the consequences foreseen by Schumpeter for the absence of the conditions he proposes. First, he does not tell us if each of these conditions is sufficient for the “success of the democratic method” or if, as it seems reasonable to interpret, it is the joint set of those conditions that suffices. Second, he omits to tell us if “lack of success” means that the “democratic method” would be abolished, or that it would lead to some kind of “diminished democracy.”2 If the proper answer to this question is the first, then we would have to add to Schumpeter’s definition the vast array of dimensions I have just transcribed, at least as necessary conditions of the object being defined. This would make his definition anything but minimalist. If, on the other hand, the proper answer is that some kind of diminished democracy would exist, then Schumpeter, against his claim that he has fully characterized the “democratic method,” has failed to offer a typology that would differentiate full and diminished kinds of democracy. These clarifications, caveats, postulations of necessary conditions, and allusions to a regime occur in the pages that immediately follow the famous definition. There is no doubt that Schumpeter’s view of democracy is elitist: “The voters outside of parliament must respect the division of labor between themselves and the politicians they have elected . . . they must understand that, once they have elected an individual, political action is his business and not theirs”; ibid. 296. But an elitist definition of democracy is not necessarily minimalist. Indeed, the various qualifications Schumpeter introduces imply that his definition of democracy is not as minimalist, or narrowly centered on the “method,” or process, of elections, as its author and some of his commentators took it to be.3 I have discussed Schumpeter’s definition because the ambiguity it contains also runs through contemporary ones that are deemed to be “Schumpeterian,” that is to say minimalist. Among these definitions, Przeworski’s (1998: 10) stands 2

As elaborated by Collier and Levitsky 1997. Of course, several authors have criticized from various angles Schumpeter’s proposal. For a recent detailed and pertinent critique see Mackie 2009. 3

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out for its sharpness: “Democracy is a system in which parties lose elections. There are parties: divisions of interests, values, and opinions. There is competition organized by rules. And there are periodic winners and losers.” More recently, Przeworski and collaborators have offered a similar definition, which they explicitly label as “minimalist”: Democracy is “a regime in which governmental offices are filled as a consequence of contested elections. Only if the opposition is allowed to compete, win, and assume office is a regime democratic . . . [this], in turn, entails three features, ex ante uncertainty, . . . ex post irreversibility . . . , and repeatability”; Przeworski et al. 2000: 50–1. Notice that, in spite of its limitation to elections, the irreversibility and, especially, the repeatability of elections in which “the opposition has some chance of winning office as a consequence of elections” imply the existence of additional conditions, a` la Schumpeter, for this kind of elections to be held at all. At the very least, if the opposition is to have such a chance, some basic freedoms must also exist. In turn, Huntington (1991: 7) says that he is “following in the Schumpeterian tradition” and defines democracy “[As a political system that exists] to the extent that its most powerful collective decision-makers are selected through fair, honest, and periodic elections in which candidates freely compete for votes and in which virtually all the adult population is eligible to vote.” But he adds that democracy “also implies the existence of those civil and political freedoms to speak, publish, assemble, and organize that are necessary to political debate and the conduct of electoral campaigns.” Similarly, Di Palma (1990: 16) tells us that democracy is “premised . . . on free and fair suffrage in a context of civil liberties, on competitive parties, on the selection of alternative candidates for office, and on the presence of political institutions that regulate and guarantee the roles of government and opposition.”4 For his part, even though Sartori (1987: 24, 98, 110) centers his attention more on “a system of majority rule limited by minority rights” than on elections, he adds that an “autonomous public opinion . . . [and a] polycentric structuring of the media and their competitive interplay” are necessary for democracy to exist. Finally, even though they use a different theoretical perspective, Rueschemeyer, Huber Stephens, and Stephens (1992: 43) concur: democracy “entails, first, regular,

4

Diamond, Linz, and Lipset (1990: 6–7) offer a more extended but similar definition: democracy is “[a] system of government that meets three essential conditions: meaningful and extensive competition among individuals and organized groups (especially political parties) for all effective positions of governmental power, at regular intervals and excluding the use of force; a ‘highly inclusive’ level of political participation in the selections of leaders and policies, at least through regular and fair elections, such that no major (adult) social group is excluded; and a level of civil and political liberties—freedom of expression, freedom of the press, freedom to form and join organizations—sufficient to ensure the integrity of political competition and participation” (italics in the original).

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free, and fair elections of representatives with universal and equal suffrage, second, responsibility of the state apparatus to the elected parliament . . . , and third, the freedoms of expression and association as well as the protection of individual rights against arbitrary state action.”5 Another definition is offered by Dahl (1989: 120), who says that “polyarchy” (or equivalently in my terms, political democracy or a democratic regime) consists of the following: “1. Elected officials. Control over government decisions about policy is constitutionally vested in elected officials. 2. Free and fair elections. 3. Elected officials are chosen [and peacefully removed] in frequent and fairly conducted elections in which coercion is comparatively uncommon. 4. Right to run for office [for] practically all adults. 5. Freedom of expression. 6. Alternative information, [including that] alternative sources of information exist and are protected by law. 7. Associational autonomy. To achieve their various rights, including those listed above, citizens also have a right to form relatively independent associations or organizations, including independent political parties and interest groups”; ibid. 233 passim. This definition has the advantage of not only stipulating some attributes of elections (clauses 1 to 4) but also explicitly listing certain freedoms deemed necessary for elections to be democratic (clauses 5 to 7); they are dubbed “primary political rights . . . integral to the democratic process”; ibid. 170.6 Furthermore, Dahl’s definition has the virtue of being usefully but not excessively detailed, which helps us to distinguish political democracy from other kinds of political rule. Yet as with the authors mentioned above, it would be wrong to interpret this definition as minimalist or, as Dahl does, to oppose the object of his definition to some idealized view of apposite democracy. Nonetheless, efforts to define democracy from Schumpeter through Dahl provide an important basis for thinking about democracy as a political regime; one issue that remains to be discussed is if these definitions refer to democracy tout court or to just an aspect of it, political democracy. In contrast to prescriptive definitions, the ones I have referred to have the important advantage of offering an empirical basis for identifying and in principle characterizing democratic regimes; furthermore, they identify aspects that are crucial for the definition of such a regime. Specifically, they include two elements. First, competitive elections for most top governmental positions (with the exception of high courts and the armed forces, and

5 With the second attribute these authors introduce a new element, which refers to the state, not just the regime. But this need not occupy us at the moment. 6 Slightly rephrasing Dahl, I call these freedoms of expression and association, and of access to alternative sources of information that surround a democratic regime; of course, and as we will see below, this is not an exhaustive list.

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eventually central banks); in relation, these definitions refer (sometimes implicitly) to a regime that endures over time; the elections to which they refer to are not supposed to be one-off events. Second, they add some surrounding conditions, stated as freedoms deemed necessary and/or sufficient for the existence of that kind of elections.

1.2. FAIR, DECISIVE, AND INSTITUTIONALIZED E L E C TI O N S Concerning the electoral component, I stipulate that in a democratic regime elections are reasonably7 competitive, free, egalitarian, decisive, inclusive, and institutionalized; for brevity, from now on I will call (reasonably) fair elections those that have the joint conditions just stated. If elections are competitive, voters face at least six options: choose party A; choose party B; do not vote; vote in blank; cast an invalid vote; or adopt some random procedure that determines which of the preceding options is to be followed. Furthermore, the (at least two) competing parties must have a reasonable chance to let their views be known to all (potential and actual) voters. In order to be a real choice, the election must be free, in that citizens are not (at least physically) coerced when making their voting decisions and actually voting. Furthermore, in order for the election to be egalitarian, each vote should count equally and not be falsified.8 Finally, I propose to add another condition to these elections: they must be decisive, in several senses. Firstly, those who turn out to be the winners attain incumbency of the respective governmental roles. Secondly, elected officials, based on the 7 The qualifier implied by the term “reasonably” (which I will leave implicit in further references to fair elections) results from the fact that nowhere have the conditions for fully fair elections have been met. Among many other reasons count the effects of social inequality and consequent unevenness in the access to economic resources and the media; barriers sometimes posed to the electoral participation of parties that otherwise would express salient social cleavages; and, more broadly, the implications of the undecidabilities of political freedoms I discuss below; for discussion of some of these matters, see Elklit and Svensson 1997 and Munck 2006. 8 I am asserting that, at the moment of vote counting, each vote should be computed as one (or, in the case of plural voting, in the same quantity as every other vote). In saying this I am glossing over the complicated problem resulting from electoral rules that specify that votes cast in some districts weigh more, in some cases significantly more, than in other districts. Obviously, at some point over-representation may become so pronounced that semblances of voting equality are eliminated. In relation to Latin America and the over-representation of some districts in the countries where the problem is more acute, Argentina and Brazil, see Leiras 2007, Mainwaring 1999, and Snyder and Samuels 2001; I confess myself unable to judge a priori at what point these inequalities are so big as to entail the lack of reasonable democraticness of elections.

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authority assigned to these roles, can actually make the binding decisions that the legal/constitutional framework normally authorizes.9 Thirdly, elected officials end their mandates in the terms and/or under the conditions stipulated by that same framework.10 Competitive, free, egalitarian, and decisive elections imply, as Przeworski (1991: 10) pointedly says, that governments may lose elections and abide by the result. This kind of election is a specific characteristic of a democratic regime, or political democracy. In other cases elections may be held (as in communist regimes, or for the selection of the Pope, or even in some military juntas), but only a democratic regime has the kind of election that meets the above mentioned criteria. But the attributes already specified say nothing about the composition of the electorate. There have been oligarchic democracies, those with restricted suffrage that satisfied the attributes already spelled out. But as a consequence of historical processes I will examine in the following chapter, democracy acquired another characteristic, inclusiveness: the right to vote and to be elected is assigned to all citizens of a given country.11 There is another crucial characteristic of political democracy: elections are institutionalized. Above I noted that many definitions of democracy implicitly refer to a series of elections that continue into an indefinite future. That is, practically all actors, political and otherwise, take for granted that elections will continue being held in the indefinite future, at pre-established dates (in presidential systems) or according to pre-established occasions (in parliamentary systems). In cases where these expectations are widely held, elections are institutionalized and are “the only game in town” for accessing top governmental positions.12 These cases are different not only from authoritarian ones, but also from those where, even if a given election has been fair, it is 9 I refer to the fact that in some new democracies there are de jure “authoritarian enclaves” (Garreto´n 1983 and 1987) or “reserved domains” (Valenzuela 1992), or de facto ones that impose, usually by the armed forces, such restrictions. Chile and Guatemala count, respectively, as examples of this problem. 10 As I noted in the Introduction, these additional conditions, quite often omitted by the literature, are an indication of the need to consider the specificities of democracies outside of the Northwest. In this region it is assumed that once fair elections produce a winner, they will be decisive in the sense I define in the text. However, as until recently Latin America showed, quite often this was not the case, when the “wrong party” won the elections. 11 Another stipulation needs to be made, although it is a structural precondition of elections rather than an attribute of them. I refer to the existence of an uncontested territorial domain that defines the electorate. Several authors have conveniently noted this matter; among others Linz and Stepan (1996: 16–37), Offe 1991, Przeworski et al. 2000, and Schmitter 1994. I will return to this topic in Chapter 3. 12 As said by Przeworski (1991: 26) and Linz and Stepan (1996: 5). Actually, these authors refer not to elections but to democracy in general as the “only game in town,” but the nuance implied by this difference need not be discussed at this point.

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not widely expected that similar elections will continue to occur in the future. Only when elections are institutionalized do relevant actors adjust their strategies to the expectation that such elections will continue to be held, rather than invest in resources other than elections as means to access the highest positions of the government.13 One of the terms I have used, regime, requires definition. Slightly adapting the one Schmitter and I offered (O’Donnell and Schmitter 1986), by regime I mean The institutions and processes, formal and informal, and explicit and implicit, that determine the channels of access to top governmental positions, the characteristics of the actors who are admitted and excluded from such access, the resources and strategies that they are allowed to use for gaining access, and the identification of the main, or more salient, institutions of the state in which it is located. This is a generic definition, that applies to democratic and non-democratic regimes. According to it, the regime is a mediation between society and the state, as it links them by providing the channels for accessing the top positions of the latter, the government. We will see below that the democratic species of a regime contains other components.

1. 3. A FIR S T LO O K AT PO L IT ICA L RIG HTS AND FREEDOMS It seems obvious that for the existence of fair elections, especially as they involve expectations of indefinite endurance, such elections cannot stand alone. For the effectiveness of the right14 to participate in elections, as well as in cognate activities such as supporting political parties or attending electoral rallies, some surrounding freedoms must hold and—very importantly—continue to hold between elections. Otherwise, the government in turn could quite easily manipulate or even cancel future elections. Let us remember that for Dahl the relevant freedoms are those of expression, 13 Even if actors anticipate that elections at t1 will be fair, if they believe that there is a significant likelihood that elections at t2 will not be fair, by a regression explored in prisoners’ dilemmas with fixed numbers of iterations, agents will likely make this kind of extra-electoral investment already at t1. 14 To avoid clumsy repetitions and clarifications, I reserve the term rights for the participatory ones of voting, trying to be elected, and taking part in activities related to elections. Instead, as already noted, I keep the term freedoms for those that surround fair elections. But please note that, as will be clear later on, this does not mean that I consider the latter as purely individual or negative.

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association, and access to information, and that other authors posit, more or less explicitly and in more or less detail, similar ones. We first notice that the combined effect of the freedoms listed by Dahl and other authors cannot fully guarantee that elections are fair. For example, the government might ban opposition candidates from traveling across the country, or subject them to police harassment for reasons allegedly unrelated to their candidacy. In such a case, even if the freedoms above listed held, we would hardly conclude that these elections are fair. This means that those freedoms are not sufficient for guaranteeing reasonably fair elections. Rather, they are necessary conditions that jointly support a probabilistic judgment: if they hold, then ceteris paribus there is a strong likelihood that elections will be fair. Let us further note that the freedoms that surround fair elections are inductively derived. They are the result of an empirically-grounded assessment of the impact of various freedoms on the likelihood of fair elections. This judgment is guided by the intention of finding a core set of political freedoms, so that its listing does not slip into a useless inventory of every freedom that might have some conceivable bearing on the fairness of elections. The problem is that, since the criteria of inclusion of some freedoms and of exclusion of others results from an inductive judgment, there cannot exist a theory that a priori establishes a firm and clear line between included (necessary and, ideally, jointly sufficient) conditions, on one hand, and excluded ones, on the other; these matters are undecidable. This is one reason why there is not, and it is very unlikely that there will ever be, a priori and/or general agreement about which these political freedoms and their scope should be. I surmise that the implicit hope to avoid the conundrums of this undecidability is the main reason for the persistent attraction of minimalist definitions of democracy—and for the no less persistent failure of these definitions to stick just to elections. The can of worms that Schumpeter tried to avoid is still with us. So far, I have discussed what may be called the external boundaries of surrounding freedoms that make fair elections likely; i.e. the issue of which freedoms to include and exclude from this set. But there is another problem, which reinforces the somewhat skeptical conclusion already reached. Let me call it the issue of the internal boundaries of these freedoms. All of them contain a “reasonability clause”;15 the freedom to form associations does not include creating organizations with terrorist aims; freedom of expression is limited, among others, by the law of libel; freedom of information does not require that ownership of the media is not an oligopoly; etc. How do we 15 Of course, this matter has generated an enormous literature among legal theorists. In Chapter 5, I return to some aspects of this literature.

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determine if these freedoms are effective or not? Surely, some positive or negative cases are unproblematic. Yet there are others that fall in a gray area between both poles. The answer to these again depends on inductive judgments, not about the degree to which the feeble or partial effectiveness of certain freedoms still supports, nor, the likelihood of fair elections.16 Once again, there is no theoretical basis for a firm and clear, a priori and/or generally agreed upon, answer to this issue: both the external and the internal boundaries of political freedoms are theoretically undecidable.17 A further difficulty is that the internal boundaries of the freedoms listed by Dahl, and of others that also are potentially relevant to fair elections, have undergone significant changes over time. Suffice to note that certain restrictions to freedom of expression and of association that in countries of the Northwest were considered quite acceptable not long ago, nowadays would be deemed clearly undemocratic.18 Having this in mind, how demanding should the criteria we apply to newly emerged democracies (and to older ones outside of the Northwest) be? Should we apply the criteria presently prevalent in the latter region, or the criteria used in their past, or make in each case a reasoned assessment of these freedoms in terms of the likelihood of effectuation of fair elections? It seems to me that the latter view is the more apposite, but it sends us back squarely to the issue of the undecidability of the respective freedoms, further complicated by their historical variability. I conclude that there is, and there will always be, disagreement in academia and, indeed, in practical politics, concerning where to trace the external and the internal boundaries of the freedoms that surround, and make likely, fair elections. This is not a flaw of the attempts to list these freedoms. They are very important, per se and because they are crucial factors—necessary conditions—for the existence of a regime centered on fair elections, and as such are worth listing. It is intuitively obvious, and it can be empirically 16 Even though they are rather gross operationalisms of the underlying concepts, rankings of countries in terms of attributes of the kind I have been discussing, such as the ones proposed by Freedom House, are widely used even if of course they do not escape the problems of external and internal boundaries I note in the main text. Furthermore, other actors use different criteria. For example, many governments use very lenient criteria (basically, the holding of national elections, without looking closely at whether or not they have been fair) for certifying as “democratic” other countries, especially if the latter have friendly governments. Other actors, in contrast, demand effective and widespread respect of a broad series of human rights, irrespective of their presumable influence on the existence of fair elections. 17 For discussion of undecidability, albeit from a theoretical perspective different from the one I adopt here, see Mouffe 1993 and 2000. 18 For instance, Holmes and Sunstein (1999: 104) note that “What freedom of speech means for contemporary American jurisprudence is not what it meant fifty or one hundred years ago . . . rights are continually expanding and contracting.”

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established, that the lack of some of these freedoms (say, of expression, association, or movement) eliminates the likelihood of fair elections. On the other hand, the inductive character of these listings, and the related problem of their external and internal boundaries, show their limitations as theoretical statements, per se and in their inter-subjective persuasiveness. These limitations make this matter undecidable, in the sense above noted; consequently, instead of ignoring such limitations, or artificially trying to fix the external and internal boundaries of these freedoms, a more fruitful avenue of enquiry consists of thematizing the reasons and implications of this conundrum.19 I believe, and will further argue in the Conclusion, that this problem should be seen as an indication of a great virtue of democracy: its open-ended character, that among other things means that the “proper” drawing of the external and internal boundaries of these and other freedoms is a matter of perpetual political deliberation and contention. Although there is much terrain ahead, with the preceding discussion of the regime and its concomitants we have reached a point that is important in itself and because it places us, so to speak, on a promontory from which other paths to be pursued can be discerned. I believe it is convenient to include in the definition of political democracy three kinds of components: one, fair elections; two, the positive, participatory rights of voting and eventually trying to be elected, jointly with taking part in activities related to the exercise of those rights; and third, despite their undecidability, a set of freedoms that surround and are necessary supports for the likelihood of such elections and their related participatory rights. This criterion is not minimalist a` la Schumpeter. It disagrees with focusing exclusively on elections and leaving implicit their institutionalization and decisiveness as well as their related rights and surrounding freedoms. On the other hand, the criterion I am proposing is limited, in that it disagrees with including a highly detailed, and ultimately inexhaustible and analytically barren, listing of potentially relevant freedoms. This criterion I propose is restricted also in the sense that it refuses to introduce prescriptive notions into the definition of a democratic regime.20 Although we have yet to see that other factors, not located at the level of the regime, must also be included for reaching an adequate characterization of political democracy, I believe that the criterion I have proposed is useful for 19 Albeit in a different context (concepts of equality), Sen (1993: 33–4) puts it well: “If an underlying idea has an essential ambiguity, a precise formulation of that idea must try to capture the ambiguity rather than hide or eliminate it” (italics in the original). 20 I emphasize this term because, as we shall see, this does not entail excluding normative dimensions and respective theories from the analysis of democracy more broadly conceived. Here I am only concerned with reaching an analytically convenient definition of part of this matter, a democratic regime, or a political democracy.

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several reasons. The first being conceptual and empirical, because it allows us to generate a set of cases that are different from the varied set of countries that are not democracies, whether because they are various sorts of openly authoritarian regimes, or because they hold elections but not ones that are fair.21 The second reason, also conceptual and empirical, is that once such a set is generated, the way is opened for the analysis and comparison of similarities and differences among subsets of cases of democratic regimes. The third reason derives from both practical and normative reasons: the existence of this kind of regime, in spite of flaws that may remain, entails a huge difference in relation to authoritarian rule. At the very least, the availability of these rights and freedoms generates the possibility of using them as areas of protection and empowerment for the expansion or achievement of other rights. A fourth reason is that it was in demand for this type of regime and its freedoms that throughout history people have instigated and taken innumerable risks. In addition to sometimes mythical hopes about other goods that the achievement of fair elections and political freedoms would bring about, the demand for those elections and freedoms was at the core of the great mobilizations that have often preceded or accompanied the inauguration of democracy.22 The fifth and final reason also derives from empirical and normative implications. Survey data as well as impressionistic observation suggest that, whatever additional meanings they attach to the term “democracy,” most people in most places include some basic political rights and freedoms, jointly with elections that, in their view, are reasonably fair. It may well be for this reason that in common parlance, in the language of politicians and journalists, as well as according to some scholarly definitions, the existence of those attributes suffices for calling a country democratic. This entails such a positive normative connotation that it is a synecdoche; i.e. naming the larger part, a country, by an attribute of one of its components, its regime.

21 However, some cases fall into a gray zone between these two sets. This fact has given rise to the literature on “electoral authoritarianism” or “hybrid regimes” I mention in the Introduction. Yet proper clarification of the definition of a democratic regime should minimize this problem or at least make clear in each case its more problematic aspects. 22 The crisp conclusion that Klingeman and Hofferbert (1998: 23) reach in their study of survey data on post-communist countries also applies elsewhere: “It was not for groceries that people in Central and Eastern Europe took to the streets in 1989 and 1991. It was for freedom.” Welzel and Inglehart 1999, on the basis of another study of a broad set of survey data, conclude that “liberty aspirations” are central for a majority of respondents in new democracies; see, concurrently, Rose and Mishler 1996.

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1 . 4. AG ENCY A N D T H E IN S T IT UT IO NA LIZED WAG ER We saw earlier that in a democratic regime each voter has at least six voting options. But this is not the only right assigned by political democracy to its citizens. Each one also has the right to try to get elected. That she may want or not want to exercise this right is irrelevant in relation to the fact that, by having the right to be elected, each citizen carries with her the potential authority and enormous responsibility of participating in governmental decisions that are binding over the territory of a state, including the eventual application, or the threat of application, of physical coercion. The carriers of these rights and of the freedoms I discussed in the preceding section are political citizens. The important point of these rights and freedoms is that they define the citizen as an agent. In the present context, this definition is a legal one; those rights and freedoms are assigned by the legal system of a political democracy to all citizens in the territory of a state, with exceptions that are themselves legally defined. This assignment pertains to all citizens, irrespective of their social condition and “ascriptive” characteristics other than age and nationality. In a political democracy, agency entails the presumption of capacity to make choices that are deemed sufficiently reasonable as to have significant consequences, in terms of the aggregation of votes and of the incumbency of government and/or state roles. Individuals may not exercise these rights and freedoms, yet the legal system of a democratic regime construes them all as equally capable of effectuating them and their correlated obligations. The legally-backed and universalistic23 attribution of agency effected by political democracy is a crucial fact, by itself and because of its multiple reverberations, to which I will return throughout this book. Perhaps because this attribution of agency has become so commonplace in the Northwestern countries, we tend to forget what an extraordinary and recent achievement it is—a theme that will occupy us in the following chapter. Seen from this angle, political democracy is not the result of some kind of consensus, or individual choice, or social contract, or deliberative process. Democracy is the result of an institutionalized wager. By such a wager I mean that the legal system assigns to every individual manifold freedoms, rights, and obligations, including the ones entailed by the democratic regime. Individuals do not choose these freedoms, rights, and obligations; at their birth (and in some senses, before) they find themselves immersed in a web of 23 Although this may dubbed a “bounded universalism.” As we will see in Chapter 4 when discussing the nation and its referents, it is limited to those who share the attribute of citizenship, not to all adult inhabitants.

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social relations, including many sanctioned and backed by the legal system of the state. The attribution of those rights, freedoms, and obligations is universalistic:24 everyone is expected to accept that, barring exceptions detailed by the legal system, all others enjoy the same political rights, freedoms, and obligations that each one has. What is the wager? It is that, in a democracy, every ego must accept that every citizen may participate—by voting and eventually by being elected—in the act, and fair elections that determine who will govern them for some time. It is an institutionalized wager because it is imposed on every ego independently of his will: ego must accept it even if he believes that it is a serious mistake or risk to allow certain individuals to vote and be elected. Ego has no option but to take the chance that the “wrong” individuals and parties are chosen as the outcome of fair elections. This is the wager: ego has to take that risk25 because it is entailed, and backed, by the legal system of a political democracy. Ego may dislike or even strongly object to the fact that alter is assigned the same freedoms and rights of voting and being elected that she has—yet for ego this is not a matter of choice; it is a legally institutionalized fact. By birth or nationalization, and in many respects by sheer residence in a country, both ego and alter acquire rights and obligations toward all others and the state. Thus, we have found another characteristic specific to contemporary political democracy: it is the only type of regime that is the result of an institutionalized, universalistic, and inclusive wager. All other regimes, whether they include elections or not, place some kind of restriction on this wager or suppress it entirely. New or old, beyond their founding moment democratic regimes are the result of this wager, and are profoundly imprinted by this fact. I insist: the wager is institutionalized; it is a legally enacted and backed institution to which everyone is expected to acquiesce within the territory delimited by a state that contains a democratic regime. By itself, this may not support the moral obligation to accept a democratic regime and obey its incumbents,26 but it is nonetheless a demanding expectation, textured in the legal system and backed by the power of the state.

24 In addition to the qualification introduced in footnote 23, this assertion merits another: even though it holds for political freedoms and rights, it does not in terms of civil and welfare legislation enacted having in view various kinds of disadvantaged sectors. I discuss this matter in Chapter 2. 25 In the following chapter we shall see, however, that in the Northwestern countries this risk was tempered by various institutional arrangements. 26 But it is a good starting point; I leave the discussion of the normative justification of democracy for the Conclusion.

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This expectation defines broad but operationally important parameters for individual rationality: ignoring, curtailing, or denying the rights and freedoms that the wager assigns to alter normally generates negative consequences for the perpetrator. In ego’s interactions with alter, at least in the sphere contoured by fair elections, it is in principle in his interest to acknowledge and respect alter’s rights. This interest may be reinforced by altruistic or collectively oriented reasons, but in itself entails the legally-backed obligation to recognize others as citizens, i.e. carriers of rights and freedoms identical to ego’s. In Chapter 7 we will see that, under a propitious social context, this is the nutshell of dialogical networks that nourish a public sphere, as it consists of mutual recognitions based on the universalistic assignment of certain rights, freedoms, and obligations to individuals legally construed as citizens/agents. Notice we have reached two points through the preceding discussion. One is a definition of political citizenship as the individual correlate of a democratic regime. It consists of Individuals who carry the legal assignment of the rights (and correlated obligations) entailed by the wager; i.e., to participate in fair elections by freely voting and being elected and taking part in cognate participatory activities; they are also the carriers of some surrounding freedoms (such as expression, association, access to free information, and free movement) necessary for the effectuation of those rights. This definition allows me to complement the generic one of regime I offered above. A democratic regime, in addition to the already noted characteristics of all regimes, is one in which Political citizens have the legally sanctioned and backed right to participate in fair elections that decide, by means of competition among political parties or equivalent organizations, who will occupy most top governmental positions at (at least) the national level, try if they so wish to be elected to those positions, and enjoy, during and between such elections, some surrounding political freedoms, also legally sanctioned and backed. The status of political citizenship is a mix. It is ascriptive in that (excepting naturalization) it pertains to individuals by the sheer fact of their being born in a given territory (ius solis) or lineage (ius sanguinis). It is potentially enabling, in that individuals may want to use those rights and freedoms for undertaking a variety of actions. It is universalistically bounded, in that within the jurisdiction delimited by a state, it is assigned in the same terms to all adults who meet the nationality criterion. It is a formal status, as it results from legal rules that in their content, enactment, and adjudication satisfy criteria that are specified, in turn, by other legal rules. Finally, political

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citizenship is public. By this I mean, first, that it is the result of laws that must satisfy carefully spelled out requisites of publicity and, second, that the rights, freedoms, and obligations it assigns to every ego imply, and legally demand, mutual recognitions among all individuals, irrespective of their social position, as carriers of such rights, freedoms, and obligations.

1 . 5 . A FI R S T E N C OU N T E R W I TH TH E S TAT E An important point to note is that with the preceding analysis we have gone beyond the regime and run into the state, in three senses: one, as a territorial entity; second, as a legal system that enacts and backs the assignment of the corresponding rights, freedoms, and obligations;27 and, third, as at least28 the set of state bureaucracies that acts in basic consonance with the implementation of those rights, freedoms, and obligations. The democratic regime, the wager and political citizenship presuppose each other, and they together presuppose the state.

1. 6 . A PA RT IA L C ON C LU S I ON In this chapter we have traversed a rather straight road. In so doing I proposed a definition of a democratic regime, or a political democracy, as well as some criteria that I find useful for characterizing such a regime. We have looked, as it were, at the bare anatomy of democracy; of course the actual functioning of democracies is populated not only by individual citizens, but also by collective entities such as political parties, unions, social movements, interest associations, ethnicities, corporations, various bureaucracies, and others. For this reason as well as because of various undecidabilities we have to continue exploring, no definition of democracy will be forever or completely peaceful. Democracy has a “floating meaning,”29 but this does not authorize a 27 Of course, these assertions entail that I consider the legal system as part of the state; I substantiate this point in Chapters 3 and 5. 28 By “at least” I want to indicate that other sectors of the state bureaucracy may be unrelated to, or not act in consonance with this kind of elections; I return to this matter in Chapter 5 in the context of a discussion of the estado de derecho. 29 As asserted by Whitehead 1997 and 2002 in his discussion of this matter. That democracy is the archetypical “essentially contested concept” (Gallie 1956) is fruitfully elaborated by Collier et al. 2006; see also Newey 2001.

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conceptual Babel. Rather, it demands proposing definitions that, by being as clear as possible, allow academic and political discourses to be aware of what is the referent being defined by each one and, on that basis, to articulate the disagreements that undecidables and diverging values unavoidably originate. In proposing my definitions and related criteria I left behind several interesting places; since they give a fuller meaning of the journey we have just started, we will return to them as we travel onwards. As a first step in this direction, in the next chapter I deal with the emergence and evolution of the idea of agency, the concept I have emphasized that crucially underlies democracy.

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Agency: Origins, Concomitants, and Expansion While analyzing the democratic regime we found two components that are indispensable for its existence but that drove us beyond it. This is a seriously complicating factor, which may persuade us to keep theories within the rather safe haven of the regime itself; but it is also interesting, because it will guide us in our excursions to aspects of democracy other than those contoured by the regime. The first component is located at the micro-level: it is the individual unit, the microfoundation of democracy tout court, not the voter but the citizen and, underlying him/her, the agent that grounds and gives substance to citizenship. This topic will occupy us in the present chapter, although we return to and further develop it later. The other component, located at the macro-level, is the state and its various faces and dimensions, with which we will begin dealing in Chapter 3. I start with some general considerations about agency (Section 2.1), followed by a look at the history of its conception, emphasizing its origins in the sphere of civil rights, understood in the sense of the European law, as rights that pertain basically—but not exclusively—to the “private” sphere (2.2). Then I move to examine how this conception was expanded to political rights (2.3). Along this path we find the origins and basic founding principles of one of the great currents that have converged into contemporary democracy, liberalism, not just as a political doctrine but also as embodied in constitutionally-based regimes (2.4). Then I explore the expansion of social rights (2.5) and conclude with a brief remit to the proble´matique of the state.

2.1. SOME BACKGROUND 1 In the Northwest for a long time many social sectors were excluded from voting, let alone being elected: peasants, blue-collar workers, domestic workers (and, in 1 I am a political scientist persuaded of the crucial importance of history for understanding and eventually explaining political phenomena. Here and in the two following chapters

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general, non-property-owners and poorly educated individuals), blacks in the United States, indigenous peoples in the latter country as well as in many others, and, indeed, women. Only during the twentieth century, and in several countries in relation to women as late as after the Second World War, did political rights become inclusive.2 On the other hand, at various times, in some cases before the countries of the Northwest did it, countries in the South and the East adopted, often abruptly, inclusive suffrage. But the many variations of “tutelary” or “fac¸ade” democracies that there emerged, and of course openly authoritarian regimes, meant the factual denial of the democratic wager. Everywhere the history of democracy is the history of the reluctant acceptance of the wager. The past of the Northwest is punctuated by the catastrophic predictions,3 and sometimes the violent resistance,4 of privileged classes and sectors opposing the extension of political rights and freedoms to other, “undeserving” or “untrustworthy” ones. In other latitudes, by means sometimes even more violent and comprehensively exclusionary, this same extension has also been repeatedly resisted. What were the arguments for this refusal? Typically these were lack of autonomy and responsibility of those who claimed such rights—in other words, denial of their agency. Only some individuals (whether they were highly educated and/or property owners, or a theocracy, or a political vanguard, or a military junta) were deemed to have the requisite moral and cognitive capabilities for participating in political life. Only they were seen as sufficiently invested (in terms of education, property, revolutionary work, or patriotic designs) to have adequate knowledge and motivation for responsibly making collectively binding decisions. Of course, revolutionary vanguards, military juntas, and the like generated authoritarian regimes, while in the Northwest the privileged generated, in most cases, oligarchic, non-inclusive democratic regimes for themselves and political exclusion for the rest. It was only after numerous and hard struggles that

I undertake historical excursions during which, since I rely on secondary sources that often make their points better than I could, I transcribe what these sources say, at times more extensively than is usual in books such as the present one. 2 In spite of rather frequent assertions to the contrary, not even in terms of universal male suffrage is the United States an exception to this. The early existence of this suffrage at the federal level was made purely nominal by the severe restrictions imposed on African Americans and indigenous peoples (including the elimination of many of the latter), especially but not exclusively in the South. Due to this, I agree with authors who date the achievement in this country of inclusive political democracy to the Second War World or as late as the 1960s, in the aftermath of the civil rights movement; see especially King 2005 and 2007, Gonza´lez and King 2004, and Griffin 1996 (I return to this topic in Chapter 4). 3 See on these resistances Hirschman 1991, Hermet 1983, and Rosanvallon 1992. 4 See Goldstein 1983.

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the formerly excluded were accepted as political citizens; only then did the democratic wager became inclusive. I wish now to recall that, as I argued in the Introduction and discussed in Chapter 1, there is a central idea underlying democracy and, consequently, the argument of this book: human agency. This idea involves complicated philosophical, moral, and psychological issues.5 For the purpose of the present text, however, it suffices to assert that an agent is a being endowed with practical reason and moral discernment; i.e. she uses her cognitive and motivational capabilities to make choices that are in principle reasonable in terms of her situation and goals, and of which, barring conclusive proof to the contrary, she is deemed to be the best judge.6 This capacity makes the agent a moral one, in that normally she will feel, and will be construed by relevant others as a purposive being responsible for her choices and in principle the direct consequences that ensue from these choices. Of course, the literatures that deal from various angles with this topic offer various qualifications to those which I have stated. Although this is important, it does not prevent us from advancing further; the next step consists of looking at how this conception of agency emerged.

2 . 2 . T H E L E G A L , P R E - P O L I T I C A L C O N S TRU C T I O N OF AGENCY The idea of agency I have sketched here became the core of the legal systems of the Northwestern countries well before democracy. This idea is not only a moral one; in the preceding chapter I mentioned that in democracy it is legally sanctioned and backed. Very importantly, this fact entails the recognition of an agent as a legal person, a carrier of subjective rights7 who, according also to legally-defined criteria, can validly claim against others and the state, including by accessing the courts. This is the very basic right to have a legal 5

I found particularly useful works that, albeit from various perspectives, pay attention to the linkages between the moral and philosophical issues entailed by agency, on one hand, and legal and political theory, on the other, such as Cooke 1999, Dahl 1989, Garzo´n Valde´s 1993b and 2000, Gewirth 1978 and 1996, Guariglia 1992, Habermas 1996, Held 1987, Ho¨sle 2004, Raz 1986 and 1994, Taylor 1985. 6 As Dahl (1989: 108) puts it, “The burden of proof [of lack of autonomy, the term this author uses, O’D] would always lie with a claim to an exception, and no exception would be admissible, either morally or legally, in the absence of a very compelling showing.” Of course the original, forceful assertion of this point was made by J. S. Mill 1985 [1859]. 7 On this concept and its entailed legal personality see especially Ferrajoli (1995: 37 and passim), and Habermas (1996: 28 and passim) (this author comments that this attribution entails the legal recognition of the ability of the individual “to rule himself ”).

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“personality”; it underlies all other rights, including those reviewed in the preceding chapter—these rights could not be possibly assigned to individuals lacking this attribute. Fuller (1964: 162) aptly puts the basic reason for this assignment: “To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man [sic] is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults.”8 This right to legal personality, one that underlies all others as their basic support, should be considered a constitutive right of democracy.

2 . 3 . E M E RG E N C E A N D EVO LUT I O N O F AG E N C Y The institutionalized, legally-backed recognition of agency took a long process. It had its forerunners in the great creationist religions—Judaism, Christianity, and Islam—according to which we are all equally sons/daughters of God, responsible to Him for what we do and omit in our lives. From a different angle it was pursued and elaborated by Cicero and the Stoics, especially their conceptions of a cosmopolis in which the principles of natural law had been imprinted on all human beings. But these were not subjective rights;9 their initial elaboration in this direction received crucial contributions later on, from the work on legal theory done in the medieval Church and universities. In this process the “reception” of Roman law around the late eleventh century was very important, especially as compiled in the great Corpus Juris Civilis of Byzantium emperor Justinian. It was started by jurists at the University of Bologna and their influence on other European centers of learning, as well as by Church’s canonists.10 These changes were closely related to what some historians consider a true renaissance that took place in Southern Europe in the twelfth century. Black (1988: 588–9) considers this period as the one in which took place the “rise of individualism in Europe,” expressed in: “[A] profound change in social 8 Honneth (2008: 114) concomitantly remarks that “[E]very community based on modern law is founded on the assumption of the moral accountability of all its members.” In turn, expanding specifically to the political sphere Waldron (1998: 341) comments that “The identification of someone as a bearer of rights expresses a measure of confidence in that person’s moral capacities—in particular his capacity to think responsibly about the relation between his interests and the interests of others.” 9 Tierney (1997: 46) comments that “[S]toic philosophers knew of a natural moral law, accessible to human reason, but they did not derive from it a doctrine of natural rights” (emphasis added). For a useful overview of the Stoics’ conceptions see Horowitz 1974. 10 On these matters see Berman 1993, Gordley 1991, Oakley 1984, Stein 1999, Strayer 1970, Tierney 1982 and 1997, Tuck 1979, and Villey 1968.

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attitudes . . . [including] greater individual self-awareness, and a more selfconscious relationship between individual and community.”11 This was further expressed in the nominalism of William of Ockam, and at the end of this period was given highly influential formulation by the sixteenth-century Catholic scholastics of the “Salamantine school,” Francisco de Vitoria and successors, and by the Northern European “natural rights school” led by Protestant Hugo Grotius and his own successors; these authors took a decisive step when daring to argue that their views on natural rights did not need to be grounded on religious revelation but could be found in the rational examination of human nature. But it was a contemporary of Grotius, Thomas Hobbes, who took the even more decisive step of offering a thoroughly individualistic and secular definition of those rights: “The right of nature, which writers commonly call juris naturalis, is the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature.”12 These were, of course, some of the first clear movements toward modernity.13 They entailed the formulation of a new “ontology of the individual,”14 which meant the emergence of “the idea of autonomy, understood as the ability to impose obligations upon oneself, not as an effect of the moral law but as the foundation for all morals”; Haakonssen (1991: 21), states, as a consequence, During the 17th and 18th centuries established conceptions of morality as obedience came to be increasingly contested by emerging conceptions of morality as self-governance . . . centered on the belief that all normal individuals are equally able to live together in a morality of self- governance.

At this point I must change the direction of my discussion. The topics I have discussed upto here deal with issues of—broadly defined—moral philosophy. Yet the emerging view of the human being as a carrier of natural—subjective—rights that could be identified and justified by properly exercised reason, were also intimately linked to legal issues. As in his great book on legal history Berman (1993: 35) asserts, as early as “[T]he 12th century the writings of the canonists were permeated by doctrines based on individual 11 For an interesting argument linking these processes to the first spurt of the emergence of capitalism see Mielants 2007. 12 Hobbes 1991: 1.14, 84:51. 13 The converging influence exercised on these conceptions during this period by the scientific ideas of Bacon, Galileo, Descartes and especially Newton, bears more than the passing reference that I can make here. After noting the movement against Aristotelianism that the new analytical and experimental scientific methods entailed, von Wright (1993: 177) comments that as a consequence “Nature is object, man is subject and agent” (italics in the original). See also Cassirer 1951, and Gay 1966a and 1966b. 14 As said on page 5 of an important work on these matters, Taylor 1989; see also Taylor 2007 and Schneewind 1998.

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intention and individual will in areas like the law of tort, the law of contracts, the law of marriage.” Concurrently, Pennington (1993: 288) comments that “[A] doctrine of individual and inalienable rights first surfaced in Western legal thought in the 12th and 13th centuries. . . . These norms were building blocks upon which were constructed rights of property, obligations, marriage, and due process.”15 It was in this period that reached mature elaboration what came to be called the “will (or consensus) theory of contract,” and the view of agency it entailed; as Gordley (1991: 7–8) puts it, The late scholastics and the natural law lawyers had recognized as fundamental the principle that contracts are entered into by the will or consent of the parties . . . [In contrast to Aristotelian/Thomist conceptions, O’D] making a contract was regarded simply as an act of will, not as an exercise of a moral virtue. The parties were bound simply to what they willed, not to obligations that followed from the essence or nature of the contract.16

Perhaps I should add that the generalized acceptance of this quite revolutionary view about contracts is agreed among legal historians in relation to civil law (i.e. Continental European) countries, but there is disagreement concerning the common law countries. However, Hamburger (1989: 257), who defends the view that this influence was also strongly felt in England (albeit somewhat later, in the seventeenth century), transcribes from a book written in 1603 by William Fulbecke a passage that nicely summarizes this theory: “The chief ground of contracts is consent so that the persons which contract must be able to consent, so consent groweth out of knowledge and from a man’s free will, directly by sufficient understanding. . . .” Irrespective of these differences, it is clear that an individual who can enter into the rights and obligations entailed by a contract is not only presupposed to have the practical reason that makes him a free willing being, but also holds the legal personality that grounds the validity and actionability of such rights and obligations—not a thing, or a slave, or serf, or minor, or, at those times, a woman17—but a legally defined, backed and enabled being. 15 I already noted the importance of the “recovery” of Roman law. As Berman (1993: 245) argues, this law “had achieved a very high level of sophistication in the field of contracts.” From a different theoretical perspective Anderson 1974 agrees, adding that Roman law conceptions of free disposition of land were also fundamental. 16 See, concurrently Berman 1993, Lieberman 1998, and van Caenegem 1992. According to these authors, the “virtues” exercised in the making and implementation of a contract were basically of liberality (generosity), commutative justice (giving to each his due part by exchanging things of equal value), and/or of fidelity (keeping promises). 17 In the Prussian and Napoleonic codes and many that imitated them, as well as in AngloSaxon common law, and in most countries well into the nineteenth century, women were almost completely legally equivalent to minors and mentally disabled persons; see among others MacKinnon 1989, Tigar and Levy 2000, and Walby 1994 and 1996.

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It is important to notice that these early formulations of agency were confined to relations in the private realm—they referred to contracts, to the disposal of property, to (male dominated) family law, and to various commercial transactions. They were grounded on Roman law, which was “[A] highly individualistic law. It encouraged freedom of contract without any recognition of the inequality of bargaining power.”18 It took several centuries until the concepts of this kind of law, and with them the ideas of agency they contained, were transferred to the political sphere. As Bobbio (1987: 11–12) put it, Public law as a systematic body of norms came into existence later than private law; actually only in the era of the formation of the modern state. . . . The two fundamental categories of European public law . . . were derived from private law: the dominium, understood as the patrimonial power of the monarch over the territory of the state, and . . . the imperium which stands as the power of command over subjects.

As already noted, it was in the late sixteenth century that a highly elaborated theory of agency grounded in subjective rights was proposed by Hobbes and Grotius. Later on, this same view of agency permeated the worldview of the Enlightenment; in spite of their differences on other matters, it was accepted and further elaborated by Locke, Rousseau, Kant, Pufendorf, Barbeyrac, and others. In addition, and crucially for the present discussion, this view was inserted at the core of legal theory by the work of medieval jurists, and later on by continental authors such as Domat and Pothier, whose work also influenced Blackstone, Bentham, and other jurists in the common law tradition, as well as, and even more so, the great French and Prussian codifications of the first half of the nineteenth century, that in turn shaped the legal systems of many other countries in the Northwest and beyond.19 I noted that these views of individual agency and its corollary of the “will theory of contract” run counter to Aristotelian/Thomist conceptions of contract. More generally, those views ran against the latter’s conception of the law, which in its organicistic outline nowadays is still influential in some non-Northwestern countries.20 For this conception the law is about the just ordering of the polis, within which every part is assigned its proper, proportional, place. The maxim suum cuique jus tribuere expresses this architectonic conception of justice, and of the law as its instrument: there are no individual/ subjective rights, but rights and duties that are assigned, for the sake of the

18

Stein 1999: 122. On these influences see Gordley 1991 and Lieberman 1998. 20 For discussion of these organicistic conceptions with reference to Latin America, see Stepan 1978. 19

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just ordering of the whole, to each of the social categories that compose an organically conceived society.21 The emergence of the idea of agency and its subjective rights meant a Copernican inversion: the law does not any longer conceive its mission as properly assigning the parts of the societal whole, nor consequently aims at effecting overall social justice. Instead, as the nominalism of Ockam and later on of Hobbes asserted, the law refers to what they deemed to be the only truly existing entities, individuals. The mission of the laws is to enact and protect the potestas of individuals, their capacity to exercise their will in spheres not prohibited by those laws. The individual, construed as a carrier of subjective rights, is the object and purpose of the law22—in this view, if eventually a good social order results, it is (as later on, congenially with this view, would be asserted in relation to the market by Mandeville, Adam Smith, and others) a by-product of the aggregate consequences of the effectiveness of subjective rights. Even though the preceding reflections may look rather remote from a theory of contemporary democracy, this is not the case. To show this, there is nothing better than invoking Max Weber and the colossal effort he undertook to explain the emergence and unique characteristics of capitalism in the Northwest. We know that Weber did not assign privileged explanatory status to any of the dimensions he used. His view is relevant in the present context because he paid close attention to legal factors, seeing them as acting in a counterpoint fashion with the emergence of states and capitalism. Although we will look at this matter in more detail in following chapters, here I note that Weber made the important point that the emergence of what he called formal-rational law (a repository, I hasten to add, of subjective rights) cannot be attributed mainly to the demands of the bourgeoisie since, as he pointed out, a modern, fully capitalist bourgeoisie did not exist at the onset of that process.23 Rather, this emergence must be accounted for by the centuries’ legal work I have sketched, the role of the legal professionals who took up this work and, especially, the interests of the main employers of these professionals:

21 As St Thomas Aquinas wrote: “Since every part bears the same relation to its whole as the imperfect to the perfect, and since one man is a part of that perfect whole which is the community, it follows that the law must have as its proper object the well-being of the whole community. . . . Law, strictly understood, has as its first and principal object the ordering of the common good” (quoted in Kelly 1992: 136). Contrast with Hobbes’s definition transcribed above. 22 After mentioning Aristotelianism, referring to Hobbes’s and Spinoza’s conception of rights, Kriegel (1995: 39) comments that “by contrast [these authors think] of rights as the attributes of an individual, a manifestation of his potentialities in the state of nature. In lieu of a realist and objectivist theory of law, we are confronted with a subjectivist and naturalist view.” 23 Weber (1978: 847 and passim).

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rulers engaged in state-making and consequently interested in improving their credit and tax revenues, as well as in subjecting to their control the population of the territories they aimed to rule. For these purposes it was crucial to eliminate organically conceived status orders (especially feudal ones and autonomous cities, as well as the broad jurisdiction that canon law claimed), and with them Aristotelian/Thomist views of the law. Those rulers found in the universalizing character of subjective rights an effective conduit for the assertion of their command over all individuals in their territory. The process of legal construction of individual agency was anything but linear and peaceful, and unfolded in a mutually dynamizing relationship with another process. This was the full emergence of capitalism. As both Weber and Marx recalled, in most of the Northwest the mutual reinforcements of state-formation, development of capitalism, and expansion of formal-rational law had, among other consequences, the abolition of serfdom and other kinds of indenture, and the consequent availability of “free” labor.24 This freedom is the subjective right to enter into contracts, whereby individuals dispossessed of means of production sell their labor force. The worker of capitalist social relations is an early legal person, carrier of the rights (few, initially) and the obligations that he, as fits an individual legally construed as an agent, has “freely” agreed with the employer. This is also true of criminal responsibilities, which ceased to be collectively attributed to the clan, the family, or the village, and were transferred, as again fitted agency, to individuals.25 At this point I wish to emphasize that the construction of subjective rights, including those entailed by the labor contract, were the result of the processes I have sketched, not of liberalism or political democracy, both of which emerged well after this construction had become, in the Northwest, widely 24 Steinfeld (1991: 5) discussing indentured labor argues that: “Less and less did these legal forms of the employment relationship rest on antiquated medieval assumptions that labor was a resource of the community. More and more they rested on a particular legal construction of the idea that individuals owned themselves and were free to dispose of their energies in the market place.” But this only happened in the Northwestern countries and, even among them, with the important exception of slavery in the South of the United States. Later on, in other parts of the world, state-making and the expansion of capitalism did not have these characteristics and consequences. 25 Lacey (2001: 255) asking “Where the conditions of [criminal] responsibility are to be sought?” responds that “They reside . . . in fundamental aspects of human agency: in capacities for knowledge, awareness, reflection, deliberation, and choice, which justify holding people responsible for their conduct.” This author adds that this was based on (ibid. 251): “The idea of the self-determining moral agent, equipped with distinctive cognitive and volitional capacities of understanding and self-control, and of a universal human personhood underpinned by these features. . . .” The acceptance of this view, and consequently demands for rationalized criminal law and procedures was another important theme of modernity, transposed to legislation by the influence of Bentham, Montesquieu, Voltaire and, especially, Beccaria.

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diffused and highly elaborated legal doctrines.26 The same is true of the construction of property as individual, exclusive, and marketable.27 Looking at this story from a convergent angle, we may note that, as states and capitalism generated territorially bound markets, they further added, before political democracy came to the fore, a dense texture of subjective rights.28

2. 4. DE R IVATIO N S : PO L IT ICA L RI G HTS During the processes just sketched, many began to argue that the legal construction of an agent carrier of subjective rights, as it omitted the actual conditions of their exercise and excluded other rights, backed and greatly helped to reproduce extremely unequal relationships between capitalists and workers. The result of contractual freedom, then, is in the first place the opening of the opportunity to use, by clever utilization of property ownership in the market, these resources without legal restraints as means for the achievement of power over others. The parties interested in power in the market thus are also interested in such a legal order . . . coercion is exercised to a considerable extent by the private owners of the means of production and acquisition, to whom the law guarantees their property . . . In the labor market, it is left to the “free” discretion of the parties to accept the conditions imposed by those who are economically stronger by virtue of the legal guarantee of their property.29

But this construction contained explosive corollaries. First, if ego is attributed legally enacted agency in spheres of life that are, for him and in the aggregate for the whole society, extremely important, a question that follows is: why should this attribution be denied in other spheres and, at any event, who should have the authority to decide it? 26 Tilly (1997: 87) notes that during the early modern period in several parts of Western Europe “Strict wage labor displaced the arrangements of indenture, apprenticeship, slavery, and household incorporation under which most subordinate workers had previously labored.” 27 Janoski (1998: 200) says that “[In the seventeenth and eighteenth centuries] universalistic legal rights for men’s claims to property are protected by courts well before political and social rights.” 28 As Alford and Friedland (1988: 240) note, “The rise of the state progressively constituted the individual as an abstract legal subject with rights—specified independently of social structure— before the law, responsible for his or her actions.” Rosanvallon (1992: 107–11) concurs: “The history of the emergence of the individual may be understood as part of the history of civil rights.” 29 The author of these lines is not Marx, but Weber (1978, 730–1), who adds that “Freedom of contract and propositions regarding legitimate property derived therefrom obviously belong to the natural law of groups interested in market transactions, i.e. those interested in the ultimate appropriation of the means of production”; ibid. 871.

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The answer to this question is the history of the further expansion of subjective rights, including the right of suffrage up to its present inclusiveness. This history was written by manifold conflicts at the end of which, after having died in their thousands in war for their respective countries30 and exchanged revolution for the welfare state,31 the classes dangereux were finally admitted as participants in the democratic wager—they gained political citizenship. A second issue proved no less explosive, even if until today it is much less settled than the previous one: if agency entails choice, which capabilities and actual options may be consistent with each individual’s condition as an agent? While these issues were being posed, other important processes took place. One, which we will examine in the next chapter, is that the map of Western Europe and North America was quite firmly drawn as a consequence of successful, and often cruel, state-making. Another was the further expansion of rights in the civil sphere, in the double sense that already recognized rights and duties were further specified and that new ones were added. These processes meant that, when sometime in the nineteenth century most countries of the Northwest adopted non-inclusive democracy, an overwhelming part of their male population had been assigned a series of subjective rights that regulated numerous parts of their lives.32 These were not— not yet—the political rights of the democratic wager. They were civil rights, subjective rights that pertained to the “private” sphere. They have been summed-up as “civil citizenship” by Marshall and, more recently, as “bourgeois rights” by Habermas.33 I have discussed this matter, including my 30 See Bendix 1964, Levi 1997 and 1999, and Skocpol 1992. As Tilly (1998: 67) notes, “Advocates of the expanded electorate argued specifically that men who could fight for the patrie should also be able to vote for its governors.” 31 This generalization ignores important country variations that are not central to my present discussion. But in all cases it is worth noting the vigorous educational efforts aimed at making these sectors “deserving citizens.” These efforts had in the long run important democratizing consequences, but for examples of their initially defensive bent see Rosanvallon 1992. It is also of interest to note the great attention that Condorcet, Locke, Rousseau, Adam Smith, and other members of the Enlightenment looked to education as a way to make possible agency in the political and economic spheres. 32 As Tilly (1994: 7) says in relation to France, “With the Revolution, virtually all French people acquired access to state courts . . . rights expanded, in company with obligations to attend school, serve in the military, reply to censuses, pay individually-assessed taxes, and fulfill other now-standard duties of citizens.” This also became true, somewhat later or earlier, in the other Northwestern countries. 33 Marshall (1992 [1950]: 10–11) defined them as “The rights necessary for individual freedom—liberty of person, freedom of speech, thought and faith, the right to own property and to conclude valid contracts, and right to justice.” As this author added, those rights entail “A claim to be admitted to a share in the social heritage, which in turn means a claim to be accepted as full members of society, that is, as citizens” (ibid. 6). On Habermas’s formulation see 1996: 28 and passim.

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reservations about the developmental typologies proposed by these authors, in previous work.34 Here I stress that, when full political inclusion became an issue, in the Northwestern countries there already existed a rich repertoire of legally enacted and elaborated criteria concerning the attribution of agency in the private sphere to a vast (male) number of individuals.35 Obviously, the scope of these rights was, by our contemporary standards, limited. But it is also true that, by this process of expanding assignment of subjective rights, the ground was prepared for the extension of concepts, legislation, jurisprudence, and ideologies originating in civil citizenship to political and social citizenship; Held (1995: 67) makes this point well: [Civil citizenship] was a significant step . . . in the development of political rights; for when the individual agent was recognized as an autonomous person—that is, as a person able to reflect upon and take decisions about the basic conditions of life—it was easier to think of that person as, in principle, capable of political responsibility.

2 . 5. L IB E R A L I S M A N D M O D E R N C ON S T I TU T I O NA L I S M At this point in time we can only artificially separate liberalism as a political doctrine from the history I have sketched. Once again, Hobbes made the decisive turn; his contractualism posited that the power of the sovereign came, as it were, from below him, and that this attribution was made by individuals, not by status orders, tradition, theocrats, or whatever. Surely, Hobbes’s sovereign would not subject himself to a constitution, and was not at all a democrat. But shortly thereafter Grotius and, more fully and memorably, Locke, added another crucial component of liberalism: that those individuals were carriers of rights that not only predated the sovereign but that also gave them the agency with which they could properly agree to their social contract; this in turn explicitly meant that the basic responsibility of the political power thus constituted was to safeguard those rights. The strength and impact of this formulation largely springs from the fact that many of the freedoms that from its inception liberalism seeks to protect 34 O’Donnell 2004, although I hasten to add that this criticism does not invalidate the analytical usefulness of these concepts; see also Nun 2000 and Turner 1992. 35 Regh (1996: pp. xxi–xxii) says that “In the social-contract tradition going back to Thomas Hobbes . . . the legal constitution of society on the basis of individual rights appeared as a plausible extension of the contract relationship that governed the bourgeois economy. The economic institutions of contract and ownership already entailed a view of legal persons as free and equal, and thus as bearers of equal rights”; see, concurrently, Kronman 1983: 144.

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are the same subjective rights that previously had detailed elaboration and legal implantation as civil ones. Liberalism expanded these rights and freedoms but, consistently with its own premises, it defined them as individual ones.36 It was as advocates of these kinds of rights, too, that liberals demanded and obtained constitutions—whatever else they do, constitutions protect freedoms and subjective rights.37 The main reason for erecting the protections of liberalism was fear of the consequences of the absolutist power of kings. But the first liberals were also aware of other dangers. One, the anarchy and violence of European religious and civil wars that set the experiential background of Hobbes’s and Locke’s work. Two, the dangers of democracy, as portrayed in the purported excesses perpetrated in the antiquity in some Greek cities and, later on, during the period of terror of the French Revolution, were exercised in the name of reason and the citoyen. We should also remember that the framers of the United States’ Constitution wanted to build a republic, not a democracy; that after the French Revolution and Napoleon, the dominant voice in France was Benjamin Constant, who proclaimed the (liberal) “freedoms of the modern,” against the manifold risks of the “freedoms of the ancient”; that Fustel de Coulanges influenced generations of European intellectuals with his description of La Cite´ Antique (1984 [1864]) as a setting where freedom was in permanent danger; and that as he grew older Tocqueville saw the democratic equality he had observed in the United States as ever more threatening to his cherished values; and even J. S. Mill wanted to curb the extension of the suffrage—as well as innumerable other manifestations of a liberalism that perceived in the mobs of antiquity (and in Rousseau and the Jacobins) a danger no less serious, and ultimately not different, from the anarchy that Hobbes had tried to exorcise.38 These were the constitutions that first institutionalized the wager, albeit on the basis of a restricted citizenship. These developments meant that, when in the Northwest the inclusive wager was finally accepted, at least some members of the ruling classes and sectors could feel that this decision was not a jump into the void. By then governments were already constrained by highly elaborate subjective rights, some of which were enshrined as constitutional rules. These were, in addition, representative systems, which cancelled the fear of direct democracy 36 Thus, as Flathman (1996: 24) comments, the First Amendment of the United States’ constitution “[I]mplicitly posits for a self-enacting, individuating, self-overcoming, or free spirited individuals.” The same is true of the French Declaration of the Universal Rights of Man. Further on we will see that this is also true of various recent international covenants and declarations. 37 Here I cannot discuss other (power-enabling) aspects of law and constitutions; see further on this topic Chapter 5. 38 On the bad reputation that democracy had for many centuries see the valuable book of Dunn 2005.

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and mob rule. Other institutional safeguards that also have roots in the past (although their history differs from the one I told here) had been already adopted or were gaining wide currency, especially the imposition of time limits on government officials.39 As a result of this “process of constitutionalization” the relation between rulers and ruled “became to be considered a legal relationship . . . [that is to say one] defined and regulated by, and subordinated to knowable legal rules.”40 These institutional arrangements converged to shape the core institutional principle of political liberalism: government must be limited, because it refers to carriers of rights enacted and backed by the very legal system that the state and the government must themselves obey. As a result of this long and complex historical trajectory, contemporary democracy is based on the idea of agency as legally sanctioned and backed; furthermore, as institutionalized by the inclusive wager, those individuals are citizens, and are the source and justification of the powers of states and their governments.41 These are, I note again, elaborations in the political sphere of the early subjective rights of agency that I have traced. In this sense, it is no exaggeration to assert that contemporary democratic legislation has meant the constitutionalization of natural rights42—the agent that was invented a long time ago in moral and legal theories now inhabits, more fully rounded in terms of the rights of which she is the carrier, the core of modern democratic constitutions. As Ferrajoli (1995: 859) says: “The great innovation from which the estado de derecho was born was the positivization and constitutionalization of these rights.” This in turn entails correlative duties of the state to at least safeguard those rights; consequently, as this author points out (ibid. 862), “The constitutional declaration of the rights of the citizens entails the constitutional declaration of the duties of the state” (my translation). This is, in a nutshell, the constitutional framework of political democracy. The fact that in the Northwest it was in place when the inclusive wager was adopted, mitigated the perceived risks of this decision. As Sartori (1987: 389) notes, “It is certainly not fortuitous that democracy came back to life as a good polity (after millennia of condemnations) in the wake of liberalism”; in 39 For discussion of these institutional aspects and its historical currents, see Manin 1995 and Novaro 2000. 40 Tarello 1976: 143. 41 Jones (1994: 88) puts it well: “Political authority is authority wielded over, and on behalf of human individuals with rights.” 42 Habermas (1988: 230) says it succinctly: “The moral principles of natural law have become positive law in modern constitutional rules.” See concurrently Bobbio 1989, Ferrajoli 1995, and Garzo´n Valde´s 1993b. Surely the ultimate legal distillation of this constitutionalization is the German Basic Law, which in article 1, part 1 establishes “The respect and the protection of the dignity of man as the guiding principle of all state action”; furthermore, these rights are declared to be “prior to and irrespective of their official recognition by the state.”

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the same vein, Dunn (1992: 248) comments that by these processes democracy was made “friendly” to the state (and, I add, to capitalism). We see, then, that the wager, in addition to being inclusive is, at least in countries where constitutionalism effectively holds, a tempered wager: the entrenchment of subjective rights (including the constitutionalization of many, the time limitations of incumbency at the top of the state, the obligation of government and state officials to subject themselves to the law, and the institutionalization of fair elections diminish the stakes of every election. Consequently, as Bobbio (1984: 6) says, “The liberal state is the antecedent, not only historical but also legal, of the democratic state.”43 From the previous assertions it follows that when the inclusive wager was accepted, even if initially on a restricted citizenship basis, a momentous change had occurred. Until then the legitimacy of many types of political rule purported to be “descending” to their subjects from some kind of religious, dynastic, traditional or military origin and justification; in turn, when as in feudalism legitimating appeals were made by the consent or acceptance of the ruled, they referred to organistically and/or collectively conceived corporations or status orders. Instead, in these respects the liberal and partially democratized state meant a revolution of huge consequences, in that it claimed to be an “ascending one,”44 emerging from and justified by the free decisions not just of individuals, but of individuals construed as legally equal agents. As Bendix (1964: 94) notes, “The French revolution [and the United States’ independence, O’D] brought about a fundamental change in the conception of representation: the basic unit was no longer the household, the property, or the corporation, but the individual citizen.” As this happened and the democratic wager was universalized, modern democratic regimes were born, and with them the extraordinary innovation of attributing to the whole citizenry the origin and justification of the powers and authority of the state and their governments. So came into being one of the great riddles of modernity, which Furet (1998: 65) refers to as [A] single question . . . that crops up continuously and is never truly solved. . . . That question, which was posed very early on by all the great Western thinkers from Hobbes to Rousseau and from Hegel to Tocqueville, was as follows: What kind of society should we form if we think of ourselves as autonomous individuals?45 43 Ferrajoli (1995: 858–9) further notes that “[T]he modern state was historically born as an estado de derecho, well before than as a democratic state” (my translation). 44 For elaboration of these ascending and descending metaphors see Bobbio 1987: 89 and passim. 45 As Eisenstadt (2000: 5) also comments, in those times “The premises on which the social, ontological, and political order were based, and the legitimation of that order, were no longer

46

Agency: Origins, Concomitants, and Expansion 2.6. DE RIVATIONS: FURTHER CIVIL RIGHTS A ND N EW S OC I A L R I G H T S

I hope it is by now clear that in their origin, their conception of agency, and in their legal definition, political rights are part and parcel of civil rights; these are the historical inaugurations and are actually nowadays the most frequent areas of exercise of freedoms such as expression, association, and movement. Above I noted that an issue raised by the presumption of agency refers to whom and to what degree the consequent rights are to be extended. In the Northwest, in addition to the expansion of political rights, the answer to that issue branched out in two directions. One focused on civil rights, especially but not exclusively, in the—broadly defined—area of contract. A series of legal and jurisprudential criteria were then elaborated for voiding, redressing, or preventing situations where there exists a “manifestly disproportionate”46 relationship among the parties and/or where one of the parties may not be construed—because of duress, fraud, mental incapacity, etc.—as having lent autonomous consent to the contract.47 These tutelary measures rest on a basic criterion of fairness, which is a corollary of the idea of agency: agents are supposed to relate to each other as such agents, i.e. without suffering degrees of inequality or coercion, or for whatever reason lack of sufficient options or capabilities, that cancel their autonomy and/or the availability of a reasonable range of choice. Through these legal constructions, the fairness requirement of creating a minimally level playing field among agents was textured (albeit partially)48 into the legal systems of the Northwestern countries. Consequently, taken for granted. An intensive reflexivity developed around the basic ontological premises of structures of social and political authority.” 46 As stated in section 138 of the German Civil Code. 47 The evolution of the theory and practice of contractual relations is another long and complex story. See Dagger (1997: 21 and passim) for the evolution from the strictly individualistic “will theory” of contract that I have discussed until now, to a more “relational” view. Wightman 1995 discusses the related issue of the emergence of the concept of “duress” as overriding the presumption of valid consent and thus the validity of the contract. See also Feinberg (1986: 249–56) for discussion of the consequences of “unequal bargaining positions”; for further details see Atiya 1979, Habermas 1996, van Caenegem 1992, and Trebilcock 1993. For seminal discussions of this legal evolution see Durkheim 1984 [1893] (approvingly, elaborating his influential argument on the “non contractual elements of contract”), and Weber 1978 (quite critically). 48 Because as Marshall (1992 [1950]: 27) put it, “Civil rights gave legal powers whose use was drastically curtailed by class prejudice and lack of economic opportunity”; yet these changes were not inconsequential, because “What matters [of the extension of these rights, O’D] is that there is a general enrichment of the concrete substance of civilized life, a general reduction of risk and insecurity” (ibid. 33).

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to the prior legal imprinting of universalistic conceptions of agency, there were added various substantive legislative and jurisprudential considerations of fairness; these included lifting or at least alleviating the stern prohibitions against unionization entailed by individualistic, obviously pro-capitalist legislation such as the French law Le Chapelier (1791), the Prussian Civil Code (1794), and the various British and United States common law prohibitions against (workers’) “combinations.” As Bobbio (1992: 69–70) comments, these changes and additions contradicted the earlier legal constructions of a generic, abstract individual, and began to take into consideration “the diversity of their various social status, on the basis of several criteria of differentiation . . . that do not allow equal treatment or protection . . . [this was a process] of multiplication by specification” (my translation). The second direction in which the issue of agency and its relationship to options branched out was in the emergence and development of welfare legislation, where the “multiplication of rights by specification” became even more notable. Here again the value of fairness owed to agency stood out, albeit usually focused on social categories, not on individuals as in civil law. Through another long and convoluted process that I cannot detail here, the newly accepted participants in the wager exchanged their acceptance of political democracy— including the tempering of the wager by the safeguards I noted above—for political citizenship and a share in the benefits of the welfare state.49 Furthermore, the new demands and welfare policies broadened the state, not only in legal terms but also by the numerous state institutions that were created and/or expanded for dealing with the new actors and issues.50 During these processes became quite manifest and widespread “[A]n aggressive and more practical humanism, which intended to redraw the boundary between natural and manmade evils, and to bring many more of the sources of human suffering and frustration into the political domain.”51 Consequently, as Bendix (1964: 77) said:

49 Perhaps I should clarify that the initial motivation of some welfare policies was preempting popular challenges or attaining rather narrowly defined sectorial benefits. But these initiatives would not have existed had they not appealed or responded to widespread and intense feelings about the unfairness of sharp inequalities and of severe risks along the life course and in the workplace. As, in the paradigmatic case of social welfare initiation from above, Bismarck put it, “If there had been no Social Democracy and if many people had not feared it, even the modest progress which we have now achieved in the field of social reform would not have been made”; quoted in Goldstein 1983: 346. 50 As discussing these matters Levi (1999: 127) put it, “What is particularly interesting is how the standard of fairness that emerges produces a demand for institutions designed to enforce this standard.” 51 Hampshire 2000: 83. Actually, this author imputes this emergence solely to Marxism, but other currents such as other socialist ones as well as left liberal, social-Christian and syndicalism were also influential.

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“The juxtaposition of legal equality and social and economic inequalities inspired the great political debates which accompany the nation-building of nineteenth century Europe. These debates turn on the types and degrees of inequality or insecurity that should be considered intolerable and the methods that should be used to alleviate them.” These political processes were demands for the recognition of agency, and in all forceful moral demands also appear for the consequent recognition of the rights and dignity of their actors; in various works Honneth has correctly stressed the crucial moral component of these demands: “[M]otives for social resistance and rebellion are formed in the context of moral experiences stemming from the violation of deeply rooted expectations regarding recognition” (2008: 163; see also Honneth 1995 and 2007). This led to struggles for further rights, and newly gained rights gave both a platform and a renewed horizon for further struggles.52 This is why, summarizing his valuable studies on this matter, Tilly (1998: 55) asserts that “Rights [are] historical products, outcomes of struggle,” and adds (1999: 415–17) that “[C]itizenship in general emerged as a product of contention, often violent contention. . . . As a consequence of its historical origins and continuous negotiation, existing citizenship is always incomplete and uneven.”53 Thus, in the midst of not a few defeats and reversions, whether by demands and threats, or as a consequence of pre-emptive decisions by rulers, various social rights were acquired in the Northwest, albeit in different sequences, timing, and configurations—these differences are illustrated by the important variations nowadays observable in the welfare systems of these countries. These advances did not achieve at all the ideal of social and economic equality, but gave to many, at least in most of the Northwest, a basic floor of capabilities that allow them, when and if they wish, to exert their agency in the political realm.

52 As Rothstein (1998: 2) asserts, “[S]ocial welfare programs . . . are not just instrumental arrangements; they are also, and in a high degree, expressions of definite moral conceptions.” For his part, Touraine (1994: 101–2) adds that these struggles were held not only for specific demands but also for “defending general principles, such as freedom and justice.” 53 About these struggles, see also Bendix 1964, Rueschemer, Huber Stephens, and Stephens 1993, Marshall 1950, Turner 1992, and Przeworski and Sprague 1988; for a general comparative approach see Epp 1998. In reference to Latin America and some of its characteristics see Berins Collier 1999, Dagnino et al. 2006, Huber, Rueschemeyer, and Stephens 1997, and Eckstein and Wickham-Crowley 2002 and 2003; with a focus on regimes and the working class, see the comprehensive work of Collier and Berins Collier 2002.

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2.7. TOWARD A MACRO-LEVEL OF ANALYSIS The first chapter focused on a middle-level of analysis, the regime. The present one has moved at the micro-level of agency and some its concomitants. Now we need to focus on more macro-level themes, the state (Chapter 3), the nation (Chapter 4), and the law (Chapter 5).

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The State: Definition, Dimensions, and Historical Emergence In this chapter and the two that follow we move into a macro-level of analysis. The topic is the state, a multifaceted entity that requires a two-pronged method of study: the first, to disaggregate it in aspects or dimensions that may be useful for its theoretical and empirical study and, second, afterwards, to trace its unity as such a phenomenon by means of elements that the first step has generated. In the present chapter I propose a definition of the state and discuss some of the constitutive dimensions that are entailed (Section 3.1). Since the state is a species of the broader genus of complex associations, I engage in an analytical exercise about general characteristics of such associations, hoping that it may highlight, for the benefit of the present and further chapters, commonalities and specific differences between the latter and the state (3.2). The state, at least the modern state as defined here, is an historical product, which first emerged in some countries of the Northwest; the history of these processes is important not only per se (3.3) but also because it has influenced, both by diffusion and by sheer exercise of power by Northwestern countries, state formation in the rest of the world. Finally, I briefly discuss some important Northwestern cases that have departed in significant ways from the modal pattern of this region (3.4).

3.1. O N T H E D E F I N I T I O N O F T H E S TAT E I begin defining what I mean by the state: A territorially based association, consisting of sets of institutions and social relations (most of them sanctioned and backed by the legal system of that state), that normally penetrates and controls the territory and the inhabitants it delimits. Those institutions claim a monopoly in the legitimate authorization of the use of physical coercion, and normally have, as ultimate resource for implementing the decisions they make, supremacy in the control of the

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means of coercion over the population and the territory that the state delimits. The reader has surely noticed the Weberian lineage of this definition. However, it bears commenting that it specifies and interprets Weber’s definition in a somewhat important point. Despite oft quoted passages in which this author asserts that the state “successfully upholds the claim to the monopoly of the legitimate use of physical force” (Weber 1978: 54, among several similar formulations, italics in the original), I believe that an interpretation that is theoretically more fruitful and better adjusted to the whole of Weber’s conceptions is that what the state claims is the monopoly in the legitimate authorization (i.e. legally-validated) of the (direct or indirect) use of physical force, and only as a consequence of this it usually, but in fact not necessarily, also claims the monopoly in the legitimate use of that force.1 I am not engaging in the rather useless exercise of trying to determine what Weber “really” meant; after close reading of the relevant passages I believe that in this matter he was ambiguous, if not inconsistent; thus, the passages I transcribe below point quite clearly in the direction of my interpretation and run against the more common ones. [O]nly certain political communities, viz. the ‘states’ are considered to be capable of ‘legitimizing’, by virtue of mandate or permission, the exercise of physical coercion by any other community. For the purpose of threatening and exercising such coercion, the fully matured political community has developed a system of casuistic rules to which that particular ‘legitimacy’ is imputed. This system of rules constitutes the ‘legal order’, and the political community is regarded as its sole normal creator . . . Weber 1978: 904. (Single quotation marks are Weber’s.) [T]he modern concept of the state as the ultimate source of every kind of legitimacy of the use of physical force . . . [and] the rationalization of the rules of its application which has come to culminate in the concept of the legitimate legal order. Ibid. 909.

Thus I believe that a better interpretation is that the degree to which a state monopolizes the, legitimate or not but actual, use of physical force is a contingent factor, to be empirically determined; actually, this Weber does in numerous parts of his works. Instead, every state claims simply to monopolize the legitimate authorization, directly or indirectly and successfully or not, of the use of means of physical coercion, or force. As Weber himself makes 1 A remarkable term paper written for a graduate seminar I taught at the University of Notre Dame made me aware of this difference; see Ma´rquez 2006.

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clear, among others in the passages just quoted, in the modern state the only possible source of validity, the legitimation of that authorization, are its legal rules. This is not just a scholastic exercise. It bears directly on the constitutive importance of the legal system of the state, a dimension that is deeply intertwined with, but analytically distinct from what its bureaucracies do and do not do, including the application of physical coercion; in Chapters 5 and 6, I examine this matter further. Another characteristic of my definition is that it incorporates the topic of power, in terms of the great concentration of power (more precisely, powers)2 entailed by the emergence and functioning of a state. The state both processes and condenses powers emerging from society (local, international, and transnational) and generates its own, as a result of which it returns to society various kind of policies, as well as sometimes highly relevant omissions. The various weights of the social condensations and of the state’s concentrations of powers, across various state agencies and policy areas, is a complex matter that has to be empirically gauged and about which the present level of analysis here has little to say.3 From the definition, I have proposed results that the state may be usefully disaggregated in at least four dimensions. The first and most obvious, is the state as a set of bureaucracies. These bureaucracies, often complex organizations, have legally-assigned responsibilities for the protection or attainment of some presumed aspect of the common good. I will refer to this dimension and the degree to which those responsibilities are fulfilled, as the efficacy of the state. The state is also a legal system, a network of legally sanctioned and backed rules that penetrate and co-determine manifold social relations, both in society and within state bureaucracies. Nowadays, especially in democracies and as a result of the processes we examined in the preceding chapter, the 2

As Weber (1994: 311) put it, “Just like the political associations which preceded it historically, the state is a relationship of rule [Hersschaft, O’D] by human beings over human beings.” For apt general discussions of Weber’s views on the state see Axtman 1990 and Boucock 2000. On his part, Bourdieu 1994 and 1999 usefully added that the state is also a big concentration of symbolic power; with a focus on Latin America see on this matter Loveman 2005 and Oszlak 2006. 3 Some of the literature, especially the neo-Marxist as formulated by Poulantzas 1970 and 1978, dealt with this matter at a high level of generality, by means of the concept of the “relative autonomy” of the state; for interesting discussion of the Marxist literature on the state see Thwaites Rey 2007. Yet despite yielding valuable insights this approach has not being capable of going beyond some rather vacuous generalizations; for discussion see Przeworski 1990. On its part, the related concept of “embedded autonomy” proposed by Evans 1995 has been very helpful in terms of studies of political economy and economic development; on the literature about the “developmental state” in addition to Evans’s op. cit. see Kohli 2004, Rueschemeyer and Evans 1985, and Woo-Cumings 1999.

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connection between state bureaucracies and the legal system is very close: the former are supposed to act according to capacities and responsibilities that are legally assigned to them by pertinent authorities—the contemporary state mostly expresses itself in the language of law. I will refer to this aspect as the degree of effectiveness of the legal system of the state. Together, state bureaucracies and law are supposed to generate, for the inhabitants of their territory, the greater common good of the general ordering and foreseeable future effectiveness of social relations. By doing this the state (more precisely, the officials authorized to decide and speak on its behalf) claims to take care of the welfare and guarantee the historical continuity of the population of the respective territory. This claimed contribution leads to a third dimension of the state, that of being, or attempting to be, a focus of collective identity. Typically, state officials, especially those who occupy positions at its institutional apex, claim that their state is a state-for-thenation or (without discussing at this moment details that will occupy us in the following chapter) a state-for-the-people, or the citizenry. With such discourses, echoed in innumerable ways, the apex of the state promotes the generalized recognition of an “us” that expresses a distinctive collective identity that, it is usually asserted, should prevail over other, more differentiated identities and interests emerging from various social cleavages. This dimension I will refer to as the degree of credibility of the state. There is still a fourth dimension. The state is a filter that tries to regulate how opened, or closed, the various spaces and boundaries are that mediate between the inside and the outside of its territory, market, and population. Some of those boundaries are the ones that demarcate that population and, under a democratic regime, its electorate. Other spaces are less sharply contoured; some of them are jealously guarded; some are more or less effectively controlled by various types of policies; others never had barriers; and some have lost them, overwhelmed by the winds of globalization. Yet every state attempts, or claims to attempt, to establish various filters for the welfare of its population and the economic actors located in its territory. This is the filtering dimension of the state. There is another aspect of the state, but in its valence it is not, as the former ones, a historically contingent dimension; it is an institutionally attributed characteristic. I refer to the fact that a state is a state when other states in the international system, as well as, in recent times, the United Nations and other international organizations, recognize it as such, quite independently of the valence it has acquired in the previously mentioned dimensions.4 4 This is an aspect usually discussed under the heading of “sovereignty”; see Krasner 1988 and, for more contemporary aspects, Cohen 2008a.

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I emphasize that these four dimensions should not be attributed a priori to a state; they are tendencies that—perhaps fortunately—no state has fully materialized, and which some states are far from having reasonably achieved. In respects to the state as a set of bureaucracies, their actions may deviate from even attempting to fulfill the responsibilities that have been assigned to them; the legal system may exhibit per se and/or implement serious flaws, and/or it may not extend to various social relations or regions; in relation to the state as a focus of collective identity, its credibility may not be plausible for large parts of its population; and the state may have largely abdicated its condition as a filter oriented to the welfare of its population. These cases we may interpret as indications of low state capacities that, as we will see further on, seriously impinge, among other things, on the functioning and quality of a democratic regime. At any event, these dimensions of the state are historically contingent; consequently the degree of their achievement must be empirically assessed.5 Now I note a point that deserves elaboration: the organizational dimension of the state is for the most part bureaucratically ordered. By bureaucratic I mean hierarchical social relationships of command and obedience that are prescribed by formal and explicit rules. This hierarchical character is inherent to most social relations entailed by the state apparatus. This seems to me true in spite of the attempts of the “New Public Management” and network “governance” approaches to eliminate or at least greatly reduce the hierarchical character of state institutions, by introducing concepts of neo-classical market economics and private management. These approaches enjoyed wide influence in the 1990s; in Latin America this was due in no small part to the influence of the World Bank and other international financial institutions; but nowadays this influence has declined under the increasing discovery of its many negative consequences, both in terms of the efficacy and coordination of state institutions and of the unequalizing effects of their reduction of citizens to the mere category of customers. This has led to the “rediscovery of bureaucracy” (Olsen 2006) as an indispensable component of many state institutions and tasks, irrespective of reforms that have tended, and in some cases succeeded, to make those institutions more flexible and responsive to the populations they attend to. Nowadays it seems clear that the reforms that those moves have propitiated have succeeded (or failed) in varying degrees depending on policy areas, countries, and state organization features. Pending an adequate evaluation of these innovations, see the authoritative discussion of those two “models” and the “Weberian” one (i.e. bureaucratically organized) by Olsen 2008; this author concludes that, in addition to the

5

See in this respect the pioneering article on “stateness” of Nettl 1968.

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continued importance of bureaucracy, there is no theoretical or empirical basis for generally asserting the superiority of either model.6 Yet it is a fact of modern life that the predominantly hierarchical character of this dimension of the state is in itself inegalitarian, both for those who work in these bureaucracies and often for those who interact with them. In general, this character increases when it operates in relation to groups and individuals that are discriminated against and/or are submitted to sharply unequalitarian relations in society. I am persuaded that the encounters between citizens and state bureaucracies are an important aspect of the quality of democracy (and of political life in general), well beyond the dimensions entailed by the regime itself.7 At this point we need other definitions. By government I mean The locations at the apex of the state apparatus which are accessed through the regime and allow their incumbents to make, or authorize other state officials to make, decisions which are normally issued as legal rules binding over the population and the territory delimited by a state.8 Now I specify the characteristics of a state of a country that contains a democratic regime, to be added to the more general ones specified above: 1. It is the part of the legal system that enacts and backs the fair elections, participatory rights and the surrounding freedoms of the regime; 2. the set of bureaucracies that implement and protect said rights and freedoms; and 3. the unit that delimits the electorate—the political citizens—of the regime. Characteristics 1 and 2 are entailed by the definition of a democratic regime; characteristic 3 is a necessary condition for the existence of this regime.9 Yet, obviously, the system of representation is far from exhausted by the channels of access offered by the democratic regime. Other mediations of interests, powers, and identities influence the decisions and omissions of the government and the state institutions. Economic national and transnational 6

See also Olsen 2004, 2005, and 2006. For similar conclusions on the basis of the experience of the United States see Ketll 2009. See also Dussauge Laguna 2009, Heredia and Schneider 2003, Martı´nez Vilches 2007, and Kjaer (2004: 233), who stresses the “continued importance of state and hierarchy.” See also the recent critical review, focused on Latin America, of Dussauge Laguna 2009. 7 I discuss this matter in O’Donnell 2004 as well as in chapter 6 of the present book. For an innovative empirical exploration see Vargas Cullel and Gutie´rrez Saxe 2001, and for comments about this relationship see Ippolito 2004. 8 These rules are not necessarily mandatory on a universal basis. The increasing use of laws addressed to specific sectors or constituencies requires this caveat; however, all laws are supposed to be valid over the whole territory of the given state. 9 This is a first approximation to this concept; I elaborate on it in Chapter 5, where I discuss the legal dimension of the state.

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interests, international institutions of various kinds, the members of state bureaucracies and governing officials’ own interests and views, and popular demands and social movements, among others, complexly influence those decisions and omissions.10 Despite the great empirical difficulties entailed, this makes it necessary to ask to what extent do the channels of representation provided by the democratic regime weigh in the decisions and omissions of government and state? In this respect, we should take into account that it is from the democratic regime that springs the main source of authority of public policies (and, in the aggregate, of the credibility of state and government); that is, the claim to echo the preferences and aspirations of the citizenry sensibly. Other policy inputs, public or concealed, legal or illegal, even if they may allegedly result in beneficial public policies, lack this properly democratic ex ante legitimation. The result, in all democracies, is that the regime is only part of the decisional processes and the inputs of influence to which government and state are subject. The foregoing presents important practical questions: To what degree (and in what periods and policy areas) do the inputs resulting from the regime weigh over other influences? What is in each case and time the strategic selectivity11 of the state institutions, and in what policy areas is it more pronounced? To what extent does the authority that is usually invoked in the sense of somehow representing the aspirations expressed through the democratic regime correspond to reality? Under what circumstances would policies that deviate from those aspirations and/or from promises made during the electoral process be acceptable?12 These questions cannot be answered here, in what amounts to a discussion rooted in general terms. But it can be surmised that only in strongly negative cases can the questions be answered with sufficient approximation anyway. Unfortunately, these cases have been lacking in the recent democratic experience of part of Latin America. During this experience, the regime inputs have been weak and discontinuous, captured by interests that sometimes it is hard to claim that they pursue some kind of common good. These facts have not helped the 10 This fact, documented in policy studies, has been captured by the concept of “partial regimes” of Schmitter 1992, and in the reflections on “mixed regimes” offered by Strasser, especially 1990 and 1999; for a concurrent perspective see Mazzuca 2002 and 2007. Bobbio 1984 includes this fact among the “unfulfilled promises of democracy.” 11 The term under quotation marks belongs to Jessop (2002: 40), who defines it as “the ways in which the state considered as a social ensemble has a specific, differential impact on the ability of various social forces to pursue particular interests and strategies in specific spatio-temporal contexts through their access to and/or control over given state capacities—capacities that always depend for their effectiveness on links to forces and powers that exist and operate beyond the state’s formal boundaries.” 12 For—inconclusive—discussion of this matter see Manin et al. 1999.

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efficacy, effectiveness, and credibility of these states and their governments; furthermore, these same facts sometimes have evinced a state that in some countries almost completely failed to operate as a reasonably beneficial filter. The preceding reflections serve as an indication of a central concern of the present text: that, in Latin America, democratically elected governments and, more generally, states that contain a democratic regime, have very little power for actually ruling on many important matters or, indeed, for making advances in the democratization and welfare of their countries.13

3 . 2. A N A NA LY T I C A L D I G R E S S I O N O N C O M P L E X A S S O C I AT I O N S With the exception of truly exceptional cases,14 every authority of an association claims that its decisions, as well as its very existence, is for the good of its members. The authorities base this claim on the expectation of being regularly obeyed. When they do this, they create divisions between their association and its members on one side, and all those who do not belong to the former, on the other—us and them. Some associations, which may be loosely called “democratic,” add that the claim of the authorities to be obeyed stems from the fact that its members have freely decided that they be such authorities. Associations of some complexity become organizations, endowed with legal personality, buildings, statutes, offices, seals, printed forms, and the like. Thus a basic pattern of social differentiation is usually generated, among those who devote themselves to matters that presumably are of general interest, and those who do not. As a consequence a center emerges, from which some individuals claim to have the right to speak in the name of the association, and to invoke its common good as the basis and motive of their decisions. The existence of such a center is normally consistent with my interests as a member of the association; I have this interest irrespective of whether I participated in its creation, or voluntarily entered a pre-existing one, or I am compelled to membership, such as in a state or, in some countries, a union. I wish to enjoy my freedom and the goods the association provides—practice sports in a club, ensure that my rights as a worker are well 13 Here I paraphrase an observation of Malloy 1985. Of course, the obstacles to further democratization do not result exclusively from the weakness of the state. 14 Actually, I can only think of concentration camps.

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represented by a union, share in goods our gang has stolen, or be the citizen of a state that functions reasonably well. In those cases I want the existence of such an association and its center not just for today; ceteris paribus I want it for as long as I foresee myself as its member. Furthermore, even though I may not care for everyone, if I do for some (say, members of my family or some fellow citizens) I also wish the association to extend over an undetermined length of time. Hence, in many situations it is in our interest to accept the existence of spheres of decision-making that take care of two basic tasks. One, to furnish the common goods the association is supposed to provide, and solve some collective actions problems. Second, to make decisions that are binding to all members—otherwise free-riding would be hard to prevent and the association would tend to dissolve. These rational desires lead to creating, entering into, or accepting associations that exercise various powers over us. In and with them, whether they are democratic or authoritarian, beneficial or harmful, we continually produce and reproduce, actively or passively, hierarchical social relations. When the associations become minimally complex, they generate leadership roles specialized in making collectively binding decisions; normally we want the authorities to have enough power to make such decisions, whether it is all of us meeting in an assembly, or elected representatives, or individuals chosen by lot, or a single individual. Usually we also wish that the authorities of the association be enabled to speak for it, internally and externally—internally, because the very meaning of the association would fail if its authorities could not appeal to its members with the expectation of being obeyed, especially in cases when some members disagree with a given decision. In these cases, the authorities typically argue that they are acting for the common good of the whole association, not only for the members who agree with their decision. Externally, the authorities address those who are not members of the association, claiming to represent, or embody, the “us” formed by its members. When the leaders of a union, a political party or a government address others, they typically claim to represent their whole association, not a mere aggregate or majority of its members. In both cases, internally and externally, the authorities exhibit an elaborate self-image of the association; the official version of the collective entity, the “us” they claim to represent. As Ho¨sle (1998: 90) asserts, “Every social unit has a descriptive concept of itself; the more complex units also have a normative one” (italics in the original). In large and complex associations, in which faceto-face encounters with everyone are impossible, the normative concept that the center formulates about itself and the association usually becomes the

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main medium by which we recognize each other as part of an “us.” The attempts at developing a system of collective recognition lead to tracing the boundaries of the association—“us” and “them,” by means of various markers of belonging: national IDs, documents of appointment and authorization, the colors of a sports club, the tattoos of a juvenile group, and many others. The overall result is power. That some individuals have the recognized right to decide and speak for the association has important consequences. As a member, I am interested in what is said and who says it in the name of the association, particularly because in large and complex ones the leadership roles become highly specialized. Furthermore, as Weber noted, the incumbents of these roles develop an interest in normalizing—basically, by means of formal rules—their own authority, thus increasing the probability that their decisions are regularly accepted and implemented. This generates internal rules, handbooks of procedure, personnel regulations, censuses, maps, statutes, constitutions, and the like.15 The consequence of these impulses toward formalization is the bureaucratization and legalization of the association: unions, professional associations, universities, corporations, sport clubs and, indeed, countries establish rules and hierarchically ordered institutions formally charged with contributing to the achievement of the purported goals of the association and the normalization of its functioning. The bureaucratization of an association is concomitant with its legalization: various kinds of rules are enacted with the purpose of regulating the relationships among its leaders and members. In addition, as the association becomes more complex, the leaders develop a strong interest in controlling the behavior of its officials, as the principal-agent literature attests.16 When an association establishes control over a territory, it becomes the modern phenomenon we call the state. The state has a special characteristic: it dynamically externalizes its legality. In contrast to other associations, the state attempts to control manifold aspects of the workings of other associations, groups, and individuals in the territory it demarcates; the modern state penetrates, especially through its legal system, innumerable social relations. Yet these movements toward formalization do not spring from above alone. From below, as a non-leading member of the association, I have an interest that counterbalances my understanding that there exists an effective 15 On the “normalizing” efforts by states see Bourdieu 1989, 1996, and 2004, and Scott 1998; of course, the origin of these observations is Foucault, especially 1979 and 1991. 16 Before this literature Weber (1978: 264) argued that: “Every form of authority requires the existence and functioning of an administrative staff. . . . For the habit of obedience cannot be maintained without organized activity directed to application and enforcement of order . . . historical reality involves a continuous, though for the most part latent, conflict between the chiefs and their administrative staffs for appropriation and expropriation in relation to one another.”

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decision-making center. This consists of being protected from decisions that I may consider arbitrary or seriously damaging or that contradict my view of what the association should be, or exclude me from its benefits. Consequently, I tend to support the formalization of the association, as long as it includes ways of making its decisions reasonably responsive and predictable, and that eventually allow me recourse against them. This is particularly true in associations, such as the state, where exit is very costly.17 But I may only effectuate this interest if somehow I am recognized as a full member of the association; if I am, at least in some broad sense, its citizen, a carrier of rights that I can make effective against both the authorities and my fellow members of the association. Otherwise I am a subject, a being submitted to authoritarian relations through which the leaders, without my voice or consent, make decisions that are binding on me and that, in the case of the state, are backed by physical coercion. The preceding entails that, especially in complex associations, the state indeed included, we are faced with a crucial dilemma: my rational wish to belong to an association that is effective, versus my no less rational wish to be protected from decisions that in my judgment may be in some sense damaging or seriously inappropriate.18 The obvious conclusion is that the same power I want it to possess has to be somehow controlled. Yet the same problem holds for whatever solution may be adopted: since none of us can be safely presumed to be angelic altruists, the motivations of those who control the powerful, and the powers that must be attached to the former if they are to be effective controllers, are also suspect. The formula Quis custodiet ipsos custodes? summarizes this enigma.19 We see here one of the great ambivalences of social life, and one of the great challenges for politics. We constantly produce and reproduce hierarchical and often formalized social relations. We normally accept these relations because they are a condition of social life, especially in modern times; they are necessary for matters we greatly care about, such as the furnishing of

17 It is interesting to note that in Babylon, classic Greece, and early republican Rome the demands for written law came originally from the poor, who saw in it a protection against the rich and powerful; see Varga 1991. 18 In modern times, Locke 1965 [1690] was the first to sharply raise this issue and make it a centerpiece of his political views. 19 Dunn (1992: 249), who describes this issue as a “conundrum,” puts it in different but converging terms: “Democracy . . . seeks to provide, if with necessarily imperfect success, at least some degree of remedy for [the hazards derived from political power], short of simply abandoning the practice of public action. Unlike anarchism, it cleaves to the practice of public action because it views the state of nature . . . as generically far more dangerous than vertical subjection to such authority.”

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collective goods and the solution of collective action problems and, more generally, for a liveable degree of order and forseeable future effectiveness of social relations. Yet these desirable hierarchical and formalized social relations can become Frankenstein’s monsters that oppress us by empowering big and petty tyrants. These hierarchies and their rules are both constraints on and enabling conditions of our freedom. Their absence sends us to a Hobbesian state of nature, while the exaggeration of their oppressive side sends us to a Kafkaesque world. The oscillations toward these extremes have been—and still are—one of the deepest and more long-standing concerns of humanity. The definition of what is, or should be, a proper balance between these poles has varied and will continue varying across time and space, and no stable solution is ever to be expected. This is one of the reasons for the importance of democracy; but we have other topics to discuss before returning to this subject.

3 .3 . A H I S TO R I C A L OV E RV I EW O F S TAT E - M A K I N G I N T H E N O RT H W E S T The state (as above defined) is a modern phenomenon. It emerged in the Northwest after violent and protracted struggles, and after some rulers made several important achievements. One of them was the expropriation of other political associations (feudal lords, cities, and some bishoprics and religious orders) of the control of most means of physical coercion. Another achievement consisted of the expropriation, against those associations, of the means of administration. By this process, successful state-makers created bureaucracies of salaried officials subordinated to their power. Weber (1978: 315) summarizes this well: The development of the modern state is set in motion everywhere by a decision of the prince to dispossess the independent, “private” bearers of administrative power that exist alongside him, that is all those in personal possession of the means of administration and the conduct of war, the organization of finance and political deployable goods of all kinds. The whole process is a complete parallel to the development of the capitalist enterprise through the gradual expropriation of independent producers. . . . Thus in today’s “state” (and this is fundamental to concept) the “separation” of the material means of administration from the administrative staff . . . has been rigorously implemented.

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These processes entailed eliminating, or at least marginalizing, traditional kinds of administration, increasingly substituting in their own courts the noblesse de robe for the—patrimonial and hereditary—noblesse d’epee´.20 Furthemore, as Bourdieu 1996 adds, these changes meant that state-makers progressively attributed to themselves the power of appointment to state roles, while before most of the high positions were occupied ex officio by members of the nobility or clergy. At the centre of these changes there began to emerge a Rechsstaat, or Estado de Derecho. In its more formal21 original expression, in Prussia, the intention of the rulers was not at all democratic; rather, obeying the logic delineated in the preceding section, the legalization and bureaucratization of the state was a consequence of the interest of the rulers in normalizing the internal workings of that state and its relations with its principal interlocutors, the Junkers and the bourgeoisie, as well as making a legally-validated claim to monopolize the authorization of the use of physical coercion. As a consequence, Prussians continued to be political subjects—not citizens—but in many civil and commercial relations (as well as in some aspects of criminal law) adult males could expect to be treated in accordance with legal rules that were previously sanctioned, were valid over the whole territory, and were adjudicated by a supposedly impartial judiciary—this topic is of course part of the process of extension of civil rights I discussed in the preceding chapter. Still another achievement of successful state-makers was closely related to the preceding ones, but had characteristics and sequences that did not always coincide with them. I refer to the expropriation, from those same associations as well as from the Catholic Church, of the means of legality and judicial adjudication. Various kinds of customary, feudal, urban, and religious laws, many of which overlapped and conflicted in complex ways in relation to both territories and individuals, were progressively annulled, absorbed or marginalized by legislation emanating from the political center.22 This also happened 20 The classic analyses of these processes are Weber 1978, 1994, and 1995, and Hintze (in Gilbert 1975) and, for a useful overview, Poggi 1978. From different but concurrent perspectives, the works of Anderson 1974 and Elias 1973, 1974, and 1975 are relevant for these matters. For recent valuable contributions see Axtman 1990, Bourdieu 1996, 1999, and 2004, Downing 1992, Ertman 1997 and 2005, Giddens 1985, Mann 1993, Mazzuca 2001, Rabb 2006, Silberman 1993, Spruyt 1994, and Tilly 1990. Authors working within a rational choice perspective have also made interesting contributions to this topic; see especially Levi 1997 and 1999, North 1981 and 1991, and North and Weingast 1989. 21 I say “more formal” because even though this is not often recognized (except of course by British scholars), ideas of the rule of law or, perhaps more exactly, about a state ruled by law (and by law issued by a representative institution, Parliament), had gained acceptance in England since approximately the sixteenth century. 22 On the patchwork of legal jurisdictions in medieval times see Bloch 1964.

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with merchant law, the lex mercatoria, that had developed in medieval cities; the “absorption” and uniformity of this law gave great impulse to the expansion of capitalism, not only to that of the state. The state-makers, with the crucial assistance of jurists, saw this legalization as “a mean of the political power for asserting a uniform central will over the whole of the community”; Varga 1991: 334. As I have noted, this process occurred first in the sphere of private law and later in public law, which jointly “gave the means for establishing a bureaucratic state, with which the princes could countervail the independence of the feudal lords”; Stein 1991: 91.23 Since then the law would not be seen as an emanation of the community, or tradition, or religion; it was considered an expression of the will of the ruler. This legal work, part of which I referred to in the preceding chapter, began before the processes of state-making which I discuss here. But it was very important to lay the ground for the unfolding of both the state and capitalism, including the creation of what Weber (1978: 829) called “ecclesiastic corporation law.” This was a momentous invention that had roots, as much else in this matter, in imperial Roman law; it was initially elaborated by the canonists to account for the great institutional complexity and the claimed universalism of the Catholic Church. Weber argued that this was the “first institution” (anstalt) since “[I]t was here that the legal construction of public organizations as corporations had its point of departure.” It meant assigning legal personality to the Church as a whole embodied in Rome and the papacy, as well as to many of its institutions spread across Europe, all of them conceived as corporate entities distinct from its members, and consequently able to claim rights and acquire obligations other than those of the latter. The invention of corporate legal personality was rapidly claimed by cities struggling to keep or gain autonomy from princely rulers; since then “[C]ertain persons designated according to rules are regarded from the legal point of view as alone authorized to assume obligations and acquire rights for the organization”; Weber 1978: 707. Indeed, this conception was also adopted by commercial enterprises, which found it valuable for superseding various types of association that since antiquity had aimed at minimizing and sharing risks, and obtaining working capital. Of course this was immensely helpful for the expansion of capitalism; but, no less importantly, it was also the foundation of theories of the state as an abstract entity distinct from the person of the ruler that were first proposed by Hobbes and Bodin.24 23 Although it should be added to this citation that the same “countervailing” purpose held in relation to the Church and autonomized cities. See Bellomo 1995, Bourdieu 2004, Keohane 1980, and Varga 1991. 24 On this aspect of Hobbes’s thought see Skinner and Strath 2003; on Bodin’s, Keohane 1980, and Portinaro 2003.

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Actually, the processes of reformulation of legality and of expropriation of its means had another important concomitant: it also entailed dispossessing other powers of judicial authority, by locating in the state-makers’ courts the ultimate right of appeal in various kinds of judicial causes; with this it further advanced the tendency to monopolize the valid authorization of physical coercion, not just its actual exercise.25 The law that emerged from the center was jurists’ law: increasingly written in the vernacular but using technical language, and aiming at resolving the innumerable gaps and inconsistencies that the preceding legal systems evinced. This culminated, in continental Europe, in the rationalist and unifying pathos that generated the first great codifications, the Allgemeines Landrecht (1794) of Frederick of Prussia and, shortly thereafter, the Napoleonic civil and commercial codes of 1804. At least in terms of the civil rights of the male population of most of the Northwest, these processes of state-building consisted not only of a marked bureaucratization but also of an increasing homogenization of the legality of the state over its territory. Of course, these processes were contemporary, albeit complexly related, with the full emergence and expansion of capitalism. A crucial connection was furnished by the expansion of the state: it established the authority of the political center and its bureaucracy, and sanctioned legal rules that guaranteed private property (including the property of means of production), the marketability of land, and the freedom of contract (including the sale of labor force). Furthermore, the processes of state-making created a politically protected economic space,26 and (in another crucial expropriation of former authorities) a unified currency, both of which were highly instrumental in the expansion of capitalism. This, in turn, helped the other great expropriation of the times, the one emphasized by Marx, that of the direct producers from the ownership of the means of production. Of the historical processes I have summarized, and to some of which I return in the following chapters, there are some aspects I want to stress. One is that beneath the contemporary map of Europe lies a cemetery of failed states, those that were defeated and/or absorbed by the ones presently existing.27 The numerous wars that punctuate this period helped to generate bureaucratized 25 On this parallel process Strayer (1970: 61) comments that “The most typical expression of internal sovereignty was the right to give final judgment in a high court.” See also Bourdieu 1999 and Stein 1999. 26 This was closely related to the mercantilist policies that, beginning with England, were generally adopted at the time. As Weber (1995: 248) put it: “It was the [economically, O’D] closed national state that gave to capitalism its chance of development.” See also Polanyi 1967 [1943]. 27 As Tilly (1975: 15) says, “The Europe of 1500 included some five hundred more or less independent political units, the Europe of 1900 about twenty-five.”

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states interested in extending and legalizing their domination over populations that provided the soldiers and taxes indispensable for their survival.28 The second point is that these events also entailed the aggressive expansion of the legality issued by the emerging center. This was perceived by the rulers and their helpers as crucial for homogenizing the population in at least two senses: one, erasing local political and legal autonomies, and consequently creating a unified economy that would contribute to the ever increasing fiscal needs of the center; another, promoting a collective identity directly referred to the emerging state, thus differentiating “its” population from that of other, competing states. Still a third aspect needs emphasizing because, as Gorski 1999 and 2003 argues, it has been neglected by most authors. I refer to the impact that the various churches during the Reformation and the CounterReformation had by promoting, in alliance with kingdoms and principalities, the religious uniformity and social disciplining of the populations under their control. These efforts, undertaken by all the contending churches albeit with different timing and characteristics, found expression in the peace of Augsburg (1555), which consecrated the principle cuius regio eius religio, that purported to homogenize the respective populations under a single secular and religious rule.29 As mentioned before, these were also the times of the emergence, with Bodin in France and Hobbes in England, of theories of sovereignty, and with them of conceptions of the state as an artificial but very real entity, separate and above society as well as distinct from the person of the ruler. Furthermore, according to those theories, the carrier of sovereignty, usually a king, had the right and duty to pursue the defense and prosperity of the kingdom without moral or religious constraints; raison d’etat30 was the principle followed in this “age of absolutism.”31 Perhaps nothing expressed this better than the firm grounding that won legal positivism, and with it the displacement, now both private and public law, of Aristotelian/Thomist conceptions. Legal positivism was distilled in the dictum Autorictas non veritas facit legem and Quod principi placuit legis habet vigorem.32 Concomitantly, since the 28

See especially Downing 1992, Giddens 1985, Mann 1993, and Tilly 1985 and 1990. And, indeed, the numerous cruelties that were perpetrated almost everywhere during the efforts to implant the “true” religion. 30 Raison d’etat was defined by a seventeenth-century author, Chemnitz, as “A certain political consideration in all public matters, councils, and projects, whose only aim is the state’s preservation, expansion, and felicity; to which end, the easiest and promptest means are to be employed” (quoted by Foucault 2000: 314, italics in his original). See on this topic Viroli 1992. 31 The expression is from Beloff 1962, a somewhat aged but still useful book for this theme. 32 “Authority, not truth, is what makes the law,” and “What has pleased the prince has the force of law.” The latest expression was taken from the Digest, one of the compilations of Roman law produced by emperor Justinian; see Stein 1999 and Strayer 1970. 29

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sixteenth century, and more firmly after the great codifications and to some extent until today, the prevailing doctrine has been that law is that which is enacted by properly authorized individuals occupying legally specified roles in the state; consequently, in parallel with a process even broader than the ones I mentioned above—secularization—law ceased to be conceived as the expression of tradition or a higher moral or religious order.33 Still another process took place that was parallel, interactive, and concurrent in its consequences with the already depicted ones. This consisted of the efforts—often no less brutal than the ones exerted on other issues already discussed—by state-makers to impose a single language in their territories (since this topic is closely related to a parallel one—efforts at nation building—I postpone its discussion to the next chapter). We have seen the main motives and impulses from the center. On their part, those subject to these states—both dominant and subordinated classes and sectors, albeit of course with important variations among them—also contributed their own impulses. Following the logic I sketched in the preceding section, those classes and sectors demanded (and sometimes received as pre-emptive measures from the rulers) legal rules and institutions that would protect their lives and goods from arbitrary decisions of the state. In relation to the bourgeoisie, as Weber said (1978: 847), it [H]ad to demand an unambiguous and clear legal system that would be free of irrational administrative arbitrariness as well as of irrational disturbance by concrete privileges, that would also offer firm guarantee of the legally binding character of contracts, and that, as a consequence of all these features, would function in a calculable way.

It was thus in the interest of enlightened state-makers to implant the policy of “formal legal equality and objective formal laws” that “resulted in the memorable alliance between the rising states and the sought-after and privileged capitalist powers that was a major factor in creating capitalism”; Weber (1978: 353).34

33 Consistently, as van Caenegem (1992: 125) asserts, the principle cuius regio eius religio was progressively replaced by the dictum “one state, one [legal] code.” That this narrow legal positivism has been questioned in recent times does not need to occupy us at this moment. 34 North (1991: 33) makes basically the same point: “There was continuous interplay between the fiscal needs of the state and its credibility in its relationships with merchants and the citizenry in general. In particular, the evolution of capital markets was critically influenced by the policies of the state because, to the extent that the state was bound by commitments that it would not confiscate assets or in any way use its coercive power to increase uncertainty in exchange, it made possible the evolution of financial institutions and the creation of more efficient capital markets.”

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On the other hand, subordinated classes and sectors had to traverse the slower and more convoluted processes that I began discussing in the preceding chapter. In these efforts they were helped by Germanic and medieval traditions of contractualism and representation of status groups, including the reverberations of the Roman (and later on medieval) often invoked principle of Quod omnes tangit omnibus tractari et approbari debet.35 However, this and similar principles and traditions were interpreted in the sense that the “everyone” that was referred to were privileged sectors as represented in corporate associations. The end of absolute monarchies and of descending conceptions of power would have to wait until the processes, mentioned in the preceding chapter, of expanding demands based on the recognition of agency and its consequent claim to ascending views of political power took place.

3. 4 . N OT E S O N S O M E E XC E P T I O N S Now I need to comment on some important exceptions to the preceding overview. One is Germany and its national unification that occurred in 1871: significantly later than most of the other Northwestern cases. But it is only a partial exception, because in 1834 Germany basically achieved through the Zollverein (customs union) a unified market and, in contrast with most other Northwestern countries, it had had for some time prior a common language and, indeed, an increasingly strong national identity propelled by Fichte, Herder, and other influential intellectuals. Furthermore, and arguably no less important, already before unification, as Ziblatt (2006: 114–15) notes, by 1815 “Administrative reforms across nearly all the German states spawned concentrated, specialized, professional, and societally embedded bureaucracies across the German political landscape . . . [thus] the basic prefectoralinspired institutions of modern administration were already in place throughout all of the German states.” The union of these units (many small and some, such as Prussia and Bavaria, large) was historically unique, in the sense that most of them had already gone quite a long way in their respective processes of state formation as described in this chapter.36

35

“That which affects everyone should be treated and approved by everyone.” This, as Ziblatt notes, is a contrast with Italy, where at its unification only Piedmont had undergone such process, and for that matter less fully than most German states. I add that even though Spain had formal unity and international recognition as such, it was not until the twentieth century that its political center won significant control over most of its territory. 36

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But a fuller exception is, of course, the United States. Since the pioneering work of Skowronek 1982, reinforced by the influential book of Skocpol 1992, it has been broadly accepted that courts and parties to a large extent substituted, at least until the late nineteenth century, for a weak and for many purposes territorially and bureaucratically absent central state. This was due to complex reasons that I cannot discuss here, but which included slavery and the forceful elimination and/or displacement of indigenous peoples,37 and later on the discriminatory treatment of various immigrant newcomers. This was closely related to the politically and socially exclusionary characteristics of the “racial order” in—mainly but not exclusively—the Southern states of this country.38 Briefly, due to a significant extent to the works of Desmond King and collaborators, it is becoming clear that the proble´matique of state formation in the United States was not only about courts and parties, however important they were.39 There were also active and very influential states, but they were provincial and municipal ones. These states controlled since the inception of this country—and to a comparatively large extent until today—many aspects of social life. As Gerstle notes,40 [Those local states held a doctrine of] police power that was rooted in both Anglo-American common law and continental European jurisprudence . . . [which] endowed state governments (but not the federal government) with broad authority over civil society for at least the first 150 years of the nation’s existence . . . [including] the role of state governments in the regulation of race, sexuality, and morality. . . . [On this basis] state legislatures passed thousands of laws during this time to regulate all kinds of economic and social activities, from conditions at the workplaces and in tenement houses to drinking, gambling, and other “vices.”41

Furthermore, detailed state and municipal rules governed many commercial and, to great disadvantage of workers, labor activities, including prohibitions against their “combination.” Local states were also effective in supporting existing inequalities by, among other policies, the pervasive prohibition of 37

On the latter see Robertson 2005 and Stannard 1993. Any reference to this topic begins with the classic book of Key 1949. In addition, I have found extremely useful Bensel 1990, Hattam 1992, Hill 1994, Kousser 1974, Skowronek and Glassman 2007, and Smith 1997 (but see also the references in the following footnotes of this section). 39 See King 1999, 2005, and 2007, as well as Gonza´lez and King 2004, King and Smith 2005, King and Tuck 2007, King and Lieberman 2008, King et al. 2009, and Jacobs and King forthcoming 2010. 40 In Jacobs and King 2010; I am quoting, with the author’s permission, from the paper he presented at the Oxford University conference from which his collective volume originated. 41 In other parts of his text this author cites other aspects of “improper moral behavior” such as “theatergoing [sic], prostitution, and vagrancy.” 38

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interracial sex and marriage. As Gerstle (op. cit.) adds, in more recent times and in addition to pre-existing restrictions: Twenty states and territories, between the 1880s and the 1920s, strengthened their bans on interracial sex and marriage or added new ones. These laws appeared not only in Southern states but in Northern and Western ones as well . . . Until 1967, the right to ban racial intermarriage was deemed to lie well within the police power of state governments to regulate society in the people’s interest. Until that almost exact same moment as well, this police power was interpreted by the courts to mean, too, that state governments possessed the right to ban contraception and a variety of “unnatural” sexual acts.

Indeed, these provincial and municipal states were activist ones, by means not only of local courts but also, and very importantly, of rule-making and the direct exercise of police powers.42 Only late in the nineteenth century did a distinct national state begin to emerge, with professionalized personnel in some of its bureaucracies and the national reach of some of its legislation.43 But this emergence, that accelerated throughout the twentieth century, did not, as it did in the European Northwest, erase or marginalize pre-existing local powers and jurisdictions. Rather, that expansion has coexisted with a variety of complex arrangements across policy areas and local states that have left to the latter a scope and degree of authority unknown to the rest of the Northwest (with the exception of Switzerland, a case I cannot discuss here); those localized arrangements preserved for a long time various exclusionary practices, not only in relation to slavery and its sequels but also to several streams of migrants into this country.44 42 For further valuable contributions on these matters see Grossberg 1985, Moran 2001, Novak 1997 and Pascoe 1996. On the crucial role of the law, not just of courts, in these processes see Skrentny 2006. On comparative views about the eventually anti-democratic, sometimes oppressive consequences of excessive federalism and/or decentralization even under overall national democratic conditions, see Amoretti and Bermeo 2004. 43 This does not detract from recognizing the important role that, especially by the turn of nineteenth century, the United States’ Supreme Court had in issues that reinforced for a long time the existing patterns of social and political exclusion. I refer in particular to rulings such as Plessy v. Ferguson, 163 U.S. 537 (1896) that consecrated a system of racial apartheid in the southern states; Lochner v. New York 198 U.S. 45 (1905), in which the Court decided that the New York state had no right to pass a law limiting the number of hours that employees in bakeries could work per day, arguing that no state should interfere with the freedom of workers to enter into employment contracts of their own choosing; and Coppage v. Kansas, 236 U.S. (1915), invalidating the prohibition of contracts which made non-membership in a trade union a condition of employment. 44 See especially Johnson 2007 and Weir 2005. In O’Donnell and Whitehead forthcoming 2009 we make an attempt at comparing the patterns of state formation in the United States and Latin America, with emphasis on their similarities and in contrast with the modal patterns of state formation in the European Northwestern countries.

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I cannot say more on this topic, in part because of my lack of expertise but also because this is at present an exciting frontier of research; we know of some pioneering, ongoing research that will soon be followed by some very enlightened work.45 For this to happen it was necessary that the research I quote in the preceding footnotes dispels the wrong notion that there has not been a significant role of the state in the historical formation of the United States, as well as to correct the too limited one that this formation has been basically the product of just courts and parties.46 Actually, and to my strong agreement, a crucial departing point of this literature is its criticism of the reduction of the state to just a set of central bureaucracies—a view that I examine in Chapters 5 and 6.

3 . 5 . M A S C U L I N E , A B S O R B I N G , A N D J E A LO U S One way or the other, the state that resulted was, and is, absorbing and masculine. Absorbing, because it regulates manifold social relations. Masculine,47 because this was (and largely still is) the gender of those situated at its apex, which at its origins reflected its social and ideological basis on a paternalistically defined family. Although in the Northwest this characteristic has been attenuated (but by no means eliminated), in other regions it still persists by means of many formal and informal discriminatory practices. The state is also jealous, in its attempts to create and reproduce widespread and exclusive collective identities; this moves us on to a look at the nation, the people, and the citizenry: the referents that states and their governments claim to serve. This is the task of the following chapter. 45 I refer especially to the collective volumes, already cited, King et al. and Jacobs and King, both forthcoming 2010, and which I regret not having at hand in their final versions when making the last revisions to the present book. 46 An overview of the literature that precedes the current stream of research and of the main issues it raises, jointly with a summary anticipation of the matters discussed in the already cited collective volumes is in King and Lieberman 2008. 47 Corrigan and Sayer (1985: 12) speak of “the pervasive masculinity of the state.” For discussion of this bias see especially Fraser 1989, Mackinnon 1989, Tigar and Levy 2000, and Walby 1996.

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The Varying Referents of the State: Nation, People, Citizenry 4 . 1. B AC K TO T H E A NA LY T I C A L D I G R E S S I O N In the preceding chapter I mentioned that the state is absorbing and masculine; it is also jealous. In the analytical digression of Section 2.2, I noted that the leaders of complex associations normally claim that their decisions, and even their very existence, are oriented to achieving the common good of the whole association and of its members. In so doing, leaders usually aim to create and reproduce a collective identity, an “us” of members who recognize themselves as such members, and thus as distinct from all “them”; those members, and the postulated collective identity they are supposed to share, are the usual referent of the discourses from the top of the association. The state (as defined in the preceding chapter) is no exception to this, but it has peculiar characteristics that demand specific treatment. Among these characteristics, it is worth noting that the referents of the state are the inhabitants of a territorially delimited association; there it claims the monopoly of the legitimate authorization of the use of physical coercion, and its legality is externalized, extending to innumerable social relations, including those that regulate other associations. These are specific characteristics of the state. Another characteristic is the usual claim from its apex that the collective identity postulated should take precedence over others resulting from various social cleavages and/or other less encompassing associations. Furthermore, in the case of a state that lodges a democratic regime, most of those inhabitants are political citizens. This matter raises many complex issues, starting with the various meanings attached to the typical referents of the state—nation, people, and citizenry— in different countries, time periods and, indeed, strands of the literature. The terminological Babel that results forces me to propose some criteria that I hope will help clear some—but by means all—of the resulting conceptual ambiguities; this is the topic of Section 4.2. In the next section (4.3) I look at

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typical discourses from the state and their relationship to the collective identities that are postulated, and promoted, from its apex and various— broadly conceived—intellectuals. This leads me to look at one aspect of this matter, the heavily symbolized rituals of the presentation of the state to its referents, and its persistent attempts at socializing the inhabitants in preeminent loyalty to the conjunction state-referent(s) (4.4). After this section I deal with some complicated, and indeed in an important sense, conflictive intersections between nation (and other collective referents) with democracy and with the conception of political citizenship that springs from it (4.5). These intersections have powerfully forced the emergence of what nowadays, if not a world of nations, certainly is a world of states: a topic I examine in Section 4.6. Those intersections also reverberate on another referent, the people, or lo popular, that I discuss in Section 4.7. Finally, I draw some conclusions (4.8) that open the way to the study of another dimension of the state, its legal system, which I undertake in Chapter 5.

4. 2 . S O M E D E F I N I T I O N S As I did in the preceding chapters, I begin by defining concepts that are crucial for the analyses that follows. Looking across countries, the more common collective referent of the state is the nation. I define it as An arc of solidarities, a discursive and political construction that posits a historically-constituted and collective “we” established on a territory that it occupies and demarcates, or that it wishes to occupy and demarcate, and that is usually claimed as entailing expectations of loyalty above and beyond other identities and interests of its members. Another common referent of the state is the people. This term has several meanings.1 One is similar to the nation’s. A second meaning, quite common in Anglo-Saxon countries, is less collectivistic and refers to the inhabitants, especially those who are citizens, who are under the authority of a state. A third meaning of people designates a subset of the population as the only

1 Other uses that are not directly relevant here spring from colonial times from traditions of the Kingdom of Castille and Spanish America, where pueblo(s) (the people/s) were various collectively conceived pre-national entities, especially towns and their rural hinterland; the term also referred to some semi-autonomous comunidades indı´genas (indigenous communities); see Annino 1994, Chiaramonte 2004, and Guerra 1999 and 2003.

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“true” or “authentic” members of the state, often those who are argued to be an excluded or marginalized or victimized part of that population.2 Still another referent of the state is the citizenry, sometimes used in a sense equivalent to the first meaning of people (and consequently also to the meaning of nation), and sometimes to the second, more individualistic one. These are discursive formations that have strong performative implications; they aim at creating and recreating, and quite often succeed, the collective identities they invoke. These formations mix and change in highly complex ways, and every case requires close empirical analysis.3 They are ideological and political constructions with which the state, especially those at its apex, aim at closely linking themselves with its population. These discourses and their eventual collective identifications are the outcome of histories, memories, rituals, myths and, in some periods, efforts at political mobilization. As Suny (2001: 892, 864) puts it, [N]ational identity is an act of subscription to a continuing community, with a past and a future, a shared destiny . . . [N]ations are congealed histories. They are made up of stories that people tell about their past and thereby determine who they are. . . . Whatever actually happened is far less important than how it is remembered. What is remembered, what has been forgotten or repressed, provides the template through which the world is understood.4

2 I have struggled with the terminological morass provoked by the varied meanings of nation, people, and citizenry, all highly disputable terms that have a deeply political and ideological character. In an effort to alleviate the resulting expository problems, in sentences where the referent may not be entirely clear I use the clumsy expression “nation/people/citizenry” to indicate that I am talking about all these terms jointly; also in other contexts where it seems clear that I am jointly referring to the three of them, I use the more generic words “country” or “population.” On the other hand, when I use the term “nation” alone, I refer to it as above defined, and consequently also to the first meaning of “people.” Finally, “society” is a sociological concept that, even though it may refer to the same empirical universe as the former terms (if applied to the population linked to a given state) is more politically neutral and provides a different analytical perspective; this is the term that will predominate when I discuss the legal dimension of the state. 3 See Breully 2003, Calhoun 1997, Finlayson 1998, Grimson 2008, Maı´z 2002, Ozkirimili 2005, and Suny 2001. 4 The classical statement on the selective remembering and forgetting typical of national histories was made by Renan 1882. For recent views see Gillis (1994b: 7), who comments that “National memory is shared by people who have never seen or heard of one another, yet who regard themselves as having a common history. They are bound together as much by forgetting as by remembering. . . . New memories require concerted forgettings.”

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This “constructivist” view contrasts with versions of “primordialist” nationalism that argue for a kind of trans-historic, organicistic, and pre-political conception of the nation or the people.5

4 . 3. O N R E F E R E N T S A N D D I S C O U R S E S F RO M T H E A P E X O F T H E S TAT E We know that some states include more than one nation, some nations lack a state, and others, whether they define themselves as a nation or ethnicity or religious identity, are contained in states where other collectives are dominant and/or oppressive. On the other hand, in most cases states try to be, and to be widely recognized as being, states-for-the-nation/people/citizenry, entities primarily devoted to the common good of their collective referent(s). Of course, this claim has generated terrible tragedies, by means of the cruel elimination (or the often also cruel attempts at “assimilation”) of other nations and collective identities.6 In most cases, in Latin America and elsewhere, states have preceded nations, and after emerging have striven, sometimes too successfully, to create one. Of course, not all states encompass just one nation. There are what Stepan 2008 calls “state-nations” (in contrast to nation-states), ones in which several distinct culturally and often times politically mobilized identities exist or claim to exist. Indeed there exist quite a few of these cases, that this author calls “robustly politically multinational,” some of them reasonably successful democracies, such as Canada, Spain, Belgium and, outside of the Northwest, India and, to my mind increasingly so, the United Kingdom. I cannot enter into a detailed analysis of the fruitful contribution of this author, which came to my attention during the final revision of the present book. Yet I wish to point out that it seems to me that in these and similar cases we have two layers of national identity: first, the several ones that coexist under a single state and that have important, and at times conflictive repercussions in the overall political scene and that, as Stepan op. cit. points out, heavily influence 5 Well criticized by Maı´z 2002 and 2003, Stavenhagen 1996, and Yack 1999. This is part of a broader discussion on which I need not enter here; I refer to debates between “primordialists,” “ethnoculturalists” and “modernists.” For reviews see Smith 2001, Breully 1993, and Maı´z 2003. 6 This has not been the only but surely is an important reason why “The history of states in Europe is, in part, the history of the most abominable violation of human rights”; Held (2001: 431). For reminders of this violence see Canovan 1996 and (Anthony) Marx 2003. Obviously the whole of the Americas is no exception to this, although in contrast to Europe the main victims have been indigenous peoples and peoples of African origin.

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institutional arrangements such as the type of federalism they adopt. But there is a second level, somewhat overlooked by this author but that I surmise it would be wrong to ignore, the one anchored at the level of the state that somehow encompasses those nationalities. Often important overall identities and consequent loyalties are expressed at this level too. This is evident in international conflicts and in some of the state-level rituals and ceremonies I discuss below; but it also shows up on many other occasions, such as when whole populations fervently rout for their “national” team in international sport competitions. This means that these countries are not properly nationstates, but still the second layer of identities and loyalties sometimes make them look very much like ones. The cases just mentioned are ones where in some way or the other the coexisting nationalities, even if often with great trouble and with almost never fully institutionalized arrangements, have been able to elaborate a modus vivendi that allows not only internal peace but also reasonably successful democracies. Referring again to Stepan (op. cit), he correctly points out that there are other cases, outside of the Northwest—in Africa and parts of Southern Asia—where such solutions have not been available. They are characterized by either violently attempting to impose one nationality or ethnicity over the others, or by states that have almost completely abandoned actually ruling their population—and, I add, sometimes move back and forth from these alternatives. One way or the other, even in cases of almost nominal existence of a state,7 the claims from its apex have at least two components. One is the delimitation of an “us” with respect to multiple “others.”8 The other consists of claiming to be the main instance of protection, interpretation, and effectuation of the common good, or main interests, of “its” nation/people/citizenry, however more or less pluralistically conceived. The jealous state aims at creating a broadly and firmly shared collective identity, and to be recognized as a beneficial filter from its outside. The discourses from the state demand our loyalty, usually beyond and above identities and interests that derive from various social divisions. At the limit those discourses demand that we go to war for our country; in daily life, they demand our acquiescence (if not necessarily our normative loyalty) to the decisions made by its officials. The claims are 7 Which, as I mention below, may basically derive from its recognition by other states and some international organizations, without much substance in terms of the effectiveness of the four dimensions of the state. 8 Arguably nothing signifies this better than the invention of the passport; see Torpey 2000. For this delimitation, the work of cartographers during periods of state-making was extremely important; see Allie`s 1980, Baud and Schendel 1997, and Escolar 1997 and 2007; for some Latin American cases, see Escolar 1998 and Radcliff 2001.

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based in, and gain credibility from, the two great contributions that a functioning state makes: one, to be the main articulator and guarantor of the social order, so that it furnishes the great public good of the order and foreseeable effectiveness of manifold social relations; and, second, to be the institutional and symbolic embodiment of the historical continuity of “its” nation/people/citizenry, whether or not it is constituted by one or more nations or peoples.

4 . 4. R I T UA L S , L A N G UAG E , A N D S O C I A L I Z AT I O N The discourses of the nation/people/citizenry are repeatedly enacted in rituals, anthems, flags, monuments, stories of great military victories and heroic defeats, and ceremonies, from the trips of Negara in Bali9 to royal coronations and presidential inaugurations. As Kertzer (1988: 67–175) notes, these rituals have the great ideological advantage of “producing bonds of solidarity without requiring uniformity of belief [thus helping] the struggle of the privileged to protect their positions by fostering a particular view of people’s self-interest.” Of course, the discursive and ritual attempts of the state to intimately link itself with “its” population are helped by the unification of the language read and, hopefully also, spoken in the territory.10 England was exceptional in that already in the thirteenth century English had substituted for French and Latin as both its widely shared and official language; also Germany well before its unification had a single language—a fact that greatly helped its unification. For its part, however, by the time of the French revolution “[s]ix million people in France relied on ‘foreign’ languages and dialects: Flemish, Celtic, Basque, German and thirty patois”; thus in 1792 the principle of “one people, one nation, one language” began to be harshly implemented. Even later, already in the nineteenth century, in Italy at the time of its unification there

9

On Negara see Geertz 1980. These are part of the “supreme fictions through which [the social order] lives”; Geertz 1985: 33. On these rituals see also Balibar 1991, Cannadine 1983, Geertz 1985, Gillis 1994b, Hobsbawn 1983a, 1983b and 1992, Lukes 1977, and Ozkirimli 2005. 10 This is a facilitating but certainly not a necessary condition. Among others Canada, Belgium, and Switzerland, and to some extent Spain and India, have managed to accommodate, not without conflicts that never seem definitively settled, bi- and even multi-lingual communities, whether they claim or not to be a distinct nationality. But as already noted, especially outside the Northwest, this has proved a major hindrance for both successful state-making and democratization.

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existed dozens of languages, which prompted the dictum of Massimo d’Azeglio: “We made Italy, now we must make the Italians.”11 In the sixteenth century, these processes were helped by the rapid diffusion of printing.12 As Guibernau (1996: 67) comments, “The crucial factor in this process was that, for the first time, the language in which the people of a discrete area spoke and thought was the same as that in which the ruling strata, the intellectuals and the clergy wrote and read.” One consequence was that the law enacted from the center could then be written, applied, and invoked (if not usually in its technicalities) in a language shared by most of the population. These developments, plus of course the spread of education, especially that of children, were great vehicles for the transmission of visions of each country, its glories, and the reasons why identification with it should be a source of pride and pre-eminent solidarity. Smith (1991: 16) comments that “compulsory, standardized, public mass education systems, through which state authorities hope to inculcate national devotion and a distinctive, homogeneous culture, is an activity that most regimes [i.e. states, O’D] pursue with considerable energy.” Graff (1987: 276) adds useful detail: The school’s task included not only national and patriotic sentiments but establishing unity in a nation long divided by region, culture, language and persisting social divisions of class and wealth. Learning to read and write involved the constant repetition of the civic national catechism, in which the child was imbued with all the duties expected of him: from defending the state, to paying taxes, working, and obeying the laws.

Most states have tried very hard to impregnate their referents with their discourses and rituals, and to socialize the population in a shared collective identity and subsequent loyalties. Consequently, “as they created uniform and standardized categories of citizens and their duties, states created national languages. As they created national languages, nationally-certified cultural forms came along with them. As these forms were created, other forms were relegated to the categories of ethnicity, dialect, and folklore” (Tarrow 2000: 2, who also comments, ibid. 7, that “the idea of a single linguistic group for every state is a peculiarly recent one”).13

11

Cited by Tarrow 2000: 7. See Eisenstein 1983. 13 On France see (Eugen) Weber 1976 and Robb 2007; more generally see Gellner 1983, Hobsbawn 1983a, and Mann 1993. 12

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In various guises the discourses, rituals, and socializing policies of and from the state—as well as from varied assortments of intellectuals14 including artists15—constantly invoke, and try to recreate, a primary loyalty from the population it claims to serve. An important aspect is that according to these discourses we are all equal in our condition not only as citizens but also as members of the nation or people, and that this condition entails an obligation of pre-eminent loyalty to a state that in those discourses—particularly but not exclusively the primordialist ones—claims to be the privileged interpreter, if not the very embodiment, of the country’s population and their most vital interests.16 This dense and insistent symbology is anything but politically innocent. As Ozkirimli (2005: 32–3, 17) argues, [T]he discourse of nationalism is about power and domination. It legitimates and produces hierarchies among actors. It authorizes particular formulations of the nation against others, thereby concealing the fractures, divisions and differences of opinion within the nation. [This entails, O’D) an effort to reduce the importance of objective differences within the group while emphasizing the group’s uniqueness vis-a`-vis outsiders.

Concurrently Billig (1995: 71) comments that “National histories are continually being re-written, and the re-writing reflects current balances of hegemony.”17 Furthermore, these discourses unavoidably assert a division between those who rule—purportedly devoted to the common good—and those who do not,

14 Historians, ethnographers, and poets have had well-documented influence in the formulation and redefinition of ideas about people, nation, and nationalism. 15 In addition to artists proper who have defined “national” versions of various arts, architects deserve special mention. Their work on the design and monumental adornments of—especially—capital cities, have contributed to imbuing them with great importance as symbolic embodiments of the state and the nation/people. 16 Habermas (1998a: 111–13) comments that “Belonging to the ‘nation’ made possible for the first time a relationship of solidarity among persons who had been previously been strangers to one another.” However, both this author and Anderson 1991 (in his well-known argument about the “horizontal comradeship” postulated by discourses of the “imagined community” of the nation) fail to recognize that, especially in countries that are highly unequal, this is not as much articulated horizontally as “vertically,” through appeals from a center that aims to reproduce the hierarchical subordination of its population. For apposite criticism of Anderson’s argument from the perspective of, respectively, Asia and Latin America see Chatterjee 1993 and 2008, and Lomnitz 2001. 17 Calhoun (1997: 23) adds that “Nationalist rhetoric posits whole categories of people without reference to their internal differentiation, or claims priority over all such internal differences.” In a similar sense, albeit from different theoretical perspectives see Canovan 1996, Greenfeld 1992, Finlayson 1998, Hutchinson 2001 and Tamir 1995, as well as the authors cited in the preceding footnote. For discussion of these matters concerning Argentina and Brazil see Grimson 2008 and Segato 2007.

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supposedly immersed in their private affairs; in so doing these discourses, while proclaiming the homogeneity of the population and the position of the state standing above society, tend to reinforce the distribution of power and inequality that exist in society and state.18 Insofar as these discourses are by and large successful (i.e. as long as the state is credible and consequently succeeds in being a widely shared focus of collective identity), the nation/people/citizenry that recognizes itself in the mirror of those discourses is a great reservoir of political power and energies. Canovan (1996: 73), who usefully stresses this aspect, argues that [T]he most significant feature of nationhood is its role in generating collective power, its capacity to create an “us” that can be mobilized and represented, and for which a surprising number of people are prepared to make sacrifices. Despite all the economic, cultural and military trends pushing us in the direction of cosmopolitanism, this continues to be a stubborn fact.

In turn Breuilly (1993: 1) comments that “Nationalism is, above and beyond all else, about politics and politics is about power.” These are discourses of political leaders and various kinds of intellectuals offering a vision that denies or subsumes inequalities into a view of equality as members and in a sense coowners of the nation or people. These discourses evoke a solidary collectivity that transcends the individuality of its members; significantly, the family is quite often metonymically evoked as the proper image of the nation—“our great family,” to which its members owe primary love and loyalty.19 When reasonably successful, these invocations naturalize the nation (or in some cases “the people”). Belonging to it, accepting the dominant views about its history, glorifying its heroes and founders, and even using the nation as a framework for understanding one’s place in the country and in the world, become common sense notions.20 18 Bourdieu (1989: 21) comments that “Objective relations of power tend to reproduce themselves in relations of symbolic power. In the symbolic struggle for the production of common sense or, more precisely, for the monopoly over legitimate naming, agents put into action the symbolic power that they have acquired in previous struggles and which may be juridically guaranteed.” 19 In addition to the already noted masculine traits of the state, these national (and often citizen) discourses usually evince a strong gender bias—paradigmatic images of the patriarchal family included. See Canovan 1996, Fraser 1989, Lister 1997, Mackinnon 1989, Stolcke 1997, Ozkirimli 2005, Walby 1994 and 1996, and Yuval-Davis 1997. For discussions focused on Latin America see Dore and Molineux 2005, and Rı´os Lobos 2008. 20 Ozkirimli (2005: 33) notes that “National values are no longer seen as social values and appear as facts of nature—they become taken for granted, common sense, and hegemonic”; see also Billig 1995 for discussion of “banal nationalism,” as well as Calhoun 1997 and Finlayson 1998.

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Thus appears the solemn face with which the state presents its official version, and tells us that its power is ultimately for the good of us all. As Kertzer (1988: 62) commenting on Durkheim says, “There cannot exist a society that does not feel the need to proclaim and assert at regular intervals the collective sentiments and the collective ideas that constitute its unity and personality.” That these discourses are not politically innocent is also evinced by an aspect I want to stress because it is not always recognized in the literature on the nation. In many countries, what is to be the proper discourse about the nation and/or the people has been, and is, one of the most hotly, and sometimes violently, disputed political issue. Finlayson (1998: 112) notes that these discourses “will take on varying ideological forms depending on the elements with which it is articulated . . . for ‘the national’ is not merely one part of political contestation, it can form a discursive field within which contestation occurs.” These are part of what Bourdieu (1989: 22) called “the struggle for the production and imposition of the legitimate vision of the social world.” In some countries such as the United States, these struggles may have partly receded from memory, but even in a no less modern and democratic country, France, the disputes among Catholic/monarchists and lay/republicans about which is the nation and history to be celebrated, resonate until today. This is even more true outside the Northwest, where the memories of antagonisms during independence or decolonization, and of inward and outward looking political and cultural parties and movements, are often the subject of sharp debates.21

4. 5 . T H E C O M P L E X I N T E R S E C T I O N O F NAT I O NA L I T Y W I T H C I T I Z E N S H I P A N D D E M O C R AC Y Now we should pause to examine an aspect that will complicate the analysis I undertook in Chapter 1. It is that citizenship has two sides. One is the citizenship entailed by the democratic regime, with the universalistic rights it attaches to individuals of electing, being elected, and in general participating in political activities protected by freedoms of expression, association, movement, and the like. The other side of citizenship derives from nationality. It is 21

There are important variations even within each region. In Latin America, for example, Brazil, Chile, Me´xico, and Uruguay seem to have settled into a generally accepted view of their national histories. In contrast, in Argentina, Bolivia, and Peru these issues are still deeply divisive.

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an “ascriptive” status, acquired by the fact of belonging, whether by jus solis or jus sanguinis, to a given country. Even earlier, as Preuss (1996b: 536–8) notes, beginning in Athens, passing through the Italian republics, and continuing into the censitaire liberal democracies of the nineteenth century, “Citizenship was a status of eminence by which a distinguished class of individuals22 were recognized as having a particular stake . . . in the polity.” Only later, with the subsequent expansion of the democratic wager, did citizenship reach most adults. This citizenship was assigned as an attribute of nationality by states that, for reasons both domestic and international, strived to control and elicit the loyalty of their population. Since then citizenship refers not only to the member of a democratic demos; it is also a synonym of nationality, which “denotes the legal belonging of an individual to a particular state . . . [and thus] defines the category of persons that sovereign states recognize as legitimate objects of their respective sovereign powers”; Preuss 1996b: 538.23 The ascriptive nature of this face of citizenship means that “the state is not and cannot be a voluntary association. For the great majority of the population, citizenship is an attributed status.”24 The modern state, this peculiar association—non-voluntary, based on a territory, supported in its monopoly of the legitimate authorization of physical coercion, highly bureaucratized, densely legalized and externalized, and usually purporting to be a statefor-all-of-us—is the crucially concomitant, historically crystallized, democratic regime. In Chapter 2, I asserted that the democratic regime is the first one that bases its authority on the citizenry, but now I have to introduce some caveats. Political citizenship and its rights are the maximal (although by no means insignificant) abstraction of political life, as they refer to individuals who, irrespective of their social positions, are construed as such citizens, and hence as equal in a series of legally-defined dimensions. Instead, the nation (or people) is usually claimed as a concrete, encompassing and solidary collectivity. Its meanings evoke a territory often idealized as the quasi-sacred “property” of the nation, and the container of its members;25 these meanings also invoke a historical continuity that it is the duty of all to revere and guarantee, and foster into the future. The result is that in many situations the discourses of the nation (or people) come across as more concrete than those that invoke 22

And, in addition, all of them men. See also Stolcke 1997 for discussion of “nationality as regulation of the access to citizenship.” 24 Brubaker 1996: 32. 25 For interesting reflections on the relationship between territory, nation, and citizenry see Escolar 1997 and 2007. I am grateful to this author for having made me aware of the political and ideological importance of the territory. 23

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the citizenry. This shift of reference from citizenry to nation was already visible in France during its revolution. It has been less marked, and more mixed with discourses of citizenship in Britain, the United States, and other countries of Anglo-Saxon origin. But even in these, as well as in most others, an attentive ear can detect the collectivistic meanings of nationhood showing up again and again over the more abstract ones of citizenship. At any event, the convergence of political democracy and a state that claimed to be a national state, had extremely important consequences. However mythical the principle of popular or national sovereignty, it tended to link states and governments intimately with their populations, irrespective of how the latter were called in those discourses. This is significant because, as some authors have pointed out,26 a blind spot of some currents of democratic theory is the omission to consider empirically, and theorize, that political democracy was born, has continued existing, and has spread throughout the world with and in the context of states that claim to be states-for-the-nation/people/citizenry.27 As Habermas (1998a: 114, 111) reminds us, [T]he modern idea of the nation . . . [is] the new, legally and politically mediated, form of community. The nation or Volkgeist provided the cultural basis of the constitutional state . . . [Furthermore] belonging to the “nation” made possible for the first time a relation of solidarity between persons who had previously been strangers to one another.

It was due to this intersection that “Democracy was born with the sense of nationality. The two are inherently linked, and neither can be fully understood apart from this connection.”28 This has been a powerful linkage: the members of the purportedly sovereign community may claim self determination, the right (often seen as ancestral) to inhabit and exclusively control a territory; they may also feel entitled to demand that the discourses of the state and government about primarily serving their common good are truthful, thus pointing to one of the dimensions of the state, its credibility. Furthermore, that linkage provided a necessary component for a democratic regime: 26 Gray (2000: 123) argues that “[T]he sovereign nation-state is the great unexamined assumption of liberal thought”; this entails neglecting the “fundamental functionality” (Maı´z 2002b: 14) that the nation has had for the emergence and workings of democracy. Canovan (1996: 1–2) adds: “Nationhood is actually a tacit premise in almost all contemporary political thinking. The current discourses of democracy, social justice and liberalism all in their different ways presuppose the existence not just of a state, but of a political community . . . [these discourses] tacitly assume that nation-states can be taken as given.” 27 There are significant exceptions, albeit by mostly recent works, noted in footnote 11 of the Introduction. 28 Greenfeld 1992: 10.

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it delimits its electorate—no such regime can exist without this delimitation because, as Fishkin (1991: 78) asserts, “One cannot use democratic decisionrules without some prior basis for determining the boundaries of the state within which they are to be applied.”29 Still, what may be called the nationalization of citizenship is still, as it was in the past, a privilege, albeit now shared by many more individuals. Even if the inclusive wager has extended this privilege to most adults in the territory of a state that houses a democratic regime, it leaves standing an “interior outside”: those inhabitants who for whatever reason are not nationals. This creates nagging problems, particularly in the current times of great waves of migrants and exiles; I deal with this matter from the broader perspective to be provided in Chapter 9.

4. 6 . A WO R L D O F S TAT E S Another aspect of the intersection of the state with the nation/people/citizenry, and in some cases also with democracy, was that it was propelled by, and further propelled, the dominance of Northwestern countries in the international arena. Once this arrangement was available and had showed its potency, other countries sooner or later adopted it, autonomously or due to decisions of Northwestern countries. As a result, at least the formal trappings of the modern territorially-based state have spread everywhere, together or without democracy—constitutions, ministries, embassies, flags, anthems, and the like exist everywhere.30 As a consequence, we may not live in a world of nations,31 but we certainly live in a world of states; as Brubaker (1996: 21) asserts, “[This] is a world in which nationhood is pervasively institutionalized in the practice of states and the

29

Calhoun (1997: 71) concurs from another angle: “Whether expressed as ‘nation’ or ‘people’, reference to some recognizably bounded and internally integrated population was integral to modern notions of popular will and public opinion.” 30 This seems to be a case of institutional isomorphism, as argued by Meyer and others; see especially Meyer et al. 1997 and Meyer 1999, the imitative adoption (transnational in the present case) of institutional patterns that are judged to have been successfully tried in previous occasions or settings. Yet, as these authors comment (Meyer et al. 1997), “Decoupling [between the transplanted models and local realities, O’D] is endemic because nation-states are modeled on an external culture that cannot simply be imported wholesale as a fully functioning system.” In this context the pioneering work of Riggs 1964 on “prismatic” societies and states deserves mention. 31 As the well-known book by Rustow 1968 is titled.

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workings of the state system. It is a world in which nation is widely, if unevenly, available and resonant as a category of social vision and division.”32 These states have very different characteristics but, even if in some cases quite doubtfully, all claim to represent and be the authorized voice of their population, however defined as a citizenry, or as one or several nations or peoples or ethnicities. The international practice of mutual recognitions among states—and more recently also by some public international organizations—has greatly contributed to supporting, and with a few exceptions reproducing, a world system of states. This in turn has reinforced—for better and for worse—the tendency of states to present themselves as the only valid voice of a homogeneously postulated population.

4. 7 . T H E P E O P L E A N D LO P O P U L A R Now I turn to the fourth meaning of people. It is “The . . . idea of the people as the commoners—the mass of humble, ordinary citizens, as opposed to upperand middle-class elites . . . [that] is always available to fuel populist appeals against the advantages of the rich and powerful.”33 In turn, a noted author on this and related themes, defines the people as “a component that is partial but that aims, however, at being conceived as the only legitimate totality”; Laclau 2005b: 107. According to these discourses there exists a “true” nation or people, usually made up of those considered to be the underprivileged and/or the somehow excluded or discriminated part of a nation that may formally exist but is still to be made in its true nature against rulers, dominant classes or ethnicities and, often, their foreign allies. In other cases, leaders of self-proclaimed nations, based on feelings of distinctive collective identity and long-standing grievances, seek autonomy from the state in which they find themselves. There is another side to this matter. Even though the main content of the discourses about the nation tends to deny or subsume existing inequalities, as those discourses postulate the equality of all as members of the nation, they open up opportunities for demands for substantive justice. If all of us are told again and again that we are equal as such members, how is it possible, and acceptable, that some suffer severe deprivations and inequalities? Such claims may become forceful, massive demands; this is particularly the case if they are made in the name of the people, the “true” nation, thus denying the 32 33

For similar views from a noted scholar of international relations see Ruggie 1995. Yack 2001: 522; see also Tamir 1995.

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homogeneity posited by the usual discourses from the state. In this connection it bears taking into account that in the Northwest the struggles I mentioned in Chapter 2 were held not only as subordinated classes demanding their rights as citizens but also as moral demands qua authentic members of a nation, the very referent most often invoked by the rulers. What we demand as members of an oppressed or excluded people (el pueblo, or lo popular, as used in Latin America) evidences divisions and conflicting interests that the homogenizing discourses of the nation obliterate.34 In these cases, despite efforts from the apex of the state and its allies to build the credible image of an homogeneous nation, the struggles that ensue bear witness at how problematic—and conflictive—these matters can be.35 Successful invocations to the nation create important reservoirs of political energy and support. But conflicts about its proper definition, including who “really” belongs to it and what is its “true” history, may breed harsh conflicts, putting into question one of the crucial dimensions of the state, its credibility as a true agent of the common good. At any event, the state—its apex, its officials, its social allies, and its intellectuals—expects, and sometimes is willing to harshly demand, identification with its own official, always mythologized, version of the nation. This makes the nation a dangerous ideological sponge. The feeling of belonging to the nation slips easily into nationalism, what Smith (2001: 20) calls “the theory and the ideology of the nation,” the proud and sometimes aggressive assertion of the distinctiveness and superiority of, and sometimes the manifold injustices suffered by a given nation. Discourses of nationhood and nationalism have readily mixed, and continue mixing, with ideologies of imperialism, racism, xenophobia, and similar, and have authorized horrors perpetrated both by states and by movements aiming at creating their own state. As Calhoun (1997: 3) says, “Nationalism comes in manifold forms, some benign and reassuring, and others terrifying” because, as Ozkirimli (2005: 100) argues, “all forms of nationalism carry with them the seeds of evil and even the most moderate forms can easily be converted to virulent ones under propitious conditions.” Surely, in some cases the discourses of the nation may become “civic,” in the sense that they do not appeal to an organicistically and chauvinistically 34 On this topic and the related one of populism see the valuable early contribution of Weffort 1980 as well as the interesting work of the noted author on the topic (although I disagree with his theoretical framework) Laclau 1994, 2005a, and 2005b. See also Aboy Carle´s 2003, Arditi 2004, Canovan 1999, Trocello 2008, Sigal and Vero´n 1986 and, for a useful recent collective volume, Panizza 2005. 35 These discourses of the “people” reappear again and again, even in the contemporary Northwest, nowadays mostly with a right wing and xenophobic intonation; see Mouffe 2005.

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conceived entity, but to citizens who are accepted in their individuality and diversity.36 Yet, even though nowadays some states do not attempt to eliminate or “assimilate” cultural or ethnic minorities, I am skeptical about the resilience of this kind of discourse. It is worth remembering that the motto of the country that is usually considered the epitome of this kind of nationalism, the United States, is de pluribus unum, and especially that, as in the past and nowadays, when its leaders feel that the country is threatened (whether by international powers or by “unfit” migrants), they tend to make, with widespread echo, chauvinistic appeals of practically unconditional loyalty to an organicistically postulated nation. Furthermore, the country where the idea of civic, or “constitutional” nationalism is said to have originated,37 Germany, it can be argued, is such a case of nationalism, but for only what is, in terms of historical time, a short period. Furthermore, it is worth remembering that the countries that nowadays are considered to hold civic versions of nationalism began with harsh exclusions of in some cases large religious, linguistic, and/or cultural groups. In the purported original countries of this kind of nationalism, Britain, France, and the United States, rulers discovered that the enforcement of the “proper” boundaries of the nation was a powerful means for establishing their domination. In this cases, as (Anthony) Marx (203: 74) argues, Political actors learned that exclusion of a group could serve to unify and cohere a sufficient core constituency to preserve the state and make it governable . . . [they did this by] embracing, exacerbating, or manipulating some form of cultural prejudice against an “outgroup” whose exclusion would unify a core. Then, strategy and prejudice would coincide to produce exclusive unity, pursued in a manner that linked state authorities (or pretenders) to the populace.38

Indeed, arguing that, even though it has had time to “mellow,” in its origins nationalism in the United States, France, and England was violent and anything

36 About this kind of nationalism see especially Habermas 1998a and Tamir 1993. For critical analysis see Canovan 1996, Marx 2003, and Yack 1999: 108 who, mentioning the United States and France, comments that “The possibility of intolerance and paranoia in a truly ‘civic’ nation is far from academic or hypothetical.” 37 I refer to Habermas, especially 1998a. 38 Actually this author is referring to Britain and France but his assertions apply to other countries of the Northwest. He lays stress on the religious conflicts of the sixteenth century on, terms of their role in identifying groups to be excluded or marginalized in the respective countries; similar processes of exclusion, albeit not always based on religious factors, and in ways often extremely cruel, applied to the indigenous populations of the Americas and, later on, to various kinds of immigrants, forced and voluntary.

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but “civic,” Canovan (1996: 3) comments that “Machiavellian skeletons lurk behind the serene assumption that the collective power and solidarity that sustain democracy, justice, and the rule of law can be taken for granted.” It is worth adding that even more Machiavellian skeletons lurk around the violence, racism, religious fanaticism, and other horrors that punctuate the imperialism in which, often mobilized by racist and chauvinistic versions of nationalism, several Northwestern countries engaged during or after their own processes of state and nation building. Still, it is worth recalling that in the Northwestern countries the combined nature of citizenship (active and potentially participative from the side of the democratic regime, and ascriptive and in principle passive from the side of nationality) has sometimes helped in the struggles that various classes and sectors undertook for the recognition of rights to both sides of citizenship. For most of those struggles the state has been a fundamental point of reference, whether for traditionally conceived rights or for rights reinterpreted or invented in the heat of these processes. Sometimes the ground of the demands was the stipulation of present or aspiring citizens as members of a nation or a people, and often mixing all these categories. The aim, and at times the consequence, was not only to inscribe the respective rights in the legal system but also to transform or create state institutions authorized and disposed to safeguard and implement those rights. In this sense, and of course not without ups and downs and differences among countries, in the Northwest the nation state has been an important factor in the reduction of inequalities, in the extension of civil rights, and in the achievement by many in its population of a basic level of social rights. As Vogler (1985: p. xii) comments: “Insofar as inequalities between classes have been reduced [in the Northwest, O’D] . . . this has occurred within nations, as a result of the state’s ability to regulate politically market forces at the national level.” The state has been a crucial place of concentration of powers towards which and from which many struggles have taken place. This presupposes a kind of state that, even if partially and intermittently, expresses relations of power that make possible the achievement of rights and freedoms, sometimes against the preferences of dominant classes and sectors. During the long journey entailed by these processes, in the Northwest the state and the regime broadened, admitting as legitimate participants sectors and classes previously excluded. This broadened state became stronger by increasing its efficacy, its effectiveness, its credibility, and the refinement of its filtering. Furthermore, a regime that was broadening at the compass of these same processes became a channel of representation of the whole of the citizenry.

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The Varying Referents of the State 4 . 8. S O M E C O N C LU S I O N S

The discussion in this chapter raises a point that I wish to emphasize: it is the emergence, first in the Northwest and later on in other parts of the world, albeit with characteristics and limitations that in relation to Latin America I will examine in Chapter 8, of a unique and peculiar combination. Manifold processes, including uneven but real advances in democratization, meant that sooner or later political authority could not any longer be justified on tradition, religion, dynasty, and the like; it could only be justified with a referent external and distinct to the state and rulers; a population variously appealed as a nation, a people and/or a citizenry. Once traditional sources of legitimacy weakened, even under restricted types of democracy, rulers had to claim not only that they existed and ruled for the common good of that referent; they had to make, or accept, the more momentous claim that it was from that referent that they derived their authority and powers.39 More or less simultaneously, geopolitical reasons of demarcation and defense of territory and population converged with newer democracies and their own institutional need to clearly identify their voting population: thus modern states became the container of both the demos of political democracy and of the nation/ people. Furthermore, since the members of these referents were posed as the source of the authority exercised at the apex of the state, both state and territory could be argued as belonging to those members. Already in the United States’ independence “the people”40 and in the French one les citoyens, and less sharply but also clearly in the previous English “Glorious Revolution,” this intimate link between state/territory and its population was widely asserted. Yet, who were those who “owned” state and territory? In France, urged by fears of the subversive implications of how citizenship had been conceived at the height of its revolution, soon it was argued that the holder of such ownership was a collectively conceived nation that could only express itself through mechanisms of political representation.41 In England first and

39 Commenting on these processes, Grimm (2005: 451) summarizes the consequences: “[T]he bearer of state power was replaced. The nation took the place of the monarch. Rule could therefore not be legitimated by one’s own but only be a derived right. . . . The political system therefore had to be organized in a way that established a relation of legitimation and responsibility between those who possessed the ruling powers and those who exercised them, as much as possible preventing their misuse.” 40 For discussion of the “invention of the people” in the United States and Britain see Morgan 1988. 41 From among many studies of these topics I found particularly useful Rosanvallon 1992 and 2000.

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later on in the United States, less socially radical revolutions made clear from the very beginning, as epitomized by Federalist n. 10 (Madison et al. 1987) and the very Constitution of this country, that a less collectively conceived but still carefully institutionally mediated “people”42 was the source of state authority and the holder of exclusive rights to the territory. The territory, in these and later cases in other parts of the world, became not just a physical space but the signifier of myths and memories that concurred with the discourses of the state to delineate the specificity (manifold claimed virtues and not a few historical grudges included) of a particular country in relation to others. With its differences across cases and time, notwithstanding the exception of some countries particularly fragmented in terms of nationalities, ethnic or religious convictions, and irrespective of whether it pre-existed the state or was created by it, the nation/people is also the citizenry of a political democracy. All these categories or some combination of them have become, almost universally, the referent from which the powers and authority of state and government are supposed to emerge, to the benefit of the citizenry. In this sense, the confusions and overlaps I have noted among terms such as nation, people, citizenry, and cognates express the existence and historical continuity of populations that are the symbolically sedimented owners of both state and territory and, under political democracy, also the source of the power and authority exercised over them. In these cases there has been a threefold convergence of (territorial) states cum nation/people cum democracy/citizenry. This explosive trilogy, a product of modernity and state-making, first emerged in the Northwest and then expanded, albeit with various timings and characteristics, to the rest of the world. As Greenfield (1992: 10) argues, The location of sovereignty within the people and the recognition of the fundamental equality among its various strata, which constitute the essence of the modern national idea, are at the same time the basic tenets of democracy. Democracy was born with the sense of nationality. The two are inherently linked, and neither can be fully understood apart from this connection.

These remarks substantiate one of the arguments of this book: it is crucial for the study of both democracy and the state to explore their inter-relationships, but for this purpose it is wrong to see the state as exclusively a set of bureaucracies.

42 For a critical recent review of the various safeguards thus built in the United States see Dahl 2004.

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From the discussion of the present chapter emerges another point I want to emphasize. It is that there is no such thing as a neutral, purely technically geared, state. States condense, process, and generate relations of power that exist both in society (domestic and an increasingly transnationalized one) and in its own institutions. Further discussion of this topic will have to wait until I have dealt with other matters; but before proceeding, in view of the discussion of the preceding and the present chapter, I propose a new right, one that to my knowledge has not yet been recognized by political or legal theory. It is that we, as citizens and/or as members of a nation/people, have a right to the state, but not to any kind of state; we have a right to a state that, achieving reasonably satisfactory scores in its four dimensions, becomes a co-builder and promoter of reasonable versions of the common good, as well as of the various aspects of citizenship entailed by democracy.43 This kind of state is an anchor and promoter of citizenship. It is the only institution in which the rights of citizenship can be inscribed (in the legal system) and implemented (by relevant bureaucracies). Rights do not exist in the air or just in discourses. Rights exist, may be demanded, and cannot be easily reversed only when they become an effective and broadly recognized part of the legality of the state, and when its bureaucracies orient their performance to upholding their existence. These assertions take us on to the next chapter, where I turn to another dimension of the state—the legal one—and its own relationship with democracy. 43

This assertion is inspired in Vezzetti 2003. With convergent arguments, see Bobbio 1991 and Ferrajoli 1995, who argue that under an estado de derecho the citizens have not only private but also public rights in relation to the state.

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The State as Law: Contributions and Ambivalences1 In the preceding chapters I made several references to the legal dimension of the state, but postponed its fuller discussion until now. To begin with, I note that in one of those instances when language betrays power relationships, the decisions made at a center (the “orders given”), are deemed to usually “create order,” in that those commands are supposed to be regularly obeyed and stabilize the given context of interaction. Acquiescence affirms and reproduces the social order. Social relations, including those of daily, pre-conscious acquiescence to political authority, are based, as Weber 1978 asserted, on tradition, fear of punishment, pragmatic calculation, habituation, and/or the effectiveness of law. In particular, the latter entails the assumption, usually borne out by exemplary evidence, that such law will be, if necessary, enforced by an authority endowed with the pertinent powers. The law is a constitutive dimension of the state, the one that provides the underlying texture that supports both the social relations of society and those of the state institutions themselves. This underlying presence is not external or a posteriori; it is constitutive of manifold social relations. As Bobbio (1989: 47) said, “[T]he state through law, is also a form of social organization and as such cannot be dissociated from society and from underlying social relations.”2 In the present chapter I begin, in Section 5.1, with a discussion of definitions of the rule of law, or estado de derecho. Then I draw some corollaries and consequences of this conception (5.2). After a rather formal examination of this matter in those sections, I look at some sociological aspects of the rule of law, or lack of it (5.3). This topic leads to the discussion of a relationship that is quite problematic, that of bureaucracy and legality (5.4). Concluding this 1 What follows in this chapter is not intended as a treatise on the law, for which I am not qualified. Rather, it is a reflection on the connections between the state-as-law and some aspects of democracy. 2 See also Ho¨sle (2004: 71 and passim), as well as Skrentny (2006: 237) who notes that “Scholars would do well to recapture the classical vision of a state constituted by and immersed in law and legality.”

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chapter (5.5), I draw some corollaries that invite us to look at the various faces of the state and, behind them, at its principle of unity. This is the theme of Chapter 6.

5.1. O N T H E RU L E O F L AW O R E S TA D O D E D E R E C H O What has been termed the rule of law or estado de derecho (or rechtsstaat or equivalent terms in other languages) has been subject to various definitions in different times and countries; in fact, even today the usual meaning of the English and Latin language terms are not synonymous.3 Actually, the basic idea derives from classic Greece, most explicitly Aristotle, who argued for the well-known formula that political entities should be those ruled by laws, not men. It was continued by European medieval conceptions and the natural law theorists I mentioned in Chapter 2, and later on found expression in the British parliamentary-based regime. This is the idea that political rule should be sub lege, submitted to previously enacted legal rules, which found elaborate expression in the Prussian Rechtsstaat. But this conception need not be democratic; it may apply, as it did in Prussia, to institutionalized authoritarian regimes and/or to ones, like the old British one, that excluded or severely restricted political citizenship. We will see that under democracy the rule of law has other, additional characteristics; yet all definitions have a common core: the legal system is a hierarchical one (usually crowned in constitutional norms) that aims at, although it never fully achieves, completeness: the relationships within legal rules are themselves legally determined; rulers must submit to those rules as everyone else; and there is no moment in which the whim of an actor may justifiably cancel or suspend the rules that govern her/his performance—nobody, including the highest placed officials of the state, is de legibus solutus. In the usual definitions of the rule of law other characteristics are added.4 Among the various listings of such characteristics here I adopt the one proposed by Raz: 3 For instructive comparisons between these legal systems and the respective terms see Chevalier 1994, Dı´az 2002, and Grote 1999. 4 Quite recently there have various attempts to operationalize the rule of law. Unfortunately most of these attempts have been driven by the interest of relating various operationalizations to issues of economic growth, with little attention to democracy and its varying characteristics and quality; furthermore, as Haggard et al. 2008 comment in their detailed discussion of (basically economic) indicators, these are “barely correlated” to the scantier ones focused on issues of democracy. For this reason, in a brief but quite thorough review of measurement attempts,

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1. All laws should be prospective, open and clear; 2. Laws should be relatively stable; 3. The making of particular laws . . . must be guided by open, stable, clear, and general rules; 4. The independence of the judiciary must be guaranteed; 5. The principles of natural justice must be observed (i.e., open and fair hearing and absence of bias); 6. The courts should have review powers . . . to ensure conformity to the rule of law; 7. The courts should be easily accessible; and 8. The discretion of crime preventing agencies should not be allowed to pervert the law.5

Points 1 to 3 refer to general characteristics of the laws; they pertain to their proper enactment and content, as well as to a behavioral fact: the laws must be possible to be followed, which means that they should be properly publicized and not place unreasonable cognitive or behavioral demands on the addressees. The other points of Raz’s listing refer to courts and only indirectly to other state institutions. Point 4 requires specification: that the independence of the courts (even if by itself it is a rather murky idea6) is a valuable goal is shown, a contrario, by the often servile behavior of these institutions in relation to authoritarian rulers. But this independence may be misused for fostering sectorial privileges of the judicial personnel or unchallenged arbitrary interpretations of the law, as well as by lack of adherence to the basic principles of the democracy that, in contrast to authoritarian rule, confers upon judges such independence.7 Obtaining this is a tall order everywhere, including indeed Latin America.8 In this region even harder accomplishments

Rı´os-Figueroa and Staton (2009: 22), suggest that until further progress has been achieved “there is more to gain from focusing our measurement efforts on the subcomponents of the rule of law . . . than pursuing measures of the overarching concept.” 5 Another influential definition is Fuller 1964; Krieger (2005: 194) usefully elaborates: “[Y]ou have central elements of the rule of law when the law in general does not take you by surprise or keep you guessing, when legal institutions are relatively independent of other significant social actors but not of legal doctrine, and when the powerful forces in society, including the government, are required to act, and come in significant measure to think, within the law; when the limits of what we imagine our options to be are set by the law and where those limits are widely taken seriously—when the law has integrity and it matters what the law allows and what it forbids.” For further apposite reflections on this matter see Dallmayr 1992 and Krygier 2001. 6 On this matter see especially Larkins 1996. 7 As Garzo´n Valde´s (2003b: 32) argues, “[Under a democratic regime] judges must have a firm internal commitment to the basic norms of the system . . . and a manifest impartiality with respect to the conflicts of interest that she/he must decide” (my translation). 8 Even though I return to this matter in Chapter 8, here I note that some of the deficiencies of the rule of law in Latin America are documented in the studies contained in the volume coedited by Me´ndez, O’Donnell, and Pinheiro 1999. For recent works that elaborate on failures of the police and the judiciary in Argentina and Brazil see Ahnen 2007, Auyero 2007, Brinks 2008, Domingo and Sieder 2001, Eaton 2008, Fruhling and Tulchin 2003, Gargarella, Domingo et al. 2006, Hammergreen 2007, Hinton 2005, Holston and Caldeira 1997, Mahon 2003, Pinheiro et al. 1994 and 1998, Stanley 2003, Urban 2001, and Waldman 1998. The negative overall picture is not helped at all by the lynchings, quite frequent in some countries (on arguably the worst

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are implied by point 6, especially with respect to overseeing the legality of actions of presidents who see themselves as electorally empowered to do whatever they see fit during their terms.9 The denial to the vulnerable and excluded of the rights entailed by points 5 and 7 is amply illustrated, among others, by the works I cite in footnote 7. The same goes for point 8, especially regarding the frequent impunity of the police and other security agencies in some countries, as well as of violence perpetrated by private actors together with the sometimes indifferent, if not complicit, attitude of the police and the courts towards these acts. At this point we should notice that the English language expression “rule of law” and the type of definition I have transcribed, do not contain direct reference, as estado de derecho and equivalents do, to state institutions other than courts. This is not surprising given the respective traditions, especially the strong role that the courts have played in the social and political history of the United States, and to a significant extent also of Britain. Nevertheless, the whole state apparatus and its officials are supposed to submit to the law, and in fact many transgressions of legality are committed within state bureaucracies and/or during their interactions with the individuals they are supposed to serve. Furthermore, not only when state officials but also when private actors violate the law, the rule of law is truncated; whether those officials perpetrate unlawful acts on their own or de facto license private actors to do it, does not make much difference, either for the victims of such actions or for the effectiveness of the law. A corollary of these reflections is that, when conceived as an aspect of the theory of democracy, the rule of law or the estado de derecho should be conceived not only as a generic characteristic of the legal system and of the performance of courts, but also as the legally based rule of a state that houses a democratic regime.10 Yet it may be a partially democratized state, because it also contains parts of legislation and bureaucracies that are ineffective or plainly authoritarian in relation to various rights and freedoms. These failures of democratic legality may include that it does not extend over a territory that instead has—in some cases large—regions actually ruled by various sorts of informal legality; and/or civil rights, that even though universalistically case in this respect, Guatemala, see Snodgrass Godoy 2006). For pertinent general reflections on these matters see Garzo´n Valde´s 2002, and Neves 1994. 9 In O’Donnell 1999, chapter VII, I analyze, under the concept of “delegative democracy,” this kind of practice and conception of political rule, a topic to which I return in Chapter 8 of the present book. 10 For convenience here I transcribe the definition of this concept that I offered in Chapter 3: “It is the part of the legal system that enacts and backs the participatory rights and the surrounding freedoms of the regime; 2. the set of bureaucracies that are assigned to implement and protect said rights and freedoms; and 3. the unit that delimits the electorate—the political citizens—of the regime.”

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assigned, are actually denied to many; and/or access to the courts and other pertinent state institutions that is denied to, or is extremely difficult for many; and/or legislation that is repressively applied to some while the privileged ignore or transgress it with impunity; and/or institutions of horizontal accountability11 that cannot or refuse to discharge their responsibilities; and/or that the law itself and court rulings entail discriminatory or exclusionary criteria; etc. Consequently, as Craig (1997: 196) says, “The rule of law is a political ideal which a legal system may lack or possess to a greater or a lesser degree.” No country, in good measure for reasons I discuss in the following section, has ever achieved such an ideal—if it ever could be clearly and consistently formulated. There are however approximations toward that ideal. In an increasingly democratized state, improvements in all or at least some of the above mentioned dimensions are achieved. These developments, largely pending in democracies outside of the Northwest,12 stop short of a proper rule of law; and even if achieved, still leave pending the enactment and effectiveness of social rights that furnish the whole population—whether citizens or not—with goods basic for the adequate exercise of their agency; also, these developments often stop short of making the state bureaucracies reasonably accessible, transparent, and responsive to the population at large. As long as it approximates fulfilling those characteristics, the state gets closer to becoming, not just a partially democratized one, but an estado democra´tico de derecho; one that enacts a properly democratic rule of law by sanctioning, supporting, and helping to implement a broad set of the political, civil, social, and cultural rights of its population. For reasons we will see below, the full achievement of this kind of state is a normative horizon, never fully achieved; yet still provides conceptual and empirical guidance for detecting and assessing changes in its direction. This is useful because the conceptions and practice of the rule of law and/or the estado de derecho have been anything but static. Although in different sequences and with different degrees of completeness, most countries have had several layers of various kinds of rights sanctioned. Even though this assertion entails some complicated comparative matters, for the time being suffice to note that most civil rights

11

I have discussed issues of accountability (especially what I call its “horizontal” version) in papers collected in chapters II, III and IV of O’Donnell 2007. For a convergent discussion of “autonomous audit agencies” highlighting manifold deficiencies of these controls in new democracies see Santiso 2007 and 2009. 12 In relation to Latin America, based on a comparative study of various kinds of rights, Foweraker and Krznaric (2002: 29–59) conclude that: “In stark contrast to the rising trajectory of the political-institutional variables, [civil rights] remain flat throughout the period of the third wave [of democratization] . . . the institutional attributes of democratic governance advance while individual and minority rights languish.” See also Foweraker and Landman 1997.

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(and their derived political freedoms) basically entail the negative duty of the state not to abrogate or severely curtail them, while participatory political rights as well as most social rights entail the positive duty of the state to furnish the conditions necessary for their exercise and enjoyment. The widespread enactment of the former and limited existence of the latter were characteristic of the early liberal, partially democratized state that we saw emerge in Chapter 2; the diffusion of several sets of political and social rights, as well as the rather recent recognition of various cultural rights, mean changes in the direction of a more fully democratized state.13 Now I elaborate on an assertion I have already made. In contrast to all sorts of authoritarian rule (where there is always a “somebody,” personal or institutional, who can unilaterally declare itself above the law), in democracy law is indispensable to the rulers,14 in that they are prohibited from changing or ignoring it at their whim; they can only do it by following procedures that are themselves legally ruled. This leads Preuss (1996a: 24) to assert that “only if the bond between governors and the ruled obligates the ruler . . . and if it cannot be revoked unilaterally by the ruler, is it possible to form a reliable institutional structure of government in which the governed are recognized as the ultimate source of political authority.” This is why a crucial attribute of a legal system that pretends to be a Rechsstaat, or estado de derecho, especially one that approximates a truly democratic one as defined above, is to be a system that “closes,” in the already noted sense that every legal rule and state official is subject to rules that cannot be ignored, transgressed, or unilaterally disposed of.15 Some authors have argued that empirically this “gaplessness” is a fiction. Yet it is a useful one, particularly in relation to the aspects of public and constitutional law that deal with the organization and authority of the top institutions of the state, in that it sanctions the indisponibility of the law for the rulers. This is why Raz (1994: 252) asserts that we are dealing with “a legal system rather than a haphazard collection of legal rules . . . [and this underlies, O’D] the formal unity of the system.” This has important consequences. One of them is that rulers and, in general, state officials have rights (including in some cases the application of physical coercion) that are different and in some situations prevalent from the ones we have as citizens. Yet those rights are assigned exclusively for

13

For useful analysis of these and related matters see Ferrajoli 1995. On the indisponibility of the law see Habermas 1988 and 1996. 15 See concurrently albeit from various perspectives Alchourron and Bulygin 1971, Boucock 2000 (commenting Weber), Dallmayr 1992, Garzo´n Valde´s 1993, Hart 1961, and Kelsen 1967. 14

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discharging the duties that the respective institutional positions establish. Thus Raz (1995: 38) makes the important point that [T]he rights of judges, of members of the legislature, and of all other legal officeholders are justified by the interests of the office. . . . The ultimate justification of the rights depends on the fact that in serving the interests of the officials they protect and promote the interests of the community as a whole; they promote and protect common goods.16

With this we have found another difference between political democracy and all other kinds of rule: in the latter there is always a patrimonialist component, whereby there is no clear distinction between the above mentioned rights and their correlative duties, and their de facto use for purposes other than public service. The indisponibility of the law under democracy is, in turn, the basis of the mechanisms of accountability, both vertical and horizontal, to which rulers and state officials are supposed to be subject. Furthermore, even though we saw in Chapter 2 that the law, and constitutions in particular, are protective of individual rights, this is not the whole story. Law and constitutions also enable and empower to act individually and collectively, as they define and normalize social relations, thus facilitating social and political interactions.17 As Holmes (1995: 6) puts it, “[C]onstitutions not only limit power and prevent tyranny, they also construct power, guide it toward socially desirable ends, and prevent social chaos and private oppression. . . . a constitution is an instrument of government. It establishes rules that help put democracy into effect.”18 An important reason for this is that, as Hardin (1989: 115) notes, “It is through constraint that we are enabled in our strategic interactions with others to achieve outcomes that require joint action.” The preceding underlies one of the great contributions of the legal system to democracy: it sanctions and backs a peaceful way to solve the paramount problem of who will make binding decisions at this complex and dangerous association, the state, and how they will be made. This is a paramount issue 16 In another work (Raz 1986: 5) adds, “Political authorities do not have a legitimate interest of their own. The only interest a government is entitled to pursue is that of its subjects.” Ingram (1985: 276) draws the corollary of this arguments, quoting a 1944 ruling of the United States Supreme Court in Steele v. Louisville & Nasville R. Co., 323 US 192, 202: “It is a principle of general application that the exercise of a granted power to act in behalf of others involves the assumption toward them of a duty to exercise the power in their interest and behalf.” 17 For useful overviews of different conceptions of the constitution see Bellamy 1996, Castiglioni 1996, and Grote 1999. 18 Holmes proposes an analogy with chess. Its rules constrain how we may move each piece, but without them we cannot play chess. As Hart (1961: 28) put it sharply: “Law facilitates as well as limits conduct.”

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because, in contrast to the subject’s heteronomy entailed by authoritarian rule, under democracy we are all construed as agents, entitled not only to have preferences about public matters but also to act on them (such as express opinions, associate, vote, try to be elected, and the like). Preferences often differ, and sometimes enter politics as issues that somehow have to be decided. These are what Waldron (1999: 212) calls “the circumstances of politics”: “The [unavoidable] existence of disagreement and the need, despite disagreement, to set a up a common framework which [applies] at least as much to issues of rights as they apply to what is usually regarded as the more modest agenda of legislative politics.”19 For this basic social need, democracy furnishes two unique and crucial ingredients: one, fair elections that provide a peaceful way of deciding who will occupy authorized positions; and, two, public policies based in properly sanctioned legal rules and on the indisponibility of those rules for the rulers. Consequently, as MacCormick (1996: 182) comments, “Legislation is a way of settling common rules on matters that could be forever indeterminate as between autonomous moral reasoners.” This means that democracy provides a mechanism of decisiveness and (at least in principle) a reasonable guarantee that important preferences and interests of its members receive consideration. This is a consequence of a unique characteristic of democracy that I stressed in Chapter 1: its universalistic and legally backed assignment of agency to all citizens. This is why we need procedures that are fair, that is, available to all, as well as legally backed and institutionalized (i.e. stable, well known and broadly acquiesced). In this sense Waldron (1999: 160) comments that “to engage in politics is to subscribe to procedural principles . . . that might yield outcomes at odds with my own substantive convictions.” Consequently, as Soper (1996: 222) says, “Procedural claims are the state’s implicit fall-back response to the possibility that content claims may be wrong . . . fair procedures are an inescapable part of the claim to justice.” Furthermore, a democratic regime entails institutionalized expectations: one, that whatever is decided in an election, it will not cancel the rights entailed by this regime; another, that there will continue to be other occasions for again voting in fair elections. If this is the case, the losers may value the fact that, by keeping their allegiance to democratic

19 Waldron (1999: 213) adds that “It follows that theories of rights as much as theories of public policy need to be complemented by theories of authority, whose function it is to determine how decisions are to be taken when the members of a community disagree about what decision is right.” However, in this and other interesting and concurrent contributions from Anglo-Saxon authors (such as Raz 1986 and 1994), a theory of the state seems to me seriously lacking.

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procedures, they will not help destroy the rights and freedoms that they, together with the temporary winners, enjoy.20 At any event, under democracy, particularly the more a given case approaches the ideal of democratic rule of law, the very condition as an agent of every citizen originates an unsolvable tension. On one hand, the law aims at stabilizing social relations by, among other things, trying to make as precise and accessible as possible descriptions of the events or relationships that fall under its purview, by regularizing court decisions by means of (more or less strictly conceived according to different countries) doctrines of stare decisis, and by making it difficult to change the law itself. On the other hand, a very important right—actually, another one that deserves to be added to the listings I discussed in Chapter 121—is to have available legally-ruled procedures for participating in attempts to change the law, as well as proceedings for contesting extant judicial or administrative interpretations of a given law, or the validity of the law itself. Thus, in democracy, even under a partially democratized state, the same law for which there are many good reasons to desire its stability is also always contestable. Concurrently, in a text worth quoting at length, MacCormick (1999: 174–5) says that [T]he relative indeterminacy of the law . . . the dialectical or argumentative character of legal proceedings is a built-in feature of a constitutional setting in which citizens are able to challenge the allegations of fact and the assertions of law on the basis of which government agencies . . . threaten to coercively intervene in their lives or affairs. A vital part of the guarantee of liberty . . . is that the opportunity to mount such a challenge on fair terms and with adequate legal assistance be afforded to every person. And yet the same governing conception [of the rule of law, O’D] calls for relatively clear and determinate law in the form of pre-announced rules . . . [The resultant contests] are not pathological, they are an integral element in a legal order that is working according to the ideal of the rule of law.

Consequently “Law’s certainty is then defeasible certainty.” (Ibid. 176) In this connection it is worth adding that the effectiveness of a legal system is a function of its interconnections. At one level, of, say, a judge dealing with 20 These remarks entail a criticism of some recent theorizations according to which acquiescence to democracy is rather narrowly governed by a calculation of the physical and economic costs that would ensue from rebellion against the result of a given election (for a statement of this position see Przeworski 1998). This position ignores that one may have a strong interest in, and good normative reasons for, maintaining the kind of congenial social context that most likely would be eliminated by such rebellion and its foreseeable consequences. 21 Or at least be considered a corollary of the right to legal personality that is entailed by agency and its legally-grounded recognition under political democracy.

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a criminal case, her authority would be nil if it were not joined, at several stages of the process, by the police, prosecutors, public defenders, etc., as well as by, eventually, higher courts and prisons. At another level, in terms of relations internal to the regime and the state, I noted that a democratic legal system entails that no state official is supposed to get away with unlawful actions by escaping the legal controls in place. In both levels the legal system presupposes what Linz and Stepan (1996: 37) call an “effective state”;22 in my own terms, it is not just a matter of legislation but also of a network of state institutions that operate in the direction of ensuring the effectiveness of a legal system that is itself democratic—as we will see, the weakness of this aspect of the state is one of the most serious flaws of many democracies outside the Northwestern quadrant of the world, including most of Latin America. There is still another aspect that needs a mention. It is that the interweaving of the state and society by means of the lawful dimension, contributed by a state that houses a democratic regime, is the foundation of the distinction between a public and a private sphere. This is an instance of the legal idea of proper definition of the boundaries of social units. The distinction between public and private spheres has been criticized on the basis of empirical evidence that there exist many grey areas of interpenetration between the state and society. This is indeed true, but that “state” is seen as basically consisting of its bureaucracies, forgetting its public-legal dimension, and in so doing tending to make invisible the public sphere.23 As I will elaborate in Chapter 7, the public sphere is that formally occupied by officials of the state, elected or not, and variously populated by actors and discourses that claim to articulate matters of general interest.24 As I mentioned, those officials have specific rights, but they are exclusively justified by being needed to fulfill 22 See in a converging sense the interesting discussion about the different quality of various state bureaucracies in Evans and Rauch 1999; see also Olsen 2004 and 2005, and Oszlak 2006. Furthermore, although from a different perspective (they do not conceptualize the state as such) other authors, especially March and Olsen 1995 and Tommasi and Spiller 2007, concur on the importance of a properly functioning state in terms of the kind of policy-making that is supportive of democracy. For their part, belatedly some international financial institutions seem to have discovered parts of the state, mostly through their calls for “good governance.” 23 The various dimensions of the state and the complex relationships they establish with society mean that there is no single, or invariant, or “natural” boundary between state and society. Jessop (2002: 37) argues that the various boundaries between the economy and the political, the public and the private, and the domestic and the external are “discursively constituted, institutionally materialized, structurally coupled to other institutional boundaries, [and] essentially contested and liable to change”; see also Mitchell 1991 and Migdal 2001. I agree with these authors, except that I add that those boundaries are not only discursively, but also legally traced. 24 The origin of this concept is of course Habermas 1962.

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the duties attached to their offices. Here the law imprints another moral dimension, in addition to the one entailed by the conception of the citizen as an agent. This second dimension was stressed by the republican tradition, in its demand for the selfless devotion of rulers to the common good.25 Contemporary law repeats this demand in manifold ways and rules— impartiality, honesty, fairness, primacy due to the common good, etc.26 Under democracy, the view that the authority of those officials has its source and justification from the citizenry leads with special force to the expectation that such authority should be used exclusively for their good, however more or less specifically and disputably defined. Of course, that same view underlies the panoply of legally-enacted sanctions that are supposed to follow violations of said duties. This is an exacting demand placed upon state officials.27 In turn, various actors can appeal to public opinion and, eventually, to pertinent state institutions, the public/private distinction, and thus gain the chance of promoting certain policies, punishing corruption, redressing colonization by private interests, etc. These discourses and demands are a recurrent feature of the workings of democracy; Bourdieu (1996: 28) comments on “[T]he very real effects of the mandatory reference to the values of neutrality and selfless devotion to the public good that was demanded with increasing force to officials of the state as [part of] the history . . . that invented and imposed the official representation of the state as a place of universality and service of the general interest.” Lies, hypocrisy, and concealment of information are recurring features of political life while, at the same time, compelled by legal rules and by sometimes widely held normative expectations, state officials repeatedly proclaim their compliance with those rules.28 Consequently, referring to 25 I have discussed this tradition in O’Donnell 2007a, chapters I and II, where I argue that republicanism, liberalism, and democracy proper have historically mixed in contemporary democracies, in complex and quite often contradictory fashion. For discussions of republicanism see Skinner 1990 and 1998; see also, in partial divergence with the former, Pettit 1997. 26 Dworkin (1986: 164), writing on “ideals of ordinary politics,” says that “It requires government to speak with one voice, to act in a principled and coherent manner toward all its citizens, to extend to everyone the substantive standards of justice or fairness it uses for some.” This author adds that this is “the virtue of political integrity” (ibid. 166). 27 As Luban (2001: 192) says, “The commitment to bind the governed only through general rules that also bind the lawmaker establishes the moral relationship of reciprocity between governors and governed.” On his part Ferrajoli (1995: 925) forcefully argues that “[B]ecause state officials are charged, precisely, with the public function of applying the law . . . this is equivalent to their acceptance of the legal order . . . [this is] a self-obligation that is freely accepted,” and thus generates not only their legal but also moral obligation to follow the law (my translation). 28 Garzo´n Valde´s 1995 properly comments that when the inconsistencies are severe, there emerges “a network of complicity based on secrets and on a permanent rhetorical acceptance to the legal order.” On related topics see also Garzo´n Valde´s 2002.

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minimalist definitions Stoelting 1998 remarks that “The normative element which Schumpeter had discarded remains a point of reference in any public political discourse.” As we will see in Chapter 7, under authoritarian regimes, particularly those of a highly repressive variety, the resulting or suspected discrepancies are a matter of rumor and silent resistance; there is no legal recourse against the discrepancies, and if some recourse formally exists, there is no assurance that it will be upheld. Instead, under democracy, perceived discrepancies make possible individual and collective actions of horizontal voice and accountability, as well as of social accountability, by various means, sometimes including legal ones, social movements and associations, and political parties bring those discrepancies into public light.29 It is a remarkable indication of the moral importance of the republican values embodied in the respective legal rules that, with the occasional exemption of particularly crooked rulers, they and other inhabitants of the public sphere stubbornly assert acquiescence to those values.30 Of course, the variations in the perceived discrepancies are a crucial element of one of the dimensions of state (and their governments) that I identified in Chapter 3, namely, their credibility.31 But the law is not just written rules, formalized and subject to the often arcane interpretations of professionalized knowledge. The law also has organizational expressions, highly ritualized and institutionalized, especially in contemporary democracies. Congress is supposed to be the place of debate and enactment of the main laws of the land; and the judiciary the place where various conflicts of interest are argued and ultimately decided. Of course, these organizational embodiments are part of the state’s bureaucracy; with their buildings and their own rituals and symbols, they embody, and reinforce, the basic separation that the rituals of the center posit—that is, a sphere where those who occupy it are supposed to orient their actions toward contributing to the common good, while the rest go about their private interests. Yet, as happens with other aspects of the state, congress and the judiciary are also the organizational embodiments of a broader phenomenon,

29 For the concept of social accountability see Smulovitz and Peruzzoti 2000 and Peruzzotti and Smulovitz 2006; see also chapters II and III in O’Donnell 2007a. 30 I should clarify that, even if the expectation is particularly strong—and in some cases actionable—under democracy, it seems to be a permanent feature of political rule. Witness the expectation of political systems of antiquity that the “good King” would rule for the welfare of his subjects, not only for his grandeur. 31 This of course includes the belief that it exists something close to the rule of law. As in his classic study of the English “Black Act” Thompson (1975: 263) put it: “The essential precondition for the effectiveness of the rule of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just.”

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the underlying legal system—later on we will see some implications of this assertion.

5 . 2. S O C I O LO G I C A L A S P E C T S In the preceding section I argued that a reasonably effective legal system makes the huge contribution of backing and texturing the social order. In addition, if it is permeated by the rights entailed by a democratic regime, and if the respective state institutions are committed to implementing and protecting those rights, the legal system makes a no less huge—indeed necessary—contribution to the very existence of such a regime. But this is far from the whole story, even if some of the contemporary rhetoric on the rule of law does not go much beyond this point. We saw that in terms of political, and to some extent also civil rights, under a democratic regime the law enacts and backs a series of universalistically assigned equal rights; in this sense the law is a crucial dimension of equality, and indeed, of potential equalization. This dimension is very important, even if sometimes dismissed as merely “formal.” Arguing against such a view, the German socialist and sociologist Franz Neumann (1986 [1936]: 444) said that “Equality before the law is merely formal or negative . . . but it does contain a minimum guarantee of freedom and must not be discarded” . . . and “Rational law, after all, serves also to protect the weak” (ibid. 261).32 Yet, even in cases that approximate a truly democratic rule of law, the law also enacts and backs many unequal social relations. To begin with, inequalities are intrinsic to the social relations of capitalism (and, for that matter, of any other kind of socioeconomic arrangement thus far known in history), including of course the relations of employment, however tempered some of their grossest inequalities in some countries by the processes we examined in Chapter 2. The same is true of the hierarchical relations that structure most bureaucracies, both public and private. These unequal relations texture and organize society no less profoundly and effectively, and sometimes more powerfully, than the egalitarian rules I mentioned before. Consequently, as it textures and as a result co-constitutes society, the state, including its legal dimension, embodies and backs relations of power that result from, and are expressed in, various inequalities, and in so doing greatly helps the continued reproduction of those relations. Yet this important fact does not preclude the 32 For useful discussion of Neumann’s contributions see Scheuerman 1996 and 2001, and Cotterrell 1996.

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reality of two fundamental aspects, already noted but worth repeating. First, the resulting order usually is truly an order, in the sense of generalized social predictability and enabling of manifold social relations; second, even if it does not extend to other social relations, the equality sanctioned in terms of political citizenship is crucial, in terms of the exercise of the rights entailed by the workings of political democracy—including as we saw the contestability of the law—and of the individual and associational freedoms it backs. Equalities and inequalities backed by law, complexly interlaced and with varied weight depending on countries and periods; this is the contradictory and dynamic nature of both state and society even under democracy. In fact, even though we may not be aware, we have a general interest in an appropriate rule of law, one that at least satisfies some of its basic elements as above identified. This is true also for relationships with bureaucracies, both state and private, whether we are parts of or interact with them. As to these interactions, it does not necessarily mean that they be in any proper sense democratized; rather, it is a matter of receiving fair and respectful treatment, based on rules that recognize that we are agents everywhere, even when placed in hierarchically subordinate positions. Some of these expectations do not depend much on individual rights and actions. In their condition as workers, or as consumers, or as members of ethnic or religious groups, the more effective ways are often based on collective actions backed, under political democracy, by legal rules that recognize the legitimacy of such actions. Returning to Chapter 2, I recall that the overcoming of strictly individualistic views of contract and legal personality was one of the more important, and hardest won, issue posed in the Northwest by workers and later on by other social actors.33 A concomitant development was the progressive legalization of the workplace; it recognized that, at that very core of society, structurally unequal relationships should be regulated in ways that make the worker something more than a mere subject of those relationships. Of course, this legalization has not equalized the workplace, but contrasts both with the conditions that prevailed at the outset of capitalism in the Northwest and with the ones today existing in quite a few parts of the rest of the world. These advances were not obtained only as an outcome of relations within the workplace; rather, they were mainly consequence of changes occurring at the macro-level of society and politics, by means of parties, unions and, in

33 In this sense, and showing the perpetual ambiguity of the law, while the law Le Chapelier, the British Combination Act, and many judicial adjudications in the United States attempted to prevent, often coercively, the collective organization of the workers, business corporations early obtained recognition of their legal personality; see the interesting history of this topic in Micklethwaite and Wooldridge 2004; see also Bendix 1964, and Tigar and Levy 2000.

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general, of the uneven but significant influence of values of fairness applied to the agency of everyone. Surely the workplace is a social setting where power is particularly operative; witness the regressions that have occurred during the past two decades, in what may be termed in some cases—quite abundant in Latin America—a severe “de-legalization” of the workplace. Now I mention an issue closely linked with the one I have just discussed. It is that the law is never applied truly equally across social divisions, even if some countries have taken measures to ameliorate this flaw by means of easing the access to courts, creating special courts for small or special claims, creating reasonably well funded and staffed public defendants, and the like. But even in these cases Holmes’s (2003: 21) assertion that “No state, however liberal or democratic, treats all citizens equally before the law” holds true.34 As a consequence, particularly in countries where the rule of law is truncated, “Law can become highly predictable for the privileged strata while remaining maddeningly erratic for the less well-off ”; ibid. 22. Thus, the famed “legal security” is often relative; it may be security for certain rights—say, property ones—and deep insecurity for others, say civil rights of the vulnerable or excluded. In this context Dowding and Hees (2003: 282, 288) pertinently assert that The extent to which rights exist is not all-or-nothing when it comes to respecting or exercising those rights . . . ” [And] “we say that a right exists materially if it is being respected, which means that the material existence of a right depends on the efforts of the state to protect those rights and on the ability of its population to exercise them.35

The problem I have noted is compounded by another one: implementing rights, practically any right, requires complex institutional arrangements, and these arrangements cost money. Because of this, not only because of bias or neglect, some rights are not enacted, others are weakly or selectively implemented, and actually only some are more or less fully so. Partly as a consequence, Holmes and Sunstein (1999: 104) comment that rights are not static, they “are constantly expanding and contracting under the impact of legislative 34 More generally, Trubek (1977: 539) mentions the “perennial problem of the sociology of law: the gap between the law on the books and the law in action.” Hence, “a significant feature of legal life in liberal capitalist societies is the simultaneous assertion and negation of basic ideals of equality, individuality, and community”; ibid. 544. See also the quite dismal conclusions on this matter reached in the classic article of Galanter 1974, and the no less dismal update by Grossman et al. 1999. 35 Ferguson (1995 [1767]: 166) was already aware of this matter: “It is not in mere laws, after all, that we are to look for the securities of justice, but in the powers by which those laws have been obtained. . . . Statutes serve to record the rights of a people . . . but without the vigor to maintain what is acknowledged as a right, the mere record . . . is of little avail.”

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and adjudicative action.” These authors focus on a rich country—the United States—when describing the selectivity in the enactment and implementation of rights that results from various institutional and economic constraints;36 of course, these constraints are more acute the weaker or poorer the state is. There is in addition the plain fact that there is no such a thing as, literally, “the rule of the law.” What actually exist are decisions made by authorized officials facing situations quite often amenable to various legal and/or factual interpretations, or judges who may not be willing to fairly apply the existing law, and/or be socially prejudiced, and/or who have legal conceptions that depart from basic democratic principles or values.37 This is why political struggles are often fought in the terrain of what is the law to be written, or of which should be the interpretation of a given law. The law, as the whole of the state of which it is a part, is impregnated with power relations, and with interests, values, and ideologies that are the prism through which the law is interpreted and applied. Yet there are significant variations across countries in the degree to which the law is applied in ways that are consistent with democracy and agency. We saw that in some countries, by means of the extensive implantation of civil rights, as well as a varied but quite effective sets of social rights (as well as some cultural ones), the democratization of the law, and with it of the state as a whole, has registered important advances; this has furnished for many, but by no means all, a basic floor, or threshold, of agency-enabling capabilities.38 On the other hand, once sanctioned, when the originating power relations have faded away, legal rules as well as state institutions have continuing effects of their own: by extension or restriction of their originally intended scope, they shape social relations unforeseen at their onset. These “institutional lags”39 are also often fields of political struggles, as they reconfigure social 36 Krygier (1997: 129) usefully adds: “Think what the state must provide just to allow citizens to sue each other, let alone the state itself. And then expect, and then to get, a fair trial. And then to have a decision enforced. None of these rights is just a negative protection, freedom from interference from others. They are constituted by state decisions, underwritten by state provision, and made good by state intervention. . . .” 37 As Houtzager and Crook (2001: 4) say, “People do not encounter legal rules; they encounter interpretations of legal rules”; concurrently, see Fuller 1964 and Postema 1994. Of course, this is one of the central topics of the discipline of the sociology of law. 38 Although not even these countries are exempt of the above noted reversibility of rights. Witness the already mentioned reversals of some social rights, and the recent suspension or cancellation of important rights produced by anti-terrorist legislation and its interpretations by some courts and bureaucracies. I return to this topic in Chapter 10. 39 This term is from Mann, who comments (1993: 52) that “States institutionalize present social conflicts, but institutionalized historic conflicts then exert considerable power over new conflicts.” For concurrent observations see Dagnino 1994, Oszlak and O’Donnell 1984, Pierson 1993, and Skocpol 1992.

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and intra-state relations in ways that static and formalistic views of the law are unable to capture.

5 . 3. B U R E AU C R AC Y A N D L E G A L I T Y The state is far from the only producer of bureaucracies. At least for those of us who live in modernized societies and have formal employment, a good part of our lives is spent as members of some kind of bureaucratically organized entity.40 Living in and of, and/or somehow depending upon these bureaucracies is dangerous: within them mini despots often loom over us. In general, bosses waver between, on one hand, their interest in having uncontrolled power over their subordinates and, on the other, their wish to adequately motivate them and, as I noted in Section 2 of Chapter 3, normalize the controls of their performance. On their part, subordinates have a clear interest in legalizing their relationships with their bosses.41 A crucial line lies where it is recognized that individuals are not divested of rights when they enter into bureaucratically subordinate relationships. This is part of the process of legalization of the workplace I already mentioned; it amounts to the recognition that there is a general right to have rights, and that consequently if necessary such rights should be guaranteed by authorities outside or above the respective bureaucracies. This has marked important progress in the effectiveness of citizenship and in the overall quality of social life—but only in those countries where these rights have not only been sanctioned but also effectively backed and implemented. But what interests me at this point are the state bureaucracies. Their spectacular growth almost everywhere has created a phenomenon unforeseen by original theorists of the rule of law and of democracy. I refer to the myriad rules that have the form and many of the consequences of law, issued by state bureaucracies. This “administrative law” sanctions, defines, redefines, and sometimes hinders many rights and obligations. Consequently, as Gordon (1999: 344) asserts: “The celebrated constitutional principle of the ‘rule of law’

40 Cotterrell (1996: 454) comments on: “[P]roblems of private power which are of no less significance for individual security, in particular the power of corporate capital to shape the lives of individuals, as consumers and employees as well as citizens” (italics in the original). 41 As well as, of course, of the expansion of rights in other bureaucratized places in society, such as those of members of educational institutions, professional associations, large NGOs, and even sport clubs.

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has become, over a wide range of practice, rule by administrative regulation.” This means that many state bureaucracies have become in fact co-legislators with parliament as well as co-adjudicators with the judiciary.42 Even though the rules and decisions of the former are supposed to be ultimately subject to judicial/constitutional controls, there is ample evidence everywhere that the effectuation of those controls by citizens is often difficult and costly. This problem is compounded by the perennial temptation for bureaucracy of secrecy and toward projecting authoritarian relations within and outside of them.43 As a consequence, we are submitted to manifold obligations resulting from rules and decisions that sometimes are even difficult to know (thus violating a basic precept of the rule of law, its accessibility to those addressed), only partially compensated by rights that are difficult to effect.44 Yet once again, even if the preceding comments are basically true everywhere, there are significant variations across countries. In the case of many Latin American states, their weakness is often expressed in frantic quasi-legislation issued by various and sometimes conflicting bureaucracies. Added to authoritarian tendencies that are fed by the great social distance that separates the deprived and excluded from those bureaucracies, this shapes one of the faces of the state—and certainly an ugly one—that will occupy us in the following chapter. Still, whatever the cross-country differences, as long as bureaucratic colegislation and co-adjudication are important aspects of social life, it seems clear that this factor, jointly with others I discuss in the present section, bears directly on the effectiveness and extent of the rights of citizenship, and consequently on the quality of democracy. Yet the theories of democracy that center exclusively on the regime, precisely because due to such centering they ignore the state, often overlook this issue.

42

Concurrently, Cotterrell (1995: 455) comments that “Regulation now takes a wide variety of forms and is expected to do so. . . . The lines between law and administration and between legal and technical standards seem to become increasing hazy, and this development is no longer seen as a matter of aberration . . . The diversity and flexibility of contemporary regulatory forms make the practical meaning of the Rule of Law increasingly indeterminate.” See also Selznick 1992 and Simon 2000. 43 An author who was quite obsessed with bureaucracy and its increasing importance, Weber (1978: 992) pointed out that “Bureaucratic administration always tends to exclude the public, to hide its knowledge and action from criticism as well as it can.” For concurrent observations see Habermas 1996: 992 and passim, and Mashaw 1985. 44 For pertinent reflections on this matter and its impingement on the democratic regime see Strasser 1999.

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5 . 5 . S O M E C O RO L L A R I E S I argued in the present chapter that political theory should recognize that the legal system is an intrinsic part of the state. I also argued that the law is always a contested terrain, a matter of argument and conflict that only in part is played on the basis of legal/juristic reasons. As Ho¨sle (2004: 464) comments, “Law legitimates political domination and becomes one of its means of organization; political domination guarantees the coercive character of law.” That the law is an expression and a great source of power was also asserted in his inimitable style by Bourdieu (1986: 837–8), who said: Law consecrates the established order by consecrating the vision of that order which is held by the State. It grants to its actors a secure identity, a status, and above all a body of powers (or competencies) that are socially recognized and therefore productive. . . . Law is the quintessential form of the symbolic power of naming that creates the things named . . . It confers upon the reality which arises from its classificatory operations the maximum permanence that any social entity has the power to confer upon another, the permanence which we attribute to objects.

We should remember that from very early times subordinate classes and sectors have struggled for the publicity of the law as well as for winning at least partial control of its text and interpretation.45 In turn, dominant sectors and their allies have tended to impose formalistic, naturalized, or reified conceptions of the law as the expression of a superior rationality that properly sanctions the existing social order. In modern times struggles for democracy and its expansion were largely struggles for rights to be inscribed in law and implemented by appropriate state bureaucracies. Democracy and its rights provide the main way by which some equalizing results can be achieved against the structured tendencies toward the inequality of bureaucracy and capitalism, as well as of gender, various discriminations, and other social ills.

45 On the principle of time of the law see Bobbio 1989, Iazzetta 2006, and Garzo´n Valde´s 1993a. The latter author comments that, as stated by the “right of access” established by the German Fundamental Law (art. 5, par. 1), the principle includes the procedures previous to the sanction of those measures. This is close to Kant’s “transcendental formula of public law [that] . . . all actions affecting the rights of other men are unjust if their maxim is not reconcilable with publicity.” In contrast, it is tempting to remember the absurdity of the “secret laws” issued, among other authoritarian regimes, by Stalinism and the Argentine military Junta of 1976–1983.

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But equalizing efforts are hard, and their achievements are never guaranteed in their continued effectiveness.46 However, this is not as desperate as Sisyphus having each time to pick up the rock at the bottom of the mountain; some areas of equalization may be (and have been) conquered and further expanded, and even in bad times they can be defended, especially if they are supported by the rights of political democracy. Incidentally, the preceding helps to approximate a definition of a strong state. If we accept that it is wrong to conflate the state with its bureaucracies and, consequently, to see its relations with society as zero-sum, we realize that, irrespective of the size of its apparatus, a strong state is that which is densely interweaved with society through the effectiveness of its legality, and by bureaucracies that regularly operate in the direction of supporting and implementing that legality.47 This kind of state generates and guarantees the public good of a social order that is reasonably predictable, both because of its routinely assumed reproduction and of the expectation of enforceability of the rights and obligations it sanctions. Such a state has significant infrastructural power,48 in the sense that it tends to score high in its four dimensions; consequently, its policies as well as its very existence are usually and widely acquiesced, if not supported. Of course, this is an ideal-typical description, but the more actual cases move in this direction, the stronger are not only the state but also society. Conversely, when systems of privatized power actually rule and/or when generalized uncertainty prevails about social and political relations; both the state—irrespective of the size of its apparatus—and society are weak. As a conclusion to this chapter I want to stress the fundamental ambiguity of the state in all its dimensions. On one hand, provided that its four dimensions perform reasonably well, the state enables very valuable public goods; furthermore, if it is interwoven with a democratic regime, the state enacts and backs egalitarian rights and freedoms of civil and political citizenship (and, in some fortunate countries, also rights of social and cultural citizenship).49 On the other hand, both through its legal system and the 46

As Honig (2001: 800) comments: “In fact, most constitutional battles are never finally won. . . .” [there is the danger of forgetting] “that we must take them up again and again. Rights are not dead instruments, they are live practice.” 47 Concomitantly, in a comparative study Muller and Skaaning 2009 found that what I am calling a strong state is particularly necessary for the effectiveness of the rule of law and social rights. 48 On this concept and its opposite—despotic power—see Mann (1993: 59 and passim). For discussion of state capacities from more institutionally focused angles see Alonso 2008, Grindle 1997, and Huber 1995. 49 Famously positive views on the state and its legality were articulated by Durkheim (1983: 64), who I believe was basically right when he asserted that “It is the State that has rescued the child from patriarchal domination and family tyranny; it is the State that has freed the citizen from feudal groups and later from communal groups; it is the State that has liberated the craftsman and his master from guild tyranny.”

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hierarchical (as well as quite often) authoritarian bent of its bureaucracies, including in contemporary times strong technocratic components, the state condenses and guarantees many social relationships that are intrinsically— and powerfully—inegalitarian.50 This is a basic, constitutive antinomy of social life. At the level of the law, it is expressed by its inherent tensions among several values. One of these tensions, between the stability and the contestability of the law, I mentioned above. Another tension, already noted by Aristotle and implicit in my discussion in Chapter 2, found in processes of legal transformation, is between its aspects of formal and universalistic equality, on one hand, and of fairness and substantive justice, on the other.51 But these antinomies fully manifest themselves, and may be politically mobilized, only under the rights and freedoms of democracy, even if it is a democracy that enables political rights and little of civil, social, and cultural rights. The antinomies may be regretted by a linear mind; but they should be celebrated, as they express tensions that inherently constitute both society and state, and can be mobilized by individual and collective actions that make for the dynamic of social life, and of democracy, an always open horizon of hopes and possibilities.52 We have yet to consider that, in addition to what I discussed in this and preceding chapters, the state is a lived experience; its many faces are a crucial component of social reality and of the state itself. In the following chapter I explore these matters. 50

In the following chapter I deal with another area of inequality backed by the state, capitalism. 51 Bendix (1964: 112) puts it well: “The basic and anguishing dilemma of form and substance in law can be alleviated but never resolved, for the structure of legal domination retains its distinguishing features only as long as this dilemma is perpetuated.” See also Cotterrell 1995. 52 I return to this topic in the Conclusion.

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The Multiple Faces of the State and its Underlying Unity In this chapter I focus on the prismatic character of the state, the various faces it shows in various circumstances to various groups and individuals. I begin in Section 6.1 with a brief description of some of those faces, and discuss some of the answers that have been offered to make sense of this puzzling variety. In 6.2, I propose where and how to find the underlying unity of the state, in a cascade of authorizations dispensed by its legal system. The considerations in this section are quite abstract and generic; thus, in 6.3 I return to a more sociological perspective, exploring faces that the state shows depending on varying circumstances, especially those related to high levels of inequality. The picture I present in this section leads me to return to some topics I began to discuss in the preceding chapter from a basically legal point of view, but here, in 6.4 I take a new look at them in terms of the behavioral implications of fulfilling the obligations attached to the role of state official. Then I shift topic to examine another aspect that may well be considered an aggregate, almost universally imposed face: the one that the state exhibits as a capitalist one; through this face it legally sanctions structured relations of inequality that relate in complex ways with other, egalitarian ones, that an at least partially democratized state also sanctions (6.5). In turn, this assertion demands that I return to previous chapters to highlight the importance of the historical construction of the workers as legal persons, not only as ones who could enter capitalist social relations, but also in terms of their parallel acquisition of other civil and social and, especially political rights (6.6), but I note that this parallelism only occurred in the Northwest, not in other regions. I conclude this chapter (6.7) with a brief recapitulation and an image of the several positions in which the state tends to appear, which may account for the difficulties in reconstructing its overall character and unity.

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The state is everywhere and nowhere. We saw in Chapter 4 that we run into the state when from its apex rulers speak in rallies and in the mass media, as well as when buildings, flags, anthems and military parades are displayed in the celebrations of governmental inaugurations, the birth and death of founding fathers, and other public ceremonies. These events display the official face of the state, ritualizing its marriage with “its” citizenry/ nation/people, trumpeting that the state and its government are for us, for the good of all of us. These rituals and the values and memories they evoke are re-enacted and further glorified, again and again, in schools and the media—and, indeed, even in the singing of the national anthem at sport events. In Chapter 5 we also found the state, albeit less visibly, when it textures through its legality innumerable social relations. We encounter the state when we pay taxes or apply for a driver’s license, as well as—although perhaps unaware that the state is also “present”—when we obey a traffic signal, go to a public hospital, or have our children attend a state run or subsidized school— and in so many other occasions: especially if we live in an urban setting. Furthermore, even less visibly, we also encounter the state and its legal system when we sign a contract, an act in which the parts assume that some legal rules govern its content and execution, as well as eventual claims of malfeasance, duress, and the like. These are some of the manifold faces of the state. Phenomenologically, it appears as a series of individuals holding offices, often inhabiting buildings and using seals and credentials that certify them as having a claim to make decisions in and by which they invoke the powers and authority of the state. The state shows itself in a bewildering variety of individuals and offices.1 This is, as it were, the “lived state” that has recently elicited fruitful attention from authors writing from mainly an anthropological, ethnographic, or symbolic perspectives.2 These varied faces have led to a bifurcation of views about what the state is. Some political scientists and macro-sociologists have been captured by the

1

Mann (1993: 53) puts is well: “Under the microscope, states ‘balkanize,’ dissolving into competing departments and factions.” 2 See Abrams 1997, Bratsis 2002, Coronil 1997, Das 2004, Das and Poole 2004, Escalante Gonzalbo 2004, Gupta 1995, Lomnitz-Adler 1992 and 2001, Loveman 2005, Migdal 2001, Navaro-Yashin 2001, Poole 2004, Runciman 2003, Scott 1998, Steinmetz 1999, Verkaaik 2001, and Wilson 2001. I will return to some of these works as I proceed with my discussion.

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solemn faces of the state, impregnated with the signifiers of its proclaimed unity and of its link with a nation/people/citizenry predicated as a homogeneous entity. On the other hand, to many who adopt a (broadly defined) anthropological perspective, the true reality of the state is its atomized, ultimately evanescent face of daily encounters with some of its officials. Both ways of looking make important contributions to the understanding of the state. In preceding chapters I made abundant use of history, political science, and sociology for the understanding of the macro-side of the state, but some of these visions tend to exaggerate the unity of the state, and sometimes derive a functionalist view of its existence and performance. On the other hand, there are many studies of concrete aspects of the state, especially of its institutions and of public policies; these studies are very valuable, but rarely depart from the institutions and/or policies they study toward a conceptual reconstruction of the state of which they are a part. Couched in terms that equate to anthropological views, they tell us a lot about how the power of the state is exercised along manifold encounters with society; but these views do not seem to have found the analytical instruments for reconstructing the unity of the entity to which they refer. This raises some questions. The very first is, is there something that exists that may even be called “the state?” The second question, assuming that some kind of positive answer is given to the first one, is what gives unity to the multifarious array of phenomena that may be identified as being, or as being part of, the state? The plain fact, the one we all experience, is that what we encounter are individuals performing roles in state institutions; furthermore, from different social locations we experience different sights, from luxurious governmental offices to dismal jails, and from bureaucrats smiling at the powerful while maltreating the poor. The state not only has many faces, it shows different faces to different individuals. This kaleidoscopic appearance led some social scientists, especially those inscribed in the Anglo-Saxon tradition, to the apparently obvious conclusion: there is no state—all that appears is an array of buildings, bureaucracies, and officials undertaking myriad different tasks. So what there is may be called a government, or an administration, or a series of public policies that should be empirically grasped in its diversity without improperly attributing some kind of unity to them. A less skeptical step is to adopt a view that I have already criticized: the state is what we can reconstruct in its more visible aggregate, a set of bureaucracies and its subsequent roles and officials. But this step does not provide a criterion for finding the overall unity of the state; the usual recourse is to appeal to some kind of neo-Weberian assertion, in the sense that what characterizes this entity is its bureaucracies, as well as

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their territorial character and their supremacy in the control of the means of physical coercion. This view, which I have partially incorporated in my own definition of the state, is correct but insufficient. It accounts for some institutions of the state, but not for all them: state owned or run schools and universities, state banks, industrial and commercial corporations, various kinds of licensing and control institutions, and other parts of the state do not fit within this definition. More importantly, it ignores other dimensions of the state that, if my arguments in the preceding chapters are not wrong, are no less constitutive of the state than its bureaucracies. One consequence of the reduction of the state solely to the latter tends to wrongly posit it in a purely external relationship with society, which in turn quite often leads to see the state in a structurally zero-sum relation with society. On their part, the anthropological viewpoint—even though it provides rich information about the symbolic and micro-faces of the state—as already noted, does not seem to carry the theoretical baggage necessary for, as it were, developing its level of analysis toward a construction of the concept of the whole state. As a consequence, some of these latter viewpoints have run into a skepticism that is the mirror image of the macro one above mentioned: there is no state, just masks of political domination that, as its instrument or expression, project the illusion of an inexistent unity.3 For treating this enigma, I will follow the lead of Hobbes, who pioneered in arguing that the fact that the state is an artificial entity does not make it an illusory one; rather, one has to trace the links that constitute the unity of this entity and allow to attribute to it, and to its authority, actions undertaken by certain individuals.4

6.2. C A S C A D E S I believe that the clue for finding the unity of the state results from one of the constitutive dimensions, its legal system. As pointed out by Ho¨sle, a philosopher who elaborates on the rich German tradition on this topic, the 3

An influential statement of this view is in Abrams (1977: 63) who argues that instead of the state we should speak of “politically organized subjection . . . [because] . . . the state is the distinctive collective misreprsentation of capitalist societies. . . .” (ibid. 75); thus “The state is not the reality behind the reality of political practice. It is itself the mask which prevents our seeing political practice as it is” (ibid. 82); similarly see Mitchell 1991 and Verkaaik 2004. A good critique of these works from an anthropological perspective is Coronil 1997. Of course, the influence of Foucault’s work on governmentality and state effects (see especially Foucault 1991 and 2000) is strong in these works. 4 On this point see Skinner and Strath 2003.

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state is what he calls a juristic entity. It is one that, through its legal system, has some behaviors of its officials attributed to the authority and power of the state. The decision made by a given individual only becomes imputed as a state act because certain rules define that such an act by such an individual, having fulfilled certain legally prescribed requisites, qualifies as an “official” (i.e. state) decision. As Ho¨sle (2004: 498) says: The state exists as a social as well as legal structure only so long as certain people perform certain acts—although they perform these acts with the consciousness that they are contributing to an order that, in accord with its ultimate meaning points beyond their own existence and that is legally structured. Juristic persons may be conceived neither as fictions nor as really existing entities independent of the human beings who support them—they are schemata of imputation that as such be actualized through the concrete behavior of real individuals on one hand, and on the other make it possible to evaluate precisely their behavior. The fact that the state has certain rights always means that certain persons have corresponding rights, not as private persons, however, but as persons exercising a certain office.5

The “schemata of imputation” is the chain of legally-dispensed authorizations that creates the real, albeit underlying unity of the state. The legal/juristic dimension of the state is the one that gives the state its unity, the thread that links its parts. On the other hand, against excessively legalistic interpretations,6 this dimension is not the whole state. It is that part that puts in front of us individuals who have, in their interactions with us, the plus of having a certain range of their activities legally defined as part and emanation of the state’s power and authority. In the preceding chapter we saw that this aspect determines the special rights and obligations of state officials. They have them because and only insofar as they are necessary for discharging the duties assigned to the roles the officials perform in the respective state institutions. Here the link between rights and obligations is correlative: for example, the right that a certain individual has to deprive me of my freedom is derived from his obligations as a judge in the criminal case to which I am submitted. In short, in one of its constitutive dimensions the state includes a cascade of legally-dispensed authorizations; this is what gives the state its empirical and conceptual unity. Every official of the state is such an official because he has been appointed (or, in some cases, elected) to that role by means of a legally formalized procedure; in turn, this procedure has given the right to make such appointment to another individual (or to the citizenry, in the case of elected 5

In a similar sense see Bourdieu 2004. The arguably most paradigmatic of these legalistic views was proposed by Kelsen 1945 and 1967. 6

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officials), placed in a hierarchically superior position in the bureaucratic structure of the state. And this latter individual, in turn, owes her own role to a similar process, in what is often a long chain of legally-dispensed authorizations. Such a chain is continuous, independently of the unitary or federal character of the state, insofar as the authorizations dispensed in the latter states by local authorities derive from the overarching constitutional structure of such a state. Furthermore, we should notice that this cascade is a unique characteristic of the modern state, the manifestation of its legal dimension and the consequence of the various expropriations that, as we saw in Chapter 3, were part and parcel of its emergence.

6.3. S H OW I N G VA RY I N G FAC E S I mentioned that the state shows different faces depending on with whom their officials interact; we also saw in the preceding chapter that justice is nowhere truly equally dispensed across social sectors and classes. Furthermore, everywhere but more so in highly unequal countries, the rich and privileged encounter few faces of the state, and those few are often quite friendly. Some are so friendly that they involve the selective use of state institutions by some of the rich and powerful, who are experts in obtaining subsidies, privileges, and exemptions extremely hard to justify in terms of minimal social equity. On the other hand, when this is not the case, the rich and powerful often undertake elaborate strategies to elude most state bureaucracies: dwellings in well-guarded (by private personnel) developments or apartment buildings; private health insurance; private schools and universities; private transportation; and the like.7 And sometimes, when encountering the state for reasons other than the search for some kind of advantage is unavoidable, as when applying for drivers’ licenses or for passports, a phone call to an influential official, or paying a gestor (as they are called in Argentina) or a despachante (as in Brazil), obviates long queues and the bad tempered faces that often populate the other side of the counter. In addition, when the rich and powerful have to deal occasionally with the police or the courts, they often expect and demand privileged treatment, if not sheer impunity.8 7

This “ghettoization” of the rich and privileged has been abundantly documented by social scientists and journalists. In relation to some Latin American countries see among others Caldeira 2000 and Svampa 2006. 8 As a shady Argentine businessman, Jose´ Yabra´n, once said: “To be powerful is to have impunity.” That this is impunity from the law but not from other dangers is exemplified by the fact that this individual was murdered; the circumstances have not been clarified.

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Everywhere the picture is different for the poor and excluded, especially those living in marginal rural regions and in some peripheries of large cities. Scholars, journalists, and human-rights and legal-defense organizations have documented the manifold problems, and sometimes horrors, that follow this marginalized population’s encounters, not only with various “security forces,” but also with indifferent and distant bureaucrats of various sorts. There are counter-examples to this but, at least in Latin America, even under democratic regimes, it is more the rule than the exception. Indeed, these are serious denials of the agency and the rights of citizenship of those individuals. Furthermore, many of them belong to huge and growing informal markets that are to a large extent a depository, not only of deep poverty but also of preand proto-capitalist, even servile, social relations. Many of these people live under such deprivation that, barring exceptional individuals and social movements, their overwhelming concern is survival; they do not have opportunities, material resources, education, time, or even energy to do much beyond this. These deprivations mean that these individuals are materially poor, while the previously listed ones entail that they also are legally poor. Material and legal poverty is the actual condition of important parts of the population of democracies, new and old, East and South. This is what in previous work led me to assert that this kind of situation entails a low-intensity citizenship.9 Yet, at any event in some of these situations, even through an ugly face, the state in a sense is still there. But that presence is evanescent; there may be some buildings and individuals who claim state-authorized powers; but the state as a legal system has evaporated—or never taken hold. In these situations various kinds of informal or traditional law exist, and the absence of state law is sometimes substituted for by, among others, various types of communal assemblies, rural and neighborhood associations and cooperatives, and Aymara aillus or similar indigenous associations.10 Yet another kind of legality may prevail, sometimes complexly relating to the former. I refer to what is plainly a mafia law that includes bosses who tightly control “their” territory, collect “taxes,” charge “custom duties” for various traffics, and apply a kind of “justice” that often includes the death penalty—these are the “brown areas” I discussed in my work cited in footnote 9. Still, even in these cases “the law” may be still there, albeit in a perverse fashion, as when some bosses invoke their condition as state officials and occasionally use state law as a discretionary weapon for asserting their power and the interests they defend.

9 10

I refer to chapter IX in O’Donnell 1999, first published in 1993. For the particularly interesting and complex case of Bolivia see Gray Molina 2006.

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These are situations at the outer margins of the state, where its legal system reaches only as far as state officials, quite often members of the mafias that actually rule, invoke segments of the law for exerting discretionary power over the population. This kind of situation has been studied by some anthropologists, who have looked at “the workings of a translocal institution that is made visible [far away from the center, O’D] in localized practices,” thus correctly concluding that “[A]ny theory of the state needs to take into account its constitution through a complex set of spatially intersecting representations and practices” (Gupta 1995: 375, 377). Concurrently, reporting on political bosses in a recondite part of the Peruvian mountains, the gamonales, Poole (2004: 50) argues that their power Is closely allied with—and in some cases one and the same with—the “long arm” of the law. . . . From the gamonal ’s (and the peasant’s) perspective, then, there is little distinction between the margin and the center of the juridical state: for the gamonal the essence of the “law” resides in its necessary privatization and, hence, infraction, just as the sovereign’s power resides in the exception. Seen from this perspective, the ‘law’ as guarantor of rights always already contains within it the threat of an arbitrary power even when physical violence may not be present.11

As already noted, the preceding puts serious doubt on two usual assumptions in the mainstream democracy and democratization literature, that if there is a democratic regime at the national center, state legality would be effective throughout the territory, as well as that all subnational regimes also would be democratic. Unfortunately, the reality of many contemporary democracies is more complex than that: there are vast gaps in their legality and some of the subnational regimes are authoritarian.12 It is worth noting, on the other hand, that situations such as the ones I have depicted do not usually lead to chaos; they are a kind of order, but of a rather perverse kind. Escalante Gonzalbo (2004: 40) perceptively notes the importance that the “intermediaries” have in these situations, whether invested or not of state roles; they are the ones who “negotiate the selective infringement of the law [so that] when they are effective . . . they manage to locally achieve political stability and produce order, albeit at the cost of interfering with the rigorous application of the law. In other words, their presence is an obstacle for the effectiveness of the logic of the state, but it is also indispensable.” It is

11

See also Coronil 1997, Das 2004, Loveman 2005, and Wilson 2001. This practically and theoretically significant issue, to which I have already referred, has been raising an interesting literature; see among other works worth mentioning Behrend 2008, Gibson 2004 and 2005, Snyder 1999, and Trocello 2008. 12

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because of this that there “cannot be expected the same behaviors from all citizens, because the same laws have very different consequences for different groups.” This is why, in those regions and as consequence in good measure in countries as a whole, “For more than two centuries [including not a few cases and regions under contemporary democracies, O’D] a minimum of governability has been achieved at the expense of the Estado de Derecho”; ibid. 39 (my translation). A further consequence is that these flaws and problems not only impinge on the four dimensions of the respective states. They also have serious consequences on the workings of the institutions of the regime itself. These regions have authoritarian rulers who control extended territories, and elect to the national parliament representatives who can be presumed to basically obey the neo-patrimonial, if not mafiosi, patterns prevailing among the powers they represent in the national arenas. Consequently, even if one’s interest is the study of just the regime, it is necessary to get rid of the above mentioned assumptions, all of which entail a presumption of a high degree of intra-national homogeneity that does not fit many countries outside the Northwest.

6.4. T R A N S I T I N G RO L E S Perhaps the immersion of most of us (at least among the likely readers of this book) in basic assumptions of modernity makes it difficult to understand how unnatural is a behavioral pattern that concerns some classic sociologists:13 our constant daily switching between various roles. In the same day we may be husbands, parents, drivers, pedestrians, employees, tax payers, and a whole host of other roles. Normally we move quite easily from role to role, in each of which we unconsciously adopt conventions and behaviors that allow us to perform them in ways that usually lead relevant others to perceive us as reasonably well-adapted individuals. But as modernity generated highly complex organizations other, more complicated, role transitions were also demanded. Specifically, we saw that being a state official is supposed to impose an exacting set of obligations: especially their primary dedication to that part or aspect of the common good to which, however minor the official’s role, he has been put in charge by the cascading hierarchy of authorizations that affected his appointment. Prior to entering his office or sitting at his desk, 13

The changes of roles and conceptions of roles, as well as the assumptions and behaviors that followed them at the compass of the emergence of modernity found classic analysis in the work of Elias 1973, 1974, and 1975, and Simmel 1950 and 1968 among others.

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he has performed a series of roles in which he has enacted his identity and interests as a private person; but when he goes into his state role, his obligations toward the aspect of the public interest he is to serve are supposed to take precedence over his other roles and consequent interests. During my incursions as an amateur anthropologist I have made two observations. One concerns how widely it is assumed in some countries that the taking over of a state role will be properly performed, and how strong is the condemnation when it is found out, both in minor cases and in scandals that reach the media, that this has not happened. The second observation is how difficult such a transition is in countries where such an assumption is not generally or deeply held. If I am poorly paid, and/or if I owe my job to a boss who expects me to hand over to him goods I handle at work as a form of recompense; and/or if my family and friends expect—actually, demand—that I use my job to dole out goods they feel I owe them, then why on earth shouldn’t I do it? Moreover, why shouldn’t I do it when everyone around me, including my bureaucratic superiors, are doing it, and I could be risking my job by refusing to do it? As the chain of legal authorizations we saw above and superimposed on it (as it is the one that makes the relevant actors state officials), this is a second chain of authorizations, but it is one that links those officials while they undertake particularistic, anti-legal behaviors; sometimes these particularistic chains may extend from low echelons to the highest realms of the respective state institutions. These are particularistic practices, manifested not only in sheer corruption but also in nepotism, clientelism, discriminatory application of legal rules, abusive use of the perks of office, and others. These behaviors entail an extralimitation; i.e., going beyond the limits of the behavior prescribed by the rules that establish the rights and obligations of the respective state officials. This means that in the resulting interactions there is still a state official (and probably also an office and a building), who can do what he is doing precisely because he is such official. But even though in this sense the state as thus embodied is still “present,” the state as a legal system has evaporated because of a perverse privatization, by which the public aspect of the state as law is “sold” by means of particularistic transactions. The other side of this coin is what may be called infra-limitations. I refer to state role obligations that are omitted or grossly underperformed. Laziness, indifference toward the respective duties and tasks, passive protest for poor pay and working conditions, prejudice, and other reasons concur with an ugly portrait that has been drawn by many observers and victims. Part of the problem is that, once more, this additional ugly face of the state is much more often presented to the poor and discriminated than to the others.

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As I argued in the preceding chapter, the idea of legal limitations assigned by the law to many social relations and, with special care, to the relations that are supposed to govern the behavior of state officials, is a unique characteristic of the modern state; this is especially true under democracy and the distinction between the public and the private spheres it postulates. This idea is alien to various kinds of patrimonial states, as well as to the neopatrimonialism entailed by the examples I presented above. In these cases that distinction is blurred or simply ignored: the powers resulting from being an official of the state can be indistinctly used for private advantage or for attaining some aspect of the common good—and sometimes, as I also have observed, for both purposes at the same time, and with good conscience. Truly, there is a split everywhere between the pays re´el and the pays le´gal, as shown by the fact that these terms originated in one of the earliest democracies, France. But nowhere is the split so deep and visible as in the situations I depicted above. Extra and infra-limitations severely infringe on the legallyprescribed obligations of state officials; of course, they also hinder the workings of the state in its four dimensions, including its credibility, both in relation to those who have good reasons for seeing it as alien and hostile, and to those who benefit from those infringements. Cynicism from both sides of this social equation results, including in relation to some of the state institutions—such as the legislature and the judiciary—through which a democratic regime works; it is not surprising that those failings of the state reverberate into how the regime actually functions.

6.5. T H E O B L I Q U E FAC E O F C A P I TA L I S M Now we must deal with another face of the state. Since its emergence capitalism has been a world-wide phenomenon, and today it is even more so. Contemporary capitalism has many localized varieties,14 but its vigorous spread throughout the world always entails vast exchanges of objects, services, and currency (and, indeed, individuals), undertaken mostly by organizations (business corporations and in some cases also state institutions) that operate by means of employment relations by which the workers—and nowadays in many cases also the managers—do not own the organization nor its means of production. This is well known. Yet, even though capitalism has deeply changed since its emergence, throughout the world it is more than ever the 14

Even among highly developed countries there is an interesting “variety of capitalism,” discussed among others in Hall and Soskice 2001 and Hollingsworth et al. 1994.

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main mode of production and exchange in the economy and, consequently and to a significant extent, also of the overall articulation of societies. Yet the preceding does not mean that capitalism is nowadays the only mode of production and exchange. Rather, the farther away we move from highly developed centers, it combines with various artisanal, pre-capitalist or even servile modes. Some of those engaged in these modes are almost completely excluded from capitalist circuits, and their workers often are among those who suffer deepest poverty. Other modes, that include many who work in the informal economy and their employers (whether or not they use capitalist relations of employment),15 are a peripheral albeit economically important part of capitalist centers and corporations. There is ample evidence of the subordinated linking of these modes to core capitalist circuits; the latter have spread by the search by transnational corporations, outside their original markets, for cheap and legally unprotected labor—this is an intrinsic feature of the dynamic, world-expanding and unequalizing tendency of capitalism. So, even if recurrently shaken by crises, capitalism reigns supreme, both in itself and in its recurrent subordination and transformation of other modes of production and exchange, and consequently also of patterns of overall social organization. In Chapter 3 we saw the crucial role that in the Northwest was played by the emerging state for the expansion of capitalism. This led to countries becoming quite homogeneously capitalist; this did not happen in most of the rest of the world, where the implants of capitalism have coexisted with pre-existing modes that proved more resilient and extensive than those of the Northwest. Still, with few exceptions, and whether democratic or authoritarian, contemporary states sanction, back and guarantee capitalist relations of work, exchange and production, irrespective of how extensive and dynamic these relations are in each country. Now we need to take a step back in time. With the emergence of the modern state there occurred for the first time in history a clear separation between physical/political and economic coercion. This was part and parcel of the diffusion of capitalist social relations, where the economic coercion entailed by the need to sell labor force by individuals dispossessed of means of production corresponded to an actor, the entrepreneur/employer, who was distinct from the emerging apparatus of the state. This emergence, against some neo-Marxian interpretations, was not “caused” by capitalist relations of production; suffice to remember what I recount in Chapter 3 about various patterns of state-making. Yet I believe that those interpretations are right in arguing that, at the rhythm of the expansion of its bureaucracy and legal 15

I return to this topic in Chapter 8.

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system, the state increasingly appeared, including capitalist social relations, to be acting on the basis of, and enacting objective and impartial legally-based rules. Later on this was reinforced when democracy emerged, even if initially in its non-inclusive version; from then on rulers had to claim the origin and justification of their power and authority on a referent external to the state (the citizenry or the nation or the people, according to the variations I discussed in Chapter 4). Furthermore, as this authority referred to individuals carrying rights that it was beyond the reach of the state to abolish, the ensuing constitutionalization meant that from then on the state was supposed to speak exclusively in the language of the law. In turn, the lack of physical coercion in the establishment of the labor contract was the basis of the apparent equality of the parts that we saw in Chapter 2 that took time and many struggles to partially correct. It is important to realize that from the preceding it follows that the state is the guarantor of capitalist (and other) social relations, not of the concrete social actors that enter into them. Yet, by doing this the state guarantees the reproduction of the social condition of the respective actors. In this sense the law is the most formalized (and an extremely effective one) contribution of the state to the stability and reproduction of society, its equalities as well as its inequalities. Furthermore, especially under democracy the law is also the face of the state that puts its bureaucracies in the position of impartially implementing rules that have been enacted by procedures that conform to the legal/ constitutional architecture of a democratic regime;16 this may be effective and consensual because normally it is substantially true, even if it greatly helps reproducing complex mixes of equalities and inequalities. In addition, the ensuing ratification of the given social order is fostered by the myriad daily decisions with which the bureaucratic Penelope works a yarn that is a mirror image of yesterday, and in which the existence of the given social order is repeatedly presupposed. Thus, speaking of the state officials Bourdieu (1996: 27) says that “by producing a performative discourse about the State, under the appearance of saying what the State is, they make the State what it is” (my translation). This includes, I add, the state’s backing and guaranteeing of manifold social relations, egalitarian and not. The kind of state I discuss in this book is at least partially democratized; it is also a capitalist state that, in the same way that it houses and backs a democratic regime, houses and backs capitalist social relations and the social 16 In this context Hunt (1993: 26) notes that “It is important to stress that the legal rules do not create the social relations that make up capitalist society. But by stating them as principles and by enforcing them, the law operates not only to reinforce these relations but also to legitimize them in their existing form” (italics in the original).

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actors of this mode of production and exchange. For being such a state it does not need, as some interpretations have claimed, to have officials cunningly figuring out how to help capitalism and capitalists. It does not need, either, to be always “right” in promoting the interests of capitalism and capitalists, nor to be controlled at its realms by representatives of the latter. A state that is among other things capitalist does not preclude that some of its policies may hinder the reproduction of capitalism and harm capitalists. Cognitive limitations, time constraints, costs of gathering and analyzing information, ideological biases, and the perceived need to balance capitalist interests with other interests and goals, determine that states are not only nor unfailingly pro-capitalist. On the other hand, in the daily reproduction of their main social relations, in their legality, and in the routine behavior of their bureaucracies, states and governments enact widespread assumptions about what is the normal functioning of the economy—and such normality is of an economy that functions under capitalist parameters. What is an economic crisis is thus defined with reference to those parameters, aside of course from the social or political manifestations of the crisis.17 That states and their governments may or may not succeed in getting back the economy (and, indirectly, society, too) to “normality,” does not detract from the positioning of the state, short of true revolutions, as a backer and guarantor of capitalist social relations. The preceding means that in its historical and structural configuration the state backs and guarantees the actors and social relations of capitalism, but at the same time attends to issues arising from its other, multiple and intersecting dimensions and faces—including, in the cases that interest in this book, being a state that houses a democratic regime and addresses a referent variously construed as a citizenry, a nation, or a people. Furthermore, this same state contains many complex, hierarchically ordered bureaucracies; in fact, through its legality the state also sanctions and backs hierarchical relationships in many bureaucracies, including private ones. As I noted above, these relationships are inegalitarian, and many nurture authoritarian tendencies.18 This problem is serious because in most bureaucratic contexts we are not properly citizens, in that we do not have the rights of participation—to elect and elected, basically—sanctioned as central components of political democracy; but this only highlights the importance of tracing and validating 17

In Oszlak and O’Donnell 1984 we discuss this and related matters. I believe that Shapiro (2003: 4) is right when he argues that even though hierarchies may be “legitimate,” they “should generally be presumed suspect and be structured so as to minimize the likelihood that they will atrophy into systems of domination”; in a similar sense see also Shapiro 1996: 11 and passim. 18

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the idea of agency into the manifold sites where it is at stake. We are agents everywhere, and as such even in subordinated positions we carry rights emerging from the consideration and respect due to our condition as such agents—we saw echoes of this principle in the legalization of the work place.

6.6. T H E WO R K E R A S A L E G A L P E R S O N The story I summarily told in Chapters 2 and 3 about the Northwest entailed a remarkable convergence that now I want to stress. In what in historical terms amounted to a short period, there occurred processes that not only converged in time and space but also by and large dynamized each other. I refer to state-making; the creation of increasingly powerful state bureaucracies; the extension of the legality of the state; the linking of states with “their” citizenry, nation, or people; the initial conceptions of the rule of law in England and Prussia, and the posterior extension of these conceptions into the constitutionalization of political rule; the concomitant emergence of initially restricted democracy; and, indeed, the full expansion of capitalism. I discussed in Chapter 2 the long process of construction of the idea of agency, including the progressive extension of legal personality and some civil rights, later transported on to the political sphere as rights and freedoms entailed by a democratic regime. But legal personality and civil rights were not only precious preceding conditions of political rights and citizenship: they had similar importance as building blocks of capitalism. We saw the emergence from ecclesiastic law of the concept of the business corporation, the sharpness and broad scope that the adoption of Roman law gave to the concept of private property and the states’ creation of protected markets and uniform laws across their territory. These were important contributions to the expansion of capitalism, to which now I add another: the construction of the worker as a legal person, a carrier of (initially few) civil rights that included his right to “freely” sell his labor force to the capitalist. As capitalists lacked (but as other kinds of economic enterprise in some parts of the world still have) recourse to physical coercion for putting people to work, and since this related to the emergence of a state in the posture of impartially backing its own legality, the construction of the worker as a legal person that entered into the labor contract was the counterpart of capitalism—no such contract without the legal personality of both parts nor, as with any contract, its backing by the state. For this to occur, the previous moral and legal work on ideas of agency and civil rights was a very useful background condition: as it was done in relation to political rights,

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these conceptions and constructions were transported from civil rights to the sphere of capitalist social relations. Thus, capitalism could not but create its own Frankenstein monster, as its legally entitled workers and various political allies vigorously struggled for the expansion of their initially restricted rights; at least in the Northwest with these struggles further impulses were given to both democratization and the dynamism of capitalism. That this was not entirely the case in other parts of the world will occupy us later on.

6.7. R E C A P I T U L AT I O N Great national celebrations, edifying stories taught in schools, encounters with state officials. Big or small, friendly or nasty, present or absent in its legality, in centers and in peripheries, the kaleidoscopic faces of the state are part of its lived sociological reality, and demand not only that we recognize them but also that we reconstruct them. This is not only a major challenge to a theory of the state; it also bears direct relationship with the theory and practice of democracy, as the various faces of the state have strong influence on what kind—or quality—of democracy there is, if any. This issue has been recognized in a volume mostly based on anthropological studies, several of which I cite above. In an argument that merits lengthy quotation, the editors note in their Introduction: [T]he ambiguities of the state as both illusory as well as a set of concrete institutions; as both distant and impersonal ideas as well as localized and personified institutions; as both violent and destructive as well as benevolent and productive. Modern forms of state are in a continuous process of construction, and this construction takes place through invocation of a bundle of widespread and globalized registers of governance and authority . . . the study of the state and its practices must discern and explore . . . their localized meanings, genealogies, and trajectories as they appear couched in mythologies of power, as practical, often non political routines or as violent impositions. . . . 19

We have looked at many faces of the state; perhaps we may reconstruct them with a broader image. That the state is such a problematic entity to grasp is largely due to the fact that each of its dimensions and faces appear differently. The state as a set of bureaucracies tends to appear in front of society. As an attempted focus of collective identity, when we are appealed as those for whom 19

Hansen and Stepputat 2001: 5.

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state and government devote their tutelary efforts, the state appears above society. As a filter of and from manifold others, it appears around us. And as a legal system, the state is inside society. This image points to both realities and mirages, perceptions that may be more or less realistic, and more or less widely shared or ignored; it also points to the disputability of the various, and changing, positions from which the state appears. In addition, those dimensions of the state appear in some occasions as highly localized and at others as extremely distant. The possibility of critical examination of some of those perspectives and positions I discuss in the coming chapters. For the time being I note that the prismatic faces of the state should not lead us to deny its entity; rather, they stress the need to find the thread that knits its unity—its legal dimension and the cascade of authorizations that thus derive.

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Dialogics, Agency, and Democracy I begin this chapter with a racconto of a particularly sad and cruel period in my country, Argentina, which I believe sets a useful contrast for appreciating some characteristics of democracy (Section 7.1). This contrast leads me to the discussion of dialogical appeals and networks of discourse (7.2). The argument that these networks are essential for the exercise and flourishing of human beings as agents occupies me in 7.3. Yet the potentialities of these networks may be cancelled by the ever present danger of reification—I discuss this topic in relation to the state (7.4).

7.1. A M E M O RY O F V E RY B A D T I M E S The present section of this chapter is based on notes that I wrote—finding out later that other people were doing the same in countries under similar circumstances—in a private diary during the years 1976 to mid-1979, when I lived in Argentina under an extremely repressive rule.1 Since then these notes have traveled with me everywhere; now I return to them because I believe that there is an epistemological gain in dealing with situations that are the almost exact opposite of democracy. I wrote these notes in the hope that someday the situation we were going through would be terminated; thus, I dwelt not only with the horrors of the time but also with what they suggested a contrario. Because the circumstances condemned us to a very private life, these reflections center on individual, micro-aspects that, however far they 1 During those years myself and a few colleagues worked in what we often called “the catacombs,” a research center (Centro de Estudios de Estado y Sociedad, CEDES) that we created in mid-1975, already persuaded that highly repressive times were coming and hoping to maintain a small space of freedom in the midst of such circumstances. This allowed us a tiny milieu in which we could freely express ourselves. Expelled from the universities and with our books “disappeared” from libraries and bookstores, we published some mimeographed texts that circulated as authentic samizdats. Some of these texts were quite soon published abroad; later on I reprinted some of them in chapters II, III and IV of O’Donnell 1999, and others were resurrected after some thirty years in O’Donnell 2009.

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may seem from normal political life, I believe are relevant for a more rounded theory of democracy and its links with the state. In Dilemmas of Pluralist Democracy, Robert Dahl 1982 remarks that one’s haircut can hardly be imagined as a relevant concern for a government. He is right. However, in Argentina, approximately between 1976 and 1979, the length of hair was minutely regulated for students, teachers, public employees, taxi and bus drivers, and other occupations. The rules specified that the lower line of hair should be two centimeters above the collar of the shirt (which of course had to be buttoned and with a tie), and should cover only the top rim of the ear. Also, it goes without saying that the length of skirts was to be below the knee, and that slacks were prohibited for women in schools and workplaces. Non-insignificant sanctions were established for transgressors, who were sometimes pointed out as such by diligent passers-by. Persons like me, who were not occupationally forced to comply with those regulations, at times were confronted with hostility because of our improper way of wearing our hair or our unbuttoned shirts. On the other hand, when it became clear that the regime was collapsing, just before national elections were held, The New York Times (November 7, 1983: 7) registered with surprise that in the campaign rallies could be seen great numbers of (especially) young men with long hair and young women with slacks or short skirts. Of course, this only became visible when many people came together. This happened in the context of celebrating that for the first time those youngsters were going to be able to vote; clearly, the minimal quantitative contribution of each of their votes had for them the enormous significance of being part of the act—fair elections—that signified the end of a dreadful dictatorship. The state inaugurated in Argentina by the military coup of March 1976 not only applied enormous repression; it did it in a terrorist way. I mean violence that was exercised by unidentifiable groups (although it was clear that they belonged to, or were authorized by the “security forces”—in the circumstances quite a euphemism). They chose their victims with criteria that were difficult to predict, and which did not allow any legal recourse; in fact, among the groups that suffered more murders were lawyers who courageously presented writs of amparo for some who were “disappeared” by those thugs. Furthermore, and as later on became internationally known, the terrorism of this state expressed itself in purposively failing to acknowledge its victims:2 they just “disappeared,” leaving a horrible doubt about their fate. 2 This was an egregious case of perverse learning. The leaders, at the time of the Argentine armed forces, knew that in Chile the Pinochet government had paid heavy international costs

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It was not easy to live in Argentina during those times—particularly if you were known not to support that state. It was lonely, sad, and frightening. So many friends and acquaintances “disappeared,” others in exile, and still others—many—retreated into deep silence and careful avoidance of encounters with individuals they felt would somehow endanger them. One knew that if the terroristic violence were to be unleashed, it would be—typically— during the night, in absolute solitude and impotence, and with no rights to be claimed or institutions to be appealed to. The consequent fear myself and others associated with some recurrent words: loneliness, cold, and darkness. In Hobbes’s depiction of the state of nature, and in novels, from Kafka to Latin Americans such as Carpentier, those feelings come up again and again. Reading through my experience, cold-fear is the expression of the social loneliness imposed by the politics of terror, with no possible public appeal to (those we earlier designated as) “them”—values, institutions, congenial individuals—with reference to which it is possible to sustain a minimally satisfactory social life. On the other hand, the feeling of darkness expressed the acute cognitive limitations entailed by the eradication of public spaces provoked by the terrorism of the state and the subsequent silence of society— there was practically nothing but the propaganda of the rulers and the rumors that circulated about new horrors that had been perpetrated. When confronted with a terrorist ruler (whether it is a state all the way to a violent father), one is deprived of basic textures of sociability, and consequently divested of crucial social supports. Loneliness, fear, cold, darkness— this is the experience of terrorized human beings. In a hard but exemplary way, in those circumstances it became the turn of we members of privileged social origins, to suffer the fear of arbitrary and extreme violence that has been and still is the experience of many, even under some democratic regimes. This we should never forget; it commits us morally forever as intellectuals and citizens. The very repressive condition of the times (and indeed, as I found out later on, the selective memory of some) makes it impossible to know how many in Argentina experienced the situation in the way I have described it. What seems clear is that, with few exceptions,3 everyone who disagreed wore a mask. Thus, in daily encounters you could not usually recognize those others; for publicly killing and torturing a lot of people. Feeling more astute than their Chilean colleagues, the Argentine leaders decided that the way to avoid those costs was by committing all sorts of horrors in a clandestine way. Sadly, for the initial two or three years they basically got away with this, although later on they paid by being submitted to trials for human rights violations; some of these trials are being held even today. 3 Among whom count the “Mothers of Plaza de Mayo” and some militants and lawyers of human rights organizations, some of whom paid for their courage with their lives.

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this hindered recognizing yourself as a carrier of shared values that entailed refusal of the overall situation. In that world with few mirrors, collective identities were severed, whether totally (leading in such cases to the complete privatization of the respective lives), or by relying on the imaginary (i.e. the presumption that there should be quite a few “like me” who have also opted to conceal their feelings and opinions). In other cases, which in my impression were not just a few, acceptance of the terror (if not of all its dreadful features, which only later became fully known) was expressed in statements to the effect that “order had to be imposed” and that those who were victims in cases that somehow became known “must have done something.” Loneliness, darkness, and cold were not only the result of fear of violence on one’s body but also of how hard it was to socially verify one’s public self— one’s own values and social identity. Based on this experience, I concur with Hobbes 1991 and Shklar 1989 in their depiction of the horror of this kind of state of nature: brutish, dangerous and lonely, in a very real sense sub-human. Not “too much noise” or “overload” but silence is the worst nightmare of human associations. The limiting risk of democratic authority is decisional paralysis. But the limiting case of authoritarian rule is—literally—madness, destructive omnipotence that breaks the social mirrors with which it might trace some paths back to reality; of this there are many examples in history,4 including the amazingly distorted view of the world that precipitated the rulers of the time, and the country, into the Malvinas/Falklands war. The deep silence from society that results from extremely authoritarian, terrorist rule is a case of monological structure of discourse. Such structure is one where only the center (from the repressive parent to the repressive state) is entitled to speak; one may at most plead for the benevolence of the ruler— there are no citizens, just rulers and subjects. Authoritarian rulers try to monopolize the discourses that define us individually and collectively: they tell us that they know what is good for us, and who and what we should be, and in case of non-compliance they threaten a rage from which there is no safe harbor. In contrast, a dialogical network of discourse is one where we are entitled to two things. One, to speak to the center by autonomously asserting our identity and interests, using what in previous works I dubbed “vertical voice.”5 Second and no less important, to speak among ourselves, whether because we want to associate to undertake some joint action, and/or because we intend to present some kind of collective vertical voice to the center, and/ 4 5

For pertinent reflections on this matter see Gald 2002. Chapter IV in O’Donnell 1999.

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or simply because we wish to communicate among ourselves. This, that in the above-mentioned essay I called “horizontal voice,” is exactly what despotic rule most represses and fears. You can humbly plead to the ruler and participate in ceremonies where you cheer him and his great accomplishments. But you can never demand rights, much less do it collectively by joining your voice to others—during those years in Argentina this meant almost certain death.

7.2. D I A LO G I C A L A P P E A L S A N D N E T WO R K S A dialogical network of appeals entails that we can co-constitute a public sphere by addressing others and the rulers about matters we deem significant, as they refer to values, identities, and/or interests of alleged public importance.6 We can address, vertically, a “superior” authority and, horizontally, other members of our association; such association is not fully egalitarian (since a superior authority exists) but is also non-authoritarian (since it allows dialogical, not just monological appeals). Such dialogical network satisfies some conditions for a democratized entity; but it still lacks a crucial component of a democratic one: we must have the right to engage in those appeals, and hold freedoms that protect and enable us to exercise such a right. The individual and collective exercise of legally backed dialogical appeals, both vertical and horizontal, is a fundamental aspect of democracy. From this angle, a citizen is she who, freely bringing in her various identities and interests, is entitled to reside and express herself in these networks of discourse, deliberate with others, and act in consequence, including matters included in the agenda of governments. The availability of these networks is a great public good, a social attribute of democracy, independent of the fact that some individuals may not care about it. The importance of this public good can be better grasped when one has experienced the appalling public bad of a despotic, monological structure of discourse. The more these rights are used and the more the resulting dialogical networks are criss-crossed by diverse appeals and deliberations, the richer is the public sphere and the consequent deliberations of a democracy.7 Surely these networks intersect 6 Of course I am alluding to the seminal contribution of Habermas 1962 and the large literature it generated, including the important work of Cohen and Arato 1992. For relevant discussions principally focused on Latin America see Cunill Grau 1997 and 2008, and Rabotnikof 2005. 7 I am persuaded that, the more extensive and intensive these deliberative instances are, the better the quality of a democracy is. Yet, in contrast to what some proponents of “deliberative democracy” argue, I do not think a good idea to propose it as a substitute for the institutional

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with manifold institutions and practices that sometimes enable but often obstruct their potentiality, even more so if they occur in societies marked by deep inequality and poverty; yet the absence of such networks shows a contrario their immense, even if sometimes only potential value. Furthermore, nowadays an increasing number of those networks constitute public spheres that are not linked to the territoriality of states and hence to their citizenship; they provide avenues for participation in multiple fora, some highly formalized, some informal. This is fostered by the current processes of globalization, but it is perhaps useful to recall that it is not entirely new—for example, the trans-European re´publique des letters, in the sixteenth century, was already active, and highly influential. The increase in the number and variety of those networks has led some authors8 who, as part of their interesting depiction of this phenomenon, assert that as a consequence new demoi have emerged that are acquiring similar importance to the demos of the political regime, as well as offering new patterns of participation and even of “representation”. As a metaphor of the increasing importance of those networks and of the engagement they sometimes generate, I find this assertion useful; surely this remarkable expansion has, by and large, enriched public spheres and dialogical networks, and intersects in many complex ways with states. But I believe that this should not lead to destroying crucial differences between the democratic demos and the asserted demoi, beginning with the fact that it is basically in state-anchored citizenship (directly or in some cases indirectly such as, in some matters, being a citizen of a country member of the European Union) that actionable rights are acquired;9 furthermore, it seems clear that having such rights is quite often an enabling factor for participating in the demoi, and that in cases where international networks or organizations claim to help deprived people in any region of the world, it is precisely for the acquisition of some of those rights that they most often aim—a topic to which I return in Chapter 10. At this point, I find it useful to recall what I said about the freedoms that surround a democratic regime in the first chapter. In the perspective of the present chapter they turn out to also have a collective, or social, dimension:

mechanisms discussed in the present book, nor as a normative model from which to judge the latter. 8 For these views see Bohman 2007 and Warren and Urbinati 2008. 9 In addition, however meritorious many of these networks or organizations are, in many cases it is not clear at all how and to whom they may be accountable, nor what it actually means to “represent” (something that the authors just cited in my opinion take too much at face value) those for whom they claim to act and/or speak. For discussion of this topic in relation to Argentina see Ippolito-O’Donnell 2009b.

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freedom of expression, association, belief, access to non-censored or monopolized information and the like are threads that sustain and help reproduce dialogical networks of discourse. Remember that this kind of freedom results from the public, universalistic, and legally-backed recognition that all members of society are agents, and as such equal in their dignity and in their right to have rights. That we have such freedoms enables us to participate in dialogical networks and consequent deliberations because, in democracy, even in the sometimes despised “formal” political democracy, we are construed as being such equal agents.

7.3. E XC U R S U S O N A D I A L E C T I C What we are—from our early relation with our parents until death—is to a large extent the result of social interactions, which shape and reshape our identity throughout our lives. This symbolic space of multiple recognitions is human life, a life that can only be lived as such in society. In order to be ourselves, to have an identity, we must project it into an interactive symbolic space and—if disorder, disorientation, or fear are not to result—we must receive it back, recognized in regular agreement with an identity that is the sedimentation of multiple past iterations. The dialectics of identity and recognition have been discussed by authors who agree on this view despite holding quite different theoretical conceptions.10 For example, drawing on Mead, Berger and Luckman (1966: 132) argue that these processes are “a dialectic between identification by others and self-identification, between objectively assigned and subjectively appropriated identity.” Further on, these authors, drawing on Simmel, argue that “The individual apprehends himself as being both inside and outside society. This implies that the symmetry between objective and subjective reality is never static”; ibid. 134. This is what, commenting on Hegel, Taylor (1978: 78) calls “the drama of human recognition,” which means that, even though at the risk of alienating 10 Just to name a few among the classics, I refer to Adam Smith and Hume, and in particular Hegel, who begins his memorable section of the dialectics of the master and the slave by saying (1977 [1807]: 139): “Self-consciousness attains its satisfaction only in another self-consciousness.” More recently the classic works of Mead 1934, Simmel 1950 and 1968, and Vygotsky 1978 have been very influential among contemporary authors; see especially Honneth 1995 and 2007, as well as Cooke 1999, Habermas 1988 and 1992, Ho¨sle 2004, Lechner 1981, Ricoeur 1996 and 2006, Reis 1984, and Taylor 1989a. Despite their differences, these authors agree, although obviously not always with these terms, that the human being is constituted in the symbolic order when s/he is named and recognized as such being by significant others.

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ourselves in our moments of extroversion and thus losing our identity, “integral freedom cannot be attained by an individual alone. It must be shared in a society which sustains a culture that nurtures it and institutions which give effect to it.” Thus “the human spirit is condemned to an odyssey—why it first finds its way to itself only on a detour via a complete externalization in other things and in other humans” (Habermas 1988: 153)—except that, I add, there is no Ithaca, no point of arrival in the horizon. Concomitantly, according to various contemporary works on genetic and developmental biology and psychology, a “dialogical engagement with other minds” (Tomasello 1999: 174) is a crucial component of human learning and culture. In turn Donald (2001: 150) asserts that “Socially isolated humans do not develop language or any form of symbolic thought and have no true symbols of any kind . . . symbols evolved to mediate transactions between two or more brains, rather than of the operations of single brain.”11 This is because, as in a major work on this topic Tomasello (1999: 5–6) says, human beings are differentiated from all other species by a very special form of social cognition, namely, the ability . . . to understand con-specifics as beings like themselves who have intentional and mental lives like their own. . . . This understanding of others as intentional beings like the self is crucial in human learning because cultural artifacts and social practices . . . invariably point beyond themselves to other outside entities: tools point to the problems they are designed to solve and linguistic symbols point to the communicative situations they are designed to represent . . . [The result is that] the overwhelming weight of the empirical evidence suggests that only human beings understand conspecifics as intentional agents like the self and so only human beings engage in cultural learning. (Italics in the original)

As the sources I have mentioned indicate, we are constituted in our humanity and culture by language and symbols that invite us, at a very early age,12 to recognize others as purposive beings and in that same act we normally begin to recognize ourselves to be so too; this allows us, as it were, to come back from the other toward ourselves with an enriched sense of our own identity. 11 This author (ibid. 254) adds that “The great divide in human evolution was not language but the formation of cognitive communities in the first place. Symbolic cognition could not spontaneously self-generate until those communities were a reality.” Because (ibid. 324): “The human brain is the only brain in the biosphere whose potential cannot be realized on its own. It needs to become part of a network before its design features can be expressed.” From a concurrent philosophical perspective on the “social nature of autonomy” see Crittenden 1992. 12 The contributions of Piaget (see especially 1932) deserve special mention in this respect; on this author see Flavel 1963. For another influential scheme that bears on the point I am making see Kohlberg 1981 and 1984; on this author see Reed 1997.

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This is a seminal moment for the acknowledgement that those others who seem to be like me may well have rights and interests equivalent to the ones I may feel entitled to claim—herein lies, in nuce, the possibility of later (ontoand sociogenetic) recognition of agency. The richness and variety of referentials is a necessary condition, or at least an extremely helpful facilitator, for the unfolding of a mature, equilibrated, realistic personality. A mature personality (or organization, for that matter) is characterized by high levels of complexity, flexibility, and many-sidedness, together with the articulation of these characteristics by a strong center. This is a strong center not in spite of but because it is open to, but not overwhelmed by, its context. It can identify and empathize with others without losing, rather enriching, its own identity. Iterated re-appropriations and reelaborations of identity through dialogical networks are the road to fuller and more realistic and, hence, more mature human beings—as it is also the road toward more open, responsive, and accountable democratic states and institutions. Indeed, these characteristics are the reverse of the inflexibility and closure of both the authoritarian personality13 and the authoritarian state.

7.4. O N T H E P E R M A N E N T R I S K O F R E I F I C AT I O N The processes I depict above are unending and potentially reversible: it is always possible that they are interrupted at a moment of extroversion, as when we lose from sight the true origin and justification of the authority claimed by the state, and we thus perceive it as a radically different “them” standing in front and above us. Such a perception entails naturalizing the state and its government, a reification that is analogous to the objectification, or fetishization of capital (and commodities) denounced by Marx. As he put it (1961 [1844]: 87), capital then appears as “[T]he externalization of the worker in his product [which] implies not only that his labour becomes an object, an exterior existence, but also that it exists outside him, independent and alien, and becomes a self-sufficient power opposite to him, that the life he has lent to the object affronts him, hostile and alien.” As a consequence Marx (1970 [1845–6]: 54) asserts that

13

As originally argued in the well known book of Adorno et al. 1950 and pursued, especially, by Altemeyer 1981 and 1996. For recent discussions of this literature see Coolens 2006 and Martin 2001.

142

Dialogics, Agency, and Democracy The social power, i.e. the multiplied productive force, which arises through the co-operation of different individuals as it is determined by the division of labour, appears to these individuals, . . . not as their united power, but as an alien force existing outside them, of the origin and goal of which they are ignorant, which they cannot thus control, which on the contrary passes through a peculiar series of phases and stages independent of the will and the action of man, nay even being the prime governor of these.

Furthermore (ibid. 53), This fixation of social activity, this consolidation of what we ourselves produce into an objective power above us, growing out of control, thwarting our expectations, bringing to naught our calculations, is one of the chief factors in historical development until now.

Marx referred to capital, although his reflections may well apply to other entities, especially the state. This extension was to some extent made by Engels (1978 [1884]: 209) who, referring to the state and its officials, said that “In possession of public power and the power of taxation, the officials now present themselves as organs standing above society . . . [they] pose as something outside and above [society].” Later on, as Honneth 2008 elaborates, the concept of reification was reinstated by Luka´cs 1972 [1923], as the attribution of naturalized, purely external and as it were autonomous existence to social entities that are actually the product of human action. This is alienation,14 forgetting the true origins of entities we have generated through our social interactions, accepting them as radically different and external to us and tending to put us as their mere subjects. In terms of the topic of this book, this has an important truth: those who exercise power over us in the state and government are an-other of us, an alterity that often poses as having its own origin and justification independently of us. But this posing is—should be—just a moment in the overall process of the production and circulation of power. In order to overcome such reification, one has to go back to the sphere of production of the powers exercised by those entities; i.e. the human actions from which they emanate. This is especially feasible, although far from guaranteed, when those actions are performed by the legally entitled citizens of a democracy. The sheer posing of this matter witnesses the potential that was garnered when some human beings could say to each other that the King was naked and drew conclusions about that amazing fact. I insist on this matter because 14

This term derives from the Latin alienus, meaning something that belongs to another person or place. As Honneth 2008 notes, Marx’s use of this term and its cognates, reification and fetishization, has roots in Feuerbach’s view of religion as such alienation.

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I am persuaded that the issue of reification of the state is a very important one, irrespective of what one thinks of the Hegelian/Marxian origins of the idea. For example, from another theoretical perspective Berger and Luckman (1966: 89) usefully comment that [R]eification is the apprehension of the products of human activity as if they were something else than human products . . . [it] implies that man is capable of forgetting his own authorship of the human world. . . . It is experienced as . . . an opus alienum over which he has no control. . . . Human meanings are no longer understood as world-producing but as being, in their turn, products of the “nature of things.”15

I wish to insist that this is the view of the state (and government) as a set of bureaucracies that stand in front and above society, and seem to somehow derive their powers from their tutelary role over us, an image reinforced by the rituals that we saw in Chapter 4. This leads to perceptions that veil the underlying realities of the social world and, indeed, obstruct the understanding of the grounding of democracy on citizenship and agency, and the crucial subsequent fact that citizens/agents are the source and ultimate justification of the authority and powers of state and government. The reification of the state is a grave and permanent risk, and to avert it we would do well to recognize it, and tell others about this; the exercise of citizenship, and ultimately the very meaning of democracy, is the permanent re-dis-covery and dialogical communication of this crucial fact.16 No state can ever be fully democratic—we saw this in the preceding chapters. Democracy or, better, democratization is an unending movement, always alienable and reversible, towards more dense dialogical networks inhabited by more firmly entitled agents; it consists of the continuing critical re-appropriation of the true origin, meaning and justification of the powers secreted by society, and condensed, processed, and returned by the state and the government— the practice of democracy is an act of collective self-pedagogy. I will return to these topics in the Conclusion. But before in the following chapter we must take a quick look at Latin America and, in Chapter 9, examine an issue closely linked to the ones I discuss here: the options that may be available, or not, for the effectuation of agency in the social and political realms. 15

Referring to the state from an anthropological standpoint, Coronil (1997: 116) adds that “The state’s reification is both the effect and the condition of its manifold objectifications. . . . Like money and capital, the state is not just a thing or an idea, but a complex ensemble of social relations mediated by things or thing-like objectifications of social practice.” 16 Durkheim (1983: 89) noticed this: “[A] democracy may, then, appear as the political system by which the society can achieve a consciousness of itself in its purest form. The more that deliberation and reflection and a critical spirit play a considerable part in the course of public affairs, the more democratic the nation.”

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8

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An Overview of Latin America At this point I need to return to what I said in the Introduction. This is a book of theory with comparative intent; in it I hope to open avenues for some theoretical discussions, as well as for empirical and comparative research, especially but not exclusively focused on Latin America. This task, however, is beyond the scope of the present book, so I intend to undertake it in the future volume mentioned in the Introduction. Yet, in order to provide some comparative context to my analysis, in the preceding chapters I made several references to non-Northwestern countries, especially Latin American ones. Recall that in Chapter 1, on the basis of past experience in this region, I proposed to add the characteristic of decisiveness to democratic elections. In Chapter 2, I contrasted the quite extensive set of civil and social rights achieved in most countries of the Northwest with the significantly more limited and uneven record of Latin America in these matters. In Chapter 3, in the context of discussing the four constitutive dimensions of the state, I noted that, with few and partial exceptions, the Latin American state has historically evinced, and continues evincing, poor scores in all those dimensions; this observation led me, still in that chapter, to express, as a matter of serious concern, the scarce powers that those states— and their governments—have for further democratizing their societies and, indeed, themselves. In Chapter 4, discussing the nation and its cognates, I mentioned some important differences between the Northwest and the rest of the world in terms of their respective patterns of state and nation. In Chapter 5, when discussing the legal system, I mentioned several of its deficiencies in Latin America. This is closely related to the discussion of various faces of the state that I undertook in Chapter 6, where I stress the ugly and at times the plainly absent face that the state often shows to poor and/or excluded sectors of the population, as well as the varied ways in which capitalism has spread in the world. In turn, I began Chapter 7 focusing on a specific country, my own, Argentina, as a cruelly contrasting example of the agency-grounded values of democracy and the dialogical networks they nurture. Now, in the present chapter I go back to those observations and put them into a broader picture. Yet, and to repeat, what follows is not intended to be

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An Overview of Latin America

more than an overview that hopefully will help to put in some perspective the challenges and specifics of democracy and, especially, of democratization in countries marred with deep poverty and inequality, as well as uneven capitalisms and poorly functioning states.

8.1. A N H I S TO R I C A L A N D C O N T E XT UA L R E F E R E N C E The states in the Northwest that survived the Darwinian struggles of the seventeenth to the nineteenth century accomplished quite successfully the four dimensions of the state that I have specified. Of course, these have been relative achievements; they were and continue to be subject to setbacks and limitations, including the constant stumbling against the inequalities generated by capitalism and bureaucracy. Yet the positive value of these achievements can be assessed by contrast with countries that have not advanced much in all the state dimensions—and some have even regressed in them. Although not exclusively, I am referring to Latin America. It seems to me fair to insist that, with few and partial exceptions, in this region we have states that should be assigned low scores in the four dimensions I proposed in Chapter 3. The inefficacy of many of their bureaucracies has been amply documented. The uneven, intermittent, and socially biased penetration of the legal system is less often noted1 but no less important. Also important is the low, and in some cases decreasing credibility of these states and their governments as effectors of the common good of their population, and as willing and reasonably skilled filters. Even though there have been valuable contributions,2 we still lack sufficient knowledge about state formation in Latin America, per se and in relation to the emergence of nations and of conceptions of citizenry, the people and lo popular, and the timing of these events in relation to stages of capitalism and 1 As already mentioned, I discussed this matter in O’Donnell 1993, reprinted as chapter VII in O’Donnell 1999. Recently, among the conclusions of a study on state-formation in Latin America, and in contrast with the Northwest, Centeno (2002: 275) notes that in Latin America “The establishment of successful political authority over large territories has been the exception and not the rule.” 2 In addition to the sources I cite in the rest of the present section, see from various angles Annino 1994, Annino et al. 2004, Bertoni 2001, Botana 1994, Cavarozzi 1996, Chiaramonte 1997 and 2004, Dunkerley 2002, Guerra 1992, 1999, and 2003, Halperı´n Donghi 1973, 1983 and 1985, Lo´pez Alves 2000, Mahoney 2003, Murilo de Carvalho 1982, Oszlak 1981 and 1997, Posada-Carbo´ 1995 and 1998, and Whitehead 1994. The seminal book by Cardoso and Faletto 1979 is also relevant, even if it does not directly deals with the state. Sa´bato 1999 provides a useful survey of part of this literature; see also Miller 2006.

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147

its expansion in this region. In the Northwest, in a relatively short historical period, several processes converged: ultimately successful state-making, including the establishment of a high degree of legal and de facto control over territories and populations; political democratization until its expansion by means of the universalistic wager; the widespread introjection of ideas of nationhood and, often, of mobilizing and aggressive nationalism; and the vigorous expansion of capitalism. These processes did not just converge; they dynamized each other in a history of success in terms of the power and affluence of those countries, even if marked by sometimes terrible violence and not a few setbacks. In these respects the history of Latin America has been more disjointed. It has also been more varied: there have been significant differences in demographics, pre-existing colonial institutions and indigenous civilizations, main export products, and the stages of capitalism during which various regions were incorporated into the world economy. These differences, in turn, had important consequences in terms of how economies, class structures, ethnic relations and, indeed, states were shaped. In fact, many of these countries had, since independence, governments that, without almost any state apparatus and with uncertain frontiers with other emerging states,3 tried to rule populations that often did not recognize themselves as members of a same nation or country;4 formally democratic (or liberal) constitutions that in its premises contradicted widespread and strongly held collectivistic or organicistic conceptions; capitalist social relations implanted in parts of the territory but scarcely diffused in others; and political centers that, instead of imposing the overall legal and political homogenization achieved in the Northwest, wound up pacting the coexistence of their more or less constitutional patterns with the subsistence of patrimonial kinds of rule in often large parts of their territory. As Annino (1993: 230) comments, The perception that the leading groups had of the difficult processes of formation of the national state was fundamentally dual: a politicalconstitutional space not very extensive, identified with the main urban areas, surrounded by another much more extensive and non-constitutionalized space, that encompassed the rural areas.5 3 Of course Brazil and its territorial continuity is an exception to this. But still I believe that the characterization I am making of the general features of the Latin American state also applies to this country. 4 Guerra (1999: 47) comments that in Latin America “[The] state is not the point of arrival of the nation, but the starting point for its creation. . . . Independence precedes both nationalism and the nation” (my translation). 5 For apposite discussion of the reasons of this pattern see Mazzuca 2001, who places emphasis on the different sources of taxation between Northwestern states (their own population) and Latin American ones (foreign trade), as a crucial factor for the weakness and poor

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An Overview of Latin America

The resulting structural heterogeneity of Latin America—noticed by many students of the region—shows up today not only in its economy, society, and demography, but also in its state bureaucracies and its legality. As noted, there are some variations, past and present, within this region;6 yet all the Latin American states reflect the deep heterogeneity of their societies. Big or small in the size of their bureaucracies, these states are weak. Some of them have been weak since their beginnings, and some have recently weakened, oddly enough, under democracy. Truly, in the past some of these states were efficacious repressive machines, but neither at those times nor after have they managed to achieve the minimum that a reasonably strong state does: to socially cohere and legally normalize their societies and nations. The great theme, and problem, of the state in Latin America is that, again with partial exceptions,7 it does not penetrate and organize its whole territory, its legality is truncated, and the legitimacy of its coercion is challenged by its scarce credibility as a state-for-the-nation/people/citizenry and as a beneficial filter.8 This is a state that, by itself and due to extra-regime inputs that operate over it from dominant classes and sectors, both national and transnational, has historically resisted its broadening despite periods of, basically vertically controlled, populist incorporation. Nowadays, even under democratic regimes and the increasing consciousness of rights I comment upon below, this state is constricted, in the sense that it is often deaf to the demands and interests of large parts of its population. Furthermore, when subordinate classes and sectors manage to inscribe some rights in the legal system, following a long-standing tradition of the region it is not unusual that those rights turn out to be a dead letter—letra muerta. And if they are not, as Whitehead 2004 notes, they are quite prone to reversal. These flaws have territorial reach of the latter. See also in this sense Centeno 2002. See also Lo´pez Alves 2000 and 2001, who interestingly adds the kind of wars and of political mobilization of the rural poor that took place in the nineteenth century as relevant factors for state formation and its variations in this region. 6 In terms of early state formation, Chile stands out as the exception; in the sense that it followed patterns rather similar to the modal ones of the Northwest. On the other hand, a recent valuable assessment of the poor workings of the state in the Andean countries and their relationship with their, in most cases, shaky democracies is Mainwaring 2006 and Mainwaring et al. 2006. More broadly for Latin America, albeit with emphasis on Argentina, see Iazzetta 2006. 7 These exceptions are basically Chile, Costa Rica, and Uruguay, and in some respects they are only partial. On the other hand, it is hardly an accident that these countries are usually classified as those that have a better quality of democracy and function in ways that are closer to patterns typical of the Northwest. 8 This may be called a “rudimentary state,” a label that Elias (1996: 97) applied to Weimar’s due to its failure to monopolize violence. However, Latin America has not reached the situation of state failure that recent literature discusses; on Africa see the excellent study by Herbst 2000; see also Rotberg 2004 and Zartman 2006.

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serious consequences in terms of social and economic development. They also have serious political consequences, because this kind of state and the governments that parade at their apex have limited capacity for democratizing societies in which a long history of poverty and inequality demands persistent efforts in which a broadened, stronger state would have to play a central role.

8.2. S O M E C O N T E M P O R A RY F E AT U R E S A state of low efficacy, effectiveness, credibility and filtering may coexist with reasonably fair elections and some political rights and freedoms. But, large or small, this state scarcely functions as a propeller of the extension of civil and cultural rights and, even less so, of social rights. This state does not appear to be truly a state-for-the-nation/people/citizenry; and often, the same may be said of its respective governments. Thus, almost all Latin Americans perceive that the state is oriented to favor the rich and powerful, as shown by Table 1. This perception of a heavily biased state is also of a corrupt one. The same source reports another highly skeptical view of a salient problem in these countries, namely, widespread corruption and lack of progress in reducing it. This is shown in Table 2. This negative judgment9 is reinforced by responses to the 2008 Latinobaro´metro, where 68.6 percent of Latin Americans respond that they believe that state officials are corrupt, with a high of 80.8 percent in Honduras and a low, but still substantial 45.6 percent in Uruguay. These views quite obviously link with the opinion that the biased and corrupt state spends its income badly, as shown in Table 3. Notice in this Table that the responses in the three countries that are reputed to have democracies that resemble more closely the ones in the Northwest (Chile, Costa Rica, and Uruguay), even if less abysmal than in the rest, also evince a strongly majoritarian view: the Latin American state is scarcely credible.10

9 In addition, another important source of data, the Latin American Public Opinon Project (LAPOP), after a detailed study of their own surveys reaches the rather dismal conclusion that “By most measures, it appears that corruption remains widespread and in recent decades has increased in the region” (LAPOP 2006). For analysis of this matter based on these data, see Seligson 2002. 10 In addition, 75.20% Latin Americans do not think that the criteria for collecting taxes is fair (these responses are quite homogeneous throughout the region, with a high of 88.90% Ecuadorians and a low of 63.90% Hondurans expressing this view); data from Latinobaro´metro 2003. These views are probably related to the fact that Latin American countries are the ones

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An Overview of Latin America

Table 1 For the benefit of whom the goverment rules (%) 2006 Country

To the benefit of the interests of the powerful

For the good of the people

Argentina

76.3

23.7

Bolivia

59.9

40.1

Brasil

62.0

38.0

Colombia

69.1

30.9

Costa Rica

76.9

23.1

Chile

71.9

28.1

Ecuador

88.4

11.6

El Salvador

85.2

14.8

Guatemala

80.5

19.5

Honduras Me´xico

79.3

20.7

67.2

32.8

Nicaragua Panama´

84.9

15.1

82.8

17.2

Paraguay Peru´

83.4

16.6

79.3

20.7

Rep. Dominicana

74.6

25.4

Uruguay

50.1

49.9

Venezuela

45.8

54.2

Source: Latinobaro´metro 2006, in answer to the question: “Would you say that the country is governed by some powerful interests in their own benefit, or is it governed for the good of the people?” (“¿Dirı´a Ud. que el paı´s esta´ gobernado por unos cuantos intereses poderosos en su propio beneficio, o que esta´ gobernado para el bien de todo el pueblo?”). I am very grateful to Corporacio´n Latinobaro´metro and its director, Mrs Marta Lagos, for having facilitated my access to these valuable data.

This state of low credibility also appears to most respondents as one that cannot be trusted in one of its basic responsibilities protecting the safety of its inhabitants by means of the police. Most Latin Americans do not trust this institution (notice that with the exception of Chile in all other countries more than 50 percent of respondents in Table 4 express distrust), widely reputed as corrupt and prone to illegal violence. These are data on individuals who are very skeptical about the claims of their states to exist and decide for the good of all, including the custodial role that rely more on (mostly regressive) indirect taxes and less in direct (basically income) taxes in the world. This kind of system is at best neutral in relation to the pre-tax income distribution.

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151

Table 2 Perceptions of the progress (or lack thereof) of reduction of corruption in the state (%) 2006 Country

A lot

Some

Little

Nothing

Argentina

2.9

26.1

36.4

34.7

Bolivia

8.6

40.4

33.4

17.6

Brasil

9.9

31.1

32.0

27.0

Colombia

24.5

31.3

27.2

17.0

Costa Rica

9.9

30.9

32.4

26.8

Chile

8.8

32.2

35.4

23.6

Ecuador

2.5

20.4

31.3

45.7

El Salvador

7.1

19.0

31.0

42.9

Guatemala

5.2

27.4

36.1

31.3

Honduras Me´xico

12.2

26.2

28.1

33.5

6.0

32.1

32.9

29.1

Nicaragua Panama´

14.0

18.9

30.5

36.6

6.4

30.7

27.6

35.2

Paraguay Peru´

3.6

14.0

31.8

50.7

5.3

25.9

31.6

37.2

Rep. Dominicana

10.8

40.6

30.7

17.9

Uruguay

10.9

45.4

25.5

18.1

Venezuela

23.0

29.5

21.6

25.9

Source: Latinobaro´metro 2006, in response to the question: “How much do you think the reduction of corruption has progressed in the past two years?” (“¿Cua´nto cree Ud. que se ha progresado en reducir la corrupcio´n en las instituciones del Estado en estos u´ltimos dos an˜os?”).

of the police, the institution arguably more relevant for their daily lives, especially of those who are by far more frequent victims of violence, the poor. And, despite differences across countries, everywhere the poor are a large proportion of the population of Latin America. Estimates for the first years of the present decade vary11 depending on source and methodology; there are around 40 percent of poor and 15 percent of indigents in the total 11 In Latin America, the remarkable dearth of data of minimal reliability or just their lack (except for some economic data, basically macro, that is of direct interest to international financial organizations and some finance ministries), is in itself an indication of the deficiencies of the Latin American states. In a research project I am currently engaged in, we found that with the partial exceptions of Brazil and Chile, the respective governments, and consequently manifold social actors, simply do not have information that should be, to say the least, useful for adequate policy-making and its discussion.

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An Overview of Latin America

Table 3 Perceptions of the good use (or not) that the state makes of its fiscal income. (%) 2005 Country

Yes

No

Argentina

24.10

75.90

Bolivia

15.00

85.00

Brasil

12.90

87.10

Colombia

21.70

78.30

Costa Rica

12.30

87.70

Chile

41.30

58.70

Ecuador

12.10

87.90

El Salvador

32.40

67.60

Guatemala

14.60

85.40

Honduras Me´xico

21.30

78.70

14.80

85.20

Nicaragua Panama´

15.50

84.50

14.00

86.00

Paraguay Peru´

18.30

81.70

10.60

89.40

Rep. Dominicana

24.70

75.30

Uruguay

56.40

43.60

Venezuela

42.60

57.40

Source: Latinobaro´metro 2005, in response to the question: “In general about taxes. Do you trust that the income from taxes will be well spent by the state?” (“En general respecto de los impuestos? Tiene Ud. confianza en que el dinero de los impuestos sera´n bien gastados por el Estado?”).

population of Latin America; this of course is related to the highest regional levels of inequality in the world, estimated for that same period at a Gini coefficient of 0.535.12 Furthermore, and no less relevant for the access to citizenship and its rights and obligations, is the fact that in 1995, 55.7 percent of the urban working-age population were in the informal market. Worse, this percentage has been growing; it was 40.2 percent in 1980, 47.0 percent in 1985, and 52.1 percent in 12 The best single source of data are the reports of the Economic Commission for Latin America (several years). A recently published source that usefully gathers information from several international organizations is Organization of the American States 2007.

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153

Table 4 Trust in the Police (%) 2006 Country

A lot

Some

Little

None

Argentina

3.4

25.9

43.2

27.4

Bolivia

3.1

30.1

37.6

29.2

Brasil

12.4

30.1

35.4

22.1

Colombia

15.7

27.2

34.2

22.9

Costa Rica

6.5

30.3

34.4

28.8

17.4

46.0

24.8

11.8

2.0

16.4

43.2

38.4

10.5

23.0

39.3

27.2

Guatemala

3.9

16.3

39.4

40.4

Honduras Me´xico

17.2

22.9

30.4

29.6

7.8

23.5

34.5

34.2

Nicaragua Panama´

14.2

24.1

31.0

30.8

13.8

38.7

29.3

18.2

Paraguay Peru´

4.5

21.3

30.5

43.7

3.9

26.6

37.9

31.6

Rep. Dominicana

10.8

35.4

32.3

21.5

Uruguay

12.9

37.5

32.3

17.4

Venezuela

14.3

34.4

28.5

22.8

Chile Ecuador El Salvador

Source: Latibaro´metro 2006, in response to the question: “How much trust do you have in the Police?“ (“Cua´nta confianza tiene usted en la Policı´a?”).

1990 (data from Thorp 1998: 221 and passim).13 In recent years this percentage has probably diminished to about 5 percent, but its absolute numbers have likely increased; furthermore, that proportion is higher, and indeed for poverty and indigence, in the rural sector, for which estimates are rather rough guesses; once more, the lack of minimally reliable data on these topics is an appalling indication of state deficiencies. Anyhow, the general situation this information depicts is very serious, not only in terms of the curtailed access that it entails to basic social rights that come with formal employment, but also because the vast economy that underlies the informal labor market is a huge source of drainage of the taxes that a reasonably efficacious state could use for advancing those and other rights. 13

Mesa-Lago 2008 reports that the regional average of informal urban employment was 43% in 1990 and 47% in 2002, while in 2002–4 poverty incidence in the total population was 41.7%.

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An Overview of Latin America

These data highlight one of the specificities of this region as compared with the Northwest. In the latter, the expansion of the state and capitalism included the increasing incorporation of urban workers, and even many rural ones, to the formal labor market; this greatly helped the extension of social and other rights I noted in Chapter 2. In contrast, referring to a previous period of Latin America, 1950–1980, Portes (1994: 121) makes the important observation that “contrary to its course in the advanced countries, self-employment did not decline with industrialization but remained essentially constant during this thirtyyear period”; as I noted, this is still true if not worse nowadays, propelled by high rates of growth of the working-age population.14 It goes without saying that these facts create great obstacles to the extension of the various dimensions of citizenship and, with this, of further democratization in these countries; MesaLago (2008a: 2) comments, these facts mean “creating a formidable challenge to social insurance to maintain and expand its coverage because most informal workers are legally excluded or have voluntary coverage.” Obviously, this situation hinders the acquisition of basic social rights for many people, but this is not the only consequence; it also curtails the expansion of political citizenship, as it creates fertile ground for pervasive clientelistic practices. On the other hand, the period after the spurt of democratization of the 1980s has seen, albeit under quite different policy orientations, the access of the higher classes and segments of the middle sectors to levels of consumption that mimic, and sometimes exaggerate, those of the Northwest. The notoriety of this kind of consumption, enhanced by the mass media, contrasts with the continuing poverty of the rest of the population. As to the latter, the governments of this period, however, have made policies that reduced (albeit to still unsatisfactory levels) infant mortality, raised life expectancy, and expanded primary and secondary education (although the quality of those advanced varies in close consonance with class differences and the overall inequality in each country).15 14

On the Latin American informal labor sector see Altimir 1998, Centeno and Portes 2006, CEPAL 2007, Mesa-Lago 2008b, Portes and Haller 2005, Rakowski 1994, and Tokman 1992 and 2004. 15 On these and related topics see especially annual reports of the Economic Commission for Latina America. I add that, as reported by this source (2009), in a publication that unfortunately reached me too late to use it in the present book, there have been some positive developments during the years 2003 to 2007. In this period, mainly propelled by the favorable situation of the international economy and an ongoing demographic transition that is reducing the proportion of minors in the total population, average poverty decreased to 32% and of indigence 12.9%, jointly with a parallel decrease in infant mortality and a small diminution of inequality as measured by the Gini index while social expenditures increased, albeit quite slightly on average. However, as this source indicates, the apparent tendency may have been reversed in 2008, and it is not clear that it could resume in the foreseeable future.

An Overview of Latin America

155

In such a context, political democracy and its universalistic and equalizing dimensions seem to be left floating in a fragmented and unequal society that is loosely linked to a state that performs poorly in its four dimensions. This tends to deprive social life of a sense of collective orientation, of the feeling that the state is a rudder that can give it direction. By the same token, as the state at times seems to disintegrate in the banality of its incapacities and in the frequent scandals of its corrupt colonization, politics itself tends to share in that banality.

8.3. S T R A N G E A N D F L AW E D Y E T S U RV I V I N G D E M O C R AC I E S The ‘crisis of politics’ (or of ‘representation’) is often mentioned in the world but probably nowhere more than in contemporary Latin America. It is indeed a crisis, but political democracy, even with its many flaws, imprints on contemporary Latin America some peculiar characteristics. One is that even though several presidents have been ousted, this has been through institutional channels, without the military coup that was almost routine in previous times.16 This relates to the fact that, as Cheresky (2006: 183) notes, in practically all of these countries elections “have become the almost undisputed source of political power.” Furthermore, in many countries the weakening of parties and party systems, as well as the increasing influence of the mass media and opinion polls, mean that many national elections have become extremely competitive. These democracies have up to now survived severe crises of various kinds. Yet this has not meant the strengthening or increase in the trust of parties and another crucial institution of the democratic regime, congress. Rather, as we can see in Tables 5 and 6, respectively, an overwhelming majority of Latin Americans express distrust of parties and Congress.17 Furthermore, concurrently with what we saw in relation to the police, most Latin Americans distrust the judiciary, even if on average it scores slightly better than parties and Congress (see Table 7). Consistently with these answers, few Latin Americans believe that the courts punish those who are guilty, as shown in Table 8. These responses point to problems that have serious consequences that go beyond the sphere of politics proper: another overwhelming majority of Latin 16

For analysis of these cases see Pe´rez Lin˜a´n 2007. Consistently with these views, Latinobaro´metro 2008 reports data that have been quite stable in its surveys along the present decade. Only 57% of Latin Americans agree with the statement “Without Congress there can be no democracy” (“Sin congreso nacional no puede haber democracia”), and 56% with that same statement in relation to political parties. 17

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An Overview of Latin America

Table 5 Trust in political parties (%) 2006 Country

A Lot

Some

Little

None

Argentina

1.1

11.7

31.0

56.2

Bolivia

1.7

16.0

32.4

49.9

Brasil

4.2

18.6

36.1

41.1

Colombia

3.8

14.5

39.3

42.5

Costa Rica

3.7

22.7

31.1

42.5

Chile

2.6

21.9

35.4

40.0

Ecuador

0.8

7.0

29.0

63.3

El Salvador

3.2

12.7

35.7

48.4

Guatemala

2.2

14.1

36.4

47.3

Honduras Me´xico

11.3

15.5

26.4

46.8

5.7

23.9

36.0

34.4

Nicaragua Panama´

4.7

13.9

29.3

52.1

5.6

18.0

32.2

44.2

Paraguay Peru´

2.6

11.0

29.3

57.1

1.3

18.8

38.6

41.3

Rep. Dominicana

5.0

25.0

40.5

29.5

Uruguay

4.9

28.9

37.5

28.7

Venezuela

12.3

29.1

34.1

24.4

Source: Latinobaro´metro 2006, in response to the question: “How much trust do you have in the political parties?” (“¿Cua´nta confianza tiene Ud. en los partidos polı´ticos?”).

Americans opine that the state fails not only in the efficacy of the police and judiciary but also in the effectiveness of its legal system in guaranteeing a reasonable degree of equality before the law—this is shown in Table 9. However, despite and to some extent also because of these critical perceptions and the obvious flaws that underlie them, in contemporary times many Latin Americans have been willing to demand various kinds of rights vigorously. Even if they hold those views about the state and basic institutions of the regime, still a majority declare a preference for democracy and the subsequent rejection of authoritarian alternatives. Thus, under the above mentioned circumstances quite a remarkable average (63 percent) of Latin Americans assert that, even though it may have flaws, they prefer democracy (see Table 10); and an even higher average (75 percent) explicitly prefer democracy to an ‘authoritarian government’ (see Table 11).

An Overview of Latin America

157

Table 6 Trust in Congress (%) 2006 Country

A lot

Some

Little

None

Argentina

3.7

22.2

39.6

34.5

Bolivia

4.2

30.0

36.9

28.8

Brasil

8.4

24.3

36.8

30.5

Colombia

6.9

22.8

37.9

32.3

Costa Rica

5.8

25.8

36.2

32.3

Chile

3.5

27.7

39.8

29.0

Ecuador

0.3

5.7

27.9

66.1

El Salvador

4.3

15.5

37.4

42.8

Guatemala

3.3

17.3

38.4

41.0

Honduras Me´xico

13.4

19.3

30.5

36.8

6.3

23.5

37.1

33.1

Nicaragua Panama´

5.0

13.9

30.6

50.5

3.7

18.4

37.3

40.5

Paraguay Peru´

3.6

12.5

32.7

51.2

1.3

18.3

36.4

44.0

Rep. Dominicana

7.2

34.5

39.1

19.3

Uruguay

8.7

40.9

34.1

16.3

Venezuela

24.4

34.3

19.6

21.7

Source: Latinobaro´metro 2006, in response to the question: “How much trust do you have in the national Congress/Parliament”? (“¿Cua´nta confianza tiene Ud. en el Congreso Nacional/ Parlamento?”).

Yet, respondents who express majoritarian preference for democracy also express widespread mistrust with respect to the very institution that is supposed to oversee the fairness of such a basic element of democracy as elections are—the electoral courts, variously denominated in these countries. See Table 12 and its obvious implication of suspicion of fraud and other irregular acts in most countries, with the partial exception of Uruguay. Surveys in other democratic countries exhibit significant proportions of a mix of skepticism, if not cynicism, toward basic political institutions jointly with majoritarian support or approval of democracy, but Latin America is an extreme case of this mix. This pattern, as well as other data,18 some of which 18 In addition to the rich mine of data of the source I use here, Latinobaro´metro, another valuable source is the already mentioned LAPOP. Also, for analysis of data up to the early 2000s see Programa de las Naciones Unidas para el Desarrollo (PNUD) 2004.

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An Overview of Latin America

Table 7 Trust in the Judiciary (%) 2006 Country

A lot

Some

Little

None

Argentina

4.3

27.9

43.7

24.1

Bolivia

4.6

34.0

39.4

21.9

Brasil

14.7

31.4

36.5

17.4

Colombia

11.8

27.1

42.0

19.1

Costa Rica

10.7

35.0

38.3

15.9

Chile

3.6

30.0

40.2

26.3

Ecuador

0.8

14.4

33.6

51.1

El Salvador

7.6

21.5

38.5

32.4

Guatemala

4.2

24.0

48.2

23.5

Honduras Me´xico

15.2

18.0

32.1

34.6

8.2

31.4

36.8

23.7

Nicaragua Panama´

8.7

16.8

36.2

38.3

6.6

34.5

36.3

22.6

5.5

14.1

39.7

40.8

2.5

16.6

39.8

41.1

Rep. Dominicana

12.8

44.2

29.8

13.2

Uruguay

15.2

42.6

29.8

12.4

Venezuela

23.0

37.6

24.0

15.5

Paraguay Peru´

Source: Latinobaro´metro 2006, in response to the question: “How much trust do you have in the judiciary?” (“¿Cua´nta confianza tiene Ud. en el Poder Judicial?”).

I present below, create enigmatic problems of interpretation. Several researchers are presently working on them and I hope to contribute to this task in my future book, but here I cannot go beyond displaying some of the more salient aspects of the enigma. In this democratized but scarcely formally institutionalized setting, various segments of the population do demand rights, sometimes in ways that entail vetoes to public policies by means of unruly demonstrations and other acts of collective protest. These massive processes have unfolded simultaneously and sometimes jointly with a true explosion of judicial actions that are interestingly inconsistent with the general views about the judiciary, which we saw in Table 5. Some of these initiatives invoke broad class actions and/or collective interests, some basic civil and/or cultural rights, and some the punishment of widely publicized acts of state violence and/or corruption. These are important new phenomena that are eliciting attention from an abundant literature,

An Overview of Latin America

159

Table 8 The courts punish those who are guilty without looking at who they are (%) 2005 Country

Strongly agree

Agree

Disagree

Strongly disagree

Argentina

5.8

19.6

51.0

23.6

Bolivia

4.7

34.2

49.2

11.9

Brasil

20.8

25.1

19.6

34.4

Colombia

10.1

35.4

45.7

8.8

Costa Rica

12.2

36.2

35.9

15.7

Chile

4.8

25.9

52.3

17.0

Ecuador

4.1

27.2

47.2

21.4

El Salvador

5.0

22.5

43.8

28.7

Guatemala

6.5

24.0

40.7

28.8

Honduras Me´xico

9.5

25.5

34.8

30.2 15.9

6.1

29.6

48.4

Nicaragua Panama´

11.5

20.6

44.5

23.4

5.3

18.6

48.6

27.5

Paraguay Peru´

1.5

22.8

44.3

31.3

4.8

25.1

54.0

16.0

13.4

29.2

39.8

17.6

Uruguay

7.7

45.7

40.0

6.6

Venezuela

16.3

31.6

38.3

13.8

Rep. Dominicana

Source: Data from Latibaro´metro 2005 in response to the: question “Would say that the judicial system punishes the guilty without caring who they are?” (“Ud. dirı´a que esta´ muy de acuerdo, de acuerdo, en desacuerdo o muy en desacuerdo con la siguiente opinio´n: El sistema judicial castiga a los culpables sin importar quienes son?”).

not only from academics but also from various NGOs.19 These actions express and enact a vast array of demands that include among other intensely articulated issues various gender and reproductive, ethnic, gay, environmental, and health rights—this, in some countries and periods has entailed an explosion of demands that are poorly if at all aggregated and politically processed by political parties and legislatures. Of course, much remains to be achieved in these and related matters, but these actions, both those that are extensive and those focused on the judiciary, evince a broad diffusion of the consciousness 19 About these events of “social accountability” I refer to the proponents of this concept, Smulovitz and Peruzzotti 2000, and Peruzzotti and Smulovitz 2006; see also, on the judicialization of some of these demands, Domingo 2006, Domingo and Sieder 2001, Gargarella et al. 2006, and Sieder 2002.

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An Overview of Latin America

Table 9 Opinions about equality before the law (%) 2005 Country

A lot

Some

Little

Nothing

Argentina

4.6

13.9

44.1

37.3

Bolivia

5.9

15.0

40.2

38.9

Brasil

11.4

12.5

48.7

27.4

Colombia

10.3

21.0

46.3

22.4

Costa Rica

18.5

19.0

38.8

23.6

Chile

4.9

15.0

49.0

31.2

Ecuador

3.3

10.7

58.5

27.4

17.4

12.1

30.9

39.6

Guatemala

4.1

14.0

44.8

37.1

Honduras Me´xico

23.0

9.2

39.5

28.3

10.5

12.2

40.6

36.7

Nicaragua Panama´

19.4

12.2

26.0

42.4

12.1

16.4

37.8

33.7

Paraguay Peru´

7.6

12.2

28.2

52.0

7.3

11.9

48.6

32.2

Rep. Dominicana

10.5

12.3

35.0

42.1

Uruguay

10.4

39.5

35.3

14.8

Venezuela

22.1

24.7

36.8

16.4

El Salvador

Source: Latinobaro´metro 2005, in response to the question: “Would you say that the (nationality) are equal before the law?” (“¿Dirı´a usted que los (nacionalidad) tienen igualdad ante la ley?”). The same source, on the basis of the general report on its 2008 survey, makes clear that negative responses to this question have remained stable during the decade. In terms of the Latin American average they have been 28% in 2002, 27% in 2003, 28% in 2005, and 30% in 2008.

of rights among what, in quite a few of these countries, are vast segments of the population. In their scope, intensity, and characteristics of mobilization, these processes are big news for Latin America; they entail an important extension of democratization, especially in terms of willingness to invoke and mobilize the political rights of the democratic regime for the sake of demanding other rights, often by social sectors and classes that before democratization had all kinds of rights severely curtailed. On the other hand, in some Latin American countries these processes operate in the face of a rather peculiar emergence. It is that some political leaders, including several past and present presidents, hold a strong anti-institutional bias, including acute skepticism about basic institutions of the democratic regime. They conceive of democracy and their

An Overview of Latin America

161

Table 10 Preference for democracy I (%) 2006 Country

Strongly Agree

Agree

Disagree

Strongly disagree

Argentina

28.1

59.0

10.7

2.1

Bolivia

20.6

60.3

16.2

2.9

Brasil

40.6

41.8

12.6

5.0

Colombia

19.4

58.9

18.9

2.8

Costa Rica

25.4

59.0

12.3

3.3

Chile

29.0

50.1

17.7

3.2

Ecuador

13.3

57.7

23.8

5.2

El Salvador

20.2

47.8

25.7

6.3

Guatemala

15.9

59.8

21.0

3.3

Honduras Me´xico

18.1

55.9

19.3

6.8

16.6

57.0

21.7

4.7

Nicaragua Panama´

28.6

46.1

21.5

3.9

29.9

54.9

12.3

2.8

Paraguay Peru´

13.5

45.4

28.0

13.0

12.9

62.1

20.7

4.3

Uruguay

48.0

41.4

8.4

2.2

Venezuela

32.7

60.8

5.5

1.1

Average Latin America

63.0

29.0

6.1

1.9

Source: Latinobaro´metro 2006, in response to the question: “Are you in strong agreement, or in agreement, or disagree, or strongly disagree with the following statement: democracy may have problems, but it is the best system of government?” (“¿Esta´ Ud muy de acuerdo, de acuerdo, en desacuerdo o muy en desacuerdo con la siguiente afirmacio´n: La democracia puede tener problemas, pero es el mejor sistema de gobierno?”).

own rule in a caesaristic, super-majoritarian and hyper-presidentialist way. They are democratic, as they are elected in reasonably fair elections and during their tenure some basic political freedoms remain effective (however, some presidents who start in this way slip into authoritarianism, such as Fujimori in Peru, and for that matter Putin in Russia, and as Cha´vez is doing nowadays in Venezuela). These are what I have termed delegative democracies.20 These leaders (and their followers) believe that the fact of their reasonably fair election authorizes them to govern as they see fit for what they deem best for the country; consequently, various institutions of

20

For delegative democracy see O’Donnell 1999, chapter VIII. On “horizontal accountability” I refer again to chapters II, III, and IV in O’Donnell 2007a.

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An Overview of Latin America

Table 11 Preference for democracy II (%) 2006 Democracy preferable

In some circumstances, autoritaritarian preferred

Argentina

75.0

16.5

8.5

Bolivia

65.5

19.7

14.8

Brasil

54.4

21.4

24.2

Colombia

56.0

16.5

27.5

Costa Rica

80.9

9.5

9.6

Chile

58.9

14.0

27.1

Ecuador

59.0

22.7

18.3

Salvador

58.7

16.8

24.5

Guatemala

44.9

38.1

17.0

Honduras Me´xico

57.7

13.3

29.0

61.8

17.5

20.8

Nicaragua Panama´

63.8

15.9

20.2

59.9

20.6

19.4

Country

Indifferent

Paraguay Peru´

43.0

31.8

25.2

60.1

21.7

18.2

Uruguay

73.8

21.4

4.9

Venezuela

80.5

9.9

9.6

Average Latin America

75.9

12.4

11.8

Source: Latinobaro´metro 2006, in response to the question: “With which of the following sentences are you more in agreement: Democracy is preferable to any other form of government; in some circumstances an authoritarian government may be preferable; or to somebody like myself it is the same whether it is a democratic regime or a non-democratic one?” (“¿Con cua´l de las siguientes frases esta´ Ud. ma´s de acuerdo: La democracia es preferible a cualquier otra forma de gobierno; En algunas circunstancias un gobierno autoritario puede ser preferible a uno democra´tico o a la gente como uno nos da lo mismo un re´gimen democra´tico que uno no democra´tico?”).

responsibility and accountability, both those constitutionally prescribed (such as congress and the judiciary) and those that have been added by legislation in most countries (ombudsmen, accounting offices, autonomous prosecutors, and the like) are seen as nagging obstacles that these rulers try hard, and often succeed, to cancel, co-opt, or otherwise neutralize—this is what makes these democracies delegative, not representative. It is significant that not only in the countries where delegative leaders have accessed national government, many Latin Americans express opinions compatible with this kind of political rule; see in Table 13 the high proportion

An Overview of Latin America

163

Table 12 Trust in the Electoral Court (%) 2006 Country Argentina

Much

Some

Little

None 27.4

6.7

31.0

34.9

Bolivia

16.8

43.6

29.8

9.7

Brasil

29.4

35.7

24.2

10.7

Colombia

11.3

27.6

41.3

19.7

Costa Rica

26.5

37.2

26.0

10.3

Chile

20.7

39.1

29.6

10.6

2.1

11.5

33.3

53.1

El Salvador

11.9

20.6

36.4

31.1

Guatemala

15.8

30.4

35.9

17.8

Honduras Me´xico

22.9

24.7

27.9

24.5

20.7

31.5

26.0

21.8

Nicaragua Panama´

16.2

22.1

30.3

31.5

29.8

42.9

17.1

10.2

Paraguay Peru´

9.1

20.4

37.2

33.3

9.1

41.4

35.4

14.1

Rep. Dominicana

9.4

34.9

30.3

25.3

Uruguay

27.9

49.5

18.2

4.4

Venezuela

34.6

29.8

17.5

18.1

Ecuador

Source: Latinbaro´metro 2006 in response to the question “How much do you trust the electoral court?” (“¿Cua´nta confianza tiene Ud. en el Tribunal Electoral?”).

(a remarkable 74 percent of Latin Americans) who strongly agree or agree with “rather than political parties or congress what we need is a decisive leader who would solve the problems of the country.”21 On the other hand, countries such as Brazil (but only after Collor’s failed presidency), as well as the democracies that as already mentioned bear more resemblance with Northwestern ones (Chile, Costa Rica, and Uruguay) have 21 But notice that the percentage of responses that agree strongly and agree to a clearly authoritarian statement (“I wouldn’t care if a non-democratic government arrives to power if it solves the economic problems” (“No me importarı´a que un gobierno no democra´tico llegue al poder si resuelve los problemas econo´micos”)) is significantly lower than the ones in Table 13: an average of 53% for Latin America, with a high of 69% for Paraguay, and a low for Uruguay of 31%; anyhow, the percentages of other rather old democracies are disturbingly high, Chile 49% and Costa Rica 54%, similar to the larger countries, Brazil (57%), and Me´xico (61%), and higher than one that since democratization has undergone several serious crises, Argentina (43%).

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An Overview of Latin America

Table 13 Responses about a ‘decisive leader’ (%) Country

Strongly agree

Agree

Disagree

Strongly disagree

Argentina

24.0

44.8

22.5

8.7

Bolivia

17.7

58.9

17.8

5.5

Brasil

58.1

24.5

7.7

9.7

Colombia

25.2

56.8

16.5

1.5

Costa Rica

28.5

39.7

17.8

14.1

Chile

22.4

49.6

20.2

7.9

Ecuador

17.8

46.8

24.9

10.4

El Salvador

28.6

49.7

12.4

9.3

Guatemala

14.7

42.3

25.5

17.4

Honduras Me´xico

24.0

60.2

13.2

2.6

28.0

51.7

15.8

4.6

24.9

64.5

8.1

2.5

23.9

53.6

15.1

7.5

Nicaragua Panama´ Paraguay Peru´

44.2

42.3

9.7

3.8

22.8

56.8

17.1

3.4

Uruguay

17.9

41.6

21.9

18.6

Venezuela

34.8

35.9

18.2

11.1

Average Latin America

26.7

48.2

17.0

8.1

Source: Latinobaro´metro 2003, in response to the question: “Are you in strong agreement, or in agreement, or disagree, or strongly disagree with the following statement: Rather than political parties and Congress, what we need is a decisive leader who undertakes to solve the problems?” (“Esta´ Ud muy de acuerdo, de acuerdo, en desacuerdo o muy en desacuerdo con la siguiente afirmacio´n: Ma´s que partidos polı´ticos y Congreso lo que nos hace falta es un lı´der decidido que se ponga a resolver los problemas.”).

been free of the delegative “option”; but this has not exempted them from the massive popular demands and the judicial actions I mention above; furthermore, as is shown in Table 13, a majority of the respondents in these countries also express preference for the “decisive leader” option. These preferences on one hand, and on the other the preferences for democracy we saw in preceding tables, are part of the enigma to which I refer above. Pending the necessary analyses of this matter, what for the time being seems clear is that in Latin America there has emerged a new situation. It may be summarized by the titles of two texts by a distinguished student of this matter: it is a “new citizenship” immersed in “politics after [the crisis of political] parties” (Cheresky 1999 and 2006), free to choose among competing electoral candidates almost without party and class loyalties;

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however, the image of such citizenship needs correction in relation to the dependence entailed by widespread clientelism, as well as various practices of pressure and co-optation of social movements and unions.22 Nowadays, we have political democracies that have resisted relentless crises without breaking down; a diverse political citizenship; national regimes that at times coexist with subnational ones that are authoritarian; a state that in most countries continues failing in all its dimensions; sharp inequalities, as well as persistent poverty and indigence; a very uneven extension of civil and cultural rights, jointly with little progress and in several countries regressions in social rights;23 and in some countries regimes that in a sense are democratic but display the anti-institutional biases that make them delegative, not representative. And we also have a citizenship that, despite the negative impact of the vertical controls noted above, is more conscious than ever of some rights and at least sometimes more willing to demand and exercise them, even if often outside the institutional arenas furnished by the regime. This is the longest period of democracy in Latin America; it is also, in the characteristics I have succinctly depicted, a new democratic situation unforeseen by the literature, including those of us who worked on transitions from authoritarian rule. Another positive side of political democracy in Latin America is that it has facilitated the emergence of movements and parties of originary peoples, after centuries of oppression, discrimination, and political exclusion; they have great importance in some countries, Ecuador and especially Bolivia, where a government largely based on those movements presently rules.24 This concurs to show that in some important senses even these flawed democracies do matter, as they have provided a less repressive context and in most countries the constitutional or at least legal recognition of a series of rights of indigenous peoples and communities, further helped by the support of various international networks and agencies. In synthesis, in the situations discussed in this chapter appears an aspect that I wish to stress: various political rights of democracy (association, expression, and the like) have been used and invoked for instigating a demand for a variety of rights, in ways that begin with voting and mass mobilizations all the way to court actions. As with the literature about state formation in the 22

For discussion of these “vertical controls” see Ippolito-O’Donnell 2009a and 2009b. As mentioned in Chapter 4, on the basis of an extensive study and data base on the implantation of rights in Latin America, Foweraker and Krznaric (2002: 29–59) found that little has happened beyond the generalized achievement of political rights. See also Foweraker and Landman 1997. 24 See Assies 2001 and Assies et al. 2001, Go´mez 2002, Gray Molina 2006, Sieder 2000 and 2002, Stavenhagen 1996, Van Cott 2000, 2005, and 2008, and Yashar 2005. 23

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United States, the study of the characteristics of most contemporary Latin American democracies is a recently opened frontier of research; this emerging proble´matique has already elicited valuable studies that explore it;25 much remains, however, to be understood before drawing safe assessments of the full contours and future prospects of this situation. 25 See especially Cavarozzi and Abal Medina 2002, Cavarozzi 1996 and 1997, Cheresky 1999, 2006 and 2007, Garreto´n 2000, Garreto´n et al. 2003, Gibson 2004, Hagopian and Mainwaring 2005, as well as the earlier contributions of Weffort 1989 and 1992.

..................

9

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Social Context, Options, and Convergences11 In Chapter 7, I noted that a necessary or at least an extremely helpful condition for nourishing the dialectics of identity, recognition, and socialization is the availability of dialogical networks of discourse. This is one reason why democracy matters beyond its purely political aspects; it matters for the existence, reproduction, and eventual expansion of those networks, and with them for the active exercise of citizenship in many social areas. It is there that the very agency presupposed by political democracy, is acquired, reproduced, and reelaborated—and sometimes lost. That said, we leave the micro-level we looked at in Chapter 7 and—after the overview of Latin America we undertook in Chapter 8, which showed some serious macro-level problems—we will be looking at the macro-level here in more detail. In Section 9.1 I discuss some relationships between dialogism and political freedoms with their overall social context, pointing out the inherently social dimension of some “individual” freedoms. This reasoning leads to the discovery (9.2) of a very important convergence, within democracy (as here conceived), human rights, and conceptions of human development; I argue that this convergence springs from the fact that all these currents are grounded on a similar conception of the human being as an agent. In turn, these conceptions unavoidably posit the complex issue of what may be the minimal conditions, or options, for the effectuation of the values posited by those currents (9.3). This section highlights the importance of the availability of the rights and freedoms of political democracy, plus whatever civil rights may be available, for the uphill struggles that deprived sectors must wage for attaining those conditions. But those struggles mix with some phenomena that have forever existed but have significantly increased in recent times, the various dimensions of pluralization and globalization—this topic occupies us in the coming chapter.

1

The present chapter is based in part in O’Donnell 2004.

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Social Context, Options, and Convergences 9.1. O N T H E S O C I A L C O N T E X T

We saw in Chapter 1 that many authors agree that the availability of free, pluralistic, and non-monopolized or censored information is a necessary condition for the existence of a democratic regime. For example, among the attributes listed by Dahl is that “alternative sources of information exist and are protected by law.”2 Notice that this is not strictly an individual right: having this kind of information is a social given, independent of the will of single individuals, who may or may not want to use that information. On the other hand, the right to the availability of free and pluralistic information is the collective, social side of the coin of the individual freedoms of expression and association; the individual and the social aspects of both kinds of freedoms presuppose, complement, and stimulate each other.3 Accessing free and pluralist information and its cognates, the freedoms of expression and association, as shown by the enormous attention paid to them in legal theory and practice,4 span over innumerable social areas, well beyond the regime. To be effective, this freedom presupposes two greatly facilitating, if not necessary, conditions. One is a social context congenial to the existence of a diversity of values, beliefs, lifestyles, and opinions; the other is a legal system that backs this diversity and, through it, the existence and continued transformation of a diverse social context and a dialogical public sphere. As in Chapter 1, here we find a boundary problem: it is theoretically undecidable where, and on the basis of what criteria, we may trace a clear and firm dividing line between aspects of the freedom of alternative information that are necessary for political democracy to exist, and those that are not. For example, in a given country discussion might be allowed about political matters, but the issues may be narrowly defined. If, say, the public discussion of gender or sexual diversity rights were censored, or if groups promoting agrarian reform were prohibited from accessing the media, we would not consider this freedom satisfied. Yet, in the not-too-distant past of the Northwestern countries this kind of restriction was not considered problematic.5 2

Dahl 1989: 221. Raz (1984: 87) asserts that these “general beneficial features of society are inherently public goods . . . generally of benefit to individuals.” 4 This implication also springs from the argument I made in Chapter 2, in the sense that these rights had their historical and legal origin, as well as their most frequent sphere of exercise, in civil rights. 5 Thus Holmes and Sunstein (1999: 104) comment that “Rights . . . are constantly expanding and contracting . . . What freedom of speech means in contemporary American jurisprudence is not what it meant 50 or 100 years ago.” 3

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Furthermore, as we saw with the boundary problems of other freedoms, this one poses a complicated comparative question: would it be appropriate to apply to new democracies the criteria that nowadays Northwestern countries use, or should we accept more restrictive criteria such as those applied by the latter decades ago—or is there an alternative? And, to what extent may cultural, religious, and other specificities warrant in some countries restrictions that may be considered unjustified in others? As I argued in Chapter 1, there are not, and will never be, a priori or abstract theoretically grounded criteria that would once and for all mark a clear dividing line on these matters. Now we need to advance a bit more in the analysis. First let us go back to the political relationships demarcated by a democratic regime. We saw that in this sphere individuals are legally construed as agents; they are political citizens who can vote and try to be elected, and hold the legal personality that underlies their political rights and freedoms; this is true by definition of a democratic regime, whatever the differences among them. Yet for voting being a real choice, it stands to reason that citizens need a reasonable, noninsignificant degree of free, plural, and competitive information. In addition, if, say, Jane decides to try getting elected, she will need to activate some of her rights and freedoms, such as expressing opinions and associating with parties and other citizens. These are entitlements that each one may or may not decide to utilize. Peter may not care if they exist, and even believe it to be wrong that other individuals have them; yet we saw that in a contemporary— i.e. inclusive—democratic regime, the wager assigns these rights and freedoms universalistically, independently of the preferences of single individuals. This reasoning relates to an argument that Joseph Raz has fruitfully developed. The effectiveness of freedoms such as the ones I have mentioned is a public good, because The interest of individuals in living in an open society is not confined to those who desire to benefit from it as producers or consumers of information or opinion. It extends to all who live in that society, for they benefit from the part of others in the free exchange of information and opinion.6

Raz goes on to argue that this is the main reason why these rights are usually entrenched as constitutional ones. Whether we agree or not with this particular point, it is clear that Jane’s rights would be ineffectual if there did not exist a social context that is congenial to her purposes (say, one that does not discriminate against women entering into politics). Without a diverse social 6 Raz 1986: 253. Sen (1999: 31) concurs: “Individual freedom is quintessentially a social product.”

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context, the effectiveness of political rights is seriously hampered. When such a social context exists, it benefits everyone, even those who do not recognize its worth. There are many valuable lives to be chosen, but each of us can only opt for one or very few of these lives. Agency and the freedom to choose among options is at the root of social diversity.7 I may not recognize it, but the various lives others have lived and are living, lives different than mine, greatly enrich me.8 Furthermore, that these others are agents invites me to accept and celebrate, not just tolerate9 (except cases that the legal system establishes), that they have chosen lives other than the one I live. When these mutual recognitions are widely practiced, its aggregate result is a social context that positively values diversity and inscribes the respective rights in its legal system. On the other hand, such a social context offers what, as I argued in Chapter 7, authoritarian rulers most strive to suppress: a public sphere of dialogical networks of free discussion about matters of general interest. We have approximated some conclusions. One is that, if my life is enriched by a diverse social context, I should recognize that it is my interest that all individuals, or as many as possible, have the necessary conditions for freely choosing their own functioning under the conditions established by law of an (at least) partially democratized state. Another conclusion is that it is also in my interest that these rights are inscribed in the legal system, clarifying and backing them against hostile or indifferent views. A third conclusion is that the social aggregate of these individual rights, when broadly and effectively enacted, becomes the public good of freedoms that can be generally enjoyed. A fourth conclusion is that, if these rights are truncated (e.g. if they are biased or poorly sanctioned or effected), the diversity of the social context is impoverished and, with it, the possibility of emergence of the rich, dialogical, and deliberative public sphere of a democracy of high quality. I have yet to further clarify the relationship between democracy and a diverse social context. A first step is to reason a contrario. It is clear that a democratic regime would not exist in a country where information is closely guarded or closely censored. Positively, this reasoning shows that, as 7 On this point see the classic text by Berlin 1969; in a similar sense Raz 1994. Berlin’s work has raised a series of interesting—and complicated—discussions about “value pluralism” (see among others Gray 2000 and Newey 1998) which I do not need get into here. 8 As Raz (1986: 381) puts it: “A moral theory which recognizes the value of autonomy [i.e. agency, O’D] inevitably upholds a pluralist view. It admits the value of a large number of greatly differing pursuits among which individuals are free to choose,” because (Raz 1994: 119) “the routes open to be used in our lives are both incompatible and valuable.” 9 On the limitations of sheer toleration as a proper moral attitude see Garzo´n Valde´s 1997.

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I surmised in Chapter 7, the freedoms of expression, association, movement, and the like have two sides.10 One is the individual one I have mentioned. The other side is that the effectuation of these freedoms is a social fact; it feeds from, and at the same time generates, a social context the diversity of which expresses—jointly with manifold cultural, religious, artistic, and other identities, values and practices—the effectuation of those freedoms. Now recall that I first argued that some freedoms are necessary conditions for the existence of a democratic regime; later on I asserted that these freedoms are segments of broader, and older, civil rights. Here we further see that these same freedoms—both their political and civil versions—have an inherent social dimension: they cannot exist outside reasonably congenial social and political institutions, legislation, values, and practices. In synthesis, citizenship entails the legally-backed possibility of entering dialogical networks of discourse. We address both rulers and others like us, and in so doing we are co-operators of the interactions between a democratic regime, the state, and the overall social context. Of course, there are important variations across time and countries in the degree, the ways, and the intentions with which citizens enter dialogical networks, if at all. These variations are determined by many factors, but the one that is arguably the most important, at least for a comparative study of democracy, is the options that are actually available to many or most individuals. This matter occupies me further on, after noting in the coming section an important convergence that helps its broader understanding.

9.2. A N I M P O RTA N T C O N V E RG E N C E Even if all of us are agents, as the discussions of the work of Gewirth show,11 it is disputed if this entails, as this author argues, the moral obligation of recognizing the agency of others. I believe, in agreement with this author, that such an obligation exists; still, irrespective of opinions on this matter, in preceding chapters I argued two points that seem independent of those discussions and are partially concurrent with Gewirth’s view. One is that agency is legally sanctioned as a basic attribute of political citizenship; the

10 I have mentioned Raz’s arguments in this respect; for valuable concurrent arguments about the social side of rights see Garzo´n Valde´s 1993b, Habermas 1996, Ivison 2008, and Waldron 1999. 11 Among Gewirth’s works see especially 1978 and 1996; for discussions of these works, many centered on the issue I note in the main text, see Regis 1984 and Gewirth and Boyland 1999.

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other, that the legal system contains rules that demand that in numerous social settings we do respect, de facto if not necessarily in pectore, the agency of others. These are juridical expressions of ideas of fairness, and of the respect and recognition due to agency; these ideas have greatly helped texture fundamental aspects of modern societies, prominently included in their legal systems. That from several angles those legal rules enact the obligation of respecting agency is in part the result of the processes I examined in Chapter 2, and has become an important achievement of democracy, even of democracies that do not contain much more than the political rights without which they would not qualify as such. Depending on countries and periods, the scope of those legal rules may be more or less broad, and the degree of their subjective acceptance more or less widespread; yet it is as if through the historical processes of recognition of agency under democracy has emerged a “semi-Gewirthian legislator”: it cannot demand moral acceptance of the agency of others, but it can submit to negative consequences those who de facto violate or deny agency in the numerous social locations it has juridified. Put in a different but concurrent way, another process we also examined in Chapter 2, the constitutionalization of the tradition of natural rights, has meant the juridification of the moral conceptions of agency carried by that tradition, with the consequent obligation of acknowledging it in numerous social locations, both by the state and every individual under its jurisdiction. Whatever the conclusions we may reach on this particular matter, insofar as we recognize the human being as an agent, we are led to the issue of what social conditions may or may not enable her agency. In Chapter 2 we saw this issue posed through processes that occurred in Northwestern countries; now we have to deal with it from a broader perspective. For this purpose it is useful to begin noting a significant convergence: the one that exists among democracy (as here understood), human rights, and human development. These currents share a common grounding, the conception of the human being as an agent.12 A being endowed with practical reason can expect to be respected in her dignity as such a being; she can also expect the social provision of conditions necessary for freely exercising the cognitive, moral, dialogical, and sociability aspects of her agency. Submitting this individual to, say, physical violence or to the recurring fear of it, or to privation of basic needs, or ignoring the rights resulting from her citizenship, are all severe

12 Beetham (1999: 121) makes an argument that substantiates this convergence: “At a theoretical level, the idea of human rights could only be entertained once the status distinctions and privileges of traditional society had been eroded, and people could be defined as individuals independently of their birth-determined social statuses.” As I argue in the main text, the same grounding quite obviously holds for conceptions of human development.

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denials of her agency. This view has been repeatedly asserted in the tradition of human rights.13 In respect of democracy I have argued that, even looking at one of its aspects, the regime, we see that agency is not only entailed but also sanctioned and backed by legal rules. In relation to human development, its concern with capabilities can only be understood as they enable functionings adequate to agency. This is explicit in the work of Sen, who has been very influential in the conception of human development adopted by the United Nations Development Program (UNDP/PNUD). In Sen’s conceptualization, what I am calling agency entails having a capability set, defined as “the set of functioning vectors within his or her reach.”14 Those “capabilities are one way of characterizing positive freedom, and they can be seen as rights—positive rights to do this or to be that.”15 An adequate capability set allows individuals to choose from among various functionings; according to Sen, this is the positive freedom to decide, with reasonable autonomy, knowledge, and responsibility, the course of one’s life—in my terms, to be an agent.16 This conception is clear in the statement with which the 2000 United Nations Development Program Human Development Report (2000: 1) begins: “Human rights and human development share a common vision and a common purpose—to secure the freedom, well-being and dignity of all people everywhere.” Concomitantly, this organization (ibid. 16) defines human rights as those “possessed by all persons, by virtue of their common humanity, to live a life of freedom and dignity. They give all people moral claims on the behaviour of individuals and on the design of social arrangements.” Further, this report (ibid. 17) defines human development as [T]he process of enlarging people’s choices, by expanding human functionings and capabilities . . . It represents a process as well as an end. . . . At all levels of development the three essential capabilities are for people to lead a long and healthy life, to be knowledgeable, and to have access to the resources needed for a decent standard of living. . . .

The rights and capabilities invoked by these three currents directly pertain to, and, if effective, enable agency. This is their nexus. This is why each, or a combination of some of them, may help the attainment of the other(s). Clearly, there are no predetermined or necessary sequences in this matter; 13

Which, in addition, in terms of what is usually called the “first generation” of the rights it postulates, shows extensive overlap with what here I call civil rights. 14 Sen (1985: 20–1). 15 Sen (1985: 16); see also this author 1984 and 1993. 16 Nussbaum’s writings on this matter are also relevant; see Nussbaum 1997 and 2002, and in particular 1999 and 2000, where she usefully deals with the relation between this approach and gender issues.

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yet I believe that because of their common grounding there exists a strong elective affinity among these three currents—they, so to speak, invoke each other. But they do it from not fully convergent angles. The values invoked by human rights and human development pertain to all human beings irrespective of nationality or physical location; instead, basically due to the ascriptive side of citizenship I noted in Chapter 4, the rights of political democracy are usually assigned on the basis of nationality. As a consequence, the trade-off of the broader, truly universalistic, scope of human rights and human development is the lack of direct enforcement of such rights; but this problem is being ameliorated by various processes of international juridification and judicialization. On its part, the more restricted scope of citizenship rights is counterbalanced by the availability of an enforcement mechanism, the state and its legal system; in turn, this restriction has been ameliorated by the extension of civil rights to all inhabitants; by the adoption in some countries as domestic law of some international covenants on—broadly defined—human rights and human development; and by the assignment in some countries of some social and even political rights to residents. These convergences, to which I return in the following chapter, are being fostered by winds of globalization that spread the views and values these currents harbor. The driving force of these currents is ultimately moral: the belief that an agent should not be deprived of any of the basic freedoms, rights, and capabilities postulated by each of them. In this connection Sen (1992: 17) makes the interesting observation that even in relation to theories of a conservative bent: It may be useful to ask why it is that so many altogether different theories of the ethics of social arrangements have the common feature of demanding equality of something. . . . It is also of considerable pragmatic interest to note that impartiality and equal concern, in some form or other, provide a shared background to all the major ethical and political proposals . . . which continue to receive argued support and reasoned defense. If a claim that inequality in some significant space is right (or good, or acceptable, or tolerable) it has to be defended by reason . . . [when this is the case the argument takes the form of showing this inequality to be a consequence of equality in some other—more centrally important—space. (ibid. 21; italics in the original).

This is a contemporary achievement. For a long time, most theories postulated intrinsic human inequality; as I noted in Chapter 2, for centuries serfs, workers, women, and many others were deemed to lack agency, and hence to be intrinsically inferior to their “superiors.” I believe that the tendency noted by Sen in all sorts of contemporary ethical theories to base themselves on

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some dimension of human equality, is a reverberation of the processes of recognition of agency in manifold social and political areas. In spite of the many horrors of the past century and present times, the increasing indisputability that all humans are in a fundamental sense equal is a very important achievement. As a consequence, the view of agency postulated by democracy, human development, and human rights is not, in the contemporary world, an odd and isolated argument. Even in countries where this equality is factually denied in various ways, the equalizing view of agency entailed by their democratic regimes and legal systems is there, legally sanctioned and amenable to be mobilized for the conquest of still lacking rights.

9.3. O P T I O N S A N D T H E C O N U N D RU M O F P R I O R I T I E S The preceding assertions gloss over discussions that center on equality and its trade-offs with liberty. These are important issues that will forever engage political conflicts and theoretical discussions. I cannot deal with this matter in the present text. Here I have in mind situations that are, in an important sense, previous to those discussions. In the Northwest, they usually deal with the issue of which principles of liberty and/or equality should regulate with what trade-offs the allocation of social goods once everyone, or most, have attained a basic level of rights and capabilities.17 Instead, in many countries outside that region the main problem refers to individuals who have not attained that basic level. This poses a sad and somewhat different question. It is whether there exist good reasons—before the predicaments of liberty vs. equality under affluence are saliently posed—for asserting a universalistic right to the attainment of a basic level of freedoms, rights, and capabilities. I am persuaded that these reasons exist,18 and that their common grounding is agency; they refer to a primary aspect of fairness, not full equality but basic equalization. By equalization I mean that everyone may enjoy at least

17 Concurrently, Dasgupta (1993: 45n.) comments: “Much contemporary ethics assumes at the start of the inquiry that these [basic] needs have been met.” This assumption is explicit in the work of political philosophy that arguably has been the most influential in the last decades in the Anglo Saxon world: Rawls 1971. His theory of justice is deemed to apply to countries where “only the less urgent material wants remain to be satisfied” (ibid. 542); for a restatement of this assumption see Rawls 2001. In turn, the same assumption is clearly entailed in the work of Habermas, arguably the most influential contemporary continental European political philosopher; see for example his great book of 1996. The issue that remains is what is to be said about countries that do not meet this assumption. 18 See concurrently Shue 2004.

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two things: firstly, as we saw when dealing with state institutions but now generally, to be treated with the respect and consideration due to an agent; and, secondly, to attain the social provision of a basic level consisting of freedoms, rights, and capabilities that enable agency or, at the very least, not to suffer deprivations that seriously hamper it. Above this level we can, and should, have complicated and—why not?— passionate disputes about the above mentioned trade-offs; yet whatever the answers to these disputes, the question remains as to whether there are not only moral duties to provide, but also rights to claim basic agency-enabling rights and capabilities. On the other hand, as we saw in Chapter 1 and the present one with political rights, the rights and capabilities implied by human rights and human development can only be inductively derived; what could be their basic (or minimum) level also is theoretically undecidable. How and on the basis of what criteria may a firm and clear line be drawn above which agency may be construed as enabled in terms of human development and human rights? As with political rights, there is not, and will never be, a priori and/or firm generalized inter-subjective agreement on this matter. And, as with political rights, instead of artificially trying to set the respective external and internal boundaries, the appropriate procedure is to analyze the reasons and consequences of their undecidability. A point sometimes made is that the rights and/or capabilities of these lists are “equally fundamental.”19 Yet this is a problem, because it leaves us without practical and analytical guidance: where to begin, if there are so many deprivations of closely interconnected freedoms, rights, and capabilities? It is also a problem because it offers an easy target for those who deny the relevance and/or the conceptual import of the proble´matique of human development, of human rights, and of a theory of democracy that goes beyond the confines of the regime. The simultaneous undecidability and great importance of these rights and capabilities is, admittedly, a conundrum. One possibility, as I did with some examples in relation to political rights, is to proceed a contrario, identifying conditions of such deprivation that there can be little doubt concerning the denial of agency in terms of human development or human rights.20 This is a useful step; yet it is a negative determination that does not tell us at what point the basic options for agency may be positively satisfied. Furthermore, as with political freedoms, the relevant criteria for human development and for human rights have changed with time. In the Northwest, this variability caused many conflicts in trying to 19

UNDP (2000: 12 and passim) for this and similar expressions. Selznick (1992: 171) sensibly comments that “It is always easier to identify pathologies and establish thresholds than it is to say objectively what is psychic health, maturity, or fulfillment.” 20

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reach an agreed-upon sufficient set of these rights and capabilities; obviously, this is even harder in countries that command far less resources and are more unequal than the former. The specific content of freedoms, rights, and capabilities, their degree of specificity, their reach, the relative priority of some over others, and other issues of this kind are and will be forever disputable—there are too many views and preferences, too many theories of what is just and/or fair, and too many social interests and positions for any of these issues to be clearly and firmly settled. This matter is the ultimate undecidable, which condenses all the ones I mentioned above. As Waldron (1999: 225–6) notes: Any theory of rights will face disagreements about the interests it identifies as rights, and the terms in which it identifies it. . . . In addition, theories of rights have to face up to controversies about the forms of duty that they ground and the forms of moral priority they establish: absolute duties, prima facie duties, lexical priorities, weighted priorities, agentrelative side constraints, agent-relative prerogatives, and so on.21

This is a fact of social life. It should not be regretted; it is a consequence of human agency and the diversity of life-projects, identities, views, interests, and social locations it sustains. What is the answer to these problems and restrictions? I believe that it is in dubio pro-democracy, to proffer a bias for democracy, even knowing that it is far from a magical formula for finding solutions. The bias results from considering that the crucial issue is who decides, how, and on what grounds, which rights are enacted and implemented, and with what intensity and scope, while other rights are not sanctioned or remain a dead letter. Even if based in universal characteristics of human beings, what claim-needs become effective rights and achieved capabilities, to what extent they are implemented, and with what trade-offs, is the result of social and political processes, always motivated by moral reasons and demands. The mutual agency recognitions entailed by political citizenship are crucial here. This is a space, a legally-backed opportunity to be enacted by means of a dialogical participation that sustains processes during which, as we saw in Chapter 7, identities and interests are defined and redefined. Concurrently, Sen (1999: 11) asserts that Our conception of needs relates to our ideas of the preventable nature of some deprivations and to our understanding of what can be done about them . . . Political rights, including freedom of expression and discussion, are not only pivotal in inducing social responses to economic needs, they are also central to the conceptualization of economic needs themselves. 21 O’Neill (1989: 197) agrees: “There is no unique way of accommodating different rights. There are infinitely many ways of describing possible actions and hence indefinitely many ways of picking out sets of co-possible, equal rights.”

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Yet, as Shue (1996: 7) notes “No one . . . can fully enjoy any right that he is supposed to have if he lacks the essentials for a reasonably healthy and active life.” Consequently, “[I]t would be inconsistent to recognize rights referred to life or to physical integrity when the means necessary for the enjoyment and exercise of these rights are omitted.”22 These sadly obvious remarks lend drama to arguments and struggles about which rights should be enacted in countries where because of severe deprivations the very possibility of agency is at stake. Truly, in some countries dynamic social and political movements have appeared; but with some notable exceptions these movements and other kinds of demands tend to be short-lived, even if some of them may cause, as in contemporary Latin America, great commotion and some political adjustments at the national and/or local level. Few issues thus raised get firmly into a policy-making agenda that instead includes salient concerns for “public security” that often entail the criminalization of poverty and, with it, regressions in the civil rights of the popular sector, and/or temporary—and humiliating23—handouts of some goods to segments (often clientelistically selected) of the popular sector. As should be clear by now, we cannot know in advance the answer to the questions posed in this section. It would be a presumptuous intellectualization or a technocratic fallacy to try and predetermine a priori what mix of rights and capabilities should be demanded by what deprived sectors or classes in a given country and period. All we can do is try to clarify these issues and insist on the at least potential importance of the rights and freedoms that political democracy entails. In this connection, the undecidability of their minimal sufficient set did not deter us from identifying some freedoms about which we can confidently make an empirical, inductively derived, causal proposition: if these rights lack, or if they are severely curtailed, then a democratic regime and its component of political citizenship do not exist. In the same sense, the impossibility of determining a minimal sufficient set for human development and for human rights should not deter us from establishing conditions that, on the basis of available knowledge, allow us to confidently assert that they entail severely hampering agency. For example, in terms of human development physicians and biologists know the minimal nutritional requirements of various social categories, as well as the tragic consequences that deprivation of the respective minima bring for their 22

See also Va´zquez (2002: 102) who notes that “It would be inconsistent to recognize the rights referred to life or to physical integrity when the means necessary for their exercise and enjoyment are omitted” (my translation). On the cognate concept of personhood and the consequent right to basic social provisions see Griffin 2008. 23 In addition to the dependency and exchange aspects stressed by the literature of clientelism, Ippolito-O’Donnell 2004 and 2008 calls attention to the humiliations and the factual denial of citizenship entailed by these exchanges.

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victims and their offspring.24 In terms of human rights, we can, say, identify practices of violence against women and children, police torture and other mistreatments that clearly deny agency.25 In addition, we should realize that the respective needs and deprivations are not only the suffering of individuals; these are moral, social, and political ills, to be dealt with by the acknowledgement of consequent social and political responsibilities. On the basis of this kind of deprivation and their consequences, an argument may be made that a country’s resources should be primarily allocated to overcoming them.26 However, we can be guaranteed that alternative arguments will be made; say, for allocating those resources to improving health and education services for the middle sectors, so a better trained and healthier workforce improves economic growth rates that presumably will also benefit in the medium run those who suffer more severe deprivations. The second thing we know is that these are political questions, informed by different values, ideologies, and social locations, and by more or less implicit theories about the workings of a given society and, nowadays, increasingly also about the workings of the whole world. These discussions define what the socially “real” needs that a country faces, ignores, and eventually represses are. Politics, democratic politics indeed included, is as much about consensus as it is conflict. Pushing some issues into the public agenda, arguing that some needs generate rights to be claimed to state and society, and debating about 24 For data and discussion of the situation of Latin America in this and related matters see Bartell and Alejandro O’Donnell 2000. Generally see Dasgupta (1993: 474) who comments, “It is often said that even when a person owns no physical assets she owns one asset that is inalienable, namely labour power . . . [I] have revealed the important truth that this is false . . . Conversion of potential into actual labour power can be realized if the person finds the means of making the conversion, not otherwise. Nutrition and health-care are the necessary means to this” (italics in the original). 25 Weale proposes a useful rule of thumb (1983: 35): “The basic criterion of a social minimum . . . is that when it is satisfied persons should be able to meet the obligations that are conventionally expected of all persons in that society as producers, citizens, neighbors, friends, and parents.” This in turn is based on “the principle that government should secure the conditions of equal autonomy for all persons subject to its jurisdiction” (ibid. 42). Concurrently Miller (1999: 210) argues for “[I]dentifying needs over and above the biological minimum by reference to shared social norms. Here the claim is that within each community there will be a shared conception of the range of activities that together make up a normal life . . . conditions that allowed people to lead a minimally decent life in their society.” 26 For arguments in this direction see Arango 2002, Nussbaum 1997 and 2002, Pogge 2008, Sen 2000, and Va´zquez 2001. In fact, the 1966 International Covenant on Economic, Social, and Cultural Rights commits the signatory state “To take steps . . . to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures.” That many countries have failed to honor this commitment does not detract from its present, and perhaps especially long-term, moral and symbolic importance; see in this respect Beetham 1999.

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the relative priorities of various kinds of needs and rights, all these are conflictive matters—the more so the more unequal a society is, and the more used to their privileges are its dominant sectors and classes. At this point one of the intersections among democracy, human development and human rights may be highlighted: except for exceptional individuals or circumstances, the effectuation of political rights and freedoms requires that some basic capabilities and human rights have been achieved; conversely, the struggles for achieving those rights and capabilities may benefit from the empowerments furnished by political democracy.27 A disappointed view would say that I have drawn a vicious circle. An alternative view begins by recognizing democracy’s peculiar dynamics and historical openness. The always possible extension or retraction of political, social, and civil rights and—encompassing them all—the issue of the rights and capabilities that enable agency, are the field on which political competition has been and will continue being played.28 These are political processes that eventually lead to decisions enacted by the state. History attests that no “full package” of these capabilities and rights has ever been simultaneously enacted, not to say implemented. This shows that it is wrong to ask for a priori specification of a minimal sufficient set of these rights and/or capabilities; it also shows that it is unfair to dismiss claims that do not purport to simultaneously achieve a full package of these goods. History also attests that the resources necessary for achieving some of these rights and capabilities have been disputed and redefined along conflictive processes; various kinds of circumstances and political alliances have led to prioritizing some claims over others that were arguably no less basic than the former. Yet the rights of political citizenship plus whatever civil rights do exist, and eventually appropriate political alliances,29 sharpen “the weapons of the weak”30 for continuing their uphill and always open-ended struggles.

27 This interplay underlies one of the central arguments in the recent work of Habermas (1996: 127) that of “[T]he co-originality of civic and private autonomy,” due to which: “The institutions of the constitutional state are supposed to secure an effective exercise of the political autonomy of socially autonomous citizens” (ibid. 176). Of course, as I noted, this author is writing about countries that have achieved not-insignificant, albeit not complete, articulation between those levels; here I have in mind countries where that achievement looms into the future. 28 As Marshall (1992: 18) argued, “There is no universal principle that determines what those rights and duties shall be, but societies in which citizenship is a developing institution create an image of an ideal citizen against which achievement can be measured and toward which aspiration can be directed. The urge forward along the path thus plotted is an urge toward a fuller measure of equality.” See also Donnelly 1999. 29 For reflections on this matter, see O’Donnell 1998. 30 As expressed and analyzed in Scott 1985 and 1990.

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Furthermore, if a country is poor and has an anemic state and a truncated legal system, which sequences and trajectories would be adequate for moving forward? In this respect I have an admittedly insufficient and at best mediumterm suggestion: at least in relation to Latin America, place more emphasis than has been the case on the expansion of civil rights (as I have defined them and in their overlap with human rights). The reason is that, probably even more than they were in the Northwest, whatever civil rights are gained can become important levers for further, fuller democratization. Civil rights not only protect, they also empower by providing opportunities for attaining further rights. Civil rights make possible (but I grant, just possible) for various collective and individual actors to autonomously define their identity and interests, helped by the rights and freedoms that a democratic regime sanctions.31 Furthermore, extensions of civil rights initially based in the utilization of political ones tend to reinvigorate the latter; this in turn opens avenues for further struggles for other rights, including social ones. In the next chapter I discuss some additional complicating factors, related to the—broadly defined—processes of globalization currently under way. 31 Concerning these rights Marshall (1981: 141) persuasively argued that “They thus become part of the individual’s personality, a pervasive element in his daily life, an intrinsic component of his culture, the foundation of his capacity to act socially and the creator of the environmental conditions which make social action possible in a democratic civilization . . . civil rights, though vested in individuals, are used to create groups, associations, corporations and movements of every kind.”

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The Conundrums of Globalization and Legal Pluralism I begin this chapter with a personal story that has bred my skepticism about the desirability, and possibility, of attaining a unique kind of democracy (Section 9.1). There we have a first look at the great variety of human and social forms that has for ever existed and has increased, in itself and perhaps even more in its visibility, in present times. A first aspect of this variety is the one accentuated by globalization, a complex and disputed topic that I discuss below, albeit solely from the perspective of the themes dealt with in this book (10.2); a related matter is pluralism, especially its version as legal pluralism (10.3). These overviews complicate the argument about agency that I have made throughout the preceding chapters; I deal with this issue in 10.4, albeit in some respects quite inconclusively. However, I feel that it is still possible to propose what I call some basic standards for any political democracy, whatever its social and cultural context (10.5). Then a final section (10.6) prepares us for the Conclusion of this book.

10.1. A RO U N D YA L E ’ S L I B R A RY As I did in Chapter 7, here I begin with a personal experience that, even though far less dramatic, also deeply impressed me. As I mention in the Introduction, during 1968–1971, I was a graduate student of political science at Yale University. It was there that I made an interesting discovery early on in the library: books that purported to explain why Iberian countries (Latin America, Spain, and Portugal) were not and could not possibly become democracies, nor achieve sustainable levels of economic development. The argument was that we Iberians shared a religion and a culture marked by hierarchical views of authority and organic/corporatist views of society. The main reason that underpinned this argument was the lack of individualism, deemed to be an indispensable foundation for

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democracy and economic development. The implication of these books was not politically innocent: the various kinds of authoritarian regimes that in those times ruled Iberia were argued to be the political form that “fit” our culture, so they should be looked at positively by policy-makers in Washington and other Northwestern capitals. Consequently, struggling for democracy or trying to promote it in those countries was seen as not only hopeless but also damaging for the interests of Northwestern countries as well as for peoples who were supposed to be living quite happily under authoritarian rule. During my wanderings in the library I made another discovery. There were also books making a remarkably similar argument about countries seen as under the aegis of Buddhism or Confucianism, all of them, as Iberia, supposed to be quite happily living under authoritarian regimes deemed consistent with their religion and culture. Again, that these countries did not support an individualist culture was the reason that supposedly made democracy and, indeed, even sustainable economic development, “unnatural” to them. Today, other books make similar arguments about Islamic countries— about these matters there is nothing new under the sun, except that, in addition, nowadays civilizations are supposed, and sometimes induced, to clash. . . .1 Since those times I have worried if and to what extent presumed cultural and/or religious incompatibilities with democracy are real or are the expression of ethnocentric bias, as they turned out to be in relation to countries that in the recent past were dismissed in such an off-hand way. This indeed inspired my avid interest and participation in the project “Transitions from Authoritarian Rule,”2 as a way to look for paths toward democratization that would not have to wait for the Greek calendas until achieving reasonable levels of economic development and/or transformed cultures. This is the perspective from which I approach the following sections. I limit myself to some general observations, originating in the preceding remarks but also distilled from the views I have presented in previous chapters in respect of the universalism of human agency and the consequent duties of deference and consideration toward it.

1

For a well informed study discussing and partially refuting the often presumed inherent incompatibility of Islam and democracy but not ignoring many of the obstacles, see Sadiki 2009. 2 The results of this project were published in the four volumes of O’Donnell, Schmitter, and Whitehead 1986.

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10.2. N OT E S O N G LO B A L I Z AT I O N In addition to the faces I discussed in Chapter 6, states have another one. I refer to the one that has been imprinted on them by the processes of globalization that have recently raised so much attention and debates. The very fact that I have written this book means that I disagree with those who argue that globalization, however defined, leads to the demise, or at least the insignificance, of the state. It is on the other hand undeniable that several aspects of economic, financial, and informational globalization are provoking important changes in the institutional structure, and in the scope and goals of policy-making of states. It is also undeniable that several aspects of globalization are eroding hard-won rights of workers in the capitalist centers, and more so of workers and various minorities in the rest of the world—one of the reflections of these negative consequences appears in the high and increasing size of the informal labor market to which I referred in Chapter 8; another are patterns of international migration that are generating serious concerns, and not just a few ugly chauvinistic reactions, in recipient countries. On the other hand, other aspects of globalization are having beneficial consequences that are clouded by blanket condemnations of this phenomenon. I refer to facts such as the increased capabilities that for social and protest movements of various kinds by means of access to the internet, mobile phones, text messaging, and web filming and photographing;3 the growth and activism of international networks and organizations that support various popular, indigenous, and ecological movements;4 the possibilities for the spread of some kind of education through the internet; the possibility of instant access to worldwide news, and information provided by some states and public institutions—as well as other possibilities of accessing and communicating information. These processes mean the transnational expansion of the dialogical networks I mentioned before, and in principle if they do allow reasonably fair participation, of the consequent public arenas. These are important but not entirely new developments; the recent expansion has created new opportunities for participation and expression that are not territorially bound by a state, but as I have already argued it does not make them equivalent, except in a rather loose metaphorical sense, to the demos of a democratic regime. 3 I am aware that this has not bridged the digital divide between the rich and highly educated, and the poor and excluded. Yet, it seems to me that those same facts are giving the latter, as well as to their allies (see the next footnote) possibilities that hitherto were lacking. 4 On these “transnational advocacy networks” see Keck and Sikkink 1998, and Risse, Roop, and Sikkink 1999.

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In what directly interests me here—the impacts of globalization on the state—I defer to some distinguished scholars. I begin with Agnew (1999: 84) who, after noting many of those changes, concludes that anyhow “[S]tates have a continuing and vital role to perform within the evolving world of networks and flows.” This conclusion is reinforced by Held (1995: 441), who argues that Patterns of regional and global change are transforming the context of political action, creating a system of multiple power centres and overlapping spheres of authority—a post Westphalian order . . . [but] economic globalization by no means necessarily translates into a diminution of state power; rather, it is transforming the conditions under which state power is exercised . . . There are many good reasons for doubting the theoretical and empirical basis of claims that nation-states are being eclipsed by contemporary patterns of globalization.5

These matters pertain to one of the basic dimensions of the state, its filtering. Surely the current patterns of globalization place exacting demands on this dimension; yet it seems clear that the degree to which damaging consequences of globalization are filtered out or ameliorated, while beneficial consequences are allowed and promoted, depends to a significant extent on what kind of state there is. This is made clear by Kahler and Lake (2004: 409–11), who conclude that “the effects of globalization on governance at all levels are more complex and contingent than many observers claim . . . globalization is an important environmental change that is affecting states but its influence and constraints are mediated by national politics and institutions.”6 Held (1995: 441) concurs: Indeed, any assessment of the cumulative impacts of globalization must acknowledge their highly differentiated character since particular types of impact—whether decisional, institutional, distributional, or structural— are not experienced uniformly by all states . . . the impact of globalization is mediated significantly by . . . specific government as well as societal strategies for contesting, managing or ameliorating globalizing imperatives.7

5 Doornbos (2006: 43) sensibly adds: “In a dynamic perspective, we may need to see the state as continuously reshaping itself as well as being reshaped.” 6 For further details see Kahler and Lake 2003. After a review of this and related matters, Kjaer (2004: 204) agrees:“States are key filters through which global processes are molded.” For other assessments, basically concurrent with the preceding ones, see Bouzas and Ffrench-Davis 2005, Diniz 2004, Evans 1997, Held 2002, Hurrell 2007, Reis 2004, Touraine 2000, Velasco e Cruz 2003, and Zimmerling 2004. 7 See Weiss 2005, who after studying the recent changes in the institutional structure of the Italian state concludes that globalization has not at all diminished its “activism,” but rather

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This is the point I want to raise here. Yes, globalization affects in many ways, some negative but in others positive, the functioning of states and societies. But this does not augur the demise of the state; strong states, not accidentally many of them among those of the Northwest, seriously strive—including reshaping their laws and bureaucracies—to digest and control negative consequences, and also permit and promote positive ones. Indeed, this is a major challenge for the disarticulated and fragmented states that often exist in other parts of the world. Their flaws in their four dimensions; their consequent weakness; the neo-patrimonial practices of many who populate them; the consequent lack or demoralization of the skilled and committed officials that could deal with the complex matters raised by globalization—all paint a worrisome picture, in itself and because it feeds an increasing inequality among countries. These flaws led in some cases, as in Argentina during the 1990s, to an almost complete abdication of the state’s filtering role, while enthusiastically praising an unconstrained globalization; in other cases it leads to attempts at forbidding to little effect most of the aspects of globalization. Furthermore, I noted in Chapter 6 that, especially in Latin America and other countries outside of the Northwest, the rich and powerful find many ways to evade the state. This is also true in relation to the topic I am discussing here; an important aspect of economic and legal globalization is the great expansion of, as it was called before the emergence of the modern state, lex mercatoria, private international commercial law.8 In this respect Jayasuriya (2002: 445) mentions “[T]he tremendous growth of private international authority . . . [entailing] the attempt to treat the market as a constitutional order with its own rules, procedures, and institutions that operate to protect the market order from political interference” (ibid. 452).9 This means the extraction from the jurisdiction of states of important matters of foreign investment, trade, intellectual property, and others. Yet two caveats are in order. One is that state policies do make a difference. Going back to Argentina

displaced some of its manifestations to new or reformed areas of policy. From a different perspective Meyer (1999: 57) agrees: “The modern state may have less autonomy than earlier but it clearly has more to do than earlier as well.” 8 See on this theme Cutler 2001, and for further discussion Jayasuriya 2002 and Schneiderman 2001. From the angle of the highly influential rule making and adjudication by international organizations and quasi-judicial international courts concerning business regulation see also Alvarez 2005; in this context the increasing importance of “alternative dispute resolution”(ADR) institutions bears special mention, tilted in favor of highly developed countries and multinational corporations. 9 The author mentions international standards associations and international quasi-judicial arbitration, to which should be emphatically added the credit rating agencies.

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in the 1990s, the government passively accepted whatever external jurisdiction was demanded by foreign and even domestic corporations—the country is nowadays paying dearly for this abdication. By contrast, under a government that in some respects was deemed (however properly or not, it does not matter at this point) to share similar “neo-liberal” orientations, Brazil denied that abdication of its jurisdiction to the same transnational corporations and international financial organizations—and this did not interrupt the flow of foreign investment into that country. The second caveat is that however inescapable are some of these transfers of jurisdiction beyond the states nowadays, as the example of some Northwestern countries shows, this does not prevent their states making serious and innovative efforts to safeguard the national economy and defend the rights of its citizens. As we saw, capitalism needs a basically congenial state, and capitalists and their intellectuals have for ever strenuously argued against rights and policies that seem to hamper its untrammeled expansion. The resulting influences have, in quite a few Latin American countries, consequences that express an aspect of poorly filtered economic globalization. An example are the heavy expenses that, fostered by intentions to attract foreign investment and pressures and grants from international financial organizations, have been lately made in judicial “hardware,” such as buildings and computers. But in many cases this has been done mostly in the branches of the judiciary that deal with matters of direct interest to business and of repressively conceived “security” matters. On the other hand, in contrast with this but in consonance with the different faces of the state that I noted in Chapter 6, with some exceptions the judiciary’s facilities that deal with ordinary people’s issues have been much less favored by such munificence.10 The preceding creates new, and very complex, problems. But insofar as they are understood and politically digested as such, not as a dismayed indication of an overwhelming globalization or an impending “end of history,” those problems generate, as other situations perhaps no less exacting did in the past, challenges that states that want to claim credibility as custodians of the public good should strive to meet. Admittedly, however, for most countries outside of the Northwest these challenges are compounded by the fact entailed by what I say above about lex mercatoria and cognates, but it is broader than that. I refer to what in his excellent book Hurrell (2007: 11) notes: 10 Domingo 1994 argues that even though “business friendly” expenses may be useful for fomenting investment, they tend to produce a “dualistic development of the justice system,” centered on those aspects “that concern the modernizing sectors of the economic elite in matters of an economic, business or financial nature . . . [while] other areas of litigation and access to justice remain untouched, corrupted and persistently lacking in infrastructure and resources.” See also Hammergreen 2007 and Shapiro 2003.

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[T]he world order insofar as it is at all an order, is basically ordered by a few very powerful states, directly and indirectly through their influence in various international organizations . . . the way in which the structures of governance that have developed within the international system reflect and reinforce the broader patterns of inequality that mark the global system.

In the coming section I return to other aspects of this problem.

10.3. N OT E S O N L E G A L G LO B A L I Z AT I O N A N D P LU R A L I S M In the preceding section I postponed reference to other aspects of globalization, those that entail the spread and the increasing juridification and judicialization of international law in international courts and in the domestic jurisdictions of some countries. Despite inconsistencies and frequent hypocrisy in the application of international law by various governments and international institutions, I agree with authors who argue that this law sanctions and advances throughout the world valuable views of universal ethics that can be shared by many cultural and religious traditions.11 A partially overlapping process is also of great importance: the emergence of a transnational regime of (broadly defined) human rights, including not only the above mentioned networks but also international covenants beginning with the 1948 United Nations’ Universal Declaration of Human Rights, and followed by others on issues such as gender (1979 and 1999), torture and other horrors (1984), racial discrimination (1965), rights of children (1989), and indigenous peoples (2007), among others. In this respect Hurrell (2007: 63–4) argues that “International law has become an increasingly important source of national law and is far more commonly used in the adjudication of law at the national level” [as well as by several international courts, O’D]. This is particularly true in relation to human rights, which in many countries have been at least formally constitutionalized and in some are applied or invoked by national courts. To quote once more Hurrell (2007: 304), “Thus we have seen the emergence of an international and transnational culture of human rights that involves a widely shared language, an inclusive moral vocabulary, and an authoritative and well-developed 11

For discussion of this aspect see Philpott (2007: 17) who, while acknowledging various debates and hindrances to its diffusion, argues to my mind correctly that the international law tradition implies that “a universal ethic, one extending to all corners of the planet, [is] a worthy aspiration . . . A planetary ethic is the very point of the tradition.”

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normative structure from which very few groups are prepared to try and exempt themselves.”12 Unfortunately this is not the whole story. Much of the positive developments I just noted took place from the mid-1970s to the late 1990s, jointly with active international support for the transitions from authoritarian rule that occurred in several countries outside of the Northwest. However, the meaning, content, and consequences of international interventions and modifications in international law have changed quite drastically, particularly after the terrorist attacks of September 11, 2001. After this attack, the United States’ government, with the support of a number of other governments, and under the banner of the “war on terror,” took unilateral and promoted multilateral actions that have seriously undermined the advances I just noted. Several actions were promulgated by that government through the United Nation’s Security Council, by means of an interpretation of its powers that as, Cohen 2008b argues, “usurped” crucial aspects of the authority of the General Assembly. However, implicitly consenting to this extra limitation in 2005, the Assembly approved the doctrine of “responsibility to protect” individuals and groups from alleged human rights violations, even by coercive intervention without the consent of the imputed states. Furthermore, and more worrisome, the Security Council “has considerable freedom to interpret the meaning of threats to international peace and security and there is nothing that stands in the way of authorizing more expansive notions of preventive and pre-emptive self-defence”; Hurrell (2007: 155). Consequently, lately, the defense of human rights as well as the promotion of democracy13 have been aggressively invoked (or selectively forgotten), unilaterally or through the Security Council, in ways that quite often are self-serving of the geopolitical and economic interests of the most powerful countries; those that have seats in that Council and in other crucial international institutions. A serious collateral damage is the mantle of suspicion that has been thrown over the well-meaning and peaceful efforts to promote human rights and democracy that continue to exist in the international community.

12 Cohen (2008a: 580) concurrently comments that “[T]he [international] human rights declarations and covenants were an important normative referent for domestic society and social movement activists. They helped legitimate justice-based and democracy-oriented political change, authorizing and empowering citizens’ movements to claim rights against their own governments and to demand their legal and constitutional institutionalization.” 13 For criticism—to my mind well argued in respect of the present period—of the motives and consequences of the resulting “coercive democratization and regime change” see Guilhot 2005.

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Consequently, as Cohen (2008b: 457) argues: We are confronted with the apparent necessity of a tradeoff between human rights and human security, domestically and internationally. Worse, it seems that the global protectors of “human security” under the “responsibility to protect” doctrine, now tend to undermine rights, constitutionalism and democracy, strengthening arbitrary domestic and global executive power at the expense of parliaments, courts, and the rule of law.

This is wonderful for less than democratic rulers, “who are willing cooperators in all of this. They are able to invoke obligatory Council resolutions to push through rights-violating domestic laws, thereby expanding their power, justified as compliance with international law”; Cohen (2008b: 463).14 However, I am persuaded that human rights and their international regime have value that goes beyond the negative developments I have commented upon. Yet I noted in Chapter 6 a limitation of these rights, in that they only partially overlap with citizenship rights; this is due to the fact that, except if sanctioned by state law and adopted by the judiciary, various human rights, as well as human development ones, lack enforcement mechanisms. On the other hand, the rights of citizenship are of more limited scope than human rights in that in principle they apply only to citizens, not to all the inhabitants of a given country. Consequently, as Ferrajoli (1995: 41) argues: “Presently . . . inequality operates through the statalist mold of citizenship, the definition of which on the basis of national and territorial belonging represents the last normative limitation of the principle of legal equality.”15

14 For concurrent comments and analysis see Hurrell (2007: 161). Furthermore, this author and Cohen (op. cit.) present a justified criticism of the Resolution 1373 Security Council of September 2001 that created the Counter Terrorism Committee and established, as international law mandatory to all states and with severe worldwide consequences for those affected, ways of placing persons in a terrorist list that violate elementary rules of due process, and which of course is a most dangerous weapon in the hands of every government against their opposition, particularly but not exclusively authoritarian ones. For details I refer the reader to these valuable works and the literature they cite. 15 The resulting “citizenship gap” is discussed in the chapters contained in Brysk and Shafir 2004. Yet, against the somewhat pessimistic bent of these authors, I find it encouraging that in many countries civil rights (that as I have argued include important human rights) are universalistically recognized, while at least some political rights are being extended to foreigners in subnational elections in some countries; see Banting and Kymlicka 2006, and especially Baubock 2006 for useful details, including the concept of “residential citizenship” that has been adopted for local elections in several European Union countries, as well as similar rights in a number of other countries. Furthermore, as I note in the main text, some basic human rights promoted in international arenas are being incorporated into domestic legislation and recognized in domestic judicial adjudication. Yet I agree with these and other authors that there is still much to be done in these matters.

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Despite these and other limitations, these developments express what I believe is a growing moral conscience of a humanity that despite (and perhaps to some extent because of, too) so many events, policies, and decisions that are outrageously contrary to basic values of human dignity and respect, has been agreeing on the central importance of these values. They can only be referred to agents, the kind of being recognized as such by many cultures and world religions.16 This can only be grounded on an increasingly widespread recognition of a shared humanity17 and basic duties of respect and consideration due to it; what political democracy entails as legally sanctioned recognition of agency is a part, albeit a very important one, of this broader process. In this context Kymlicka (2007b: 4) says that [We may] think about global ethics as a two-level phenomenon. At one level, we have a self-standing international discourse, such as human rights, that seeks to define a minimum set of standards agreeable to all. At the second level, we have a multiplicity of different ethical traditions, each of which has its own account of what more, or what else, is needed above and beyond human rights.

Of course, this author as well as the others in the volume in which this text is included (Sullivan and Kymlicka 2007) are aware that the assertion about minimum international standards is disputed. I do not see any clear-cut way to solve those disputes; thus, it seems to me that the reasonable further step is to act as these and other authors recommend, undertaking transcultural and dialogues in a spirit of mutual understanding. As in this same volume Sullivan (2007: 209) says: “[The] acknowledgment of the complexities of judgment opens all participants to the imperative of dialogue and learning from others.” The preceding argument demands attention to a closely related issue, legal pluralism. We saw that capitalism has expanded through the whole world, eliminating, transforming, or subordinating other modes of production and exchange; we also saw that states emerged everywhere, carrying at least the institutional trappings of the Northwestern ones. But both those capitalisms and states, and later on in some countries democratic regimes too, are part of societies that have been textured by different processes than the Northwestern

16 I find it significant that all world religions (with the arguable exception of orthodox versions of Calvinism) consider the human being as morally accountable—i.e. as a carrier of moral agency—in that they all see having our fate after death as in some way determined by what we do and do not do in our present life. 17 In this connection the research on “human universals” is important. As Brown (2004: 47) notes, several hundreds of these universals have been identified as existing “among all peoples known to ethnography and history.” Indeed, these universals include many of what nowadays are considered human and/or civil rights.

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ones. One issue I have already noted and that follows from this refers to the uneven extension of the legal system of these countries, in Latin America and elsewhere. These are heterogeneous and fragmented societies, and various aspects of their states, including their legal systems, reflect and in fact help reproduce those characteristics. This has included the transplantation at times of full legal codes, and at times of general legal criteria from the Northwest; this was done in some regions, such as Latin America,18 by more or less autonomous decisions of the respective states, in other regions by imperial implantations of colonial law, and in other cases, many of which overlapped with the preceding ones, by the survival, albeit transformed by contacts with Western law and power, of various kinds of customary, traditional, or indigenous law. The result outside of the Northwest, in varying degrees according to various regions, is the complexity entailed by what is termed “legal pluralism.”19 This pluralism is reflected in the legal systems of indigenous communities, as in the case in Latin America; in other parts of the world it appears in the impact of some world religions, such as the Islamic, Jewish, and Hindu ones, that in some countries where they have heavy or majoritarian weight, in various civil rights matters (and sometimes commercial ones) rule their followers by means of their own legal systems. In several countries these systems are formally upheld as coexistent with state-sanctioned Westerntype civil and commercial law for other members of the population. While, on the other hand and, to add to the complexity, the respective states sanction as valid for everyone Western types of law in terms of the political rights and freedoms of the whole population.20 Legal pluralism and its concurrent phenomenon, multiculturalism, however praised or regretted it may be in each of its manifestations, is an indication of the deep heterogeneity of many of the countries that nowadays have states that house democratic regimes and, consequently, at this level sanction the universalistic rights and freedoms of

18 On the historical characteristics of constitution making in Latin America see Negretto and Aguilar-Rivera 2000. 19 On this topic see the pioneering work of Rudolph and Rudolph 1967, as well as Hooker 1975 and Berman 2007; on colonial law see Benda-Beckmann 2001, Brown 1995, Comaroff 2001, Mamdani 1999, and Merry 1994. In relation to Latin America see Go´mez 2002, Sieder 2000 and 2002, Van Cott 2000, and Yrigoyen Fajardo 1999 and 2001. 20 A study focused on these matters would have to also deal with the situation of countries, including Northwestern ones such as the United Kingdom, where the law of some Jewish, Hindu, and Islamic communities de facto rule various civil and commercial matters concerning their members. A full homogenization of state law exists nowhere (especially after intensive international migration and various patterns of cultural diffusion), but still there are crosscountry differences worth taking into account; on dilemmas and conflicts facing Northwestern countries on these matters, see Fetzer and Soper 2005, and Messina 2007; for broader examination of this issue see Benhabib 2004.

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political citizenship; this heterogeneity has deep influence on characteristics of both states and democracies that have been barely mapped. These matters bear on a central argument of this book: the grounding of democracy, including its partial version as a political democracy, on a universalistic and legally-backed conception of agency. This is true, as formalized in the respective legal rules, in every country that has such a regime and consequently enacts at least the political side of citizenship. Yet such a view may be ignored, or denied, by individuals who, under a democratic regime, are legally enjoined to recognize anyway, that everyone—irrespective of gender, class, ethnicity, etc.—has equal rights to elect and eventually be elected, as well as to carry the political freedoms that surround those rights. Consequently, to understand what many contemporary democracies are and how they actually function, we need to grasp how in each country the basic principles of agency entailed by a democratic regime coexist with ways of ignoring or denying them. Some of those denials are de facto expressions of inequality held without much attempt at justification except ingrained contempt for the poor and weak; but other denials spring from deeply felt cultural and religious beliefs. There are good reasons why the de facto reasons should be criticized without reservations, while the latter ones present the challenge of finding out in each case to what extent and in what terms democracy as here understood reaches convivial understandings with individuals and communities who hold conceptions that deny some aspects of agency. This is part of the broader issue of multiculturalism, about which, as implied by the preceding, I align myself among those who argue for both the universalistic validity of ideas of agency as here delineated, and for the need to find convivial terms with, and to learn valuable lessons from, those who do not share it.21 This view includes one of the most hotly debated issues in this matter, the universalism of basic gender rights.22 There is however one aspect that in the context of the present book deserves to be highlighted. Particularly but not exclusively in Latin America, many agonizing issues and many of the past and present horrors perpetrated for the sake of state-building, economic development or, for that matter, sheer prejudice, have come to light, and become salient issues, at the compass of recent processes of democratization. As we saw in Chapter 8, the freedoms of 21

In addition to the ones already cited, I also agree with the basic thrust of the arguments on this matter of Appiah 2006, Benhabib 2002, Dall 2001 and 2004, Franck 2001, Garzo´n Valde´s 2003a, Kymlicka 2007a and 2007b, Lara 2002, Mendus 1995, Nussbaum 1999, Pagden 2004, Philipps 2000, Riise 1999, Sen 1999, Stepan 2000 and 2001, and Touraine 1997. 22 See the, to my mind, forceful and at the same time properly nuanced statements in favor of universalism in this matter of Lara, Nussbaum and Phillips, op. cit. in the preceding footnote. See also Fraser 1989 and Hutchings 2007.

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association, expression, and others that political democracies include, have helped the emergence of movements and parties, not only of indigenous peoples but also of other discriminated sectors—peoples of African and Asian origin, women, gays, incarcerated individuals, etc. Of course, there is a long way to go before solving these problems, but the present situation is preferable to the silences and repressions imposed in the past. As I have insisted, even with their serious failings, those democracies and the political rights and freedoms they sanction do matter: they allow some of those issues to come to light and make it possible for its victims to invoke their agency and connect with national and transnational allies that otherwise would be much harder to find. Furthermore, even in the Northwest an increasing consciousness of rights has fostered the emergence, and at times great salience, of issues of civil and social rights that had been dormant for long, such as those related to sexual identity, handicapped individuals, undocumented or illegal migrants, and generally various kinds of discrimination. The view of the human being as an agent has multiple and often unexpected corollaries; some of them may be regretted as disruptive, but this has been historically the path toward the achievement of valuable rights and freedoms.

10.4. AG A I N O N AG E N C Y 23 I want to stress at this point that from my discussion of the legal system and of dialogism it follows that we enter into political citizenship as already constituted social beings—we carry rights and obligations that texture our lives since birth. We also carry into our political citizenship identities that have been and continue being shaped by manifold interactions and factors, including nation and eventually nationalism, kinds of social contexts, history, culture, family, and in quite a few cases religion. The resulting identities may be individualistic, while others may privilege various kinds of communal and/or solidaristic affiliations. Political citizens are social beings, not monads that enter into politics devoid of history, culture, and identities. The view that the individual unit of democracy is the citizen/agent does not make it individualistic; those units are social beings, pre- and reconstituted as such along the various journeys they undertake in their lifetimes, and carriers of rights and freedoms that have a social, not just an individual dimension. 23

This section and the following one are based in part on O’Donnell 2008.

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Some versions of liberalism, beginning with Hobbes, are individualistic, in the sense that they construe individuals as pre-socially located in the throes of the terrors and loneliness of the state of nature. Other versions of this intellectual current, starting with Locke and the rights he asserted were held in the state of nature before entering into properly political compacts, as well as, explicitly, J. S. Mill, share the view of a socially pre-constituted being. Thus, against some misunderstandings, liberalism is not necessarily individualistic, even if some of its intellectual currents are. Of course, socialism, as well as the many existing versions of solidaristic, communal conceptions are not individualistic—and yet not many of them are compatible with the view of agency I have presented. To insist on a point, this view of agency is not just one that has been legally enacted in some countries. It was inscribed in the moral conscience of humanity by the French Declaration of the Rights of Man and of the Citizen, by the Prologue and the First Amendment of the Constitution of the United States, and as noted in the preceding chapter, by the 1948 United Nations’ Universal Declaration of Human Rights,24 as well by numerous subsequent international covenants and declarations. Despite drawbacks and recent distortions, this present-day view of agency not only belongs to a good part of the legal culture of humanity; it has been mobilized, again and again, as a powerful moral argument in most varied circumstances and by carriers of no less varied cultures. The consequent demands for individual and collective freedom, and for the recognition of the respect due to the dignity of all, have resounded, and continue resounding, throughout regions and cultures. I hope by now it is clear that my discussion of citizenship and agency, and the variety of lives it allows and fosters, means that democracy is hospitable to different conceptions of the human being as an agent. The resulting human variety percolates into specific characteristics of the state and the regime; this makes it unjustifiable to believe that we will or should wind up at the final “consolidation” of a single kind of democracy.

10.5. TOWA R D S O M E B A S I C S TA N DA R D S F O R P O L I T I C A L D E M O C R AC I E S Democracy is the only political arrangement that construes us as agents, especially but not exclusively in the sphere of political rights; this is its crucial 24 Which, it is worth recalling, begins by declaring that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience, and should act toward one another in a spirit of brotherhood”; art. 1.

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difference from all sorts of authoritarian rule. This construction entails, and legally demands, the effectuation of a system of respectful mutual recognitions as such citizens/agents in our legitimate diversity. As I mentioned, it is disputed as to whether this recognition is a moral obligation; I believe it is, but the relevant fact at this moment is that the obligation of mutual recognition is effected in many aspects of a democratic regime and of the legal system of a state that contains this kind of regime. Among many other aspects, this is shown by the prohibitions of state and private violence and discrimination, the legal backing of the existence of political parties and multiple social organizations and movements, the innumerable ways in which the legal system backs the right to engage in dialogical networks, and in general the innumerable associational and expressive manifestations that embody, and reproduce, the social diversity and the public sphere accepted and normally fostered by political democracy. None of these and many other legally protected rights would make sense without the mutual recognitions that, as demanded by the legal rules of every democracy, all citizens/agents owe to each other, whether they are located in society or in the incumbency of state roles. At the core of democracy—agency and citizenship—is asserted the dignity of everyone, not as abstract beings but in our socially and culturally shaped identities and interests. From the preceding results the restrictive and at the same time the freedom-enhancing characteristic of democracy. The restriction is that we are free in our choices and identities insofar as we do not arbitrarily violate the rights and freedoms of others who are as much agents as we are. The freedomenhancing side of democracy is that, within the broad parameters demarcated by the restriction, we may shape and reshape our identities, live our cultures, and express and enact our social and political identities and interests. Of course, this broad space of freedom leads to disagreements and sometimes conflicts with diverging views and interests, but as we saw in Chapter 5 these are to be arbitrated by the non-violent and agent-respecting institutional channels that a democratic regime and its legal system sanction. In turn, this restriction/enhancement aspect of democracy is an opening for bringing various personal and collective identities and interests into politics; democracy houses various identities and cultures, although of course their characteristics and relative weight varies across countries and time. As I argued above, we enter into the citizenship of a democratic regime carrying a dense network of social relations—many of them legally defined and backed—and with them identities, collective affiliations, cultures, and even religions that are usually strong and meaningful for us. This fact and the beneficial diversity it entails is not a hindrance; rather, it is the reason that underlies the positive value that we should attach to the existence of

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various kinds of democracy and, with them, of the various paths for further eventual democratization. In contrast, the isolated monad of individualistic theories is an emasculated being that can only ground a restricted, linear, and unidimensional view of democracy, according to which its individual unit is the voter, not the citizen—it is surely no accident that the authors I mention in the first section of this chapter shared, based on their individualistic conceptions, an inability to conceive democracy other than based on that view. From this perspective result some corollaries. One is that tradition, history, culture, international location, and other macro-factors operate at the microlevel of the citizen and jointly contribute to generate, returning to the macroarenas of politics, a variety of already existing democracies. The second is that the consequent diversity is a valuable achievement of countries and regions that impress on their democracies their own specific traits. The third is that, consequently, no particular version of democracy has an a priori claim of superiority from others. The fourth is that, irrespective of such variations, even at the relatively narrow level of the regime, every democracy entails, and legally backs, agents and their consequent dignity as moral beings—I insist that only this kind of being can be, logically and legally, the carrier of the rights and obligations of citizenship without which a democratic regime simply does not exist. Yet even if the preceding considerations lead to the rejection of a unique model of a “best” democracy, they should not slide into moral or cultural relativism. This is an issue hotly disputed from several angles. Although it does not solve matters that go beyond the ones I am discussing here, I believe that the grounding of democracy gives an answer. It is that every kind of democracy should meet some conditions springing from the condition as agents of its citizens. This includes, first, some basic obligations to be demanded from every state that houses a democratic regime, such as to implement fair elections and uphold the basic encompassing freedoms of such a regime; second, to seriously and consistently strive to make possible for everyone access to the legal, material, and social wherewithal necessary for being active, enabled agents who can exercise the right to decide freely who will rule them, and even the right to try to be elected; third, to unambiguously establish that every individual is the carrier of a legal personality, and as such the holder of a set of—at least—universalistically equal political and civil rights and freedoms; fourth, to shield everyone from arbitrary and/or unlawful violence in all social locations, from the family upwards to the state and private bureaucracies; fifth, to treat all individuals—in their interactions with the state, and with other individuals and private organizations—with the equal respect and consideration due to agents living under rules established by law; sixth, that state officials actually recognize that the citizenry is

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the origin and justification of the authority and powers they hold and, consequently, perform their roles with integrity and dedication to the public good; and seventh, that in so doing those officials subject themselves to the constitutional and legal rules that determine their authority and consequent duties and responsibilities. Of course, considering the present situation of some countries these conditions are quite ambitious. Yet I believe they entail a transcultural requirement, if not necessarily of explicit recognition of agency, of human decency as expressed in the political sphere, one that can be formulated as entailing goals that can be shared by many traditions, religions, and cultures, however diverse they are and continue to be. These aspects may be seen as the proximate normative horizon of democratization everywhere, a common yardstick with which to lay a baseline for assessing the quality of democracies on a comparative basis. It is beyond this yardstick that we may—and should—ask about every democracy: are the expressions of legitimate differences reflecting historical/cultural characteristics that we should in principle respect or are they traits that challenge any chance of improving the quality of its realization as a democracy? As to the challenges, there are two obviously major ones. One is the way and extent that may be assessed, and by whom, the state and government’s efforts, or lack thereof, to fulfill the above stated requirements. The other is the way and extent to which some agency-denying practices may be accepted or tolerated as an expression of respect for the respective culture or religion. In this matter I agree with the authors cited in preceding footnotes; basically, I believe that some practices are intolerable,25 as they entail clear and grave violations of agency, while others belong to a gray zone that should be prudentially assessed by means of respectful dialogues among the relevant parties. As to the former, I am persuaded they should be prohibited and eventually redressed by application of state law, not without before engaging in serious attempts at finding consensual but still agency-respecting solutions, including consultations and in some particularly problematic cases opening jurisdiction for international courts or mediators—in short, I believe that the principle “in dubio pro-agency” should prevail. Indeed, this will not eliminate some agonizing and highly disputed decisions; yet even if the process of reaching such decisions may helpfully make clear to all parties the values respectively involved, this is one of the moments in which politics shows its tragic side, the need to achieve temporary closure by choosing among hard 25 See Kymlicka 1996. Even though much interesting work has been done since this article was published, I still find useful the distinction he draws in this text among “the good, the bad, and the intolerable.”

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alternatives and facing heavy trade-offs. The problem is compounded by the fact that some decisions may be made on the basis of prejudice and/or damning interests nowadays including, as I noted above, states pursuing goals other than the alleged protection of certain rights and/or promotion of democracy. But accepting this risk, and knowing that decisions in these matters will often leave problems and conflicts standing, seems to me preferable to indifference or inaction in the face of severe violations of agency.26 Furthermore, it is to be expected that alert domestic organizations, as well as the international networks and the spread of the norms of international law that I have mentioned as one of the positive aspects of present globalization, will help prevent or contain some of the harms risked. As in other matters I discuss in this book, in this one there are no easy, linear or abstract a priori solutions. As Hurrell (2007: 12) says, “[T]he task is to think very hard about the conditions under which moral principles and moral ideas can be meaningfully and persuasively defended, justified, and criticized within global society as a whole.” As Cooke (2006: 21) adds discussing what she calls “context-trascending” ethical norms such as the ones I am invoking here, the claims of their validity should be regarded as “open in principle to interrogation on the basis of good reasons,” and their “assessments . . . should be tied to open-ended, maximally inclusive, fair and public argumentation” (ibid. 132).

10.6. A C O N C LU D I N G R E F L E C T I O N I have argued that the state is an indispensable anchor of the rights of citizenship, and reviewed how in some countries, through many efforts and struggles, subordinated sectors and classes managed to inscribe in its legal system, in addition to political rights, various civil, social, and cultural ones. Nobody needs these rights more than those who are subordinated in society, even more so those who in addition are submitted to acute patterns of inequality, discrimination, and/or exclusion. And no entity can better bring about those rights other than a state that in some real sense becomes a state sincerely working for the needs of its citizenry/nation/people, regardless of the variations imposed by time, region, and culture. Demanding that 26 Of course, I am aware that these assertions are polemical. Yet I believe that the moral relativism entailed by extreme views of multiculturalism leads to situations even more problematic than the ones that are risked by the view I adopt here.

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commitment is exercising the right to a state that I asserted in Chapter 4; conversely it is the duty of a state (and the respective governments) that, by housing a democratic regime, it acknowledges, de jure if not always de facto, the citizenship and agency of its members—degrees in the achievement of the four dimensions of the state do matter for many reasons, indeed including democracy and citizenship. We are now ready to propose some conclusions resulting from the journey we have undertaken.

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Conclusion 11.1. LOOKING BACK We have traversed a winding road. In some segments we enjoyed reasonably clear vistas, in others we veered off down roads led by scholars, specializing in subjects beyond my own, and still in others we had to undertake tentative incursions using maps that barely cover the terrain. We started (Chapter 1) from a reasonably firm base: the democratic regime and the rich literature focused on this regime and its main institutions. This base has the advantage of allowing clarity of exposition, drawing reasonably clear-cut propositions, and in general conforming to the linearity of language. It is a rather comfortable milieu to inhabit, where in addition there are always interesting vistas to discover. Yet, starting with the discussion of the regime, we saw that it is far from solely a way to freely decide who will govern for a certain period— although this is of course extremely important. We also saw that democracy is, no less fundamentally, a political arrangement that assigns certain rights and freedoms to individuals who are, in the relevant context, construed as citizens of the political unit to which the regime applies. But this was a starting point, because on close examination we found in the regime some aspects that sent us into two directions. One, at a micro-level of analysis, citizenship and its underlying idea of agency; the other direction was toward a macro-level, the state and its various dimensions. Furthermore, while following these two paths we examined some relationships within the three levels of regime, citizenship, and state. This complicated the analysis, not only because each of these three levels of analysis has its own complexities but also because they interact in various ways that, in addition, change across time and space. Still, I hope it is clear at the present stage of this book that a proper conceptualization of democracy, including its partial incarnation as a political democracy, requires that we do not only stick to those three levels but are also aware of historical legacies and comparative differences in all cases under study. As I warned in the Introduction, this entails a broad agenda, about which this book is limited to only suggesting some promising roads for further conceptualization and research.

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In this spirit perhaps I should insist that close examination of the democratic regime and the various characteristics with which these regimes exist in the contemporary world shows, on the one hand, its crucial importance for democracy and, on the other hand, its insufficiency even for a proper conceptualization of the regime itself. In specifying the regime I found convenient to add some characteristics additional to those usually stipulated by the literature: that elections are decisive and institutionalized, and that they are based on an inclusive wager (Chapter 1). Furthermore, later on (Chapter 5), I criticized an often silent assumption of current democratic theories: that of a high internal homogeneity of the respective countries, including what refers to the actual reach of the legality of the state and the generalized democraticness of subnational regimes. In addition, behind the voter we discovered the basic unit, the microfoundation of democracy, the citizen and, with him/her, an agent. We also found that this unit is legally sanctioned and backed; it is the holder of a legal personality that supports various rights and freedoms—and very importantly, this is a legal fact that holds universally in a state that houses a democratic regime, irrespectively of the preferences of any individual. Still at the level of the regime, encountering the state sent us in three directions. One, that I mentioned quite briefly because it is generally recognized by the literature, as the territorial delimitation of the electorate. But in addition we found other dimensions of the state: as the legal system that sanctions and backs the participatory rights and the surrounding freedoms of the regime, and as the set of bureaucracies that, irrespective of how democratized are other state bureaucracies, acts in consonance with the kind of elections as well as the rights and freedoms entailed by the democratic regime. No such regime can exist without these three state components (Chapter 1). These findings propelled us toward both the level of the citizen/agent and of the state. Because in my view the issue of legally-backed agency is so crucial for—among other things—a proper understanding of democracy, I paid attention to the emergence of this idea in the Northwest, and how it spread from civil rights to political and social rights, and later on to cultural ones (Chapter 2). Then I moved to the state itself. This required some conceptual stipulations, centered on proposing four constitutive dimensions of the state. This, as with agency, led me to an historical excursion focused on the Northwest, which in turn opened some comparative vistas that underlined significant differences, in all those dimensions, with many countries outside that region (Chapter 3). This meant the need to examine the referent postulated by the state (and its governments) as the entity for which it claims to exist and that it purports to

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serve. This referent normally exists for every complex association, the state of course included; in the latter it became indispensable when political rule became constitutionalized (even if initially by restricted democratic regimes), and consequently citizens were construed not as subjects of the state but as the source and ultimate justification of its power and authority. and of the respective governments (Chapter 4). In looking at the state I paid attention to another of its dimensions, the legal one, which I argued is no less constitutive of the state than its bureaucracies. Furthermore, insofar as this dimension sanctions and backs the processes, freedoms and rights entailed by democratic regime (and rules at least some of its bureaucracies), this may be considered a partially democratized state. This provided a standpoint from which to project advances toward a more fully democratized state and, at its horizon, a truly democratic rule of law, or a estado democra´tico de derecho (Chapter 5). Yet I had to immediately qualify in two main ways the resulting conclusions. One is the abundant evidence that nowhere is the law applied equally; however, I mentioned the particularly harsh ways in which this inequality exists in very imbalanced countries, including some that nowadays have a democratic regime (Chapter 5). The other qualification resulted from noting a fundamental antinomy of the state and the society it textures. The law of modern states sanctions and backs universally equal relations in many civil rights; in addition, at least partially democratized states sanction and back the universalistic rights and freedoms entailed by a democratic regime. This creates areas of equality available for being invoked and eventually mobilized by the carriers of the respective rights and freedoms; this is a huge achievement, particularly if contrasted with past (and some present) situations where those attributions are absent. Yet the other side of the coin is also part of the realities we want to grasp. It is that this same law sanctions and backs some social relations that are inherently unequal, especially the ones resulting from the capitalist mode of production and circulation, and those that rule the internal (and sometimes the external) relations of the ubiquitous bureaucracies, public and private, with and under which most of us live—and also, in not a few countries, gender, family and ethnic relations also (Chapters 5 and 6). This is a profoundly ambivalent reality that the theory of democracy should not ignore, even if at the cost of complicating both theory and practice. I summarized my incursions on the state by proposing in Chapter 6 a metaphor symbolizing its various faces: as a set of bureaucracies standing “in front” of society; as a state-for-the-nation (or variations I discuss in Chapter 4), “above”; as a filter, “around”; and as a legal system, “inside.” These various—and varying across time and cases—faces are an important

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reason for the difficulties in reconstructing the conceptual and practical unity of the state, which I attributed to the cascade of legally-based hierarchical authorizations dispensed by its legal system. In Chapter 6, after having made use of fruitful contributions focused on macro-aspects of the state, I went to micro-level ones, mostly anthropologic/ethnographic, to examine some faces that states exhibit, especially in countries of high inequality and of poor bureaucratic, and specially legal, presence of the state. In turn, Chapter 7 begins with a personal story that demonstrates a situation—a terrorist state and a monological structure of discourse—that is the almost perfect opposite of democracy. By way of contrast I elaborate on the crucial importance of the existence, and practice, of dialogical networks of discourse, and the variety of deliberations, identities, and life projects they entail and nourish. I further argued that entering into these networks is a fundamental aspect of the exercise of agency and citizenship; it is through this that we have the chance to re-dis-cover the true meaning of the authority and powers that state and government exert over us. If and when enabled by democratic rights and freedoms we can tell each other, in manifold public spheres, about this fundamental fact; this is the best antidote to the permanent risk of reification/alienation of the state. It is also propitious for the spread of a “civic” kind of nationalism although, as we saw in Chapter 4, it is always tenuously dependent on the absence of armed conflicts and/or severe crises. Then I once more shifted gears. I took in Chapter 8 what at that stage I felt was a detour necessary for providing some broader context to the rather brief comparative references I made in the preceding ones. Thus in this chapter I provided an overview of Latin America, albeit basically from the perspective of the issues I deal with in this book. As I noted in this chapter, however, such an overview is not meant to substitute for the detailed work that lies ahead, for others as well as for myself, especially considering the particularities that the political democracies of this region are evincing. Throughout these incursions we have followed a guiding thread, citizenship and its underlying idea of agency. As we saw when discussing the history of this matter in the Northwest, this very idea leads, almost ineluctably, to see it at stake not only in terms of political but also of civil and social rights, and lately also of cultural ones. This same issue leads no less ineluctably to others; one concerns the social conditions that may enable, or hinder, agency, and the other to what criteria should be applied, especially to countries that do not furnish many of their inhabitants with such conditions. In looking at this matter, I found an interesting convergence among democracy as here understood, and the main intellectual currents on human rights and human development, as all of them are grounded on a very similar conception of

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agency. Dealing with this topic I found a problem into which we had already come across when discussing the regime: the theoretical undecidability of the criteria to be used for assessing the effectiveness of the values posited by these intellectual currents, and the consequent need to theorize that undecidability, not to ignore it or apply to it abstract, a priori criteria. In this terrain I concluded that “in dubio pro-democracy,” albeit being aware that this criterion does not by itself guarantee normatively or generally positive solutions (Chapter 9). Another issue is raised by the increased globalization and pluralism (including legal pluralism) of the contemporary world, both in terms of what role could and should states perform in such a context, and of the coexistence of views and legal rules that assert agency together with some cultures and views that ignore and eventually deny it. There I conclude that the state is very far from its demise, even if now it has to undertake more complex responsibilities. I also note that the contemporary world exhibits a variety of democracies, something we should welcome for many reasons. And in terms of the issues of agency, I argue that there are many cultures congenial with this view, while in cases of conflict, although not ignoring the complexities of the matter, I conclude in a position that may be stated as “in dubio pro-agency” (Chapter 10). Throughout these discussions in most chapters we found again and again how important have been, and will continue to be, the struggles for freedoms, rights, and democracy that under very diverse circumstances have been undertaken by varied social sectors and classes. The resulting lesson is that these rights and freedoms, and behind them the legally institutionalized recognition of agency, are rarely graciously granted; they are hard won by means of struggle that help both the emergence of democracy and its expansion. In this respect, and having especially in mind countries where so much is still to be achieved, I insisted that in the supportive role, once certain rights have been achieved in any area, it acts as a springboard for struggling for other rights.1 This was clear in the initial achievement of civil rights in the Northwest, and it may become increasingly clear in the achievement of those and other rights in the rest of the world. So this is theory, but theory with a comparative intent. Democracies exist in regions and countries that are profoundly marked y historical, structural, and cultural specificities. As I argue in the Introduction, the spread of 1

Concluding an already mentioned comparative examination of this topic, Epp (1998: 197) asserts that “The basic lesson of this study is that rights are not gifts: they are won through concerted collective action.” See concurrently the excellent work that Tilly (especially 1998 and 1999) did on this and related matters.

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democratic regimes in the world, as well as of cases that have dubious claims to be such regimes, demands at least two investigations. One is careful inspection of the concepts and assumptions of the concepts we carry in such undertaking, knowing that most of them originate in the peculiar historical experience of the Northwest. The other is a no less careful examination of the specificities of the regions or countries studied. For this purpose, it is not a matter of bland eclecticism. At least in what refers to democracy, I believe that it is useful to return to its very kernel. This is that the specific difference of democracy in relation to all other types of political rule is that those who do not govern are the source and justification, not just the subjects, of political authority, and the ultimate judges about how and whom should exercise that authority and its consequent powers. Even if not extended to all, this subversive discovery was made some twenty-five centuries ago in Athens;2 amazingly, it was lost until quite recently but has continued resonating in manifold ways through history and continents. This means that it is only under democracy that political authority has a point of origin, a basic constraint and a point of destination. Its point of origin is the aggregation of voting decisions in fair elections, by legally enabled citizens. Its basic constraint is that, at the very least, the holders of political authority may not act in ways that entail denial of, or aggression against, the agency of the citizens. The point of destination is that what the state and the government do is supposed to be geared by a common good construed as referring not to subjects but to agents endowed with rights. These are universal aspects of democracy, including its restricted version as a political democracy, or a democratic regime. These aspects may not be fully acknowledged by states and governments, the agency of its citizens may be more or seriously hampered, individuals may or may not want to exercise their rights, and other factors I mentioned throughout this book may hinder the functioning of each democracy, as well as the effectiveness of important freedoms and rights. But, still, those universal aspects are “there” as long as a democratic regime exists and can be (and have been) mobilized, both as aspirations about a democracy to be achieved or to be improved. The preceding is an overview of the journey we have undertaken. Close to its end, the comparative glances we have taken invite a return to a more theoretical level. This return is inspired by two facts. One, that democracy, every democracy, is perfectible. Two, that within the present panorama of already existing democracies, some have particularly serious problems in a series of dimensions—the workings of the regime itself, deficiencies of the 2 This is when was unforgettably made what Ober (2003: 9) calls “The startling claim that the poor man had as much right to share in public life as his wealthy compatriot.”

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state in its four dimensions, manifold consequences of extensive poverty and high inequality and social heterogeneity, limited and uneven effectiveness of certain rights and freedoms, and others we have observed during our journey. Nowadays, in a few of these democracies voices are heard arguing that it would be useless—or dangerous—trying to improve them or, from the other pole of the ideological spectrum, that they are just masks for the perpetration of harsh social domination. Yet the question that stands is: if, despite admittedly serious problems, there is still something to democracy, to any democracy, what is it that makes it preferable to any other type of political rule?

11.2. BACK TO DEMOCRACY So, then, why democracy, even if hampered by many flaws and existing only in the relatively restricted version as a political democracy? I begin with arguments that are quite consensual in the literature. One is that democracy is valuable because it provides a peaceful way for deciding who will govern for some time. Furthermore, elections provide the only political asset that is truly egalitarian; as Verba et al. (1995: 516) point out, “[T]he vote is the only kind of political activity for which there is mandated equality among those who take part. All other forms of participation permit an activist who has the will and the wherewithal to increase the amount of participatory input.”3 Another positive aspect of democracy springs from the fact that there will always be conflicts about rights and obligations, in themselves, in the scope of their implementation, in their ordering, and in their trade-offs. Democracy allows ways for resolving these conflicts in ways that are not only peaceful but also are, as we saw in Chapter 5, both enforceable and reversible through legally defined ways. Furthermore, insofar as those processes are ultimately regulated by legal/constitutional rules that also sanction basic rights and freedoms of the potential participants, these processes are fair. Consequently, they are a substantive good; as Dahl (1998: 48) argues, “Democracy is not only a process of governing. Because rights are necessary elements in the democratic political institutions, democracy is also inherently a system of rights. Rights are among the essential building blocks of democratic process of government.” They are also a public good because in a democratic regime they are available in a nonexclusionary way to everyone. 3 See also Dahl 2006; in relation to Latin America, Huber and Stephens 1999 make a similar argument with reference to classes and sectors hampered by deep poverty and inequality.

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The preceding are important—and to my mind sufficient—arguments for favoring democracy over all other kinds of political rule. But they do not seem to me enough for accounting for the great normative appeal that, under most varying circumstances, democracy has exercised and continues exercising. This matter is worth exploring. To begin with, because democracy entails agency and legally sanctions and backs it, it opens congenial political and social spaces for some central human aspirations: freedom, well-being and respectful recognition. This is because, as an agent, I have the right to try to control the social and political aspects that influence my life and its chances; the rights and freedoms of democracy are helpful for democratizing various social, not only strictly political areas, or at least for humanizing them in ways consistent with agency—as in the workplace, relations in and with bureaucracies, and anti-discrimination actions, among many others. Let me call this one the overall rights expanding reason for preferring democracy over any other kind of political rule. In particular, one of those rights is the participation in the election of those who will make decisions that are mandatory and ultimately backed by superior coercion. These are rights of legally-enabled agents, carriers of a legal personality that holds for many social areas, well beyond those delimited by the regime; even the—for some—trivial fact of casting a single ballot among millions of others entails recognition of such agency and its rights. As Waldron (1999: 114) notes, “[A]ccording equal weight for equal potential decisiveness to individual votes is a way of respecting persons.”4 I label this one the legally enabling reason. Insofar as legislation, public policies, and judicial adjudications result from processes that originate in fair elections and conform to the legal/constitutional rules and guarantees of an at least partially democratized state, there is prima facie obligation to accept the consequent decisions. A similar obligation to act according to procedures and resources authorized by those same rules holds when trying to change those who govern and the decisions they make. Thus, the rights of democracy presuppose, in principle and barring publicly and properly justified refusal, the acceptance of correlative duties, as befits agents who are legally assigned both;5 this I consider the prima facie political obligation reason.

4 Raz (1994: 152) concurs: “[T]he value of the right to vote largely depends on the symbolic recognition of full membership in the community it expresses.” 5 Garzo´n Valde´s (2002: 39) makes this point well: “In a democratic system, citizens must simultaneously assume the double condition of subject and object of political decisions: those who resign to the first condition are fatally reduced to the second one, and those who try to claim only the first one become authoritarian actors” (my translation).

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Because of the preceding, in democracy the typical claim of all kinds of political authority that it is for all is complemented by the fact that it is from all—as I have insisted, the citizens are the source and justification of that authority and of the powers that emanate from it. Especially since it became based on an inclusive wager, democracy is the only political arrangement that contains this claim. Consequently, it is particularly amenable for making it possible that the members of a society recognize that they are the source and the justification of the authority and powers that coordinate, organize, facilitate, and sometimes oppress their lives. This I call the reason of proper source and justification of state and governmental powers and authority. In this perspective elections acquire special meaning. The paradox of voting6 is correct from an individualistic standpoint yet it forgets that through elections the most public and general of the powers that there are in modern societies are collectively instituted. At the moment of elections all of us are equal, and as such equals we institute those powers. Elections in democracy are a moment, brief but recurrent, and intensely symbolized, of “de-alienation” (or, equivalently, “de-reification”) of those powers. The meaning of fair elections can be, at least momentarily, collectively appropriated by the citizenry, by making evident that the existing powers are not really theirs, nor consequently should be for them7—it is an opportunity for a collective self-pedagogy about the true meaning of political power and authority. Surely this re-appropriation is only partially true, and after the elections state and government may turn distant and, at times, hostile; but it is still important, because elections stay as memories and anticipations, and as institutionalized opportunities for new, and eventually mobilizing, re-appropriations of the true meaning of the authority and powers of state and government. This also results from the fact that democracy is the only kind of political rule that legally sanctions and backs rights on the basis of which it is possible to participate, individually and collectively, in horizontal and vertical dialogical networks and the resulting public spheres and deliberations, not only in the political realm but also, as already noted, across society. This makes it possible to criticize the permanent tendency to reification of all powers, not only the political ones.8 More broadly, as it 6 As initially formulated by Downs 1957 and later on elaborated and discussed by countless contributions. 7 This meaning may be lost in the routine of taking for granted this kind of election in countries that have long enjoyed a democratic regime; but we have only to look at the elation with which so many people participated in elections during transitions from authoritarian rule to find out the enormous significance of discovering that the King was naked and having the freedom to act in consequence. 8 Kateb 1981 and 1992 correctly stresses these points.

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legally backs those networks and spheres, democracy has the advantage of facilitating the unveiling and with it the public discussion of the antinomies, undecidables, and tensions inherent to political and social life. This is the collective self-pedagogy or de-alienation reason. By sanctioning civil and political rights, even more so if it also includes social and cultural rights, democracy and the practices it allows are the best possible basis from which to strive against the recurrently unequalizing tendencies generated by capitalism and the hierarchical relations generated in and by bureaucracies, public and private.9 These tendencies will never be cancelled, but the dynamics opened by democracy make possible—it has been possible in some countries—to achieve societies that provide at least a basic level of welfare and respectful treatment for almost everyone. But these achievements have reached a small portion of humanity and even there remain to be perfected in many ways, and when they occur may be reversed, at a particularly high cost in countries where not much has been achieved in this respect. Those unequalizing tendencies present a continuing challenge to democracy and its egalitarian dimensions, and as such should be theorized as a fundamental aspect of every democracy. This is the potentially equalizing reason.

11.3. A BELATED (NON) DEFINITION A corollary of the preceding is that the interactions between regime, citizens, and state should be acknowledged as a central issue for democratic theory and practice. The efforts for enhancing the state in its various dimensions, including the democraticness of its legal system and bureaucracies, are not necessary only for economic growth and social order; they are also necessary for democracy itself. Specifically, the legal enabling of citizens and the availability of dialogical networks may not be indispensable for economic growth and social order, but they are necessary for guiding, and maintaining, the state in directions congenial to democracy and its expansion. So this is the moment to offer my characterization, albeit not properly a definition, of democracy. I proposed in Chapter 1 a definition of a democratic regime, or a political democracy. This is a crucial component, without which 9

Touraine (1994: 16) is right when he asserts that democracy introduces a dimension of equality in the midst of social inequality. Concurrently, Beitz (1989: p. xvi) pointedly remembers that “ [W]e must keep in mind that historically a main goal of democratic movements has been to seek redress in the political sphere for the effects of inequalities in the economy and society.”

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no democracy can exist, at least in the context of a state. But I noted that this is just an aspect of democracy. On the other hand, the historical variability and the undecidability of the various political, civil, social, and cultural rights, and as consequence the always open-ended character of democracy, prohibit a rigid definition of it. Thus I believe that the proper object of inquiry, as well as of political practice, lies more in democratization than in democracy. It consists, beyond the core provided by the regime and its own eventual further democratization,10 of the acquisition and legal backing of wider and more solidly supported rights and freedoms that pertain to the civil, social, and cultural aspects of citizenship and, more broadly, of the agency of everyone irrespective of his/her positions as a citizen. The degrees and characteristics of such expansions are a measure, however difficult to calibrate empirically, of the degree of democratization, or the quality of democracy of each case. Of course, those expansions (and, indeed, retractions) have led, and will forever lead, to manifold conflicts and tradeoffs. But under political democracy those expansive possibilities are always potentially available, and can be processed in agent-respecting ways. This will not lead to the end of history, but provides the best political arrangement for advancing toward decent societies, ones that respect everyone.11 This is no more than a field of possibilities, except that it is uniquely offered by democracy. A look at the present world may induce despair; yet, if I may recall the experience of my country under a terrorist state, at least sometimes hope on the resiliency and ultimately the political import of certain basic agency-respecting values is not based on sheer illusion.

11.4. LOOKING FORWARD In short, all aspects of democracy spill over every feature in which agency is at stake. This may bother a linear mind. However, this is what gives democracy its peculiar dynamic and historical openness. The undecidability of political rights, the always possible extension or retraction of political, civil, social, and cultural rights, and the issue of the options that enable agency, are the very field in which political competition has been and forever will continue being 10 As the reader may have noticed, in part because this topic is being extensively and fruitfully discussed by other authors and in part because of reasons of space, here I have not discussed another important aspect of democratization about which much remains to be done in many countries, that of the regime itself. 11 Here I allude to the formulation of Margalit 1996.

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played. Naturally, some of the rules of this play are established by the regime, but the struggles for limiting and expanding rights and for defining if there should be, and at what levels and decided by whom, agency-respecting and enabling conditions, are political and, indeed, moral struggles that take place both inside and well beyond the regime. The driving force of those struggles is that, politically, morally, philosophically, and legally, the rights and freedoms invoked by democracy pertain to agents, beings endowed with practical reason and capable of moral judgment. Human beings have the right to have rights and, consequently, of being able to struggle for those they deem proper for them and for others. This is the basis of the assignment of legal personality; in turn, thus recognized agents are the legally-enabled citizens that provide the micro-foundation of democracy and its main raison d’eˆtre. It is on this basis that now I add another reason to the ones listed in the preceding section. It is that democracy is the only kind of political rule that inherently entails an open historical and normative horizon. The undecidability of various rights and aspirations (including those postulated by human rights and human development intellectual currents); the continuing demands and redefinitions concerning agency-enabling conditions; the tensions and antinomies of democracy in relation to the state and the society in which it is embedded; and in general the aspirations for due recognition of agency in manifold social locations, all concur to create an issue that both echoes and feeds the peculiar dynamics of democracy. This issue is the permanent disputes about what are the proper boundaries of the political, including those of states and governments. About this matter, recall from Chapter 2 that some struggles succeeded in introducing democratizing (and humanizing) changes in previous bulwarks of the “private.” Eisenstadt (1999: 45) is on the mark when he says that “[T]he continual struggle about the redefinition of the realm of the political . . . of what is considered the appropriate scope of political action . . . has in itself constituted one of the major foci of democratic political contestation and struggle.”12 The struggles for redrawing the boundaries of politics and the state will never end, as they express the unavoidable diversity of society. Because of this fact, as well others I have summarized in the present chapter, democracy always projects a horizon of both hope and dissatisfaction. It is more than a valuable kind of political arrangement; it is also the notorious sign of a lack, of an always

12 Eisenstadt (2000: 129) adds that one of the “central aspects of the modern political process [is] a continuing struggle over the definition of the realm of the political. Indeed, it is only with the coming of modernity that drawing the boundaries of the political becomes one of the major foci of open political contestation and struggle.” This is also one of the central points of Wolin 1961.

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pending agenda that calls for the redress of social ills and for advances in the manifold matters which, at a certain time and for a certain people, most concern human well-being and dignity. This projection toward an unending, undefined, risky, and hopeful future—the open-endedness reason why we should prefer democracy—is why we should nurture it, not only taking into account its advantages as I do above, but also, as I have also done, by critically looking at its challenges and shortcomings. In order to pursue the arduous task that results, the complex character of democracy and its no less complex relationships with the state and society has to be conceptualized and researched in the midst of the variety with which it appears in the contemporary world. As I say in the Introduction, I hope that this book serves as a useful step in this direction.

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........... Index ........... Abrams, P. 118n.3 absolutism 43, 66, 68 accountability 34n.8, 97, 99, 104 administration 62–3, 67, 68, 109–10, 117, see also bureaucracies agency 25, 31, 42, 44, 46–8, 97, 100, 107, 108, 129, 139, 167, 169, 170, 195–6, 203, 204 denial of 32, 172–3, 176, 199 effectuation of 143 emergence and evolution of 33–41 enabling rights and capabilities of 176 inequality and 121 legally sanctioned 25–6, 171, 172, 173, 194, 204, 210 recognition of 68, 141, 172, 175 universalism of 100, 108, 184, 194, see also political citizenship; universalistic wager Agnew, J. 186 Alford, R. and Friedland, R. 40n.28 anarchy 43, 44 ancient Greece 61n.17, 94 Anderson, P. 36n.15 Annino, A. 147 anthropology 117, 118, 122, 124, 130, 206 Apter, D. 8, 9 Aquinas, Thomas 38n.21 Argentina 9, 10, 133–7, 150–3, 156–64, 187–8 Aristotelianism 35n.13, 36, 37, 39, 66, 94, 113 associations 17, 28, 58–62, 73, 109, 121 Athens 208 Augsburg, peace of (1555) 66 authoritarian states 32, 104, 123, 133–7, 141, 161, 165, 170, 184, 190, 197

authorizations 115, 118–20, 123, 124, 131, 206 autonomy 17, 64, 86 Babylonian law 61n.17 Bavaria 68 Beetham, D. 172n.12 Beitz, C. R. 212n.9 Belgium 76 Bendix, R. 45, 47–8, 113n.51 Berger, P. and Luckman, T. 139, 143 Berlin, Isaiah 170n.7 Berman, H. 35–6 Billig, M. 80 Bismarck, Otto von 47n.49 Black, A. 34 Bobbio, N. 37, 45, 47, 93 Bodin, J. 64, 66 Bolivia 150–3, 156–64, 165 bounded universalism 25n.23, 27 Bourdieu, P. 53n.3, 63, 81n.18, 82, 103, 111, 127 bourgeoisie 41, 63, 67 Brazil 9, 147n.3, 150–3, 156–64, 188 Breuilly, J. 81 Brown, D. 192n.17 Brubaker, R. 85 Buddhism 184 bureaucracies 15, 28, 92, 96, 106, 117, 118, 127, 128, 143, 204, 205, 212 administrative regulation 109–10 German 68 hierarchical 55–6, 60, 105, 112–13, 120 Latin American 110, 146, 148 legality and 109–10 state as set of 53–5, 55 bureaucratic-authoritarianism 3, 4, 9, 10 bureaucratization 60, 63, 65, 83

256

Index

Calhoun, C. 80n.17, 85n.29, 87 Canada 76 Canovan, M. 81, 89 capabilities approach 173–8, 180 capitalism 38, 39, 40, 45, 67, 130, 212 civil rights and 129–30 expansion of 64, 65, 126, 129, 146–7, 154, 192 inequalities of 105, 111 objectification of 141–2 state and 115, 125–9, 188 Castille 74n.1 Catholic Church 63, 64, 66 Cha´vez, Hugo 161 Chemnitz, Martin 66n.30 Cheresky, I. 155 childrens’ rights 189 Chile 9, 19n.9, 134–5n2, 148n.6, 149, 150–3, 156–64 Cicero 34 citizenry 75, 127, 128 citizenship 10, 17, 41, 42, 48, 59, 61, 109, 121, 203, 204 ascriptive characteristics of 25, 27, 82–3, 89 legal personality of 33–4, 36, 129–30, 198 nationalization of 82–5 Northwestern 89 poverty and 121 rights 138, 191, 200–1 state as a promoter of 92 state bureaucracies and 56 universalistic wager 13, see also political citizenship; agency; dialogism ‘citizenship gap’ 191n.15 civil law 36, 47 civil rights 65, 89, 96, 107, 108, 115, 167, 171, 174, 180, 206, 207, 212 capitalism and 129–30 contracts and 46–7 Latin America and 149, 158, 165, 181 negative duty of the state 97–8

pluralism and 193 political rights and 129, 204 private sphere and 31, 41 ‘public security’ and 178, see also political rights; freedoms; human rights civil society 69 clientelism 124, 154, 165 coercion 51, 52–3, 61, 62, 63, 65, 67n.34, 73, 98, 111, 118, 126, 127, 129 Cohen, J. 190n.12, 191 collective actions 59, 62 collective identity 14, 54, 55, 66, 71, 73–9, 82, 86, 130, 136, 197 Collier, D. and Levitsky, S. 11 Colombia 150–3, 156–64 common good 53, 54, 57, 58, 59, 73, 76, 77, 80, 82, 84, 87, 90, 103, 104, 123, 125, 137, 169, 188, 208 common language 67, 68, 78–9 Confucianism 184 Constant, Benjamin 43 constitutionalism 42–5, 94, 98, 99, 101, 109–10, 172 consumption in Latin America 154 contract(s) 39, 40, 46, 67, 106, 129 labor 39, 127 social 25, 42 will theory of 36, 37, 46n.47 contractualism 42, 68 Cooke, M. 200 Coronil, F. 143n.15 corporations 28, 129 Corrigan, P. and Sayer, D. 71n.47 corruption 96, 124, 149, 150, 151, 157, 158 Costa Rica 148n.7, 149, 150–3, 156–64 Cotterrell, R. 109n.40, 110n.42 Coulanges, F. de 43 Counter-Reformation 66 Craig, P. 97 cuius regio eius religio 66, 67n.33 cultural rights 97, 98, 149, 158–9, 165, 206, 212 customs union (Zollverein) 68

Index Dahl, R. 8, 17, 20, 21, 22, 33n.6, 134, 168, 209 Dasgupta, P. 175n.17, 179n.24 decision-making 51, 56–62, 67, 85, 136 decisive leadership 163, 164 decolonization 82 democracy 15, 32, 74, 84, 85, 89, 90, 91, 92, 113, 130, 210 accountability 104 aggressive promotion of 190 basic standards for 198–200 characterization of 212–13 convergence 167 cultural/religious incompatibilities with 183–4 dangers of 43 definitions of 11–18, 21, 28–9 delegative 161–2 dialogical appeals 137–9 ‘dignity of everyone’ at core of 192, 196, 197, 198 human rights and human development 167, 173–4, 176, 178–80, 206–7 Latin America 156, 157, 161–2 minimalist definitions of 13–16, 17, 21, 23 nationality and 84, 91 ‘new citizenship’ 164–5 ‘new’ democracies 19n.9, 22, 24n.22, 169 political authority and 208 positive aspects of 209–10 reasons for preferring 210–15 rule of law 94, 95, 96, 98, 99–101, 106, 109, 110, 112, 113 social context 168–71, 198 struggle for 111, see also agency; fair elections; state; universalistic wager democratic regime 13–29, 54, 73, 82, 89, 96, 100, 102, 122, 127, 160, 203–4 definitions 13–18, 27, 56–8 fair elections 18–20, 161, 198, 210, 211

257

functioning and quality of 55 universalistic wager 45, 85, see also agency; political citizenship democratization 58, 90, 108, 130, 143, 154, 160, 181, 194, 198, 207–8, 213 Deutsch, K. 8 dialectics of identity and recognition 139–41, 167 dialogism 136–9, 143, 167, 170, 171, 177, 185, 195, 197, 206 Diamond, L., Linz, J. J., and Lipset, S. M. 16n.4 Di Palma, G. 16 discrimination 71, 111, 169, 195 division of labour 142 Domingo, P. 188n.10 Dominican Republic 150–3, 156–64 Donald, M. 140 Doornbos, M. 186n.5 Dowding, K. and Hees, M. 107 Dunn, J. 45, 61n.19 Durkheim, E´. 82, 143n.16 Economic Commission for Latina America 154n.15 Ecuador 150–3, 156–64, 165 education 41n.31, 79, 154, 185 egalitarianism 115, 209, 212 Eisenstadt, S. N. 45n.45, 214 elected officials 17, 18–19, 44, see also state officials elections 14, 16, 209, 210, 211 authoritarianism and 24n.21 decisiveness and 18–19, 23, 100 fair 17–23, 26, 27, 45, 100–1, 149, 161, 198, 210, 211 institutionalization of 19–20, 23 rules for 18n.8 electoral courts, trust in 157, 163 Elias, N. 148n.8 El Salvador 150–3, 156–64 Engels, Friedrich 142 English language 78

258

Index

English law 63n.21 Enlightenment 37, 41n.31 environmental rights 159 equality 48, 105, 107, 139, 174–5, 205 estado de derecho 93, 94, 96, 97, 98, 123, 205 ethics 174, 189 ethnic rights 159 ethnocentric bias 184 Evans, P. 53n.3 fair elections 17–23, 26, 27, 45, 100–1, 149, 161, 198, 210, 211 fairness 47, 103, 107, 172 Falklands (Malvinas) War (1982) 136 federalism 77 Ferguson, A. 107n.35 Ferrajoli, L. 44, 45n.43, 191 Feuerbach, L. 142n.14 Fichte, J. 68 Finlayson, A. 82 Flathman, R. 43n.36 foreign investment 187, 188 formal-rational law 38, 39 Foucault, M. 118n.3 France 43, 66, 78, 82, 88 Frederick of Prussia 65 Freedom House rankings 22n.16 freedom of association 17, 21, 22, 27, 46, 82, 139, 165, 168, 171, 194–5 freedom of belief 139 freedom of choice 170, 197 freedom of expression 15, 17, 20, 22, 27, 46, 82, 139, 165, 168, 169, 171, 177, 194–5 freedom of information 17, 21, 27, 139, 168, 169 freedom of movement 27, 46, 82, 171 freedom of the press 14 freedoms 20–4, 25, 42, 56, 89, 96, 175–81, 198, 204 boundary problems 21–2, 168–9 capability approach 173

deprivation of 167, 174, 176–9 effectuation of 180 fair elections 17–23, 26, 27, 45, 100–1, 149, 161, 198, 210, 211 social context 27, 133–9, 168–71 free-riding 59 French Declaration of the Rights of Man 196 French Revolution 41n.32, 43, 45, 84, 90 Fujimori, Alberto 161 Fulbecke, William 36 Fuller, L. 95n.5 functionalism 8, 117 Furet, F. 45 Garzo´n Valde´s, E. 95n.7, 210n.5 gender rights 159, 168, 169, 189, 194 geopolitics 190 Germany 68, 78, 88 Gerstle, G. 69, 70 Gewirth, A. 171 Gillis, J. R. 75n.4 globalization 54, 138, 167, 174, 185–9, 207 Glorious Revolution (1688) 90 Gonzalbo, Escalante 122 Gordley, J. 36 Gordon, S. 109–10 Gorski, P. 66 governance 55, 186 government, definition of 56 Graff, H. 79 Gray, J. 84n.26 Greenfield, L. 91 Grimm, D. 90n.39 Grotius, H. 35, 37, 42 Guatemala 19n.9, 150–3, 156–64 Guerra, F.-X. 147n.4 Guibernau, M. 79 Haakonssen, K. 35 Habermas, J. 41, 44n.42, 80n.16, 84, 140, 175n.17, 180n.27

Index Hamburger, P. A. 36C Hampshire, S. 47n.51 handicapped people’s rights 195 Hardin, R. 99 Hart, H. L. A. 11 health rights 159 Hegel, G. W. F. 139 Held, D. 42, 186 Herder, J. G. 68 Hinduism 193 history 75, 117 Hobbes, Thomas 35, 37, 38, 42, 43, 64, 66, 118, 135, 136, 196 Holmes, S. 99, 107 Holmes, S. and Sunstein, C. 22n.18, 107, 168n.5 Honduras 150–3, 156–64 Honneth, A. 34n.8, 48, 142 Ho¨sle, V. 59, 111, 118–19 Houtzager, P. and Crook, R. 108n.37 human development 167, 172, 173–4, 176, 178, 180, 206 humanism 47 human rights 138, 167, 172–3, 174, 176, 178–80, 185, 189–91, 206 Hunt, A. 127n.16 Huntington, S. 16 Hurrell, A. 188–9, 200 hybrid regimes 24n.21

dialogical networks 138 Ferrajoli on 191 globalization and 187, 189 in Latin America 149, 152, 154–5 legal system and 105–7, 120 Sen on 174 and the state 89, 120–3 infant mortality 154 infra-limitations 124, 125 institutionalism 25–6, 47, 51, 104, 107, 118 intellectual property 187 intellectuals 74, 79–80, 81, 87 international institutions 54, 55, 57 international law 189, 190, 191, 200 Internet 185 Islam 193 Islamic countries 184 Italy 68n.36, 78–9

Iberians, democracy and 183–4 immigrants 69, 70, 85, 88, 195 imperialism 87, 89 inclusiveness 18, 19, 21, 26, 31–2, 41, 42, 44–5 indentured labor 39n.24 India 76 indigenous peoples 69, 88, 165, 189, 195 individualism 34–6, 183–4, 195–6 in dubio pro-democracy 177, 207 industrialization 154 inequality 81, 111, 126, 138, 174, 194, 205, 206 capitalism and 105, 115

Kahler, M. and Lake, D. 186 Kant, I. 110n.45 Kertzer, D. 78, 82 King, Desmond 69 Klingeman, H.-D. and Hofferbert, R. 24n.22 Kriegel, B. 38n.22 Krygier, M. 95n.5, 108n.36 Kymlicka, W. 192

259

Janoski, T. 40n.27 Jayasuriya, K. 187 Jessop, B. 57n.11 Jones, P. 44n.41 Judaism 193 judges 99, 101–2, 119 judiciary 65, 95, 104, 155, 158–9, 188 jurists 64, 65 Justinian, Emperor 34

labor contract 39, 127 labor market, Latin America 152, 153, 154, 185 Lacey, N. 39n.25

260

Index

Laclau, E. 86 Lane, R. 8 language 67, 68, 78–9, 140 LAPOP (Latin American Public Opinion Project) 149n.9 Lasswell, H. 8 Latin America 55, 57, 58, 76, 95–6, 102, 145–65, 178, 181, 187, 206 bureaucracies in 110, 146, 148 bureaucratic-authoritarianism 3, 4, 9, 10 de-legalization of the workplace 107 globalization and 188 history and context of 146–9 legal system in 95, 146, 156, 193 Northwest and 145, 146, 147, 149, 154, 163 opinion polls 150–3, 156–64 state officials and the excluded 117, 121 trust in Congress 155, 157, 162, 163, 164 ‘wrong party’ winning elections 19n.10 Latinobaro´metro (2003) 164 Latinobaro´metro (2005–6) 150–3, 156–63 Latinobaro´metro (2008) 149 law 37, 63–5, 66, 70, 93–113, 120n.8, 129, 205 colonial law 193 commercial law 193 common law 36, 37, 47, 69 corporation law 64 mafia law 121 leadership 14, 15, 163, 164 Le Chapelier, J. 47 legal globalization 187, 189–95 legality 66, 109–10 legalization 60, 63–4, 83, 106–7, 109, 129–30 legal pluralism 192–4 legal positivism 66–7 legal professionals 38, 99, 101–2, 119 legal system 27, 28, 46, 53–6, 66–7, 92, 97, 98, 115, 195, 205

agency and 25–6, 171, 172, 173, 194, 204, 210 effectiveness of 101–2 equality and 156, 160 hierarchical 94 inequality and 105–7, 120 Latin America 95, 146, 156, 193 poverty and 121, 181 rights and 170, 209 and the state 115, 116, 118–19, 121–2, 124, 131 legal theory 34, 37, 44, 168 Levi, M. 47n.50 libel law 21 liberalism 31, 39, 42–5, 196 life expectancy 154 Linz, J. 8, 9 Linz, J. and Stepan, A. 102 Locke, John 42, 43, 61n.18 Luka´cs, G. 142 MacCormick, N. 100, 101 Mann, M. 108n.39, 116n.1 Marshall, T. H. 41, 46n.48, 180n.28, 181n.31 Marx, A. 88 Marx, Karl 39, 141–2 Marxism 47n.51 mass media 154, 155, 168 means of production and exchange 39, 40, 65, 126, 128, 192 Mesa-Lago, C. 154 Mexico 150–3, 156–64 Meyer, J. 85n.30, 187n.7 migration 185 Mill, J. S. 33n.6, 43, 196 Miller, D. 179n.25 mixed regimes 57n.10 moral accountability 34n.8 morality 35, 44, 69, 70, 174, 197 Mothers of the Plaza de Mayo 135n.3 movements 28, 57, 104, 165, 178, 185, 195 multiculturalism 193, 194

Index Napoleonic Code 37, 47, 65 nation, defined 74, 81, 86–8 national anthems 78, 85, 116 national identity 68, 75, 76–7 nationalism 76, 79–81, 87, 88–9, 147, 206 nationality 82–5, 91 national memory 75n.4 natural law 34, 94 natural rights 35, 44, 172 nepotism 124 Neumann, Franz 105 New Public Management 55 New York Times 134 Nicaragua 150–3, 156–64 nominalism 35, 38 North, D. 67n.34 Ober, J. 208n.2 oligarchies 19, 32 Olsen, J. 55–6 O’Neill, O. 177n.21 opinion polls 149, 150–3, 155 Ozkirimli, U. 80, 81n.20, 87 Panama 150–3, 156–64 Paraguay 150–3, 156–64 Parsons, T. 8 partial regimes 57n.10 paternalism 71 patrimonialism 125, 147 Pennington, K. 36 people, defined 74–5, 86–9, 90, 91, 92 Peru 150–3, 156–64 Philpott, D. 189n.11 Piaget, J. 140n.12 pluralism 167, 168, 189–95, 207 police 69–70, 96, 150, 153, 155, 156, 179 policy-making 15, 178 political citizenship 25–8, 41, 56, 73, 74, 83, 94, 106, 112, 165, 177, 194 definition of 27 individuals 14, 43, 45, 198 in Latin America 154

261

mixed status of 27–8 social identities 195–6 voters 18, 23, 25, 31–2 political democracy see democratic regime political parties 18, 27, 28, 155, 156 political rights 17, 19, 20–7, 31–2, 40–2, 46, 83, 98, 115, 160, 176, 177, 180, 196, 204, 212, see freedoms; elections political scientists 116, 117 politics 81, 100 polyarchy 17 Poole, D. 122 Portes, A. 154 poverty 117, 121–3, 138, 151, 154, 165, 178 power 53, 142, 143 administrative 62–3 complex associations and 59–60, 61, 62 informal 121–3 limiting 99 nationalism and 80–1 police 69–70, 96 political 68, 81 relations 108 state concentrations of 53, 82, 89, 91–2, 117 symbolic 81n.18 Preuss, U. 83, 98 printing, and language 79 private sphere 31, 41, 42, 102–4, 125 property rights 40, 65, 107, 129 Protestantism 66 Prussian Civil Code 37, 47, 63, 65, 68, 94, 129 Przeworski, A. 15–16, 19 public policies 57, 100, 117 public sphere 27, 102–4, 125, 135, 137–9, 170, 197 Putin, Vladimir 161 racial discrimination 69–70, 87, 189 Rae, D. 8 raison d’etat principle 66 Rawls, J. 175n.17

262

Index

Raz, J. 94–5, 98, 99, 168n.3, 169, 170n.7, 210n.4 Reformation 66 Regh, W. 42n.35 regime 13, 14, 15, 16, 17, 18, 19, 20, 22–8, 56, 203, see also democratic regime reification 141–3, 206 religion 34, 66, 88n.38, 192n.16, 193 Renan, E. 75n.4 reproductive rights 159 republicanism 43, 103, 104 Riggs, F. 85n.30 rights see civil rights; human rights; political rights; social rights Rios-Figueroa, J. and Staton, J. 95n.4 rituals 75, 77, 78, 85, 116 Roman law 36n.15, 37, 61n.17, 64, 66n.32, 129 Rosanvallon, P. 40n.28 Rothstein, B. 48n.52 Rueschemeyer, D., Huber, E., and Stephens, J. 16–17 rule of law 94–105, 129, 205 rulers 38–9, 42, 43, 44, 63, 64, 87, 90, 98, 116 accountability 99 authoritarian 123, 133–7, 160–1, 170 common good 103 cuius regio eius religio 66, 67n.33 delegative 161–2 rule of law and 94, 98 Russia 161 ‘Salamantine school’ 35 Sartori, G. 16, 44 Schmitter, P. 57n.10 Schumpeter, J. 13–15, 21, 23, 104 self-consciousness 139 self-employment 152, 153, 154, 185 Selznick, P. 176n.20 Sen, A. 23n.19, 173, 174, 177 serfdom, abolition of 39 sexual diversity rights 159, 168

sexual identity 195 sexuality, regulation of 69, 70 Shapiro, M. 128n.18 Shklar, J. 136 Shue, H. 178 Simmel, G. 139 Skocpol, T. 69 Skowronek, S. 69 slavery 39n.24, 69, 70 Smith, A. 79, 87 social context 27, 168–71 social contract 25, 42 Social Democracy 47n.49 social differentiation 58, 154 social insurance 154 socialism 47n.51, 196 socialization 74, 109, 113, 140, 167 social movements 28, 57, 104 social order 93, 105, 111, 112 social relations 51, 53, 54, 55, 56, 59–61, 71, 78, 93, 101, 116, 121, 127–8, 139, 147, 197, 205 social rights 31, 48, 89, 97, 98, 108, 115, 149, 154, 165, 180, 204, 206, 212 society 81, 82, 92 sociologists 116, 117, 123 Soper, P. 100 Southern Asia 77 sovereignty 66, 84, 91 Spain 68n.36, 76, 183–4 Spanish America 74n.1 state 13, 28, 31, 40, 67, 92, 115, 117, 118, 119, 131, 203, 204 ambiguity of 112–13 and capitalism 115, 125–9, 188 characteristics of 71, 73 complex associations 58–62 credibility dimension of the 54, 55, 57, 58, 89, 104, 188 dimensions of 51–8, 112, 118, 125, 187, 208–9 effectiveness dimension of the 54, 58, 62, 89, 102 efficacy dimension of the 53, 55, 58, 89

Index embedded autonomy 53n.3 faces of 14, 78, 85, 115–31, 205–6 filtering dimension of the 54, 55, 58, 89, 186 globalization and 185–9, 207 Latin America 146–9 legal system 115, 116, 118–19, 121–2, 124, 131 Northwestern hegemony 85–6 obligations of 44, 197, 198 physical coercion monopoly 51, 52, 63, 65, 73, 83 power and 53, 82, 89, 91–2, 117 referents of 73–92, 204–5 reification of 142–3, 206 territorial delimitation 51–2, 56, 73, 77, 85, 204 terrorism 134–7, 150, 158, 197, 206 unity 115, 117, 118–19 ‘world of states’ 85–6, see also authoritarian states; bureaucracies; common good state-making 39, 41, 48, 62–71, 77n.8, 126, 165–6 state officials 44, 54, 57, 98, 115, 117, 142, 187, 198–9 accountability 99 authorizations 119–20, 124 Bourdieu on 127 obligation to the common good 103, 123 public sphere 102–3, 125 rule of law 96, 108 social inequality 120–3 specific rights 98–9, 102, 119 transiting roles 123–5 Steinfeld, R. 39n.24 Stepan, A. 8, 76, 77 Stoelting, E. 104 Stoicism 34, 34n.9 Strasser, C. 57n.10 Strayer, J. 65n.25 suffrage 17, 31–2, 41 Sullivan, W. 192

263

Suny, R. G. 75 symbolic cognition 140 symbolic power 81n.18 taxation, Latin America 149n.10 Taylor, C. 139 terrorism 21 September 11th attacks 190 state 134–7, 150, 158, 197, 206 Thomism 36, 37, 39, 66, see also Aquinas, Thomas Thompson, E. P. 104n.31 Tierney, B. 34n.9 Tilly, C. 40n.26, 41n.32, 48, 65n.27 Tocqueville, Alexis de 43 Tomasello, M. 140 torture 179, 189 Touraine, A. 212n.9 transnational corporations 188 Trubek, D. 107n.34 United Kingdom 47, 76, 84, 88, 90 United Nations 54 Counter Terrorism Committee 191n.14 Development Program (UNDP/ PNUP) 173 Security Council 190 Universal Declaration of Human Rights 189, 196 United States 82, 84, 108 common law 47, 69 Constitution 43 exclusion from voting in 32n.2 independence 45, 90, 91 motto of 88 state formation in 69–71 Supreme Court 70n.43 ‘war on terror’ 190 universalistic wager 13, 25–8, 32, 33, 41, 43–5, 47, 83, 85, 147, 169, 192, 204, 211 Uruguay 9, 148n.7, 149, 150–3, 156–64

264 Van Caenegem, R. C. 67n.33 Va´zquez, R. 178n.22 Venezuela 150–3, 156–64 violence 96, 179, 197, 198 Vogler, C. M. 89 voters 18, 23, 25, 31–2, see also elections Waldron, J. 34n.8, 100, 177, 210 warfare 43, 65–6 ‘war on terror’ 190 Weale, A. 179n.25 wealthy citizens, and the state 117, 120, 187 Weber, M. 38, 39, 40n.29, 60, 93 on bureaucratic administration 110n.43 definition of the state 52–3, 62

Index development of capitalism 65n.26, 67 ecclesiastic corporation law 64 legal system 67 welfare policies 47 Welzel, C. and Inglehart, R. 24n.22 Whitehead, L. 28n.29, 148 William of Ockam 35, 38 will theory of contract 36, 37, 46n.47 workplace, legalization of 106–7, 109, 115, 129–30, 154 World Bank 55 Wright, G. H. von 35n.13 xenophobia 87 Yabra´n, Jose´ 120n.8 Ziblatt, D. 68