Civic Freedom in an Age of Diversity: The Public Philosophy of James Tully 0228014301, 9780228014300

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civic freedom in an age of diversity

democracy, diversity, and citizen engagement series Series editors: Alain-G. Gagnon and Yasmeen Abu-Laban Vibrant movements both new and old, inspired by Indigeneity, national self-determination, anti-racism, migrant precarity, and their intersections with other forms of identity, raise profound questions about social justice. Such movements also provoke backlash. These developments beg the interrogation of institutional mechanisms for inclusion as they relate to democracy, citizenship, public policy, and rights across different state forms, including settler colonial and federal states. Centring the heterogeneity of mobilizations and claims-making by citizens, non-citizens, nations, and groups in the twenty-first century, the Democracy, Diversity, and Citizen Engagement Series invites consideration of how people and interests are represented. In light of how nations and people are often divided by state frontiers, the series, with the support of the Interdisciplinary Research Centre on Diversity and Democracy, also showcases work that identifies how interests and representation might be enhanced at local, national, or global levels. 1

The Parliaments of Autonomous Nations Edited by Guy Laforest and André Lecours

2

A Liberal Theory of Collective Rights Michel Seymour

3

The National Question and Electoral Politics in Quebec and Scotland Éric Bélanger, Richard Nadeau, Ailsa Henderson, and Eve Hepburn

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Trust, Distrust, and Mistrust in Multinational Democracies Comparative Perspectives Edited by Dimitrios Karmis and François Rocher

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Constitutional Politics in Multinational Democracies Edited by André Lecours, Nikola Brassard-Dion, and Guy Laforest

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Fiscal Federalism in Multinational States Autonomy, Equality, and Diversity Edited by François Boucher and Alain Noël

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The Symbolic State Minority Recognition, Majority Backlash, and Secession in Multinational Countries Karlo Basta

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Taking Pluralism Seriously Complex Societies under Scrutiny Félix Mathieu

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A Written Constitution for Quebec? Edited by Richard Albert and Léonid Sirota

10 Civic Freedom in an Age of Diversity The Public Philosophy of James Tully Edited by Dimitrios Karmis and Jocelyn Maclure

Contents

Foreword | ix John Borrows Acknowledgments | xiii Introduction: Public Philosophy in a Listening Mode | 3 Dimitrios Karmis

part one: public philosophy as a critical activity 1 Two Conceptions of Public Philosophy: A Conditional Defence of Contemporary Normative Theory | 25 Jocelyn Maclure and Daniel M. Weinstock 2 Justification, Pluralism, and Disciplinary Discontents; or, Leaving Philosophy | 41 Cressida J. Heyes 3 James Tully’s Dialogical Political Science | 64 Michael Temelini

part two: crises of democracy, civic freedom, and democratic struggles 4 Some Crises of Democracy | 87 Charles Taylor 5 Learning from the Streets? Civil Disobedience in Theory and Practice | 103 Robin Celikates

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Contents

6 Representative Democracy and Democratic Struggles from Below | 123 Dominique Leydet 7 Practising Civic Freedoms in Global Governance: Contestation, Agency, Sites | 146 Antje Wiener 8 Popular Sovereignty, Political Contention, and the Boundaries of Democracy | 171 Geneviève Nootens 9 Putting Reasons Back into Reasonable | 192 Simone Chambers

part three: indigenous intellectual cultures, legal traditions, and self-determination 10 On Reconciliation and Resurgence | 211 Taiaiake Alfred 11 Demanding More of Ourselves: Indigenous Incivility | 227 Val Napoleon 12 Freedom, Self-Determination, and Indigenous Well-Being | 256 Michael Murphy

part four: federalism and multinational democracies 13 Enlightening Federalism: The Practical Philosophy of James Tully | 281 Stephen Tierney 14 Reimagining Supranational Belonging: James Tully on the European Union | 313 Helder De Schutter

Contents

15 Reconciling Differences and Negotiating Diversity | 331 Alain-G. Gagnon

part five: thinking and acting differently 16 On Exemplarity and Public Philosophy | 353 David Owen 17 Excuses, Politics, and Pluralism | 369 Jonathan Havercroft 18 Four Conceptions of Liberty as a Political Value | 393 Duncan Ivison

part six: reply 19 Reciprocal Elucidation | 415 James Tully James Tully’s Biography | 477 Contributors | 479 Index | 487

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Public Philosophy in a Listening Mode Dimitrios Karmis

Over the past thirty years, first with Strange Multiplicity (1995), and more fully with Public Philosophy in a New Key (2008a, 2008b) and On Global Citizenship (2014), James Tully has developed a distinctive and influential approach to the study of political philosophy, democracy, civic freedom, and active citizenship. It is an approach for a deeply diverse world and a “de-imperializing age” (2008a, 7) that he calls “a public philosophy” (ibid., 16). This volume offers a wide-ranging critical exploration of Tully’s public philosophy by former students and colleagues at McGill University, the University of Victoria and the University of Toronto, and by scholars who have been in conversation with Tully’s work for many years. As both John Borrows’s foreword and Tully’s extensive reply emphasize, this book is also an exemplification of the kind of dialogues of reciprocal elucidation that are central to Tully’s approach. Tully sees dialogues of reciprocal elucidation1 as “the heart and soul of public philosophy” (Tully’s reply). Public philosophy is about public affairs (Tully 2008a, 3), and Tully’s type of public philosophy addresses public affairs through dialogues of reciprocal elucidation. He describes his approach as “a type of academic research that aims to enter into interdisciplinary dialogues of mutual learning not only with other academics but also with citizens of the world, in the broadest sense of this polysemic term, who are engaged in the problems and struggles we are trying to understand” (2014, 270). This orientation comes with a view of genuine dialogue that repeatedly stresses the importance of listening as much as speaking. For Tully, to listen to the diverse voices of others (audi alteram partem) in

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their own terms (self identification) is “the ethical watchword of the post-imperial age” (1995, 34), and the basis of any “fair hearing.” Such way of addressing dialogue, voice, and otherness highlights the critical and transformative potential of listening in the face of long-established hierarchies of attention, languages, voices, and patterns of exchanges. The Western philosophical tradition has devoted far more attention to the expressive than to the receptive side of language, and Western cultures have given much more value to speaking than listening, which has often been naturalized, considered to be passive, and requiring less effort, skill, or virtue than speaking. In other words, listening has for a long time been “the other side of language,” the neglected one (Fiumara 1990), the “simple act that we just do” (Wolvin 2010, 1), and our political imaginary is one of speaking (Dobson 2014, 48). Despite more scholarly interest for listening since the 1990s, scholars from disciplines and fields of study as various as nursing (Shipley 2010), media studies (Couldry 2009; Lacey 2013), rhetoric and composition studies (Royster 1996; Ratcliffe 1999), theatre and performance studies (Shah 2021), sociology (Back 2013), and anarchist studies (Heckert 2011) have all indicated a significant need for more attention to listening in their fields. Political theory, democratic theory, and political science are no exceptions (Bickford 1996; Dobson 2014, 2010) despite the deliberative turn in democratic theory and practice (Morrell 2018). Not surprisingly, a growing interest for listening has led to various forms of corporate, depoliticizing uses of listening, for instance through “listening tours” and “therapeutic” management practices (Lloyd 2009), including in the fast-corporatizing academia. In this context in which listening is still relatively understudied, undervalued, and depoliticized, it is particularly worth looking at listening in Tully’s work. This introduction aims to shed more light on Tully’s emphasis on listening as key to understanding his view of genuine dialogue as a transformative engagement. The first section shows that listening is at the core of Tully’s approach. Put differently, I argue that a listening mode is central to Tully’s practice of public philosophy. Then, in the second section, I look more closely at the meaning of some of Tully’s main uses of the vocabulary of listening. Finally, in the third section, I provide an overview of the volume.

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p u b l ic p hi lo so ph y and li steni ng In chapter 3, Michael Temelini highlights that Tully’s dialogical method extends to a teaching style and a curriculum “grounded in a dialogical ethos,” and he presents Tully’s teaching as an exemplar of dialogical abilities such as speaking, listening, and disagreeing. Dialogical abilities have also been central to Tully’s tremendous success as a thesis supervisor. For PhD students like me, who did not have English as a first language, it was a real gift to benefit from Tully’s patient listening and perspectival ability to seriously consider his interlocutor’s words, background, and perspective, to enter into genuine dialogue with them. That said, I here concentrate on genuine dialogue and listening in Tully’s public philosophy as a type of research activity, while being aware that Tully’s research and teaching are communicating vessels. Speaking and listening are situated, embodied, place-based, and interwined activities. They are interdependent and context dependent. The presence of a speaker and a listener who change roles may be the beginning of a genuine dialogue, but it may as well lead to a series of monologues or any other variety of false dialogue. While this may seem obvious, it is easily forgotten under the still dominant influence of the monological traditions and approaches criticized by Tully. For a genuine dialogue to occur, speaking and listening need to meet with one another in a dynamic relation of mutual attunement. Jacqueline Jones Royster asks: “how can we teach, engage in research, write about, and talk across boundaries with others, instead of for, and around them … How do we listen?” (1996, 38; emphasis in the original). This concern for not speaking for or around others, for doing “more than just talk and talk back” (ibid.), for being with others, very much resonates with the primary role of listening in Tully’s approach. It plays a key part at every step. First, as mentioned previously, Tully’s public philosophy aims to establish dialogues of mutual learning between academic research and the civic activities of citizens. Tully stresses that these dialogues do not take place “under the horizon of a political theory that frames the exchanges and places the theorist above the demos” (2008a, 4). Public philosophy is a situated activity: “it enters into the relationships of normativity and power in which academic researchers and civic citizens find themselves, and it works historically and

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critically on bringing them into the light of public scrutiny … Every reflective and engaged citizen is a public philosopher in this sense, and every academic public philosopher is a fellow citizen” (ibid.). Public philosophy’s dialogues of reciprocal elucidation are thus conceived and entered into as horizontal dialogues. It is the “distinctively ‘democratic’” (ibid.) feature of public philosophy, compared to the traditional approach of “elite political theory” (ibid., 8–9), and it is rooted in Tully’s view of epistemic interdependency as outlined in his response to Jonathan Havercroft’s chapter 17 on critical redescription as a practice of freedom: “Paradiastole (the possibility and power of redescription) is based on two features of reality. Human knowing is situated, perspectival and thus partial. Human activity is aspectival. Any disclosure of description of it from a situated standpoint reveals some aspects of the activity in question while also concealing other aspects. This is the realism of civic humanism. Therefore, as knowers, we require others to show us how human activity appears to them in order to gain a more enlightened view. We are epistemically interdependent.” Thus, Tully continues, epistemic interdependency is acknowledged through dialogues of reciprocal elucidation, through the mutual attunement of listening and speaking: “Humans come to know the activities they are involved in through the exchange of redescriptions in dialogues of reciprocal elucidation (audi alteram partem). Through empathetic listening and careful speaking in reciprocity we can come to understand the multiple aspects of the activity in question from each other’s points of view and thus the partial truths and limits of each, including our own. Dialogues of reciprocal elucidations can thus free us from aspect blindness (taking our description as comprehensive) and open us to diversity awareness” (Tully's reply). In other words, knowing is knowing with others, and it may contribute to “epistemic humility” (Tully 2018c, xxxv). This is the ground of Tully’s view of dialogues of reciprocal elucidation between academic and nonacademic public philosophers, with their respective experiences, skills, and perspectives. As David Owen points out, academic public philosophy’s dialogical interventions “are not to be seen as modelled on the commands of a rational legislator specifying, for example, the form of the just society, but rather as more akin to invitations to consider looking at our political relationship in a different way” (2014, ix; my emphasis), informed by both nonacademic public philosophers’ perspectives and the broader critical and historical

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surveys provided by academic research. Public philosophy is thus an invitation to acknowledge interdependency through horizontality and reciprocity in dialogues. Second, Tully states that public philosophy “starts from and grants a certain primacy to practice” (2008a, 16). It starts from the ground of civic struggles with a reflection on practices of governance experienced as oppressive and contested by those subject to them, that is, citizens in the broad sense of “a person who is subject to a relationship of governance (that is to say, governed) and, simultaneously and primarily, is an active agent in the field of a governance relationship” (ibid., 3; emphasis in the original). Therefore, listening to and knowing with these struggling citizens is the first step of Tully’s public philosophy: “My approach begins with listening carefully to those suffering the lived experience of injustices in their own ways of knowing and articulating them” (2014, 282). For academic public philosophers, granting primacy “to practice” is also granting primacy to listening to suffering and resisting voices in their own terms. It is through listening to civic struggles that “a questionable regime of practices is taken up as a problem” (2008a, 16). This first step aims to establish an ongoing dialogue of knowing with civic struggles on the ground. The aim is not to be able to speak for oppressed citizens or to prescribe how to think and act through a normative theory, but to “bring to the discussion academic research that throws critical light on the problematic situation by explicating its history and contemporary configuration, and which helps to disclose and clarify the range of possible ways of thinking and acting in relation to it” (2014, 270). Public philosophy provides citizens with tools to speak for themselves. It also learns from the experience with civic activity as a test for research and an impulse for more studies. Therefore, public philosophy is “an interlocutory intervention on the side of the oppressed” (2008a, 17). It is both an academic and a civic engagement in which listening to and learning from the civic struggles of the oppressed are an integral part. Third, public philosophy aims to shed critical light on a problematic field of practices of governance and on the practices of freedom available to change them. This aim is achieved by means of contemporary and historical surveys (ibid., 25–36) that require a listening mode. In chapter 16 on public philosophy and ideals as exemplars, David Owen points out that “listening as an ideal is … centrally concerned with the threat to reasonable deliberation posed by ‘ignoring

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uptake’ and ‘assuming uptake.’” As an example, he stresses that the core of Tully’s methodological approach for historical surveys – the Cambridge School in the history of ideas – is also “an ethical orientation to the importance of listening and to trying, as far as possible, to avoid the assimilation of other’s to our perspective that is a constitutive feature of ‘assuming uptake.’” More broadly, following Owen’s chapter, this ethical orientation to the importance of listening applies to Tully’s approach as a whole: “For public philosophy, listening is a critical ideal that requires two commitments. First, attending to the ways in which our practices of listening have been historically shaped in order to free us from the grip of the presumption that these are the only practices of listening. Second, equipped with a broader sense of possibility, to engage in the difficult and demanding practice of learning to listen to the reasons of others as the reasons that their speakers intend them to be.” Thus understood, listening is a critical ideal for dialogues with texts, historical and contemporary, as much as for face-to-face dialogues. For instance, although Tully’s primary use of the vocabulary of listening is about face-to-face dialogues, he quotes Quentin Skinner’s “expression ‘doing justice to the text’” and Ludwig Wittgenstein’s “‘our only task is to be just’” in order to stress the importance of carefully listening to the words used by the main characters in Antigone (1995, 174). I will return to it in the next section. In sum, Tully’s public philosophy as a horizontal, practical, critical, and historical research activity deeply relies on listening to and knowing with others as “partners” in dialogues of reciprocal elucidation (2016). And since public philosophy is oriented toward “civic freedom” understood as the situated and relational freedom manifest in the various ways citizens act together “to bring oppressive and unjust governance relationships under the on-going shared authority of the citizenry subject to them; namely, to civicize and democratize them from below” (Tully 2008a, 4), listening to and knowing with others start from listening to the oppressed in their own terms. This situated, humble, patient, democratic, and engaged practice of listening is well reflected in Tully’s dialogues with the civic struggles of Turtle Island’s Indigenous peoples, and more generally in his various uses of the vocabulary of listening.

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d i ve rs it y awar enes s and t r a ns fo rm at iv e engagement Despite the central role of listening in Tully’s approach, it is important to note that Tully has no book, chapter, or article whose main focus is listening.2 It is also worth mentioning that listening and its cognates do not appear in the indexes of Tully’s books, not even under the term “dialogue.” Tully’s more frequent and systematic use of the vocabulary of listening – in which I include listening and its cognates, but also hearing and its cognates – starts with Strange Multiplicity (1995), with consistent uses in subsequent publications. In the acknowledgments section of Strange Multiplicity, Tully writes that the most important Indigenous lesson he has learned is that “the primary practical ability is not speaking well but, like Little Wing, listening well” (1995, xv). This lesson has had a lasting influence on Tully’s approach and can be seen as an important part of the gift-gratitude-reciprocity relationship that has developed between Tully and Indigenous self-determination struggles over the past thirty years.3 Tully learned the importance of listening well from Indigenous people, and he learned about the transformative power of “participation in the non-violent relationships of treaty negotiations” (2014, 295) by spending three years at the Royal Commission on Aboriginal Peoples (rcap ) as an adviser, from 1993 to 1995, “listening to indigenous people tell their stories about treaties” (ibid., 293). In Strange Multiplicity, Tully uses the verb “listen” thirty-five times and the noun “listener” four times. He also uses the verb “hear” six times and the noun “hearing” eight times, including five mentions of “fair hearing.” Tully understands listening and hearing as part of a situated, dialogical mode of being with and knowing with others. Listening is employed in its ordinary meaning as the use of our auditory sense: “to hear attentively; to give hear to; to pay attention to (a person speaking or what is said)” (Rice 2015, 99). It is also used in the larger, phenomenological sense of a receptive and responsive mode of encounter that is not limited to verbal cues. We listen from a situated, embodied, placed-based, and moving perspective, and this means that in a way, we listen with all our senses. As Emily Beausoleil puts it, to listen “is to open oneself to being affected by the world,” and this “is to be in one’s body, always” (2017, 299). Hence, learning to listen well involves learning to be aware and sensitive to our corporeal condition, as well as to the diverse corporeal conditions of others.4

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Furthermore, as alluded to in the previous section, although Tully’s primary use of the vocabulary of listening refers to face-to-face dialogues, he also uses it in the context of dialogues with texts. In the example of reading Antigone, he emphasizes the crucial importance of paying close attention to the words used by the characters of the play to avoid assimilating their reasons to grand schemes from modern constitutional theory. Following Wittgenstein and Skinner’s advice to do justice to the text, he writes: “we carefully listen to Antigone’s plea for recognition, the reasons she gives and the contrary arguments of Creon in the dialogue between them … we listen intently to the evenhanded ways Haemon tries to reason with both sides” (1995, 174). Here, listening means carefully and intently attending to the dialogical form of the text and to the various positions of Antigone’s characters; this is what makes a fair hearing of both the play and of its diverse voices. In Strange Multiplicity, Tully argues that modern constitutionalism cannot respond justly to the strange multiplicity of voices that claim cultural recognition in the present age because it rests on an authoritative, monological language, inherited from European imperialism, that constrain culturally diverse voices to express their claims in “the language of the master” (ibid., 34). Therefore, Tully emphasizes that “the ethical watchword of the post-imperial age is always ‘to listen to the voices of others’ and to abide by the principle of ‘self identification’ in international law and elsewhere” (ibid.). This duty to listen is the “first step of mutual recognition, or audi alteram partem” (ibid., 35). With a broad survey of the history of contemporary constitutionalism, Tully contributes to dig up and rediscover a hidden, more dialogical language of constitutionalism in which audi alteram partem is conventional. For example, he surveys how early modern treaty negotiations between agents of the Crown and Indigenous nations of America involved “the mutual recognition of both parties as independent and self-governing nations” (ibid., 119). Rather than assimilating Indigenous peoples in a form of recognition foreign to them, agents of the Crown “simply listened to how the Aboriginal negotiators presented themselves in countless meetings” (ibid.). The duty to listen to the diverse voices of others in their own terms as the “ethical watchword of the post-imperial age” is Tully’s main use of the vocabulary of listening in Strange Multiplicity, from which most other uses are derivative. More generally, it is central to Tully’s

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view of genuine dialogue and reiterated in many of his publications since the 1990s. In the rest of this section, I examine its deployment in relation to speaking, perspectival ability, diversity awareness, and genuine dialogue as a transformative engagement. By repeated uses of the vocabulary of listening, often in combination with the vocabulary of speaking (and voice), Tully reminds the readers of the interdependency of speaking and listening for genuine dialogue in a global context dominated by Western, monological traditions of political thinking and characterized by listening deficit and the proliferation of false dialogue.5 Tully shares with Charles Taylor the view that humans are “dialogical animals,” meaning that “human being is basically being-with (Mitsein); and being-with in the sense of always in complex webs of interlocution” with “oneself and the practices of the self that accompany different modes of self-relationship,” “with one another, individually and collectively,” “with the living earth,” and “with the spiritual realm” (2018b, 754). This is the ground of the interdependency between speaking and listening, as well as the basis of their context dependence. For Tully, the “dialogical way” is “speaking and listening in turn,” and it endlessly “complement[s] the limited perspective of mine … correct[s] my tendency to write as if all the world is America, and the analogous tendencies of the other participants” (1995, 182); this is the antidote to monological self-centeredness. Furthermore, the standpoints of speakers and listeners affect dialogical dynamics, and ways of (not) speaking and of (not) listening mutually affect one another, especially so in the context of civic struggles calling into question problematic practices of governance. In writings following Strange Multiplicity, through a clarification of the relationship between power and freedom as “agonistic,” Tully emphasizes that the “fundamental democratic or civic freedom of citizens – of having an effective say in dialogue over the norms through which they are governed” is more than the freedom to speak out: “for it to be effective, it needs to be correlated with a duty on the part of the powerful to listen to theses voices and to respond with their reasons for the status quo: that is, to enter into an open dialogue governed by audi alteram partem. If the duty to listen and respond is ignored and dialogue suppressed, then civic freedom takes the many forms of civic dissent and disobedience to bring the powerful to the table” (2008a, 310; emphasis in original). As Susan Bickford pointed out, “politics is about the dynamic between the two [speaking and listening]” (1996, 4), and Tully’s view of listening is, in this sense, political listening.6

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In Tully’s work, listening to others is connected to diversity awareness and perspectival ability. For instance, he describes the interrelations between fellow passengers in the black canoe of Bill Reid’s sculpture, The Spirit of Haida Gwaii, as an intercultural dialogue in which “the ability to change perspectives – to see and understand aspectively – is acquired through participation in the intercultural dialogue itself. By listening to the different stories others tell, and giving their own in exchange, the participants come to see their common and interwoven histories together from a multiplicity of paths. … The Spirit of Haida Gwaii is designed to awaken and stimulate this dialogical capacity for diversity awareness” (1995, 25–6). In this account of dialogue as a dynamic, open-ended, exchange of stories “by speaking and reasoning non-imperatively” (2014, 279), listening opens what Bickford calls a “path,” a “passage,” a “bridge” “to another’s experience” (1996, 148). Although the path is always changing and never easy to travel, we may develop perspectival ability and become better travelers. With listening well and increased perspectival ability may come increased diversity awareness, the reconsideration of one’s view from others’ perspectives, and the possibility to modify one’s position in subtle or more profound ways. This is the transformative side of genuine dialogue. A change of position is, of course, the most visible output of genuine dialogue. However, an increased perspectival ability and diversity awareness may amount to a transformative engagement in a deeper way, even if less obvious, in that they may be transformative of our mode of being with others, leading us to think and act differently in the long run, moving “from an ethos of separation and power-over to interdependence and power-with” (Tully 2018c, xli), to cooperation and “non-violent cooperatively oriented contestation” (Tully 2014, 300). Beausoleil situates Tully’s work as part of a “recurrent turn to ethics as praxis” in recent political theory (2017, 294), a “dispositional ethics” of encounter “that privileges receptivity and responsiveness over pre-given moral codes” in a “world of uncertainties and contingencies” (ibid., 292). She writes that Tully’s most recent work on nonimperial (or genuine) dialogue among traditions “makes explicitly the link between a contingent, opaque, and dynamic world and a dispositional ethics.” Genuine dialogue “requires understanding that which exceeds one’s own traditional terms of disclosure, and concern for that which is not wholly intelligible in such terms. Such understanding and concern is grounded not in abstract moral

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principles but in deep openness, receptivity, and reciprocal responsiveness to the otherness of others – ‘a readiness to detach from habitual attachment to [one’s] forms of political thought’” (ibid., 297). In his posthumous On Dialogue (1996), physicist David Bohm highlights that attachment to our basic assumptions make them part of our identity. Such attachment is often strong enough to become a powerful obstacle to dialogue. When our basic assumptions are questioned (or seem to be questioned), we tend to defend them reactively, “often unconsciously,” and even against evidence (1996, 13; emphasis in original). Such defence mechanisms involve feelings in our body and an emotional charge that interfere with our freedom of thought and our ability to engage in dialogue. Bohm proposes dialogues during which we attempt to suspend our assumptions as they come out in order to observe them and to become aware of the connections between our partners in dialogue’s words, our assumptions, and our defence mechanisms. For him, this is a way to “become more familiar with how thought works” (ibid., 24) – the process. It is also an important step towards being able to consider our assumptions critically, especially the assumption of “absolute necessity” (ibid., 27), and perhaps loosen their grip over our receptivity and responsiveness to the otherness of others. Attachment to dominant forms of political thought is especially strong and pervasive when expressed and strengthened through state institutions and reflected in court decisions. Dale Turner (2021) exemplifies it well with the case of Canada. In R. v. Van der Peet (1996), the Supreme Court of Canada stated that Indigenous perspectives must be taken into account in Canadian courts, “yet do so in terms which are cognizable to the non-aboriginal legal system” (para. 49).7 For Turner, this means that Indigenous peoples “must articulate their perspectives in the language of the common law,” an imperative that was recast in Delagamuukw v. British Columbia (1997).8 This imperative “embodies one of the most destructive forms of colonialism in the relationship between Indigenous peoples and the Canadian state” since it is the contrary to“listening to Indigenous peoples in and on their own terms” (Turner 2021, 179) and conveying all the complexity and richness of their perspectives, that is, what Tully calls “self identification.” In the face of such colonial, assimilative false dialogue, Tully has enquired into the conditions of transformative engagement in genuine dialogues of comparative or transnational political thought.

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In “Deparochializing Political Theory and Beyond: A Dialogue Approach to Comparative Political Thought” (2016), Tully examines the challenges to genuine dialogue among and across traditions of political thought and discuss how his dialogue approach can meet these challenges. Part of his project is to explore the practice of the art of “deep listening” to cultivate “non-attachment” or “suspension” as a crucial disposition for transformative engagement into genuine dialogue. Here non-attachment or suspension relates to the main assumptions of dominant Western political traditions. Deep listening to the political thought of other traditions is introduced as a “preparatory exercise” (ibid., 60) that can contribute to de-centring dominant Western political traditions, to become aware of their limits, and to cultivate non-attachment to their assumptions. Tully suggests that one of the best ways to initiate dialogue and to make space for practices of deep listening is to engage in an exchange of story-telling and narratives rather than in the question and answer format, more likely to threaten our assumptions and trigger our defence mechanisms. It enables participants to introduce themselves in their own terms “and ‘own’ the space of dialogue when they speak, rather than being forced to speak within a set of prescribed norms” (ibid., note 50). Practices of deep listening also attend “to the embodied and placed-based dimensions of dialogue: being responsive to where the dialogue takes place, the setting, and the linguistic and non-linguistic interactions that make the participants feel comfortable with each other (ibid., 60). Exchanging stories through deep listening is meant to initiate a virtuous cycle of gift-gratitude-reciprocity relationships that prepare participants “for the agonistic dialogue to come” (ibid., 61). All the genres of speech acts in genuine dialogue are nonviolent and best carved as “‘invitations’ or ‘proposals’ to the listeners” (ibid., 60). As mentioned earlier, the genre of speech acts and the types of listening are interdependent. A sense of superiority like the one that drives the monological language of modern constitutionalism criticized by Tully is the exact opposite of a transformative engagement in genuine dialogue: it makes people “deaf and blind” (Tully 1995, 22), trapped in false dialogue. Listening well is a humble, patient, ethical, and political practice that is not easy and that takes time, but it may in the long run be the most efficient way to cultivate non-attachment and open paths to cooperation in a deeply diverse, interdependent, and

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increasingly polarized world. It is part of what Tully calls “being the change,” and it is developed through exemplars, educative practices of the self, and participation in diverse forms of genuine dialogues.

ove rvi ew Since the role of public philosophy is to address public affairs, this volume’s dialogue of reciprocal elucidation is structured both around theoretical/methodological questions and pressing political problems and civic struggles. It is made of six parts. The first part explores Tully’s public philosophy as a critical activity from three different angles. In chapter 1, Jocelyn Maclure and Daniel Weinstock argue that Tully tends to overplay the opposition and downplay the complementarity between his critical approach and a certain Anglo-American normative style of political philosophy. Maclure and Weinstock seek to attenuate the opposition and emphasize the complementarity by unpacking the coherentist and contextualist dimension of John Rawls’s moral epistemology. In chapter 2, Cressida Heyes addresses the issues of equity and inclusion in what she calls “capital-P-Philosophy – … the discipline as it has been institutionalized in US-dominated anglophone academia.” In line with Tully’s public philosophy as a critical activity, Heyes starts from the ground of struggles against oppressive practices in philosophy departments in the past decade to outline the discipline’s dominant climate and culture. She then shows how this culture is at odds with Tully’s methods, and with “pluralism” more generally. She concludes that feminist philosophy at its best “is exemplary of the public philosophy Tully describes.” In chapter 3, Michael Temelini seeks to retrieve and make more perspicuous the philosophy of education that supports Tully’s comparative and critical dialogical method. He provides a survey of Tully’s concept of comparative dialogue, and then considers how Tully has mobilized it as an exemplary teacher. Finally, he shows how Tully’s comparative dialogue challenges methods in political science, and social sciences and humanities more broadly. Part two of the volume focuses on Tully’s conception of democracy, citizenship, and civic freedom. In chapter 4, Charles Taylor sets the stage with an historical and critical survey of different meanings of the term “democracy.” He then argues that Western democracies are currently in a phase of democratic regression.

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Taylor concludes with the challenges that come with such regression and stresses the importance of Tully’s pathbreaking work for facing them. Chapter 5 by Robin Celikates is inspired by Tully’s methodological emphasis on how theory can learn from practice through exemplars. After highlighting the key importance of practices of dissent, contestation, and disobedience in Tully’s conception of democratic citizenship, Celikates draws theoretical lessons from the 2013 movement of protests in Turkey to argue that the practice of civil disobedience is more complex and political than is often suggested, including, to some extent, by Tully. In chapter 6, Dominique Leydet argues that Tully’s contrast between civil and civic modes of democratic citizenship portrays a reductive reading of citizenship within representative democracy. Based on a study of the Quebec students’ strike of 2012, Leydet maintains that Tully’s earlier distinction between restrictive and extensive democratic practices of citizenship better grasps what differentiates the activities involved in different but coexisting forms of democracy, while also delineating a shared space of political agency that captures the fluidity and diversity of citizens’ activities and self-understandings. In chapter 7, Antje Wiener explores the potential of Tully’s civic citizenship for approaches to global governance. She stresses that such view of citizenship as “unbound from the state” invites a novel way of theorizing global governance outside state-centric liberal international relations theories. It opens a theoretical space for norm generative agency. In chapter 8, Geneviève Nootens contributes to a theoretical approach to the democratization of relationships of governance in the globalization context. She focuses on how some of the current processes of contention and mobilization may actually constrain rulers and elites to make decision-making more responsive, more open, and more accountable to people who are subjected to it. Nootens highlights Tully’s fundamental contribution to our understanding of the diverse nature of practices of civic freedom. She also raises questions pertaining to his conception of democracy and people as its agents. In chapter 9, Simone Chambers concludes the second part with an investigation of the meaning of “reasonable citizenship.” Comparing Habermas and Tully’s views, she argues that despite some significant and important differences between them, they share a fundamental procedural view of “reasonable” that sees both the civil and civic citizens as limited by an essential accountability to fellow citizens.

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The third part of the volume engages with Tully’s public philosophy from the perspective of Indigenous intellectual cultures, legal traditions, and struggles for and of self-determination. In chapter 10, Taiaiake Alfred questions the purpose of reconciliation and argues that the current formulation of reconciliation in Canada purposefully ignores the fundamental colonial harm – which should be the focus of reconciliation efforts – in the interest of preserving colonial privilege. Telling the story of his people, Alfred shows that it is the disconnection from the land and the disruption of people’s ability to perpetuate their culture collectively that is the real harm of colonialism. Providing the exemplar of depollution, decolonization, and cultural restoration in the Mohawk community of Akwesasne, he lays out an alternate approach, resurgence, as the pathway to restoring the cultural integrity of Indigenous nations and regenerating the strength of Indigenous people through a reconnection of Indigenous life and culture to the land, then truly decolonizing Canada. This resonates with Tully’s view that the reconciliation of Indigenous and non-Indigenous people with each other is strongly connected to their reconciliation with the living earth (2018a). In chapter 11, Val Napoleon examines the role that Indigenous law has in maintaining or, where necessary, rebuilding civility – that Tully, in his response to Napoleon, prefers to call “civicness” – conceived as a condition for civic citizenship and democracy. She shows the key role of Indigenous law through two case studies, one about responses to housing and debt, the other about a deliberate citizenry rebuilding process. In chapter 12, Mike Murphy investigates Tully’s intuition that self-determination is a freedom that is vitally connected to the health and welfare of Indigenous individuals and communities, and conversely, that relationships of domination and oppression are fundamentally destructive of Indigenous wellbeing. Bringing Tully’s work into conversation with research in the fields of social epidemiology and social psychology, Murphy seeks to understand how the ongoing failure of states to recognize and respect Indigenous self-determination might be contributing both to the poor state of physical and mental health experienced by so many Indigenous communities in Canada and around the world, and to the significant health disparities which exist between Indigenous peoples and the more freely self-determining non-Indigenous peoples with whom they share a political space. Part four addresses Tully’s views of federalism and multinational democracies. In chapter 13, Stephen Tierney argues that Tully’s

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practical philosophy provides the tools with which both to understand federalism better as a flexible set of institutional arrangements that can help foster civic freedom, and to rethink the federal idea in a critical way as a form of political practice that has the potential to assist citizens in maintaining this freedom in the face of hegemonic forces, particularly in our age of globalization. In chapter 14, Helder De Schutter has more reservations about Tully’s conception of federalism. Engaging with Tully’s reflections on the European Union (eu ), he contends that seeking to construct an overarching European demos is of crucial importance for reasons of socio-economic justice, and that Tully’s concern with limiting the eu ’s powers ends up being conservative. While De Schutter criticizes Tully for being too preoccupied by the protection of the existing national demoi within the eu , Alain-G. Gagnon argues, in chapter 15, that Tully’s recent work tends to downplay power differential between majority and minority nations, which undermines the promise of multinational federalism. The fifth part of the volume studies various aspects of the practice of public philosophy as a practice of freedom and reflects on their implications for political philosophy. In chapter 16, David Owen seeks to elucidate the character of public philosophy through a focus on the issue of exemplarity. Owen explains that Tully’s public philosophy is committed to “ideals as exemplars” rather than to “ideals as principles” because the character of the ideal cannot be fully specified in terms of principles but must be gathered from performance. He characterizes public philosophy as a practice – in no privileged position – structured by a commitment to the ideal of civic freedom, which enables the formation of a community of practitioners who exemplify the change that they seek to bring about. In chapter 17, Jonathan Havercroft exemplifies Tully’s key practice of redescribing an existing norm as an exercise of freedom through a detailed analysis of Machiavelli’s uses of the words “excuse” and “justification” (as well as their cognates) in The Prince and The Discourses. Finally, in chapter 18, Duncan Ivison argues that Tully’s public philosophy offers an important alternative framework for thinking about the nature of political liberty that deserves closer critical attention. The chapter outlines key elements of this alternative approach in dialogue with some of the main existing approaches in recent political theory. Part six concludes the book with Tully’s substantial dialogical reply to the contributors in the spirit of public philosophy as he

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understands it, as a “gift-gratitude-reciprocity” practice. As Tully emphasizes, this volume is not the beginning of a dialogue, but the continuation of a dialogue of mutual learning that has been going on since his early years at McGill University. It is also political thinking in movement, as it can be when speaking and listening are genuinely connected, and speaker and listener are genuinely changing roles. n ot e s 1 In most cases, Tully uses interchangeably terms such as “dialogue of reciprocal elucidation,” “dialogue of reciprocal enlightenment,” “dialogue of reciprocal understanding,” “dialogue of mutual learning,” “dialogue of mutual understanding,” “critical dialogue,” and “genuine dialogue.” However, he stresses that the phrase dialogues of “reciprocal elucidation” is preferable when it comes to show how participation in such dialogues “brings about the transformative self-understanding of the participants” because “it brings into focus the central feature of interdependency” (2016, 60). 2 This may explain why Tully’s work is rarely mentioned in the literature on listening. For a notable exception, see Beausoleil (2017). 3 On Tully’s view of gift-gratitude-reciprocity relationships, see Tully (2018a, 2020). 4 On listening as a situated, embodied, place-based, and moving practice, see Coles (2004), Bourgeault (2016), Beausoleil (2017), and Shah (2021). 5 Tully distinguishes genuine dialogue (a matter of mutual understanding and concern) from two main types of false dialogue: strategic-instrumental (strategic) and deliberative-imperative (legislative) (see 2016, 53). 6 For a stimulating, complementary view of the “politics of listening,” see Bassel (2017). 7 R. v. Van der Peet. [1996] 2 scr 507. 8 Delagamuukw v. British Columbia. [1997] 3 scr 1010.

r e f e re n ce s Back, Les. 2013. The Art of Listening. London: Bloomsbury. Bassel, Leah. 2017. The Politics of Listening: Possibilities and Challenges for Democratic Life. London: Palgrave Macmillan. Beausoleil, Emily. 2017. “Responsibility as Responsiveness: Enacting a Dispositional Ethics of Encounter.” Political Theory 45 (3): 291–318. Bickford, Susan. 1996. The Dissonance of Democracy: Listening, Conflict, and Citizenship. Ithaca: Cornell University Press.

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Bohm, David. 1996. On Dialogue. London: Routledge. Bourgeault, Sophie. 2016. “Attentive Listening and Care in a Neoliberal Era: Weilian Insights for Hurried Times.” Etica & Politica / Ethics & Politics XVIII (3): 311–37. Coles, Romand. 2004. “Moving Democracy: Industrial Areas Foundation Social Movements and the Political Arts of Listening, Traveling, and Tabling.” Political Theory 32 (5): 678–705. Couldry, Nick. 2009. “Rethinking the Politics of Voice.” Continuum: Journal of Media & Cultural Studies 23 (4): 579–82. Dobson, Andrew. 2012. “Listening: The New Democratic Deficit.” Political Studies 60: 843–59. – 2014. Listening for Democracy: Recognition, Representation, Reconciliation. Oxford: Oxford University Press. Fiumara, Gemma Corradi. 1990. The Other Side of Language: A Philosophy of Listening. London: Routledge. Heckert, Jamie. 2011. “Listening, Caring, Becoming: Anarchism as an Ethics of Direct Relationships.” In Anarchism and Moral Philosophy, edited by Benjamin Franks and Matthew Wilson, 186–207. New York, Palgrave. Lacey, Kate. 2013. Listening Publics: The Politics and Experience of Listening in the Media Age. Cambridge: Polity Press. Lloyd, Justine. 2009. “The Listening Cure.” Continuum: Journal of Media & Cultural Studies 23 (4): 477–87. Morrell, Michael. 2018. “Listening and Deliberation.” In The Oxford Handbook of Deliberative Democracy, edited by Andre Bächtiger, John S. Dryzek, Jane Mansbridge, and Mark Warren, 238–50. Oxford: Oxford University Press. Owen, David. 2014. “On Global Citizenship and Public Philosophy.” In On Global Citizenship: James Tully in Dialogue, edited by James Tully, viii–xii. London: Bloomsbury. Rice, Tom. 2015. “Listening.” In Keywords in Sound, edited by David Novak and Matt Sakakeeny, 99–111. Durham: Duke University Press. Shah, Rajni. 2021. Experiments in Listening. Lanham: Rowan & Littlefield. Tully, James. 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. – 2008a. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. – 2008b. Public Philosophy in a New Key. Volume II. Cambridge: Cambridge University Press.

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– ed. 2014. On Global Citizenship: James Tully in Dialogue. London: Bloomsbury. – 2016. “Deparochializing Political Theory and Beyond: A Dialogue Approach to Comparative Political Thought.” The Journal of World Philosophies 1 (1): 51–74. – 2018a. “Reconciliation Here on Earth.” In Reconciliation and Resurgence: Indigenous-Settler Relations and Earth Teachings, edited by Michael Asch, John Burrows, and James Tully, 83–129. Toronto: University of Toronto Press. – 2018b. “Dialogical Animals.” Philosophy and Social Criticism 44 (7): 754–5. – 2018c. “Editor’s Introduction.” In Richard B. Gregg, The Power of Nonviolence, edited by James Tully, xxi–lxx. Cambridge: Cambridge University Press. – 2020. “On Resurgence and Transformative Reconciliation.” In Plants, People, and Places: The Roles of Ethnobotany and Ethnoecology in Indigenous Peoples’ Land Rights in Canada and Beyond, edited by Nancy J. Turner, 402–18. Montreal and Kingston: McGill-Queen’s University Press. Turner, Dale. 2021. “On the Politics of Indigenous Translation: Listening to Indigenous Peoples in and on their Own Terms.” In Routledge Handbook of Indigenous Studies, edited by Brendan Hokowhitu, Aileen Moreton-Robinson, Linda Tuhiwai-Smith, Chris Andersen and Steve Larkin, 175–88. London: Routledge. Wolvin, Andrew D. 2010. “Introduction: Perspectives on Listening in the 21st Century.” In Listening and Human Communication in the 21st Century, edited by Andrew D. Wolvin, 1–3. Oxford: Wiley-Blackwell.

pa rt one

Public Philosophy as a Critical Activity

1 Two Conceptions of Public Philosophy: A Conditional Defence of Contemporary Normative Theory Jocelyn Maclure and Daniel M. Weinstock

We both had the extraordinary good fortune of having Jim Tully as a teacher and a mentor. We both met him at a critical phase of our intellectual development. His passion for political philosophy and its history, his profound commitment to teaching and accompanying graduate students, the care and seriousness he brings to his scholarship, and his unparalleled generosity had a deep and lasting influence on us. He is one of the reasons why we are doing political philosophy today and his practice as a teacher and writer remains a regulative ideal for us. In this chapter, we want to focus on the relationship between Tully’s distinctive approach to political theory and mainstream Anglo-American normative political theory. It is clear in Strange Multiplicity (1995) and in Public Philosophy in a New Key (ppnk , 2008) that Tully wants to craft an original way of doing political theory. The epistemological and methodological underpinnings of his approach are exposed in influential papers such as “Wittgenstein and Political Philosophy” (1989) and “Political Philosophy as a Critical Activity” (2002). As it is of vital importance that political theory remains a plural and contested space in which a variety of approaches challenge each other in an agonistic but respectful way, political philosophers and theorists of all stripes are indebted to Tully for putting forward an original approach that converges and diverges with normative theory, critical theory, historical contextualism, genealogy, postcolonial theory, and so on.

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The general point that we want to make is that Tully tends to overplay the opposition and downplay the complementarity between his conception of “public philosophy” and at least a certain way of doing normative political philosophy, one that we have both espoused in our own intellectual paths. Our goal is to give the outline of an unabashedly normative style of political theory that withstands Tully’s main lines of criticism of mainstream AngloAmerican political theory.

1. m o r a l c o he re nt is m and reflecti ve e q u il ib r i um ’s n eg le cted resources Normative political philosophy deals with the moral dimensions of collective life and public institutions. It is the branch of normative ethics that is concerned with the political dimension of human life, which includes the principles that should ground public norms and institutions, the collective aims that we should pursue, and the political disagreements between fellow citizens. Because of its normative character, it is often thought to be universalistic and decontextualized in a problematic way. It would on this view be particularly vulnerable to the risk of hasty generalization and other inductive fallacies. Theories of justice or discrete normative claims that are contingent and local would according to this representation of normative political philosophy be presented as true or justified sub specie aeternitatis. Since normative theory is a repertoire of arguments about how things ought to be, it is also often thought to be moralistic and insufficiently democratic. Rather than leaving political perplexities and disagreements to public deliberation among free and equal citizens, it allegedly takes itself to be a freestanding source of normativity. Tully has his own versions of these charges. In the introduction to ppnk , he writes that mainstream political theorists assume that “there are universal normative principles that determine how citizens ought to act.” These are seen as, according to him, “unchanging principles that prescribe the limits of democracy” (2008, 8–9). One of the reasons why these charges are seen as plausible in many quarters of the social sciences and humanities is partly due to the use of thought experiments in normative ethics and political philosophy. The unending reflection on thought experiments such as the trolley problem or John Rawls’s “Original Position” can give

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the impression that normative political philosophy is located in an ethereal space of reasons disconnected from historical contingency and real world politics. Although we do not want to suggest that the use of thought experiments should be taken out of the political philosopher’s toolkit, the popularity of counterfactual imagination in normative theory arguably has had the unfortunate effect of overshadowing the other, and in our view more fundamental, aspect of the moral epistemology used by many theorists. As is well known, Rawls also relied on a coherentist and contextualist approach embodied in the method of “reflective equilibrium.” Rawls is perhaps partly responsible for this neglect, as reflective equilibrium appears at first sight to be a sideshow or an afterthought in his work, that is, a way to test a theory of justice that we arrive at independently through the original position.1 But the original position is just a thought experiment that helps us to loosen the grip of our own self-interest and to move closer to an impartial standpoint. The results that we arrive at in the original position, Rawls quickly adds, need to fit with firmly held “well-considered judgements.” If they do not, something has gone wrong with the thought experiment. One of the core features of Tully’s conception of public philosophy is that it starts from and grants a certain primacy to “practice” (ibid., 16). This would set public philosophy and normative political theory apart, because normative theorists in his view “tend to enter into a relationship with citizens under the horizon of a political theory that sets them above the situated civic discourses of the societies in which they live” (ibid., 8).2 We want to attenuate the contrast posited by Tully by unpacking the coherentist and contextualist dimension of Rawls’s moral epistemology. One of the attractive aspects of reflective equilibrium is that it attempts to find a middle ground between foundationalist positions according to which theory building starts from axioms or first principles that are true in themselves and skeptical positions according to which normative judgments have no truth value or are cognitively meaningless. As Rawls specified, reflective equilibrium starts not so much from “intuitions” but from “well considered judgements” that we have no reason to doubt, such as judgments about the wrongness of racial segregation or religious intolerance. Asserting, for instance, that it was wrong to take Indigenous children away from their family and

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put them in residential schools is not, today, a particularly controversial normative statement. We can, in Rawls’s terms, use it as at the very least a “provisional fixed point” in our reasoning. A coherentist approach claims that validity comes from the coherence between our moral judgments at all level of generality, from abstract principles such as freedom and equality to contextual practical judgments. One of the attractive features of moral coherentism is that it provides us with a heuristic that helps thinking about hard cases and intricate political disagreements. When confronted with disagreement about, say, fiscal policy or religious accommodation, the goal of the inquiry is to find the answer that fits best in our current structure of well-considered judgments. In some cases, this involves extracting the normative principles underlying the policy disagreement, and inferring what we see as the more natural implications of our shared moral commitments.3 Take, for instance, Mary Wollstonecraft’s essay A Vindication of the Rights of Women (2009 [1792]). The implacable force of her arguments for the equal dignity and rational capacities of women, and of their corresponding rights to be educated just like men were, most probably came from the fact that they were drawn from the web of beliefs defended by the Enlightenment philosophers and the French revolutionaries. How could one defend the end of the hierarchical and aristocratic ancien régime on the basis of the equal dignity of all rational beings while denying equal rights to half the population? This was all the more untenable that women like Wollstonecraft were performatively demonstrating that Aristotelian arguments stating that women could not use their rational faculties in an authoritative way were plainly false.4 Interestingly, Tully appears to be doing something similar when he finds in the history of Western political theory and practice principles such as the right to self-determination of peoples and the norms of mutual respect and recognition between nations, and then argues for a renewed political relationship between settler states and aboriginal peoples on the basis of these principles and conventions (1995; 2008, chap. 8). Tully’s own normative political theory is perhaps nowhere clearer than in his work on what he called “multinational democracies.” Nations have, according to him, duties with regard to how they interact with other nations, as well as with regard to the inclusion and recognition of their own internal diversity (2001). There is also another path that theorists working with the reflective equilibrium heuristic can take. In addition to inferring practical

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conclusions from abstract principles, they can also justify specific moral judgment by comparing them to other specific moral judgments, such as when we find it incongruous to write off same-sex couples from the very definition of marriage within a broader culture in which many forms of exclusion and marginalization of gays have been eliminated. This path is particularly useful when general principles are too indeterminate to yield one specific answer to a specific political disagreement. In most cases of value-laden political disagreement, both routes crisscross. For example, the case for physician-assisted suicide includes both, one the one hand, inferences from moral autonomy and the meaning of a good life (which includes the way we manage its last phase) and, on the other hand, consistency with existing action-guiding principles and practices such as the patients’ rights to refuse life-saving medical treatment and the use of sedation in palliative care. The legalization of physician-assisted dying arguably better coheres with our other relevant well-considered moral judgments with regard to chronic illnesses and end of life care.5 Contrarily to what is often presumed, moral coherentism is anything but static and complacent with regard to current moral common sense. As Rawls put it in the first edition of A Theory of Justice (1971), moral theory is “socratic.”6 The ongoing interpretation of our moral commitments and exploration of how they are related to one another can lead us to the conclusion that a particular theory or a practical judgment is wrong. The back and forth between the abstract and the particular is ongoing. Reflective equilibrium is a permanent process, sensitive to the evolution of our moral and political life. In sum, reflective equilibrium should be seen as nothing more or less than a fallible heuristic that philosophers have at their disposal to think about the very real ethical enigmas that citizens and institutions have to grapple with. It is fallible, but has the merit of proceeding from transparent premises and inferences. It offers a way to approach our moral and political perplexities without awaiting the resolution of longstanding metaethical debates about the existence of moral facts and the epistemic status of normative judgments. Because of the training and ongoing practice of academic researchers, normative political theory is a unique and, to our mind, indispensable intellectual stream that need to flow in public discourse. We think that academic political philosophers and theorists

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should see public philosophy and technical writing for journals as equally valuable aspects of their work. Conversely, finding the institutional channels that let public philosophy flow in public deliberation is one of the ways that contemporary societies can move toward greater enlightenment, in Joseph Heath’s renewed sense (2014). This can involve reciprocal engagement between academics and civic activists – Tully’s own favourite form of public philosophy – as well as intervention in print and digital medias or collaboration between theorists and policymakers inside and outside government. Political theory can both be normative and profoundly democratic (Weinstock 2006; Maclure 2013). Although there might be political theorists who “enter into dialogues with fellow citizens under the horizon of a political theory that frames the exchange and places the theorist above the demos” (Tully 2008, 4), normative political theory can and should be thought as nothing more than one of the streams of public discourse. As we pointed out above, one of the most common criticisms of mainstream normative theory is its alleged universalistic ambition. Our discussion of this recurrent criticism will be brief because we think that this line of criticism rests on a conceptual misunderstanding. In the analytic tradition, questions about the ontology and epistemology of morality are addressed in metaethics rather than in first order normative ethics. There is a wide variety of positions available on whether moral values are mind dependant or not and whether moral judgments are truth apt or not. A normative theorist can indeed be a moral realist who thinks that values exist in an independent but accessible space of moral reasons. He can also be moral a constructivist according to whom moral truths are the outcomes of an adequate reasoning procedure. It is also possible, like Rawls, to remain largely agnostic with regard to the metaphysics of morals and to defend a more modest form of contextual constructivism which applies to a limited domain (such as political justice or public reason).7 One can even defend normative positions on the backdrop of a thoroughly skeptical position such as Richard Rorty’s postmodern ironism.8 Hence, criticizing the universalism of mainstream normative theory requires careful analyses of the background metaethical commitments of individual theorists. It is sufficient, for our purposes, to note that naïve moral universalism is not a necessary concomitant of normative ethics. As sketched out above, moral

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coherentism is a cognitivist but nonfoundationalist theory that starts from our prevailing moral language (Maclure 2020). As such, it also starts, like Tully’s style of political theory, from an aspect of our practice as embedded moral and political agents.

2 . t h e tu rn towa rd noni deal a n d in st it ut io na lly grounded p o li ti ca l ph i losophy In the foregoing section, we hope to have shown that resources exist within the mainstream of contemporary Anglo-American political philosophy to avoid one of the main criticisms that have been levelled by Tully, namely, that it is unhelpfully abstract and universalistic. Rather, we have shown that in as much of it implicitly or explicitly deploys some form of coherentism, it is necessarily rooted in the concrete moral and political issues of the day. A coherentist method such as reflective equilibrium uses our considered convictions as key building blocks with which to construct theories, and those convictions are in large measure drawn from the way in which theorists confront the very real moral and political issues that they confront as theorists, but also as citizens. In this section, we want to highlight two further but related ways in which contemporary political philosophy, as written by many contemporary normative political philosophers, escapes some of Tully’s concerns. These have to do with the turns toward non-ideal and institutionally grounded modes of theorizing about the political. The idea of nonideal theory is also one that we owe to Rawls, though he defined it in contradistinction to the project that he saw himself as engaged in A Theory of Justice (tj ). In that work, Rawls identified nonideal theory with noncompliance. In tj , Rawls has the parties in the “original position” select principles of justice “on the supposition that they will be generally complied with” (1999, 215). Nonideal theory has to do with “which principles to adopt under less happy circumstances” (ibid., 216). The examples given by Rawls of the kinds of tasks that might be assigned to nonideal theory have to do, among others, with the restriction of civil liberty that might be required in a social context in which intolerant and even violent sects exist, or the restrictions of the principle of equal political liberty that might have been required in some sets of historical circumstances.

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The kinds of restrictions on freedom that are defined and justified within the sphere of criminal law might be thought of as another example of nonideal theory, thought of in this manner. In the last decade or so, “non-ideal theory” has become a clarion call for many political philosophers, a slogan with which to express disagreement with the way in which they see political philosophy as having been practiced by “ideal theorists” of an earlier generation. There are at this point probably as many ways of defining nonideal theory as there are theorists that have identified themselves with it.9 At the most basic level, nonideal theory can be distinguished from the kind of philosophical purity advocated by the late G.A. Cohen, who believed that conceptual and normative analysis was completely distinguished from the realm of fact. For Cohen, thinking most notably about justice meant thinking about a concept that could be applied just as readily on Alpha Centauri as on Earth.10 Nonideal theory might in distinction to this be taken simply as the denial of the thesis that facts do not matter to the foundational task of political philosophy. Even “morally neutral” facts, such as the conditions of finitude that characterize human life, are to be excluded on Cohen’s way of characterizing ideal theory, and thus nonideal theory might be construed simply as the claim that “facts matter” when it comes to defining concepts such as justice and equality. Another way of thinking about nonideal theory and its scope stems from Rawls’s characterization, described above. Nonideal theory on this construal has to do with the ways in which the principles of justice defined in ideal circumstances (as well as their “lexical” ordering) might be pared down or reordered in contexts marked by noncompliance. One way of thinking about nonideal theory is to follow Rawls in thinking that ideal theory forms the basis for theorizing in nonideal circumstances. According to this view, we get ideal principles of justice straight, and then we make compromises in response to various forms of human weakness and imperfection. A more radical way of thinking about it, one that we might see as issuing from Madison’s exhortation that we “economize on virtue” in thinking about institutions, might focus on the ideal of compliance, but argue that human motivations are always mixed, and that principles of justice must integrate the fact that there is always a tendency to injustice or less-than-full justice in the moral economy of human agents. (A second way would be to deny that the best way to respond to the fact of noncompliance is by paring down or

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limiting principles developed on the basis of the assumption of full compliance. We risk falling prey to the “fallacy of the second best” in thinking that justice in the context of noncompliance is an approximation of justice under ideal circumstances). The distinction between ideal and nonideal theory can also be thought of as defined according to the degree of abstraction that theorizing engages in, in particular abstraction with respect to institutional contexts. For example, there are any number of ways of thinking of what global justice requires. One, that we might label “cosmopolitan,” tries to imagine, in an ideal-theoretical way, what principles of justice should be upheld and what institutional arrangements should obtain, on the assumption that no prior institutional context need be taken into account in determining what human agents owe to one another. Cosmopolitan thinking thus treats as variable what more “non-ideal theoretical” theorists treat as parametric, namely, the international system, made up of states that are set up at least in part to realize the interests of their own domestic populations. One can make even finer distinctions: for example, some global justice theorists will tacitly assume a system of states that all roughly comply with both internal norms (for example, respect for human rights of domestic populations) and external requirements (adherence to principles of just war, respect of treaties, and the like), while others will try to work out a structure of norms adequate to a world in which “rogue” and “failed” states exist.11 Though the debate between “ideal” and “non-ideal” theorists has sometimes been seen as an either-or choice,12 we believe that, at least when it is construed in this way, that is, as pointing to lesser or greater degrees of abstraction from actual institutional arrangements, both approaches have their role to play in a pluralist landscape of political theorizing. Sometimes, it is important to cast a critical look upon institutional arrangements as a whole, for example when these arrangements prove insufficiently flexible to accommodate some range of legitimate interests or rights, and sometimes it is important to determine how best we can engage with institutions such as they are, even when those institutions are far from ideal. Indeed, we believe that the espousal by Tully of an “agonistic” conception of democracy and of democratic struggle in the deeply unjust institutional reality that characterizes modern settler states can be seen as an instance of this kind of nonideal theorizing, one that takes the “non-ideal” reality of settler states as given. In characterizing what

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he terms “agonistic free play,” Tully writes that “given that power acts on the mental and physical ‘actions’ of agents, there will always be some range of free play even in the most tightly regulated regimen” (2008, 125). What is implied in this passage is that thinking in a utopian mood about the political world we might have had outside of a context of colonial oppression does not preclude thinking about the way in which freedom might be conceptualized and realized in a world shot through with conflict and oppression. We follow Jacob Levy in holding that there is no point on the spectrum between institutional abstraction and institutional concreteness that represents the point that best enables political philosophers to access normative truth. In deciding to pitch an inquiry somewhere along that spectrum, one must first realize that one is doing so, that is, that there is a decision that is being made in holding some aspects of social and political life as fixed or not, and second, one must have a reason for thinking that in the context of a particular investigation, a particular level of abstraction is contextually what is most appropriate. As Levy puts it, “It is always incumbent on normative theorists to identify which features of the world they take to be reformable, which idealizations they are making, which they do not and are not, and why” (2016, 314). In surveying the whole of James Tully’s work, we believe that he has at various stages occupied different points along this spectrum, always as a response to a particular predicament that in his estimation called for a lesser or greater level of abstraction. The turn toward nonideal theory understood in the manner that we have just developed has in recent years opened the door to a kind of theorizing within mainstream Anglo-American political theory that we think connects with Tully’s call in “Public Philosophy as a Critical Activity” to “start from and grant a certain primacy to practice” (2008, 16). This is perhaps nowhere more apparent than in the area of democratic theory. Contemporary political philosophy has tended to construe and to theorize about democracy at a very high level of institutional abstraction. The debate that dominated democratic theory in the late 1990s and early 2000s for example opposed “epistemic democrats,” such as David Estlund (2009), who thought that democracy’s main justification lay in its epistemic virtue, that is, in its greater tendency than other modes of social decisionmaking to achieve correct answers to policy problems, and what one might refer to as “moral democrats,” such as Thomas Christiano (2008), who argue that the main warrant for democracy lies in its

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representation of all citizens as moral equals. The debate, aimed at determining what the ultimate warrant for democracy (as opposed, say, to what Estlund termed “epistocracy”) is, was pitched at a very high level of abstraction from actual democratic institutions and practices, as befits an inquiry into such justificatory questions. In recent years, however, political theorists have sought to investigate the institutions through which really existing democracies, as we might call them, have sought to realize the ideals of democracy through institutions. Their goal has not been, moreover, to dictate to these institutions from an external theoretical perspective, but rather to engage in a kind of an immanent critique of these institutions, one which seeks to take seriously the claims of such institutions to realize some aspect of both the individual good life and the values that are constitutive of democratic orders, and to engage on that basis in an internal critique of the way in which such institutions are realized. No democratic institution has received greater theoretical attention of this kind in the recent literature than has the political party. After having been neglected by political theorists for decades (although not, it must be said, by political scientists), the ways in which human societies have organized themselves democratically in part through the institution of the political party have become a central focus of much political theoretical writing (see most notably Rosenblum 2010; Muirhead 2014; White and Ypi 2016). The method employed is very much one that gives priority to practices. Here is how White and Ypi describe their approach, “rational reconstruction”: “its point of departure is an existing social practice – one that may display variations, inconsistencies, and degenerate forms, but also a basic coherence from a conceptual point of view. On the basis of theoretical reflection disciplined by empirical observation, one builds an analysis of the normative presuppositions structuring the activities of those who take part in, preserve, extend, reproduce, or contest the practice” (2016, 3–4). We take this methodological statement to be very much in line with the second of the characteristics that Tully describes his own approach to public philosophy on the basis of: “to disclose the historical conditions of possibility of this historically singular set of practices of governance and of the range of characteristic problems and solutions to which it gives rise” (2008, 17). Political parties could very well not have arisen, and they may very well disappear. They result from an historically contingent set of circumstances, and they give rise to an endogenous set of ways

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in which to realize the ideals of democracy (but also to an endogenous set of problems) that could not simply have been read off an abstractly expressed conception of “democracy.” Public philosophy, for both Tully, and White and Ypi, involves taking seriously the historically and spatially situated set of practices through which human agents have come to organize their political lives, and to understand them from the point of view of the participant in these practices. Now, the development of an institutionally concrete political philosophy remains a work in progress. Theories of distributive justice are in particular still being debated at a level of abstraction that does not clearly connect with the institutions of distributive justice – fiscal regimes, and the governmental structures through which public goods are delivered, for example. But the rise of a nonideal theory that takes institutional practices seriously, and that engages in critique of them on the basis of the values that are inherent to them rather than according to an externally determined set of values, suggests that political philosophy is moving in precisely the direction that Tully has recommended, even as it focuses on practices different from those to which Tully has himself concentrated his attention.

co nc lu si on There is no doubt that some political philosophers operate at the level of abstraction with respect to practices and to the actual predicaments of ordinary human agents that Tully derides in his work. But to sum up our brief reflections in this chapter, we would like to make the following observations. First, such abstract political philosophy, in as much as it is conscious of that from which it abstracts, and does not pretend to be the only way in which to practise political philosophy, has its place within a pluralistic landscape of theorizing. If we range political philosophers along a scale on the basis of those aspects of our world that they abstract from, there is no reason to rule out theorists occupying opposite ends of that spectrum, one that includes both pure conceptual analysis and theorizing deeply engaged in particular struggles. Second, we have claimed that even political philosophy that might seem to occupy quite an extreme position at the abstract end of that spectrum are actually much more contextualist in their method than might at first glance be thought. Methodological Rawlsians in particular insist on a coherentist connection between conclusions of arguments in political philosophy

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and “considered convictions” formed in particular historical and sociological circumstances. And third, political philosophy has resolutely taken a “non-ideal” turn, a phrase that can be taken to denote both the fact that political philosophy must at least in one of its voices be rooted in institutional settings, and the fact that human agents that operate within those institutional settings are possessed of mixed motives, a fact that has to be taken into consideration in engaging in the task of institutional design. In the light of this, we (perhaps presumptuously) claim Jim Tully as a methodological ally rather than as a foe. Though his voice differs from ours, we would like to think that we have not so much departed from his teachings as adapted them to different concerns, and articulated them in a different voice. n ot e s 1 The importance of the method of reflective equilibrium has nonetheless been made clear by political philosophers who have been greatly influenced by Rawls, such as Norman Daniels (2003). See also Norman (1998). 2 See also Tully (2008, 18), where Tully contrasts his approach with the “metaphysical and universal tradition oriented to discovering and prescribing limits.” 3 As conflict between abstract values often lies at the core of political disagreements, reflective equilibrium requires thinking about how to interpret shared abstract values and how they relate to one another. 4 See also Harriet Taylor Mill and J.S. Mill’s arguments for women’s rights in, respectively, The Enfranchisement of Women and “The Subjection of Women.” 5 Carter v. Canada (Attorney General), 2015 scc 5, [2015] 1 s.c.r. 331. 6 “Moral philosophy is Socratic: we may want to change our present considered judgements once their regulative principles are brought to light. And we may want to do this even though these principles are in perfect fit. A knowledge of these principles may suggest further reflections that lead us to revise our judgments” (Rawls 1971, 49). 7 Rawls’s contextualism is more visible in Political Liberalism (2005) than in A Theory of Justice. In Political Liberalism, the constructivist and the coherentist layers of his moral epistemology are still at play, but Rawls further develops his contextualism by drawing on what he calls the principles latent in the background political culture of a democratic

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regime. He extracts from our shared public culture a normative conception of society as a fair system of cooperation and a normative conception of the person as a free and equal citizen. These notions that must then be built into the normative theory of justice do not come from a point of view from nowhere but from the political morality of real world political communities. For Rorty (1989), our habit of expressing our moral commitments in terms of propositions is a rhetorical way of saying “this is what we believe in here.” It does not entail that we should not defend the rights of workers or gays, but simply these moral judgments are contingent. Two recent attempts at mapping the distinction between ideal and non-ideal theory are Stemplowska (2016) and Valentini (2012). This is the way Cohen characterized his way of thinking about philosophy to Daniel Weinstock in a private conversation at Oxford University some time around 1990 or 1991. See more formally Cohen (2009, esp. chap. 6). Rawls’s Law of Peoples (2001) can be seen as an attempt to combine these two modes of theorizing, beginning as it does with a derivation of principles for a just world order that apply to compliant states, and ways of dealing with the unfortunate circumstances that emerge from states that flout such norms, or from states afflicted with burdens that call for global solidarity. See for example in the context of global justice theorizing the debate that occurred within the pages of Ethics and International Affairs between Peter Singer and Andrew Kuper. The debate was sparked by Kuper’s essay (2002).

r e f e re n ce s Christiano, Thomas. 2008. The Constitution of Authority: Democratic Authority and Its Limits. Oxford: Oxford University Press. Cohen, G.A. 2009. Rescuing Justice and Equality. Cambridge, ma : Harvard University Press. Daniels, Norman. 2003. Justice and Justification: Reflective Equilibrium in Theory and Practice. Cambridge: Cambridge University Press. Estlund, David. 2009. Democratic Authority: A Philosophical Framework. Princeton: Princeton University Press. Heath, Joseph. 2014. Enlightenment 2.0. New York: HarperCollins. Kuper, Andrew. 2002. “More than Charity: Cosmopolitan Alternatives to the ‘Singer Solution.’” Ethics and International Affairs 16 (1): 107–28.

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Levy, Jacob. 2016. “There Is No Such Thing as Ideal Theory.” Social Philosophy and Policy 33 (1–2): 312–33. Maclure, Jocelyn. 2013. “La philosophie politique analytique et ses critiques.” In Ceci n’est pas une idée politique: Réflexions sur les approches à l’étude des idées politiques, edited by Dalie Giroux and Dimitrios Karmis, 261–88. Québec: Presses de l’Université Laval. Maclure, Jocelyn. 2020. “Context, Intersubjectivism, and Value. Humean Constructivism Revisited.” Dialogue. Canadian Philosophical Review 59 (3): 377–401. Muirhead, Russell. 2014. The Promise of Party in a Polarized Age. Cambridge, ma : Harvard University Press. Norman, Wayne. 1998. “Inevitable and Unacceptabe? Methodological Rawlsianism in Anglo-American Political Philosophy.” Political Studies 46 (2): 276–94. Rawls, John. 1971. A Theory of Justice. Cambridge, ma : Harvard University Press. – 1999. A Theory of Justice. 2nd edition. Cambridge, ma : Belknap Press. – 2001. The Law of Peoples. Cambridge, ma : Harvard University Press. – 2005. Political Liberalism. New York: Columbia University Press. Rorty, Richard. 1989. Contingency, Irony, and Solidarity. Cambridge: Cambridge University Press. Rosenblum, Nancy. 2010. On the Side of the Angels: An Appreciation of Parties and Partisanship. Cambridge, ma : Harvard University Press. Stemplowska, Zophia. 2016. “Non-Ideal Theory.” In A Companion to Applied Philosophy, edited by Kasper Lippert-Rasmussen and Kimberley Brownlee, 284–96. Oxford: Wiley-Blackwell. Tully, James. 1989. “Wittgenstein and Political Philosophy.” Political Theory 17 (2): 172–204. – 1995. Strange Multiplicity. Cambridge: Cambridge University Press. – 2001. “Introduction.” In Multinational Democracies, edited by Alain-G. Gagnon and James Tully, 1–33. Cambridge: Cambridge University Press. – 2002. “Political Philosophy as Critical Activity.” Political Theory 30 (4): 533–55. – 2008. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. Valentini, Laura. 2012. “Ideal vs Non-Ideal Theory: A Conceptual Map.” Philosophy Compass 7 (9): 654–64. Weinstock, Daniel. 2006. Profession éthicien. Montréal: Presses de l’Université de Montréal.

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White, Jonathan, and Lea Ypi. 2016. The Meaning of Partisanship. Oxford: Oxford University Press. Wollstonecraft, Mary. 2009 [1792]. A Vindication of the Rights of Women, edited by Deidre Shauna Lynch. Third edition. New York: W.W. Norton.

2 Justification, Pluralism, and Disciplinary Discontents; or, Leaving Philosophy Cressida J. Heyes

I started my undergraduate degree in philosophy, politics, and economics (ppe ) in 1989. Because it was so eclectic (I hesitate to say interdisciplinary as that sounds too avant-garde and far too intentional for the jumble of courses I took), and because I was at Oxford (which is a strange, archaic world unto itself), I failed to identify any distinctive qualities of the discipline of philosophy early in my academic career. I reinforced my naïveté by taking an ma in political science at McGill in 1993, where professors James Tully and Charles Taylor – both progressive, historically minded, and engaged with real politics – were wrangling a large group of smart and savvy graduate students in political philosophy that included feminist scholars, scholars of Indigeneity, union organizers, and other assorted lefties. In that same year both Tully and Taylor relocated with much fanfare from political science to philosophy at McGill, and because my first degree is in ppe it seemed simple enough to take my Commonwealth Scholarship and move upstairs for the PhD. That is the main – or, at least, the originary – reason I ended up in philosophy. Not until I had nearly completed my PhD – cosupervised by the wonderful Aristotle scholar Marguerite Deslauriers – did I realize I was in a beleaguered minority (women) working in a reviled subfield (feminist philosophy). I defended a dissertation in this novel area in 1997, and also only with hindsight realized that I was one of the first generation to do so. The scholars I was reading in the 1990s invented feminist

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philosophy as a field, they didn’t get to study it. I went on to two tenure-track jobs at research universities in philosophy departments, got tenure without any fuss, and was promoted to full professor in 2009 on the strength of two monographs – both also interventions in feminist philosophy. On the face of it my career has been smooth sailing, but beneath the glassy surface has lurked a number of dangerous currents. Given how I got to philosophy, it is ironic that in 2013 (after exactly twenty years) I changed my own appointment to relocate my office and my tenure home from philosophy to political science at the University of Alberta. This is not an essay about my own experience, although I will say that Jim Tully’s kind and practical mentorship has helped me thrive in good times, and survive in bad. His work has also been intellectually helpful to me in thinking about these various twists and turns in the larger context of the politics of capital-P-Philosophy – by which I mean (and this is important) the discipline as it has been institutionalized in US-dominated anglophone academia (not all the things philosophy has meant historically, might be taken to mean now, or will mean if we agitators get our way). In this essay I want to show that Philosophy has a culture of rejecting precisely the methods that Tully’s well-known account of “public philosophy” articulates. Challenges to this culture often travel under the sign “pluralism,” and questions of pluralism in Philosophy are at a crucial historical juncture: they have reached a tipping point between clinging to old practices of judgment that attempt to bring the new pluralism under their purview, and a potentially radical dissolution of established structures of power and value. I want to start, however, with some tawdry on the ground practicalities of exactly the kind that Tully’s public philosophy invites us to consider but that many philosophers would rather not notice.

p h il o so ph y’ s di s contents As some of you who follow the twists and turns of the academic press will have noted, Philosophy has had a hard time of it over the past decade, and perhaps especially so in the period between 2013 and 2015 – the early so-called “teenie” years of the twentyfirst century – when this article was conceived, presented, and first revised. Recall:

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· The extraordinary litany of anonymous anecdotes on What Is It Like to Be a Woman in Philosophy? – a blog founded in 2010 that now contains enough evidence to provide a harrowing picture of a discipline shot through with everyday sexism (and racism, homophobia, ableism, age discrimination, the exercise of class privilege, intellectual and political conservatism, unabashed nastiness). (What Is It Like?) · The 2012 case of Colin McGinn, who resigned from a professorial position in philosophy at the University of Miami reportedly to avoid the consequences of a complaint by a woman graduate student whom he had promised to turn into a genius, and with whom he engaged in painful sexual double entendres sometimes under the guise of philosophical conversation. In October 2015 the student filed a Title IX lawsuit against McGinn, his colleague Edward Erwin, and the University of Miami, for sexual harassment, defamation, and failure to act properly in response to a complaint.1 (The complaint was settled in spring 2016 on undisclosed terms.) · The fall 2013 site visit and subsequent report by the American Philosophical Association (apa ) Committee on the Status of Women on the Philosophy Department at the University of Colorado Boulder that found endemic sexual harassment, other sexualized unprofessional behaviour, and bullying, and that led to the university’s administration appointing an external chair, suspending graduate admissions, and announcing their intention to implement sweeping culture change (Hardcastle, Desautels, and Fehr 2013). · The February 2014 disclosure that a student at Northwestern had brought a Title IX suit against the university for failing to protect her from the negative consequences of bringing a complaint of sexual assault against senior philosophy professor, Peter Ludlow. Ludlow in turn sued various media outlets and the student for defamation, and brought his own Title IX suit against the university (see McCarthy and Mutnick 2014; Schuman 2014; Leiter 2014a). By February of 2015 all suits had been dismissed, and in November Ludlow resigned from Northwestern (McCarthy 2015).

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I drafted this paper in the spring of 2014, based on events that were unfolding around that time. In the very hours after I first delivered it in Montreal there was an explosion of online interest in another case involving a senior male philosophy professor’s alleged sexual misconduct, with the publication on a popular youth website of a blogpost entitled “I Had an Affair with my Hero, a Philosopher Who’s Famous for Being ‘Moral’” (Anonymous 2014). In subsequent discussion it became clear that this article referred to Thomas Pogge (professor of philosophy at Yale), and more allegations were made by other individuals that he had used his position of power and authority to seduce and, in some cases, harass or even assault vulnerable and subordinate women, as well as that Yale had failed to respond adequately to complaints (ProtectingLisbeth 2014; see also Neghaiwi 2011). (By the summer of 2016, Pogge was cleared of sexual harassment charges by a Yale inquiry, even as concern within the profession about his past conduct mounted [Remnick 2016]). As I first revised this paper in the fall of 2014, there was an enormous online querelle surrounding the behaviour of Brian Leiter, the founder and editor of the Philosophical Gourmet Report, which prominently featured criticisms of his interactions with women colleagues.2 Although the University of Colorado Boulder department has announced the reopening of its graduate program for admissions and in early 2016 appointed a new external chair, an October 2014 Chronicle article alludes to disciplinary action against four male philosophy faculty (the president had earlier published a hard-hitting video press release, no longer available online, describing some of the circumstances) (Wilson 2014). Since then, a number of professors have left the department amid disciplinary or legal battles surrounding their conduct (Kuta 2014, 2015; Huckabee 2015; University of Colorado Boulder 2015). Like all the other feminists in philosophy departments I know, these publicized cases are subtended by my own experience of a parade of visitors to my office, emails from despondent colleagues, and conversations in conference hotel bars about the litany of similar abuses our students in particular and women in general endure in Philosophy.3 The media circus has focused on the capacious category “women in philosophy,” and complaints generally centre on a tangled combination of sexist utterances, sexual harassment, and the belittling of feminist philosophy as a field of study. I want to say two things about this construction of the problem with disciplinary culture. First, my

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view is that all these things are politically connected, and that we will not see an end to even the bluntest forms of discrimination and harassment in Philosophy until we also have greater intellectual pluralism, especially greater respect for (and willingness to engage and be changed by) the traditions of critical study Tully identifies as central to the emergence of “public philosophy.”4 Although my argument in this paper touches on this point, I don’t have space to defend this position independently. I remain deeply suspicious of the level of hostility evinced by those who claim, for example, that treating women well within Philosophy can be separated entirely from whether feminist philosophy is a legitimate enterprise. The idea that one could dismiss a large, highly variegated, and well-moderated sub-discipline tout court, without familiarizing oneself with the work within it most likely to conform to whatever a judging individual considers excellent, is the very definition of prejudice. This point was brought home to me when I was doing the research necessary to edit the four-volume set, Critical Concepts: Philosophy and Gender (Heyes 2011), which consists of a comprehensive collection of previously published essays that assembles the best and most representative feminist scholarship on this conjunction of themes. The volumes themselves include seventy-five essays that were originally published between 1979 and 2009 and that touch on topics and methods ranging from the feminist politics of Descartes’s view of reason, to the role of the family in Black feminist thought, to how feminist philosophy contributes to the study of logic. It is hard to imagine that all of the seventy-five essays in those four volumes, representing massively diverse (and often dissensual) views, methods, and styles, are universally so unphilosophical – relative to whatever universe of discourse the critic considers to be “real philosophy” – as to be worthy of a priori intellectual dismissal. The critic looking for tightly made analytic arguments; for close textual engagement with canonical figures; for philosophical claims deeply situated in the history of ideas; for scholarly familiarity with any extrafeminist literature one cares to name; for positions that treat gender as a concept relatively autonomous of actual women or that engage closely with empirical claims about gendered persons – all will find something somewhere in feminist philosophy to suit their justificatory tastes. To dismiss feminist philosophy as a field, then, cannot be premised on any actual assessment of its various intellectual merits. Even to say, as I have heard philosophers outside the field say

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suspiciously often, and suspiciously without any reference to particulars, “there’s a lot of bad stuff in feminist philosophy,” hardly distinguishes it from any other area. As Erin Tarver points out, such dismissals do not have to be performed with a self-conscious disdain for women, and, indeed, given the self-beliefs philosophers typically evince (“we are very enlightened and capable of making objective judgments”) this would be rather unlikely. They could be motivated by implicit bias, which considerable psychological evidence now indicates is widespread in practices of academic judgment as elsewhere, even as philosophers hotly deny that they are vulnerable to it (Tarver 2013). This evidence shows that our stated beliefs that we are egalitarian and unswayed by considerations of gender or race (where most of the experimental work focuses) in inappropriate contexts are typically contradicted by our actions, which indicate a tacit commitment to socially sedimented sexist or racist attitudes. For example, results reveal that subjects (including from the targeted group) are more likely to rate the same cv more highly when it comes under a man’s name than when the same information is presented under a woman’s name (e.g., Steinpreis et al. 1999), although those same subjects deny if asked directly that men and women with the same qualifications should be treated differently in a job application. Abstract learning about progressive ideas appears to have relatively little impact on implicit bias, which makes it especially cognitively challenging: those who have spent some time propositionally rehearsing their anti-sexist or anti-racist views still have implicit biases, although they may have made themselves more likely to believe that they do not.5 In my own (considerable) experience of intellectual dismissals of feminist philosophy, they have never been accompanied by a desire to discuss any particulars (as if feminist philosophy must be of a piece, and a shoddy one too), and they do often feel palpably linked to the abjected and subordinate status of most of its practitioners (as if this field cannot be worth taking seriously because the people who do it are not important). The debate about equity in Philosophy has been ontologically and politically limited in a second way: the isolation of the category “women” from the justice struggles of other much more marginal groups has served in all-too-familiar ways to sideline the “other exclusions” in the discipline. Philosophy is overwhelmingly white – far more white than it is male, in fact – and is largely populated by

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lifelong upper-middle-class people with elite educations, who study (and often tacitly feel themselves adequately represented by) a canon of European male thinkers (see Park 2014). Among this population, of course, are some women. Almost none of these people have a disability or other life circumstances that would prevent them from working extremely hard, long hours at a high level of concentration, without significant interruption, at least for the early years it takes to establish a career; almost none of them have a communicative disability. Philosophy is also intensely competitive in ways that reinforce privilege and conformity. Without an elite undergraduate degree and a lot of economic security it is hard to get into a prestigious graduate program; without a prestigious graduate degree it is hard to get any kind of job; without a willingness to publish work that closely conforms to narrow standards of scholarly excellence (that apply to topic, method, figures invoked, and venues in which work is published) it is hard to get anywhere at all. To put it a bit differently, choosing to gamble on a career in philosophy requires a tremendous risk-tolerance that indexes to multiple axes of privilege, while painstakingly inching forward in that career is only made possible by tremendous risk-aversion. All deviance from strict norms of professional behaviour and scholarly commitment established by the very demographically narrow previous generations is risky in this environment. These strictures do not apply only to women, and, conversely, in a few cases women who are very privileged may not experience them as unduly constraining. This crude sketch highlights the tremendous complexity of the problems of equity and exclusion in Philosophy, and serious limitations on the ways those problems are typically constructed, including by people who believe themselves very “progressive.” Put more positively, the teenie years also saw a much higher level of visibility – both within Philosophy and in the academic press – for those who sought to change the prevailing climate. Recall: · The founding of a number of summer diversity institutes for undergraduates (or prospective graduate students) from underrepresented groups, of which the best known is Philosophy in an Inclusive Key (piksi ), which has been at the Rock Ethics Institute since 2006, and now has offshoots in Boston, at Brown University, and the biennial piksi -Logic at Northeastern (see apa 2020).

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· The founding of “Pluralist’s Guide: A Philosopher’s Guide to Graduate Programs,” by Linda Alcoff, Paul Taylor, and William Wilkerson in 2010 (Pluralist’s Guide). · The companion website What We’re Doing about What It’s Like (What We’re Doing). · Both the apa (in 2013) and the feminist journal Hypatia (in 2014) started to offer small seed grants for “diversity and inclusiveness” initiatives. · The Gendered Conference Campaign, the goal of which is to “out” as harmful and encourage revision of philosophy conferences (or similar academic events) at which all the invited speakers are men (Gendered Conference Campaign 2014). · A series of senior feminist philosophers taking leadership roles in the American Philosophical Association. For example, Sally Haslanger served in 2013–14 as Eastern apa president, following Linda Martín Alcoff’s term and preceding Louise Antony’s (who was in turn followed by Eva Kittay, Nancy Fraser, and Anita Allen). Other apa initiatives of the past decade include a taskforce on a code of conduct, another on diversity and inclusion, and a major 2013 policy reform on best practices for addressing sexual harassment – all established by scholars determined to organize to remedy the dismal climate in Philosophy. · A series of five opinion pieces on the exclusion and marginalization of women in philosophy (by Sally Haslanger, Linda Martín Alcoff, Peg O’Connor, Rae Langton, and Louise Antony) published by the New York Times in autumn 2013. I could go on, but you get the gist. On the one hand, Philosophy seemed to have been suddenly exposed, revealed as one of the last bastions of blatant male chauvinism in the academy – a throwback discipline, within which an all-white old boys’ club thinks junior women are a standing reserve for emotional labour and sexual favours. Members of the club liked having women graduate students and adjuncts in place not only to serve the functions of maintaining more prestigious programs and doing the labour of teaching lower-level courses, but also as a pool of potential sexual partners, a captive audience for their self-aggrandizement, a medium for indulging their narcissism without the risks of rejection typically encountered on dating sites. At the same time, the sexual exploitation of junior women by senior men has enabled the intellectual

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discounting of women in philosophy, perhaps especially by junior men (who are, it is worth noting, far more numerous than the powerful academic seniors whose behaviour seems most egregious). After all, one can say, he only recommended her, or hired her, or admitted her, or gave her an A, or mentored her, because he wanted to sleep with her or is sleeping with her. Because junior men in philosophy – graduate students, pretenure instructors – typically lack feminist political analyses and are rarely adept at grasping the complexities of power and relationships, they often perceive exploitative interest in their female peers from senior men as desirable intellectual attention or unfair promotion, in an environment where both face time and jobs are very scarce. Many of the anecdotes on the What Is It Like? blog describe this level of petty peer-to-peer resentment. On the other hand, I am not sure anything in the last decade was any worse than it used to be, and it might have been better: the visibility of the problems was partly a consequence of political struggle against them. Even the revelations of the cases of sexual misconduct by senior men (and often, publicity for the ways their universities ignored complaints or even covered up wrongdoing) would, until not long prior to that point, perhaps, have remained covered up indefinitely. In reading and hearing about what it is like to be a woman in philosophy, there is a clear sense that although powerful norms of silence and dismissal still surround complaints about bullying, sexual harassment, and discrimination, there is now a significant minority of colleagues to whom some victims, at least, can reliably turn for principled assistance. These colleagues, in turn, may be victimized for speaking out, but if they have the capacity and courage to stand firm they may be able to solicit considerable support from an electronically-mediated global community, and focus the various forms of external pressure that can be mobilized onto resolving particular problems.

t u l ly ’s p ub li c phi losophy In 2008 James Tully revised and republished a now-celebrated paper entitled “Public Philosophy as a Critical Activity” as the lead essay in his two-volume collection Public Philosophy in a New Key. The paper defends a view of “public philosophy” that is simultaneously practical, critical, and historical, and that has four defining characteristics. The first of these is that it “grants a certain primacy to

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practice” by starting from objections raised to political life by those who argue that traditional modes of description and reflection fail to grasp how the actual practices of politics lead to forms of oppression that are impossible to speak (Tully 2008, 16). Tully’s example of this failure is borrowed from Cavell’s analysis of Ibsen’s 1879 classic feminist play A Doll’s House. Nora, the deceptive and constrained wife, is always already the doll in the doll’s house to her husband Torvald, and hence her capacity to make claims of reason within the context of the gender roles marriage entailed in her time and place is interrupted from the outset. “She is deprived of a voice in her political world,” says Tully, which prompts him to ask the key question: “How do we attend to the strange multiplicity of political voices and activities without distorting or disqualifying them in the very way we approach them?” (ibid., 20). In other words, how can any of us know whether our unarticulated and perhaps even scarcely articulable a priori commitments to what constitutes a legitimate political claim in the worlds where we have become comfortable might be a block to another constituency’s capacity to make the very claims that matter most to them? Although it seems abstruse, for me this question is vital and immediate: living on Treaty 6 land, I often wonder whether the norms of political rationality and communication I teach students in Alberta are colonial mechanisms preventing Indigenous ways of knowing from being expressed. I both model and cultivate in those I mentor a kind of articulate self-discipline that has been central to my own professional success, but it is not a viable undertaking for my students with lives that require a different way of speaking, or a different pace. From the other side, the incessant judgment that my own work is “not real philosophy” is never delivered as praise; it always gestures to a deficiency at the same time as it relieves the judge of any intellectual responsibility to receive and comment on what has actually been presented. Such judgments, Kristie Dotson points out, are primarily concerned with showing how a current exemplar is unlike the worthy tradition that precedes it: “By relying upon a presumably commonly held set of normative, historical precedents, the question of how a given paper is philosophy betrays a value placed on performances and/or narratives of legitimation. Legitimation, here, refers to practices and processes aimed at judging whether some belief, practice, and/or process conforms to accepted standards and patterns, i.e. justifying norms” (2012, 5). Philosophy

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exhibits, Dotson argues, a “culture of justification,” within which these exercises of legitimation are highly prized. They involve lining up philosophical projects (especially projects by scholars whose intellectual approach – or, indeed, their minority status itself – invites a priori skepticism) in order to evaluate whether they “fall within the purview of a certain set of commonly held, univocally relevant justifying norms” (ibid., 8). To understand how Tully’s method helps us to work against the closed circuits here – from whichever side – we need to understand his other criteria for a public philosophy. This philosophy will also, he says, ask after the conditions of possibility for the political problems constituted by its own form of life, especially for the languages and practices that generate them. Central to this asking is the method of genealogy, as developed by Foucault and his contemporary interpreters. Genealogy is a way of writing history that refuses progressivist narratives in the interest of tracing how a multitude of techniques and institutions can converge to create a particular system of meaning. Foucault’s classic example is his genealogy of power in relation to punishment in Discipline and Punish: the emergence of disciplinary power, as exemplified by the panoptic prison, is a gradual development inspired by economic, institutional, and cultural change over several hundred years that never had a systematic organizing goal, but that develops its own internal dynamics and logics. Finally, Tully’s practical philosophy is always in self-conscious relation to the struggles of citizens who are practically engaged with attempts to change the form of life. The evacuation of real political praxis from political theory, or even just the attempt to formulate theories of justice prior to their application to political struggle, Tully argues, will always be liable to replicate the complacencies of theory. It is noteworthy that in the 2008 revision of his essay Tully calls his attempt to encapsulate political theory in this vein an attempt to develop a “public philosophy” (not a “public political theory”), as this term has complex connotations. “Public philosophy” usually designates the attempt to take the lessons of academic contemplation and apply them to real-world problems. Although in many ways it is an admirable endeavour, and one I have participated in myself, it is also prone to precisely the kind of methodological problem Tully’s approach seeks to avoid. The temptation of public philosophy is to evacuate the complexity of pluralism from the discussion in order to bring conceptual clarity to the confused masses.

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This is what happens when an analytic philosopher debates abortion using a series of increasingly confusing trolley problems while never once uttering the word “women”: the on-the-ground realities of prochoice politics (which centre unavoidably on the travails of pregnant women) are tidied up, but thereby emptied of much of their emotional, economic, social, and political salience.6 Thus here is the second lesson I take from Tully’s essay: the background shared understandings that define the edges of the system of meaning depend for their effectiveness on not being seen as such. As Tully puts it, “freeing ourselves from the problematisations and practices in which we think and act is difficult because participation tends to render their shared patterns of thought and reflection and rule-following and rule-contesting prereflective and habitual. They come to be experienced as necessary rather than contingent, constitutive rather than regulative, universal rather than partial” (2008, 32). When practices of governance are successfully revealed as both contingent and oppressive, however, the whole edifice starts to crumble – and the more it crumbles, the more of a cascade effect develops. The habits and norms of philosophy-as-usual suddenly reached a tipping point, where habitual practices of justification broke down, in an interestingly dramatic (even violent) way. Suddenly practices of justification that previously could not be made visible as such were revealed as parochial, as having their own genealogies, and thus became open to contest. Colin McGinn’s extensive efforts at self-justification using many of the norms of philosophical sparring, for example, revealed in inadvertently satirical mode the poverty and narcissism of a previously agreed upon form of life. To pick perhaps the sorriest case, McGinn wrote to his graduate student to tell her that he “had a hand job imagining you giving me a hand job.” Later clumsily defending himself against charges of inappropriately sexualizing the relationship, he argued online that in the context of his research on prehension such an innuendo-laden phrase was simply a joke about manicures.7 For many years this kind of self-defence would have been received – in the world of philosophy if nowhere else – as a claim worthy of epistemic pondering, or perhaps a smirk (or both). It is not that powerful men in Philosophy are sleazier than in other sectors: recall President Bill Clinton equivocating under threat of impeachment that he did not have sex with that woman, or would-be Supreme Court Justice Brett Kavanaugh (at a Senate Judiciary Committee hearing into allegations that he had

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committed sexual assault) blustering, red-faced, about the definitions of “boofing” or “Devil’s Triangle.” The apparatus of justification that sustains the discipline, however, has for too long been complicit with its injustices. Today these self-justifications can be called out as both sleaze and self-deception made possible by systemic relations of power, and that description gets widespread uptake. In the context of this large and multivocal battle, let me follow one line of argument that makes sense of how the lines have been drawn.

p l ur al is m an d judgment The ranking survey of anglophone philosophy graduate programs known as “The Philosophical Gourmet Report” (or formerly as “The Leiter Report” after its founder and impresario, Brian Leiter) came to visibility at the same time as I completed my PhD (Brogaard and Pynes 2018). I was on the market in 1996–97, and that was precisely the first year of its web presence. Until 2010, The Leiter Report was the only place to find out how philosophy departments were thought of in the discipline as a whole, although it was regularly charged with defending an elite status quo, methodological irregularities, and reflecting dominant conservative norms about what constitutes “good philosophy.” As I have mentioned, in 2010, Linda Alcoff, Paul Taylor, and William Wilkerson founded the “Pluralist’s Guide: A Philosopher’s Guide to Graduate Programs” – an alternative and less comprehensive source of online information that aims: “to provide students and their mentors with some informed, crowd-sourced ideas about two things: 1) where any student might productively cultivate an interest in American Philosophy, Continental Philosophy, Critical Philosophy of Race and Ethnicity, Feminist Philosophy, and glbt Studies; and 2) where students from traditionally under-represented populations might reasonably expect to find a welcoming environment (as much as philosophers, or graduate programs, are ever welcoming)” (Pluralist’s Guide). The introduction of the Pluralist’s Guide provoked a firestorm of criticism from Leiter and his supporters, who thought (as had been said of them) its methods shoddy and its endorsements parochial. In her 2013 analysis “Three White Men Walk into a Bar: Philosophy’s Pluralism,” Bonnie Mann sorts through these criticisms, identifying contrasting kinds of pluralism at play. First, coming from Leiter, she identifies an understanding of pluralism as the intellectual

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sophistication to enjoy a diversity of philosophical figures or traditions. Indeed, Brian Leiter’s personal claim to intellectual fame has been that he is a Nietzsche scholar who identifies with the analytic tradition yet works in a law faculty – confounding the analytic and continental divide as well as the solipsism of philosophy. Philosophy departments that describe themselves as “pluralist” typically are making a claim about the variety of methods and traditions that inform faculty scholarship. Most often, if further parsed the claim is that the department isn’t committed to exclusively teaching either analytic or continental traditions. The authors of the Pluralist’s Guide are interested in intellectual pluralism of this kind, but it is not their sole meaning for the term pluralism. Rather they are also interested in including “philosophy’s historical Others” both as subjects of study and as philosophers within the plurality. They want, in Mann’s words, to “expand the scope of the term to mean also the women and the people of color and the queers, and those whose geographical rootedness is elsewhere in relation to Europe and its settler states” (2013, 739). What provoked Leiter, furthermore, was not only that a plurality of standpoints among philosophers might prove a valuable epistemic resource, and that the relationship of those philosophers to histories and structures of oppression might matter to that plurality, but also, on Mann’s analysis, that the introduction of a ranking guide announces the intention of those philosophers to make judgments. To make this case, Mann reminds us of Hannah Arendt’s remarks on judgment. For Arendt every practice of judgment necessarily relies on a prejudice – an unexamined belief anchored in the past that exerts social force. Judgment-as-usual typically consists of applying standards that subsume the particular under the universal – getting it right in applying the rule. Arendt says that below that practice is always a prejudice that simply accepts the standard of measure. Judgment can, however, “mean something totally different, and indeed it always does when we are confronted with something which we have never seen before and for which there are no standards at our disposal” (Arendt 2005, 102). This second meaning of judgment comes to the fore especially in moments of historical crisis, which of course for Arendt were the danger of totalitarianism or the risk of nuclear annihilation. In the early teenies, however, Philosophy seemed to be having a little historical crisis of its own. As Mann puts it:

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In the face of a brand new historical situation, i.e., a situation in which philosophy’s Others inhabit the space of philosophy and belong to the discipline of philosophy in greater numbers than ever before, the task of judging philosophy must be undertaken anew, without the support of the old banisters, i.e., the old standards, that have supported philosophers’ judgments of themselves and their practices in the past. The “panel of experts” consulted by The Pluralist’s Guide’s founders are tasked with making distinctions between better and worse programs, from what appears to many philosophers in the field to be a rogue point of view. It is only “rogue” however, because it is brand new for philosophers to judge themselves on the basis of an openness to pluralism as the practice of non-sovereignty, on the basis of its welcoming of and cultivation of formerly excluded interlocutors. (Mann 2013, 745) It will be obvious that there are similarities between Tully’s Wittgensteinian analysis and Mann’s Arendtian one, both centred, in different ways, on pluralism as a set of practices. Rather than grasping and applying a definition of pluralism (respect for a variety of established intellectual traditions) to a new case (Pluralist’s Guide) and finding it wanting, we might instead ask what reasons can be given for (or against) introducing this new understanding of pluralism. We can (and should) engage in practical reasoning, rather than attempting a metatheoretical clarification within which Philosophy’s right to continue to use “pluralism” in a singular way remains uncontested. By exchanging reasons within the recognized form of the university ranking system (a game of power if ever there was one) we attempt to have a new – but not entirely unrecognizable – meaning of “pluralism” gain traction. And by insisting on the right of previously excluded interlocutors not only to make our case but also to judge others on the basis of that case, we raise the stakes. Feminist philosophers have been doing this in peripheral ways for at least thirty years, albeit often by engaging the most immanent forms of critique. Why have our critiques of the discipline itself become compelling only now? There are three entirely practical reasons: a) (as Mann says) we are more numerous than ever before; b) the dispersal of Philosophy’s others throughout departments – no more than one radical outlier per unit has long been the implicit norm – can now be mitigated by communications technologies (in other words, we can

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find and talk to each other with a few clicks); and c) our claims have purchase within other evolving language games: the games of lawsuits, policies on harassment and discrimination, public testimony about injustice, or statistics, for example. Taken together these institutional changes provide a kind of scaffolding on which epistemic challenges can hang; those challenges are then debated by others in the community. Another way of showing the usefulness of the analysis I am sketching here is to look a little more closely at some of the reactions to the exposure of Philosophy’s conditions of possibility, its practices of pluralism, and its norms of justification. As I mentioned, in fall 2013 three members of the apa Committee on the Status of Women conducted a site visit at the University of Colorado Boulder philosophy department, at the department’s (probably somewhat coerced) request, to evaluate the climate for women and other underrepresented groups. Their hard-hitting report, which was originally intended to be confidential, was published by the university’s administration on 31 January 2014. It contains a paragraph that, when I read it alone in my office, brought tears to my eyes: “The Department uses pseudo-philosophical analyses to avoid directly addressing the situation. Their faculty discussions revolve around the letter rather than the spirit of proposed regulations and standards. They spend too much time articulating (or trying to articulate) the line between acceptable and unacceptable behavior instead of instilling higher expectations for professional behavior. They spend significant time debating footnotes and ‘what if’ scenarios instead of discussing what they want their department to look and feel like. In other words, they spend time figuring out how to get around regulations rather than focusing on how to make the department supportive of women and family-friendly” (Hardcastle, Desautels, and Fehr 2013, 7). As the early days of February ticked over, I saw this paragraph on Facebook, on blogs, and in email correspondence. It really resonated. What I think is described here is a dogged insistence on finding the necessary and sufficient conditions of what will count as (for example) sexual harassment, or uncivil behaviour. It is a practice of trying to identify the absolutely correct place to draw a line and fretting over what falls just on either side, rather than of stepping back and looking at the larger picture that holds us captive. It is also, sadly, a mode of exercising the skills cultivated by the discipline – fine-grained argumentation; hypotheticals,

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counterfactuals, and thought experiments; and abstraction from the complex realities of social and political life. As well as being a way of doing what is comfortable, it is a way of avoiding the uncomfortable: as the quote implies, to judge in this way is to evade talking about the lived experience of the harassed and marginalized within your work community; to evade taking responsibility for modes of social and affective engagement that others find oppressive and hateful; and to evade critical reflection on the unexamined judgments that shape what counts as “being a good philosopher.” The people having these conversations are the same people who are willing to debate what “giving me a hand job” really means, and whether one can censure a colleague in every possible linguistic world. Back to Arendt, who says: “in every historical crisis, it is the prejudices that begin to crumble first and can no longer be relied on.” They “easily ossify, turning into something that by nature they most definitely are not – that is, into pseudotheories, which as closed worldviews or ideologies with an explanation for everything, pretend to understand all historical and political reality” (2005, 102–3).

de ep p lu rali sm Seriously engaging voices that speak in philosophical idioms already accepted and familiar is still a profoundly difficult task that requires training and talent, which is one reason why it is hard for some to see it as politically limited. Being a good philosopher by the contemporary standards of the mainstream English-speaking world is extraordinarily demanding and depleting in ways that are not often acknowledged. Many of the philosophers hired into stable academic jobs since the public universities started to turn seriously neoliberal in the late 1980s have vanquished hundreds of competitors, and to succeed in the profession have had to squirrel themselves away in offices, reading and writing alone, for much of their working lives. The main skill we learned in that culturally and temporally very specific world is to judge. When I go to talks – and I typically go to talks that are not hosted by philosophy departments – I find myself sitting in the audience, thinking conflictedly, “yes, but why didn’t you anticipate the objection that…?,” or “that’s such a superficial allusion to Butler. Why don’t you do a close reading?,” or “that’s just a claim! It’s not an argument!” I suppose a so-called real philosopher might breathe a sigh of relief at this confession: perhaps there

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is hope for me after all. Over the years, however, I have come to think that although this propensity to judge in some moments reflects well-honed analytic skills on my part, it also often reflects an a priori hostility to creativity, interdisciplinarity, and the unfamiliar. If I can suspend that mental script and be open to the possibilities in what I am hearing, then I learn much more, and am much better able to connect with a wider range of academics. These skills of openness and ability to connect come terribly hard: to become adequately expert to succeed in the public world of academia, most of us philosophers have given up the time that others spend on socializing outside of work, relationships, family, or avocations. We have sacrificed lessons we could have learned in other contexts about cooperation, risk-taking, generosity, emotional intelligence, mindfulness, and ourselves. Thus genuinely attending to the “strange multiplicity” of voices in philosophy today is not work for which most philosophers are fitted. William Connolly, in describing the evolution of his account of political pluralism, writes that it requires an Arendtian “ethos of critical responsiveness.” As he says, this process “often involves painful work on dimensions of your interpretation of principle” (Schoolman and Campbell 2008, 308). What Connolly calls “deep pluralism” goes beyond what Arendt or Mann describe. It requires an understanding of the visceral dimension and affective intensity of this work; this understanding, he suggests, meets its grandest challenge in the profound temptation to resent the plurality of the human condition. As he says, “To feel such resentment is to seek to repress, or worse, others whose philosophy-creed challenges self-confidence in the universality of your own” (ibid., 309). I suggest that philosophy has been forced to grapple with its deep resentment of the necessary, unavoidable fact of human plurality. Within its current form of life that resentment has been mollified by a culture of judgment that fails to examine its own prejudices. We may now see a horizon on which the possible end of that form of life appears. Echoing Linda Zerilli, I will say that my analysis here is in some ways a refusal to allow political problems to be treated as epistemological – or even philosophical– concerns (Zerilli 2009). Feminist philosophy is in this context an interestingly liminal category. It is both of Philosophy, in that it uses its methods and concepts promiscuously, yet necessarily in tension with the discipline’s history. The kind of feminist philosophy I most value evinces a deep concern with the irreducible plurality of the social categories it deploys; a

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keen sense of the interconnectedness of various struggles for justice within which gender is a necessary axis of analysis but not the only or primary one; a close relationship with both empirical social science and political movements; and intellectual horizons that typically extend beyond department walls. Note again that this orientation is also precisely the reason that feminist philosophers doing work like mine are the people most often asked, in the very title of Dotson’s article, “how is this paper philosophy?” or, again, told, “you’re not a real philosopher.” Perhaps so. Nonetheless, at its best (in my view) feminist philosophy is exemplary of the public philosophy Tully describes, as it transforms a discipline stuck in “the limited exchange of practical reasons over reforms within a practice of governance and its modes of argumentation,” to “a broader exchange of practical reasons over the comparative values of a range of possible practices and the relations of governance, forms of subjectivity and practices of freedom they institutionalize” (2008, 35). n ot e s The title of this chapter is an homage to Gayle Salamon’s 2008 musing on leaving the discipline of philosophy in part because of its refusal to engage with queerness. I would like to thank Dimitri Karmis and Jocelyn Maclure for the invitation to participate in this project and for their editorial assistance, as well as, of course, Jim Tully for his decades of support both intellectual and emotional. 1 The story is reported in Zweifler (2013); the entire, detailed account of McGinn’s alleged actions and correspondence can now be read in the lawsuit filed by Monica Morrison (Morrison v. University of Miami, McGinn, and Erwin 2015) available online via the Miami Hurricane site at http://www.themiamihurricane.com/wp-content/uploads/2015/10/ Morrison-Complaint-2.pdf. 2 On 10 October 2014 Brian Leiter announced his intention to step down as editor of the pgr after the 2014–15 rankings were completed. See his account of that decision at Leiter (2014b). 3 See Jennifer Saul’s description of what it was like to set up the “What Is It Like to Be a Woman in Philosophy?” blog, especially: “Almost instantly, I was deluged with stories of sexual harassment … Many, many stories came in of women who had left philosophy due to harassment. I was shocked by these stories, and struggled to schedule them to appear, four a day, two weeks in advance. It kept up this way for months. There is still a

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steady stream of stories of this sort … As my real name came out … I was increasingly contacted by women who were afraid to post their stories online. These stories were worse than the ones I was posting … Because so many people hesitate (rightly, I suspect) to tell their stories even in personal emails, I found that some weeks I was spending more than half my nights having Skype conversations with victims of sexual harassment” (Saul 2014). These are “social-democratic theorists,” “ecological philosophers,” “feminist political and legal philosophers,” “philosophers of multiculturalism, multinationalism, Indigenous rights and constitutional pluralism,” “theorists of empire, globalisation, globalisation from below, cosmopolitan democracy, immigration and justice-beyond borders,” and “postcolonial and post-modern scholars” (Tully 2008, 19–20). For more recent philosophical work on implicit bias that includes reference to the psychological literature, see Kelly and Roedder (2008) and Saul (2013). This real example was provided by an exasperated colleague who was present in the audience at a debate organized by a campus antichoice group. For critical discussion of how analytic philosophy has treated the “moral issue” of abortion, see Houle (2014, esp. 69–74). During June and July 2013 McGinn wrote extensive self-justifications on his now-deleted blog which was at http://mcginn.philospot.com (especially entries on 14.07, 23.06, 07.07, 09.07, 01.07 2013). For discussion of the hand job example and its media representation, see Hess (2013).

r e f e re n ce s Alcoff, Linda Martin, Paul Taylor, and William Wilkerson. 2016. “Pluralist’s Guide: A Philosopher’s Guide to Graduate Programs.” http://sites.psu.edu/pluralistsguide/ American Philosophical Association. 2020. “Quick Guide to Undergraduate Diversity Institutes in Philosophy.” https://cdn.ymaws. com/www.apaonline.org/resource/resmgr/diversity/guide_to_ undergraduate_diver.pdf. Anonymous. 2014. “I Had an Affair With My Hero: A Philosopher Who’s Famous for Being ‘Moral.’” Thought Catalog, 26 April. http://thoughtcatalog.com/anonymous/2014/04/i-had-an-affair-with-my-hero-aphilosopher-whos-famous-for-being-moral/. Arendt, Hannah. 2005 [1956]. “Introduction into Politics.” In The Promise of Politics, edited by Jerome Kohn. New York: Schocken Books.

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Brogaard, Berit, and Christopher A. Pynes, ed. 2018. The Philosophical Gourmet Report: A Ranking of Graduate Programs in Philosophy in the English-Speaking World. http://www.philosophicalgourmet.com. Dotson, Kristie. 2012. “How Is This Paper Philosophy?” Comparative Philosophy 3 (1): 3–29. Gendered Conference Campaign. 2014. http://feministphilosophers. wordpress.com/gendered-conference-campaign/ Hardcastle, Valerie Gray, Peggy Desautels, and Carla Fehr. 2013. “Report on Site Visit Conducted by the American Philosophical Association’s Committee on the Status of Women Site Visit Program at the University of Colorado Boulder Department of Philosophy, 25–28 September 2013.” Document available at: https://www.scribd.com/doc/203684450/ American-Philosophical-Association-s-Committee-on-the-Status-ofWomen-report-on-CU-Boulder-philosophy-department. Hess, Amanda. 2013. “At the nyt , All the News That’s Fit to Print Does Not Include Sexually Harassing Emails.” Slate, 15 August. http:// www.slate.com/blogs/xx_factor/2013/08/05/colin_mcginn_sexual_ harassment_case_the_new_york_times_should_publish_the.html. Heyes, Cressida J., ed. 2011. Critical Concepts: Philosophy and Gender. Abingdon, uk : Routledge. Houle, Karen. 2014. Responsibility, Complexity, and Abortion. Lanham, md: Rowman and Littlefield. Huckabee, Charles. 2015. “U. Colorado Settles with Philosophy Professor It Was Seeking to Fire.” Chronicle of Higher Education, 13 May. http:// chronicle.com/blogs/ticker/u-of-colorado-settles-with-philosophy-professorit-sought-to-fire/98817. Kelly, Daniel, and Erica Roedder. 2008. “Racial Cognition and the Ethics of Implicit Bias.” Philosophy Compass 3 (3): 522–40. Kuta, Sarah. 2014. “cu -Boulder to Pay Philosophy Professor Brad Monton $185K to Resign.” Daily Camera, 21 November. http://www. dailycamera.com/cu-news/ci_26985850/cu-boulder-pay-philosophyprofessor-brad-monton-185k?source=pkg. – 2015. “After Year of Scandal, cu -Boulder Philosophy Department Sees Latest Departure.” Daily Camera, 3 January. http://www.dailycamera. com/cu-news/ci_27248228/after-year-scandal-cu-boulder-philosophydepartment-sees. Leiter, Brian. 2014a. “Northwestern Answers Complaint in Title IX Lawsuit.” Leiter Reports: A Philosophy Blog, 21 February. http:// leiterreports.typepad.com/blog/2014/02/northwestern-answerscomplaint-in-title-ix-lawsuit.html.

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– 2014b. “pgr Update #3: pgr 2014 Will go Forward.” Leiter Reports: A Philosophy Blog, 10 October. http://leiterreports.typepad.com/ blog/2014/10/pgr-update-3.html. Mann, Bonnie. 2013. “Three White Men Walk into a Bar: Philosophy’s Pluralism.” Radical Philosophy Review 16 (3): 733–46. McCarthy, Ciara. 2015. “Northwestern Professor Resigns after Sexual Harassment Investigation.” The Guardian, 3 November. http://www. theguardian.com/us-news/2015/nov/03/northwestern-professor-peterludlow-resigns-sexual-harassment. McCarthy, Ciara, and Ally Mutnick. 2014. “Attorney: Student Filed Police Report with Help of Northwestern Political Science Professor.” Daily Northwestern, 13 February. http://dailynorthwestern.com/2014/02/13/ campus/attorney-student-filed-police-report-with-help-of-nupolitical-science-professor/. Neghaiwi, Brenna Hughes. 2011. “Harassment Victims Speak.” Yale Daily News, 30 September. http://yaledailynews.com/blog/2011/09/30/ harassment-victims-speak/. Park, Eugene Sun. 2014. “Why I Left Academia: Philosophy’s Homogeneity Needs Rethinking.” http://read.hipporeads.com/ why-i-left-academia-philosophys-homogeneity-needs-rethinking/. ProtectingLisbeth. 2014. “The Moral Philosopher and His International Affairs – Break the Silence.” 5 May. http://protectinglisbeth.wordpress. com/2014/05/05/the-moral-philosopher-and-his-illicit-internationalaffairs/. Remnick, Noah. 2016. “After a Professor Is Cleared of Sexual Harassment, Critics Fear ‘Cultural Silence’ at Yale.” New York Times, 8 July. https://www.nytimes.com/2016/07/09/nyregion/a-yaleprofessor-is-cleared-of-sexual-harassment-but-concerns-linger.html. Salamon, Gayle. 2008. “Justification and Queer Method, or Leaving Philosophy.” Hypatia 24 (1): 225–30. Saul, Jennifer. 2013. “Implicit Bias, Stereotype Threat, and Women in Philosophy.” In Women in Philosophy: What Needs to Change?, edited by Katrina Hutchison and Fiona Jenkins, 39–60. Oxford: Oxford University Press. – 2014. “Philosophy Has a Sexual Harassment Problem: Recent Allegations against Colin McGinn Are Just the Tip of the Discipline’s Iceberg.” Salon, 15 August. http://www.salon.com/2013/08/15/ philosophy_has_a_sexual_harassment_problem/ Schoolman, Morton, and David Campbell. 2008. “An Interview with William Connolly, December 2006.” In The New Pluralism: William

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Connolly and the Contemporary Global Condition, edited by David Cameron and Morton Schoolman, 305–36. Durham, nc : Duke University Press. Schuman, Rebecca. 2014. “Title Nein: Northwestern University Found That a Star Professor Violated the Sexual Harassment Code in His Treatment of a Student. Why Is He Still Teaching?” Slate, 23 February. http://www.slate.com/articles/news_and_politics/education/2014/02/ northwestern_university_found_professor_peter_ludlow_violated_the_ sexual.html. Steinpreis, Rhea E., Katie A. Anders, and Dawn Ritzke. 1999. “The Impact of Gender on the Review of the Curricula Vitae of Job Applicants and Tenure Candidates: A National Empirical Study.” Sex Roles 41 (7–8): 509–28. Tarver, Erin C. 2013. “The Dismissal of Feminist Philosophy and Hostility to Women in the Profession.” apa Newsletter on Feminism and Philosophy 12 (2): 8–12. Tully, James. 2008. “Public Philosophy as a Critical Activity.” In Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press, 15–38. University of Colorado Boulder. 2015. “Statements from Campus Officials Regarding Settlement with cu Professor David Barnett.” cu Boulder Today, 12 May. https://www.colorado.edu/today/2015/05/12/statementscampus-officials-regarding-settlement-cu-professor-david-barnett. What Is It Like to Be a Woman in Philosophy? 2021. “Assault by a Thousand Paper Cuts.” Posted 7 August. http://beingawomanin philosophy.wordpress.com. What We’re Doing about What It’s Like. 2016. “What Quebec Is Doing about What It’s Like.” Posted 15 September. http://whatweredoingabout whatitslike.wordpress.com. Wilson, Robin. 2014. “A Test Case for Sexual Harassment: The U. of Colorado’s Philosophy Department Wanted to Be Seen as More Welcoming to Women. The Plan Backfired.” The Chronicle of Higher Education, 20 October. http://chronicle.com/ article/A-Test-Case-for-Sexual-/149509/. Zerilli, Linda. 2009. “Toward a Feminist Theory of Judgment.” Signs 34 (2): 295–317. Zweifler, Seth. 2013. “Philosopher’s Downfall, from Star to ‘Ruin,’ Divides a Discipline.” The Chronicle of Higher Education, 1 July. http:// chronicle.com/article/A-Prominent-Philosophers/140071/.

3 James Tully’s Dialogical Political Science Michael Temelini

I would like to talk about James Tully’s method of public philosophy, in particular his practice of dialogical comparison. I will use the words comparative and comparison in order to qualify the concept of dialogue Tully uses, and to differentiate it from monological methods that make no room for ongoing negotiation or reasonable disagreement with others who might see things differently. Furthermore, I will refer to this comparative method of dialogue as genuine dialogue, following Tully’s usage. My argument rests on the assumption that this method is fundamentally sound, and those who teach and practice the various disciplines in the humanities and social sciences have much to learn from it. Nevertheless, there are important aspects of this approach not fully articulated, and that need to be explained more perspicuously. Tully argues that genuine intersubjective dialogue is a normal ordinary feature of everyday life, despite all the obstacles and roadblocks. But he does not clearly spell out how we can still manage to exercise our dialogical abilities and engage in dialogical practices, amidst all the monological detours standing in the way. What explains the normalcy, if not perseverance, of our will to dialogue? My answer will take shape in the form of a sort of retrieval: to make more perspicuous certain aspects of comparative dialogue, to bring to more explicit awareness something that seems to be implied, to draw in however rough a fashion the boundaries of dialogue, and thereby propose a way of strengthening this practice. The practice of dialogue could be strengthened in two ways: we might learn how to foster the will to dialogue; and we might become nimbler in overcoming certain obstacles to its successful exercise. And this retrieval might also expose an alternative, and equally

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legitimate method to the normal approaches employed in the various disciplines of the humanities and social sciences, like political science in particular. The claim I wish to defend is that we should be more perspicuous about the role of education, which might include apprenticeship, training, coaching, or mentorship. Tully does talk about dialogue’s genesis, its development, and its obstacles. But he does not say enough about, and he could more clearly explicate, what we might call a philosophy of education. I will not suggest that apprenticeship and training have primacy, but I will claim that there is an important supporting role for instruction, which is to say the inculcation of genuine dialogue. A central role for education is fully consistent with the activity of dialogical comparison, and a case in point is Tully himself as an exemplary teacher. I will begin by surveying Tully’s concept of comparative dialogue, and then consider how he practices it as a teacher. Then, I will contrast the comparative dialogical method with the normal methods of the social sciences, and in particular political science. What I will focus on here is a line of argument found in Public Philosophy in a New Key in which this approach has particular lessons for the study of politics, “whether it is called science, theory, or philosophy” (2008a, 15). Throughout this work Tully criticizes certain monological approaches to politics, and he proposes as a legitimate alternative the practice of public philosophy, and its central concept of dialogical comparison. His point is to challenge some of the most fundamental assumptions at the heart of contemporary political science. This I will argue has ramifications for the ways in which political science is practiced and imparted. One implication is that Tully’s approach justifies the revival and restoration of a venerable tradition of political science, namely the classical humanist education, the studia humanitatis. I will therefore briefly consider this philosophy of education as an historical object of comparison. This is an actual case in which an entire curriculum thoroughly grounded in a dialogical ethos was created to inculcate and foster the best possible civic practices. So, this curriculum is important because it shows how we might impart the civic virtues of dialogue. In his early writings like A Discourse on Property (1980), Tully’s attention was focused primarily on classic and lesser-known political texts and concepts, without ignoring the traditions of interpretation and political struggles that informed them. His idea here was that

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to understand the meaning of these texts and concepts, one must examine the practical political struggles and problems that informed them. This involved an historical approach that considered linguistic conventions and practices, as well as institutions in which actors found themselves. With publications such as “Rediscovering America” (1993) and “Diversity’s Gambit Declined” (1994) the nuance of Tully’s scholarship changed, as he began to articulate a subtle shift in emphasis in his approach to the study of politics. This turn was fully articulated in Strange Multiplicity (1995), where he began to place more focus on diverse political forms of life and their ongoing struggles over recognition. Though of course this focus did not preclude careful analysis of the texts, concepts, and traditions of interpretation that inform such struggles. It is also in this book that Tully mobilizes the word dialogical for the first time. Among the principal intellectual sources, Tully expresses his debt to the writings of his former teacher, Quentin Skinner. Despite the change in nuance, Tully’s consistent argument is that political theorists must address and reflect not on theoretical or eternal problems, but rather the practical problems given to them by the age in which they live. In the spirit of that approach, let us examine two practices: teaching dialogue and successfully engaging in dialogue. The question raised here is whether there is a relationship between the two, and my claim is that there is: success in practising dialogue depends in part on whether people are taught how to do it, appreciate it, and share in its civic ends. This is one sense in which Tully’s political science is a critical activity, and has practical implications for prevailing social practices. That is, both his scholarship and pedagogy challenge specifically what people are doing in the discipline of political science, and the social sciences and humanities more broadly. Dialogical comparison is supposed to displace some conventional ways in which we typically think about, practice, and teach political science from their exclusive, privileged, and authoritative positions of authority.

what is c o m par at iv e (g enui ne) di alogue? Tully’s concept of dialogical comparison (or genuine dialogue) is characterized by four overlapping aspects: it refers to a set of abilities, a civic duty, a civic freedom, and a way of explaining and understanding the world. So, genuine dialogue describes an epistemology

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in the sense that it is a valid method of knowing. And it is an ontology because dialogue is a language of the self, its identity and agency, and because it constitutes a way of life in a shared, public, and political context.1 There are principally three abilities constituting the practice of comparative dialogue: speaking, listening, and disagreeing, which is to say the arts of speaking well, listening to others, and learning in disagreement. To engage in genuine dialogue is to willingly accept the possibility of being corrected, educated, or persuaded in some way in light of the conversation. So, Tully frequently likens the practice of dialogue to an ongoing, open-ended negotiation, for two important reasons: because dialogue entails a give-andtake exchange of reasons with others whose form of life we may not share, or with whose equally legitimate position we disagree; and because neither the terms nor outcome of the conversation are constrained or predetermined. This is a dialogue of comparison in the sense that the conversation takes place among others who might see things differently, or who might have different reasons, who might be motivated by a different moral ontology, and from whom everyone might have something to learn. The aim of such dialogue is not necessarily consensus or a final agreement, since no agreement could possibly end the conversation. The conversation always continues, even if sometimes it is temporarily interrupted or tentatively suspended. Its outcome may not be any kind of definitive solution. Dialogue’s ends are always provisional, defeasible, nonfinal, subject to further review. In all this, there’s clearly a place for reasonable disagreement. This argument is based on a contrast of two ways of knowing the world: a dialogical, aspectival approach, and a monological, theoretical, finality-oriented one. While monologue imposes and defines, dialogue recognizes and negotiates forever, reaching solutions always imperfect, and open to ongoing reconsideration. Dialogue means taking turns speaking and listening, and exchanging reasons with others who see things differently (Tully 1995, 109, 182). It implies that having a say is inalienable and that reasonable disagreement is normal and inevitable. It appreciates the particular case, avoids theoretical redescription, but assumes that “we must listen” to self-descriptions, “enter into a dialogue” and “enter the conversation” (ibid., 110–11). The key is listening “not only to what” others say, but also “to the way or language in which it is said” (ibid.,

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57). The others are hybridized identities simultaneously negotiating within, among, and between themselves (Tully 2000, 218–19; 2003, 518–19; 2008a, 167–8). We have a duty to “listen to the voices of others” because “there’s always more than one side to a case.” Since there is no methodological substitute for listening, therefore “one must always consult those on the other side” (Tully 1995, 34, 57, 110, 115). This fosters diversity awareness because it enables us to change perspectives and “see and understand aspectivally” (ibid., 25). And it allows us to conduct our lives differently in light of what we learn, and thereby encourages peaceful reconciliation. So comparative dialogue can be understood in terms of a set of abilities, and a way of knowing. It also entails shared, public, and political dimensions. There are primarily two ways in which Tully uses the words dialogical and dialogue to articulate these shared political spaces: as a civic freedom to disagree; and this freedom implies a civic duty to listen to (and negotiate with) those with whom we might disagree. As a duty, the exercise of our dialogical abilities constitutes a powerful moral imperative. This is captured by the Roman adage audi alteram partem, one of the most commonly found catchphrases in Tully’s oeuvre. What this means is that we must always listen to others, take them seriously, and negotiate with them in good faith, at least if our aims are understanding and peaceful reconciliation. The unimpeded exercise of these dialogical abilities guarantees also our political freedom. To be free is, in part, to be able to reasonably disagree. Therefore, genuine dialogue is something we ought to do not just because we might understand others; listening to others, and sometimes disagreeing with them, actually guards our liberty. It only makes sense then to foster and encourage conversation and reasonable disagreement, rather than ignore, dismiss, or suppress it. Accordingly, when either the civic freedom is undermined or the civic duty is neglected, citizens are justified in engaging in agonistic “democratic struggles to negotiate” (2008a, 151).

di alo g ic a l a bi li ti es : tu lly as an example I have been surveying Tully’s concept of comparative dialogue. I talked about it as an ability, which is to say a kind of subjective faculty, and this is something I want to explore in more detail. I will consider how Tully mobilizes dialogue as a teacher, which is to say

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how it shapes his pedagogical orientation. There are two overlapping ways his orientation could be described as dialogical: his approach or style as a teacher and interlocutor; and the curriculum he taught, which was itself grounded in a dialogical ethos. My aim is to present Tully as an example in order to illustrate how acquiring dialogical abilities depends in part on having a good role model. While he is justifiably recognized as an influential author, there is surprisingly little commentary about the fact that Tully is also an award-winning professor of political science. And the latter should not be neglected because his approach to teaching is itself an example of what he calls public philosophy, and is particularly exemplary in illustrating its dialogical aspects. As a graduate student I was fortunate to participate in a number of Tully’s seminars, and I have never forgotten something he once said. After a particular class, I thanked him with something like “I learned a lot today.” The reason why I never forgot that conversation is because his reply surprised me, and I was too taken aback to ask for an explanation. He said “I did too.” I remember thinking that this was a kind and encouraging thing to say, and an example of his intellectual humility. But I was sure what he said could not possibly be true. What could this eminent scholar, clearly the political theory expert and our intellectual superior, learn from a bunch of graduate students? Many years passed before I understood what he meant. The anecdote reveals that Tully’s way of teaching politics is itself an example of his dialogical method, what he calls public philosophy. Tully’s courses were among the most popular of McGill University’s Department of Political Science, so much so that masters and doctoral students were frequently known to audit his standing-room only undergraduate lectures. Many students requested his guidance and supervision. In 1988 McGill recognized this teaching excellence with its prestigious Fieldhouse Award for distinguished teaching in the Faculty of Arts. It is not hard to explain all this. He is an excellent public speaker with an extraordinary ability to explain impossibly complex philosophical ideas in a way that is quite accessible. Tully’s students were also impressed with his careful and meticulous reconstruction of historical details and the charitable interpretation he typically paid to source texts. It is no exaggeration to say that Tully taught a generation of young scholars how to read, especially those texts containing ideas with which we might have disagreed. I say especially because it takes an exceptional kind of ability to learn

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from authors in whose ideas one does not necessarily feel at home. The point I am making is that this attitude of taking seriously diverse and alien political ideas, and these abilities to patiently listen and learn in disagreement, are characteristic gestures not just of Tully’s scholarship, but his pedagogical approach as well. Genuine dialogue is what he practices in conversation, and what he demonstrates to his students in the classroom. Pointing to Tully’s pedagogy is meant to reveal something important about our dialogical abilities (speaking, listening, disagreeing). Namely, that their use depends to a certain extent on someone imparting them somehow. We are all built for these abilities, but their correct employment is not built-in. Rather, we learn use by example and by practice. So learning how to exercise these dialogical abilities requires apprenticeship, which necessarily includes good coaching and mentoring from an early age. It needs someone who can serve as a good example, someone who shares her knowledge and experience, who can point in the right direction. Tully’s students received this kind of apprenticeship. These are the kinds of skills he fostered and encouraged us to hone. And it is this aspect of Tully’s practice of dialogical comparison that needs further articulation. Because in his writings Tully overlooks what went on in his own classroom. He seems sometimes too prone to suggest that comparative dialogue is some kind of reflex, like learning to walk. He is not clear enough to what extent its correct use also requires some prior training, which is to say that the reflex and training are not mutually exclusive. The focus on Tully’s pedagogical activity is meant to disclose this point. Invoking these biographical reflections is supposed to illustrate that Tully exercised his dialogical abilities in the classroom. And in so doing, he served as an example and role model to his students of a best form of the practice itself

t he f irs t q ue st io n fo r poli ti cal s ci ence So far I have been reviewing how Tully sees dialogical comparison as a set of abilities, a set of practices in a shared political space, and an epistemology or form of explanation. Let us now consider further the epistemological aspect of dialogue, in particular its use in the study of politics. Focusing on political science is justified because in fact one of the main ways Tully mobilizes his approach is to call into question some basic assumptions at the heart of the discipline of

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political science pertaining to what we might call its normal method. Dialogue is supposed to be an alternative epistemology to the norm. The method of dialogical comparison is a reply to what Tully calls the “first question” for contemporary political science, namely “how do we attend to the strange multiplicity of voices and activities without distorting or disqualifying them in the very way we approach them?” (2008a, 20) The answer is to “enter into dialogues” with a wider audience of citizens and not prejudge them, and this includes those who are engaged in civic struggles (ibid., 3–11). I have been describing this kind of dialogue as comparative because it follows Wittgenstein’s suggestion that the proper way to attend to diversity is to avoid generalizations and theories, and instead notice and compare particular aspects in conversation. Wittgenstein elegantly describes this practice of comparison (what he calls perspicuous representation) as one in which we must look for family resemblances, and “a complicated network” of similarities and differences “overlapping and criss-crossing” (1968, ss 67–8). Tully’s position is not that comparative dialogue should happen, but that dialogical negotiation (the ordinary, everyday, free, and democratic dialogue) is something that already constitutes the everyday real world of politics – it is actual. We are “always and everywhere” engaged in everyday, grassroots “practices of negotiation” (2008b, 279). Because political practices are dialogical, political explanations must also be, since disengaging from the conversation and relying on general theories will result in explanations that are partial, that mask ethnocentrism, and worse that are disconnected from reality. If the aim is genuinely to understand actual political practices, the political scientist’s necessary role is to talk with those engaged. In this way dialogue is a fundamental aspect of explanation and understanding. Accordingly, dialogue is not something Tully merely talks about, but something he actually does – as a researcher, teacher, and public intellectual. He does not presume to be a disengaged theorist imposing the terms of debate, but he participates in the conversations, particularly with those struggling over recognition, listening carefully to their stories and myths, and including their self-descriptions and forms of self-expression within his defeasible explanations. Likewise he does not limit his conversations to experts at academic forums, but actively participates in public discussions – like the Royal Commission on Aboriginal Peoples (for which he was an adviser) and thereby engages in direct negotiation with a wider audience of citizens.

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t h e o r is t s , co urt s, a nd poli cy makers So, comparative intersubjective dialogue is a normal feature of human forms of life, something we are all capable of doing and something we in fact typically do. As a portrayal of humanity’s ability for reconciliation and nonviolent conflict resolution, the reminder that dialogical negotiation is normal and actual is a profoundly important and helpful point to keep in mind. Nevertheless, an essential part of Tully’s approach is to survey cases in which genuine dialogue is precluded, when we lose sight of the necessity to negotiate, where we tend to deliberately overlook or override conversation, in which we prejudge others. He is not blind to the powerful monological forces that successfully undermine civic freedom. Quite the contrary, he pays special attention to varieties of imperialism, exploitation, domination, and colonial and postcolonial disciplinary techniques that undermine it. In fact, among Tully’s main goals, and among the most poignant aspects of his political science, are his reminders about what negative political consequences result when civic freedom is overridden or overlooked. He points to specific examples in which sometimes we do not listen, when the freedom to disagree with each other, our governments, and legal institutions are curtailed, when domineering governors and institutions try to eliminate open-ended freedom, and suppress or eliminate dissent and contestation. It is such cases that irrupt into civic struggles over recognition and distribution, and countless other “arts of resistance” (2008b, 278). I would like to explore further these obstacles to dialogue, and in particular I am curious about some of the main perpetrators of monologue whom Tully singles out. In a number of publications he explains that these domineering monological tendencies are typically evident among what he calls “theorists, courts, and policy makers.” These become the agents of monologue when they ram through and impose their top-down interpretations, explanations, decisions, solutions, statutes, rules, policies, programs, or institutions, without any regard to diversity awareness, without democratic input from citizens, or by forcing citizens to deliberate within ready-made or predetermined languages, or norms (Tully 1995, 2008a, 2008b). The culprits identified here are not just juridical or lawmaking institutions. The word theorists refers to those who have practiced, and still do, certain learned pursuits, or academic disciplines. Indeed, one of Tully’s most cogent observations is that monological practices have

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flourished the in the social sciences and humanities. Public philosophy is meant to undermine such academic practices, and legitimize nonmonological alternatives. Tully explicitly singles out the discipline of political science (political theory, political philosophy, and the study of politics) as an exemplary case of elitist monologicality. The reason it is elitist and monological can be understood in terms of four types of assumption constituting it, each of which Tully labels a “pillar of elite political theory.” These four pillars constitute the dominant, or conventional epistemologies of contemporary political science. The assumptions are that: causal processes act behind the backs of citizens; universal normative principles determine how citizens ought to act; background norms and goods are implicit in practices that constrain and enable democratic action; and canonical institutions (rules and theories) provide foundations of democratic action (2008a, 8–9). Each assumption promotes monological elitism because each assumption effectively predetermines the debate within the logic, norms, and vocabulary of its preset framework. None makes any meaningful room for a negotiated understanding, and certainly not among those who might begin with different assumptions altogether. Each assumption thereby dismisses and disqualifies from reasonable discussion the ordinary languages of self-description used by agents themselves engaged in everyday particular struggles. Because it is the essential role of the researcher to study them, these four pillars effectively elevate and separate political scientists above other citizens and their everyday activities. In so doing, they stop those who study politics from seeing their work as a discussion with their fellow citizens as equals. So they render political science an elitist monological discipline. Another way of explaining why the study of politics is elitist is that the normal methods of political science, namely the ones that model themselves on the presumed methods of the natural sciences, are held captive by what Wittgenstein famously called “our craving for generality” and “contempt for what seems the less general case” (1958, 17–20). This craving takes many forms. More robustly, it is an epistemological imperative to look for something timeless or universal that can be formulated in a law that covers every case. In different ways, this imperative is shared by rational choice theory and behavioural methods. But the contempt for particularity need not entail such methods. It is also the priority assigned to any theory

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as the essential source of explanation (Taylor 1983; Owen 1999; Owen and Tully 2007). The imperative of this theoretical approach is to develop a general procedure or framework and determine how to apply it in particular cases. What counts as a sound explanation necessarily comes from the correct application of the specific theory, otherwise there is little explanatory value. This privileging of a general theory can be called monological because it is unnecessary to listen to what people are saying in their own terms in actual cases. Instead, it assumes that one should translate or reinterpret their self-descriptions into some general, metaphysical language, thereby excluding from the explanatory framework a practice of genuine dialogue with the participants of political action. According to these methods, political scientists are not required to enter into dialogues with the wider audience of citizens. But they are required to prejudge fellow citizens by interpreting, comprehending, or redescribing their actions into general rules, universal theories, or metaphysical principles and norms. Tully rejects all these elitist monological assumptions because there is no such separation from the everyday practices of citizens. Instead, political science must be an engaged and embedded science that must bridge academic research and civic movements and struggles. Public philosophy offers this kind of engagement, of situating political science “in conversation with fellow citizens” (2008a, 9). And this goes hand in hand with a recognition of epistemological pluralism. Since there are countless ways of studying politics, and no universal criteria to adjudicate its diversity, politics is therefore “an open-ended dialogue” (ibid., 15). So Tully’s public philosophy draws inspiration from an eclectic and diverse variety of scholars, artists, writers, jurists, and political activists. Tully’s criticism of conventional political science is that by its own epistemological assumptions, it is not the essential role of researchers and scholars to enter into dialogue with a wider audience of citizens as equals. Either they have some kind of special access to knowledge and understanding, or dialogue impedes science. So, at best, such forms of dialogue are normally considered extracurricular. I would go further and suggest that this dominant epistemology also shapes the norms of public administration that typically govern twenty-first century postsecondary institutions. What I mean is that public dialogue is understood monologically, as a form of public relations, of community outreach, or community service. The

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purpose of engaging with the public is not necessarily to learn something, but it might be to lend expertise. It is a way of undermining the stigma of the ivory tower, to legitimize the expenditures of scarce public resources on postsecondary institutions, to help fund-raise, or to raise public awareness among a broader community about university research activities. In this sense, public dialogue is seen as something extra, secondary, or superstructural. On the mainstream view, it certainly may add value. But neither does dialogue constitute the foundations of knowledge nor does it necessarily advance knowledge and understanding per se; or worse, public engagement is seen as a frivolous distraction from the serious, weighty demands of social scientific research. Some might even see dialogue as an impediment to the epistemological goals of a disengaged, generality-seeking theoretical science which necessarily entails excluding altogether any self-understandings or self-descriptions of any agents themselves. On this view, the dominant way of thinking is that if dialogue is necessary, it is not a dialogue between theorists and citizens. Rather, it is essential for scholars to speak almost exclusively to other scholars, and to write for other specialists, using private languages that few others understand. Because that is how knowledge uniquely advances. It is in these ways that normal political science is disconnected from reality, from the ordinary daily practices of everyday public life. So the normal practice of theorists, courts, and policy makers is elitist and monological.

d ia lo gi ca l vi rtues Among the various reasons Tully offers to explain academic elitism, there is an intriguing line of argument in the conclusion to “A New Kind of Europe.” He argues that policy makers do not have the “courage and humility” to turn to the dialogical practical wisdom of citizens for guidance (2008b, 242). Here dialogue implies a set of virtues, a suggestion with great promise in explaining why we sometimes avoid dialogue, and what can be done to encourage it. The implication is that these are the virtues needed to successfully engage in dialogue, to practise it successfully. Dialogue implies virtues because it takes ongoing practice and perseverance to speak well, listen well, and disagree well. In a nutshell, the reason why this is promising is because if dialogue is constitutive of a set of virtues, then it is something that can be imparted and learned in school.

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Tully is on the right track when he points to the necessity of having courage and humility. And to this list of virtues, I would propose another, namely patience. We need the humility to accept the possibility that our position is corrigible, that we have something to learn from others. We need the courage to admit our mistakes, or abandon a privileged position. In addition, I would argue that we need the patience to allow the necessary time required to listen to others with whom we might disagree, or with those who see things differently, or perhaps with whom we might regard as subaltern in some way. Because negotiation can be tiresome and time-consuming, it is sometimes easier, much more efficient, or just instrumentally rational, to just stop talking, move on, get the job done. The fact is that some people will not or cannot talk, listen, negotiate, or disagree. So the successful exercise of their civic duties is impeded. What can be done to foster such civic responsibilities? How can we acquire the courage, humility, and patience to enter into dialogues and learn from each other? We need to find a way to explain how citizens can guarantee that ordinary everyday civic liberties are not subverted, manipulated, ignored, overlooked, overridden; how citizens can acquire and maintain the abilities to speak to each other with a genuine willingness to compromise; how we can ensure that citizens will continue to have the patience, humility, and courage to build and sustain a society which values dissent, that fosters ongoing negotiation, and with which citizens will continue to identify even in defeat. Tully certainly addresses such questions, but I do not think that he adequately credits the central importance of education and continuing tutelage in dialogue’s genesis and ongoing development. Part of his argument is that we learn to negotiate and develop dialogical abilities “in the earliest days of childhood, long before language use and training in specific roles.” To be sure, he does say that we learn to negotiate as apprentices under the guidance and direction of “governing” partners or peers, who give instructions, answer questions, correct conduct, respond to untoward rule following. Then, we gradually develop these abilities “self-critically, creatively and without further direction, but never without further negotiation.” To be fair, this does point to the type of mentorship I have been talking about. But the emphasis here is placed on the fact that the requisite abilities are acquired in “pre-linguistic interaction” by “reflective practices of the self.” Tully likens this dialogical activity

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of apprenticeship to one in which “we find our feet and learn to walk” (2008b, 277–9). What he is saying is that we begin to learn the dialogical abilities and the virtues that come with them in apprenticeship, until we know how to go on, and develop them further in continuing negotiations. In this way dialogical abilities are dispositions that come from ongoing intersubjective civic practices. While Tully emphasizes the activities of citizenship, my focus is apprenticeship, which is to say civic education. My point is that in order to fully realize the possibility of a society built on valuing dissent, in which all citizens (including theorists, jurists, and policy makers), have the humility, courage, and patience to listen to each other, a good place to start is to make these virtues an essential part of the educational curriculum, and the practice of teaching. Educating citizens is important not just to impart practical skills like numeracy and literacy. But such training must also include rhetoric, which is the science of speaking well, and moral philosophy, which is to say the inculcation of virtues like courage, humility, and patience. This is of course an ancient idea that was reborn with the humanist movement of the Italian Renaissance. A well-known example of this ancient ideal is found in Seneca’s Letters from a Stoic.2 Seneca tells us that virtues like courage and humility do not come from acquaintance with books. What makes us courageous and humble is actually doing things that are courageous and rehearsing a life of humility. The cardinal virtues become our disposition through unremitting and constant daily practice and perseverance, with a regular training of self-scrutiny, self-control, and self-transformation. While they emphasize practice, Seneca and his fellow Stoics, (and the Renaissance disciples of the Roman educational tradition) placed central importance on formal education, especially the liberal arts, and what he called philosophy. It is not because a liberal education makes young people morally good, but because “it prepares the mind for the acquisition of moral values” (Letters, LXXXVIII). Another important aspect Seneca emphasizes is that the Stoic wise person acquires the strength of character by imitating the good example of political role models, like Cato, Laelius, Scipio, Socrates, Stilbo, and a Spartan boy who chooses death over slavery. Obviously I am not suggesting that these necessarily should be our role models, but that the lessons of politics are made more perspicuous by exemplars. As Wittgenstein says, we learn by practice and sometimes by means of examples. “One learns the game by watching how others

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play” (1968, ss. 54, 208; Temelini 2017). The others in this case must include those who are very good at playing the game. And in this respect, teachers must also be role models. The concept of apprenticeship I am talking about is not a crude form of behavioural conditioning. Tully is correct when he points out that apprentices and students gradually go on to become self-educating and self-critical. No amount of training can completely determine the self, or preclude dialogue. But the fact that some citizens do not engage in dialogue suggests that these abilities might not be acquired and developed from an early age in reflective prelinguistic interaction. And for some citizens these abilities do not nurture and grow, but they are impeded or undermined. All I am suggesting is that one aspect of the process must be to properly train apprentices into the dialogical virtues by means of examples. This implies a strong role for a specific curriculum that imparts dialogical abilities and an appreciation for its civic ends. I will say something more about what kind of curriculum might contribute to fostering dialogical abilities. But first I would like to further justify my claim that we need to adopt a more robust philosophy of education. I will do this by way of an historical object of comparison. When talking about education, one cannot help being drawn to the other historical moment in which classical Roman philosophers had their greatest influence, which is the Italian Renaissance. What I would like to emphasize is that this was not just an historical moment, but also a broad based civic movement, which is to say a political struggle, and one with a clear philosophy of education at its heart. This history is elegantly portrayed by Quentin Skinner in his celebrated Foundations of Modern Political Thought (1978a and 1978b) a source Tully calls the “classic example” of the kind of method he adopts (2008a, 33n30). An essential aspect of the humanist tradition, Skinner reminds us, was a philosophy of education that centred on the teaching of grammar, history, moral philosophy, and rhetoric (the art of eloquence). When the prehumanist rhetoricians mobilized these skills for very practical civic purposes, this curriculum gave rise to the science of government, what became known as political science. The goals of this movement are reflected in the writings of many well-known authors. One of the first to think of himself with complete self-consciousness as a political scientist, Skinner argues, was the thirteenth-century writer Brunetto Latini. He saw a close connection between good government, the defence

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of civic liberty, and a certain kind of education focused on the sciences of speaking and writing well. “The chief science in relation to the government of cities is that of rhetoric,” he argued “that is, the science of speech” (Skinner 1978a, 40; 1978b, 349–50). Eventually the authentically classical roots, scope, and aims of this pedagogical approach, known as the studia humanitatis, were rediscovered, recovered and restored by Petrarch, and championed by quattrocento Renaissance humanists who fervently advocated its classical ideals (Skinner 1978a, 84–8). The reason I am recalling this political movement is that Tully cites it prominently as an inspiration for his own dialogical orientation, and the catchphrase he employs repeatedly throughout his work, audi alteram partem, always listen to the other side (for example, Tully 1995, 115; Tully 2000, 214–6). The principle source for this commitment, and the inspiration for his dialogical turn, is Skinner’s Reason and Rhetoric in the Philosophy of Hobbes (1996). Here Skinner traces the historical shift in Renaissance England to a monological style from a dialogical one, now widely repudiated. Skinner argues that Renaissance humanists characteristically promoted a style of moral and political reasoning, grounded in theories of eloquence or rhetoric, “whose watchword ought to be audi alteram partem,” and in which “the appropriate model” was “that of a dialogue.” Skinner uses the words dialogue and dialogical to mean “a willingness to negotiate” over rival reasons, in which we “strive to reach understanding and resolve disputes in a conversational way.” This commitment stems from the “central contention of rhetorical theory” found in classical authors like Cicero and Quintilian, which is that there will always be two sides to any question, so it will always be possible to argue on either side of the case (Skinner 1996, 8–16). A notable aspect of this Renaissance humanist political struggle is that the protection of libertà and resistance to tyranny are among the central themes running throughout its literature, which is to say its political science. Tully correctly points out that participating as an active citizen of a self-governing state was considered by classical humanists as the bulwark against tyranny (2000, 214–15). But he does not complete the explanation: the humanists also argued that citizens learned these virtues in school. The basic humanist curriculum taught the youth to have public spiritedness, and this curriculum is what taught them, among other things, to reach understanding and resolve disputes in public dialogues and negotiations.

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My point is that those who recognize the foundational importance of Renaissance humanism, as Tully certainly does, cannot ignore that one of its key aspects is that it offers an important lesson on how to promote dialogue: education itself is of primary significance. The humanists promoted education as an indispensable key to virtue (the attainment of the highest human excellence). As Skinner reminds us, their argument was that the right kind of education was “essential for the achievement of this goal.”3 They placed paramount importance on the education of youth. And the centrepiece of the curriculum was the reading of ancient texts, which provided not just moral guidance, but political role models. This Renaissance humanist philosophy of education is significant because it suggests that comparative dialogue is not just an ability shaped in practice with others, but it is also an attitude that needs to be cultivated and learned in a formal context of schooling.

towa r d s a di al og ic al curri culum I have been talking about the central role for the humanities, and its rhetorical curriculum, specifically the sciences of written and oral expression and moral philosophy. My argument is that this tradition must therefore be retrieved from the waste bin of history. This kind of education is important because the virtues have to be learned, and as Seneca points out, the humanities prepare the mind for their acquisition. As far as contemporary mainstream political science is concerned, this longstanding curriculum has been more or less expunged. Remnants of the humanist curriculum survive in the margins of the discipline, typically in specialized courses in political theory. But students of politics are not expected to have any particular expertise either in moral philosophy, or public speaking; or frankly, the ability to speak well at all. These are not typically degree requirements. Students are more likely to receive training in rhetoric from schools of dramatic arts, law, and even business, than from departments of political science. At least in the dominant Anglo-American tradition, there are no required political science courses on the arts of negotiation, on the practices of peaceful, nonviolent protest and contestation. Where such courses do exist, they are optional. Instead of rhetoric, what is typically required is a training in the four pillars of elite political science. Students of contemporary politics are more than likely served this steady diet of monological methods and

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orientations in which theoretical, causal, and behavioural forms of explanation are considered essential and indispensable for graduating students. The privileged languages of power, authority, legitimacy, self-interest, are taken for granted. I would submit that this is not only one of the central problems with political science, but it might also help explain the obstacles to a dialogical science of negotiated, conditional understanding. So, political science is bewitched by a privileged vocabulary and form of explanation that rejects dialogue. A monological picture holds political science captive, and political scientists cannot get outside it, in part because it is the language of political science, and the language repeats it to them inexorably. By this very operating logic it relegates outside the boundaries of reasonable consideration the exemplary role models of dialogical reconciliation. So for example, the conventional paragons of political science are not Mahatma Gandhi, Martin Luther King Jr, or the Haida artist Bill Reid, for that matter, but more like Hobbes, Bodin, Paine, and Weber and many others who ushered in and guarded what Tully vividly describes in Strange Multiplicity as the empire of monologue. The fact is that Tully already takes seriously an alternative, classical idea of dialogical education. He would agree that dialogue needs what Aristotle called “a right training for goodness from an early age” (Aristotle 1988, X.ix). But he does not fully spell out how or whether there is a role for educating citizens and inculcating such values. My claim, to repeat, is that there is. In order to fully realize the possibility of a society built on valuing dialogue, the virtues of dialogue must be an essential part of the political science curriculum. Genuine comparative dialogue has to include a clear pedagogical approach even if it is not tantamount to definitive normalization. This would mean reconsidering the mainstream curriculum, our responsibilities as teachers, and the role of the educational system at all levels. Consequently, this dialogical education must be seen as part of a civic movement, in the same way that humanists saw themselves as a political movement in contest with scholasticism. It must be part of a civic struggle for freedom. This is one of the important implications of Tully’s critical and dialogical political science. A dialogically oriented curriculum, and likewise a dialogical political science, would train students how to know and understand each other and the world by speaking, listening, and respectfully disagreeing. And it would promote the civic ends of dialogue, as a

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duty to other citizens, and a bulwark against tyranny. This might mean required courses that foster our dialogical potential, for example logical argumentation, techniques of conflict resolution, and the arts of negotiation and compromise. Teaching young people how to organize politically without violence means adopting a critical attitude to violence, and it entails imparting techniques of nonviolent contestation, including noncooperation and civil disobedience. It might also mean learning how to express oneself with vocabulary, and in media that are accessible to a larger general audience not just for other academic specialists. Educational institutions also have a responsibility to foster, encourage, and value dialogical research (and nonmonological varieties of communication and dissemination of research), and all forms of public discussion within the classroom and with a wider general audience. And in all this teachers, professors, scholars, and researchers also have responsibilities to act as role models. This means talking, listening, and disagreeing not exclusively to each other but to students, and to a larger audience outside the classroom. The virtues of dialogue come from practice. But we also need exemplars to help us, guide us, and show us the best practices. This is the meaning of the anecdote I mentioned earlier in that Tully is such a role model. He sets an example of teacher, researcher, and public intellectual of the virtues required to successfully engage in public dialogue. He exhibits the patience to listen to others and allow the conversation to take it due time, the courage to learn from them, and the humility to admit that others might have something to teach him. And all this serves to legitimize dialogical comparison and undermine some conventional ways in which we typically think about, practice, and teach political science. The anecdote shows that even conversations that appear one-sided or unequal, like those of students and their teachers, are actually reciprocal and dialogical. That is because the conversation shapes all the participants who inevitably learn from each other, even if it is not obvious in the first place. My aim has been to retrieve the pedagogical aspects of the practice of dialogical comparison, as a way to strengthen this practice. To see comparative dialogue as a political movement for civic education, and to promote the rhetorical virtues in our schools might be one way to equip and prepare citizens to successfully negotiate with others, and to overcome the obstacles to intersubjective dialogue.

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The abilities to speak well, listen patiently, and disagree nonviolently are abilities that require training, guidance, and mentorship. Making these techniques part of the educational curriculum will greatly contribute to fostering and promoting them. no t e s 1 Elsewhere, I survey in much greater detail the epistemology and ontology of dialogical comparison, I contrast that with monological epistemologies and ontologies, and I explore some political implications (see Temelini 2014 and 2015). 2 This example is one that Tully would certainly appreciate. Among the many undergraduate level introductory courses Tully has taught, he always included on the reading list Epistulae Morales ad Lucilium by Lucius Annaeus Seneca. 3 Skinner writes, for example, that the “first and fundamental move” humanists such as Petrarch made “was to spell out the sequence of assumptions underlying the Ciceronian concept of virtus”: first that humans are capable of attaining the highest kind of excellence; next “that the right process of education is essential for the achievement of this goal”; and finally “that the contents of such an education must centre on the linked study of rhetoric and ancient philosophy” (Skinner 1978a, 88–94).

re f e r e n ce s Aristotle. 1988. The Ethics of Aristotle: The Nicomachean Ethics. Translated by J.A.K. Thomson, revised by Hugh Tredennick. London: Penguin. Owen, David. 1999. “Political Philosophy in a Post-Imperial Voice: James Tully and the Politics of Cultural Recognition.” Economy and Society 28 (4): 520–49. Owen, David, and James Tully. 2007. “Redistribution and Recognition: Two Approaches.” In Multiculturalism and Political Theory, edited by Anthony Somon Laden and David Owen, 265–91. Cambridge: Cambridge University Press. Seneca, Lucius Anneus. 2004. Letters from a Stoic (Epistulae Morales ad Lucilium). Selected and translated with an introduction by Robin Campbell. London: Penguin Books. Skinner, Quentin. 1978a. The Foundations of Modern Political Thought: The Renaissance. Volume 1. Cambridge: Cambridge University Press.

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– 1978b. The Foundations of Modern Political Thought: The Age of Reformation. Volume 2. Cambridge: Cambridge University Press. – 1996. Reason and Rhetoric in the Philosophy of Hobbes. Cambridge: Cambridge University Press. Taylor, Charles. 1983. “Political Theory and Practice.” In Social Theory and Political Practice: Wolfson College Lectures, 1981, edited by Christopher Lloyd, 61–85. Oxford: Clarendon. Temelini, Michael. 2014. “Dialogical Approaches to Struggles over Recognition and Distribution.” Critical Review of International Social and Political Philosophy 17 (4): 423–47. – 2015. Wittgenstein and the Study of Politics. Toronto: University of Toronto Press. – 2017. “Learning Politics by Means of Examples.” In A Companion to Wittgenstein on Education: Pedagogical Investigations, edited by Michael A. Peters and Jeff Stickney, 287–303. Singapore: Springer. Tully, James. 1980. A Discourse on Property. Cambridge: Cambridge University Press. – 1993. “Rediscovering America: The Two Treaties and Aboriginal Rights.” In An Approach to Political Philosophy: Locke in Contexts, 137–76. Cambridge: Cambridge University Press – 1994. “Diversity’s Gambit Declined.” In Constitutional Predicament: Canada after the Referendum of 1992, edited by Curtis Cook, 149–98. Montreal and Kingston: McGill-Queen’s University Press. – 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. – 2000. “The Challenge of Reimagining Citizenship and Belonging in Multicultural and Multinational Societies.” In Demands of Citizenship, edited by C. McKinnon and I. Hampsher-Monk, 212–34. New York: Continuum. – 2003. “Identity Politics.” In The Cambridge History of TwentiethCentury Political Thought, edited by Richard Bellamy and Terence Ball, 517–34. Cambridge: Cambridge University Press. – 2008a. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. – 2008b. Public Philosophy in a New Key. Volume II. Cambridge: Cambridge University Press. Wittgenstein, Ludwig. 1958. The Blue and Brown Books. New York: Harper and Row. – 1968. Philosophical Investigations. Translation by G.E.M. Anscombe. Oxford: Basil Blackwell.

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Crises of Democracy, Civic Freedom, and Democratic Struggles

4 Some Crises of Democracy Charles Taylor

I am very pleased to contribute to this volume. I have been a long-standing colleague of Jim’s and continue to find his innovative and insightful work in political theory both interesting and inspiring. I want to look here at some issues which have been at the centre of both our work. This chapter mainly deals with crises faced in Western democracies today, but it starts with some historical reflections on the different meanings the term “democracy” has held. In particular a distinction is made between a Schumpeterian conception, and a telic conception, which keeps alive the ancient notion of the people as non-elites. The advantage of the conception of democracy with a telos, is that it enables us to trace the alternations between periods of democratic advance and vitality with those of regression and demoralization. The thesis defended is that Western democracies are at present in a phase of regression, and that this holds great dangers for us in the West and for the world.

1 I speak of “some” crises, because “democracy” is a big category, which covers many different forms, even if you exclude the specious ones which call themselves “democracies,” and which clearly do not deserve the name. There are lots of these. Indeed, if you put these together with the polities which to some degree do merit this name, you have the great majority of regimes extant today. This says something about the common assumptions of our era. In fact, democracies are each sui generis.

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Democracy means that power goes to the people, that the people rule. But what does this mean? What ruling means here is different than with autocracies, where we say that one person, king or dictator, rules. This is fairly straightforward: this person calls the shots, names all the important functionaries, makes all the crucial decisions. But a “people” cannot rule in this straightforward sense. It has first, one might say, to give itself a common “will.” And this can only be realized through complex institutions and procedures, which are in turn made sense of in social imaginaries. Democracy can fail because the dominant social imaginary at a given time cannot make sense of it, something that frequently happens. In contemporary Afghanistan, for instance, an understanding of the Loya Jirga as making legitimate decisions has not fully been replaced by one giving legitimacy to a parliament and president elected by universal suffrage. Or, of course, democracy can fail because the sense we make of it is suspect of not really applying: do elected chambers follow people’s will? Because of the complexity of the process of democracy, and because many facts of this process can be hard to verify, questions can almost always be raised about whether the upshot is really what it claims to be (see Morgan 1989). What in fact exists is different democratic societies, which each have their own imaginary, which means their own way of understanding themselves as democracies, along with the range of practices which flows from this understanding. The reality in fact is even more confused and varied, because societies are very often internally divided between different versions of their self-understanding, and on top of this, these evolve over time.1

2 Now it is widely believed in Western liberal societies today that democracy, in all its varieties, is on the march (although there is often little recognition of the real variety). It seems to many that we are on a path which must end with the whole planet under democratic rule. Everyone knows that the road has been rocky up to here. There have been surges forward, and then regressions. The 1930s saw a grave case of the latter: many of the young democracies established after the First World War (the war to make the world safe for democracy) fell victim to more authoritarian forms of rule. But then followed the victory of the Allies in the Second World War, the end

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of colonialism, and the fall of the Berlin wall; and since then there have been hopeful developments in certain parts of Africa, as well as the Arab Spring. On the other side, there have been serious steps backwards. China has not budged, and Russia has reverted to a highly controlled “democracy.” The gains of the Arab Spring now seem minimal. But many people in the West remain optimistic. This is because of their understanding of the underlying forces at work. What is this understanding? Democracy must win out in the end, because it is the most stable form of government. One might even claim that it is the only really stable form, that is, one which does not need to maintain itself with constantly vigilant measures of repression. Democracy as the most stable form? That would have surprised our eighteenth-century forebears, including the founders of the American Republic who distinguished democratic and republican forms of rule and opted for the latter. But that was because they were operating on a different definition of democracy, one which went back to the ancients. I will return to this in a moment. But to return to the thinking underlying the optimistic prospect, the secret of democracy’s appeal is that it offers the rule of law. People can live in security, because their rights are respected, and on the occasions they are not, they can obtain redress in the courts. At the same time, the holding of regular elections under universal suffrage ensures that the interests, at least of the majority, cannot be totally ignored. So democracies can be stable in a way that other regimes cannot. Moreover these others are bound to come under steadily increasing pressure because of a widespread feature of our contemporary world. The idea here is that education, the spread of media, economic change, globalization, consumer capitalism, et cetera, will break people loose from older allegiances to elite power. So that authoritarian countries will eventually sail into seas of instability. The only way in which these can be calmed is by introducing democracy. Hence many predict that even China will have one day to join the democratic club. The understanding of democracy underlying this outlook is what we might call quasi-Shumpeterian. The people is made up of (at least theoretically) equal individuals. They all have the vote. Elites of experts and self-selected politicians actually rule. But the people

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periodically vote; and these elections are free and fair. So there is a real possibility that the incumbents can be thrown out; and there is always an alternative elite ready to take over if the present rulers falter. Let us call this the contingency feature. This feature also has other requirements. It demands free media, open fora of exchange, the right to organize, et cetera. These are things which contribute to free and fair elections, without which the contingency requirement fails to hold. And in liberal thinking in the West, there is also a requirement that all be treated equally and fairly. The demand here is for inclusion, even of people who are different from the majority, ethnically, culturally, religiously. This system ensures the endorsement of at least most people. And this leads to unprecedented stability in history. This is a great reversal from classics, and even the late eighteenth century, as I remarked above. The American founders were wary of democracy. They still had a view that goes back to Aristotle. Democracy is rule of the people, in the sense of non-elites. This would bring dangerous instability, even the spoliation of people of property, on which prosperity and civilization depended. But this disappears in the quasi-Schumpeterian view. And the perception that democracies in their sense are stable lies behind the optimistic prognosis of established liberal thought. What is wrong with this picture? One thing is that it clearly underestimates the resources that authoritarian regimes can draw on: in particular nationalism, a sense of historic grievance against formerly dominant Western colonial powers, a sense even of humiliation at their hands, and the feeling that these same Western powers are trying to weaken us by destroying the moral fabric of our society and its religion, fostering laxity, homosexuality, and so on. Putin is even trying to create a counter-Liberal international on the basis of a common resistance to cultural-moral erosion. But what this optimistic prospect also neglects is the decay and regression within established democracies, which in turn intensifies their inability to respond to new challenges that they face.

3 But to see this we have to look another conception of democracy. This is still in continuity with the older tradition. Democracy is not simply identified with the rule of the whole people; it must also take

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account of the ambiguity, the polysemy, that affects the people, the demos or populous. In modern European languages, this word oscillates between two senses: the global one, where the people includes all members of the society; and the more restricted one, where it applies to the non-elites. This latter was the sense of the classical “demos,” which is why Aristotle applied the term “democracy” to a form of class rule, by the demos, over the rich and noble. And the late eighteenth century was just following Aristotle in this. So Aristotle’s ideal polity was a sort of balance of power between different classes, avoiding two one-sided regimes, oligarchy and democracy. The modern conception I want to recapture here, as an alternative to the Schumpeterian one, is not a simple return to the ancients. It has a streak in it of universalist egalitarianism which was quite absent from Aristotle’s thought. The notion is that democracy has as its telos rule by the “people” in the global sense, but that modern society retains (or threatens to recreate) deep differences of power between elites and non-elites, and thus that this society needs to be transformed in order to reach (or safeguard) its goal. This understanding of democracy cannot be stated, nor can its conditions of realization be discussed, unless one retains the double sense of the term “people.” There is in fact an inner link between the two senses of “people.” The Greek “class” concept merges into the modern “all-englobing” one, via an eschatological hope that the first becomes the second. This can take utopian forms: “The socialist international will be the human race.” But it is also a central promise of democracy, in what we can call its telic conception. (Of course, these two conceptions are ideal types; the actual social imaginary of most contemporary Western democracies are complex, and not entirely coherent. In most of them, the understanding oscillates between the two notions, depending on the political context and issues.) But on the level of democratic theory, it is as though what I am calling the “Schumpeterian” use of the term supposes that the telos is already irreversibly attained, so that the restrictive or class-based use of “people” can just be forgotten. Indeed, it is often claimed that it ought to be forgotten, and protagonists of egalitarian policies are often accused by their opponents of waging “class war.” But this supposition is very much at variance with the facts. And not only the contemporary facts; because the notion of an irreversible realization of the telos is quite implausible. If we look at the real

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world of democracy over the last two centuries, we see an oscillation between forward movements and subsequent regressions. The very basis of the division between elites and non-elites, the bases of social power have evolved. Where at the beginning, the basis of differential power was landed property, this shifted in a later era to the control of industry and railroads; then this control shifted from individuals to corporations; which later become transnational. And in the contemporary period, financial institutions also wield disproportionate influence over our general fate. Instruments and arrangements designed to counterbalance or offset its effects, like the antitrust acts in early twentieth-century US, or the welfare state in the post-Second-World-War West, either become ineffective or are undermined under later constellations of power. And so we see an oscillation between gains and losses in the pursuit of economic inequality. The original inequalities of landed wealth were undermined by the development of industry and commerce; which in turn produced the dramatic inequalities of the era of the robber barons in the usa . These gross inequalities in turn were reduced in the mid-twentieth century by the creation of the welfare state, the growth of trade unions, and the policies of full employment. And then since the 1970s, this later advance has been steadily rolled back, and inequality is heading for an all-time high in history. So the understanding of democracy as a telos to be achieved remains very pertinent to our time, and will probably never become an irrelevant concept, relegated to an unrecoverable past. This importance of the telic conception emerges in (what seems to me) another fact of modern democratic history. Democracies are the site of continuing struggles over a host of issues, but some of the most important are those which engage the question, are we moving forward towards, or backwards away from our telos. It is in moments where people sense a movement forward that democratic politics becomes most vibrant, as we saw in the trente glorieuses, the three decades which followed the Second World War; and as we can see today in India (see, for instance, Banerjee 2014); and in moments of nascent democratic hope, as in Tahrir square. And conversely, as we slide away, cynicism increases, and the level of participation drops, as is visible today in Western democracies, compared to their condition in the postwar period.2

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4 Let us look at some of the conditions of modern democracy. I want to lay out four, and then discuss at length one of these. To bring about a successful transition to democracy, we have to have the repertory. That is, we have to have within our social imaginary the means to make sense of the new institutions and procedures that we need. Otherwise the transition cannot succeed. It cannot be pulled off if our existing repertory is too far from what is required; as is perhaps the case of Afghanistan where the leap from the older institutions of the Loya Jirga to a new presidential system seemed too great. We can break this general requirement down into four aspects: We have (1) to understand ourselves as forming collective agencies; and (2) to understand the institutions or procedures, or both, as constituting valid decisions of this agency. There are also two more necessary facets of our self-understanding as a democracy: We need (3) a common understanding of modes of nondestructive conflict; and (4) democracies are all modern states, and they have the power and vocation of changing the society through state power. They seek designed change, which often goes under the name “Development.” Often the transition is impossible because this feature is too distant from repertory. “Failed states” is the term we often used of societies where one or several of these is missing. The Russian transition of 1917 failed largely on (1). There was widespread understanding among peasants of self-rule, but at the level of the mir, or village. There were no indigenous institutions of self-rule at the level of the whole people. So that role had to be filled by active elites, in this case, the Bolsheviks. Fulfilling condition (1) is not easy. It is why we often have to “invent” nations. Number (2) can be illustrated by comparing the aftermath of the American and French Revolutions. In the US case, there was already an extant practice of government through elected assemblies, which gave an obvious sense to popular rule. It could be extended into the new regime which did away with royal governors, and became the basis for the new federation. In the French case, there were no such obvious forms; indeed, elected assemblies laboured under the suspicion that they were usurping power from the people. So once they abandoned the form of the États généraux, there was no agreed, self-evident replacement. Rather struggle ensued over how

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to organize government. In this the Rousseauian idea of a volonté générale played a big role. By contrast, the French had a tradition of popular insurrection (which emerged in the taking of the Bastille). But this made no claim to sovereignty. This too needed to be reinterpreted (see Taylor 2004). But what is crucial is (3): the place of conflict. A democracy without conflict was dreamed of by Rousseau (1964). The general will can be so obvious that what one proposes, everyone immediately agrees. But this is utopian, in the bad sense: that is, the expectation is also pregnant with totalitarian danger. In real democracies, there is conflict for all sorts of issues. And, as I said above, one crucial issue keeps recurring: conflict over realizing democracy itself. Democracies are always sliding away from their supposed ideal, towards various forms of elite rule. Hence the double meaning of demos, inscribed in the telic conception. And something like tension, conflict, class war, is crucial for democracy. Why? Because we can only have no conflict, or conflicts which deal only with minor matters, if in some way elites remain unchallenged. So it is not an accident that many of the most vibrant democracies, measured in terms of felt citizen efficacy, were polarized along the lines of elite people. They were the site of popular mobilizations: farm labour (in the usa and Canada); or else class mobilizations in Europe. But conflict is not itself beneficial. It must be tamed and channeled by ordered, peaceful institutions. Parliaments, elected officers, the rule of law, an independent judiciary, a political culture of moderation. And this in turn feeds on a strong sense of common identity; often provided by national sentiment; we are back to (1). This paradoxical mixture of conflict and unity is hard to achieve, even hard for many to understand. It actually predates democracy and goes back to the notion of “His Majesty’s loyal opposition,” in an earlier phase of representative government. This was not easily understood in the rest of Europe in the eighteenth century.3

5 Where this is so, then the real formula of republican longevity and stability is complex. It involves both a powerful patriotic identification, and a mobilization for collective action along class lines.

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Moreover, if we now move to the level of identity or social imaginary, this synthesis is at its most stable when there is an inner link between national identity and the class-mobilized one. This is what you do in fact find in the twentieth-century history of some Western democracies. The “labour movement” consciousness in the uk was connected to the traditional British patriotic sense of a “free Briton,” or “free Englishman.” The goals of the labour movement were seen as the proper fulfilment of this goal or ideal, and there was thus a patriotic dimension to labour consciousness. That this might not be an unequivocally good thing becomes evident if one thinks of those moments when patriotism tipped over into jingoism. But I am not here describing an ideal but a real historical phenomenon. In a similar way, the French Communist identity was intrinsically linked to the republican one. Communism was seen to be the final fulfilment of the promise or values of the Republic. Hence the strong cohort of Marxist historians of the Revolution, who often painted it in an implausibly positive light. But this consciousness was not confined to academic historians, it was part of the basic appeal of the French Communist Party. There was also a negative side to this French working-class patriotism, as emerged at the time of the Algerian War. Now this inner link between class movement and the republic, the idea that the goals of our movement (say, Communism) represent the proper form of the republic, draws on an implicit endorsement of the ideal of popular sovereignty. It in fact reflects what I have been calling the “telic” conception. The claim is: our program represents the really adequate form in which the people could rule. An analogous assumption was implicit in the British labour movement. We might speak here of a “complex telic identity,” linking class (or non-elites) and nation.

6 There is a certain model of citizen efficacy which is typical of societies with this kind of complex identity, but is also found in others. In what one might call the pure ideal type, two big parties, or groups of parties, are divided not by single issues but by packages: issues of redistribution, of the welfare state, the rights of trade unions, taxation, equality issues, and so on. In the case particularly of the Left, this involved social movements of various kinds linked into the party: trade unions (tu s), cooperatives; then also youth groups, et

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cetera. These could become virtually complete houses for half the society. Sometimes this was matched on the Right. Both had their own project of democracy, the Left thinking that democracy needs to be completed, for instance the French socialists see their program as essential to the republic. The Right, for its part may think that democracy is in danger of being degraded. Also, insofar as democracy is part of national identity, this involves two definitions of this identity. Or in more radical version, the Right proposes a nondemocratic definition of this identity. As did, for instance, the French Royalists, following Maurras and l’Action française. The above is the case with the paradigm exemplified by the uk and France. But there are also other two party systems, which may for certain periods be polarized Left-Right, but then can come back into nonideological alternatives. The United States for some periods, Canada occasionally, between Liberals and Tories. But this ignores the (alas, extinct) Red Tories, not to speak of the New Democratic Party (ndp ). And in many societies, which do not share the complex telic identity, there is element of programmatic polarization opposing packages of issues. And when one thinks of Barack Obama’s campaign in 2008, one of whose central themes was that of completing “a more perfect union,” it is clear that the telic understanding is not completely absent in the US. But let us look at the issue of citizen efficacy; that is, felt efficacy. This is the Achilles heel of advanced democracies. The model of citizen efficacy here, in both the uk -French paradigm, and in many other programmatically polarized societies, is a broad-gauge one: I seek input or influence over the whole governance of my society, that is, not only over the decision on this or that issue, but over the whole way these issues are defined, prioritized, and related to each other. It makes sense in this framework to pick as my vehicle of choice a party that could aspire to govern, or take part with others in a governing coalition; or failing this a broad-gauge association like the National Association for the Advancement of Colored People (naacp ) in the US. But today another model seems to be coming to the fore. It abandons this broad-gauge route. It looks to punctual, targeted interventions. The effective citizen is the one who can, for instance, defend her rights, or a particular right of some category of individuals; or else is capable of advancing some particular cause that she cherishes. The chosen

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instruments in this case are, in some jurisdictions, legal, fighting before courts and other adjudicating bodies; or else they take the form of single-issue lobbies, like the Sierra Club, for example. It is clear that on this second model, the importance of voting in elections will be much less. Of course, if I care supremely about a given issue, and one party adopts my position on this, I will probably want to vote for them. But there are frequently countervailing considerations: perhaps I am not all that confident that this party will really deliver (what many right-wing Christians fear about Republicans who promise to oppose gay marriage and abortion – they are not always without justification in this suspicion); and perhaps also this party has taken a whole host of other stands on other questions which I do not particularly favour. Voting is not itself a priority, as it is in the first model, provided my party is running. Now what seems to have happened over the last decades in many Western democracies is that the model of efficacy that people subscribe to, often just tacitly, has slipped from the first in the direction of the second. This happened first in the United States, but other Atlantic societies seem to be following suit some distance behind. The slippage can sometimes be measured in terms of the differential behaviour of generations. Robert Putnam (2000, chap. 14) shows that the habit of voting remains high among the older age cohorts; they generally vote as often as before. The general level of participation goes down because the succeeding cohorts vote less and less. This is not a life-cycle matter. Earlier generations do not vote (appreciably) less now than before. Younger people do not vote more as they get older. It is a generational shift. The advantages of the first model were that it led non-elites to identify with the republic. Connected with this, it gave them a sense of citizen efficacy. This came partly through the obvious mechanism: I vote for the socialists; they bring about changes on a host of issues I identify with. This is the bunching mechanism: issues cluster on Left and Right.

7 The move from the first model to the second comes for a host of reasons. First, the tamed class struggle has been breaking down, or at least fragmenting. One important and very beneficial reason for this is

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the emergence of new issues which were sidelined in the old polarization: particularly those raised by the feminist movements, by environmentalists, by defenders of multiculturalism, and gay rights. Then there is coming of greater prosperity, which may make people no longer feel class solidarity. Then there is the growth of a new culture which is more individualist in certain respects; this comes in two dimensions, which can sometimes combine in their effects: on the one hand, consumerism; on the other hand, the ethic of authenticity, with its concern for identity. And so issues fragment. And the party system may also be transformed by these changes, as has happened with the rise of Green parties. The older “packages” become looser, and in some cases new packages, linking life-style questions, come to the fore. But the change in model comes partly because we lose faith in the first model. The older sense of citizen efficacy is undermined; there is a loss of group solidarity around the original cluster, so I no longer have an obvious way of registering my goals politically and effectively. And so the participation in elections declines: successive cohorts vote less, partly through disinterest, nonidentification with party, partly through despair over inefficacy. This despair is intensified because voting abstention tilts the system towards entrenched privileges and the status quo. The vote declines less among those who identify with entrenched interests: · less among rich than among poor; · less among educated than uneducated; · less among people with steady income and own houses than among people living hand to mouth; · less among old than among young; · often also less among majorities than minorities · (note again, the difference from India). So a sense of powerlessness grows before bureaucrats, special interests, elites. And this is again intensified by the increase of economic globalization; and latterly, the power of finance to wreak havoc in our lives. All this increases the sense that our recourse, if any, is not the vote, but (perhaps) special issue mobilization. There are a series of vicious circles here, downward spirals through which the sense of inefficacy decreases efficacy in fact, which in turn

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intensifies the sense. For example, despair over inefficacy leads to abstention, and a decline in citizen participation, which as a result increases the power of money in politics (e.g., heavier reliance of politicians on expensive television, because they lack a “ground game”; a fragmented society, with less mobilization means that we need media more). But the greater power of money, exercised through the oligopoly of media, makes the whole process less transparent. And all this objectively reduces the efficacy of citizen action. Which in turn increases despair, and the cycle starts again. Then the gap between rich and poor widens. The middle-class shrinks (Piketty 2013, chap. 8 and 9). There are less steady jobs. And there do not seem to be mechanisms to reverse this. The sense of equal citizenship, which is partly a matter of selfunderstanding, fades as the experience of acting together, or even being in its other’s presence becomes rarer. People in ghettos, on the one hand, and gated communities on the other have trouble imagining themselves as partners in a democratic exercise.4 The power of the ideal of equal citizenship is then deflected by ideologies of unworthiness. The rich and successful come to believe that the “47%” really do not deserve to be full citizens along with them.5 Hence the attempts by right-wing parties to make it difficult to get to the polls (US Republicans, Canadian Conservatives). These are self-feeding spirals. We are not only in an era of democratic regression, in which the telos recedes; but it seems that the decline is self-feeding. It is hard to see how to stop it.

8 How can we stop this slide? There are mass mobilizations, like Occupy, the Indignados, or le printemps érable in Quebec. But these will not in themselves lead to the kind of measures which will arrest the widening gap between unequal life situations. To do this they have to issue in big changes in government policy, which can only come through political mobilization around the vote. But today’s mobilizations tend to mistrust and stay away from party politics and voting. The acute sense of the decline of democracy leads them more often to improve and intensify democratic control within the movement. Some very valuable results come out of this, new techniques and forms of self-government, for instance.

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But these can leave control of the overall political and economic structures in the same hands. We have to mobilize around the value of equal citizenship. This not just a matter of equalities of distribution, or opportunity; qualities which can be defined by comparing what individuals have or get. Equal citizenship involves also understanding the footing we are on with each other. Rosanvallon shows that crucial to democracy was this notion; we are engaged in a project together in which we stand as equal partners; the “we” behind this collective action is one of equals. We are not like an army unit, not like a family with minor children, not like a feudal host. We are equals. This has to be part of our social imaginary (Rosanvallon 2011, part I, chap. 3; part V, chap. 5). So we need to value this kind of equality; to build solidarity on this, and not just on carrying the same passport. And this has to be inclusive; something which is threatened by class rationalizations about people not trying, or rejection of outsiders. The danger here comes from right-wing exclusive populism, as with the Tea Party; but also with “anti-elitist” ethnic populism: Le Pen, Wilders, Orban. There has always been a certain fictitious dimension to equal citizenship. But there are fictions which move us towards their at least partial realization; self-realizing fictions. But now the differences are getting so great that fiction cannot get a grip on the reality. It is too contradicted by the reality. And then ideology steps in to make the gap with the fiction invisible, because the people who fall outside equality do not count. False moralizations enter the scene and make the goal unimaginable. So there is an overall slide: the power of money, and the gap between those with and without money, become self-entrenching, self-intensifying realities. Democracy is being hollowed out, becoming unbelievable, breeding a sense of cynicism, which leads people to opt out of citizenship. We need to arrest this slide, to reverse the slide towards gated communities, “skyboxification,” and towards a fragmented public sphere.

9 This is a tall order. How to bring this about? I leave this for another occasion (which does not mean that I have elaborate solutions that I am withholding, alas). But I have tried to show that the Whiggish optimism about the inevitable triumph of democracy is very

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misplaced; not just because there is no guarantee that it will spread beyond its present limits, but also because even the most longestablished democracies are liable to regression. And in democracy’s historic heartlands in the North-West, a frightening regression is gathering force. Our democracies today face three big challenges: 1 The despair of the demos. 2 Cultural or ethical exclusion. 3 Inability to bring democratic action to bear on big international problems, such as global warming, the need to ensure full employment without runaway growth, and others. I have been dealing here with the first. But the inability to reverse this makes it all the more difficult to deal with the other two; in particular, the third. The same powerful forces which are blocking all attempts to reverse growing inequality are also stonewalling all effective measures to deal with climate change. We need to find new avenues of international democratic action. And here we can draw inspiration from the recent pathbreaking work of James Tully. n ot e s 1 See Pierre Rosanvallon (2003, 16): “le peuple n’existe qu’à travers des représentations approximatives et successives de lui-même.” 2 Of course, the telic conception, with its idea of the people as nonelite, is not without its dangers. It is regularly highjacked in contemporary society by what is often called “populism,” where “people” is given an exclusionary ethnic, cultural, even racial definition. This constitutes one of the three great issues for contemporary democracy, which I outline in the last section. 3 It seems a feature of our day in Western democracy that the inability to sustain this culture is mainly evident on the Right of the political spectrum: US republicans (and their would-be imitators in Canada), as well as the rather different phenomenon of the xenophobic Right in Europe. 4 See Michael Sandel (2012), on the “skyboxification” of American leisure activities. 5 [Note from the editors: this refers to Mitt Romney’s 2012 declaration regarding those who allegedly “depend upon government”: “There are 47

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percent of the people who will vote for the president no matter what. All right, there are 47 percent who are with him, who are dependent upon government, who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you-name-it. That that’s an entitlement. And the government should give it to them. And they will vote for this president no matter what … These are people who pay no income tax … [M]y job is not to worry about those people. I’ll never convince them they should take personal responsibility and care for their lives.” Available at: http://www.motherjones.com/mojo/2013/07/mittromney-47-percent-denial ]

r e f e re n ce s Banerjee, Mukulika. 2014. Why India Votes? London: Routledge. Morgan, Edmund. 1989. Inventing the People. New York: W.W. Norton. Piketty, Thomas. 2013. Le Capital au XXIe siècle. Paris: Seuil. Putnam, Robert. 2000. Bowling Alone: The Collapse and Revival of American Community. New York: Simon & Schuster. Rosanvallon, Pierre. 2003. Pour une histoire conceptuelle du politique. Paris: Seuil. – 2011. La société des égaux. Paris: Seuil. Rousseau, Jean-Jacques. 1964. Le contrat social. Paris: Gallimard. Sandel, Michael. 2012. What Money Can’t Buy: The Moral Limits of Markets. New York: Farrar, Straus and Giroux. Taylor, Charles. 2004. Modern Social Imaginaries. Raleigh: Duke University Press.

5 Learning from the Streets? Civil Disobedience in Theory and Practice Robin Celikates

In Jim Tully’s work, practices of dissent, contestation, and disobedience stand at the centre of what it means to be a citizen, and not a mere subject. This does not only have political implications, making noninstitutionalized practices of contestation central to what Tully has so convincingly characterized as “practices of civic freedom.” As he both argues and exemplifies in his work, it has philosophical implications as well, urging theorists to take up a dialogical orientation that forbids any recourse to the “legislative stance.” This dialogical orientation commits them to being open to the experiences people make in the practices in which they engage, to listening to them and to learning from them, in short, to entering into “pedagogical relationships of reciprocal elucidation between academic research and the civic activities of fellow citizens” (Tully 2008a, 3). Given that civil disobedience has historically been, and arguably continues to be today, a key civic practice in the repertoire of contestation, in this contribution I will ask what theorists (who are, of course, also often participants) can learn about this practice from how it is exercised on the ground. How can noninstitutionalized activist practices of challenging established and institutionalized forms of vertical authority and of confronting “low-intensity representative democratic institutions” with “participatory or high-intensity democratic forms of democracy and self-determination” (Tully 2008b, 206, 158) inform the attempt to theorize disobedience? Asking these questions, that is, starting from the practice of dissent on the streets, is especially relevant in the case of civil disobedience,

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since the theoretical discussion about this political practice – a practice with a rich and contested history that stretches from Henry David Thoreau via Mahatma Gandhi and Martin Luther King, Jr to Occupy (and in this latter case from New York to Hong Kong), from Black Lives Matter to Ni Una Menos – has been marked by a number of systematic shortcomings. These shortcomings can be seen as stemming from theorists’ at least partial ignorance of, and only very selective attention to, the complex historical and contemporary reality of disobedience, leading many of them to a simplified and depoliticized understanding of this practice.1 Fortunately, in recent years a countertendency has emerged, leading to a new range of studies that seek to preserve and learn from the complexity of the history and presence of civil disobedience as a radically contestatory practice (see, for example, Celikates 2016; Delmas 2018; Çidam 2020; Pineda 2021; Scheuerman 2021). Spelling out some of the fundamental commitments of my own contributions to this tendency, in what follows I will sketch central theoretical lessons that can be drawn from the streets, but I will avoid using the term “example,” since the idea is not to use a series of events from the real world to illustrate a theoretical point, but rather, in a more dialogical way inspired by Tully’s methodological commitments and theoretical ethos, to show what theory can learn from practice – where practice provides exemplars rather than simply examples (at the same time it is worth noting that this is no one-way street as practice is frequently shaped by theoretical notions and conceptions, and a commitment to the problematization and transformation of hegemonic ways of doing and thinking is shared by emancipatory practice and theorizing).2 In particular I will focus on the Gezi uprising, a wave of protests in Turkey that started on 28 May 2013, died down over the subsequent summer and did not manage to regain momentum since then due to a rapidly changing political environment marked by massive state repression, a failed coup, and a subsequent intensification of the crackdown on the democratic opposition. Taking its name from Istanbul’s Gezi Park, which played a prominent role at the initiation and during the movement, these protests also took place in many other less prominent neighbourhoods that have historically experienced much more sustained forms of police violence, such as predominantly Kurdish neighbourhoods. Despite its limited immediate impact on the Turkish political system, this uprising has become a prominent episode in the

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cycle of global protest that started with the so-called Arab Spring (a problematic designation that tends to make invisible the long and sometimes subterranean history of struggle and resistance in these countries, a prehistory without which the spring would not have been possible). After the protests in Istanbul had first focused on the neoliberal transformation of urban space and its disastrous ecological and social consequences, they spread out socially (in terms of participants), geographically (in terms of neighbourhoods and cities involved), and politically (in terms both of the substance of the demands that were formulated and the way in which they were formulated) – their political and theoretical significance, however, is even more far-reaching.3 Highlighting some central aspects of these protests will serve to indicate three ways in which the practice of civil disobedience is more complex and also more political than is suggested by the mainstream understanding of it as a primarily or exclusively symbolic and nonviolent act of protest by concerned citizens that involves breaking particular laws without challenging the legitimacy of the existing order. The three aspects I will focus on are 1) the meaning of “civil” in civil disobedience, which, we should not identify too quickly with non-violent, partly against Tully’s strict commitment to nonviolence, 2) political mobilization and the essentially collective character of civil disobedience, and 3) the inventiveness of the practice of civil disobedience in terms of the repertoire of political action that goes beyond the simple dichotomy of a merely symbolic appeal on the one hand and violent militancy on the other.

1 . t he m ea ni ng s of “ci vi l” What, then, is civil about civil disobedience? It is well worth emphasizing the civil and civic character of the 2013 uprising in Turkey which is all the more remarkable since it was the outcome of massive self-restraint in the face of the enormous aggression and repression exercised by the government and its security forces and the evident power asymmetry they imposed on the movement from the very beginning. Against this background, the civility of the movement should be understood as an expression of political commitment rather than – as most liberal accounts would suggest – a sign of loyalty to the state: instead of signaling their fidelity to the existing order – an order many of the participants rejected and were seeking

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to radically transform – the civil character of their actions demonstrated their political and ethical choice for another type of politics, one that is qualitatively distinct from the established, and in their view corrupted and discredited, ways of acting within the system. In addition, as Gandhi and King already knew, and as Tully emphasizes throughout his work, civility in this sense (or a “civic ethos”) is a significant political achievement and the always precarious outcome of an individual and collective – and most importantly: continuous – work on the self.4 Its dual ethical and political character is exemplified in the protesters’ refusal to engage in the political game of “othering” (ötekiles¸tirme), immediately taken up by then Prime Minister Erdog˘an who referred to the protesters in a derogatory way as “çapulcu” (looters and vandals), a term they happily appropriated, quickly turning it into an ironic and joyful self-identification subverting official propaganda (Konya 2020). In mainstream discourse, the “civil” in “civil disobedience” is often taken to mean that protesters do not engage in confrontational, aggressive, or violent behaviour, that is, it is regularly identified with (often romanticized and one-sided interpretations of) the idea of nonviolence and peacefulness. While Tully does leave room for confrontational, disruptive, and agonistic forms of political protest – highlighting their role for example in anti-colonial struggles – in his understanding, “civic” does also imply “nonviolent.”5 Whether that is convincing, however, of course depends on how precisely violence is understood. As an extremely contested and politicized notion, violence is often stretched beyond recognition by legal systems and political representatives – to give just one example, in many jurisdictions it counts as an act of violent coercion to block traffic by collectively sitting down on an intersection, and whether property damage or destruction should count as violent is disputed, even in activist circles. A related problem – not so much in Tully’s work as in mainstream liberal (academic and nonacademic) discourse – is that this identification of “civil” with “nonviolent” is often based on a biased understanding of the activism of Gandhi and King and the broader context of the movement for independence in India and the American Civil Rights Movement, and more recently also of Nelson Mandela and the African National Congress; an understanding that in some cases amounts to historical whitewashing (see Bentouhami 2009; Pineda 2015). My point here is not that we should develop a better theoretical definition of violence, spelling out necessary and sufficient conditions,

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that could subsequently be applied to the practice of disobedience. Rather, without problematizing how both violence and nonviolence are understood in both theory and practice and without paying more attention to how this distinction is politically instrumentalized in policing and disciplining radical protest, insisting on the necessarily nonviolent character of civil and civic forms of contestation is both politically and theoretically problematic. In many countries, including Germany and Turkey, it can nowadays count (in public opinion but also in a court of law) as an act of violent coercion to collectively stand in one place, to sit down on the street, or to make fun of the ruling authorities; trespassing and damaging private property are regularly subsumed under the notion of violence, thus assimilating them to serious violations of the bodily integrity of actual persons; and forms of digital disobedience – from the leaking engaged in by Wikileaks and Edward Snowden to the distributed denial of service (DDoS)-actions of Anonymous – are criminalized as forms of cyber vandalism and terrorism, with activists being persecuted, convicted, and jailed without any acknowledgment of the political and moral character of their actions. As a result, a simple affirmation of nonviolence risks falling short, for political and theoretical reasons. The pattern that emerges here is a feature of repressive tolerance in Herbert Marcuse’s sense: governments pursue a tactic of divide and conquer with regard to protest, portraying and celebrating certain forms of protest as good (good in terms of who protests how and with what aim) and labeling and repressing other forms of protest – often those of marginalized groups – as violent, uncivil, and criminal (see Marcuse 1969). The latter aspect can be illustrated by the official reaction to highly visible cases of political unrest, from the uprisings in the French banlieues in 2005 and in London in 2011 to some of the protests against police violence in the US in the wake of the killing of George Floyd in 2020, all of which have been disqualified as “senseless rioting” and met with police violence. The Paris and London uprisings were even framed by theorists as “issueless” or driven by “consumerist desires,” that is, as non-, pre-, or even anti-political, despite plenty of evidence that protestors reacted to systematic violations of their genuinely political claims of citizenship.6 In such a context, describing an event, activity, person, or group as violent, far from being a neutral observation, is always also a politically charged speech act that can reproduce forms of marginalization and exclusion that are often racialized and gendered.

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It might therefore also be worth emphasizing that, following Tully and in contrast to established understandings, the category of “citizenship” here is not limited to those recognized as citizens by the state, but understood in the broad sense as referring to all those who act politically and thus engage in acts of citizenship, thereby enacting citizenship and constituting themselves as citizens (see Isin 2008; Tully 2014a, 35 ff.). Indeed, as Étienne Balibar has argued, “irregular migrants” and “sans papiers,” in acting politically in ways and places they are not supposed to, can be seen as exemplifying and recreating citizenship, not as an institution or a status, but as a collective practice at the heart of democracy, expressing the capacity to question the rules they are subject to (see Balibar 1996; Celikates 2019). Instead of simply identifying the civil and civic character of collective action with nonviolence we should therefore insist that civility is quite compatible with a variety of actions often classified as violent. The first of these is violence against oneself. As is well-known, this form of violence plays a crucial role in the repertoire of action of protest movements, recently underlined by the self-immolation of Mohamed Bouazizi which was a catalyst for the mobilization of the people in Tunisia in December 2010 at the very beginning of the so-called Arab Spring (see Bargu 2016). The second is violence in self-defence – think of (often, but not always) relatively minor and constrained forms of violence in defence against police aggression, for example, in the form of defending barricades against attempts by the police to storm an occupied park or square, as in Istanbul during the Gezi uprising or in Kiev during the Euromaidan protests in 2013. The third category is maybe most obviously compatible with the civility of protest, namely the (limited) destruction of and damage to private or public property which is also often considered as violent by the state, the law, and influential public voices. These forms of violence, if we want to call them that, can all be eminently political – and civil as well as civic, I would argue – in reasserting the political agency of those who engage in them against the forms of domination, exclusion, or marginalization which they are subjected to. What is more, the debate about what counts as violence, and which forms of violence might be politically mandated or acceptable, without denying the mutual entanglement of means and ends that is central to the idea and practice of prefigurative politics, is an integral part of the discourse that takes place within movements and struggles. As a result, movements and struggles that are publicly

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perceived as violent and blamed for unthinkingly or uncritically engaging in destructive behaviour have often developed a complex position regarding the question of violence that resists the simplistic dichotomy of either rejecting or embracing violent means. Against this background, civility cannot be understood as requiring citizens to be polite, considerate, reasonable, and well-behaved under all circumstances, especially given the socially coded and class-dependent meanings of the underlying norms of “civility” (Delmas 2018; Celikates 2020).7 What is decisive for the civility of protest is thus not that it is nonviolent in a sense that would exclude these forms of action or that it is purely symbolic and remains “peaceful” and “civilized” (although movements of course often make that choice for strategic reasons, so as not to alienate influential parts of the population that are averse to more disruptive and radical forms of claim-making). Rather what establishes the civility of protest is that it does not follow a military logic and replace civil and civic resistance with armed force aimed at the physical destruction of an (imagined) enemy. Those who engage in civil and civic practices of disobedience and contestation continue to act as citizens – indeed they exemplify what it means to be a citizen – and thus acknowledge some kind of civil bond with their adversaries. Acknowledging this bond, however strained it may be, is incompatible with the intention to kill or inflict serious physical harm on one’s opponents. Such are the normative constraints that follow from a political understanding of the “civil” in civil disobedience, and although they are obviously nontrivial, they are much weaker and restrictive, and also much less open to political instrumentalization, than the identification of “civil” with “nonviolent” usually implies. Hence, in the case of the Gezi uprising, the civil and civic character of the movement – despite its engagement in sometimes confrontational and even violent forms of action – prominently expresses itself in the radical refusal of seeing the other side as the “enemy” and of playing the established political game of polarization and defamation (see Karakayali and Yaka 2014). As in so many other recent protest movements, most prominently in Occupy, in the Turkish uprising civility has therefore also been connected to what is often called prefiguration. Prefigurative politics – a notion that emerged as central in Tully’s more recent writings on political struggles, which emphasize the ethical norm of “being the change” at the heart of cooperative citizenship – experimentally anticipates the transformation it seeks

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to initiate in the way the struggle is organized here and now: in a horizontal, participatory, inclusive and civil way, thus breaking not only with the authoritarian state and the politics of the Right but also with the vanguardist tradition of the militant Left (see van de Sande 2013). However, it is equally important to acknowledge that a political struggle that is imposing limits on itself in the light of such an internal relation between means and ends can engage in forms of resistance that are seen as, and sometimes also intended to be, violent. Here we only have to think of the struggle of the African National Congress and its armed wing uMkhonto we Sizwe, and more specifically of Nelson Mandela’s justification of the decision to resort to violence – especially in the form of sabotage aimed at infrastructure, not of violence directly aimed at individuals or of “terrorism” – at the Rivonia Trial in April 1964, after a long period of unsuccessful attempts to end racial injustice by peaceful means (see Mandela 1964). Although that struggle clearly went beyond civil disobedience, there are strong reasons to characterize it as civil and civic in light of the ethical and political self-limiting commitments that informed it. A similar point can be made with regard to the struggle for Indigenous rights – and especially rights of sovereignty over territory – that challenges the very basis of the existing Canadian polity and in response to which the government has predictably proven not to be very open to the “forceless force of the better argument.” As Taiaiake Alfred (in this volume) and Glen Sean Coulthard (2014) argue, under such circumstances, the discourse of reconciliation, recognition, and reasonable claim-making tends to reinforce the problematic consequences of colonization and to mask the intransigence of the state, putting the blame on those who are framed as unable to move forward and stuck in unproductive attitudes of rage and resentment. In this context, resorting to more radical forms of political action – such as blockade, sabotage, and other forms of insurrection that go beyond noncooperation – will undoubtedly be qualified as violent or even “terrorist” by the state and mainstream public discourse, although this might be the only avenue left for an articulation of dissent that is compatible with one’s self-respect and reasserts one’s agency (see also Estes 2019, and, in a different context, Malm 2021). This is not to deny that nonviolent struggles have often been successful nor is it to

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claim that violence is ever inevitable. It does mean, however, that in certain contexts those suffering from oppression can have strong reasons to engage in forms of opposition and dissent that are often seen as departing from the path of nonviolence.8 The first lesson to be learned – and here Tully and I are in agreement – is thus that civil and civic forms of resistance are not reducible to purely symbolic means of protest – even occupying a square or an intersection is obviously more than symbolic. In order to retain their effectiveness, civic forms of protest in general and civil disobedience in particular will in many circumstances have to be careful not to be reduced to their symbolic dimension, they have to maintain a confrontational dynamic as well – not least in order to defend their civil character. Civil disobedience can only function as symbolic protest – as dramatization in Martin Luther King, Jr’s sense9 – if it involves moments of real confrontation, such as practices of blockade and occupation (but also digital forms of activism such as hacking), and at the same time it can only function as real confrontation if its participants are aware of its irreducible symbolic dimension – the fact that it is always also a performance in need of (and in search for) a stage and an audience. It is one of the strongest indications of the radically democratic character of recent protest movements – from Occupy to the Gezi uprising, from Black Lives Matter to Ni Una Menos – that they developed new forms and practices for this constant internal self-reflexivity, which prominently includes reflection about the relation between means and ends and the distinction between violence and nonviolence, whether one agrees with the outcome of these reflections or not.

2. t h e dy na mi cs o f co llecti ve acti on The second lesson theory can learn from practice concerns the question of political mobilization. I mean this not in the sense of looking for a single set of objective causes that can explain why people start to rise up. After the event, social scientists are quick to point to shifting patterns of social mobility, urban transformation, and clashing political cultures as the causes of what happened, but in the case of the Gezi uprising as with the so-called Arab Spring these are largely ex post rationalizations, since – despite the significant histories of struggle in all these cases – no one was able to predict these events. Importantly, this includes the activists themselves who have been

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equally surprised by the dynamics of the chain of events they have set in motion. Of course, Turkish activists have been preparing, creating collective spaces, forging collaborations, and developing new vocabularies, especially in the Resistanbul movement against the World Bank and International Monetary Fund (imf ) summit in Istanbul 2009, the Migrant Solidarity Network, and the struggle against the demolition of the landmark Emek Movie Theater. However, no one really knew for what they were preparing, until it happened – and when it happened, the preparation, the collaborations and informal infrastructures, as well as the experiences and skills proved crucial.10 This sense of surprise has to be preserved against the urge to explain and to fit what happened into all-too-familiar historical patterns and narratives. It was precisely this sense that led Edgar Morin, Claude Lefort, and Cornelius Castoriadis (2008) to write their famous intervention La Brèche at the height of the Paris May 1968 uprising, defending the radical character of this opening against all attempts to reduce it – politically, sociologically, or historically – to a generational conflict, economic frustration, or romantic anarchism. Of course, people have myriads of reasons to protest, but for such politically and socially heterogeneous groups to come together and to be so resilient in the face of repression and criminalization something else has to happen. What is this something else, this unexplainable and unpredictable remainder that seems to drive collective action? In order to grasp this dimension of the practice of disobedience one has to move beyond the individualist focus of liberal theory and the spotlight the media puts on individual heroes of the rebellion, such as, in the case of Turkey, the famous “Woman in Red,” “Talcidman,” or “Standing Man”– as important as their role might have been as metaphorical figures that became representatives of the uprising. Instead, we have to take the essentially collective character of civil disobedience into account (see also Gambetti 2014). The dynamics of collective action is of course difficult to theorize but it is an essential aspect of most firsthand accounts and shapes the experience of protesters. When theorists try to capture this dynamic, rather than pathologize it (as has been the case in crowd- and mass-psychological approaches that have emphasized the irrational and destructive character of group action), explain it away, or ignore it, they often resort to relatively metaphorical language. Think of the empowering collective experience of overcoming fear and what

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Hannah Arendt calls the joy of acting together and of beginning something new (although, in contrast to heroic and masculinist portrayals of the protester, this joy is of course often, if not always, accompanied by fear and panic and the awareness of the risk of getting attacked, injured, arrested);11 of Jean-Paul Sartre’s inventive analysis of the storming of the Bastille at what would later become the beginning of the French Revolution in terms of the “groupe en fusion” (Sartre 1960, 391); of Verónica Gago’s conceptualization of the potencia generated in feminist movements that take to the streets and construct themselves in assemblies producing a new form of collective counterpower; or of Michael Hardt and Antonio Negri’s (2011) multitude in which plurality and creativity come together in the emergence of new political subjectivities – and what is it that these movements exemplify if not the ability of the multitude, usually denied by the state and its representatives, to reject being governed like that and to organize and govern itself? Without taking this first-person perspective or phenomenology of protest into account, we – or future social scientists – will never be able to come to an adequate understanding of why and how people do what they do in an uprising. In contrast to what the liberal mainstream suggests, this is rarely a matter of isolated individuals standing up for their rights or their conscience against the state or the majority. Of course, as Julian Assange, Chelsea Manning, and Edward Snowden attest, exemplary individuals can transform established ways of conceiving of political action and invent new articulations of the art of revolt (see Lagasnerie 2015). More often, and paradigmatically, however, civil disobedience is the collective assertion of political agency – an example of the collective, agonistic, and transformative enactment of freedom so central to Tully’s work (see, for example, Tully 2008a, 306–7) – which confronts the vertical form of state and corporate authority and its institutional realizations with the horizontal and informal power of the association of citizens or the governed, thus creating new political subjectivities both at the individual and collective level that might well turn out to be the most transformative effect of such an uprising (Balibar 2002). In so doing, practices of disobedience lead to the emergence of new social imaginaries and at the same time expand the repertoire of collective action (see Charles Taylor’s contribution to this volume and Taylor 2004).

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3 . e x pa nd in g th e repertoi re o f co ll ec ti ve acti on The third aspect of disobedience about which theory can learn from practice, then, concerns the repertoire of political action. Tahrir, Zuccotti, Syntagma, Taksim, … : obviously these names point to very different contexts, in which very different aims, agents, strategies are at play, but as many commentators have pointed out there still seems to be something like a shared emerging political form: all these protests have prominently involved occupations of public space, that is, democratic acts of reclaiming and reappropriating this space – on a more than purely symbolic or metaphorical level – as something that already belongs to the people who use it on an everyday basis but that is threatened by both neoliberal privatization and authoritarian state control.12 Again, these occupations are prefigurative in that protesters organize these spaces by way of precisely those political and social relations that the protest is supposed to defend and aim at the same time. This prefiguration has a radically democratic meaning in that it instantiates a form of democracy that conceives of itself as standing at a distance from the state. In this way it highlights the gap between the official self-presentation of the state as a constitutional and representative form that exhausts the meaning of democracy – as a well-ordered democracy to which there is no alternative – and an alternative understanding of democracy as emerging out of the collective exercise of power at the grassroots level.13 It is precisely this democratic and democratizing role of protest movements that has important political implications, even short of changing political power structures. As Costas Douzinas points out, “Social movements have literally taken on the role of the ‘collective intellectual’ of the working population: … They put into political practice skills, aptitudes and networks people have to learn and use for their daily work. In this sense, socio-political movements have much more advanced and accurate views of popular grievances and possible solutions than political parties which, through necessity, concentrate on parliamentary politics and state institutions.” (2015, 80) In addition to this general characterization, there seem to be at least three shared features of the occupation of public spaces by these movements and of the prefigurative and radically democratic practices realized within them: firstly, these movements are all committed

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to plurality in terms of ideological commitments, identities, aims, strategies, and forms of organization and collectivity – in the case of Turkey this is again especially noteworthy against the background of a decidedly anti-pluralist political culture characterized by widespread patriarchal, nationalist, and paranoid tendencies. Secondly, its prefigurative politics emphasizes the autonomy of the movement and the way in which it creates its own spaces, independently from the state and the private sector, effectively ignoring their existence (this is the “exodus” component of this form of protest), organizing and protecting in their own way the plurality of bodies that make up the protest movement (see Butler 2011 and 2015; and de Zeeuw 2014). This prefigurative politics can take a variety of forms that exemplify what it could mean to understand democracy not merely as a set of formal institutions and procedures but as a “form of life” or collective association. Reaching from using the internet – especially social network sites such as Twitter and Facebook – to create one’s own alternative public sphere14 via establishing networks of care and support (e.g., in terms of medical assistance and food supply) to building barricades to defend the occupied space against the attempts of the police to again bring it under control, the repertoire of prefiguration cuts across the divide between the symbolic and the confrontational and prominently involves the creation of alternative infrastructures. In this respect it is crucial that the prefigurative character mandates a self-reflexive and self-critical form of political practice that continually interrogates its own presuppositions, structures, and implications – and this is indeed what, despite all obstacles and challenges in terms of organization, the forum- and assembly-centred nonhierarchical politics of these movements has aimed at approximating. The third aspect – the creativity of the uprising – has been prominent in media coverage but often represented in a trivializing way by isolating specific instances of humorous intervention from the broader context of the movement and its more confrontational tactics. In that context, creativity is a form of constantly expanding the repertoire of contestatory collective action. In the case of Turkey endless examples illustrate that this has happened with an astonishing frequency, from the initial occupation via the barricades and the humour expressed in posters, videos, and street graffiti to the “standing man” and the proliferation of public park forums – leading participants and observers to speak of the movement’s use

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of “disproportionate intelligence” (orantısız zeka). This creativity is important for addressing a variety of problems protest movements are faced with, from responding to, and evading, state practices of control and criminalization, via the problem of cooptation and integration into the realm of normalized culture (the commodification of protest – indeed it did not take long until the first Occupy Gezi t-shirts and coffee mugs were sold on the web), to the problem of what in social movement studies is called the exhaustion of the repertoire of collective action: the fact that when confronted with established forms of protest people tend to react by shrugging their shoulders, effectively neutralizing the disruptive potential of these forms of protest (say demonstrations and sit-ins) and in turn dampening the protesters’ enthusiasm and frustrating their ambitions. It is in this political context – and not in the decontextualized collections of funny banners and graffiti in exhibitions or catalogues – that the creativity of activism has its place. At the same time, this context is increasingly transnational, and here we encounter another remarkable characteristic of the recent wave of protest: despite its in many cases primarily national focus – which stands in some contrast with the transnational orientation and constituency of the earlier Global Justice Movement – the protests have contributed to the enactment and constitution of transnational public spheres in and through novel contestatory practices. These practices now prominently feature an increasingly global culture of contestation often built around visual and other nonlinguistic media of communication (the ubiquitous Guy Fawkes mask provides the most well-known example of this trend), which might give rise to new forms of transnational solidarity (see Celikates et al. 2018).

4 . c on cl ud in g remarks The lessons to be learned from turning our theoretical attention to “the streets” and engaging in a more dialogical relation with the experiential and epistemic agency of protesters as well as the dynamics of collective action are thus manifold. Civil disobedience emerges as an essentially collective and political practice of contestation, in which structural deficits of the existing (political, economic, and social) system are addressed in ways that go beyond the very limited and often dysfunctional channels of existing institutions. It is, however, also a practice in transition, and thus difficult to

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pin down with established conceptual and normative tools. Activist forms of political protest, such as practices of disobedience, should therefore be seen as an essential but developing part of the unfolding history and present of democracy understood in a broader and more radical sense. They are part of a democracy in the making “from below” or “from the margins” that is not reducible to its always-deficient institutional realization in the state but crucially relies on extra-institutional practices of contestation of which civil disobedience is a prominent example (see also Laugier and Ogien 2014; Celikates 2022). In order to generate contestatory power, political movements in general and practices of civil disobedience in particular have to combine emerging forms of civility that will challenge established assumptions about civil and civic norms, the symbolic and the confrontational, alternative forms of collectivity, and a prefigurative transformation of public space in ways that trigger and maintain the dynamics of collective action. It is this complex entanglement which Tully’s work helps us to understand, and in this it is a truly public philosophy. no t e s Previous versions of this paper have been presented at the conference accompanying the exhibition “global activism” at zkm Karlsruhe (January 2014) and the conference “Civic Freedom in an Age of Diversity: James Tully’s Public Philosophy” at the Université du Québec à Montréal (April 2014). While both the local and the global political constellation has obviously significantly changed since then, I decided to keep the focus of the paper on the events with which it was engaging at the time of writing. I thank participants at both events for very helpful discussions and in particular Dimitri Karmis and Jocelyn Maclure for including me in both the Montreal conference and this volume. Most of all I would like to thank Jim Tully for being such an inspiring philosopher, mentor, and friend. 1 This is especially true for the discussion in political philosophy that has been shaped by the writings of John Rawls and, to a lesser extent, Jürgen Habermas. For a more detailed discussion see Celikates (2014). See also the theoretically nuanced discussion in Brownlee (2013). 2 On the specific, and world-disclosing, character of theorizing through exemplars, see David Owen’s contribution to this volume. 3 See the symposium on http://roarmag.org/2014/01/beyond-gezi-futuremovement, last accessed 1 January 2015, and, for some documentation,

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http://showdiscontent.com/archive/gezi-parki, last accessed 1 January 2015, and the collection established by the Videoccupy collective: https:// www.youtube.com/channel/UCDhtsYy5VC09T0ixjHmhBQQ, last accessed 1 January 2015, as well as https://bak.ma/about. For a first account from a social movement studies perspective, see Gürcan and Peker (2015); see Zeyno Pekünlü (2014), “The Past of the ‘Commons’ Politics and Its Political Potentials after the Gezi Resistance,” unpublished ms. See, for instance, Gandhi (1987, 18, 88); and King (1963). See also Tully (2008b, 308–9; 2014b, 303–4). See, for example, Tully (2014a, 68), as well as his reply to related points raised by the contributions of Honig, Stears, Norval, Bell, and myself in ibid. (283). On the political reading of the “riots” see Sutterlüty (2014); and more specifically on the banlieues, see Balibar (2007); for empirical material on the London events see http://www.theguardian.com/uk/2011/dec/05/ reading-the-riots-methodology-explained, last accessed 1 January 2015. On the potentially problematic exclusionary effects of the discourse of reasonableness and civility, see Simone Chamber’s contribution to this volume and Chambers (2015). Despite this critical perspective, Chambers defends much stronger normative constraints than I do. It therefore seems somewhat paternalistic when advocates of nonviolence as Peter Ackerman and Howard Barrell lecture people around the globe on how to fight their fight against oppressive regimes and global structures. In his “Letter from Birmingham Jail” King (1963) writes: “Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored.” For this “prehistory,” see Pekünlü (2014). See Arendt (1972); and Marchart (2005). On the persistence of fear, see Parla (2013). See Göle (2013). This is not only the case in Turkey, but in all countries where public space is under the dual threat of privatization and state regulation (think of the designated “demonstration zones” and “free speech zones” set up in the US at safe distances from where the activities and meetings people protest against take place). Of course, this can – and has – also be seen as a limit of this kind of movement politics: how can a movement manage to sustain itself and

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secure political achievements if it does not engage with “the system” and refuses to establish alliances with its main actors, such as parties, trade unions etc.? I cannot discuss this question here, but Syriza in Greece and Podemos in Spain provide interesting case studies for the possibilities and risks of attempting to bridge this gap. 14 On the ambivalence of internet-enabled activism between empowerment and the state’s capacity to control and suppress, see Tufekci (2014).

r e f e re n ce s Arendt, Hannah. 1972. “Civil Disobedience.” In Crises of the Republic, 49–102. New York: hbc . Balibar, Étienne. 1996. “Ce que nous devons aux ‘sans-papiers.’” Last accessed 1 January 2015 http://eipcp.net/transversal/0313/balibar/fr. – 2002. “Sur la désobéissance civique.” In Droit de cité, 17–22. Paris: puf . – 2007. “Uprisings in the Banlieues.” Constellations 14 (1): 47–71. Bargu, Banu. 2016. “Why Did Bouazizi Burn Himself? Fatal Political Action as Embodied Critique.” Constellations 23 (1): 27–36. Bentouhami, Hourya. 2009. Le dépôt des armes: non-violence et désobéissance civile. Paris: puf . Brownlee, Kimberley. 2013. Conscience and Conviction: The Case for Civil Disobedience. Oxford: Oxford University Press. Butler, Judith. 2011. “Bodies in Alliance and the Politics of the Street.” Last accessed 1 January 2015. http://eipcp.net/transversal/1011/butler/ en. – 2015. Notes Toward a Performative Theory of Assembly. Cambridge, ma : Harvard University Press. Celikates, Robin. 2014. “Civil Disobedience as a Practice of Civic Freedom.” In On Global Citizenship: James Tully in Dialogue, edited by James Tully, 207–28. London: Bloomsbury. – 2016. “Democratizing Civil Disobedience.” Philosophy & Social Criticism 42 (10): 982–94. – 2019. “Constituent Power Beyond Exceptionalism: Irregular Migration, Disobedience, and (Re-)Constitution.” Journal of International Political Theory 15 (1): 67–81. – 2020. “Radical Civility. Social Struggles and the Domestication of Dissent.” In Debating Critical Theory, edited by Julia Christ, 83–94. London: Rowman & Littlefield. – 2022. “Remaking the Demos ‘from Below’? Critical Theory, Migrant Struggles, and Epistemic Resistance.” In Crisis Under Critique: How

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People Assess, Transform, and Respond to Critical Situations, edited by Didier Fassin and Axel Honneth, 97–120. New York: Columbia University Press. – Jeroen de Kloet, Esther Peeren, and Thomas Poell, eds. 2018. Global Cultures of Contestation: Mobility, Sustainability, Aesthetics & Connectivity. London: Palgrave Macmillan. Chambers, Simone. 2015. “An Ethics of Public Political Deliberation.” In Transformations of Democracy: Crisis, Protest, and Legitimation, edited by Robin Celikates, Regina Kreide, and Tilo Wesche, 127–46. London: Rowman & Littlefield. Çıdam, Çig˘dem, ed. 2020. “Theorizing the Politics of Protest: Contemporary Debates on Civil Disobedience.” Contemporary Political Theory 19 (3): 513–546. Coulthard, Glen Sean. 2014. Red Skin, White Masks: Rejecting the Colonial Politics of Recognition. Minneapolis: University of Minnesota Press. de Zeeuw, Daniël. 2014. “Engaged Withdrawal: Occupying Politics Beyond Politics.” Krisis 1. Last accessed 1 January 2015. https://archive. krisis.eu/wp-content/uploads/2016/12/krisis-2014-1-08-dezeeuw.pdf. Delmas, Candice. 2018. A Duty to Resist. When Disobedience Should Be Uncivil. Oxford: Oxford University Press. Douzinas, Costas. 2015. “Radical Philosophy Encounters the Uprisings. Lessons from Greece.” In Transformations of Democracy: Crisis, Protest, and Legitimation, edited by Robin Celikates, Regina Kreide, and Tilo Wesche, 65–82. London: Rowman & Littlefield. Estes, Nick. 2019. Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance. London: Verso. Gago, Verónica. 2020. Feminist International: How to Change Everything. New York: Verso. Gambetti, Zeynep. 2014. “Occupy Gezi as Politics of the Body.” In The Making of a Protest Movement in Turkey: #occupygezi, edited by Umut Özkırımlı, 89–102. London: Palgrave. Gandhi, Mahatma. 1987. The Moral and Political Writings of Mahatma Gandhi: Non-Violent Resistance and Social Transformation. Volume 3. Oxford: Clarendon Press. Göle, Nilüfer. 2013. “Public Space Democracy.” Last accessed 1 January 2015. https://www.eurozine.com/public-space-democracy/.

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Gürcan, Efe Can, and Efe Peker. 2015. Challenging Neoliberalism at Turkey’s Gezi Park: From Private Discontent to Collective Class Action. Houndmills: Palgrave MacMillan. Hardt, Michael, and Antonio Negri. 2011. “The Fight for ‘Real Democracy’ at the Heart of Occupy Wall Street.” Last accessed on 1 January 2015. http://www.foreignaffairs.com/articles/136399/michael-hardt-andantonio-negri/the-fight-for-real-democracy-at-the-heart-of-occupywall-street. Isin, Engin F. 2008. “Theorizing Acts of Citizenship.” In Acts of Citizenship, edited by Engin F. Isin and Greg M. Nielsen, 15–43. London: Palgrave Macmillan. Karakayali, Serhat, and Özge Yaka. 2014. “The Spirit of Gezi: The Recomposition of Political Subjectivities in Turkey.” New Formations 83: 117–38. King, Martin Luther. 1963. “Letter from Birmingham Jail.” Last accessed 1 January 2015. https://www.africa.upenn.edu/Articles_Gen/Letter_ Birmingham.html. Konya, Nazli. 2021. “Breaking Billboards: Protest and a Politics of Play.” Contemporary Political Theory 20 (2): 250–71. Lagasnerie, Geoffroy de. 2015. L’art de la révolte: Snowden, Assange, Manning. Paris: Fayard. Laugier, Sandra, and Albert Ogien. 2014. Le Principe démocratie: enquête sur les nouvelles pratiques sociales. Paris: La Découverte. Malm, Andreas. 2021. How to Blow Up a Pipeline: Learning to Fight in a World on Fire, London: Verso. Mandela, Nelson. 1964. “I Am Prepared to Die.” Last accessed on 10 August 2019. http://law2.umkc.edu/faculty/projects/ftrials/mandela/ mandelaspeech.html. Marchart, Oliver. 2005. Neu beginnen: Hannah Arendt, die Revolution und die Globalisierung. Wien: Turia & Kant. Marcuse, Herbert. 1969. “Repressive Tolerance.” In A Critique of Pure Tolerance, edited by Robert Paul Wolff, Barrington Moore jr, and Herbert Marcuse, 95–137. Boston: Beacon Press. Morin, Edgar, Claude Lefort, and Cornelius Castoriadis. Rev. ed. 2008 . Mai 68 – La Brèche. Suivi de Vingt ans après. Paris: Fayard. Parla, Ays¸e. 2013. “Protest and the Limits of the Body.” Last accessed 1 January 2015. https://culanth.org/fieldsights/protest-and-the-limits-ofthe-body.

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6 Representative Democracy and Democratic Struggles from Below Dominique Leydet

In the spring of 2012, a massive strike by students in Quebec caused major disruptions in the streets of Montreal and other cities. The movement started initially as a protest against the decision by the provincial government to increase university tuition fees. It then widened considerably to cover an extensive series of issues that were not directly related to the main struggle: from feminist demonstrations against the exploitation of women’s bodies in Formula One racing to the contestation of the provincial government’s “Plan Nord” and environmental depredation. The standoff between the government, the students and their allies has often been framed, by the protagonists and observers alike, as a clash between two conceptions of democracy, pitting the ballot boxes against the street, representative versus direct democracy. The more radical wing of the student movement openly questioned the government’s democratic pedigree while the government and its supporters attempted to delegitimize the students’ associations’ actions and demands as violating the boundaries of acceptable democratic behaviour. This reading of the crisis was itself criticized by those who refuse to see the relation between contestatory social movements and representative democracy as a dichotomy. The debate is not new, but it has been rekindled in many parts of the world by the actions of movements like Occupy and the Indignados as well as by the acts of resurgence performed by Indigenous peoples in the Americas. In a context where a growing number of citizens

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are turning towards alternative forms of democratic engagement, it is essential to clarify the relation between this diverse family of practices and representative democracy. Contemporary political philosophy provides different interpretations of this relation. At one end of the range lies the insurgent or plebeian reading. On this view, contestatory movements stand outside the formal democratic order and their emancipatory actions express a radical rejection of the latter (Rancière 1995; Breaugh 2007). In contrast, Jürgen Habermas in Between Facts and Norms (1996) proposes an interpretation that lies at the opposite end of the range. Instead of pitting contestatory social movements against the democratic order, Habermas conceptualizes the former within the larger framework of constitutional democracy. Social movements appear as sites where new problems are thematized, new claims are expressed, and where solutions and reasons are explored. As “weak publics,” their function is to contribute to the formation of public opinion and exercise influence over the formal political institutions. But on this reading, contestatory movements are, in a way, subsumed within the framework of representative democracy. Situating himself somewhere between these two interpretations, John Dryzek proposes that, in certain contexts, the oppositional view of the relation may be appropriate while, in other contexts, it may be preferable, from the perspective of particular movements and the “well-being of democracy” to work towards their inclusion within the state (Dryzek 2000, 81–8). If we look at the events of the Quebec student spring, none of these interpretations seem entirely appropriate. The subsumption view contradicts the self-understanding of many participants in the movement who saw its purposes and meaning as much more than that of influencing formal political institutions, but rather as deeply transformative. The oppositional view is also reductive, but in a different way: by positing the two conceptions of democracy as mutually exclusive, it does not capture the fluidity of many citizens’ agency for whom voting, militating for a political party, participating in the life of a students’ association, demonstrating and engaging in acts of civil disobedience form one complex range of actions and practices that they choose from depending on the context and circumstances. For these citizens, contestatory and conventional democratic practices are not opposed, but neither would they agree that the former’s meaning is exhausted within the conventional framework of representative politics.

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The relation between representative democracy and nonrepresentative democratic practices is a theme that runs through the two volumes of Public Philosophy in a New Key. In these essays, James Tully addresses the issue from the distinctive perspective of his public philosophy. Instead of observing the democratic system from above or in the abstract, he takes the standpoint of the participant engaged in dialogue with those who take part in democratic struggles “from below” in order to take account of the rich complexity of the agents’ experiences on the ground. His primary focus is on practices, not institutions. The essays offer different contrasts to capture the relation between the two types of democratic experience. In the first volume, as well as in the essays making up the first part of the second volume, Tully mainly uses the contrast between extensive and restrictive democratic practices while in the second part of volume II (“On Imperialism”), he introduces the contrast between civil and civic modes of citizenship. In this chapter, I argue that if the two contrasts rightly eschew the danger of “subsumption,” the civil-civic opposition seems to amplify and harden the earlier contrast between extensive and restrictive practices in a way that I find ultimately misguided. I explore the restrictive-extensive distinction in the chapter’s first section. My intention is to show how this first contrast enables us to grasp what differentiates the activities involved in each of the two conceptions of democracy while also delineating a shared space of political agency that captures the fluidity and diversity of citizens’ activities and self-understandings. I also argue that this version of the contrast supposes a capacious view of representative democracy. In the second section of the chapter, I turn towards the civil-civic contrast to show that the narrow reading of the modern tradition that Tully now presents implies a rejection of this capacious view and forecloses the possibility of a shared space of political agency. Though Tully acknowledges the need for civic and civil citizens to join hands in common struggles for democracy and justice, I will argue that this can only make sense if one refuses the reductive reading of citizenship within representative democracy that is implicit in his own characterization of the civil, modern mode.

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1 . r e s tr ic ti ve v. extens i ve d e m oc rati c pr acti ces Contrasting two basic forms of democracy – direct and representative – and their distinctive practices has become a truism of democratic theory since Benjamin Constant’s famous lecture: “The Liberties of the Ancients Compared to that of the Moderns.” Constant argued that the liberty of the ancients, while appropriate in the context of the small Greek city-states, could not play a central role in the grands États modernes. The sheer size of these states and their greater social complexity, added to the development of commerce, explained why the liberty required by the circumstances of modern citizens should be defined in negative terms, as the “jouissance paisible de l’indépendance privée” (Constant 1980, 501). Though Constant ended his conference by extolling the importance of political liberty as the necessary guarantee of individual civil liberties, his argument suggested that the development of the modern state went hand in hand with a specifically modern form of liberty associated with representative government. The liberty of the ancients and the direct form of democracy in which it thrived appeared as part of an earlier stage of political development. To defend that kind of democratic experience in the context of a modern state was to fall prey to a maladie infantile of democracy, as the French revolutionaries did with the catastrophic results that Constant’s audience was all too aware of. Tully rejects Constant’s assessment of representative government as the only form appropriate to the “sociological conditions of large capitalist states” (2008b, 55) as well as its underlying developmental narrative. Both have served to justify the claim that representative democracy is a universal and necessary model, a standard to be used anywhere in the world to measure democratic achievement. But nonrepresentative forms of democracy are not limited to the experience of the ancient city-state: they are neither attached to a particular period of history nor to a specific set of institutions. They refer to an alternative type of democratic practice that has persisted through time in different parts of the globe and under different forms. In “The Agonistic Freedom of Citizens,” Tully describes this kind of democratic practice as encompassing “any activity in which people assemble and negotiate the way and by whom power is exercised over them” (2008a, 157). This type of practice is extensive in the sense that it can be exercised in any relation of power, whether in the

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sphere of economic activity, in the private domain of the family or that of politics in the conventional sense. Democracy so understood is not limited to the official public sphere of politics. Until the late modern period, this extensive use of the term “democracy” ran parallel to the equally extensive use of the term “government,” referring to any relation of power and authority in which one attempts to “govern” the conduct of another, for example, between husband and wife; parents and children, master and servant, et cetera. Only in the eighteenth century does its meaning narrow, thereafter referring exclusively to the relations between the state and its subjects. Not only have extensive practices proved to be enduring, they have become more relevant with the dispersion of governance spurred by globalization. Most of these dispersed practices of governance – emerging through global markets and supranational bureaucratic organizations – are nondemocratic for they bypass the control of democratic publics. But they provoke actions of contestation, “struggles from below” that are struggles “of and for freedom.” By recapturing the extensive meaning of democracy, we find a way to describe and understand these struggles as democratic. In contrast, the restrictive sense of democracy is associated to the “mature and predominant practices of government and democracy typical of representative democratic nation-states, their institutions and the traditions of understanding in which they are described, operated and evaluated” (2008b, 47). Democracy in this sense includes the familiar institutions of parliaments, competitive elections in a multiparty system, the rule of law, an independent judiciary, a constitution that establishes the division of powers and sets down the political, civil and social rights and duties of citizens and groups, as well as a public sphere of free speech, assembly and dissent, et cetera. (2008b, 54). While representative democracy refers to a relatively wellcircumscribed set of institutions, its alternative covers an extremely wide and diverse range of phenomena: direct forms of self-government practiced in the Western and non-Western world (from the Athenian Ecclesia to Indigenous forms of self-government); ad hoc assemblies called by citizens in their struggles for freedom; practices developed within or in the wake of social movements such as student, green or feminist movements. This ensemble of practices seems highly heterogeneous, in part because it includes different

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types of formal and informal institutional arrangements. But recall that Tully’s explicit focus is on the practices of citizens, not institutions. The claim is that “from the ground up,” extensive practices have shared features that are relevantly similar and that differentiate them from the practices associated with representative democracy. The direct and collective nature of citizens’ participation in extensive practices is an obvious candidate. But construing the contrast between the two families of democratic practices simply in terms of the opposition between direct and indirect modes of participation is misleading. Though extensive practices involve the direct actions of citizens in the negotiation of the relations of power that affect them, representative democracies do not limit the citizens’ agency to indirect forms of participation. A “well-ordered constitutional democracy,” writes Tully, offers citizens a wide range of ways to participate in political dialogues, both indirect and direct: indirectly through “relations of critical trust with their elected representatives, public servants, courts, ‘intermediary’ organizations and, especially, media-facilitated discussions”; directly “in public spheres, local initiatives, referendums, political parties, elections, public service, interest groups, dissent, protest, civil disobedience and the occasional rebellion” (2008a, 147–8). As this passage shows, the range of direct ways to participate in political activities that are open to citizens in representative democracies includes not only practices related to formal political institutions (referendums, political parties, etc.), but also practices that take place outside the formally institutionalized political system: from protests and demonstrations to acts of civil disobedience. By including these activities in his account of representative democracy, Tully follows in the footsteps of Bernard Manin’s rich description of representative government. According to Manin, the specificity of this form of government lies in the relation between two fundamental principles: the relative independence of the elected from the electors (as epitomized by the rejection of a right of instruction) and the freedom of public opinion that enables citizens to exercise an influence over government. Freedom of opinion should not be understood simply as a negative liberty, protecting the individual from the encroaching power of government, but as a positive liberty that has an intrinsic connection with the political role of citizens in representative governments. It

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involves a right to individual and collective expressions of opinion, including the rights to petition, to hold assembly, to demonstrate, et cetera. (Manin 1997, 168–9). If citizens are to exercise influence over government, they need not only to know about government decisions (thus the requirement that government decisions be public), but they also need the freedom to form and express political opinions independently of elected representatives at any time, not just when voting in elections. As Manin remarks: “Public expression of opinion … has the effect not only of bringing popular opinions to the attention of those who govern, but also of connecting the governed among themselves. Indeed this horizontal dimension of communication affects the vertical relationship between the governed and the government: the more the people are aware of each other’s opinions, the stronger the incentive for those who govern to take those opinions into account” (ibid., 170). On this view, there is no dichotomy between the ballot boxes and the streets: citizens can express their opposition to government policy by voting in elections, but also by holding assemblies, demonstrating in the streets or signing petitions. This capacious interpretation of representative democratic practices echoes with the understanding of democratic and constitutional legitimacy defended in different ways by John Rawls and Jürgen Habermas. On this view, as Tully notes, citizenship in representative democracies is not simply a status encompassing a set of constitutionally guaranteed rights and duties, it is also an identity (defined as a “form of both self-awareness and self-formation”) that one acquires in exercising these rights: through participation not only in formal institutions, but also, and adds Tully “more importantly,” by “participating in the array of practices of deliberation over the existing institutions.” Tully calls these practices of active citizenship within constitutional democracies: practices of “citizenization” (2008b, 99). Though representative democracy makes room for direct forms of individual and collective political action outside of formal democratic institutions, this in no way erases the difference between restrictive and extensive practices. Within the framework of representative government, the direct forms of participation are oriented towards the formal political institutions with the objective of exercising influence over them. To borrow Tully’s vocabulary, they still function within the restrictive understanding of “government” or

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“politics” that is the hallmark of representative government. If reducing representative democracy to vote-centric practices is misleading and if direct participation in political activities is recognized as part of representative democracy, there still remains an important difference between extensive and restrictive understandings of democracy. The difference concerns both the scope and orientation of extensive practices: they are neither limited to the restricted domain of representative politics nor can they be reduced to influencing the formal institutions of representative government. Tully’s account of the two conceptions has important implications for political philosophy and democratic theory. In particular, the near exclusive focus of mainstream political theory on the institutions of representative government needs to be questioned (2008b, 57). As modern nation-states consolidated, practices of governance throughout society have tended to fall under the aegis of the central institutions of representative government and citizens’ activities have also tended to focus on these institutions (2008a, 156). But citizens’ activities have never entirely focused on the central institutions of representative governments and the dispersion of governance that has come with globalization has led to a proliferation of extensive democratic practices that should capture the attention of political theorists. The restrictive focus on the formal institutions of representative government has long prevented mainstream political theorists from uncovering relations of governance and struggles for freedom that are situated “either in the private realm or beneath the features of representative practices that standardly figure in modern political theories” (2008b, 65). It is precisely because Marx ignored these traditional limits that he was able to analyze the struggle over the length and organization of the working day in nineteenth-century British factories, thus becoming a modern theorist of extensive practices (ibid.). Tully also notes the persisting tendency of political theorists to interpret the rise of new social movements in the familiar terms of social-democratic struggles to improve social and economic conditions. While this does capture some aspects of contemporary movements, it tends to interpret them narrowly as “a social democratic variation on familiar struggles for representative government and democracy” (2008b, 66), thus bypassing some of their distinctive features. For instance, Tully highlights how extensive struggles are not limited to the “explicit rules, norms, the exchange of public

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reasons or the deliberate means of gaining consent,” they are also “over the pre-reflective … modes of comportment that constitute the forms of subjectivity (identities and roles) of the participants.” Such struggles occur in private and public practices “beneath the threshold of the formal features of law and democracy” (ibid.). Tully does not suggest that democratic theorists should entirely abandon the institutions of constitutional, representative democracy, but he invites them to see these institutions as one important, “regulative” – though not “constitutive” – set of practices of governance (2008b, 112). In other words, democratic theorists should finally accept the implications of what Habermas has called the “decentering” of contemporary democratic societies. If the formal political institutions of these societies do not constitute their centre, but are one important nexus of power among others, then this should affect the way we think about democratic politics, opening our eyes to its rich diversity. Tully’s account of the contrast between the extensive and restrictive understandings of democracy leads to a distinctive view of their relation. It suggests that these two democratic families are distinct and self-standing and cannot be subsumed one under the other. But neither do they stand in a relation of strict opposition since there is an area of political practice where they intersect, where citizens who see themselves as acting primarily within the framework of representative democracy can meet and act in conjunction with those who contest this framework from the “outside.” This intersection covers a relatively wide spectrum of political activities, including different forms of public dissent like demonstrations and civil disobedience. It appears once we shed a narrow view of representative democracy, one defined solely in terms of formal or electoral politics. This does not erase the persisting difference between the two families, but it does explain why they should not be construed as mutually exclusive. It also accounts for a certain sense of fluidity in the self-understanding that citizens may have of their own political agency. Citizens may understand their actions in a way that situates them within the framework of representative democracy. But in a different context, they may come to see themselves as acting from outside this framework in order to transform it. They may also engage in democratic practices that they see as entirely independent of representative politics while continuing to pursue their activities as citizens in conventional representative politics.

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This understanding of the distinction helps us grasp some of the complexities of Quebec’s student spring of 2012. The student movement’s attempt to fight back the government’s plan to increase tuition fees can be interpreted within the familiar framework of social-democratic struggles for better socio-economic conditions. And many observers in the media did interpret the movement as a “corporatist” struggle of the type that unions lead. These observers were puzzled by students’ demands that went beyond this narrow framework, as for instance, when students walked against the government’s plan to develop the North as being detrimental to Indigenous rights and the environment or when feminists within the student movement demonstrated against Formula One racing as involving the exploitation of women’s bodies. Seen from the conventional perspective of representative politics, the multiplication of different demands seemed confused and confusing. But the confusion dissipates if we see the student movement as encompassing not only a classic struggle over better socio-economic conditions, but also struggles over extensive practices of government, beyond the boundaries of the official and public business of representative government. This diversity of demands reflected the diversity of the actors involved in the events of that spring. The student movement was formed by three main student organizations with very different political outlooks. On the one hand, the two federations,1 in their internal mode of functioning as well as in their political outlook, saw themselves as taking part in conventional representative politics. Their elected representatives, who enjoyed a significant freedom of action from the members, understood their mandate as that of defending the interests of their constituents against higher tuition fees. They saw the students’ mobilization as necessary to increase the pressure on the government to change its policy and the strike itself as a measure of last resort. The classe-assé ,2 in contrast, presented themselves as continuing in the tradition of a syndicalisme de combat, strongly critical of contemporary liberal democracies and the corporatist character of conventional unions. They rejected representative democracy as undemocratic and followed, in their internal proceedings, their own version of direct democracy, severely limiting the freedom of action of those who were charged with executing the mandates voted in the general assembly. The classe did not limit its demands to the increase’s repeal, but defended as its ultimate goal the complete

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abolition of tuition fees to secure the accessibility of university education to everyone and also fought against the commodification of university education. For the classe , the strike was not a measure of last resort, but the main way of establishing a rapport de force with the government. The grève générale illimitée as well as different forms of direct action were recognized as both necessary and legitimate ways to disturb the powers that be. The strike also produced a wide diversity of autonomous collectives who supported the movement: École de la montagne rouge; Maille à part; Fermaille; P!nk Bloc, Mères en colère et solidaires; et cetera. (Bonenfant, Glinoer, Lapointe 2013). These groups engaged in a wide diversity of actions: from conventional demonstrations to the publication of poetry and the production of striking imagery and crafts. They conveyed the energy and imagination of the strikers while attempting to weave links with the population through the occupation of public space. Their objective was not only to express solidarity with the strikers, but also to engage citizens in public debates over the legitimacy of the government’s policies. These actions were explorations of social, political and artistic possibilities that cannot be summarized in a list of demands and appeared, at times, to go beyond conventional representative politics. Yet they were an essential part of the printemps érable. Still more interesting, the experience of gender inequalities in the student movement itself by young women activists led to the development of dynamic feminist collectives and networks that contested the traditional division of militant labour in the associations. These collectives were remarkably effective in questioning decisions made by the student associations as well as putting on the militant and public agenda issues and perspectives specifically relevant to women (Surprenant and Bigaouette 2013; Delvaux, Desrosiers, Galerand, L’écuyer 2014). The adoption of special legislation by the National Assembly on 18 May 2012 to suppress the strike sparked a massive wave of protests that spread to many areas of Montreal and other cities of Quebec and in which impressive numbers of ordinary citizens participated. Hundreds of citizens – families with their children – assembled on the street corners of their neighbourhoods to bang on pots and pans for an hour or two every evening. Most went home afterwards, but others started spontaneous marches around their neighbourhood that sometimes merged with the student demonstrations taking

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place every night. Meeting and getting to know each other on the street corners of their own neighbourhood inspired some citizens to explore together ways to act collectively in solidarity with the strike. These local associations – the apacs 3 – followed principles of direct democracy and were yet another experiment in extensive democratic practices spurred by the student spring. They continued to function over the summer, albeit with declining numbers of participants, until the provincial elections were called. Reactions to the elections illustrate the complex relations of individual and collective actors towards the practices of representative democracy. The federations decided to participate actively in the elections, trying to convince their members that their votes could make a difference in the outcome and that the key to the movement’s victory rested in the electoral defeat of the Liberal government. Within the classe , there was an intense debate over how to deal with the elections. Some thought, along the lines of the federations’ leadership, that the students should weigh in the elections, at least to secure the Liberals’ defeat. A few activists went further and argued that the massive movement of contestation, to be truly productive, should “move from refusal and negation to the construction of a political project,”4 calling students to join and militate in favour of a specific political party – the leftist Québec solidaire. Others maintained that the classe – given its commitment to direct democracy and its rejection of representative politics – should avoid any participation in the elections. In the end, the coalition decided to organize a parallel campaign, aiming to establish a direct dialogue with the population over its own vision of Quebec’s future. Radical critics rejected this decision as a form of electoral mimetism that disclosed the classe ’s incapacity to make a clean break with representative politics and maintain the struggle on the ground (Collectif de débrayage 2013, 225–48). In the end, the 2012 provincial elections were remarkable for their high voter turnout and it does seem that students participated in high numbers, making a significant contribution to the Liberals’ defeat.5 This brief and incomplete survey6 is enough to disclose the intersection between restrictive and extensive practices in the student spring of 2012. Many of the actions performed by citizens and collectives can be interpreted either as part of classical protest politics within a well-ordered representative democracy or as part of an extensive conception of democracy, depending on the intentions and

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self-understanding of the agents. Participation in an illegal demonstration is an example that comes to mind. What is also striking is the fluidity of citizens’ agency. People who were not activists were drawn into participating in actions situated outside the conventional boundaries of representative politics and moved back again within its ambit once the elections were called. Indeed, citizens moved back and forth between the two repertories of activities without feeling that their actions lacked coherence. The government tried to deny this intersection by attempting to establish a strict dichotomy between the silent majority of ordinary citizens and the strikers, thus turning a blind eye to what was there for all to see: the important number of citizens, from different age groups and political outlooks, who chose to act within the large repertory of actions open to them in the spring and early summer of 2012. Tully’s distinction between restrictive and extensive practices of democracy shows that it is possible to delineate an intersecting space of shared political agency without negating the specificity of extensive practices. But this is possible only on the basis of a capacious account of representative democracy that recognizes the importance of what Manin calls the “horizontal dimension” of relations between citizens and their collective agency, independently from their vertical relation with elected representatives. It is this more robust account of citizenship within representative politics that is lost in the new version of the contrast between the two conceptions of democracy that Tully proposes in the last essay of Public Philosophy in a New Key.

2. c iv il v. ci vi c mo de s of ci ti zenshi p In “On local and global citizenship: an apprenticeship manual,” Tully proposes that we now understand the contrast in terms of two distinct modes of citizenship: the modern or civil mode and the diverse or civic mode. A mode of citizenship is defined as referring “to the ensemble composed of a distinctive language of citizenship and its traditions of interpretation on the one hand, and the corresponding practices and institutions to which it refers and in which it is used on the other” (2008b, 246). Tully abandons his earlier conceptualization of the contrast in terms of practices since he claims that, in the modern tradition, citizenship is primarily understood as an institution and a status while it is conceived as a practice in the

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diverse tradition (ibid., 246, fn. 11). This choice of vocabulary is a first indication of Tully’s intention to harden the contrast between the two conceptions of democracy by narrowing his interpretation of representative democracy and the forms of political agency that it encompasses. We can best understand this move by setting it within the context of his larger argument in the second part of volume II. In his essays on imperialism, Tully describes how the development of European constitutional states was internally related to the rise of their imperial and colonial power. This has remained an essential factor in the West’s continuing hegemony, though imperialism itself, defined by the possession of colonies, has given way to informal imperialism (ibid., 133–4). But mainstream political theory often ignores this relation. The constitutional state and its mode of citizenship are presented in abstract terms as a universal standard of democratic development. This claim to universality occludes history and contributes to the justification of Western hegemony over other political forms and modes of citizenship. To undermine this account, Tully intends to “de-universalise” modern citizenship, to “‘put it in its place’ as one singular (and imperious mode)” (ibid., 249). A first step in this project is simply to recall historical reality: the development of the civil liberties associated with modern citizenship have as their “institutional preconditions” the “historical dispossession of people from access to land and resources through local laws and non-capitalist economic organisations” while democratic liberties presuppose the “dispossession of people from access to political power through pre-existing local forms of citizenship” (ibid., 253). De-universalising modern citizenship also means breaking with the tendency of contemporary political theorists to present the historical deficiencies of modern liberties as contingent limitations of universal principles. Instead of presenting the historical resistance to workers’ or women’s suffrage as a temporary denial of the universal promise contained in the political dimension of modern citizenship, Tully claims that “progress” has always come from outside the limiting framework of modern citizenship. To understand this judgment, we need to examine more closely how he defines modern civil citizenship. In the modern mode, citizenship refers to a framework of institutions, rights and rules that enable and, at the same time, circumscribe the activities of citizens. Modern citizenship is characterized in relation to the constitutional rule of law as a juridical

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status encompassing four tiers of citizenship rights and duties. In sketching these four tiers, Tully’s account calls to mind the understanding of the evolution of rights that has become dominant since T.H. Marshall’s famous 1949 lecture. In “Citizenship and Social Class,” Marshall described the historical progression from the establishment of civil liberties to the development of political rights and, later, social rights. Tully takes up these three categories, to which he adds, as has become conventional, a fourth category: minority rights. He makes two important critical claims. Firstly, he emphasizes the pivotal place occupied by liberties of private property and contract among civil liberties. Secondly, he describes civil liberties as primary not only historically, but also normatively, in the sense that they cannot be infringed upon by the liberties associated to the three other tiers. The subordination of democratic, socio-economic, and minority rights is inscribed in the very architecture of rights in the modern mode and this explains why they do not enable substantive change to the capitalist order of which they are a part. Democratic liberties, in particular, are tightly limited. Their main justification, writes Tully, is “to fight for laws that protect the private autonomy of the moderns from too much governmental interference or domination” (2008b, 253). This prevents any extension of democratic rights to the private sphere, notably to the workplace and the markets. Modern liberties to participate in the political sphere include mainly activities directly related to representative politics (voting, participation in political parties, etc.). Rights to “assemble, dissent and demonstrate” as well as “engage in civil disobedience” are also part of the civil mode, but only to the extent that individuals continue to act as “juridical citizens” without fundamentally contesting the overarching legal framework. So civil disobedience is acceptable on the understanding that those who engage in acts of disobedience accept the punishment that comes with breaking the law, thereby expressing a fundamental fidelity to law (ibid., 252). The same pattern is repeated with socio-economic rights – the weakest of the four tiers – and minority rights: their subordination to civil liberties, centred on the rights to private property and contract, effectively aligns them with the “ground plan” of modern citizenship and forecloses any possibility of its effective contestation. The social and economic rights that were the hard-won price of working class struggles throughout the nineteenth and twentieth centuries

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were justified by social democrats as securing the basic conditions under which the disadvantaged could exercise their civil and democratic liberties. But the charge that they violate economic liberties is constantly renewed and neoliberal governments across the world are successfully undermining them. As for the more recent rights to multiculturalism, multinationalism, and the rights of Indigenous peoples, they are most often interpreted as rights that protect individual members of minority groups from interference by members of the majority. As such, they are, effectively, defanged and do not challenge the “dispossession of ‘minorities’ of their diverse forms of legal, governmental and economic organisation and the integration of them into replication forms of modern citizenship” (ibid., 255). Legal institutionalization not only constrains rights in the act of securing them, it also has disempowering effects on the citizens themselves: civil citizens, socialized and civilized under the rule of law, do not develop the ability to innovate and exercise their freedoms to contest power relations whether in the official public sphere or the private sphere (ibid., 283). Citizenship in the civic mode offers a stark contrast to the modern tradition. Here practice comes first: the concrete activities of citizenship are primary and agents (individual and collective) become civic citizens only through actual participation in practices. Though civic citizens may use institutions, legal rules and rights in their struggles, they do not see them as the conditions of possibility of their actions and these rules and rights do not constitute the limited space within which they may act as citizens. The primacy of practice versus institutions also explains why the “civic tradition” in Western thought cannot be understood as part of the civic mode. While this tradition emphasizes the importance of civic participation, it still associates it to a “‘canonical institutional setting’” (e.g., the Greek polis, the Renaissance city-state, etc.). In this sense, it still takes an “institutional form as primary and necessary,” thus remaining within the civil mode (ibid., 273). The freedom from any determinate institutional context that characterizes the civic mode on Tully’s reading also explains its diversity: the civic mode is not restricted to practices originating in the West, but covers a wide ensemble of practices taking place in different contexts outside the Western world. The contrast between the civil and civic modes mirrors in many ways the earlier contrast between restrictive and extensive practices

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of democracy: the civil-restrictive side presents a set of practices or a mode that affirms and attempts to maintain a boundary between the public and the private spheres in order to protect the market from democratic disruptions, while on the civic-extensive side, we find a mode or diverse practices that ignore such boundaries. The civil mode, much like restrictive democratic practices, is associated with an ensemble of institutions – under the label constitutional representative democracy – that developed in the West and was imposed on the non-West. The civic mode, like the extensive practices of democracy, is a much looser ensemble of activities that is not tightly associated to a particular area of the world, a period of history or a specific set of institutions, but refers to the diverse ways in which citizens, in different sites the world over, act in concert to negotiate relations of power. What differentiates the two versions of the contrast is the narrower description that Tully now offers of the modern tradition. Two elements in that description are crucial in this respect: Tully’s construal of citizenship in the civil mode as a juridical status and his understanding of the primacy of civil liberties. The two combined lock the civil mode into a juridical straightjacket. Firstly, Tully opposes the freedom of civic citizens to contest or use elements of the existing legal framework in their attempts to negotiate relations of power to the unfreedom of civil citizens who see that framework as the “condition of possibility” of their own agency. On his interpretation, this can only significantly limit citizens’ freedom of action. This contrast seems overdrawn and functions as a dichotomy: to consider the framework of rights as a condition of possibility of the citizens’ agency is understood as forbidding any significant contestation of those rights. But we need not accept this description. Habermas’s democratic interpretation of the system of rights shows how the individual rights that are meant to protect the private autonomy of citizens cannot be adequately formulated “unless the affected persons themselves first articulate and justify in public debate those aspects which are relevant to the equal or unequal treatment of typical cases” (Habermas 1993, 133). This explains why “the private autonomy of equally protected citizens can be safeguarded only hand in hand with their being granted active autonomy as citizens” (ibid.). On this view, citizens, through the exercise of their “active autonomy,” are enabled to pursue their constant activity of deliberating, litigating, and agitating over the meaning and extension of rights.

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Secondly, Tully understands the primacy of civil liberties as denying, in principle and in practice, the possibility of any substantive change, whether in the area of socio-economic rights or minority rights. Democratic liberties, in the civil mode, cannot be used to question the sanctity of markets. But the history of the last century shows a much more differentiated series of ebbs and flows, and instances where democratic publics were indeed able to curb, for a time at least, the power of the markets. The recent development of minority rights has also led to significant changes within liberal constitutional states, though Tully is right to argue that, in the case of Indigenous peoples, these changes do not challenge the hegemony of settler states. Tully does not deny that the order of things can be at times successfully challenged. But he considers that any substantive change necessarily comes from outside the civil mode, from the actions of civic citizens. To illustrate: the struggles through which workers, women and Black people fought for their democratic, socio-economic and minority rights cannot be understood as part of the modern, civil tradition: Since these types of struggles are for new kinds of citizenship and by means of people who are not official citizens or official citizens who often act beyond the official limits of citizenship in the modern tradition, they cannot be called practices of citizenship in the modern tradition. They are classified as acts of civil disobedience or rebellion. If these illegal struggles are successful and the extensions institutionalised, then the extensions are redescribed retrospectively as stages in the development of modern citizenship and incorporated within its framework, as in the cases of working-class struggles giving rise to social and economic rights, women gaining recognition as citizens, civil rights movements and recognition of cultural minorities. Thus, what are seen as activities of citizenship by the civic tradition – struggles for new forms of recognition and extension of citizenship – fall outside of modern citizenship with its institutional/ status orientation. (2008b, 255–6) Tully gives us two reasons for thinking that struggles for the extension of rights cannot be part of civil citizenship. The first has to do with the object of those struggles: they are “for new kinds of

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citizenship,” in other words for rights that are not already part of the legal framework. The second reason concerns the means, the kind of activities used by citizens in these struggles: they trespass the official or legal boundaries that circumscribe the practice of citizenship in the modern mode. Both reasons exemplify how much of a juridical straightjacket the modern mode actually is on Tully’s reading. Notice also that public acts of dissent and defiance are now described as being incompatible with the civil mode. We saw in the preceding section that, in an earlier essay, Tully had included rights of public dissent and civil disobedience within the restrictive practices of democracy. But in his description of the modern mode, Tully now displays some ambivalence. He starts by including civil disobedience as a practice within the modern mode, though in an attenuated form that expresses a basic fidelity to law. And in the passage quoted above, he seems to be excluding acts of civil disobedience entirely from the modern mode. Civil citizenship, defined as a juridical status, cannot encompass any practice that effectively contests the existing legal framework. In the end, this narrow understanding of modern liberties excludes the possibility – affirmed in the earlier contrast between extensive and restrictive democratic practices – of an intersecting space of shared political agency between civil and civic citizens. The contrast now functions as a dichotomy.7 The idea of a “well-ordered constitutional democracy,” one that offers citizens a wide range of ways to participate both directly and indirectly, fades away. Representative constitutional democracy is now strictly associated with a lowintensity and modular conception of citizenship. Recall our brief survey of the student spring. We saw that using the distinction between extensive and restrictive practices has many benefits: it avoids the mistake of attempting to subsume the movement and all its manifestations within the framework of representative democracy. It helps us to understand the diversity of a movement that included practices fitting within the representative framework and others that exceeded it. Finally, the distinction also accommodates the fluidity of citizens’ agency. The civil-civic dichotomy, in contrast, is too rigid to make sense of this fluidity. To illustrate, if we tried to use the civil-civic contrast to describe the student spring, we would have to characterize the vast majority of activities performed by citizens who supported the strike as falling outside of modern citizenship. But this would be misleading. It is fair to

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assume that most citizens who banged their pots and pans in protest of Bill 78 saw themselves as exercising their rights as citizens of a constitutional democracy. And that belief would have remained unchanged when they decided to march in the streets of their neighbourhood though their action was illegal given the new law. They would have seen themselves as upholding fundamental principles of constitutional democracy, principles that the government itself was breaching. In other words, they would have resisted any attempt to describe them as acting outside the “official limits of citizenship in the modern tradition.” And they would have been right to resist that description for to do so would have meant to accept the Liberal government’s narrow understanding of representative democracy as the one that correctly reflects the meaning of the modern representative tradition. Tully appreciates the importance of “democratising democracy,” a task that involves reforming the legal, political and administrative institutions of representative democracy in a way that makes them more responsive to the people and that secures the citizens’ capacity to have “an effective negotiated say within them wherever power is exercised non-democratically and unaccountably” (2008b, 302). Movements like those in favour of proportional representation, deliberative democracy, democratic constitutionalism, and legal pluralism aim to “‘civicize’ the civil institutions of modern citizenship.” And in these movements, Tully continues, civic citizens – who act from outside the institutions – “join hands with civil citizens engaged in the same projects from within” (ibid., 303). In this and other similar passages (see Tully 2013, 224), Tully formulates an important task for those who do not accept the increasing restrictions to citizens’ freedoms that have been adopted in many jurisdictions over the last decade. He also speaks eloquently to the desire, shared by many citizens, to shake the political institutions of contemporary democracies out of their complacency. My worry is that his construal of the contrast between the two conceptions of democracy in terms of the civil and civic dichotomy does not provide an appropriate basis for that project. To realize the task of “democratising democracy” we need a more robust and capacious account of citizenship within the grands États modernes and a consonant interpretation of representative democracy. The good news is that Tully’s earlier interpretation of the contrast, between extensive and restrictive democratic practices, provides us with appropriate tools to do so.

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no t e s 1 The feuq (Fédération étudiante universitaire du Québec) established in 1989 and the fecq (Fédération étudiante collégiale du Québec) established in 1990. 2 The assé (Association pour une solidarité syndicale étudiante) was founded in 2001, following the Summit of the Americas in Quebec City. The classe (Coalition large de l’Association pour une solidarité syndicale étudiante) was established in September 2011 to coordinate the struggle against the tuition fee increase. On direct democracy in the classe-assé, see Ancelovici and Roy-Allard (2014). 3 On the apacs (Assemblées populaires autonomes de quartier), see Drapeau-Buisson, Dupuis-Déri, Ancelovici (2014). 4 Renaud Poirier Saint-Pierre – press attaché of Gabriel Nadeau Dubois – in a letter published in Le Devoir, 14 July 2012, “Conflit étudiant – la prochaine étape sera celle des urnes” (my translation). 5 These differences over electoral politics were mirrored in the differing assessments of the strike’s results. 6 In particular, I have chosen not to cover the discussion over the place of violence during the events of that spring (violence perpetrated by the police forces and acts of violence performed by elements in the student movement). Tully emphasizes the nonviolent nature of the civil disobedience movements inspired by the likes of Gandhi and Martin Luther King that he endorses. His opposition to a politics of “violence and enmity” is the object of an important debate. See Robin Celikates’s contribution to this volume as well as Vasquez-Arroyo (2014). 7 For a more recent example, see Tully’s response to Christian Emden’s essay in Nichols and Singh (2014, 253). Tully considers what a genealogy of participation in European countries would look like if written from the practice-based perspective of the civic tradition: “Such a genealogy would show how generations of European civic citizens organized practices of mobilization and negotiation and struggled for representative governments, party systems, rights and institutions of assembly and participation … long before they had the rights or institutions to do so. Civil citizens could not join them in these uncivil and often illegal activities without ceasing to be civil citizens. However, they worked in solidarity from within the narrow official channels open to them to reform from within” (my emphasis).

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r e f e re n ce s Ancelovici, Marcos, and Maxime Roy-Allard. 2014. “La démocratie directe en mouvement. Structure et rapports de pouvoir au sein de la classe.” In Un printemps rouge et noir. Regards croisés sur la grève étudiante de 2012, edited by M. Ancelovici and F. Dupuis-Déri, 87–115. Montréal: Écosociété. Bonenfant, Maude, Anthony Glinoer, and Martine-Emmanuelle Lapointe. 2013. Le printemps québécois. Une anthologie. Montréal: Écosociété. Breaugh, Martin. 2007. L’expérience plébéienne. Une histoire discontinue de la liberté politique. Paris: Payot & Rivages. Collectif de débrayage. 2013. On s’en câlisse. Histoire profane de la grève printemps 2012. Québec, Montréal: Sabotart and Genève-Paris: Entremonde. Constant, Benjamin. 1980. “De la liberté des anciens comparée à celle des modernes.” De la liberté chez les modernes: Écrits politiques, edited by Marcel Gauchet, 491–515. Paris: Librarie générale française. Delvaux, Martine, Gabrielle Desrosiers, Elsa Galerand, and Vanessa L’écuyer. 2014. “Militantes féministes grévistes. Du Comité femmes de l’assé au Comité femmes CGI de l’uqam .” In Un printemps rouge et noir. Regards croisés sur la grève étudiante de 2012, edited by M. Ancelovici and F. Dupuis-Déri, 115–50. Montréal: Écosociété. Drapeau-Bisson, Marie-Lise, Francis Dupuis-Déri, and Marcos Ancelovici. 2014. “‘La grève est étudiante, la lutte est populaire!’ Manifestations de casseroles et assemblées de quartier.” In Un printemps rouge et noir. Regards croisés sur la grève étudiante de 2012, edited by M. Ancelovici and F. Dupuis-Déri, 150–85. Montréal: Écosociété. Dryzek, John. 2000. Deliberative Democracy and Beyond. Oxford: Oxford University Press. Habermas, Jürgen. 1993. “Struggles for Recognition in Constitutional States.” European Journal of Philosophy 1 (2): 128–55. – 1996. Between Facts and Norms. Cambridge, Mass.: mit Press. Manin, Bernard. 1997. The Principles of Representative Government. Cambridge: Cambridge University Press. Nichols, Robert, and Jakeet Singh, eds. 2014. Freedom and Democracy in an Imperial Context: Dialogues with James Tully. New York: Routledge. Rancière, Jacques. 1995. La Mésentente. Politique et Philosophie. Paris: Galilée.

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Surprenant, Marie-Eve, and Mylène Bigaouette. 2013. Les femmes changent la lutte. Au Coeur du printemps québécois. Montréal: Les Éditions du Remue-Ménage. Tully, James. 2008a. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. – 2008b. Public Philosophy in a New Key. Volume II. Cambridge: Cambridge University Press. – 2013. “Two Ways of Realizing Justice and Democracy: Linking Amartya Sen and Elinor Ostrom.” Critical Review of International Social and Political Philosophy 16 (2): 220–32. Vàzquez-Arroyo, Antonio Y. 2014. “At the Edges of Civic Freedom: Violence, Power, Enmity.” In Freedom and Democracy in an Imperial Context: Dialogues with James Tully, edited by Robert Nichols and Jakeet Singh, 48–71. New York: Routledge.

7 Practising Civic Freedoms in Global Governance: Contestation, Agency, Sites Antje Wiener

i nt ro du ct i on This chapter elaborates on the potential of the concept of civic freedoms for approaches to global governance. It argues that James Tully’s broad concept of the “citizen” (Tully 2008a) as a contestatory agency within governance relations and of governance regulations offers a normative approach to agency that opens a new angle on global governance research. While applying the concept of citizenship to global governance has proved a considerable challenge especially among scholars who remain critical of neo-Kantian attempts to theorize citizenship for the global realm, this chapter draws attention to the dynamic that is entailed by Tully’s innovative broader definition of the “the term ‘citizen’ to refer to a person who is subject to a relationship of governance (that is to say, governed) and, simultaneously and primarily, is an active agent in the field of a governance relationship” (Tully 2008a, 3). The following elaborates on the potential this definition of the term citizen has for a novel understanding of agency in international relations theory. This agency unfolds from Tully’s understanding of the citizen as constrained and enabled by the governance relations they find themselves in, while being unbound by the formal set of rules attached to modern state-bound citizenship. The latter establishes citizenship either as the liberal two-tiered concept that considers status based on rights and identity based on belonging as the two necessary conditions of modern citizenship (Brubaker 1989; Joppke 1998), or as

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the social-democratic three-tiered concept of citizenship based on the Marshallian triad of civic, political, and social rights (T.H. Marshall 1950) that stresses access to the welfare state as a necessary precondition for the practice of full citizenship rights (Hobson 2000; Jenson and Phillips 1996). Compared with these conceptions, thinking about citizenship as “unbound from the state,” that is outside the bounds of modern state-centric theories (Wiener and Oeter 2011),1 invites a novel way of theorizing global governance outside state-centric liberal international relations (ir) theories. I argue that placing the concept of the citizen in the global realm creates a theoretical opening for norm generative agency. Whether individual or collective this nonstate agency presents an alternative to thinking about international relations as inter-state relations (including “the country” or “the representative of government”), which prevails in many ir theories (Onuf 2012; critically: Gholiagha 2014, 2022). It is to indicate conceptual and institutional independence of the state from which it is unbound. As such, it allows a double take on norm-generative practices in the global realm (Kornprobst 2014). First, it sheds light on the contestatory practices of citizens; and second, it identifies access points for the input of critical learned scholarship to interact with these practices based on the normative principle of public philosophy (Tully 2008a, 3–4). Both practices contribute to enhance the role of nonstate agency and its impact on the norms of global governance. This type of agency is placed at the centre of “democratic constitutionalism” (rather than “constitutional democracy”) as an under-researched normative layer of global governance.2 The envisaged conceptual transmission between Public Philosophy in a New Key (ppnk) and international relations theories is based on the common interface designed by the notion of agency that is constituted through their temporary and contemporary being in governance relations. It applies a bifocal – normative and descriptive – understanding of the the changing meaning of the fundamental norm of citizenship which is facilitated by Tully’s broader conceptualisation of the term citizen as agency. In doing so it reflects the motivation of practising civic freedoms in order to overcome injustice. The first describes the legitimate practice of citizen participation in contestation; the second includes the engagement of learned scholars practising civic freedom. As such Tully’s concept of civic freedoms allows for intertwining the notions of resistance (understood as direct influence on material change) and contestation (understood as critical interaction with norms).3

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The remainder of this chapter proceeds in three steps. The first step focuses on the legitimacy gap in global governance and the argument that it stands to be filled by regular access to contestation for all stakeholders (rather than being bridged which would result in a mere papering over the cracks). It begins from Tully’s suggestion to consider temporary struggles over recognition both inside and outside formal constitutional settings, and accordingly to reconceive “constitutions as open to continuing contestation and negotiation by those subject to them” (Tully 2008a, 4). Both claims pave the way for a bifocal conception of contestation as both necessary and possible in contexts of constitutionalism, whether state bound, or, unbound, as it were. The second step focuses on the conceptualization of critical agency as suggested by ppnk and the subsequent conceptual transfer of this type of agency into the discipline of international relations theories in order to apply it in the context of global governance. The section begins from ppnk ’s concept of citizenship as “grounded in local civic practices yet extended globally by democratic networks” (ibid., 8). To elaborate on this claim the third step considers potential sites of practising civic freedom. Accordingly, the possibility for activating the agency practising civic freedoms opens up on sites where learned scholars can “enter into the dialogue with citizens engaged in struggles against various forms of injustice and oppression” and “establish pedagogical relationships of reciprocal elucidation between academic research and the civic activities of fellow citizens” (ibid., 3). The challenge therefore lies in identifying that moment of struggle. As the following shows, such moments are indicated by four distinct modes of contestation including justification, arbitration, contention, and deliberation (Wiener and Oeter 2014). In conclusion, the chapter identifies conditions under which civic freedoms are to be practised in the context of global governance. These conditions include, first, an understanding of international relations as relations among nonstate agency rather than countries or states; second, the broadly defined concept of unbound citizenship; and third, a distinction among masters, owners, and users of global governance norms.

two ch al le nges To discuss the potential of nonstate agency for learned scholars who are prepared to engage the broader term of citizen in international relations, this chapter argues that Tully’s concept of the citizen as a

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Table 7.1 | Three norm types and the legitimacy gap in international relations

Category

Norms

Moral reach

Degree of contestation

Type 1

Fundamental norms

Broad

Low

Type 2

Organizing principles

Legitimacy gap

Type 3

Standardized procedures Narrow

High

Source: Adaptation from Wiener (2008, 66)

critical agency offers an important contribution to the task of “filling legitimacy gaps” in global governance that arise from contestations over distinct types of norms (Wiener 2014, 38; and table 7.1). The task of filling gaps – rather than bridging them – is suggested to counter normative mismatches due to interdisciplinary eclectism. And it allows the light to come in through the very cracks in the normative order, with which the global citizen is struggling to come to terms.4 However, prior to engaging in the argument about civic freedoms, two challenges need to be foregrounded that matter especially for ir scholars. The first challenge evolves from the concept of nonstate agency. For this concept presents an innovation to ir theorists, who have traditionally emphasized the role of states as the central agency in international relations.5 This has become increasingly questioned in the light of enhanced cooperation through international organizations, regimes, and regional organizations, as well as an increasing input from nongovernmental organizations and transnational advocacy networks.6 Second, international relations are typically practised as cross-borders relations involving representatives of different national background and affiliation. Whereas the concept of citizenship is typically situated within a political community, it is important to stress that the frequent type of cross-border movement in international relations involves not only a diversity of communities, but also an absence of an “imagined” political community (compare Anderson 1983; and Wiener 2014, 43) that is organized

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and operates based on shared normative values. While international relations theories often suggest that the liberal values of the Charter of the United Nations may be constitutive for such an organized community, the range of resistance to these foundational norms of the United Nations (un ) as well as contestations of them have always demonstrated the highly questionable and hence instable role of this imagined liberal community. The first implies that global realm is the context of a pluralist set of communities (Walker 2010); the latter indicates the contested assumption of a stable liberal international order (Lake, Martin, and Risse 2021) or indeed the existence of a hegemonic liberal community.7 It follows that the space where civic freedoms are practised and the type of agency enabled to do so, remain to be identified, before they can be probed with regard to their respective application in international relations. The following argument is developed against the backdrop of these two challenges. It is argued that ppnk’s concept of the citizen as agency allows for pinning down the potential range of contestatory engagements, on the one hand, and accounting for their potential to fill the legitimacy gap at the normative mesolevel in global governance, on the other. Four modes of contestation are distinguished: arbitration, deliberation, contention, and justification. Each of these contestatory practices works as an indicator of space and agency for the space with a view to operationalizing empirical research. Empirically, the result would be notable with reference to emerging ground rules, which are acceptable to the majority of the stakeholders in a specific governance sector. According to the theory of contestation these ground rules are defined as organising principles (or type 2 norms) of global governance. For they are most likely to be respected by the stakeholders who have been involved in the generation of these very principles during prior processes of politics and policy-making (Wiener 2014, chap. 6). Notably and importantly, in the absence of an organized community where normativity is shared based on the social recognition of norms expected within stable societal boundaries, it is this space at the mesolevel of normativity, where individual agency matters for negotiating normativity in global governance, and thus eventually filling the legitimacy gap. Ideally, this will become the site where citizens and learned scholars interact. It is here where potentially novel “sites” of global governance are constituted by interventions through “discourse” and within “space” (compare Huffschmid and

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Wildner 2009, 4). Whether and how such interventions through practising civic freedom on governance relations – in Tully’s words “pedagogical” – are possible (Tully 2008a, 3), depends on certain conditions which are set by the rules of engagement on each site of struggle. I have called these “sites of contestation” elsewhere (Wiener 2018: 44, Figure 2.1).

c o n t e stat io n: t he l egi ti macy gap Contested norms, principles, and standards are the rule rather than the exception in the context of global governance. Nonetheless, cooperation and conflict solution outside the boundaries of organized political orders require common ground rules for, in the absence of these, the Hobbesian state of nature is likely to prevail. Liberal ir theories generally agree on a modicum of shared international norms such as a culture of sovereign equality from which flow an adherence to human rights and the rule of law. These fundamental norms are spelled out and rooted in the un charter. And they are guarded by the un institutions and defended by the instruments and the practice of international law (Brunnée and Toope 2010). Constructivist ir theories have added to this belief in the power of Western fundamental beliefs by theorizing the diffusion of norms across the boundaries of nation-states (Risse, Ropp, and Sikkink 1999; Börzel and Risse 2012; Solingen and Börzel 2014). Yet, despite the institutional setting of the un and the relatively settled and central fundamental norms of global governance, questions arise regarding the legitimate authority of the un’s institutions as well as the legitimacy of the mechanisms and instruments brought to bear in defence of the fundamental norms of the normative global order flowing from them. The main issue raised by these contestations is the foundational question about “whose sovereignty” is at stake (Cohen 2004; Cohen 2012). For example, Jean Cohen found that globalization posed a threat to the concept of sovereign equality that had become a fundamental norm of global governance since the foundation of the United Nations in 1948 (Cohen 2008, 2012; and Welsh 2013, 391–3). To address this new development, she posed the question: “Whose Sovereignty?” noting that a “variety of supranational organizations, transnational ‘private global authorities,’ and transgovernmental networks engage in regulation and rule making, bypassing the state in the generation of hard and ‘soft law.’ Indeed the apparent decoupling of law from

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the territorial state suggests to many that the latter has lost legal as well as political sovereignty” (Cohen 2004, 1; our emphasis). In order to answer the question, Cohen resorted to the emerging literature on global constitutionalism. And in order to safeguard the sovereign equality for states within a dualistic world order she ultimately resorts to a republican federalist order of global governance (Cohen 2012). As Jennifer Welsh notes, with this assessment Cohen emphasized the “broader normative function (of sovereign equality): to create an egalitarian political and legal society at the global level” (Welsh 2013, 393). However, the precondition for this function to come into play, is that of an organizational structure of the global realm that is firmly based on the nation-state units that are central to modernity (for such a federal approach to global society compare for example Habermas 2011; or the work of Fassbender 2009). In other words, the answer to Cohen’s inquiry about sovereignty refrains from critical revision of the un system insofar as it remains solidly based on the foundational role of the state. Without going into details of the theory of contestation, it may suffice here to summarize three working hypotheses, which follow from that theory. The first hypothesis holds that the higher the opportunity for contestation, the higher the degree of normative ownership and therefore the legitimacy of a norm. The legitimacy gap between type 1 and type 3 norms suggests that more contestation at the mesolevel is required. If users begin to engage in contestation, and if this contestation is reiterated, then ownership can develop (compare table 7.1 above). The second hypothesis holds that mastership and ownership of norms differ pending on the type of norm. While the masters set the norm, its legitimacy depends on the degree of ownership, which has been generated through subsequent practice (proof lies in the practice). And the third hypothesis holds that each type of norm is generated by a distinct practice, which differs according to the three stages of norm implementation: the constitutive stage, the referring stage, and the implementing stage (compare figure 7.1). At the constituting stage of a type 1 norm the signatories of a treaty usually agree on the sort of norm to be addressed. They agree on the formal validity of the norm, and pending on the rounds of preparatory committee meetings they will bring a sense of ownership to the signing table. As masters of the treaty, they therefore are likely to also have become the owners of normativity (compare Chayes and Chayes 1993, 180). At the referring stage a type 2 norm is expected to have

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Stage / agency

Constituting

Referring

153

Implementing

Community

Social recognition Social group

Formal validity

Cultural validation Individual

Figure 7.1 | The cycle of contestation Source: Wiener (2014, 36, figure 2.1)

been addressed by involved stakeholders repeatedly, they will develop a sense of ownership of the norm and are therefore likely to take it for granted, and consider it legitimate. At the implementing stage a type 3 norm is expected to be specified in a way that the norm user is able to decide whether to implement the norm or not. Norm following at this stage is less about ownership than about a rational decision to accept the norm (in order to do something). With regard to the subsequent empirical task of identifying the site where learned scholarship is to assume critical agency three questions are raised. First, who are the masters? Second, who are the owners, and third, who are the users of norms (Park and Vetterlein 2011)? This is followed by the empirical pointer towards the segments of norms that are activated on the cycle of contestation

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(Wiener 2014, figure 2.1). Which stage of norm implementation is relevant for analyzing a particular type of norm, which is contested? Which environment do we encounter (i.e., legal, societal, political, academic or public, or both)? Which mode of contestation is dominant in this environment, that is, does the practice of arbitration indicate the predominantly legal context of courts; does the practice of deliberation indicate a predominantly political context of regimes and international organizations; does the practice of contention indicate a predominantly societal context of social movement or advocacy engagement; or, last not least, does the practice of justification indicate the context of academic debate or public debate (compare for this distinction of four modes of contestation Wiener and Oeter 2014)? If fundamental norms are constituted by norm setters (the masters), and organizing principles are referred to by stakeholders (the owners), and furthermore standardized procedures are implemented by norm users (the followers), regular contestation at the mesolevel stands to fill the legitimacy gap. For it is in this space in the global governance setting that ownership of normativity can be established through regular contestation. To probe this normative theoretical assumption about the space for contestation, it is for empirical work to identify actors engaged in actual contestations on sites of contestation (compare the nine sites on the cycle-grid model, Wiener 2018, 44, figure 2.1). On the condition that these sites are accomplished the practice of civic freedom may be put into practice. The following section turns to a closer elaboration of the agency of learned scholarship and its relevance for addressing legitimacy in global governance.

ag e n cy: p ract is in g ci vi c freedom in gl obal g overnance To legal scholars the expectation that their learned scholarship impacts on the validity of the law is quite common. For example, article 38 d of the Statutes of the International Court of Justice states that “subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, are subsidiary means for the determination of rules of law.”8 To political scientists that situation is considerably different. While our opinions may be heard through consultancy or evaluation, this

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does not mean intervening directly with policy processes. In this chapter, I suggest that with his critical approach to the concept of “civic freedom” and its realization based on the learned scholar as a critical agent of governance Tully’s ppnk offers the conceptual alternative to this situation (Tully 2008a, 2008b). For with this concept Tully aims to critically engage with governance relations to change the rules of the game. This is achieved through enabling an interactive relationship between learned scholars and citizens. To that end, he uses “the term citizen to refer to a person who is subject to a relationship of governance (that is to say, governed) and, simultaneously and primarily, is an active agent in the field of a governance relationship” (Tully 2008a, 3). Accordingly, the role of the critical academic is to “enter into dialogue with citizens engaged in struggles against various forms of injustice and oppression, and to establish pedagogical relationships of reciprocal elucidation between academic research and the civic activities of fellow citizens” (ibid.). I propose drawing on this concept in order to develop critical agency in the context of contestatory politics of the global realm. It is argued that this critical agency would target the space where normative ownership is negotiated in global governance relations. This space emerges through contestations about organizing principles on the mesolevel of normativity, as the following section three will demonstrate in more empirical and theoretical detail. This proposition includes using the concept of “citizen” even broader than intended by Tully, for it aims to account for agency in global governance relations. The call for critical intervention of learned scholarship in the social sciences is fleshed out with a focus on the way norms potentially work in global governance. It is addressed to social scientists, in order to preempt situations of conflict about the implementation of norms. As will be detailed in the following sections, three stages of norm implementation matter in this regard (Wiener 2014, figure 2.1 and table 2.3). Following critical norm research in international relations, it is argued that normativity needs to be reenacted on a regular basis, and that, in order to achieve this goal access to regular contestation needs to be facilitated through new policy initiatives. This argument draws on earlier work, which advanced “[t]he main normative argument holds that as the organic substance of the ‘normative structure of meaning-in-use’ (Milliken 1999, 231; Wiener 2004, 190) of any governance setting, norms represent the legitimating core of global governance. Given that norms

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entail a dual quality (i.e., they are both structuring and constructed) they must be contestable so as to both indicate potential legitimacy gaps and to overcome them. Whereas legitimacy gaps are indicated by empirical research, they are overcome by applying the principle of contestedness, which underlies the call for equal access to regular contestation for all involved stakeholders” (Wiener 2014, 4). The central point of this argument is that at the mesolevel of normativity construction in global governance relations, normative ownership is constituted through access to regular contestation. This process has been convincingly demonstrated by Susan Park and Antje Vetterlein’s research on the way development policy norms are constituted over time. For example, when raising a question about “owning development” they examine whether stakeholders have a say with regard to the policy processes in which policy norms are developed, that are subsequently implemented by the wide network of the United Nations’ development agencies. They define policy norms as “shared expectations for all relevant actors within a community about what constitutes appropriate behaviour, which is encapsulated in … policy” (Park and Vetterlein 2011, 4). Importantly they thereby shed light on the impact of stakeholders as constitutive for the social recognition of norms within given social groups. While the effect of the direct interplay between the rights and political practice is well-known and has been most prominently established by Rousseau’s concept of assembly (compare Pettit 2014),9 Park and Vetterlein have probed the potential of legitimacy based on norm ownership in the absence of the political organization of the nation state. To that end they resorted to the concept of collective action, arguing that, “(N)orms are not immutable structures; they change through collective action.” And, most importantly, they found that “policy norms are not uniform in their power; they may gain or lose strength according to the degree to which they are accepted and adhered to” (Park and Vetterlein 2011, 5). However, in the complex context of global governance where social relations are never equally affected by globalization, and political communities differ, social groups cannot be taken for granted. Accordingly, it would be misleading to expect a shared social recognition of norms unless the stability of a social group can be demonstrated empirically. Given that the boundaries of communities are constantly perforated, the social recognition of norms – and therefore the most important indicator for norm implementation – is

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increasingly less stable. Instead, the fragmented and pluralist institutional settings of global governance depend on the awareness of global agency that individual “background experience” weighs in at any time when international encounters take place (Wenger 1999; Bourdieu 1997). To account for this background experience the segment of cultural validation on the cycle of contestation facilitates the lacking third dimension of normativity that needs to be accounted for, once interaction leads beyond the boundaries of the relatively uncontested normative space of social groups.10 For example, Jean Cohen noted that in light of the highly contested proceedings with regard to the United Nations Security Council (unsc ) politics, the fundamental norm of sovereignty had become challenged by the unsc ’s decision-making. While the unsc had been assigned a range of powers that enabled the council to weed out individuals who were suspected of terrorist activities or links to terrorist groups (at the time this policy was labelled and became globally known as “blacklisting”) – which ultimately resulted in freezing assets, so that all movement of a suspect was impeded (following the establishment of the Sanctions Committee in 1999)11 – it was not until the much-debated Kadi case and the respective judgments by the courts of the European Union12 that the lack of legitimacy and the degree to which norm ownership was questioned through unsc decision-making even by the masters of the un treaties, came to the fore.13 The following section sheds light on the concept of norm ownership in global governance: who needs norms, and whose norms count? How is it possible to establish norm ownership outside the boundaries of social groups, as the traditional social habit of norms?

s it es : no rm ow ners hi p i n gl obal g ove rnance In order to identify sites for critical intervention in the cycle of norm contestation through the intervention of the citizen or learned scholarship, or both, the following turns to four examples of interaction in (global) governance relations. The first two examples describe the absence and presence of discursive and spatial interaction with regard two distinct norm types including the organizing principle (type 2 norm) of the responsibility norm in global governance on the one hand, and the case of the fundamental norm (type 1) of freedom

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of movement norm in European governance, on the other (compare Wiener 2014, 66–8). The second set of examples highlight the normative discussion of contested norms in governance relations with regard to Paul Kahn’s perception of the fundamental norm (type 1) of popular sovereignty on the one hand, and Jim Tully’s concept of mutual recognition, which ranges at the mesolevel of normativity (type 2 norm) on the other. Both sets of examples have been selected to present contradictory perspectives on the issue of identifying sites for practising civic freedoms in global governance. The first two examples shall shed light on the point of this question, the first addresses the case of humanitarian intervention on a global scale; and the second addresses the case of free movement in the European Union (eu ). Example No. 1: Responsibility in Global Governance Relations In light of the Canadian-based initiative for establishing ground rules for humanitarian interventions in light of serious breaches with the fundamental norm of human rights, the responsibility to protect doctrine was established in 2001 by the International Commission on Intervention and State Sovereignty (iciss ). Notably, the responsibility to protect (r2p ) principle, effectively changes the fundamental norm of sovereignty, for it is up to the group of un member states, and finally the un Security Council, to decide whether or not the human rights norm has been breached by a un member state to the extent that humanitarian – military – intervention was required. According to the un ’s website the principle means that “(S)overeignty no longer exclusively protects States from foreign interference; it is a charge of responsibility that holds States accountable for the welfare of their people.”14 While the r2p principle has been generally hailed as advance with regard to promoting human rights protection on the global scale, not all un member states agree with the interpretation of the responsibility principle. For example, the brics countries (Brazil, Russia, India, China, and South Africa) have opted for prioritizing their political power while sharing the value of human rights. In order to do this, the brics advanced the concept of the “responsibility while protecting” as an alternative to the “responsibility to protect” (see Welsh, Quinton-Brown, and MacDiarmid 2013).15 The latter’s community-based rational for humanitarian intervention has thus become countered by a sovereignty-based alternative.

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Without detailing this narrative in the limited scope of this chapter, it suffices to note that this contestation of the principle of “responsibility” has opened a new space for constituting shared ground rules. Through regular contestations, this space indicates the need for defining sites where normativity stands to be negotiated in global governance settings. In the sector of security governance, for example, the debates over responsibility have staked out the mesolevel of shared organising principles of global governance. In turn, and on a quite different scale and scope of action, the rapid development of the Islamic State (is ) as a counterforce to the fundamental norms established by the un ’s liberal postwar community,16 is the most brutal demonstration of defiance of this liberal world order since the un exists, to be sure. While the quality of this act of defiance shall not be at stake here, the fact that a strongly motivated counterforce from beyond the margins of the un system should come to the fore, is. As this case demonstrates, the legitimacy gap between fundamental norms such as sovereignty and human rights as type 1 norms stipulated by the un charter which had been agreed by the masters of the un treaties, comes to the fore at the moment when norm users are expected to implement them. In the worst case scenario, the legitimacy gap will prevail, in the best case scenario, shared ownership will emerge following the contestation of regulations and stating the emerging organising principles (type 2) such as, for example, the responsibility to protect or the responsibility while protecting, or both. Example No. 2: Freedom of Movement The British media report a rising discontent with the eu ’s regulations regarding the implementation of the fundamental norm of free movement. According to the media reports, British public opinion requires stricter regulations to curb migration. In turn, European Commission President Claude Juncker noted that this contestation is not legitimate in so far as free movement is among the “foundational principles” of the eu . Accordingly he “rejected out of hand any attempt by David Cameron to ‘destroy’ the fundamental rules of the eu on free movement of people. In an echo of the remarks by the outgoing president José Manuel Barroso, who warned that the prime minister is making a ‘historic mistake’ on the eu , Juncker said on Wednesday that he would not compromise

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in an ‘irresponsible way’ on rights that date back to foundation of the eec .”17 The latter perception of free movement as a fundamental norm (type 1) of the European normative order is shared among the masters of the treaties, to be sure. Yet, as the British public contentions demonstrate, the corresponding regulations about the implementation of the free movement principle (type 3 norm), which had been forged by the masters of the treaty (i.e., the heads of government of the eu member states as the signatories of the Lisbon Treaty) are not shared by the users of the treaty. The result is an obvious legitimacy gap. As this case demonstrates: while fundamental norms are legitimate to the masters (of the treaty, e.g., the Lisbon Treaty), there is no guarantee why users (e.g., the British public, parties, and so on) should agree with the masters. Pending on the users’ experiences and expectations, fundamental norms may not be considered as legitimate. To fill this legitimacy gap between masters and users, it is recommended bringing stakeholders to the table in order to establish the ground rules (organizing principles on the mesolevel), which facilitate the mutual understanding between masters and users. Here, regular contestation of migration issues (for example, among representatives of British civil society on the one hand, and eu institutional representatives, on the other) can make a difference. The following second set of examples includes two distinct perspectives on norms, which discuss the role of norms with distinct possibilities of ownership. The first addresses the role of popular sovereignty in modern nation-states; and the second example focuses on diversity as a condition that requires rethinking modern concepts of sovereignty altogether. It turns to the norm of mutual recognition as an organizing principle, which facilitates interaction with difference as part of an ongoing struggle for equality. Each of these examples demonstrates the distinct reference to norms and how they work in context. Notably, example three derives the legitimacy of popular sovereignty not from the practice and the expression of the citizens’ will (e.g., through the voting behaviour), but from normative reasoning that is conceptualized as prior to that practice. In turn, example four argues precisely the contrary. By stressing the norm-generative power of practice, it emphasizes the constitution of the norm of mutual recognition through interactive citizen practice.

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Example No. 3: Popular Sovereignty In his work on constitutionalism, Paul Kahn raises a question about the ownership of constitutional texts (Kahn 1999). He argues that – generally – a constitutional text is not owned by its addressees.18 Instead, the “will of the popular sovereign is always deeper and richer than its particular terms of expression in a constitution. That will is an inexhaustible source of meaning for the state. … but the authority of a constitution derives not from reason but from will” (Kahn 2006, 268). With reference to the global governance context, this approach implies that, accordingly, rules and regulations (i.e., the set of norms that guide international relations in global governance) are of great importance, yet they are engaged with and enacted through the underlying values of the larger system of global governance. The role of the constitution is therefore less that of a set of instructions for behaviour and regulations, and more of a predefined focal point that was agreed prior to actual practices of constitutionalization (compare for the latter, e.g., Dunoff and Trachtman 2009). For on the one hand, “constitutions appear as law, to which ordinary canons of legal construction should apply. On the other hand, constitutions appear as an endless resource of self-understanding for the state. They preserve that original act of self-revelation by the popular sovereign” (Kahn 2006, 269). The implication for Kahn’s argument about valuing will over reason (and relatedly interest) is that institution building at the mesolevel of normativity in global governance does not come to the fore as constitutive for normativity. Subsequently its impact on state sovereignty is of limited concern as long as the popular sovereign survives unscathed by historically contingent practices and remains a “universal norm.”19 To Kahn, the prevailing power of the un charter would be the document, which reflects the will of the masters of the treaties founding the liberal community at the time of its creation in 1948. Example No. 4: Mutual Recognition Why and how does unbound citizenship matter for agency in global governance? Which role does the citizen in the struggle over normativity have with a view to staking out the sites where normativity is negotiated? James Tully had observed that entire series of constitutional conversations and their results have been left out

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of the modern constitutional equation altogether (on which both Cohen and Kahn build their respective positions). His Strange Multiplicity: Constitutionalism in an Age of Diversity (Tully 1995) brings these hidden constitutional settings to the fore. Quite distinct from Kahn who conceptualizes that the religious transtemporal roots of constitutionalism in popular sovereignty as a result of will rather than reason or, for that matter, Cohen’s liberal concept of sovereign equality among states that operate within a larger liberal community, Tully emphasizes the importance of distinct and contingent types of constitutionalism. Each of these types is forged through contingent cultural and regulatory practices, respectively. In light of this twofold constitutional map Tully’s Strange Multiplicity develops from one central question, namely, whether a “modern constitution (can) recognise and accommodate cultural diversity” (1995, 1). This question matters as much for domestic constitutional settings, as it does for global quasi-constitutional settings. This practice approach to sovereignty is based on the perception that modernity is not conceptualized as an achievement as such, but only under specific egalitarian conditions, for example, the condition that it can accommodate diversity. In direct opposition to Kahn’s universalist transtemporal concept of popular sovereignty that is to structure and outlast contingent citizenship practice, Tully’s historical approach provides conceptual space for accommodating the norm-generative impact of interactive practice. This practice is guided by the norm of mutual recognition. That is, in communities that accept this norm as an organizing principle (type 2 norm), contingent norm generation is warranted, as long as citizens have – in principle – access to regular contestation. The legitimacy gap of (global) governance is thus filled through practice. He finds that a “constitution can seek to impose one cultural practice, one way of rule following, or it can recognise a diversity of cultural ways of being a citizen but it cannot eliminate or transcend this cultural dimension of politics” (ibid., 6). To arrive at a situation in which rule following becomes accepted to the “strange multiplicity,” rules need to be negotiated. This is realised through the “politics of cultural recognition (which) takes place on this intercultural ‘common’ ground, as I shall call the labyrinth composed of the overlap, interaction and negotiation of cultures over time” (ibid., 14). As Tully elaborates in detail in his seminal “The Unfreedom of the Moderns” that “unfreedom” stands to be overcome through enabling negotiations of the fundamental norms of the rule of law

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and of popular sovereignty. Both are facilitated through the primordiality of the principle of constitutionalism, on the one hand and the principle of democracy, on the other (Tully 2008b, 92).

co nc lu s i on This chapter discussed the potential of the concept of “civic freedoms” with regard to Tully's broader definition of the term citizen. It was argued that this definition facilitates an understanding of nonstate agency that is both novel and overdue for global governance research. The potential of this type of agency was illustrated with examples of nonstate agency’s critical engagement with the norms of global governance. To that end, the chapter developed the argument that first, Tully’s broadly defined “citizen,” as anybody who find themselves critically engaging with governance relations, has agency beyond the boundaries of nation states; and that, secondly, the thus unbound citizen’s struggle might be engaged with by learned scholarship. To explore the potential of this critical agency in global governance, the chapter proceeded in three steps, addressing agency, contestation, and sites of such critical engagement, respectively. This concluding section summarizes three conditions for practising civic freedoms in the context of global governance and the respective implications for rethinking international relations theories. They include, first, an understanding of international relations as relations among individuals rather than countries or states. While the individual has been discussed by a range of ir theorists especially by those studying diplomacy or public diplomacy,20 the concept of individual agency in ir requires further substantiation (compare Gholiagha 2022). Promising work has been conducted by new approaches to the field of International Political Theory.21 The second condition for practising civic freedoms in the global realm consists in a more broadly defined concept of citizenship as unbound from the state. As Tully’s ppnk and recent work on global citizenship practice within the context of new security threats have demonstrated, the notion of citizenship practice on sites that are situated outside the moral predetermination by the political and philosophical vocabulary of nation-state constitutionalism could benefit substantially from the emerging field of global constitutionalism (Peters 2009; Cohen 2012). And third, the application of critical intervention by learned scholars stands to benefit from the distinction among mastership, ownership, and followership

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of the norms that structure global governance and are constructed through reenacting the normative structures of meaning in use of that governance. All three conditions are conducive towards fleshing out a mid-range approach to normativity: that is, while norms are always reenacted through practice, they are never created from scratch, for they bear experience and hence are the perfect screen for expectations towards legitimate global governance. n ot e s

1

2

3

4

For comments on earlier versions I would like to thank Dimitrios Karmis, the organizing team, and all workshop participants. Very special thanks to Jim Tully whose detailed reading of earlier versions of this particular chapter and discussions of my work have been most helpful and stimulating over the years. I thank Ines Rerbal for research assistance. The responsibility for this version of the chapter is exclusively the author’s. The chapter has been completed while I held a European Institutes for Advanced Study (eurias ) Fellowship at the Netherlands Institute for Advanced Studies (nias ) of the Royal Academy of the Sciences in Wassenaar. The support of eurias and nias is greatly acknowledged. See: A. Wiener and S. Oeter (2011), “Constitutionalism Unbound: Developing Triangulation for International Relations,” unpublished research proposal, University of Hamburg; and “Constitutionalism Unbound: The Contested Narrative of (Global) Constitutionalisation,” unpublished research proposal, University of Hamburg. Compare Tully’s suggestion of a “transition from constitutional democracy (where the constitution is conceived as founding and standing behind democratic activity) to democratic constitutionalism (where the constitution and the democratic negotiation of it are conceived as equally basic)” (Tully 2008a, 4). Elsewhere in literary studies a shift from resistance towards contestation has been observed. Compare for example Ralph Rodriguez who writes, “I am noting a paradigmatic shift from resistance to contestation. While not part of territorial governance battles per se, these new wave texts continue to struggle against antagonistic forces of oppression, such as racism and sexism. Thus, I opt for the terms contestatory literature or a literature of contestation” (Rodriguez 2000, 67). Compare the lines of Leonard Cohen’s anthem for this notion of the cracks and their role vis-à-vis global conflicts. For details see: https://www. youtube.com/watch?v=_e39UmEnqY8 (accessed on 14 August 2015).

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5 For these compare Waltz (1979), and critically Wilmer (2001) on state agency; and, somewhat surprisingly given his role as one of the two founding fathers of constructivism, Onuf (2012) and critically, Wiener (2014). 6 Compare e.g., critical theorists who prioritized research on structural change; see, for example, Keyman (1997); Ashley (1997); Linklater (2007); or for how public diplomacy, human rights, and humanitarian intervention research has added a new emphasis on the role of the individual as target, victim, and agency, see Welsh (2013); Adler-Nissen (2014); Gholiagha (2014). 7 For many supporters of the liberal community assumption compare political theorists ranging from Habermas (2011) to Rawls (2003), and the majority of the ir mainstream theories including social constructivism. While critique of liberalism is frequent, it is mostly advanced by neo-Gramscian or neo-Marxist international political economists who address neoliberal economic politics. In turn, few authors have engaged with the liberal community assumption on legal or political science grounds (see e.g., Walker 2000, 2007, 2009; Wiener and Vetterlein 2013). 8 See: Statute of the International Court of Justice (icj ), article 38 d) at http://www.icj-cij.org/documents/?p1=4&p2=2#CHAPTER_II (accessed 28 Nov 2014). 9 See: P. Pettit (2014), “Rousseau’s Bequest to Kant,” evening lecture at the conference on Kant and republicanism; Normative Orders Excellence Cluster, Goethe University, Frankfurt and University of Hamburg, Hamburg, 8 April. 10 For the three segments of norms compare figure 7.1 above. 11 The unsc ’s sanctions committee was established by resolution 1267 (1999) on 15 October 1999; for details see: http://www.un.org/sc/ committees/1267/ (accessed on 7 December 2014). 12 For the Kadi case, compare Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, hereafter: the Kadi case; details: http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=CELEX:62005J0402:EN:HTML (accessed on 7 December 2014). 13 While the entire narrative of the Kadi case offers enlightening insight into the contested fundamental norm of sovereignty, in light of the limited space of this chapter it must suffice to note that in this case it took about a decade and required a change in the un ’s institutional setting towards the establishment of a new Ombudsperson Office, for Mr Kadi to become “delisted” from the unsc ’s so-calleds blacklist. For details of the

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narrative, compare the ejil blog at http://www.ejiltalk.org/ kadi-showdown/ (accessed on 7 December 2014). For details, see http://www.un.org/en/preventgenocide/adviser/ responsibility.shtml (accessed on 7 December 2014). For details, see: http://ccr2p.org/?p=616 (accessed on 7 December 2014). Reference is made here to the “Islamic State of Iraq and the Levant,” i.e., the radical group, which builds on early formations in 1999, and has emerged forcefully on the global stage following the Syria crisis in 2014. For details, see: http://en.wikipedia.org/wiki/ Islamic_State_of_Iraq_and_the_Levant. Source: The Guardian, 23 Oct 2014; for details see: http://www. theguardian.com/world/2014/oct/23/juncker-tells-cameron-cantdestroy-eu-migration-rules (accessed 25 November 2014). Compare Ulrich Haltern’s work for an application of this approach to the eu (Haltern 2003). As Kahn notes, “in political hermeneutics this is warranted by the focus on ‘we the people,’ never we, the present voters.” It follows that sovereign stability is generated by the revolutionary community’s “transtemporal existence: all individuals – present and future – participate as members of the political sovereign” (Kahn 2006, 271). “Constitutional hermeneutics treats the text not as a source of just political principles, but as the revelatory source of our deepest common meaning” (Kahn 2006, 271). Compare for example, Fierke (2007); Kornprobst (2012); Bjola and Kornprobst (2011); Adler-Nissen (2014). Compare for example, Bueger and Gadinger (2014); Berenskötter (2013); Kratochwil (2013); Hansen-Magnusson (2020).

r e f e re n ce s Adler-Nissen, R. 2014. Opting Out of the European Union: Diplomacy, Sovereignty and European Integration. Cambridge: Cambridge University Press. Ashley, R. 1987. “The Geopolitics of Geopolitical Space: Toward a Critical Social Theory of International Relations.” Alternatives 12 (4): 403–34. Anderson, B. 1983. Imagined Communities. London: Verso. Berenskoetter, Felix. 2013. “Jumping Off the Bandwagon.” Contemporary Security Policy 34 (2): 382–6. Bjola, C., and M. Kornprobst. 2011. Arguing Global Governance. Agency, Lifeworld, and Shared Reasoning. London: Routledge, 194–209.

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Bourdieu, Pierre. 1977. Outline of a Theory of Practice. Cambridge: Cambridge University Press. Börzel, T.A., and T. Risse. 2012. “From Europeanisation to Diffusion: Introduction.” West European Politics 35 (1): 1–19. Brubaker, R. 1989. Immigration and the Politics of Citizenship in Europe and North America. Lanham: University Press of America. Brunnée, J., and S.J. Toope. 2010. Legitimacy and Legality in International Law: An Interactional Account. Cambridge: Cambridge University Press. Bueger, C., and F. Gadinger. 2014. International Practice Theory: New Perspectives. New York: Palgrave MacMillan. Chayes, A., and A.H. Chayes. 1993. “On Compliance.” International Organization 47 (2): 175–205. Cohen, J.L. 2004. “Whose Sovereignty? Empire Versus International Law.” Ethics & International Affairs 18 (3): 1–24. – 2008. “Rethinking Human Rights, Democracy, and Sovereignty in the Age of Globalization.” Political Theory 36 (4): 578–606. – 2012. Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism. Cambridge: Cambridge University Press. Fassbender, B. 2009. “Rediscovering a Forgotten Constitution: Notes on the Place of the un Charter in the International Legal Order.” In Ruling the World?, edited by J.L. Dunoff and J.P. Trachtman, 133–48. Cambridge: Cambridge University Press. Fierke, K.M. 2007. Critical Approaches to International Security. Cambridge: Polity Press. Gholiagha, S. 2014. “The Individual Human Being in International Relations.” Dissertation, University of Hamburg. Gholiagha, S. (2022). The Humanisation of Global Politics: International Criminal Law, the Responsibility to Protect, and Drones (Studies on International Courts and Tribunals). Cambridge: Cambridge University Press. doi:10.1017/9781108909136 Habermas, J. 2011. Zur Verfassung Europas. Ein Essay. Frankfurt am Main: Suhrkamp. Haltern, U. 2003. “Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination.” European Law Journal 9 (1): 14–44, https://doi.org/10.1111/1468-0386.00168. Hansen-Magnusson, H. 2020. International Relations as Politics among People: Hermeneutic Encounters and Global Governance. London: Routledge.

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Hobson, Barbara. 2000. Gender and Citizenship in Transition. London: Routledge. Huffschmid, Anne, and Kathrin Wildner. 2009. “Räume sprechen, Diskurse verorten? Überlegungen zu einer transdisziplinären Ethnografie.“ Forum Qualitative Sozialforschung / Forum: Qualitative Social Research 10 (3): art. 25. Jenson, J., and S.D. Phillips. 1996. “Regime Shift: New Citizenship Practice in Canada.” International Journal of Canadian Studies 14 (Fall): 111–36. Joppke, C. 1998. A Challenge to the Nation-State. Immigration in Western Europe and the United States. Oxford: Oxford University Press. Kahn, Paul W. 1999. The Cultural Study of Law. Reconstructing Legal Scholarship. Chicago: Chicago University Press. – 2006. “Political Time: Sovereignty and the Transtemporal Community.” Cardozo Law Review 28 (1): 259–76. Keyman, E.F. 1997. Globalization, State, Identity/Difference – Toward a Critical Social Theory of International Relations. New Jersey: Humanities Press. Kornprobst, M. 2014. “From Political Judgments to Public Justifications (and Vice Versa): How Communities Generate Reasons Upon Which to Act.” European Journal of International Relations 20 (1): 192–216. Kratochwil, F. 2014. The Status of Law in World Society: Meditations on the Role and Rule of Law. Cambridge: Cambridge University Press. Lake, David A., Martin, Lisa L. and Thomas Risse 2021. “Challenges to the Liberal Order: Reflections on International Organization,” International Organization 75(2): 225–7 Linklater, A. 2007. Critical Theory and World Politics. Citizenship, Sovereignty and Humanity. London: Routledge. Marshall, T.H. 1950. Citizenship and Social Class. Cambridge: Cambridge University Press. Milliken, Jennifer. 1999. “The Study of Discourse in International Relations: A Critique of Research and Methods.” European Journal of International Relations 5 (2): 225–54. Onuf, N.G. 2013. Making Sense, Making Worlds. Constructivism in Social Theory and International Relations. New York: Routledge. Park, S., and A. Vetterlein. 2011. Owning Development: Creating Global Policy Norms in the imf and the World Bank. Cambridge: Cambridge University Press. Peters, A. 2009. “The Merits of Global Constitutionalism.” Indiana Journal of Global Legal Studies 16 (2): 397–411.

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Rawls, J. 2003. Politischer Liberalismus. Frankfurt a. M.: Suhrkamp Verlag. Risse, T., et al. 1999. The Power of Human Rights: International Norms and Domestic Change. Cambridge: Cambridge University Press. Rodriguez, Ralph E. 2000. “Chicana/o Fiction from Resistance to Contestation: The Role of Creation in Ana Castillo’s So Far from God.” melus 25 (2): 63–82. Solingen, E., and Tanja Börzel. 2014. “Introduction to Presidential Issue: The Politics of International Diffusion – A Symposium.” International Studies Review 16 (2): 173–87. Tully, J. 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. – 2002. “The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy.” Modern Law Review 65 (2): 204–28. – 2008a. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. – 2008b. Public Philosophy in a New Key. Volume II. Cambridge: Cambridge University Press. Walker, N. 2000. “Flexibility within a Metaconstitutional Frame: Reflections on the Future of Legal Authority in Europe.” In Constitutional Change in the eu : From Uniformity to Flexibility, edited by G. De Burca and J. Scott, 9–30. Oxford: Hart Publishing. – 2009. “Reframing eu Constitutionalism.” In Ruling the World? Constitutionalism, International Law, and Global Governance, edited by J.L. Dunoff and J.P. Trachtman, 149–77. Cambridge: Cambridge University Press. – 2010. “Beyond the Holistic Constitution?” In The Twilight of Constitutionalism?, edited by P. Dobner and M. Loughlin, 291–308. Oxford: Oxford University Press. Walker, N., and M. Loughlin. 2007. The Paradox of Constitutionalism. Oxford: Oxford University Press. Waltz, K.N. 1979. Theory of International Politics. New York: McGraw-Hill. Welsh, J. 2013. “Norm Contestation and the Responsibility to Protect.” Global Responsibility to Protect 5 (4): 365–96. Welsh, J., et al. 2013. Brazil’s “Responsibility While Protecting” Proposal: A Canadian Perspective. Toronto: Canadian Centre for the Responsibility to Protect. Wenger, E. 1999. Communities of Practice: Learning, Meaning, and Identity. Cambridge: Cambridge University Press.

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Wiener, A. 2004. “Contested Compliance: Interventions on the Normative Structure of World Politics.” European Journal of International Relations 10 (2): 189–234. – 2014. A Theory of Contestation. Berlin: Springer. 2018. Contestation and Constitution of Norms in Global International Relations. Cambridge: Cambridge University Press. Wiener, A., and A. Vetterlein. 2013. “Gemeinschaft Revisited: Die sozialen Grundlagen internationaler Ordnung.” Leviathan 41 (28): 78–103. Wilmer, F. 2002. The Social Construction of Man, the State, and War: Identity, Conflict and Violence in Former Yugoslavia. New York: Routledge.

8 Popular Sovereignty, Political Contention, and the Boundaries of Democracy Geneviève Nootens

Our era is marked by processes that challenge and impact deeply upon the principles and institutions that, in liberal democracies, embody a certain way of protecting a voice for “ordinary people”1 in public politics. Challenges to the voice of the people are not unique to our era; ordinary people always had to struggle to have their voices heard by rulers and their agents. But the challenges they face now also are, in a way, new and exceptional, because of the scope and depth of regimes of governance that impact upon their interests, well-being, and capacity to decide for themselves. Unfortunately (and maybe unsurprisingly), liberal democratic theory seems to have a hard time figuring out the actual nature and impact of such practices of government, as well as the significance and meaning of the popular struggles that seek to alter them. It seems unable at once 1) to understand these regimes as practices of government of a specific kind; 2) to figure out how they can be democratized in appropriate ways; 3) to really understand struggles for democracy by the people. This is largely due to the fact that most of liberal democratic theory 1) persistently thinks of democracy in the terms of representative government; and 2) at best takes for granted, at worst naturalizes, the institutional model of the modern state, by the same move often idealizing practices of solidarity and cooperation that have been taken as characteristic of the Western liberal democratic state of the second half of the twentieth century. This deprives liberal theory of any actual grip on processes pervaded by tyranny and arbitrariness, hence undermining its core normative commitment to individual dignity.2

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Part of the problem lies with the fact that many liberals seem to have forgotten how dependent on popular mobilization and contention the achievements of the late liberal democratic state were. They obfuscate the processes that drove the democratization of those states in the nineteenth and twentieth centuries – for example, struggles for the enlargement of franchise. Yet, a focus on such processes is key to developing a more accurate perspective on both the challenges to, and the hopes for, democracy or democratization in the current context.3 A significant contribution of James Tully’s work has been to define as civic activity struggles for recognition and distribution that pervade contemporary societies. Although such processes of mobilization and contention do not necessarily support democratization, the latter nonetheless depends upon them. It is through such processes that people force the redefinition of the governance relationships relating them to rulers and their agents. This chapter intends to contribute to a theoretical approach to the democratization of relationships of governance in the current context by focusing on how some of the current processes of contention and mobilization may actually constrain rulers and elites to make decision-making more responsive, more open, and more accountable to people who are subjected to it. It hence shares Tully’s commitment to civic activity struggles as the groundwork of democracy, contra a liberal mainstream tradition that has neglected the role of such struggles in the achievement of democratic polities, a neglect that impedes it to propose a proper analysis of the actual problems posed by power and arbitrariness in our world. After having briefly recalled a few important conclusions that can be drawn from an analysis of processes of democratization within Western states (section I), I will turn to the issue of the dispersion of practices of government in the context of globalization (section II). I am aware that a focus on the institutionalization of liberal democracy and the processes that drove it is only a part of the more general category of practices of civic freedom. However, I think it is still a useful starting point when one tries to understand the “real world of democracy” because it shows how people succeeded, at least partially, in getting a say and a hand on processes of decision-making, compelling rulers and their agents, as well as elites, to take into account people’s own views of what their interests were and what they wanted. In the third part of the paper, I will stress Tully’s fundamental contribution to our understanding

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of the diverse nature of practices of civic freedom, and raise a few questions pertaining to his conception of democracy and of people as its agents.

i Although the democratization of liberal states proceeded amongst other things by the development of representative government – which is considered by Tully as embodying democracy in a restrictive sense (Tully 2008b, chap. 2)4 – and although, as well, constitutional democracy is taken by Tully to play a significant role in Western imperialism (ibid., chap. 7), I propose that the processes by which such democratization occurred actually are ones in which struggles for democracy in the restrictive and the extensive senses met; for although the development of representative government (and the advent of the modern party system) was a way to channel the possibility for people to have a say and hand, the struggles that drove it were based on the people’s will to renegotiate the relations of power.5 In other words, these were “practices of civic freedom” in Tully’s sense, namely, repertoires of ways of citizens acting together on the field of governance relationships and against the oppressive and unjust dimensions in them.6 Let us think for example of the democratization and nationalization of Britain during the 1754–1834 period.7 During this period, the expansion and centralization of the British state raised new questions of consent, increased the significance of the capacity to influence the Parliament, and undercut the positions of old elite intermediaries (Tilly 1995, 195). New stakes were raised, and there were transformations in the means by which ordinary people made collective claims: repertoires of popular contention shifted decisively, particularly during the 1789–1815 period, because of transformations in the economy (which shaped the grievances on which ordinary people were prepared to act as well as their capacity to act collectively) and of wartime concentration of capital and state power (Tilly 1995, 204–5, 208). As these new repertoires (e.g., meetings, petition drives, electoral campaigns) consolidated, and as Parliament and national officials became more prominent objects of claim-making, people increasingly raised claims of popular sovereignty. Popular contention had a significant impact on national politics,8 although it contributed to a direct, genuine alteration in the national structure of power only in some rare cases (ibid., 23–4, 368).

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This too brief summary recalls how political contention causes alterations in public politics that in turn causes shifts in citizen-agent relations; reveals how the identification of salient loci of decisionmaking (in nineteenth-century Britain’s case, the increased importance of Parliament) contributes to changes in repertoires of contention and the objects of claims; and highlights the agonistic relationship of people and powerholders.9 Although such conclusions are drawn from a case of democratization of a Western liberal state, and surely do not exhaust cases of democratization and practices of civic freedom, I hypothesize that they are to apply generally to any transformation in governance relationships. For example, in order to defend their interests (and ideals) people are going to try to have a say and hand in and on loci of decision-making, directly or indirectly.10

ii As Tully has argued, most of the dispersed practices of government characteristic of our era are bureaucratic, authoritarian, or systemic, rather than democratic (Tully 2008b, 50). The global public domain is a multisited structure of governance characterized by the growth of private forms of authority, the coexistence of differentiated regimes of rights, and the marketizing of public functions (see e.g., Sassen 2006). Important governmental functions are displaced unto supra- or quasi-governmental institutions; at the same time, some types of interests that used to be considered as purely private ones are increasingly taken as being public. These processes sustain new geographies of power (Sassen 2006, 186–203).11 These systems of rule deeply impact upon people’s access to resources and wealth, hence upon their well-being and life perspectives. Yet, people are most of the time denied interest in, and participation to, decision-making in such regimes. The relationships of states to these loci of power – to which they are part – are transformed both by destatization and by the privatization of norm-making. All these changes tend to conceal the fact that “the politics of designing, building and overturning institutions of governance at all levels is really about policy choices” (Kahler and Lake 2003, 20). Moreover, the fragmentation of the global public spheres into multilayered networks and regimes makes it more difficult for people to assess to whom they should address their claims; it fosters a feeling of impotence and powerlessness. Actually, the notion of “fragmented tyranny” seems

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to me to describe accurately the practices of government characteristic of our globalized era.12 Yet, it is precisely at this point that we meet significant practices of freedom by which people challenge nondemocratic practices of government, hence pointing to new forms of popular sovereignty. Some citizens, social movements, and non-governmental organizations (ngo s) are engaged in contentious politics opposing them to states and global regimes of governance. Let us think of the international campaign for the banning of land mines, of the huge mobilization against global or regional summits, of organizations defending human rights, women rights, indigenous rights, or of the Icelandic people opposing its government repayment plan to pay off Britain and the Netherlands for debts spawned by the financial crisis. How are we to account for these phenomena, in political theory? For liberals such as Kymlicka (1999) and Miller (1999), for example, transnational activism cannot meet the stringent requirements of democratic citizenship. Others are much more enthusiastic, and already see the rise of a global civil society – which may be premature, but, anyway is a nonsense for many people, according to whom there cannot be a global civil society since there is no global state (a point of view that, according to me, merely is another ideological consequence of the naturalization of the modern state). However, important works in the field of political sociology stress how social movements react to shifts of power (in their organizational structures, collective action frames and identities, and repertoires), and have begun to tackle the issues raised by supranationalization and globalization. Donatella della Porta and Sidney Tarrow, for example, have emphasized that social movements transnationalize not only through processes of diffusion, domestication, and externalization, but also by actual transnational collective action, that is, “coordinated international campaigns on the part of network activists against international actors, other states, or international institutions” (della Porta and Tarrow 2005, 2–3). According to them, social movements “have retained their national character, remaining tied to the types of political opportunities present in individual states; but they have also increasingly interacted transnationally” (ibid., 10).13 Supranational institutions surely have become a significant target of contention, although one may suspect that, as in the case of the eu, most “responses” are cases of domestication, namely, cases in which claims are addressed to national agents (see e.g., Imig and Tarrow 2001).

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Yet, transnational contention actually has developed, as “a network of relations in which rooted cosmopolitans link the domestic and the international in loosely coupled campaigns of collective action” (Tarrow 2012, 212). The struggle for a more humane and equal world, Tarrow says, “is taking new forms, engaging new actors, and traversing borders in ways that could not have been imagined, even in the recent past” (ibid., 213). New processes have emerged, though they are still “at the gates” of institutional politics.

ii i So Tully makes a basic, highly significant point by emphasizing that democracy cannot be restricted to the institutionalized practices of representative government. This is particularly the case since rulers, elites, and agents of government tend to delegitimize forms of democratic activity that extend beyond the scope of the institutional framework of the liberal democratic state. As della Porta and Piazza have stressed in a thorough analysis of two protest campaigns against large-scale public works,14 in such events the very conception of democracy is placed under scrutiny: those who oppose these large infrastructure projects define the law-and-order frame as instrumental to discrediting their peaceful opposition (della Porta and Piazza 2008, 74). There is a shift from a specific decision to the issue of how decisions should be made; protesters claim (and represent themselves as embodying) a more participatory form of democracy, and they defend protest as a legitimate form of participation. They claim a right to protest, which democratic meaning or function, or both, is denied by authorities (ibid., 71). Popular sovereignty takes shape through such processes of contention and mobilization, that contribute to reconstruct “social reality” (amongst other things by a symbolic construction of what is at stake), and to modify the identities of protesters and citizens, as well as the (social and symbolic) boundaries of the polity.15 This is the basic reason why a never-ending dialogue must go on between political theory and the civic freedom of citizens as political practice. It is in the daily ordinary – and sometimes extraordinary – action of free citizens and in their interaction with those who rule that the polity(ies) are at once transformed and kept alive. The significance of Tully’s contribution in grasping the lively, agonistic, freedom-focused nature of democracy is indisputable. There

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are however a few issues that from my point of view require some nuances and precisions. They mostly concern Tully’s conception of the relationship between democracy and constitutional forms. But let me first briefly recall a few significant elements of Tully’s approach to democracy. Democracy, Tully writes, is “any activity in which people assemble and negotiate the way and by whom power is exercised over them” (Tully 2008a, 157). The strategic freedom with which participants act within any practice of government is democracy in the extensive sense, namely, the abilities of the governed to negotiate the way their conduct is guided (Tully 2008b, 57). Freedom, in turn, is the range of possible actions available to those over whom power is exercised (Tully 2008a, 124). Practices of freedom and their institutions of negotiation and reform hence constitute the democratic side of practices of government.16 They are the repertoires of ways of citizens acting together on the field of governance relationships and against the oppressive and unjust dimensions of them (Tully 2008a, 4).17 Practices of government are “the forms of reason and organization through which individuals and groups coordinate their various activities and the practices of freedom by which they act within these systems, either following the rules of the game or trying to modify them” (Tully 2008a, 21; see also Tully 2008b, 64). They belong to a wide spectrum of action and subjectification, bounded by domination at one end and revolt at the other. Restrictive practices of government and democracy have come to maturity and predominance through the historical process of progressive governmentalization (Tully 2008b, 48–9), a process that includes a juridification of the subject that is core to the paradigm of sovereignty. They are typical of “representative nation-states, their institutions and the traditions of understanding in which they are described, operated and evaluated” (ibid., 47). Extensive practices of government and democracy do not conform to the typical practices of representative government. They rather are “the exercise of the abilities of the governed to negotiate the way their conduct is guided” (ibid., 57; see also 51). Yet, the two types often occur in the same nexus of dispersed practices of government, and they cannot be understood “without taking into account the agonism between the attempts to govern the participants in a specific way and the responses to that mode of governance” (ibid., 52). From this point of view, the constitution (the rule of law) and the democratic negotiation of it (popular sovereignty) are equally basic.

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Hence, the project of democratic constitutionalism (as opposed to constitutional democracy) is “to exploit and expand the existing yet severely limited field of possibilities of direct participatory freedom (the exercise of constituent powers) within and against the constitutional forms to which the governed are now subject, directly and indirectly, at the very sites where these unjustly constraint their ability to exercise shared authority over the conditions of their activities” (ibid., 217–8).18 Although restrictive and extensive practices of government and freedom all are modifications of early-modern and modern forms of struggles, “the participatory and reflexive freedom of negotiating the norms to which we are subject as we go is at the heart of non-modern, customary constitutional forms and immanent constituent powers. The formalization and disembedding of modern constitutionalism and constituent powers displaced this freedom to representative institutions” (ibid., 217), in which the idea of one people, in line with the juridification of the subject, acts as a symbolic pole of sovereignty stressing unity at the expense of diversity. So struggles to bring institutions and regimes under the participants’ shared authority are meant to put an end to the imperialism of modern constitutionalism and its correlates, and to express the equally basic status of the rule of law and popular sovereignty. This critique of the hegemony of a liberal form of democracy is not only an advocacy of democracy as public reasoning and government by discussion but also of democracy as nonviolent cooperative self-government, namely, “the people exercising the capabilities of self-government together in their social and economic activities on the commons” (Tully 2013, 223)19 (cooperative democracy). This argument about democratic constitutionalism builds on a strong contradistinction opposing nonmodern to modern constitutional forms. The most significant points of this distinction, for the purposes of this paper, are the following (Tully 2007): · nonmodern constitutional forms are customary, whereas modern ones are formal. In the former cases, laws are immanent norms within the activities they regulate (law is embedded); in the latter, they are external to them (law is disembedded), and constitute the field of recognition and interaction of the people subject to it. Tully takes the former type of constitutional form to embody the basic idea of democratic freedom and democratic constitutionalism;20

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· nonmodern constitutional forms are the exercise of direct participatory freedom, whereas modern ones have attenuated participatory freedom through representation and imperialism. The latter are internally related to the state constitutional form, and their expansion requires that constitutionalism precedes democracy; · in nonmodern constitutional forms, constituent powers are always already immanent, so there is no paradoxical relation between constituted and constituent power such as the one that pervades modern constitutionalism. The latter builds on the concept of a constituent power that exists prior to its actual form; · finally, modern constitutional forms are the product of sovereignty in the sense of a ruler that stands in an agonistic relationship with the people. These contradistinctions, and the conception of democracy they ground, are meant to stress the contingency of modern constitutional forms, but they are also framed in a way that makes nonmodern forms of constitutionalism more in line with what democratic freedom really is. If we are to get a full picture of what it means, though, I think some further details are required as to the following points: the relationships between struggles for civic freedom (that I understand as processes) and the provisional embodiment of temporary agreements in some institutions embodying the freedom achieved; the idea of constituent power; and the status of the rule of law. 1

In Tully’s approach, the activity of citizens struggling against what they consider to be unjust and oppressive practices is core to democracy. He is interested in practices that may minimize domination and unjust practices of government. I wonder, though, whether it really is sufficient for a democratic society to be legitimate that its citizens be always free to enter into processes of contestation and negotiation over the rules of recognition or dispersed practices of government, or both (see e.g., Tully 2000, 477). Entering into processes of contestation and negotiation, although a significant part of democratic activity, says nothing about the result of such processes. Democratization actually builds upon popular contention, but unfortunately, the latter is not always conducive to

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democratization. Democracy – as a regime that must in some way embody the equal, reciprocal, and basic civic freedom of participants – actually is a rare result of contentious politics,21 and one that requires significant alterations of the field of public politics in order to ensure a protected voice for ordinary people (see e.g., McAdam et al. 2001, 268–9). Participants may address what they see as unjust and oppressive practices, yet make claims that would infringe upon the basic civic freedom of other citizens. I am not saying of course that Tully would be defending majoritarianism. This clearly is contrary to the very spirit of his whole work. And he actually lists normative requirements framing struggles for and of democracy. For example, in his famous paper on struggles for recognition and redistribution, he makes it clear that when exchanging public reasons, participants appeal to the principles, values, and goods already included in a constitution, and that these normative warrants include freedom and equality as well as their diverse traditions of interpretation. He also argues that when a claim to recognition is discussed, it “must be made good to other in terms of the principles, values, and goods that they all share to some degree” (Tully 2000, 475). Reciprocity also is a basic, sine qua non condition of multilogue. Yet, and although negotiating the rules as we go and understanding laws as being immanent norms is very much at the heart of civic freedom, a focus on processes does not explain how the equal dignity requirement – that is basic if every participant is to be recognized a voice – is to be embodied. For democracy also is a regime, namely, a way of framing relations between governments and the populations falling under their claimed jurisdictions (McAdam et al. 2001, 146).22 Tully is quite clear about the fact that political power is not superseded by dia- or multilogue. In the paper on recognition and redistribution, for example, he stresses that the fundamentals of democratic struggles (reciprocity, reaching agreement, audi alteram partem, stability by means of broader support) never are achieved: there always are asymmetries of power; the proposed rule can only be a compromise; at some point a decision must be taken; reasonable disagreement may break out over implementation; and identities change in unpredictable ways (Tully 2000, 475–7). The point is that

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at any moment, people are already constituted as political subjects by their embeddedness in relations of power and governance, so that the conditions of alterity actually are always already there, embodied in the very practices of government and civic freedom.23 If I understand Tully correctly, this is what bounds constituent powers. However, he makes a distinction that may be interpreted as a normative one between modern and nonmodern ideas of constituent powers. The problem with the former is the assumption that constituent power exists prior to its actual forms, that the people “could stand back from any constitutional form of organization of themselves as a specific people and bring their form of constitutional organization into being in some founding moment or process of deliberation” (Tully 2007, 320). In other words, it is seen as a capacity or potentiality prior to taking on a concrete form.24 Indigenous peoples, by contradistinction, have an idea of constituent powers as “always already immanent in the specific forms of transposable habitus they take in the countless normative relationships of interaction (nonformal customary laws) humans and nonhumans both bear and transform en passant” (ibid.).25 The question is: why is nonmodern constitutionalism the standard by which to assess the inadequacies of modern constitutionalism? (The issue here is certainly not only to be able to think differently, for there is a normative evaluation as to the way freedom is realized in both types of constitutionalism, with the assumption that modern constitutionalism conveys an attenuated form of freedom). The answer, I think, is that Tully understands modern constitutionalism as internally related to two undesirable phenomena: imperialism and the suppression of diversity (it is inimical to pluralism and difference). For example, recall that he argues that “European constitutional states … developed within global systems of imperial and colonial law from the beginning” (Tully 2007, 319), and that it is “impossible to understand the relationship between modern constitutional forms and constituent powers unless the imperial and postimperial supra-state constitutional forms are seen as internally related to the state constitutional form” (ibid., 319–20). So it is not merely the capacity to stand back from actual forms that is at stake; for if it were the case, then I am not sure how this can supports unequivocally

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the assumption that nonmodern forms embody a nonattenuated civic freedom whereas modern forms do embody an attenuated form of civic freedom. If what is at stake is the internal relationship between imperialism and the capacity to stand back from actual forms, I am not sure how such an internal relationship can be unequivocally demonstrated.26 Is the capacity to stand back, when interpreted as a transcendental limit, intrinsically imperialistic, or has imperialism disguised itself as universalism? Is it because the language definitive of the decentred worldview tends to misrepresent other, nonjuristic forms of knowledge, power, and ethics in which we are constituted and governed as subject? (see e.g., Tully 2008a, 104) And what, then, would we do of processes of democratization within Western states? Are they also pervaded by the imperialism of modern constitutionalism so that the results of popular contention would have been somehow predetermined by the famous triumvirate of constitutive, constituent, and constituted power? That does not seem to me to be coherent with a sociological analysis of processes of democratization. Another interpretation is possible, though, that is much more plausible: that ordinary people in Western states have been treated as being as uncivil and untrustworthy as other people of the Global South, by their own elites and rulers, so that they had been requested to subject themselves to a structure of civil law before being granted a voice in liberal institutions of decision-making. The claim related to the suppression of pluralism seems to me to be on more solid grounds. Here Tully’s critique meets up with a whole trend focused on a systematic critique of the monism conveyed by modern Western political forms. The focus on pluralism is not driven by a simplistic opposition between unity and plurality; nor does Tully assume (versus e.g., Mouffe 1992) that democracy builds upon a logic of identity.27 I do not think, either, that Lindahl is right to argue that Tully’s move amounts to a monistic defence of legal pluralism because of its focus on inclusiveness; as I said, Tully makes it clear that political power is not superseded by dialogue. For Tully, pluralism is the very condition of democracy.28 It is a way of acting, thinking, and being, for it is part of the critical attitude required to disclose practices of civic freedom: the critical attitude requires surveying critically languages and practices in term of a relation of difference which discloses “anomalous”

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activities, and unveils the old forms as partial limits that may be modified (Tully 2008a, 33; Tully 2008b, 43).29 The modern and nonmodern ideas of constituent powers ground different notions of popular sovereignty. The modern one is dependent upon the modern concept of unformed constituent power (Tully 2007, 320). It builds on the juridification of the subject that, in the form of popular sovereignty, served “to justify resistance to administrative monarchies in the eighteenth century, the constitutional revolutions of the nineteenth century and the construction and operation of parliamentary democracies and constitutional republics” (Tully 2008a, 114). It embodies the idea that the people are “free of power” “in the procedures that give rise to, and legitimate, the juridical system, and are protected in their individual or collective sovereignty by the rights … they acquire by subjection” (ibid., 115).30 The problem with the juridical subject is that the forms of knowledge representative of it are a limited form of subjectivity, and should not be taken “as a normative representation of moral and political practices in general” (ibid., 112). But there is a more general idea of popular sovereignty, one that is unaffected by such a juridification and does not have a procedural content. It is embodied by the condition of consent, that “was always present in the form of the Roman legal maxim that ‘what touches all must be approved by all’” (ibid., 114). Hence the sharp contradistinction between popular sovereignty as self-rule in accord with one’s customs and ways (see e.g., Tully 1995, 6), on the one hand, and popular sovereignty as the idea that law is legitimate insofar as it is the product of the people’s decision-making, on the other one. Founding the constitutional association in the sovereignty of the people requires embodying the former condition; it is an enterprise going on along the way, with people always willing “to listen to the voices of doubt and dissent within and reconsider their present arrangement” (ibid., 27). The people are sovereign when they “exercise their powers of self-rule in culturally appropriate ways” and are free “to amend or overthrown the government if it thwarts their powers” (ibid., 192). This raises two significant questions: does democracy amount to consent? And what then is the status of the rule

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of law? As to the former, I think I have provided in preceding sections arguments that run contrary to such an interpretation. As to the latter, Tully argues that the project of democratic constitutionalism puts popular sovereignty and the rule of law on equal footing, contrary to what constitutional democracy does – the latter gives priority to the rule of law. However, how can the rule of law be rescued from the critique of the juridification of the subject without being not only put in perspective, but also rearticulated? At first sight, it may be read as an invitation for modern constitutionalism and its related assumptions to modesty. But since thinking and acting differently are closely related, and since both are practical ideals, I suspect the conclusions to be drawn from the argument are much more stringent. This, I think, is a part of Tully’s rich, thorough, and insightful analysis of modern polities that requires clarification.31

co nc lu si on As I said, the issues raised in the last section seem to me to require clarification, for they point to the nature of the participation of ordinary people to politics and the conditions of democratic regimes, the status of the modern emphasis on the capacity to stand back, and the significance and role of the rule of law. The emphasis on nonmodern constitutionalism may be useful to understand the limits of modern constitutionalism; yet, when we try to specify the conditions of democratic constitutionalism in the current context, we probably need to provide a positive articulation of a type of constitutionalism that would be different from both ancient and modern constitutionalism. This democratic constitutionalism would be one that needs to build, amongst other things, on the fluctuating boundaries relating civic and civil practices of freedom, at the gates of institutional politics. But these remarks are a few minor comments on a tremendous contribution to our capacity to grasp and embody civic freedom and democracy, a contribution that stresses that in any structure of governance, practices of civic freedom do go on. The role of the philosopher then consists, among other things, in instilling such struggles with what makes freedom civic so that our way together bears witness to the very ends we seek to achieve. And to this, there cannot be a best exemplar than James Tully.

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no t e s 1 This is N. Bermeo’s expression for what some calls “the masses” or “the public.” She prefers “ordinary people” because “[t]he term ‘people’ draws our attention to the individuality of the group’s membership and the adjective ‘ordinary’ underscores the fact that they have no extraordinary powers vis-à-vis the states in which they live. They are neither politicians nor military officers. They spend most of their lives in personal endeavours – earning money, supporting families, and pursuing whatever leisure activities their social status allows. They are the people who compose the vast majority of the citizenry in virtually every country of the world” (Bermeo 2003, 3). 2 Liberal democracy of course has a specific conception of individual dignity (one focusing on the protection of a private sphere which neither the state nor co-citizens can breach, except in specific cases such as minor children), and I don’t want to mean that it is the only tradition engaged toward such an ideal, nor that its way of specifying the ideal is the only possible way. 3 Hobson (2009) has stressed the naturalization of a whiggish narrative that pervades liberal democratic thought, as well as its consequences. 4 Della Porta stresses that there also has been a research focus on representative institutions that “has produced a partial vision of the real functioning of existing democracies” (della Porta 2013, 3). 5 Yet, I am particularly interested in how the construction of the exercise of democratic freedom in the categories of representative democracy limits possibilities for “thinking differently.” Hence, for example, many liberals are skeptic as to the democratization of international institutions because none of the political institutions deemed necessary to democracy as representative government exists at the global level (see e.g., Dahl 1999). 6 Such a repertoire ranges “from ways of ‘acting otherwise’ within the space of governance relationships to contesting, negotiating, confronting and seeking to transform them. The general aim of these civic activities is to bring oppressive and unjust governance relationships under the ongoing shared authority of the citizenry subject to them; namely, to civicize and democratize them from below” (Tully 2008a, 4). 7 This is not meant to imply that democratization proceeded through similar paths throughout the West, nor that there are no other ways for democratization outside the Western tradition. It is meant as one example of how it may proceed in a particular, specific case. It is helpful to work with such examples in order to assess what are the similarities and differences with the current context of globalization. As I said, I hold these

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struggles to be ones in which struggles for democracy in the restrictive sense and struggles for democracy in the extensive sense meet. For example, rulers were forced to bargain over issues such as the political rights of religious minorities and treatment of the poors. It also sheds light on the interaction between contentious politics and discourses or representations, or both (in this case, between nationalization and democratization on the one hand, and claims to popular sovereignty on the other). For example, in nineteenth-century Britain, the perceived increased saliency of Parliament led to a decrease in the role of traditional intermediaries, and a rise in the importance of having a say on the choice of representatives in Parliament. Shifts in the locus of political power (from parliaments to the executive and within the executive to the bureaucracy and quasi-independent agencies; from the national to both the supranational and regional levels) have been designated by della Porta and Tarrow as “complex internationalism” (della Porta and Tarrow 2005, 2). “Fragmented tyranny” is a kind of regime characterized by low governmental capacity and fragmentation. It is a regime in which governmental capacity cannot enforce the enlargement of protected consultation – a defining characteristic of democracy – hence allowing for multiple coercive forces, small-scale despots, and competitors for large-scale power (McAdam et al. 2001, 266). Democracy rather builds upon high levels of protected consultation, which combines breadth, equality, consultation, and protection, as well as on governmental capacity, and requires the institution of citizenship. Forms of transnational contention are rooted at the local and national level, and turn simultaneously to various governmental levels. There have been innovations in repertoires because of new targets, new frames, and new combinations of constituencies (della Porta and Tarrow 2005, 11–12). One against the decision to build a high-speed rail network between Turin and Lyon, and one against the construction of a bridge on the Strait of Messina. Symbolic boundaries are “conceptual distinctions made by social actors to categorize objects, people, practices, and even time and space. They are tools by which individuals and groups struggle over and come to agree upon definitions of reality” (Lamont and Molnar 2002, 168). Social boundaries “are objectified forms of social differences manifested in unequal access to and unequal distribution of resources (material and

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nonmaterial) and social opportunities” (ibid.). Symbolic boundaries translate into identifiable patterns of social exclusion or segregation when they are widely agreed upon, hence patterning social interaction in important ways: “Only when symbolic boundaries are widely agreed upon can they take on a constraining character and pattern social interaction in important ways” (ibid., 168–9). Let us recall that Tully does not mean to say that people are to free themselves from any power relationship, since he agrees with Foucault that we can be “free and rational within the relations of power that constitute us,” provided we discover what is arbitrary and useless in these relations (Tully 2008a, 122). Relations of power are relations of governance that act on free agents, opening up a field of possible ways of thinking and acting in response (see e.g., Tully 2008a, 23, 123–5; Tully 2008b, 56–7). There are three such general types of practices of freedom: individuals or groups, or both, act in accord with the rule in which they cooperate (“going as usual,” though in a wide variety of ways); they raise a problem about a rule, or challenge a relation of governance on the ground, and enter into available procedures of negotiation, deliberation, and so on; they refuse to be governed by a specific form of government and resist, either by escape or by confrontation (Tully 2008a, 23–4). A democratic government is one that “involves a ‘dialogue’ between those who exercise power and those over whom it is exercised, as opposed to non-democratic forms of governance that coordinate human action without the say of those affected, ‘behind their backs,’ as in market and bureaucratic organization” (Tully 2008a, 145). A dialogue is “any form of reciprocal to-and-fro encounter in webs of relationships with other whose perspectives, from their specific positions on the issue at hand to their most general background understandings, are not completely reducible to one’s own. Their opinions, judgments, reasons, or understandings evidence some contentious elements of otherness, and so of resistance. In virtue of this feature, political dialogues are agonistic in the broad sense employed by Foucault” (Tully 2008a, 145–6), i.e., “[a]ny practice of governance will be ‘democratic’ and involve freedom on our definition just in so far as the members of the organisation have some say and have the opportunity to negotiate the way and by whom the power to govern their conduct is exercised in the organisation” (Tully 2008a, 155). The targets are nondemocratic forms of subjection. He argues that this is the classical meaning of democracy, “of the demos exercising kratos (political capacities) in public reasoning and acting together for the sake of public goods” (Tully 2013, 223).

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20 “[T]he laws must always be open to the criticism, negotiation, and modification of those who are the subjects of them as they follow them” (Tully 2007, 334). 21 Contentious politics is “episodic, public, collective interaction among makers of claims and their objects when (a) at least one government is a claimant, an object of claims, or a party to the claims and (b) the claims would, if realized, affect the interests of at least one of the claimants” (McAdam et al. 2001, 5). In the case of eighteenth- and nineteenth-century Britain, for example, people’s struggles to have a protected voice (e.g., claims for the enlargement of franchise) built upon their will to resist oppression from various powerholders, to improve their life perspectives, and to mitigate the impact of categorical inequalities upon decisionmaking. They did so against a background of capital concentration and accumulation, industrialization, proletarianization, and unprecedented growth of state power. 22 See for example C. Tilly’s definition of democracy: it is a type of regime in which “political relations between the state and its citizens feature broad, equal, protected, and mutually binding consultation. Democratization means net movement toward broader, more equal, more protected, and more binding consultation” (2007, 14; see also McAdam et al. 2001, 265). It requires that a state’s (or, actually, any system of formal institutionalized power) behaviour conforms with its citizens’ expressed demands, as long as they respect minorities’ rights. In other words, democracy builds upon high levels of protected consultation as well as governmental capacity. Such a conception of democracy is focused on relational processes rather than on laws enacted or procedures. 23 Hence, I think that from a Tullyan perspective, the reflective equilibrium described by Rawlsians and the kind of non-ideal theory described by Maclure and Weinstock in their chapter in this volume are not non-ideal enough. 24 I am not sure, though, he understands constituent power as immediate, unrepresented political action by a multitude. The very idea of practices and forms of subjectification runs counter to such a simplistic interpretation of his thought. 25 He also seems to assume that in nonmodern constitutionalism, constituent powers would not arise in opposition to a ruler that stands in an agonistic relationship with a people. See, for instance, Tully (2007, 321–2). 26 There may be another, more specific answer, though, to be found in the contradistinction between Foucault’s and Habermas’s conceptions of “limits” as forms of the subject: assuming that a form of subjectivity

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cannot be otherwise because it is universal, necessary, or obligatory has been the standard form of legitimation since the Enlightenment (Tully 2008a, 75). Yet a critical attitude requires unveiling the implicit background of such representations and showing how it could be otherwise. So specific ways of being in the world are practical limits against which subjects analyze themselves. This is why Foucault’s approach is context transgressing without being context transcending. Such a move actually amounts to remove the representation of the political subject from power relationships. In the sense both of circumstances and of conditions required for qualifying processes as being democratic. Hence the affirmation that identity always is different from itself. Following Foucault, he argues that there is a juridical ensemble of discursive and nondiscursive elements that began to be pieced together in twelfth-century Europe and that came to define a major form of the subject, the juridical one. In this system, there is a problematization of the mode of subjection in which two conditions are required if the laws are to be legitimate: they must be universal and impartial, and they must be based on the agreement of the people. The latter came to be conceived as a form of procedure, “when the locus of sovereignty shifted from the monarch to the people and confessional pluralism was resolved by granting the right priority over the good” (Tully 2008a, 115). He alludes to nonimperial aspects of Western constitutionalism, but it is not clear what these actually are. And he makes reasonableness (in the sense of making a claim good to citizens generally through the exchange of public reasons among free and equal citizens) a condition of recognition (Tully 2008b, 41), but it is not clear how such a condition is to be framed.

r e f e re n ce s Bermeo, N. 2003. Ordinary People in Extraordinary Times. Princeton: Princeton University Press. Dahl, R. 1999. “Can International Organizations Be Democratic?” In Democracy’s Edges, edited by I. Shapiro and C. Hacker-Cordón, 19–36. Cambridge: Cambridge University Press. della Porta, D. 2013. Can Democracy Be Saved? Participation, Deliberation and Social Movements. Oxford: Polity Press. della Porta, D., and G. Piazza. 2008. Voices of the Valley, Voices of the Straits. How Protest Creates Communities. New York: Berghahn Books. della Porta, D., and S. Tarrow. 2005. “Transnational Protest and Global

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Activism: An Introduction.” In Transnational Protest and Global Activism, edited by D. della Porta and S. Tarrow, 1–17. Lanham: Rowman and Littlefield. Hobson, C. 2009. “Beyond the End of History: The Need for a ‘Radical Historicisation’ of Democracy in International Relations.” Millennium 37 (3): 631–57. Imig, D., and S. Tarrow. 2001. “Studying Contention in an Emerging Polity.” In Contentious Europeans. Protest and Politics in an Emerging Polity, edited by D. Imig and S. Tarrow, 3–26. Lanham: Rowman and Littlefield. Kahler, M., and D.A. Lake. 2003. “Globalization and Governance.” In Governance in a Global Economy. Political Authority in Transition, edited by M. Kahler and D.A. Lake, 1–30. Princeton: Princeton University Press. Kymlicka, W. 1999. “Citizenship in an Era of Globalization: Commentary on Held.” In Democracy’s Edges, edited by I. Shapiro and C. Hacker-Cordon, 112–26. Cambridge: Cambridge University Press. Lamont, M., and V. Molnár. 2002. “The Study of Boundaries in the Social Sciences.” Annual Review of Sociology 28: 167–95. McAdam, D., S. Tarrow, and C. Tilly. 2001. Dynamics of Contention. Cambridge: Cambridge University Press. Miller, D. 1999. “Bounded Citizenship.” In Cosmopolitan Citizenship, edited by K. Hutchings and R. Dannreuther, 60–80. New York: St. Martin’s Press. Mouffe, C. 1992. “Penser la démocratie moderne, avec et contre, C. Schmitt.” Revue française de science politique 42 (1): 83–96. Sassen, S. 2006. Territory, Authority, Rights. From Medieval to Global Assemblages. Princeton: Princeton University Press. Tarrow, S. 2012. Strangers at the Gates. Movements and States in Contentious Politics. Cambridge: Cambridge University Press. Tilly, C. 1995. Popular Contention in Great Britain 1758–1834. Cambridge, Mass.: Harvard University Press. – 2007. Democracy. Cambridge: Cambridge University Press. Tully, J. 1995. Strange Multiplicity. Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. – 2000. “Struggles over Recognition and Distribution.” Constellations 7 (4): 469–82. – 2007. “The Imperialism of Modern Constitutional Democracy.” In The Paradox of Constitutionalism. Constitutional Power and Constitutional

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Form, edited by M. Loughlin and N. Walker, 315–38. Oxford: Oxford University Press. – 2008a. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. – 2008b. Public Philosophy in a New Key. Volume II. Cambridge: Cambridge University Press. – 2013. “Two Ways of Realizing Justice and Democracy: Linking Amartya Sen and Elinor Ostrom.” Critical Review of International Social and Political Philosophy 16 (2): 220–32.

9 Putting Reasons Back into Reasonable Simone Chambers

i nt ro du ct i on Jim Tully was my first political theory professor. I might have been one of his first students. We both started McGill at pretty much the same time, me as an undergraduate and Jim as an assistant professor with a newly minted Cambridge PhD. By some horrible mistake I had signed up to be a psychology major having no real idea what that meant. I was shocked and horrified when introduced to my lab rat on the first day and was very close to dropping the whole idea of higher education. But luckily I had also signed up for a political theory course with Jim and I quickly became a front row commando totally hooked on political theory and passionately defending the Cambridge school as if my life depended on it. It was a wonderful time to be a political theorist at McGill and I want to thank Jim for instilling in me a love of texts, puzzles, and history but even more importantly a view of why these things matter. This chapter investigates what it means to be reasonable. We use the term reasonable in many contexts and situations. We talk about reasonable persons, reasonable doubt, reasonable accommodation, reasonable force, reasonable faith, and reasonable disagreement. We use it a lot both in scholarly writing and in everyday communication. Tully uses the term in his writing and he himself has been described as reasonable. The frequency with which we use the term in ordinary language without misunderstanding (unlike lustration for example) indicates that we know how to use it and that it is often helpful in getting our meaning across. When someone says Jim Tully’s argument is reasonable we know what that means and we

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know that in most cases it is meant as praise. Being reasonable is a good thing. It is however a hard word to define precisely but luckily (as Wittgenstein so famously taught us) we do not need precise definitions to know how to use it in a helpful and meaningful way. Sometimes, however, we do need to try to pin it down. When we use reasonable in political philosophy we will be called to account for its meaning. This calling to account is particularly appropriate when we use reasonable to describe our ideals and expectations for democratic citizenship. I want to think about reasonableness as a limit or expectation we place on citizens and the sorts of things that we can reasonably demand of each other and the state and the sorts of things that we can reasonably do, to put forward and defend those claims. In particular I want to ask what is excluded as unreasonable by this standard. If it is a standard that we hope or expect citizens to live up to, then we need to be able to identify when they have failed to live up to this standard. Even more particularly I will compare Jürgen Habermas and Jim Tully on reasonable limits on citizenship. I argue that despite some significant and important differences between Habermas and Tully, they share a fundamental procedural view of reasonable that sees both civil and civic citizens as limited by an essential accountability to fellow citizens.

r e as on ab le as a s ubs tanti ve a n d proc edur al li mi t Let me begin with some very generic features of reasonable. These features seem to be common to the way reasonable is generally used within political theory. Reasonable is not the same as rational. If we think of rational as a narrower term that suggests instrumental consistency, logical rigour, or transparent inferential reasoning, or both, then it seems plausible to think that citizens can make reasonable demands on each other or act in reasonable ways without necessarily meeting these standards. Full-on irrationality is not compatible with being reasonable, but struggling to articulate an ineffable feeling of despair at the sight of deep injustice, for example, is not an unreasonable response to harrowing events (for example Ferguson or Charlie Hebdo, or even the persistence of crushing poverty even in affluent societies). Conversely it is possible to think of unreasonable claims or actions that are pursued in a rationally rigorous way.

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Arguing that all taxation is illegitimate and should be terminated immediately might be presented with impeccable logic and perfect syllogisms but it is still an unreasonable demand to make within our political context. This last example points to a second feature of reasonable and the way we use it. It often appears tied to context, circumstance, or situation in a way that rational is not. Reasonable force for example usually means something like “as much as is appropriate.” Sensible, fair-minded, and proportional are closer to the meaning of reasonable than logical, rigorous, or consistent. Thus a reasonable demand or a reasonable claim will depend on the context or activity within which the claim or demand is made. Thus we do not assess claims in the abstract but only relative to the activity. Finally reasonable can be seen from two perspectives. Let’s call them procedural and substantive; we might also want to call them reasonable as attached to persons versus reasonable as attached to claims. The procedural perspective focuses on the way citizens present claims rather than the claims themselves. Generally speaking the reasonable actor within a democratic public sphere is willing to offer reasons and justifications for their claims and actions. The unreasonable citizen refuses to explain or justify the claims she makes on other citizens. This is not a hard and fast criterion because there might be special circumstances where it is reasonable to refuse to give reasons, for example, if the demand for justification is intrusive or in some way unfair. Demanding that gays justify their sexual identity when heterosexuals are not required to do the same might be a case in point. But generally when citizens make claims on the state or defend a public policy we think that it is only reasonable that they offer justifications for these actions. This then is a procedural idea of reasonable because it does not specify whether the justification itself is reasonable only that it is reasonable to produce such a justification. The more substantive dimension of reasonable tries to find a way to identify reasons, claims, or policy preferences as unreasonable. The examples that are often used here are distributive. It is unreasonable for me to demand all the pizza pie slices when we are all equally hungry, or when we all chipped in to pay for it. There is nothing unreasonable about wanting to eat a whole pizza or in fact eating a whole pizza. Unreasonableness enters when we see the demand for the whole pie in the particular distributive

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context. If I had not eaten in three days and you were all well fed then it might indeed be reasonable for me to demand all or most of the pie. Context is everything. There is nothing unreasonable about giving a fifty-minute presentation but it would be unreasonable for me to demand fifty of the sixty minutes allotted to a panel and leave only ten minutes for the other three participants to speak. But not only distributive claims can be judged reasonable or unreasonable from this substantive perspective. It would have been unreasonable of the conference organizers to have asked us all to present our remarks in the form of performative dance. Why is this unreasonable? There is a general understanding of what usually constitutes an academic conference in philosophy and what are the expectations of participation. So the demand for a performative dance format (out of the blue one might say) appears pretty unreasonable given the circumstances. We do not need any more information to make this judgment. But let’s alter the case ever so slightly. What if I decide to deliver my contribution to the conference as a performative dance piece? We can imagine a number of scenarios ensuing. I might make my intention known to the organizers and they might politely deny my request to present my contribution in the form of performative dance. They might argue that this is an academic philosophy conference and academic conferences have a certain structure and set of expectations. The rules are in place and it is not really the time or place to challenge them. It might ruin everything they say. A second possibility is that I simply show up and dance. The rules of academic conferences clearly reward a certain intellectualism and I object to this intellectualism. Or I simply believe that acting outside the box of established institutional rules is probably salutary for the system. This shocks (almost) everybody and angers the organizers who are in a puzzle what to make of it and regret the money they have put out to get me here. A third possibility is that the organizers and I exchange some reasons. They ask me why I want to dance instead of deliver a paper. Here let us imagine two possible answers: a) I tell them I am a really good dancer and this would be more fun than writing a paper; b) I explain that in my culture this is in fact how we express deep ideas and that my performance is in celebration of Tully’s commitment to deep diversity. It would be reasonable for the organizers to reject the first as unreasonable and the second as reasonable.

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c iv il a n d c iv ic c it iz ens wi thi n the bo u n d s o f c on st it ut i onal essenti als Analogies, metaphors, and hypotheticals can get you only so far. But I want to use this simple case as a somewhat contrived entry point into a discussion of reasonable challenges to constitutional orders. Let’s think of liberal constitutionalism as the general framework or set of norms within which we act as citizens within the public sphere. Some demands and claims will challenge that framework by suggesting, as our performative dancer suggested, that there are alternative ways to proceed. Again we can see three possible responses. One response might suggest that the democratic public sphere has certain rules and citizens are restricted or limited to playing by these rules. Any challenge to the underlying constitutional rules is unreasonable. Tully sometimes implies that this is the default position in much liberal theory (2012, 184; 2013, 227). A second position might go something like this: we are not bound by the preexisting constitutional rules which in any event reproduce an unjust power structure. It is not enough to challenge the existing rules through arguments we must challenge the existing rules through action. We dance irrespective of what the practice of academic conferences has been until now; we engage in, say, radically alternative exchange relations irrespective of the market structure within which everyone else acts. In this second scenario the line between reasonable and nonreasonable is harder to discern. One of the arguments I made above is that reasonable and unreasonable only make sense within a context. If you think we are engaged in x (an academic conference to exchange knowledge) and I think I am engaged in y (an opportunity to express my deepest life anxieties) then it might be very difficult to agree on what is reasonable and unreasonable. One solution is to try to find a line that is uncrossable in all circumstances and contexts. The line between violence and nonviolence might be such a context transcending limit. Sometimes Tully’s defence of civic citizenship looks something like this second scenario (2014, 33–73). But there is a third option paralleling the third scenario above. Challenging the constitutional order is possible but not all challenges are equally reasonable. Challenges require reasons. There is no walking (or dancing) without talking. I want to develop this third option below. For many years now Tully has been developing a rich alternative view of citizenship. He often presents his view in contrast to what

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can perhaps be considered the dominant view or a more liberal view. Civic versus civil citizens is the most common way that Tully articulates this contrast. But also present are the contrasts between diverse citizens and modern citizens, critical democratic theory and critical liberal theory, cooperative democracy and deliberative democracy. Tully articulates these contrasts sometimes critically as competing views in which the liberal perspective is shown to be inadequate and problematic and sometimes he presents them as complementary in that they are both legitimate approaches to citizenship and political action but they need to work together. Whether the contrast is depicted sharply or more as an issue of complementarity sometimes appears to depend on who the exemplar of the liberal or deliberative view is being discussed. Amartya Sen for example gets a slightly easier time than Jürgen Habermas. There are many dimensions to these contrasts and Tully has presented us with a deep and full picture of his view that I cannot do justice to here. I will pick up on just two strands of the comparison. In one strand Tully stresses action over speech and introduces the phrase walk the talk: “according to democracy as cooperation it is not sufficient to advance public reasons against injustice and for justice and then return to the private sphere and participate in those unjust activities. To be just, one ought to ‘walk the talk’: bring one’s ethical way of being in the world in accord with the principles of justice one espouses in public and therefore, cooperate democratically in activities that embody the just response” (2013, 230). This is powerful picture that brings to mind the radical direct action of Gandhi and MLK Jr. Here public action is not only understood as action strategically directed at raising awareness, or changing the agenda, or shaking the public loose from its fixed ideas. These are all traditional views of the role and function of protest and action. More importantly in this picture citizens are encouraged to live according to the principles and values they espouse. This experiential picture of democratic citizenship is not introduced so as to keep the soul of the citizen and activist pure and avoid hypocrisy (although avoiding hypocrisy is good). Walking the talk will begin to bring about the change, even if only at a micro level. Furthermore, walking the talk, Tully reminds us, will make citizens even better prepared to talk the talk. They will have deep resources from which to make the arguments to other citizens not yet persuaded by the cause or principle. When talking about citizens walking the talk, Tully is often in the

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complementary mode. Public reasoners and public actors can and ought to work hand in hand. And although he rarely stresses this or even mentions it, one reason might be that cooperative citizenship is very demanding and an ideal hard to imagine as a universally achievable aspiration across society. Public reasoners fully engaged in a cause are also rare but the deliberative citizen is a somewhat less demanding picture of citizenship than the cooperative citizen. In any event on this dimension of contrast it is not difficult to see the ways that deliberative and cooperative interventions complement each other. There is a second strand or dimension of comparison that is also important. Here Tully talks about working within existing frameworks and institutional orders. It is on this dimension that some of his critical sharpness vis à vis liberal theory comes out. Liberal, deliberative, or public reason citizens are said to work within the institutional structure and so have little purchase to challenge that structure while cooperative citizens are not so bound and so can work outside the system. In his essay on Sen the example or area is social justice. Basic market institutional structures are taken for granted and so direct action that would involve say directly democratizing an enterprise or setting up a micro economy based on cooperative barter are not part of the repertoire. Instead all reform is seen as having to pass through the representative state. Tully is very concerned by institutional “givens” limiting the creative and innovative action that citizens can take to address issues of injustice and disempowerment. In an essay included in the collection Beyond Habermas, he identifies Habermas as one of the theorists who clearly fall into this camp. I want to take closer look at Tully’s discussion and analysis of Habermas’s conception of the public sphere.

l im i ts , se lf -l im i tati on, a n d r ad ic al d emocracy Tully argues that the public sphere envisioned by Habermas “incapacitates democratic citizens” (Tully 2012, 182), creates “uncontestable limits,” “forecloses” critique, puts certain questions “off limits” (ibid., 184), “disallows” fundamental challenge, and finally suggests that by restricting what can be questioned Habermas (perhaps unwittingly) allows the reproduction of “untouchable structures of domination” (ibid., 182–4). I think this underestimates the potential for citizen critique within Habermas’s political theory and

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overestimates the difference between Habermas and Tully on reasonable limits to citizen action. Habermas certainly does talk about self-limitation as well as acting within the bounds of certain basic liberal constitutional principles. I want to suggest, however, that even with these principles, let’s call them the principle of democratic self-limitation and the principle of the rule of law, nothing is offlimits. But we are in Neurath’s boat. Sinking the boat is off-limits but any and all planks can be replaced. But what kind of a boat is it and how restrictive? Let me begin with Habermas’s idea of democratic self-limitation and Tully’s objections to it. Tully takes issue with Habermas’s insistence, following Cohen and Arato, on a “structurally necessary ‘self-limitation’ of radical-democratic practice” (Habermas 1996, 370). Radical-democratic practice is what Habermas sets out to defend and show to be a necessary corollary to liberal rights (ibid., xlii) but that practice must be understood as limited in important ways. These limits come down to the insistence that radical-democratic practice be itself democratically accountable. Four basic limitations are presented. First from a sociological point of view Habermas sees a “liberal political culture with corresponding patterns of socialization” functioning as a filter moderating direct action (ibid., 371). Citizens who value basic ideas of rights, equal respect, and autonomy (what he means by patterns of socialization) are less likely to pursue causes that involve discrimination or minority oppression, racism, et cetera. Within the list of background conditions of a self-limiting public sphere, Habermas mentions “capitalist modernization.” Tully reads this to mean that actors must “accept” capitalist modernization (Tully 2012, 178). What Habermas actually says is that a democratically active civil society can “blossom only in an already rationalized lifeworld. Otherwise, populist movements arise that blindly defend the frozen traditions of a lifeworld endangered by capitalist modernization. In their forms of mobilization, these fundamentalist movements are as modern as they are antidemocratic” (Habermas 1996, 370). This does not mean that actors must accept capitalist modernization in the sense that they may not radically challenge market relations and capitalist structures. In other words it is not a normative argument. It is an empirical argument that says lifeworld rationalization (meaning a differentiation of spheres) will engender fewer anti-democratic fundamentalist movements that arise in opposition to modernization. This empirical claim might be false or at least not strongly generalizable

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but it does not add up to a normative claim that actors ought not challenge capitalist structures. I will return to the question of social justice and anti-capitalistic movements below but for now I want to try and make clear why Habermas thinks a self-limiting public sphere is so important. In my reading and interpretation of Habermas, I start with a lesson I learnt from Tully as a young political theorist reading Locke for the first time. Tully told us to ask ourselves what was the author up against? What is the danger, problem, or issue he was trying to solve? If you can figure that out, Tully said, you will be half way to understanding what he was about. Then Tully pointed out that Locke was concerned to protect property from royal confiscation and not radical redistribution from below and this put the argument in a whole new light. So what is Habermas afraid of? He is concerned with populism, fundamentalism, fascism, and bad civil society. This is not a ridiculous fear in contemporary Europe. So the limitations are not intended to filter out the sorts of radical direct action that Tully has in mind, but perhaps they do any way so let’s keep going and lay out the next limitation. Habermas next says that actors within civil society can acquire “only influence, not political power” (ibid., 371) and further on he says “not influence per se, but influence transformed into communicative power legitimates political decisions” (ibid., cited in Tully 2012, 178). The first thing to note is that this does not limit who may enter or what issues can be raised in the public sphere. It limits the authority, indeed the democratic authority, civil society actors can claim for their agendas. Habermas insists that society itself does not rule. One reason for this is that we want civil society and the public sphere to be an unlimited “context of discovery.” A robust public sphere is ideally a fertile ground for new ideas, innovative social movements, radical claims and challenges. As a context of discovery we want the public sphere to be anarchic, wild, and unpredictable. This is particularly necessary in order for claims from the periphery, that is marginalized groups or new voices to be raised and heard. But at the end of the day all social movements and all democratic actors are accountable to fellow citizens if they are making claims and demands that will affect other citizens. In a context where anything and everything can be raised and argued, we need a filter of some sort to ensure that only ideas and claims that pass democratic muster make it into authoritative coercive action. From

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Habermas’s point of view some of the worst abuses of democracy result from civil society actors thinking and claiming they act for the larger public without in fact having their agendas tested and assessed by the larger public.1 Habermas sees this accountability functioning through some central clearing house where the claims, proposals, challenges, and suggestions are somehow held up to democratic scrutiny. It comes back to that old democratic reaction to some forms of direct action: who elected the guys in the turtle suits anyway? This does not, as I will elaborate below, exclude direct action that in some sense bypasses the state. Cooperative citizenship, as Tully envisions it, engages in exciting experiments that challenge the system. But populist right-wing moments are also grass root and they also challenge the system. There has to be some two-way accountability. Habermas envisions that accountability as movements that are self-limiting. And by that he means they do not think that just because they are right or champion a just cause that gives them the right to rule and set down norms and rules for others. The third limitation follows from the second. Habermas says “democratic movements emerging from civil society must give up holistic aspirations to a self-organizing society” (Habermas 1996, 372). Tully understands this to mean “[a]ny liberal, socialist, feminist, or anarchist movement of a people as a whole or as various organizations of publics that aspire to act democratically in any way different from those prescribed in this critical liberal reconstruction are excluded from the public sphere” (Tully 2012, 179). I do not see it in quite so stark terms. First of all, as I said earlier no group is excluded from the public sphere. Exclusions have to do with the authority and power one claims for one’s public sphere arguments, principles, and demands. Second Habermas is making a rather large claim about the modern state. The claim put crudely is that the modern state (and as we shall see this also holds for modern market economies) cannot be run democratically. It can be steered democratically but it is neither feasible nor desirable to have democratic self-organization go all the way down. But what does this mean? Does it mean for example (and this appears to be what Tully thinks it means) that something like participatory budgeting within large municipalities is off the agenda, or that the self-organization of communities into economic cooperatives is off the agenda? No it does not. In the end there are two ways to view these limitations: one normative and one empirical. From the normative perspective Habermas is

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worried about grass roots populist movements that are not democratically accountable to other citizens and he envisions this accountability to take place through the filter of representative institutions. On the empirical side Habermas thinks that there just are limits to what can be democratically achieved at the level of a large modern state. States need to get things done on a large scale. Modern coordination problems make it impossible to subject every action to democratic decision-making. But the more important argument for Habermas is the normative one: it is precisely so as to have an unlimited conversation in the public sphere where even the craziest ideas can try and get a hearing that the public sphere has to exercise self-limitation regarding the authority it can claim for ideas and agendas raised in this sphere. The unlimited nature of public sphere requires filters between it and authorized, coercive law. Let me now turn to the other type of limitation on democratic action. This one is more directly constitutional and focuses on what I call the principle of the rule of law.

con s tit u t io na l li mi ts a nd the rule of law The second important limitation in Habermas’s picture is acting within the rule of law. Again Tully takes issue with what he sees as an unnecessarily restrictive view of what democratic citizens can challenge. Habermas says (and Tully quotes) that “the conditions that make the production of legitimate law possible are ultimately not at the disposition of politics” (Habermas 1996, 385, cited in Tully 2012, 180). Tully understands this to mean that constitutional structures are preconditions of the public sphere and so “not open to question in political arenas” (Tully 2012, 179). I am not sure this is the best interpretation here. Much depends on what one means by “constitutional structures.” If by constitutional structures one means any particular constitution in a particular constitutional tradition, let’s say the Canadian Charter of Rights and Freedoms, then Tully’s assessment is not correct. Any part of the Canadian Charter of Rights and Freedoms is open to question and renegotiation. In fact every particular constitution should be seen as an ongoing unfinished project. A democratic constitution’s “normative character means that the task of interpreting and elaborating the system or rights poses itself anew for each generation; as the project of a just society, a constitution articulates the horizon of expectations opening on an ever present future” (Habermas 1996, 384).

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If we can change and indeed radically change our constitutions (for example Habermas would endorse much stronger social rights in all Western constitutions; 1996, 123) what does Habermas mean by saying that the preconditions of legitimate lawmaking are not at the disposition of politics? He means two things. The first is the idea that a lifeworld must meet constitutionalism half way. By this he simply means that politics (in the narrow sense) cannot create a political culture that will respect rights and recognize equality. These things take time and history and are subject to contingency. One can write as many constitutions as one wants but without some underlying lifeworld purchase for the ideas contained in that constitution, it is not likely to take root and serve its purpose of structuring democratic action. But it is the second sense that is more interesting, potentially problematic, and the one that Tully believes unduly limits democratic citizenship to a narrow band of liberal approved behaviour. Habermas argues that a system of rights is a prerequisite for legitimate law. The philosopher reconstructs a system of rights that contains “precisely the basic rights that citizens must mutually grant one another if they want to legitimately regulate their life in common by means of positive law” (ibid., 118). Habermas argues that this is a matter of logic not politics. But does this mean, as Tully implies that it means, that this reconstruction is off-limits to challenge and political action? The story is more complicated. The logical reconstruction of a system of rights is still a logical reconstruction and not positive law in any real political and legal context. Any enactment of this system into real or positive law immediately introduces politics, democracy, and potentially critical citizenship. The system of rights needs to be enacted and made into positive law in real political communities with real constitutions and enforcement (ibid., 125). Each legal, political, and national context will vary and so each system of positive rights will differ. Rights as positive legal instruments then are also subject to legitimating force as outcomes not simply as prerequisites of lawmaking. The philosopher can reconstruct the general idea of a system of rights but they are not really rights at all until a public, or a people, enacts them through an exercise of popular sovereignty which is what all modern constitutions are founded on. Which is to say, all modern constitutions presuppose the preamble: “We the people.” Furthermore every actually constitutional structure comes into being through an historical process of bootstrapping. “‘(T)he’ system of rights does not exist in transcendental

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purity. But two hundred years of European constitutional law have provided us with sufficient number of models. These can instruct a generalized reconstruction of the intuitions that guide the intersubjective practice of self-legislation in the medium of positive law” (ibid., 129). Popular sovereignty and self-legislation give legitimacy to enacted law and constitutional entrenchment; enacted law and constitutional entrenchment are legitimate only to the extent that rights are in place that can guarantee the freedom and authority of the self-legislation process. This is Habermas’s famous co-originality thesis. What this means for our purposes is simply that at the ground level no part of any constitutional order is out of bounds but at a more abstract level ditching the constitutional order as such would make legitimate lawmaking impossible. Tully’s overarching complaint with Habermas’s view of citizenship is that he does not allow citizens to think outside the liberal box and they are allowed to enter the public sphere “only if they become liberal capitalist subjects in their public thought and action” (Tully 2012, 181). I want to briefly disaggregate the capitalism from the liberalism. The system of rights that Habermas has in mind does not endorse, protect, or mention market relations. The vast majority of the examples that Tully uses are not groups that wish to challenge constitutionalism or rights per se but rather the ways rights and constitutions have been interpreted within particular political contexts. This is fully within the Habermasian view of self-limits. He would be the first to acknowledge that our constitutional histories are full of missteps and a failure to follow through on ideals of equality and freedom. In the end I do not see a great difference between Habermas and Tully when it comes to constitutional structures and limits. I cannot see Tully endorsing direct action that violates basic rights and protections and for his part Habermas does not exclude any arguments from the public sphere. Things are different when we move to questions of capitalist modernity.

c a pi ta li st m oderni ty The disagreement between Tully and Habermas regarding capitalism is not an issue of reasonable citizenship or public sphere, however, the issue here is Habermas’s invocation of systems theory. It is not so much his normative theory, but his functionalist empirical theory that is at issue. Here it is true that Habermas sees the econ-

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omy as an independent system that cannot be democratized all the way down. Some of what he says is straight modernization theory in the sense that he is describing what happened not endorsing what happened. But he believes that the development of a modern differentiated economic system that has its own logic is not something that can be reversed. There are normative consequences of course to this view: efforts to radically democratize the economic system will lead to collapse or a failure to perform the function that it does in modern world. I do not wish to defend this systems view. Perhaps it does blinker Habermas to certain types of transformative potentials. He certainly has been accused of that. But from a political point of view the claim is not so far-fetched. Even though he insists that wholesale Marxist movements that want to bring economic forces under the full control of political forces are doomed to fail, it is important to remember that he has spent a long career insisting that democracy should take priority over economic systems. This does not mean the large scale and systemic democratization of say workplaces, enterprises, or industries. What it does mean is strong constitutionalization for example of the eu so that rights and liberties have priority as well as democratic oversight and steering. But even within his systems perspective, Habermas has no objection to nor are there any structural or system barriers to groups democratizing individual enterprises or economic microsystems. The sorts of economic activity that Tully admires and holds up as exemplars of cooperative citizenship include micro credit, the global renaissance of local and social and economic cooperatives, recalling the commons, the Occupy movement, the Italian beni comuni movement. None of these are excluded from activity in a Habermas model. But three things are required. One is that these movements respect the rule of law. This may include civil disobedience but it is a higher bar than nonviolence. Two, these movements should be democratically accountable to the people that they affect. No walking without talking. And finally if these movements take on global trans-society aims they must pass through the crucible of mass democracy. In the end, Habermas’s systems theory does not spill over into a view of citizenship such that Marxist or those advocating democratization of the workplace are excluded from the public sphere. Habermas is the ultimate democrat. One reason why he does not himself put forward a strong theory of social justice is that he does not think it is the philosopher’s job to do that. Citizens themselves

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have to work this out through democratic means. At a certain point he himself is just another citizen proposing reforms with reasons. The only proposals that are excluded as unreasonable are proposals that would curb, restrict, or destroy the conditions of making proposals and giving reasons in the first place; wholesale dismantling of our system of rights and liberties. But within that citizens need to make their case to each other and criticize the ways that the public sphere is not a level playing field or distorts communication. But reasonableness ultimately comes down to reason giving and reason giving needs some basic rights and liberties in order to take place.

re as o n g iv ing a nd t he r easonable ci ti zen We have taken a long detour from my original discussion of reasonable. This detour investigated Tully’s charge that Habermas places unreasonable limits on citizens or conversely that Habermas endorses a view of reasonable that is very tightly tied to a liberal status quo. I have argued that in this picture no part of the liberal constitutional order is immune from criticism and challenge but that constitutionalism and rule of law per se cannot be thrown out. Rather than constitutionalism or the rule of law Tully talks in terms of nonviolence as the limit placed on citizen actors. Nonviolence is a form of accountability. It does embody a deep and fundamental respect for fellow human beings. But it is a low bar that is unable to distinguish populist, say anti-immigrant political moments, from more progressive ones. Here I think that limits that stress the procedural picture of reasonableness outlined above is a higher bar and one that includes a stronger accountability requirement. Setting up cooperative enterprises that deliver needed goods to an impoverished community in the face of an uncaring or coopted state is a good thing. But how do we ensure that these enterprises do not exclude ethnic subgroups or close off opportunities for women? Again nonviolence is not enough. In the end it seems to me that both Tully and Habermas converge on questions of accountability. The system can be challenged. We can question any and all constitutional essentials, but we cannot throw out constitutionalism; we can question any and all specific articulations of right, but we cannot dispense with rights altogether; we can engage in any and all kinds of innovative democratic activity, but we cannot impose our ideas of justice on citizen without their agreement and understanding.

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no t e 1 He is of course thinking of Weimar Germany. One cannot underestimate the ways that Germany’s Nazi past has influenced Habermas in his democratic theory.

r e f e re n ce s Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to Discourse Theory of Law and Democracy. Translated by William Rheg. Cambridge: mit Press. Tully, James. 2012. “On the Global Multiplicity of Public Spheres: The Democratic Transformation of the Public Sphere?” In Beyond Habermas: Democracy, Knowledge, and the Public Sphere, edited by Christian J. Emden and David Midgley, 169–204. New York: Berghahn. – 2013. “Two Ways of Realizing Justice and Democracy: Linking Amartya Sen and Elinor Ostrom.” Critical Review of International Social and Political Philosophy 16 (2): 220–32. – 2014. “On Global Citizenship.” In On Global Citizenship: James Tully in Dialogue, edited by James Tully, 3–100. London: Bloomsbury.

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Indigenous Intellectual Cultures, Legal Traditions, and Self-Determination

10 On Reconciliation and Resurgence Taiaiake Alfred

We are in the era of reconciliation in Canada, though I think a lot of people have trouble understanding what exactly it is that we are trying to reconcile. What was the harm done, exactly? In a sense, the basic question is what was colonization’s impact on Indigenous peoples? In my experience – both politically and in terms of teaching in a classroom and speaking publicly, I find that most people still think of reconciliation with a colonial mentality, which is the framework of the Canadian mentality. Even if they have begun to decolonize in other ways, it is still their understanding that the problem we are dealing with is rooted in the perceived failings of Indigenous people – and yes, liberals, I do realize there are some Canadians who are much more sensitive and generous in their “deficit model” perspective – but Canadians as a whole see the problem as Original Peoples failing to keep up, failing to somehow become part of the modern project of Canada, failing to somehow adapt to the modern reality, to the unquestioned path of progress, of industrial society, and so forth. There might well be sympathy, there may be empathy, and there may be all kinds of good intentions, but Canadians have themselves failed to decolonize because they are the ones who are failing to turn the mirror on themselves and recognize what the reality is in terms of their presence, and the ongoing continuation of their way of life, their use of the land, and so forth. That is the foundation of reconciliation, coming to an honest appreciation of what the harm was in colonization so that we can see clearly, listen without prejudice, and put our minds together to agree on solutions that mean something for the people that were harmed by colonization

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instead of those who have benefitted and who continue to benefit from the theft of the continent and the subjugation of its owners. The current framing of reconciliation in Canada is a contemporary form of colonialism. The Truth and Reconciliation Commission of Canada is the main vehicle for perpetuating smug Canadianism and the failure-victim image of Indigenous people.1 In this reconciliation framework, the way it has been developed and made its way into the public mind, as well in terms of the way that we all talk about it in academic circles, perpetuates the old fallacy of the so-called “Indian Problem” recast in terms that replaces the pathetic Indian with a challenged Aboriginal, still a person with problems that need to be resolved somehow, or a person who needs to be brought forward or uplifted from a situation that is unacceptable by Canadian standards. We need to get at this mistaken idea because this accepted wisdom could not be further from the truth. In fact, it is the disconnection of Original Peoples, as collectivities, from the land bases that sustain us that is the root of the problem. The main harm of colonization, which is also the fundamental crime of this country, has been the removal of Indigenous people from their homelands so that capitalism, and then settlements, and then the society that followed behind can benefit from our lands. The issues that we deal with today are the result of dispossession, destruction, and dependency; it is colonialism in 3d . There was a person I worked with at the Royal Commission on Aboriginal Peoples, Rosalee Tizya, a Gwitch’en woman from Old Crow, who used to take us younger First Nation researchers and workers to her house in Ottawa and feed us traditional foods and talk to us. I really got a lot out of the time I spent with her; it was a real education. One thing she always used to say to us is this: “It’s all about the land.” Lately I have been recollecting and thinking of how I was a twenty-seven-year-old person not taking what she said as seriously as I should have, at the time. She used to say that constantly, with a wry smile, especially when we thought we were being smart and talking up our ideas about new ways of being Indigenous, “It’s all about the land.” She would say, “It’s all about the land. You can talk about self-government, you can talk about this … but you cannot get away from the fact that it’s all about the land and your relationship to it, your relationships, and the land. Your responsibility to the land and to the water and to the animals is what colonization and decolonization is all about.”

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All these years later, we are talking about that rhetorically but we still do not seem to understand it, yet – in Indigenous academia, in the public discourse around Aboriginal rights, and certainly not in Canadian public policy, in law, in reconciliation – we do not understand that that is the main impact, that is the site, and that is the dynamic of colonization, right there. Everything else, to Rosalee and the elders in Old Crow and every other Indigenous nation and to me, in my own latter-day traditionalism, is secondary to that. Colonization was and is the removal of our people from the land so that the land could be used for the purposes of industrial society’s economic development, and the settlement of foreign populations. So how does this principle – “It’s all about the land.”– impact on people’s thinking about reconciliation today? Does it support or stand in contradiction? I think it exposes the lies of reconciliation strategies. I can say this because what we have now is an idea of reconciliation that is serving mainly to assuage the guilt non-Indigenous people feel over the settling, and dispossessing, and exploiting. It is an attempt, in its best formulation, to bring Indigenous people into a situation in which they can access the benefits of capitalism and industrial society – the good things that are there for the taking if our people only want them and are willing to work for them. But it still does not take it to the crucial point, and it does not get to the heart of the matter. The heart of the matter is that, again, our people are suffering the psychological, the economic, the social turmoil, and spiritual discord of not being able to access the only thing which can free us from colonization, the fundamental thing that allows us to be Indigenous. When we talk about being Indigenous, it is a very different conception than any kind of ethnic affiliation or a religious or philosophical orientation, or ideological belief system. Whether you are Kanien’kahaka, Anishnaabe, Innu, or Dene, it is that intense interaction with the land, spiritually, culturally, physically in terms of what you eat, ceremonially, and the physical presence on the land that makes you Onkwehonwe, Indigenous. It is your fulfilment of your responsibilities in the web of relationships that form the natural environment that truly makes you a human being. If you do not do that, you are not Onkwehonwe, you are not fulfilling your obligations. So if you are not able to return the gifts you are given by the earth, to the other animals, to the plants, to all the forces in the world, you are not fulfilling your obligations, you are not living as an Indigenous person, and that is a fundamental thing that needs

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to be considered when you think about the effects of colonization. If we are not living as Indigenous people, we can do a lot of different things when it comes to law, policy, and economics to compensate, or I should say attempt to compensate, our people for that loss on the collective and individual levels, but these attempts will be useless. Meaningful restitution and restoration as being key here, Canadians have to recognize that unless they address the reality of the effects of the disconnection they engineered and the dispossession they benefit from, they are going to continue to live in a discordant and dysfunctional relationship with people who either have anger boiling over to rage or mass psychological and spiritual problems. As Indigenous people, we are all affected by this, and we are all harbouring rage over it. It is from this experience and this position that I come to my critique of reconciliation, not because I do not like the fact or the person who put it together, or because I do not like the political party behind it, or because it is a half-hearted liability avoiding ploy, or pathetically insufficient. One of my great-aunts was sent to a residential school. There were a lot of children in my grandfather’s family, and they were having a hard time and one daughter was sent to residential school. After that, all her life, she acted as if she was Irish. She said she was Irish, and I think she convinced herself that she was in fact Irish. Now, she had darker skin than me. She had a Kahnawake accent thicker than mine. She spoke Mohawk fluently. She was born in Kahnawake. But she went to residential school, and because of the psychological damage, brainwashing, and harms that she suffered, psychologically, she turned away and rejected the whole idea of being Mohawk. Is this an extreme case? I do not know. But it is an actual reality. I think there are people all over the country in this situation. She said she was Irish, and she refused to speak Mohawk. She came to visit us in Kahnawake only when there was a death in the (immediate) family. She did not really interact, and when she did come home, she was obnoxious, and insulting, and denigrating to all of us. She had been disconnected in very serious ways from who she truly was. When we talk about reconciliation, is reconciliation paying for the harm she suffered, for documenting – cataloguing – the harm she suffered, and then coming up with a formula to pay compensation for the fact that she endured abuse in a residential school? Well, to my mind, that is a start. That is something the system can do to affect the individual and possibly help them overcome the harm by giving them

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an opportunity to begin the process of healing, but in no way can it be conceived of, as former Prime Minister Stephen Harper put it, a process to turn the page on history, on that sad chapter in our country’s history. Because, think about the relationships again, that that woman had and did not have in her life, and think about her children and her grandchildren, and her nieces and nephews who were effected by her perceptions of herself and us – that is one generation. Think about the next generation that does not speak Mohawk and has a disdain and a hatred for indigeneity because of the ideas that she conveyed to them through her life. Tally that up. That is just for one person, one residential school survivor. Expand the equation to the thousands who went through the schools and many more thousands who had the residential school impacts inflicted on them secondhand and now thirdhand and that is the sum total we will call the multigenerational effect. That is what we are talking about when we talk about what needs to be dealt with. So it does not only go to language loss, it also goes to perceptions, to the disruption of community. It also goes to the central fact of what I am talking about here, about disconnection from the land. What was the purpose of the residential schools? The residential schools: misguided attempts to educate; or, evil systems of organized child abuse? Yes. But fundamentally they were another in a long line of techniques and tools to disconnect us from the land. Simply put, because of residential school my great aunt, her children, and her family were less able to defend the land when the government wanted to take it from us. “It’s all about the land.” When the St Lawrence Seaway came through our community, in 1957, when it was proposed that our homes, and farmlands, and riverfront, were to be destroyed and a giant trench carrying container ships built in their place, did you have Mohawks standing in unity to defend their homes? No. You had a divided Mohawk community squabbling over what to do and not trusting each other enough to confront an obvious outside aggression. Some of who were in favour of economic development and the idea of progress. Most of whom were cowed by authority at that time – the church and of the government – because of the experiences that we had and, importantly, because of the disunity and the delinking of our people from our territory and the dispersion of our power in other places located other than Kahnawake. So what happened in Kahnawake is, I think, typical of what happened all over the country – there was

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a process to remove Indigenous people from the land so that they would no longer present a serious obstacle, a credible threat, to the development of the economy of this country. Indigenous people were many things to many people, but we were still the Indian Problem, and what made us a problem was that we were in the way. That was a serious issue for us to have to face up to because any technique, any means by any white person, to remove Indigenous people from being in the way was validated and legitimized in Canadian law and policy. They were maybe not validated morally by everyone, as the records show that some people had ethical qualms with the way things were done in their name by the Canadian government, but when it comes down to it – to use the example of the St Lawrence Seaway, which came through in 1957, built from 1957–59, opened up in 1959 – you could have all the legal arguments you wanted as an Indigenous person, you could go up to high levels of court, go to international court, argue in the court of public opinion, have people resist on the ground, and so forth, but in the end, an orderin-council overrides all of that and makes it happen and ignored the consequences on the ground because of the fact that there is not enough physical and political resistance to stop it from happening. What happened in Kahnawake in the 1950s and its role in shaping the experience of those who lived through it and those of us who entered the world in its wake shows what the stakes of reconciliation are for Indigenous people today. When we talk about this, it is not just Violet Douglas and the fact that she suffered harm and abuse which was very real – it is her children, grandchildren, and in effect, in real terms, the community of Kahnawake, and every Indigenous community. It is a collective harm to our nations, and it is a collective loss. After the Seaway the division and dispersion of our community got worse. And what was the compelling reason Canada had to do that harm to the land and the river and our people? Building the Seaway through Kahnawake saved the government a million or so dollars in construction costs compared to an alternate route that could have been used. In economic terms running it through Kahnawake was a simple land grab that made it a little bit cheaper for the Liberal government to build the Seaway, which became a giant economic engine for the development of the country as a whole. The Seaway through Kahnawake made it a little more cost effective as a project. But the Seaway, as part of a larger effort to break Indigenous people’s

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ways of life disrupted historic patterns of existence on the land that had held the community together and defined the community of Kahnawake. When those historic patterns and social networks and that tight collectivity that existed in that place were broken physically and also harmed politically and socially because of the defeat and the ample demonstrated fact that our people were not capable of confronting the political-industrial complex of power at the core of Canada, there was generation after generation of the effect. The psychological harm that comes from being an oppressed person is reinforced over and over again by the fact that we are occupied by the infrastructure of the Seaway as well, and there are giant ships steaming through our reserve. I should say that I have extra passion on the St Lawrence Seaway issue because my family was directly affected. The house where my father was born, if you go to Kahnawake today and stand behind the Catholic church and look towards Mount Royal, right in middle of the Seaway is where our family’s house was. That is where my family used to live, right in the middle of the Seaway. That is where my father grew up, and that is where our harm was suffered – right there – that is the place the community, the family were broken up. And to me it is so obvious looking at it in hindsight what colonization is. They used to fish, they used to sustain themselves on the fish, they used to have a garden, they drank the water, bathed, they used to do all the kind of activities that related them to that place, and allowed them to experience life as Onkwehonwe in that territory and to experience freedom and empowerment in a way that they defined and that was real for them. After that, life was different. It was lesser. They were colonized. That is the colonization for us. I know that our losses did not start with the Seaway, because previous to that, we had suffered many losses, of course. The Mohawk Nation owns all of New York State and what do we have left as reserves today? Even in our treaty area on the south shore of Montreal, we had 54,000 acres recognized in French and British law as ours. We lost much of that too through unscrupulous legal maneuvers by white settlers and now we have a reserve of only 12,500 acres. In spite of the reductions in power and those kinds of historic losses, I believe that before the Seaway, our people had adapted to the changes because they were still able to have a close connection to the land and the river. But when they were cut off from the land and they were cut off from the ability to have these connections, it was too much for the culture

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and the community to bear. It broke and we see in the 1960s and the 1970s, and into the 1980s a situation created where the community took on the shape and character of a colonized people. And now we have people like the reconciliation crusader former Prime Minister Paul Martin telling the country we need to be helped and fixed because we have been unfairly excluded from society as a whole. Ironically there is no mention of returning land in his liberal crusade, and hypocritically too, given that he owes his personal wealth and privilege to the existence of the Seaway as Paul Martin, Sr was instrumental in getting his Liberal Party to build the Seaway so that he could grow his company (Canada Steamship Lines), and to reject the route that would have spared my father’s house and that of many other Mohawks but imposed ship traffic on the sight line of his riding’s Liberal constituents in Lachine, Quebec, just across the river from Kahnawake. Reconciliation, perfectly reflected in the person and agenda of Paul Martin, Jr, is this willfully ignorant drive to preserve a set of colonial privileges by creating false narratives ridden with hypocrisy and getting Indigenous people to accept them in a profound act of spiritual surrender, self-denial, and denial of the fact that it is racism that underlies all of Canadian history, and racism that prevents white people from being able to see and accept that reconciliation means not shaking hands over the spoils of colonization, but making amends for the crimes that have been committed by their fathers and in their name. Can you see the trick of the contemporary Canadian colonizers here? One generation creates the conditions for our being judged as failures and the next creates solutions that preserve their advantage and address only these so-called failures of the oppressed. And then they call it reconciliation. Hopefully I have persuaded you by this point, or at least got you thinking about connection and disconnection as the central nexus of what colonization is, and reconnection as the central imperative for true reconciliation. So when the whole reconciliation framework was proposed and developed and then announced, that is what I was looking for: truth. My criterion for whether or not it was a good thing centred on this question: does it allow us to reconnect? I needed to know if it was something that was going to allow us to reconnect as people to our land. Does it allow us to reconnect our communities together? To experience again, unity? To experience safety, solidarity, and all of that in our own communities? Does it do that? Does it contribute to that? My hopes are never placed all on

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one process. But I imagine that there could be positive steps taken in that direction. And my negative view of reconciliation, my labeling it a failure, comes out of that perspective. It is clear to me that in fact what it is doing is further reinforcing the very problems that arose out of colonization. In many cases what it is doing is allowing people to continue living and perpetuating the attitudes, and the ideas, and the behaviours, that came out of the experience of colonization, and validating these colonial mentalities and behaviours by paying them money and saying: “Okay, here, it’s all done. We’re reconciling. We’re not going to ask you to make any significant changes in your life, and we’re not going to ask you to change your community from the way it is today. We’re going to turn the page and let’s move on.” I see it as a problem on the psychological and spiritual levels in that the central harm is something that is being either ignored or further suppressed, and the surface level is being addressed and yet conveyed to the public and conveyed to younger generations of Indigenous people as what we are doing is fixing the problem. Everybody who lives in an Indigenous community knows that it is not the case. This situation creates confusion in people’s minds, and this … I do not want to say cynicism, but it is getting pretty close to that in a lot of communities, cynicism and confusion, because they are not experiencing the thing they thought they would be experiencing with this so-called reconciliation. They naively assumed that reconciliation meant the harm would stop, that Canadians would make amends for the harms they caused, and that a new kind of relationship would be built between Indigenous and non-Indigenous people. That is what people expected from reconciliation but it is not happening. Consistency between one’s behaviour and ethical principles is an important thing. But in Canadian society I really do believe that the lack of consistency – the vast hypocrisy – is something that is going to suck the spirit out of Canadian society as well. If Canadian society validates and institutionalizes a relationship with a significant and growing segment of the population that is raging, disconnected, and confused in this colonial way, it is not going to be something that the country can sustain over the years. I am not saying this because I have such a great sympathy and love for Canada, not at all. Although, you know, I love everybody in theory. I am saying this because the people that are going to bear the brunt, again, of this whole conflictual process and wherever it is going – protest or discord, or violence and repression – are going to be Indigenous

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people, and younger generations of our people especially, who are not able to live out their indigeneity in their own homeland and are going to continue to suffer it and eventually act against it. I guess it would be less of a problem if our people were totally defeated … so here is the silver lining for us, though it actually creates more of a problem for Canadian society: if we were totally defeated, if we had been thoroughly assimilated, if we had been utterly dispossessed, if we had been truly convinced that those older ways of life, that those traditional institutions, that our Indigenous identities, were things of the past and we had done our best to become Canadians and promoted this aspiration for our children, and if it all worked and we felt included and could experience healthy lives full of meaning and satisfaction as Aboriginal Canadians, things might be different. But this is not the case. All over the country, Mohawks being no exception of course, Indigenous people are refusing to surrender. They may be living in oppressive conditions, suffering tactical defeats on land struggles, and politically embattled, but for the most part, Indigenous people are not giving up. That creates a tension in Indigenous communities that is very difficult to live with. When you are told that you are Onkwehonwe, and this is your country and that you have responsibilities to that river, to that land, and to represent yourself in that way and in the relationships you have with the newcomers to your territory, and you are told that that is the way to live and you are held to account for that, and you are not able to live that out? That creates the psychology of discord, the psychology of alienation, and the psychology of anger in this society that is typical among Indigenous people, and typical I think of the problems that we are facing in our communities where there are educated people, where there are cultured people, where this problem becomes even more intense because you become even more aware of your history, you become more aware. So there really is no way out of this dynamic other than to seriously address the issue of the land. My favorite part of the whole 1996 report of the Royal Commission on Aboriginal Peoples (rcap )2 – does anyone else remember that document? – is where it says that we need to get our land back for there to be justice in this country. There were a lot of things that we worked on collectively in the years of the rcap , and there were a lot of things we envisioned, and there were a lot of studies that were done to support that older and more multifaceted vision of reconciliation. But when it came down to it, the rcap concluded

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that the only thing that really mattered was a massive transfer of land back to Indigenous people. That was true in 1996 and that is true today. That is a true framework for reconciliation conceived of a reconnecting Indigenous people to their homelands in a real way. We can disagree on or work out political arrangements, we can argue about the legalities, we can make deals on how we are going to do business and relate economically, but until the land becomes central to the discussion reconciliation will remain a smokescreen for recolonization. There are people who are finding ways to truly reconcile their existence as Indigenous people in relation to the settler states that occupy their homeland. People are reconnecting to their traditional territory by learning and engaging in traditional cultural practices on the land and on the waters. They are learning to hunt and fish, they are learning and using the medicine plants, they are growing and gathering traditional foods, and so forth. There are people who have the opportunity to do these things and those who do are starting to recognize the transformative power of cultural restoration in resolving the very basic anxieties and psychological discords they have, and recognizing how powerful a force the land is in reuniting and healing families and nations. The stain colonization left on our nations manifests in the widespread discord, distrust, the disturbing pattern of disrespect and violence in our lives; people who are reconnecting with the land are finding that the way you move through these things to a better more healthy place is by reculturing yourself and by recentring yourself, as part of community, in your own territory. There are people all over the country moving in this direction. And increasingly, there are community leaders that are recognizing the failure of the current reconciliation framework who are beginning to pursue this pathway institutionally. Indigenous resurgence has a different criterion of success than reconciliation. It does not care about Canada. It cares about the future generations of our Indigenous nations. It is not obsessed with making colonialism palatable to its victims, abstract white notions of justice, or mediating legal remedies for crimes committed by agents of the state. It is obsessed with the land and focused on generating a different reality for the coming generations of Indigenous people, in real, practical, and immediately felt ways. Someone asked me once, “What’s your criteria for success in your program?” – a very Mohawk question, looking right at me. “What makes you think you

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are doing something good?” My answer? My criterion for success is this: my child and your child and all Indigenous children having the opportunity to be more Onkwehonwe than us. Is the work that we are doing in this community, in this program, in this organization, going to give our children a starting point for recovering the connection to land and to restoring their strength that is far beyond where we started off? Are we laying a path of resurgence that will take our children further towards the strong, strong fire that was our nation at one time? Kahwatsire is the Mohawk word for family, and is based on the same root word we use for fire. What has history done to us as families, as a fire? History has come in and kicked around at that fire. So it used to be strong, and now it is weak. But there is still smoke rising from the embers. We are not dead yet. From this perspective, an Indigenous nationhood perspective, what is the work that we need to do? Understand and cooperate with history and the inevitability of our demise? Try to accept and reconcile with the boots that tried to stomp out our fire, and kill our families? Do we need to turn our backs to the fire and our ancestors, strap on a pair of boots and walk in the settler- colonial way? Or, is it our responsibility to work together to bring those embers back to life, to do the work that we need to do to make that fire rise again? What is it going to be, reconciliation or resurgence? The most powerful example of resurgence that I know is happening right now in the Mohawk community of Akwesasne. The Mohawks of Akwesasne were severely harmed by the release of industrial contaminants into the natural environment by companies that had built manufacturing facilities alongside the community on the St Lawrence River. From the 1950s through the 1970s, General Motors and the Alcoa Corporation’s pollution of the river with polychlorinated biphenyls (pcb s) and dioxins, in addition to the cumulative disruptive effects of the St Lawrence Seaway and the Moses Dam that was built in the 1930s, disrupted the Mohawks’s ability to carry on their relationship to the river and the land in Akwesasne in a way that would allow their culture to survive. In the 1970s, people in Akwesasne began to notice and talk about changes in the environment and health effects they were feeling. A scholar from Cornell University ended up doing a study on state of the natural environment in Akwesasne on the invitation of a strong community leader, a midwife, a woman named Katsi Cook. This

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research was the first indication – in terms of scientific proof – that there was a problem in this environment. Further research was done and it was found that Akwesasne was one of the most contaminated sites in the United States. They subsequently did a breast milk study of all the nursing mothers in Akwesasne and found that there were high levels of pcb s in all of the women’s breast milk. It was a very, very tense and depressing time in the 1980s in Akwesasne, as the people realized that not only were they affected by colonization in the well-understood terms of land loss, political disempowerment, and economic marginalization, but that even in trying to maintain their connection to the land in the most basic ways, by respecting and using the gifts of the animals, the fish, and the plants, by these very acts of traditional cultural practice, they were harming themselves. My own later work in Akwesasne documented the reactions of elders in that community to this new form of dispossession by pollution. A healer named Ceci Mitchell started to cry while she was talking about the changes in her understanding of the situation. She said: “I thought I was helping people by picking medicines and doing medicines and giving it to people. Then I realized the medicines were polluted and contaminated and they were hurting them. So I stopped doing it.” Tommy Porter, an elder, a ceremonial and spiritual leader, and a fisherman, talked about how he thought he was fulfilling his responsibilities to his daughters to teach them how to fish in the old way – with the language, and the old teachings, and traditional methods – until the day in 1981 that he heard a fish advisory on the radio telling people to not eat anymore fish in Akwesasne area because they were all contaminated. He says his heart was broken that day; he dropped his nets, walked away, and he never touched them again. I have been working with people in Akwesasne since 2006 to document this loss and to develop responses. Most of my contributions to the idea of Indigenous resurgence have come out of an increased understanding on my part driven by the learning process I went through in Akwesasne. I came to understand colonization deeply as a process of dispossession, and how “It’s all about the land” can manifest in such negative way as well. It was difficult to listen to the voices of the elders describing their loss and that of the community and culture as a whole in terms of the psychological and cultural processes of disruption. It took me two years but the evidence was right in front of me: as a result of environmental contamination,

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90 per cent loss of cultural practice, 90 per cent decline in Mohawk language, eventual dissolution of cohesive community and family structures, dispersing of the people. So I did an anthropological report, and I did that. I am not an anthropologist by the way. Then came the really hard part, envisioning and developing a postcleanup plan for Mohawks to reconnect to the land and the river. The idea of resurgence was born here for me, and arose from the struggle to answer the questions of how to take ourselves from the situation where we are suffering harms that, in all normal ways of thinking, would be an end to the culture – persistent pcb contamination, 90 per cent decline in cultural practice and loss of language, et cetera. All the theory says it is impossible to continue. But yet the people of Akwesasne were, and are, saying that there is no other way that we can continue as a nation unless we find a way to continue to carry out our responsibilities and show respect to all of our relations – meaning the fish, the plants, the animals – in the way that we need to according to the Original Instructions. They told me: here are the Original Instructions, here is the Great Law of Peace, here is the Thanksgiving Address. These are the elements of our culture, our philosophy, and our spirituality. This is who we are. That is all you need to figure out the answer. Now, let us put our minds together in that framework and figure out a plan for us to be able to reconnect to our land and river, and to rise up again as a people. So with the help of strong people there, and community leaders, good minds from Akwesasne and elsewhere, and all the best theory and cutting-edge community-based research methods, we came up with a restoration plan that embodies what Indigenous resurgence can look like in practice. The key element of this approach is that the Mohawks of Akwesasne did not reconcile with what happened to them. They never accepted it, and they never accepted that General Motors and Alcoa could keep doing what they were doing. They demanded a stop to the harm and they demanded and fought for restitution. Through political struggle and legal process – specifically the United States’s Superfund legislation framework – they fought for and in the end received restitution from General Motors and Alcoa in the form of an environmental cleanup and a significant cash settlement to fund cultural restoration in the community. Of course the situation is not entirely fixed, nor is the relationship totally resolved. But the river today, you can eat fish from it, you can swim in it, you can

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interact with it without significant harm to you. This was not something we could say twenty years ago. But, the responsible parties have been held responsible. The most significant part in my mind is that the community itself is being held accountable too, because our approach to restoration does not allow the present generation of leaders, or any adult in the community, to write off the future. The Akwesasne approach to restoration, consistent with this larger concept of Indigenous resurgence, rules out compensation for loss, and the community is forced into a situation of having to put their minds together again and put all those teachings I mentioned into practice. They now have to say what exactly they are going to do, who is going to stand up, and to find out what the level of commitment to cultural and national survival is in the community. This approach understands that the outside harmful forces that were responsible for the decline of the fire are still there. Corporations are still corporations and they are still doing a dirty business on the margins of the community’s territory. But Akwesasne fought to create a space to do the right thing and the good thing for its future generations. The first lesson in this is that it is possible to carve out that space for resurgence even in the most challenging physical and social environments. The second lesson of Indigenous resurgence in all of this is that it is a personal process within a collective effort. If we just think about it as one or the other, individual versus collective, it is not really resurgence. That would be reconciliation. Resurgence, as our ongoing efforts in Akwesasne focusing on land-based apprenticeships pairing masters with learners in an intensive program of language and traditional knowledge training shows, has to be thought of as an individual existing within a collectivity, and it has to consider the quality of the relationships that exist between the individual and that collectivity. This is something that is embedded in all of our Mohawk teachings, this is the lesson of the struggle of the Mohawks of Akwesasne. Our concern should be with restoring the intimate reciprocal relationship between people and the land and the river that allowed human communities and the natural environment to survive and thrive for millennia, and the quality of the relationship between human beings and between human beings and the natural environment. This is something that more and more people are finding is crucial not only to the survival of nations but of us as human beings on this planet.

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This is why resurgence is so necessary and reconciliation so dangerous. Reconciliation seeks to consolidate the pyrrhic money-defined and legally-protected victories of colonialism, capitalism, and the corporation, to assuage the colonizer’s guilt and lure us into complacency and complicity with the harm it has wrought. In the face of that danger, like the monumental struggle of the Mohawks of Akwesasne, resurgence challenges all of us, as people and as communities, to stop thinking about the problem in selfish and materialistic terms to strive to make things better for our children and for the generations to come. no t e s 1 The Truth and Reconciliation Commission of Canada completed its work in December 2015. The reports issued or created by the commission are available online: http://nctr.ca/reports.php 2 The rcap issued its final report in November 1996. The five volumes of the report are available online: https://qspace.library.queensu.ca/handle/ 1974/6874

11 Demanding More of Ourselves: Indigenous Incivility Val Napoleon

i nt ro du cti on Want a different ethic? Tell a different story. Thomas King, The Truth About Stories (2003)

In chapter 4 of this volume, Charles Taylor states that democracy in the Western world has been degraded to a point of crisis. In the face of this, Taylor argues that at least three things have to be in place in order for a democracy to be truly democratic. First, people must possess a sense that they can act together, and for this they need trust in one another and an imagination in which they can see themselves acting together. Second, people need a repertoire of language, stories, and collective actions from which to draw in order to create social coherence. And finally, people need a social imaginary that allows for democratic conflict and a sense of civility that limits violence. It is this last element, civility, that is the most difficult to achieve, and it is this issue that I will address in this chapter. Specifically, what I propose to do is to explore how Indigenous intellectual resources and legal traditions may be drawn upon to restore Indigenous civility as an essential element for the effective rebuilding of Indigenous civic citizenries. Over the past few years, I have become increasingly troubled with what I have been seeing as a basic lack of civility in the social

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and political life of some Indigenous communities, as well as in the larger political sphere. As with all societies, disagreement and conflict is simply the ongoing and necessary consequence of human beings living together. However, when for whatever reason, conflict is not effectively or legitimately managed through legal and political orders and their corresponding practices of civility, it can become polarizing and caustic. When this happens, conflict corrodes and pervades the social fabric of community life from the political to the personal, thereby undermining citizenries’ abilities to civilly manage their collective life. In this way, civility can be understood as where the possibility of diverse, civic citizenship (Tully 2008b, 246–7) hits the ground. In other words, practices of civility are a prerequisite for civic citizenship and democracy. The struggles within Indigenous communities do not always cleave nicely along the lines of power that bound and create categories of elites and non-elites, and while there are certainly power dynamics, these can be blurry or opaque. In the worst scenarios, this breakdown of social relationships and the consequent alienation erodes the trust Indigenous people have in one another and prevents them from imagining that they can work together. Of course, in contrast to this, there are also Indigenous communities that effectively resist the relentless colonial forces and manage to work together in a way that rebuilds political coherence despite many serious internal struggles. For example, in the previous chapter, Taiaiake Alfred has described a highly effective collective undertaking of Mohawk people in Canada and the US to force the cleanup and restoration of the St Lawrence Seaway – historic Mohawk lands. This was a massive political effort over many years and perhaps may best be understood as becoming self-governing by being self-governing (Tully 2014). To draw on the language of James Tully and Charles Taylor, the Mohawk people created a repertoire of collective actions in which they exercised individual and collective agency, and they are practising civic freedom. Despite examples such as the brilliant Mohawk story, I am still concerned with Indigenous incivility, which I consider to be an obstacle to rebuilding and maintaining Indigenous civic citizenries. Fundamentally, Indigenous civility is a relational commitment to others to enable the management of individual and collective selves through diverse Indigenous legal and political orders – which were never perfect historically and which require ongoing negotiation to deal with contradictions and power imbalances in context

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and through time. This means the commitment to civility in how Indigenous peoples treat one another and nonhuman life forms must be reflexive and continued through Indigenous resistances, and never taken for granted. After all, not all Indigenous success stories can be described as examples of practising civic freedom wherein citizens are agents engaged in their legal, political, and economic orders. It should be clear that I am not talking about mere politeness here,1 but rather about disagreeing with respect and about the preservation of reciprocal kinship, community, societal, and intersocietal relationships. This is a necessary first step to recreating Indigenous civic activities as well as working toward the renaissance of Indigenous legal and political orders. Civility is also about individual and collective agency, and is a way to create inclusivity so that all voices are heard through healthy contestation. It is not about being noncritical, but about intelligent and respectful public debate. Civil discourse is about the quality of our interactions with other human beings – those we agree with and those we disagree with. Civility facilitates the work of transforming limited political debate in a way that is imagined by James Tully: “Contemporary disputes and negotiations are thereby transformed from the limited exchange of practical reasons over reforms within a practice of governance and its modes of argumentation to a broader exchange of practical reasons over the comparative values of a range of possible practices and the relations of governance, forms of subjectivity and practices of freedom they institutionalize” (2008a, 35). As a result of the research I have been doing with Indigenous legal orders across Canada over the past few years, I am asking new questions: (1) How do we create or recreate spaces where we can have respectful debate and disagreement? And, (2) Whose voices are heard in those spaces? Whose voices are missing? Again, according to Tully, “If we want equal relationships then we must treat each other equally in working on unequal relationships” and “If we want democratic relationships, then we must change them by being democratic” (ibid., 1). Furthermore, for the work to be substantively “ethical,” it must be “grounded in ethical practices of the self on the self” (ibid.). In other words, we have to “change ourselves in the course of unjust or oppressive or destructive or unequal relations” (ibid.). I am suggesting that Tully’s thoughtful observations be taken up and applied to the politics within Indigenous communities. The lack of civility in Indigenous communities is surprisingly difficult to discuss for a number of reasons. Some of these reasons

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are fairly simple; others are confounded by complexity born of colonial history, a contradictory Canadian legal landscape, and present-day political dynamics.2 For example, it is tricky to be critical of Indigenous peoples’ individual and collective behaviours because of the continuing legacy of colonial oppression, which makes it all too convenient to ignore such uncivil behaviours or implicitly attribute them to colonialism. There is an understandable discomfort in, and reluctance to, exposing any internal weaknesses to the oppressors – by both non-Indigenous allies and Indigenous peoples. The subtext here might be: if Indigenous peoples are not perfect then assertions of self-determination are weakened. In this way, Indigenous resistance and self-determination are linked to worthiness, perfection, and notions of authenticity – despite the fact that these evaluative measures are themselves usually colonial constructs. An analogy for refusing to talk about Indigenous incivility might be found in Andrea Smith’s observation that Indigenous women are told to wait for the actualization of self-determination before challenging and acting on the issues of gendered oppression and violence (2005, 137).3 The hope and expectation is that gendered violence will simply disappear once Indigenous peoples are self-determining, and to acknowledge it now traitorously detracts from the overall struggles of all Indigenous peoples – read Indigenous men. Smith, of course, challenges this sexist subterfuge by wisely asking, “Who is the self here?” (ibid.).4 So is there an analogous expectation that all Indigenous incivility will simply disappear upon the advent of Indigenous peoples becoming self-determining? Another possible reason for the silence concerning Indigenous incivility might be what Laura Nader (1991) observed in South America where Indigenous communities consciously worked to deflect further colonial intrusions by explicitly claiming an internal “harmony ideology.” In other words, Indigenous communities denied and concealed any social problems or conflicts as a deliberate act of resistance against outside interference. However, the deeply sedimented levels of conflict, dysfunction, and violence in some of our communities are usually already public and therefore patently obvious externally (McGillivray and Comaskey 1999). When communities become unsafe, such dysfunction is also dangerous to Indigenous peoples, especially to those most vulnerable (Snyder, Napoleon, and Borrows 2015; Green 2007; Friedland 2018; Dumont-Smith 2002).

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Perhaps another reason for the lack of conversations of this sort is that incivility is too negative a story and so is excluded from the loftier stories that are more often the stuff of Indigenous political discourse where we need the energy of optimism and hope. Also, we can get stuck in our stories – and I do not want to be stuck in the telling of Indigenous incivility. It is too easy to be captured in our own stories of despair, to be negatively constituted and reconstituted in their retelling over and over again. And importantly, it is also true that Indigenous incivility, dysfunction, and violence do not comprise the whole of the Indigenous story. As John Borrows (2012) has observed: “As Indigenous peoples, we are beautiful and we are messed up.” Taiaiake Alfred’s account of success with the St Lawrence Seaway is an inspiring example of the rest of that story. And indeed, the rest of the Indigenous story contains many accounts of amazing and resilient communities – often even while those same communities are simultaneously struggling with internal dysfunction and violence. There are courageous acts of resistance and thoughtful recoveries taking place across the country with community activism and initiatives concerning the protection of the land and water, social welfare and justice projects, Indigenous law revitalization, and political and economic rebuilding. Indigenous peoples are thinking and working beyond the imaginary of capitalism and neoliberalism at every front (see for example Jobin 2014; Altamirano-Jimenez 2013; Coulthard 2014). All of this begs the question; do I think Indigenous peoples have to be better than anyone else? (They are certainly not the only people who could be more concerned with civility or its lack thereof: it is an issue for the rest of Canada).5 And, am I being uncivil by asking these questions? I have certainly had plenty of my own moments of being uncivil. So I will describe what I see as the problem of destructive and paralyzing conflicts that give rise to incivility and which undermine Indigenous citizenries, and then I will work to create a different story that draws on the intellectual resources and collaborative processes of Indigenous legal orders. I will also draw on Thomas King’s useful framework of “Dead Indians, Live Indians, and Legal Indians” (2012) as a way to think critically about Indigenous legal orders and the practice of Indigenous law. Finally, I will provide a discussion about two examples of Indigenous citizenry drawn from different local settings where people are engaging in and struggling with practices of freedom and citizenship through their work.

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n a m ing i nd ig en ou s i nci vi li ty There are numerous examples of brutal, get down, dragged out conflicts that are deeply entrenched in some Indigenous communities. The consequent demoralization and alienation are part of the everyday and form the ongoing experiences of too many good people at the local level. Recently for example, a friend for whom I have the greatest respect, and who served several years as the elected chief of his community, described his experience of being at the receiving end of appalling personal attacks from competing community factions. I know of other fine people who have had similar experiences, many of whom subsequently left their communities so their families could escape these kinds of highly charged and personally destructive attacks. These people are not perfect, but they are committed, knowledgeable, and hardworking, and they often have to remove themselves from direct local struggles as a matter of their own survival. I fully understand that Indian Act 6 chief and councils are an integral part of the Canadian colonial “civilizing apparatus” (Tully 2008b, 268) and too often they play an active role in undermining and distorting the continuing self-determination struggles in communities. I am not taking up the Indian Act problem7 here and arguably, that is not the entire cause of the incivility I want to address. In the case of my friend, he was simultaneously working through the Indigenous legal and kinship systems of his community as well as through the Indian Act regime. There are other examples of similar conflicts and personal attacks that are not generated directly by the Indian Act structure, but which nonetheless are negative and destructive. For example, I have worked in extremely volatile communities where unhelpful confrontations and incidences of violence were triggered by direct political actions concerning environmental protection and exploitation, child protection, and governance. There are also the widespread, but more covert and normalized forms of conflict and violence occurring along gender lines in Indigenous communities (just as in any other community). While also political, this interpersonal level of incivility tends to operate under the radar where it still contributes to the general undermining of overall Indigenous citizenries. In any event, it is too easy to disregard people, like my friend, by writing them off as being politically compromised and perpetuating the neocolonial machinery. This is too simple. Local Indigenous

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politics and realities are far more complex. Tully’s “types of civic activity” offers a constructive way to consider and evaluate local struggles and conflicts (2008b, 280). According to Tully, these types civic activities are: 1 2 3

4 5

those that are available to citizens under their existing systems of governance; those wherein citizens act “otherwise” from the dominant norms of civic conduct without challenging the official rules; those where citizens no longer act within dominant government relations and instead negotiate some aspects of the governing relationship; those wherein citizens directly confront the limits of dominant governing relations; those wherein people “create their own citizen relationships, act together, and exercise political power themselves” (ibid.).

My friend was acting within existing systems of governance and he was also acting otherwise by working to create a way to move beyond existing dominant government relations. Two points are important for my purposes here. First, people working within oppressive dominant systems are able and have the responsibility to respond ethically and in a way that refuses to continue the oppression (ibid., 305). I believe that this most accurately describes the way that my friend worked as a political activist within the constraints of the Indian Act framework. Those that opposed him did not challenge the Indian Act structure or the colonial relationship, but rather, unconstructively attacked him as a human being with innuendo, rumours, and slander. Secondly, we must ask, to what extent does engagement with a particular civic activity enable people to not just challenge, but actually change and push back the systems of oppression in their lives and worlds? Looking through this framework allows a broader analysis and critique of my friend’s experience, his actions, and his community’s actions. This framework is also useful for thinking about other political projects such as Idle No More, Indigenous rights litigation, treaty and self-government negotiations, economy rebuilding, various sector agreements, and so on. Both Indigenous and non-Indigenous peoples have difficulty talking about Indigenous incivility, so it ends up being off-limits. But how we treat one another on the ground does matter, especially if

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we understand citizenship to be “negotiated practices in which one becomes a citizen through participation” (ibid., 248). If there is no civility and it is a dogfight to get involved politically, who will engage in Indigenous political and legal resistances? I will also argue that practices of civility are legal obligations within the many Indigenous legal orders because they are a necessary feature and function of decentralized Indigenous legal orders. Without deliberately and explicitly observing the practices of civility, which includes both individual and collective agency, at the end of the day, Indigenous citizenries will continue to be hamstrung in their efforts to create meaningful change for their communities.

a f ram e wo r k f or i nd ig en ous legal orders Some story will come along and find these crows, and will use them. Cree Elder John Rains8

Some of the ways that Indigenous legal orders are defined and discussed are not helpful to the rebuilding of civility and citizenries. These approaches are either often too narrow or not accessible and therefore are not practically applicable to real people who are always flawed with messy, real-life problems. In his popular book, The Inconvenient Indian, Thomas King sets out a tongue-in-cheek, but nonetheless useful, framework of “Dead Indians, Live Indians, and Legal Indians.” “Dead Indians” comprises those Indians that fulfill the “stereotypes and clichés that North America has conjured up out of experience and out of its collective imaginings and fears” (2012, 53). What one sees of “Dead Indians” are “war bonnets, beaded shirts, fringed deerskin dresses, loincloths, headbands, feathered lances, tomahawks, moccasins, face paint, and bone chokers” (ibid., 54). There are lots of “Dead Indians” and according to King, “white” people are most comfortable with “Dead Indians” (ibid., 55) because they are “dignified, noble, silent, [and] suitably garbed” (ibid., 66). Authenticity features large with “Dead Indians,” especially since they are retrospectively located to ensure their validity and then magically brought forward to the present day without change or damage, but in a one-dimensional form. In contrast, “Live Indians” are “an intriguing, perplexing, and annoying part of life in the New World” (ibid., 59). The problem for the colonizers is that “Live Indians” did not die out as happily

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anticipated. Instead, they were relegated to invisibility on remote reserves and forgotten, or were subjected to colonial efforts to de-Indianize them in the now well-documented residential school tragedy.9 According to King, “North America has decided that Live Indians living today cannot be genuine Indians” (ibid., 64). “Live Indians” are “invisible, unruly, [and] disappointing. And breathing” (ibid., 66). Given this, “Live Indians” are simply an “unpleasant, contemporary surprise” (ibid.). However, “Live Indians” also dance at gatherings, drum, and perform ceremonies, just not for settler “entertainment” (ibid.). King describes “Legal Indians” as “more straightforward” (ibid., 68) in that they are legally recognized by Canadian and US governments. What this means in Canada is recognition under the very problematic Indian Act established under the authority of the Constitution Act, 1867.10 King does not refer to the Constitution Act, 198211 or to the extent to which this legal categorization by the state is colonially constitutive, or that becoming either “Dead” or “Live Indians” might be understood as a reasonable response to this overt colonial construction. So one can be a “Dead Indian” and a “Legal Indian.” Or one can be a “Live Indian” and a “Legal Indian.” However, one cannot be a “Live Indian” and a “Dead Indian.” But one can change from being a bone-choker-wearing “Dead Indian” to a “Live Indian,” as King himself admittedly did. Presumably, one can change from a “Live Indian” to a “Dead Indian,” but this is a less likely transformation because it would have to be experienced as a contradiction. So just how might King’s “Dead Indian” framework be analogized to Indigenous legal orders? “Dead” legal orders are those that are defined retrospectively in a way that fixes them in the past and focuses on a static and narrow concept of culture that meets with colonially inspired terms of authenticity and notions of uncorrupted purity. A “Dead” Indigenous legal order, if it exists at all given the powerful trope of lawless Indians, is often described as an object with rules rather than a deliberative, collaborative, and legitimate process. Here Indigenous people just behaved (or not) in their mindless adherence to the rules rather than contextually reasoning through problems with their intellectual resources. “Dead” legal orders are usually declared or described from an external rather than from an internal perspective, and it this internalized perspective that is necessary for the application of Indigenous law to the real problems communities

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must manage. “Dead” legal orders are described and recorded as artifacts and cultural practices rather than collaborative reasoned decision-making processes. As artifacts, “Dead” Indigenous legal orders are too fragile for robust, critical debate or are too incommensurable to be understood intersocietally – or even understood by Indigenous peoples who themselves do not meet the various requirements of authenticity respecting language, spirituality, and life experience. And usually, they are full of opaque dictates and conventions12 that are unquestionable because they are so sacred that they can be interpreted only by very special people. A “Dead” legal order is usually festooned with material artifacts and strangled by the imperatives of a full house of fundamentalists. Based entirely on a blind adherence to illusions of harmony and spirituality, “Dead” legal orders have no laws of force to deal with human vulnerabilities and violence. Canadian court decisions treat “Dead” legal orders as cultural practices, not as law, and they do not cause any discomfort for the Canadian state.13 In contrast, a “Live” legal order is troublesome, its employment is hard intellectual work, and it is about dealing with the messy mundane of universal collective human life. It involves individual and collective agency, precedent, collaborative and transparent reasoning processes, obligations and both substantive and procedural rights, interpretive theories, and critical legal theories. A “Live” legal order is reflective of internal and external political dynamics; it is not perfect, and it never lives up to its aspirations – not surprisingly, since no other legal order does either. A complete “Live” legal order includes laws of force to deal with the human violence and vulnerabilities that are an unavoidable part of any society, including Indigenous societies. A “Live” legal order lives in the everyday and changes as required to remain current, but in accordance with the integrity of its intellectual traditions. A “Live” legal order does not require state sanction or recognition, and it is one part of a healthy society and its governance.14 And finally, a “Live” legal order inclusively allows citizens to challenge both internal and external oppressions. I take the position that while not perfect, Indigenous legal orders had to have comprised many of these functions and characteristics because they were decentralized and nonstate, and managed well enough through time (Napoleon and Friedland 2014; Napoleon 2009b, 91). With no historic centralized authority, entrenched hierarchy, or separate delegated class of legal professionals, it was citizens organized

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in various ways that were responsible for the maintenance of their legal and political order. For example, in Cree society, there are four decision-making groups, depending on the type of decision required: the family, medicine people, elders, and the whole community (Friedland 2014). Arguably, this is an example of Tully’s “negotiated practices in which one becomes a citizen through participation” (2008b, 248) as a central requirement for a healthy, functioning legal order. Kirsten Rundle’s scholarship on the necessity of agency in the determination of not just the validity, but the very existence of law is an important conception in the renaissance of “Live” Indigenous legal orders (2012, 42). Rundle’s careful interrogation of Lon Fuller’s theories on law’s structure, morality, and human interaction offers critical tools that may be fruitfully employed in rebuilding Indigenous legal orders. For example, on the validity of Nazi law, Fuller wrote, “Law must represent some direction of human effort that we can understand and describe, and approve in principle even at the moment when it seems to us to miss its mark” (1958, 632).15 According to Rundle, “Properly understood, the form of law includes the legal subject’s capacity for agency within it,” as opposed to law simply acting upon the legal subject. Further, “[a]mong law’s defining attributes is how it mediates the way that power is experienced by those that are subject to it” (2012, 10). In short, Fuller’s enterprise of law centres on human beings as interpretive agents who are capable of purposive action, and who are deserving of dignity. According to Rundle, the legal processes themselves are constituted and enlivened by the ways in which agents participate within them; basically, human agency is essential to law’s efficacy and legitimacy (ibid.). This can only happen with “Live” legal orders. Rundle’s distillation of Fuller’s legal theory is in keeping with our findings drawn from our major Indigenous law research projects.16 The category of “Legal” (as per the Canadian state) legal orders does not work as well as King’s other two categories. Or maybe it is just not as much fun and it is harder to say. However, we can perhaps consider Indigenous communities who have negotiated arrangements with the state for the delivery of some legal programs as falling within the category of “Legal” legal orders. The limitation is that a lot of these programs are primarily about Canadian legal services and access to the Canadian legal system. Furthermore, when

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Indigenous law is included, it is often in the form of cultural remnants or consideration given to cultural values. Of course, there is an enormous range of other kinds of intergovernmental agreements, some of which refer to Indigenous law.17 Some Indigenous communities are working hard to ensure that their law is not reduced to window dressing, and in fact, inform real decisions regarding families, child protection, and crime. The extent to which any of these arrangements facilitate the real civic engagement of Indigenous citizens is an important standard by which Indigenous peoples can evaluate their “Legal” legal orders and “Live” legal orders in the present day. One issue that has arisen with the employment of King’s “Dead Indian” framework is that the first image that comes to many people’s minds is the male Indian, but this is not surprising given that the Indigenous male is the usual stand-in for Indigenous people in general. This serves as a reminder of the need for critical Indigenous feminist legal theory throughout the rebuilding and renaissance of Indigenous law so that Indigenous women’s safety or lack thereof is not simply attributed to their failure to take up their proper idealized (and always skirted) role in the “Dead Indian” fantasy.18

re b u il d in g in di ge no us legal orders To the Cree, stories are animate beings. One could tell a biography of a single Cree story (which would be a story in itself) just as one could tell the natural history of an animal. In this respect, one could ask, what do stories do when they are not being told? Do they live in villages? Some Cree say they do. Do they tell each other to each other? Some Cree say this is true as well. Certainly stories live out in the world, looking for episodes to add to themselves. Therefore, we can understand John Rains’s belief that eventually a story would find the torn crows. Later that story would find a Cree person, inhabit that person a while, and be told back out into the world again. A symbiotic relationship exists: If people nourish a story properly, it tells them useful things about life. Howard Norman, quoted in Schreiber (2011)

One of our national research projects was the Accessing Justice and Reconciliation Project (ajr Project), a collaboration between the University of Victoria Faculty of Law’s Indigenous Law Research Clinic,

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the Indigenous Bar Association, and the Truth and Reconciliation Commission of Canada (trc ).19 We partnered with seven Indigenous communities across six different legal orders: Mi’kmaq, Cree, Coast Salish, Tsilqot’in, northern Secwepmc, and Anishinabek. The overall vision for this work is to honour the internal strengths and resiliencies present in Indigenous societies and in their legal traditions. Our goal was to better recognize how Indigenous societies employed their own legal traditions to successfully deal with harms and conflicts between and within groups and to identify and articulate legal principles that could be accessed and applied by communities today. Our approach is to engage with Indigenous laws seriously as laws (see Napoleon and Friedland 2016b). Our methodology begins with a specific question about Indigenous law within a selected legal order. This question guides our researchers in their analysis of written stories and oral narratives (i.e., forms of legal precedent) with partner communities, using methods and the same rigour required to seriously engage with state laws in Canadian law schools. This includes employing an adapted case brief method to stories, oral histories, and available narratives to identify the legal principles within them. This work is presented to knowledgeable people and elders in our partner communities who in turn share their knowledge, opinions, and stories. These consultation processes enable our researchers to question, clarify, correct, add to, and enrich their initial understandings. This methodology articulates and restates specific bodies of law that are synthesized and organized into an analytical framework for accessibility, overall coherence, and ease of reference. The final community research reports contain information about each community’s legal order, again as framed by the research question, and set out the authoritative decision makers, procedures for responses, types of decisions and responses, legal obligations, substantive and procedural rights, and legal principles. Ideally, these resources will not exist only in the report, but will be deliberated and applied to contemporary issues through current institutions and processes, added to over time, and modified as necessary. Two big lessons stand out from this research, and they apply to the issue of rebuilding Indigenous civility and citizenry: (1) laws of force; and (2) the need to move beyond working for the recognition of Indigenous law to recovering and rebuilding Indigenous law. All human societies must be able to manage violence and vulnerability; this is the function of laws of force (Napoleon and Friedland

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2016a). This is simply part of the human condition and Indigenous peoples are no different. As with other legal orders, there are a range of responses – from compensation, healing, and reconciliation to the application of laws of force that include incapacitation (including legal killing or execution).20 I am not advocating capital punishment, but I am suggesting that at one time and in some rare cases, it was a valid legal response when individual or collective safety was threatened. One of the features of colonization in Canada, and elsewhere, has been the state’s monopolization of laws of force, and this raises serious questions that deserve more exploration. For example, a legal order without laws of force is incomplete, yet many contemporary Indigenous peoples describe their own legal orders as not having laws of force. What is the efficacy of incomplete Indigenous legal orders when Indigenous rules of force have been suppressed so that only state laws of force are enforced? How might this matter to the rebuilding of Indigenous citizenry and civility, and to self-determination? By not taking up this issue, are Indigenous peoples continuing to implicitly delegate their laws of force to the state? The second big lesson is about the necessity of rebuilding Indigenous legal orders (Friedland and Napoleon 2015). Gordon Christie (2012) once wisely cautioned against underestimating the damage wrought by colonialism on Indigenous legal orders. Through our research, we came to realize just how important his caution was. Basically, the ground of Indigenous law is uneven – Indigenous law exists, it has not gone anywhere – and we saw this, but there are also serious gaps where some Indigenous laws have been undermined, distorted, or lost. Given this, simply arguing for the recognition of Indigenous law is inadequate because we cannot just assume that there are complete and intact legal orders that can spring to life through recognition. This means that engagement with Indigenous law must move to thoughtful rebuilding, and this generates two questions: (1) What are the terms for this thoughtful rebuilding process with communities?; and (2) What are the intellectual processes in each Indigenous society that historically enabled people to deal with and account for change? Serious questions, but by no means insurmountable from what we have seen in Indigenous communities. We also learned that we had to incorporate two standards into all levels of our methodology. First, we have to cite what our sources for Indigenous law are – be they a story, a publication, an elder, or a discussion – so that others can go to that same source and develop

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their own legal interpretations.21 In this way, respectful debate can be fostered wherein Indigenous law will live through ongoing engagement with real life. Second, though closely related to the importance of citing law, we have to be transparent in our reasoning in order to resist fundamentalisms, unchallenged and unexplained declarations of truths, and as a way to invite contestation and deliberation. I will now turn to two local examples in order to problematize my discussion about civility and Indigenous law, and to locate the citizenship discussions of Tully and Taylor in a deeper exploration of some of the very complex struggles at the local level, where both questions and answers about civility or incivility and Indigenous law become murky, tenuous, and much more challenging. Through this, I maintain that the resources of Indigenous law are necessary to present-day understanding and conceptions of Indigenous citizenries, but this analysis must be contextualized within Indigenous legal perspectives and experiences. An Example of Engaging with Indigenous Law Communities of practice are not intrinsically positive; practices emerge that can undermine legality, just as they can support it. Brunnée and Toope (2010, 262)

Many Indigenous communities across Canada struggle with various types of debt such as loans incurred under the modern British Columbia treaty negotiation process, and more specifically, housing-related debt. The basic housing situation is that First Nations obtains loans from Aboriginal Affairs and Northern Development (aandc )22 and Canada Mortgage and Housing Corporation (cmhc ) in order to build houses on reserve. Each band member must repay the First Nation for the cost of building her or his house. As with a mortgage held by a bank, the First Nation holds the Certificate of Possession or interest in the house until the debt is paid. These individual housing loans are often called mortgages, but they are in fact, part of a larger loan owed by the First Nation to the lender. In 2004, I conducted an on-reserve property research project using four Indigenous community case studies to analyze housing practices and policies, land codes, debt, histories, similarities and differences, and lessons.23 For the purposes of this chapter, I will only focus on the issue of housing debt with two inland Tsimshian

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communities, Kitsumkalum and Kitselas, located across the Skeena River from one another in Northwest British Columbia.24 Kitsumkalum is located immediately to the west of the small non-Indigenous City of Terrace, and has over six hundred members in total. Only about two hundred members reside on reserve with the majority of the remaining population residing throughout bc.25 As in historic times, members from Kitsumkalum are closely connected to other Tsimshian communities and neighbouring Indigenous peoples (Gitksan, Nisga’a, Haida, Haisla, etc.) through marriage and trade.26 Kitselas has over seven hundred members of which over three hundred reside on four of seven small separate reserves. Part of the Kitselas reserve is located south of Terrace and a newer housing development area is located about sixteen kilometres to the east. Kitsumkalum and Kitselas were the two communities in the study that had the no housing debt. However, the communities’ responses to nonpayment by members are opposite to one another and this forced me to ask deeper questions about the future role of Tsimshian law in everyday community life. The Kitsumkalum interviews suggest that if a community’s historic kinship system is intact and people are able to directly act on their responsibilities to one another, then housing and the potential debt do not become major problems. The underlying philosophy that emerges from the Kitsumkalum interviews might be described as one which recognizes that each person is part of a relational network that creates a collective responsibility to intervene when one person gets into difficulty. The matrilineal kinship group of extended families, called a “House” in English, is the organizing institution through which people act on their historic legal obligations. The underlying philosophy is based on an understanding that everyone’s personal circumstances are not just the result of individual hard work and virtue, but rather that anyone can experience difficulties, financial or otherwise, at some point in their lives. Kitsumkalum is not without its own struggles and despite the extended kinship network of support, the Kitsumkalum First Nation has had to buy back two houses because of member nonpayment. However, it appears that when compared to some of the issues of other Indigenous communities, Kitsumkalum’s kinship network has real strengths with which to effectively confront contemporary problems such as housing. Kitsumkalum has refused to establish a

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land code under the federal First Nations Land Management Act (fnlma ),27 preferring instead to manage housing more informally and collectively. In direct contrast, Kitselas has opted for a Western-style approach to housing issues through the adoption of an fnlma land management code. Kitselas has a strict housing policy through which evictions of Kitselas members are enforced when they fail to make their housing payments. According to Kitselas representatives, since three members were evicted, everyone makes their payments.28 Certainly, there are people in Kitselas who act on their historic legal obligations to one another in housing and other areas of their lives, and this is exemplified by several decisions to provide housing for nonband members. If debt is the only measure of success, then both Kitsumkalum and Kitselas are very successful. So perhaps the question of debt is too simple a measure. Perhaps the question should be: to what extent do new Tsimshian laws and legal institutions either maintain or undermine the historic Tsimshian legal order with its historic laws and legal institutions? Here, it would be safe to say that Kitsumkalum is maintaining the historic Tsimshian legal order through its kinship responses to housing and debt. The next question is whether Kitselas’s housing policy is either maintaining or eroding the historic Tsimshian legal order and corresponding kinship obligations. However, it is not clear that such a judgment can easily be made since Kitselas, despite the vehement denial of Tsimshian law by some members of leadership, still appears to be taking responsibility for its members according to Tsimshian legal norms. What I propose is to examine the legal responses of Kitsumkalum and Kitselas to housing debt according to a (cursory) treatment of Tsimshian law, and I suggest that these responses reveal Tsimshian conceptions of citizenship. In brief, Tsimshian society comprises a decentralized matrilineal kinship system wherein Tsimshian people are born into their mother’s “House” within which there are reciprocal legal obligations. This is an exogamous system, so each person’s father’s “House” is a part of a different clan and it has separate responsibilities to each Tsimshian citizen. It is through this dense network of kinship ties that the Tsimshian legal order operates along with the historic economic and political orders. An individual Tsimshian person is a legal agent within his or her “House,” but then it is the “House” that is the legal agent for all external interactions

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with other “Houses” and with the larger networks of clans and alliances. “House” chief “names” are part of the “House”’s intellectual property and are the form through which “House” territories and other property are held in trust. The authority of a “House” chief depends of the fulfilment of the “House”’s legal and political obligations through the entire system. This decentralized society is maintained by a series of stabilizing tensions (Napoleon 2009b) between an absolute requirement to cooperate and a corresponding ethic of competition and autonomy – from the individual to the larger kinship levels. For example, a person’s “House” membership operates as a place holder rather than locking people in. The “House” chief’s authority and ability to fulfil larger legal obligations depends on the economic contributions and labour of each member, and the members can align themselves elsewhere in the system if they choose. Liability in this system is collective; a person is responsible to their “House,” but it is the “House” that is liable for that individual’s actions in the larger network. Furthermore, injuries caused by individuals are also collective, so if someone is injured, the “House” is considered injured and there is consequent collective liability and compensation. Admittedly, this is a gross simplification of a very complex society, but my intent is to convey the essence of how the kinship network operates throughout Tsimshian society. It is this complex of legal, economic, and political ordering that is the basis of Tsimshian citizenship – mutually constituting and fluid with Tsimshian citizens – as individual and collective agents, accountable to and responsible for the maintenance of the larger whole. No society is ever perfect, but Tsimshian society operated well enough for many thousands of years. Historic kinship ties cut across contemporary Indian Act-defined and geographically pinned communities, so a person’s “House” chief and fellow members could reside in other villages – as they did historically too. What is different here, as a result of the imposition of the Indian Act, is the extent to which people’s political consciousness has been reoriented and centralized to these fixed reserves and away from the larger political collectivity of Tsimshian society and the historic land base. However, all the case studies illustrated that there is a lot of Indigenous legal knowledge as well as legal processes contained in and operating through present day practices and social interactions at the community level – albeit with gaps.29 So what about the extent to which new Tsimshian law (as per the fnlma or

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through other governing arrangements with the state) and their contemporary governing institutions maintain or undermine the historic legal order in regard to legal decision-making, authorities, legal obligations, procedural and substantive rights, and outcomes? This is not to suggest that Tsimshian law cannot or should not change, but that change and adaptation be considered through Tsimshian practices of deliberation rather than just ignoring (and breaking) Tsimshian law which can only serve to further its erasure and destabilization. Returning to Kitselas, perhaps it is the nonpaying Kitselas members that are breaking Tsimshian law – and ideally, a determination of this question and responses to it require a Tsimshian legal reasoning process specific to this legal problem with enough substantive scope to allow argumentation. However, from an admittedly superficial perspective, according to Tsimshian law, nonpaying members would be responsible to their “House” group for creating a collective liability and the “House” would be responsible to the other “Houses” for the accumulation of community debt. What is missing from how Kitselas deals with housing, as opposed to Kitsumkalum, is this level of collective legal responsibility and obligation for individual failures. What has been adopted instead is a reserve-based and reserve-bounded housing policy that recognizes only the individual’s relationship, responsibility, and accountability to the contemporary centralized reserve collective. The other levels of kinship responsibilities are missing from this new form of fnlma governance. Nonetheless, Kitselas’s fnlma land code was adopted with the approval of the majority of Kitselas reserve members. The question becomes, to what extent were the larger legal and political consequences to the historic Tsimshian legal order considered? This question was deliberated to some degree in conversations about whether Tsimshian law was of any use in the present day and this was evident in my interviews. As mentioned, people in Kitselas do continue to fulfill and uphold many Tsimshian legal obligations to one another and this is visible in many social interactions and decisions. However, one wonders whether and how this will continue with newer generations if the fnlma is what is seen as explicitly legitimate and Tsimshian practices are relegated to the past and only evidenced in informal legal practices. In this small snapshot, it seems that Tsimshian citizenship has transformed, particularly in the case of Kitselas. Tully’s from-theground-up citizenship model, which resembled historic Tsimshian

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citizenship practices, has changed in Kitselas at a micro level to a top-down model. In returning to Taylor’s three requirements of democracy, it is arguable that the people of Kitselas still have a sense they can act together, but not through their former decentralized political and legal processes. They still have a repertoire of language and stories, but these are new stories about who they are and how they act. And, they still have a social imaginary that, at least for now, allows for conflict and civility practices that limit violence. Setting aside the issue of scale and the fracturing of the larger Tsimshian society and legal order into small inward-facing reserves, are these new practices of citizenship sustainable? Will people be able to maintain the historic normative commitments which enabled them to manage themselves as a civil society for centuries, continue to extend through new forms of legal and political institutions? An Example of Rebuilding Citizenry and Civility One of our partner communities is the Aseniwuche Winewak Nation (awn ).30 As with many other Indigenous communities, awn is a dynamic and strong group that remains closely tied to the land, has many Cree language speakers, and has maintained its Cree legal order to the fullest extent possible despite a forcible displacement of their community and the other typical colonization experiences. At the same time however, awn has its own troubling issues of violence and addictions. Recently, awn was asked to present on their legal traditions research at the Truth and Reconciliation Commission of Canada’s Education Day in Edmonton, ab . This was a featured part of the final national trc event held in March 2014 that targeted youth and educators. Well over three hundred youth attended from across Canada along with dozens of educators representing a range of education institutions. What resulted was an extraordinary citizenship journey for many of the awn community.31 Over a period of months, the awn Youth Council, community members, and drummers worked together to prepare an extensive presentation and to teach Cree legal traditions. This preparation included several workshops and many extensive community discussions about law, Cree law, responsibility, and reconciliation. Among other things, these discussions created spaces within which people could challenge Canadian stories of law in Canada: “We asked what made more sense, the awn Youth Council’s

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Cree ancestors having laws to solve problems and make decisions as a group prior to European contact, or their ancestors just sitting around lawless for thousands of years until the nwmp brought law with them in their magic pockets!” (Friedland and Borrows 2014). Over twenty awn youth and adults drove six hours through a blustery, snowy Alberta winter to present at the trc event. One of the presenters, Carol Wanyandi, the community coordinator for the ajr Project, shared her experience this way: “When she was talking with law students and translating for elders being interviewed, she realized that she had heard many of the stories often, since she was a small child, but had never thought about them being about, or containing ‘law’ or ‘legal principles.’ To her, it had always just seemed the way things were, part of life. As she talked and listened, she started to see the ‘law’ in the stories. The principles in them suddenly seemed to stick out so clearly. Once she started seeing the principles, she couldn’t stop seeing them. She realized, of course Cree people had always had laws and practiced law. It was right there in the stories. It just wasn’t talked about as ‘law’, but rather, as ‘a way of life’” (ibid., 12). awn members organized their presentation around five Cree legal principles taught through five pedagogical approaches: 1

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the principle of healing was taught through drumming and a song representing internal reconciliation by acknowledging pain and loss so one could move beyond that experience; the principle of taking responsibility was taught through the telling of a story representing agency, thinking, difference, inclusion and exclusion, social organization, and the importance of committing to the maintenance of healthy relationships; the principle of respectful relationships was taught linguistically through an analysis of Cree language, wah ko to win, matsiwin, and o to ta me to win – how we relate to one another and nonhuman life forms, responsibility to one another and to nonhuman life forms, and protocols as a method of engagement with each other and nonhuman life forms; the principle of creating safety was demonstrated through art and performance; the principle of education was told through a story about

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a personal journey that demonstrated surmounting horrific hardship by drawing on Cree principles of determination, self-knowledge, and self-respect. The awn journey is the stuff of what Tully calls situated or local practices of citizenship that can be publicized and networked with other local practices. In this case, awn networked with other Indigenous people (mainly youth) through a public sphere (Tully 2008b, 284, 300). I want to briefly focus on the principle of creating safety since it best demonstrates what Tully describes as the type of civic activity that “emerges when sovereign citizens turn aside from oppressive governance relationships in which they find themselves, create their own citizen relationships, act together and exercise political power themselves” (ibid., 280). The very teaching of the principle of creating safety is in itself a microcosm of civic activity as imagined by Tully. For example, what was demonstrated about safety was that: (1) we have to choose not to hurt others; (2) without safety, it is very difficult to act on the other Cree principles; (3) safety is a public issue and it is everyone’s responsibility; and (4) we need to be validated and we need to validate others. What can we learn from this? Legal principles in and of themselves do not solve the problems that awn and other Indigenous communities have. Rather, ordinary people and leadership have to be able to reason through legal principles to respond to human problems. Again, the legal resources have to be available, cognizable, accessible and practical, and afford enough scope to allow argumentation through processes that people recognize as legitimate and accountable. This is a true exercise of ground-up citizenship wherein people manage themselves individually and collectively as agents and with dignity.

c on cl us i on As mutual engagements deepen in a community of practice, it may be possible to enrich shared expectations to allow for more demanding substantive rules to be constructed. Brunnée and Toope (2010, 354) Law is not simply declared through formal processes. It is built in everyday interactions. It can also be destroyed in the same

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way. Formal law, be it in treaty, custom or even soft law plays an important role in providing fixed points for social engagement. If the hard work of law-building has been done, those fixed points will have emerged through inclusive processes of participation and may reflect shared understandings. Ibid., 355

This chapter contains three seemingly discordant parts: a discussion about Indigenous civility and incivility, and two case studies, one about responses to housing and debt, and the other about a deliberate citizenry rebuilding process. What ties them together is a concern about Indigenous incivility, and the essential role Indigenous law has in maintaining or, where necessary, rebuilding civility as people are engaging in the stuff of life and on-the-ground civic practices. Not acknowledging or accounting for Indigenous law is to perpetuate the colonial notion of lawless Indigenous peoples – and it is lawlessness and the undermining of Indigenous law that gives rise to the lack of collective accountability that generates incivility. The communities of Kitsumkalum and Kitselas are still engaged in the practice of Tsimshian law, and how they respond to the issues they face today will either enable them to thoughtfully rebuild Tsimshian law or bring them to the edge of Tsimshian law’s viability and continued existence. The community of awn is engaging in deliberate and explicit practices of Cree law, but local internal struggles make this extraordinarily difficult and exhausting. The deep context and dynamics of all three communities must be considered in larger discussions about Indigenous law and citizenship. At the same time, these local struggles must include a larger critical perspective of globalism in order to situate their internal experiences in the relentless forces of capitalism and neoliberalism. Today’s local Indigenous practices matter to the larger global struggles, and they require a complex analysis that accounts for Indigenous law and its application to the challenges of the everyday: community safety, housing, debt, and governance. The communities of Kitsumkalum, Kitselas, and awn engage in existing systems of governance, they act otherwise without challenging dominant government rules, they negotiate aspects of the governing relationship, and they confront the limits of dominant governing relations. In varying ways, they also “create their own

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citizen relationships, act together and exercise political power themselves” (Tully 2008b, 280), but as I have demonstrated here, this is not an easy task given the complexities of the issues and what these communities have to deal with. Nonetheless, when they are acting on historic legal obligations, this is an exercise of their political power. Again, serious engagement with Indigenous law must move to thoughtful rebuilding; therefore, what are the terms and what are the historic intellectual processes that enabled Indigenous societies to deal with and account for change? Grappling with these questions has brought me to a place of tension in this work, and I suggest that we must employ the legal processes in Indigenous legal orders in order to reason through these tensions and contradictions. Failure to do so will result in a loss of Indigenous legal resources which brings with it a slide into incivility at a time when Indigenous peoples need strong citizenries, critical thinking, and public intellectual lives. However, I also hate the laments over loss and so remind myself that we are more like Thomas King’s “Live Indians,” not the “Dead Indians.” Following Cree elder John Rains’s advice, my story has picked up the torn crows as a metaphor of civility and incivility. That story inhabits me for a while as a Cree person, and I am telling the story back out into the world again. The story I would like to nourish is about resilience, about how people continue to be Tsimshian and Cree today according to their own terms – warts, frailties, and all (except incivility). We can learn more useful things about life from this story than from a lament for loss (Schreiber 2011). no t e s 1 The literature on civility and incivility is wide ranging – from promoting civility on college and university campuses, to advocating civility in public life, and to arguing for the recognition of incivility as resistance. See for example Guinness (2008); Forni (2002); Guy Burgess and Heidi Burgess, “The Meaning of Civility,” Conflict Research Consortium, http://www. colorado.edu/conflict/civility.htm; Weeks (2011). 2 When incivility is talked about in some of the Indigenous discourse, it is often called “lateral violence.” See for example, Lateral Violence, dvd , Edmonton: Bear Paw Media Production, 2006. 3 See also Napoleon (2009a, 233). 4 It is very important not to conflate conflict with violence: see Edwards and Haslett (2011).

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5 For a brilliant discussion on non-Indigenous responsibilities in interpreting and fulfilling historic treaties in Canada, see Asch (2014). 6 Indian Act, rsc 1985, c. I-5. 7 I have taken this up elsewhere as have many others. See Napoleon (2005; 2001). 8 Comment to William Muakos and Howard Norman after pondering the sight of ten dead and mangled crows on the snow in the bush near God’s Lake, northern Manitoba (Schreiber 2011). 9 Truth and Reconciliation Commission of Canada, http://www.trc.ca/ websites/trcinstitution. 10 Constitution Act, 1867, (uk ), 30 & 31 Vict., c. 3, reprinted in rsc 1985, App. II, No. 5, formerly the British North America Act, 1867. 11 Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (uk ), 1982, c. 11. 12 My personal irritation is the required skirt for Indigenous women – only one of many unexamined dictates regarding women’s roles and bodies. For an important analysis of the limiting idealization of Indigenous women, see the important work of Snyder (2018). 13 They are, however, very uncomfortable for old feminist Indigenous women. 14 Kirsten Rundle (2012, 2) argues that law is a distinct form of governance. 15 But see Brunnée and Toope’s important discussion on torture (2010, 250). 16 I work with an amazing and hard-working team: Hadley Friedland, Renee McBeth, Emily Snyder, Lindsay Borrows, Hannah Askew, Lori Groft, and Rebecca Johnson. We have also had a crew of wonderful students and researchers: Estella Charlson, Al Hanna, Kris Statnyck, Meaghan Hough, Jessica Asch, Elizabeth Zarpa, Arron Mills, and Kerry Sloan. And, we have had brilliant supporters and advisers: Jeremy Webber, John Borrows, Gordon Christie, Doug White, Jim Tully, Paulette Regan, and Margaret Froh. 17 See for example, the Nisga’a Final Agreement Act, rsbc 1999 c. 2. and the Nisga’a Final Agreement Act, rsc 2000 c. 7. (Both of these are commonly referred to as the Nisga’a Treaty.) 18 For an important analysis of the limiting idealization of Indigenous women, see Snyder (2018). 19 See Indigenous Law Research Unit research, Accessing Justice and Reconciliation Project, http://indigenousbar.ca/indigenouslaw/. 20 For a discussion of Cree law analogous to criminal law, see the graphic narrative by Napoleon, Henshaw, Steacy, et al. (2013). See also Napoleon and Friedland (2014). 21 Providing Indigenous law citations as we suggest here is not the same as

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John Borrows’s important work on the sources of Indigenous law which he describes as natural, positive, deliberative, spiritual, and customary. See Borrows (2010, 23–58). aandc was formerly called Indian and Northern Affairs Canada (inac), and before that it was known as the Department of Indian Affairs and Northern Development (diand more commonly referred to as dia ). Many people still refer to inac or dia instead of aandc . These case studies were completed by Val Napoleon as the fieldwork portion of a research project for the former Law Commission of Canada. The Law Commission of Canada was dismantled by the Conservative government in 2006 at about the time this report was submitted. There are seven Tsimshian communities; the others are located along the north coast. The historic land base of the Tsimshian is one of the largest in bc . Kitsumkalum First Nation, “Traditional Use Study – Project End Report,” (2006, unpublished, archived at the Kitsumkalum Treaty Office, Kitsumkalum, bc ), 12. Laura Miller, interview by Val Napoleon (31 August 2004) at the Kitsumkalum Band Office, Kitsumkalum, bc . First Nations Land Management Act, sc 1999, c. 24. The fnlma uses “First Nation” instead of “Indian band,” the term used in the Indian Act, rsc 1985, c. I-5. Those First Nations that have not enacted matrimonial real property codes under the fnlma will now fall under the regime of the Family Homes on Reserves and Matrimonial Interests or Rights Act (sc 2013, c. 20). See Napoleon and Snyder (forthcoming). Wilfred McKenzie, interview by Val Napoleon (30 August 2004) at the Kitselas Band Office, Kitselas, bc , 5. Wilfred McKenzie explained that the Kitselas band housing debt reached about $100,000 during the late 1980s. Then the band evicted three people and the debt was drastically reduced. Since then a few people have still been slow to make payments, but eviction warnings are given by the housing committee and this resolves the problems. For a discussion on social practice as a source of law, see Napoleon, Cameron, Arcand, and Scott (2008, 348). Aseniwuche Winewak means people of the mountains. While identifying as Cree, awn represents a distinct group of people descended from the eastern Dunne’za, Sekani, and Shuswap, and the western Cree, Anishinabek, and Mohawk. See Aseniwuche Winewak Nation of Canada, http://www.aseniwuche.com. Leadership and facilitation was provided by Hadley Friedland, Jaeda Feddema, and Lindsay Borrows.

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r e f e re n ce s Altamirano-Jimenez, Isabel. 2013. Indigenous Encounters with Neoliberalism: Place, Women, and the Environment in Canada and Mexico. Vancouver: ubc Press. Asch, Michael. 2014. On Being Here to Stay: Treaties and Aboriginal Rights in Canada. Toronto: University of Toronto Press. Borrows, John. 2010. Canada’s Indigenous Constitution. Toronto: University of Toronto Press. – 2012. “Teaching Indigenous Legal Traditions.” Presentation, Our Way Conference, University of Saskatchewan, 23 March. Brunnée, Jutta, and Stephen Toope. 2010. Legitimacy and Legality in International Law: An Interactional Account. Cambridge: Cambridge University Press. Burgess, Guy, and Heidi Burgess. “The Meaning of Civility.” Conflict Research Consortium, http://www.colorado.edu/conflict/civility.htm Christie, Gordon. 2012. Guest Lecture, iba ajr Project Intensive Orientation at the Faculty Law, University of Victoria. Coulthard, Glen. 2014. Red Skin, White Masks: Rejecting the Colonial Politics of Recognition. Minneapolis: University of Minnesota Press. Dumont-Smith, Claudette. 2002. “Aboriginal Elder Abuse in Canada.” Aboriginal Healing Foundation, www.ahf.ca/downloads/ahfresearch elderabuse_eng.pdf Edwards, Alan, and Jennifer Haslett. 2011. “Violence Is Not Conflict: Why It Matters in Restorative Justice Practice.” Alberta Law Review 48 (4): 893–903. Forni, P.M. 2002. Choosing Civility: The Twenty-Five Rules of Considerate Conduct. New York, St Martin’s Press. Friedland, Hadley. 2014. “Cree Legal Traditions Report.” Accessing Justice and Reconciliation Project, http://indigenousbar.ca/ indigenouslaw/. – 2018. The Wetiko Legal Principles. Toronto: Toronto University Press. Friedland, Hadley, and Lindsay Borrows. 2014. Creating New Stories. Accessing Justice and Reconciliation Project, http://indigenousbar.ca/ indigenouslaw/. Friedland, Hadley, and Val Napoleon. 2015. “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions. Lakehead Law Journal 1 (1): 16–44. Fuller, Lon. 1958. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71 (4): 630–72.

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Green, Joyce, ed. 2007. Making Space for Indigenous Feminism. Winnipeg: Fernwood Publishing. Guinness, Os. 2008. The Case for Civility. New York: HarperCollins. Jobin, Shalene. 2014. “Cree Economic Relationships, Governance, and Critical Indigenous Political Economy in Resistance to Settler-Colonial Logics.” PhD dissertation, University of Alberta. King, Thomas. 2003. The Truth about Stories: A Native Narrative. Massey Lecture Series. Toronto: Anansi. – 2012. The Inconvenient Indian: A Curious Account of Native People in North America. Toronto: Anchor. McGillivray, Anne, and Brenda Comaske. 1999. Black Eyes All of the Time: Intimate Violence, Aboriginal Women, and the Justice System. Toronto: University of Toronto Press. Nader, Laura. 1991. Harmony Ideology: Justice and Control in a Zapotec Mountain Village. Redwood City, ca : Stanford University Press. Napoleon, Val. 2001. “Extinction by Number: Colonialism Made Easy.” Canadian Journal of Law and Society 16 (1): 113–45. – 2005. “Aboriginal Self Determination: Individual Self and Collective Selves.” Atlantis: A Women’s Studies Journal 29 (2): 31–46. – 2009a. “Indigenous Discourse: Gender, Identity, and Community.” In Indigenous Peoples and the Law, edited by Ben Richardson, Shin Imai, and Kent McNeil, 233–56. Portland, or : Hart Publishing. – 2009b. “Ayook: Gitksan Legal Order, Law, and Legal Theory.” PhD law dissertation, University of Victoria. Napoleon, Val, Angela Cameron, Colette Arcand, and Dahti Scott. 2008. “Where Is the Law in Restorative Justice?” In Aboriginal SelfGovernment, edited by Yale Belanger. 3rd ed. Saskatoon: Purich Press. Napoleon, Val, and Hadley Friedland. 2016a. “Indigenous Legal Traditions: Roots to Renaissance.” In The Oxford Handbook of Criminal Law, edited by Markus Dubber and Tatjana Hörnle, 225–47. Oxford: Oxford University Press. – 2016b. “An Inside Job: Engaging with Indigenous Legal Traditions through Stories.” McGill Law Journal 61 (4): 725–54. Napoleon, Val, Jim Henshaw, Ken Steacy, et al. 2013. Mikomosis and the Wetiko. Victoria: University of Victoria. Napoleon, Val, and Emily Snyder. 2020. “Housing on Reserve: Developing a Critical Indigenous Feminist Property Theory.” In Creating Indigenous Property: Power, Rights, and Relationships, edited by Angela Cameron, Sari Graben, and Val Napoleon, 41–93. Toronto: University of Toronto Press.

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Rundle, Kirsten. 2012. Forms Liberate: Reclaiming the Jurisprudence of Lon L. Fuller. Oxford: Hart Publishing. Schreiber, John. 2011. Old Lives in the Chilcotin Backcountry. Halfmoon Bay, bc : Caitlin Press. Smith, Andrea. 2005. Conquest: Sexual Violence and American Indian Genocide. Cambridge, ma : South End Press. Snyder, Emily. 2018. Gender, Power and Representations of Cree Law. Vancouver: ubc Press. Snyder, Emily, Val Napoleon, and John Borrows. 2015. “Gender and Violence: Drawing on Indigenous Legal Resources.” ubc Law Review 48 (2): 593–654. Tully, James. 2008a. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. – 2008b. Public Philosophy in a New Key. Volume II. Cambridge: Cambridge University Press. – 2014. “On Civic Freedom.” Keynote address. Civic Freedom in an Age of Diversity: James Tully’s Public Philosophy conference, April 2014, Montreal. Weeks, Kent M. 2011. In Search of Civility. New York: Morgan James Publishing.

12 Freedom, Self-Determination, and Indigenous Well-Being Michael Murphy

Questions of politics, according to James Tully’s public philosophy, are best approached as questions of freedom as opposed to questions of justice (2008a, 37–8). In this chapter, I want to explore the potential value of this self-conscious philosophical reorientation towards freedom before justice by taking up some aspects of Tully’s work on the struggles of Indigenous peoples for and of freedom. Specifically, I will investigate his intuition that political self-determination is a freedom that is vitally connected to the health and welfare of Indigenous individuals and communities, and conversely, that relationships of political domination and oppression are fundamentally destructive of Indigenous well-being. This intuition does not occupy a particularly prominent place in Tully’s work, and as such it has not attracted much discussion amongst his interlocutors. Yet despite its lack of prominence, this insight has enormous philosophical and practical significance, and as such it is deserving of a more thorough investigation. To help with this task, I will bring Tully’s work into conversation with research undertaken recently in the fields of social epidemiology and social psychology – research which helps us understand in a more general sense how a lived experience of freedom or unfreedom, stemming from inequality, can exert a powerful and enduring influence on mental and physical well-being.

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se lf -d et er mi nati on f r e ed om , an d well-bei ng Tully provides us with a very rich and sophisticated account of the concept of political self-determination, but here it will suffice to summarize a few of its most salient features. Self-determination, at the most general level, speaks to the freedom of peoples, both individually and collectively, to chart the course of their own futures in the absence of external interference, compulsion or domination. It is to be regarded as a basic and universal freedom to which Indigenous peoples, like all other peoples, are equally entitled (Tully 2001, 3). I would like to highlight two distinct senses of freedom that can be found in Tully’s discussion of Indigenous self-determination. In the first, and perhaps more obvious, sense, self-determination is about being free in our political lives. It is about people having the freedom to govern themselves via institutions that reflect their distinctive identities, languages, and traditions, and being free to make laws and policies that embody their own values and priorities. The precise institutional form assumed by this freedom in different cases or contexts is to be the subject of free, open, and mutually respectful dialogue amongst the Indigenous and non-Indigenous inhabitants of any given multinational state (Tully 2008a, 223–56). Within these negotiations, the parties are to engage in a process of mutual recognition of each other’s identities and status as free peoples, each with the equal right to govern their affairs in accordance with their distinctive histories, traditions, and cultures. The aim is to secure the agreement of all parties to constitutional terms of association that speak both to their self-governing authority and to the shared governance of their relationships of overlap and interdependence. Agreements, however, must always be regarded as provisional and therefore open to further challenge, contestation, and amendment. Only in this way can they preserve their free and democratic character and avoid becoming structures of domination that no longer serve the needs or command the consent of those who live under their terms (Tully 2001, 6; 2007, 22; 2008a, 145–8, 279–80). As Tully himself recognizes, self-determination in this sense is not yet a reality for most Indigenous peoples, who continue to struggle with and against state authorities to gain greater recognition of this most basic of political freedoms. This is where freedom in a second sense comes into play, for as I read Tully the very struggles

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of Indigenous peoples against external forms of domination and control are themselves partly constitutive of self-determination. Protests and occupations, unilateral assertions of jurisdiction over territory and modes of self-governance, defending Indigenous rights before the courts, seeking influence in international forums, taking up the mantle of word warriors – all are examples of what Tully calls practices of civic freedom. Their value lies partly in their instrumental role in helping to transform or overcome oppressive and unjust state-Indigenous governance relationships and to “civicize and democratize” those relationships “from below,” but also partly in their intrinsic character as assertions of freedom and agency in their own right. Indeed, it is partly through these assertions of free agency that the Indigenous participants express, and constitute, their identities as peoples, as citizens, and indeed as human beings (Tully 2008a, 3–4, 135–59, 257–88). As I will argue later in the chapter, both of these senses of freedom are essential to understanding the potential connection between self-determination and Indigenous health and well-being. Tully has devoted a great deal of time and effort to the task of defending Indigenous claims to self-determination, invoking key principles in the theory of democracy and nondomination. The force and eloquence of his arguments should be self-evident, and I will not seek to add to them here (see e.g., Tully 1995; 2008a; 2001).1 I want to focus instead on the connection he makes between self-determination and Indigenous well-being. He draws this connection via the relationship between freedom and selfrespect. According to Tully, a fundamental precondition of freedom and well-being in any society is that individuals enjoy a certain “threshold of self-respect,” a sense of their own value or worth as persons (Tully 1995, 189). A healthy sense of self-respect affords us a measure of self-confidence and self-assurance that underpins our capacity for effective agency in both our public and private lives. One of the key pillars of self-respect is that others acknowledge our humanity, and treat us with the appropriate dignity and regard owed to fellow beings. Self-respect is therefore easily undermined when we are treated by others as subordinates or inferiors, and subjected to various forms of denigration, humiliation, or dehumanization. How does self-determination figure into this equation? Tully argues that because our identities as individuals, our sense of who we are and what gives meaning and value to our lives, is

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partly constituted by the communities and cultures of which we are a part, and with which we closely identify, it is easy to see how an assault on the freedom and integrity of those communities and cultures can also become an assault on our sense of identity and our self-respect (Tully 1995, 190; 2008a, 242–3; cf. Margalit and Raz 1990, 448–9; Kymlicka 1995, 88–90; Weinstock 1998, 299).2 Colonialism constituted just such an assault on the communities and cultures of Indigenous peoples worldwide. The colonial phenomenon had important regional and country-specific variations, but in virtually every case Indigenous peoples were denied recognition and respect as free, equal, and self-governing peoples. Instead they were regarded as inferior and uncivilized, their languages and cultures were targeted for extinction, and their own forms of selfrule were supplanted by alien and imposed forms of governance and control. The harshest of these policies and assumptions have receded somewhat over time, but most Indigenous peoples continue to be denied the freedom of self-determination and their identities as free and equal peoples continue to be degraded or denied by the modern successors of the colonial states by whom they were originally subjected (see e.g., Murphy 2014a, 5). It is this ongoing relationship of domination and nonrecognition that is having such a corrosive effect on the freedom and self-respect of so many Indigenous individuals, and it is this deficit in freedom and self-respect that Tully identifies as the source of so many of the social ills that plague Indigenous communities worldwide. These “well-known pathologies of oppression, marginalization, and assimilation” include “alienation, transgenerational poverty, substance abuse, unemployment, the destruction of communities, high levels of suicide, and the like” (Tully 2002, 161; cf. Tully 1995, 190; 2000, 470; 2008a, 243). Of course, this still leaves us with a question: how exactly do these experiences of domination and disrespect that accompany the denial of self-determination “get under the skin” to influence physical and mental health outcomes amongst Indigenous peoples?3 This is a very complex question, both theoretically and empirically, and to date it has not attracted much attention amongst scholars. Generally speaking, systematic evidence-based studies of the political determinants of Indigenous health disparities are scarce commodities, and studies that look explicitly at the relationship between health and Indigenous self-determination are scarcer again. Fortunately, however, the relationship between freedom, status, and health has

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been the subject of significant interest in a number of parallel literatures. This is especially true in the field of social epidemiology, which focuses on the social determinants of health inequalities, and in the branch of social psychology known as self-determination theory.4 Granted, neither of these literatures engages directly with the question of health and Indigenous self-determination nor do they have much to say about the connection between health and collective freedom more generally, but the potential value of the insights they offer will become clearer in the final section of the paper when I bring them into conversation with Tully’s political philosophy of Indigenous freedom. Let me turn first to existing research on the social determinants of health inequalities. One of the primary conclusions to emerge from this literature is that disparities in physical and mental health outcomes are strongly correlated with social and economic status. Specifically, people who enjoy higher socioeconomic status generally have better health outcomes while people who enjoy lower socioeconomic status generally have poorer health outcomes (see e.g., Graham 2007). The most obvious explanation for this relationship is the simple fact of poverty and material deprivation, but an increasing number of researchers have come to the conclusion that absolute deprivation is not the only part of the story here, and that other factors are equally, if not more, responsible for these health differentials. Two such factors are of particular relevance to the present discussion. The first is autonomy. According to Michael Marmot, one of the leading thinkers in this field: “for people above a threshold of material well-being, another kind of well-being is central. Autonomy – how much control you have over your life – and the opportunities you have for full social engagement and participation are crucial for health, well-being, and longevity. It is inequality in these that plays a big part in producing the social gradient in health” (Marmot 2004, 2). More precisely, it is the psychological experience of control or a lack of control that has such important consequences for health and well-being: people with greater perceived control over their lives tend to be healthier, while those with lower perceived control tend to be less healthy (ibid., 7). A second, and closely related, factor is the psychological impact of our relative position in the social hierarchy. This factor is at the core of Richard Wilkinson’s work. As he explains: “Social status is linked to health not simply through the direct physical effects of exposure to better or worse

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material conditions. It is also a matter of position in the social hierarchy, people’s experience of superior and dominant status versus inferior and subordinate status, coupled with processes of stigmatization and exclusion of those nearer the bottom of the hierarchy” (2006, 341). For both Marmot and Wilkinson, then, it is not inequality per se that has the greatest impact on health, it is rather the experience of unfreedom and social subordination produced by inequality that is most corrosive of physical and mental well-being. Furthermore, these factors should be regarded as mutually reinforcing, in that a lack of autonomy can aggravate the experience of inferior social status, and in turn the experience of social subordination can contribute to a sense of powerlessness and unfreedom. Additionally, both of these factors have been linked to reduced self-esteem, which is damaging enough in itself, but as we will come to see below this damage is compounded by the role it plays in the production of chronic stress. A lack of autonomy and the experience of subordinate social status have been linked to negative health outcomes in at least two different ways: first of all through the production of stress, and second of all through stress-induced coping behaviours such as smoking, alcohol consumption, poor diet, and physical inactivity. The role played by this second set of factors should be self-explanatory, so let me focus instead on the impact of stress. Stress most commonly brings to mind the idea of being time pressured and overburdened, but those who study the health effects of stress are quick to point out that it is in fact associated with a wide variety of experiences and mental states. These include feelings like anger, frustration, and exasperation, but also the experience of shame, humiliation, subordination, injustice, low self-esteem, and a sense of hopelessness, powerlessness, and despair. A certain amount of stress in life is considered normal and healthy. The danger comes in the form of “[s]ustained, chronic and long term stress” (Marmot 2004, 109; Marmot and Bobak 2000, 133). Chronic stress, and its associated chemical aftereffects, is thought to contribute to ill-health by interfering with key bodily systems relating to growth, digestion, reproduction, tissue maintenance and repair, and immunity, which over time leave us more susceptible to sickness and disease (Marmot 2004, 114–18; Brunner and Marmot 2006; Wilkinson 2006, 343; Hertzman and Siddiqi 2009, 43). Health conditions linked to chronic stress include increased incidence of cardiovascular disease, metabolic disorders

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(including diabetes), death or injury resulting from accidents and violence, and depression (a trigger for suicide) – some of the very same afflictions that are amongst the leading causes of morbidity and mortality in Indigenous communities worldwide (Rose 2000, 1429–32; Hertzman et al. 2002; Marmot 2003, 575; 2004, 6, 24; 2005, 1,100–2; Theorell 2004; Wilkinson 2005, 57–167; 2009, 63–102). The relationship between autonomy, sociality, and health has also been at the centre of self-determination theory – an empirically derived account of human psychological development and well-being pioneered by Richard Ryan and Edward Deci. Self-determination theory identifies three basic psychological needs that are universally and cross-culturally essential to good psychological health (Ryan and Deci 2002; Ryan and Sapp 2007; Deci and Ryan 2012a). First and most fundamental is the need for autonomy. Autonomy has a particular meaning for Ryan and Deci. To live autonomously is to live a life that is self-endorsed, a life that accords with one’s own considered values, preferences, and interests. To be autonomous in this sense is to be self-governing, which comes with the experience of being the regulator or controller of one’s own life. The opposite of autonomy is what they refer to as “heteronomy”: the feeling that one’s life is being influenced, restricted, controlled, or dictated by forces that one does not freely or genuinely endorse. Autonomy in this sense is not synonymous with absolute independence, limitless freedom, or the absence of any form of influence, regulation, or constraint on our choices or actions. Quite the contrary, autonomy is entirely compatible with actions taken out of a sense of duty or loyalty, actions taken in accordance with certain rules, laws, or conventions, or actions taken in response to various pressures or inducements. It is even compatible with choosing not to make choices or granting others the authority to make decisions on one’s behalf. What matters in all of these cases is that the decisions are freely endorsed and recognized, by us, as legitimate – which is to say – consistent with our most basic values and commitments (Deci and Ryan 2004, 452–3; Ryan and Deci 2008, 667; Ryan and Sapp 2007, 75–6, 83). In addition to autonomy, two other basic needs are identified. The second of these, relatedness, speaks to the value of social connectedness – our need to feel a sense of belonging and importance to other individuals and to the larger social order or social grouping of which

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we are a part (Ryan and Sapp 2007, 76; Deci and Ryan 2012a, 421). The third basic need is for competence, which “refers to feeling effective in one’s ongoing interactions with the social environment and experiencing opportunities to exercise and express one’s capacities” (Ryan and Deci 2002, 7). Competence does not refer to the actualization or attainment of any given skill or technique, but instead to our basic need to feel a sense of efficacy or mastery as we navigate our social environments and pursue our desired ends in life (ibid.). In terms of ranking, Ryan and Deci state unequivocally that autonomy is the most fundamental basic need, but they are adamant that competence and relatedness are also essential to healthy psychological development and well-being. In summary: “As all three are considered basic psychological needs, the neglect or thwarting of any is expected to lead to impoverished functioning and ill-being” (Ryan and Deci 2011, 48; Ryan and Sapp 2007, 91). The three basic needs are, in fact, mutually interdependent. For example, a feeling of relatedness or social belonging affords us a greater sense of confidence and security as we explore our surrounding environments and satisfy our basic needs for competence and autonomy. In turn our basic need for belonging itself must be realized autonomously, through a process of freely adopting and internalizing the sociocultural values, practices and regulations of the groups we connect with, and in this way truly making them our own (Ryan and Sapp 2007, 73, 79; Ryan and Deci 2011, 51–2; Ryan, Curran and Deci 2013, 62). This is just one example, but it provides a clear illustration of how the basic needs are not only mutually interrelated, but also mutually supportive. The basic hypotheses of self-determination theory have been the subject of extensive empirical testing in a wide range of different social milieu, including educational and workplace environments, health and elder care settings, and in the domain of intrafamilial relations. The results consistently point in the same direction: in contexts where people’s basic needs for autonomy, competence, and relatedness are satisfied they tend to lead healthier and more fulfilling lives, and in contexts where their basic needs are frustrated or undermined, poorer mental health outcomes can generally be expected. This includes a greater tendency towards depression, anxiety, reduced self-esteem, feelings of hopelessness and passivity, alienation, and social dysfunction (Kasser and Ryan 1999; Deci et al. 2001; Helwig and McNeil 2011; Ryan and Deci 2011, 48–9).

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To recap briefly, there are several important messages to be gleaned from these two research programs. First and foremost, when people lack autonomy – when rather than feeling in control of their own lives people instead feel that they are being controlled, dominated, or restricted by others or by their social, economic, or political circumstances – their mental and physical health tends to suffer, and for those who feel the least autonomous, the outcomes are generally the worst (Marmot 2007, 1,155–6; Ryan and Deci 2011, 59; Deci and Ryan 2012b, 85, 100–1). Second, autonomy in both of these research programs has a decidedly relational flavour. It is meant to convey, not the idea of atomized, socially disconnected individuals who rely upon and take an interest in no one other than themselves, but rather individuals whose freedom and well-being is partly realized through, and supported by, the relationships and connections they enjoy with other individuals and the broader communities or social groupings to which they belong.5 Third, to understand the relationship between autonomy and health, it is important to appreciate the significance of autonomy not only as a capacity or capability, but also as an experience or a feeling: what I have referred to as the lived experience of freedom and its opposite, the lived experience of unfreedom. A fourth and final message is that autonomy is closely connected with questions of social status (and self-esteem), and both are recognized as basic prerequisites for good physical and mental health (Marmot 2003, 574; cf. Ryan and Deci 2008, 665). Indeed, research indicates that limitations on autonomy that simultaneously “reflect our subordination to others” are amongst the most acute source of health-compromising stress (Wilkinson 2006, 342; Wilkinson and Pickett 2009, 37–9). These are valuable insights, but an obvious objection is that they are insights about individuals. What can they teach us about the potential link between health and self-determination – a communal freedom?6 This is where I bring Tully back into the conversation, because his work helps us understand how individual experiences of unfreedom and subordination are related to the denial of freedom and respect at the communal level. Recalling the discussion at the outset of the chapter, colonization deprived Indigenous peoples of many of their most basic communal freedoms. This included the freedom to constitute themselves as distinct political societies, to design and build institutions of collective decision-making that reflect their own languages, cultures, and conceptions of political legitimacy, and

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to govern themselves within and through those institutions in the absence of external interference or domination. This loss of communal freedom necessarily entailed a further loss for community members of some of their most fundamental individual political freedoms. For no longer are they free to participate (as leaders or as citizens) in the political lives of their communities on terms they can freely and genuinely endorse. No longer are they free to hold their governments accountable for their decisions (either because those governments have been pushed aside, or because they are now accountable primarily to the colonial state). And no longer can they enjoy an effective voice in decisions affecting the survival of their languages and cultures, the stewardship of their lands and resources, the development of their social, economic, and educational institutions, or the governance of their ongoing relationships with the other freely self-determining peoples with whom they co-exist (Tully 1995, 116–39, 192; 2008a, 161–2, 223–88). With the loss of self-determination, Indigenous peoples will almost certainly experience the terms under which they are governed not autonomously but, as Ryan and Deci might describe it, heteronomously: that is, as alien and illegitimate and as largely inconsistent with their own considered values and preferences (Tully 2002, 158; cf. Ryan and Deci 2008, 658). They will rightly feel that as communities and as individuals they are not in control of their own political destiny but are instead subject to control and domination by the non-Indigenous societies that surround them. The concrete denial of self-determination in practice also brings with it the symbolic experience of subordination and disrespect. It represents a clear failure to recognize Indigenous peoples as peoples who are entitled to the same status and dignity as their non-Indigenous counterparts. As I indicated at the outset of the chapter, this failure of recognition has all too frequently gone hand in hand with the characterization of Indigenous peoples as inferior, uncivilized, and incapable of governing their own affairs, attitudes that are by no means a dead letter in contemporary debates over Indigenous rights and governance. A lack of recognition, or the granting of recognition in a distorted or demeaning form can easily incite feelings of anger, resentment, and frustration, as Indigenous peoples themselves have frequently attested (see e.g., Richardson 1989). It can also be a powerful source of insult or humiliation, which is harmful in its own right, but as Tully reminds us this harm is compounded by its corrosive effect

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on the sense of self-assurance, self-confidence, and self-respect that underpins our capacity for effective agency (Tully 1995, 189–92; 2008a, 254–5). All of these feelings, as we have learned from the epidemiological literature, are triggers for stress, and as Richard Wilkinson has emphasized, the particular experience of humiliation or subordination in combination with a loss of freedom or control is an especially destructive source of unhealthy stress. The denial of self-determination may also have significant implications in relation to the basic needs of Indigenous individuals for competence and relatedness. Indigenous communities that lack jurisdiction over their territories and economies, and which have little or no control over things like education, language, and culture will likely have much greater difficulty supporting their distinctive forms of life and transmitting them to future generations. They may also struggle to preserve the integrity of their lands, resources, and natural environments in the face of predatory extraction and economic development activities driven by the interests of outsiders. Indeed, they may even find it difficult to ensure their very survival as cohesive and viable communities over time. This in turn threatens the basic need of their members for a sense of belonging to their own particular community with its distinctive history, territory, language, and culture. It may also jeopardize, or possibly even eliminate, the opportunities available to their members to experience a sense of competence in relation to a particular set of activities or practices that have become a meaningful and essential part of their lives. This could include intellectual or artistic practices specific to their language and culture, the pursuit of traditional communal harvesting activities, or even the simple act of exercising skills for being out on the land and ensuring one’s survival. The significance of these culturally specific basic needs should not be underestimated. Indeed, recent research has identified both a sense of communal belonging and the ability to engage in traditional cultural practices as key contributors to mental health and well-being amongst Indigenous peoples, and as protective factors that increase individual resilience against the onset of severe mental health problems, including the scourge of suicide.7 Briefly, then, Tully shows us how self-determination is vitally connected to each of the fundamental psychosocial foundations of good physical and mental health identified by Marmot, Wilkinson, Ryan, Deci, and their colleagues. Read together, these two very different bodies of research – Tully’s political philosophy of

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self-determination and investigations into the psychosocial determinants of human health – open up a window of understanding into how the ongoing failure of states to recognize and respect Indigenous self-determination might be contributing both to the poor state of physical and mental health experienced by so many Indigenous communities in Canada and around the world, and to the significant health disparities which exist between Indigenous peoples and the more freely self-determining non-Indigenous peoples with whom they share a political space.8 Two caveats are in order here. First, I am well aware that there are no easy explanations for the ongoing challenges in Indigenous health. To begin with, it is almost certainly the case that there are multiple causal factors contributing to poor Indigenous health outcomes (see e.g., Waldram et al. 2006, 273; Hertzman and Siddiqi 2009, 33). Potential examples include socioeconomic deprivation, rapid social change, environmental contamination, overcrowded and substandard housing, a past history of abuse, and the experience of racism. Which of these factors is most relevant in any given case? What is their relative weighting? What is the relationship between them? Will their impact be immediately felt or will it take years, even decades, to manifest itself?9 These are difficult questions to answer, a difficulty that is compounded by a global shortage of reliable data on Indigenous health indicators (Mowbray 2007). The second caveat is that the relationship between self-determination and Indigenous health is itself very complex, and I have only begun to scratch the surface of that relationship here. To begin with, I have not said anything about the potential instrumental connection between self-determination and improved health outcomes – for example, the possibility that Indigenous control over the design and delivery of their own health care services might lead to improvements in the relevance, efficiency, and efficacy of those services.10 Nor have I considered the vitally important issue of what Indigenous governments will choose to do, or will be capable of doing, if and when self-determination becomes a reality. Will they choose a traditional or nontraditional form of government, and how will this affect their efficacy and their perceived legitimacy amongst community members (see e.g., Ladner 2009)? Will these governments respect the freedom of their own members or will they seek to impose limits on their freedom? Will they have the capacity to govern effectively, or will they lack the resources

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to improve the lives and opportunities of their members? Clear answers to these, and many other, questions will be essential as we seek to increase our understanding of the relationship between collective self-determination and the freedom and self-respect of the individual members of self-determining Indigenous communities. Taken together, these two caveats suggest the need for a healthy degree of caution as we draw our conclusions. The claim that self-determination is the only, or even the single most important, determinant of Indigenous health is therefore simply unwarranted. At the same time, however, it would be surprising if self-determination turned out to be entirely irrelevant to Indigenous health.11 To borrow a line from Victoria Burbank’s discussion of the Australian case: “It cannot be insignificant that the illnesses associated with an overactive stress system are more or less the same ones that have laid so many Indigenous people so low” (2011, 5).12 The same might be said about the illnesses associated with the frustration of people’s basic needs for autonomy, relatedness, and competence. Ultimately, the task of drawing more definitive conclusions about the relationship between self-determination and Indigenous health belongs in the domain of systematic, multigenerational, and theoretically informed empirical research. As we know already, research of this sort is in rather short supply, but there some notable exceptions. In the remainder of the chapter I will discuss two such examples, both drawn from the domain of Indigenous mental health research.13 The first example is a recent study of the relationship between communal autonomy and the mental health of youth in two Manitoba First Nations communities. In the study, the authors established a correlation between greater perceived community control (defined as the sense that one’s community has the opportunity to control valued outcomes) and higher levels of individual psychological well-being amongst youth community members.14 The feeling that the community is in control of its own affairs seemed to enhance well-being both independently and through its contribution to an increased sense of individual control amongst youth in the communities (Tiessen et al. 2009, 263–4). The authors offer an explanation of their findings that is firmly in line both with the thinking of Tully, and with the social epidemiological research linking autonomy and social status with self-esteem and positive mental health outcomes: “[A] sense of group control may provide a template for individual control. Thus, the positive effects of group control may occur

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through youth seeing that their community is not completely dependent on others and can become self-sufficient. This background of perceived collective control may then lead youth to feel an increased sense of personal control. Consequently, they will have the opportunity to develop an increased sense of self (and collective) esteem, as they can see themselves as part of an effective, valued group, instead of a powerless, dependent group that is marginalized, ignored, exploited, or otherwise devalued” (ibid., 264). These findings closely parallel the evidence gathered by Michael Chandler and Christopher Lalonde on suicide amongst Indigenous peoples in British Columbia. Chandler and Lalonde found that Indigenous communities which have secured a substantial degree of self-government and local control over community services, and which are actively engaged in the defence of their territorial rights and the revitalization of their traditional cultures experience low to nonexistent rates of youth suicide, whereas communities which have achieved little progress in these areas experience dramatically elevated levels of youth suicide (Chandler and Lalonde 1998). Here too what we may be witnessing is that Indigenous youth in communities which have taken greater command over their own destinies, and are progressively liberating themselves from external forms of domination and control, experience both an increased sense of individual autonomy (a sense that they themselves, not outsiders, are the authors and controllers of their own lives), and a stronger sense of identification with and belonging to their cultural group than youth living in communities where self-determination and cultural revitalization are distant realities – and that both of these experiences, in turn, are contributing to improved mental health and lower levels of suicide. It may also be the case that youth in these more autonomous communities derive a mental health benefit from the greater opportunities available to them to experience a sense of competence in traditional cultural practices, which is valuable in its own right but may also enhance their sense that they are active and valued members of their communities (see e.g., Wexler et al. 2014, 14–15). Another, equally intriguing, finding that has emerged from this research program is that “there is now a significant relation between lower youth suicide rates and actually having withdrawn in protest from British Columbia’s treaty process” (Chandler and Lalonde 2004, 121). Chandler and Lalonde offer no explanation for this correlation which, they seem to suggest, does not fully cohere with

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the results of their previous research. However, if we adopt Tully’s perspective, we can see the act of walking away from a treaty negotiations process that offers no meaningful prospect of progress on questions of land and self-determination as itself an exercise in self-determination – an assertion of one’s freedom to maneuver within, and to actively oppose, an unjust structure of political domination. By the same token, this action can be read as an assertion of one’s dignity, and a rejection of the subordinate status to which one has been relegated in such an unjust process. Self-determination theory offers us a similar perspective on this evidence. As Ryan and Deci might put it, what is going on here is that the communities in question are simply refusing to “swallow the rules” and are instead exercising their autonomy by exiting a process within which they feel controlled or manipulated, and where the agenda (and possible outcomes) are largely determined by others.15 For the members of these communities, this exercise of freedom in protest may yield a sense of empowerment, a strengthening of the bonds of community and solidarity, and perhaps also a greater sense of self-esteem and pride as a consequence of their refusal to be dominated by, and dictated to, by others.16 From this perspective then, it is possible to see why a relationship between treaty protest and suicide reduction might not be so counterintuitive after all.17

c on cl us i on To return to my original question, what is the value of reorienting our investigation of Indigenous self-determination toward questions of freedom before questions of justice?18 The answer that I have been driving towards in this chapter is that it enables us to see that self-determination is both a fundamental component of a rich and fulfilling human life, and an ingredient that is essential to human health and well-being. To be deprived of the freedom of self-determination is thus to be dehumanized, both symbolically and substantively. Symbolically in that it signals a loss of dignity and respect, and substantively in that it leads to a loss in quality of life, and in the worst cases to a loss of life itself. Indigenous peoples around the world have endured a long history of dehumanization, a history that has heavily impacted the well-being of communities and individuals alike – and yet their struggles for and of self-

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determination continue unabated. James Tully has taken up these struggles with great insight, compassion, and also hope, and this body of work will undoubtedly stand as one of his most valuable and enduring contributions to the theory and practice of diversity accommodation both in Canada and internationally. n ot e s 1 I have tried to elsewhere in Murphy (2001, 2004, 2014a) and Harty and Murphy (2005). 2 Here Tully echoes the work of Charles Taylor, who argues: “Nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being” (1994, 25). Recognition is thus regarded as “not just a courtesy we owe people … but [as] a vital human need” (ibid., 26). 3 This turn of phrase belongs to Taylor et al. (1997). 4 Parts of the following discussion of these literatures draws on Murphy (2014b, 36–7). 5 On the concept of relational autonomy see Nedelsky (1989). For an application of this concept to the self-determination of peoples see Young (2000, 258–65), and for a more specific application to the case of Indigenous peoples see Napoleon (2005) and Murphy (2005, 2008). 6 A communal freedom is a freedom whose nature requires that it be sought in common. This concept is parasitic on Charles Taylor’s notion of a communal good (1994, 59; cf. Waldron 1987). 7 For a review of this research see MacDonald et al. (2013). 8 Accounts of these disparities can be found in Marmot (2005, 1,100–2); Stephens et al. (2006); Anderson (2006); Hunter and Harvey (2002); and Ohenjo et al. (2006). 9 On this latter point see Hertzman and Siddiqi (2009, 35–7). 10 I mention this connection, and some of the literature in which it is discussed in Murphy (2014b, 36). 11 A similar conclusion was reached nearly two decades ago by the Canadian Royal Commission on Aboriginal Peoples (Canada 1995, 218). 12 Burbank does not explicitly invoke the connection between selfdetermination and Indigenous health. 13 I have also reviewed this evidence in Murphy (2014a, 2014b). 14 Tiessen et al. do not explicitly link the concept of communal control to the idea of collective self-determination, but it is clear from the context of

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their discussion that this is at least one of the aspects of community control that they have in mind (see, for instance, 2009, 244). As Ryan and Deci put it: “People who are ‘unfree,’ who either feel pressured or compelled to act against their interests and values or have ‘merely swallowed’ the rules of the societies around them, are less well both individually and socially” (2004, 451, emphasis added). For others who make a link between Indigenous protest or activism, or both, and improved health outcomes see Wexler (2006, 2,946–7); Alfred (2009, 57), and Kirmayer et al. (2009, 458–9). Once again it is vital to flag the speculative nature of this observation, and to reiterate that any conclusions regarding the relationship between self-determination and suicide must ultimately stand the test of direct empirical investigation. Tully’s point is not that questions of justice are now irrelevant to the study of politics, including Indigenous politics, but only that any determinations as to the justice or injustice of relationships of governance must always be regarded as provisional, and open to further challenge and contestation by those who are subject to their terms.

r e f e re n ce s Alfred, Taiaiake. 2009. “Colonialism and State Dependency.” Journal of Aboriginal Health 5 (2): 42–60. Anderson, I., et al. 2006. “Indigenous Health in Australia, New Zealand, and the Pacific.” Lancet 367: 1775–85. Boyer, Yvonne. 2006. “Self Determination as a Social Determinant of Health.” Report prepared for The Aboriginal Working Group of the Canadian Reference Group reporting to the WHO Commission on Social Determinants of Health, hosted by the National Collaborating Centre for Aboriginal Health, Vancouver, British Columbia. Brunner, Eric, and Michael Marmot. 2006. “Social Organization, Stress, and Health.” In Social Determinants of Health, edited by Michael Marmot and Richard G. Wilkinson, 6–30. 2nd edition. New York: Oxford University Press. Burbank, Victoria. 2011. An Ethnography of Stress: the Social Determinants of Health in Aboriginal Australia. New York: Palgrave MacMillan. Canada, Royal Commission on Aboriginal Peoples (rcap ). 1995. Final Report: Gathering Strength. Volume 3. Ottawa, Canada Communications Group.

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Chandler, Michael J., and Christopher E. Lalonde. 1998. “Cultural Continuity as a Hedge against Suicide in Canada’s First Nations.” Transcultural Psychiatry 35 (2): 191–219. – 2004. “Transferring Whose Knowledge? Exchanging Whose Best Practices? On Knowing about Indigenous Knowledge and Aboriginal Suicide.” Aboriginal Policy Research: Setting the Agenda for Change, edited by Jerry P. White, Paul Maxim, and Dan Beavon, 111–23. Volume II. Toronto: Thompson Educational Publishing. Deci, Edward L., and R.M. Ryan. 2012a. “Self-Determination Theory.” In Handbook of Theories of Social Psychology, edited by P.A.M. Van Lange, A.W. Kruglanski, and E.T. Higgins, 416–36. Volume 1. Thousand Oaks, ca : Sage. – 2012b. “Motivation, Personality, and Development Within Embedded Social Contexts: An Overview of Self-Determination Theory.” In Oxford Handbook of Human Motivation, edited by R.M. Ryan, 85–107. Oxford: Oxford University Press. Deci, Edward L., Richard M. Ryan, Marylène Gagné, Dean R. Leone, Julian Usunov, and Boyanka P. Kornazheva. 2001. “Need Satisfaction, Motivation, and Well-Being in the Work Organizations of a Former Eastern Bloc Country: A Cross-Cultural Study of SelfDetermination.” Personal and Social Psychology Bulletin 27 (8): 930–42. Eisenberger, N.I., M.D. Lieberman, and K.D. Williams. 2003. “Does Rejection Hurt? An fmri Study of Social Exclusion.” Science 302 (5643): 290–2. Graham, Hilary. 2007. Unequal Lives: Health and Socio-Economic Inequalities. Maidenhead and New York: Open University Press/ McGraw-Hill. Harty, Siobhan, and Michael Murphy. 2005. In Defence of Multinational Citizenship, Cardiff: University of Wales Press. Helwig, Charles C., and Justin McNeil. 2011. “The Development of Conceptions of Autonomy, Rights, and Democracy, and Their Relation to Psychological Well-Being.” In Human Autonomy in Cross-Cultural Context: Perspectives on the Psychology of Agency, Freedom, and WellBeing, edited by V.I. Chirkov, R.M. Ryan, and K.M. Sheldon, 241–56. Dordrecht: Springer. Hertzman, Clyde. 2000. “The Life-Course Contribution to Ethnic Disparities in Health. In Health, the Later Years.” In Critical Perspectives on Racial and Ethnic Differences in Health in Late Life,

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edited by N.B. Anderson, R.A. Bulatao, and B. Cohen, 145–70. Washington: National Academies Press. Hertzman, Clyde, Arjumand Siddiqi, and Martin Bobak. 2002. “The Population Health Context for Gender, Stress, and Cardiovascular Disease in Central and Eastern Europe.” In Heart Disease: Environment, Stress and Gender, edited by Gerdi Weidner, Mária S. Kopp, and Margareta Kristenson, 15–25. Amsterdam: ios Press. Hertzman, Clyde, and Arjumand Siddiqi. 2009. “Population Health and the Dynamics of Collective Development.” In Successful Societies. How Institutions and Culture Affect Health, edited by Peter A. Hall and Michèle Lamont, 23–52. New York: Cambridge University Press. Hunter, E., and D. Harvey. 2002. “Indigenous Suicide in Australia, New Zealand, Canada and the United States.” Emergency Medicine 14 (1): 14–23. Kasser, V.M., and R.M. Ryan. 1999. “The Relation of Psychological Needs for Autonomy and Relatedness to Health, Vitality, Well-Being and Mortality in a Nursing Home.” Journal of Applied Social Psychology 29 (5): 935–54. Kirmayer, L.J., G.M. Brass, and G.G. Valaskakis. 2009. “Conclusion: Healing / Invention / Tradition.” In Healing Traditions: The Mental Health of Aboriginal Peoples in Canada, edited by L. Kirmayer and G.G. Valaskakis, 440–72. Vancouver: ubc Press. MacDonald, Joanna Petrasek, James D. Ford, Ashlee Cunsolo Willox, and Nancy A. Ross. 2013. “A Review of Protective Factors and Causal Mechanisms That Enhance the Mental Health of Indigenous Circumpolar Youth.” International Journal of Circumpolar Health 72: 21775. Accessed online at http://dx.doi.org/10.3402/ijch.v72i0.21775. Margalit, Avishai, and Joseph Raz. 1990. “National Self-Determination.” The Journal of Philosophy 87 (9): 439–61. Marmot, Michael. 2003. “Self Esteem and Health: Autonomy, Self Esteem, and Health Are Linked Together.” BMJ: British Medical Journal 327 (7415): 574–75. – 2004. Status Syndrome: How Your Social Standing Directly Affects Your Health and Life. London: Bloomsbury. – 2005. “Social Determinants of Health Inequalities.” Lancet 365 (9464): 1,099–104. – 2007. “Achieving Health Equity. From Root Causes to Fair Outcomes.” Lancet 370 (9593): 1,153–63. Marmot, Michael, and M. Bobak. 2000. “Psychosocial and Biological Mechanisms behind the Recent Mortality Crisis in Central and Eastern

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Europe.” In The Mortality Crisis in Transitional Economies, edited by G.A. Cornia and R. Pannicià, 127–48. New York: Oxford University Press. Mowbray, Martin. 2007. “Social Determinants and Indigenous Health: The International Experience and Its Policy Implications.” Report on specially prepared documents, presentations and discussion at the International Symposium on the Social Determinants of Indigenous Health Adelaide, 29–30 April 2007 for the World Health Organization, Commission on Social Determinants of Health. Murphy, Michael. 2001. “The Limits of Culture in the Politics of SelfDetermination.” Ethnicities 1 (3): 367–88. – 2004. “Understanding Indigenous Nationalism.” In The Fate of the Nation State, edited by M. Seymour, 271–94. Montreal and Kingston: McGill-Queen’s University Press. – 2005. “Relational Self-Determination and Federal Reform.” In Re-Configuring Aboriginal-State Relations. Canada: The State of the Federation 2003, edited by M. Murphy, 3–35. Montreal and Kingston: McGill-Queen’s University Press. – 2008. “Representing Indigenous Self-Determination.” University of Toronto Law Journal 58 (2): 185–216. – 2014a. “Self-Determination as a Collective Capability: The Case of Indigenous Peoples.” Journal of Human Development and Capabilities. Available online at 10.1080/19452829.2013.878320. – 2014b. “Self-Determination and Indigenous Health: Is There a Connection?” In Restoring Indigenous Self-Determination, edited by Marc Woons. Special Issue of E-International Relations, available on line at http://www.e-ir.info/2014/05/03/edited-collection-restoringindigenous-self-determination/. Napoleon, Val. 2005. “Aboriginal Self Determination: Individual Self and Collective Selves.” Atlantis: A Women’s Studies Journal 29 (2): 31–46. Nedelsky, Jennifer. 1989. “Reconceiving Autonomy: Sources, Thoughts and Possibilities.” Yale Journal of Law and Feminism 1 (1): 7–36. Ohenjo, N., et al. 2006. “Health of Indigenous People in Africa.” Lancet 367 (9526): 1,937–46. Richardson, Boyce, ed. 1989. Drumbeat. Anger and Renewal in Indian Country. Toronto: Summerhill Press. Rose, R. 2000. “How Much Does Social Capital Add to Individual Health?” Social Science & Medicine 51 (9): 1,421–35. Ryan, R.M., and A.R. Sapp. 2007. “Basic Psychological Needs: A SelfDetermination Theory Perspective on the Promotion of Wellness across

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Development and Cultures.” In Wellbeing in Developing Countries. From Theory to Research, edited by I. Gough and J.A. McGregor, 71–92. New York: Cambridge University Press. Ryan, R.M., and E.L. Deci. 2002. “Overview of Self-Determination Theory: An Organismic-Dialectical Perspective.” In Handbook of SelfDetermination Research, edited by R.M. Ryan and E.L. Deci, 3–33. Rochester: University of Rochester Press. – 2004. “Autonomy Is No illusion: Self-Determination Theory and the Empirical Study of Authenticity, Awareness, and Will.” In Handbook of Experimental Existential Psychology, edited by J. Greenberg, S.L. Koole, and T. Pyszczynski, 449–79. New York: Guilford Press. – 2008. “Self-Determination Theory and the Role of Basic Psychological Needs in Personality and the Organization of Behavior.” In Handbook of Personality: Theory and Research, edited by O.P. John, R.W. Robins, and L.A. Pervin, 654–78. New York and London: The Guilford Press. – 2011. “A Self-Determination Theory Perspective on Social, Institutional, Cultural, and Economic Supports for Autonomy and Their Importance for Well-Being.” In Human Autonomy in Cross-Cultural Context: Perspectives on The Psychology of Agency, Freedom, and Well-Being, edited by V.I. Chirkov, R.M. Ryan, and K.M. Sheldon, 45–64. Dordrecht: Springer. Ryan, R.M., R.R. Curren, and E.L. Deci. 2013. “What Humans Need: Flourishing in Aristotelian Philosophy and Self-Determination Theory.” In The Best Within Us. Positive Psychology Perspective on Eudaimonia, edited by Alan S. Waterman, 57–75. Washington: American Psychological Association. Stephens, C., J. Porter, C. Nettleton, and R. Willis. 2006. “Disappearing, Displaced, and Undervalued: A Call to Action For Indigenous Health Worldwide.” Lancet 367 (9527): 2,019–28. Taylor, Charles. 1994. Multiculturalism. Examining the Politics of Recognition. Princeton: Princeton University Press. Taylor, E., Renata L. Repetti, and Teresa Seeman. 1997. “What Is an Unhealthy Environment and How Does It Get Under the Skin?” Annual Review of Psychology 48 (1): 411–47. Theorell, T. 2004. “Democracy at Work and its Relationship to Health.” In Emotional and Physiological Processes and Positive Intervention Strategies: Research in Occupational Stress and Well-Being, edited by P. Perrewe and D. Ganster, 323–57. Volume 3. Bingley: Emerald Group Publishing Limited.

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Tiessen, M., D. Taylor, and L. Kirmayer. 2009. “A Key Individual-toCommunity Link: The Impact of Perceived Collective Control on Aboriginal Youth Well-Being.” Pimatisiwin: A Journal of Aboriginal and Indigenous Community Health 7 (2): 241–67. Tully, James. 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. – 2000. “Struggles over Recognition and Distribution.” Constellations 7 (4): 469–82. – 2001. “Introduction.” In Multinational Democracies, edited by A-G. Gagnon and J. Tully, 1–33. Cambridge: Cambridge University Press. – 2002. “Reimagining Belonging in Circumstances of Cultural Diversity: A Citizen Approach.” In The Postnational Self: Belonging and Identity, edited by Ulf Hedetoft and Mette Hjort, 152–77. Minneapolis: University of Minnesota Press. – 2007. “The Practice of Lawmaking and the Problem of Difference.” In Multiculturalism and Law: A Critical Debate, edited by Omid Payrow Shabani, 19–41. Cardiff: University of Wales Press. – 2008a. Public Philosophy in a New Key. Volume I. New York: Cambridge University Press. – 2008b. Public Philosophy in a New Key. Volume II. New York: Cambridge University Press. Waldram, J.B., D.A. Herring, and T.K. Young. 2006. Aboriginal Health in Canada. Second Edition. Toronto: University of Toronto Press. Waldron, Jeremy. 1987. “Can Communal Goods Be Human Rights?” Archives Européennes de Sociologie 28 (2): 296–322. Weinstock, Daniel. 1998. “How Can Collective Rights and Liberalism Be Reconciled?” In Blurred Boundaries: Migration, Ethnicity, Citizenship, edited by R. Baubock and J.F. Rundell. Aldershot: Ashgate. Wexler, L. 2006. “Inupiat Youth Suicide and Culture Loss: Changing Community Conversations for Prevention.” Social Science and Medicine 63 (11): 2,938–48. Wexler, L., K. Jernigan, J. Mazziotti, E. Baldwin, M. Griffin, L. Joule, and A. Garoutte Jr. 2014. “Lived Challenges and Getting through Them: Alaska Native Youth Narratives as a Way to Understand Resilience.” Health Promotion and Practice 15 (1): 10–17. Wilkinson, Richard G. 2005. The Impact of Inequality. How to Make Sick Societies Healthier. New York and London: The New Press. – 2006. “Ourselves and Others – For Better or Worse: Social Vulnerability and Inequality.” In Social Determinants of Health, edited by Michael

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Marmot and Richard G. Wilkinson, 341–57. Second edition. New York: Oxford University Press. Wilkinson, Richard G., and K. Pickett. 2009. The Spirit Level. Why Greater Equality Makes Societies Stronger. New York: Bloomsbury Press. Young, Iris Marion. 2000. Inclusion and Democracy. Oxford: Oxford University Press.

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Federalism and Multinational Democracies

13 Enlightening Federalism: The Practical Philosophy of James Tully Stephen Tierney

1. i nt roducti on For a subject that has been the topic of so much scrutiny by academics in the fields of political science and constitutional law, by think tanks and research centres, it is surprising that political and constitutional theorists have not paid more attention to federalism. James Tully is certainly an exception. In this chapter I explore how Tully’s philosophy speaks to federalism both directly and through broader insights which help illuminate what I will term “the federal idea.” I argue that Tully’s work provides the tools with which both to understand federalism better as a flexible set of institutional arrangements that can help foster civic freedom and to rethink the federal idea in a critical way as a form of political practice that has the potential to assist citizens in maintaining this freedom in the face of hegemonic forces, particularly in our age of globalization. It may seem odd to suggest that federalism has been neglected by political and constitutional theorists. But in part 3 I will make the case that further theoretical interventions are needed, particularly given the period of constitutional flux over the past two decades involving seemingly contradictory challenges to the federal model both from within states and from processes of supranational constitution-building. Before this, in part 2, I discuss the proliferation and diversification of federalism as a form of constitutional practice, noting also, as Tully has discussed (2008c), the emergence of

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suprastate constitutional models of authority which seem to have taken on some of the trappings of federalism. In a broader sense, and not specific to the study of federalism, scholars have of course addressed the current and possibly paradoxical trend towards the diffusion of constitutional authority within states on the one hand, and the internationalization of authority beyond the state on the other; indeed a strong strain in Tully’s work has been his focus upon attempting to understand the interconnections between these two parallel processes (Tully 1995). What I am interested to explore is whether these two developments can be understood through the lens of the federal idea. That each, in its own way contains within it, if not another paradox, then certainly an internal tension: that between coming together and pulling apart, a tension which is also the foundational and ever present paradox of federal systems. In part 4 I will argue that Tully’s practical philosophy offers a framework within which to explore the thesis that the evolution of federalism as a form of constitutional practice may be adaptable to meet the needs of a globalizing world. This will require us, however, to revisit the fundamental assumptions which underpin existing federal theory and practice. In searching for the federal idea I will, in parts 5 and 6, ask whether there is a set of shared purposes or principles which together constitute the federal idea, and will begin to explore what these might be. This is a huge task which cannot be fully undertaken here, but I will attempt to set out what I take to be the conceptual and structural frameworks of federalism as a system of government within which these purposes play out – that is per Tully’s focus upon practical philosophy through which federalism ought to be addressed primarily as a form of constitutional practice. Finally, in part 7, adapting Tully’s practical philosophy of civic freedom as critical engagement, I will conclude by suggesting some ways in which this approach invites us to open federalism to new forms of critical enquiry.

2 . t h e p rol if er at io n of federali sm Although there is no ready agreement as to what a federal constitution is, there is general consensus that since 1945 federalism as a system of government has proliferated greatly, with some estimating that around one half of all states have become or are moving towards a federal constitutional system (Elazar 1994, xvi–xvii).

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Michael Burgess calls this the “federal tendency” (2006, 1–2). There are several trends, each of which has had its own specific imperatives, which together have led to this widespread diffusion of power within states. The first is the wave of constitution-building in Western Europe after the war which led to federalization – Germany and Austria being the main examples. Germany of course has had a long tradition of federalism in different eras, but after 1945 federalism took on a more specific purpose; as a way to diffuse power and hence help prevent the type of centralization that had beset the country in the 1930s. We see echoes of Madison’s thinking here; federalism becomes a device through which to bolster democracy by reducing the institutional opportunities open to those who would abuse power (Madison, 1788). It cannot be claimed of course that this led to the subsequent processes of decentralization in Italy, Spain, and the United Kingdom, but it did provide a regional precedent for these. A second feature in the growth of federalism was decolonization. A key dynamic here was the attempt to manage deep cultural, national, and ethnic diversity. This was a particular challenge since the prevailing approach taken by the European powers, by Indigenous political elites within emerging states, and by the un system itself, was the maintenance of existing international boundaries. Key examples of federations which emerge in this period are Nigeria and India but many other experiments were tried across Africa, Asia, and the Caribbean (Franck, 1968). The rise of sub-state nationalism since the 1960s has also had its own effects. Decentralizing dynamics have characterized the constitutional history of Belgium, Spain, and the United Kingdom and have shaped constitutional debates in Canada. Canada and Belgium are undoubtedly federal in nature. Where Spain and the uk sit upon the federal scale is open to discussion, but each clearly has a federalizing trajectory (Tierney 2009).1 A fourth development was the collapse of the ussr and the Socialist Federal Republic of Yugoslavia (sfry) which led to new federations – the Russian Federation and that of Serbia and Montenegro (until Montenegro became a new state in 2006). Related to this, a fifth dynamic has been the implementation of federalism and related forms of territorial government in the resolution of protracted territorial and ethnic disputes, processes which in some cases are marked by high levels of involvement by external actors such as the United

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Nations or European Union. This has led to a variety of unique and imaginative models of territorial government. A notable example is Bosnia and Herzegovina which contains within it the Federation of Bosnia and Herzegovina as one of its two entities, while the entity structure itself is a form of federation or confederation. Other recent examples of moves towards federalism, which again involve the engagement of international actors in federal construction, are the constitution of Ethiopia of 1995, the South African constitution of 1997 and the Iraqi constitution in 2005. The latter two cases were subject to external influence in different ways. In South Africa a largely Indigenous process did nevertheless involve considerable levels of consultation with other constitutional systems and many experts from other federal states, notably Canada, were brought in to advise on federal models. Iraq remained an occupied country following the invasion of 2003 and the move to a new constitution, which involves a federal structure, was carried out at the behest of and under the heavy influence of the United States (Al-Ali 2014). What is notable however is that there is no readily agreed international definition of federalism. And although we might hope to find in the term “federal” some generalizable institutional structures which unite these cases, when we look in detail at the structures of each state we see huge differences in institutional design and operation; each of these cases is in its own way unique. It seems, therefore, that in searching for what unites these different postwar processes, which together supplemented the already existing federal systems such as Canada, Australia, and the usa , the answer is not to be found in a set of definitive governmental institutions. Instead we must look for some transferable idea or set of ideas which together underpin these different phenomena in a shared understanding of what it means to be federal.

3 . wh at i s fe de rali sm? For seventy years there has been, with some quieter periods, a wide and growing literature on federalism. Most of this work has been conducted by political scientists addressing either particular federations or engaging in broader comparative study. Here there is a strong emphasis upon empirical institutional analysis, with scholars addressing questions such as: what defines a federal state?; what is the political and constitutional structure of the state or states in

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question?; and, how do federal relations play out in practice? This work has served greatly to illuminate the practice of federalism, and in particular the tensions and strains which attend it. In light of this important scholarship, and of federalism’s proliferation as a form of government, it remains something of a surprise that federalism has not been the subject of more widespread theoretical analysis by political and constitutional theorists. But it is also important not to overstate this point. There has been highly significant work done by political theorists (e.g., Karmis and Norman 2005). It is also the case that political scientists working in the area have brought important theoretical insights to the study (Burgess 2006; Burgess and Gagnon 1993, 2010; Gagnon and Tully 2001). Others have taken strides in re-exploring the historical origins and traditions of federalism (Hueglin 1999; Hueglin with Fenna 2006), while further interventions attempt to take stock of the proliferation of federalism in a time of globalization (Knop, Ostry, Simeon, and Swinton 1995; Burgess 2012). But still it is frequently noted that more comprehensive theoretical interventions are lacking. Burgess for example argued in 2006 that as yet there is “no fully fledged theory of federalism.”2 Kyle Scott also contends that federal theory lacks a “normative theory that is prior to policy making and implementation” (2011, vii). Indeed he goes so far as to say “there is no theory of federalism” (ibid., 1). Feeley and Rubin (2008) have struck a similar tone, although more guardedly, in their contention that federalism is undertheorized. Certainly when we look to the canon of political theory, federalism has rarely featured except in discussions about the constitutional design of a particular state.3 And this omission continued into the late twentieth century despite federalism becoming such a significant feature of constitutional practice during this time. For example, federalism is rarely if ever discussed in the work of contemporary political philosophers as a factor which might impact upon their notions of justice. This is so even for scholars such as John Rawls or Jürgen Habermas who have lived and worked their whole lives within federal states. The issue which scholars such as Burgess and Scott are concerned with seems to be a lack of analysis of the underlying purposes behind federalism as the genus of a particular constitutional system. This deficit becomes more noticeable as we see the expansion of federalism in new and different practices.4 If this is so then new

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theoretical work is certainly needed and it may well be that as the federal model rapidly evolves it will be possible to garner from these mutations in the practical model itself new insights into the purposes which underpin it. Tully’s work on globalization also suggests the need for a thorough review of the federal model. His more recent work focuses upon governmental forms beyond the state, but for the past two decades he has also helped explain the consistent salience of plural identities within states and the need for constitutional recognition of these. As Tully explains, the current terrain for federal theory is complicated by this state or suprastate nexus: “what we see is a field of federal pluralism as multi-layered and complex as the corresponding field of local and global legal pluralism that legal scholars have uncovered over the last twenty years. Because these types of federation are interconnected, federalism studies should be expanded from the study of one type of federation to comprehend this broader field” (2009, 210–11). One area which, it seems, needs to be opened up to fresh analysis, and here the work of Tully is also illuminating, is definitions. For a long time the analysis of federalism has been the subject of an intractable debate over terminology, with the words federal, federation, and federalism subjected to detailed and fiercely contested structural scrutiny. This has had the consequence that commentators disagree even about the number of federal states that exist. For example, in 1994 Daniel Elazar estimated that of approximately 180 states in the world, over half were federal or had some kind of federal arrangement (1994, xvi–xvii). A few years later, using a narrower definition, Ronald Watts (1999) estimated there were merely twentythree federations in the world. This seems like a stark contrast of course, but in fact it is a figure with which in some sense Elazar agreed depending upon what definition is used.5 These differences highlight just how difficult and frequently contested the terrain of definition is in the area of federalism. Another area of dispute is whether federalism is a purely descriptive term, or whether it also bears an inherent normative dimension. Again space forbids a detailed account of this debate, but it will be familiar to federalism scholars. I take the view, which I will expand upon in later parts of the paper, that the term federalism, while of course performing important descriptive functions, also contains within it a reference to a set of principles which flow logically from a generic constitutional purpose.

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All of this leaves us with the question whether a general account of a form of government called “federalism” is even possible. Is there one general theory that can define a multilevel government structure which is of sufficient breadth to encompass the great diversity of systems we think of as federal, and still be of sufficient specificity to constitute a meaningful genus? Put another way, are there certain core characteristics shared by every instance of the federal model, whether explicitly articulated in a particular constitution or present immanently in the fact of federalism, which we can draw out to sketch a universally applicable framework? It is my contention that such a goal may well be achievable and that we can indeed strive to frame what I will call “the federal idea.” One key contention which I am advancing is that we are mistaken if we begin by trying to define federalism in purely institutional terms. This leads one to generalize from the specific and it is inevitable that in doing so the purported genus will in fact be informed by a particular model or tradition of federal practice. Instead, a more open approach to definitions allows us not to be constrained by a fixed vision of federal practice. Here I think Tully’s broad definition of federalism is a good starting point: “I take a ‘federation’ to be an association of different, overlapping and interacting communities” (2009, 195). This moves us on quickly from narrow institutionalism, exploring the more important issue: what is it about federalism as an idea that offers us a model of how we ought to govern ourselves? To begin this task we need to account both for the historical contingency of federal practice and for the internal tensions which it contains. I argue that federalism is first and foremost an idea, but at the same time I want immediately to recognize that it is an idea grounded in practice. Federalism’s various manifestations from the late eighteenth century onwards are a result of particular events and trends, emerging in different ways and with different impetus from place to place – for example (and some of these instances have already been mentioned), the bringing together of the different colonies emerging from Britain’s North American empire at the end of the American revolutionary war; the decolonization of the British empire elsewhere, for example, Canada, Australia, Nigeria; the emergence of Germany from the Second World War; and the reaction of Western Europe (and the influential usa ) more broadly to this war which resulted in the birth of new or renewed federal constitutions in Germany and Austria.

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Another overarching feature in looking for the federal idea is the inherent tension or paradox at the root of federal practice (the “coming together” and “pulling apart” elements). This is significant for both the normative and the descriptive dimensions of federalism. Like any modern constitutional label, the term federalism implies good government, or more precisely a good model or genus of government. Since the normative trappings which it contains emerge from the political context of the past two centuries, they are inevitably imbued with the dominant doctrines of the time concerning statehood and good government, including of course democracy, liberalism, and particular ideas about the nature of the nation-state. How then do these theories deal with the moral dimensions of this tension? This is important because how these tensions play out in normative theorizing has knock-on consequences for the conceptual level. It is also clear that, at the conceptual level, federalism by definition, with its coming together and pulling apart dimensions has at its core as a model of multilevel government what might be termed incongruous and perhaps even mutually contradictory components; a foundational conceptual strain between the singular and plural forms of government which it brings together, since by definition federalism allows for, or indeed facilitates, competition between these different levels of government. Therefore, the federal idea might, at a normative level, offer good government, but it is a construction of good government which contains within it the recognition of imperfectability, tension, and the deeply political nature of government: it is normativity conditioned by the realities of power and by the realities of democratic interaction; an idea that understands good government must always be about deliberation, negotiation, and compromise around the management of political power and constitutional authority in an always deeply pluralized environment. Therefore, in the constitutional foundations of the federal constitution there is a tension, and hence a balance to be struck, between singularity and plurality, and hence between unity and diversity. Elazar describes federalism as the combination of “self-rule” and “shared rule” in a contractual power-sharing relationship (1987, 12). This can manifest itself in difficult questions for particular constitutional arrangements, for example : where does sovereignty lie within a federal state? How should powers be balanced between centre and regions? Where should the residual power rest? How should the constitution be amended? We tend to take for granted

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these inherent tensions in the federal idea, but to do so is perhaps to overlook the incongruous nature of such an idea, particularly when it also contains within it a normative proposal, not only describing but also prescribing – or at least justifying on the register of good government – precisely such an arrangement.

4. a p p ly in g t ul ly’ s pr acti cal phi losophy to fe d e r a li sm t hrou gh the methodology o f c on st it ut io nal theory A search for the federal idea is made complex not only because it seems to contain inherent self-contradictions, but also because unlike other political ideas such as “democracy” or “liberalism” which remain comparatively abstract and open to a vast array of widely different conceptual and institutional forms, the federal idea is derived from more specific forms of political practice. This is one of the reasons why James Tully’s practical philosophy is enlightening to anyone seeking to revisit federalism as an idea. Tully’s method is one which itself is fully engaged with political practice, addressing the world as it is rather than beginning from abstract first principles which tend to posit, often in an uncontextualized way, how we might like it to be. But at the same time Tully’s approach is far from being simply a descriptive or empirical endeavour. The application of practical philosophy elucidates “conditions of possibility”; in other words, ways to rethink and reenact the world we live in. These conditions of possibility exist even within problematic forms of governance, a fact which, when understood, “transforms the self-understanding” of those subject to and struggling within these forms, enabling them to see their “contingent conditions and the possibilities of governing themselves differently” (James Tully 2002). In other words, it is a philosophy grounded in the real world, but a real world of possibility not of resignation. And crucially it is not just a form of objective critique, it also calls for self-examination: “working on ourselves by working on the practices and problematisations in which we find ourselves” (ibid.). Applying this approach to philosophy I wish to draw out three points which will help to frame a methodology with which to engage with the federal idea. The first is that Tully’s approach invites us to understand federalism as a “historically singular set of practices

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of governance” (ibid.). This captures the point that federalism can be a system of government but it is not simply a system of government; it is a set of practices, which differ across space and time, but which can each be traced back to the federal idea. This captures both the singularity of the federal idea but at the same time the diversity of practice within this singularity since it is founded in and develops from the reality of already existing, and frequently changing, institutional arrangements. In other words, the federal idea is not an abstraction but rather a theoretical framework that acquires its coherence and distinctiveness through its real-world translations into the practice of government. Secondly, when we bring normative analysis to federalism, we need also to contextualize this within the singular set of practices of governance which the federal idea reflects. Here Tully’s distinction between practical philosophy (which recognizes the tense relationship between politics and ethics) on the one hand and political theory (as more abstract moral reasoning) on the other is important. In looking for the federal idea I am arguing that this practical approach to normative analysis invites us to strip back federalism to find the immanent purposes which underpin it as a normatively-informed model for government. At the same time, per Tully, we should seek to draw out the conditions of possibility within the federal idea, opening its underpinning principles as well as the various instances of its practical instantiation to critical normative evaluation. The starting point then is that within practical philosophy any normative theorizing must be conditioned by the reality of how a particular mode of governance manifests itself in real-world practice. This essential feature is of central utility to the constitutional theorist whose particular concern, by definition, is with politics already deeply embedded, or open to the possibility of location, within particular institutional forms. Federalism after all is not just a specific form of political practice, it is a specific form of constitutional practice. Here I see a link between theorizing about federalism and theorizing about constitutionalism more broadly. It is my contention that there is a discrete discipline of constitutional inquiry, which we can call constitutional theory (or constitutionalism), which is concerned with analyzing and evaluating a particular area of social activity: the framing, founding, practice, and changing of constitutions, operational through internationally comparable institutions and rules. And it is within this

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broader approach that we ought also to address federal theory as a subset of constitutional theory. I have in this context applied the term “functional normativity” (Tierney 2012, 2–4; Oliver and Tierney 2014; Tierney 2022) in part to distinguish constitutional theory from political theory. Whereas the latter is avowedly, and indeed primarily, a normative exercise in assessing the merits of political arrangements, often from first moral principles, constitutional theory is an analysis of the particularities of constitutional institutions, processes, and systems. In this sense, the normative element involved may be limited to assessing how well these institutions et cetera work by their own lights. In this way it becomes more of a functionalist account, albeit imbued with a sense of successful versus unsuccessful institutional arrangements – and hence some idea of good versus not so good institutions. A particular constitution or a particular genus of constitutionalism is evaluated in the context of the functions which a constitution is intended to serve. It is in this sense then an immanent field of enquiry, one that assesses the normative credentials of a constitution against principles of good constitutionalism rather than merely goodness in the abstract moral sense; or it may be more narrowly concerned still, assessing a particular constitution in light of the particular principles or values which that constitution has framed in its text. The normative assessment of the constitution therefore emerges more as an exercise in practical ethics than morality. And it is this which primarily demarcates constitutional theory as an exercise in practical philosophy. Constitutional systems are invariably established with an idea of the good. From this they are infused with values such as democracy, the constraint of arbitrary power, the rule of law, the protection of rights et cetera. Therefore, constitutional theory as the study of a particular form of political practice combines the analytical and the normative in inextricable ways. Analysis of the success or failure of a model of constitutional practice, or of a particular constitution, necessarily involves reference to the purposes behind that model of practice or that particular constitution, and these purposes are infused with normative dimensions. I have applied this methodology of constitutional theory to the study of national pluralism (Tierney 2004) and in turn to constitutional referendums (Tierney 2012), but it can also be applied to federalism. In this way I am seeking to draw out the ethics of

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federalism as a form of social practice, and this task is illuminated by the broader structure of practical philosophy as set out by Tully. Thirdly, constitutional theory also allows us to address the conditions of possibility embedded within the federal idea. In other words, assessing federalism as an idea and then applying constitutional theory to explain this idea as a form of normatively-informed practice leads us through critical thinking to explore the possibilities within the idea of federalism for reformed federal practice: federalism as an idea invites us to critique its real world manifestations and to reimagine the possibilities contained within this idea for better governance. This last point will be returned to in part 7. For now let us turn to explore the framework of federalism contained within the federal idea.

5. t he c o n c e p t ua l fr am ework of federali sm: an e x e rc is e in c on st it uti onal theory Applying practical philosophy to the federal idea allows us to bypass the conceptual, classificatory, and terminological essentialism that has gripped much of the political science and constitutional law scholarship in this area. Beginning with a looser definitional model such as Tully’s association of communities, we can instead take a step back from institutionalization and look for the building blocks which together constitute the federal idea. One way to structure this is by identifying overarching features which are common to any instance of constitutional practice. I categorize these as foundations, purposes, design and dynamics. I contend that such an approach is well-placed to begin to draw out the central tenets of the federal idea. While this task of course requires far more detailed treatment than it can be accorded here (a monograph called The Federal Contract will be published in 2022) I will for the sake of discussion attempt to set out some basic features that seem central to the constitutional manifestation of the federal model. Foundations Each instance of federalism has its own specific origins, but one feature that is widely shared is a strong impetus from below the level of the state for constitutional recognition of regional specificity. In other

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words, federalism has emerged in many cases with a bottom-up trajectory as something demanded or aspired to by communities below the level of the state. In this sense Tully’s idea of an association of communities can be reformulated slightly as a coming together of communities. In this sense the process takes on dimensions that are both organic and popular, generated from the ground up within the state’s constituent communities. In practice of course this has not universally been the case. Some federal models have emerged in a more top-down process than others. Indeed, in some cases federal sub-units have been created for administrative convenience, in order to make the system work, or to dilute the power or influence of other regions. But even in these cases it is hard if not impossible to find any state that has taken on a federal direction without the social fact of regional difference acting as some kind of catalyst. And those models which were engineered from the top without significant regional input stand out as incongruous in the context of federal history as a whole. What is crucial is that in either case the federal constitution is founded on the basis of territorial pluralism. In this sense foundations take on a specific legal-normative force that mark out the federal moment of foundation as highly specific. One issue for further exploration, therefore, is the extent to which the origins of federalism, from case to case, can indeed be said to share these characteristics: organic development, popular impetus, a bottom-up trajectory, and a foundational commitment to communities as well as simply to individuals; and hence the recognition of this plural popular moment in the founding of a federal constitution. Principles From the federal foundational moment, with its purpose focused upon territorial pluralism, certain principles flow: recognition of the constitutions constituent territories, autonomy for communities below the level of the state and an associational rule, involving the polity’s constituent subjects in the government of the central polity. This is of course not a definitive list, but it does alight on the two purposes which are most often discussed in the federal context, and which together constitute the tension which I have described above.

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Design The foundations, purpose, and principles of federalism have implications of course for how the institutional structure of the state is fashioned, influencing in particular the design of the central executive power, the central legislature, and intergovernmental relations across levels. This manifests itself very differently from constitution to constitution but what is important in searching for the federal idea is fidelity to the core purpose and principles of federalism. Dynamics A feature of constitutional practice is that it is not static even when the constitution itself is hard to change. Another area to explore is whether federal systems are more or less evolutionary than other systems. Has there tended to be an attempt to fix in stone the constitutional conditions for the federal state more than in other states, or is it comparatively more open to constitutional change? The experiences of Canada, Australia, and the usa might suggest the former, but is this a generalizable point? And what of everyday decision-making that does not involve constitutional change? Here there are a number of features brought about by a federation as an association of communities. Consensus in decision-making may be a constitutional requirement in federal constitutions, but we also see strong patterns of competition both between communities and in a vertical direction between regions and the centre. Another feature stemming from the bottom-up origins of the state and the principle of autonomy is that democracy and federalism are closely aligned. It is hard if not impossible to imagine a federal state that is not also democratic. But federalism, with its foundational constitutional commitment to its constituent territories suggests a particular approach to democracy: a form of territorialized democracy. All of this suggests that participation is a central dynamic: both the participation of individuals within communities and of territories themselves within the state. And this in turn seems to elevate deliberation as an important factor in federal relations, since communities need to persuade each other in the act of decision-making. Finally, this can also make reciprocity an important value, since each side must be seen to achieve gains to offset losses and to exchange costs and benefits in a fair way. Therefore,

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although in certain federations constitutional change may not be easy, it does seem that constitutional rigidity can be problematic, since for federalism to work as an association of communities, avenues for everyday decision-making must be open and dynamic.

6. t he s t ru c t ut ra l fr am ework of federali sm The conceptualization of territory as core to the constitutional idea of federalism suggests a particular structural framework. I take the core structural components of a constitutional system to be: · · · · ·

subjects; authority; purpose and principles; design; dynamics.

This framework, based upon the notion of federalism as a constitutional idea, helps us to understand the manifestation of federalism as a particular genus of rule for the modern state. Subjects: Territorial Constitutional Subjects Modern constitutionalism has developed through the increasingly dominant ideology of liberalism to the point where liberal constitutionalism seems almost to have become a synonym for constitutionalism as a whole. But liberalism of course provides only one story of modern democracy and, with its methodological individualism, a highly partial one. One liberal construction is of course the contractual story in the Lockean tradition, through which the state is conceived as a collection of individuals who come together to create a system of government which will better protect anterior individual freedoms. The relationship between state and subjects is therefore binary – the only significant actors in play are institutions of government on the one hand and individuals on the other. The federal idea questions the sociological reality of this conception. Federalism by definition serves to recognize that within the state there are strong markers of vernacular, territorially concentrated identity which mark the state as plural rather than monist in demotic

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composition. This is recognized by definition in the constitutional creation and empowerment of territorial governments. This is a form of territorial constituent power. In this way the federal state is by definition an association of communities and not just individuals; and through this the binary liberal construction is challenged by the federal idea. Authority: Popular – and Plural – Sovereignty If the federal idea, founded as it is upon territorial subjects, has implications for sovereignty as the embodiment of the highest source of authority within the state. Sovereignty as a unitary concept has long been the main ideological and legal normative device in constructing a unified locus of central authority within the unitary nation-state. In this way sovereignty, defined in the tradition of Bodin and Hobbes as singular, absolute and final, took on a unitary and indivisible form to match the unitary and indivisible constructions of both the state and the statal people. Another key characteristic of the Bodin and Hobbes model is that sovereignty is exercised in a top-down fashion. It may (for Hobbes) have emerged conceptually in an initial act of voluntary submission by the people, but it is thereafter characterized by a strong central sovereign who takes on representative form, thereby supplanting the ultimate political power of the people who no longer exercise sovereignty in any meaningful way. There have been attempts to reconcile sovereignty with democracy, particularly as it has emerged over the past century. We see this for example in Martin Loughlin’s relational model where modern democracy translates Hobbesian sovereignty into popular sovereignty which is then characterized as a relationship between a polity and its people (Loughlin 2003). But even these revisions to the classical model of sovereignty do not serve to realign its unitary dimension (Loughlin 2014). The relational model is still an accurate way to understand sovereignty in a federal constitution, but we must appreciate that the relations of sovereignty are now mediated by territory. Sovereignty is not just about relations between citizens and the government, but between these citizens and their governments and between territorial constituents and the state constitution itself. This poses a radical challenge to the default monist conception of sovereignty that has been posited as a universalizable conception of modern constitutional sovereignty.

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Purpose and Principles The purpose of the federal constitution is both to foster this foundational pluralism and to maintain the constitutional relationship between pluralism and union in the creation and reconciliation of different orders of government. It is the centrality of territorial pluralism to the federal idea that makes of it a discrete genus of rule within the constitutional species. Principles flow from this: the term “principles” is used here not in the moral-normative sense of morally correct behaviour and attitudes, but rather in an ontological way: “principles” as the logical implication or chain of reasoning that flows from the foundational character of federalism as a particular form of constitutional rule. Principles, in this sense, do not attribute to federalism an externally-derived narrative of “the good”; rather they are the precepts that inhere to, and stem from, its very immanent purpose. Elsewhere (Tierney 2022) I describe these as recognition, autonomous government, associational government, horizontal reciprocity, and vertical reciprocity. Design: Combining Pluralism with Union The concept of federalism cannot be detached from its contingent attachment to modern constitutionalism and, therefore, it might reasonably be characterized as a sub-type of that broader genus, democratic government. There is however no set, universalizable institutional design for a federal polity. What matters is that any federal system reflects the core, generic purpose and principles of federalism; what might be called federal democracy. But we need to be cautious here in light of the promiscuous history of democracy. Democracy in the modern era has been tied inextricably to nation-building. Indeed democracy and its alter ego popular sovereignty have together served to legitimize and thereby underpin unitary state construction through the idea of “we the [undifferentiated] people.” Democracy has come to encapsulate a unitary conception of the demos in support of a unitary conception of the state, offering popular consent to bolster centralizing constitutional projects. Only in recent times have democratic theorists been required, through the insights offered by scholars of plurinationalism, to confront this implicitly unitary conception which has in turn also served to support many of the normative assumptions at the heart of liberal democracy.

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Federalism then is from the outset a potentially radical idea when set against the default position of the Westphalian era. It challenges the nexus between unitary demos and unitary statehood which poses radical challenges not only to the default conception of the state, but to the dominant narrative of liberal democracy which has taken this for granted. This opens up a wide range of institutional designs; each federal constitution should recognize and accommodate its own territorial pluralism in its own way, which can include the asymmetrical treatment of its territories. Dynamics In a federal constitution, as in any system of government, decisions need to be reached. However, certain principles of decision-making seem to be particularly pertinent to the federal idea.

consensus: with shared sovereignty comes also the idea that the constitutional powers of sub-state territories should be constitutionally protected, including the power to share with the central power of the state in the making of key decisions. Of course there are different ways to ensure mutual or multiple consent, for example, we must not discount the fact that many federal interactions are more competitive than consensual. However, inherent in the federal idea, and manifest in its purpose and principles, is a requirement of cooperative coexistence: to working together in furthering the common interests of the federal polity as a whole. At the very least, underpinning the federal idea is the commitment that decision-making should involve the consent of the federation’s territories. Consensus can be promoted for example through the design of the legislature (e.g., a territorial second chamber), through constitutional pathways towards broad intergovernmental cooperation and agreement, and by inclusive rules as to how the constitution is to be amended.

participation and deliberation : if the federal idea contains a consensus requirement this implies not only multiparty consent in the making of decisions but also has consequences for the methods needed to reach decisions. The level of recognition for constituent communities that comes with the federal idea by implication accentuates their participatory role within the state. At the same time the need to reach consensus reduces the capacity for dominant actors to

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impose their will on others, with the consequence that those seeking a particular decision need to be able to persuade by force of reason and by appealing to the interests of others in a particular enterprise. Implicit then within the federal model is a deliberative approach to decision-making. Again empirical work would be needed to answer whether this results in a more deliberative approach to decisionmaking than is to be found in a unitary model.

openness to change : I have argued that the federal idea contains an organic and bottom-up approach to polity-building. This also serves to recognize that political systems should be open to change in response to the political aspirations of the people or peoples who comprise them. Today, however, we live in an age of strong constitutionalism: the urge among powerful political and civic actors in so many polities to create more and more detailed constitutions, elevating more and more value and policy preferences beyond the reach of day-to-day political decision-making. Again liberalism is a key driver here with its commitment to a notion of individualism which ought to be constitutionally privileged through a prescriptive body of “rights.” The consequence is ever more detailed bills of rights; constitutional eternity clauses; the elevation of the role of the judiciary within the constitutional firmament, vesting judges with more and more political power; the concept of unconstitutional constitutional amendments whereby even supermajorities are to be policed by judges, et cetera. All of this points to a liberal telos whereby the perfect constitution can be determined and once determined should be crystallized beyond the reach of ordinary citizens. The federal idea of government sits uncomfortably with this level of constitutional solidification. The commitment to accommodate different territorial peoples and their identities seems also to require that the polity be left open to value pluralism. The federal idea cannot present a fixed template of the good constitution, because this very idea will depend upon different communities rubbing along together with their different aspirations and values. Instead federalism seems to require a more modest constitutional arrangement designed to respond to social reality, entrenching as needs be the institutional design of the polity and the respective powers of the different levels of government, but leaving open to political disagreement the contested values which often emerge from a plurality of territorial subjects. In short, the federal idea requires a constitution

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that is open to change in response to intercommunal deliberation. In this sense federalism seems to be about becoming rather than arriving, less a fixed set of structures and more a fluid arrangement that develops over time. The decision-making aspects of the federal idea seem to echo James Tully’s idea of freedom as dialogic. We see this when we consider the nexus between consensus, deliberation, and openness to ongoing change. Consensus requires an ongoing commitment to agreement across communities of at least some minimal shared way of life. I believe a neglected area of federal study is a full investigation of the means by which such consensus is to be achieved. The importance of deliberation as a means of arriving at and maintaining such a shared way of life comes out strongly in Tully’s work. New research would be valuable in connecting the study of federalism to the burgeoning work being done elsewhere on deliberative democracy. This alerts us again to the fact that we should not try to find in federalism a fixed and universalizable form of institutional arrangements but that the federal idea brings with it the scope for wide variation through a process of deliberative democratic engagement which is open to varied constitutional results based upon the will of the plural territorial constituents of the polity.

7 . t h e f e de ra l id ea’s condi ti ons of p o s s ib i li ty: su bj ec ti ng federali s m to n ew c ri ti ques This commitment to openness and scope for ongoing processes of change also demonstrates that any federal system, and indeed the federal idea itself, must each remain open to reflection and evolution. Another point James Tully makes about political power in general, but which we can apply more specifically to constitutionalism, is that established patterns of authority can come to be taken for granted. This presents us with a challenge to apply a conception of the constitutional idea of federalism in order to ask whether the federal idea has in fact been, and continues to be, belied by practices which subvert its real meaning. In other words, is federalism, as it is practised, fit to serve citizens in maintaining their civic freedom in the face of hegemonic forces? This is a question which is all the more pertinent as federalism takes new forms in our globalizing age.

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What then is specific about “civic” freedom? It seems that we need to differentiate this from liberal freedom. The term “civic” ties freedom to a notion of the city, to society, and to the organization of government as a mode of guaranteeing this freedom. It suggests that freedom can best be achieved in community with others. In this regard it can be contrasted with the tradition of liberal freedom that presents as natural an image of the atomistic individual whose relations with others are primarily competitive rather than cooperative and in relation to which government is eyed suspiciously, generally as a threat to, rather than conduit for, the fulfilment of freedom. It is a strong claim to declare that civic freedom is only achievable by way of a federal form of government. I am certainly not going to make such a claim. Federalism is clearly one idea of how good government can be organized, it is not the only idea. There are many systems in the world which are not federal and which work well, offering a forum for the fulfilment of civic freedom. Federalism is a response to territorial diversity and in some states there may not be a sufficient sense of such diversity to motivate a grassroots federal initiative. A more modest claim is that civic freedom is possible through a federal system, and for plural societies might best be achieved by such a system. I have set out in parts 5 and 6 what I take to be the core concepts and values that underpin the federal idea. My question is whether these values, faithfully translated into institutional practice, have the capacity to maximize the potential for civic freedom for citizens who have chosen to live in a federal system and who in doing so relate as citizens to different levels of authority through both territorial and central governments. But this also leads us to assess whether the federal idea is always faithfully reflected in federal practice. Tully himself asks if the federal promise of deep democratic engagement has been lost: “What democratic powers of self-rule and shared rule have been ‘dispossessed’ without the consent of the governed?” (2009, 211) In light of this question I would now like to revisit briefly the five components of the structure of federalism contained within the federal idea, suggesting ways in which these have been distorted in practice, particularly by the corruption of the federal idea by its association with some of the excessively atomistic interpretations of liberalism.

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Subjects By standard modernist formulations of the nature of constituent power the identity of the demos is uncontroversial; it is assumed to map neatly (and monistically) onto the boundaries of the state. The federal idea challenges this. And this is supported by new work on demotic pluralism of states where, as I say, James Tully’s groundbreaking work has been in the vanguard. Strange Multiplicity (1995) addresses the failure of modern constitutionalism to appreciate the full depth of cultural difference both in the particular practice of certain federations, but also in the ways in which the federal model has itself been constructed in theoretical terms. Liberalism has provided the intellectual background through which the homogenization of the demos within the modern state has developed. And this has also made its mark in federal systems. Liberal democracy’s principal normative commitments – to liberty and equality – have largely taken for granted that a unitary demos is the setting within which these values play out. In particular, it is assumed that in each state there functions one unified national community from which the rights and duties of citizenship flow among individuals who are in turn largely undifferentiated (at least for the purpose of how these values apply) by key markers such as territorially-based identity or ethnic origin. And this has influenced federal and proto-federal forms. As Tully observes in the modern era within Europe: Diverse local and regional forms of laws, governments, democracy and citizenship – of village commons and free city communes – where they were not destroyed completely, were marginalized or transformed and subordinated as they were brought under the rationalization of the central institutions of the modern nation state. Modern citizenship was nationalized at the same time as local citizenship was subalternized. The people were socialized by education, urbanization, military duty, industrialization and modern citizenization to see themselves first and foremost, not as citizens of their local communities, but as members of an abstract and “disembedded” imaginary community of nation, demos and nomos of formally free and equal yet materially unequal citizens, with an equally abstract imaginary of popular sovereignty they mythically embodied and exercised

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through the individual liberties of modern citizenship attached to the central legal and representative institutions. (2008c, 21) The federal idea challenges this process and calls for the full diversity of the polity to be recognized so that the voices of its different communities are not reduced to a thin, deracinated and tendentious individualism. This will also require a rethinking of the modern idea of citizenship. Tully offers “diverse citizenship” as a model. This “is associated with a diversity or multiplicity of different practices of citizenship in the West and the non-West. The language of diverse citizenship, both civic and glocal, presents citizenship as a singular or “local” practice that takes countless forms in different locales. It is not described in terms of universal institutions and historical processes but, rather, in terms of the grass roots democratic or civic activities of the “governed” (the people) in the specific relationships of governance in the environs where they act and of the glocal activities of networking with other practices” (ibid., 16). The federal idea is a commitment to a pluralized vision of the demos, and brings with it intriguing possibilities for a re-envisioning of citizenship within the federal polity. Authority The modern state constitution has been constructed in a unitary way, with a unified model of sovereignty. It is ironic in retrospect that this has become the default position of constitutionalism when in fact the philosophical origins which made the unitary constitution a general prescription for government were themselves in large part historically contingent.6 It is against this backdrop that modern constitutionalism has either been hostile to the federal idea or has attempted to bend it towards the dominant temper for unitary sovereignty. Let us take one example of how the dominant model of constitutional sovereignty has played a role in centralising power within a federal state. We see this in the early life of the US federation through the work of the Supreme Court. McCulloch v. Maryland 7 concerned the balance of constitutional power between the central government and federal sub-units within the federal system. In the early years of the constitution there remained an uneasy standoff between the “sovereign” powers of the states and the “sovereign” powers of the centre. In McCulloch, the Supreme Court determined that the

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Constitution of the US, in addition to granting the federal Congress express powers, also accorded it with implied powers in order to implement the former. This was a crucial step in consolidating the legitimacy, and in time the expansion, of the powers of the federal government vis-à-vis the States. It also established that State action could not impede the federal government in the proper exercise of its constitutional authority. This is notable first for the power assumed by one central institution, the court, to make such a decision. Such a power is taken for granted today in federal systems, but it is often overlooked that higher courts in federal systems consider themselves to be institutions of the central state, and their role has often been to centralize power within the state. Behind this shift in McCulloch seems to be a further implicit declaration on the part of the Supreme Court: namely that it is acting in the name of one united political people.8 The plural sovereignties of the country’s multiple constituent powers were deemed to have been surrendered. Insofar as constituent power remained a legitimate force, its constitutional identity had shifted from the individual demotic power of each of the states to become the undifferentiated sovereignty of one American demos (Griffin 2007). Furthermore, its potency was now emasculated by being transferred to and encapsulated by the sovereignty of the Constitution. By this double shift, the sovereignty of the free revolutionary peoples of the several states had been transformed into the constrained sovereignty of one, unified constitutional people and that sovereignty was now to be expressed only in the manner and form permitted by the constitution as policed by the Supreme Court. This principle has set an important precedent for the constitutional design of federal states since then. And here the international order of states has helped to consolidate the notion of a unitary sovereignty which overarches the supposedly divided sovereignty of the federal model. For example, international law barely recognizes territorial entities below the levels of states and makes clear that states cannot use the existence of a federal system as an excuse for nonperformance of international obligations. But what of the conditions of possibility? The story of American federalism is not a universal story. As Tully notes: “there is more of a basis in existing practices for democratizing and pluralizing federations than our current theories and histories of federalism recognize” (2009, 212). It seems that the Supreme Court of Canada was alive

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to the possibilities within the federal idea in its Secession Reference opinion, about which Tully (2001) has written at length. This is an imaginative attempt to rethink the federal origins of the Canadian Constitution in a way which pays regard to the key purpose of the federal idea being the building of a genuinely pluralistic democracy. What is needed then is a re-examination of how federal systems have been shaped by the dominant monistic approach to sovereignty in our age, and how the federal idea can help us to overcome this, retrieving the federal idea as a way to legitimize new and radical patterns of shared authority within a more capacious conception of sovereignty and its sources. Purpose and Principles Inevitably the homogenizing dynamics of the modern state which have shaped the model of government, structure of authority, and demotic composition of the polity, forming federal as well as unitary states, have brought with them implications for how the purpose and principles of the polity have emerged. Federalism in Tully’s definition is an association of communities; in this way it combines autonomy and associational rule: balancing pluralism and union. It is the simplicity of this definition that provides its richness – all communities, and not just the formally delineated communities of the formal federal construct. And more than this: “‘Federalism’ refers to the various ways in which communities that make up the federation govern themselves and their interactions with each other by means of legal and political pluralism” (2009, 195). The principle of autonomy within the federal idea applies then to how communities govern themselves as well as to how they interact through associational government with other collective constituents. What is vital in the instantiation of the purpose and principles of federalism is that the constitution in question arrives at a workable and reflexive institutional structure that reflects the precise demotic conditions of the federal polity in question. Design The federal idea anticipates a model of government founded on a pluralistic vision of democracy. But in practice it is not uncommon to find states that assume the name “federal” but which oper-

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ate in a highly centralized manner. This may be a consequence of self-conscious constitutional design or it may have developed over time in this way.9 This does not necessarily mean that the federal idea has been corrupted. It is not inconceivable that a state which once had strong patterns of territorial diversity has over time become more homogenized. But in other cases it may be that the transition is a consequence of a power grab by the central authorities, by one or more powerful communities within the state, or by both of these forces acting in unison. Here we gain insights from Tully’s work on imperialism (e.g., 2016; 2008b; 2007). When societal differences are not fully taken into account, the federal model, like other constitutional models, can serve as a mask for imperial power, privileging particular interests at the expense of others. In fact, a new field of research on federalism has begun to address the influence of hegemons within federal systems (Schönberger 2012). This returns us to the nexus between federalism and statehood. Federalism in its modern form is tied closely to the parallel development of the modern state; a synonym for “federal system” is indeed “federal state.” It seems that, particularly in light of the misrecognition of cultural difference and the patterns of imperialism that can infect the federal model, this nexus between federalism and statehood needs to be re-examined in light of broader work which in recent times has revisited the dominant Westphalian model of statehood and found within it systematic patterns of homogenization, nonrecognition of difference, and a tendency to centralize political and legal power. And of course James Tully’s work has been central to this (2008a; 1995). Unsurprisingly the dominant unitary and centralizing dynamic of nation statehood has affected federal as well as other systems. More research is needed to explore the extent to which the value of pluralism which is specific to the federal idea (as it is also to the plurinational idea) has been belied in practice. Dynamics The principle of consensual decision-making backed up by the full participation of communities in this process through open and meaningful deliberation is also a challenge which comes with the

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federal idea. But we do not always see such an approach in federal models which have retrenched into mentalities of competition and sometimes mutual hostility. This is another sign of the subsumption of the federal idea within a universalizing, and ideologically particular, approach to modern constitutionalism. This liberal approach is particularly unhelpful when it brings with it a skepticism for popular politics. The model of democracy favoured by liberal capitalism is characterized by the occasional and often highly dislocated engagement of citizens. A consequence of this is that, as Tully observes: “Democratic citizenship has been disconnected from the actual exercise of powers of self-government and reduced to voting and public deliberation” (ibid., 207). The move towards ever more elaborate constitutions and the entrenching of political values beyond the reach of everyday decision-making are features of liberal constitutionalism. This has inevitably also affected federal states; indeed the Madisonian model of federalism was itself founded in an attempt to trap politics within the constitutional machine. In other work I have attempted to set out the principles of civic republican deliberative democracy. These I take to be: participation, public reasoning, equality, and parity of esteem (Tierney 2012). It seems that an approach applying these principles to federalism might also be useful in raising the question: how might recent developments in deliberative democracy help improve patterns of decision-making within federal polities? The federal idea seems therefore to call for a more open approach to decision-making that provides communities with meaningful roles. As Tully puts it, adapting the early scholarship of Pierre Elliott Trudeau: “the ‘practice of federalism’ begins with the democratic participation of citizens in … local organizations” (2009, 206). This open approach to decision-making, taking full account of communities, is also a call for deliberation not only between federal units and the centre, but within federal units too. And in all of this it is vital to keep politics open and free of the constraint of excessively rigid constitutionalism: that is, “the freedom of the members of an open society to change the constitutional rules of mutual recognition and association from time to time as their identities change” (Tully 2001, 5).

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co nc lu si on Federalism has proliferated greatly in recent decades, as has scholarship in the area. A corollary of this proliferation is the diversification of federalism in many new ways within very different states facing a wide range of demotic challenges. This process challenges many of the assumptions about federalism with which we have long worked, not least an attempt to define and understand federalism through institutional analysis alone. In light of ongoing developments it does now seem that further theoretical interventions are needed. I have argued that there is a federal idea which lies behind the practice of federalism and that it is timely to go back to first principles to try to identify what this contains. I have argued that this should properly be addressed through the methodology of constitutional theory, and that here James Tully’s practical philosophy can act as a means of bringing out the combined conceptual and functional-normative components immanent within this idea. I have also attempted to draw out some aspects of the federal idea, although this has been done in sketch form and with some degree of speculation, more as an aid to debate and guide to further work than a definitive assessment. James Tully’s work also suggests that the role of practical philosophy is not just to identify phenomena more clearly but to find the conditions of possibility within them through which civic freedom might be enhanced. On this basis I have argued that we need to retrieve the federal idea from federal practice as it has been distorted by the patterns of power inherent within the Westphalian model of the state and the ideological apparatus which has served to support its homogenizing trajectory by way of one monistic approach to constitutionalism and the demotic base which sustains its legitimacy. Again I have tried to suggest some of the possibilities present within the conceptual and structural framework of the federal idea. Much work remains to be done to bring together the richness in James Tully’s philosophy in full engagement with the federal idea. But the challenges of our time demand that this work be undertaken. n ot e s 1 Spain’s model of decentralization is potentially open-ended while in the uk, following the Scottish independence referendum in 2014, we are also

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seeing moves towards the further decentralization of the state through for example the Scotland Bill 2015–16. He continues: “At best there is partial theory based upon rigorous conceptional analysis and the pursuit of terminological precision. At worst there is crass empiricism rooted in the failure to develop concepts and define the key terms” (Burgess 2006, 1). The Federalist Papers (1788) being the obvious example. As Burgess comments: “Since the end of the Cold War we find most of the classic theories of federal state formation and their subsequent maintenance simply redundant” (2013, 11). Notably, Elazar also arrived at this number using the narrower species of “formally federal systems in the world today” (1994, xvii). The philosophical standard-bearers for the Westphalian model in its origin and early development – Bodin and Hobbes – were responding to a world in crisis. The upheavals of the Thirty Years War and the English Civil War made stability the key goal in the seventeenth century. A powerful sovereign who could bring peace at home, determine the religion of the polity, and be protected from external interference by a state system of equal sovereigns, was a highly attractive solution to decades of religious wars across Europe. 17 US 316 (1819). As Requejo puts it, American federalism “is fundamentally a uninational model that avoids the basic question, unanswered in democratic theory, about who the people are, and who decides who they are” (2005, 61). For example, Feeley and Rubin (2008) conclude that the usa is now federal more in name than reality.

r e f e re n ce s Al-Ali, Z. 2014. The Struggle for Iraq’s Future: How Corruption, Incompetence and Sectarianism Have Undermined Democracy. New Haven: Yale University Press. Burgess, M. 2006. Comparative Federalism in Theory and Practice. London: Routledge. – 2012. In Search of the Federal Spirit: New Theoretical and Empirical Perspective in Comparative Federalism. Oxford: Oxford University Press. – 2013. “Opening Pandora’s Box: Process and Paradox of the Federalism of Political Identity.” In The Ways of Federalism in Western Countries and the Horizons of Territorial Autonomy in Spain, edited by Alberto

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López-Basaguren and Leire Escajedo San Epifanio, 3–14. Volume 1. Berlin: Springer. Burgess, M., and A-G. Gagnon, eds. 1993. Comparative Federalism and Federation: Competing Traditions and Future Directions. London: Simon and Schuster. – eds. 2010. Federal Democracies. London: Routledge. Elazar, D. 1987. Exploring Federalism. Tuscaloosa, al : University of Alabama Press. – 1994. Federal Systems of the World: A Handbook of Federal, Confederal and Autonomy Arrangements, 2nd ed. Harlow: Longman. Feely, M., and E. Rubin. 2008. On Federalism: Political Identity and Tragic Compromise. Ann Arbor, MI: University of Michigan Press. Franck, T.M. Ed. 1968. Why Federations Fail: An Inquiry into the Requisites for Successful Federalism. New York: New York University Press. Gagnon, A-G., and J. Tully, eds. 2001. Multinational Democracies. Cambridge: Cambridge University Press. Griffin, S.M. 2007. “Constituent Power and Constitutional Change in American Comstitutionalism.” In The Paradox of Constitutionalism, edited by M. Loughlin and N. Walker, 49–66. Oxford: Oxford University Press. Hueglin, T. 1999. Early Modern Concepts for a Late Modern World: Althusius on Community and Federalism. Waterloo: wlu Press. Hueglin, T., with A. Fenna. 2006. Comparative Federalism: A Systematic Inquiry. Peterborough: Broadview Press. Karmis, D., and W. Norman, eds. 2005. Theories of Federalism. New York: Palgrave Macmillan. Knop, K., S. Ostry, R. Simeon, and K. Swinton, eds. 1995. Rethinking Federalism: Citizens, Markets and Governments in a Changing World. Vancouver: ubc Press. Loughlin, M. 2003. The Idea of Public Law. Oxford: Oxford University Press. – 2014. “Constitutional Pluralism: An Oxymoron?” Global Constitutionalism 3 (1): 9–30. Madison, J. 1961 [1788]. “The Federalist No. 51.” In The Federalist Papers, edited by Clinton Rossiter, 320–325. New York: New American Library. Oliver, P., and S. Tierney. 2014. “Book Review/Response, Constitutional Referendums: The Theory and Practice of Republican Deliberation.”

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Int’l J. Const. L. Blog, 25 February. http://www.iconnectblog. com/2014/02/book-reviewresponse-stephen-tierney-and-peter-oliver Requejo, F. 2005. Multinational Federalism and Value Pluralism. London: Routledge. Schönberger, C. 2012. “Hegemon wider Willen: Zur Stellung Deutschlands in der Europäischen Union.” Merkur: deutsche Zeitschrift für europäisches Denken 66: 752. Scott, K. 2011. Federalism: A Normative Theory and its Practical Relevance. New York: Continuum. Tierney, S. 2004. Constitutional Law and National Pluralism. Oxford: Oxford University Press. – 2009. “Federalism in a Unitary State: A Paradox Too Far?” Regional and Federal Studies 19 (2): 237–53. – 2012. Constitutional Referendums: The Theory and Practice of Republican Deliberation. Oxford: Oxford University Press. – 2018. “Federalism and Constitutional Theory.” In Comparative Constitutional Theory, edited by Gary Jacobsohn and Miguel Schor, 45–65. Cheltenham: Edward Elgar. – 2022. The Federal Contract: A Constitutional Theory of Federalism. Oxford: Oxford University Press. Tully, J. 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. – 2001. “Introduction.” In Multinational Democracies, edited by A-G. Gagnon and J. Tully, 1–33. Cambridge: Cambridge University Press. – 2002. “Political Philosophy as a Critical Activity.” Political Theory 30 (4): 533–55 – 2007. “The Imperialism of Modern Constitutional Democracy.” In The Paradox of Constitutionalism, edited by M. Loughlin and N. Walker, 315–38. Oxford: Oxford University Press. – 2008a. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. – 2008b. Public Philosophy in a New Key. Volume II. Cambridge: Cambridge University Press. – 2008c. “Two Meanings of Global Citizenship: Modern and Diverse.” In Global Citizenship Education: Philosophy, Theory and Pedagogy, edited by M.A. Peters, H. Blee, and A. Britton, 15–40. Rotterdam: Sense Publications. – 2009. “Federations, Communities and their Transformations: An Essay in Revision.” In Dominant Nationalism, Dominant Ethnicity: Identity,

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Federalism and Democracy, edited by André Lecours and Geneviève Nootens, 195–212. Brussels: Peter Lang. – 2016. “On Law, Democracy and Imperialism.” In Public Law and Politics: The Scope and Limits of Constitutionalism, edited by E. Christodoulidis and S. Tierney, 69–101. 2nd ed. London: Routledge. Watts, R. 1999. Comparing Federal Systems. 2nd ed. Montreal and Kingston: McGill-Queen’s University Press.

14 Reimagining Supranational Belonging: James Tully on the European Union Helder De Schutter

Most of my work has been dedicated to exploring the normative foundations of language policy, nationalism, and federalism. For such topics, Jim Tully’s work is of crucial importance. I have been especially influenced by the particular type of public recognition of collective identities that Tully advocates. Tully goes at great length to respect and preserve instances of hybridity, dynamism within cultures, overlapping identities, minorities within minorities, and so on. Emphasizing this dimension of cultural identities and their recognition has been a less central feature of multicultural attention in normative political philosophy compared with other fields like sociology or cultural anthropology. It is often the case that those who emphasize hybridity are less interested in formal state recognition of cultural identities, whereas those who advocate such state recognition often (strategically or not) tend to de-emphasize hybrid dimensions of cultures in favour of a “billiard” conception of cultures (Tully 1995, 10) as separate, bounded, and internally uniform. In my own work, I have felt blessed to have Tully’s work as an exemplar of combining state recognition of cultures with respect for the fuzziness of group boundaries and internal cultural negotiation. It has helped me to understand the importance of introducing postcolonial concerns into political philosophy and to bolster my intuition that solutions like linguistic territoriality (mandating only one public language per territory) or conceptions of citizens in multinational states as fundamentally mononational are not normatively desirable.1

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The topic of my chapter is a phenomenon to which Tully has in recent years begun to apply his argument for contested and constantly renewable modes of recognition: the attempt to build a European Union, and the process of doing so in the context of established national and sub-national identities. In my view the biggest question for political philosophy in our age is how to deal with claims of justice and democracy that transcend the nation-state. Should we keep justice and democracy domestic, or should we seek to extend our ideals of domestic justice and democracy onto the transnational realm? Should we socio-economically redistribute, for example, only between conationals or should we seek to ultimately organize such redistribution across nations? In this question of global justice, the European Union plays an important role. Today the European Union is the most successful transnational political entity in the world, and it realizes an effective amount of eu -wide rights and generates a degree of redistribution between member states. As I will explain below, I consider the existence of the eu as a moral achievement, and its further integration and expansion a moral duty, precisely because of this capacity to widen circles of justice and solidarity. This places me in somewhat troubled water with Tully’s take on the eu . Tully argues that we should not conceive of European integration as a morally necessary process. Instead it should be a negotiated process that depends on what the people themselves think and voice as concerns. And that process should not have as its goal the construction of a European demos but should instead involve the existing demoi. He argues that we should not reproduce a dangerous minority-crushing nation-state logic at the level of the eu . While I appreciate the potential danger, in my opinion we are today not to worry that the eu would crush minorities. Instead, we should worry about the lack of support for the existence of the eu and about its lack of depth (and width). In my judgment, the moral weight should in the current debate be put on further building the eu by deepening and even widening it. Tully and I do find common ground in arguing that the eu should respect national and sub-national identities, but I think the normative challenge today is to further construct it and make it more closely resemble a multinational state, with an overarching demos, than it currently does. Making such an argument, however, presupposes that it can be the task of the political philosopher to formulate a normative ideal for political action. Tully however is critical of the universalist moral

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pretences at the heart of normative undertakings. Yet Tully does engage in normative theorizing himself. For example, he favours a European democracy that works with national demoi rather than itself being legitimized by an overarching demos. I will argue for a different normative vision that defends the demos view. But to be able to present a different normative vision, I need to first salvage the normative endeavour. This chapter therefore has two parts: I first try to safeguard a normative role for political philosophy which I think is in line with Tully’s warning against universalist normative ambitions. I then zoom in on the eu and argue that Tully’s concern with limiting the eu’s powers ends up being conservative. This then allows me to show why supranational belonging is in my view important, and what it entails.

1. t u lly a n d n or mati ve p oli ti cal phi losophy Tully is opposed to the kind of political philosophy that assumes that there is a correct solution to political conflicts that embodies universal reason and is laid down in a “definitive theory of justice” (2008b, 97). This supposedly correct solution is arrived at monologically, in the head of a theorist of justice, such as Immanuel Kant (ibid., 39), who prescribes what communities are to decide. What justice entails is understood as constituting the limits of democracy: democracy is to carry out what already was established, prior to democracy, as the content of ideal platonic laws. This view then allows for a universal ranking of societies in terms of how close they are to the ideal. Disagreements and solutions that do not copy the ideal are portrayed as backward, unreasonable or not yet modern enough. Political theories expounding such views tend to think of themselves as entering “into a relationship with citizens under the horizon of a political theory that sets them above the situated civic discourses of the societies in which they live” (2008a, 8). They believe “there are universal normative principles that determine how citizens ought to act” and then go on “to study these unchanging principles that prescribe the limits of democracy” (ibid., 9). What Tully advocates instead is to work in a bottom-up fashion that respects the democratic input of democratic actors. Struggles over what should happen should occur in a dialogical or multilogical process, which is open-ended and allows for negotiation

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and contestation all the way down. The desirable course of action is arrived at through a multilogue involving all actors rather than independently in the mind of the philosopher. Tully’s position is similar here to the one endorsed by Habermas in the latter’s critique of John Rawls’s theory of justice. To be clear, Tully also rejects what he sees as the transcendent, moral high ground occupying nature of the Habermasian ideal speech situation. But like Habermas he argues against Rawls’s prepolitical account of justice and for the fact that the content of justice is arrived at through public debate. In his alternative approach to political theory, therefore, Tully’s “aim will not be to retreat to an abstract normative point of view and elaborate standards for norms of mutual recognition and procedures of negotiation” (ibid., 314). Instead, political theory is to become a practical philosophy that seeks to “disclose the historically contingent conditions of possibility” of a particular set of practices of governance. This disclosure may transform the self-understandings of subjects, “enabling them to see its contingent conditions and the possibilities of governing themselves differently” (ibid., 16). This political philosophy is thus interpretive and critical, rather than normative. Tully is in my view right to emphasize the danger in believing that one’s understanding of universal reason is to prescribe the limits of democracy, and that the existence of disagreement with that position signifies unreasonability. I agree with Tully that, in order to be politically legitimate, a particular position must be democratically endorsed, and proposals for political change must find a collective will. It is unreasonable to impose supposedly discovered platonic laws on others who disagree. And this means that struggles over political action must occur in a multilogical fashion, that is open to contestation all the way down. But saying that does in my view not dismiss the entire project of justice theorizing. It is one thing to say that a normative theory should not preclude the democratic debate. It is quite another to think public philosophy should not “develop a normative theory as the solution to the problems of [oppressive ways] of being governed, such as a theory of justice, equality or democracy” (ibid., 16), or should not outline “standards for norms of mutual recognition” (ibid., 332). Normative theory need not be committed to the view that the right moral answer can be imposed on democratic groups. Instead, analyses of justice and morality could be offered as inspiration or moral guidance to democratic societies. The latter option

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represents how I understand one task of the political philosopher: to present societies with well-thought-through analyses of the just course of action. Citizens often experience moral insecurity over what the right societal decisions are, and the role of the normative theorist is to offer moral analysis, and a sense of a suggested direction. Should we legally enable homosexual marriages? Should saving moribund languages be an urgent political priority? Should we expand the European Union, or not, and should the eu integrate more, or not? Such questions are just a few examples of questions over which many citizens are at a moral loss. Political philosophers can help here, not by uncovering the universally right answer once and for all, but by offering elaborated viewpoints that can inspire citizens and political actors. There is in my view no platonic knowledge that political philosophers have access to and can bring to the table to accomplish this task. They are of course trained in reasoning, in detecting contradictions, in disentangling arguments, in placing things in some historical perspective, in keeping underexplored paths visible, in making clear how particular answers stand within particular ideologies, and so on. But, apart from training, perhaps the most important asset of normative political philosophers is that they have time: time to reflect, to enter into dialogue with others, to uncover historical ways of understanding the issue at stake, to read up on the empirical and normative literature on the matter, to articulate a normative vision of their own, to publish it, to write opinion letters, to revise it in the light of counterarguments, and so on. It is good for a society to have a group of citizens who see it as their business to think through difficult moral issues and to provide suggestions for answers. These suggested answers are then offered within the public debate, for other citizens and political actors to either wholeheartedly reject or draw from and further reflect upon in advancing political arguments. The citizens themselves can take them up, modify them, and make them speak better to their own concerns. In that public conversation, there is no “ex cathedra” relationship between the normative theorist and the public: the normative theorist is just a citizen who participates in the discussion, and who encounters disagreement. In this conception of the normative task of the political philosopher, the norms are not predemocratically imposed on the democratic debate. They are predemocratically conjured up in the mind of the theorist, who then offers them as a possible position in

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the democratic debate. It is there that they may be taken up, but even then they pass through a process of collective-will formation. They are merely offered: they are not supposed to preclude or prescribe democratic debate, but to enrich it. Politicians and voters must decide whether or not to implement them. As Philippe Van Parijs has put it: “A democratic majority must decide. But this must not stop political philosophers from telling them what it should decide and why” (2011, 4). Societies can use a number of people who can, when they are at their public best, enable citizens to perceive moral opportunities on the democratic menu that those citizens might otherwise miss, to understand how different policies are connected by a common moral stance, to get a sense of the distinct moral concerns that come into play with regard to a particular societal question, and to hear some examples of what an intelligent way of resolving the conflicting moral interests could look like. I agree with Jocelyn Maclure’s assertion that “we might agree with [Tully] that it is the citizens themselves who ought to decide … and still hold on to the idea that … coming down with normative prescriptions … remains one of the political philosopher’s tasks” (Maclure 2007, 53). None of this necessitates speaking with the voice of universal reason, although that pretence does still exist, which is why a diversity of normative voices is healthy. So Tully’s warning against top-down moral theorizing cannot in my view justify a rejection of normative political theory. It is instead perfectly compatible with the democratic input version of it I just sketched.There is no reason why that version should harm Tully’s open-ended approach; instead it may nourish it. As Tully says himself at one point: “Normative studies … continue to play an important yet less lofty role, in dialogue with citizens engaged in actual conflict on the ground” (2008a, 315).

2 . t u l ly o n th e eu ropean uni on One question over which many citizens in Europe are at a moral loss is the European Union. This transnational institution has currently twenty-seven member states, most of which share one common currency, allow for internally very open borders, collectively uphold European citizenship, and together have initiated a certain extent of cross-national socio-economic redistribution. Should the eu integrate further and for example seek to transplant the level of socio-economic redistribution found at the level of the member

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states internally to the eu as a whole? And should the eu further expand as it has done in the past, now to for example states like Serbia, Turkey, or Ukraine? Part of the reason why people are often morally hesitant about these questions is that they entail a kind of discussion that is different from ordinary political discussions. Ordinary political debate concerns the content of the policy that is to be upheld: it includes for example questions over how to react to terrorism, of whether to have multicultural curricula in public schools or what the right level is of redistribution between those who are socio-economically advantaged and those who aren’t. But discussions over the eu do not only concern the content of the policy that is to be pursued; what is centrally at stake is the appropriate level for policies to be decided at: should that level be the member state, or the eu ? Except for citizens of federal member states that often have internal policy-level discussions, such as Spain or Belgium, these are relatively new questions. And yet people need to make such decisions: they have been asked to vote in referenda for and against a more integrated Europe (such as in Denmark and Sweden over the Euro; in Spain, France, Luxemburg, and the Netherlands over the failed European Constitution attempt; in Ireland over the Lisbon Treaty; in Croatia over accession; and in Britain over secession). Such discussions are reminiscent of discussions about the appropriate level of policy-making in federal multinational states. It appears to me that Tully’s bottom-up, dialogical approach steers the debate over the future of the eu in one particular normative direction. Speaking from the position I outlined in part 1 of this chapter, I think this particular direction is unfortunate. I will now explain this direction and then argue why it is in my view unfortunate. In several contributions, Tully brings his public philosophy and his criticism of positions relying on ideas of a universal progression towards justice to bear on the European Union. He argues that European integration should be an open-ended process: it is not morally predetermined in what direction the eu ought to be going. We should not impose a particular norm of integration appealing to a universally necessary process of Europeanization as the only correct endpoint (2008b, 229): “the dialogues or, rather, multilogues of negotiating the terms of integration are not some discrete step towards a final endpoint. They are on-going, open-ended and non-final constituents of a democratic way of life” (ibid., 230).

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Much of what Tully has to say about democratizing the European Union, and about transnational citizenship more generally, runs in parallel with Tully’s take on the multinational state presented in Strange Multiplicity (1995). There Tully stresses that a constitution should not be understood as laying out the final values of a state but rather is to be seen as the temporary result of an ongoing open-ended process of people and peoples who together carry out a shared project that should be as much as possible in line with their own expectations and recognitional needs. There are no final solutions, to be handed down as a straightjacket to the people themselves (Tully 2008a, 301). Similarly, it is crucial that the content of the norms of European integration is in tune with what the people want. What needs to happen depends on people’s own understandings. More European integration, if it occurs, should therefore be in touch with local norms. Moreover, “[o]fficial integration will be effective only if it is internally related to and shaped by popular practices of integration, rather than running roughshod over them” (Tully 2008b, 231). So for Tully there is no predetermined moral answer: every step the eu sets is open and depends on what Europeans want. As a result, we need to involve the citizens in this open-ended process and let them negotiate where the eu is to be headed. And to involve the citizens, we need to involve the demoi to which they belong. Tully therefore argues that the “demos-problem” in the eu is misunderstood. It is usually construed as a problem of a lack of a shared demos (with a shared language, shared cultural practices and so on) at the level of the eu . But “there is not a ‘no demos’ problem in the eu . There are multiple demoi but they tend to be overlooked and so either excluded from official integration processes or included in them and subordinated to elite-driven and assimilative procedures” (ibid.). The eu should not aim at bringing about one demos. Instead the right eu is a union that “brought itself into a conversation of reciprocal elucidation and co-articulation with the demoi who have been there since daybreak” (ibid., 242). Instead of building a new, imperial project of the eu where everyone is united under one homogeneous demos, we should instead recognize collective self-determination and the democratic participation of the European peoples. In this democratic analysis of the eu , we can distinguish two claims, which I will criticize in turn. The first is that the norms of

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integration are to be open-ended. The second is that the eu does not need one common demos but needs to engage the different existing demoi. In response to the first claim, I think we need to distinguish between democratic open-endedness and moral open-endedness. In line with my argument about the normative role of the political philosopher, I believe, just like Tully does, that democratic agents should decide what happens with regard to eu integration and expansion. Every step should be democratically discussed in an open-ended fashion, and no Europeanization should occur against or without the will of the people. In this democratic discussion, all options must be on the table, from a breakup of the project of the eu to a unitary European state. But that does not mean that all democratically chosen steps are equally morally good. As far as the content of the matter is concerned, we are, in my view, not in a situation of normative neutrality, where anything goes. We ought to abide by the democratic decision, but not every decision is morally of equal value. Whether that outcome is secession, a weaker eu , or a stronger eu , is not something over which we should hold moral silence in virtue of democratic openness. On the contrary, one crucial task for political philosophers is to present attractive and accurately thought through models of what the eu should be like. The goal of these models should not be to preempt the democratic outcome but instead to feed it, to make the decision makers (the citizens) aware of the moral implications at stake in the debate leading up to the decision. And these models are then not to be understood as the dictates of universal reason, but instead as particular, engaged, situated inputs in the democratic debate itself. The second claim is that the requirements of making the debate over the eu democratic imply refraining from building an eu demos and instead seeking to involve the existing demoi (ibid.). Involving the existing demoi is required by the idea that we need to democratically engage the citizens themselves. Tully does not extensively elaborate this idea. But what he defends here coincides with one particular position in the debate in political theory over the European Union. The view that we should not make one eu -wide demos but instead work with the different existing demoi is the central claim within that debate of a now established position called demoicracy (see for example Nicolaïdis 2004; Bellamy 2013; Cheneval and

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Schimmelfennig 2013). Demoicrats are positive about the potential for democracy within the eu , on the condition that we recast democracy for the eu in a transnational and intergovernmental direction. On this view, the eu is not to mimic the democratic structure of the nation-state apparatus, by, among other things, creating an eu demos. Instead it is indirectly democratically legitimated through the nation-state. As the demoicrat Will Kymlicka has eloquently put it, concerning the citizens of, for example, Denmark: “the debate they wish to engage in is not a debate with other Europeans about ‘what should we Europeans do?’ Rather, Danes wish to debate with each other, in Danish, about what we Danes should do. To put it another way, they want Denmark to be part of Europe, but they show little interest in becoming citizens of a European demos” (2001, 325). The idea is then not that Europeans as Europeans discuss European affairs, but that they do so as members of national peoples. It is important to understand that the eu -demoicratic position stakes out a position that provides normative backing for one constitutive element of the current eu at the expense of another. The current eu has two pillars of democratic legitimacy: one operates through centralizing institutions such as the European Parliament, which is directly elected by eu citizens, and the other through the representatives of the member states, in particular the national ministers of each policy area (the Council of the European Union) and the heads of the member states (The European Council). The first represents what can be called the supranational element of the eu , whereas the second embodies its more transnational or intergovernmental element, steered by the representatives of the national demoi. Demoicrats normatively prioritize the transnational element and think it is the eu ’s central source of legitimacy. The idea is that national representatives come to the eu negotiation table with mandates from their respective demoi. Demoicrats recognize there currently are two types of democratic legitimacy, but they give normative priority to the transnational type. I have two qualms with Tully’s demoicratic argument. Firstly, this argument sits uneasily with his first claim – the plea for open-ended and nonrestrictive democracy. In my view, a defence of open-ended forms of democracy should leave the type of eu belonging or the kind of eu policies open. To be really open-ended, democracy should not be committed to any particular view of eu belonging. It is to the European citizens to determine the kind of union that they

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want. A democratic theory should accept the political method for steering the eu that is democratically arrived at, whether it is one that involves demoi, one unified demos, or a combination of both. It should not work with a universal or prepolitical conception of democracy stipulating that democracy intrinsically requires international institutions to be demoicratic. But, secondly and more fundamentally, there are moral issues at stake in democratic decisions over the European Union’s institutional makeup. And while Tully and I agree that democratic agents are to decide what happens, in my view normative theorists should present attractive visions of what the democratic agents are to decide regarding the organization of eu justice, as part of the democratic discussion. I find this all the more important precisely because many European citizens are unsure about the right course of action with regard to the eu ’s democratic future. Many people seem to believe that what is decided with regard to the eu ’s future and its form of democracy is morally arbitrary, as a result of which we can just vote for those positions that we deem to be in our self-interest. But that view is in my opinion misguided. What happens in the eu is not morally random: whether or not we will erect a European welfare layer or not is a moral decision; there are moral stakes with regard to whether or not we are to give up national armies and replace them with a European army; and the type of democracy we choose for the eu will have effects on the previous two questions and on the likelihood of the emergence of a European public interest and is therefore also a morally charged question. With regard to the specific question over the attractive democratic model for the eu , I disagree with the demoicratic idea and instead support the more conventional demos-cratic (or simply democratic) ideal, the ideal that we should strive towards the further development of an eu -wide demos. In my view, the eu ought to institutionally enable a European-wide demos involving all European citizens who discuss with and justify to one another, as Europeans, what the right future is for the eu . This implies strengthening fora where such discussions can be had, and continuing the course to safeguard and further entrench the supranational elements and institutions of the eu, such as qualified majority voting (so that not in each case a consensus between all member states is required), eu -wide referenda, or further reforming the European Parliament such that it more closely resembles a national parliament and becomes the primary agent

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of democratic-will formation in the eu . This does not imply that national demoi are to be abolished: national demoi are the agents of domestic democracy in the member states, and they also have a key role to play in eu politics, quite similar to the role states (or provinces) play in the senate of federal states (such as in the US or Germany). But in addition to involving national demoi, we should pursue the course that leads to the democratic involvement of a European demos, and thereby support both pillars of democratic legitimacy for the eu : the transnational as well as the supranational pillar. So my argument supports eu -wide demos-cracy alongside existing intergovernmental institutions at the level of the eu . This is in contrast to the demoicratic ideal that advocates a transnational eu steered solely by the member states. The justification for my argument for an eu that operates on the basis of the more traditional concept of democracy is grounded in the fact that a shared demos can generate something that multiple demoi alone are unlikely to sufficiently establish: solidarity. To see this, let us go back to the demoicratic argument developed earlier by Will Kymlicka. Kymlicka argues that, given the normative importance of member states’ national identities and cultures, the proper form of European togetherness is the one that organizes the eu as a meeting point for the nations of which it consists. Danish citizens establish, amongst Danes, in the Danish public sphere, what the eu is to do for them. For Kymlicka, there are several reasons why we ought to support nations. One of these is the fact that nations allow citizens to see other citizens as “one of us.” This mutual identification is good for redistributive purposes: “people are more likely to make sacrifices for others if these others are viewed as ‘one of us,’ and so promoting a sense of national identity strengthens the sense of mutual obligation needed to sustain liberal justice” (Kymlicka 2001: 334). So promoting a Danish national identity supports Danish redistributive justice. However, by not extending this redistributive argument for common identity to the European platform, Kymlicka’s, and also, Tully’s, demoicratic reasoning preclude not only the emergence of an eu demos but also the ability of Danish citizens to see fellow Europeans as “one of us.” This is where I prefer to part ways with the demoicratic argument. While in my view national-cultural and linguistic identity are normatively valuable and give rise to recognitional rights including language rights or certain forms of political autonomy, they should not play a role regarding issues of socio-economic wealth.

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This argument is grounded in moral cosmopolitanism. For the vast majority of people, national membership is morally arbitrary since it is based on pure, undeserved luck, and therefore ought not to play a significant role in the distribution of socio-economic resources. In my view, the scope of justice is resolutely global: there is no good moral reason why conationals enjoy moral priority over distributive justice, both in terms of what conationals are entitled to and in terms of what my duties are to those conationals. Moral cosmopolitanism has repercussions for the boundaries of distributive justice in the European Union. While far smaller than the world, the eu enables forms of distribution across the level of nation-states. That is one important reason for moral cosmopolitans to support European union: it enables a morally laudable widening of the circle of moral concern from the level of the member states to that of the eu . Since the average socio-economic levels of the citizens in less well-off eu member states such as Bulgaria are significantly lower than those of citizens in better-off member states such as, say, Denmark, there is a duty, I hold, for Denmark to contribute to this European distributive scheme, as Denmark does today. Of course, cosmopolitans support worldwide redistribution, not just European redistribution. But, in the eu , enlarging the solidarity scope is currently a reality, whereas a global sphere of redistribution is not significantly in the worldwide democratic cards, even though any steps that can be set in that direction must be taken (De Schutter 2017). Indeed, within the current eu , the moral cosmopolitan argument implies both deepening the eu , to allow for a more significant level of eu solidarity, and widening it, to allow for a further spreading of the solidarity. If this moral cosmopolitan account for enlarging solidarity levels makes sense, it has democratic corollaries. In particular, European redistribution and the enlargement of the moral community from member states to the eu , whether grounded in moral cosmopolitanism or in some other argument, is furthered by the emergence of European peoplehood, a European point of view where Europeans can think of Europeans from other nations as “some of us” for whom they are prepared to make sacrifices. An eu demos, embodied in the eu’s supranational pillar, expresses this eu-wide perspective. While Tully is right about the dangers of ignoring existing demoi, there is thus in my view also an argument for stimulating the emergence of an eu -wide demos.

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The demoicratic view of not supporting an eu demos but instead conceiving purely of national demoi that are to collectively steer the eu encourages a mentality that the uk prior to Brexit often exhibited in the eu , which can be summarized as the “what’s in it for me” view. It enhances the trend whereby Germany comes to the eu with the question of what Germany would gain from a Greek bailout, and whereby those societies that do not get many asylum seekers try and limit the European redistribution of entering asylum seekers as much as possible, so that those member states through which many asylum seekers enter the eu , like Italy and Greece, should handle the so-called migrant crisis by themselves with very limited investment of other member states. It does not make the more ambitious ideal of a generously redistributive eu that I outlined impossible, but it fosters a form of togetherness and democracy that makes that ideal institutionally unlikely to emerge. In response to the ambitious view of European demos-cracy I outlined (see also Van Parijs 2011, 77–9), some may point to the fact that a supranational European identity still does not exist in a robust form, that there is no real European people, and that it is not clear whether national identities will disappear or transform into supranational identities. However, a European identity and demos does not presuppose the erosion of national identities or the withdrawal of their political recognition. The point is that we can politically promote a eu -wide common cultural identity alongside state-wide and sub-state national-cultural identities. And while European identity surely is significantly weaker than national identities, it does exist. In fact, eu identity structures begin to resemble identities in multinational states, where many citizens are divided over the relevant unit of national-cultural identity, and where many citizens identify both with the state-wide identity and the sub-state national-cultural-linguistic identity. Data shows that 8 per cent of Europeans self-define as “European only” or “European and national”; 38 per cent self-identifies as “national only”; and 52 per cent see themselves as “national and European.”2 It is therefore not the case that the eu really suffers from a problem that the member states by definition do not have. Several eu member states are multinational states, such as Belgium and Spain: they contain more than one nation and have sought to politically accommodate such national identities (even though in some cases, especially in Spain,

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majority-only conceptions of overarching nationhood unfortunately get the lion-share of official recognition). These multinational states themselves can be understood to have a state-wide demos or peoplehood alongside sub-state national demoi. Citizens may be members of more than one national community at once (such as of the Spanish and of the Catalan nation simultaneously), and different individuals of the same nation may be internally divided with regard to which context is the most relevant one. For example, 38.7 per cent of Flemish respondents in a 2014 postelectoral survey answered that they self-identify as much with Flanders as with Belgium; 31.1 per cent self-identified as “Flemish only” or as “more Flemish than Belgian”; 29.8 per cent as “Belgian-only” or as “more Belgian than as Flemish” and while these figures are subject to change over time, they have been surprisingly stable in the past twenty-five years (Swyngedouw 2015, 22–3). So the suggestion that multinational states like Belgium or the United Kingdom present a drastically different form of state-wide identity than nation-states like France or the Netherlands is in my view flawed. People often indicate to have nested national identities, and it is such nested entangling that makes the existence of multinational states compatible with the principle of nationality, which mandates a correspondence between the level of politics and that of the nation (see Miller 20013). Citizens may feel Welsh and British, or Flemish and Belgian, at the same time, even though there is also a lot of identity disagreement among the Welsh and the Flemish populations, with significant minorities of people claiming to only experience the sub-state or the state-wide identity. If that picture is true of multinational states, then there is no principled reason to believe it could not also be true of the European Union. Such a situation would not only be possible from the point of view of respect for national-cultural identities; it would also be desirable from the point of view of enlarging the scope of justice. Not everyone will agree with this argument for the emergence of a supranational European moral community. But even those who disagree may agree that the issue of what Europeans do regarding eu justice is not morally neutral; this is a morally charged debate, and whether one takes a transnational-demoicratic position or the supranational demoscratic vision I have defended here, has great consequences for social justice.

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c on cl us i on I have questioned, in an articulation of the altera pars of Tully’s beautiful adage audi alteram partem (see endnote 1), which I hope to have honoured myself, the compatibility of Tully’s plea against a European demos and for European demoi with his insistence that decisions should be taken within an open-ended democracy. To do so, I have argued that normative political theory strengthens rather than weakens open-ended democracy. Only decisions that are democratically arrived at should determine the course of affairs. But as democratic citizens, normative theorists have an important role to play as the zealous framers of attractive possible projects that can be democratically taken up and discussed. And with regard to the European Union, in my view the normatively desirable course of affairs, the one that I hope could be democratically endorsed, is one that seeks to further build the eu , both by extending and by deepening it. Engendering supranational European belonging through the support of a European demos, much like state unity in a multinational state is pursued, is culturally possible and distributively desirable. Within an open-ended democracy, the option of bringing about such a demos is not to be blocked; it is instead to be proposed. no t e s 1 A second personal influence of Tully’s work is his insistence in much of what he does on the fact that we need to carefully contemplate viewpoints other than our own, referred to by Tully as audi alteram partem, which is a central notion in 7 of the 18 the chapters of Public Philosophy in a New Key. This aspect, which reminds me of Gadamer’s key and often-repeated phrase “It is possible that the other is right” (Gadamer 2000; 1997, 36; Grondin 1991, 160) – along with a postcolonial interest in justice for the subaltern, enables Tully, like Gadamer, to transcend the opposition between romantic essentialism and transparent ‘neutral’ objectivism, yet in Tully’s case not through a residue-less Gadamerian Horizontverschmelzung but through democratic multilogues. 2 See “Eurobarometer Spring 2015 – Public Opinion in the European Union.” 3 Miller argues that the nationality principle is compatible with multinational contexts, such as the uk , because nested identities allow for there to simultaneously be uk and Welsh-based political-national units. I think this

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insight is crucial for multinational states. And contrary to Miller, I see no reason not to extend this model to the eu : just like British identity is compatible with Welsh identity, so is a European identity compatible with a member-state identity.

r e f e re n ce s Bellamy, R. 2013. “An Ever Closer Union among the Peoples of Europe: Republican Intergovernmentalism and Demoicratic Representation within the eu .” Journal of European Integration 35 (5): 419–516. Cheneval, F., and F. Schimmelfennig. 2013. “The Case for Demoicracy in the European Union.” Journal of Common Market Studies 51 (2): 334–50. De Schutter, H. 2017. “The Solidarity Argument for the European Union.” In A European Social Union After the Crisis, edited by F. Vandenbroucke and G. Debaere, 47–67. Cambridge: Cambridge University Press. Gadamer, H.G. 1997. “Reflections on My Philosophical Journey.” In The Philosophy of Hans-Georg Gadamer, edited by L.E. Hahn, 3–63. Tr. Richard E. Palmer. Chicago: Open Court. – 2000. “‘Rituale sind wichtig’ Hans-Georg Gadamer über Chancen und Grenzen der Philosophie.” Interview by Thomas Von Sturm. Der Spiegel 8 (2000).Grondin, J. 1991. Einführung in die philosophische Hermeneutik. Darmstadt: Wissenschaftliche Buchgesellschaft. Habermas, J. 1998. Die postnationale Konstellation. Suhrkamp: Verlag. Habermas, J., and J. Derrida. 2003. “February 15, or What Binds Europeans Together: A Plea for a Common Foreign Policy, Beginning in the Core of Europe.” Constellations 10 (3): 291–7. Kymlicka, W. 2001. Politics in the Vernacular. Oxford: Oxford University Press. Lacroix, J. 2009. “Does Europe Need Common Values? Habermas vs Habermas.” European Journal of Political Theory 8 (2): 141–56. Maclure, J. 2007. “Perspicuous Representation versus Normative Theory: A Critical Commentary on James Tully’s Approach to Recognition.” In Multiculturalism and Law: A Critical Debate, edited by O.A. Payrow Shabani, 52–63. Cardiff: University of Wales Press. Miller, David. 2001. “Nationality in Divided Societies.” In Multinational Democracies, edited by A-G. Gagnon and J. Tully, 299–318. Cambridge: Cambridge University Press. Müller, J.W. 2007. Constitutional Patriotism. Princeton: Princeton University Press.

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Nicolaïdis, K. 2004. “The New Constitution as European ‘Demoi-cracy’?” Critical Review of International and Political Philosophy 7 (1): 76–93. Swyngedouw, M., K. Abts, S. Baute, J. Galle, and B. Meuleman. 2015. Het communautaire in de verkiezingen van 25 mei 2014. CeSO/ ISPO/2015-1. Tully, J. 1995. Strange Multiplicity: Constitutionalism in the Age of Diversity. Cambridge: Cambridge University Press. – 2000. “The Challenge of Re-Imaginging Citizenship and Belonging in Multicultural and Multinational Societies.” In The Demands of Citizenship, edited by C. McKinnon and I. Hampsher-Monk, 212–34. London and New York: Continuum. – 2008a. Public Philosophy in a New Key, Volume I. Cambridge: Cambridge University Press. – 2008b. Public Philosophy in a New Key, Volume II. Cambridge: Cambridge University Press. Van Parijs, Ph. 2011. Just Democracy. The Rawls-Machiavelli Programme. Colchester: ecpr Press.

15 Reconciling Differences and Negotiating Diversity Alain-G. Gagnon

a p erso na l note My first encounter with Jim Tully goes back to the time of the Meech Lake debacle and the proposed Charlottetown Accord (1992), at the beginning of my years at McGill University. Jim Tully has had a profound influence over my trajectory. My first scholarly inclination was to study cases of uneven development in remote areas as well as internal colonialism between centres and peripheries in liberal democracies. But, little by little, as I rubbed shoulders with Jim and members of the Groupe de recherche sur les sociétés plurinationales (grsp ; Research Group on Plurinational Societies), I found myself debating constitutional matters and gradually including a heavy dose of normative considerations into my own research. Jim has been revered by his students for his intellectual integrity, and for his continued support for and dedication to developing conditions to favour the advent of a democracy founded on justice for all but especially for minorities and disadvantaged groups and nations. Jim Tully, to quote Albert Camus in his famous 1957 acceptance speech for the Nobel Prize, is like a writer who always needs to accomplish difficult tasks, but, as Camus stressed, a writer “cannot put himself today in the service of those who make history; he is at the service of those who suffer it.”1 The years he invested at McGill University were crucial to the development of his political philosophy, which is founded on mutual respect, recognition, and political emulation. Jim was at the right

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place at the right time. It was when Quebec and the First Nations were demanding redress for lack of recognition and for unfair treatment they had experienced at different periods, but especially at the time of the 1982 patriation of the Canadian constitution. As a humanist, Jim has always sought to identify and discuss existing options and to advance new ones respectful of past practices and grounded in ancient constitutionalism. He has never hesitated to highlight the roots of the issues at stake, to provide political advice to people in positions of authority or to reimagine ways to highlight concurrent historiographies and political traditions in his attempt to identify the middle ground position, as he calls it. His philosophy has focused on ongoing encounters between individuals, communities, minorities and majorities, and between nations through a process of recognition, self-projection, and political emancipation. It was during the fall of 1994, a time of particularly high tension in constitutional politics, that we decided to establish the grsp . Its first nucleus was formed by Jim Tully, Guy Laforest, François Rocher, José Woehrling, Dominique Arel, and myself. Following the defeat of the Liberals in September 1994, Claude Ryan found refuge among us and brought in his vast experience as a public intellectual and experienced political leader. The group’s goal was to bring together philosophers, constitutional experts, comparativists, and Canadianists who were willing to enter into a Canadian conversation in order to identify ways out of the ongoing political impasse. Often, we found ourselves paddling against the current or canoeing white water rivers in search of fair solutions so that no one would be left out of the policy process – but, as argued by Taiaiake Alfred in this volume, this still has to occur.

t h e n e e d f or m ult i ple di versi ty Central to Jim Tully’s understanding of politics is the notion of “multiple diversity” and competing visions so important in the negotiation process. “When Canadians come to discuss the constitution, they negotiate and deliberate in the light of the diverse visions and in terms of the diverse stories with which they have learned to think and talk about the character of Canada since childhood and schooling. These different yet overlapping ways of thinking about the character of Canada are deeply inscribed in the diverse cultures, political struggles, and ways of life that make up

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Canadian history and social movements” (Tully 1994, 160–1). Jim has always insisted on the idea that Canadian federalism consists in an ongoing negotiation in order to work out middle ground positions that are respectful of these competing visions and histories through a process of continued interactions stretching from the 1645 Haudenosaune Treaty to the present time. This position rests on moral grounds and is probably impossible to seriously challenge in normative terms. However, in real politics, the situation appears to be different, as we are reminded by E.E. Schattschneider who, in The Semi-Sovereign People: A Realist’s View of Democracy in America, comes to terms with the fact that “the definition of alternatives is the supreme instrument of power; the antagonists can rarely agree on what the issues are because power is involved in the definition. He who determines what politics is about runs the country, because the definition of the alternatives is the choice of conflicts and the choice of conflicts allocates power” (Schattschneider 1983 [1960], 66). From a Quebec standpoint, two dominant visions have occupied the centrefield in Canadian politics since Confederation. On one hand, we find advocates of a monochrome Canada that insists on building an all-encompassing state (John A. Macdonald, Frank Underhill, Pierre Trudeau, Michael Bliss, Jack Granatstein). This is well rendered by Jim’s perceptive statement in Strange Multiplicity: “The suppression of cultural difference in the name of uniformity and unity is one of the leading causes of civil strife, disunity and dissolution today” (1995, 197). On the other hand, we have proponents of a distinct (potentially separate) Quebec that could eventually make its entrance into the concert of nations (Honoré Mercier, René Lévesque, Claude Ryan, Gérard Bouchard, Michel Seymour). Between these two political projects, we find political leaders and public intellectuals who have elaborated many possible scenarios, including the following: 1

2

finding a proper balance between centralization and decentralization (the name of the late Richard Simeon resonates); advancing the notion of asymmetry as a potent instrument for reducing political tensions (the name of Jeremy Webber, in his classic study entitled Reimagining Canada (1994), comes to mind);

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maintaining and developing a Canadian conversation through the advancement of a Left-leaning politics (Charles Taylor’s direct involvement in the Co-operative Commonwealth Federation CCF movement and establishment of the ndp is a case in point); building a political philosophy grounded in an ongoing dialogue that opposes any form of imperialism and domination – here we find Jim Tully’s contribution.

Indeed, this is where Tully’s work takes on its full meaning. It is a scenario in which all the people involved in the negotiation process bring their sets of values and meaning systems to the table, and are willing to consider new political orientations and precepts in light of the discussion that is generated by all parties involved in the exchange. My purpose here is not to deconstruct everyone’s argument but rather to appraise the extent to which Tully’s singular account allows for redress of unfair practices and elaboration of a public philosophy that is sound and could be transplanted elsewhere in the world. Jim has set very high standards through his own defence of public philosophy and civic freedom as effective ways to question democratic practices at all levels: locally, nationally, and globally. He continues to be a world leader in demanding that positions emanating from the weakest groups, communities, and nations be expressed, heard, and considered by people in positions of authority and dominance. In writing this chapter, I have asked myself to what extent Jim’s pioneering work in the area of ancient and modern constitutional politics has received a fair hearing and has been adopted or silenced by political elites. In imagining the political dynamics between Quebec and Canada or relations between First Nations and other national communities, Tully has made some powerful remarks that still resonate in my mind. He argued in an article published in 1999, in the third edition of Canadian Politics, that “Canada should be seen as comprised of two confederations rather than one. The first confederation (or federation) is the treaty confederation of the First Nations with the Crown and later with the federal and, to some extent, provincial government. The second confederation (or federation) is the constitutional confederation of the provinces and federal government … ‘Canada’ is usually taken to refer to the second confederation only (the federal-provincial confederation) and Aboriginal peoples are

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treated as if they were part of it. But Aboriginal peoples have never been a part of that confederation and it is a travesty of history to pretend otherwise” (Tully 1999a, 424). Tully is of the view that we need to adopt what he calls a position based on “groundless trust” that will – it is presumed – be transformed in the medium or long term into “grounded trust” as partners gradually become aware of their respective preferences and claims through processes of revealing one’s self or in the process of contesting perceived unfair relations of power. Tully’s take on these issues contrasts sharply with the one adopted by adepts of a Kantian school2 that argues that, for a relationship to be positively constructed, we must first settle on a set of norms that would be recognized and agreed upon by everyone involved in the sought-after political arrangement. In other words, Tully is not of the view that we should leave our cultures, identities, and meaning systems at the door when entering into the negotiation process (see Tully forthcoming).3 However, one ought to be aware that Tully’s efforts at regaining the middle (moral) ground might not be of much comfort when a dominant group decides to impose its authority on national minorities – as has been the case in Catalonia where the central government denies the Generalitat the simple right to consult its population through a referendum. In this case, we are witnessing the imposition by the central government of both political and juridical containment rather than an effort to identify alternatives aimed at reconciling rival positions through politics of appeasement and contentment. The idea here is to appraise the extent to which Tully’s stand in favour of an agonistic position can deliver the necessary elements to build a just democracy while contributing to the political stability of a given regime. Through this account, I wish to express healthy skepticism (as Jim always invites us to do) and raise some questions about the real nature of power in Canada.

t he r ea l nature of p o l i ti ca l pow er i n canada Building on Jim Tully’s insights, I will now focus on two key moments in the Quebec-Canada political dynamics, namely, the new constitutional order of 1982 and the reference case of 1998 with respect to Quebec’s right to secede, and identify what I view as preconditions for fair negotiation between constitutional partners.

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The New Constitutional Order of 1982 Let me start with a recent text written by political scientist and legal expert Peter Russell on the roots of the pact that brought Canada’s political communities together in 1867. He states that: Despite the conflicting hopes and fears present at Canada’s birth, the federation grew and prospered. The Québécois, the descendants of les Canadiens, were never great believers in the possibility that their interests could be secured in building a continental French-English Canada. The hanging of Louis Riel and the Manitoba schools crisis in the 1890s provided convincing evidence that the Québécois must secure their vital social and cultural interests in Québec. The Province of Québec was able to protect itself from the centralizing efforts of federal political leaders by getting unexpected support from the English law lords who controlled constitutional interpretation through Canada’s first seventy-five years and through the Québec electorate’s strategically using its leverage on federal politics to produce governments in Ottawa either sympathetic to or fearful of being hostile to Québec interests. Below the surface of politics, the embers of distrust on the Québécois side remained warm, and were occasionally inflamed as in the conscription crises of both world wars. Any trust that existed between Canadian and Québec provincial leaders was of the encapsulated interest kind. (2010) The Constitutional Act of 1982 has generally been considered in Quebec as a denial that there is anything constitutionally significant about the idea that Quebec forms a distinct society or nation. This lack of recognition has helped to feed distrust between the two principal majorities in the country. As a result, the content of the accord imposed on Quebec remains a constitutional stance that: (a) promotes institutional bilingualism in contrast with territorial bilingualism, such as that promoted in Belgium and Switzerland, for example; (b) tends to treat provinces similarly by undermining asymmetrical federalism; (c) nurtures multiculturalism at the expense of interculturalism; and

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(d) advances “pan-canadian constitutional patriotism” – to use Sujit Choudhry’s notion – at the expense of other forms of political belonging (2008). It is worth pointing out that these four components are at present entrenched in the Canadian Charter of Rights and Freedoms (Laforest 1995; Choudhry 2008, 168), which was added by the central government and the nine anglophone provinces to the new constitutional order of 1982, despite the clearly expressed opposition of the National Assembly of Quebec . Tully is among the philosophers who has most closely analyzed the impact of the Charter of Rights and the constitutional package imposed on Quebec in 1982, and who has openly debated expressions of mistrust and distrust between political communities. Here is what Jim concluded in March 1995, a few months before the National Assembly of Quebec held a third referendum4 on Quebec’s constitutional future: “When the [Québec] National Assembly seeks to preserve and enhance Québec’s character as a modern, predominantly French-speaking society, it finds that its traditional sovereignty in this area is capped by a Charter in terms of which all its legislation must be phrased and justified, but from which any recognition of Québec’s distinct character has been completely excluded. The effect of the Charter is thus to assimilate Québec to a pan-Canadian national culture, exactly what the 1867 constitution, according to Lord Watson, was designed to prevent” (Tully 1995, quoted in Gagnon and Iacovino 2006, 39). What this reveals is not so much that Canada continues to nation build – this is clearly an expressed intention and ongoing endeavour – but that it appears to lack the necessary flexibility to recognize, accommodate, and empower Quebec (and for that matter First Nations) as a national community evolving within the context of a multinational federation. In Canada, so far, the dominant school in constitutional interpretation has presented the constitution as “a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life” through a series of adaptive mechanisms and adjustments – as was illustrated in 2004 by the reference case concerning same-sex marriage (scr , 698, para. 22) and by the health care agreement that stresses the principle of juridical asymmetry. In the latter case, it should be pointed out that the overall

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agreement pertains more to general reporting and that it maintains Ottawa’s role as agenda setter in an area of provincial jurisdiction (Graefe 2005). However, to gain legitimacy in Quebec, the Canadian Constitution would need to recognize, in addition and in a way complementary to Canadian nationalism and Aboriginal nationalism, Quebec’s societal project, which is founded on five key elements: (a) (b) (c)

French as a common public language; a specific culture; a unique identity; interculturalism as proposed model of societal convergence; its own citizenship regime.

Canada has always been very reluctant to take positive steps in that direction through its institutions. This is not due to lack of opportunities to consider this option; it is (perhaps) due to lack of vision – and this where Tully’s Public Philosophy in a New Key is so important with respect to establishing and forging relations of conditional trust (in contrast with the blind trust that is too often demanded) among constitutional partners. According to the dualist theory that dominated Canada’s constitutional negotiations between 1960 and 1980, Quebec constitutes a nation in its own right, and ought not to have its constitutional status determined by the unilateral will of an all-encompassing Canadian Staatsvolk. This argument was made with force in the Objection by Québec to a Resolution to amend the Constitution ([1982] 2 scr , 793). At the time of prepatriation, though, the Supreme Court decided to resolve the dispute by sidestepping the fact that Quebec is a founding member of the country and gave little weight to Quebec’s distinct status. By doing so, and according to Tully in some of his writings,5 the Court imposed a straightjacket on Quebec’s right to internal self-determination and did nothing to advance a vision of Canada as a multinational federal country. By adopting this position, the Supreme Court of Canada contributed to undermining the image of Canada as a multinational democracy and, as I have argued elsewhere (Gagnon 2010), acted unwisely and unfairly by distancing itself at the time from earlier established practices aimed at instituting a concrete politics of recognition. This contributed to undermine relations and weaken the trust that was so crucial in

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striking the initial 1867 pact between the four original partners and two national communities. The reference case with respect to Quebec’s right to secession corrected in part a constitutional error by the Supreme Court and helped to restore some of the trust that ought to exist between constitutional partners. The 1998 Reference Case The reference case of 1998 regarding Quebec’s right to secede helped to redeem in good part the Supreme Court’s legitimacy in the minds of many Quebecers and represented a first corrective attempt to repair the damage done by the 1982 patriation. To summarize some of the points raised by the Supreme Court with respect to Quebec: the Court ruled that Quebec could not proceed with a unilateral declaration of independence since that would be considered unconstitutional. However, in the event of a majority vote in favour of secession, the central government, along with other partners, would have to negotiate in good faith. Again, the Court did not take the time to discuss the distinct national character of Quebec and concentrated its attention on whether or not, in international law for instance, Quebec has an acquired right of self-determination. In paragraphs 88 and 125, the Court referred to the “Québec people,” but tried to attenuate the potency of this reference by stating that “the Québec population certainly shares many of the characteristics (such as a common language and culture) that would be considered in determining whether a specific group is a ‘people,’ as do other groups within Québec and/or Canada” (para. 125). But the Court had no trouble recognizing in para. 59 that Quebec could be considered a “particular” province considering that “the majority is French-speaking … and possesses a distinct culture.” The Court recognized in the same paragraph that the “social and demographic reality of Québec explains the existence of the province of Québec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867.” The Supreme Court specified, in that reference case, that even though Quebec has never endorsed the patriation and has denounced the weakening of its political power, it is bound “to the terms of a Constitution that [is] different from that which prevailed previously, particularly as regards provisions governing its amendment, and the

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Canadian Charter of Rights and Freedoms” (para. 47). It is worth pointing out that the Court did not invest any effort in discussing the proposed Meech Lake accord of 1987 or the Charlottetown Accord of 1992, failures which preceded the 1995 referendum on sovereignty partnership. In fact, the Court discussed none of the key constitutional events that were initiated as a result of the 1982 patriation. Quebec’s opposition to the patriation reference was not even alluded to by the Court. What was Jim’s position on this very important constitutional episode? Initially, as I mentioned earlier, Jim felt that the Court had imposed a straightjacket on Quebec’s constitutional rights. Here is what he wrote with respect to this 1998 historical event: “a multinational society will be free and respectful of the right to self-determination in so far as the constitutional rules governing association among different nations are open to challenge and amendment” (Tully 1999b, 14–16). Reciprocity is a key ingredient in Jim’s intellectual exploration. Jim came to the conclusion in 1999 that Quebec was not free within the Canadian constitutional order for three main reasons. 1

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The other members of the federation can impose constitutional amendments on it without its consent. They can also arbitrarily block any constitutional amendments designed to give Quebec the constitutional status of nation. The content of the amending formula introduced in 1982 entails that it is virtually impossible, in practice, to amend the Constitution in such a way that Quebec is recognized as a nation. The Court holds that phase two of the negotiations, triggered by a clear majority in a referendum on a clear question, should be governed by the present amending formula. Yet, owing to the first reason mentioned above, Quebec is not bound by the amending formula (Tully 1999b, 31–32).

In 1999, Jim judged the situation in which Quebec found itself to be completely unacceptable, unfair and detrimental to the well-being of the country. By the following year, however, at a talk Jim gave in the Quebec Studies program at McGill, he had changed his stance, as I will try to illustrate below.

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Several scholars have attempted to enter into a dialogue with Jim on that change of mind and heart. My colleagues Michel Seymour (2009) and Guy Laforest (2014, 141–69) are surely those who have most closely studied the internal logic of this reversal and its political repercussions for Quebec-Canada relations. Today, however, I want to bring into the discussion the late Claude Ryan who brought some ammunition to Jim’s 1999 interpretation with respect to the Supreme Court’s role as a non federal institution, especially as it pursued a form of juridical containment insensitive to Quebec’s claims with respect to the patriation package of 1982. A word on Claude Ryan is in order here. A former leader of the Quebec Liberal Party, Ryan was a strong advocate of federalism in Quebec. In 1998, Ryan sent a brief to the Amicus Curiae (who had been appointed by the Supreme Court to represent the interests of Quebec) in the reference case on secession. Like Jim, Claude Ryan was of the view that the patriation deal of 1982 had clearly failed to respect a well-established convention that recognized Quebec’s right to consent to constitutional changes. Expressed differently, Ryan stated that Quebec could not lose its veto power unless it had agreed to do so. The patriation deal, according to Ryan, invented a new convention out of the blue, a convention founded on “substantial consent,” which turned out to mean that Quebec no longer had a veto right on most constitutional matters. “This highly debatable interpretation of the Constitution” by the Court made it clear that the Supreme Court itself was for Claude Ryan “at the root of a constitutional deadlock which lasted fifteen years and strongly contributed to the rise of a desire for sovereignty in Québec” (Ryan 1998). In many ways, the interpretations offered by Jim Tully and Claude Ryan converged. This is once more illustrated in Ryan’s direct reply to Jim’s text entitled “Revelation and recognition in multinational societies / Liberté et dévoilement dans les sociétés plurinationales.” Both texts were published in Globe. Ryan agreed with Tully on three main issues: (1) the need to be consensus seeking in order to avoid the federalist-secessionist trap; (2) the need to stand neither for the status quo nor for sovereignty but a mix of both through a Canadian conversation that should begin from the grassroots and then rise since components of civil society are the first to initiate collaborative efforts and exchanges that should then be emulated by politicians; (3) a need to return to

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two prevailing conceptions of the Canadian polity – one based on a multicultural vision and one advancing multinational federalism as a viable, legitimate option (Ryan 2000, 118–19). Ryan warned, however, that, in a context in which the idea of an all-encompassing state is stressed, it is crucial to redeem differences based on “national” differences. In this matter, “Québec should not hesitate to take militant action to obtain better recognition, otherwise it will be easy for it to be viewed as acting in a quaint, naïve manner” (ibid., 121; our translation). I situate Ryan among members of an emerging school that considers multinational federalism to be a real, promising constitutional option for Canada. Ryan concluded his reply to Tully by stating that it is “necessary that there be better acceptance and recognition in the Constitution and Canadian institutions of the distinct nature not only of Québec but also of Aboriginal peoples … that rules that will make it possible to gradually achieve this objective be made more flexible. Convinced by the objective, I nonetheless accept that its achievement has to be pursued in an ongoing manner with the help of a pragmatic approach from which we must not exclude necessary struggles. In light of this approach, a major role should be given to seeking clear consensus among the Québécois themselves and better recognition by the Québécois of the other human groups that, with them, form the country of Canada” (ibid., 123; our translation). Ryan and Tully have advanced constructive ways to get out of the constitutional impasse, and they remain focused on the need to find workable solutions (action-driven proposals rather than end-state processes). However, the main shortcoming of their convergent position, one might argue, is to be found in the fact that there is no guarantee of success and as a result they bring little comfort to people in need of concrete answers and measures aimed at empowering communities and nations that still feel excluded from policy and constitutional processes. In article 88 of Reference re. Secession of Québec, the Supreme Court casts some light on the process when it states that: “The clear repudiation by the people of Québec of the existing constitutional order, would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles [namely, democracy, federalism, the rule of law and constitutionalism and protection of minority

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rights].” I feel the Supreme Court went further than either Tully or Ryan on this matter. For me, this was a constructive way to get out of the constitutional impasse at the time. Its impact has been felt not only in Quebec, where we have witnessed constant decrease in secessionist aspirations, but in many other Western democracies, especially where minority nations are searching for democratic ways to assert their differences. In his 2000 lecture at McGill University entitled “The Unattained yet Attainable Democracy: Canada and Québec Face the New Century,” Tully changed his general understanding of the 1982 patriation by returning to the living tree metaphor and arguing that the Canadian’s constitutional order ought to be perceived “as a flexible and continuous process of reconciling diversity with unity (among other problems) by means of negotiation in accordance with the appropriate written and unwritten constitutional principles” (Tully 2000, 20). This revised position suggests that Jim’s position is softer than Ryan’s take on the constitutional issue at stake. In a recent book, Guy Laforest makes the point that Tully has become less and less sensitive to the fact that Quebec did not endorse the patriation package and has aligned himself too much with the winners. Contrary to the 1999 text, according to Laforest, given his McGill conference, Tully now: subscribes with enthusiasm to the Court’s idea that the Canadian Charter of Rights and Freedoms is not a straightjacket for Québec. … Tully believes that that we can skip over the fact that Québec did not consent to the Charter and that the text does not recognize a fundamental aspect of its diversity, namely, its identity as a distinct society. With respect to the first issue, Tully notes that the Court defended the ideal of legal continuity, and recognized in its decisions at the time the concept of a qualified majority, without overlooking the fact that Québec’s representatives in the federal Parliament did indeed, by a very large majority, give their consent to the Charter coming into force (Tully 2000, 24). Regarding the second issue, Tully concludes that, despite the lack of explicit recognition, some aspects of the Charter indirectly protect Québec’s identity as a distinct society (in particular the fact that the Charter does not alter the distribution of powers or the possibility for Québec to have recourse to the notwithstanding clause). The events of 1982 were

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characterized by a series of compromises, negotiations, and deliberations. As always, dissent was inevitable (see, paragraph 68). What was essential, according to both the Court and Tully, lay in the openness to change and flexibility with respect to the future of the constitutional framework. We will be able to change the Charter in the future. (Laforest 2014, 158) By changing his stance on the 1982 patriation, Tully has given Ottawa the upper hand with respect to the new constitutional order and seems to have taken some distance from his continued defence of minority nations. In the next section, I will be turning my attention to the preconditions that are necessary for redeeming the Canadian federation in the eyes of minority nations.

s o me pr ec on di ti ons to r e d e e m c an ad ia n federali sm At the time Jim Tully published his 1999 article in Globe, Alfred Stepan (1999) authored a significant article entitled, “Toward a New Comparative Analysis of Democracy and Federalism: Demos-Constraining and Demos-Enabling Federations.” He intended to bring together separate bodies of literature dealing with democratization, nationalism, and federalism, domains which had until then generally evolved in silo. Stepan’s article is especially relevant for our discussion. From a Quebec perspective, the Canadian federation has generally been viewed as demos-constraining (Gagnon and Iacovino 2007) while attempts at reforming the constitution and referendums have been presented as demos-enabling by minority nations. This has been done usually by advancing the right of internal (self-rule and home rule) and external self-determination (exit scenario). The main point I wish to make here is that although adopting politics of recognition is an important step forward in the arena of constitutional politics, it remains insufficient and bound to disappoint claims made by political parties and various interests as well as a large proportion of citizens. Tully insists on the view that “it is now widely acknowledged that participation in the intersubjective negotiation of identity, the security of these processes of identity formation, and the acknowledgement, recognition and respect of these by others

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are the prerequisites of the sense of self-worth of individuals and groups which empowers them to become free, equal and autonomous agents in both private and public life” (2008, 169–70). Such a standpoint raises important questions considering that the search for sovereignty could, for many people, simply be a means to an end. Does the same reasoning hold with respect to the notion of recognition in Tully’s work? Or does it correspond to an intellectual stance that, in the end, carries little political weight? In other words, does the outcome matter? Throughout all of his work, Jim has insisted on the need for egalitarian exchanges. However, what Jim has been playing down is the fact that, in such agonic games, power is not structured on a horizontal plane but instead on a vertical one. In other words, in multinational settings, agonic games tend to favour the nation that mobilizes the largest community and political resources. As a result, the majority nation (which dares not speak its name6) fixes the rules of the game in its favour. In the Canadian context, conditions such as these undermine the “global promise of federalism, a promise that often seemed to work better for the winners than for the losers,” as Alain Noël (2013, 179) reminded us at a similar conference held in Toronto to honour Richard Simeon: “Indeed, majorities – winners – seldom ask minorities – losers – for insight … Hence, Québec scholars of federalism have hardly played a role in the international deployment of the Forum of Federations. Again, relationships between majorities and minorities are rarely egalitarian” (ibid., 181). One would assume that Jim’s work on constitutional politics will take us into a new dimension since Jim is very cognizant of the problems facing minority nations, as he made clear at the 1999 international grsp conference pertaining to justice and stability. At that time, Jim stressed the point that in all debates “not all members are heard and not all compromises are acceptable to all. The relations of power codified in the prevailing system of misrecognition structure the discussions and negotiations in unequal and unfair ways” (Tully 2001, 28–29). Jim’s intellectual endeavour has been to construct the dialogue around the notion of recognition. This is a major step forward. In the collection of essays edited by Curtis Cook in the aftermath of the Charlottetown Accord, Jim made the point that “Canadian federalism consists of the continual negotiation, in terms of these competing federation stories, on an intercultural middle ground that

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has been slowly woven together and worn smooth over centuries of criss-crossing and overlapping negotiations and interactions” (Tully 1994, 161). The question is how to take this position further in order to move forward with concrete measures. I feel we will be well advised to take Jim’s position as a stepping stone to thinking through the problem of national pluralism in substantive terms. This is what I have sought to do lately in my own work on Minority Nations. However, I hope we will be able to gradually shift our focus from a position of recognition to a position of empowerment. This new step, I would argue, would contribute to elaborating a vision of what the endgame ought to be. In Minority Nations in the Age of Uncertainty (2014), I discussed at length some key aspects that can help to enable the demos in complex political settings. These include powers considered to be essential by national communities for the development of legitimate contexts of choice and complementary citizenship regimes. Such a development would lead, in the Canadian context, to the articulation of a multinational federalism inspired by four dimensions: (1) a search for balance with respect to conflicts of claims and values; (2) a quest for dignity for individuals and nations alike; and (3) an expression of hospitality towards others. In light of Jim’s major contribution to the literature, I think we should add to these three components: (4) the notion of solidarity that has characterized all his scholarly work.

b y way o f co nclus i on Tully has made the argument that the three qualities on which ancient constitutionalism was founded are essential: historical continuity, reciprocity, and consent. I fully agree: this is a solid basis on which to mobilize individuals, groups, and political actors. If there is compliance with these principles, Quebec and First Nations can enter into negotiations with Canada. However, in order to get fair treatment, these nations need to have a guarantee that the course of action will not be dictated by might. Stated differently, mutual respect on the part of the communities involved and a sense of constitutional morality will be necessary ingredients if negotiations are to be worthy of the name. Is the current political context conducive to pursuing a panCanadian conversation that would lead to fair results? In a 2010

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exchange with Peter Russell at one of our grsp roundtables, Peter asserted that, in Canada, the “sense of trust between … national communities is limited and wary. Severe provocations of the “nations within” continue, as with the almost total exclusion of the Québécois from the celebration opening the 2010 winter Olympics, and the English-Canadian branding of a possible federal coalition government depending on Bloc Québécois votes as being virtually treasonous, and on the Indigenous side with the federal government’s continued insistence on treating First Nations’ governments as subordinate to federal government sovereignty” (2010, 10). Members of the grsp focus on the right thing, namely, the dimension that is lacking in most of our work when comes the time to develop a policy, negotiate a new political arrangement or strike a compact: trust. This is admitted by Tully, but qualified. This comment takes me back to an exchange Jim had with members of the grsp in the fall of 2009 when working on a successful grant application. Jim said, and this will be the conclusion: “The only road to rebuilding trust in these ‘postcolonial’ breakdowns in my opinion is the willingness of the partners to enter into an open dialogue based on groundless trust: that is, by provincializing their normative world to one ‘normscape’ among many, and hoping that this disarming stance reassures the other to do the same, and thus a dialogue over the contested meaning of ‘free speech’ can begin in truthfulness, but, as Gandhi would add, without any guarantee” (personal exchange with James Tully, December 2009). This is not without bringing back to mind René Lévesque’s Beau risque in 1984. The work of Dimitrios Karmis and Darren O’Toole (2018) on this very question is highly relevant here. Does the world need more Canadas? I do not know the answer to the question, but I am certain that it needs more people like James Tully. no t e s 1 Our translation. “Il ne peut se mettre au service de ceux qui font l’histoire; il est au service de ceux qui la subissent.” http://www.nobelprize.org/ nobel_prizes/literature/laureates/1957/camus-speech-f.html 2 A case in point would be Daniel Weinstock’s often quoted text “Building Trust in Divided Societies” (1999). 3 For a contrasted position, see Weinstock (1999).

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4 The first two referendums refer respectively to the one on sovereigntyassociation held in May 1980 and to the Quebec consultation on the proposed Charlottetown Accord in October 1992. 5 This position has been made very explicit in “Liberté et dévoilement dans les sociétés multinationales,” especially the section entitled “Une société multinationale démocratique reconnaît ses nations comme des peuples libres de s’autodéterminer” (1999b, 30–6). 6 For a thorough examination of the relation between majority nations and nationalism, consult Gagnon, Lecours, and Nootens (2011).

r e f e re n ce s Choudhry, Sujit. 2008. “Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design in Divided Societies.” In Constitutional Design for Divided Societies: Integration or Accommodation, edited by Sujit Choudhry, 3–40. Oxford: Oxford University Press. Gagnon, Alain-G. 2010. The Case for Multinational Federalism: Beyond the All-Encompassing State. Abingdon and New York: Routledge. – 2014. Minority Nations in the Age of Uncertainty: New Paths to National Emancipation and Empowerment. Toronto: University of Toronto Press. Gagnon, Alain-G., André Lecours, and Geneviève Nootens, eds. 2011. Contemporary Majority Nationalism. Montreal and Kingston: McGillQueen’s University Press. Graefe, Peter. 2005. “The Scope and Limits of Asymmetry in Recent Social Policy Agreements.” http://www.queensu.ca/iigr/WorkingPapers/ asymmetricfederalism/Graefe2005.pdf Karmis, Dimitrios, and Darren O’Toole. 2018. “Vigilance, Trust, and ‘Fine Risks’ in the Minefield of Multinational Democracies.” In Trust, Distrust, and Mistrust in Multinational Democracies: Comparative Perspectives, edited by Dimitrios Karmis and François Rocher, 86–110. Montreal and Kingston: McGill-Queen’s University Press. Laforest, Guy. 2014. “The Canadian State and the Political Freedom of Québec: The Ideas of James Tully and Michel Seymour.” In Interpreting Quebec’s Exile Within the Federation: Selected Essays. Collection Diversitas. Brussels: Peter Lang, 141–69.Noël, Alain. 2013. “Ideology, Identity, Majoritarianism: On the Politics of Federalism.” In The Global Promise of Federalism, edited by Grace Skogstad, David Cameron,

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Martin Papillon, and Keith Banting, 166–87. Toronto: University of Toronto Press. Russell, Peter. 2010. “The Conditional Nature of Trust in Canada’s Multinational Constitutional Politics.” Workshop on Trust, Distrust and Mistrust in Multinational Societies, Research Group on Plurinational Societies, uqam , Montreal, 4 June. (A revised and updated version is published in Trust, Distrust, and Mistrust in Multinational Democracies: Comparative Perspectives, eds. Dimitrios Karmis and François Rocher, 113–34. Montreal and Kingston: McGill-Queen’s University Press, 2018.) Ryan, Claude. 1998. “The Reference Pending before the Supreme Court of Canada Concerning Certain Questions Relating to the Secession of Quebec: Memoir Sent to the Amicus Curiae Concerning the First Question of the Reference.” 31 January. – 2000. “Réponse à James Tully. Le défi canadien: faire droit à deux visions différentes du pays.” Globe: Revue internationale d’études québécoises 3 (1): 118–19. Schattschneider, E.E. 1983 (1960). The Semi-Sovereign People: A Realist’s View of Democracy in America. Chicago: Hold, Rinehart, and Winston. Seymour, Michel. 2009. “L’autodétermination interne du Québec dans la fédération canadienne.” In Le fédéralisme multinational: un modèle viable?, edited by Michel Seymour and Guy Laforest, 306–17. Brussels: Peter Lang, collection Diversitas. Stepan, Alfred. 1999. “Federalism and Democracy: Beyond the US Model.” Journal of Democracy 10 (4): 19–34. Tully, James. 1994. “Diversity’s Gambit Declined.” In Constitutional Predicament: Canada after the Referendum of 1992, edited by Curtis Cook, 149–98. Montreal and Kingston: McGill-Queen’s University Press. – 1999a. “Aboriginal Peoples: Negotiating Reconciliation.” In Canadian Politics, edited by Alain-G. Gagnon and James Bickerton, 413–41. 3rd edition. Peterborough: Broadview Press. – 1999b. “Liberté et dévoilement dans les sociétés multinationales.” Globe. Revue internationale d’études québécoises 2 (2): 13–36. – 2000. “The Unattained yet Attainable Democracy: Canada and Québec Face the New Century.” Desjardins Conference, Québec Studies Programme, McGill University. – 2001. “Introduction.” In Multinational Democracies, edited by Alain-G. Gagnon and James Tully, 1–33. Cambridge: Cambridge University Press.

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– 2008. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. – Forthcoming. “Trust, Mistrust and Distrust in Diverse Societies.” In Trust, Mistrust and Distrust in Political Theory and Practice: The Case of Diverse Societies, edited by Dimitrios Karmis. Montreal and Kingston: McGill-Queen’s University Press. Weinstock, Daniel. 1999. “Building Trust in Divided Societies.” Journal of Political Philosophy 7 (3): 287–307.

pa rt f ive

Thinking and Acting Differently

16 On Exemplarity and Public Philosophy David Owen Only the art itself can discover its possibilities, and the discovery of a new possibility is the discovery of a new medium. A medium is something through which or by means of which something specific gets done or said in particular ways. It provides, one might say, particular ways to get through to someone, to make sense; in art, they are forms, like forms of speech. To discover ways of making sense is always a matter of the relation of an artist to his art, each discovering the other. Stanley Cavell (1979, 32)

The approach to political philosophy that James Tully comes to call “public philosophy” finds its initial expression in Strange Multiplicity (1995) before being more fully elaborated in Public Philosophy in a New Key (2008a, 2008b). The practice of reasoning that Tully develops is distinctive in a number of respects but key to this difference is the centrality of exemplarity to the enterprise of public philosophy – and in this essay I am concerned to draw out this theme by attending to the role of exemplars and the stakes of exemplarity in this approach. More specifically, I will address the following: (a) public philosophy’s understanding of ideals as exemplars; (b) its focus on theorizing through exemplars; (c) its commitment to exemplifying an ideal of civic freedom. The aim of this chapter is, then, to elucidate the relationship of public philosophy and exemplarity in Tully’s work and reflect on its implications for political theory.

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i de al s as e xe mplars When it is claimed that public philosophy is oriented by an ideal of civic freedom, what is being claimed? To answer this question, we need to clarify the character and role of “ideals” within the project of public philosophy. It will be helpful to begin here with a distinction that I borrow from Laden (2013) between “ideals as goals” and “ideals as constraints” that emerge from two different types of orientation in normative theorizing or, as Forst (2014) puts it, two different “pictures.” In relation to justice, Forst draws out the contrast between these two pictures thus: “To put it in a (simplistic) nutshell, since the ancient formula of justice to each his own was coined, philosophical thinking about justice has developed along two very broad lines. One line focuses on the goods persons receive in a distributive scheme, comparing their share either with what relevant others have or with what persons need or deserve by some ethical standards, or both; the other line focuses on the relationship between the persons involved and their relative standing within a scheme of exercising power. One could call the first a focus on distributive justice, the latter one on political justice” (2007, 260). In similar vein, Laden comments: “A theory that takes justice as something to be brought about thinks of justice as a kind of engineering problem, and the proper perspective to take to solve it to be that of the observer or analyst, who stands above the fray and figures out how to move forward … In contrast, treating justice or morality as a matter of how we relate to one another is to take up the perspective of a participant in human relationships, that of the citizen or morally situated agent. Justice, so understood, is not a particular state of affairs that we ought to try to achieve or move closer to, but a characterization of a type of relationship we might have to one another” (2013, 207–8). If justice is a matter of outcomes, then it makes sense to think of ideals as goals; if justice is a matter of relationships, ideals are best thought of as constraints. Moreover, as Laden goes on to note: “When ideals function as goals, they can be formulated without paying attention to questions of feasibility … When, on the other hand, ideals function as constraints, they work already within the space of feasible alternatives. In fact, they work here and now in the actual situations we find ourselves in by constraining our feasible set, eliminating those actions that are feasible but

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which would violate our ideals” (2013, 211). For our current purposes, the important point to note is that public philosophy is an approach focused on relationships rather than outcomes and, hence, in this respect on ideals as constraints – a stance it shares with Kantian approaches such as that of Forst. Within the domain of approaches that think of ideals as constraints, we can further distinguish rule- and practice- based views of ideals as constraints which we can refer to respectively as “ideal as principles” and “ideals as exemplars.”1 Kant’s moral philosophy provides a clear example of the former in which our relationship to constraint is pictured as subjection to a principle, a moral law that we impose on ourselves. By contrast, Tully’s public philosophy is an example of the latter in which our relationship to the constraint is pictured in terms of a practice through which we realize acting under the constraint, and the ideal is given expression through an exemplar who manifests mastery of this practice . The difference between “ideals as principles” and “ideals as exemplars” need not, although the example of Kant may suggest this, be a distinction between “absolutist” and “non-absolutist” conceptions of constraints. Rather we can spell out the crucial difference by noting two points. First, that whereas principles aim to tell us what, as an agent, we ought to do or be, exemplars manifest what it is to be an agent characterized by such doing or being (or, to put it another way, principles tell us that another world is possible, exemplars show us that another world is actual). Second, whereas a principle articulates norms in their generality, an exemplar discloses norms through its individuality. Thus, for example, principles state the rules of the game, the norms to which we will be subject insofar we participate in the game, whereas exemplars manifest these norms through their individual performances as participants in the game. Tully’s adoption of the “ideals as exemplars” stance is grounded in his approach to subjectivity, drawing on Nietzsche, Heidegger, Wittgenstein, and Foucault, in which “the praxis of practice … is the medium of constitution of subjectivity” (Menke 2003, 200). Through the praxis of practice, as Menke comments in relation to Foucault, we acquire the abilities that are, at once, the ability to perform actions that engage the norms and realize the goods of the practices in which we are engaged and the ability to direct our own activity, thus “subjectivity is the practical self-relation of self-direction that

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is located in being able to carry something out” (Menke 2003, 201). We acquire the ability to direct our agency in placing it under a constraint through the practice of doing so in the dual sense of an activity that we practise and a practice in which we engage. To the extent to which we are successful in imposing the constraint on our conduct, we exemplify commitment to the ideal and insofar as we master this practice, we become exemplars of the ideal. Thus far in spelling out the notion of “ideals as exemplars” I have treated the norms of a practice (for example, the practice of acting under a constraint) as if they are fixed, that is, can be stated independently and in advance of the performance of the agent. However, it is central to the understanding of human freedom that is the normative core of public philosophy that practices, and the norms of practices, are not fixed in this sense; on the contrary, it is a feature of human practices that mastery of a practice is exhibited by the ability to alter the norms of the practice and thereby what counts as exemplary performances of the practice. Thus, from Wittgenstein, Tully draws out the point that Hannah Arendt’s understanding of the practice of freedom – of speaking and acting differently in the course of a language game and so modifying or transforming the game – is not a special feature of politics or a form of freedom restricted to certain modes of human interaction but, rather, is a general feature of human practices and relationships (Tully 2008a, 139–41). Tully takes Skinner and Foucault to be the primary inheritors of this outlook. In the case of Skinner, this involves tracing the intersubjective conventions that govern political reflection in a given context in order to show how political actors in that context have exercised their freedom in modifying those conventions (ibid., 141). In the case of Foucault, it involves providing a genealogy of the problematizations in terms of which we understand ourselves as bound by certain limits; a genealogy which is, at the same time, a redescription of those limits. Foucault’s approach shares both Arendt’s understanding of the activity of freedom as modification or transformation of games of governance and the view of Wittgenstein and Skinner that such freedom is a feature of any and all human practices, even the most rule governed, but Foucault also develops Nietzsche’s point that this activity of freedom is an agonistic relationship. He writes: “Rather than speaking of an essential freedom, it would be better to speak of an ‘agonism’ – of a relationship which is at the same time reciprocal

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incitation and struggle; less of a face-to-face confrontation which paralyses both sides than a permanent provocation” (Foucault 1982, 222–3). As Tully points out: “Foucault’s unique contribution to this reorientation in the twentieth century is to link together the following elements: the practice of freedom, the modification of the rules governing the relationships among players in the course of a game and agonistic activity. He sees the modification of the rules of any game as itself an agonistic activity of freedom: precisely the freedom of speaking and acting differently. He asks us to regard human activities as games with rules and techniques of governance to be sure, and these are often agonistic games, but also, and more importantly, to look on the ways the players modify the rules by what they say and do as they carry on, and, in so doing, modify their identities as players: that is, the games of freedom within and against the rules of the games of governance” (2008a, 143). The importance of this point for reflecting on “ideal as exemplars” is twofold. First, it illustrates why public philosophy is committed to “ideals as exemplars” rather than to “ideals as principles,” namely, because the character of the ideal cannot be fully specified in terms of principles but must be gathered from performance. So, for example, what counts as reasonable deliberation cannot be fully specified in terms of explicit rules governing deliberative encounters but will, in part, be worked out in the course of the deliberative encounter in question given the specific history of the relationship of those engaged in deliberation. (This is captured in the thought that one could comply with the rules while not complying with the spirit of the practice.) Second, and consequently, exemplars are, as Kant has it, not for imitating but for following. Thus, although the kind of guidance that public philosophy provides to civic actors may involve specifying some (defeasible) rules in relation to reasonable deliberation (or civic freedom), it is more fundamentally a matter of “guidance through attunement,” that is, seeking to attune civic actors to the spirit of reasonable deliberation (or civic freedom). This is, incidentally, one reason why the tone of public philosophy is integral to what it attempts to achieve (see Owen 1999). The character and role of ideals in public philosophy is thus best characterized in terms of “ideals as exemplars” – and with this understanding in place, let us turn to the ideal of reasonable deliberation and, more specifically, to the ideal of listening as a constitutive characteristic of reasonable deliberation.

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aud i alt er am partem: o n l is t en in g as a c ri ti cal i deal Listening, in the sense that concerns us, is a mode of responsiveness to reasons offered by others to see or engage some feature of the world in a given way. So conceived, listening is integral to the ideal of reasonable deliberation because this ideal is particularly sensitive to the danger posed by obstructions to the uptake of reasons. We can bring this topic into focus by reference to Laden’s argument that “the reasonableness of deliberation depends on the relevance of uptake of proffered reasons” and, more specifically, that deliberation is unreasonable if uptake is rendered irrelevant (Laden 2001, 129). As Laden notes: “Two central ways in which uptake can be rendered irrelevant are by ignoring it or assuming it. Ignoring uptake requires having the power to render rejection of a reason irrelevant. In such cases, we exclude others from our deliberations. Their uptake of our reasons has no effect because their rejection could have no effect. Assuming uptake requires being blind to the fact of deep diversity and how it shapes the plurality of political deliberation. In such cases, we assimilate others to our own perspective. We take for granted that because we find a reason authoritative, they will too” (ibid.). Ignoring or assuming uptake can happen in a variety of ways and what counts as ignoring or assuming uptake will depend in part on the specific history of the relationship of participants. Listening as an ideal is thus centrally concerned with the threat to reasonable deliberation posed by “ignoring uptake” and “assuming uptake.” The threat posed by the former concerns the conditions of listening; the threat posed by the latter concerns the activity of listening. It is the latter on which I want to focus. In more recent work, Laden (2012) provides a nice interpersonal exemplification of “assuming uptake” in Jane Austen’s portrayal of Mr Collins responses to Elizabeth Bennet’s reasoned refusals of his marriage proposal in which responses he resolutely fails to hear her reasons as reasons. However, to situate these reflections on listening as an ideal, I want to begin by noting that the phenomenon of assimilating others to our own perspective that underlies “assuming uptake” in contexts of deliberation such as that involving Elizabeth Bennet and Mr Collins is also manifest in contexts of historical enquiry – and, indeed, is the primary target of the methodological practice of the Cambridge School in which Tully was trained.

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It is an important point to note about the Cambridge School construed as a community of scholars united by a methodological commitment to a properly historical approach to the history of ideas that this methodological commitment should also be seen as an ethical stance of respect towards the subjects of its enquiries. The various practices of, for example, Dunn, Pocock, and Skinner – for all their differences – are united in being directed precisely against the practice of assimilating others to our own perspective. Quentin Skinner’s methodological essays (2001), taken as a whole, may plausibly be read as involving three features. The first is an attempt, using Austin, to make philosophically explicit the conditions of “listening,” that is, of attending appropriately to the speech acts of other persons as singular situated instances of giving reasons that are constitutive elements of the performance of specific actions. The second is the attempt to spell out the conditions of “listening” in situations in which the temporal distance between speaker and listener, and absence of the possibility of direct communication between them, is such that the task of identifying the reasons to which they are giving expression and the actions they are performing offers particular challenges for listening well. The third is the ferocious criticism of approaches to the history of ideas that Skinner takes to support forms of assimilation in failing to be sensitive to either of the first two features. It is not my concern here to offer a defence of Skinner’s methodological essays or of the practices of the Cambridge School as these are exemplified in their substantive studies, rather I want simply to draw attention to the point that the methodological orientation that they exhibit is also, and fundamentally, an ethical orientation to the importance of listening and to trying, as far as possible, to avoid the assimilation of other’s to our perspective that is a constitutive feature of “assuming uptake.” My point here is not simply a point about Tully’s intellectual formation or the roots of public philosophy, rather it is primarily to draw attention to the fact that “assuming uptake” in deliberative contexts may be invisible to us because we are not sensitive to the historical contexts of formation of the inherited languages and practices in terms of which we structure our deliberative encounters. As Quentin Skinner remarks, “it is remarkably difficult to avoid falling under the spell of our own intellectual heritage. As we analyse and reflect on our normative concepts, it is easy to become bewitched into believing that the ways of thinking about them bequeathed to

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us by the mainstream of our intellectual traditions must be the ways of thinking about them” (1998, 116). As he goes on to suggest: “The history of philosophy, and perhaps especially of moral, social and political philosophy, is there to prevent us from becoming too readily bewitched. The intellectual historian can help us to appreciate how far the values embodied in our present way of life, and our present ways of thinking about those values, reflect a series of choices made at different times between different possible worlds. This awareness can help to liberate us from the grip of any one hegemonal account of those values and how they should be interpreted and understood. Equipped with a broader sense of possibility, we can stand back from the intellectual commitments that we have inherited and ask ourselves in a new spirit of enquiry what we should think of them” (ibid., 116–7). For public philosophy, listening is a critical ideal that requires two commitments. First, attending to the ways in which our practices of listening have been historically shaped in order to free us from the grip of the presumption that these are the only practices of listening. Second, equipped with a broader sense of possibility, to engage in the difficult and demanding practice of learning to listen to the reasons of others as the reasons that their speakers intend them to be (consider, by analogy, how much practice it takes for people brought up listening to Western classical music to learn to listen well to, i.e., appreciate the musical character of, Chinese, Indian, or Arabic music). Tully’s Strange Multiplicity (1995) may appropriately be read in this context as engaged in two tasks. First, showing how we have become held captive by a picture of constitutional deliberation of which “assuming uptake” is a constitutive feature by reconstructing the historical formation and development of “modern constitutionalism” in its imperial context. Second, drawing attention to, and historically reconstructing, an alternative picture of constitutional deliberation that exemplifies the ideal of audi alteram partem. What this work seeks to present are negative exemplars of assuming uptake and positive exemplars of listening as an ideal. It is an important point here that Tully is concerned to present plural exemplars not simply in order to draw out the point that what counts as “assuming uptake” or exemplifying the ideal of audi alteram partem varies across contexts and institutional sites but in order thereby to provide a perspicuous representation of the spirit of these stances towards the constitutional accommodation of cultural difference. It

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is no accident, as our discussion in the previous section illustrates, that the question with which this book begins is not the question of “whether one should be for or against cultural diversity” but “the prior question of what is the critical attitude or spirit in which justice can be rendered to the demands for cultural recognition” (1995, 1).

t h e o r iz in g th ro ugh exemplars an d it s stakes We have already very briefly indicated how Strange Multiplicity involves theorizing through exemplars but to illustrate this point further and to elucidate the stakes of this approach to political philosophy, it will be helpful to attend to the summation of Tully’s investigations in Public Philosophy in a New Key, namely, his reflections on global citizenship (see also Tully 2014). In this essay, Tully draws a contrast between two “modes of citizenship,” where this phrase refers to both “a distinctive language of citizenship and its traditions of interpretation” and “the corresponding practices and institutions to which it refers and in which it is used” (Tully 2008b, 246). The basic contrast between these two modes – modern civil citizenship and diverse civic citizenship – is sketched thus: “Whereas modern citizenship focuses on citizenship as a universalisable legal status underpinned by institutions and processes of rationalisation that enable and constrain the possibility of civil activity (an institutionalised/universal orientation), diverse citizenship focuses on the singular civic activities and diverse way that these are more or less institutionalised or blocked in different contexts (a civic activity/contextual orientation). Citizenship is not a status given by the institutions of the modern constitutional state and international law, but negotiated practices in which one becomes a citizen through participation” (ibid., 248). What distinguishes the two modes of citizenship is not necessarily the practices in which they are engaged but the orientation or, more precisely, practical attitude or spirit with which they engage in the activity, that is, their practical attitude as participants in a practice, where such attitudes cannot simply be chosen (acquired or secured by decisions) (Menke 2003, 209) but must be acquired through practice. The “practice”-based approach to subjectivity adopted by public philosophy explains why Tully focuses on “modes of citizenship” as both marking out distinctive practical attitudes to the practice of citizenship and specifying

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the practices of citizenization through which these practical attitudes are acquired or inculcated.2 Seeing that the contrast between these orientations is the difference between the practical attitudes towards the governance of self and others practised by participants in these practices is fundamental to any consideration of the two practical attitudes that Tully identifies. (Note that this fundamental feature also explains why Tully engages in a form of genealogical analysis in which philosophical enquiry is necessarily also historical enquiry; the two attitudes that he addresses are not separable from their historical manifestations even if it is also the case that they are not reducible to their historical forms.) In general terms, “civil citizenship” as a mode of citizenship or citizenization stands towards citizenship “as a [legal] status within an institutional framework,” whereas “civic citizenship” is oriented to citizenship “as negotiated practices, as praxis – as actors and activities in contexts” (Tully 2008b, 269, our insertion). On the former view, civil action necessarily presupposes an institutional structure of legal rules; on the latter view, primacy is accorded to “the concrete games of citizenship and the ways that they are played” (ibid., 269). Thus, in relation to civic citizenship, Tully stresses: “Civic activities – what citizens do and the ways they do them – can be more or less institutionalised and rationalised (in countless forms), but this is secondary” (ibid.). Notice that this general contrast already constructs a fundamental difference in the mode of self-relation of individuals to themselves as citizens. The mode of citizenship-formation characteristic of the modern civil stance is of the individual standing to him – or her – self as occupant of an office specified by a range of rights and duties, whereas that of the diverse civic stance is of the individual standing to him – or her – self as an agent with a (nonfixed) range of powers. One way in which this contrast discloses itself is in the contrast between these practical attitudes as attitudes towards autonomy. As Tully notes, the contrast can be cast in terms of the grammatical distinction between liberty and freedom in which the latter but not the former can be predicated of actions (ibid., 272). Civil citizens stand towards themselves as persons who are at liberty (i.e., free from subjection to the will of another) in virtue of their enjoyment of the civil rights and duties that compose the office of citizenship under law to take up opportunities to participate as political equals in determining the law to which they are subject as subjects of a given political institution of governance. By contrast,

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civic citizens “manifest the freedom of participation.” Hence: “Civic freedom is not an opportunity [to participate] but a manifestation: neither freedom from nor freedom to [… ], but freedoms of and in participation, and with fellow citizens. The civic citizen is not the citizen of an institution (a nation-state or an international law) but the free citizen of the ‘free city’: that is, any kind of civic world or democratic ‘sphere’ that comes into being and is reciprocally held aloft by the civic freedom of its citizens, from the smallest deme or commune to glocal federations” (ibid.). If, in Strange Multiplicity, Tully was concerned to show how recognition of the demands of audi alteram partem exemplified by common constitutionalism was obstructed by the dominance of the picture of modern constitutionalism, here his goal is to show how recognition of the fundamental significance of civic freedom exemplified by civic citizens is blocked by the dominance of the picture of modern civil citizenship. In a co-authored essay, Adam Dunn and I (2014) have pointed out both that there are reasons internal to civic citizenship to promote the legal status of citizenship and that drawing out this point helps explain how a civil view of citizenship can emerge as a stance that forgets the civic freedom which both grounds and is served by citizenship as a legal status. On the basis of this forgetting, it comes to identify political freedom with a rationally justifiable civil status and set of civil institutions; this “forgetting” thus finds intellectual expression in a reconceptualization of political authority “as an authority that was independent of relationships of interdependency and called ‘sovereignty’” (Tully 2008b, 289). The intellectual sources of this forgetfulness are various; Tully’s claim is that the hinge around which the transition from civic to civil stances was accomplished was the “civil thesis of the superiority of institutional rule” that was developed in the aftermath of the Thirty Years War (and which provided ideological support to the imperialist projects of European states in the non-European world). The development of the institutionalization thesis, on Tully’s account, is accomplished in the early modern period: “The civil theorists argued that the existing practices of governance and citizenship constituted an informal, haphazard, conflict-ridden, uncertain and insecure crazy quilt of overlapping jurisdictions that gave rise to the Thirty Years War. Civil philosophers, lawyers and administrators explained that only centralization and institutionalization would resolve these problems of

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informal (under-institutionalized and under-rationalized) practices of law, governance and citizenship” (ibid., 288). The case that Tully makes for the priority of civic citizenship is a case developed across both volumes through a range of genealogical investigations and it is not my concern to evaluate it here – rather my focus will be on two points which both relate back to the issue of “ideals as principles” versus “ideals as exemplars.” To reflect on the first, notice that Tully also characterizes civil and civic modes of citizenship as “modern” and “diverse” citizenship. His point in doing so is to draw attention to the point that within the language and practices of civil citizenship, citizenship is presented as an ideal that can be fully specified in terms of a distinctively modern set of principles, principles that define the “office” of citizenship, and that by contrast, within the languages and practices of “civic citizenship,” citizenship is seen as an ideal that cannot be so specified but rather is exemplified in diverse ways across different sites and contexts. These distinct understanding of citizenship as an ideal may be elucidated in terms of Cavell’s useful distinction between “genre as cycle” and “genre as medium” (2005, 150). The former is exhibited when, for example, films are listed as “westerns” or “comedies,” that is, when a phenomenon is identified as a token of a type. The latter is exhibited when a genre is specified by a set of characteristic features that different members of the genre may emphasize differently and where members may not exhibit all of the characteristic features. Thus when Tully identifies fifteen features of civic citizenship (2008b, 269–96), these are not to be understood as necessary and sufficient conditions for the manifestation of civic citizenship, but as characteristic features that compose the genre of “civic citizenship,” most of which will be exhibited by any member of the genre. It is, of course, also the case that Tully takes civil citizenship to be a practice that is exemplified and cannot be fully specified in terms of principles. The crucial difference is that civil citizenship cannot hold this understanding of itself, whereas civic citizenship can and does. The second point goes back to the triumph of the civil lawyers because this was not simply a triumph in the sense of establishing the dominance of the ideal of civil citizenship, it is also that in doing so it established the primacy of a mode of legal and political theory characterized by a commitment to “ideals as principles.” Public philosophy is thus a performative refusal and contestation of this mode of legal and political philosophy that recognizes what is at stake in

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the form of its own theoretical activity in opposing “ideals as exemplars” to “ideals as principles” is the opening of space for making visible and attuning us to the diverse forms of civic citizenship that are manifest throughout the world. The centrality of exemplarity to public philosophy that this essay has sought to elucidate is itself an exemplification of the agonistic activity of freedom: the freedom of speaking and acting differently that aims to transform the identities of those playing the game of political philosophy.

o n b ei ng t he change The final point of the previous section already provides an indicator for the topic of this final section of the essay and its concern with the role of exemplarity in relation to public philosophy, namely, the sense in which public philosophy seeks to act as an exemplar of the ideals that it elucidates. In an early essay on Tully’s Strange Multiplicity (Owen 1999), I remarked that forms of political philosophy that lacked an historical understanding of their own formation are acutely vulnerable to the allure of a self-understanding which grasps philosophy not as, say, the methodical extension of the self-reflective character of historically situated practices of practical reasoning, but as the distinct, higher order activity of theoretical reflection on historically (and culturally) situated practices of practical reasoning. Public philosophy is an approach to political philosophy that resists the allure of this self-understanding in favour of the more modest view of its activity as the methodical extension of the self-reflective character of historically situated practices of practical reasoning and this modesty is built into the understanding of the relationship of theorist and citizen that characterizes its practice: “What is distinctively ‘democratic’ about public philosophy in a new key is that it does not enter into dialogues with fellow citizens under the horizon of a political theory that frames the exchange and places the theorist above the demos. It rejects this traditional approach. Rather, it enters into the relationships of normativity and power in which academic researchers and civic citizens find themselves, and it works historically and critically on bringing them into the light of public scrutiny with the particular academic skills available to the researchers. Every reflective and engaged citizen is a public philosopher in this sense, and every academic public philosopher is a fellow citizen working within the same broad dialogue with his or her specific

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skills” (Tully, 2008a and 2008b, 4). With this in mind, recall Tully’s characterization of civic citizenship in terms of civic freedom: “Civic freedom is not an opportunity [to participate] but a manifestation: neither freedom from nor freedom to [… ], but freedoms of and in participation, and with fellow citizens. The civic citizen is not the citizen of an institution (a nation-state or an international law) but the free citizen of the ‘free city’: that is, any kind of civic world or democratic ‘sphere’ that comes into being and is reciprocally held aloft by the civic freedom of its citizens, from the smallest deme or commune to glocal federations” (Tully 2008b, 272). Public philosophy is the exemplification of this ideal under its philosophical aspect, that is, engagement in public philosophy is constitutive of the free city; it is a mode of bringing into being, actualizing, a civic world and seeking to hold it aloft. It is an act of civic freedom oriented to civic freedom – an exemplification of the ideal to which it is committed.

c on cl us i on In this essay I have sought to elucidate the character of public philosophy through a focus on the issue of exemplarity; no doubt much more could be said on this topic but in concluding I want to draw attention to two of the main implications of the centrality of exemplarity to the character of public philosophy both for engagement in public philosophy and for political theory more generally. The first point to which I want to draw attention is that the centrality of exemplarity to this approach to political philosophy makes significant demands on the style of such theorizing – that is, the character of its voice – since it is central to this practice that it performs the work of attunement through which it seeks to guide its audience. Hence what Nietzsche would refer to as the pathos of style is not incidental but central to the work of public philosophy; it needs to exemplify the spirit of civic citizenship. The second point that I want to highlight is that public philosophy poses a question to forms of political philosophy in general, namely, what spirit do they exemplify? This is a critical and diagnostic question, a challenge, one which points to the democratic or public space of political philosophy as a domain to plural exemplars engaged in contestation concerning the character of political community. Public philosophy has no privileged position in this agon, rather it aims both to exemplify an ideal and to offer a perspicuous representation of the ideals exemplified by other

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approaches to political philosophy. Public philosophy is, and understands itself to be, a practice structured by commitment to the ideal of civic freedom; it is not concerned to found a theoretical school but rather to enable the formation of a community of practitioners who exemplify the change that they seek to bring about. n ot e s Thanks are particularly due to Tony Laden for his comments on an earlier draft of this chapter and to the organisers and all the participants at the Montreal conference in honour of James Tully at which it was first presented. My greatest debt though is to Jim for two decades of friendship and discussion of these issues. 1 Laden (2013) puts this distinction as that of ideals as constraints and constraints as ideals. 2 It is hard to overestimate the significance of this point for understanding Tully’s argument and the way in which it is conducted. Thus, for example, it would be a mistake to interpret him as simply sketching two conceptions of citizenship which could either be specified by ideal theory or fleshed out through historical examples because such an approach to his argument would miss what was central to it.

r e f e re n ce s Cavell, S. 1979. The World Viewed. Cambridge, Mass.: Harvard University Press. – 2005. Cities of Words. Cambridge, Mass.: Harvard University Press. Dunn, A., and D. Owen. 2014. “Instituting Civic Citizenship.” In On Global Citizenship: James Tully in Dialogue, edited by James Tully, 247–65. London: Bloomsbury. Forst, R. 2007. “Radical Justice: On Iris Marion Young’s Critique of ‘the Distributive Paradigm.’” Constellations 14 (2): 260–65. – 2014. “Two Pictures of Justice.” In Justice, Democracy and the Right to Justification: Rainer Forst in Dialogue, edited by Rainer Forst, 3–28. London: Bloomsbury. Foucault, M. 1982. “The Subject and Power.” In Michel Foucault: Beyond Structuralism and Hermeneutics, edited by H. Dreyfus and P. Rabinow, 208–26. Brighton: Harvester. Laden, A.S. 2001. Reasonably Radical: Deliberative Liberalism and the Politics of Identity. Ithaca: Cornell University Press.

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– 2012. Reasoning: A Social Picture. Oxford: Oxford University Press. – 2013. “Ideals of Justice: Goals vs Constraints.” Critical Review of International Social and Political Philosophy 16 (2): 205–19. Menke, C. 2003. “Two Kinds of Practice: On the Relation between Social Discipline and the Aesthetics of Existence.” Constellations 10 (2): 199–210. Owen, D. 1999. “Political Philosophy in a Post-Imperial Voice.” Economy and Society 28 (4): 520–49. Skinner, Q. 1998. Liberty before Liberalism. Cambridge: Cambridge University Press. – 2001. Visions of Politics. Volume 1. Cambridge: Cambridge University Press. Tully, J. 1995. Strange Multiplicity. Cambridge: Cambridge University Press. – 2008a. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. – 2008b. Public Philosophy in a New Key. Volume II. Cambridge: Cambridge University Press. – ed. 2014. On Global Citizenship. London: Bloomsbury.

17 Excuses, Politics, and Pluralism Jonathan Havercroft

The most commonly attributed statement to Machiavelli is “the ends justify the means.”1 However, most scholars of Machiavelli are quick to point out that Machiavelli never said this. The closest he comes to saying something like “the ends justify the means” is in chapter 18 of The Prince where Machiavelli considers how rulers should keep their promises. In this passage, he writes: “With regard to human actions, and especially those of rulers, who cannot be called to account, men pay attention to the outcome. If a ruler, then, contrives to conquer, and to preserve the state, the means will always be judged to be honourable and be praised by everyone” (Machiavelli 1988, 63). Four things are worth noting about this passage at the outset. First, Machiavelli uses the term outcome as opposed to end,2 and he does not use the language of justification. Instead, his comment is on how people will judge an action. Second, his conclusion is that if an outcome is successful in preserving a state, then the people in that state will praise the action (not justify it). Third, Machiavelli qualifies his description of rulers with the phrase “cannot be called to account,” implying that the reason a prince might have more latitude in his actions is because a prince is not accountable to the people through any electoral or political process. Fourth, Machiavelli’s comment is not a moral one, in the sense of judging whether or not an action is good or bad, but a comment on how the people perceive political actions – that is, Machiavelli is observing that the people only judge a ruler based upon the outcome of his action, not upon the means that the prince uses to reach this outcome. To most scholars of Machiavelli, this interpretation is not particularly original. While there are some exceptions (Strauss 1995, 14;

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Black 2013, 146), most commentaries on Machiavelli in political theory have made the general observation that Machiavelli’s The Prince is a commentary on political statecraft, and as such it is not concerned with offering advice about what the morally correct thing is. Instead, The Prince offers guidance to a ruler about what the best strategy should be for maintaining power over his state (Berlin 2013; Skinner 2002a; Viroli 2008). I would say that most sophisticated commentary on Machiavelli often notes the absence of this famous phrase from Machiavelli’s work and then moves on to grapple with other interpretive puzzles, such as how to reconcile the monarchism of The Prince with the republicanism of The Discourses, how to determine when (and if) Machiavelli was being genuine, and why Machiavelli would dedicate The Prince to his political rival Lorenzo de Medici. In this essay I explore the role that justification plays – or to be more precise does not play – in Machiavelli’s work. This is not to refute the popular misconception of Machiavelli having said “the end justifies the means,” but to draw attention to a different word that Machiavelli uses in explaining morally dubious actions – excuse. The reason why I am doing this is twofold. The first is biographical. I am writing this chapter for a book in honour of the work of Jim Tully. When I was a master’s student of Jim’s in the late 1990s we had a conversation about possible research topics that I could pursue in a doctoral dissertation. One topic he suggested was Machiavelli’s use of the term “excuse.” His observation was that Machiavelli never (or at least rarely) used the word justification in his writings, but he often used the terms excuse and excusable when defending morally dubious actions. One point Jim made to me was that J.L. Austin’s essay “A Plea for Excuses” could provide a useful way for reading how Machiavelli deploys the words excuse and justify (and their cognates) in his work. I found this idea intriguing, but I have never had the opportunity to pursue it until now. And so, I have decided to take advantage of this occasion to work through this problem. You can consider this essay then a piece of homework that is many years overdue. Second, this exploration of excuses will open the way for thinking about what it is political theorists do, and how their intellectual labour differs from ethicists. Raymond Geuss has recently criticized “[a] strong ‘Kantian’ strand visible in much contemporary theory” and has rejected the slogan “Politics is applied ethics” (Geuss 2008, 1). His argument is that conceiving of the normative study of politics as

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applied ethics is misguided. The Kantian approach (at least according to Geuss, Kantians might disagree with this description, but that need not detain us here) begins by first constructing an ideal theory of how to act and then applying that theory to the action of agents (ibid., 8). Instead, Geuss advocates a “realist” approach, one which begins by examining how institutions actually work and considers what really motivates individuals (ibid.). Machiavelli, of course, is a political realist. And Geuss’s description of what a realist political theory should be, is strikingly close to Machiavelli’s own description of his method in The Prince: “But because I want to write what will be useful to anyone who understands, it seems to me better to concentrate on what really happens rather than on theories or speculations. For many have imagined republics and principalities that have never been seen or known to exist. However, how men live is so different from how they should live that a ruler who does not do what is generally done, but persists in doing what ought to be done, will undermine his power rather than maintain it” (1988, 54). So, my secondary purpose in undertaking this exercise is to recover a method for a realist analysis of politics through my twined readings of Machiavelli and Austin. Because this idea originally came from Jim, I will conclude by suggesting how Jim’s own work in public philosophy bears some family resemblances to the type of realist political philosophy that I am pursuing here.

1 . j u st if ic at io ns and excuses in mach iave ll i’ s wri ti ngs My analysis of Machiavelli begins with a simple numerical observation. In The Prince Machiavelli uses excuse – as either a noun – in Italian scusa – or as a verb – scusare, escurare four times. He uses the term justification – in Italian iustificazione only once. In The Discourses he uses excuse – as both a noun and a verb – fifteen times, whereas he uses justify – in Italian giustificare – once and justification once. So, overall, across his two major works, Machiavelli uses the different cognates of excuse nineteen times, and the terms justify and justification three times. As such he uses excuse a little over six times as frequently as justify.3 So, at first glance Jim’s initial observation is correct. Machiavelli rarely uses the language of justify, and more frequently uses the language of excuse when describing political action.

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If we look a littler deeper into Machiavelli’s use of the language of justify and justification, then we will see that in two of the instances Machiavelli is not making any kind of judgment about the action. He uses the term justification (giustificazion) precisely twice – once in each text. In The Prince Machiavelli writes, “If it is necessary to execute anyone, this should be done only if there is a proper justification and obvious reason” (1988, 59). In this case, Machiavelli is addressing the issue of whether or not a prince should be loved or feared, and he is cautioning his reader against killing someone because it is more likely to make a prince hated. In this case, Machiavelli is not saying that the end would justify the means. Instead, he is observing that killing a person should only be undertaken if two conditions are met, the first is that the killing is “necessary” and the second is that there is a suitable justification, a political pretext. If one of these conditions is missing, then the prince should avoid killing the person. In the second instance of the use of justification (this time in The Discourses) Machiavelli observes: “For if I wish to make war with a prince and solid treatise have been observed between us for a great time, I will with more justification and more color assault a friend of his than himself” (1996, 146). In this instance, Machiavelli is addressing the issue of how wars begin between powerful political communities. The specific case that Machiavelli considers is the war between the Romans and the Samnites, who had previously been allied. In this passage Machiavelli is arguing that a state cannot justify a war if it has been in an alliance with another state for an extended period of time. The only way a state could justify breaking its treaty is if it attacked an ally of the state with which it hopes to go to war thereby drawing the rival power into the conflict. As in the case above, Machiavelli is not justifying the action. The justification serves as a pretext that a state uses in order to carry out a different objective. And the audience of the justification is the broader public – in the first case it is the people of the prince’s state, in the second case the justificatory process is made to the broader international community (or to put it slightly less anachronistically to the other princes and republics with whom the state interacts). There is only one instance in which Machiavelli uses the term justify (giustificare), and it also appears in The Discourses. In book I, chapter 8 Machiavelli writes: “Although to justify himself he wished to be put in the hands of the captain, nonetheless he could never justify himself because there were no modes in that republic to enable

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him to do it” (ibid., 28). The chapter concerns how dangerous calumnies are to a republic, and the passage appears in a discussion about how Gucciardini was accused by his political enemies of failing to capture Lucca because “he had been corrupted by the Lucchese” (ibid.). Machiavelli argues that the ruin of the Florentine republic followed from events such as this one, where it was possible to slander a political leader in public without using a formal mechanism for considering political accusations. The use of the term justify, again, is not Machiavelli’s own judgment of the moral validity of the action. Instead, in this case, Machiavelli is arguing that republics need formal institutions in which individuals can defend themselves against accusations and justify the actions for which they are publically condemned – be it through procedures of censure in public assemblies or courts of law. Machiavelli never justifies any particular action. In all three cases he is assessing an action by a public. In two of the cases the public consists of the citizens of a principality or republic. In the other case the public is composed of the leaders of the other principalities and republics. While Machiavelli acknowledges that the moral assessment of actions is an important part of politics, it is not something with which he is particularly concerned. Justifications are the means by which political actors defend their actions to a broader public. Machiavelli acknowledges that the inability to justify one’s actions to a public will have political consequences. This failure was the undoing of Gucciardini’s political career. Machiavelli cautions that princes who kill their political opponents without a publicly justifiable reason are likely to generate hatred amongst the populace. This is something that Machiavelli identifies as quite dangerous for a prince, particularly a new one. But, in addition to never writing, “the end justifies the means,” Machiavelli never justifies any action anywhere in his two major works. What about the language of excuses? Machiavelli uses the word excuse and its cognates nineteen times across the two works. Just on a simple word count, Machiavelli finds the language of excuses more compelling than the language of justification. However, does Machiavelli excuse actions, or is he simply noting how others excuse actions? While there is space to carefully reconstruct the three instances in which Machiavelli uses the term justify, it is significantly more difficult to do so in the case of excuse, simply because there are so many more instances to consider. Each of the nineteen uses

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of the word excuse by Machiavelli can be categorized into cases in which Machiavelli is excusing an action, and cases in which the word excuse is being used in a different fashion.4 There are twelve instances in which Machiavelli is excusing an action and seven instances in which the word excuse is used in a different manner. Unlike justify and its cognates, Machiavelli uses the word excuse in his own evaluation of actions. When he uses the word excuse more often than not (12:7 to be precise) it is Machiavelli who is excusing the action. To consider all twelve cases in great detail would take up too much space, so instead, I have decided to examine three different episodes in which Machiavelli uses the term excuse to evaluate a specific action. I have selected the one instance from The Prince where he uses the term, and two instances from The Discourses that I felt were particularly emblematic of how Machiavelli excused actions. In The Prince, Machiavelli uses excuse (scusa as a noun, scusare as a verb) four times. Yet the only time Machiavelli himself uses the word excuse (scusare) is when he is evaluating the actions of King Louis XII of France. This usage occurs in chapter 3, when Machiavelli discusses mixed principalities (i.e., a new territory that is annexed to a preexisting principality). Machiavelli contrasts the Roman style of annexing new territory to the technique used by Louis XII. The Romans would immediately send their rulers to live in the new territory and set about undermining powerful neighbours and forming alliances with weaker neighbours. Machiavelli observes that when Louis XII conquered Lombardy, he did the exact opposite of this advice. And so the general point of this chapter is to highlight the blunders of Louis XII in Italy and to praise the techniques of the Romans. It is towards the end of this discussion, when Machiavelli assesses each of the key decisions that Louis XII made, that Machiavelli writes: “And if sharing Lombardy with the Venetians deserves to be excused, because it enabled him to gain a foothold in Italy, this other sharing deserves to be censured, since it was not necessary and, therefore, not excusable” (1988, 13). So, in this passage, Machiavelli excuses one action by Louis XII, but proceeds to censure a different action. To get a clearer picture of how and why Machiavelli does this, I want to consider the quote within the context of the broader argument of the chapter. The quote occurs within a larger discussion of why King Louis XII lost the territory he annexed in Italy. Machiavelli observes that: “Wanting to annex territory is indeed very natural and normal, and

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when men undertake it, they are always praised or, at least, not criticized. But if men who are not capable of achieving it are bent on undertaking it at all costs, this is a blunder that deserves censure” (ibid.). So, Machiavelli’s general argument concerns annexation of territory, which he considers both “normal and natural” and as something for which leaders are often praised. However if an individual lacks the ability to conquer territory, and remains determined to do so at all costs, then this is an action that should be censured. When Machiavelli evaluates actions, great feats (or at least feats that were considered great by the elite political class of Renaissance Italy) are worthy of praise. However, the outcome of the action is not what determines whether or not an action is praised or censured. Rather, it is whether or not the actor carrying out the action has sufficient skill to do so. If an actor with sufficient skill undertakes a bold political action, then Machiavelli is prepared to praise it, regardless of whether or not the action succeeds. Conversely, an actor with poor skill is worthy of blame. So, the ends do not justify the means, but the skill of the actor determines how one evaluates the action. What role do excuses play in how Machiavelli evaluates an action? Machiavelli offers some specific advice about how a prince who has conquered new territories should act if he wishes to hold on to them (the situation in which Louis XII found himself). He notes that if a conqueror wishes to hold territories in a different country, then he must have “great good luck and ability” (ibid., 8), and follow six rules: 1. The conqueror should go and live in the newly acquired territory; 2. The conqueror should establish colonies in a few places as “these are fetters for the conquered territory” (ibid., 9); 3. The conquering prince should not send a military to occupy the territory; 4. The conquering prince should “become protector of the neighbouring minor powers” (ibid.); 5. The conquering prince should “contrive to weaken those who are powerful within the country itself” (ibid.); 6. The conquering prince should “take precautions against the possibility that some foreign ruler as powerful as himself may seek to invade the country when the circumstances are favourable” (ibid., 10). Machiavelli’s argument in this chapter is that Louis did the exact opposite of what Machiavelli advises. After listing these six maxims according to which a conquering prince should act, Machiavelli argues that: “Louis then made these five blunders: he extinguished the minor powers; he increased the power of a ruler who was already powerful in Italy; he brought into Italy

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a very strong foreign power; he did not institute direct rule; and he did not set up colonies. Nevertheless, these mistakes need not have damaged him during his lifetime if he had not committed a sixth that of putting down the Venetians” (ibid., 13). So what Machiavelli is excusing in this passage is Louis XII violating Machiavelli’s maxim that a prince should not make alliances with powerful states – in this case Venice. He excuses the violation in the initial instance, because this alliance enabled Louis XII to gain a foothold in Italy. However, Louis XII’s mistake was to follow this up by entering two alliances with the other great powers – Spain and the Pope. The first case was a violation of a strategic maxim. However, Machiavelli excuses this violation of his strategic maxim because it was necessary for Louis to gain an ally to achieve his larger goal. Conversely, in the later cases Machiavelli censures Louis, because the violation of the maxim was not necessary to achieve his larger goal. Machiavelli’s use of excuse is normative in the sense that he provides norms and maxims according to which princes should act. This normativity, however, is not about morality or ethics, or good and evil. Instead, Machiavelli judges the actions of princes not simply by their success or failure, or by their strict adherence to Machiavelli’s own advice. Instead, for Machiavelli, normativity centres on whether or not the actions of the ruler can be praised or censured. Praise and censure are Machiavelli’s normative poles. While part of praise and blame is the success of the action, the more important focus for Machiavelli is whether or not the action is skillful – that is, carried out by a prince of great skill (virtù) – and whether or not the action is glorious. Excuses, for Machiavelli, arise when extenuating circumstances mean that a skillful action does not lead to a glorious outcome, or in the case of Louis XII, when an extenuating circumstance compels one to act unskillfully as a means to achieve a more glorious end. The centrality of political normativity in Machiavelli’s assessment of actions is also central to his use of excuses in the two examples I examine from The Discourses. The first example from The Discourses is the case of Romulus. In chapters 9 and 10 of book I, Machiavelli uses the term excuse six separate times. This is the most frequently he uses these terms across the two texts. In these two chapters, Machiavelli considers the case of founders and “re-organizers” of republics. Machiavelli’s central claim across the two chapters is that well ordered republics require a single individual who establishes the republic’s laws and customs.

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He argues that republics that were founded and organized by a multitude of people tend to be poorly organized and eventually fall into corruption and ruin. Conversely, a great prince organizes a republic according to a particular vision, and then lays down the principality when he has completed his task and allows the people to govern themselves. Machiavelli identifies three particular challenges in this case. The first is that the founder might have to use authoritarian means in order to achieve republican ends. And the person whom he cites as an example when discussing this puzzle is Romulus, the founder of Rome. Second, there is a danger that a founder, once holding absolute power over a polity, will not be willing to surrender that power once the reorganizing has been completed. Eventually, the reorganizer will be corrupted by his power and will leave the polity worse off than before he took power. Machiavelli holds up Caesar as an example in this case. Third, there is the danger that the founder will not recognize the present situation as an opportunity. In a passage that resonates with a similar argument Machiavelli makes in chapter 26 of The Prince (ibid., 87–8), he observes that it is only when a city state is on the brink of ruin that it presents the opportunity for a great leader to reorder it: “Without a doubt, if he is born of man, he will be terrified away from every imitation of wicked times and will be inflamed with an immense desire to follow the good. And truly, if a prince seeks the glory of the world, he ought to desire to possess a corrupt city – not to spoil it entirely as did Caesar but to reorder it as did Romulus” (1996, 33). So, it is worth bearing in mind that when Machiavelli is analyzing what makes a particular action excusable, it is within the larger context of discussing how a founder can establish a well-ordered republic. The particular actions that Machiavelli describes as excusable are Romulus’s murders of his brother Remus and partner Titus Tatius the Sabine King. Machiavelli excuses these actions because he believes they were necessary. Throughout both texts, Machiavelli often uses the term necessary (necessità and its cognates) to describe how external circumstances compel individuals to act in certain ways. As Quentin Skinner has observed in his commentary on the text, there are two senses in which Machiavelli discusses necessity: absolute and conditional. Absolute necessity occurs when powerful or natural forces compel an individual to act in a certain way, for instance when floods or earthquakes force people to flee their homes. Conditional necessity occurs when certain conditions postulate a

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particular course of action. For instance, if one does not want to get wet when it rains, then it is necessary to use an umbrella. In this second case one is not compelled to act in a certain way; one is free to walk in the rain without an umbrella. However, this alternative is less desirable, and a particular action is necessary if one wishes to avoid the unpleasant outcome (Skinner 1988, 107). As Machiavelli makes clear throughout his writings external forces often structure the range of choices that a political actor faces. Occasionally it is (conditionally) necessary to do an undesirable, perhaps even immoral, action if one wishes to avoid a worse fate. It is when Machiavelli considers such unpleasant choices, that he uses the language of excuses. This is clearest in his discussion of Romulus’s murder of Remus and Titus Tatius. In discussing this action, Machiavelli observes that, “It is very suitable that when the deed accuses him, the effect excuses him; and when the effect is good, as was that of Romulus, it will always excuse the deed; for he who is violent to spoil, not he who is violent to mend, should be reproved” (1996, 29). This sentence seems quite close to an “ends justify the means” logic. However, there are two crucial differences. First, Machiavelli concedes that under normal circumstances a deed such as fratricide is horrific. Second, Machiavelli does not use the language of justification – that is, he does not defend the action, nor does he praise it. He simply observes that the effect of the action excuses the deed. What excuses this action is that Romulus could not have founded Rome had he continued to share power with either his brother or the Sabine king. The act of founding requires only one founder in order to be successful. Therefore in this circumstance one might excuse acts as horrific as murder. Machiavelli is quick to point out that such circumstances are rare and dangerous. Polities rarely experience moments of founding, but those moments occasionally require extraordinary means. The case of Romulus is quite close to the moment of refounding in the American republic when President Lincoln commented as he suspended the writ of Habeas Corpus: “Are all the laws but one to go unexecuted and the government itself to go to pieces, lest that one be violated?” (Cited in Wert 2011, xi). Under such exceptional circumstances actions that are normally immoral may be excusable (but not justified). Machiavelli, however, is quite aware that even excusing such behaviour amongst princes is dangerous. Because, once a leader has transgressed laws and moral codes in the name of preserving a state,

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the temptation is to continue to transgress such laws whenever it is convenient. This is why he contrasts the transgressions of Romulus (whom he praises) with the transgressions of Caesar (whom he condemns). The chapter that immediately follows his discussion of Romulus’s murder of his brother and partner is entitled “As Much as the Founders of a Republic and of a Kingdom are Praiseworthy, So Much Those of a Tyranny are Worthy of Reproach” (Machiavelli 1996, 31). As he observes in this chapter, it is a fine line between being a tyrant and being a founder. In Machiavelli’s mind, there are two crucial differences between the political figures. First, a founder is motivated by the glory of a historical legacy of establishing a great polity, whereas the tyrant is motivated by personal greed and ambition. Second, the founder seeks a way to transition from his one-person rule, to the collective governance of the republic, whereas the tyrant seeks to pass his office onto an heir. These distinctions are discussed in two places. First, in considering Romulus’s actions Machiavelli observes that we can tell Romulus was motivated by the pursuit of a great deed. As he writes: “That Romulus was of those, that he deserves excuse in the deaths of his brother and of his partner, and that what he did was for the common good and not for his own ambition, is demonstrated by his having at once ordered a Senate with which he took counsel and by whose opinion he decided” (ibid., 29). Because Romulus put in place institutions that enabled Rome to govern itself freely for centuries, the initial crimes that he used in order to achieve those ends were excusable. However, not every deed that a prince does is excusable, even if the prince is founding a new city. As Machiavelli observes at the end of chapter 10, “If one who wishes to order a city well had of necessity to lay down the principate, he would deserve some excuse if he did not order it so as not to fall from that rank; but if he is able to hold the principate and order it, he does not merit any excuse” (ibid., 33). In particular, what Machiavelli condemns are princes who fail to use their powers to found republics. While he concedes that if a prince may not be able to found a republic in all circumstances, the prince who is most blameworthy is the one who refuses to organize a great republic when provided with the opportunity. The final passage from Machiavelli’s writings that I will consider in detail occurs in book II, chapter 19. This chapter is entitled “That Acquisitions by Republics That Are Not Well Ordered and That Do Not Proceed according to Roman Virtue Are for Their Ruin,

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Not Their Exaltation.” This chapter mirrors chapter III from The Prince because both chapters discuss the perils of acquiring new territory, and both are passages of Machiavelli’s writings where the term excuse appears. However, in this case Machiavelli modifies the term excuse with other negative terms. So, in the first instance he writes: “And if they had lent it their faith, they would have said that in these times one is better armed, and that a squadron of men-at-arms would be capable of charging a cliff and not merely infantry – and thus they corrupted their judgment with these false excuses” (ibid., 172; my emphasis). The “they” to which this passage refers are the leaders of the Venetian and Florentine republics. In particular, he is condemning the leaders of these republics for believing that artillery is more useful in modern warfare than infantry. He is criticizing the defeated generals of these states who have used the lack of artillery as an excuse for their defeat. Yet, Machiavelli finds this excuse unacceptable – labeling it false – because he believes that Roman military history demonstrates that a strong infantry is more useful for military conquest than any other type of military troop. This point is reiterated in the following paragraph when Machiavelli writes: “They deserve more blame inasmuch as they have less excuse, since they saw the mode the Romans took and could have followed their example, while the Romans, without any example, by their own prudence, knew how to find it by themselves” (ibid., 174; my emphasis). Once again, his point is that the excuses that modern military leaders make for their defeats, especially because of their lack of artillery, is unacceptable. In this case Machiavelli is explicitly blaming military leaders for failing to learn from the lessons of Roman military leaders. These passages are important because they give us a sense of how Machiavelli rejects excuses. Not every action is excusable for Machiavelli. While he is willing to entertain the possibility that a failure to achieve a military objective may be out of the control of the military commander, in this instance Machiavelli cites a failure of skill and knowledge on the part of the military commander, rather than bad luck or lack of resources. So, just as the end (or outcome) does not justify the means for Machiavelli, a poor end does not necessarily condemn or blame the means that are used to achieve it. Instead, Machiavelli assesses how the leader made the decision to act in a certain way prior to determining whether the failure of the action is excusable or inexcusable.

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ii. e xc u se s: a n au st in i an perspecti ve Having examined how Machiavelli uses the terms justify and excuse in The Prince and The Discourses, I will now consider if this distinction matters, and if it matters, how it matters. In order to do this, I will follow Jim’s suggestion that the J.L. Austin’s essay “A Plea for Excuses” could offer a useful avenue for exploring the differences between justifying an action and excusing it. At the outset of this essay, Austin claims that the study of excuses could be “the name of a whole branch, even a ramiculated branch, of philosophy, or at least of one fashion of philosophy” (Austin 1979, 175). Austin’s point is that much of moral philosophy ignores the important role that excuses and other modifiers play in our everyday moral arguments. Austin describes speech act such as pleas, defences, justifications, and excuses as “extenuations” (ibid.). In his elaboration on Austin’s approach to moral philosophy, Cavell adopts the term “elaboratives” (Cavell 1999, 296). Both Austin and Cavell in introducing these terms are critiquing the tendency of many analytic moral philosophers to reduce morality to a set of propositions that are then scrutinized for their logical validity. This approach is not such much wrong, as a fundamental misunderstanding of how people moralize in their day-to-day experiences. One thing that is lost when philosophers move from the exploration of ordinary speech acts to abstract propositions is the subtle yet significant ways in which modifications of various moral claims are used in our moral arguments. The two modifications that Austin focuses upon in his essay are justifications and excuses. Because this essay is exploring how Machiavelli uses (or does not use) these terms in his writings, it is worth spending some time considering how Austin distinguishes between these two speech acts. Austin begins his essay by observing that justifications and excuses are different actions, but they often occur in similar contexts. They both occur when someone is accused of doing something which is “bad, wrong, inept, unwelcome, or in some other of the numerous possible ways untoward” (Austin 1979, 176). When someone faces an accusation, there are several possible ways of responding. The four most frequent possible responses would be to apologize, to deny, to justify, and to excuse. If one apologizes, then the individual has accepted responsibility for the action and admitted that the action is wrong, and sought to make amends. If one denies, then the

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individual is stating that the action one is accused of doing either did not happen, or it was not the person who stands accused who did the action. If one justifies, then one accepts responsibility for the action, but denies that the action was bad. Conversely, if one excuses, then one denies responsibility for the action, but admits that the action was bad. Austin draws our attention to several features of excuses that are useful for our purposes. The most significant feature is that when one makes an excuse or one excuses the behaviour of another, then one is admitting that the action is bad. Conversely, when one justifies the action, then one is arguing that the action is in fact good. Consider for example the case of a killing. If I kill a person on the battlefield and a pacifist accuses me of murder, I could justify my action by saying I did it in the middle of a war. Conversely, if I run a person over in a car and I am accused of murder, I would try to excuse myself by claiming I could not see the pedestrian. This difference between excuse and justification is the most crucial for our purposes here. Those who have read Machiavelli as saying that the ends justify the means, have interpreted him as claiming that certain actions are good so long as they help the prince maintain power. And from this misreading, they have developed a reading of Machiavelli as either a situational ethicist or a “teacher of evil” (Strauss 1995, 14). Yet, because Machiavelli only excuses certain actions, rather than justifies them, he never sees any of the actions as good. When one tries to excuse an action, one rarely is able to escape complete responsibility. As Austin observes: “Because it has always to be remembered that few excuses get us out of it completely: the average excuse, in a poor situation, gets us only out of the fire into the frying pan – but still, of course, any frying pan in a fire” (Austin 1979, 177). So it is with Machiavelli, when he excuses a prince for a bad deed, it is normally the case that the action under consideration has been widely condemned by the public. In excusing the deed, all Machiavelli is pointing out is that in this circumstance external forces compelled the person to act in this particular way. Therefore the action should not be judged as harshly as if the actor had complete autonomy in choosing his course of action. Because a focus on excuses shifts our attention away from the language of good and bad that is the normal purview of ethics, towards the action itself, the role of excuses is defending certain kinds of actions can help us think about what is entailed in “doing an action.”

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As Austin observes, excuses are only used in particular contexts, and the contexts in which excuses are used can reveal a fair bit about the nature of action in general. Firstly, we only use excuses to defend abnormal or failed actions (ibid., 180). To excuse an act is to concede that either the action is not acceptable in normal cases, or that some type of breakdown has occurred in the carrying out of the action. Of course “the abnormal throws light upon the normal” and as such when we seek to excuse an act, we are implicitly relying upon the existing normative framework to defend ourselves (ibid.). Second, only certain types of actions are excusable. Austin suggests that one way philosophers could study actions is by classifying different verbs according to the types of “breakdowns to which each is liable” (ibid.). Excuses are connected with actions that are subject to some type of moral evaluation by others, and in which the actor is presumed to have some type of freedom. In making an excuse, the actor seeks to situate the description of the action in a context that explains (at least partly) why the actor was not fully responsible for the action. Austin thinks that the study of excuses is such a ripe ground for moral philosophy because it draws the philosopher’s attention away from considerations of actions in the abstract, and towards how we speak about actions in our every day discourse. Most moral philosophy, according to Austin, is held captive by the “myth of the verb” (ibid., 178). Philosophers think that verbs function as standins for actions in the same way that philosophers assume that nouns function as stand-ins for things. In both cases, philosophers use the simplest examples imaginable to construct general theories about either acting or things. This tendency to generalize about what an action is from the study of a few simple verbs considered in abstraction leads to moral philosophy’s tendency to neglect the complexity and nuance of our ordinary moral life. Austin believes that to resist the myth of the verb one should avoid constructing general theories, and consider the specific cases where verbs are used instead. The best way to accomplish this is by examining how different verbs describe different human actions. Austin believes that we will quickly discover that not all types of actions are excusable. Excuses only occur when an individual has deviated from expected conduct and is seeking to avoid sanction by claiming that he or she could not have acted otherwise and as such was not responsible for the action. So, excuses draw our attention to normative questions about freedom and responsibility.

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Austin believes that by focusing on excuses, the philosopher can come to see how philosophy has misunderstood the nature of freedom. Normally, in ethics, freedom implies that the actor possesses some kind of capacity to choose how to act. Because of this ability to choose freely the actor can be held responsible for the action. Much of philosophy focuses on freedom as a positive property that an agent possesses. For example, philosophical accounts of freedom focus on the capacity to do something (i.e., positive freedom) – or on the absence of external constraints upon acting (i.e., negative freedom) (Berlin 1969). However, Austin believes that by focusing on excuses, we quickly see that freedom is not only “used to rule out the suggestion of some or all of its antitheses,” nor is it simply “a characteristic of actions” (1979, 180). Instead, what is crucially overlooked about freedom is that it is “the name of a dimension in which actions are assessed” (ibid.). The fact that freedom is a dimension of the normative assessment of actions means that the freer people are held to be in their ability to act – that is, in their ability to choose how they act – the more responsible they are held to be for the results of the action. When one tries to excuse an action (or to be more precise, when one tries to excuse the consequences of an action), one offers reasons for why one is not responsible for what happened. Normally one accomplishes this by explaining why one was not free in that particular circumstance. In order to see how an excuse works, let us consider how Machiavelli excuses actions by considering the case of Romulus’s murder of his brother Remus (1996, 28–30). Machiavelli’s point is that murder is wrong. Under normal circumstances Romulus’s murder of his brother would be a heinous crime. However, the particular circumstance in which Romulus found himself was one of conditional necessity. Because Romulus was trying to found a new republic, it was necessary for him to act alone. Therefore the circumstance compelled him to murder Remus. Had he not done this, then Rome would not have been founded. At the least Rome’s founding would not have been successful in the long run. Machiavelli argues that one should acknowledge that the overwhelming demands of founding a new city state limited Romulus’s options. Had Romulus failed in founding Rome, or if after he had murdered his brother he had turned into a tyrant rather than a founder, then he would be rightly condemned for his action. The demands of the specific situation limited the number of viable choices Romulus had. In other

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words, Romulus was conditionally less free in this case, and as such he bore less responsibility for the action. While murder is wrong and should be condemned, under this specific circumstance Romulus had less choice. Much tragedy explores this idea of an actor being compelled to act in a certain way because of external circumstances and then confronting the consequences of those actions.

iii. e xcu se s, p lu ra li s m, and the p o l i ti cs o f re descri pti on So how does this tie back to Jim’s own work? The simplest answer would be that this is simply my elaboration upon an idea that he suggested to me fifteen years ago. When I studied with Jim, I was primarily interested in questions of historical method, and especially the methodological writings of Quentin Skinner. And so, because of this, I am hesitant to write what Skinner called a “mythology of coherence” – that is, to assume that any thinker had a coherent set of ideas that they expounded across their lifetime (Skinner 2002b, 67–72). So, perhaps this was just an offhand idea that Jim suggested one day to me, and that he never put much thought into again. However, I do think that Austin’s argument that the study of excuses can help philosophers understand the nature of normativity and freedom in a different light has similarities to Jim’s work on agonistic freedom and in his call for a public philosophy that enables us to “think and act differently” (Tully 2008, chap. 3). And so I want to conclude by exploring how these two themes overlap with my study of Machiavelli and Austin. One central theme of Jim’s later work is the development of an account of agonistic freedom that draws upon recent work in political philosophy, philosophy of language, and intellectual history by such figures as Foucault, Wittgenstein, Arendt, Taylor, and Skinner. If one wanted to push this archaeology of Jim’s thought a bit further back one could note the influence of Machiavelli’s account of freedom on the neorepublican freedom in Skinner’s work and the agonistic account of freedom in Arendt. And one could note the influence of Austin on Skinner’s methodological writings and the noted affinities between Austin’s philosophy of language and Wittgenstein’s. So, while integrating Jim’s work with Austin and Machiavelli may seem a bit of a stretch, the connections are already there. I think the point at which the three thinkers primarily connect is in their account of freedom. Recall that Austin claims that freedom

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is “the name of a dimension in which actions are assessed” (1979, 180). What I take Austin to be saying by this is that most modern accounts of freedom are bewitched by a metaphysics of the word freedom that has the word operate as a blanket term for individual autonomy. Jim’s development of an agonistic account of freedom has resisted this temptation by understanding that freedom and free agency does not occur in the absence of the exercise of power, but within and against specific fields of power. That is, power refers to the means by which one governs the conduct of the self and others through different discursive and practical strategies. And freedom is exercised through the agent’s ability to either abide by the strategies or resist and modify them. Central to this understanding of freedom is the role that the politics of redescription plays in Jim’s account of freedom. To take one example of how Jim links freedom and redescription, consider his interpretation of the debate between Nora and Thorvald in Ibsen’s A Doll’s House: “There is always a field of possible reasonable redescriptions: illocutionary acts which evoke another consideration, draw attention to a different analogy or example, uncover another aspect of the situation, and so aim to provoke a reconsideration of our considered judgment in this and related cases. These are speech-acts which exercise the kind of freedom Nora tries to practise in A Doll’s House” (Tully 2008, 28). The act of redescribing a situation or a convention as something else in order to bring to the fore a hidden dimension of power, or to contest a generally accepted way of doing things, is one way in citizens exercise agonistic freedom. Redescribing a norm is a way of problematizing a norm, and once a norm has been redescribed then it is possible to think differently about the norm and act differently in response to the norm. Excuses are one important strategy in the politics of redescription. For Austin, freedom is the field in which actions are assessed, by which I take him to mean that one must see an agent as having some type of freedom (to think, to act, to choose between alternatives, etc.) if one is going to assess a person for an action. We do not hold individuals responsible for involuntary actions such as a sneeze or a blink, be we might hold a person responsible for a voluntary action. One way by we assess voluntary actions is through our moral language where we judge an action as right or wrong, good or evil. Excuses are a particular strategy for getting one (at least partially) out of an accusation. Excuses involve a particular

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kind of redescription. One does not redescribe the nature of the act for which one is accused as good (that type of redescription would be justification – a different means of contesting a norm). Instead one redescribes the responsibility for the action – by claiming that one acted out of compulsion, one did not have a choice, or that one acted involuntarily. Excuses are one way that we exercise our freedom. And in pleading for philosophers to pay more attention to excuses in moral discourse, part of what Austin was doing was trying to point out the aspect blindness that much moral philosophy has given its focus on justifications – that is, on making judgments about what types of actions in general are good or bad. And while this is one possible strategy for resisting accusations – and certainly redescribing an action as good when one is accused of doing ill is one way of exercising redescriptive freedom – turning our attention to excuses and other types of elaboratives used in normative argumentation can show us how many different ways actors have of contesting existing norms and practices. And so, the work of Austin, Machiavelli, and Jim all draw attention to this oft-neglected dimension of normative struggle.

a pp en di x Places in The Prince where Machiavelli uses excuse scusa (n.) and excuse scusare (v.) 1

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III, p. 15 “And if the division of Lombardy he made with the Venetians deserves excuse because with it France gained a foothold in Italy, this other one deserves blame because it was not excused by that necessity.” XXV, p. 101 “For the king of France would have had a thousand excuses and the other would have raised in him a thousand fears.” XX, p. 83 “The difference of treatment that they recognize regarding themselves makes them obligated to you; the others excuse you, judging it necessary that those who have more danger and more obligation deserve more.” XVII, p. 68 “After the Locrians had been destroyed by a legate of Scipio’s, they were not avenged by him, nor was the insolence of the legate corrected – all of which arose from his agreeable nature, so that when someone in the Senate wanted

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to excuse him, he said that there were many men who knew better how not to err than how to correct errors.” Places where Machiavelli uses giustificazione justification (n.) in The Prince: 1

XVII, p. 67 “And if he needs to proceed against someone’s life, he must do it when there is suitable justification and manifest cause for it.”

Places where Machiavelli uses excuse scusa (n.) and its cognates in The Discourses: Excuse scusa (n.) 1

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I 9.2, p. 29 “That Romulus was of those, that he deserves excuse in the deaths of his brother and of his partner, and that what he did was for the common good and not for his own ambition, is demonstrated by his having at once ordered a Senate with which he took counsel and by whose opinion he decided.” I 9.5, p. 30 “Thus having considered all these things, I conclude that to order a republic it is necessary to be alone; and for the death of Remus and Titus Tatius, Romulus deserves excuse and not blame.” I 10.6, p. 33 “If one who wishes to order a city well had of necessity to lay down the principate, he would deserve some excuse if he did not order it so as not to fall from that rank; but if he is able to hold the principate and order it, he does not merit any excuse.” I 29.1, p. 64–5 “If, instead of rewards, he either dishonours or offends him since he is held back by this greed, he makes an error that has no excuse but rather brings with it an eternal infamy … But when he does not reward him – or, to say better, offends him – moved not by avarice but by suspicion, then he merits – both the people and the prince – some excuse.” I 29.3, p. 67 “So if the people of Rome followed the opinion of Cato in this case, it merits the excuse that, as I said above, those peoples and those princes merit who are ungrateful through suspicion.”

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I 41, p. 90 “But it was not at all well used, when he had done this, as I say above, to change nature of a sudden and from a friend of the plebs show himself an enemy; from humane, proud; from agreeable, difficult; and to do it so quickly that without any excuse every man had to know the falsity of his spirit.” 7 I 52.2, p. 104 “Piero too came to make an error by not anticipating the ways by which those adversaries of his made him fear, for which Piero merits an excuse whether because it was difficult for him to do so or because they were not honest with him, yet the way with which he was hurt were the favoring of the Medici, with which favors they beat him down and ruined him.” 8 II 19.1, p. 172 (my emphasis) “And if they had lent it their faith, they would have said that in these times one is better armed, and that a squadron of men-at-arms would be capable of charging a cliff and not merely infantry – and thus they corrupted their judgment with these false excuses.” 9 II 19.2, p. 174 (my emphasis) “They deserve more blame inasmuch as they have less excuse, since they saw the mode the Romans took and could have followed their example, while the Romans, without any example, by their own prudence, knew how to find it by themselves.” 10 III 2.1, p. 214 “For these excuses are heard and not accepted; nor can men who have quality choose to abstain even when they choose it truly and without any ambition, because it is not believed of them; so if they wish to abstain, they are not allowed by others to abstain.” 11 III 6.18, p. 213 “And truly in these cases the conspirators are excused because they have no remedy for it; but when someone is left alive from it through lack of prudence or by their negligence, then it is that they merit no excuse.” 12 III 44.3, p. 305 “So the marquis, taken aback by this sudden decision, sent him the keys, which he would never have sent if de Foix had conducted himself more fearfully, since the marquis was in league with the pope and with the Venetians and had one of his sons in the hands of the pope, things that gave him many honest excuses for refusing them.”

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Excuse scusare (v.) 13

I 9.2, p. 29 “It is very suitable that when the deed accuses him, the effect excuses him; and when the effect is good, as was that of Romulus, it will always excuse the deed; for he who is violent to spoil, not he who is violent to mend, should be reproved.” 14 I 45.2, p. 94 “This accident was noted so much more since in so many sermons he had made after the law was broken, the friar never either condemned whoever had broken it or excused him, as one whom he did not wish to condemn, since it was a thing that was turned to his purpose and he could not excuse.” 15 II 16.3, p. 162 “Because to excuse their ignorance many cite the violence of artillery, which does not suffer many orders of the ancients to be used in these times, I wish to dispute this matter in the following chapter, and I wish to examine if artillery is such an impediment that one cannot use ancient virtue.” Justify giustificare (v.) 1 I 8.3, p. 28 “Although to justify himself he wished to be put in the hands of the captain, nonetheless he could never justify himself because there were no modes in that republic to enable him to do it.” Justification giustificazione (n.) 1 1. II 9, p. 146 “For if I wish to make war with a prince and solid treatise have been observed between us for a great time, I will with more justification and more color assault a friend of his than himself.” no t e s 1 The phrase itself actually originates in Ovid’s Heroides II.85 (1990). For a recent interpretation of Machiavelli that does argue that his ethical outlook is one of “the ends justify the means” see Black (2013, xx, 119, 146).

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Similarly, Strauss also interpreted Machiavelli as saying this when he famously labeled him a “teacher of evil” (Strauss 1995, 14). For scholars who point out that Machiavelli never actually wrote this phrase see Benner (2009, 325) and Viroli (2008, 2). 2 In the original Italian the phrase is “si guarda al fine.” While “fine” can be translated as end, it is usually translated as either “outcome” or “result” as these words have a less teleological connotation, which is closer to Machiavelli’s original meaning in this passage. A notable exception to this tendency is the Mansfield translation which renders the phrase as “looks to the end” (Machiavelli 1998, 71). 3 A brief note on my method: I initially used the subject indexes of the Mansfield translations of The Prince and The Discourses as they usefully traced the uses of words in the original Italian. I then cross-checked the list using Google books on an Italian edition of each text and entering the key terms in Italian. I have produced an attached appendix that quotes each passage where excuse, justify, and justification is used in these texts. I then used the appendix to read each passage closely within its context, making a note of who was being excused (or defended), what act was being excused, how the action was being excused, the context in which the excuse appears, and Machiavelli’s larger point in making this argument. All of this work is used in my analysis of Machiavelli’s use of excuse that follows. 4 This second category could be further divided into cases where a person is offering an excuse and where some public is excusing the actions of a person. Because I am primarily interested in how Machiavelli excuses actions, this subdivision of other uses of excuse does not need to detain us here. I simply note that these are the other two ways that Machiavelli uses the term excuse across these two texts.

r e f e re n ce s Austin, J.L. 1979. “A Plea for Excuses.” In Philosophical Papers, 175–204. 3rd ed. Oxford: Oxford University Press. Benner, Erica. 2009. Machiavelli’s Ethics. Princeton, NJ: Princeton University Press. Berlin, Isaiah. 1969. “Two Concepts of Liberty.” In Four Essays on Liberty, 118–72. Oxford: Oxford University Press. – 2013. “The Originality of Machiavelli.” In Against the Current: Essays in the History of Ideas, 33–100. Princeton, N.J: Princeton University Press.

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Black, Robert. 2013. Machiavelli. Oxford: Routledge. Cavell, Stanley. 1999. The Claim of Reason: Wittgenstein, Skepticism, Morality, and Tragedy. Oxford: Oxford University Press. Geuss, Raymond. 2008. Philosophy and Real Politics. First edition. Princeton: Princeton University Press. Machiavelli, Niccolo. 1988. Machiavelli: The Prince, edited by Quentin Skinner and R. Price. Cambridge: Cambridge University Press. – 1998. The Prince. Translated by Harvey Claflin Mansfield. Second revised edition. Chicago, Ill: University of Chicago Press. – 1996. Discourses on Livy. Translated by Harvey Claflin Mansfield and Nathan Tarcov. Chicago: University of Chicago Press. Ovid. 1990. Heroides. Translated by Harold Isbell. Reissue edition. London and New York: Penguin Classics. Skinner, Quentin. 1988. “Notes on the Vocabulary of the Prince.” In Machiavelli: The Prince, edited by Quentin Skinner and Russell Price, 100–13. Cambridge: Cambridge University Press. – 2002a. Renaissance Virtues. Cambridge: Cambridge University Press. http://site.ebrary.com/id/10062268. – 2002b. Visions of Politics. Volume I. First edition. Cambridge: Cambridge University Press. Strauss, Leo. 1995. Thoughts on Machiavelli. Chicago: University of Chicago Press. Tully, James. 2008. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. Viroli, Maurizio. 2008. How to Read Machiavelli. London: Granta Books. Wert, Justin J. 2011. Habeas Corpus in America: The Politics of Individual Rights. Lawrence, ks : University Press of Kansas.

18 Four Conceptions of Liberty as a Political Value Duncan Ivison

i It is often supposed that discussions of liberty (or freedom) are ultimately reducible to considerations of freedom of the will. This renders it primarily a metaphysical question. There is some truth to the thought that it is hard to avoid metaphysical questions whenever we talk about freedom. However, taken (too) strictly, this assumption can sometimes elide the distinctly political dimensions of liberty, and the role it plays in relation to key concepts in political philosophy – such as those of power, authority, and legitimacy (Williams 2005). I am not suggesting metaphysical questions cannot also be political ones. But liberty understood as a distinctly political value requires grasping its close relation to particular kinds of disagreements in politics, especially those about the justification and legitimacy of exercises of power. These disagreements include many other things too. But power and legitimation are central. And different political traditions will assemble the relevant conceptual materials in varying and often conflicting ways. The connection between liberty and legitimacy will be a key focus of this chapter. I will argue that we should maintain a distinction between the legitimacy of a political order and its ultimate justness. Although I will not address it in detail here, an underlying issue for our discussion is consideration of the legitimacy of a political order in light of what Jeff Spinner-Halev (2012) has called the legacy of “enduring injustices.”1 Can the state (or the “basic structure” of

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society, in Rawls’s phrase [2001]) exercise power over citizens without dominating them, given such historical legacies? How should we conceive of the kind of liberty individuals and groups can and should be able to exercise in such contexts? I shall return to this question in the final section. This concern trades on the more general question: how should we understand the nature of the legitimacy of a political order? Does it reside ultimately in the justice of that order, or in the extent to which it enables or maximizes the freedom of those subject to it? What is the difference between these two approaches? I shall attempt to provide an answer to this question, drawing on James Tully’s work, among others. In addition to the legitimacy challenge, another key element of grasping liberty as a political value is related to what I see as a response to – among other things – the high liberalism of the late twentieth century and a recent return to humanism. The dominance of Rawlsian and Habermasian political theory (in Anglo-American contexts at least), has resulted in a desire for more realistic and political political theory, brought down to earth from the Kantian heavens of ideal theory (Geuss 2008). What would it mean to have a suitably realistic account of political liberty? On the one hand, we cannot properly understand liberty without an underlying account of personhood or agency.2 In making sense of liberty, we need to ask what kind of agency does it presuppose or promote? What kind of independence do we care most about? What does it mean to exercise control, or to be self-guiding, in the kind of world we live in today? At the same time, a conception of moral and political personhood needs to be appropriately realistic: its account of human psychology and motivation should not be overidealized (or oversimplified), nor demand more (or less) than can be reasonably expected, given the kind of creatures we are (O’Neill 1996; Scheffler 1994). One response to these challenges and our current social and political context, of course, is to embrace a kind of antihumanism; to claim that the regulative ideals of human agency underpinning our dominant conceptions of freedom today rest on an ultimately illusory, essentialist humanism. I do not want to explore that critique in any detail here. However, there has been a kind of return to humanism in recent years, on at least two fronts. First, to a corporeal or “mortalist” humanism, grounded in our shared mortality

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and vulnerability to suffering (Murphy 2011). And second, to an “agonistic humanism,” grounded in a contestatory stance towards that which is claimed to be in our nature, or as normative for us (Honig 2013). All I claim here is that a key element of any conception of the political is the idea that politics constitutes not only a distinctive mode of collective human activity, but also of agency, and a domain in which power and disagreement are central to any proper understanding of it. Thus, grasping liberty as a political value is also to explore the different ways in which we want this value to shape our practices and institutions. These two broad themes – the role of conceptions of liberty in evaluations of the legitimacy of a political order (including in the context of “enduring injustices”), and the extent to which our conceptions of liberty presuppose certain conceptions of the person and “practices of the self” – are at the heart of much of James Tully’s work. I believe he offers an important alternative framework for thinking about the nature of political liberty in contemporary political theory that deserves closer critical attention. This chapter is an attempt to begin to outline the elements of this alternative approach, in dialogue with some of the leading approaches in the field.

ii A good starting point for understanding liberty as a political value is essentially Rousseau’s: how can we “be both free and forced to conform to wills which are not [our] own” (2004, IV, ii, 7)? Or even more succinctly: how can I be free and yet also subject to coercion (state based or otherwise)? How can we be both agents and subjects, simultaneously? Two familiar and powerful answers immediately present themselves: Rousseau’s answer (freedom 1), in which I am free to the extent that I obey laws of which I am also the author. And secondly (freedom 2), Locke’s, and to a lesser degree, Hobbes’s: I am free to the extent that I am subject to a political order that also protects my rights, which forms part of the justificatory legitimacy of that order. This has been a deeply influential view and continues to be so today. I will return to this below. But there are at least two other answers, one provided by Philip Pettit, and another by Tully, among others.

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Pettit’s answer to Rousseau’s question (freedom 3) is that we are free to the extent that we enjoy “freedom as non-domination,” defined in terms of the ability (potential and actual) of other’s to arbitrarily interfere in my actions and choices (1997).3 Thus freedom is not freedom from interference per se, but only from arbitrary interference, where arbitrariness is tied closely to interference that involves obstructing, coercing, deceiving, or manipulating my choices in ways I cannot meaningfully check, or which are not reasoned in the appropriate sense. Note that on this moralized conception of the constraint-absence conditions of freedom, there will be morally permissible constraints – beyond those required for any kind of political or social order whatsoever – that do not count as freedom restricting. Tully’s answer (freedom 4) is to tie liberty closely to action, and as much to what we might call “freedom in,” as opposed to “freedom from,” or “freedom to.” Freedom understood in this sense is not a matter primarily of the will, or intellect, but is related fundamentally to action, or to practice. I am free to the extent that I can act in certain ways. An example of this ideal, drawing on insights from Wittgenstein and Foucault, is what Tully refers to as “the freedom of acting and speaking differently”: “[t]he games humans play with concepts are not everywhere bound by rules, and the rules themselves are not fixed unconditionally. As a result, the conditions of being ‘rule-bound,’ the requirement for normative and predictive theory being about actual games over time, is constantly subverted in practice” (2008, 139; see also 125). As I understand it, the freedom that matters on this account is one that, among other things, enables us to be particular kinds of agents. According to this view, we are free to the extent that we are capable of acting on those forces acting on us, including not only physical forces, but those in relation to what we might call the “space of justifications” – the capacity to question and criticize the structures of justification that determine the space of public reasoning (Forst 2014a, 2014b, 179–81). But this freedom is grounded not on the basis of an independently derived conception of practical reason (as it is for Kantians), but rather a conception of what we might call a situated, practical agency. And since this account rejects conceiving of freedom in causal terms, or in terms of the condition of my will, it keeps freedom closely related to power, both conceptually and practically. In fact, power and freedom are correlative: you cannot have

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one without the other. I am free to the extent that I can act on those actions acting on me, which in turn, are always open to yet further “counteractions.” The republican (freedom 3) and practice (freedom 4) conception of freedom are worth bringing into closer dialogue with each other. One reason is to provide a richer alternative to the dominant conceptions of liberty in our actual politics today. But before doing so, let me say a bit more about what I mean by a “political conception” of liberty.

i ii I take Rousseau’s problem as capturing very clearly the demands of articulating a distinctly political conception of liberty; that is, of trying to reconcile liberty with authority, or indeed with coercion. Recall that for Rousseau, politics is fundamentally relational and transformative – it involves a form of self-realization through politics and through participation with others. But unlike Kant, for Rousseau, a state is legitimate to the extent that it reflects the general will of all (which reflects both my freedom as self-determination, and my not being dominated by others’ wills), not when it accords with a priori principles of reason. Thus political legitimacy concerns the way people actually relate to the political order under which they live and through which other political goods – like social justice – are realized. As a result, we need to distinguish between the justice of a social and legal order, and its political legitimacy. Social justice pertains to the character or content of the social and legal order. Political legitimacy pertains to how the coercive imposition of that order relates to the people on whom it is imposed. Legitimacy must have some normative content, to be sure. But it is a more normatively minimalist concept, as opposed to that of distributive or social justice. The republican and practice conceptions overlap, to a certain extent, on this point. Both Tully (2008) and Pettit (2012) argue for more democratically centred and open-ended approaches to questions of political legitimacy and substantive justice, albeit for different reasons. However, they both recognize the extent to which these different elements often combine in an uneasy alliance. The uneasiness is caused by the extent to which citizens are meant to be able to both democratically shape the basic structure that acts on

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them, as well having those processes held up against principles or ideals of social justice that stand independently of those very extant processes of legitimation. So both Pettit and Tully’s approach keeps legitimacy and justice apart, at least analytically speaking, and embrace a freedom-centred approach to the legitimacy of a political order. However, against Pettit, I do not think we should say, therefore, that there is no loss of liberty when we live in a state that protects our freedom as nondomination, however much we need to distinguish between different kinds of interference. In other words, we should reject any kind of moral exemption clause for some constraints (beyond those minimally required for any kind of society). There is no conceivable democratic society, for example, that does not involve compromising some individuals’ interests – however much a non-dominating democracy, on Pettit’s terms, ought to track the “common avowable interests” of its citizens (Pettit 1997, 156). Freedom 4 (Tully) helps us to critically reflect on freedom 3 (Pettit) in this regard. I will return to this below. Before doing so, I want to consider another conception of legitimacy and liberty that Pettit, in particular, sees as the main opposition against which his argument is posed. This is freedom 2, and especially its Hobbesian variant.

iv It is a striking feature of the recent republican revival that Hobbes plays such a central role in their story.4 However, he is cast very much as the central villain in the piece, rather than its hero. It is Hobbes, and those who followed him in the eighteenth and nineteenth centuries, who are deemed responsible for crowding out alternative views of liberty, and especially the neo-Roman conception of freedom as nondomination (see especially Skinner 2008; Pettit 1997, 2008). Both Quentin Skinner and Pettit argue that this neo-Roman conception of freedom offers a powerful antidote to the Hobbesian-inspired neoliberalism so dominant today. Recall the basic conception of freedom as nondomination: a free person, like a free state, is one who is at liberty if and only if they are not subject to external constraint and can act according to their own will, in pursuit of their chosen ends. In a body politic, the will of the citizens – its general will – chooses and determines the ends to

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be pursued by the community as a whole. The distinctive claim made by the republican conception, however, is that the mere presence of arbitrary power has the effect of undermining political liberty, understood in this sense. The very presence of arbitrary power within a civil association has the effect of rendering its citizens as slaves. So what it means to live in servitude is to live under the arbitrary power of another; that is, to live in such a way that one is dependent on another not choosing to interfere with you, or to exercise control over you, even though they could. This is a powerful and attractive conception of liberty. But we need to consider the use of Hobbes’s conception of liberty in the construction of the argument more closely, since the various countours of it are often taken for granted. First, there are elements of Hobbes’s conception of freedom that remain obscured in Skinner and Pettit’s account that are worth bringing out more clearly. In particular, I am interested in the relation between Hobbes’s conception of what I will call corporeal liberty and what he calls the “government of opinion,” or the passions. Second, I believe something like a corporeal conception of liberty remains an interesting and important resource for thinking about freedom today, and this bears on our consideration of liberty as a political value. To put it somewhat differently: I want to recover Hobbes’s conception of corporeal freedom from the now dominant republican reinterpretation of Hobbes’s political thought.

v The broad outlines of Hobbes’s conception of liberty are well known, so I shall summarize it here very briefly. For Hobbes, people can subject themselves to others either via corporeal or contractual constraints. According to the latter, we make a “voluntary offer of subjection,” which is compatible with acting out of fear (1994, chap. XIV, para. 27). In doing so, we waive some of our natural rights to resist the sovereign and in the process incur an obligation. Voluntary actions, for Hobbes, are completely consistent with acting out of fear, since acting on the basis of one’s will is to act on the basis of the interplay between aversion and appetite. Voluntary slavery is not an oxymoron for Hobbes. Indeed, its possibility is a key aspect of his argument. In both cases, a master has dominion over his slave, albeit through different kinds of bonds:

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the corporeal slave is obliged through chains and “forcible custody,” whereas the contractual slave is bound by the “verbal bonds of the covenant” (ibid., chap. XVII, para. 13; see also the discussion in Pettit 2008, 115). This analysis provides the structure for the solution to the problem of the exercise of unrestrained liberty in the state of nature, which results in a state of war. To establish peace, it is necessary for people to establish a commonwealth as sovereign over them. The subjection of the members of a commonwealth to the sovereign is analogous to the subjection of contractual slaves to their master. This means that members of the commonwealth are absolutely subject in a contractual sense, but not necessarily in a corporeal sense. In the Elements, Hobbes puts this in terms of the master leaving “at liberty” the bodies of his slaves, allowing them to act as they please in that domain. There should be no prohibition without necessity, and so only what is necessary for the good of the commonwealth (see also 1994, chap. XXI, para. 1.2; chap. XXI, para. 6). For Hobbes, then, freedom understood in the republican sense is literally nonsense. Recall that to enjoy freedom as nondomination, I must be protected against both private and public domination. I am free only to the extent than no one can arbitrarily interfere with me, or even has the potential to do so. But according to Hobbes, by definition, the sovereign exercises domination over me. That is how we escape from the state of war, which everyone should rationally desire. As Skinner has brilliantly shown, between the Elements and the Leviathan, Hobbes seems to move from a kind of eliminativism about freedom, to offering a fully-fledged alternative account of political liberty. In fact, Hobbes argues, citizens in a commonwealth are genuinely free, in the proper sense of the term; that is, as subjects who have contractually bound themselves to the commonwealth. In subjecting themselves in this manner, they have alienated one kind of freedom – the freedom to decide between different options – to the sovereign. But they retain the freedom to enact a decision, which can only be constrained by actual physical and corporeal impediments. So where there are no such impediments to an agent’s action, he is free in the “proper” sense of the term; this is what it means to enjoy the “liberty of subjects” (ibid., chap. XXI, para. 6). And this is exactly what subjects of a commonwealth possess: “If we take liberty in the proper sense, for corporeal liberty (that is to say, freedom from chains and prison),” argues Hobbes, “it was very absurd for

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men to clamour as they do for the liberty they so manifestly enjoy” (ibid., XXI.vi). Citizens in a commonwealth are bound contractually, not corporally, and are at liberty to act on their choices, free of contractual ties, in the “silence of the law” (ibid., XXI.xviii).

vi So, we have two distinct conceptions of liberty at play; republican freedom as nondomination, and Hobbesian corporeal liberty. One reason why Pettit and Skinner are so keen to contrast the republican conception with the Hobbesian one is that it is meant to demonstrate the extent to which he shrinks the conceptual space of liberty such that only actual physical violations of liberty count. This narrow conception of liberty, in turn, argues Pettit, has been translated by neoliberals today into a deep suspicion of all forms of especially state interference in liberty (however much neoliberalism and Hobbesianism, in other ways, make for strange bedfellows). A crucial test of this difference is to contrast the Hobbesian and republican approaches to the link between liberty and law. For the republican, law provides the infrastructure of freedom: it provides the structure within which a citizen is able to enjoy both private and public nondomination. However, in making this argument, Pettit and Skinner seem to overlook another dimension to Hobbes’s conception of the relation between liberty and law. Pettit, in particular, argues that Hobbesian liberty entails an essentially negative conception of law. I want to examine this claim more carefully as a means of raising some issues about Pettit’s overall normative argument. If Hobbes is the forerunner of neoliberal conceptions of negative freedom, then he is also a harbinger of the way these conceptions of freedom always also project distinctive forms of (“positive”) power as well. What is striking about Hobbes’s argument, especially in De Cive, Leviathan, and Behemoth, is the extent to which subjects need to be properly disposed to grasp the connection between obedience and protection. In fact, this is the conceptual key to the entire argument of Leviathan. The reason why is because in the end, civil society – made possible by the institution of the commonwealth – is extraordinarily fragile. Laws bind in the artificial world of the commonwealth in ways that “no strength to secure man at all” in the natural world but can be made to seem to so bind (ibid., XVII.xxi).

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And this insight into the fragile connection between obedience and protection applies equally to the sovereign, since it is the obedience of his subjects that literally enables him “to do his office” (1990, 144). So if the sovereign governs badly – by which Hobbes means, not that he violates his subjects’ rights (other than their right of nature), but makes their lives miserable, he may provoke disobedience, and by doing so promote “intestine disorder” (1994, chap. XXIX). The sovereign is thus in many ways even more dependent on his subjects than they are on him. In fact, Hobbes makes this explicit: “When … our refusal to obey, frustrates the End for which the Sovereignty was ordained; then there is no liberty to refuse; otherwise there is” (ibid., XIV, XXI.xx). But what is it that laws actually do in Hobbes’s political theory? Crucially, the world of law is the world of artifice – a reality created by the institution of the commonwealth. Collecting together the different references in the Leviathan, for example, laws are said to bind, restrain, constrain, scare, punish, oblige, and direct. So the law binds or restrains people from acting, as well as obliging and directing them to act. Moreover, the power to make laws is part of the authority granted to a sovereign to “forme the wills” of subjects to “peace at home and mutual ayd against their enemies” (ibid., XVII). Thus to say, as Pettit does, that Hobbes has an essentially negative conception of law is too simplistic. In fact, Hobbes provides a definition of what a good law is: a good law is not a “just” law, since no law can be unjust (i.e., no command of the sovereign can be unjust), but that which is “needfull, for the good of the people, and withal perspicuous.” It is “needfull” for the good of the people since it is not meant “to bind the people from all voluntary actions; but to direct and keep them in such motion, as not to hurt themselves by their own impetuous desires, rashness or indiscretion.” This is “the true end of law” (ibid., XXX). Thus, punishments are not about the “discharge of choler,” but the “correction, either of the offender, or others by his example” (ibid.). A law is perspicuous when its justification and meaning is clear, reducing the “multiplication” of meanings and thus contention and civil conflict. Though a sovereign might have every right to promulgate comprehensive laws covering every aspect of human conduct, Hobbes recommends against it. In fact, good laws are contrasted with “unnecessary laws,” which are “traps for Mony” and inefficient (ibid.).

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But Hobbes is also concerned with what he calls – in both Leviathan and the Behemoth – “the government of Doctrines” and their effect on popular opinions about sovereignty and political order. This is primarily about the education of the passions. The sovereign needs the capacity to regulate the “conduits” through which ideas about politics are promulgated and shape the uptake of those ideas by citizens (ibid., XVIII, XXX). How does this work? Generally, Hobbes speaks of the law shaping the passions in at least three ways. First, the force of law is tied to a superior understanding of what is in an individual’s best interest. A rational individual will, ex hypothesi, recognize that obedience to such a law is in their best interest. Second, laws can direct individuals as part of a set of governmental actions brought to bear on the population of a state. Laws concerning the teaching of doctrines, for example, can shape the passions and thus values people have in the first place (given Hobbes’s account of moral psychology). This is especially true of the universities: “It is … manifest that the instruction of the people dependeth wholly on the right teaching of youth in the universities.” [In the Latin Leviathan this passage concludes with: “Therefore, before all else the universities are to be reformed.”]5 Third, given that people are short sighted and driven by their passions, laws can provide the right structure of incentives and sanctions that help override the destructive passions and guide self-interest, now properly understood.6 Hobbes says famously that the “passions of men are commonly more potent than their reason,” and thus fear is “the passion to be reckoned upon” to “forme the wills” of subjects (1994, XIV). But in fact, he knows that fear, ultimately, cannot provide a long-lasting foundation for the commonwealth. This is true for two reasons. First, the state cannot always effectively deter all those who are determined to cause “intestine disorders,” whatever the consequences (ibid., XLVII; this is a key theme of Behemoth). Hence the importance of the “well government of opinions” (especially opinions about the nature of sovereignty), in which “consisteth the well governing of mens Actions in order to their peace and concord” (1994, XVIII, XXX; see also 1990). It is not only a sovereign’s duty to instruct the people in the “essential rights of sovereignty,” but is also to his “benefit … and security against the danger that may arrive to himself in his natural person from rebellion” (1994, XXX. vi). If men are “remissely governed” in this regard, then they become

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too easily duped or induced into taking up arms to defend uncivil opinions: they “live, as it were, in the procincts of battaile continually” (ibid., XVIII). The “terrour of legal punishment,” he makes explicit, is not always effective at making clear the “grounds of these rights of sovereignty” (ibid., XXX). The second reason is even more powerful: if men are always prepared to revert back to the exercise of their right of nature, save for fear of the terrible consequences this might bring, then they have not really left the state of nature in the first place. To be poised to reclaim one’s natural liberty at a moment’s notice is to place the foundations of civil society on very shaky footings indeed. On the other hand, if the transformation of man’s thinking (and acting) in civil society is so complete that he no longer even considers doing so, then it is not clear why the sovereign needs the powers it has been granted.7 The rule of law then, along with good government, is required to provide not only an infrastructure for freedom (even if mainly a negative freedom), but a degree of socialization that encourages the internalization of the norms of virtuous behaviour – now redefined by Hobbes as human conduct that is conducive to peace. What is required is that people are brought to reason properly about their long-term interests. In civil society, no one has the right to break the sovereign’s laws unless it has to do with their inalienable rights, and not just any set of desires. The problem is that this deep connection between protection and obedience is potentially lost amongst doctrinal and ideological disputes. The passions can overwhelm reason. Even for threats to be effective, subjects must come to have the right “opinions” about the consequences of their actions. They must be brought to engage in a form of reasoning that makes certain kinds of norms salient to them. The artificial chains of civil law, along with the “arts of government” must work to shape individuals in particular ways to help secure the benefits of political order. But there is no guarantee that they will. As Hobbes writes in the Leviathan, almost wistfully, “nothing is more easily broken then a man’s word” (ibid., XIV, quoted in Skinner 2008, 173).

v ii I am not trying to redefine Hobbes in Spinozan (or Rousseauean) terms. There are clear limits to the kind of transformation the state can generate through law. Biology is indeed a kind of destiny for

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Hobbes that no amount of legal or governmental regulation can overcome. Instead, I am trying to bring out different aspects of his conception of liberty that are often elided in the republican story. Recall that for Pettit, Hobbes seems to miss the important connection between liberty and law, insofar as he thinks noninterference is a necessary and sufficient condition for political liberty. For Hobbes, argues Pettit, the relation between law and liberty is a purely extrinsic one, and the law is not primarily focused on the promotion or securing of freedom. I have argued, however, that Hobbes does, in fact, think law is crucial for liberty. The liberty of subjects, as he calls it, is a lawful liberty and thus law helps “forme the wills” of subjects. Of course, these powers, as we might call them, are not on par with the external obstacles Hobbes defines as the genuine limits to corporeal liberty. They leave corporeal liberty intact. They help “form” the will, as distinct from “forcing” it. But this points to a broader issue with the republican account. It is a signal feature of that argument that interference, in itself, does not constitute unfreedom (as it does for Hobbes). Law, in particular, does not always entail a loss of liberty, since it might be necessary in order to secure either private or public nondomination. In one sense, Hobbes agrees, despite what Pettit thinks: liberty, in the proper signification of the term, is only ever genuinely constrained by physical impediments. As Hobbes puts it in De Cive, anyone so constrained (by civil law) from doing what he wants to do is “not oppressed by servitude; he is governed and maintained” (1983, 9.9). But there is a danger, as the republican account might have us do, in losing sight of the idea of corporeal liberty – and if not the value of liberty as noninterference, then liberty as counterinterference. To paraphrase something Michel Foucault once said, institutions and laws, on their own, never fully secure liberty. We need a conception of liberty that counts more than simply physical impediments to our freedom, but one that does not dissolve the constraints involved in law, for example, entirely into freedom. My freedom can be justifiably constrained for the sake of others’ freedom. But we should not shy away from claiming that it can still entail a loss of liberty. In fact, to return to my earlier discussion of liberty as a political value, it is actually crucial that we capture these aspects in our disputes about liberty. They form the basis of some of the most important political disagreements we have about the nature of liberty and legitimacy.

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Another reason for trying to capture what Hobbes means by corporeal liberty is that it remains a valuable conception in and of itself, and not only in the way republicans have criticized it. Interestingly, returning again to Foucault, it turns out that he endorses something like a corporeal conception of liberty – or so I would argue. Perhaps this is one reason why he was so interested in Hobbes (Ivison 2008). For Foucault, I am free to the extent that I can exercise my capacities in such a way so as to modify the actions of others on my actions. Freedom is tied very closely to action and is a kind of corporeal freedom. But that corporeal freedom is itself conditioned by various social, political, and historical forces, as well as the interpretive frameworks through which an agent comes to understand her actions. Thus, Foucault’s conception of corporeal freedom is far richer than Hobbes’s, given his genealogical account of the nature of human bodies and their capacities. It is not merely a natural body seeking to maintain itself in motion and satisfy its appetites and repel its aversions. Instead, Foucault’s conception includes a dynamic account of the constitutive interaction between bodies, knowledge, and power. Thus, as he put it in a late interview, the only guarantee of freedom is … freedom: “If one were to find a place … where liberty is effectively exercised, one would find that this is not owing to the order of objects, but, once again, to the practice of liberty” (Foucault 1984, 245).8 Hobbes might well agree.

vi ii Bringing together our discussion of the republican and practice conceptions of liberty, what then would be a suitably realistic or more genuinely political conception of liberty? It might be tempting, on this analysis, to say that we should dispense with the illusion of political liberty altogether and treat it as nothing more than a kind of empirical claim, akin to descriptions of an organism’s action within a basically closed biological system. Three thoughts should militate against this temptation. First, it is difficult to avoid evaluative language when grasping and interpreting political concepts, just because it is woven so deeply into our discursive and political practices. The desire for a more political or realistic picture of politics is, after all, itself motivated by various

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normative concerns to do with underlying conceptions of value in relation to human agency and concern – something often missed by some of the most enthusiastic realists in political theory today. Second, even if we think we could do without the fiction of political liberty altogether, then we would still be left with trying to make sense of what it would mean to never resent or resist forces that frustrate our desires, projects, and values. What attitude would one have to have of towards those forces (and indeed oneself) that exercised power over us in this way – and especially of political power – for these kinds of questions to never arise? It is hard to disconnect our conceptions of liberty from our conceptions of the person, or of human agency. They are inextricably linked. Finally, central to just about any form of politics is the notion that legitimate power is not simply effective power; that might is not simply right. In other words, that whenever power is exercised there always needs to be some kind of legitimation story (though not necessarily the same kind of legitimation story in every context). And however great the range of disagreement and variation across time and place, our engagement in various collective social and political practices almost always includes the possibility of taking a critical stance towards (at least certain aspects) of those legitimation stories. This is one way of making sense of the idea of a practice conception of liberty. What is the best way of characterizing this kind of liberty? Recall that for Foucault, I am free to the extent that I possess the actual capacities and self-understandings to act on those relations of power acting on me. Those capacities and self-understandings are, of course, themselves the products of various practices and relations of power in which I am already enmeshed. The kind of agency that Foucault and Tully are interested in is not causal, but historical. Thus, the practice conception of freedom is a particularly radical version of what Ian Carter (1999) has called the “specific freedom thesis”: individuals and groups are not to be understood as free as such, or free in some nonspecific sense, but free to do particular things and pursue particular ends. This characterization of political liberty brings with it a range of familiar objections. How can we be both free and yet subject to a dense field of power relations? How can we gain the kind of critical distance on the legitimation stories to which we are subject if they help constitute the very structures within which we act as citizens?

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However, to conclude, rather than pursue these familiar lines of critique, I want to summarize Tully’s (and Foucault’s) conception of freedom as practice as it has emerged from our comparison with republican conceptions of legitimacy and freedom. This will hopefully provide a fresh perspective on some of the established conventions for thinking about freedom in contemporary debates. For Tully (2014), the capacity to test the acceptability of a norm to which we are subject, and to negotiate what would count as following that norm and to be able to modify it en passant, is internal to the very practice of rule following and norm following in the first place. The possibility of (and in) the renegotiation and reinterpretation of at least some of the terms of each and every social and political relationship we are enmeshed in is the ground of what he calls “civic freedom.” Where there is no room for maneuver whatsoever, there is not a genuine human practice, nor even a relation of governance, but rather straightforward domination. Thus, in being governed, in being both subject to power and exercising power, one is always also an active agent, faced with choices, options, and responses within a (always limited) field of possibilities. It is this freedom of and in practice that constitutes civic freedom: the freedom to respond, ignore, negotiate, divert, and even conform to a public script, while also being free to think otherwise. One upshot of this argument then, as applied to Pettit’s republican theory, is that there is no way of neutralizing the apparently arbitrariness-busting mechanisms of a republican social and political order from being potentially dominating. Any social and political order involves relations of power acting on the actions of those subject to it and in ways that can be potentially dominating. In short, despite Pettit’s attempt to link the conditions for nondomination to the presence of a “contestatory” form of law and democracy (2012), the rule of law (as one set of “norms of mutual recognition” among others) remains a form of rule that cannot be completely inoculated from possible domination (and this is particularly the case given Pettit’s concerns with unfettered populism). Nor can it be free of ongoing negotiation and contestation in terms of the best way of interpreting what counts as a move within the practice itself. The rule of law then is not so much the pre-established architecture of freedom, but always itself subject to ongoing critique and counteraction. In fact, this points to a broader challenge for the republican account that I alluded to above. How can we best

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address the structural asymmetries of power that come from historical legacies of domination – such as colonialism or slavery – that can shape the “basic structure” of society in fundamental ways, even when justified with reference to liberal conceptions of rights and the rule of law? One concern is that freedom as nondomination offers less scope for addressing these kinds of structural inequalities and asymmetries, given its focus on depoliticizing political institutions as a means of ensuring nonarbitrariness.9 This kind of critique is, of course, familiar from Foucault’s classic account of discipline (and governmentality) operating above and through the formal, juridical structure of the rule of law. The rule of law, even when oriented by a concern with promoting nondomination, can never be immunized from arbitrariness, since citizens always stand in a relation of power to it. This is also one of the deep insights of the postcolonial critique of the enduring injustices characteristic of many liberal democratic societies today. But then what would satisfy the “basic legitimation demand” and “critical theory principle” of a liberal political order – the idea, as Bernard Williams has put it, that “the acceptance of a justification [for the legitimacy of the political order] does not count if the acceptance itself is produced by the coercive power which is supposedly being justified” (2011, 6–7)? At the very least, what is required is the presence of liberty, exercised and practiced by those subject to the structures and norms that constitute that political order, but never wholly dominated by it. James Tully’s work helps us understand the ways in which human beings constantly find new ways to be free.10 no t e s 1 I have also tried to address some of the issues in Postcolonial Liberalism (2002). 2 This has been one of the persistent and important claims made by Charles Taylor (1989). 3 For a different but related and helpful taxonomy of freedom see List and Valentini (2016). 4 In the next three sections I draw on work previously published, but now rethought in light of new scholarship and the theme of this volume focused on Tully’s work (see Ivison 1998, 1999, 2008). 5 See Curley, Leviathan, p. 225. 6 For a broader discussion of the history of self-interest, see Holmes (1995).

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7 For a brilliant exploration of this theme, see Brett (2003). 8 See also and especially “The Subject and Power” (1982). This is one of Foucault’s clearest and most comprehensive discussions of the relation between liberty and power. 9 But see Cécile Laborde (2008) for an attempt to extend freedom as nondomination in the direction of critical theory. 10 I am grateful to audiences in Montreal, Sydney, and Melbourne for valuable comments and questions about earlier versions of this chapter. Above all, I am deeply indebted to James Tully for his support, encouragement, and the example of his scholarship over many years.

r e f e re n ce s Brett, Annabel. 2003. Liberty, Right and Nature. Cambridge: Cambridge University Press, 2003. Carter, Ian. 1999. A Measure of Freedom. Oxford: Oxford University Press. Forst, Rainer. 2014a. Justification and Critique. Cambridge: Polity Press. – ed. 2014b. Justice, Democracy and the Right to Justification: Rainer Forst in Dialogue. London: Bloomsbury. Foucault, Michel, 1982. “The Subject and Power.” Critical Inquiry 8 (4): 777–95. – 1984. “Space, Knowledge, Power.” In The Foucault Reader, edited by Paul Rabinow. New York: Vintage. – 2003. Society Must be Defended: Lectures at the College de France 1975–6. Translated by David Macey. New York: Picador. – 2008. The Birth of Biopolitics: Lectures at the College de France 1978–9. Translated by Graham Burchell. Basingstoke: Palgrave. Geuss, Raymond. 2008. Philosophy and Real Politics. Princeton: Princeton University Press. Hobbes, Thomas. 1983. De Cive. Oxford: Clarendon Press. – 1990 [1688]. Behemoth, or the Long Parliament, edited by Ferdinand Tonnies and Stephen Holmes. Chicago: University of Chicago Press. – 1994. Leviathan, edited by Edwin Curley. Indianapolis: Hackett. Holmes, Stephen. 1995. Passions and Constraint: On the Theory of Liberal Democracy. Chicago: University of Chicago Press. Honig, Bonnie. 2013. Antigone, Interrupted. Cambridge: Cambridge University Press. Ivison, Duncan. 1998. “The Disciplinary Moment: Foucault, Law and the Reinscription of Rights.” In The Later Foucault, edited by Jeremy Moss, 129–48. London: Sage.

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– 1999. “Pluralism and the Hobbesian Logic of Negative Constitutionalism.” Political Studies 47 (1): 83–99. – 2002. Postcolonial Liberalism. Cambridge: Cambridge University Press. – 2008. “Foucault’s Hobbes and the Concept of Liberty.” Arts: The Proceedings of the Sydney University Arts Association 30: 9–33. Laborde, Cécile. 2008. Critical Republicanism: The Hijab Controversy and Political Philosophy. Oxford: Oxford University Press. List, Christian, and Laura Valentini. 2016. “Freedom as Independence.” Ethics 126 (4): 1043–74. Murphy, Anna V. “Corporeal Vulnerability and the New Humanism.” Hypatia 26 (3): 575–90. O’Neill, Onora. 1996. Towards Justice and Virtue: A Constructive Account of Practical Reasoning. Cambridge: Cambridge University Press. Pettit, Philip. 1997. Republicanism: A Theory of Freedom and Government. Oxford: Oxford University Press. – 2008. Made with Words: Hobbes on Language, Mind and Politics. Princeton: Princeton University Press. – 2012. On the People’s Terms: A Republican Theory and Model of Democracy. Cambridge: Cambridge University Press. Rawls, John. 2001. Justice as Fairness: A Restatement, ed. Erin Kelly. Cambridge, Mass.: Harvard University Press. Rousseau, Jean-Jacques. 2004. The Social Contract. Translated by Maurice Cranston. London: Penguin. Scheffler, Samuel. 1994. Human Morality. Oxford: Oxford University Press. Skinner, Quentin. 2008. Hobbes and Republican Liberty. Cambridge: Cambridge University Press. Spinner Halev, Jeff. 2012. Enduring Injustices. Cambridge: Cambridge University Press. Taylor, Charles. 1989. Sources of the Self: The Making of Modern Identity. Cambridge, Mass.: Harvard University Press. Tully, James. 2008. Public Philosophy in a New Key. Volume I. Cambridge: Cambridge University Press. – 2014. “On Global Citizenship.” In On Global Citizenship: James Tully in Dialogue, edited by James Tully, 3–100. London: Bloomsbury. Williams, Bernard. 2005. In the Beginning Was the Deed. Princeton: Princeton University Press.

part six

Reply

19 Reciprocal Elucidation James Tully

i nt ro du cti on I would like to thank Dimitri Karmis and Jocelyn Maclure, the two editors, and all the participants for their contributions to this outstanding collection of essays in, on, and of public philosophy in a wide range of keys. I am honoured that my attempts at public philosophy in a new key have provided an impetus to the participants, who have gone well beyond what I have managed to achieve. Their contributions extend the general approach of public philosophy in a plenitude of fascinating ways. It would take a long period of reflection and rumination, and then an entire volume, to respond in kind to the richness of these chapters, individually and in concert. I will do this in the years to come as I slowly integrate their insights into my future work. And I am sure the readers of this volume will do the same in relation to their own thinking and writing. I am most grateful for this gift. For me, this kind of dialogue of reciprocal elucidation, in teaching, conversing, and writing, is the heart and soul of public philosophy. This volume is not the beginning of a dialogue, but the continuation of a dialogue of mutual learning among former students and colleagues that has been going on since the early years at McGill University, as Michael Temelini and Simone Chambers mention, and as all can attest. I try to reply to each chapter in the spirit of public philosophy, as I understand it. One defining feature is that the ways of knowing the world of politics are perspectival. As Aeschylus presented this democratic view in the Eumenides of the Oresteia Trilogy, a judge or ruler

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(or theorist) cannot make a just judgment concerning democracy because their judgment will always be partial, from their situated point of view. The response to this human condition is for Athena to give the responsibility of careful or compassionate political judgment to the demos as participatory democratic jurors and citizens. The judgments of each will be situated generalizations from a few cases with which they are familiar. However, if they discuss, compare, contrast, and negotiate each other’s limited views with mutual care, they will be able to come to agree on relatively just decisions that are, consequently, democratic, yet always open to challenge and review in the future (Tully 2016d, 68). As Aristotle wrote, a political judgment is practical, not theoretical. It holds “for the most part” – for a range of cases and for aspects of them. This insight lies at the foundation of the Western democratic legal and political systems in Athens, even though elite theories and institutions of judgment and rule often override it. A dialogue of public philosophy seeks to embody this democratic ideal (see Temelini’s chapter 3). Participants take comments by fellow citizens on their views, such as the chapters in this volume, as attempts to point out diverse aspects of the issue that each other’s perspectives overlook, to show by comparison and contrast the limits of each other’s views, and, thereby, enable them to go beyond these limits. Of course, some comments are directed at mistakes and disagreements. Yet, many are of this limit awareness and overcoming kind, once we abandon the antidemocratic supposition that there must be one universal view, theory, or tradition, as many have argued more recently than Aeschylus. Hence, we need the agonistic exchange of views of others to become enlightened. Political argumentation at its best is a gift-gratitude-reciprocity practice (Tully 2016d). I look on this collection as such a dialogue of reciprocal elucidation. I thank the participants for pointing out mistakes and disagreements. I appreciate even more the ways they show the limitations of my formulations, how I might become more diversity aware, and thus a better-attuned fellow citizen. I hope my replies are in the same spirit. They vary in length. Where the author develops public philosophy in their own creative way, and I agree with and learn from them, my reply is relatively short. Where the author raises a question concerning my work my reply is longer.

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pa rt on e: p ol it ic al theory as a cr it ic al acti vi ty 1 Jocelyn Maclure and Daniel Weinstock: Two Conceptions of Public Philosophy As Jocelyn Maclure and Daniel Weinstock mention, we have been engaged in this dialogue over different approaches to political theory and philosophy for many years. I have learned as much, if not more, from them than they have from me. In particular, they have shown me a way of interpreting the approach of John Rawls that brings it into the family of approaches that can be called public philosophy. Moreover, they show that it shares a number of similarities with my own particular type of public philosophy. These are contextual and fallible reflective equilibrium, nonideal theory and degrees of abstraction, the turn to immanent critiques of institutions, and the rational reconstruction of existing social practice. Maclure and Weinstock show that each of these is similar to corresponding features of my approach. Accordingly, they conclude “that political philosophy is moving in precisely the direction that Tully recommended, even as it focuses on practices different from those to which Tully has himself concentrated his attention.” I agree with this analysis and I am pleased that Maclure, Weinstock, and other political philosophers are moving in this direction. I think it is right to say that we first came to see this movement in the 1990s when Anthony Laden, a graduate student of Rawls, came to McGill University and began to develop a Rawlsian approach that includes the features they mention. His creative approach resonated with and cross-fertilized the approaches Charles Taylor and I were working on at the time (Laden 2012). I have acknowledged these similarities in my work (Tully 2008a, chap. 9; 2008b, chap. 4). However, many important dissimilarities remain. And, often similarities hide important differences. For example, in the practice of reflective equilibrium I take the first step to be one of reflective disequilibrium; calling each other’s background comprehensive doctrines into the space of questions through dialogue. The fact that approaches overlap in these and other ways is a central insight of the public philosophy family broadly conceived. Democratic theories are not mutually exclusive, incommensurable, or one right and all others wrong. As Meletus tried to explain to

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Socrates in the Apology, there is no such thing as democratic knowing over the demos, and thus no ruling over either. It is not like horse training. Rather, democracy rests on knowing with and ruling with; on taking each other’s limited knowledge into account in dialogue. It is this insight that validates and enables the dialogue of this volume and the endless struggle against the impulse to dominate, in its countless guises, in the world we inhabit as citizens. 2 Cressida Heyes: Practising Feminist Philosophy Cressida Heyes is a feminist public philosopher in a new key par excellence. She has edited the invaluable four-volume collection of the best essays in the historical formation of feminist philosophy as an outstanding academic discipline and field within philosophy, Critical Concepts: Philosophy and Gender. Moreover, her groundbreaking scholarship in Line Drawings: Defining Women through Feminist Practice (2000), Self-Transformations: Foucault, Ethics and Normalized Bodies (2007), and her recent phenomenological work on “sleep as the new sex” is a major contribution to this field and it has been immensely helpful to me in my own work. This body of scholarship should put to rest any residual reasonable doubt people may have as to the status of feminist philosophy. Yet, as Heyes points out in her chapter, feminist philosophy continues to be discriminated against in some departments. I agree with her in seeing the discrimination against feminist philosophy as a kind of resentment of “the plurality of the human condition.” And, even more unconscionable, female professors and students are sometimes subject to sexual harassment and sexual predation. Rather than quietly putting up with these injustices, she has the courage to speak, write, and act against them and demand change. For me, this is the primary and most demanding sense of civic freedom. It is the courage to speak truthfully to the powers that be about the injustices in practices of governance you co-inhabit, and with the aim of transforming them into just relationships. As we all know, this courage of truthfulness is at the foundation of Western philosophy in the life and practice of Socrates (parrhesia) (Foucault 2001). In practising it in academic philosophy today she is bringing the Socratic practice of philosophy to bear on institutionalized philosophy in order to expose and correct its injustices. This is why she is also a public philosopher par excellence in an ancient key.

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3 Michael Temelini: On Critical Dialogical Research and Pedagogy I read with great interest and admiration Michael Temelini’s eloquent call for a dialogical approach to the study and teaching of political science today. While he draws on Wittgenstein, Taylor, and my work, he also shows that this form of education has its origins in the civic humanist curriculum of the Italian Renaissance, centred on the cultivation of civic liberty, as well as in the larger rhetorical tradition, as Quentin Skinner has shown. So, it is really the renewal of a form of education that was elbowed aside by the more monological traditions of the modern period. He argues that dialogical education requires courage, humility, and patience, and, above all, it requires apprenticeship in acquiring the skills of listening and speaking well, of critical comparison and contrast, and of willingness to see and appreciate the views of others. His proposal resonates with other contributors, especially David Owen. It seems to me that we simply cannot prepare our students adequately for mutually supportive engagement in today’s deeply diverse, unequal, violent, and unsustainable societies unless we provide them with the kind of education he recommends. The only friendly amendment I would make is to his claim that I reject all the elitist monological assumptions and methods he lists in the section on “Theorists, Courts, and Policy-makers.” I do not “reject” them out of hand. I am sure Temelini did not mean to suggest this, but I would like to clarify so there is no misunderstanding. I argue in my methodological writings that these four approaches are not as general or universal as they are presented as being. They often hold for a very limited number of cases or from one perspective or another. They are often particulars masquerading as universals. Once they are provincialized, seen in this more specific light, and presented as proposals with fellow citizens for comparative discussion, rather than as prescriptions, then they can play an important role in the study of politics. I think this is also similar to what Temelini argues in his excellent book, Wittgenstein and the Study of Politics. The critical comparison of the histories, uses, and strengths and weaknesses of these approaches also would be an important part of his dialogical political science curriculum. In fact, this is how Charles Taylor, Sam Noumoff, John Shingler, and I team taught political theory at McGill, as Temelini generously acknowledges and for which I am most grateful.

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part t wo : c r is es o f de mo cracy, ci vi c freedom, a n d d em oc rati c s truggles 4 Charles Taylor: Nonelite Democracy: Telic or Autotelic? Taylor’s historical and critical analysis of two Western traditions of democracy – elite representative and nonelite telic – is a characteristically brilliant example of his whole approach to the study of politics. It draws on his experience as a participant in Canadian politics and his vast knowledge of the history of democracy in theory and practice. Moreover, it adds a new dimension to his influential publications on democracy that began many years ago with The Pattern of Politics. In several respects, his distinction between two traditions of democracy – elite representative and nonelite telic – overlaps with my distinction between the civil and civic traditions of representative and participatory democracy. I would like to draw on my work to supplement what he says about the nonelite telic tradition. Taylor argues that one of the problems of the dominant elite forms of representative democracy, which are almost all oligarchies or plutocracies, is that their defenders present them as the highest stage and realization of democracy tout court. Thus, under this modernist narrative of “realized democracy” reasonable criticism and reform is reduced to minor improvements of the quasi-Schumpterian model by periodically replacing one elite with another by means of elections. The value of the nonelite telic tradition, in contrast, is that it criticizes the elite character of actual existing democracies and keeps open the possibility of nonelite democracy by means of the “transformation” of elite democracies. It does this by presenting the telos of democracy as the “rule by the ‘people’ in the global sense.” By this, Taylor means that the nonelite people themselves understand themselves as capable of and oriented towards forming “collective agencies” and exercising “citizen efficacy as equals.” But even when we recover this alternative democratic imaginary we run up against another problem in the present. For the last 150 years, one major understanding of the nonelite telic tradition was that the pathway to the transformation of elite democracies was through social mobilization of various kinds, electoral victories, and the exercise of the powers of representative government to bring about transformation. Yet, more recently, partly under the

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proliferation of diverse types of political struggles and dissensus, the imaginary of citizen efficacy has tended to shift from social mobilization oriented to gaining political power to more particular, diverse, and targeted practices of citizen efficacy; such as defending rights at court, single-issue lobbies, Occupy Wall Street, social media organized protests, non-governmental organizations (ngo s), and so on. The more these practices of citizen efficacy increase the less the citizens involved seem to vote or mobilize voters. This shift has occurred for a number of reasons and coincided with grotesque economic inequality and income disparity in contemporary societies; thereby giving rise to a series of vicious cycles. From the perspective of nonelite telic democracy, the result is “the sense of equal citizenship, which is partly a matter of selfunderstanding, fades as the experience of acting together, or even being in other’s presence becomes rarer.” A sense of “powerlessness” increases among the nonelite. In response, Taylor argues “we have to mobilize around the value of equal citizenship” in the sense of equal partners in a shared project. He does not suggest what this new kind of mobilization might be, but he argues that we have to discover or create it if we are to respond to the crises of democracy democratically. I would like to respond to this fine analysis by adding a few elements I have learned from studying traditions and practices of civic citizenship. This will also answer some questions raised in other chapters. I am sure it will sound to many readers like the discussions we had in our team-taught courses. First, I think we need to give a fuller account of one reason for the vicious cycles, democratic regression, and sense of powerlessness that Taylor mentions only briefly. This is the long historical rise of transnational corporations (including financial institutions and military-industrial complexes), from the creation of consolidating mercantile states in the early modern period to “shadow sovereigns” that now exercise continuous and often decisive modes of influence and power with or over once sovereign nation-states, institutions of global governance, international law, and the popular sovereignty of the peoples of the planet. This transformation has given rise to neoliberal, technocratic elite rule within states and the European Union, in the institutions of global governance and international law through trade agreements; and through the spread of neoliberal elite rule in the Global South through investment, loans,

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indebtedness, and military intervention. This has led to austerity programs, deregulation, the loss of millions of jobs through computerization and the outsourcing of remaining jobs to low-wage and low-regulation countries, and a global extractive race for what’s left of nonrenewable and renewable resources. The elite and nonelite of the world have become dependent subjects, not only of austerity programs, but also of these new leviathans in many aspects of their lives: their food sources, jobs, transportation, leisure activities, healthcare, housing, media information, de-unionization, and so on. Even when non-elites are able to mobilize successfully in the traditional way against these enormous odds, gain political power, and legislate against austerity and deregulation (which is rare), they can be taken to international courts by transnational corporations (tnc s) for violating the international trade agreements and lex mercatoria through which neoliberal elite governments have transferred governmental powers over their own economies and ecosystems to tnc s, institutions of global governance, and international courts. As scholars from all perspectives have argued, this is a revolutionary transformation of power in the modern world. It is no wonder therefore that nonelite, telic democrats have been experimenting with alternative practices of citizen efficacy to the older electoral mobilization model (Tully et al. 2016). There is also another factor driving this vicious cycle that should be mentioned. When citizens who do not benefit from neoliberal austerity policies and free-trade globalization (the non-elites) and feel powerless and alienated from the exercise of their powers of democratic self-government, neoliberal elites tell them to be patient. The benefits of austerity will trickle down, and they are not educated enough to understand the processes of development and democratization that are being realized through these policies, as Taylor mentions. In response, a competing form of elite rule on the Right claims to understand the discontent of the nonelite and to have the solution to it. These elite parties oppose some of the neoliberal policies in the name of a political imaginary of ultranational sovereignty and autocracy – of bringing jobs and control back. However, they do so under a deeply divisive and aggressive scapegoat social imaginary that blames the political and economic problems on corrupt elites, immigrants, minorities, women, foreign countries, and so on (alt-right politics). And, their policies to bring back jobs consist of further tax breaks, deregulation, and trickle-down economics. The

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increasingly vicious cycles of elections and counterelections by these competing elites (neoliberal globalizers and protectionist-populist nationalists) over control of neo-Schumpeterian states tend to displace and marginalize the grass roots and electoral mobilization of nonelite democrats from mainstream media. These trends were evident in the 2016 election in the United States. Similar trends are evident in the United Kingdom, Europe, Japan, India, and the Global South. Moreover, the combination of these trends tends to generate apathy and the stressful sense that there are just too many other things to do. Notwithstanding these regressive trends, Bernie Sanders in the United States and the 15 m movement in Spain demonstrate the grassroots strength of nonelite democracy (Sanders 2016; Ouziel 2015). I want to examine what civic citizens are doing, for they are members of Taylor’s nonelite democratic tradition broadly conceived. First, it is important to realize that citizens involved in the new specific practices of civic efficacy that Taylor mentions often join hands with citizens and unions involved in traditional electoral mobilization. While these alliances of citizen efficacy across differences do not always hold together, there have been efficacious local, national, and global networks between them on issues around jobs, the environment, pipelines, food sovereignty, rights of Indigenous peoples, minorities, women’s rights, anti-austerity, reclaiming the commons, and so on. However, there is another, nonelite, “telic democracy” pathway of transformation of the elite status quo that Taylor mentions only briefly. This is the civic traditions of direct or participatory democracy around the world. From the participatory perspective, democratic citizen efficacy begins by “being democratic” in the practices of everyday life; that is, in exercising democratic powers of self-organizing, reasoning with each other across differences, exercising powers of self-government with each other as equals (power-with), and resolving conflicts nonviolently. This is the primary sense of democracy. A democratic people (demos) organize, bring into being, exercise and carry on powers of self-government (kratos) with each other. Reciprocally, a “democratic people” (demos) comes into being through participation in the intersubjective relationships of having a say and hand (kratos) with each other in such practices of direct democracy. Without this way of being with each other, a people is not a demos but an aggregate, multitude, or population. Democracy is thus not a form of rule (arche)

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of any kind. If it were it would be called demoarchy, as with others forms of ruler-ruled systems of government. All are equal and thus exercise power-with, not power-over. Hence it is also not majority or mob rule (ochlocracy). It is a unique form of self-government in which the people exercise power together prior to and underlying any democratically legitimate delegated and accountable form of representation, as Protagoras, Pericles, and Meletus explain. It is the living experience of citizen equality and efficacy: nonelite telic democracy actualized (Arendt 2005; Ober 2008). Taylor mentions that the modern identification of “democracy” with the exercise of power by elected representative governments over the governed (electorate) in modern, centralized states, and the simultaneous discrediting and displacing of participatory democracy, occurred in Europe and North America between 1780 and 1860. On this representative view, a (representative) democratic people come into being by subjecting themselves as individuals to rule by representative government through public discussion and elections within modern constitutional states and their processes of democratization (the Schumpeter model). The multitude becomes a people by giving up their democratic powers of self-government to their representative governments, who exercise them and delegate some subordinate and disaggregated powers back to local governments, public spheres, parties, and voters. This “grafting of representation onto democracy” (as Thomas Paine called it) simultaneously solves the size problem and usurps the “dangerous and unruly” powers of nonelite, local democracy. It is the transformation of the primary sense of democracy and a democratic people into a representative form of rule over a nondemocratic people. Whereas, in participatory democracies it is the other way round. The demoi conditionally delegate specific powers to accountable delegates (representatives) who exercise them in federal councils of various kinds and keep in dialogue with their trustees (or the trust is broken). Both Marx and Kropotkin noted the usurpation and conceptual sleight of hand. Kropotkin gave up using the term “democracy” because, by 1850, it was presumed to refer to representative government, and started using “anarchy” (no ruler), “self-government” and “mutual aid” instead (Dupuis-Déri 2013). Throughout the twentieth century, elected representatives in the Schumpeterian model have become increasingly hostage to the wealthy and powerful. And, as we have seen above, we are now

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undergoing a second transformation as representative governments in turn give up significant powers of self-government over economy and ecology to unelected tnc s and institutions of global government under international laws and courts, beyond the reach of the people and their representatives. Notwithstanding these two elite, antidemocratic trends, over eight hundred million people worldwide daily reappropriate powers of self-government and engage in participatory democracy and citizen efficacy in their various communities of practice. These range from daycares, classrooms, local cooperatives, to workplaces, governing the commons, and global fair trade networks. Yet, they all begin in the informal, gift-reciprocity social relationships of interdependency and mutual aid that sustain all communities of practice (even the aggressive, competitive, coercive, and hierarchical formal systems of power are parasitic on them). Several of the traditional organizations of electoral mobilization were grounded in nonhierarchical communities of direct democracy and many of the new, specialized practices of citizen efficacy are today (Tully 2014a, 84–100). Perhaps the most influential exemplar over the last one hundred years is the Gandhian tradition of nonviolent participatory selfgovernment (swaraj) and economic self-organization (swadeshi), beginning in ethical relations to oneself, interpersonal relations, ashrams, villages, and bioregions. Apprenticeship in citizen efficacy, equality, and power-with in these grassroots communities of practice provides the basis for two other types of citizen practice. These are specific nonviolent practices, campaigns of efficacious contestation, and transformation of unjust forms of rule; and joining hands with democratic citizens who are mobilizing for or working within representative governments and institutions of global governance to make them more democratic, as Gandhi did with the Congress Party (Dalton 1999, 2012). Given our situation today, two of the most important types of reappropriating democratic practices of self-government are in everyday relationships of mutual aid and in economic relations, by means of cooperatives, governing water and land commons, and cyclical economics (“occupy the economy”) (Wolff 2012). These broad and diverse types of democratic practices are means and pathways of transforming elite democracies into nonelite democracies. They are often called “democratizing democracy” and “globalization from below,” but they are really “democracy here and now.” The chapters

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in this volume provide a multiplicity of examples. As Gandhi would say, the only way to nonelite representative democracy is by means of nonelite democracy – by being the transformation. The fundamental difference between these participatory democratic practices and all others is that the others presuppose that democracy can be brought about in some future to come by nondemocratic means: austerity programs, economic globalization and chauvinistic antiglobalization, hierarchical organizations and forms of mobilization, authoritarian leaders, autocracy, military intervention, violent revolution, and so on. But democracy never comes because the means become the ends. Modern participatory democratic traditions, in all their variety, are based on the realization that means are strongly constitutive of ends, and thus that democracy has to be brought about by democratic means. There is no way to democracy. Democracy is the way. Nonelite democracy has to be not only telic, but autotelic. From this perspective, the problem of the twenty-first century is not the lack of a big new mode of nonelite democratic mobilization and transformation. Rather, it is the lack of local and global cooperation and coordination of the diverse types of nonelite, autotelic democratic practices of citizen efficacy and equality by means of extending – step by step – the everyday practices of informal democratic relationships they bring into being and carry on with all affected. This local and global (glocal) network of networks of cooperation and coordination might be seen as an emerging democratic world federalism along the lines Stephen Tierney explores in his chapter. And here I believe that theorists can learn from what is already going on in practice, as the contributors to this volume are doing, and as Taylor taught all of us. 5 Robin Celikates: Two Traditions of Nonviolence Robin Celikates mentions that we have been discussing civil disobedience for several years. I have learned an enormous amount from him. In this new work he gives us a first person description of the central features of the global cycle of protests from the Arab Spring to the Gezi uprising. His aim is to argue that these protests should be seen as legitimate examples of civil disobedience, in his extended sense, rather than as illegitimate when conceptualized under the restricted sense of civil disobedience in liberal legal and political

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theory and policy. The features he finds in these protests and argues should be included within “civil disobedience” are the following: three types of violence, collective political mobilization rather than only individual acts, the creative ways of engaging in civil disobedience, and the democratic or proto-democratic ways of organizing. This is a classic example of public philosophy in a democratic key. He learns from practice and presents arguments for a major conceptual change that would render legitimate and legal a wide variety of actions that are either excluded from or described as illegal and illegitimate within the dominant usage of “civil disobedience.” If successful, this conceptual change would make a huge difference in theory, law, and public discourse, and, as a result, for people engaged in these practices of extended civil disobedience. I hope the civil theorists he criticizes take his arguments seriously and respond. The question Celikates poses is: how do these features and his arguments for their inclusion within civil disobedience appear from the perspective of practices of civic freedom? In particular, how do they appear in relation to nonviolence, which, I argue, has become an increasingly important criterion of practices of civic freedom since Gandhi? I think there are two answers, corresponding to two traditions of practice and reflection on practice that both claim to be nonviolent, yet in different ways. Rather than expanding the concept of civil disobedience to include the activities Celikates describes, the activists and researchers of both traditions use “civil disobedience” to describe specific (individual and collective) practices of disobeying the law in order to address an injustice by civil (nonviolent) means. They then locate civil disobedience practices in a much larger field that they call the “politics of nonviolence” and which includes all the activities Celikates mentions. It is under this broader mode of disclosure that they debate the senses, references, and applications of violence and nonviolence, democratic and nondemocratic forms of organization, principles and pragmatism, and so on, rather than under the juridical and state-centred concept of civil disobedience. That is, they are self-reflective traditions in practice and theory. The first nonviolent tradition is often called pragmatic or strategic nonviolence, civil resistance, or unarmed resistance. Their practices are nonviolent in not employing a range of violent means. Arms are the primary, but not the only, violent means they refuse to use. Apart from this difference in means, they see their campaigns and contests

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as much the same kind of tactical and strategic game as do their armed opponents. Nonviolence is “war without violence.” They judge their unarmed means by their effectiveness in defeating their opponents and exercising power over them, whether the campaign is to change a law or a regime. This is achieved by undermining the opponents’ bases of social support (consent of the governed), leading to compromise, surrender, or regime dissolution. The opponents may convert to their view, but this is rare and unnecessary. The campaign is political, not moral. The practitioners may treat their opponents as enemies and express animosity, ill will, hatred, distrust, and incivility. They employ unarmed means because it is believed to be more effective than arms in the strategic situation in which they find themselves, or in most situations in general. The unarmed tradition is probably the closer of the two to the global cycle of protests as Celikates describes them. However, it is noteworthy that the leading theorist of unarmed resistance, Gene Sharp, draws the line at violence in self-defence and against property, including sabotage, because these tactics tend to undermine the support they need from fellow citizens or global communities. This is why their opponents hire agents provocateurs to initiate violent acts. Others argue that low-level violence such as stone throwing or damaging walls and barricades erected against them to highlight the David and Goliath inequality in power between them and an armed state are effective in gaining support, as does Celikates. Others argue that it is a contextual question. The other features Celikates mentions are shared by this tradition. However, whether the forms of organization are or should be bottom-up and democratic, as he suggests, or top-down and command obedience, is a permanent debate in this tradition (Sharp 2010; Chenoweth and Stephan 2011; Carpenter 2017). The second tradition is called moral or principled nonviolence, Gandhian or Gandhi-King-Chavez-Thich Nhat Hanh nonviolence, or Satyagraha (as Gandhi called it). Practices of civil disobedience are seen as one branch of the large Banyan tree of nonviolent practices (Gandhi 1961). The members of this tradition reject all forms of violence and strategic games based on the war model. They enact another type of game altogether, based on the transformative power of nonviolence. They bring into being and dramatize a countermodernity of nonviolent cooperation, agonistic contestation, and transformative conflict resolution and reconciliation

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oriented to replacing war and violence with nonviolent contestation, conflict resolution, and cooperation (Gregg 2018; Tully 2014a, 238–48, 2016a). The first of three main components is a nonviolent ethics or ethos of nonviolent relations of the self with self, with all human beings, violent or nonviolent, and with all other forms of life. Gandhi called these nonviolent, “being-with” practices the ground of Satyagraha. They consist in detaching oneself from vicious relationships and connecting with, holding on to, and being moved by truth (satya) and the ground of our being (sat): interdependent relationships of mutual care (also called ahimsa, compassion, mutual aid, love [agape], biophilia). This nonviolent power-with or “soul-power” is said to be the spirit or animacy that cosustains all interdependent forms of life. Humans act in accord with it by enacting the nonviolent democratic virtues in everything they say and do: truthfulness, trustworthiness, openness, goodwill, willingness to listen to the other side and always being open to settling differences by moving to nonviolent negotiations, and always treating other humans, even the most violent, in ways that respect their dignity as fellow human beings, never as instruments to be manipulated by either force or lies and deception. They attack unjust activities or systems, not the persons caught up in enacting them (King 1986, 18). On this view, the anger, ill will, hatred, animosity, enmity, and counteraggressiveness of many unarmed resisters to violent and unjust opponents are themselves violent counteractions that destroy further, rather than repair, the already damaged relationships of humanity between them. They thus generate escalating vicious cycles of further aggression and counteraggression, victory and defeat, power over the defeated, domination, resentment, and new rounds of insurgency and counterinsurgency. To break out of these vicious cycles practitioners of civil disobedience need to engage in the difficult ethical practice of freedom of detaching themselves from this vicious reaction, beginning to practise the nonviolent virtues. Yet, this attitudinal violence is not seen as violence by the unarmed tradition. This is how Gandhi put it: “The word ‘satyagraha’ is often most loosely used and is made to cover veiled violence. But as the author of the word I may be allowed to say that it excludes every form of violence, direct or indirect, and whether in thought, word or deed. It is a breach of Satyagraha to wish ill to an opponent or to say a harsh word to him or of him with the intention of doing

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harm. And often the evil thought or the evil word may, in terms of Satyagraha, be more dangerous than actual violence used in the heat of the moment. Satyagraha is gentle, it never wounds. It must not be the result of anger or malice. It was conceived as a complete substitute for violence” (Dalton 1999, 28). Accordingly, the first step of nonviolence is to reflect on the violent vices in one’s own attitude; work to detach oneself from their habitual, dispositional force; and to begin to practise the nonviolent democratic virtues instead. This is the first nonviolent ethical practice of the self. It is the ground of nonviolent civic freedom as an ethical mode of freedom. Foucault made the general point in a way that has helped me to see the fundamental role of ethics in practices of civic freedom (Foucault 1997, 284): Q. You say that freedom must be exercised ethically… M.F. Yes, for what is ethics, if not the practice of freedom, the conscious [réfléchie] practice of freedom? Q. In other words, you understand freedom as a reality that is already ethical in itself? M.F. Freedom is the ontological condition of ethics. But ethics is the considered form that freedom takes when it is informed by reflection. The second component of the second tradition is the development of communities of practice or “constructive programs” (ashrams, community-based organizations, cooperatives, self-reliant villages, and federations). These are communities of educational, social, economic, technological, governmental, and ecological practice in which practitioners learn how to cooperate, contest, and resolve conflicts democratically and nonviolently on a day-to-day basis. They are communities, such as ashrams, villages, and global networks, Gandhi referred to as self-governing (swaraj) and economically self-reliant (swadeshi) (see my reply to Taylor above in section 4). These communities are experiments and exemplars of the nonviolent countermodernity that the practitioners are fighting for in their campaigns and which all can see. In addition, they provide the training necessary for entering into nonviolent contestation with violent and unjust opponents in practices of civil disobedience, noncooperation and other types of nonviolent agonistics. Without them, more or less spontaneous uprisings of nonviolent resistance are easily

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divided and defeated. These intergenerational communities are seen as more important than the nonviolent campaigns in the long run, since they are the “other world” for which they are fighting (Gandhi 1961, v–vi; Tully 2016b). The third and final component is a unique form of transformative nonviolent agonistics with violent and unjust opponents. It is called “moral jiu-jitsu.” In contrast to the unarmed tradition, the aim is not the voluntary submission of one side, struggle and victory of one side over another, or a compromise. All these are seen as unsatisfactory and productive of further trouble. Rather, the aim is to show the violent opponent and onlookers the superiority of another, virtuous way of resolving conflicts (nonviolently and democratically) in interaction, and so gradually moving them around, by persuasion, to entering into nonviolent negotiations in which the opponent is guaranteed an equal say and hand in the resolution. The practitioners use many of the same techniques as the unarmed resistance tradition, yet always in ethical ways. In their boycotts, campaigns, noncooperation, strikes and so on, the practitioners show their resolve, trustworthiness, respect, willingness to listen and learn from their opponents, courage, and self-sacrifice until the opponents realize that it is worthwhile (and harmless) to enter into democratic negotiations. All parties can then work towards a resolution that enables them to combine their energies and cooperate together in the future in mutually agreeable ways. This is the transformative power of nonviolence (Gregg 2018, 49–72; Tully 2016a). This nonviolent transformation of an opponent engaged in violence into a willing partner in nonviolent dispute resolution takes time, given the habituation to violent means of dispute resolution, and Satyagrahis suffer physical violence, imprisonment, and death. But, it happens intergenerationally and it is necessary for two reasons. The first is the internal relation between means and ends: peaceful and democratic resolution and reconciliation require peaceful and democratic means. They are autotelic. The second reason is the perspectival character of human knowing. In armed and unarmed struggles, all sides think they are on the side of justice and the others are unjust. So, they are oriented to seizing power over and imposing their justice on others. In the Gandhi-King tradition, the practitioners realize that their view is partial and thus that they need to enter into negotiations of reciprocal learning with their opponents, with their partial views, in order to gain an enlarged

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and even-handed view of the complex situation they are trying to address. Knowing is “knowing with,” especially in conditions of diversity (Tully forthcoming). The Satyagraha tradition does not deny that multiple forms of violence break out in even the best-prepared campaigns. Humans are fallible and a nonviolent ethos is always a work in progress (Thich Nhat Hahn 2005). When this happens, Satyagrahis realize the mistake and the danger of escalation, often decide to call off the campaign, reflect on how violence came about by retracing their steps, and prepare better for the next campaign. Calling off the campaign has a positive effect on the onlookers and the violent opponents, showing once again the goodwill and integrity of the protestors. Each campaign is thus taken as an “experiment in truth.” It is a new (and growing), experimental, reflective social science in the arts of nonviolent ethics, self-government, and strategies of nonviolent regime change. Like public philosophy, it is practice based. Let us turn to Celikates’s features and examine them briefly in light of the Satyagraha tradition. Its members would probably reject the examples of violence he gives as escalating aggressive and counteraggressive cycles of interaction. More fundamentally, they would point to a realm of violent attitudes that need to be addressed by ethical practices of the self. The Satyagrahis would be interested in the democratic character of the forms of organization of the protestors. They would want to know in what sense the organizations are democratic. Are the practitioners trained in democratic ethics? Do they try to carry their democratic practices into their mode of interaction with their opponents? These are ethical questions but they are also core pragmatic questions, given the relation between means and ends and the perspectival nature of human knowledge. At first glance it may appear that these Gandhi-King-Chavez-Thich Nhat Hanh components are too long-term, indirect, and ethically demanding in an age of fast time, instrumental rationality, and Hobbesian power struggles. However, when relatively successful, longer-term nonviolent movements are examined carefully through participatory-research methods, the three components are shown to be more prevalent than one would expect from media reports, as Pablo Ouziel’s remarkable study of the Spanish 15 m movement illustrates (Ouziel 2015; see Hardimann 2003, Shiva 2005, Orosco 2008, Scalmer 2011, Engler & Engler 2016). We now have a century of over three hundred cases of nonviolent campaigns to learn

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from. If we are to learn more about the actual power of nonviolence in practice, and in civil disobedience in particular, then we need to bring together the practice and research of these two traditions with the important, cutting-edge research of Celikates. 6 Dominique Leydet: The Civil-Civic Distinction One of my fondest memories of McGill is of an undergraduate seminar in which Dominique Leydet gave a presentation on Foucault’s History of Sexuality. It was the best presentation of the seminar and set the tone for all that followed. Of course she has gone on to become an outstanding philosopher. Her chapter is indicative of her exceptional skills. I cannot thank her enough for her careful, critical analysis of two ways of thinking about citizenship in Public Philosophy. It gives me an opportunity to explain why I shifted from the first way, restrictive and extensive citizenship, to the second, civil and civic citizenship. I did not make this clear enough in volume II of Public Philosophy. Leydet believes that the concepts of restrictive and extensive citizenship are better because they bring to light the fluidity, interchange, and overlap between citizens who see themselves as participants within the institutions of modern, constitutional, representative democracy and citizens who see themselves as participants in whatever practices of governance they inhabit. Being able to see this “middle ground” between these two ways of being citizens is crucial because it enables practices of “joining hands” and working together, especially, but not only, in cases of protest and civil disobedience, such as the Quebec student spring. In contrast, she argues that the second way of describing the distinction – civil and civic citizenship – “hardens” and “amplifies” the difference between these two ways of citizenship. She concludes that it fails to “provide a basis” for joining hands. Note that she carefully does not say that the civil-civic language renders the two ways of citizenship “mutually exclusive.” We both reject this view. In section 2 she generously shows that the civil-civic language does illuminate features of citizenship that the restrictive-extensive language does not. Nevertheless, she recommends that readers should adopt the restrictive-extensive language of description of the field and reject the civil-civic language for the reason that it does not facilitate seeing connections and joining hands; at least not as well as the restrictive-extensive conceptual scheme.

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I am delighted that she finds the restrictive-extensive conceptual scheme helpful. However, I would like to explain why I made the transition to civil and civic citizenship in the course of volume II of Public Philosophy. There are two main reasons. First, to call the practices of citizenship I am studying “extensive” citizenship implies that they are extensions of restrictive practices in various ways, and my histories sometimes reinforced this implication. They are thereby “subsumed,” to use Leydet’s term, within the restrictive worldview; something we are both trying to avoid. This characterization is thus untrue to the self-understanding of the citizens engaged in these practices and their traditions of interpretation (their worldviews). They are not only practices that differ from the restrictive practices of modern representative citizenship. They are different in kind. Their practitioners understand them as a plenitude of different ways of “being citizens”: citizens of the living earth (Gaia citizenship), Indigenous ways of being citizens, cooperative citizens, fair trading citizens, participatory democratic citizens, nonviolent citizens, different practices of representation, contestation and conflict resolution, and so on. The primary sense of civic citizenship is democratic selfgovernment: reasoning and acting together. When these citizens enter into official practices of representative citizenship, they understand them and their histories differently than the restrictive traditions understand them. Many extensive practices are much older than modern, representative citizenship and share none of its basic assumptions about development, progress, the autonomy of law, the priority of rights to responsibilities, individualism, and so on (see Napoleon for example). Thus, to understand them, we need to free ourselves from the restrictive worldview and move around to see these practices of citizenship from the ways their practitioners see them; from the “change they are being.” This is what I mean by “another world is actual.” When we engage in this self-critical exercise, we begin to see that these practices are different from restrictive practices in some or all of the fifteen ways I mention in chapter 9 of Public Philosophy, volume II. The second reason is that the restrictive-extensive conceptual scheme does not give sufficient weight to a constitutive feature of modern representative citizenship. As Leydet notes, I took both restrictive and extensive to be basically “practices” of citizenship. Practices are basic to extensive citizenship traditions. Even

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institutions are understood as degrees of institutionalization of communities of practice (Tully 2014a, 322–7). In contrast, restrictive citizens understand their practices to be based in canonical institutions, statuses, processes of modernization, and legitimate means of change (including civil disobedience). From this perspective, extensive practices of citizenship are recognized, not as citizenship per se, but as practices that are related in some way to representative citizenship: civil society, opinions that need to be brought into the official public sphere, uncivil disobedience, and other ways of subsuming them. While restrictive theorists sometimes claim that the constitutional institutions and democratic participation are equally basic, democratic participation is always conceptualized as taking place within representative, institutions or processes. I try to show this in chapters 4 and 5 of Public Philosophy, volume II. It is called the juridical containment presupposition, or “constitutional democracy” rather than “democratic constitutionalism.” Consequently, I came to see that they are not two “practices” of citizenship, but, rather two “modes,” as Leydet notes; one which is institution based, or modular, and the other practice based. Then I discovered that the etymology of “civil” and “civic,” “liberty” and “freedom,” “representative” and “participatory,” “institutional” and “practice-based,” give expression to the complex histories of these two traditions of citizenship fairly accurately. Hence, the shift to civil and civic ways of being citizens. I would not say that these distinctions between civil and civic “harden” and “amplify” the differences between them. Rather, I suggest that they bring to light the actual existing hardness of the difference between them. It does this simply by describing them from their respective self-understandings, whereas the restrictive-extensive conceptualization describes them as if they are both practice based. This conceals the constitutive role of institutions, status, and processes in civil practices, whereas the civil-civic distinction reveals it. This explains why practices of civic citizenship are misrecognized from within the civil mode of disclosure of the field. It misrecognizes them: as civil practices, as not practices of citizenship at all, or as practices that need to be developed into representative forms through some process or another of modernization, transitional justice, and so on. Since civil is the dominant mode of citizenship in our time, it is exceptionally “hard” to see it as one mode of citizenship among others, to provincialize it, to recognize others in their own

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terms, and, from these perspectives, to see the limitations and injustices of this mode of citizenship, as Leydet notes. It has traditions of critique within its constitutive features, but not of its constitutive features, as the last couple of generations of scholars have shown from many different perspectives. Leydet’s example of Habermas’s idea of democratic critique illustrates this point nicely. Citizens are given a voice (not a hand in self-government), but only in public debate, among individual citizens, concerning individual rights that protect private autonomy, and these are to be sluiced into the lawmaking institutions. The whole background framework is firmly in place (Tully 2013). My point is that the “hardness” exists in our world of civil and civic citizenship. It is not the creation of my terminology. And, I think the reactions of many Quebec citizens and officials to the Quebec student spring, and the reactions of many student protestors, bears out and substantiates the account of the hardness I have tried to give (whereas the restrictive-extensive concept would have difficulty explaining the hardness of the reaction). This is what makes the project of joining hands so challenging but also so important. Joining hands consists in civil citizens working within the institutional practices of civil citizenship to bring about change, and in coordinating their activities (electoral mobilization, going to court, public sphere engagement, civil disobedience) with civic citizens engaged in practices of citizenship that enact the same change in practice in various civic ways. Leydet argues that the language of civil and civic renders this interchange and coordination impossible by creating an “unbridgeable dichotomy.” Her evidence is a quotation from a discussion I had with Christian Emden in the course of explaining joining hands in On Global Citizenship. I think she misunderstands the quotation. A brief explanation will help to explain the “hardness” of the category of civil citizenship. With the restrictive-extensive language I assumed that civil citizenship could be extended to other ways of being citizens metaphorically: that is, by passing over to other uses of the concept without being too closely tied to the canonical use of civil citizenship within the civil framework and its four types of rights. However, it became clear that this was not possible. Any extended use remains “subsumed” under the dominance of the criteria of the restricted use, as Leydet mentions in her opening. The hardness or rigidity of this designation-concept is not only the result of civil

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theorists defining civil participation, protest, and disobedience in the narrow way Celikates criticizes. It is held in place by powerful corporations and complicit governments using the full arsenal of legal devices available under the first tier of private rights of private corporations and individual persons to delegitimize less restricted forms of participation, consultation, protest, and civil disobedience in the courts and public opinion; and thus to call in police, agent provocateurs, strike breakers, buyouts, the military, and foreign intervention. Anyone who has engaged in protest anywhere on this planet knows how this policing of the rigid designation of civil citizenship works in practice every day. This is why I abandoned trying to extend the usage of civil (restrictive) citizenship and decided to use “civic.” Given its philological genealogy, it is not a rigid designator in theory or practice. It is a family-resemblance concept that is neither closed by a rigid frontier nor under the auspices of representative governments and states, but relatively open to the creative uses of the demoi. The participatory activities of civil and civic citizenships overlap in many ways and places in contemporary societies. These encounters and “interchanges” (as Leydet calls them) enable them to enter into each other’s mindsets and discuss ways of joining hands. For instance, this occurs when they both engage in activities and protests in or around the range of “civil disobedience.” When civil citizens do so they see that their fellow civic citizens are organizing, engaging, and contesting in these protests in a qualitatively different ethos of being a citizen. And they also see that this civic ethos is often grounded in an alternative world of participatory democratic practices of social and economic citizenship in their communities of practice that embody the very changes they are arguing for in the protests. Their civic partners see these practices of self-governance as primary (see my reply to Taylor above in section 4). Conversely, civic citizens see that civil citizens are working on the same problem but from within the representative institutions. These interchanges on the middle ground are important because both can experience, understand, and appreciate each other, and thus begin to work together on how to coordinate their two ways of being citizens: that is, joining hands. Indeed, those who have the time often move back-and-forth; sometimes being the change and other times going to court or joining a political party to influence legislation. The interchanges are the “bridge” over their differences, yet without subsumption.

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Without this bridging interchange experience of reciprocal elucidation there is the democracy-destroying danger of civic citizens perceiving civil citizens as “coopted and assimilated into the status-quo,” and civil citizens perceiving civic citizens as “self-marginalizing” or failing to struggle for the “real levers of power.” To use two well-known examples, there is a tendency from the civil perspective to see Martin Luther King Jr’s civic participation as simply civil disobedience to gain civil rights legislation. The whole nonviolent ethos of African Americans, Native Americans, Latino Americans, Asian Americans and White Americans organizing, working, and dreaming together to enact and bring about “full social, personal and political freedom in a manner consistent with human dignity [of each and every partner],” as King explained, disappears from view (King 2018). Yet, this profound America continues to grow and provide the ground of the protests that mainstream media focus on, as if they were isolated acts of civil disobedience. Closer to home, in December 2016, the Snuneymuxw First Nation is protesting the Trans Mountain pipeline expansion. This can easily be seen as an instrumental act of legal protest and occasional civil disobedience. However this is not how Acting Chief Doug White describes it. He says that the whole civil process of federal consultation and decision-making, as well as the extractive relationship to the living earth it legitimates, constitute the violation of the nation-tonation relationship between Indigenous and Canadian peoples. This much older and more democratic world of being citizens together on Turtle Island simply does not appear from the civil citizenship worldview that has been imposed unjustly over it. I hope this helps to show the reasons for the shift to civil and civic citizenship and how what Leydet calls “interchange” between them can help us to understand each other and work together. I am most grateful to her for pointing out the problems in my formulation and giving me the opportunity to present a more perspicuous representation of the complex relationships in which we are entangled. 7 Antje Wiener: Public Philosophy and International Relations It is an enormous pleasure to comment briefly on this outstanding chapter by Antje Wiener in which she outlines her theory of contestation in international relations. I have watched her develop this public philosophy approach with growing respect for her scholarship

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and creativity. I have been fortunate to be able to develop my own work in dialogue with her over a number of years. Her approach is the study of international relations and global governance in a new key. Because it is set out so clearly, and because I could not find anything to contest within it, I will just make a few brief comments. The first and most important is the way that she has shown, conceptually and empirically, how to study individual and collective agency (civic freedom) in the realm of global governance; a domain dominated by state actors or by conceptions of agency drawn from civil agency within states. She has taken practices of civic freedom and citizenship and crafted them to reveal the field of possibilities of engagement in the immensely complex relationships of global governance. She has not only mapped how agents can act and interact in this norm-filled realm. She also analyzes how they can “generate” new and modified norms of global governance through modes of contestatory practice, at various sites of contestation, and relative to conditions of contestation. In addition, true to the ideal of a public philosophy approach, she shows how researchers can enter into relationships of mutual learning with civic agents engaged in modes of contestation. The resulting theory of contestation thereby addresses the legitimacy gap in this field by tracking how normative and descriptive relations of global governance can be brought under the democratic contestation and modification of the global citizens who are subject to them. Wiener draws on a wealth of research from other approaches and disciplines, and puts it together in a new and immensely illuminating manner. This can be seen in the theoretical outline and empirical studies summarized in the chapter and explained in detail in her many publications. In my opinion, it is one of the most original and promising approaches in the field of global governance today. Yet, it seems to me to go beyond this field as well. Her specific analyses of agency in global governance relationships complement many of the chapters in this volume, but especially those by Napoleon and Tierney. 8 Geneviève Nootens: Two Views of Popular Sovereignty I am most grateful for Geneviève Nootens’s very careful analysis of the ways that popular sovereignty is conceptualized under two different ways of conceiving constitutionalism. These two ways are called

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by various names, such as modern and “non-modern,” civil and civic, or autonomous and interactive. I am particularly appreciative because I learned so much from her scholarship on the history of popular sovereignty in the West and I can see that it informs her analysis. As Nootens points out, we share this project of trying to understand how citizens interact with, shape, and are shaped by the processes and institutions of democratization. I agree with the first two sections of her chapter. I would like to respond to the questions she raises in the third section. Her questions turn around two modes of law that consist in two ways of understanding legal systems and of practising law within them. She uses the terms modern and nonmodern. I will use the terms I introduce later in chapter 9 of Public Philosophy, volume II: civil and civic. In my reply to Leydet, I explain the reasons why I introduced these terms in the course of the argument of Public Philosophy. Some of Nootens questions are addressed in my synopsis of civil and civic legal traditions in chapter 9, part 9 (pages 285–8). (I should also mention that the repertoire of practices of civic freedom is larger in chapter 9 than the summary she provides in note 17.) Nootens asks if I believe that a sufficient condition of legitimacy of a democratic society is that its citizens are free to enter into processes of contestation and negotiation over the rules of recognition or dispersed practices of government, or both. This condition says nothing about the results of such processes; that is, of achieving equality and reciprocity as fellow citizens, or “equal dignity.” I agree with her that this condition of contestability is a necessary and not sufficient condition of legitimacy. And, it needs to be met in the central institutions of democratic societies, not only in dispersed practices of government. Moreover, from the civic perspective, equal dignity has to be embodied in the practices of contestation if they are to count as practices of civic freedom. Furthermore, given the relation between means and ends, equal dignity usually come to be institutionalized as results at the end of the struggles only if they are embodied in the practices of contestation (see my reply to Taylor earlier in section 4). I think Nootens misunderstands the quotation she cites on constituent power, as it is understood in the civil tradition (Tully 2007, 320).1 On my interpretation of the civil tradition, the people are able to stand back from their legal order and constitute or reconstitute it in an exercise of constituent power at a founding moment. This leads to the view that constituent power is some sort of virtual power of the

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multitude prior to and different from exercising power in normative, law-like relationships (a view she mistakenly attributes to me at note 24 in chapter 8). This strikes me as implausible. It is the view I criticize in the cited text and I appreciate the opportunity to clarify it. It seems more plausible that humans are always already in normative social relationships of some kind that have legal qualities to some extent and which inform their thought and action at any constitution founding moment. This is the view of legal pluralism and the civic tradition. A second feature of the civil tradition is that a legitimate legal system is autonomous from the people who are subject to it and live in accord with it. This seems to me to be the other side of the same coin. The civic view, in contrast, is that law and human agency are interactive and intertwined, and this again strikes me as the more plausible view. She asks why this distinction between autonomous (civil) and interactive (civic) views of law is important to me. She suggests two reasons: because the autonomous view plays a role in Western imperialism and in the suppression of pluralism. This is correct. I discuss these reasons in detail in chapters seven and nine. However, the other important reason is that the interactive and pluralist account of law is more plausible, and a large body of legal scholarship supports this. I think she would agree. In conclusion, she asks me for the conditions of democratic constitutionalism in the contemporary context: that is, of keeping the rule of law and democratic participation equally basic. I think there are many conditions that need to be invoked in any context in which this balance is in question. It is always the task of civil and civic citizens and researchers working together in particular cases. I try to show what these conditions are for the small range of cases in complex multinational federations with which I am familiar in Public Philosophy, volume I, chapters 6–9 (see also my replies to Tierney, De Schutter, and Gagnon). These sketches are defeasible and I am sure they can be improved. One way in which they can be improved is by drawing on the groundbreaking work of Nootens on the history of popular sovereignty and constitutionalism in the West. 9 Simone Chambers: Practices of Reasoning Simone Chambers mentions that she was one of my first students at McGill. She may not remember this, but her first essay was on the idea of public goods. She argued that public goods are not public

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because they are in the public sphere, but because citizens acting together in certain ways bring them into being and sustain them. They are radically intersubjective and sympoietic. I had never seen this structure of argument before and it had a profound influence on me. I began to see that citizens engaged in such public-goods generating activities would have to see themselves as interdependent, not independent; or perhaps come to see themselves as interdependent in the course of bringing a public good into existence and sustaining it. Over time I came to see this way of thinking about public goods as a signature feature of the civic tradition. I am sure there is an analogue to it in the civil tradition, but I also think that the commitment to the priority of autonomy in the civil tradition limits the role of interdependency, and so the role of and attachment to public goods in relation to private goods. I am not sure Chambers would approve of this extrapolation from her essay, but I want to express my gratitude to her for the gift of that superb essay long ago. Chambers shows with her characteristic clarity that the civil and civic traditions share a number of features in common. But, like the case of public goods, the common feature is often understood and enacted in significantly differing ways. “Accountability to fellow citizens” is a good example. In the civil tradition, “fellow citizens” standardly refers to the citizens of a civil legal order, such as a modern state or international law; whereas it refers to all subject to and affected by the practice in question in the civic tradition. In the first instance we are all fellow citizens of the ecological (and ecosocial) systems that sustain all forms of life (Gaia citizens). In addition, what counts as “accountable to each other” varies in diverse ways from the civil tradition and across the diversity of civic practices. Chambers argues that Habermas is more of a participatory theorist than I have suggested in my interpretations of his writings. She is one of the leading interpreters of Habermas and I am happy to defer to her on the three examples she gives. So much the better in my view. (I sometimes think that Chambers’s interpretation of Habermas is a Canadian-inflected interpretation.) Notwithstanding, she does not deny that Habermas is a modern liberal democratic theorist in the broad civil tradition; and neither does Habermas. He discloses the field of politics and participation in accordance with a number of constitutive features of the civil tradition: constitutional rule of law, representative government, individual rights, public and private, the distinction between public sphere and civil society, state

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centrism, developmental view of progress, and so on. Her quotation illustrates this modernist or Eurocentric enframing (see Tully 2013). Accordingly, Habermas discloses practices of civic participation under the civil framework, and, eo ipso, colonizes or subsumes them with the civil worldview, as Leydet puts it. To use Chambers’s example, he calls practices of civic engagement in “civil society” “anarchic.” Since he conceptualizes them as anarchic and cacophonous, they need to be filtered into more official vertical institutions of public spheres and representative government, and subject to the civilizing official procedures in order to have the status of public deliberation, public opinion formation, and thereby have influence power on their representatives. As she realizes, this preemptively misrecognizes the integrity and the way that thousands of vibrant practices of horizontal participatory citizenship throughout Europe and elsewhere are understood from the civic perspectives of their members. In some cases, they are not interested in having influence in representative institutions, and, when they do, they do not wish to be subordinate to the civil actors in the representative institutions. For example, this has been made clear by the horizontal 15 m movements in relation to the Podemos party in Spain since 2011, and by the thousands of everyday civic citizens who rushed to help the immigrants in Germany in their own creative (nonanarchic) ways (Ouziel 2015). Yet this openness to other ways of being citizens is foreclosed by the preemptive disclosure of them as “anarchic.” I agree with Chambers that the civil and civic traditions have public reasoning procedures that have both procedural and substantive features. But, again, there are important differences. In the civil tradition, procedures have a certain autonomy vis-à-vis the reasoning that goes on within them. This is related to the civil, deontological view of rules and laws in general. The rules and the participation should be equally basic, but the rules always seem to tend to be given a certain priority. From the civic tradition, this feature of procedures is seen as a kind of reification of the rules over the reasoning together within and with them. In this tradition, as well as the humanist tradition, procedures and participation are more interactive and intersubjective. Reasoning takes place in, with, against, and over the given procedures on the presumption that procedures are always a thing of this world, biased in one way or another, and thus always open to being brought into the space of questions en passant, in order to preserve the civic freedom of the participants (Laden 2012, 2014).

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In the civil tradition there are constitutive features that are seen as the background conditions of reasoning together as fellow citizens, and thus are protected from this kind of self-critical reflexivity (which I call democratic constitutionalism in contrast to constitutional democracy). Since they are presumed to be necessary and universal conditions for civil participation, they have to be established beforehand by some other means than democratic participation: often by coercion. As a result, and as non-Western and critical Western scholars have been arguing for over a century, from within the civil worldview it is very difficult to see the unjust imperial roles they have played, and continue to play, in modern history, and the counterviolence its imposition generates. Amy Allen and Anthony Laden have shown that one can also start from within the procedures of reasoning of the civil tradition of Habermas and Rawls and gradually bracket off and call these unexamined background conditions and prejudgments into the space of questions one step and one condition at a time (Allen 2015; Laden 2012). In this way, they show that the conditions are neither universal nor necessary, but parochial, unexamined prejudgments unjustly imposed over others. This kind of immanent critique enables civil citizens to see their own tradition as one among many (many of which are not civic either) and thus to begin to enter into a dialogue with the other civilizations of the world, not by recognizing them under the civil worldview, but, rather, listening to their members under their self-understandings and procedures. This is the first virtuous step of being just and beginning critical and comparative, nonviolent dialogues of civilizations, traditions, and practices (what I call joining hands). In all her remarkable scholarship, especially in relation to religious traditions, Simone Chambers has been at the forefront of moving the civil tradition in this democratic direction.

part t hr e e : in d ig en ou s in tellectual cultures , l e g al t r a d it io ns , an d se lf-determi nati on 10 Taiaiake Alfred: Resurgence and Reconciliation Taiaiake Alfred and I have been teaching and working together since we met at The Royal Commission on Aboriginal Peoples in the 1990s. We moved from Concordia and McGill universities to the University of Victoria in 1996 and I helped him to set up the

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Indigenous Governance Graduate Program he mentions. A number of brilliant graduate students moved with us: Eddie Vo-Quong, Nigel De Sousa, Konrad Ng, and Jocelyn Maclure. I agree with his criticism of one way of thinking about reconciliation. I also agree with his endorsement of the turn to resurgence across Turtle Island and the powerful example of the Mohawk community of Akwesasne. I would like to place resurgence in a broader context in which a different way of thinking about reconciliation plays an important role. This is a way of reconciliation that Taiaiake has written about elsewhere. Paulette Regan, senior researcher at The Truth and Reconciliation Commission and first PhD graduate of the Indigenous Governance Program, argues that the reconciliation project of the commission can be understood in this way (Regan 2018). On the west coast, the Raven cycle stories are teachings of how to live together in peace and friendship with your neighbours, human and more than human. These stories were compiled and translated by George Hunt, Tsimshian and Kwakiutl, and edited by Franz Boas in the 1920s. There are three main cycles. I am not an expert on them but this is what I have learned from them. To live together in peace and friendship is to live in virtuous, interdependent, ecosocial relationships and cycles of gift-gratitude-reciprocity with all your kin (all affected lifeforms). Each partner learns to be aware of all the gifts they receive from the ecosystems that sustain their life (mother earth), from their ancestors, and from each other in the present. They give thanks in receiving them in every breath and step they take, feel the emotion of gratitude awakening within, and learn to reciprocate in kind: that is, by living in ways that reciprocally take care of the living beings who are sustaining their lives. When disputes arise, they conciliate the parties by reconnecting them into cosustaining gift-reciprocity relationships of mutual generosity by means of negotiations and story telling that are themselves suffused with gift exchanges of various kinds. They learn and acquire the dispositional virtues that sustain virtuous ways of interdependent life through the teachings of elders, from observing how their more-than-human relatives sustain life, and by trial and error; passed down over the last thirteen thousand years. However, as Raven always reminds us, this virtuous and conciliatory way of living with interdependent beings in a kincentric universe can go astray. One or more partners can disrupt the virtuous cycles and their feedback loops by nonreciprocation. They engage in

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greedy, violent, domineering, vengeful, and avaricious activity, and see themselves as independent. They take without giving back or forward, use renewable resources more quickly than they can renew themselves through their virtuous cycles, and so on. A healthy community can usually conciliate the vicious partner in time. But, as we know from living in human relationships, this kind of behaviour can spiral out of control and, instead of conciliating, the other partners respond in kind. The conflict escalates through cycles of aggression and counteraggression, and the once virtuous ecosocial system tips over into an escalating vicious system in which some partners prey nonreciprocally on others, or engage in superpredation, where they exterminate the living beings on which they depend, such as fish and forests, and so eventually destroy themselves, or future generations. This is the situation we are in today, driven by the interlocking vicious systems of capitalism, colonialism, war, power-over forms of rule, and globalization; and the vicious systems that arise in counteraggression to them. The question Raven stories pose is: how do humans and animals transform vicious systems back into virtuous systems? The answers are always context dependent yet many have a common thread. The animals teach the humans that the only way to recover is to begin to act virtuously in your everyday relationships in your communities of practice, both with each other and the suffering mother earth: that is, to be the change. They teach us that the way of transformation of a vicious system is by means of the resurgence or regeneration of a virtuous lifeworld here and now. These resurgence practices begin to regenerate an ecosocial permaculture of virtuous and self-sustaining relationships and cycles of gift-reciprocity once again, just as a forest ecosystem regenerates itself after clear-cutting (sympoiesis). But note: this resurgence is literally the reconciliation of the members of the community with each other and the living earth. Here is a more profound mode of resurgence reconciliation than the reconciliation Taiaiake criticizes. As Napoleon mentions in her chapter, it is also a classic example of the practice of civic freedom and citizenship. As these practices and relationships of virtuous resurgence and reconciliation grow, they gradually have the same effects on their neighbours, transforming them from vicious to virtuous partners, just as the muskrat transforms the other animals in the stories of the creation of Turtle Island. This amazing process works because ecosocial resurgence is never autoresurgence of an autonomous community. It

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is, like all life, symresurgence – always already implicated in relations of interdependency that extend beyond the immediate human and bio community. These gift-reciprocity relationships among human communities are often called treaty relationships: Kaswentha or Two Row Wampum relationships in the Haudenosaunee tradition. And these are learned from studying the gift-reciprocity relationships among plants, animals, and ecosystems (biomimicry). If these resurgence-and-reconciliation relationships and cycles continue to grow and flourish, they will gradually reach a tipping point that will transform the vicious global systems that are currently bringing about the sixth mass extinction of millions of species of life on earth into virtuous ecosocial systems and nonviolent modes of conflict resolution and conciliation: that is, reconciliation with and of all forms and ways of life. So, if we place practices of resurgence in the three great cycles of life – virtuous, vicious, and regeneration by means of resurgence reconciliation – we can see that Akwesasne is not only an important exemplar for Indigenous America. It is an exemplar for all. Moreover, as Robin Wall Kemmerer and Ronald Trosper show, this Indigenous way of understanding and responding to our present predicament resonates with what the life sciences and cyclical economics are teaching us (Kemmerer 2013; Trosper 2009; Tully 2018). 11 Valerie Napoleon: Indigenous Civic Civility For many decades, Valerie Napoleon has participated and worked with Indigenous people engaged in practices of civic freedom in their communities. She has researched and published widely on these Indigenous practices of citizenship in her own distinctive way, and she has taught generations of Indigenous and non-Indigenous students in law and other disciplines how to engage in this kind of research and practice. I have had the great honour and privilege of being taught by her and her coresearcher and teacher Dr Hadley Friedland. In this fascinating chapter, she focuses on the problem of incivility in Indigenous communities. The problem with incivility is that it undermines the possibility of individual and collective practices of civic freedom. As she puts it, ethical “practices of civility are a prerequisite for civic citizenship and democracy.” As we have seen in my response to Celikates, this is remarkably similar to a central theme of the Gandhian nonviolent tradition. Incivility is

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even called a kind of “lateral” violence, as she notes. Moreover, she defines Indigenous civic civility in ways similar to Cressida’s courageous parrhesia, Taiaiake’s “nonviolent contention,” my account of ethico-democratic practices of the self in respectful and contestatory relations with others, and to the accounts of civic engagement by Taylor and many others in this volume. These similarities across diverse traditions of civic citizenship are important in their own right. However, what is so distinctive and original in Napoleon’s chapter is her careful uncovering of the reasons and causes of incivility (and the types of civic freedom they undermine); the unhelpful and helpful ways of responding to practices of incivility and rebuilding practices of civility; and her two examples. It is also important to note that these Indigenous practices are entirely within the world of civic citizenship and civic (interactive) law. Civil institutions and law, insofar as they appear, are characterized as the colonizer’s law, or the “legal Indian” in contrast to the “live Indian.” From the Western civil perspective, the “unruly” and unpredictable, “live” and “civil Indian,” in Napoleon’s civic sense has always been seen as “uncivil” and “uncivilized” in the Western sense. To describe her Indigenous ethics as “civility” runs the danger of subsuming it under Western processes of “civilization”; precisely what they are trying to avoid. Perhaps we should use “civic civility” or, better, “civicness” instead, to indicate that it is a diverse form of being democratic, egalitarian, respectful, contestatory, and so on? For example, John Borrows does this by showing that there are seven grandparent teachings of the civic virtues of being a good citizen of your community in his Anishinaabe tradition: love (zaagidiwin), truth (debwewin), bravery (zoongide’iwin), humility (dabaadendizowin), wisdom (nibwaakawin), honesty (gwayakwaadizowin), and respect (manaaji’idiwin) (Borrows 2019). This original and careful analysis, based on Napoleon’s own experience and community-based research, is invaluable for the health and well-being of the Indigenous communities involved, and as an example for other communities. It is also important for another reason. It takes the courage of the civic civility she describes to engage in Indigenous communities, expose incivility, and speak and teach publicly about incivility and how to overcome it. Her courageous ethos, like Heyes in her chapter, is an

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exemplary role model of the ethics she is working to promote in her community-based research. And, as Owen argues in his chapter, this is public philosophy at its best. Finally, her work is important for yet another reason. In Canada, the United States, and Europe, we have developed a form of politics that takes the ethics of civility and civicness to be irrelevant. We have seen the results of this in 2016 election in the United States and elsewhere: incivility, anger, hatred, divisiveness, aggression, and enmity reign. If we wish to address this problem in our own communities, we can do no better than to begin by learning what Napoleon has to teach us (see also my responses to Taylor and Havercroft). 12 Michael Murphy: Indigenous Self-Determination and Well-Being Mike Murphy is a member of the amazing cohort of graduate students that includes Cressida Heyes, Michael Temelini, and Duncan Ivison. He was the first to write a dissertation on the Royal Commission on Aboriginal Peoples. He has gone on to do cutting-edge work with Indigenous people in Canada and New Zealand, and on deep diversity and federalism. In my opinion, his current research is the most original and important to date. He addresses the crucial question: what are the enabling conditions of health, well-being, and sustainability of Indigenous people and their communities? Given the crisis situation in many communities, this is surely the most important and pressing research problem. It complements the research of Napoleon on the conditions of civic civility and Taiaiake on resurgence. Moreover, in the Encyclical on Climate Change and Inequality in 2015, Pope Francis singled this out as the most important question in general for the twenty-first century. Murphy answers that one important part of the answer is that Indigenous people, individually and collectively, are able to engage in both working for self-determination and exercising powers of self-determination. Self-determination in this rich sense consists in the conditions of mutual self-respect, similar to Napoleon’s practices of civic civility, and three further conditions. These are individual autonomy within relationships of interdependency, interdependent social relationships of belonging and mutual aid, and the acquisition of the individual competences (or ethos) to

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interact in these relationships of interdependency in agency affirming and enhancing ways. Where these conditions are present and the two types of freedom exercised, the epidemiological and social psychological research shows conclusively that individuals and communities tend to bring about health and well-being in selfsustaining ways. When these conditions decline or are absent, poor health, ill-being, social pathologies, and unsustainable, vicious relationships and cycles tend to increase. As he stresses, this set of self-determining conditions is not a sufficient condition, but it is an important necessary condition. Murphy is characteristically modest and self-effacing about his own role in this enormously important discovery. However, if I am not mistaken, he is the first to link together research on self-determination and research on health, well-being, and sustainability. The research we are doing at the University of Victoria with a new generation of graduate students supports Murphy’s pathbreaking research in a number of ways. The first is the focus on the complex cluster of components that comprise self-determination. As we can see, it is actually the transformation of the older, nineteenth and twentieth century’s idea of self-determination. It is a relational mode of inter- and intradetermination with one’s individual and collective interdependent partners or neighbours. It is the rejection of the Western ideal of independence and the embrace of the Indigenous idea of interdependence. The same goes for “autonomy,” which is replaced by relational freedom and responsibility. Second, in many Indigenous traditions, the way that all the relational components of the freedom within and of interdetermination are conceptualized is in the language of gift-gratitude-reciprocity social relationships and the virtuous cycles that the cocompetency and co-agency of partners in these relationships bring about and cosustain. Third, these healthy social relationships are sustainable only if they are grounded in healthy ecosocial relationships and cycles of gift-reciprocity with the living beings and ecosystems on which we all codepend. And, communities learn how to exercise their individual and communal freedom in this reciprocal way by studying how plants, animals, ecosystems, oceans, and atmosphere have been sustaining life on earth in their solar-generated giftreciprocity relationships of symbiosis and symbiogenesis for over three billion years. This is resiliency, not only of individuals and communities, but of life itself (Capra 2014).

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pa rt f ou r: f ed erali sm and m u lti nati on al d emocraci es 13 Stephen Tierney: Enlightening Federalism I have been learning about federalism, multinationalism, and the European Union from Stephen Tierney’s capacious legal theory perspective for many years. As he points out, although there is a large body of work on federalism, more research needs to be done in light of the great changes over the last two decades. These changes include diversification of federalism from within by civic and civil citizens (discussed in part two of this volume), processes of supranational constitution-building, the deepening federalizing qualities of international and global legal systems and governance, and the new sites and practices of contestation surveyed in Antje Wiener’s chapter. Tierney’s chapter is the most original and creative response to these changes in the field of new federalism. It goes far beyond my work that he generously mentions. I agree with the picture of enlightening federalism that Tierney sets out so clearly. I would just like to expand on one central feature he describes briefly: the federal spirit of virtuous reciprocity. Academics, federal citizens, and governors poorly understand its scope and importance. It connects a number of features he mentions, especially federal civic freedom and solidarity. Moreover, it is the resilient intersubjective ethos that enables federations to cope with the centrifugal and centripetal forces he mentions. Without this spirit of mutual aid these forces lead to dissolution or domineering unification. If I am not mistaken, it is the animacy of democratic federalism. The basic idea is simple enough. It is the oldest and most widely shared ethical norm in the world. There can be no lasting peace and justice unless and until we learn how to get along with our neighbours and settle our disagreements nonviolently. The ethical norm is to treat all those who are affected by our way of life (our neighbours) as we would want them to treat us: mutual virtuous reciprocity. The reason this ethic is basic and unavoidable is that individuals and communities are not independent, as modern political theory presupposes, but always in relationships of interdependency with each other that cosustain each other’s lifeways. Federalism is the realization of this taken-for-granted, mutually beneficial federal relatedness

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of all forms of life; both in the sense of becoming aware of it and enacting it in practices of governance and citizenship. The federal reciprocity norm does not tell us beforehand how to treat each other in concrete cases. Rather, it is an ethical orientation to each other. It enjoins us to ask, in each ecosocial footstep we take, how will this footstep of our lifeway affect the lifeways of the individuals and communities (human and nonhuman) that play roles in making it possible, and how will it affect the lifeways of all others: in virtuous, cosustaining ways or vicious, destructive ways (domineering, exploitive, taking advantage of others, and other forms of suffering)? The only way this question can be answered in concrete cases is to ask affected others how they would like to be treated, just as we would want in our own case, and work out ways of interacting and living together in diverse, yet cosustaining ways through negotiation and experimentation. This is reciprocal elucidation of our diverse ways of life and of how to coordinate them. Hence, audi alteram partem and all the federal practices of nonviolent civic civility, Satyagraha, negotiation, contestation, and so on canvassed in this volume. If, in contrast, humans start from the premise of independence and competition over resources, rather than sharing, mutual distrust, fear, animosity, and insecurity tend to prevail. The ensuing security dilemma leads to ever-increasing aggressive and counteraggressive struggles over each other and scarce resources, as Hobbes argued at the beginning of the modern state and corporation system, and as contemporary international relations theory and practice substantiate today. As Tierney argues, this vicious, antifederal spirit blows back and permeates social and political relationships within states, whether they are federal or nonfederal, and undermines the federal spirit.The challenge of the twenty-first century is to learn from this pervasive dilemma and reconceive world federalism as the way of overcoming the vicious, independent state and corporation system as it destroys itself. Since means and ends are internally related, the regeneration of the federal spirit, like democracy, is autotelic. The enactment of spirit of democratic federalism here and now, locally and globally in the relationships in which we find ourselves, is the way to democratic federalism. I cannot think of a better way to begin this reconception and regeneration than with Tierney’s vision of enlightened federalism.

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14 Helder De Schutter: On Democratizing the European Union I agree with most of what Helder De Schutter writes about the European Union and democratization. I find it insightful and important. I disagree with the two claims he attributes to me and the specific recommendation he puts forward towards the end of his chapter. I am grateful for his objections and the opportunity to reply. Like De Schutter, my work on the eu has been in response to its democratic federal deficit. I agree with the widely supported view that the eu is a predominantly technocratic and oligarchic economic union with a predominantly ordoliberal and neoliberal agenda. The nondemocratic eu institutions, transnational corporations (“shadow sovereigns”), institutions of global governance, and the financial sector have undue influence. It appears to the vast majority of nonelite citizens to be an automaton. They feel alienated from and distrustful of it. This is a classic case of the double alienation of the people’s powers of both political and economic self-government. This form of elite development has engendered the rise of rightwing populist and nationalist leaders and parties who mobilize and exploit the alienation, distrust, anger, and fear, usually by means of a scapegoat ideology that blames others (especially immigrants), rather than addressing the problem (democratic deficit, economic inequality, income disparity, low wages, and job losses). The events of 2016 made this vicious cycle of elite development, alienation, and populist reaction even more manifest than before. The response of eu civil and civic, nonelite democrats and federalists is to propose ways of democratizing the eu that will give the people an effective voice and hand in eu development, thereby overcoming alienation and distrust, and engendering a sense of solidarity with the eu project as participants in it. De Schutter proposes one such democratic-federal way and I agree with his arguments for it, but not for the form of federalism he proposes. His proposal is for two separate projects: the democratic institutions of the existing state and then build a separate and “overarching” federal democracy for the eu as a whole. I believe that this would tend to exacerbate rather than overcome the alienation. My alternative opinion is that enlightening democratic federalism of the kind proposed by Tierney has to be generated from within and by expanding the nonalienated democratic and federal practices and traditions that already exist. The simple reason for this

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is that the means prefigure the ends and thus the means must be democratic, federal, and unalienated (autotelic). By democratic and federal means (demoi), I do not mean only the existing representative institutions within states and whatever eu democratic institutions citizens trust. Existing demoi refer to the world of civil and civic practices of representative and direct democracy, unions, cooperatives, community-based organizations and their networks, associative democracies, commons and commoning, student networks, and so on. The networkization revolution has enabled these diverse participatory demoi to federalize informally over the last forty years. Healthy representative democratic federalism is always grounded in local democratic and federal practices of cooperation and mutual aid as an everyday way of life. These federal or networked demoi are that ground in Europe today. Forty years of neoliberalism and austerity programs has atomized and divided these indispensable relationships of democratic solidarity, creating the fear, insecurity, and anger that the right-wing parties now exploit. Yet, they have survived to some extent, providing voluntary support and help to immigrants and unemployed, and resisting the austerity programs, especially in the Global South of the eu (Ouziel 2015). De Schutter is correct to say that these demoi do not constitute a single demos for the eu as a whole. But unalienated democratic federal institutions of the eu will develop only if they are built on these democratic foundations: that is, on the ongoing, participatory consent of the governed, not only in referenda, but also through their already trusted delegates in their demoi having a say and a hand (as in the four hundred-year struggle to develop nonelite representative governments within the member states). A crucial feature of enlightening democratic federalization of the eu in this sense is that it is “open ended.” De Schutter takes this to mean not constrained by norms, but this is a misunderstanding. By “open-ended” I mean nonfinal. The eu is full of civil and civic normativity, as Chambers, Tierney, and Wiener show. I have set out my own preferences for democratic and federal norms and given my reasons for them. The openness refers to the effects of the norm of the contestability of norms. Contestation ensures that the given norms and their ordering are always open to question, challenge, negotiation, change, review, and questioning again. This is democratic participation in and over the norms of democracy (see Wiener’s chapter 7).

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De Schutter suggests that this would be “conservative.” In one sense this is true. It would conserve and regenerate the local sources of horizontal democracy, federalism, solidarity, equality, and fraternity that have been damaged by neoliberalism, austerity, and inequality, as Taylor argues in his chapter. But they are not conservative in the sense of conserving the status quo. Robust participation in everyday practices of the democratic and federal spirit are transformative. It generates what I call “citizenization”: the experience of reasoning and acting together with one’s neighbours on common problems. This animating experience is virtuous in the sense that it is not only self-sustaining but also self-extending, as Tierney argues. Moreover, as I suggested in response to Celikates, it overcomes the fear, anger, and distrust of others generated by alienation and cultivates the democratic virtues of being-with: compassion and fraternity. De Schutter suggested that such an approach would generate vicious competition among the state-centred representative demoi and a spirit of “what’s in it for me.” I have responded that I was not thinking of state-centred representative demoi, but the citizenizing world of existing European federal demoi or “associative democracies” of diverse kinds. If eu democratic federalism is to be animated by the virtuous spirit of “what is in it for each and every one of us,” including Europe’s interdependent neighbours, then this is the way to nurture it. The vicious antifederal spirit of “what’s in it for me” is the product of state-centred representative governments being overridden by eu legislation and then exploited by right-wing nationalist parties. My concern with De Schutter’s proposal is that building an eu representative federation that overarches the separate member states’ representative institutions will unintentionally exacerbate, rather than overcome, this vicious, alienated spirit, for the reasons I have given. I also think that this proposal does not follow from the conditions of solidarity he gives in the chapter. In the spirit of these conditions, I look forward to learning from his response. 15 Alain-G. Gagnon: On Quebec, Canadian Federalism, and Change As Alain Gagnon mentions, we have been working together on multinational and multicultural federal democracies since the early 1990s as colleagues at McGill University and as colleagues in our research group. I have learned an enormous amount from his outstanding

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scholarship and his legendary generosity and hospitality to colleagues and students. My work on minorities, nationalism, federalism, and Quebec would have been impossible without the ongoing dialogue with him. For nineteen years, I was a member of the small anglophone minority in Quebec when the large Francophone majority gained and exercised power over us. What I learned firsthand from Gagnon and Guy Laforest was that there are members of the dominant majority who are willing to work with and stand up publicly for minorities who often feel that they are treated unfairly and unequally, and that their protests are ignored and ineffective. Moreover, I came to Quebec from British Columbia. The power struggles between the big provinces (Quebec and Ontario) and the federal government, which dominate Canadian politics, largely ignored us in “the West beyond the West.” Gagnon, Laforest, Taylor, Leydet, Karmis, Maclure and many others reached across our differences and educated me in this strange world of central Canadian politics. This dual experience of being a member of a small minority and of finding supportive allies in the dominant majority has been of fundamental importance to my work and me. I have tried to reciprocate this generous gift by doing for Quebec (and other minorities) in the anglophone majority outside of Quebec what Gagnon and others have done for the anglophone (and other minorities) within Quebec. As Gagnon points out, we have not always or often been “successful” in establishing institutional “guarantees” in either Quebec or Canada, given the power inequalities in both cases, but, there is the empowering experience of mutual understanding and solidarity across differences in these struggles of and for freedom that gives life its larger meaning and is worth more than any guarantee (as I will argue). Although I agree with almost everything Gagnon says in his chapter, I would like to respond to a couple of misunderstandings. In a few places, he writes as if my work on Canadian federalism is primarily a moral argument that is not attentive enough to power or downplays power differentials. I demur. The practices for and of freedom in unjust practices of government are practices of power. They are practices of civil and civic power-with others in and against unjust practices of power-over others of various kinds. Normativity is an equally basic dimension of power-with and power-over relationships, or they would not be practices of civic and civil freedom. Thus, I try to study power, freedom, and normativity together, as throughout the two volumes of Public Philosophy.

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Following Guy Laforest, Gagnon suggests that I changed my stance on the 1982 patriation of the Canadian constitution in my Desjardins lecture, “The Unattained Yet Attainable Democracy,” in 2000 (Tully 2000). This is a misinterpretation if I may say. As he points out, I presented three objections to the patriation of the constitution without the consent of the National Assembly in 1982. Like every Quebec government since 1982, the federal governments of Brian Mulroney and Paul Martin, and the federal ndp , I continue to raise this objection and recommend reconciliation through negotiations: in 2001, in a volume co-edited with Gagnon, and in Tully (2008, 2009, 2017a). What changed is the Supreme Court’s interpretation of the constitution in the Reference re Secession of Quebec (scc 1998). I accepted this revolutionary new understanding of the Canadian constitution and attempted to set out its significance in the Desjardins lecture (2000). As Gagnon mentions, Laforest has been influenced by the interpretation of the Reference case by Michel Seymour, a leading Quebec philosopher and sovereignist. He argues that the Canadian constitution still remains a “straightjacket” limiting Quebec’s self-determination under the Supreme Court’s interpretation in Reference, even though the Court explicitly argues against this. Laforest interprets my Desjardins lecture under the influence of Seymour’s interpretation of the Reference. It is certainly possible to interpret the Reference in the way Seymour does. However, as I argue in the Desjardins lecture, I think it misunderstands the revolutionary reconception of the constitution the Supreme Court presents in response to the events from 1980 to 1998. Firstly, by arguing that individual and collective dissent (contestation) is an essential, democratic feature of the constitution, the Court showed the legitimacy of the attempts to redress the injustice of 1982 by the constitutional negotiations of Meech Lake and Charlottetown, the referenda on secession, and any other modes of contestation that follow. Secondly, they set out general constitutional principles to follow in bilateral negotiations if the majority of Quebecers vote in another referendum to secede (or renegotiate federalism). If the rest of Canada, organized as one party on par with the Quebec people, fails to abide by its constitutional obligation to negotiate accordingly, then Quebec can proceed to try to seek international recognition as an independent state (external self-determination) without the consent of the rest of Canada. In

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addition, the Court argued that if Quebec constitutes a people with the right of self-determination under international law, then the Court will find the sources within their reinterpretation of the federal and democratic principles and consent to recognize fully this status within the federation (internal self-determination), as Canada has bound itself to do so. If, moreover, the constitution is interpreted and enacted in accordance with these three major and remarkable features (and others), then Quebec would be recognized within Canada as a people with the right of internal self-determination under international law. The Court argued that these dynamic principles of ongoing, negotiated reconciliation, which appear to be new and revolutionary, were not explicit in earlier decisions (hence the straight jacket view), but were nevertheless always implicit in the underlying constitutional culture or conventions: the “living constitution” of problems, contestation, negotiation, and reform. The role of the Supreme Court was to make them explicit in response to the unique contestation and crisis of diversity and unity of the previous two decades. The Supreme Court argues that this is the major role of the constitutional court in a diverse, democratic federation. The Reference case was hailed as a revolutionary change by many scholars in Quebec and Canada, including Claude Ryan, as Gagnon mentions. It was seen as a change from constitutional democracy to democratic constitutionalism, or agonistic and interactive constitutionalism. Indigenous legal scholars showed its importance for their struggles to gain recognition as peoples with the right of self-determination. It influenced constitutional theory and practice in Europe and international law thanks to use of it by Antje Wiener, Stephen Tierney, Jo Shaw, Neil Walker, Stephen Toope, Jutte Brunée, and others. I set it out as the general form of constitutionalism appropriate to multinational and multicultural federalism in 2001, repeated my objections to patriation in 1982, and suggested that the Quebec government should consider initiating a reference regarding recognition as a people with the right of self-determination, which would bring about the constitutional change that Quebec has been demanding before and after 1982. Furthermore, if I am not mistaken, the Supreme Court was influenced in its reasoning by the work on democratic and multinational constitutionalism by Gagnon, Taylor, Rod Macdonald, Peter Russell, and Jeremy Webber. If this does not remove the straightjacket and give Canadians a new way of understanding of their constitution, and of themselves

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as empowered, active individual and collective agents of its development, by means of their practices of civil and civic freedom, then what would? Additionally, Gagnon claims that big and small minorities and provinces need “guarantees” that their dissent and negotiation will bring about and institutionalize just relations between them and the majorities with which they co-inhabit. There is a plenitude of institutional guarantees already in the Reference case and in the legal documents of Quebec, Canada, and international law since then. However, in looking for institutional guarantees, I think he overlooks the guarantee that is hidden in clear view. I agree with Michel Foucault: the only guarantee of freedom is the practice of freedom – in all the civil and civic democratic practices of freedom. If the people do not participate in these practices the institutional rights of formal recognition and redistribution would not exist. And, the ones that do exist are never effective for long without ongoing popular support, as twentiethcentury history teaches. Moreover, practices of freedom can guarantee our freedom, as much as is humanly possible, even when they do not bring about institutionalized legal or constitutional recognition. Nevertheless, when the civil-institutional lens is removed and its limitations exposed, and the living, negotiated constitution disclosed, another objection, famously articulated by Albert Camus, comes to light. These practices of freedom of the demoi give the illusion of real change. In practice, so goes the objection, they are hunger games that the dominant majorities (and minorities) always win (such as more powerful states over Canada, Canada over Quebec, Quebec over its minorities, minorities over minorities within, men over women, 1 per cent over 99 per cent, and so on); or, if the dominated partner wins, they become the new dominant group (because they are accustomed to lording it over others within their own group), world without end. Plus ça change … I suspect this is Gagnon’s objection. But, this dominant-dominated game objection fails to appreciate the transformative, autotelic power-with of practices of freedom and how they bring about change. Instead, the field of practice is pre-interpreted in the languages of the dominant-dominated games of struggling for power-over and, consequently, repeats the same story over and over again. Take a look at these three examples from the practice of freedom perspective. Jeremy Webber argues that Quebec’s struggles for constitutional change have brought about transformative change in the way

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the constitution is interpreted and the way provincial and federal governments interact under it even though formal constitutional recognition is unattained. Quebec is now recognized as a nation by its federal and provincial partners and the Supreme Court in all their important interactions (and this change has been recognized by the federal Parliament). For most intents and purposes, the informal living constitution is of a multinational federation. This is a sea change in the self-understanding and self-formation of the Quebec people, as a people or nation, brought about by their collective actions in struggling for peoplehood. Reciprocally, this is a sea change in the self-understanding and self-formation of citizens and governments of the rest of Canada brought about by agential participation in responding, with agreement and disagreement, to these struggles. Moreover, Quebec’s struggles took place along with a plenitude of other struggles of minorities for recognition, and this brought about the change in self-understanding of all Canadians that the federation is not just multinational but also multicultural and deeply diverse in complex ways. This transformation in the everyday “living constitution” (or “hidden constitution” as Antje Wiener calls it) of how we understand and relate with each other in our interactions is exactly what the Supreme Court reflected on and retrospectively explicated the spirit and norms that have the capacity to coordinate cooperation, contestation, and conflict nonviolently in this kind of democratic federalism. This revolution was brought about, neither by institutionalization and coercion nor by seizing state power, but by engagement in nonviolent practices of freedom. It is a revolution that is never complete, and the less powerful minorities affected by the change have not been treated reciprocally. Nevertheless, the power of practices of civil and civic citizenship and the quiet revolution of the living constitution are undeniable (Webber 2018, 2015). Simultaneously, a similar revolution is occurring with respect to Indigenous peoples. In 1981, the new constitutional section 35 did not mention Indigenous nationhood, self-determination, self-government, Indigenous legal orders, or a nation-to-nation treaty relationship with Canada. At the time, many Indigenous people saw this as a failure. Yet, they quietly went about articulating and enacting these ideas in Indigenous civil and civic practices of freedom in every area of Indigenous and Canadian life and at the United Nations. First Nations, self-government, self-determination, and nation-to-nation relationships are becoming constitutive of

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the self-understanding of Indigenous peoples and Canadians in the relationships that comprise the living constitution of Canada. The Supreme Court has begun to respond to this sea change by using and explicating these ideas that do not exist in the written constitution or written documents of the treaties, but which have been implicit in Indigenous-settler relationships since first contact and in Indigenous lifeways much longer. It is easy and important to criticize how far formal recognition falls short of these ideals. But, this is to overlook the practices of freedom and the transformative resurgence-reconciliation that they have brought about in the living constitution, as Napoleon and Taiaiake show. This is far more important and lasting precisely because it is autotelic. It not only self-generates the change. It empowers each generation to carry on from where the last left off. There is a long way to go, but these practices lay down the way. Robert Bourassa argued that in a complex federation there is no such thing as a permanent and immoveable dominant majority. It is always possible to gain the support of other partners in the federation, form mutually beneficial alliances, and win contests against domineering powers. He called this multilateral federalism and used it effectively when he was premier of Quebec. He refused to draw permanent lines of enmity between them and us and cultivated a spirit of federal reciprocity. Multilateral partnerships of this general kind are used by all types of minorities within the Canadian federation to destabilize seemingly stable domineering majorities and persuade them to enter into negotiations as equals; thereby dissolving us-them dichotomies that undermine the federal spirit Tierney writes about. This is what Quebec and Ontario did recently with respect to climate change and pipelines. The way Gagnon and Laforest joined hands with anglophones provides an excellent example of how this kind of cooperative federalism works at an everyday level to dissolve us-them relationships. After serving as premiers, Pierre-Marc Johnson and Lucien Bouchard both argued that Quebecers should turn away from formal constitutional struggles and transfer all the civic energy and momentum they created into exercising to the full the powers of self-determination they have here and now. They recommended that it be exercised to enhance the health and well-being of all diverse Quebecers and First Nations, their communities, and the ecosystems on which they depend. Gagnon, Taylor, Karmis, Maclure, Leydet, Nootens, and other members of grsp have been at the forefront

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of this citizenization and empowerment movement; from education and reasonable accommodation to contesting relationships of political, economic, gender, religious, and sexual orientation inequality and domination, and working with Indigenous peoples in Quebec. The majority of Quebecers appear to agree with this turn away from sovereignty and constitutional change to practices of freedom within Quebec and with their federal neighbours. This is similar to Gandhian constructive programs mentioned in my response to Taylor and practices of self-determination explored by Napoleon and Taiaiake. These examples show the transformative power of civil and civic practices of freedom and how they effect change. They appear to answer the Camus objection. Indeed, they are Camus’s answer to his own objection (contra Fanon and Sartre) (Camus 1956). Gagnon ends with the importance of trust in multinational and multiminority federations. He mentions my point that if you want to initiate a virtuous reciprocal relationship with interdependent members, then sometimes you have to be willing to take the first step and act as if you already trust each other: that is, offer an open hand. If you enter with distrust, backed up by a closed or hidden fist, or with dissimulated trust and false promises, then this tends to initiate vicious cycles of distrust, enmity, and aggressiveness (see my responses to Taylor, Celikates, and Tierney). I initially described this trusting mode of encounter as “groundless trust” when we first started working on it. I now see that such acts are not groundless. Rather, they appeal to an underlying intersubjective trust that is, to some degree, already there, but which is overladen by distrust, alienation, and enmity (Tully forthcoming). Gagnon correctly links my analysis to René Lévesque’s ethos of “beau risque.” This is his willingness to enter into tough negotiations with premiers and prime ministers and try to overcome cycles of mutual distrust by being trustful (being the change). There is no guarantee. It is often met with nonreciprocation, distrust and advantage taking. But, if you believe in the federal spirit of mutual respect, you hold on to it, come what may. Levesque embodied this ethos in his vision of sovereignty and association; in a referendum to negotiate sovereignty-association, negotiation, and a second referendum on what was negotiated; and his defence of the anglophone minority and First Nations. Perhaps this risky, trustful way of interacting should not be judged by vicious initial reactions. Rather, fellow citizens might risk judging

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it by the virtuous way of life it brings into being and upholds for all to see, and by the small yet cumulative ripples it makes in the intersubjective living culture of deeply diverse societies. It can also be judged by contrast to the effects of the ubiquitous distrustful and antagonistic approaches to human relationships and the destructiveness they cause. The beau risque is the courageous practice of freedom that enacts and initiates (or reboots) the federal spirit and reciprocal practices of freedom that have brought about the sea change in the living constitution of the Canadian federation over the last four decades. It is the spirit I experienced when Gagnon held out his hand many years ago.

part f iv e : t h in ki ng a nd acti ng di fferently 16 David Owen: Ideals as Exemplars in Public Philosophy I have been engaged in a dialogue of reciprocal enlightenment with David Owen for many years. The most frightening feature of it is that he invariably articulates the ideas and ideals we share more clearly than I am able to do so. This astonishing chapter is an exemplar of this gift. I think it should be read after reading the other chapters and responses. It rearticulates more perspicuously the central themes on which contributors have commented and to which I have responded. His analyses of the role of ideals as exemplars in public philosophy, listening and responsiveness, theorizing exemplars and its stakes, on being the change, and the two implications of the conclusion all help to go back and see our agreements and disagreements in a clearer light. I am tempted to refer sections of his chapter back to relevant chapters and responses in the volume, but each reader will have their own reference chart. For me, the most helpful section is his rearticulation of the “spirit” or ethos of civic freedom in “Ideals as Exemplars” and “On Being the Change” sections. It clarifies the character of the civic spirit more generally than I have been able to achieve in my responses to specific instances of it in, for example, practices of the self, dialogues of reciprocal elucidation, democratic federalism, and joining hands. I am most grateful for this ongoing critical dialogue with an exemplary dialogue partner. The dialogue with Owen continues into a new area I would like to mention. It appears briefly in a number of my responses and setting it out here may help to clarify what is at stake. Since Public Philosophy

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I have deepened my understanding of the spirit of civic freedom in two respects. I now see the intersubjective kind of power relations civic freedom brings into being as power-with relations: that is, relations in which the partners exercise power with each other equally, without subordination and without the division between ruler and ruled, governor and governed. I contrast this with the more familiar kind of power relations characteristic of civil freedom in which one individual or group exercises power-over others, as in all forms of government with the exception of direct democracy. This distinction goes back to Mary Follett and Hannah Arendt, yet is not often discussed in contemporary political theory. Indeed, the very premise of self-organization and self-government without some form of usually coercive power-over is often rejected as impossible. Next, I have rearticulated the kinds of transformative exchanges involved in the interactions among civic citizens in power-with relations as gift-gratitude-reciprocity relations. The family of gift-reciprocity relations includes such interactions as reciprocal elucidation dialogues, negotiations, social and economic cooperatives, and nonviolent contestation. That is, it includes interactions with oneself (ethical practices of the self) and with each other, but it can also include regenerative relationships with the living earth (Gaia citizenship). What gives these power-with and gift-reciprocity relationships and cycles their power to transform vicious, antagonistic relationships into virtuous ones, by the civic partners being the exemplary change, is that they have the capacity to reconnect the alienated partners with similar, gift-reciprocity or symbiotic ecological relationships that animate and sustain ecosystems of all forms of life on earth. This is not to claim that all ecological relationships are symbiotic, any more than that all social relationships are cooperative, but, rather, to agree with scholars as different as Kropotkin, Fritz Capra, Robin Kemmerer, and Pope Francis, that symbiotic and symbiogenetic relationships are the major factor in the sustaining and evolution of life on earth. On this hypothesis, the “spirit” of civic relationships is not only the animacy of nonviolent, transformative, cooperative, and contestatory social relationships, but also of similar ecological relationships. When humans design their ecosocial systems so that they connect with and mimic symbiotic ecological systems, they not only regenerate both social and ecosystems damaged and destroyed by our violent, exploitive, and destructive power-over relationships to

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each other and the living earth, but connect with and are moved by their animating power (anima mundi) (Tully 2016c, 2017b). Whether this biomimicry hypothesis stands the test of further research and experiments in practices of freedom is to be seen. But, in so far as it does, it discloses a way to connect public philosophy research and practices of freedom oriented to addressing social and ecological justice together. The greatest gift would be to continue the critical research dialogue on this topic not only with Owen, but also with all the contributors to this volume, who have been so helpful in critical and constructive rearticulation. 17 Jonathan Havercroft: Machiavelli’s Deceptive Excuses and Critical Redescription I would like to thank Jonathan Havercroft for handing in such an excellent essay after all these years. It is the best survey of Machiavelli on excuses I have seen. I also agree with his interpretation of Austin on excuses. In the conclusion, he suggests that there might be a connection between these authors on excuses as redescriptions and my own work on critical redescription as a practice of freedom. This is correct and I would like to take the opportunity to explore it. It will help to put some of the central themes of this volume in another, clearer light – hopefully, an enlightening redescription of them. The idea of critical redescription as a practice of freedom derives from the tradition of civic humanism, as Havercroft mentions. It is based on the analysis of “paradiastole” from Aristotle to Skinner (Skinner 1996, 138–81). Paradiastole (the possibility and power of redescription) is based on two features of reality. Human knowing is situated, perspectival, and thus partial. Human activity is aspectival. Any disclosure of description of it from a situated standpoint reveals some aspects of the activity in question while also concealing other aspects. This is the realism of civic humanism. Therefore, as knowers, we require others to show us how human activity appears to them in order to gain a more enlightened view. We are epistemically interdependent. Humans come to know the activities they are involved in through the exchange of redescriptions in dialogues of reciprocal elucidation (audi alteram partem). Through empathetic listening and careful speaking in reciprocity we can come to understand the multiple aspects of the activity in question from each other’s points of view and thus the partial truths and

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limits of each, including our own. Dialogues of reciprocal elucidations can thus free us from aspect blindness (taking our description as comprehensive) and open us to diversity awareness. Accordingly, good, enlightened, evenhanded government consists in dialogues of reciprocal redescriptions, negotiation, reconciliation, implementation, review, and beginning again among all citizens, and, as much as possible, with those indirectly affected by it. For these reasons, democracy, in which all have a say and a hand, is the best form of government, as Aeschylus argued. On this view of reality, the central problem of human activities is that redescriptions can be used for both virtuous and vicious purposes; for example, to expose an injustice or to conceal it. It is thus necessary to cultivate the ethical virtues to describe and redescribe human reality as truthfully as possible, from one’s limited point of view and from learning from others, as Temelini explains. But, even more important than this difficult practice of freedom, one must also learn and exercise the virtue of detecting and exposing vicious redescriptions, no matter the risk: namely, the practice of “critical” redescription (Skinner 1996, 172–81). This is the courageous virtue of truthfulness (parrhesia and Satyagraha): of speaking truthfully, within power relations, to the powers that be who are engaged in injustice and their hangers-on; and of persuading them to enter into dialogues oriented to truth seeking (the parrhesiastic pact) and correcting the injustice (democratic reconciliation) (Tully 2016d). These ethical practices of freedom are learned through education in the civic humanities (ethics, government, law, reason and rhetoric, philosophy, history), exemplary examples, and practice (see Temelini’s chapter 3). It is not too much to say that every chapter in this volume is engaged in this activity in one way or another. As Havercroft argues, political excuses are an important class of redescriptions. They have the qualities Austin explicates. Excuses draw attention to the complex aspects or circumstances of specific actions and activities, the situatedness of the agents who advance and defend rival descriptions of them, and the role of human freedom in both. Whereas justifications tend to draw our attention away from the specificity of human activities to more general and abstract formulations of principles and their conditions of predication. Excuses concede that one aspect of the activity in question is vicious (“bad”) and unjustifiable, but they describe other aspects that can be seen as compelling reasons to excuse the activity (to some degree).

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Of course, as redescriptions, excuses can be either virtuous or vicious. From the perspective of the civic humanist tradition, Machiavelli is infamous for advancing two immensely influential types of vicious political excuses, and, in so doing, almost destroying the tradition. Erasmus advanced the virtuous response that exposed Machiavelli’s deceptive excuses and saved civic humanism (Erasmus 1946, 1997). Presenting a brief synopsis of this response will illustrate how critical redescription works. The first of Machiavelli’s general type of vicious excuse is the one Havercroft quotes at the beginning of his chapter and then analyses specific examples of it, especially the famous example of Romulus murdering his brother. Machiavelli concedes that Romulus’s crimes cannot be justified. Yet, he argues that they can be excused if we attend to two circumstances he brings to light and redescribes. The murders were “necessary” and the “result” or “outcome” was a form of order (authoritarian rule), and authoritarian rule is the stepping-stone to “republican” rule. This specific example is then redescribed as a general “form of excuse” applicable to the violent basis of all political orders, as well as to moments of reordering within established orders, in both The Prince and The Discourses. This vicious general form of excuse, of violence-necessity-result, has become the most prominent form of excuse in the violent rise and imperial expansion of the West. It was famously restated by Immanuel Kant, “Idea for a Universal History with a Cosmopolitan Intent,” and the “guarantee” section of “Perpetual Peace: A Philosophical Sketch,” and a long line of leading political theorists since (Kant 2001). It is a basic structure of legitimation of processes of development, modernization, and intervention today. The role of critical virtuous redescription is to expose this kind of vicious excuse and the resources to do so exist within the tradition. Violent means are not necessary to establish order. There are alternatives: nonviolent conflict resolution by contestation, dialogue (of reciprocal description), and negotiation. As Cicero explains, people move from disorder to good order by virtuous citizens becoming leaders by the example they set. Their exemplary, virtuous, and sociable conduct persuades and moves others to act sociably in response, generating virtuous cycles. They embody the civic virtues of living together, helping one another, listening and speaking virtuously, and settling disputes nonviolently. They become recognized as leaders in virtue of their exemplary behaviour. Classically, civic

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humanists learn this way of founding civilized life from Cicero’s On Invention (Cicero 1949). In addition, critical redescribers ask: what were the preexisting social relations that violent founders and deceiving excusers conceal by redescribing as “disorder,” “uncivilized,” “savage,” “war of all against all,” “failed states,” and “barbarism”? Moreover, the way of violence does not establish order or lead to a virtuous republic as a “result.” Violence begets violence. Machiavelli’s redescriptions of the “results” of state-founding violence are narrowly drawn to conceal the broader vicious effects of seizing and maintaining de facto power-over by violence. The violent seizure of power generates distrust, animosity, resentment, enmity, revenge, and counterviolence in response. And, guess what, the legitimating form of excuse for counterviolence against the regime is the mirror image of Machiavelli’s, as the Chorus in Greek and Roman tragedy reminds us. Machiavelli praises leaders for being able to win the wars their violence engenders, but ignores the escalating vicious cycles they perpetuate. The “real” results are the vicious cycles of war preparation, wars and counterwars, the slaughter of millions, destruction of civilizations, impoverishment, inequality, and environmental devastation, as Erasmus pointed out in The Complaint of Peace and as we can see all around us today (Erasmus 1946). Insofar as peaceful social relationships exist, they do so in spite of the violence Machiavelli excuses and praises. Consequently, Machiavelli’s type of vicious excuse (state violence-necessity-results) rests on a false and delusional description of the relation between means and ends. Vice does not result in virtue, but in more vice. Virtue leads to virtuous results. His “form of vicious excuse” is a lie that conceals the alternatives and the real, empirical relation between means and ends. This constitutive relation between means and ends is the third feature of civic humanist realism (Bondurant 1989). The second, equally influential form of vicious excuse Machiavelli introduces is that a ruler who uses violent means has to be ready to use vicious means at any time in order to hold on to power (violence, lying, false promises, deception, and other vices). And, simultaneously, he must also learn how to conceal his crimes by “appearing” to his citizens as the epitome of a virtuous ruler (merciful, trustworthy, humane, upright, and devout). That is, he must be a master of the arts of deception whenever necessary. He must become a liar and deceiver, a con man. This combination of vicious actions

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hidden by a public screen of false virtue (another vice) is, once again, excused because it is described as “necessary” to bring about the “result” of maintaining power in the examples from which he draws this general conclusion. If a ruler attempts to act virtuously in these circumstances, Machiavelli roundly states, he will come to ruin. The reason why a ruler must act in this doubly vicious way to succeed is that citizens are said to judge by “appearances,” not by the crimes committed behind the false appearance of virtue, and by “results” (order). As the prince engages in his vicious acts and dissimulates public virtue, the citizens are deceived and tend to act virtuously in response. This line of reasoning leads to Machiavelli’s infamous excuse for a whole litany of vicious paradoxes: covertly acting cruelly leads to be seen as kind, miserliness to generosity, and so on. In his most audacious redescription, he argues that the prince who employs vicious means in private and counterfeits the virtues in public is the master of “virtu”: the term he uses for the set of political virtues. This is his advice to those people whom he describes as being disposed to dominate others (princes, nobles, and courtiers like himself). He claims that they will be rewarded with “glory” by the majority who only want not to be dominated. The “scandal” of Machiavelli is that these two types of vicious excuse turned civic humanism upside down and almost destroyed it by the very technique civic humanist education is designed to prepare humans to guard against and overcome: namely, the technique of vicious redescription. As we have seen, the most critical and demanding practice of virtuous redescription is to expose what these vicious descriptions conceal and the delusional view of means and ends that underlie them. First, it is not true that citizens always judge by appearances (and results). Courageous citizens often engage publicly in the virtuous practice of critical redescription in exposing the crimes and obfuscating lies of their rulers. Moreover, rulers who follow vicious advice are often entrapped in their own litany of lies and deceptions. Their means overwhelm the ends, in Arendt’s astute redescription. Rather than breeding trust, endless violence and public dissimulation and deflection generate distrust, and insecurity. The long-term effects are the opposite of what Machiavelli describes. Citizens are influenced by the behaviour of the ruling classes and become accustomed to interacting aggressively and deceptively with each other. Civic humanists call these vicious-cycle corruptions.

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Second, there is nothing necessary about this doubly vicious mode of governance. The civic humanist alternative that is always available to overcome vice is to act virtuously and be the change, whether in family disputes or global conflict. There are three main ways this is put into practice. The first is the exemplary practices of public critical redescriptions of the parrhesiast and the Satyagrahi, and their willingness to uphold and dramatize this virtuous way of life even to the point of imprisonment and death. They show publicly that the two types of vicious excuses are inexcusable in case after case. The second is the exemplary practice of acting virtuously in everyday social relationships in the midst of the Machiavellian world of vicious conduct and counterconduct. Then, on these bases, nonviolent practices of contestation and noncooperation move those responsible into negotiations. The power of these obstructive and constructive programs, as Gandhi called them, is the transformative power of virtuous ways of life, even in the worst situations. Descriptions and redescriptions from differently situated participants disclose their persuasive ripple effects. Practising civic virtues is the autotelic way to overcome unjust rule and regenerate virtuous self-government (see my reply to Celikates). Third, the Achilles’ heel of Machiavelli’s vicious arguments is that he realizes and concedes that citizens judge their governors and each other by the virtuousness of their exemplary conduct: that is, if what they do enacts what they say and if both follow from the character of their ethos. This is why the ruler who thinks and acts viciously has to pretend to be virtuous in order to get what he wants: power, stability, and glory. This proves the indispensability of the basic premise of civic humanism that ethics is the basis of good self-government and good citizenship, as Owen explains (see Owen’s chapter 16). And, citizens tend to judge in this way for the very good empirical reason that the means are constitutive of the “result” because the result is always simply the description of the most recent enactment of the means. Here is how Foucault redescribed this ancient wisdom for our times: “It seems to me that the analysis of governmentality … must refer to an ethics of the subject defined by the relationships of self to self. Quite simply, this means that in the type of analysis I have been trying to advance for some time you can see that power relationships, governmentality, the government of the self and of others, and the relationship of self to self constitute a chain, a thread, and I think it

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is around these notions that we should be able to connect together the question of politics and the question of ethics” (2005, 252). For Machiavelli, hypocrisy is the tribute vice has to pay to virtue. But, this vicious strategy fails, both on its own and in virtue of critical redescription and contestation. Citizens are able to see through hypocritical virtue and circumscribed descriptions of outcomes to the vicious world his two types of vicious excuses produce and reproduce. And, they also know how to regenerate a virtuous way of life together by being the change. This is our situation today. We have created a world of vicious politics without ethics and its cascading effects. The results may very well destroy us and millions of other species just because many of us have been duped into believing and mimicking Machiavelli’s two types of vicious redescriptions of the field of government and citizenship. To paraphrase Havercroft in Captives of Sovereignty, we have become captives to Machiavelli’s excuses. But, thanks to what is left of the civic humanist tradition and similar traditions, such as those drawn on by the contributors to this volume, as well as to Havercroft’s work on critical redescription in this chapter and Captives of Sovereignty, we know how to think and act differently in order to transform the violent and unjust world that Machiavelli’s deceptive excuses are still used to legitimate. 18 Duncan Ivison: Civic Freedom in a Comparative Perspective Duncan Ivison has been producing cutting-edge critical work on liberty since I first met him as a student decades ago. This masterful chapter builds on his work and presents a perspicuous and insightful analysis of four influential senses of “liberty” or “freedom.” In discussing it I will use the term “freedom” because, grammatically, it is commonly and primarily predicated of action and agency (free persons and free acts), and thus is associated with the civic tradition. “Liberty,” in contrast, cannot be predicated of action or agency. It derives from Roman law and is primarily predicated of the legal status of a person or political order, of having certain liberties or being at liberty to do such and such, much like the grammar of “rights.” It is associated with the civil tradition. Of course, the terms are often used interchangeably but it is worth noting their different history and grammar. I agree with Ivison’s two main theses. First, the legitimacy of a political association should be treated as separable to some extent

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from the justice of the association and related more closely to the freedom of the subjects of the association to be active, participatory agents of it in challenging, negotiating, and transforming its injustices. As he notes, this is roughly what I mean by the practices of freedom having certain primacy in relation to justice: namely, as means of addressing injustices (see my reply to Gagnon). Second, this general kind of free agency, of practices of freedom in relations of power, is “a key element of any conception of the political.” I learned a great deal from the way Ivison compares my relational conception of individual and collective freedom with the other three senses of freedom; especially the contrasts he draws with Hobbes and with Philip Pettit’s freedom as nondomination. I had not seen these contrasts before. They are insightful and helpful. My contribution to his analysis is just to add one more contrast. Practices of civic freedom within the world of social (and ecological) relationships of all kinds in which we live and breathe, are grounded in the human capacities we have to be self-organizing and self-governing nonviolently. These capacities enable us to bring into being and carry on relationships of power-with each other as fellow citizens in everyday practices of participatory democracy. Even though they overlap, these capabilities and relationships contrast with the dominant relationships of power-over others as ruler and ruled, or governors and governed, in institutions of representative democracies (Tully 2011). In the civic tradition, power-with relationships can be brought into being, sustained, and conflicts resolved without recourse to violence. Cooperation is primary. Whereas, in the civil tradition from Hobbes through Kant and Marx to the present theorists of representative government, the use of violence to impose power over presumptively conflictual relationships and resolve disputes is taken as the basis of politics. Conflict and coercion are primary. In the civic tradition, the mutual trust and solidarity generated by participation in self-governing “citizen-citizen” relationships in everyday life is the ground of nonalienated forms of representative government accountable to the practices of freedom of citizens. Of course, citizens engage in contestatory practices of freedom that are not grounded in democratic communities of practice, and it is important to study them. However, studying civic practices of freedom that are so grounded, and comparing them with those that are not, is also an important dimension of public philosophy in a new key (see my reply to Taylor).

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no t e 1 See Nootens in this volume, chapter 8, 181.

r e f e re n ce s Allen, A. 2017. The End of Progress: Decolonizing the Normative Foundations of Critical Theory. New York: Columbia University Press. Arendt, H. 2005. “Socrates.” In The Promise of Politics, edited by Jerome Kohn, 5–39. New York: Schocken Books. Bondurant, J. 1989. The Conquest of Violence: The Gandhian Philosophy of Conflict. Princeton: Princeton University Press. Borrows, J. 2019. Law’s Indigenous Ethics: Revitalizing Canadian Constitutionalism. Toronto: University of Toronto Press. Capra, F., and P.L. Luisi. 2014. The Systems View of Life: A Unifying Vision. Cambridge: Cambridge University Press. Carpenter, M. 2017. Unarmed Resistance and the Palestinian Intifada. PhD dissertation, University of Victoria. Chenoweth, E., and M.J. Stephan. 2011. Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict. New York: Columbia University Press. Cicero. 1949. De Inventione, edited and translated by H.M. Hubbell. 1:2. London: Loeb. Dalton, D., ed. 1999. Mahatma Gandhi, Selected Political Writings. Indianapolis: Hackett. – 2012. Mahatma Gandhi: Nonviolent Power in Action. New York: Columbia University Press. Dupuis-Déri, F. 2013. Démocratie: Histoire politique d’un mot aux États-Unis et en France. Montréal: Lux. Engler, M., and P. Engler. 2016. This Is an Uprising: How Nonviolent Revolt Is Shaping the Twenty-first Century. New York: Nation Books. Erasmus. 1946. The Complaint of Peace, edited by W.J. Hirten. New York: Scholars’ Facsimiles and Reprints. – 2014. 1997. The Education of a Christian Prince, edited by L. Jardine. Translated by N.M. Cheshire and M.J. Heath. Cambridge: Cambridge University Press. Foucault, M. 1997. “The Ethics of the Concern for Self as a Practice of Freedom.” In Ethics, Subjectivity and Truth, edited by P. Rabinow, 281–304. New York: The New Press. – 2001. Fearless Speech, edited by J. Pearson. Los Angeles: Semiotexte.

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– 2005. The Hermeneutics of the Subject, edited by Frédéric Gros. New York: Palgrave Macmillan. Gandhi, M.K. 1961. Satyagraha: Nonviolent Resistance, edited by R. Kumarappa. Boston: Schocken Books. Gregg, R.B. 2018. The Power of Nonviolence, edited and introduced by James Tully. Cambridge: Cambridge University Press. Hardiman, D. 2003. Gandhi in His Time and Ours: The Global Legacy of His Ideas. New York: Columbia University Press. Havercroft, J. 2011. Captives of Sovereignty. Cambridge: Cambridge University Press. Heyes, C. 2000. Line Drawings: Defining Women through Feminist Practice. New York: Cornell University Press. – 2007. Self-Transformations: Foucault, Ethics and Normalized Bodies. New York: Oxford University Press. – ed. 2011. Critical Concepts: Philosophy and Gender. 4 volumes. London: Routledge. Kant, I. 2001. “Idea for A Universal History with a Cosmopolitan Intent,” and “Perpetual Peace: A Philosophical Sketch.” In Kant: Political Writings, edited by H.S. Reiss, 1–41, 93–130. Cambridge: Cambridge University Press. Kemmerer, R.W. 2013. Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge, and the Teaching of Plants. Minneapolis: Milkweed Publishing. King, M.L. Jr. 1958. “An Experiment in Love.” In The Essential Writings and Speeches of Martin Luther King Jr, edited by J.M. Washington, 16–20. San Francisco: Harper. – 2018. “Foreword.” In R.B. Gregg, The Power of Nonviolence, edited and introduced by James Tully, 13–14. Cambridge: Cambridge University Press. Laden, A. 2012. Reasoning: A Social Picture. Oxford: Oxford University Press. – 2014. “Engagement, Proposals, and the Key of Reasoning.” In Freedom and Democracy in an Imperial Context, edited by R. Nichols and J. Singh, 13–32. London: Routledge. Orosco, J-A. 2016. Cesar Chavez and the Common Sense of Nonviolence. Albuquerque: University of New Mexico Press. Ober, J. 2008. “The Original Meaning of ‘Democracy’: Capacity to Do Things, not Majority Rule.” Constellations 15 (1): 3–9. Ouziel. P. 2015. ‘Vamos Lentos Porque Vamos Lejos’: Towards a Dialogical Understanding of Spain’s 15 m s. PhD dissertation, University of Victoria.

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Paine, T. 1792. The Rights of Man, 242–3. New York. https://pdcrodas. webs.ull.es/anglo/PaineRightsOfMan.pdf Pope Francis. 2015. Encyclical on Climate Change & Inequality: On Care for Our Common Home. Introduction by N. Oreskes. London: Melville House. Regan, Paulette. 2018. “Resurgence and Reconciliation: Reflections on the trc Final Report.” In Reconciliation and Resurgence: IndigenousSettler Relations and Earth Teachings, edited by M. Asch, J. Borrows, and J. Tully, 209–28. Toronto: University of Toronto Press. Scalmer, S. 2011. Gandhi in the West: The Mahatma and the Rise of Radical Protest. Cambridge: Cambridge University Press. Sharp, G. 2010. From Dictatorship to Democracy: A Conceptual Framework for Liberation. Cambridge, ma : The Albert Einstein Institution. Shiva, V. 2005. Earth Democracy: Justice, Sustainability and Peace. Cambridge, ma : South End Press. Skinner, Q. 1996. Reason and Rhetoric in the Philosophy of Hobbes. Cambridge: Cambridge University Press. ssc. 1998. Supreme Court of Canada, Reference re Secession of Quebec, 1998 2 scr 217, 25506. http://scc-csc.lexum.com/scc-csc/scc-csc/en/ item/1643/index.do Thich Nhat Hanh. 2005. Calming the Fearful Mind: A Zen Response to Terrorism. Berkeley: Parallax Press. Trosper, R. 2009. Resilience, Reciprocity and Ecological Economics: Northwest Coast Sustainability. London: Routledge. Tully, J. 2000. The Unattained Yet Attainable Democracy: Canada and Quebec Face the New Century. Les Grandes Conférences Desjardins. McGill University: Programme d’études sur le Québec. – 2001. “Introduction.” In Multinational Democracies, edited by A-G. Gagnon and J. Tully, 1–33. Cambridge: Cambridge University Press. – 2008a. Public Philosophy in a New Key. Volume I. Cambridge University Press. – 2008b. Public Philosophy in a New Key. Volume II. Cambridge University Press. – 2009. “Federations, Communities and Their Transformations.” In Dominant Nationalism, Dominant Ethnicity: Identity, Federalism and Democracy, edited by A. Lecours and G. Nootens, 195–212. Brussels: Peter Lang. – 2011. “Violent Power-Over and Nonviolent Power-With: Hannah Arendt on Violence and Nonviolence.” The Workshop on Power and

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Reason. Goethe University, Frankfurt, Germany. 7 June.– 2013. “On the Global Multiplicity of Public Spheres: The Democratic Transformation of the Public Sphere?” In Beyond Habermas: Democracy, Knowledge, and the Public Sphere, edited by C.J. Emden and D. Midgley, 169–205. Brussels: Berghahn Books. – ed. 2014a. On Global Citizenship: James Tully in Dialogue. London: Bloomsbury. – 2014b. “Responses.” In Freedom and Democracy in an Imperial Context: Dialogues with James Tully, edited by R. Nichols and J. Singh, 223–73. London: Routledge. – 2016a. “Richard Gregg and the Power of Nonviolence.” J. Glenn and Ursula Glenn Memorial Lecture, Colorado College, Colorado Springs, 1 March. – 2016b. “On the Significance of Gandhi Today.” Perspectives on Gandhi’s Significance, Reed College, Portland, Oregon, 16 April. – 2016c. “On Gaia Citizenship.” The Annual Mastermind Lecture, University of Victoria, 20 April. – 2016d. “Deparochializing Political Theory and Beyond: A Dialogue Approach to Comparative Political Thought.” The Journal of World Philosophies 1 (1): 51–74. https://scholarworkks.iu.edu/iujournals/ index.php/jwp/issue/view/21. – 2018. “Reconciliation Here on Earth.” In Reconciliation and Resurgence: Indigenous-Settler Relations and Earth Teachings, edited by M. Asch, J. Borrows, and J. Tully, 83–129. Toronto: University of Toronto Press. – Forthcoming. “Trust, Mistrust and Distrust in Diverse Societies.” In Trust, Mistrust and Distrust in Political Theory and Practice: The Case of Diverse Societies, edited by D. Karmis. Montreal: McGill-Queen’s University Press. Tully, J., et al. 2016. “Editorial: Introducing Global Integral Constitutionalism.” Global Constitutionalism: Human Rights, Democracy, Law 5 (1): 1–15. Webber, J. 2015. The Constitution of Canada: A Contextual Analysis. London: Bloomsbury. – 2018. “The Delayed (and Qualified) Victory of the Meech Lake Accord: The Role of Constitutional Reform in Undermining and Restoring Intercommunal Trust.” In Trust, Distrust, and Mistrust in Multinational Democracies: Comparative Perspectives, edited by D. Karmis and F. Rocher, 166–209. Montreal and Kingston: McGill-Queen’s University Press. Wolff, R. 2012. Occupy the Economy: Challenging Capitalism. San Francisco: City Lights Books.

James Tully’s Biography

James Hamilton Tully, ba University of British Columbia (1974), PhD Cambridge University (1977), frsc , emeritus fellow of the Pierre Elliott Trudeau Foundation, is currently a distinguished professor emeritus and adjunct professor of political science and law, University of Victoria (since 2014). He was professor of political science and philosophy at McGill University, 1977–96, chair of philosophy department 1994–96, professor and chair, Department of Political Science, University of Victoria, 1996–2001, Henry N.R. Jackman Distinguished Professor in Philosophical Studies, Department of Philosophy, Political Science and Faculty of Law, University of Toronto, 2001–03, distinguished professor of political science, law, philosophy and Indigenous governance, University of Victoria, 2003–14. He received the Killam Prize for the humanities (2010), the C.B. Macpherson Prize for the best book in political theory in English or French by a Canadian author (2008–10) for his two volume Public Philosophy in a New Key, and the David H. Turpin Gold Medal for Career Achievement (2014). His main interests are the historical and contemporary approaches to political, ethical, and legal theory and philosophy, Indigenous philosophies and Indigenous-settler relationships, and human relationships with the living earth. His publications include Strange Multiplicity: Constitutionalism in an Age of Diversity (the inaugural John R. Seeley Lecture, University of Cambridge, 1994–95); On Global Citizenship: James Tully in Dialogue (2014); Robert Nichols and Jakeet Singh, eds., Freedom and Democracy in an Imperial Context: Dialogues with James Tully (2014); “Deparochializing Political Theory and Beyond:

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A Dialogue Approach to Comparative Political Thought,” Journal of World Philosophies 1:1 (2016); co-editor with Michael Asch and John Borrows, Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings (2018); editor and author of the introduction in Richard Gregg, The Power of Nonviolence (2018); with Monika Kirloskar-Steinbach, Sudipta Kaviraj, Charles Mills, Garrick Cooper, and Sor-Hoon Tan, Dialogue and Decolonization (forthcoming); co-editor and contributor, Democratic Multiplicity: Perceiving, Enacting and Integrating Democratic Diversity (2022); with Alexander Livingston, James Tully: To Think and Act Differently, Innovators of Political Theory Series (2022).

Contributors

taiaiake alfred is a Kahnawà:ke Mohawk philosopher, writer, governance consultant and political strategist. His work focuses on the design and development of the institutions of Indigenous governance, Indigenous resurgence and self-determination, the revitalization of Indigenous political systems, the impacts of environmental contamination on Indigenous communities and the restoration of ancestral land-based cultural practices. Taiaiake has served as an adviser on land and governance issues to his own and other Indigenous nations and organizations and has been an active supporter and participant in Indigenous governance and resistance movements since 1987. As a young man, he served as an infantryman in the United States Marine Corps. He earned his bachelor’s degree in history from Concordia University and his PhD in government from Cornell University. He founded the University of Victoria’s Indigenous Governance Program, is the author of three acclaimed scholarly books, has been awarded a Canada Research Chair, received Canada’s highest Indigenous honour, a National Aboriginal Achievement/Indspire Award, and was recognized with the Native American Journalists Association award for best column writing. After twenty-five years teaching in universities, he left academia in 2019 to devote himself to working with Indigenous communities to empower their nationhood and activate their right to self-determination. He currently divides his time between his home community of Kahnawà:ke, outside of Montreal and Saanich Nation territory, near Victoria, bc . He is an avid outdoorsman and photographer, and is the father of three sons, who are members of the Wet’suwet’en Nation.

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john borrows ba , ma, jd, llm (Toronto), PhD (Osgoode Hall Law School), lld (Hons., Dalhousie, York, Simon Fraser University, Queen’s, and the Law Society of Ontario), dhl (Toronto), frsc , OC, is the Canada Research Chair in Indigenous Law at the University of Victoria’s Faculty of Law in British Columbia (on leave), and Loveland Chair in Indigenous Law at the University of Toronto Law School. His publications include, Recovering Canada; The Resurgence of Indigenous Law (Donald Smiley Award for best book in Canadian Political Science, 2002), Canada’s Indigenous Constitution (Canadian Law and Society Best Book Award, 2011), Drawing Out Law: A Spirit’s Guide (2010), Freedom and Indigenous Constitutionalism (Donald Smiley Award for best book in Canadian Political Science, 2016), The Right Relationship (with Michael Coyle, ed.), Resurgence and Reconciliation (with Michael Asch, Jim Tully, eds.), Law’s Indigenous Ethics (2020 Best Subsequent Book Award from Native American and Indigenous Studies Association, 2020; W. Wesley Pue Best book award from the Canadian Law and Society Association). He is the 2017 Killam Prize winner in social sciences and the 2019 Molson Prize winner from the Canada Council for the Arts, the 2020 Governor General’s Innovation Award, and the 2021 Canadian Bar Association President’s Award winner. He was appointed to Officer of the Order of Canada in 2020. John is a member of the Chippewa of the Nawash First Nation in Ontario, Canada.

robin celikates is a professor of social philosophy at Free University Berlin and codirector of the Center for Humanities and Social Change Berlin. His work mainly focuses on the intersection between critical theory and political protest and on issues of migration and racism. Among his publications are Critique as Social Practice (Rowman & Littlefield, 2018) and Analyzing Ideology (co-edited with Sally Haslanger and Jason Stanley, Oxford University Press, forthcoming). He is an editor of the journal Critical Times: Interventions in Global Critical Theory (Duke University Press) and colead of the interdisciplinary research project Transforming Solidarities.

simone chambers is a professor of political science at the University of California, Irvine. She received her ba from McGill University and her ma and PhD from Columbia University. Her primary areas of scholarship include democratic theory, ethics, secularism, rhetoric, civility, and the public sphere. She has published numerous

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books and articles in journals such as Political Theory, Journal of Political Philosophy, Ethics and Global Politics, and Critical Review. She is presently working on a project entitled The State of Contemporary Democratic Theory.

alain-g. gagnon is Canada Research Chair in Quebec and Canadian Studies at the Université du Québec à Montréal (uqam ). He is also the founding director of the Research Group on Plurinational Societes (grsp ) which he has led since its establishment in 1994. He has published several books on the management of complex societies and stateless nations. His book entitled Minority Nations in the Age of Uncertainty: New Paths to National Emancipation and Empowerment (University of Toronto Press, 2014) has been translated in eighteen languages. He leads several book series and sits on many international editorial committees. He has received several recognitions among which include the 2016 Governor General’s International Award for Canadian Studies, the 2020 Mildred A. Schwartz Lifetime Achievement Award, and he is the president-elect of the Royal Society of Canada.

jonanthan havercroft is an associate professor in the Department of Politics and International Relations at the University of Southampton. His current research focuses on the normative justifications of violence and the political thought of Stanley Cavell. His essay, “Why Is There No Just Riot Theory?” won the 2020 Brian Barry Prize for best essay in political science. He is currently a British Academy Mid-Career Fellow working on a project called “Just and Unjust Riots: A Normative Analysis of Militant Protest.” He is the author of Captives of Sovereignty (Cambridge University Press, 2011) and the forthcoming book, Stanley Cavell’s Democratic Perfectionism. He has published peer reviewed articles in the British Journal of Political Science, Political Theory, International Studies Quarterly, and Constellations. He is the lead editor of the journal Global Constitutionalism.

cressida j. heyes holds an Henry Marshall Tory Chair and is a professor of political science and philosophy at the University of Alberta. She is the author of Anaesthetics of Existence: Essays on Experience at the Edge (Duke University Press, 2020), which won the American Political Science Association’s David Easton Book

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Award in 2020, as well as Self-Transformations: Foucault, Ethics, and Normalized Bodies (Oxford University Press, 2007), and Line Drawings: Defining Women through Feminist Practice (Cornell University Press, 2000). She is currently working on a popular book about sleep, rest, gender, and sexuality under neoliberalism called Sleep is the New Sex. More at: cressidaheyes.com.

duncan ivison is a professor of political philosophy at the University of Sydney, where he is also currently deputy vice chancellor (research). He is the author of The Self at Liberty (Cornell University Press, 1997), Postcolonial Liberalism (Cambridge University Press, 2002), Rights (Acumen, 2008), Can Liberal States Accommodate Indigenous Peoples? (Polity, 2020) and the editor of Political Theory and the Rights of Indigenous Peoples (Cambridge University Press, 2000) and The Ashgate Companion to Multiculturalism (Ashgate, 2010). dimitrios karmis is an associate professor in the School of Political Studies at the University of Ottawa. From 2014 to 2021, he was vice president and then president of the Association of Professors of the University of Ottawa (apuo ), a union representing 1,300 full-time professors and librarians. His research interests include citizenship, diversity, federalism, dialogic democracy, listening, critical university studies, and the history of political thought. His publications include articles in Studies in Social Justice, The Tocqueville Review, Ethnic and Racial Studies, Cahiers de l’idiotie, Politique et Sociétés, Canadian Journal of Political Science, and Handbook of Patriotism (Springer, 2020). He has also co-edited a number of volumes and journal issues, including Trust, Distrust, and Mistrust in Multinational Democracies (McGill-Queen’s University Press, 2018), Défaire / Refaire l’université (Cahiers de l’idiotie, 2015), Ceci n’est pas une idée politique (Presses de l’Université Laval, 2013), and Theories of Federalism (Palgrave, 2005). dominique leydet is a professor of philosophy and director of the Centre de recherche interdisciplinaire sur la diversité et la démocratie (cridaq ) at the Université du Québec à Montréal (uqam ). Her research interests are in the areas of democratic theory and the philosophy of law. In democratic theory, her work focuses on public deliberation, representation and parliamentary

Contributors

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institutions. In the philosophy of law, her main interest is in legal pluralism, in the context of the relationship between the Canadian state and Indigenous peoples. Her publications include articles in the European Journal of Political Theory, University of Toronto Law Journal, Journal of Political Philosophy and Recherches amérindiennes au Québec.

jocelyn maclure is a full professor of philosophy at McGill University, where he holds the Stephen A. Jarislowsky Chair on Human Nature and Technology. His publications include Secularism and Freedom of Conscience (Havard University Press, 2011, co-authored with Charles Taylor), Retrouver la raison. Essais de philosophie publique (Québec Amériques) and recent articles on metaethical constructivism, hate speech, and the ethics of artificial intelligence. He served as an expert analyst for the Bouchard-Taylor Commission on cultural and religious accommodations, and is the current president of Quebec Ethics in Science and Technology Commission.

michael murphy is a professor in the political science program at the University of Northern British Columbia, where from 2006 to 2015 he held the Canada Research Chair in Comparative Indigenous-State Relations. Michael’s research is currently focused on Indigenous rights and governance, ethics and public affairs, and the philosophical and political linkages between freedom and well-being. His recent publications include “Self-Determination as a Collective Capability: The Case of Indigenous Peoples” (Journal of Human Development and Capabilities, 2014); “Multiculturalism” (Oxford Bibliographies, 2018); “Self-Determination Theory: Political and Psychological,” in David McGrane and Neil Hibbert (eds), Contemporary Canadian Political Theory (University of Toronto Press, 2019); and “Indigenous Peoples and the Struggle for Self-Determination: A Relational Approach” (Canadian Journal of Human Rights, 2019).

professor val napoleon , Indigenous Peoples’ Counsel, llb , PhD is the Law Foundation Chair of Indigenous Justice and Governance, cofounder of 2018 Juris Doctor/Juris Indigenarium Doctor, a dual degree program in Indigenous legal orders and Canadian common law at the Faculty of Law, University of Victoria, and the founding director of the Indigenous Law Research Unit also

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Contributors

at the University of Victoria. She is Cree from Saulteau First Nation and an adopted member of the Gitanyow [northern Gitxsan]. Her research areas are Indigenous legal traditions and methodologies (e.g., subject areas include land, water, governance and democracy, gender and human rights, gender, dispute resolution, and intellectual property, and families and children), Indigenous legal theories, Indigenous feminisms, legal pluralism, Indigenous democracy, and Indigenous intellectual property. She is currently the acting dean of the Faculty of Law, University of Victoria where she teaches common property law and Gitxsan land and property law intersocietally in the jid /jd .

geneviève nootens is a professor of political science at Université du Québec à Chicoutimi. She is the author of Désenclaver la démocratie: Des Huguenots à la Paix des Braves (Québec Amérique, 2004), Souveraineté démocratique, justice et mondialisation (Liber, 2010), of Popular Sovereignty in the West: Polities, Contention, and Ideas (Routledge, 2013), and of Constituent Power Beyond the State: Democratic Agency in Polycentric Polities (Routledge, 2021). She has co-edited Contemporary Majority Nationalisms with A-G. Gagnon and A. Lecours (McGill-Queen’s, 2011), Dominant Nationalism, Dominant Ethnicity: Identity, Federalism and Democracy with A. Lecours (Peter Lang, 2009), and Le cosmopolitisme: Enjeux et débats contemporains with Ryoa Chung (Presses de l’Université de Montréal, 2010). She has published papers in Nations and Nationalism, Contemporary Political Theory, and Global Constitutionalism. She also has chapters in several edited books, including National Cultural Autonomy and Its Contemporary Critics (Routledge, 2005), After the Nation? Critical Reflections on Post-Nationalism (Palgrave, 2010), Political Autonomy and Divided Societies: Imagining Democratic Alternatives in Complex Settings (Palgrave Mcmillan, 2012), and Minorities and Territory: Rethinking Autonomy as Strategy (Oxford University Press, 2015).

david owen is a professor of social and political philosophy at the University of Southampton and has been visiting professor at the J.W. Goethe University in Frankfurt and the Institute for Advanced Study in Princeton. He has published widely across analytic and continental traditions in practical philosophy. His most recent book is What Do We Owe to Refugees? (Polity, 2020). He is currently writing a book on Nietzsche and cowriting a book on gender, health, and forced displacement.

Contributors

485

helder de schutter is a professor of social and political philosophy at Katholieke Universiteit Leuven where he currently serves as vice dean of research at the Institute of Philosophy. He works on the moral foundations of language rights, federalism, and borders. He has held visiting positions at Princeton University in 2006 and 2013–14 and at the University of Oxford (Nuffield College) in 2008–09. Previous publications have appeared in journals and books including the British Journal of Political Science, Inquiry, The Journal of Political Philosophy, Journal of Applied Philosophy, and The Cambridge Companion to Language Policy. In 2014 he was a recipient of the Brian Barry Prize for excellence in political science.

charles taylor is a professor emeritus of philosophy at McGill University. His books include Sources of the Self (Harvard University Press, 1989), Modern Social Imaginaries (Duke University Press, 2004), A Secular Age (Harvard University Press, 2007), and The Language Animal: The Full Shape of the Human Linguistic Capacity (Harvard University Press, 2016). He is the recipient, among other awards, of the Kyoto Prize in Philosophy, the Templeton Prize, and the Berggruen Prize.

michael temelini is the author of Wittgenstein and the Study of Politics (University of Toronto Press, 2015), and a part-time professor in the School of Political Studies, University of Ottawa. Dr Temelini has published in the areas of political theory, Canadian politics, and public policy.

stephen tierney frse is a professor of constitutional theory in the School of Law, University of Edinburgh and a visiting professor and distinguished fellow at Notre Dame Law School. He is the author of Constitutional Referendums: The Theory and Practice of Republican Deliberation (Oxford University Press, 2012), and Constitutional Law and National Pluralism (Oxford University Press, 2004). He serves as legal adviser to the House of Lords Constitution Committee.

daniel m. weinstock is the Katharine A. Pearson Chair in the Faculty of Law and the Department of Philosophy at McGill University. He also held a James McGill Professorship at McGill from 2013 to 2019. He was the director of McGill’s Institute for Health and

486

Contributors

Social Policy from 2013 to 2020. Before moving to McGill in 2012, he was a professor in the Department of Philosophy of the Université de Montréal, where from 2000 to 2012 he held both Tier 1 and Tier 2 Canada Research Chairs. He was the founding director of the Centre de recherche en éthique de l’Université de Montréal. He has held visiting appointments at Université Lyon III, at the Australian National University, at Ritsumeikan University (Kyoto, Japan), at Stanford University, and at Pompeu Fabra University, in Barcelona, Spain. His research interests have spanned widely across a wide range of topics in contemporary moral and political philosophy – from the just management of ethnocultural and religious diversity in modern liberal democracies, to state policy with respect to children, families, and educational institutions.

antje wiener holds the Chair of Political Science, especially global governance, at the University of Hamburg. She is a by-fellow of Hughes Hall, Cambridge, a fellow of the Academy of Social Sciences, and a member of the Academia Europea. And she was also awarded an Opus Magnum Fellowship of the Volkswagen Foundation in 2015. Her research centres on international relations theory especially norm contestation research. Her work has been published widely including in the European Journal of International Relations, Review of International Studies, Journal of European Policy Studies, and Theory and Society. Among her book publications are four monographs: ‘European’ Citizenship Practice: Building Institutions of a Non-State (Westview, 1998), The Invisible Constitution of Politics: Contested Norms and International Encounters (Cambridge University Press, 2008), A Theory of Contestation (Springer, 2014), and Contestation and Constitution of Norms in Global International Relations (Cambridge University Press, 2018) for which she was awarded the Best Book Prize of the International Law Section of the International Studies Association in 2020.

Index

Accessing Justice and Reconciliation Project (ajr Project), 238–41, 247 Aeschylus, 415–16, 466; Eumenides, 415–16 Afghanistan, 88, 93; and the Loya Jirga, 88, 93 African National Congress, 106, 110; Umkhonto we Sizwe, 110 Akwesasne, industrial contamination of, 17, 222–6; Mohawk response to, 223–4, 228, 231, 445, 447 Alcoa Corporation, 222, 224 Alcoff, Linda Martín, 48, 53 Alfred, Taiaiake, 17, 110, 228, 231, 332, 444–7, 448, 449, 461–2 Allen, Amy, 444 American Philosophical Association (apa ), 43, 48; Committee on the Status of Women, 43, 56; and experience of women in philosophy, 48 Anishnaabe, traditions of, 448 Arab Spring movement, 89, 92, 105, 108, 111, 426 Arel, Dominique, 332

Arendt, Hannah, 54–5, 57, 58, 113, 356, 385, 464, 469; on judgment, 54–5, 57 Aristotle, 28, 81, 416, 465; and democracy, 90, 91 Aseniwuche Winewak Nation (awn ), 246–8, 249–50; Youth Council, 246–8 Austen, Jane, 358 Austin, J.L., 370–1, 381–7, 465; and justification, excuses, 381–5, 465; “A Plea for Excuses,” 370, 381 Australia, 284, 287, 294; Indigenous health in, 268 Balibar, Étienne, 108 Barroso, José Manuel, 159 Beausoleil, Emily, 9, 12 Belgium, 283, 319, 326–7, 336 Bickford, Susan, 11–12 Black Lives Matter movement, 104, 111 Boas, Franz, 445 Bodin, Jean, 81, 296, 309n6 Bohm, David, 13; On Dialogue, 13 Borrows, John, 3, 231, 448

488

Index

Bosnia and Herzegovina, 284 Bouazizi, Mohamed, 108 Bouchard, Lucien, 461 Bourassa, Robert, 461 brics (Brazil, Russia, India, China, South Africa), 158 Brunée, Jutte, 458 Burbank, Victor, 268 Burgess, Michael, 283, 285, 309n4 Cameron, David, 159 Camus, Albert, 331, 459, 462 Canada, 96, 284, 287, 294, 449; character of, 332–4; federalism in, 333–46, 455–63, 460; reconciliation with Indigenous peoples in, 17, 110, 211–26, 238–40, 246–8, 444–7; and relationship with Quebec, 332, 333–46, 455–63. See also Canada, constitution of; Canada, Indigenous peoples in Canada, constitution of, 283, 304–5, 332–46, 457–61; and the Charlottetown Accord, 331, 340, 345, 348n4, 457; and Charter of Rights and Freedoms, 337, 340, 343; and Constitutional Act of 1982, 333, 335–9, 340, 343–4, 457–8; and Meech Lake Accord, 331, 340, 457; and Quebec as distinct society, 336–8, 339, 342–3, 346; and Quebec referenda, 337, 340, 344, 348n4, 457, 462; and Quebec selfdetermination, 338, 457–62; and the Secession Reference opinion, 305, 335, 339–44. See also Canada, Indigenous peoples in

Canada, Indigenous peoples in, 13–14, 17, 110, 449; and damage caused by residential schools, 27–8, 214–15, 235; and Delagamuukw v. British Columbia (1997), 13; and housing-related debt, 241–6; and reconciliation, resurgence, 17, 110, 211–26, 238–40, 246–8, 444–7; relationship of to Canadian state, 13–14, 110, 211–26, 228, 232–3, 332, 334–5, 337, 342, 346–7, 438, 460–2; and R. v. Van der Peet (1996), 13. See also reconciliation, with Indigenous peoples; resurgence, of Indigenous peoples Canadian Charter of Rights and Freedoms, 202, 337, 340, 343 capitalism: capitalist modernity, 199–200, 204–6; capitalist structures, 199–200; capitalist subjects, 204 Capra, Fritz, 464 Carter, Ian, 407 Castoriadis, Cornelius, 112; La Brèche, 112 Cavell, Stanley, 50, 353, 364, 381 Celikates, Robin, 16, 426–33, 437, 447, 455 Chambers, Simone, 16, 118n7, 454; and “reasonable citizenship,” 16 Chandler, Michael, 269 Chavez, Cesar, 428, 432 Choudhry, Sujit, 337 Christiano, Thomas, 34–5 Christie, Gordon, 240 Cicero, 79, 83n3, 467–8; On Invention, 468

Index citizenship, 7, 94–100, 107–9, 124, 127–31, 133–42, 146–64, 302–3, 361–6; and citizen efficacy, 94–9, 420–6; civil vs civic, 16, 125, 135–42, 196–7, 361–5, 421–6, 433–8, 442–4, 448; cooperative vs deliberative, 198, 201; and global governance, 146–64, 439; Indigenous conceptions of, 243–6, 248–50, 447–8; limits, self-limitation in, 198–204, 206; reasonable, 16, 193–206; and rights, liberties, 136–40; transnational, 318–27; unbound, 16, 146–7, 148, 161, 163. See also civic freedom civic freedom, 11, 18, 68, 72, 148–64, 300–1, 363, 366–7, 463–5, 471–2; and contestation, 146, 147–8, 179–81; defined, 8, 301, 408, 418; ethics in, 430; and federalism, 300–1, 308; Indigenous exercise of, 228–9, 258, 446, 447–8; as political practice, 173–4, 176–7, 179–82, 184, 185n6, 187n17, 408, 427, 430 civil disobedience, 103–17, 131, 137, 205, 426–33; dynamics, repertoire of collective action, 111–16; and meaning of “civil,” 105–11; nonviolence in, 82, 105, 106–11, 143n6, 206, 426–33, 438; violence in, 106–11, 143n6 civility, 109, 227–50; and Indigenous self-determination, 230 classe-assé, 132–4, 143n2 Clinton, Bill, 52

489

Cohen, G.A., 32, 38n10 Cohen, Jean, 151–2, 157, 162, 199 colonialism and colonization: and connection/disconnection from land, 218–19, 223; and laws of force, 240; and relationships with Indigenous peoples, 13, 17, 27–8, 50, 211–26, 228, 230, 232–3, 259. See also reconciliation, with Indigenous peoples Connolly, William, 58; and “deep pluralism,” 58 Constant, Benjamin, 126; “The Liberties of the Ancients compared to that of the Moderns,” 126 Constitution Act, 1867, 235, 337, 339 Constitutional Act of 1982, 336–7 constitutionalism, 10, 136–7, 147–8, 161–3, 164n2, 178–84, 196, 202–4, 206, 281–308; and constitutional theory, 289–5, 308 contestation, 123–4, 127, 133–4, 137–41, 146–8, 149, 151–63, 164n3, 438–9; cycle of, 153, 153–4, 157; and freedom, 127, 138–9; modes of, 148; and normativity, 152–7, 454; theory of, 150, 152. See also civil disobedience Cook, Katsi, 222 corporations, transnational (tnc s), 421–2, 425 Coulthard, Glen Sean, 110 Cree: decision-making groups in, 237; legal order of, 246–8, 249 Deci, Edward, 262–3, 265, 266, 270, 272n15

490

Index

della Porta, Donatella, 175, 176, 185n4, 186n11 democracy, 87–101, 115, 123–42, 171–84; and civil vs civic modes of citizenship, 16, 135–42, 420; conditions of, 93–4; constitutional, 124, 128, 141–2, 164n2, 173, 184, 435, 444, 458; and national identity, 94–9; and normativity, 180–3, 314–15; representative and direct, 16, 123–35, 138–9, 141–2, 173, 176–7, 185n5, 420, 423–6; restrictive vs extensive, 16, 125, 126–35, 138–9, 141–2, 173, 177–8, 185n7; Schumpterian conception of, 87, 89, 90–1, 420, 424; telic conception of, 87, 91–2, 94–6, 101n2, 420; trajectories of, 87–9, 91–2, 99–100. See also citizenship; federalism; sovereignty De Schutter, Helder, 18, 453–5 dialogue, genuine, 11, 19n5, 64–83; aspects of, 66–8; importance of education in, 65–6, 70, 75–83; monological methods as obstacle to, 72–5; and speaking, listening, disagreeing, 67–8, 70, 75–6, 82–3; virtues of, 75–80 Dotson, Kristie, 50–1, 59 Douglas, Violet, 216 Douzinas, Costas, 114 Dryzek, John, 124 Dunn, Adam, 359, 363 École de la montagne rouge, 133 Elazar, Daniel, 286, 309n5 Emden, Christian, 143n7, 436

Erasmus, 468; The Complaint of Peace, 468 Erdogan, Recep Tayyip, 106 Estlund, David, 34 European Parliament, 322, 323–4 European Union (eu ), 18, 159–60, 313–28, 421, 451, 453–5; democratic analysis of, 320–4; and demos, demoi, demoicracy, 18, 320–7; and European identity, 326–8; and the Kadi case, 157; supranational vs transnational nature of, 322–4, 326–7 exemplarity, in public philosophy, 353–67; ideals as exemplars, 353, 354–7, 463–5; theorizing through exemplars, 353, 361–5 federalism, 281–308, 451–2; and civic freedom, 281, 282, 300–1; conceptual framework of, 292–5; and constitutional theory, 289– 92; critiques of, 300–7; definition of, 284–9, 292–3, 308; and normativity, 288–92; proliferation of, 282–3, 285, 308; and sovereignty, 303–5. See also federalism, structural framework of federalism, structural framework of, 295–300, 301–7; and authority, 295, 296, 303–5; and design, 295, 297–8, 305–6; and dynamics, 295, 298–300, 306–7; and purpose, principles, 295, 297, 305; and subjects, 295–6, 302–3 Fermaille, 133 First Nations Land Management Act (fnlma ), 243, 244–5 Forst, R., 354–5

Index Foucault, Michel, 51, 188n26, 355–7, 385, 396, 405–9, 410n8, 430, 459, 470; Discipline and Punish, 51; History of Sexuality, 433 France, 93–6, 319, 327; and bainlieues uprisings (2005), 107; and French Revolution, 93–4, 95, 113, 126; and Paris uprising (May 1968), 112 Francis, Pope, 449, 464; Encyclical on Climate Change and Inequality, 449 freedom, 384, 385–7, 393–401, 405–9, 430, 456, 459–61, 471–2; agonistic, 11, 113, 126–7, 356–7, 365, 385–6; critical redescription as practice of, 465–71; of movement, 157–60; of opinion, expression, 128–9; of selfdetermination, 256–71, 449–50. See also civic freedom; liberty Fuller, Lon, 237 Gagnon, Alain-G., 18, 455–63; Minority Nations in the Age of Uncertainty, 346 Gago, Veronica, 113 Gandhi, Mahatma, 81, 104, 106, 143n6, 197, 347, 425–7, 428–32, 447, 462, 470 Gendered Conference Campaign, 48 General Motors, 222, 224 Germany, 107, 283, 287, 324, 326, 443; tradition of federalism in, 283 Geuss, Raymond, 370–1 global governance, 16, 146–64, 174–5; agency in, 146–7, 148– 50, 154–7, 161–3; and civic

491

freedoms, 146–64; contestation in, 151–7; legitimacy gaps in, 148, 149, 149, 151–4, 160, 162; normativity in, 147, 148–9, 149, 150, 155–64; and sovereignty, 151–2, 157, 160, 161–2, 439–41 Global Justice Movement, 116 Groupe de recherche sur les sociétés plurinationales (grsp ), 331–2, 345, 347, 461 Habermas, Jürgen, 16, 188n26, 197, 198–206, 285, 316, 394, 436, 442–4; Between Facts and Norms, 124; and capitalist modernization, 199–200, 204–6; on citizenship, 16, 193, 198–206; on democracy, 124, 129, 131, 139 Hardt, Michael, 113 Harper, Stephen, 215 Haudenasaunee, treaty relationships of, 333, 447 Havercroft, Jonathan, 6, 18, 465–71; Captives of Sovereignty, 471; and justification, excuses, 369–90, 466–71 health, social determinants of, 260–4, 266, 267–9; and autonomy, 260–4, 268–9; and social hierarchy, 260–2, 268–9; and stress, 261–2, 266 Heath, Joseph, 30 Heyes, Cressida, 15, 418, 448, 449; Critical Concepts: Philosophy and Gender, 45, 418; Line Drawings, 418; SelfTransformations, 418 Hobbes, Thomas, 81, 151, 296, 309n6, 395, 452, 472;

492

Index

Behemoth, 401, 403; De Cive, 401, 405; Leviathan, 400–4; on liberty, 398–406 humanism, 77–80, 394–5; civic, 419, 465, 467–71 Hunt, George, 445 Ibsen, Henrik, 50, 386; A Doll’s House, 50, 386 Idle No More, 233 incivility, in Indigenous communities, 227–34, 249–50; and self-determination, 230; silence concerning, 230–1, 233; types of, 232–4 India, 92, 106, 283 Indian Act, 232, 235, 244; as Canadian “civilizing apparatus,” 232–3, 235 Indigenous peoples, 9–10, 17, 181, 211–26, 227–50, 256–71, 438; civility of crucial to rebuilding, 227–34, 239–41, 249, 447–9; and damage of colonialism, 27–8, 211–26, 230, 232–3, 235, 240, 249, 259, 269–71; and gendered oppression, violence, 230; identity connected to land, 212– 26; legal traditions, orders of, 227, 229, 231, 234–50, 460; and Raven cycle stories, 445–7. See also Canada, Indigenous peoples of; Indigenous peoples, political self-determination of; reconciliation, with Indigenous peoples; resurgence, of Indigenous peoples Indigenous peoples, political self-determination of, 28, 140, 230, 232, 270, 272n18, 458; and

connection to health, well-being, 256–60, 264–6, 267–70, 272n17, 448 Indignados movement, 123 International Commission on Intervention and States Sovereignty (iciss ), 158 International Court of Justice, 154 international relations theory, 146–7, 148, 149, 149–50, 151, 163, 165n7; and agency, 146–7, 148; liberal vs constructivist, 151; and normativity, 155–6 Iraq, 284 Islamic State (is ), 159 Italy, 283, 326; and beni communi movement, 205 Ivison, Duncan, 18, 449, 471–2 Johnson, Pierre-Marc, 461 Juncker, Claude, 159 Kahn, Paul, 158, 161, 162, 166n19 Kahnawake, 214; and building of St Lawrence Seaway, 215–18 Kant, Immanuel, 315, 355, 357, 370–1, 397, 467, 472; “Idea for a Universal History,” 467; “Perpetual Peace,” 467 Karmis, Dimitrios, 347, 456, 461 Kavanaugh, Brett, 52–3 Kemmerer, Robin Wall, 447, 464 King, Martin Luther, Jr, 81, 104, 106, 111, 118n9, 143n6, 197, 428, 431–2, 438 King, Thomas, 227, 234–5, 237–8, 250; and “Dead Indians, Live Indians, and Legal Indians,” 231, 234–5, 237–8, 250; The Inconvenient Indian, 234

Index Kitselas First Nation, 242, 249–50; and housing-related debt, 243, 245–6 Kitsumkalum First Nation, 242–3, 249–50; and housing-related debt, 245 Kropotkin, Peter, 424, 464 Kymlicka, Will, 175, 322, 324 Laden, Anthony, 354, 358, 417, 444 Laforest, Guy, 332, 341, 343, 456, 457, 461 Lalonde, Christopher, 269 Latini, Brunetto, 78–9 Lefort, Claude, 112; La Brèche, 112 Leiter, Brian, 44, 53–4, 59n2; “The Philosophical Gourmet Report,” 44, 53, 59n2 Lévesque, René, 333, 347, 462; and the “beau risque,” 347, 462–3 Levy, Jacob, 34 Leydet, Dominique, 16, 433–8, 440, 443, 456, 461 liberty, 393–409, 471–2; and agency, 394–5; corporeal, 399– 401, 405–6; distinguished from “freedom,” 362, 471; and law, 401–5, 408; and legitimacy, 393– 4; as nondomination, 398–401, 405, 408–9, 472; as a political value, 31, 126, 393–409. See also civic freedom; freedom listening, value of in public philosophy, 3–15, 358–61, 452, 465; vocabulary of, 4, 8, 9–11 Locke, John, 200, 295, 395 Loughlin, Martin, 296 Ludlow, Peter, 43

493

Macdonald, Rod, 458 Machiavelli, Niccolo, 18, 369–90, 465–71; The Discourses, 18, 369–80, 388–9, 467; and justification, excuses, 370–80; The Prince, 18, 369–80, 387–8, 467 Maclure, Jocelyn, 15, 188n23, 318, 417–18, 445, 456, 461 Madison, James, 32, 283, 307 Maille à part, 133 Mandela, Nelson, 106, 110; and the Rivonia Trial, 110 Manin, Bernard, 128–9, 135 Mann, Bonnie, 53–5, 58; “Three White Men Walk into a Bar: Philosophy’s Pluralism,” 53 Marcuse, Herbert, 107 Marmot, Michael, 260–1 Marshall, T.H., 137, 147; “Citizenship and Social Class,” 137 Martin, Paul, Jr, 218, 457 Martin, Paul, Sr, 218 Marx, Karl, 130, 205, 424, 472 McGinn, Colin, 43, 52, 59n1, 60n7 Menke, C., 355 Mères en colère et solidaires, 133 Migrant Solidarity Network, 112 Miller, David, 175, 328n3 Mitchell, Ceci, 223 Mohawk, 17, 214–15, 217–18, 221–2; response of to contamination of Akwesasne, 223–4, 228, 231, 445, 447 Morin, Edgar, 112; La Brèche, 112 Mulroney, Brian, 457 Murphy, Mike, 17, 449–50; and Indigenous well-being, 17, 449–50

494

Index

Nader, Laura, 230 Napoleon, Val, 17, 434, 439, 447, 447–9, 461–2 Negri, Antonio, 113 Ni Una Menos movement, 104, 111 Nietzsche, Friedrich, 355–6, 366 Noël, Alain, 345 nonviolence, 82, 105, 106–11, 118n9, 143n6, 206, 423, 426–33, 438, 447–8; moral, principled, 428–31; pragmatic, strategic, unarmed, 427–8; and Satyagraha, 428–32, 452, 466, 470 Nootens, Geneviève, 16, 439–44, 461 Norman, Howard, 238 normative theory, 25–37; and norm types, 149 Obama, Barack, 96 Occupy movement, 104, 109, 111, 123, 205 Ouziel, Pablo, 432 Owen, David, 6, 7–8, 18, 419, 463–5, 470 P!nk Bloc, 133 Paine, Thomas, 81, 424 Park, Susan, 156 Pettit, Philip, 395–9, 401–2, 405, 408, 472 philosophy, feminist, 15, 41–2, 44–6, 55–6, 58–9, 418; dismissal of, 45–6, 418 philosophy, moral, 37n6, 77–8, 80, 381–7

philosophy, traditional discipline of, 3–4, 15, 41–59; culture of justification in, 50–3, 57–8; disciplinary concerns in, 42–4, 48–9, 52–3; pluralism in, 42, 45, 51–2, 53–9; racism and exclusion in, 43, 46–8; reinforcement of privilege in, 43, 47; sexism, sexual harassment in, 43–6, 48–9, 52, 56, 59n3 Philosophy in an Inclusive Key (piksi ), 47 Piazza, G., 176 Plato: The Apology, 417–18, 424 “Pluralist’s Guide: A Philosopher’s Guide to Graduate Programs,” 48, 53–5 Pogge, Thomas, 44; “I Had an Affair with my Hero,” 44 political theory, mainstream normative, 25–37, 70–1, 74–5, 80–1, 130–1, 313–28, 419; based on platonic knowledge, ideals, 315–17; elitist, monological character of, 73–4, 80–1; ideal and nonideal theory, 31–7, 38n9; moral role of, 316–23; and reflective equilibrium, 27–31, 37n1, 37n3, 188n23 Porter, Tommy, 223 public philosophy, 3–19; dialogic nature of, 3–15, 19n1, 64–83, 176, 300, 315–16, 319–20, 416, 465–6; distinguished from political theory, 290, 316; and diversity, 9–15; normative principle of, 147; and “pedagogical relationships of reciprocal elucidation,” 81, 103, 148, 155,

Index 163; as practice of freedom, 18, 256–71, 356–7, 385–6; role of listening in, 3–15, 358–61, 452, 465. See also exemplarity, in public philosophy; Tully, James, public philosophy of Putnam, Robert, 97 Québec solidaire, 134 Quebec, student strikes in (2012), 16, 99, 123, 124, 132–5, 141–2, 143n6, 433, 436; and the classe-assé, 132–3; public support for, 133–4 Rains, John, 234, 250 Rawls, John, 15, 26–32, 36, 37n6–7, 38n11, 129, 285, 316, 394, 417, 444; and nonideal political theory, 31–2; and reflective equilibrium, 27–9, 188n23, 417; A Theory of Justice, 29, 31, 37n7 reasonableness, in political philosophy, 193–206, 441–4; in a constitutional context, 196–7; distinguished from rationality, 193–4; as a substantive, procedural limit, 193–5; and unreasonableness, 194–5, 206 reconciliation, with Indigenous peoples, 17, 110, 211–26, 444–7, 461; colonial mentality underlying, 211–15, 218–19, 221, 226; contrasted with resurgence, 221– 6; and disconnection from land, 212–26; failure of, 219–20; and reconnection, 17, 218–19, 221, 224; and residential schools,

495

214–15. See also resurgence, of Indigenous peoples Regan, Paulette, 445 Reid, Bill, 12, 81; The Spirit of Haida Gwaii, 12 Resistanbul movement, 112 resurgence, of Indigenous peoples, 17, 123, 221–6, 231, 444–7, 461; and community accountability, 225; contrasted with reconciliation, 221–2, 225–6; criteria for success of, 221–2; land-centred, 221–5 Rocher, François, 332 Rorty, Richard, 30, 38n8 Rosanvallon, Pierre, 100 Rousseau, Jean-Jacques, 94, 156, 395–6, 404; and political conception of liberty, 397 Royal Commission on Aboriginal Peoples (rcap ), 9, 212, 220–1, 271n11, 444, 449; report of (1996), 220–1 Royster, Jacqueline Jones, 5 Rundle, Kirsten, 237 Russell, Peter, 336, 347, 458 Russia, 89, 93 Ryan, Claude, 332, 333, 341–3, 458; and Constitutional Act of 1982, 341; and response to Tully’s “Revelation and recognition in multinational societies,” 341–2 Ryan, Richard, 262–3, 265, 266, 270, 272n15 St Lawrence Seaway, building of, 215–18, 222; and harm to Indigenous peoples, 216–18, 222, 228

496

Index

Sanders, Bernie, 423 Sartre, Jean-Paul, 113 Schattschneider, E.E., 333; The Semi-Sovereign People, 333 Scott, Kyle, 285 self-determination theory, 260, 262–4, 270; and autonomy, 262–4, 268; and competence, 263–4, 266, 268; and relatedness, 262–4, 266, 268 Sen, Amartya, 197, 198 Seneca, 77, 80, 83n2; Letters from a Stoic, 77 Seymour, Michel, 333, 341, 457 Sharp, Gene, 428 Shaw, Jo, 458 Simeon, Richard, 333, 345 Skinner, Quentin, 8, 10, 66, 78–80, 83n3, 356, 359–60, 377–8, 398–401, 419, 465; Foundations of Modern Political Thought, 78; Reason and Rhetoric in the Philosophy of Hobbes, 79 Smith, Andrea, 230 Snuneymuxw First Nation, 438; and Trans Mountain pipeline protest, 438 South Africa, 284 sovereignty, 151–2, 157–9, 296–8, 303–5, 402–4; Indigenous, 110, 347; popular, 95, 158, 160–3, 173, 175–9, 183–4, 203–4, 296, 297, 302, 421, 439–41; ultranational, 422. See also Canada: and relationship with Quebec Spain, 283, 308n1, 319, 326–7; and Catalonia, 335; and 15 M movement, 423, 432, 443

Spinner-Halev, Jeff, 393; and legacy of “enduring injustices,” 393 Stepan, Alfred, 344; “Toward a New Comparative Analysis of Democracy and Federalism,” 344 Supreme Court of Canada, 304–5, 338–44, 457–8, 460–1; and Delagamuukw v. British Columbia (1997), 13; and R. v. Van der Peet (1996), 13; and the Secession Reference opinion, 305, 457–9 Supreme Court of the United States, 303–4; and McCulloch v. Maryland, 303–4 Tarrow, Sidney, 175–6, 186n11 Tarver, Erin, 46 Taylor, Charles, 11, 15–16, 41, 271n2, 334, 385, 419, 420–6, 456, 458, 461–2; on democracy, 87– 101, 227, 246, 420–6 Taylor, Paul, 48, 53 Temelini, Michael, 5, 15, 419, 449, 466; Wittgenstein and the Study of Politics, 419 Thich, Nhat Hanh, 428, 432 Tierney, Stephen, 17–18, 426, 439, 451–2, 454–5, 461; and the federal idea, 281, 287–8, 299, 300–7, 308 Tizya, Rosalee, 212–13 Toope, Stephen, 458 Trosper, Ronald, 447 Trudeau, Pierre Elliott, 307, 333 Truth and Reconciliation Commission of Canada (trc ), 212, 239, 445; Education Day (Edmonton, Alberta), 246–8

Index Tsimshian First Nations: and citizenship, 243–6; legal order of, 242–5, 249 Tully, James: on the European Union, 313–27; and the grsp , 332; on Indigenous peoples’ self-determination, 8, 9–10, 13–14, 17, 28, 140, 256–60, 264–6, 268–9, 270–1, 272n18, 334–5; on Jürgen Habermas, 198–206; on mainstream normative political theory, 25–6, 28, 74–5, 130–1, 315–18; and Royal Commission on Aboriginal Peoples (rcap ), 9, 71, 444; as a teacher, 25, 41–2, 65, 68–70, 82, 192, 200, 331, 370, 385, 419, 441; on “walking the talk,” 197–8, 205. See also Tully, James, on citizenship; Tully, James, public philosophy of Tully, James, book-length works of: A Discourse on Property, 65–6; On Global Citizenship, 3, 436; Public Philosophy in a New Key (ppnk ), 3, 25, 26, 49, 65, 125, 135, 147, 148, 150, 155, 163, 328n1, 338, 353, 361, 433–5, 440–1, 463; Strange Multiplicity, 3, 9–10, 25, 66, 81, 162, 302, 320, 333, 353, 360–1, 363, 365 Tully, James, essay-length works of: “The Agonistic Freedom of Citizens,” 126; “Deparochializing Political Theory and Beyond,” 14; “Diversity’s Gambit Declined,” 66; “A New Kind of Europe,” 75; “On local and global citizenship,” 135; “Political Philosophy as a

497

Critical Activity,” 25, 34, 49; “Rediscovering America,” 66; “Revelation and recognition in multinational societies,” 341–2, 344, 348n5; “The Unattained yet Attainable Democracy,” 343, 457; “The Unfreedom of the Moderns,” 162; “Wittgenstein and Political Philosophy,” 25 Tully, James, on citizenship, 103, 128, 146–64, 237, 245–6, 248, 302–3, 361–4; civil vs civic modes of, 16, 125, 135–7, 139– 41, 142, 196–7, 361–5, 367n2, 421–6, 433–8, 440–1, 442–4, 448, 472; and “citizenization,” 129, 362, 455, 462; and civility, 229; and contestation, 147–8, 179–80; cooperative, 201, 205; and types of civic activity, 233 Tully, James, public philosophy of: and civic freedom, 11, 72, 172–4, 177, 179–81, 258, 334, 363, 385–6, 418; and constitutionalism, 10, 136, 161–3, 164n2, 181, 306, 320, 334, 346; and contestation, 106, 128, 131, 137, 140– 1, 143n6, 147–8, 172, 179–80, 206; and democracy, 28, 125, 126–31, 135, 136, 142, 172–4, 176–84, 417–18, 423–4; dialogic nature of, 3–15, 19n1, 19n5, 64–83, 103, 148, 155, 163, 176, 300, 315–16, 319–20, 416, 438, 452, 465–6; and diversity, pluralism, 9–15, 162, 181–3, 271, 313, 331, 332–5; and exemplarity, 16, 18, 353–67; and federalism, 17–18, 281–308; and listening,

498

Index

3–15, 358–61, 452, 465; and political self-determination, 257–60, 264–7; practical nature of, 281–308. See also Tully, James, on citizenship Turkey, 107, 319; and Gezi uprising (2013), 16, 104–6, 108, 109, 111–12, 115–16, 426 Turner, Dale, 13 United Kingdom, 95–6, 159–60, 173–4, 186n10, 188n21, 283, 308n1, 326–7, 423; and colonialism, 287; democratization and nationalization in, 173–4; and London uprisings (2011), 107; national identity in, 95, 327, 328n3; and secession from European Union, 319 United Nations (un ), 150, 151–2, 156, 158–9, 283–4, 460; Charter, 150, 151, 159, 161; Security Council (unsc ), 157, 158 United States, 97, 106, 107, 284, 287, 294, 324, 449; and American Revolution, 93; democracy vs republicanism in, 89, 90; as a federation, 303–4, 309n9; and 2016 election, 423, 449 University of Colorado Boulder, 43, 44, 56 University of Victoria, 444, 450; Indigenous Governance Graduate Program, 444 Van Parijs, Philippe, 318 Vetterlein, Antje, 156

violence, 106–11, 143n6; as reassertion of political agency, 108; state portrayals of, 107–8 Walker, Neil, 458 Wanyandi, Carol, 247 Watts, Ronald, 286 Webber, Jeremy, 333, 458, 459–50; Reimagining Canada, 333 Weinstock, Daniel, 15, 37n7, 188n23, 417–18 Welsh, Jennifer, 152 What Is It Like to Be a Woman in Philosophy? (blog), 43, 49, 59n3; What We’re Doing about What It’s Like (website), 48 White, Doug, 438 White, Jonathan, 35–6; and “rational reconstruction,” 35 Wiener, Antje, 16, 438–9, 451, 454, 458, 460 Wikileaks, 107 Wilkerson, William, 48, 53 Wilkinson, Richard, 260–1, 266 Williams, Bernard, 409 Wittgenstein, Ludwig, 8, 10, 55, 71, 73, 77, 193, 355–6, 385, 396, 419 Woehrling, José, 332 Wollstonecraft, Mary, 28; A Vindication of the Rights of Women, 28 Ypi, Lea, 35–6; and “rational reconstruction,” 35 Yugoslavia, Socialist Federal Republic of (sfry ), 283 Zerilli, Linda, 58