Democracy And The Public Sphere

One of the major concerns in the past couple of years in Britain, and particularly since the attacks of July, has been the terms on which a balance, if indeed that is the most helpful analogy, between liberty and security should be struck. Whatever the prime minister may think, one incident does not, by itself, change the rules of the game, and so, understandably, the terms in which the debate has been articulated and the problems which it has raised are familiar to political theorists at least since the late middle ages. In particular, the perenially divisive and problematic question of the distinction between the public and the private sphere has been raised, having vital bearing as it does on the issue of whether adherence to some set of particularistic - or indeed universal - values is required for full membership of a polity, for example, or whether and to what extent the state can legitimately imprison and impose penalties on the basis of evidence unavailable to the public or without normal due process, and so on. The thinking is here that there is a public realm, to which full citizens ought to be accorded entry, beyond which collective power cannot legitimately be exercised as to do so would unjustifiably impinge on the private lives of those citizens, often seen as a sphere of freedom. The distinction bears on the policy issues mentioned above because, for example, it articulates the extent to which the values we live by are a matter for public regulation and places the limits on the use of state power, especially in the absence of public justification.

One of the most vexed issues in the complex surrounding the public-private distinction, indeed one which could in certain contexts, without excessive distortion, be substituted for the problem of the public-private distinction, is that of the distinction between the right and the good. I want to suggest that whilst there clearly is something to the distinction, it is, at least as understood as relevant to the public-private distinction, essentially unstable, and that anything more than a minimal political programme is going to involve fairly substantive commitments in the sphere of the good. This issue, along with the public-private distinction more generally, has traditionally been of especial difficulty for liberals, attached as they are to the idea, because of the centrality of the idea of consent to their political theory, that the public sphere and so the right needs to be based on commitment to values, if based on commitment to values at all, that all can endorse. This is because unless all can endorse the values on which the public sphere is based, can consent to the set of ends that structure their polity, they have been unjustifiably coerced by that polity when it applies the laws based on that set of ends to them. Liberalism is thus faced with a dilemma where they must attempt to balance the concern for inclusivity - that all can endorse the values in question - with the concern for the strength or thickness of those values.

One way to think about this is to contrast the liberalism of Mill's 'On Liberty' with the 'Liberalism of Fear' championed by Judith Shklar. Mill makes no attempt to moderate his ethical, or private, liberalism in putting forward his political programme, making claims which rather than being inclusive are distinctively confrontational: most notoriously that offence is no harm, for example, but also that the pursuit of individuality is the end of human life. Shklar, on the other hand, advocates a liberalism which presents itself as a programme for the avoidance of fear: the fear of arbitrary arrest, imprisonment or punishment, of religious persecution, and of poverty, starvation or ill-health. Unlike Mill, she aims to justify liberalism in terms of values which are as widely accepted as possible: unlike the cultivation of a life as a work of art, the ideal Mill seemed to be aspiring to in his political programme, Shklar invokes the near-universal values of not being physical harmed, having shelter, food and clean water and so on. Shklar's programme, which she persuasively argues represents a significant strand in liberal thought through time, aiming at the removal of fear by the prevention of certain outcomes, gets us quite a long way. Minimal levels of healthcare free at the point of demand, shelter for the homeless, unemployment insurance, old age pensions and the like can I think fairly clearly be extracted from it.

However, it is hardly an comprehensive guide. It has little to say about the structure or burdens of the programmes which would ensure safety from fear, which could hardly be thought to exhaust the possibilities of politics anyway. It is a minimal programme, which places clear limits on outcomes which can be regarded as acceptable, but has little to say beyond that, and would have little problem, one would have thought, with traditional liberal concerns like the separation of church and state so long as no one had excessive burdens placed on their freedom of conscience. Mill's political thought, on the other hand, goes far beyond that, with, at least in principle, a definitive answer to any question one could choose to ask of it. Yet that is precisely the problem with Mill's political thought, that by leaving nothing untouched, it fails to respect the ideas of consent and of the public sphere as it demands so much of all whom it claims to apply to. If a citizen living under a Millian regime does not accept that they ought to cultivate their individuality, a liberal must surely regard them as being coerced by a society which structures itself around that principle. The very strength of Mill's liberalism compromises it, just as the weakness of Shklar's prevents it from being fully liberal.

This suggests that a principled distinction between the right and the good will be difficult to draw, any attempt will have to avoid the twin difficulties of not providing enough to structure and give a guide to public debate and the public sphere and that of over-specifying so as to harden the public sphere and exclude some of those who ought properly to be able to access it. Even Shklar, after all, has to draw on values which some could and do reject in their private lives, blurring the distinction between the right and the good. The problem seems to be connected to the idea of the public sphere itself, for the difficulty that Mill-style liberalisms encounter is that they, in their insistence on a strongly liberal ethic, ignore the liberties essential to the shape of the public sphere - those associated with the thought that living under a set of social institutions, including but not exclusively those of the law, you did not or would not consent to is a serious loss of freedom. That surely entails that one ought to be able to reject liberal principles under certain circumstances, or else the concept of consent begins to dwindle into nothingness.

The suggestion, however, that the public sphere is structured by the concept of consent, of course must imply some self-examination, for surely just as it must be a matter of consent, idealised or otherwise, what state and social institutions are legitimate, it must also be a matter of consent what consent itself is. That reflexivity is what makes it impossible to satisfactorily articulate a sharp version of the distinctions between the right and the good and the public and the private: the public requires the power to set its own limits, which prevents those limits being specified precisely. This means that, in the sense of mapping onto the public-private distinction, the distinction between the right and the good cannot be fixed, although we can still look to minimal theories like Shklar's to provide a hard boundary beyond which state power cannot go, since the absence of a precise line does not destroy separation.

The implications of this understanding of the structure of the public sphere and politics more generally where it is seen as to do with the regulation of that area of life are significant. It not only undermines the possibility of an attempt at outright demarcation of the public sphere, like Mill's Harm Principle, but has the potential to fairly radically alter the way that political philosophy is done. For one thing, it suggests that any political theory purporting to have settled all the issues in that subject is likely to be wrong, and, relatedly, will tend to change the criteria by which such theories are judged away from one of truth and towards ones of legitimacy and reasonableness, towards standards generated by understandings of the processes by which informed consent is arrived at. That, however, as rather large topic, is probably best left for another day. More specifically, the implications for the debates on the balance between security and liberty are, for liberals, double-edged : on one hand, it legitimates, as a part of democratic discourse, the expression of highly partisan ethical views, but it makes vague the boundary beyond which the state cannot step. Because of that shifting ground, and the public dsicourses which will temporarily fix it, liberals must be prepared to engage in perhaps emotive ethical arguments, justifying the right to do wrong and to live outside of the gaze of the state and indeed society at large, and not only engage, but perhaps sometimes lose.