Abstracts
This paper examines the relationships between the logic of compromise-making and the constitutional framework of modern democracies. It sets forth the normative pattern of rational and reasonable compromises and envisages the basic structure of constitutional democracies as a system of communicative interactions between political, social and cultural institutions. Such institutional interactions organize a collective decision-making where compromise plays a central role. One criterion for the evaluation of democratic states is whether their institutions make it possible to reach rational and reasonable compromises.
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Notes
- 1.
See Habermas J (1996). Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Cambridge: Polity, pp. 140–141.
- 2.
See Bellamy R (1999). Liberalism and Pluralism. Towards a Politics of Compromise. London and New York: Routledge and Social Science Information, June 2004, vol. 43, n°2, London, Thousand Oaks, CA and New Delhi: SAGE Publications, 2004, special issue dedicated to the concept of compromise, with contributions by Arnsperger C, Dupret B, Ferrié J-N, Kuty O, Leydet D, Nachi M, Papillaud C, Picavet E, Rol C, Salazar P-J (2009). See also Eloge du compromis. Pour une nouvelle pratique démocratique. In Nachi M and de Nanteuil M (eds) (2009). Louvain-la-Neuve: Academia-Bruylant.
- 3.
See Carens JH (1979). “Compromise in Politics”. In Pennock JR and Chapman JW (eds) Compromise in Ethics, Law and Politics. New York: New York University Press.
- 4.
On this point see Perelman C and Olbrechts-Tyteca L (1988). Traité de l’argumentation. Bruxelles : Editions de l’Université de Bruxelles, p. 553.
- 5.
See Kant’s Critique of Judgment, § 40.
- 6.
Arnsperger and Picavet, “More than a modus vivendi, less than an overlapping consensus: towards a political theory of social compromise”, in Social Science Information, op. cit., p. 168.
- 7.
On compromise based on self-restraint, see Arnsperger and Picavet, op. cit., pp. 167–204.
- 8.
Richard Bellamy is right in saying: “A compromise is not a synthesis, that all regard as superior to their previous position. Compromisers must endorse a package many of the components of which they would reject if taken in isolation” (op. cit, p. 102). Nevertheless, such a settling of interests leaves the possibility of a consensus on the values (or interpretation of values) justifying the compromise.
- 9.
I am drawing on Eric Weil’s theory of the constitutional state, see Weil E (1996). Philosophie politique. Paris: Vrin.
- 10.
See Constant B (1980). “De la liberté des Anciens comparée à celle des Modernes”, in De la liberté chez les Modernes. Paris: Hachette, coll. Pluriel, p. 491–515. English version in Constant B (1988). Political Writings, translated and edited by Biancamaria Fontana. New York: Cambridge University Press.
- 11.
See Rosanvallon P (2006, 2008). La Contre-démocratie. Paris: Seuil, and La Légitimité démocratique. Paris: Seuil.
- 12.
On this point see Weil E (1982). “Vertu du dialogue”. In Philosophie et Réalité. Paris: Beauchesne.
- 13.
See Ana Dimiskovska’s contribution to this volume: “The Logical Structure of Legal Argumentation: Dialogue or ‘Trialogue’?”.
- 14.
For instance, the Constitution of the USA is a compromise between federal and state sovereignty. Although interpretations of the constitution and subsequent political practices have considerably evolved over time, the compromise remains fundamental. The Missouri compromise of 1820 was supposed to settle the dispute between free and slave states by drawing a geographic line between territories where slavery would be prohibited and territories where it would not (Maine and Missouri were admitted in the Union at the same time, Maine as a free state and Missouri as a slave state, but slavery was banned in the rest of the Louisiana Purchase north of latitude 36°30’). Such a compromise was a mixture of the “gains and losses” and “strategic” types of compromise and it soon proved fragile. Both examples may be seen as instances (the one positive, the other negative) of the fact that rational compromises are fully rational if, and only if, they are at the same time reasonable.
- 15.
See David Rasmussen’s contribution to this volume: “Public Reason and Constitutional Interpretation”.
- 16.
There may be a consensus among the majority of citizens who support the principles, while passive toleration of these principles by the diverse minorities is a mere compromise.
- 17.
Prohibition of violence and equal participation in the discussion are necessary preconditions for the achievement of a fair compromise. However, such preconditions do not preclude any kind of constraint. In international politics, for example, the parties may be compelled to political negotiation by a third party that prevents the use of violence (international peace-keeping force, etc.). In any case, prohibition of violence does not mean absence of power relations. A given balance of forces between the parties – and between the parties and a third party when the compromise is “brokered” – plays a major role in the result.
- 18.
See Rasmussen D (2004). “Defending reasonability”. Philosophy & Social Criticism, vol. 30, No. 5–6. London, Thousand Oaks, CA and New Delhi: SAGE Publications, pp. 525–540.
- 19.
The referenda held in France and the Netherlands over the European Constitution (May 2005) are perfect examples. The Constitution was meant as a compromise between nation-state independency and federalist principles, between social solidarity and free market economy. Most of the debate focused on the question: is this a good or a bad compromise?
- 20.
Analyzing the failure of the 1992 Charlottetown Accord on constitutional reforms in Canada, Dominique Leydet writes: “If the negotiators know in advance and work with the assumption that any negotiated agreement will be submitted to a national referendum, then this awareness will discipline their bargaining and direct them to an agreement more likely to stand the test of public debate”. See Leydet D (2004). “Compromise and Public Debate in Processes of Constitutional Reform: the Canadian Case”. In Social Science Information, vol. 43, p. 245.
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Canivez, P. (2010). Democracy and Compromise. In: Gabbay, D., Canivez, P., Rahman, S., Thiercelin, A. (eds) Approaches to Legal Rationality. Logic, Epistemology, and the Unity of Science, vol 20. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9588-6_6
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