Zizek, S., El Resto Indivisible (Sobre Schelling), Godot, Bs. Ar., 2016
Zizek, S., El Resto Indivisible (Sobre Schelling), Godot, Bs. Ar., 2016
Lead Authors:2 Gianpaolo Baiocchi, Colin Crouch, Donatella della Porta, Sheila Jasanoff,
Michael Keating, Erika Kraemer-Mbula, Dina Kiwan, Abby Peterson, Kenneth M. Roberts,
Philippe C. Schmitter, Alberto Vannucci, Antoine Vauchez, Asanga Welikala.
Summary
The promise of modernization after the Second World War was that economic growth,
equality, the rule of law and democracy would proceed together. In many ways, this has
happened. Yet many of the promises of social progress developed after WWII have been
undermined by internal tensions within the democratic project, as well as by social and
economic trends. While stating the challenges that these trends have posed for democratic
institutions and actors, we also look at the responses (both proposals and practices) that have
emerged in order to address those challenges. In doing this, we note that the very conception
of democracy as liberal democracy (based on delegation and majority voting) is under stress
as neoliberalism has attacked those very intermediary institutions (parties, unions, voluntary
associations) that had been at the basis of the development of the welfare state and democratic
capitalism.
We start by noting the growth in inequality, which means that formal democracy is
capacity to influence public decision making with mutual convertibility of economic and
1
Affiliations: Scuola Normale Superiore; University of Aberdeen.
2
Affiliations: Scuola Normale Superiore; University of Aberdeen; University of Oxford; University of
Pisa; University of Edinburgh; American University of Beirut; University of Johannesburg; Cornell University;
New York University; University of Paris; Harvard University ; University of Gothenburg; European University
Institute.
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political resources. The spiral of inequality and corporate political power is reflected in a
growing legitimacy crisis in old and new democracies. Liberalism, which promised the
separation between the state and the market, has evolved into neoliberalism, , based on the
domination of the corporation, exacerbated by privatization and de-regulation. This has raised
private profit criteria about considerations of the broader public good and in many cases
encouraged corruption. The ensuing inefficiency and lack of transparency foster institutional
Challenges are also related to the fact that democracy has been mainly defined in a
national mode, with the demos identified as the nation. Economic rescaling produced by
which requires a (yet unachieved) rethinking of the basis for democracy but also of welfare
and its foundation in both identities and institutions. In the North and (with different
characteristics) in the South of the globe, movement of capital and of people pose challenges
of national pluralism and its constitutional recognition, questioning key concepts such as the
definition of political community and popular sovereignty and the . relationship between
human rights and citizenship. Citizenship is more appropriately considered as related not to
fixed institutions but rather as ‘acts of citizenships’ requiring subjectivity and agency and
The main actors in democratic development have been affected by these challenges.
Political parties are an important element in democracy but they have become an interest in
their own right. A crisis of representation has emerged from growing social detachment of
political parties from social cleavages as well as of elected representatives from the citizens.
This had most dramatic effects on the Left, when left-wing parties have supported neoliberal
reforms. Relying on expertise for the development of progressive policies is not a solution
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privatization of knowledge-making, opacity of knowledge production and persistence of
institutions have been opened to ‘ordinary citizens’ but, within neoliberalism, they are often
While citizens often call for direct participation, existing experiments rarely empower the
citizens.
While the judiciary has been seen as a surrogate for democratic participation for
marginalized minority groups, its capacity for rights enforcement is limited by the expansion
(in particular at international level) of a lex mercatoria as well as the use of courts in order to
protect economic freedom from democratic dynamics. The rule of law has also been
subverted by unequal access to the law and by the influence of money while the judiciary also
has its own particular interests and corporate lawyers assume a brokerage function in
globalized markets. On the other hand, in the control of political dissent, the state, rather than
being weakened from globalization, increases its reach and power. The ‘war on terror’ has
been used to challenge the rule of law by states of emergency as well as authoritarian drifts
On the other hand, progressive social movements have addressed growing inequalities
fragmentation of the potential social bases, the need to build a new collective identity as well
as to establish channels of access to power. This has resulted from, but also triggered, the
reduction in citizens’ entitlements and the weakening of the social contract upon which social
progress depends.
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1. Introduction
Our concern in this chapter is democracy and the rule of law as conditions for
social progress. Democracy is at its most basic, rule by the people This encompasses
universal suffrage, free competitive elections, alternation in government and the absence
beenl extended to other sites, including the workplace and the community, and even
theinternational order. The idea of democracy has been expanded beyond representative
has to protect against arbitrary government and the tyranny of majorities; to protect
safeguard against corruption. This is where the rule of law comes in. This requires an
impartial legal system, free from political coercion, and the equality of all citizens before
it. In the past some conceptions of the rule of law were quite conservative, focused on
defending existing privileges and property rights against the spread of democracy and
demands for equality. The political left in some countries (such as the United Kingdom)
were wary of charters of rights and legal limitations on the scope of government, fearing
the rule of lawyers and of private interests. This opposition has largely disappeared. Yet
in our day, there remains the danger that the law will be captured by private power
holders.
During the second half of the twentieth century, there was a widely-held belief
that democracy and equality before the law were a part of a broader process of
modernization that carried the promise of global progress across a set of complementary
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spheres. Continuous economic growth under the impetus of technology would eradicate
poverty and raise living standards. Social inequality would be reduced, bringing equality
of opportunity and greater substantive equality. Rising living standards and greater
equality were seen as conducive to the extension and deepening of democracy, allowing
citizens to participate fully. Civil rights would extend to embrace the entire population on
a equal basis. The nation-state provided both the demos and the institutional frame for
democracy, and the model was adopted widely by peoples liberated from colonial
domination. These elements would reinforce each other as prosperity would enhance
oppression of minorities and abuse of power were limited by its combination with
liberalism in liberal democracy and by the rule of law itself. Political parties mobilized
models of economic management competed during the first half of the twentieth century,
growth while curbing excesses of economic power. Remaining issues concerned the exact
balance between the market and state, dividing pure market liberalism from social
democracy. States possessed sufficient policy, regulatory and fiscal capacity to translate
Our paradox arises from the circumstance that many of these promises have been
met but they have been undermined by their own internal conflicts or by other social and
economic trends. There were successive waves of democratization during the twentieth
century, affecting most parts of the world. Legal orders have been strengthened and
separated from politics in many states. Formally equal civil rights were extended without
regard to class, ethnicity or gender. National welfare bargains within states secured a
strengthening of social benefits and the extension of education, health and social benefits
5
to larger sections of the population. Although these took place to very different extents
depending on the country and region, there was hope for general progress.
In the early twenty-first century, we see less room for optimism. The formal apparatus of
democracy and rule of law is intact across much of the world, but the conditions for their
economic inequality across much of the democratic world, which limits the ability of all
to participate on equal terms. In the late twentieth century, there was a lot of talk about
It is now apparent that globalization is a stretched concept, which means many different
things. Rather than an ineluctable force, it is often the work of nation states themselves
as they seek new scales of action to regain control of social and economic change. We
define globalization as a new division of labour at the world level, eroding national
markets and national systems of regulation. Its agents are states, corporations seeking
new sites of production and markets, and international institutions. What is interesting
for our purposes is not the broad concept but the form that globalization takes.
In its early twentieth century form, it has opened up a new class division, in some
cases obliterating older cleavages including those from the industrial revolution. In a
familiar form, it may pitch multinational corporations against nation states as the former
engage in regulatory arbitrage and demand packages of taxes and services in exchange
for investment. It reach is often even deeper, as it often pitches individuals with high
levels of education, mobile skills and international connections, against those who lack
these.
power can be transformed into political power. This takes numerous forms, including the
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purchase of political machinery required in modern elections; the privileged power of
large business in lobbying government, given their ability to relocate beyond the nation-
Law similarly is formally open to all, but has become expensive, giving
advantages to the rich and to corporations, which can claim some of the rights of persons.
International trade deals can give corporations a privileged status against democratic
governments, protected by a private form of arbitration outside the regular courts. Equal
civil rights may be protected formally but social and economic rights may not. There is
and transmitting voter preferences into government, have become detached from society
while at the same time monopolizing state power. The old parties have become self-
This has opened the way for the rise of new political movements offering
simplistic solutions to the problems of rising inequality and global change, often
appealing both to the beneficiaries and losers from change. Populism is a broad term,
used differently in different historical and political context but our concern here is with
the rise of nationalist populism on the political right. We define national populisms by a
number of key features (Werner Muller, 2016): that the ‘people’ has a single will and
interest; that it is being frustrated by special interests and ‘elites’; that opposition is
supreme leader. This is the basis for Viktor Orbán’s call illiberal democracy. Other
national populists include Trump, Duterte, Modi and Le Pen. In the United Kingdom, a
52 per cent vote in the Brexit referendum is taken as a a wide-ranging mandate for a
specific manner of withdrawing from the European Union, with as little parliamentary
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intervention as possible; judges ruling that parliament must be involved re lampooned by
Minorities and migrants are made scapegoats for the consequences of social and
economic inequality. Populist nationalism can serve to induce working class electors to
vote against their own economic interests, in the name of the national interest and against
foreigners and elites. Not the least of ironies is that many of the politicians railing against
the domination of ‘elites’ are themselves insiders of the old ruling circles and moneyed
classes.
All this is facilitated by the decline of the old print and broadcast media and the
cases, truth itself has become a commodity, to be purchased or constructed at will. Social
media are sometimes seen as emancipating, allowing citizens to communicate freely but
they are also unencumbered by regulation of standards. The phrase ‘post-truth’ politics
has come into fashion, referring to the disappearance of shared empirical or epistemic
knowledge upon which rival policy proposals can be debated. Donald Trump’s
spokeswoman can, without irony, talk of ‘alternative facts’, while the blatant untruth that
the UK pays £350 million a week to the EU, which could be diverted to the National
The nation-state, traditionally the main object of political competition, is less able
to manage the process of social and economic change, so that democracy is detached
from substantive policy capacity; hence governments of different political hues end up
with similar policy outcomes. Faced with intractable social and economic challenges,
states have sought various forms of automatic pilot that would guarantee success while
relieving pressures on themselves. Hence, for example, the fashion for monetary policy
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as the master instrument of macro-economic stability, to be assured by giving central
banks operational independence. Direct state intervention in many fields has been
public goals. Yet the regulatory state has itself become a massive reservoir of power, not
always subject to democratic control and operating according to its own norms. This
At the same time as the state loses its capacity to produce social and economic
change, its repressive capacity is enhanced in the face of real or constructed threats of
disorder and terrorism. As the political agenda shifts from social progress to security,
The rule of law is also vulnerable to internal interests. Like political parties, the
judiciary itself may become a class with its own vested interests, providing an obstacle to
democratic change.
We also emphasize the role of ideas and shifting dominance ideologies. Over the
dominant economic paradigm. The failures of the new model in the financial crash of
2008 only briefly dented confidence it. Democratic politicians failed to provide a
emphasises individual freedom and a secure public domain for the expression of ideas.
Economic liberalism is based on free markets, competition and a limited role for the state
in economic management, beyond ensuring the conditions for competition. The two have
concept, often used loosely, stretched and loaded with a strong normative charge. We
define neoliberalism as a political doctrine that asserts the superiority of the free markets of
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neoclassical economic theory over most other forms of decision-making, especially over the
actions of government. For pure neoliberals, this implies a belief in perfect competition, but
more influential in practice are those who privilege the role of corporations and their freedom,
which often compromises free markets. There is therefore tension and ambiguity at the heart
When neo-liberalism came back into fashion in the late twentieth century, the
emphasis had shifted to the second meaning, based on the needs of corporations. Starting
in universities and think tanks, neoliberalism, as an ideology privileging free market over
social protection gained hegemonic status in the face of states’ inability to handle the
challenge of economic change after the 1970s. This has entailed dismantling a citizenship
regime of civic, political and social rights. Privatization, deregulation and liberalization
have reduced public resources to mitigate social inequalities. The very notion of
was challenged (Streeck 2015). Neo-liberalism thus undermines the historic principles of
liberalism itself, a paradox that was well known to Adam Smith. The paradoxes we are
going to discuss in this chapter are embedded in the crisis and ‘strange non-death’ of
Developments in the first part of the twenty-first century thus represent not a mere
swing of the pendulum from left to right but a fundamental challenge to the liberal
democratic order toward which the world seemed evolving during the latter part of the
delegation and majority voting) is under stress as neoliberalism has attacked those very
intermediary institutions (parties, unions, voluntary associations) that had been at the
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Yet we do not want to be totally despondent. There have been notable reactions to
neo-liberalism. Some may have represented what Karl Polany (1957) called ‘counter-
develop. While elections are a central feature of democracy, stressing only elections can
distract attention from the need for critical citizens who can render governors
truth. This is not to say that objective facts will produce political consensus but that
arguments can at least be tested. This in turn can produce communication, deliberation,
the exchange of reasons, the construction of shared definitions of the public good, as
fundamental for the making and legitimation of public decisions. By relating with each
other – recognizing the others and being recognised by them– citizens have the chance to
understand the reasons of the others, assessing them against emerging standards of
fairness. Communication not only allows for the development of better solutions, by
allowing for carriers of different knowledge and expertise to interact, but it can also
change the perception of one’s own preferences, making participants less concerned with
There is also a need to question the nation-state as the primary site of democracy
and the rule of law. Talk of ‘globalization’ and the end of the nation-state around the end
of the Cold War was overblown and the nation-state remains a formidable centre of
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power as well as object of political attachment. Yet the challenges of inequality and
democracy arise at multiple levels, below, above and across states as well as within them.
The nation has been a force for progress and solidarity but also for exclusion and
aggression. Rather than illusory slogans about ‘taking back control’ (as in the Brexit
democratize the multiple scales at which policies are made. This requires new forms of
institutional design.
There are inescapable dilemmas in all this. The rule of law cannot be the mere
plaything of politics, as with a Silvio Berlusconi. Nor, however, can law be separate from
the rest of the public domain. Governments should be subject to the rule of law but
should judges not be made into legislators. The market has been a powerful generator of
wealth but, left to its own devices, can undermine democracy itself. In the 1930s,
democracy and the rule of law collapsed widely because of their enemies offering a
radical alternative. In the twenty-first century they risk being undermined by forces
purporting to act in their own name and by their own excesses and contradictions.
democracy, but also opportunities for the development of different models of democracy,
political decisions, and the effect this had in spreading of corruption and reducing
citizens’ rights. The very conception of the rule of law is challenged by unequal access to
the judicial system. Public life is rescaling at multiple territorial levels, posing questions
about equality and democracy but also opening up new forms of engagement. Democratic
paradoxes are also visible in the development of some of the principal democratic actors,
from parties to social movements, which see their organizational structures and modes of
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functions transformed. The very right of dissent is challenged, as neoliberalism spreads
insecurity, but at the same time different paths of political participation emerge.
In the days of the Cold War it was usually taken for granted that capitalism and democracy
were natural partners. The situation has now changed. Some serious writers on contemporary
politics have even begun to doubt whether democracy and capitalism are mutually compatible
(Kocka 2014, Merkel 2014, Streeck 2015). A major source of disquiet is the implications for
1. Unless significant regulatory measures are taken, there are no means within a
capitalist economy to prevent the conversion of economic into political resources, and
exercising influence because they are spared the problems of collective action that
3. This influence is used to extract political favours in the interests of the wealthy,
further increasing inequality and interfering with the market order, producing a spiral
3
An extended version of some of the arguments in this paper will be found in Crouch, C. ‘The Paradoxes of
Privatisation and Public Service Outsourcing’, in Jacobs, M. and Mazzucato, M. (eds), Rethinking Capitalism:
Economics and Policy for Sustainable and Inclusive Growth. Oxford: Wiley Blackwell, 2016, 156-171.
13
In a perfectly competitive market economic resources should not be converted into power,
and therefore can have no political implications; spending money on politics would be a
business cost, and a firm engaging in such activity would have to raise prices and lose out to
firms that did not so engage. All firms in a sector might avoid this problem by combining to
lobby for their political interests, but coordination among a large number of firms runs into
the collective action problem (see below), defection from the coordinated action bringing cost
advantages to the defectors. However, the situation changes when many markets are only
imperfectly competitive. Here economists divide into those who accept no other solution than
trying to establish perfect competition and those (associated with the anti-antitrust movement,
mainly in the USA) who argue that advantages flow from imperfect competition (Bork 1993,
Posner 2001). These are not concerned with the political implications but to claim that returns
to scale are more or less infinite, and that therefore there are no reasons to seek to establish
perfect markets. For them, unlike pure neoclassical theorists and Ordoliberalen, a competitive
order exists where some firms win the competition and thereafter dominate, not one where
competition is permanent.
We can here draw a distinction between two types of neoliberalism, which will be
important to the general argument: market neoliberals, whose main concern is that markets
function; and corporate neoliberals, who defend the role of large, oligopolistic corporations.
These latter rarely confront the political implications of the build-up of large profits that their
approach implies, but if they do they argue that if governments abstained from interference in
the economy, there would be nothing to lobby about and firms would have no incentive to be
politically active (Bork 1993). However, as was demonstrated in the financial crisis, certain
sectors can be both dominated by a small number of firms and so strategically important for a
national (or the global) economy, that the collapse of a small number could provoke a massive
shock. This is the ‘too big to fail’ argument. It is clearly the case for banking; it is probably
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also true for energy, defence, and for certain privatized public services. Firms in these sectors
have a clear incentive to become politicized, as they have much to gain from government. The
uneven distribution of political influence that this implies, even among businesses in different
sectors, let alone in comparison with the rest of the population, embodies part of the
asymmetry and inequality that make business lobbying questionable on both market-
The barrier that neoclassical theory would erect between polity and economy is a
semi-permeable membrane; restraints are imposed on the state’s ability to intervene in the
market, but not on corporations’ intervention in the polity. Indeed, in the USA such activity
has been explicitly accepted by the Supreme Court. In 2010 it rejected a ruling by the Federal
Election Commission that there were limits to the sums of money that organizations could
spend on election campaigns, on the grounds that the US Constitution should be seen as
having granted the same rights to organizations as to individuals, though it maintained the
existing limits on such donations to individual candidates (US Supreme Court 2010). Four
years later, however, it also removed the ban on the second kind of donation (US Supreme
Court 2014). It is primarily large corporations that are able to make donations of this kind.
There are two aspects to liberal democracy: the formal processes of elections, where rules to
ensure strict equality among all citizens are accepted as paramount; and the informal debating,
lobbying, and other activities that link the world of government to society between elections.
Here there are no guarantees of equality. The theory to support the latter was developed,
largely by US political theorists, in the 1950s and 1960s under the general banner of pluralism
or polyarchy (Dahl 1971). This dealt with the risk of an undemocratic inequality of influence
in the informal arena by positing that the need for relative equality would be met if there were
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large numbers of groups trying to influence government, using a diversity of non-overlapping
types of resource, and usually being effective only within specific, limited areas of policy. In
that way, no one interest would dominate. As in the free market, provided that there are many
participants in the market/polity, all are price-takers and none can exercise significant
lobbying at every moment. Pluralist theorists dealt with this by pointing out that in general
people were not politically active; Robert Dahl (1961: 305) remarked that ‘Politics is a
sideshow in the great circus of life’. Such observations were placed on a stronger theoretical
basis when Mancur Olson (1965) developed his theory of collective action. This demonstrated
the difficulties of participation in collective action. First, if a movement were big enough to
be likely to succeed, it would do so without the participation of any one individual, whose
therefore individuals had only a very low incentive to participate. Second, if the movement
were aimed at a collective good rather than a membership good, individuals would benefit
from its success even if they did not participate; again the incentive to take part was very low.
The pluralist account of western democracy was being developed during the historical
period when inequality was lower than at any time in the recorded past (OECD 2011; Piketty
2013). Now that inequality is increasing again, the account is becoming unrealistic. Olson
envisaged a world in which people had no means of co-ordinating their actions except through
voluntary individual action. This does not apply to persons and corporations possessing
considerable wealth. They do not need members; if they need human resources they employ
people. The very wealthy are therefore an exception to the collective action problem,
provided that they have enough incentive to bother to take action. They have this where
governments might be in a position either to favour or frustrate their private interests. The
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assumption of pluralist theory that in a market economy firms are just some among many
interests then falls – a circumstance that was indeed perceived and warned against by two of
the leading US pluralist theorists right at the start of the current period of growing inequality -
one of them being Robert Dahl himself (Dahl 1982; Lindblom 1977).
The ways in which growing inequality, corporate power and politics interact take many
forms. The OECD’s (2011: 122 ff) analysis of growing inequality identified several causes,
among them sectoral change; the growing finance and related business services sector being a
particular source of growing inequality. It also identified ‘institutional’ and ‘policy’ factors.
The latter can be seen particularly clearly in taxation, changes in which have been responsible
for producing some of the growing inequality (OECD 2011). In the face of growing pre-tax
economic and political power would make regressive changes. The fiscal changes of the
An institutional change that the OECD identified was the decline of coordinated
collective wage bargaining. There is a close though not perfect relationship between the
extent of coordinated collective bargaining and trade union power. There is also a correlation
between trade union power and post-tax and –transfer inequality: the greater the degree of
union power, the greater the extent of redistribution produced by the fiscal system (Crouch
2016). Interestingly, union strength correlates far more strongly with post-tax than with pre-
tax inequality, suggesting a political rather than an economic effect of union challenge.
Almost everywhere coordinated bargaining, union strength and fiscal redistribution have been
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in decline, reducing the role of what had been a major form of countervailing power against
The above discussion has concentrated on the challenge to the mutual compatibility of
capitalism and democracy presented by growing inequality. But this is not the only reason
why corporate interests are exercising a political influence that is seriously unbalancing a
which governments undertook to sustain the level of employment, the dependence of the
population on a high level of employment has become an important argument at the disposal
of neoliberals. For market neoliberals this means the contention that wages and non-wage
labour costs must be allowed to fall until all idle labour can find employment. This is, for
example, a major part of the policy package imposed on Greece in the wake of the Euro crisis.
For corporate neoliberals it means arguing that if governments want to reduce unemployment,
they must listen to what corporations say they want. This can mean labour-market measures
less harsh than the market neoliberal recipe, but it also involves granting privileged political
access for the corporate leaders, who of course interpret a general interest in the light of their
For market neoliberals, efficiency is achieved when markets clear. Aspects of life that,
looked at more broadly than through the framework of economic theory, might be seen as
important but which are not or by their nature cannot be represented within market exchanges
are either insufficiently important to merit consideration, or are just unfortunate not to be able
to be taken into account. Examples would be a perceived need to safeguard poor people’s
basic standard of living when they cannot find work that would provide such a standard, or
most types of environmental damage. For the pure theory, attempts to take such issues into
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consideration through regulation necessarily reduce efficiency because this is per definitionem
In the light of all the above, we are forced to ask whether capitalism and democracy are today
as mutually dependent as they seemed to be during the Cold War. Is ‘republican democracy’
still ‘capitalism’s best possible shell’, as Lenin claimed? Capitalists are believed to have a
preference for democracy, because they tend not to like dictatorships, which use a lot of state
power, can be arbitrary and change rules without due process. Modern democracy more or
less guarantees the rule of law, and clear procedures for changing law and lobbying around
proposed changes. On the other hand, democracy can produce a mass of regulations to protect
all the forms of democracy continue, including importantly the rule of law, but where the
electorate has become passive, responding to parties’ carefully managed election campaigns,
but not engaging in disturbing activism, and not generating a civil society vibrant enough to
produce awkward counter-lobbies that try to rival the quiet work of business interests in the
The major phenomena that to date have disturbed this system are the xenophobic
movements that played powerful roles in the votes of the British and US electorates
respectively to leave the European Union make Donald Trump president, and in becoming
serious contenders for power in France, the Nordic countries, Austria and the Netherlands.
While these movements include ‘liberal elites’ in their critique of contemporary society, they
are ambiguous about whether they include business elites in that category; Donald Trump is
himself at the heart of the US business elite. In any case they concentrate their serious attacks
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on ethnic minorities and immigrants, as well as fear of Islamic terrorism, and it seems to be
capitalist dominance over politics. If anything, their use of powerful emotional xenophobic
rhetoric against formal political institutions raises doubts about their commitment to the
procedural rules and open debate that underpin democratic institutions. This became clear in
the UK following the EU referendum, when newspapers that had campaigned for the vote to
leave the EU attacked the law courts for ruling that the national parliament should be involved
democracy any more than corporate neoliberalism requires a renunciation of the market;
indeed, democracy and the market continue to be used as the primary legitimation of the
evolving political system of dominant corporate power, because this latter lacks any
legitimation of its own. Elements for such a legitimation are there, but they are used in a
supplementary way (Crouch 2015). For example, anti-antitrust theory provided a justification
public management theory legitimates the abolition of boundaries between public officials
and corporate personnel, seen so important to an earlier age of liberal economy. Corporate
social responsibility both gives business leaders a social legitimation going beyond their role
as profit-maximizers and suggests that public policy is not needed to tackle many market
failures. In the absence of Keynesian demand management, the widespread desire for a high
We have not yet arrived at a situation where corporate dominance of our politics is
complete, otherwise all consumer protection and labour laws would have already been
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smoking. But this is the direction of travel, strengthened by continuing growth in inequality
and the mutual reinforcement of political and economic power. Democracy in some form
probably continues to be the best possible shell for capitalism; but vice versa may no longer
apply.
In recent decades a chain of scandals has fueled a growing popular awareness of corruption as
a factor which may negatively affect political and economic decision-making, distorting
public policy through growing ineffectiveness and inequality, not only in less developed and
nexus between established democracy and transparency (Pellegata 2012)does not protect
against reversals: Australia, Iceland, Spain, Argentina, Brazil, Cyprus, Hungary, for instance,
have experienced since 2012 a sharp increase in the level of perceived corruption according to
the Corruption Perception Index of the NGO Transparency International, the most widely
used proxy which estimates its diffusion through subjective experts’ assessments.
Citizens’ beliefs in the same years follow a trend to harsher feelings about corruption,
driven by at least two factors. First ishe repeated uncovering of grand corruption networks in
some democratic countries from the 1990s Italian ‘clean hands’ investigation to the recent
Petrobras and Lava Jato cases in Brazil. Theseoften also involve the private sector, as in the
stream of banking and financial scandals (from the United States to Germany). Second isthe
extensive use in the political debate of a ‘corruption issue’ against traditional élites, often
framed within populist appeals. The perception of rampant corruption in the political,
economic and financial arenas has been a leading factor in a growing dissatisfaction with
elites, expressed in radical protest against the wealthiest people who exercise an opaque
political influence, converting their disproportionate share of financial and material capital
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into hidden relationships with public actors. According to the 2013 Global Corruption
53 per cent of respondents believed corruption had increased in the previous years; 33 per
cent thought it had stayed the same and15 per cent thought it had reduced. The 2016 Regional
GCB provides an similarpicture of distrust in European Union countries, where 65 per cent of
citizens think that wealthy individuals often use their influence on government for their own
interests and support stricter rules to prevent this. Liberal democracies where bribery is
strategy of abstention or disengagement from political activity; and the rise of populist
political leaders waving the issue of corruption to challenge ‘old’ and ‘crooked’ political
corruption in the public sector is at the same time a signal of the failure of the institutional and
societal mechanisms of control over the integrity and effectiveness in public agents’
delegation of power, and a challenge to the basic principles of democratic government, such
generated by distortions of the relationship between a principal (the state, in case of the public
sphere) and agents, often induced by the involvement of a third-actor, the corruptor (Banfield
1978, della Porta and Vannucci 1999). This theoretical framework underlines how
create opportunities and incentives for individuals to enter into corrupt exchanges (Klitgaard
1988). Neoliberal doctrine has provided the basic theoretical toolkit underlying anticorruption
22
measures and reforms sponsored in the last decades by inter-governmental and international
organizations, particularly OECD, World Bank, United Nations, IMF. Bribery is seen as the
predictable byproduct of the undue intrusion of the state into the activity of competitive
markets, both through public services (which should be replaced by a market for equivalent
private commodities) and through regulation (whose burden is unnecessary given economic
public spending, and deregulation are the recommended policy for an effective and long-
consistent with the limitation of state interference with markets has often been imposed as a
In its practical application the neoliberal paradigm has shown severe drawbacks. The
retreat of the state underlying neoliberal policies may itself be corruption-enhancing . This
public enterprises and assets (Rose-Ackerman 1999), as well as by the strategic interest of
large corporations, merchant banks and other oligopolistic actors in obtaining a more
favorable and looser regulatory environment of their high-profit activities, while discharging
social, environmental as well as financial costs onto the public. The externalization of public
crucial role even in the definition and satisfaction of public needs has increased managerial
discretion and weakened public accountability. Coherently with the New Public Management
approach, shifting between public and private roles has been encouraged, breaking down
barriers that prevented revolving doors between government departments and firms. As a
been often observed, rather than the presumed adoption of efficiency-based organizational
models in the public sector. In an extreme manifestation of this –Berlusconi in Italy and
23
Trump in the USA – businessmen who were previously used to influence (and bribe) public
decision-makers enter into politics in order to get protection, invoking the rhetoric of
Moreover, any reduction of the state’s role in the economy necessarily generates a large set of
un-regulated, opaque, unaccountable interactions between public and private agents, lobbies,
paradigm has been widely observed and criticized (Ivanov 2007). Moreover, all international
Corruption control indicators, consistently show the (apparently) paradoxical outcome: the
world’s maximum degree of integrity in the public sector can be observed in Scandinavian
countries where public regulation and state intervention in the economy and the society are
highest. This calls for additional explanations and alternative policy measures.
3.2 Corruption and the blurred boundaries between political and economic power
While the complementarity between capitalism and democracy was usually taken for granted,
regimes establish, through institutional and informal constraints, a boundary between internal
power, deriving from the occupation of roles of public authority, and economic power,
deriving from the market process. In a wider perspective we can look at corruption as a
practice – more or less ‘institutionalized’ in itself – that covertly and therefore unaccountably
converts economic into political resources and vice versa, blurring the frontier separating the
public and the private sphere. Corrupt activities are usually but not necessarily illegal, since
this condition depends on the capability of the legal order to identify and sanction them.
Additionally, the very definition and effective enforcement of corruption in legal terms may
24
be influenced by corrupt politicians and judges, becoming the object of a symbolic contention
on the acceptable boundaries between state, markets and society; individual and collective
interests and rights; the proper extent and limits of market, bureaucratic and patrimonial
Corruption implies the application of the price system to legal procedures and rights.
Therefore it is not only contrary to democratic values, it also obstructs the efficient
functioning of the market itself (Arrow 1972). The development of inclusive, as opposed to
rent-seeking and extractive, economic and political institutions, provides more effective and
and conversions of the public goods into privately appropriable rents (Acemoglu and
Robinson 2012). When corruption happens in a liberal-democratic regime, a market for the
exercise of public authority replaces official procedures which, under the rule of law, should
provide impartial and universalistic criteria in the allocation of goods and services.
Privatization can hardly be a remedy against bribery, since behind any form of corruption lies
public and private agents exchange rents. This invisible ‘privatization’ process implicit in
bribery explains the strong relationship between economic inequality and corruption across
both developed and developing countries (Gupta, Davoodi, Alonso-Terme 1998). The
and unequal allocation of resources, which in turn encourages both tax evasion and the search
for selective inclusion in the cliques of privileged ones, through hidden influence and
corrupt agents to minimize public scrutiny, visibility and risk, through the strategic use of
their official roles, further undermines vertical and horizontal accountability. The potential for
25
corruption generates economies of scale in a wider set of other illicit activities, since corrupt
exchanges with regulators, public supervisors and enforcers to avoid control and sanctions are
intertwined with other ills including fiscal evasion, financial frauds, bankruptcies and
After the ephemeral triumph celebrated with the collapse of Communism in Eastern Europe,
the democratic model has been shaken in the last decades by a series of tensions. Evidence
and perceptions of widespread corruption are among the most acute symptoms of democracy's
unresolved challenges, and a hidden factor that tends to exacerbate them. They contribute to
the spiraling costs of political activity and the decline of political participation and traditional
parties, linked to the impotence of political leadership, in the face of recurrent economic crisis
and deterioration in public budgets, to resist to the capturing influence of strongest economic
and financial interests. But they also facilitated the rise of populist or extremist parties and
leaders, openly questioning liberal-democratic values and the sustainability of the welfare
state..
Far beyond the inflated cost of public works and services, inefficient contractor
selection and the waste of resources due to rent-seeking, other long-term negative
Pervasive corruption alters the relative allocation of public spending, penalizing sectors where
rents are more difficult to extract, such as education, social security and welfare. A relatively
higher portion of public budget is allocated to huge infrastructural projects, defence and other
sectors where monopolistic or oligopolistic corporations control the public markets (Mauro
1998). In the longer term, countries with a lower public investment in education will suffer a
26
control their decision-makers, mobilize in collective actions, recognise and sanction
Even the way out of rampant corruption offered by populist right-wing leaders is
inherently coherent with the neoliberal perspective they criticize. The basic solution
democracy, they propose the strengthening of a unique, direct linkage between the masses and
capacity to ‘speak straight’ and plain, by their success as entrepreneurs and non-involvement
in ‘old’ politics, aND by their wealth – which is supposed to make them immune to
temptation. But the ‘unconditional trust’ they ask for from the people is the most vulnerable to
arbitrary abuses of power and unaccountability, especially when – as the media tycoon and
justify a weakening of the rule of law, gaining impunity from judicial inquiries through
special laws.
to influence those political entrepreneurs with the authority to change the formal ‘rules of the
game’. The mobilization from below of civil society and local communities’ participation in
anti-corruption policies may set in motion a positive interplay between actors’ interests in
integrity and optimistic expectations that an exit from systemic corruption can be found. In
recent years, social movements denouncing kleptocratic practices have developed a radically
different explanatory framework, where the fight against corruption is a basic constituent of a
wider effort of citizens to oppose deterioration in the quality of democracy. Experiences that
27
available to the public, spreading a broad awareness and knowledge that in the ‘technocratic’
conception of politics are kept hidden (della Porta, Font, and Sintomer 2014). The fight
against corruption, re-framed as a public good, requires an effective defence of citizens' rights
against the arbitrary power of the political bosses to whom particularistic demands are
addressed. Among the crucial factors that increase the possibility of success are better access
discrimination and privileges, especially when such practices strengthens social awareness
justice, rather than a mere obstacle to good government, which could be effectively curbed
widening the forms of political involvement through participative democracy (della Porta in
this chapter). Decentralized knowledge and citizen awareness are often as insightful as
political malfeasance. Spanish indignados ironically set the ‘state of malestar’ against the
‘state of bienestar’ (the state of malfeasance against the welfare state). In recent years,
information about and censure of corruption circulated thanks to the support of NGOs,
movements, groups and activists, from Wikileaks to individual bloggers, to networks and e-
platforms. This process encouraged the development of both vertical and horizontal
accountability mechanisms, oriented not to punishment and enforcement, but also to raising
public awareness. The fight against systemic corruption , a factor of degeneration and
delegated only to experts’ advice to policy-makers, but rather must be linked to a wider
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4. The territorial dimension
For a long time, social and political theory presented modernization as a process of
territorial integration and functional differentiation (Durkheim, 1964). This stemmed from
functional factors, including the expansion of markets, the division of labour and the diffusion
of language and cultural norms (Deutsch, 1972). States promoted cultural homogenization
and uniform administration and services. State boundaries turned social and economic
demands, and their political articulation, inwards Rokkan (1999). Capitalism developed
within a national framework in symbiosis with the state; labour organization followed.
Economic and social systems were thus ‘caged by the nation-state (Mann, 1993).
There was a strong normative component to these theories as the nation state was seen
as the necessary framework for social progress. Democracy, from the nineteenth century, was
usually defined in a national mode, the nation providing the demos. Civil and human rights
integration by bringing lagging regions into national markets. Post-colonial states also
For the welfare state the unitary nation-state provided affective solidarity and the
compromise between capital and labour, both confined to national boundaries so unable to
The European state model became the precedent for state-building elsewhere in the
world, where new states were aware of their own precariousness Again there was a strong
normative bias, with diversity, pluralism and dispersed authority being associated with pre-
29
modern political tradition and unity and integration with modernization, democracy, equality
and welfare.
There was a central paradox at the heart of this deterritorialization and integration
perspective. Territory was disappearing within states while becoming the supreme factor in
differentiating states, economies and social systems from each other. Solidarity, too, worked
within states but not across them. The paradox became apparent with the rise of new forms of
In the aftermath of the Cold War, there was a brief moment of triumphalism as some scholars
celebrated the end both of history and of territory with the victory of American liberal
capitalism and ‘globalization’. Progress had reached its logical conclusion as particularism
In fact, what ended was not territory but the nation-state’s monopoly over the definition
‘spatial rescaling’ by which functional systems, identities and institutions are migrating to
new territorial levels, above, below and across the state system (Keating, 2013). This process
Economic processes are reconstituting at the global and transnational levels, with free
trade, mobility of capital and the large corporation. At the same time, sub-state territories are
sources of economic dynamism. The emerging global division of labour is by no means blind
to territorial differentiation. Indeed, some of the industries that might appear to be prime
candidates for deterritorialization, like financial services or software design, are the most
concentrated spatially.
30
One perspective sees places as subordinated to a global division of labour as capital seeks
out locations for production, jumping national boundaries. The city-region concept (Sassen,
2000; Scott et al., 2001) presents urban locations tied together in global production chains,
dislocated from their host states. Another perspective sees cities and regions as more than
mere locations of productions but production systems, with their own internal logic Crouch et
al., 2001).
In a further move, these systems are portrayed as being in competition with each other
as Ricardian comparative advantage gives way to absolute advantage (Scott, 1998). This is a
contentious point (Bristow, 2010). Many economists insist that only firms compete and that
talking of regional competition reifies spatial entities. The idea of inter-regional competition
is an interpretation promoted by certain actors for specific purposes. States and transnational
regions can do for themselves, to supersede the old diversionary regional policies and permit
a disengagement from spatial equity. All regions and cities are told to become more
competitive although, logically this is impossible; territories can become more productive, but
that is another matter. For local and regional leaders, it provides the opportunity to expand
This new regionalist thesis has been taken up by the political right, the left and the
centre. On the right, Ohamae (1995) argues that globalization means the end of the nation-
state, to be replaced by regions, competing in a rigorous market order. Alesina and Spoloare
(2003) derive the size of ‘nations’ (by which they mean states) by reference to external
extensive home markets. In times of free trade, global markets are open, home markets are
less important and small states are more viable. With a smaller population, they can achieve
greater homogeneity of public policy preferences through ethnic homogeneity. The argument
31
is neither theoretically coherent nor empirically sustainable (Keating, 2013) but provides the
intellectual underpinnings for the political right to deploy policies based upon a mixture of
investment, they may cut taxes and social and environmental provision. Inter-regional
Intra-regional solidary can also suffer as social and economic actors may engage in
‘partial exit’ from national social compromises (Bartolini, 2005). Mobile actors and
businesses can physically relocate or play regions off against each other. Such an outcome
may be attractive to the political right but seen as a threat by the left.
The race to the bottom is not inevitable nor free from contestation. Austerity, plant
closures and service retrenchment are often felt first at the local level, generating
territorialized responses. State spatial development strategies and the intrusion of global
economic forces generate local conflicts over land use and displacement. Oppositional social
movements often mobilize at a local level. Urban struggles often focus on land use, pitting
private profit against public utility in specific places, and on access to, spatially-delivered
public services. This has made the city and metropolitan area key sites for distributional
conflicts and for a left-wing regionalism. Mobilization of indigenous peoples in the face of
the intrusion of international capital and state development strategies will often take on a
territorial form.
Contestation also comes from movements based on the revival of old, or creation of new,
territorial identities and demands for political autonomy. In the 1970s there was a tendency to
write this off as evidence of retarded modernity, a violation of the national integration
teleology. A less prejudicial view is that political identities as continually in flux, with the
nation-state providing one historically-specific fix. Some new nationalisms are linked to
32
exclusion, xenophobia, welfare chauvinism and opposition to immigration, and associated
with the political far right. Others are socially liberal and politically social democratic. Many
have fastened onto the new regionalism in economics to make an argument for the economic
viability of smaller places in the context of global change and support transnational
integration as a way of constructing a broader external support system for small polities. In
many cases, sub-state territories have emerged as spaces for resistance to welfare
In the political centre there is a vision of the region as a space of consensual governance,
where that term refers to cooperation on agreed policy goals. Rescaling has been accompanied
with monetary policy in the Euro zone. At the regional level, development agencies have
often been given a degree of operational independence and insulation from local distributive
pressures. These forms are often legitimated (by states and international agencies) in the
So rescaling is, in itself, neither progressive nor conservative but, rather, a field of
contestation. Territory is not a mere topological concept but a sociological concept whose
substantive content is filled in through political and social struggle. Decentralization may not
produce a race to the bottom but a race to the top if the territory concerned is more solidaristic
4.3 Institutions
welfare as social and economic processes have escaped their purview. One strategy involves
33
centralized or technocratic forms of territorial administration, matching the scale of policy
systems. Another is decentralization to regional and local levels, while retaining strategic
control at the centre. The old idea that there is an optimal level for each governmental
competence has been revived in arguments about structural reform, both in domestic politics
and in recommendations of global agencies for structural reform. Yet, the optimal level for
any function will depend on what the objective is and cannot be deduced from abstract
principles.
State territorial management strategies are challenged by bottom-up forces seeking the
This has provoked a series of conflicts over institutions. The boundaries of territorial
institutions can define the scope for distributive politics by including rich and poor, as well as
the balance of political power. The internal constitution of territorial institutions may
and expensive commitments. It may equally be a way to re-establish democratic input to, and
there have been other forms of political order and there is no teleological necessity for a
particular spatial order (Sassen, 2008; Ferguson and Mansbach, 1996). The response need not
therefore entail the recreation of the twentieth-century state form, which had its bad sides,
including exclusion, aggression and domination. Inclusion and solidarity can no longer be
34
entrusted to the centralized state alone, but must be built into systems of public policy making
at all levels.
As noted in the previous section, the central concept of political and constitutional modernity
is the idea of the nation-state, which assumes the consolidation of modern states around the
notion of a single cohering national identity. One of the most significant ways in which the
pretensions of the nation-state to be the natural mode of modern political organization has
been challenged is by the persistent autonomy claims made by sub-state or stateless nations
within extant state polities. The condition of ‘national pluralism’, which denotes the existence
of more than one group claiming a national identity within the historical and territorial space
of a state, and the accompanying rights claims asserted by these groups as nations, raise
fundamental questions for established conceptual categories of law and politics in relation to
Identifying what is and what is not a multinational polity can be analytically very difficult, not
least because sub-state groups themselves are often unclear about the type of constitutional
claims they wish to assert. Sometimes the ‘national’ character of these claims is motivated
such claims may be impossible to articulate due to the hostile and repressive political
atmosphere created by the host state. In yet others, groups may make ‘nationalist’ claims
without necessarily demanding recognition as distinct nations. Most commonly and with only
a handful of unusual exceptions across the world, however, nation-states do not recognise
multiple nationality claims within their territorial boundaries at a constitutional level, even
35
where some states may adopt sub-constitutional policies to address the challenges of national
pluralism.
Even with these analytical difficulties, it is nevertheless possible to readily observe the
empirical reality of national pluralism within a larger number of countries across the world
than is often assumed, with one account even asserting that ‘90 per cent or more’ of existing
states cannot be considered mono-nation states (van den Berghe 2006). Based on the
Minorities at Risk (MAR) data, Bertrand and Laliberté calculate that there are 126 ethnic
groups in 23 countries in Asia, out of which 15 are classified as ‘sub-state national groups’;
362 ethnic groups in 43 countries in Sub -Saharan Africa, out of which 4 are sub-state
national groups; and 74 ethnic groups in 19 countries in North Africa and the Middle East, out
of which 4 are sub-state national groups. This means that there are sub-state national groups
in 39 per cent of countries in Asia, 9 per cent of countries in Sub-Saharan Africa, and 21 per
cent of countries in North Africa and the Middle East (Bertrand and Laliberté 2010). In very
few of these multinational states do sub-state nations receive the constitutional recognition
they demand, and where they do, political practice often serves to negate any constitutional
commitments as do exist. This suggests that the issue of national pluralism constitutes a
constitutional and policy challenge that ought to engage social scientists at a more general
level than the interests of area studies specialists who are often the only ones to study this
The international order as we know it today took shape with the dissolution of the Western
European empires after the Second World War, which saw the creation of many new states in
Asia and Africa. With the collapse of the Soviet empire, a number of new states were created.
During these successive waves of state formation, the dominant model was what was
described later as ‘classical modernist’ nation-state building (Smith 1998). The classical
36
modernist post-colonial nation-building model sees the sovereign nation-state as the essential
condition of modernity (Smith 1983). Based on the general principles of this heuristic
blueprint, proponents of the model seek to build territorial, civic, nations corresponding to
political mobilization, and constitution-making, in much the same way as an architect designs
a building or an engineer a machine. It takes the distilled experience of nation and state
formation in the post-industrial West as the exemplary path to the universal modernity to
which they strive. In other words, societies escape feudalism and religious and ethnic
primordialism in Asia and Africa by making good copies of the predecessor civic nations and
If those are the broad sociological and historical theses of post-colonial modernism,
there are also a number of key normative propositions associated with it. These may be listed
as follows. Nations are primarily territorial not ethnic entities. They are made up of political
communities constituted by the principle of equal citizenship and civic participation. The
nation defined in this way is the wellspring of sovereignty, which constitutes the sovereign
state. The nation and the state cannot be separated; they only make sense as a conjoined
concept (‘nation-state’). Nation-states command the loyalty of their members to the unity of
the community, and this is desirable in that it gives coherence and substance to the ideals of
communal disloyalty to the nation-state – for example, in the form of attempted secession –
can be dealt with by force, and this is in principle ethically defensible, for otherwise both
internal and international order collapses. Finally, the intertwining of nation, state, and
(although it is not inconsistent with orthodox, mono-national federalism). In most if not all
37
post-colonial states, this model continues to exert a powerful influence on the constitutional
By fusing the very notion of democratic modernity with a particular state form, this
discourse invested the nation-state with a normative superiority that permitted sub-state
nationalisms to be dismissed as backward and revanchist. At the same time, however, in the
post-colonial context, state practice did not live up to the civic ideal of the nation-state in a
hold on state power at the expense of minorities. Such states became ‘ethnocracies’ rather
than nation-states reflecting the republican ideals of the French and American revolutions or
the liberal principles of the European Enlightenment more broadly (Yiftchael 2006: Ch. 2).
Similarly, in many cases, the authoritarian apparatuses of the colonial state continued
unreformed, providing the new elites with old instruments of oppressive power now
In these ways, many sub-state nations found themselves trapped within nation-states
(and a system of international order that presumed the legitimacy of state boundaries), which
had little sympathy with their claims to recognition let alone accommodation. With few
exceptions, this continues to be the overriding systemic context that sub-state nations in Asia
and Africa have to contend with even today. Yet the widening and deepening of processes of
democratization in many of these states reopens the sub-state national question, and demands
Most states now subscribe to – or at least claim to uphold – the basic procedural requirements
of democracy in the form of periodic elections, and the democratization challenge has moved
38
the substantive content of democracy however that current thinking in the social sciences has
been unable to adequately respond to the multinational conundrum. Due to the dominance of
the unitary nation-state, many democratization theorists and policy-makers who are otherwise
attentive to the demands of societal pluralism, assume that the demos within states is monistic,
whereas the presence of multiple national groups within states demand approaches that
recognise multiple demoi (Cf. Stojanović 2010). From that analytical understanding a number
of structural and normative implications for constitutional design flows if the democratic ideal
is to be fully realised within multinational societies. Unless those questions are attended to,
the nation-state’s ‘crisis of the hyphen’ (Anderson 1996: 8) would only perpetuate injustice,
constitutionalism
The first challenge that the empirical reality of national pluralism poses for the dominant
unitary conception of the nation-state is that ‘nation’ and ‘state’ have to be (re)understood as
separate analytical categories (Keating 2001). It follows from the fact of multiple nations
within the territory of the state that unless nation and state are disaggregated, the continued
assumption that the nation is something that is exclusively associated with the state renders
sub-state nations unable to realise their own claims to recognition (Tierney 2006).
Similarly, it is routinely assumed that the unitary nation-state is the sole repository of
sovereignty within its territory. In the multinational context, such a monistic conception of
sovereignty makes little sense, because the multiple nations that constitute the state’s
constitutional order would assert their own sources of constituent power. It follows from this
that the concept of sovereignty has to be understood in both plural and relational terms. It may
not be the case that the unique European Union-style multilevel normative order and
pluralised sovereignties are replicable in other parts of the world (Welikala 2015), but the
39
division and sharing of internal sovereignty is a common practice in federations and this
nationalities. The relational concept of sovereignty eschews the notion that sovereignty
belongs exclusively to either the state or the people in favour of the view that sovereignty is a
product of an on-going relationship between the two (Loughlin 1992). This conception suits
sovereignty as a constantly negotiated and dynamic political process between the sub-state
The nation, separated from the state, has both political and cultural dimensions. It is a
form of collective identity defined by a group’s shared culture, history, and social institutions;
and it is a normative concept in that the assertion of nationhood involves claims to territory
and self-government. In both senses but especially the latter, the nation is a space of collective
sense within the social context in which choices are made (Kymlicka 1995) and in
multinational contexts, the sub-state national society rather than the state-national society is
the primary space within which individuals make their cultural and political choices.
therefore must extend to sub-state nations and the individuals who comprise them, and must
not be limited to conceiving this relationship as being limited to individuals and the traditional
nation-state.
in the multinational context. The first is that individuals in the contemporary world can and do
often entertain multiple ‘national’ identities, and this needs to be treated as a reality rather
individuals will have allegiances to both sub-state and state national identities, and in some
40
cases to regional identities above the state. The second caveat is that the claims to
constitutional accommodation of sub-state nations often do not and certainly need not take the
form of separate states (Keating 2001: ix). States’ fear of acknowledging sub-state national
claims to even cultural autonomy stems from the assumption that any recognition of national
status inevitably would lead to separatist claims to independent statehood. However, while
many sub-state nationalists do make separatist claims for reasons of both strategy and
conviction, separatism is not often the primary goal of many within sub-state nations. Instead,
they seek accommodation of their national status within the constitutional arrangements of
their host-states, in such ways as to give them recognition, representation, and autonomy
(Tierney 2006: 18-19, 92-98). This no doubt presents a set of difficult challenges for
constitutionalism, but as the experience of both the Western plurinational states as well as a
shown, they are hardly insurmountable as technical problems (Ghai and Woodman 2013).
Of these, the most fundamental are the disaggregation of nation from state, and the
recognition of multiple national spaces within the state, which in turn demand the design of
multilevel constitutional orders with highly decentralised forms of legal authority and
culture that is not hierarchical, rigid, and monistic as most modern liberal constitutional
41
6. Rights and citizenship
6.1 Introduction
politics, philosophy and public policy – that engages with and critically reflects on the
relationship between human rights and citizenship and the practical implications of different
ways of understanding this relationship. Yet scholarship and public policy debates on human
rights and citizenship have broadly been situated in liberal democratic societies, where the
predominant concerns have been the integration of migrants and managing national
minorities, with the presumption of a trajectory towards legal citizenship in the given nation-
state. More recently, the changing conditions of global migration pose challenges for
citizenship in liberal democratic societies. Whilst some have argued that we are witnessing
the demise of ‘national’ citizenship, and that instead rights are available to non-citizens
through ‘post-national’ means, others have highlighted that international human rights laws
and norms cannot operate outside of national politics. Going further, it has argued that human
rights discourses and legislation have actually led to greater inequalities through creating a
number of sub-statuses (Nash 2009), and that it is only through citizenship that ‘we become
human’ and can claim rights (Douzinas 2000). In some regions of the world, for example, in
the Arab region, there are significant non-citizen populations, where typically there is no
international organizations where respect for minority rights is a normative expectation also
being applied to Arab states, it is conspicuous in its absence at the regional and national
levels. Where there are forms of minority accommodation (as in Lebanon), this is decoupled
This section re-examines the relationship between human rights and citizenship in a
42
rights and citizenship and the tensions or paradoxes arising between these conceptions. It then
citizenship, with regionalized and localized political discourses of minority rights and the
nation-state.
A significant debate in the field relates to justifications for human rights, and how these
justifications are linked to claims of universality. Douzinas (2007: 9) has argued that the term
‘human rights’ is problematic and paradoxical in that it ‘combines law and morality,
description and prescription’. The word ‘rights’ indicates that it is a legal category, whilst the
term, ‘human’ refers to a moral framing of the individual in relation to the law. As human
rights can be claims that may not actually be recognized in law, this entails operating in the
‘confounding of the real and the ideal characteristic of human rights discourse’ (2007: 10).
There have also been attempts to define what is meant by ‘universality’ of human rights.
Donnelly acknowledges that some accounts of the universality of human rights are
attempts to delineate different forms of universality where he defends ‘functional’ and ‘legal’
and ontological’ universality. He also talks of an ‘overlapping consensus’ universality and the
concept and at the level of practice (Connelly 2008). In contrast, Goodhart (2008) argues that
human rights are a resource for people providing ‘aspiration’ rather than ‘moral truth’ and as
such the legitimacy of human rights does not come from ‘proving’ universality. He is troubled
by Donnelly’s concept of the ‘relative universality’ of human rights, arguing instead that the
43
legitimacy of human rights comes from their global appeal. Clearly however, legitimacy does
not stem from universality, rather than the reverse, as this reduces legitimacy to democratic
(Ferrara 2003), and also potentially raising the accusation of ‘imperial humanitarianism’ 4
connection, concern for relationships and responsibilities, with an emphasis on obligation that
does not arise from rights per se. Such perspectives potentially lend themselves to greater
sociopolitical and local contextualization, operationalizing human rights in the context of the
political interests of the state and its negotiations. This raises a structural problem with respect
to the operationalizing of human rights. Whilst human rights claims can challenge existing
inequalities, they must appeal to those very structures to make their claims (Benhabib 2005,
Douzinas 2007, Soysal 1994). Human rights also act to depoliticize exclusion and conflict by
framing these issues as individual claims with a corresponding legal remedy (Douzinas 2000).
international law benefits non-citizens, it has been argued that it is only through being fully
recognized as a member of the political community, that we become ‘human’ and can claim
our ‘human rights’. Whilst legal migrants in Western liberal democracies are often entitled to
many civil and social rights, as well as being protected by legislation at the transnational level
and sub-nationally, the same cannot be said for refugees, asylum seekers and illegal (or
‘irregular’) migrants. In this regard, it could be argued that Soysal’s conclusion that ‘the logic
of personhood supersedes the logic of national citizenship’ (1994: 164) does not apply to
refugees or those of irregular status. It is premature to claim that universal human rights have
4
Connelly (2007) cites Gott, G. (2002). Imperial Humanitarianism: History of an Arrested Dialectic’, in
Moral Imperialism: A Critical Anthology, 19.
44
superseded national citizenship ‘by disrupting the territorial closure of nations’ (ibid.) when
we witness, not only the tight control of state borders, but also the differential application of
human rights with respect to those irregular migrants, refugees and asylum seekers. Nash
(2009) goes further, arguing that the cosmopolitanization of law does not lead to greater
equality, and that rather than legally promoting universal human rights, legalization of
international human rights law has led to inequality as evidenced through a proliferation of
sub-statuses. Critiquing Benhabib, she argues that such political theorizing is at a level of
abstraction that is not sociologically contextualized, and so does not engage with what
happened in practice. Rather than simply a matter of legal entitlement, claiming rights
depends on social structures through which power, material resources and meanings are
created and circulated. She conceives of refugees as ‘sub-citizens’, arguing that this status is
created through international law. In addition, Nash (2009) argues that we can witness forms
of sub-citizenship even when people hold legal citizenship, but are nevertheless marginalized
increasingly so with the rise of right-wing populist discourses and movements globally that
There is a substantial literature on group rights and one of the central debates or
paradoxes relates to the very conception of group rights itself. Are rights inherently individual
rights or can a group itself be deemed to hold rights, or is it as individuals or the group (Miller
2002)? In addition, are group rights defined as ‘human rights’ or are they the rights of
people holding certain characteristics. Group rights typically refer to ‘external protection’
rights – that is rights that an individual of the group can claim for against the state (Kymlicka
1995). However, there are concerns about individuals’ rights within the group, especially
45
more vulnerable members. Justifications for group rights can be framed as human rights
principles or as principles of citizenship. Miller (2002) asserts that typically those arguing to
defend group rights make the case that they are fundamental rights of citizenship appealing to
equality; language rights for minority groups, or group rights for political representation
would be examples. It could be deemed paradoxical that rights for certain groups are based on
calls for equality. However, when looking at actual examples, it is evident that calls for group
rights are often calls for achieving equality – for example in rights to language, culture,
Another paradox pertains to market citizenship, where citizens are presented with a
discourse of having more choice and freedom, yet on the other hand, there is increasing social
inequality, political apathy and lack of agency (Root 2007). In addition, in relation to
immigration and citizenship, the market is a central force shaping who is deemed worthy of
residency and ultimately a route to citizenship. Shachar and Hirschl (2014) use ‘Olympic
including, for example, the very wealthy, scientists and athletes. Skills-based programmes
attest to this trend, as evident in the UK’s highly-skilled temporary migrant programme,
introduced in 2008, which allows highly-skilled individuals to immigrate, initially for one
year, without sponsorship from an employer. On securing employment, this stay can be
extended with subsequent entitlement to apply for British citizenship after 5 years (Kiwan
2010). This invokes a moral conception of citizenship on economic grounds, and contrasts
with securitization discourses surrounding the concerns of integrating migrants who are
unskilled or semi-skilled.
Rather than focusing on the relationship between human rights and citizenship, Isin’s
(2008, 2009) approach is somewhat different in that he suggests that we need to think in a
new way about citizenship. He proposes the idea of ‘acts of citizenship’, where citizenship is
46
not reduced to status or practice, bupt instead has its focus on subjectivity and agency. It has
been proposed that refugees and other marginalized groups are participative actors
constructing their own identities and acting to mediate their own fate (Nyers 2010) and that
these actions constitute ‘acts of citizenship’ (Isin 2008, 2009). This has been written about in
Western liberal democratic contexts, for example, in Canada and the United States, where
there have been political movements by groups of irregular migrants, refugees and non-
citizens making claims. It could also be argued that this conception of ‘acts of citizenship’ has
resonance in other parts of the world, for example, in the Arab region, where disempowered
groups have publically made claims in the context of the Arab uprisings (Kiwan 2014), and
also in Lebanon, where there are examples of political and moral agency in Syrian refugees’
‘acts of citizenship’ in political, cultural and ‘moral’ domains (Kiwan 2016a). The linking of
‘performativity’ and ‘precarity’ as theorized by Butler (2009) makes an argument that the
different ways of ‘laying claim to public space and to citizenship require both translation and
risk of violence; furthermore, gender norms relate to this notion. So precarity can refer to a
range of vulnerable populations, including refugees, and women refugees in particular. She
thinks of performativity not only as ‘speech acts’, but also in what she calls the ‘reproduction
acts, a norm is created. She links performativity to precarity arguing that even ‘vulnerable’
populations lacking the ‘right to have rights’ can claim its voice and making its claims.
Whilst citizenship has been an exclusionary concept, academic theorizing and policy
citizenship, with a particular interest in citizenship and ethnic and religious diversity. The
47
into ‘moral’, ‘legal’, ‘participatory’ and ‘identity-based conceptions (Kiwan 2008). Whilst
these are certainly not mutually exclusive traditions, they illustrate dominant ways of
understanding citizenship in theory and practice. It should also be recognized that the
intellectual history of citizenship is a highly gendered conception, where the public sphere is
characterized as rational and masculine, in contrast to the private sphere as emotional and
feminine (Shafir 1998). ‘Legal’ conceptions of citizenship draw from the tradition of modern
liberal developments in seventeenth century Europe linked to the rise of the modern nation
state (Held 1993) and the idea of a ‘social contract between ‘free and equal’ human beings
premised on human (male) rationality. Participative conceptions also have a long intellectual
citizenship and civic republican notions emphasizing civic bonds and active participation in
the community (Kiwan 2016a). With regards to identity-based conceptions, the twentieth
century has been called the ‘ethnic’ century, as many civil and international conflicts have
been framed in these terms (Cornell and Hartmann 2007), and the twentieth first century
looks to be continuing in this vein (Kiwan 2016b). One of the central debates in the
consequences for immigrants and ethnic minorities (Kiwan 2013). In the context of
securitization discourses, it can be argued that immigration and refugee policies, integration
policies, and education policies in Western liberal democracies are illustrating a ‘restrictive
turn’ (Joppke 2010, Pacquet 2012, Wright 2008). In contrast, postnational accounts suggest
the decline of national citizenship. Despite homogenizing state discourses, individuals and
groups contest, construct and negotiate their citizenship identities and practices in relation to
official citizenship policies across a range of domains, including, immigration, refugee policy
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7. Political parties and the challenge of democratic representation
Social progress on a wide range of issues requires that citizens and civil society groups
societal organizations can perform representative functions, political parties have long been
seen as vital agents of representation that mediate between states and societies. Parties
parties were essential institutions for holding governments accountable to societal interests
and preferences.
Nevertheless, the ability of parties to perform these roles has increasingly been
questioned in many parts of the world, under both new and established democratic regimes.
Although democratic institutions spread to some 60-70 new countries after the mid-1970s in
Southern and Central Europe, Latin America, Africa, and Asia, there exists a widespread
democratic rule (Mainwaring and Zoco 2007). Even in the long-standing democracies of
Europe and North America, signs of representational decay are readily apparent in declining
voter turnout, reductions in party membership and identification, rising electoral volatility,
and the growth of populist or anti-establishment parties, leaders, and movements (Mair 2013;
through acting in concert with others that citizens can hope to influence democratic outcomes.
Acting in concert can take a number of different forms, including social movements, civil
associations, and political parties, all of which play a role in articulating competing interests
and identities. Parties, however, have a central role as representative agents in formal
49
democratic institutions, as they are the primary actors who compete in the electoral arena,
craft public policies, and organise national governments. As E.E. Schattschneider (1942)
famously asserted, ‘Political parties created democracy and modern democracy is unthinkable
save in terms of the parties.’ As such, parties are a natural starting point for understanding
Theories of representation derived from the West European experience have long
assumed that parties are anchored in, and give political expression to, societal conflicts (or
‘cleavages’) that structure policy preferences and electoral competition (Lipset and Rokkan
1967; Bartolini and Mair 1990). Parties, in short, are traditionally seen as organizational
intermediaries between societal interests and state institutions; they are expected to simplify a
With the spread of electoral competition to new countries in the developing world,
however, these classic representative functions are often in short supply. Parties are
sometimes coercive instruments of previous autocratic rulers (Riedl 2014; Hicken and
Kuhonta 2015), or clientelist machines that allow political elites to control popular
Stokes, Dunning, and Brusco 2013). Parties founded during recent periods of democratic
transition are less likely to be rooted in deep class cleavages and more likely to rely on the
mass media or charismatic personalities to mobilize support, rather than strong grass-roots
branches and organized social blocs (Mainwaring and Zoco 2007). Party systems with such
shallow social roots are prone to high levels of electoral volatility, and they are ineffective
vehicles for translating societal preferences into public policymaking arenas. That is
especially true for working and lower-class groups, which are highly dependent on political
50
organization to mobilize their strength in numbers as a counterweight to the more privileged
developing regions, however. Even in Europe, the historical birthplace of socially grounded,
programmatically-defined mass party organizations, ‘parties are not what they once were,’ as
Schmitter (2001) pithily noted. In part, this reflects changes in the social, economic, and
cultural landscape on which parties compete. Social cleavages based on class and religion
have loosened over time. A wide range of interest groups and activist organizations have
emerged alongside and independent of parties to articulate societal preferences and identities.
Mass broadcast and social media have partially displaced party organizations from their
this more heterogeneous and pluralistic socio-cultural landscape, citizens have become
increasingly detached from party organizations, giving rise to a phenomenon that Dalton and
Wattenberg (2000) call ‘parties without partisans’ (see also Mair 2013). This societal
detachment is especially pronounced among the younger generation of voters whose life
experiences are far removed from the socio-political cleavages and organizational forms of
professionalized, embedded in state institutions, and dependent on state resources. Rather than
representatives of societal interests, parties may come to be seen as collusive and self-
interested political cartels that share in the spoils of public office (Katz and Mair 1995).
Cartelization threatens to create an insular and professionalized political caste that is poorly
attuned to societal needs and largely unaccountable to them. It also expands opportunities to
exploit public office for purposes of corruption, self-enrichment, and influence peddling,
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Such rent-seeking practices thrive when the rule of law is weak and institutional
checks and balances are inoperative. They are also encouraged when the exorbitant costs of
electoral campaigns induce politicians to cultivate ties to private donors, tilting the democratic
2012; Winters 2011). Party competition can thus open channels for private wealth to skew the
democratic process by converting economic power into political leverage (see Crouch’s part
in this chapter). Taken together, varied forms of cartelization, corruption, and rent-seeking
drive a wedge between citizens and the political class, and they exert a corrosive effect on
citizens’ trust and confidence in political institutions (see Vannucci’s part in this chapter).
backlash.
The erosion of parties’ societal linkages has been compounded by their diminished
convergence of mainstream conservative and social democratic parties has long been noted in
Europe. This process intensified when the post-2008 financial crisis narrowed the
programmatic options available to national governments and forced those with sovereign debt
(Streeck 2013).
In Southern Europe, where the economic crisis was especially severe, political
dislocations are strikingly reminiscent of those seen in Latin America following that region’s
debt crisis and market-based neoliberal reforms in the 1980s and 1990s. Party system
upheaval in Latin America was especially pronounced where neoliberal reforms were
development and redistributive social policies (Morgan 2011; Roberts 2014; Lupu 2016).
52
Such patterns of reform dealigned party systems programmatically, leaving them without a
major party to channel societal opposition to neoliberal orthodoxy. Such opposition, therefore,
tended to be channeled outside and against traditional party systems, leading to widespread
social protest and the eventual rise of populist outsiders or new ‘movement parties’ on the left
flank of mainstream parties (Yashar 2005; Silva 2009). Similarly, the adoption of orthodox
austerity measures by mainstream center-left parties in the early stages of the Southern
European crisis triggered widespread social protest and the rise of new, anti-establishment
action that was ‘responsible’ in terms of securing international market integration made
turnout in many countries. In much of Europe, however, citizens have also lent support to far-
right nationalist or populist parties that are hostile to globalization, transnational institutions,
and ethnic or religious minority and immigrant communities. Parties that cater to such
exclusionary forms of nationalism may advocate forms of ‘welfare chauvinism’ that defend
traditional social programs while narrowing their pool of eligible beneficiaries. A version of
such right-wing populism recently triumphed in U.S. presidential elections, where Donald
As Donatella della Porta points out in her section of this chapter, however, other
societal responses are possible. Social movements, for example, often emerge in the political
positions or societal values that mainstream parties have neglected, social movements can
transform the policymaking agenda, realign electoral competition, and give voice to new or
53
marginalized social groups. Typically, they do so in extra-institutional arenas through diverse
forms of social protest or ‘contentious politics’ (McAdam, Tarrow and Tilly 2001).
institutions. Movement organizations and activists often work within established parties, or
even found new ‘movement parties’ that carry their agendas into electoral and parliamentary
arenas (della Porta, Fernandez, Kouki and Mosca forthcoming). In the process, they may
realign or reconfigure national party systems. Such was the case with the Green parties
spawned in the 1980s by European environmental, peace, and women’s rights activists.
Examples from Latin America include the Workers Party in Brazil, which was founded by
labour and community activists, and the Movement Towards Socialism (MAS) in Bolivia,
movements (Madrid 2012). More recently, the indignados anti-austerity movement in Spain
set the stage for a new movement party, Podemos, which challenged the programmatic
austerity, social citizenship, and workers’ rights, expanding the range of policy debate in the
Similarly, a plethora of civil society actors are performing interest articulation and
representation functions that parties once monopolized. Many civic groups work with parties
and local governments to shape the policymaking agenda and respond to social needs.
networks. In many cities community organizations are playing an important role in budgeting,
programme design, policy implementation, and the monitoring of public agencies (Baiocchi,
Heller, and Silva 2011; Heller 2001). Such pluralistic forms of civic engagement provide
54
opportunities for societal input that are a vital complement to the activities of party
organizations.
societal concerns. Serious efforts at campaign finance reform and the regulation of media-
based political advertising might reduce the incentives and opportunities for corruption,
shielding the democratic process from the influence of private wealth. Likewise, independent
judiciaries and electoral agencies are vital to safeguard against abuses of power and maintain
the integrity of the electoral process. It should be recognized, however, that institutional
reforms can have unintended consequences or potential trade-offs between conflicting goals.
Primary elections, for example, may give citizens greater voice in the selection of party
candidates for public office, but as seen in the U.S. they can also inflate the costs of elections
and make party leaders dependent on wealthy private donors to finance internal campaigns.
even provide access to party leadership positions by populist outsiders, as seen in Donald
Ultimately, modern democracy has seen a proliferation of new societal actors in the
public sphere, but it has yet to discover a substitute for party organizations in a number of
essential representative functions. For better or worse, parties continue to structure electoral
alternatives, form governments, and shape policy initiatives. The ability of parties to craft
coordinated international efforts to govern global markets. Indeed, vigorous advocacy of such
coordinated efforts could offer a new opportunity for parties to craft progressive platforms
that are clearly differentiated from the technocratic convergence of mainstream parties around
market orthodoxy. In the meantime, both traditional and emerging parties face the challenge
55
of giving institutional expression to the broad range of societal actors and interests that are
Since the beginning of the Scientific Revolution, science and expertise have acquired
large roles as facilitators of democracy. The rise of experimental science, it is argued, gave
citizens a new model for witnessing rulers’ claims and holding them to higher standards of
public justification (Ezrahi 1990). By the late nineteenth century, scientific knowledge,
action, ensuring that governments would not stray outside the limits of reasonableness and
that publics, too, would agree on the need for new agenda items and policy decisions.
Progressive politics at the turn of the twentieth century accepted and largely celebrated the
growing delegation of policy responsibility to experts. Despite the shocks of two world wars
and subsequent pessimism about technology’s power to reduce human autonomy and freedom
(Habermas 1970), faith in government based on facts and evidence has only grown.
Many developments over the past 100 years bear out the belief that scientific knowledge
increases civic participation, encourages interstate collaboration, and enhances the quality of
public reason. Nineteenth-century divisions based on race and gender gave way to biological
and sociological knowledge that established the equality of all human beings and laid the
foundation for equal political treatment of all. 5 More recently, environmental and health
5
Petitioners’ briefs for two of the most progressive decisions by the Supreme Court of the United
States—Muller v. Oregon, 208 U.S. 412 (1908) (legitimating limits on working hours to protect women’s health)
and Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (holding that educational systems separated by
race could not be equal)—both argued in part on the basis of social science evidence.
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knowledge spurred the formation of national, and to some extent global, ‘epistemic
communities’ (Haas 1990) on issues from biodiversity to pandemics and climate change.
Yet, faith in the democratizing influence of enlightened knowledge has long been
troubled by countervailing doubts: in particular, the threat that superior expertise creates
hierarchies of non-accountable power and excludes the demos from choosing its own
purposes. Moreover, if public facts are made in ways that reinforce prior constellations of
power, dominance, and injustice (Foucault 1980), then how can democracy realize its
representation and interpretation (Felt et al. 2016). How such representations achieve and
maintain authority becomes highly relevant to analyses of democracy and law. Work in the
field of science and technology studies (STS) shows that knowledge about the world and
norms for inhabiting the world are coproduced (Jasanoff 2004)—that is, our factual depictions
of how the world is cannot be disentangled from our understandings of how we should live
with the fruits of that knowledge. On this view, scientific claims are neither neutral nor
universal but rather reflect their conditions of production. Facts, put simply, are endpoints of
social and political struggle (Latour 1987). And if facts are established through politics, then
the hope that facts can create a level playing field for politics seems more mirage than reality.
Does more knowledge lead to greater social progress? Is the Enlightenment promise
that civic maturity will grow along with scientific understanding still valid, or is a more
complex restatement warranted? What is the evidence on either side, and how should
57
democracies take note not only of what science delivers but also of the limits of public
It is widely accepted today that investments in science and technology are necessary if
societies are to remain healthy and viable, whether by escaping from entrenched poverty and
its assaults on human dignity or by promoting growth in jobs and economic opportunities.
Those investments increasingly include not only research driven by scientists’ curiosity about
fundamental aspects of nature, but also science answering to governmental demands for
useful knowledge. By the late twentieth century, the world’s collective knowledge-producing
capabilities included large amounts of what came to be called Mode 2 science (Gibbons et al.
1994): applied, transdisciplinary, multisited, and reflexive or conscious of its own value-
ladenness.
dramatically illustrated in the rise of the ‘Asian tigers’—Hong Kong, Singapore, South Korea,
and Taiwan. Yet, the Tigers, along with neighboring countries such as Indonesia, Malaysia,
Vietnam, and Thailand, embraced very different pathways to involving publics in governance.
China’s emergence as a global economic superpower only magnified the lack of congruence
between the welfare benefits of scientific and technological activity and the spread of
democracy.
knowledge and social harmony. First, contradicting the presumption that increasing
knowledge resolves ambiguities and provides more reliable grounds for politics, more science
opened up new frontiers of doubt and uncertainty. In this period of ‘reflexive modernization’
(Beck 1992), people used science to question the very facts that science produces in such
abundance. The results range from what Ulrich Beck termed ‘organized irresponsibility’—the
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lack of accountable rulership—to ‘science for hire,’ with claims generated to serve parochial
accountable expertise: models and algorithms that govern vast tracts of economic and social
policy were shielded against critique by intellectual property laws and secretive corporate
abstract provides a powerful deskilling discourse with which politicians deflect democratic
criticism by accusing publics of scientific illiteracy. Canonical cases include protests against
childhood vaccination; rejection of genetically modified crops and foods; skepticism toward
the expert consensus around anthropogenic climate change; and, especially in the United
States, rejection of evolutionary theory in favor of beliefs grounded in the Bible. Some
commentators ascribed Britain’s referendum vote to leave the European Union in June 2016
2016 victory in the US presidential election was seen as a win for ignorant populism.
Together, these examples support a ‘deficit model’ of citizenship (Wynne 1994), which holds
that a knowledge-deficient demos cannot be entrusted with the rights and obligations of self-
rule.
Third, especially in the United States, where political disputes often spill over into
litigation, the law’s claims to impartial authority and commitment to reason have been
compromised by accusations of scientific illiteracy. Judges, like other members of the lay
6
For example, the civilian death toll from US drone strikes has been contested, and independent
organizations making such estimates have little faith in numbers generated by the government. Charlie Savage
and Scott Shane, ‘U.S. Reveals Death Toll From Airstrikes Outside War Zones,’ New York Times, July 1, 2016.
59
public, are frequently charged with lack of scientific understanding. More insidiously, legal
institutions are themselves complicit in ratifying a bright-line distinction between facts and
values, and the corollary assumption that fact-finding must precede normative judgment. This
is most apparent in the discourse of the ‘law lag,’ which declares that law is unable to keep up
with the rapidity of scientific and technological advances and thus constantly arrives too late
developments.
These phenomena highlight the need to complicate the relationship between knowledge
and social progress. A growing literature points to the varied and subtle ways in which tacit
assumptions about the right ways to organize collective behavior impinge on and shape a
largely unreflective institutions. Therefore, although robust democracies continually give rise
to new expert bodies, new technologies, and new knowledge-based policies, many deeper
commitments to forms of politics rarely get exposed to critical scrutiny. These constitutional
dimensions of political culture shape the conditions of possibility for modern politics, both
through material inventions drive human progress. There is, however, nothing deterministic
enormous implications for society sometimes disperse quickly throughout the global
marketplace—such as cars, cell phones, computers, and to some extent contraceptives. But on
a great variety of technologies, from fossil fuels to agricultural biotechnology, neither lay nor
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official responses have converged transnationally, even when there is strong scientific
The public uptake of expert claims is a phenomenon to be understood in its own right in
comprehensive accounts of democracy and the rule of law. ‘Civic epistemologies’ (Jasanoff
2005), or public ways of knowing, refer to the institutionally stabilized ways in which citizens
assess the public reasoning of powerful state organs. States differ in the practices by which
they generate public knowledge, select and authorize experts, subject epistemic claims to
public testing, and construct the very idea of objectivity in public discourse. These practices
affect the credibility of expert claims. It matters, for instance, whether public knowledge is
built as a ‘view from everywhere,’ with all interested parties gathered around the same table,
produce claims that appear to stand above and outside of identifiable interests. The more
inclusive practices of ‘view from everywhere’ reasoning have led to markedly fewer public
knowledge controversies than the ‘view from nowhere’ approach. The latter, however,
encourages a more skeptical style of citizenship, with lay publics more willing to generate
No theory of political legitimacy questions (as yet) that sovereign states have a right to
organize their public knowledge practices in accordance with their own cultural
understandings of how to constitute relations between experts and citizens. If, however,
divergent practices lead to different appraisals of the state of the world—whether the matter is
climate change or plant genetic modification or threats to public health—then there could be
democratic justification for epistemic subsidiarity, that is, an acknowledgment that different
standardized or brought into complete harmony. How and under what circumstances such
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8.3 Epistemic Democracy: A New Constitutional Form?
The paradoxes and divergences identified above are likely to increase as technical
expertise makes its way into new domains of decision making and is disseminated through the
ever more accessible digital medium. The proliferation of social media allows wider access to
information, empowering popular sovereignty, but it also encourages the formation of bubbles
Democratic societies are not insensitive to these challenges, and developments over a
half century indicate growing awareness that the workings of government must include forms
of public epistemic engagement. However, institutions for delivering on this insight, as well
as the capacity to forge closure in situations of deep epistemic conflict, have not necessarily
kept pace. Even in cultures committed to open access, pressures may form to exclude
participation that rulers see as unreasonable. In turn, the moves by which such exclusions are
To sum up, 350 years since the beginning of the Scientific Revolution, modern societies
find themselves caught in novel binds about the role of knowledge in fostering democracy and
the rule of law. The wide dissemination of knowledge and knowledge-making capabilities has
not necessarily fostered well deliberated, let alone wise or even rational, judgments.
knowledge making, the loss of trust in expert bodies, the opacity of transnational
organizations, the persistence of power imbalances between rich and poor, and (not least) the
unreflective uses of science to reinforce dominant problem framings that exclude genuinely
challenging alternatives.
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9. Participatory democracy in the neoliberal era
not to address the issue of citizen participation. Partially as a result of disappointments with
democratic institutions, we are living today through a veritable ‘participation revolution.’ The
idea that citizens ought to be at the centre of governance has, since at least the late 1990s,
become a central part of mainstream policy thinking. Although many – if not most – of the
ideas about participation emerged with social movements and the political Left, enthusiasm
for ‘citizen participation’ today spans the political spectrum (as well as the globe) and is today
widely endorsed and promoted by mainstream public policy experts, pro-market actors, as
participatory budgets and all manner of citizen forums, it is hard to find a democratic
government today that does not invoke citizen participation in some form. Today we are
witnessing a new political moment in which citizen participation is no longer the assumed
domain of outsiders but has become widely encouraged, if not directly mandated, by
enthusiastically titled 2006 book, How Expert Rule Is Giving Way to Shared Governance –
And Why Politics Will Never Be the Same, ‘In the 20th century, public life revolved around
government; in the 21st century, it will center on citizens.’ Similarly many others discuss the
dawning of an era in which citizens have come to participate in all sorts of matters previously
reserved for government bureaucrats and politicians. To talk of citizen participation today is
Yet, despite the enthusiasm, citizen participation is today deeply paradoxical, and in
this small section we briefly explore what we see as its premises and limits. Participation,
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build trust in government, and create communities of engaged citizens. More sanguine
promoters also hold the view that participation, properly instituted, can help solve all kinds of
fundamentally compatible with neoliberal tenets. It has emerged at the time of neoliberal
reforms and government rollbacks and in some cases been deployed with the purpose of
legitimating those reforms. It is, moreover, it is based on the idea of the individual, self-
responsible citizen who solves problems without recourse to politics, movements, or sectoral
questions of power and inequality at the heart of the neoliberal project. This is not all,
however. Participation does bring together communities of equals under a logic of inclusion,
which causes tensions in neoliberalism. Participation can also bring to life ideas of collective,
shared interests that cannot be dealt with at all within the neoliberal frame, which sees politics
is just about the sum of individual needs and demands. Participation can come to mean very
different things in different places, depending on the power of movements, associations, and
unions to shape the experience. These are the very actors that current understandings of
9.1 The history and development of participation: the ‘perverse confluence,’ top-down
Although numbers are difficult to come by, most experts agree that the number of
experiences of citizen participation have exploded in the last two decades across the global
North and the global South. As Archon Fung suggests, part of the difficulty in estimating the
extent of participation is that ‘the forms of participatory innovation are often local, sometimes
temporary, and highly varied’ (Fung 2015: 514). But all indications suggest it is a very major
trend. There is general agreement that we are living through what Caroline Lee, Michael
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McQuarrie, and Edward Walker (2015: 7) have called a ‘participatory revolution.’ Today,
they note, ‘across the political spectrum, increasing citizen voice is viewed as a necessary
participation emerged among social movements in the 1960s, these ideas were first
appropriated by mainstream policy makers two decades later. Caroline Lee, who has studied
what is today known as the ‘Public Engagement Industry,’ dates its appearance to the late
1980s but notes a tremendous growth in the 2000s. Demand for services by the International
Association for Public Participation, for example, tripled between 2005 and 2008 (Lee 2015).
In addition, participatory instruments now quickly travel the world as processes of ‘fast policy
Dagnino, Olvera, and Panficci (2016), in the context of Latin America, have described
a ‘perverse confluence’ between left democratizing projects and multilateral agencies around
the desirability of participation. This resulted from the meeting of genuine ‘democratizing
projects that were constituted during the period of resistance to authoritarian regimes’ and
‘neoliberal projects’ at the end of the 1980s. ‘In effect,’ they write, ‘they are based on the
same references: the construction of citizenship, participation, and the very idea of civil
society’ (Dagnino, Olvera, and Panficci:16). All manner of New Left parties, movements and
NGOs turned away from Leninist practices and took a ‘local’ and a ‘social’ turn, with a
central focus on ideas of civil society and participation (Castañeda 1993: 200). This new
thinking was eclectic, influenced by sources as wide as debates with European New Left,
Liberation Theology, and Radical Pedagogy. Throughout Latin America in the 1990s, there
were demands and claims from social movements and new progressive actors who sought to
reform the state and deepen democracy through participation. This discourse ranged from the
Zapatistas, to the Civil Society Assembly in Guatemala, to local administrations run by the
Workers’ Party in Brazil, to the Movement for Socialism in Bolivia, among many others. At
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the same time, agencies like The Inter-American Development Bank, USAID, the World
Bank, and other bilateral and multilateral donors like DFID (UK), CIDA (Canada), UNDP,
and major foundations like Ford, Kettering, Rockefeller, and MacArthur had all adopted the
language of civil society and participation. For one indicator among many, at the global level,
the World Bank has invested $85 billion in development assistance for participation in the last
Citizen participation in the global North follows a similar time-line and similarly wide
cast of characters. There has been a sea-change in thinking about governance and the role of
the citizenry since the late 1990s. The original interest in participation, of course, dates to
social movements like Students for a Democratic Society, in the US, and post-68
mobilizations in Europe. But it took disappointment with New Public Management and ideas
of the minimal state for these ideas to move to the mainstream. In the early 2000s, in
particular, there was growing concern about the quality of democracy and democratic
expressed their desire for a more genuine global democracy, and innovated through the
practices of NGOs and new movements – sometimes directly inspired by Global South
government officials worried as well. While the tenor was slightly different in Europe and in
North America, the worry about declining citizen engagement, growing apathy, mistrust in
government, and atomization was shared. As a result, there were a number of reforms and
policy initiatives in several countries meant to encourage participation and bring citizens back
into the work of government. Some have called this broad move a turn to ‘Public
Governance,’ even if there is no consensus yet for the reforms and policies intended to
increase citizen participation. But the trend is very clear. For North America a survey from
2009 found that almost all cities responded that they provided ‘opportunities for civic
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engagement in community problem solving and decision making’ and that nearly three-
fourths of them had instruments in place for citizen decision-making in strategic planning that
year7. In Western Europe the figures are similar, and several countries now mandate citizen
participation as part of recent local government reforms8. Bingham, Nabatchi and O’Leary
(2005) catalogue and describe the tools of this new governance, which include deliberative
circles, collaborative policy making, and alternative dispute resolutions that permit citizens
While they range in format, new forms of participation share some common features.
They are open, and inclusive, and place ‘ordinary citizens’ at the centre. That is, they are not
mediated by what are nowadays described as representatives of ‘the old ways,’ like unions,
promises a win-win for all: governments get better input, citizens are heard, new solutions are
dreamed up, and a more encompassing and inclusive sense of the common good emerges out
of deliberation for all involved. By and large, participatory experiments have brought new
participants to the demos. Though there is significant variation, there are significant successes
in attracting non-traditional and vulnerable participants to forums that in some instances have
surpassed the capacity of social movements in creating inclusive spaces. There is evidence of
7
National League of Cities, Making local democracy work. Goodwin explores the data further to show
‘that a large majority (69 percent) had citizens serve on ad hoc task forces and a fairly high percentage of cities
held neighborhood meetings (48 percent) and town meetings (39 percent)’ (Goodwin 2014: 253).
8
Recent research in Southern Europe highlights that most municipalities ‘have developed considerable
participatory activity’ (Font, della Porta and Sintomer 2014: 42).
67
democratic learning, and some evidence of increased civic capacity that has been spurred by
these.
Nonetheless, there is reason to worry, and critical scholars have begun to point to the
ways that participation is part and parcel of neoliberal reforms (Hickey and Mohan 2004),
with some, like Pablo Leal, referring to ‘the buzzword of the neoliberal era?’ (Leal 2007). It is
more than the fact that participatory democracy has spread as governments have retrenched,
or that local governments have, in some cases, introduced participation to improve the fiscal
The first worry is that these experiments often take place at the margins of the state
apparatus, without significant government reform, and without transforming the functioning
of state institutions. They invoke the language of empowerment without devolving significant
decision-making to participants. Many experiments are introduced ‘from above’ and do not
allow for participants to define the terms of participation itself. Many of these experiments –
particularly consultative forums – do not wield decision-making power, or if they do, they do
not wield decision-making power over significant decisions, such as economic policies. These
experiments are fundamentally not able to challenge inequalities that are one of the principal
threats to democracy. Second, there is the worry that participation paves the way to a
of the neoliberal citizen: self-regulation, responsibility for individual problems, and a non-
conflictive partnership with the state (Li 2005). In this formulation people are ‘conceived as
individuals who are to be active in their own government, and shifting responsibilities for
problems to individuals and communities’ (Ferguson 1990). As the state pulled out of the
realm of social policy, these participatory citizens are charged with shouldering the burden.
And third, there is the move away from sectoral representation. It is not uncommon for
promoters of participation today to frame their appeals as a way of going beyond unions,
68
social movements, neighborhood associations, or interest groups, and placing emphasis on
‘regular citizens.’ There is no role for such organizations. This changes the structures of
collective negotiation between the organizations and the public authorities with a direct
system of decision-making. But this emphasis on direct voice can conflict with, and
disempower, associations and movements formed around conflicts. Thus, the worry by
Frances Cleaver and many others, that a central postulate of the thinking on participation
today is that while there is a lot of emphasis on ‘getting the techniques right,’ ‘considerations
of power and politics on the whole should be avoided as divisive and obstructive’ (Cleaver
1999: 598).
9.3 Tensions with neoliberalism, and recapturing democracy from below: associational
The idea of citizen participation in matters of common concern has very clear origins
has all but disappeared. The question, rather than whether participation is neoliberal, is what
its potential to tension the neoliberal project might be. More and more, democracy appears to
spread while its meaning seems to be ever more modest. There are more ways than ever to
participate democratically today, but the range of decisions within the reach of the demos
seems narrower than ever. ‘We are all democrats now,’ writes Wendy Brown (2015), but, as
would not have much to offer much to address the current challenges to democracy as
detailed elsewhere in this chapter, they are not seamless parts of the neoliberal project either.
There are some important ways that citizen participation can come to be in tension with
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neoliberal projects. First, is that while it is difficult to track with any precision because
Participatory Budgeting, have brought new participants to the demos (Baiocchi and Ganuza
2016). Though there is significant variation, of course, and in some instances there are
evidence is clear that this is not the case all of the time, but there are important examples of
immigrants in New York.9 This is not a trivial accomplishment, especially in that these are
formally spaces of equals, where all, in principle, are allowed equal voice. And in some of
these instances, forums have surpassed the capacity of social movements in creating inclusive
spaces. There is also evidence of democratic learning, and some evidence of increased civic
capacity that has been spurred by these spaces (Talpin 2012). And of course, in a world of
Finally, there is recurring finding by the scholarship that what participation comes to
the Andes, of Brazil, of Southern Europe, or India, one recurring and robust finding has been
that social movements, political parties, and unions can push citizen participation to be more
transformative, more empowering, more responsive to local context, and more tied to
fundamental decisions that matter10. A comparative study of cities that adopted participatory
budgeting reforms in Brazil in the late 1990s, for example, showed that the outcome of the
implementation of the same reform in otherwise similar contexts was conditioned by the
9
There is a vast literature based on case studies. Some exemplars include Su (2017); Rao and Sanyal
(2009) and Baiocchi (2005)
10
This is a finding in Font, Della Porta, and Sintomer (2014); in Baiocchi, Heller, and Silva (2011); in
Baiocchi and Ganuza (2016); in Van Cott (2009); and in many other works.
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presence of these collective actors. In particular the quality of democratization heavily
forums. From that vantage point movements were able to push the limits of participation and
continues to be a platform of social movements and other collective actors around the world
who see in it the potential to deepen democratic institutions and foster social change (see della
Porta’s part in this chapter). Yet, these are the very actors that are excluded in current modes
of citizen participation.
Since the 1960s, the social and political role of judges and courts has dramatically
changed, prompting a shift in the balance of powers within democracies. Although the
intensity and the timing of this transformation has differed from one country to another, the
judicial branch has been endowed with new functionalities, including social progress, the
fight against corruption, identity recognition, the ‘free market’ and antitrust regulation. In a
large variety of countries, from India to South Africa, Brazil to Italy or Germany, courts have
become a central and relatively autonomous arena for the mediation of political, economic
and social interests. The ubiquitous rise of the judiciary in democracies has triggered optimist
scholarly and political discourses on the emancipatory and democratic potential of this new
path. Many have viewed judicial empowerment as fulfilling the promises of liberal
democracies on equality and rights, taking ‘law’ out of the hands of bureaucrats and
politicians and bringing it back to the ‘people’ and civil society. With the active support of
international and regional organizations involved in promoting ‘democracy and the rule of
law’, a standard of the ‘independent judiciary’ has consolidated based on equal access to
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courts, fair trial and professional judges. It has become increasingly valued to settle the hard
cases of democracies and to act as a substitute to the failures of representative politics and to
the pitfalls of international realpolitik. Yet, the progressive potential of this rights- and courts-
centred approach is ambivalent. While the rise of the judiciary has opened up new avenues for
social progress, it has, in a ‘boomerang effect’, contributed to the further weakening of the
courts in the rise of neo-liberal modes of governance now threatens their capacity to live up to
the new democratic and social promises that they have generated over the past decades.
For long, the ‘rule of law’ and the judiciary were viewed by progressives as belonging
to a broader block of socially and politically conservative elites that protected economic
freedoms including property and freedom of contract, thereby impeding the unfolding of more
progressive social and economic deals. In various Western countries, however, the 1970-80s
brought an important change as new claims for equality, often framed as minority rights, have
been pursued through litigation strategies before courts. In the wake of politicization of the
public debate in the late 1960s, new conceptions of law and of courts emerged within the
legal professions in Western Europe, North America and in part in Latin America. New social
movements have contested the monopoly of trade unions and left-wing parties over the realm
potential of rights’ claims. The world of human rights’ activism that has emerged around
transnational NGOs such as Amnesty international, Human Rights Watch, Oxfam or FIDH,
philanthropic foundations, and professional lawyers has come to consider ‘courts and rights’
as a key avenue to fulfill the political and social promises encapsulated in liberal democratic
founding declarations. Following the successes of civil rights’ movements in 1960s America,
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advocacy groups have embraced forms of ‘cause lawyering’ in domains such as gender
some extent, the judicial avenue has therefore become a surrogate for democratic participation
In turn, rights and courts have been profoundly transformed. Historically framed in the
liberal tradition as political and symbolic in nature, texts such as the European Convention of
Human Rights, national Constitutions or bills of rights, and principles such as rule of law and
equality have turned into justiciable legal entitlements. A new blend of ‘constitutionalism’
empowering constitutional courts with the task to protect ‘fundamental’ individual rights. In
the process, new rights have emerged, including privacy and data protection, non-
discrimination, and human dignity, which are now justiciable before national and
international courts. In addition, the weakening legitimacy of legislatures has prompted new
delegations of powers to constitutional courts extending the scope of their judicial review into
new domains, including political campaigning, same-sex marriage, and affirmative action
policies. In parallel, the various Clean Hands’ operations against political corruption in Italy,
Spain, or Brazil solidified a coalition of civil society movements, new sections of the media
as well as moral entrepreneurs around the defense of judges and prosecutors as the best
controllers of ‘political virtues’ (Pizzorno, 1998). In turn, these changes have triggered a
transformation of the judicial branch itself. Under the lead of regional or international
organizations that have promoted higher ‘standards’ of independence and forms of judicial
cooperation across national borders, courts have made a drift away from the state-centric
conceptions of their role. In parallel, thanks to the development of legal aid and the diffusion
of class actions, they have become more accessible and responsive institutions, thereby
opening more ways to use judicial arenas as a venue to settle political and social conflicts.
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10.3. Judicialization and its (dis)contents
Yet, this dramatic change in the role of courts has prompted a wider shift in the
counter-majoritarianism is itself deeply embedded in and driven by political and social elites.
At times, they may even be an essential lever through which threatened political and social
elites attempt to preserve their hegemony and lock in their policy preferences and worldviews,
as Ran Hirschl (Towards Juristocracy, 2004) has argued in the case of the rise of
constitutional courts in countries such as South Africa or Israel. Emblematically, the recent
anti-corruption inquiries in Brazil and the related impeachment procedure against the
elites. The role of legal elites is equally ambivalent. While the rise of courts has also increased
the statute of the judicial and legal professions, the latter are not necessarily more diverse,
socially and ideologically, than the elected representatives (Bellamy, 2007) ; in the end, they
may act more as ‘gate-keepers’ than as ‘transmission belts’, narrowing down social claims
into a pre-existing set of legal alternatives (and, thereby, sidelining potentially innovative
has also brought its own contribution to processes of ‘depoliticization’. The development of a
‘rights’ talk’ that has hampered public debate has often led to an ‘impoverishment of political
discourse’ mostly centred on individualism and liberty at the expense of more collective
causes and solidarity campaigns. While it has helped concretize the claims for ‘equality
before the law’, the rise of courts has further undermined the political relevance of the
constitutionalist conception of the judiciary has in turn fuelled the development of new forms
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of populism that have pointed at the judges’ lack of social and political legitimacy.
Revamping old criticisms of the ‘gouvernement des juges’ and old concerns over the
constitutionalism have emerged as shown by campaigns in the UK led by UKIP and some
sections of the Conservative Party against the European Court of Human Rights (ECHR) or
by the recent ‘political backlash’ led by a variety of a variety of African states against the
jurisdiction of International Criminal Court. Last but not least, the capacity of this ‘new
terrorist threats -from the 2001 Patriot Act to the ongoing ‘state of emergency’ in France and
The promises raised by the rise of rights, however, face an ever bigger challenge given
the instrumental role that courts have gained with the rise of neo-liberal economics. With the
general retreat of state interventionism in the economic realm, courts have become the new
agencies, themselves shaped most often on a quasi-judicial model. Under the umbrella of the
‘regulatory state’ championed by neo- and ordo-liberal doctrines of market regulation, courts
have increasingly instrumental. The liberalization of trade and the promotion of free markets
have been fostered by the creation of specialized economic courts such as the Court of Justice
of European Union or the World Trade Organization appellate body, thereby marginalizing
alternative understandings of other diffuse interests such as social protection or human rights.
Segments of the public administration, business elites and interest groups have used them to
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constitutional statute for economic freedoms through judicial or quasi-judicial bodies such as
monopolies The European Court Justice (ECJ), arguably the most effective
international/regional court in the world, provides a clear example. While economic freedoms
have gained a very powerful stance in Luxembourg, their dominance has prompted a selective
protection of human rights, favoring the rights that were instrumental to the building of a
Single Market such as non-discrimination, and sex equality while disregarding or dismantling
others such as labour rights, which remain weakly protected at the EU level.
This connection between neoliberalism and courts has brought large companies and
transnational interest groups in closer contact with courts. With the rise of multinational
companies and the increasing international flows of trade, finance, and production, a growing
market for legal services has emerged that transcended the traditional national boundaries of
legal systems. Starting in the United States and the United Kingdom in the 1970s, a new
organizational model began to spread internationally, that of global law firms with branches
in Europe and, later, in the new BRICS markets, especially in Asia. These mega-law firms,
such as Baker & McKenzie (with 77 branches in 47 countries) or Clifford Chance, now
provide full and standardized services to their corporate clients ranging from transnational
legal counseling to world-wide legislative and administrative lobbying. Positioned across the
globe, they have the resources to pursue long-run interests in changing the state of the law
through litigation and they are able to play across national and sector-specific legal domains,
seizing fault lines, opportunities and loopholes. The recent cases of the Panama papers or
LuxLeaks have further exemplified the brokering role corporate lawyers may play in
globalized markets. Together with their clients, they engage in judicial forum-shopping,
circumventing state regulations in domains like taxes or social rights. This autonomization of
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the international field of lex mercatoria has led to an unprecedented development of
commercial arbitration and similar forms of private justice shielded from public scrutiny and
forms of accountability. Most trade liberalization treaties now include arbitral mechanisms –
so-called Investment State Dispute Settlments (ISDS) – which circumvent states’ judicial
apparatus. On the whole, the increasing capture of this new judicial terrain of market
regulation by big law firms and large interest groups has contributed to strengthen the
political capacity of their clients and further undermined states’ capacity to promote an
Courts and rights have progressively been integrated into a larger neo-liberal compact,
thereby tuning down the initial promises of equal civil and social rights. Ever since the mid-
1990s, international organizations such as the International Monetary Fund or the World
Bank, as well as law-and-economics scholars, have come to view the independence of the
judiciary and the protection of economic rights such property rights and freedom of contract,
Similarly, in western democracies, courts have played an instrumental role in the rise of the
enforcement of legal norms and a certain style of dispute resolution (so-called ‘adversarial
the more cooperative and neo-corporatist style of government typical of Welfare State politics
(Kelemen,2011). With its limited administrative capacity, weak redistributive policies, and
Directorate General for Competition and central banks, the European Union is the most
emblematic case. Beyond the fact that this new governance scheme arguably obscures
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representative politics, turning various intermediaries, be they consultants, lobbyists,
In the end, the rise of rights and courts is highly ambivalent. Their progressive role in
fulfilling the liberal and social promises written down in the grand declarations and bill of
rights of liberal democracies is nowadays undermined by the instrumental role that courts and
lawyers play in the rise of neoliberal policies and the demise of the Welfare State. In ways
akin to what Luc Boltanski and Eve Chiapello have described as The New Spirit of Capitalism
(2006), the progressive potential of rights’ claim for recognition and autonomy has been in
part incorporated and diverted into the neoliberal compact in ways compatible with its
development. And yet, this tipping back of the judiciary is far from complete and still
11. The construction and governance of democratic political spaces in times of perceived
crises
implies dissent and division, but on a basis of consent and cohesion. It requires that the
citizens assert themselves, but also that they accept the government's authority. It demands
that the citizens care about politics—even if not too much’ (Diamond 1990: 56).
Consequently, a healthy democratic state invites its inhabitants into its decision-making and
liberal democracies are constitutionally committed to allow dissent. The public spaces for
assembly and freedom of speech are essential elements in democracies and these spaces of
contention, according to liberal constitutions, must be protected. The conundrum lies in that
while domestic dissent must be allowed, governments are determined to steer this dissent in
ways that do not fundamentally threaten the political and economic order. The spaces for the
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manoeuvre of political challengers must be protected without jeopardizing the rule of law.
Demonstration rights must be made secure but political violence on the part of challengers,
such as terrorist attacks on refugee centres or mosques, must be rigorously policed. In other
words, institutional actors meet the perceived threats of oppositional forces with actions
designed to ‘steer the conduct of civil society’ (Loader 2000: 344). Repression or policing
contention is a dispersed mechanism for the governance of the dominant political and
economic order. Dissent is governed, by sheer coercive force or by less strong-arm and subtle
means, in order to maintain the status quo (Peterson and Wahlström 2015).
many cases this is correct in so far as it concerns the steering, that is, law-making and
‘war on terror’ has dramatically extended the geo-political scope of the governance of dissent
to the global scale and with this extension clouded the traditional distinction between
international cooperation and intelligence sharing between police authorities and security
services and private corporate intelligence agencies in this new situation for the governance of
dissent.
across the globe enacted anti-terrorist legislation, such as the Patriot Act in the US and the
Prevention of Terrorism Act in India, which have radically expanded the repressive powers of
the federal government thereby infringing on the civil rights of assembly and protest (Cole
2003). Abdolian and Takooshian (2002: 1446) point out that ‘historically, during times of
crisis, it has been natural for democratic nations, including the United States, to temporarily
abridge individual liberties in ways that would never be considered in more halcyon times’.
The rule of law, in Agamben’s (2005) understanding, becomes lawless. For example, the
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USA Patriot Act of October 2001 dramatically expanded the definition of terrorism to include
what the Act defined as domestic terrorism, thus enlarging the number of activities to which
the Patriot Act's extended law enforcement powers could be applied. For example, animal
rights and ecological organizations could fall within its reach making it potentially a ‘felony
to, among other things, ‘deter’ the business activities of industries engaged in the exploitation
of animals and natural resources’ (Eddy 2005: 262). These changes in the statutes have,
according to Eddy, boosted the governance capacities in some states to protect economic
environmental protest.
crime control for the efficient production of knowledge useful in the administration of suspect
populations’ (Ericson 1994: 139), thereby more and more and effectually extending in liberal
democracies the legal scope of repression away from respect for the constitutionally protected
11 and further accelerated in face of the threat posed by ISIL (Islamic State of Iraq and the
populations. By casting a wide net in their counterterrorism measures, security services have
effect risks criminalizing Muslims per se (Peterson 2012). Counterterrorism policing in many
Western European countries now gives priority to what are called preventive strategies, which
in effect extends the scope of repression from political dissidents to targeted communities and
away from the constitutionally protected rights of individuals, which is a cornerstone in the
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Political actors – both social movements and political parties – are found across the
political spectrum; not all political actors are benign nor democratically progressive. We have
in addition the basic democratic paradox of majoritarian rule in liberal democracies in which
majorities can suppress minorities and, with the support of an electoral majority, the processes
of democracy can be turned back or even overturned; for example, the current cases of
In the wake of the fiscal crisis in 2008 and the waves of refugees seeking entry into
Europe far-right extremist movements and far-right parties are mobilizing the ‘losers’ in ever
increasing numbers across Europe, as well as the US. Democracies, through an ordinary ‘free
and fair’ election, can take a turn away from the rule of law. In Hungary in 2010 Viktor
Orbán’s Fidesz Party won 53 per cent of the vote and a seat bonus big enough to give it
powers of constitutional amendment, moving toward what Orbán himself has called an
‘electoral revolution’. The speed and the scale of the changes have indeed been revolutionary.
The new 2011 Constitution and its enabling acts have turned what are supposed to be
politically neutral bodies such as the Constitutional Court, the Central Bank, and the offices of
the Ombudsman and the Public Prosecutor into arms of the ruling party. In short, according to
Rupnik (2012: 133), ‘Orbán and his lieutenants have downgraded or done away with the
checks and balances that are widely considered essential for the rule of law’. If you add to this
an act that creates a state agency meant to ensure ‘media objectivity’, thereby undermining
the public space for critical opposition, you have the main components of an authoritarian
The ruling Law and Justice Party (PIS) in Poland passed laws in 2015 that make it
more difficult for the Constitutional Court, to overturn any of the government's decisions. The
Court itself refused to follow the new laws, which it declared were unconstitutional – a
textbook definition of a constitutional crisis (see Vauchez this chapter) – and a full-blown
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domestic democratic crisis has erupted. KOD, a new pro-democracy movement established in
2015, put an estimated 250,000 people on the streets for a protest in May 2016. The Council
of Europe’s Venice Commission, which focuses on constitutional rights and the rule of law,
issued a report condemning the moves. On the border of the EU in Turkey we find a similar
authoritarian drift in the governance of dissent. President Erdogan has gradually been
reversing two decades of democratic progress in Turkey and had in 2016 pushed through a
tough anti-terrorism law — condemned by the EU — that was used to target even
democratically minded opponents, when placing under arrest the pro-Kurdish HDP party
leaders together with ten MPs. In short, after the failed coup in July 2016 the ruling AKP
party has launched draconian measures to silence dissent. Tens of thousands have been
purged in the effort to rid the civil services and education system of alleged Gülenists
reaching far beyond the proponents of the putsch to target other dissidents.
In the 2014 European elections in the UK the Eurosceptic far-right party UKIP
achieved first place with 27.5 per cent of the total vote marking the first time since the 1910
general elections that a third party garnered the largest share of the votes. That election paved
the way for the 2016 advisory referendum when, led by UKIP and some Conservative Party
members, 52 per cent of the votes were cast in favour of leaving the EU. Negotiations for a
While the developments in Hungary, Poland, Turkey, and the UK are perhaps the most
dramatic, these movements and parties have found varying traction within civil societies and
among electorates across Europe. The response by many citizens across Europe to the so-
called refugee crisis has been to cast their votes for authoritarian, nationalist, xenophobic and
anti-EU parties. These far-right parties are flourishing, now further fuelled by Trump’s
presidential election victory in the US. During his campaign Trump had openly and
repeatedly attacked basic democratic and constitutional norms; not least his support for
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physical violence as a response to political disagreement and his virile attacks against critical
journalists. These political developments are unsubtle reminders that majoritarian rule must
be tempered by robust constitutionalism that protects the civil rights of minorities and defends
free speech.
Events, whether these are terrorist attacks or the perceived threat of terrorism, fiscal
crises, or a refugee crisis, demonstrate the fragility of democratic processes in so-called new
The still on-going fiscal crisis is challenging democracy from both a technocratic and a
populist direction. In Greece and Italy, democratically elected but insolvent governments have
succumbed under pressure from the Eurozone and the European Central Bank and ceded
Porta (forthcoming) a shared element of the recent anti-austerity protests she studied in Latin
America, Eastern Europe and South Africa was the discontent at what was perceived as a
politicians.
The authoritarian tendencies we are witnessing across the globe appear to marry well
with the ‘liberal state’. In the wake of the global fiscal crisis della Porta (2015) identifies a
example with bail-outs of banks, which more or less undermines government finances, liberal
governments are unable to protect their citizenry from the deleterious effects of global
neoliberalism. Facing the real challenges from an aggrieved and concerned citizenry, dissent
In conclusion, democracy is under siege and from a number of fronts, not least from
the state itself. The responses of governments across the globe to real and perceived crises,
even of governments that with some justification claim to be ‘liberal’ and ‘democratic’,
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provide substance to Giorgio Agamben’s (2005) portentous warning that we have entered a
‘permanent state of exception’; ‘the state of exception has become a paradigm of government
today’ (Agamben and Raulff 2004: 609) and security has become the political vernacular. The
existence of derogation-like clauses permits states to suspend the protection of certain basic
human and civil rights thereby undermining meaningful political action. For example, after
the failed coup in Turkey mid-July 2016 a state of emergency was decreed and has since been
prolonged for an indefinite period. The decree has allowed the Erdogan government to shut
down the Internet in eleven Kurdish cities and restrict access to social media services
throughout the country; the top executive of Turkey’s most influential opposition newspaper
together with nine other staff members have been likewise incarcerated.
Declaring war on terror the Bush administration invoked a global state of emergency
to wage infinite war on an indefinite enemy. The war on terrorism is highly ambiguous, more
or less infinite; the Pentagon originally named the ‘war against terrorism’ ‘Operation Infinite
Justice’ (cited in Kellner 2007, p. 626). The present ‘permanent state of exception’ should,
recourse to extensive government powers’ (Agamben and Raulff 2004: 610), which can be
introduced to cope with political dissent more generally — we see increasingly the
conjunction of sovereign power and the police in the governance of dissent in contemporary
democracies. As Ian Loader and Neil Walker (2007: 7) point out, the state itself must be
civilized – ‘made safe by and for democracy’. States can only do so by engaging with all of
its inhabitants, even the poor and dispossessed, in constitutionally protected spaces for
democratic dialogue and dissent regarding the exercise of its power. A vigilant and engaged
citizenry offers the sole protection against the potential excesses of democratic states. It is
upon their shoulders that the responsibility for ‘taming states’ lays. Rule by the people must
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12. Internet and the paradoxes of democracy and the rule of law
The Internet has become a central feature of contemporary societies. According to the
International Telecommunication Union (ITU), at the end of 2016 nearly half of the world’s
population had an Internet connection whilst in 1995 it had been less than one per cent. The
bulk of internet users can be found in developing countries, with 2.5 billion users compared
with one billion in developed countries in 2016. The rise of the Internet has led several
commentators to describe the last two decades as the ‘cybersociety’ (Jones 1998), ‘Internet
society’ (Bakardjieva 2005) or the ‘Internet age’ (Castells, 2015). These views give special
attention to digital media as a major driving force shaping the structures of modern
‘networked’ societies.
The Internet has facilitated new forms of structuring the ways humans relate to one
another, and influence one another. The profound impact that the internet has had and
continues to have in modern societies has triggered a growing literature on the effects it has
on democratic processes. This section discusses how communication technologies are shaping
and engagement through active discussion with other citizens (Habermas, 1996). The Internet
brought the hope of an expanded and new public sphere, capable of embracing a broader set
The high rate of Internet penetration, low cost of online communications and global
reach, have brought attention to the possibilities of the internet as a source of citizen
empowerment (Benkler, 2006). In this respect, the Internet holds the potential to generate
traditionally ‘voiceless’ agents to express their demands – a platform where individuals and
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communities are able to express their needs and desires. In addition, the combination of an
Moreover, the dissemination power of the Internet brings a new dimension to citizen
the media (Goode, 2009). The importance and appeal of the empowering potential of the
However, less is known about the negative impact that ICTs can have in democratic
processes. Some arguments include the potential of further social polarization, with the
Internet becoming a public sphere for the educated and affluent (Streck 1998; Dahlberg
2001); the dangers of information overload and misinformation (see the viral widespread of
fake news reported during the 2016 USA presidential elections and elsewhere) 11; and the way
in which such rapid widespread of radical collective action can lead to violent conflict
escalations.
The possibility to build stronger democracies in times of digital media and the Internet
is still not well understood. It has already been argued that technology and democracy have
Thanks to emerging online platforms, citizens find new ways to engage in the
democratic discourse. The African continent, wherethe extensive use of cell phones has been
coupled with a more recent and massive interest in social media, provides an example of the
related data in Kenya (see case of Ushahidi) 12. These online platforms, designed to be used
11
http://www.nytimes.com/2016/11/18/technology/fake-news-on-facebook-in-foreign-elections-thats-
not-new.html?_r=0
12
http://www.un.org/en/africarenewal/vol24no1/ushahidi.html
86
by ordinary people, allowed users to report a violent incident through text message, e-mail or
web submission, and to portray the information on an online map13. These modes of citizen
monitoring have reportedly performed better than mainstream media by gathering more cases
of violence and covering wider geographic areas. The ability of citizens to write their own
news and monitor events has deep implications on political voice (Hindman, 2009). Such
valuable examples also raise questions about the dangers of lowering the gates of free-flowing
information and the risks of misinformation; with the absence of gatekeepers it becomes more
Along with ordinary citizens, political leaders are also increasingly reliant on ICTs, and
the 2004, 2008 and more recently the 2016 USA presidential elections are testimony to that.
Newspaper and television-based electoral campaigns have been largely replaced by those
conducted through social media. Twitter becomes a key tool used by political parties and
candidates to inform the public about their stances and express their grievances. A recent
study has shown that 62 per cent of US citizens get their news via social media (Gottfried and
Shearer, 2016).
Activists and dissenters are also adapting the ways in which they communicate,
collaborate and protest to the possibilities brought by new online platforms (Kelly Garrett,
2006). The speed at which ICTs are able to spread information about a particular event or
concern, accelerates the reach of support communities across geographical areas, leading to
and elsewhere have been partly credited to the creative use of social media platforms such as
13
Ushahidi’s software has been adapted to other geographical areas, to help rescue earthquake victims in
Haiti, and monitor violence in the DRC, South Africa and Gaza
87
Making political statements through non-violent direct actions such as activism and
democratic participation have taken new forms with the evolution of ICTs, especially through
social media. As stated by Youmans and York: ‘Information technologies have become
serve as venues for the shared expression of dissent, dissemination of information, and
collective action’ (Youmans and York 2012: 315). In this respect, there is a considerable
amount of research that has pointed out the ability of ICTs and in particular the internet to
nurture the development of collective identities across dispersed populations, to the extent
that can lead to collective action. Many studies have found evidence of protest groups that
have formed and acted collectively on the basis of concerns shared through social media and
internet-enabled blogs and websites (Castells, 2015). The growing belief that ‘The Revolution
Will Be Twittered’ comes together with predictions of a ‘revolution 2.0’ and a ‘Facebook
revolution’. Nevertheless, in response to such perceived power, others have questioned the
ability of social media to bring about radical change. Such cautions are based on the
observation that social media activism involves low risk and weak ties (Gladwell, 2010)
political matters with minimum effort such as joining a Facebook group or adding your name
to an online campaign.
These are not, however, static relationships and interactions, and Internet-enabled
technologies, especially social media are surrounded by a changing ecosystem of actors and
institutions. They are constantly evolving, and so their governance and use also evolve.
14
Although civil disobedience remains controversial given that it violates and ignores existing laws.
88
The Internet has facilitated the adoption of more decentralized, non-hierarchical
democracy’ visible in the general disengagement of young people from traditional forms of
political participation. Youth and their relationship with digital media deserves particular
Hacktivism has become one of the ways for civil society to communicate ideas and
promote the principles of democracy and enhance individual freedoms using technology. The
role of hacktivism has gained visibility in recent years and speaks directly to the issue of
power, technology and society. Hacktivism, or the actions of politically motivated hackers,
emerge from the marriage of political activism and computer hacking. They differ from other
types of hackers in their motivation, as they are driven by the pursuit of social change, rather
than profit. Wikileaks and Anonymous have become some of the best known hacktivist
networks.
Wikileaks started operating in 2006, offering a platform for whistle blowers to expose
transparency by exposing sensitive files to the public, thereby subjecting them to societal
scrutiny. Their existence and high levels of activity has ignited worldwide debate on the
human rights advocates and geeks’ who organize collective actions online and offline that
‘advance political causes’ but are also organized ‘for sheer amusement’ (Coleman 2012).
89
celebrity ethic, ‘decentralized non-hierarchical modes of interaction’ and a ‘commitment to
participation, and are likely to have a continued and growing impact on the Internet and the
world. They represent a way for civil society to participate in global politics through the new
public sphere, communicate their ideas and promote the principles of democracy using the
technology. Through their actions, hacktivists have raised important questions related to the
power as well as the traditional channels of challenging power (such as independent press and
Driven by a clear ethic and norms, some hacktivists disrupt the status quo of politics,
holding politicians accountable by bringing their actions to the media spotlight. However,
there is still a need to differentiate between different types of hacktivists – as they vary in
their motives, ethical adherence and willingness to engage in illegal or legally ambiguous
activities – while some forms of hacktivism are clearly illegal other types remain in the grey
area of transgression. In this respects, the delimitation over boundaries of what are socially
acceptable protest activities, remains under scrutiny. What is becoming clear, is that the
15
It became better known in 2010 through their support of Wikileaks, by launching a series of Distributed
denial of service (DDoS) attacks to shut down the websites of several companies that disabled donations to
WikiLeaks.
90
political participation and the emergence of new configurations of social movements (Bosch,
2017)16.
multifaceted relationship between online platforms and new forms of democratic participation
in order to ensure that they assist the democratic process by encouraging open debates while
13. Progressive social movement and the crisis of responsibility in late neoliberalism
Social movements affected, affect and can be expected to affect the development of
states in democratic as well as non-democratic regimes (della Porta 2014). While not all
movements have been oriented to expand citizens’ rights, progressive social movements have
struggled for civil, political and social rights, also addressing the meta-issue of what politics
and democracy are about. Social movements on the Left have in general challenged a
Historical work on the evolution of citizens’ rights has stressed the role of
mobilization from below in achieving them. Civil, political and social rights developed with
the mobilization of the labour movement, bringing about institutional change. At the origins
of democracy lies ‘the entrance of the masses into history’ (Bendix 1964: 72). In the protest
campaigns for the widening of citizenship rights, other models of democracy were also
16
Bosch, T. (2017). Twitter activism and youth in South Africa: The case of# RhodesMustFall.
Information, Communication & Society, 20(2), 221-232. Chicago
91
conceptualized and practised, including direct, horizontal, and self-managed democracy.
Social rights began then to be discussed as indispensible conditions for a true enjoyment of
political rights (Marshall 1992: 28). As with the labour movement in the past, so more recent
movements became arenas for debating and experimenting with different conceptions of
democracy. The protest movements of the late 1960s were interpreted as an indication of the
widening gap between parties and citizens, and of the parties’ inability to represent new lines
of conflict (Offe 1985). The anti-authoritarian frame, central for these movements, was
articulated in claims for ‘democracy from below’. Democracies of councils and self-
management were also discussed in the workers’ movements of those years. In part, these
conceptions penetrated the democratic state through reforms that widened participation, in
schools, in factories and in local areas but also through the political recognition of movement
challenges requires an assessment of the mechanisms whose functioning was needed in order
for liberal democracy to be legitimate. Three such mechanisms were necessary. First, liberal
democracies needed functioning political parties as actors that could implement the principles
needed a nation-state as defining the border of the demos in whose name and interest
decisions were made (see Keating’s part in this chapter). Third, and more subtly, even though
liberal democracy did not call for social equality, it still relied upon the assumption that
political equality would reduce a social inequality that threatened the very principle of free
access to political rights (see Crouch’s part in this chapter). The liberal form of democracy
developed, that is, in contexts characterized by three elements: well-established welfare states,
92
party democracies, and the full sovereignty of the nation state. At the turn of the millennium,
these conditions have been challenged as neoliberal globalization as well as other evolutions
in contemporary democracies have produced a shift of power from parties (and representative
organizations (IGOs); and from the state to the market, which also implies a shift from
welfare state to warfare state. Even though these are neither complete nor natural or
democracy, that is based upon an elitist conception of electoral participation for the mass of
the citizens and free lobbying for stronger interests, along with low levels of state intervention
(Crouch 2003: 5). While the weakening of political parties, nation states and welfare states
challenges some definition of democracy, they might have produced some opportunities for
2006: 8).
Social movements have long been considered as children of affluent times, or at least
of times of opening opportunities. The protests against first the austerity policies in the global
South and then the Great Recession in the European periphery defy these expectations,
developing in moments of declining opportunities at both economic and political levels (Silva
2009; della Porta 2015, 2017). What is more, in many parts of the world, these movements
have been able to radically change the party system, promoting the emergence of new actors,
sometimes able to experiment with new policies (Roberts 2015; della Porta et al. 2016). If
there are potentials for change in a progressive direction, the challenges for a progressive
politics from below remain high; in the mobilization capacity of a fragmented social bases,
the development of a collective identity and solidarity, and the construction of a sustained
organizational structure.
93
13.3 Class structures and the social base for protest: the challenge of fragmentation
Social movement studies have seen recent changes in the social structure as not
and migration weakened the structural preconditions that had facilitated the emergence of a
class cleavage, particularly in the working-class model of collective action, but recent
developments have also jeopardized citizens’ rights through poverty, unemployment, and job
insecurity. Anti-austerity protests have challenged the new social movement paradigm.
Sometimes called ‘multitude’ or ‘precariat’, those who protested against austerity represented
coalitions of various classes and social groups that perceived themselves as losers of
employment in ill-paid and un-protected. Young people took the lead in the Arab Spring, and
those affected by the financial crises mobilized in different forms in Southern Europe. These
young people are not those which have traditionally been described as losers. They are rather
the well-educated and the mobile, which were once described as the ‘winners’ of
Together with them, however, are other social groups that have lost most from the
neoliberal attacks to social and civil rights, from public employees to retired individuals.
Once considered as the most protected social groups, they have seen their rights continuously
fundamental rights such as those to health-care, housing, education (della Porta 2015).
Similarly, blue-collar workers of the small but also large factories, shut down or at least in
danger of being shut down, have participated in the wave of protest. With high levels of
94
participation by young people and well-educated citizens, the anti-austerity protests brought
into the street a sort of (inverted) ‘2/3’ society of those most hit by austerity policies.
Traditional workers participated, but so did retired people, unemployed and precarious
workers (although these were more present in other types of protests). Therefore, the protests
brought together coalitions of citizens with different socio-biographic backgrounds, but united
The capacity of protest waves mobilize this broad but heterogeneous basis has been
varied, however, with very different opportunities for coalition building as well as
collective identity. If neoliberalism strengthened a liquid culture, destroying old bases for
personal, collective and political identity through forced mobility and related insecurity
the individualization of liquid society as well as its fear and exclusivism, calling instead for
state intervention and inclusive citizenship, with the re-emergence of a social criticism of
capitalism. Defining themselves broadly – as citizens, persons, or the 99 per cent – activists of
the anti-austerity activists developed a moral discourse that called for the reinstatement of
welfare protections, but they also challenged the injustice of the system (della Porta 2015). A
call for solidarity and a return to the commons has been juxtaposed to an unjust and
nationalism with recognition of the need to look for global solutions to global problems.
Differently from the global justice movement, which had presented itself as an alliance of
95
minorities in search of a broad constituency, the anti-austerity movements have constructed a
broad definition of the self (della Porta 2015). Backward looking, the anti-austerity protests
called for the restoration of lost rights, vehemently denouncing the corruption of democracy.
However, they also looked forward, combining concerns for social rights with those for
cultural inclusivity. As precariousness, as lost security about life development itself, spread
from young unemployed and under-employed to large social groups of once protected,
identification with the overwhelming majority in the society might provide some certainty.
What remains open is however the capacity of these movements to build new
collective identities. The recognition of the great diversity within the movement does not
seem sufficient to build long term solidarities. The populist reasoning, as reconstruction of an
legitimacy that takes the particular form of a crisis of lack of responsibility towards citizens’
demands (della Porta 2015, 2017). However, rather than developing anti-democratic attitudes,
protesters claim that representative democracy has been corrupted by the collusion of
economic and political power, calling for participatory democracy and a general return to
public concern with common goods. Given the extremely low trust in existing representative
institutions, these movements have addressed requests to the state, but also experimented with
prefigure new forms of democracy. In comparison with the global justice movement, the
for channels of access to public decision making through lobbying or collaboration. Even if
there is still a search for politics, its traditional forms are mistrusted and autonomous ones
96
explored. In this sense, these movements are not anti-political but rather propose a different –
deliberative and participatory – vision of democracy that they prefigure in their own
power is called for as a way to find solutions to common problems. In the presence of an
institutional system felt as more and more distant, a direct commitment is asked for.
Deliberative and participatory conceptions and practices of democracy are combined with an
emphasis on the direct participation of the citizens rather than through networks of
associations.
Very successful in addressing the public and at times capable of sudden and dramatic
political effects, these protests have been based upon new strategies with however still
uncertain capacity for organizational resilience and the stabilization of collective identities.
Donald Trump’s victory in the 2016 US presidential election has been widely
perceived as a sign of the triumph of regressive over progressive movements. Similarly, the
Brexit referendum has been taken as an indicator of a wave of parochialism that threatens to
moments of crisis also engender political and social polarization. In fact, social movements
have frequently emerged simultaneously on both the Left and the Right. In the crisis of
emerged, developing in two directions: some were progressive, seeking to expand citizens’
rights within an inclusive, cosmopolitan conception, and others were regressive, yearning for
a bygone order in which only a restricted number of insiders were protected. However, it
remains to be seen whether the Brexit or Trump campaigns can truly be conceived of as
97
If we look indeed at the forms that this discontent takes on the Right, they appear to be
very different from the ones we can observe on the Left: not only with respect to the socio-
political content of their claims, but also with regard to organizational models. Research on
right-wing populism has long identified a cultural demarcation – with cosmopolitanism on the
one side and xenophobia on the other – that separates the political Left from the Right (Kriesi
et al 2012). This is all the more the case today. Additionally, politics on the Right is
rather than citizen participation. This clearly differentiates it from progressive movements.
develop remains to be addressed. Research on progressive movements has clearly shown that
the specific characteristics of discontent under neoliberalism and its crisis are influenced by
the political responses to the great recession, particularly by the strategies of centre-left
(especially party) politics. Notably, research on anti-austerity protests in Latin America has
shown that the most destabilizing waves of protests occurred where party politics failed to
offer channels of anti-neoliberal dissent, as all major parties supported neoliberal policies
(Robert 2015). A similar situation seems to be emerging in Europe, where the consequences
of repositioning on the Right in terms of (exclusive) visions of social protection seem all the
more dramatic when the Left is perceived as championing free markets and lacking a
significant alternative.
At the end of the 1980s and into the beginning of the 21st Century, all of the political
conditions for a qualitative leap forward in social progress seemed to be in place. The
triumphal declaration of ‘the End of History’ was regarded by many as credible. It implied
that no longer did citizens (except for the diminishing proportion of them living in
98
autocracies) have reason to expect any radical challenges to their established institutions.
Liberal democracy, the rule of law and social equity had become solidly entrenched and
mutually supportive. The Wall dividing East and West had fallen. The Soviet Union had
collapsed and fragmented into new republics. The countries of East-Central Europe were well
on the way to a successful transition to democracy, following the trajectory established earlier
in Southern Europe, Latin America and a few countries in Asia. Centrist political parties with
convergent and moderate programs dominated most elections. Parties opposing capitalism
and/or democracy barely existed and, if so, were confined to the fringes of political life. The
European Union had completed its ‘Internal Market’ and just made a ‘Great Leap Forward’
with the creation of a common currency. Regional organizations were spouting up all over the
globe, lowering barriers to trade and investment. All of this seemed to promise further
economic growth, less inflation, full employment, more and better well-being – undisturbed
by political threats.
The conjuncture of these events presaged a peaceful and prosperous evolution for the
foreseeable future, especially in social progress. National states were expected to be much
less pre-occupied with external or internal security. The bounty from the presumed decline in
military and police expenditures was supposed to be diverted to new or improved welfare and
educational policies. Poverty would be eliminated; public health would improve; education
levels would rise; pensions would become more bountiful; inequalities in personal and
regional income would diminish; access to and fairness within the judicial system would be
assured. Thanks to this convergence of ‘all good things,’ the legitimacy of public institutions
would be guaranteed and the grateful citizens would come to support and trust the politicians
that would be associated with the production of such manifestly superior public goods.
It would not be an exaggeration to observe that virtually all of these expectations were
frustrated. The ‘Dog of Social Progress’ did not bark in the 1980s and has remained silent into
99
the 21st Century. This reversal of expectations has led to widespread disillusion and distrust
with both the new and old liberal democracies and mistrust of the politicians that make them
work. Traditional political parties lost members; voters no longer identified with them; fringe
parties increased their presence in elections and in the public debate. The judicial process has
achieved more attention than before, if only because of persistent stalemates in the political
process, and issues involving access to courts and the fairness of their decisions increased.
The institutions and performance of capitalism are under greater criticism than at any time
since the 1930s. Instead of the expected progress in social conditions, citizens and denizens in
countries across the globe have suffered from decreases in policy entitlements and in public
spending on programs designed to combat poverty, ill health, poor education and income
inequality – with the result that virtually all indicators of social distress have risen since the
1990s.
Why did this happen? What intervened during this period to so dramatically frustrate
No doubt economic factors played an important role. Growth rates declined and
remained low in the developed countries; they increased but became more erratic in the
developing ones. Where the aggregate demand of consumers declined, so did the incentives
for investment and the margins of profitability. This, in turn, reduced public revenues and
augmented resistance to redistributive policies – at the same time that the need for insuring
against social risks and for compensating in response to market failures became more acute.
One response of both private persons and state authorities was to borrow more funds in an
effort to fill the widening gap – and that subsequently generated a massive crisis in currency
markets, credit institutions, fiscal policies and public confidence. If all that were not enough,
the very core of capitalist accumulation shifted from industry to services and within the
service sector, to financial services. Much of the reduced growth was gained through
100
speculation by firms that employed few people and rewarded them generously – at the
expense of the general public. Inequalities in income and wealth climbed to levels not
experienced since the end of the 19th Century – before the policy foundations for improved
Changes in political conditions were quick to follow and even more disruptive of the
trend toward social progress. Centrist and especially Leftist parties – historically the main
supporters of increases in citizen entitlements – lost members and vote share. They have been
increasingly replaced by populist fringe parties and candidacies that promise to address the
decline in well-being, but have no concrete proposals for accomplishing this. At the same
time, fewer and fewer citizens identify with any party and more and more of them bother to
vote at all. Labour unions and employer associations became less representative of their
respective class interests, and previously stable patterns of collective bargaining between
them have dissolved into purely individual or plant level agreements. Those segments of the
working class that are unemployed or precariously employed and, hence, no longer covered
alienated from the political process altogether and more likely to respond to populist and
national appeals.
As significant as they may be, these economic factors and political conditions might
have been insufficient to explain the reversal in trend were it not for an even more important
change in the nature of the unit responsible for deciding on the public policies that affect
social progress. That unit is (or, better, was) the sovereign national state. It was presumed that
it alone had the capacity to impose regulations, redistribute benefits, subsidize production,
promote education and to do so by exercising its legitimate and exclusive authority over a
distinct territory. Beginning in the 1980s, its capacity to do all of this in a sovereign manner
101
globalization – has emerged that limit the extent to which any state take these policies without
reference to public and/or private actors outside its territory and beyond its jurisdiction.
Whether these constraints are imposed by supra-national institutions at the global or regional
level is less important than the extent to which they must be respected and the consequences
that will follow if they are not. Putting the matter bluntly, social progress is no longer the
In retrospect, it has become apparent that the increase in social progress that followed
the Second World War was the product of an unusual coincidence of economic factors and
political conditions. There was a shortage of labor for physical reconstruction, a manifest
need for investment, and enormous opportunities to satisfy pent-up consumer demand (and to
make assured profits). Moreover, governments had made extensive promises to disfavoured
groups during the war in order to ensure their loyalty and their willingness to make sacrifices.
National states had won the war and exercised uncontested authority over their respective
territories (with the exception of those who lost the war and were occupied by the victors). If
this were not enough, there was also the persistent menace of the Soviet Union and national
communist parties to justify making concessions to less favoured groups. This constellation of
factors and conditions was anchored in a relative balance between competing classes and
converging ideologies that persisted for some forty years or so. It has been labelled ‘the post-
war settlement’ and it contributed very substantially to the expansion of welfare and
educational policies during this period. While it was particularly characteristic of post-war
Europe and North America, it set precedents and produced policy innovations that affected
public decision-makers and private interest representative in other parts of the world.
‘Social progress depends upon social contract,’ that is the lesson to be gleaned from
the post-war history of the North and West and from the post-colonial history of the South
and East. Needless to say, the socio-economic content of that contract and the political
102
process that produces it has varied a great deal – as has its durability. Everywhere that it has
existed, it has rested on two generic features: (1) the self-organization of the conflicting class
interests at stake; and (2) the relative balance of power between them – as well as on the
competing presence of other cleavages that cut across the functional conflict between capital
and labor and serve to divide or weaken their respective capacities to act collectively, as well
traditional societies, both the interests at stake and the balance of power between them will be
significantly different. A viable and effective social contract will depend more upon cultural
norms of responsibility and reciprocity, rather than calculations of material advantage. But
once capitalism has penetrated the society and undermined traditional groups and norms,
social progress will depend primarily upon arriving at a compromise between capital and
labor. This will, no doubt, be made more difficult by the persistence of tribal, religious,
linguistic, generational, gender and centre-periphery conflicts in any specific case, but the
distributed and the production of wealth is to be regulated – and by whom for the benefit of
whom. Needless to say, such contracts are not always likely to be self-enforcing, hence, the
need for the intervention of public authority to ensure that the contract will be observed.
policies without discrimination and sanction non-compliance, all social contracts would be
regardless of the type of regime (although democracies are far more reliable in this regard
than autocracies), their viability and longevity depends, not just on the perceived fairness of
their distributive impact, but also on the existence of an established and reliable legal system
to adjudicate eventual conflicts and compensate victims. Without the rule of law in the
103
background to enforce them, no social contract is likely to persist for long – and, hence, no
Europe and North America, considerable social progress was achieved during the forty or so
years after the end of the Second World War. This was accomplished, however, as the result
of two quite different processes of social contracting. The first favourable scenario has been
parties, the contract was ‘unsigned.’ It emerged spontaneously from the exchanges, largely
among individuals and firms, in product and labor markets. By combining supply and demand
in a competitive manner, they would create a ‘fair’ and ‘consensual’ distribution of benefits –
provided that these markets were neither monopolistic nor oligopolistic and provided that
public authority was licensed to ensure that contracts were obeyed, that regulations were
followed and that weak and marginalized citizens were compensated. Social justice (or
progress) depended primarily upon the efforts of individuals to realise their potential
Failure to do so was a matter of personal responsibility, not a failure of the system as a whole.
In accordance with liberal principles, short-comings in this distributive process would (and
should) be cared for by the voluntary actions of ‘charitable’ organizations in civil society, not
by governments. The fact that labour was then relatively scarce and had a momentarily
greater capacity for collective action that could plausibly affect the profitability of firms
provided a relative balance in class forces that encouraged moderation and compromise. The
ideological hegemony of liberalism in these polities ensured that the ‘freedom’ to compete for
goods and services was regarded as preferable to the ‘tyranny’ of state intervention – and the
104
In the latter, characteristic of polities dominated by Social Democratic or Christian
Democratic parties, the contract was ‘signed.’ It emerged as the result of explicit bargaining
between organizations representing conflicting class interests and capable of ensuring the
compliance of their respective members. Supply and demand were monitored and controlled
by both public and semi-public institutions, as was the distribution (and, in some case, re-
distribution) of eventual benefits by ensuring that wages more or less tracked the evolution of
productivity and that working conditions and skill levels would continuously improve.
Critical for the success of such an allocation process was the high level of self-organization of
the contracting parties. Not only were a large proportion of the respective social classes
incorporated (whether voluntarily or involuntarily) into the institutions that represented their
interests, but these organizations were comprehensive and hierarchically ordered with regard
to the classes and sectors they represented, monopolistic in that they faced no competition
from other organizations, and officially recognized by the state and granted assured access to
decision-making and a role in implementing the policies eventually taken. The ideological
justification for such arrangements was weaker than that provided by the ‘freedom’ of
liberalism. They were legitimated more by their success in increasing well-being than by their
Signed or unsigned, the social contract no longer provides a reliable basis for social
progress – and has not been doing so since, roughly, the early 1980s. The two elements that
combined to produce it – the self-organization of conflicting class interests and the relative
representing capital, labor and the profession have lost members and the capacity to act
collectively and credibly – as have the so-called ‘sister political parties’ that supported them
in the electoral and legislative process. Due to the globalization of capitalism and the shift of
its center of accumulation to finance from industry, the reciprocal capacity of labor and
105
capital to influence each other’s behaviour and, thereby, compel them to resort to
compromises in the distribution of their joint product has literally disappeared in the favour of
the latter. In the absence of these two elements, it is difficult to imagine any significant
increase in social progress for the foreseeable future, at least in those Northern and Western
countries that had previously played a leading role in its advent. Hopefully, there may exist
more favourable conditions for it in some of the countries of the South and East that are more
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