Discussing the notion of a “professional judiciary†and the semantic and philosophical issues underlying it has indeed become a necessary task in our community. CARE welcomes this debate and will gladly participate in it at the same level of discourse and in the same spirit of open discussion and exchange of ideas in which it was offered.
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[b:2pdwi0iq]I. The Syllogism at Issue[/b:2pdwi0iq][/u:2pdwi0iq]
As was aptly noted above, “professional†and “professionalism†are essentially contested concepts whose meaning remains inherently open to interpretation based on the specific contextual background within which it is embedded.
By focusing its analysis of the term “profession†as it relates to an “occupation†or a “body of people in a learned occupationâ€, the above commentary fundamentally misconstrues (unintentionally, no doubt) the meaning CARE attaches to the notion of a “professional judiciaryâ€-and therefore brings it to question not only the relation between “professionalism†and “fairness†which is at the heart of its policy expounding the need for “ a government where our judicial system is fair, stable, and professionalâ€, but just as importantly, raises the issue of the correlation between the notion of “professionalism†and that of “exclusionâ€.
When a Foucauldian analysis of the relationship between power and knowledge is applied to this foundational interpretation, we are suddenly faced with the iron laws of an inescapable syllogism:
1. A professional judiciary signifies the monopoly of exercise of legal functions by a body of individuals belonging to the legal profession.
2. The monopoly of exercise of legal functions by a body of individuals belonging to the legal profession is the application of knowledge to power and therefore the exclusion from the exercise of such power of all individuals and groups not belonging to this profession.
3. Therefore, a professional judiciary inevitably leads to the exclusion from the exercise of power of all groups not belonging to the legal profession.
The syllogism, of course, is structurally sound and its conclusion logically inevitable –but only to the extent that the substantive content of both premises are, indeed, demonstrable and factual.
CARE takes issue with the factual claims of both premises and therefore rejects the conclusion the post clearly points towards.
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II. "Professionalism": An Essentially Contested Concept[/b:2pdwi0iq][/u:2pdwi0iq]
In CARE’s acception of the word, “Professionalism†is exhibited by one of the "professional character, spirit or methods" or the "standing, practice, or methods of a professional as distinguished from an amateur." (http://www.tsl.state.tx.us/ld/tutorials ... sm/IA.html) The crux of the matter in this case is not, as above, a “professionâ€, “occupationâ€, or a “body of people in a learned occupation†– but rather a personal ethics of approaching a given task. A “professionalâ€, in this sense of the word (in counter-distinction to the connotations attaching to the term “professionâ€) signifies, therefore, an individual possessed of “abilities [who] can provide a valuable service to society and operate with little or no self-interestâ€, who is “dedicated to services and institutions†and who take pride in the quality of [his/her] workâ€. Therefore, fundamentally,
“Professionals are considered experts.
Professionals have a high degree of generalized and systematic knowledge with a theoretical base.
The primary orientation of professionals is to their public and/or community interest.
Professionals have a high degree of self-control of their behavior and are governed by a code of ethics.
The code of ethics is a statement of values.
The code ensures a high quality of service.
The code guarantees competency of membership, honor and integrity.
The code is a direct expression of the professions' principles of service orientation.
The code emphasizes no personal gain and protection of the client or patron.
The professional's system of rewards is primarily a set of symbols of work achievement.
There is a system of testing the competence of members.â€
(http://www.tsl.state.tx.us/ld/tutorials ... stics.html)
At first sight there seems to be a high degree of congruity between the definitions of “professional†and “professionalism†expounded on above. This is indeed the case, to a certain extent, in Real Life, where access to the practice of law is strictly restricted and reglemented by professional bar associations, law societies, Barreaux and so on. However, the simple transposition of a set of factual givens from Real Life to Second Life often does not hold. The practice of legal professions in Second Life is not (yet?) restricted to members of those belonging to a legal qualification by virtue of their length of studies and qualifications achieved; rather, it is reglemented by their ability to master a core set of legal concepts, rules and methodologies, and willingness to make it their own a certain code of “professional†behavior. To the extent that any individual possessing such skills and professing such ethical commitments can indeed be characterized as “professional†and become a member of the judiciary, 2L exhibits a radical openness and potential for inclusivity, diversity and difference which Real Life has by an large lost. In any case, the true attraction of a “professional†judiciary in 2L is its very ability of combining the “professionalism†of RL legal professionals with the creative and innovative skills of 2L jurists who do not belong to the “legal profession†YET possess the necessary intellectual, cognitive, epistemological and ethical requirements for becoming members of our “professional judiciary†and bringing to it a new impetus towards difference, otherness, and lateral thinking which is more often than not frowned upon and even discouraged in what have indeed become, alas, rather ossified Real Life bodies of “professionalsâ€.
To conclude CARE’s argument on this first point, while the post above does indeed make valid points regarding Real Life “professional†bodies of legal specialists, it misses the point of CARE’s argument that the notion of a “professional†judiciary can (and should) indeed combine Real Life “professionalism†with Second Life “anarchistic†(in its acception of non-reglemented and radically open) features in ways now largely impossible in Real Life in order to develop a sui generis Second Life judiciary capable not just of replicating, but indeed of improving upon Real Life practice by taking advantage of the radical potential immanent in a “professionalâ€, YET not “professionâ€-dominated judiciary. What CARE strongly objects to is not the actualization of this immanent potential embedded within the notion of “professionalâ€, but rather the disjunction between such radical openness and the necessary intellectual, cognitive, epistemological and ethical requirements for becoming members of our “professional judiciaryâ€. While “trust†may indeed by obtained from some sections of the population by ignoring the latter, the longer-term consequences of such an ill-thought out move would be nothing short of disastrous, since any such additional trust gained by jettisoning such “professional†standards would inevitably be lost as our judiciary’s inevitable shortcomings and practical failings would inevitably surface and destroy even such trust as may initially have existed from the part of our citizens in our judicial institutions before “anarchistic†opening up to members of non-â€professional†Real Life bodies (which CARE welcomes and, indeed, promotes) AND the abandonment of the “standards of professionalism†required for a “fair, stable, and professional†judicial system –which it vehemently opposes.
[u:2pdwi0iq][b:2pdwi0iq]III. Beyond the Habermas-Foucault Debate[/b:2pdwi0iq][/u:2pdwi0iq]
The critique of the second premise underlying the syllogism of the post above moves us away from the field of semantics into that of philosophy and sociology. It reaches at the very heart of the fundamental differences which distinguish CARE from a competing faction which seems to adopt a Foucauldian approach to social analysis. Superficially, one might summarize these differences as mirroring the (in)famous Foucault-Habermas debate, concerning whether Michel Foucault's ideas of "power analytics" and "genealogy" or Jürgen Habermas's ideas of "communicative rationality" and "discourse ethics" provide a better critique of the nature of power within society. The debate compared and evaluated the central ideas of Habermas and Foucault as they pertain to questions of power, reason, ethics, modernity, democracy, civil society, and social action (http://en.wikipedia.org/wiki/The_Foucau ... mas_debate ).
[b:2pdwi0iq]A. A politics of “résistanceâ€[/b:2pdwi0iq]
Even attempting to summarize such a debate here would be a pointless and, frankly, impossible task. The heart of the controversy can, however, be briefly alluded to, in order to develop the necessary tools to expound on CARE’s position on this matter in the specific “life-world†in which we live our “Second Livesâ€.
As Flyvbjerg explains (http://flyvbjerg.plan.aau.dk/CIVSOC5%200PRINTBJS.pdf at p. 221 in text), Foucault’s normative position in this debate is expressed in a desire to challenge “every abuse of power, whoever the author, whoever the victims†and in this way “to give new impetus, as far and wide as possible, to the undefined work of freedom†(Foucault). Flyvbjerg goes on to explain the Foucauldian approach in a manner worth quoting at length, since it seems to mirror rather closely the normative commitment underlying the second premise expounded by the above post in the syllogism under discussion:
“Foucault here is the Nietzchean democrat, for whom any form of government –liberal or totalitarian- must be subjected to analysis and critique based on a will not to be dominated, voicing concerns in public and withholding consent about anything that appears to be unacceptable. Foucault’s norms are based on historical and personal context… [which] cannot be given a universal grounding independent of those people and that context… Nor would such grounding be desirable, since it would entail an ethical uniformity with the kind of utopian-totalitarian implications that Foucault would warn against in any context...: “The search for a form of morality acceptable by everyone in the sense that everyone would have to submit to it, seems catastrophic to meâ€. In a Foucauldian interpretation, such morality would endanger civil society, not empower it. Instead, Foucault focuses on the analysis of evils and shows restraint in matters of commitment to ideas and systems of thought about what is good for man, given the historical experience that few things have produced more suffering among humans than strong commitments to implementing utopian visions of the good†(Flyvbjerg pp/ 221-222 in text).
Needless to say, this politics of “résistance†to purportedly monolithic and quasi-totalitarian legal structures aiming to employ specialized knowledge in the attainment of power and domination over society at large constitutes the philosophical foundation upon which the above post (and the position of the faction seeming to endorse its views) stands or falls. Before analyzing the merits of this position in our specific context, a brief (!) description of the Habermasian position in this debate is unavoidable.
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B. Communicative reason[/b:2pdwi0iq]
Habermas approached this debate from an entirely different perspective – that of intersubjectivity. For Habermas, the path towards a rational constitution safeguarding the “Unfinished Project of Modernity†–namely that of rationality - as it developed ever since the Enlightenment, and its safeguarding against the (purportedly) normless and foundationless geneaological-deconstructive attacks of Foucault and his adherents (whose consequence could only lead to a normless, relativist void in which “anything goes†depending upon purely local standards lacking any grounding in the universal, Kantian reason which underlies Habermas entire body of work) resides in a path towards a rational constitution and the establishment of a bulwark against relativism by means of a re-orientation from Hegel’s and Marx’s focus on subjectivity to a focus on intersubjectivity. Habermas' work, and in particular his theory of ‘communicative action†and “discourse ethics’ is located in the intersubjective approach to the problematic of modernity using the concept of “communicative rationalityâ€:
“The communicative rationality recalls older ideas of logos, inasmuch as it brings along with it the connotations of a non-coercively-unifying, consensus-building force of a discourse in which the participants overcome their of first subjectively based views in favor of a rationally-motivated agreement.â€
Such a rational agreement, based exclusively on the validity and truth norms inherent in the “force of the better argument†(and excluding strategic pursuits and rational choice models by which bureaucratic and economic “systems†threaten to invade and destroy the communicative “life-world†exemplified by discoursive civil society) is embodied in the five key processual requirements of discourse ethics:
1. Generality: no party affected by what is being discussed should be excluded from the discourse;
2. Autonomy: all participants should have equal opportunity to present and criticize validity claims in the process of discourse;
3. Ideal role taking: participants must be willing and able to empathize with each other’s validity claims;
4. Power neutrality: existing power differences between participants must be neutralized such that these differences have no effect on the creation of consensus; and
5. Transparence: participants must openly explain their goals and intentions and in this connection desist from strategic action.
In a society structured in accordance with this model, citizenship would be defined in terms of taking part in public debate. Participation is discursive and detached participation. Given Habermas' procedural requirements mentioned above, as well as his definitions of discourse ethics and communicative rationality, it is clear that we are talking about procedural as opposed to substantive rationality: “Discourse ethics does not set up substantive orientations. Instead it establishes a procedure based on presuppositions and designed to guarantee the impartiality of the process of judging†(Habermas). Flyvbjerg again aptly summarizes this approach and ins implications:
“Habermas is a universalistic, “top-down†moralist as concerns process: the rules for correct process are normatively given in advance, in the form of the requirements for the ideal speech situation. Conversely, as regards content Habermas is a “bottom-up†situationalistâ€: what is right and true in a given communicative process is determined solely by the participants in that process… Habermas’ view of the democratic process is directly linked to judicial institutionalization: “I wish to conceive of the democratic procedure as the legal institutionalization of those forms of communication necessary for rational political will formation†(Habermas…). On the relationship between law and power in this process, Habermas states that “ authorization of power by law and the sanctioning of law by power must occur both uno actoâ€â€¦ Habermas thus makes it clear that he operates within a perspective of law and sovereignty… which contrasts with Foucault who finds this conception of power “by no means adequateâ€. Foucault says about his own “analytics of power†that it “can be constituted only if it frees itself completely from [this] representation of power that I would term… “juridico-discursiveâ€â€¦ a certain image of power-law, of power-sovereigntyâ€. It is in this connection that Foucault made his famous argument to “cut off the head of the king†in political analysis and replace it by a decentred understanding of power. For Habermas the head of the king is still very much on, in the sense that sovereignty is a prerequisite for the regulation of power by law†(Flyvbjerg 214 in text).
The extended discussion above is quite relevant for the CDS elections for three related reasons:
1. The struggle between the proponents and opponents of the Judiciary Act has mirrored, in its fundamentals, the Habermas-Foucault debate;
2. CARE was labeled as a solely process-oriented party whose “bottom-up†approach complements and completes the “top-down†approach of the (former) Chief Justice, thus inscribing itself squarely within the Habermasian perspective and normative project; and
3. Now that the “head of the king†has been indeed “chopped off†CARE is considered by its Foucauldian opponents to be nothing more than the substantive-less remnant of a failed attempt of a judicial institutionalization process to achieve “the sanctioning of law by power†and the (purportedly) consequent submission of all forms of free and decentred governance to a discursive-juridical form of universal morality most likey to destroy civil society – not to empower it.
CARE refuses to be labeled and defined in such a manner and allow such attempts by its opponents to re-inscribe it in a more than a decade-old argument.
[b:2pdwi0iq]C. The “Broken Middleâ€: the dialectics of reason and résistance[/b:2pdwi0iq]
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a. Theoretical conceptualization[/u:2pdwi0iq]
The particularity of law's function as a medium of legitimation is that it operates through its constitutional, substantive, and procedural dimensions; in fact, it constitutes the vital process which brings these dimensions together in a coherent legal order and endows them with a unique, performative type of legitimacy; crucially, it also represents the site of law's reflexivity -wherein the very natures of constitutional, substantive, and procedural law are constantly, critically re-examined and modified in light of changed legal norms and requirements; finally, it constitutes the porous, flexible membrane through which law as a system engages in a recursive process of communication with its external, non-legal environment, thus ensuring both that the legal order promptly adapts to changes in its environment, and that the environment itself responds to changes within the legal order. The performative legitimacy of law is thus constantly re-created through its own, triune function as a medium for systemic coherence, internal reflexivity, and recursive communication with its external surroundings.
The task of law as a medium of performative legitimation is thus particularly complex both theoretically and practically. We must therefore set out clear criteria by means of which we can judge the extent to which it is successfully performing its above-described triple function. Within the context of the CDS, law as a medium of coherence must integrate two sets of apparently conflicting requirements -namely, firstly, the very unity of the CDS legal order itself, with the diversity of various sims that will (eventually) constitute it, and secondly, the requirements of private autonomy as exemplified in the need to uphold substantive individual rights, with the necessity of public autonomy as expressed through democratic participation in decision-making processes. Law as a medium of internal change must bring about the simultaneity of the principles of stability and reflexivity -that is, it must ensure not only that changed legal norms and requirements are actually implemented at the various levels of the CDS (and indeed, Second Life) legal order -thus reaching a new, stable equilibrium but, crucially, that this equilibrium does not become self-perpetuating by means of ossification and resistance to any such further change. Finally, law as a medium of recursive communication must set up effective channels of interaction between CDS law as a constantly evolving social system and its dynamic non-legal environment, thereby establishing a pattern of recursive congruence - meaning that changes in both the CDS legal order and in its environment are coordinated with, and reflected in, changes in the other.
If we are to succeed in our endeavour, we must rediscover, at the conceptual level, the notion of law as medium, as process exposing the arbitrary falsity of each of the dichotomous conceits outlined above -the tertium quid mediating between unity and diversity, between the public and the private, between reflexivity and stability and between inside and outside. In effect, we must strive not towards the elimination of such apparent dichotomies and their replacement with a harmonious, self-perpetuating unity transcending these 'broken middles', but rather towards a reconfiguration of the dirempted notions of singular, universal and particular mirrored in the fissioning of the legal idea of a person as bearer of universal rights and duties, as a particular capable of interiorising such legality as individual morality, and finally as irreducibly singular, "as figured and fused in the name -legal surname with first, 'given', or 'Christian', singular name" appended (Gillian Rose, The Broken Middle). This triune structure of the particular, of the institutions of the middle, and of the state, where we are singular, individual and universal in each position can reassert its creative dynamism only if we can break free of the arbitrary binary oppositions between universal and particular and between individual and the state. Or, such a reconfiguration can only occur if we will ourselves to rediscover and reassert the legally-mediated force of these institutions of the middle, which "represent and configure the relation between particular and the state: they stage the agon between the three in one, one in three of singular, individual and universal; they represent the middle, broken between morality and legality, autonomy and heteronomy, cognition and norm, activity and passivity. Yet they stand and move between the individual and the state" (Rose). What, in fact, we would then achieve is nothing less than our coming to terms with the realities of a radicalised modernity, by recasting the Hegelian process of dialectical evolution from its violent and destructive Marxist teleological conceptualisation as the inevitable, external struggle between ossified institutional structures and an avant-garde of revolutionary agents of progress, resulting in the utterly distopian vision of a complete and violent eradication of the old order and establishment of radically new social relations, into a "delicate dynamics of controlled change". Such an internal dialectical process of transformation would consist of a recursive, creative and emancipatory tension between reflexive processes of deliberation and decision-making, open to constant change yet stable in their procedural structure, and the vibrating impulses of a dynamic social environment, conceived not as threats to stability and order to be neutralised and excluded, but rather as the vital springs of institutional efficiency, flexibility and legitimacy, to be recognised and included in the actual structure of a polity's system of governance.
[u:2pdwi0iq]2. Practical conceptualisation[/u:2pdwi0iq]
At the practical level of juridico-political institutionalisation, our point of departure must undoubtedly be the Habermasian insight that the performative legitimacy of a legal order is continually crafted by means of deliberative discourses in the public sphere - in the very arena where the triune structure of the legal, the political and the social intersect and interact in a perpetual dynamic process of reflexive and recursive self-transformation. Thus, "law receives its full normative sense neither through its legal form per se, nor through an a priori moral content, but through a procedure of law-making that begets legitimacy". The challenge we face resides in the need to embrace the very concept of deliberative discourse developed by Habermas whilst simultaneously overcoming the potentially stifling implications of the consensus-seeking dimension of his 'procedural paradigm', by reconceptualising law's legitimating function as the enabling medium of a deliberative vision of democratic politics which can also do justice to the agonistic spirit of democracy. The conception of law as enabling medium could actually be conceptualised as a process of deliberative democracy -and thus, it would be able to endow the constitutional, substantive and procedural aspects of the CDS legal order with the performative legitimacy which alone can hold the promise of the CDS’s long-term survival.
In Real Life, the notion of deliberative discourse in the public sphere, and its radical implications for our very conceptions of 'democratic politics' and 'constitutional government', have been increasingly at the forefront of philosophical, political and sociological debates over the last decades. Yet, only very recently have these notions begun to find an echo in our legal discourse and forced the legal community to start questioning the paradigmatic, state-centric assumptions underlying our understanding of the very nature of a 'legal order' and of 'the rule of law' within a democratic framework of governance. Conceptually, deliberative discourse refers to a process of communicative action taking place in a particular setting, constituted by the intersection of the public processes of a society's legal sphere, political sphere, and civil society. This setting, referred to as that society's 'public sphere', has been virtually equated, in the context of sovereignty-bound representative liberal democracies, with the institutionalised political and administrative actions of governmental actors - in short, with 'the state'. These structures, deemed to represent the 'general will', 'common good' or 'national interest', have been contrasted with the conception of a loosely-structured, 'civil society' conceptualised as the aggregation of the narrow, private interests of a variety of 'factionalised' socio-economic groups, whose social roles were therefore considered to be inherently a-political and therefore, lying outside society's 'public sphere'. The critical contribution of deliberative discourse theory has been to recast the dynamics between the individual as an autonomous and unique person, as a member of various civil society networks, and as citizen of a given polity, by conceptualising them as legally-structured communicative processes taking place within an enlarged public sphere. At this point, we shall focus our attention on the legal dynamics of deliberative discourse and its implications for our conception of law as a medium of performative legitimacy.
The core assumption of deliberative discourse is the observation that, in the context of a radicalised modernity characterised by an irreversible decline of social uniformity and homogeneity and the reflexive liquefaction of traditions -that is, by the critical and reflexive re-evaluation of the traditional power structures of such totalising societies, law's legitimacy can be preserved -and, indeed, enhanced, "only if enfranchised citizens switch from the role of private legal subjects and take the perspective of participants who are engaged in a process or reaching understanding about the rules for their life in common". This intersubjective conception of social interaction, reconceptualising politics as a process of contestation over questions of value and not simply questions of preference, is structured around the fundamental principle that the rules of law and politics are factually, and should be normatively, open-ended and subject to perpetual discussion, evaluation and transformation of the rules of social life. Thus, law becomes a reflexive means of social integration and simultaneously, one of legitimating political power: "by meeting its need for legitimation with the help of the productive forces of communication, law takes advantage of a permanent risk of dissensus to spur on legally institutionalised public discourses". Constitutional structures based on a contractual model are thus replaced by a discursive or deliberative system, whereby the legal community constitutes itself not by way of a social contract but on the basis of a discursively achieved agreement subject to constant revision and renegotiation.
Such a paradigmatic shift in our understanding of constitutional theory entails three vital consequences: firstly, this conceptualisation of law as a medium of performative legitimation privileges the communicative presuppositions and procedural conditions of democratic opinion- and will-formation as the primary source of legitimation; thus, in assuming a legal shape, deliberative discourse is transformed into a principle of democracy. Secondly, "in the light of this idea of the self-constitution of a community of free and equal persons, established practices of making, applying, and implementing law cannot avoid being exposed to critique and self-critique; constitutional law thus loses its static character and becomes a project, at once the outcome and the catalyst of law's transformation into both a "system of knowledge" (or set of public norms) and as a "system of action" (or set of institutions) embedded in a societal context. Thirdly, the implementation of the conception of law as a medium of performative legitimacy in effect signifies that "ubjects who want to legitimately regulate their living together by positive law are no longer free to choose the medium in which to realise their autonomy. They participate in the production of law only as legal subjects; it is no longer in their power to decide which language they will use in this endeavour". Consequently, the principles regulating the dynamics of the procedural paradigm of law must be uniformly applied across the entire spectrum of activities of each person, whether acting as a unique individual, as member of particular communities, or as citizen of a particular polity. The internal, reflexive coherence of the procedural paradigm and its consistent application at all levels of democratic discourse in the public sphere has profound implications on the above-discussed false dichotomies of unity versus diversity and public versus private autonomy.
On the one hand, the public sphere itself must be envisaged not as a single site of deliberation and decision-making of citizens in their roles as formally equal and depersonalised individuals, but rather as a network of functionally and territorially differentiated communities, each autonomous within its own sphere of activity, yet engaged in a dynamic, interactive process of norm setting, decision-making and problem-solving. Thus, each such community would be able to function within the bounds of its chosen legal order, provided democratic principles of deliberative discourse would be applied both internally, to the interactions taking place between the community's members, and externally, to the deliberations between various such communities. Deliberative discourse would thus constitute a process of collective learning - of free public reasoning among equals, where the preferences entering the political process would be viewed not as something merely given but as inputs that, open to exchange of arguments, can be discursively changed- taking place within a social and institutional framework facilitating free discussion among equal citizens by means of favourable conditions for expression, association, and discussion, and tying the authorisation to exercise public power both within and between communities, and hence throughout the entirety of the enlarged public sphere, to the actual application and observance of such discussion -thus ensuring the democratic accountability and responsiveness of public power at all its levels of activity. The rules of deliberative discourse would thus constitute the coherent, democratic framework of action enabling both the effective differentiation of a variety of autonomous functional and territorial public spheres, as well as their necessary integration into a polity-wide, heterarchical, enlarged public sphere, in circumstances requiring their cooperation in the setting of norms and rules, and the resolution of problems, of common concern.
On the other hand, the application of democratic principles of deliberative discourse -namely, that private legal subjects cannot come to enjoy equal individual liberties if they do not themselves, in the common exercise of their political autonomy, achieve clarity about justified interests and standards, and agree on the relevant aspects under which equals should be treated equally and unequals unequally- has dramatic implications on the tension-filled dynamics between public and private autonomy. In effect, the unresolved tension between the paradigms of liberalism going back to Locke and of civic republicanism reaching back to Aristotle, in which the former postulates the necessary priority of human rights to that of popular sovereignty, whilst the latter argues in favour of the political "liberty of the ancients" over the unpolitical "liberty of the moderns", overlooks the fact that, just as human rights cannot be paternalistically imposed as positive law on a sovereign legislator, so this legislator, regardless of his autonomy, should not be able to adopt anything that violates human rights. Or, deliberative discourse, assuming the shape of a principle of democracy through the medium of law, bridges this divide by developing into a system of rights that brings private and public autonomy into a relation of mutual presupposition. Starting from an idea of jurisgenerative politics according to which all legal consociates are both authors and addressees of valid law, the proceduralist paradigm of law posits the internal linkage between rights and democracy by means of a deliberative process of opinion- and will-formation whereby the exercise of popular sovereignty simultaneously secures human rights, as the cornerstone of an intersubjective deliberative model for settling normative questions:
[i:2pdwi0iq]"[T]he legitimacy of law ultimately depends on a communicative arrangement: As participants in more or less rational discourses, in more or less fair negotiations, consociates under law must be able to examine whether a contested norm meets with, or could meet with, the agreement of all those possibly affected. The internal connection between popular sovereignty and human rights that we are looking for consists in the fact that human rights state precisely the conditions under which the various forms of communication necessary for politically autonomous law-making can be legally institutionalised. These conditions are no longer constraints, but enabling conditions for the exercise of popular sovereignty. The system of rights can be reduced neither to a moral reading of human rights nor to an ethical reading of popular sovereignty, because the private autonomy of citizens must neither be set above nor made subordinate to their political autonomy... Private and public autonomy are co-original and of equal weight. The substance of human rights then resides in the formal conditions for the institutionalisation of those discursive processes of opinion- and will-formation through which the sovereignty of the people can be exercised" (Habermas).[/i:2pdwi0iq]
This unique and powerful argument for a model of democracy in which the public and the private autonomy of citizens are given equal consideration generates an intersubjective account of basic rights and a procedural democracy more attractive than any of the liberal or republican accounts currently available and offers a strong argument for the design of institutions that will facilitate discussion based on mutual respect. Most importantly, by demonstrating how public and private autonomy suppose one another, it points to the fact that they must be jointly realised and institutionalised in order to secure a performatively legitimate law-making process.
Critics of this Habermasian juridico-political paradigm of law point out, however, that by overly emphasising the concept of rational consensus as decision-making procedure, as well as by excluding the public sphere's multiple networks from direct participation in institutional problem-solving and decision-making, and limiting their role to that of applying pressure 'in a siege-like manner' on established legislative structures, it stops well short of fully realising its immanent potential of a radically transformed, democratically legitimated structure of governance. In effect, supporters of an agonistic model of democracy have argued that modern, pluralist democracies cannot hope to abolish domination and violence by "establishing once and for all the definite principles and arrangements that the members of a well-ordered society should accept". Therefore, since divisive issues cannot be confined to the sphere of the private, and since it is an illusion to believe in the possibility of a public sphere of rational argument where a noncoercive consensus based on the power of persuasion and of the best argument can actually be attained, democratic politics contains within its very structure irreducible alterities which, far from putting in jeopardy its democratic ideals, actually protect pluralist democracy from any attempt at closure. Once we accept that, "n a democratic polity, conflicts and confrontations, far from being a sign of imperfection, indicate that democracy is alive and inhabited by pluralism", it becomes clear that, for every settlement arrived at by means of a deliberative discourse, there will (factually) and should (normatively) necessarily exist a "constitutive outside" perpetuating the permanence of conflict and antagonism. As feminist theorists have argued, such enclaves of resistance, where difference comes to mean not otherness, exclusive opposition, but specificity, variation, heterogeneity that can be reduced to neither coextensive identity nor nonoverlapping otherness, are constitutive of democratic politics' capacity for change by their very willingness to remain open to change, resistance, and creativity. The critical role of law as a democratic medium of performative legitimacy then becomes that of fostering the dialectical tension between deliberative discourse and enclaves of resistance inhabited by subaltern counterpublics capable of formulating oppositional discourses and counterdiscourses, "which in turn permit them to formulate oppositional interpretations of their identities, interests and needs". This conception of an agonistic pluralism, containing the implicit recognition that, within the context of political community, the opponent should not be considered as an enemy to be destroyed, but as an adversary whose existence is legitimate and must be tolerated, is constitutive of the dynamics of democracy in a social setting shaped by the processes of a radicalised modernity. Thus, rather than seeing it as a threat, we should realise that it represents the very condition of existence of such democracy and therefore, actively seek to accommodate it within our proceduralist paradigm of law.
The second objection raised above is closely related to this discussion of agonistic pluralism. If our democratic model of deliberative discourse is to retain and enhance its mediating power with respect to such subaltern counterpublics as will inevitably exist outside the current prevailing consensus, these must retain the hope that one day, their own perspective might garner the public respect and support necessary to constitute the foundation of a new consensus. It is therefore vital that they be granted full rights of participation in the norm-setting, decision-making, and problem-solving institutional arrangements of the political sphere, rather than being edged to the periphery of a public sphere whose networks would, in any case, be limited to an informal, extra-institutional role serving merely "as a series of reminders -that human communication need not be narrowly technical [and] that unsolved problems remain outside the purview of conventional institutions". It is within this context that the proponents of a model of directly-deliberative polyarchy -"a conception of radical, participatory democracy with problem-solving capacities useful under current conditions and unavailable to representative systems", argue in favour of opening up the institutionalised structures of our juridico-political paradigm to the various publics constituting the interactive network of communication of the enlarged public sphere. Thus, rather than acting 'in a siege-like manner' on these exclusionary institutions, they would actually become an integral part of the dynamic processes of a jurisgenerative politics inclusive of all actors present within our enlarged public sphere.
The tertium quid capable of establishing a dynamic and creative tension between the two elements of the false dichotomy opposing the consensus-seeking rationality of deliberative discourse to the conflict-ridden arguments of an agonistic democracy is thus none other than the inclusive and dynamic process of principled debate in its actual norm-setting, decision-making and problem-solving capacities, leading to the legitimate and effective acceptance and implementation of its outputs -as well as to the toleration of enclaves of resistance as irreducible emanations of the very plurality and heterogeneity characteristic of a radicalised modern democracy. Deliberative rationalism and agonistic conflict thus constitute nothing less than each other's conditions of existence -for the former would be reduced to the meaningless status of a mere theoretical construct in the absence of the latter, whilst the latter's latent destructive potential could not be positively steered and channelled outside the former's disciplined framework of interaction. Tirelessly mediating between the apposite forces of deliberative rationalism and agonistic conflict in a reflexive process of dynamic evolution and change whereby each constantly strives to rejoin and reshape the other, yet never becomes entirely of the other, these legally-defined principles of debate thus constitute yet another embodiment of law as a medium for the effective regeneration of performative legitimacy.
Consequently, the arguments in favour of directly-deliberative polyarchy go well beyond the immediate concerns of feminist theorists and of proponents of agonistic democracy -extending deep into the cohesive, reflexive and recursive functions of law as a medium of performative legitimation. By opening up decision-making structures to the various networks of an organisationally dispersed and socially heterogeneous public sphere and combining the advantages of local learning and self-government with those of wider social learning and heightened political accountability resulting from the pooling of many concurrent experiments so as to permit public scrutiny of the effectiveness of strategies and leaders, directly-deliberative polyarchy transforms the public sphere into "the place where practicality in the form of problem-solving meets political principle in the form of deliberation through reason-giving among citizens who recognise themselves as free and equal". Furthermore, by shifting the processes of democratic politics away from the formalistic, self-limiting, and exclusionary grasp of the traditional, representative institutional structures of liberal democracy and recentering them on the actual dynamics of an enlarged, inclusive, yet also differentiated public sphere not thwarted by, but rather benefiting from, the heterogeneity of its actors, directly-deliberative polyarchy provides us with the necessary tools of institutionalising deliberative discourse as problem-solving technique at the very heart of our new proceduralist paradigm. Law as a medium of performative legitimation thus re-establishes a direct, dynamic, and creative link -a 'vibrant middle'- between unity and diversity, public and private autonomy, institutional action and social change, deliberative rationality and agonistic pluralism, public power and the power of the public -thus transforming the often explosive effects of an until now external and periodic clash of juridico-political thesis and social antithesis into a permanent and continuous dynamic of recursive integration and transformation, functioning in accordance with a set of norms and rules subject themselves to reflexive change by means of the same, deliberative procedures of discourse. We thus observe the continuous re-formation of a never-quite-fully attained synthesis which, at the moment of Becoming, is forced to keep open the recurring dialectical process of public deliberation, as well as the synchronic movement of perpetual reimagination of its empirical and conceptual boundaries.
Such a model of directly-deliberative polyarchy has radical implications for the emerging CDS order. Perhaps the most important consequence of this conceptualisation of law as a medium for performative legitimacy resides in the fact that it tears asunder the false dichotomy between an anarchic Second Life versus CDS democracy -thus permitting an extension of the idea of radical democracy to Second Life as a whole. Simultaneously, it provides us with an example of the manner in which private regulatory networks and structures of governance, such as Linden Labs, can be constitutionalised in such a way that the legitimacy problem inherent therein can be solved -namely, by associating radical democracy to functionally specified 'problem solving units', "neither conventionally public since they operate independently from state command and control, nor conventionally private because they do exercise a problem-solving function and have reflexive capacities concerning the interest of society as a whole. The idea of directly-deliberative polyarchy disconnects the democracy principle from the political institutions of the CDS and thus makes its extension to Second Life possible.
[u:2pdwi0iq][b:2pdwi0iq]IV. Conclusion[/b:2pdwi0iq][/u:2pdwi0iq]
The three key propositions which, together, underlie the charges brought against CARE by its opponents and detractors were as follows:
1. The struggle between the proponents and opponents of the Judiciary Act has mirrored, in its fundamentals, the Habermas-Foucault debate;
2. CARE was labeled as a solely process-oriented party whose “bottom-up†approach complements and completes the “top-down†approach of the (former) Chief Justice, thus inscribing itself squarely within the Habermasian perspective and normative project; and
3. Now that the “head of the king†has been indeed “chopped off†CARE is considered by its Foucauldian opponents to be nothing more than the substantive-less remnant of a failed attempt of a judicial institutionalization process to achieve “the sanctioning of law by power†and the (purportedly) consequent submission of all forms of free and decentred governance to a discursive-juridical form of universal morality most likey to destroy civil society – not to empower it.
CARE has answered this challenges comprehensively and authoritatively by:
1. showing that the Habermas-Foucault debate has progressed well beyond the original positions of the two main protagonists;
2. developing a detailed and coherent juridico-political theory of directly-deliberative polyarchy combining constitutional, substantive, and procedural elements, and integrating Foucauldian notions of power and knowledge into a Habermasian discursive framework.
3. developing, based on this coherent theoretical foundation, its specific vision, mission, ideals, principles, internal organization, decision-making procedures, and specific policy platform which puts an enlarged and participative civil society at the core – and not at the margins – of its juridico-political framework of governance for the CDS (and perhaps, beyond).
In doing do, it has comprehensively refuted the second premise of the key syllogism contained in the post initiating this discussion, claiming that:
[quote:2pdwi0iq]2. The monopoly of exercise of legal functions by a body of individuals belonging to the legal profession is the application of knowledge to power and therefore the exclusion from the exercise of such power of all individuals and groups not belonging to this profession.[/quote:2pdwi0iq]
In fact, CARE has shown that the existence of a professional judicary and the implementation of a directly-deliberative poliarchy as the CDS' jurudico-political framework will lead to the exact opposite result than that claimed above.
As to the first premise of the syllogism in question, opining that:
[quote:2pdwi0iq]1. A professional judiciary signifies the monopoly of exercise of legal functions by a body of individuals belonging to the legal profession.[/quote:2pdwi0iq],
CARE has refuted this attempt to limit the meaning of the word "professional" to that of a body of RL certified legal experts and has explained how this notion can and should be interpreted in the CDS in particular and 2L in general;
Consequently, the conclusion of the syllogism, stating that:
[quote:2pdwi0iq]3. Therefore, a professional judiciary inevitably leads to the exclusion from the exercise of power of all groups not belonging to the legal profession.[/quote:2pdwi0iq]
is flawed and untenable. CARE's postion on the judiciary, as elaborated and expounded on in detail above, is as follows:
[b:2pdwi0iq]1. A professional judiciary is essential (but not sufficient) for developing in the CDS (and perhaps, beyond) a democratic, participative, open, diverse, accountable and efficient juridico-political framework of governance (directly-deliberative polyarchy);
2. A democratic, participative, open, diverse, accountable and efficient juridico-political framework of governance will put an enlarged and participative civil society at its core – and not at its margins;
3. Therefore, a professional judiciary is essential (but not sufficient) for the CDS to situate an enlarged and participative civil society at the core of its juridico-political framework of governance.[/b:2pdwi0iq]
[b:2pdwi0iq]Thus, the issue to be elucidated becomes -not whether the CDS needs a professional judiciary as expounded above- but rather, what does a professional judiciary entail and how can we best develop and implement it in a democratic, participative, open, diverse, accountable and efficient manner -which will ensure its legitimacy and wide-spread acceptance by the vast majority of its citizens?[/b:2pdwi0iq]
Over the next weeks, all CARE members interested in this issue will work assiduously to develop exactly such a proposal.