democracy, rights, and thelaw - Papers.ssrn.com

DEMOCRACY, RIGHTS, AND THELAW DAVID DYZENHAUS*

INTRODUCTION

Democracy is on the political agenda. At long last, South Africans are talking to each other about a common future under conditions of political equality for all. This conversation is important. It will shape the political institutions which will be the bedrock of a new, and hopefully more just, society. There is a special significance to a conversation that takes place during an intense political struggle, especially if that conversation is aimed at creating a society in which, to adopt the slogan of a distinguished socialist and democrat, the only force is that of the better argument." For to take this conversation seriously, as democrats must, makes a significant difference both to the procedures and the outcomes of politics. Some will not think much of the conversation. They will argue that the outcomes of all political struggle are inevitably determined by the balance of power; power politics is everything. It is not that on this vision of politics it is useless to engage in conversation. But the value of conversation is purely instrumental whether one is engaged in the attempt to capture power or the attempt to maintain power. One engages in conversation with political rivals depending on whether conversation is instrumentally more advantageous for the moment than other forms of political struggle. It is important to see that this view is incompatible with democracy. A political organization is not democratic if it supports democracy only because a general election would almost definitely bring it to power. To be democratic that organization must be committed to something more. I will distinguish between the two visions of politics contrasted here by calling the first 'democratic' and the second 'instrumental'. Only when I have set out my argument in full will this contrast cease to be stipulative.

• Assistant Professor of Law and Philosophy, Law Faculty, University of Toronto. BA LLB (Wits), DPhiI (Oxon). I thank the Law Library of Queen's University, Kingston, Canada for supplying me at very short notice with some of the materials on which this essay relies. I thank John Dugard, Michael Larkin, Cheryl Misak and Etienne Mureinik for their helpful criticism of earlier drafts of this essay. 1 Jurgen Habermas.

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But it is useful to make one preliminary point on behalf of what I call the democratic vision. • It is the case for those who adopt the democratic vision that conversation has an intrinsic value which requires certain constraints on political struggle. That value and the constraints which stem from it will be explored below. But at the least the vision requires preferring rational persuasion to the politics of force. It is not the case, however, that the democratic commitment to creating and maintaining a political situation where politics is conducted by conversation and not by force is always opposed to the politics of force. When all other means to establish a democratic conversation seem blocked by force, democrats are justified in considering whether. they themselves should resort to force, for example, to armed struggle. Just such a situation prevailed in the early 1960sin South Africa. At that time, the Nationalist government by statute and by violent repression restricted the conversation about South Africa's political future to a minority of the population. Moreover, that minority for the most part differed among themselves only about the form and not the fact of the exclusion of the majority of South Africans from political and economic power. Does this qualification of the democratic commitment to conversation over force collapse any distinction between the democratic and the instrumental visions? I think not. Democrats who resort to armed struggle because that resort seems the only means to create democracy will on two related dimensions conduct their struggle differently from instrumentalists who merely aim to win power. First, democrats will aim the struggle in such a way as to persuade the oppressors and their collaborators to begin a conversation with liberation movements and . their constituencies rather than to capitulate to them. For example, democrats will confine their armed struggle against the means of anti-democratic coercion and political exclusion rather than attack civilians. Secondly, as the armed struggle, in concert with other political action, results in opening a space for genuine conversation, democrats will begin to shift from the terrain of armed struggle to that of conversation. Eventually democrats must reach a point where conditions are judged to be such that they must, on pain of renouncing their democratic commitments, submit themselves with their political rivals to the uncertain outcomes of democratic politics. In short, the goal of achieving democracy constrains the means adopted to achieve that goal even when it seems impossible temporarily to achieve it other than by force. The difference between instrumentalists and democrats is not, then, that democrats are barred from employing instrumental arguments. Like instrumentalists, democrats will decide what should be done in accordance with an evaluation of the means available to them and the consequences of adopting this means rather than that. Nor is the difference that democrats are such for non-instrumental reasons. The reason to be a democrat is that democracy works best. Rather the

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difference is in the criteria of evaluation. Democrats will be concerned to create a situation in which the issue of who should wield political.power is democratically decided, whereas instrumentalists are concerned to win power for their particular group. Democrats will have that concern because democracy is itself instrumentally valuable - it is thepolitical system we should adopt in order to achieve certain values. But by contrast with instrumentalists, democrats will argue that those values transcend and constrain the particular concerns of groups. ' In this article I want to explore this argument and to assess its consequences for the debate about the role of rights and the law in the process of both creating and maintaining a democratic society in South Africa. PHILOSOPHY AND DEMOCRACY

My argument in this essay will be in large part a philosophical one and, after the recent exchange in this journal between Albie Sachs and D H M Brooks about democracy and rights, I think it is important at the outset to say something about my own view of the status and role of such arguments.> A convenient label for Sachs's position is 'majoritarianism', He argues that democratic rights are the rights for which the majority of the people, or the majority of their representatives, vote. Two closely linked-points which Sachs makes in the course of his argument are important' to understand his position. First, he expresses the suspicion that any attack on majoritarianism is racist in a context where the majority have been excluded from the franchise on a racial basis. Secondly, Sachs is suspicious of the sudden surge of interest in rights by whites at a time when the status quo advantageous to them is threatened. Together these points express a clear hostility to self-styled experts (including philosophers) who would impose their views on the people and so not allow the people's views to emerge in unadulterated form. Brooks thinks that Sach's position fails because it commits a logical fallacy - the fallacy of genesis or origins. That is, he thinks that the truth· of claims about democracy is something that stands apart from the question of the identity or motives of those who make the claims, or of the process of argument and discussion that results in the claims. But Brooks, in making this claim, does not see an obvious difficulty for anyone who sets great store on democracy. For democrats, genesis must be crucial since they think that important issues are correctly decided by referring the matter to the people. That the source or origin of a decision is the people, or rather a majority of them, is what one needs to know in order to know that the decision is the right one. 2 See A Sachs 'Towards a Bill of Rights in a Democratic South Africa' (1990) 6 SAJHR 1 and D H M Brooks 'Albie Sachs on Human Rights in South Africa' (1990) 6 SAJHR 25.

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Democrats follow the intuition that in the matter of public morality there are no moral experts. Public morality is something appropriately decided by the public. Thus for democrats the fact that the people have made a decision about some important issue is a reason to respect that decision in a fashion not accorded to a decision made by an expert or by some elite. Even if a democrat believes that democracy is not simply majoritarian decision-making, she must be committed to believing that the decisions of the majority as to what is right have most of the time to trump whatever any particular individual thinks should be done. But Brooks is not an ardent democrat. In his eyes, the major flaw of apartheid was not its lack of democracy but its violation of certain negative individual rights - those which protect individuals from the incursions of government. His position is that individual rights are an inviolable sphere - one into which the decisions of government, whether or not that government is representative, must not be permitted to reach. Like Isaiah Berlin, on whose essay 'Two Concepts of Liberty' his argument implicitly draws, Brooks is indifferent to the source of the protection of this sphere of rights," Its source could just as well be.a benevolent tyrant as a democratic assembly. And in Brooks's stress on the need to curb democratic decisions, one senses Berlin's more fully articulated fear that a democratic assembly is all the more dangerous to this sphere since we might be alert to a tyrant's raids on rights but mistakenly trust the decisions of a democratic assembly. How do we know what constitutes the inviolable sphere? Naturally, we do not look to democratic assemblies, which leaves us with the conclusions established by philosophers. For Brooks's intuition is that the majority can often be dangerously wrong on moral matters. On his position, philosophy rather than the majority is the ruler. My position on the role of philosophy is distinct from both Sachs and Brooks. I do believe that democracy is something more than majoritarianism and that philosophical arguments can playa role in establishing what that amounts to. But I also believe these arguments must be able to convince a democrat that they themselves are profoundly democratic. They must be democratic in that they show that they are aimed at supporting democratic structures, not at curbing democracy. Arguments which are democratic in this sense are a modest attempt to bring to the surface the implications of democratic commitments. DEMOCRACY AND EQUALITY

In this section, I sketch the relationship between the idea of democracy and a political value which I will argue gives that idea its power - the value of equality. It is that value which democracy aims to achieve and 3 I Berlin 'Two Concepts of Liberty' in Four Essays on Liberty (1969) 118.

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which shows why and in what way the appropriate constraints on majoritarianism are democratic in nature and thus not constraints on democracy itself. . I will rely almost entirely on recent works of Ronald Dworkin.s He identifies himself as a liberal and this identification together with the fact' that he writes within and about the capitalist economies of the West might seem to many South Africans to disqualify his views without further ado: Robert Mugabe, for example, has recently argued that Africans should pay no heed to sermons about democracy from the West. His point is that the African experience of Western rule has been one of political oppression and economic exploitation and that it is pernicious for former' colonial masters to be attempting still to dictate the governance of African countries. Particularly suspect in the political context of South Africa will be the emphasis liberal theorists place on the protection of individual rights, including the rights of minorities in the face of majority decisions. Such emphasis will naturally seem to support a cynical attempt by whites to maintain their dominant and unjustly achieved economic position under the cover of a right to private property and their dominant and unjustly' achieved political position under the cover of a right to minority protection against the majority. It will also seem that the large role Dworkin accords judges in the protection of such rights by judicial review can, without radical changes to the composition and structure of the judiciary, only serve to ensure the success of that cynical attempt. I hope to show that a hasty disqualification of this kind might be a grave mistake. When arguments for liberalism are at the same time arguments for democracy, they in fact subvert the cynical attempt. Such arguments show that liberal democrats are required to work towards the kind of society more often associated with the political tradition of socialist egalitarianism. Of course, even if I am right, this is not enough to show why democrats need take these arguments seriously. The reason such arguments should be taken seriously stems from their ability to answer a simple though often neglected question, 'Why democracy?'. I will show that one plausible answer to that question, perhaps the only plausible answer, requires that democrats take certain liberal commitments seriously. Moreover, that answer is helpful in another respect. It shows how a commitment to democracy shapes answers to other important questions, and, in so doing, makes it clear that political compromises tarnish rather than advance the democratic ideal. It seems fair to say that a central assumption of those who admire democracy is that all the adult members of a political community should 4 1 rely in particular on Ronald Dworkin 'What is Equality? Part 4: Political Equality' (1987) 22 University ofSan Francisco LR I; 'Equality, Democracy, and Constitution: We the People in Court' (1990) 28 Alberta LR 325; 'What is Equality? Part 3: The Place of Liberty' (1987) 73 Iowa LR 1.


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have equal political power, which means, at the least, one person, one vote. But consensus hardly exists as to how this assumption should be unpacked. Helpful in this regard are two distinctions. The first is between what we can call choice-sensitive and choice-insensitive issues. Choicesensitive issues are those which are appropriately determined by the votes of a political community. Choice-insensitive issues are then those which it is not appropriate for the community to decide.> The second distinction is between what we can call a dependent conception of democracy and a detached conception of democracy. 6 Both seek to do justice to the central assumption of democracy - that all adult members of the political community matter equally when it comes to election time. The dependent conception says that the best form of democracy is the one most likely to produce the best substantive decisions; for example, decisions which will distribute material and other resources in a just way. This conception adopts democracy as a political system because it will produce the right results. Thus a dependent conception will explain its version of the democratic process, the essential features and institutions of democracy, in accordance with the process's aptness to produce those results. And since its aim is to produce those results, the components of its structure which conduce to the results will be choice-insensitive. To the extent that judicial review seems capable of ensuring that these goals will in fact be realized, proponents of the dependent conception will be friends of that institution. The alternative conception of democracy is detached precisely because it distances itself from the topic of what substantive results democracy is likely to produce. Instead, a detached conception focuses exclusively on the topic of the appropriate character of the democratic process, on the assumption that its character should be determined solely by criteria which maximize the allocation of equal political power to all adult members of the political community. These two conceptions will be found nowhere in their pure forms, and the reasons for this illuminate the issues at stake in answering the question, 'Why democracy?'. A pure dependent conception will not command allegiance by democrats, though it might among instrumentalists who aim only to gain power, because a conception of democracy has to explain certain things we take for granted as features of a democratic . political system. Important in this regard are those features which enhance political equality - the ability of members of the political community to participate in politics, notably, free speech, freedom of association, and the right to vote itself. To count as a conception of democracy, even the most austere interpretation of democracy must show that these partici-

5 See Dworkin, 'What is Equality? Part 4: Political Equality' op cit note 4 at 26. 6 Dworkin ibid at 3 ff.

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patory elements figure centrally in its interpretation: A pure dependent conception has to explain that these participatory elements count among the substantive goals which are worth realizing because they will create equality. As Sachs's arguments show, many South African democrats consider political equality as but one of several goals for which they, as democrats, engage in struggle. The others are goals of substantive (mainly economic) equality. It might therefore seem that the dependent conception of democracy will be the one which most South African democrats should adopt. In fact, Sachs, as a majoritarian, is much more drawn to a pure detached conception of democracy. It is the apparent neutrality of the detached conception which attracts majoritarians. The detached conception, by focusing exclusively on the issue of what kind of process will equalize political power, seems to ensure that legitimate political inputs - the decisions taken by the majoritywill emerge uncontaminated. In other words, the detached conception ensures that controversial political issues are decided appropriately, which means that they are settled by the political process and not by some constitutionally imposed program of substantive goals. Thus proponents of the detached conception will not in general be friends of substantive judicial review. An institution which tests the validity of majoritarian legislation against substantive, constitutional goals will seem to them to substitute the interpretations of an unelected elite for the majority decision. Such issues should be decided by a process of majority decision-making, at least in so far as the political representatives who make the decisions have been chosen by the appropriate system of one person one vote. The neutrality of the detached conception thus consists in its attempt to make all issues of substance choice-sensitive by leaving their resolution to the political process. It seeks to prise apart the close link the dependent conception assumes between process and substance by confining controversy about process to the issue of how to maximize equality of political power. And this neutrality will seem to make the detached conception the one which all democrats should adopt, if they are to avoid being the instrumentalists I described in the first section. For recall that instrumentalists pay lip service to democracy only when it seems that for the time being their substantive goals can be achieved by adopting democratic political procedures. Democrats, by contrast, are committed to creating a political process in which the people, or at least the majority of them, decide such issues. But notice that the neutrality of the detached conception cannot be global. Those who adopt it are committed to holding that at least one issue should be choice-insensitive, namely, that the nature of the political process must be such as to maximize an equal distribution of political power. Equality of political power is the substantive issue which the

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detached conception jealously guards from the ebb and flow of majority opinion. This remains the case when one attempts to consign even issues _about political process to a constituent assembly, since the members of such an assembly cannot be chosen or elected except in accordance with some partisan vision of how the assembly should be constituted. This point illustrates a puzzle at the heart of democratic theory. Suppose that we can conceive of a method of choosing the first constituent assembly which seems to maximize an initial equal distribution of political power, thus leaving it up to the assembly to decide the nature of the political process by which future substantive decisions will be made. The method of choice is driven by a principle of maximizing equality of political power in order to let as many substantive issues, including decisions as to the nature of the political process itself, be decided In accordance with the majority's choice. In fact, we might limit the scope of decisions of the first assembly to decisions about the political process. Now if the reason for adopting that principle is that it serves democracy best, then it should surely govern beyond that first assembly. For unless we are to be driven to the absurdity of finding Hitler's rule democratic because he came to power through manipulating a democratic process, we must suppose that democracy in its very nature extends beyond a one-off, decision-making assembly. Indeed, the more one thinks that assemblies, to be truly democratic, must be left unhindered by constraints as to the _substance of what they can decide, the more one must be committed to procedural constraints on particular assemblies to ensure that the principle remains in place. It follows that there should be no objection to making certain procedural constraints constitutional in advance of the first constituent assembly. If these are the constraints that such an assembly must adopt in the nature of being democratic, then it makes sense to ensure that the assembly operates under those constraints. We will thereby ensure that any further decisions the assembly takes in respect of the political process are taken by at least a minimally democratic political process." I will leave the puzzle for the moment in order to explore the principle which creates it - the principle of maximizing equality of political power. Dworkin shows that a principle of this kind does not itself pinpoint whether our concern is with horizontal equality - equality between citizens - or with vertical equality - equality between citizens and state officials. Nor does the principle distinguish between power as impactthe power that one has through one's vote to influence the particular

7 As happened in the Namibian political process where the constituent assembly was bound to comply with a set of basic principles enunciated by the Security Council of the United Nations in 1982. See noten.

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decision -'- and power as influence - the power one has to influence others to vote for a paiticular decision." . We achieve equality of political impact on the horizontal plane merely by having a system of one person, one vote.? But equal political impact is not an ideal we can achieve vertically. For in any sizeable political community, we have to have recourse to a system of representative government in which it is in fact a majority of representatives who take political decisions. But we might want to achieve equality of political influence on the vertical plane in order to ensure that members of the political community can constrain their representatives to vote in accordance with their preferences. And equality of political influence will seem to be the candidate for the ideal which should inform democratic politics when we notice that an ideal of equality of political impact cannot explain why we want protected, in addition to universal suffrage, the means of influence - freedom of speech and association, and so on. Again equality of political influence on the vertical plane will be inconsistent with at least some of the important institutions of representative government. The need for some security, stability, and continuity of decision-making argues for some independence of legislators from their constituencies. That does not make equality of political influence unachievable on the horizontal plane, where it might in any case seem most desirable. It might, for example, seem desirable to limit the influence of directors of large corporations by denying them the right to exploit their great power over the media. But if one were to achieve this aim by silencing the directors one would be acting in a profoundly undemocratic manner. Our concern, Dworkin thinks, is not with inequality of influence but with the source of that influence when that source is an economic system which has distributed resources unjustly. We do not in fact want to aim for equality of influence since even in a society in which there had been an initial just distribution of resources, some people would have more influence than others. One reason might be that they had chosen to invest more than others in acquiring political influence merely by devoting their lives to politics. More interesting is the case of the politician whose greater influence stems from general admiration for her track record of high moral principle and integrity in acting on the basis of those principles. It makes sense to elect such a person to high office in order that she might exercise a greater influence 8 Dworkin 'What is Equality? Part 4: Political Equality' op cit note 4 at 9 if. I assume with Dworkin that our concern is with both the vertical and the horizontal dimensions. That assumption is not uncontroversial. Advocates of a one-party state are committed to supposing that the kind of political leverage which choice on the vertical dimension allows is unimportant. 9 Which, as the South African experience of constituency gerrymandering shows, should not lead one to suppose that it is easy to devise an unproblematic system of districting nor that districting is devoid of implications for the topic of equality of power as influence (discussed below).

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than others on the process of debate which results in legislative decisions. Indeed, we might find that in play here is a consideration that goes beyond . the exigencies of representative government. This consideration is that representative government allows a forum for debate about policy which approximates best to an ideal of rational argumentation. As such, it should be more than a rubber-stamp for decisions taken before the forum is convened. The forum is one in which broad electoral mandates are debated and tested in order to produce the best possible legislation. It will often be wrong for representatives to second-guess their constituents and appropriate mechanisms should exist to ensure that this does not happen. In addition, it might often be appropriate to put fundamental issues to the test of direct democracy by referenda. But on such occasions, one's hope is that the referendum will provoke the kind of reflection that is supposed to be the order of the day in the legislative assembly. And that hope goes beyond the limited ambition of an opinion poll which seeks to ascertain a more or less unreflective reaction to an issue. A process of collective reflection is valued because it is more likely than an opinion poll to produce the best decision.t? Likewise, it follows that there is a point, beyond considerations of stability, security, and continuity of decision-making, to having representatives enjoy a certain autonomy from their constituencies. That autonomy enables them to exercise an influence on collective reflection which is likely to make a substantial and positive difference to legislation. To seek to equalize political influence in these circumstances would require constraining the process of collective reflection which seems to be the stuff of democracy. Not only would this require constraints on democratic rights, but often would have the bizarre consequence that those whose input is potentially most valuable are most constrained. It is not, then, that equality of political influence is in any unproblematic way the goal of democracy. But we might want to eliminate some sources of unequal political influence, not least because the unjust social arrangements in which they are embedded are undemocratic. This brings us to a crucial point, which the distinction between political impact and political influence illuminates. The importance we accord to protecting opportunities to influence voting, both at election time and when legislative assemblies make law, shows that more is associated with democracy than a process of counting votes where there is horizontal equality of political impact - where each adult member of the political community counts for one and no more than one at election time. Democracy goes beyond horizontal equality of political impact because the political decisions taken are supposed to represent more than the 10 A good example is the death penalty. It is thought appropriate that this issue should be decided by debate rather than by opinion polls.

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interests on behalf of which a majority voted. That a majority,eitherat _ election time or in the legislative assembly, has voted for a decision is of course an important factor in legitimating it. But that is not sufficient for democrats. The vote must also have been in accordance with democratic procedures, which include as essential democratic components informed participation in collective reflection on what should be done. Earlier, I suggested that the hope of conformity with such procedures is to produce the best decision - the hope, as I will refer to it, of accuracy. What is accuracy in the hurly burly of politics? It is, I maintain, the likelihood that decisions taken by democratic procedures will in fact represent a general and not merely a particular interest: the interest of what I have called the 'political community', and what Sachs, following the tradition of the Freedom Charter, calls 'the people' . A hard-nosed hostility to the idea that in a democracy there is something transcending the particular interest which a majority happens to assent to as their own goes back at least as far as this caustic comment of Jeremy Bentham: 'The community is a fictitious body, composed of the individual persons who are considered as constituting as it were its members. The interest of the community then is, what? - the sum of the interests of the several members who compose it.'ll

The fear which drives this hostility threads its way through much contemporary political theory, including Berlin's 'Two Concepts of Liberty' and Brooks's reply to Sachs. As I have already suggested, the fear is that in adopting the fiction that there is something more to a decision than the sum of particular interests, we grant a legitimacy to that decision which on the merits it might well not deserve. We might then decide that we should obey the decision merely because a majority has decided in that way, rather than in accordance with an evaluation of its merits. The fiction thus opens the door to the tyranny of the majority. But the role I give to this device is different from that given by Bentham who thought that fictions, particularly in the hands of lawyers, are the tools of deceiving and manipulative elites. As Lon L Fuller pointed out, '. such a device can be distinguished from a lie if it is not intended to deceive. 12 A fiction of this kind is something which we assume to be the case about practice, not necessarily because that assumption is by and large accurate, but often because it is inaccurate - because it is at the present time a fiction. We make that false assumption in order to bring about a practice of the kind the assumption reflects. What then is the point of making the assumption that there is a general interest of a political community, one which transcends the particular interests which majorities happen to consider their own? It is to bring about a state of affairs such that decisions which the majority takes can 11 Quoted in A Arblaster Democracy (1987) 65, emphasis in the original. 12 L L Fuller Legal Fictions (1967) 6.


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sensibly be said to represent the will of the political community as a whole - the will of the people. And by sensibly I mean that the idea of .representation must be substantial and not rhetorical. It must mean far more than what the dictator says the will of the people is. More important for our purposes, it must also mean more than what the majority of a legislative assembly says that the will of the people is. Dworkin thinks that we can construct a communal conception of democracy which is not monolithic; one in which. the will of each individual is not merely assumed to be identical with the will expressed in majority decisions. He calls his construction 'integrative' because it is designed to treat all members of the political community as equals, which means that the will can only be regarded as the will of the people on condition that no individual or group of individuals is treated unequally. 13 It is thus a dependent conception of democracy in that it aims to produce substantive equality for individuals. But, as we will see, it is also detached in that it preserves a constitutionally protected role for individuals to have an impact and influence on politics consistent with a right to equal concern and respect. The first constitutive principle of an integrative democracy is the principle of participation.> Each individual must have protected a role which allows her to make a difference to the character of political decisions and the magnitude of the difference she can make must not be structurally fixed or limited by assumptions about her worth, talent or ability. To have such a role requires more than that there be universal suffrage - there must also be universally protected rights to freedom of speech and other means of influence. But, as already suggested, there is no guarantee of equal influence, only of the role which allows individuals the opportunity of exercising influence. Secondly, an integrative democracy must respect a principle of equal stake. IS An individual does not count as a full member of the political community unless collective decisions treat her as an equal. And that means that in evaluating the success of any collective decision, the impact on a particular member's life and interests must matter as much as the impact on the life and interests of every other member. This principle would, for example, judge as not merely unjust but also undemocratic a situation in which legislative decisions consistently distributed resources to one group. Such decisions would be undemocratic even if approved by a majority, precisely because those excluded from distribution would thereby fail to be treated as full members of the political community. Thirdly, an integrative democracy must respect a principle of independence such that members are encouraged to see moral and ethical

13 Dworkin 'Equality, Democracy, and Constitution: We the People in Court' op cit note 4 at 336 ff. 14 Ibid at 337-9. 15 Ibid at 339-40.

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judgment as their responsibility rather than the responsibility of the collective unit.w This principle unites the first two and it expresses the democratic intuition that in the matter of morality there are no experts. One cannot accept responsibility for collective decisions unless those decisions have been taken in such a way that one could have participated in their making and they have a content which does not marginalize one from the community. But the principle goes further than that. It requires \ that one's beliefs about how to live, whether they pertain to one's religion, ethnicity, culture or sexual orientation, not be made the object of legislative reform. If such beliefs are the object of legislative reform, then those who fall victim to the reform are thereby disabled from participating as full members of the integrative community.t? Notice that the idea of equality on which an integrative democracy is premised is more profound than the idea of equal political power for which the majoritarianism of the pure detached conception reaches. A majoritarian system of decision-making is consistent with abuse of the three principles just outlined, including the principle of participation. Although majoritarians will be attracted to the pure detached conception of democracy, they cannot, as we have seen, explain that attraction by reference to an ideal of equal political power alone. Recall that equality of impact and influence seem both undesirable and unachievable vertically and that overall horizontal equality of influence can only be purchased by using in some instances undemocratic methods. If majoritarians want to protect a principle of participation from the decisions of the majority, they have to reach beyond the idea of equal political power to explain what substantive goals their proposed political structure is designed to achieve. By contrast, an integrative democracy appeals to an ideal of equal membership in a political community. That ideal is itself a political one but it unites different aspects of equality. AIl three constitutive principles it adopts require a system of political constraints. But none of the principles, as the principle of equal stake makes particularly clear, can operate in a context of gross economic and social inequality. As Anthony Arblaster argues, economic and social inequality is a form of political inequality. It disables individuals from making use of the means given to them to participate in politics. And it detracts greatly from any claim that government is in fact in their interests. IS In fact, an integrative democracy requires redistribution of economic resources to the less well-off in order that the claim can be made that they matter equally. 16 Ibid at 340-1. 17 These comments evoke the debate about the legal enforcement of morality between H L A Hart and Lord Devlin -see Hart Law, Liberty and Morality (1963) and P Devlin The Enforcement ofMorals (1959). For recent debate on this issue, including a major contribution by Dworkin, see 'Liberal Community and Moral Reasoning' (1989) 77 California LR 479. 18 Arblaster op cit note 11 at 74-81.


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This helps to clarify the claim that it is undemocratic to redistribute resources to a particular group. The less well-off will consistently be the beneficiaries of redistribution because that is required in order to bring them closer to a status of equality as members of the political community. It might then seem that the integrative democracy is unworkable, because it requires methods at odds with its democratic ideals. It is not, however, consistent redistribution per se that it is undemocratic. Only those redistributive mechanisms are barred which detract from equality of membership. Put differently, no group can be targeted for redistribution or for exclusion from redistribution on the ground that some characteristic of the members of that group makes them more or less worthy of being treated as equal members of the political community. In that sense, but in that sense alone, an integrative democracy protects minorities.t? However, it is always a legitimate ground for redistribution that a particular group lacks a resource which they require in order to enjoy equal membership in the political community. Thus an integrative democracy will also require the provision of a social welfare net, so that members of the political community are freed from a tyranny of unmet needs which disables them from effective participation in the life of the community. South African whites 'could not claim special protection as a minority from economic redistributive measures precisely because they would be seeking to protect an interest in an unequal status justifiable only on the basis that a white skin is a mark deserving of special respect.w There will of course be both practical and principled constraints on redistribution. As John Rawls has pointed out, it would be counterproductive to redistribute in such a way as to reduce the resources available overall, so that the less well-off are in fact disadvantaged. And democrats will naturally object to any redistribution which violates principles of justice and fairness which are themselves constitutive of democracy.> 19 In fact, to talk in terms of protecting minorities is not always helpful. Such talk seems appropriate because it is generally the case that in a political system in which important political decisions are put in the hands of the majority, victims of lack of equal concern and respect will tend to be in the minority. As the example of South Africa shows, it might well be a numerical majority that falls victim to lack of equal concern and respect. But even in the established democracies it can be the case that majorities are treated with less than the equal concern and respect required of an integrative democracy. Women are one such group. 20 In Dworkin's terms, the less well-off suffer from an equity deficit roughly calculable by comparing what they have with what they would have had had there- been an initially just distribution of resources. Such a distribution, he suggests, results from an auction in which under an appropriate baseline ofliberties and constraints, participants with the same funds bid for available resources. See _ Dworkin 'What is Equality? Part 3: The Place of Liberty?' op cit note 4. Without endorsing this particular understanding of-a just distribution, I want to note first that the well-off will enjoy a corresponding equity surplus which it is legitimate to distribute subject to the constraints outlined in the next paragraph. Secondly, Dworkin's distributive scheme is sensitive to differences in particular contexts. It will be sensitive both to the resources in fact available and to the values which participants in that context would place on resources. 21

JRawls A

Theory ofJustice (1971).

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SOUTH AFRICAl'l JOURNAL ON HUMAN RIGHTS '

But, it is worth noting, nothing I have said so far supports an inference that there should be a constitutionally protected right to private property such that there can be no redistribution of resources, for example by expropriation or by nationalisation, without full or any compensatlon.> Indeed, such a right would create a constitution at war with itself by proclaiming in the same document commitments to democracy together with a commitment to an economic status quo premised on the inequality of the majority of the political community. Moreover, the idea of ali integrative democracy does not and should not in itself tell us what system of redistribution should be adopted. That matter is to be decided by the people. All the idea tells us is that the system adopted must be one which is consistent with democracy's constitutive principles. The rights which members of a democratic community are entitled to are only those rights which protect and enhance their status as equal members of their political community. If a democratic government refrains from nationalisation or expropriation without compensation, that policy will be based not on democratic premises, but on practical and sometimes deeply regrettable considerations; for example, fear of retaliation by multi-nationals. DEMOCRACY AND ACCURACY

An integrative democracy is, then, one which aims to improve the accuracy of majority decisions in a particular way. The structure of its constitution makes it antecedently likely that decisions are integrative in the sense sketched in the last section. To claim that decisions can be more or less accurate might seem to be at odds with the point made earlierthat for democrats genesis must be crucial since what they aim to do is to put decisions in the hands of the people. For them the fact that the people have made a decision about some important issue is a reason to respect that decision in a fashion not accorded to a decision made by an expert or by some elite. Joseph Raz has pointed out how we might suppose both that genesis is crucial and that it is not everything.P If we think that genesis is 22 In fact it is doubtful whether even Robert Nozick, the right-wing libertarian philosopher, would oppose such redistribution in South Africa. For Nozick holds that the right to private property depends on that property not having been acquired by unjust means. Notice that the United Nations 'Principles for Namibia' (see note 7) required that the constitution afford protection against 'arbitrary deprivation of private property or deprivation of private property without just compensation'. And Art 16 of the Namibian Constitution does require 'just compensation' for such deprivation. This requirement seems to me to be both unfortunate and hardly the sort of issue on which judges should pronounce. Far better, I think, would be a protection against 'arbitrary deprivation' which could be interpreted as requiring that those in risk of being deprived are given a genuine hearing. 23 J Raz 'Liberalism, Scepticism, and Democracy' (1989) 74 Iowa LR 761. Raz, it should be noted, rejects Dworkin's egalitarianism as the theoretical basis of liberalism although not because he disagrees with Dworkin about the need for redistribution of economic resources and an extensive social welfare net.


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everything, that the stamp of majority approval is all that is needed to validate a decision, then we must suppose that the reason a vote counts is different from the reason for which it is cast. That is, the vote will, or rather should be, cast for the reason that the voter, after reflecting on the issue, has come to a conclusion about what is right. But the system counts her vote for the reason that she cast it, not because of her belief about the issue. Her vote counts even if her belief is mistaken and if she is joined by enough voters in that belief then it will be taken as authoritative. Why then should she take pains to try to form an informed judgment, one which is likely to be true? And why should we respect the decisions which result from such judgments if we regard them as mistakes? We should avoid, Raz advises, the temptation of thinking that this mistaken belief is authoritative because those who voted on its basis held it. The only basis for according authority to the decision is that the procedure under which the vote was taken is more likely to lead to decisions which are actually sound than to decisions which are merely thought to be sound.> We are now in a position to see one answer to the question 'Why democracy?', an answer which spotlights the values towards which democracy is instrumental. We should want democracy if what we want is to work towards a good for all individuals - full equality of membership of all citizens of a political community. Democracy 'is the political system most likely to produce that good. It requires that important decisions be made by a process of collective reflection which is designed to- achieve and maintain equality of membership for all individual members of a political community.w So an integrative democracy mixes elements of the detached and the dependent conceptions. It is detached in so far as it aims to preserve the\ autonomy of the political process from the influence of beliefs which violate its three constitutive principles. It thus rules certain issues to be choice insensitive. And it is dependent in that it designs that process in order to give substance to the claim that all members of the political community are in fact equal. An integrative democracy will then require constraints on majority rule. But it would be a mistake to call racist those who might propose integrative democracy as the model for postapartheid South Africa. In response to Robert Mugabe's point, it is worth noticing that the integrative model remains very much an agenda to be fulfilled in the capitalist West. Whatever might be wrong with it, its faults are not that it was the ideology of colonialism and imperialism. It is not put forward as 24 Ibid at 760-l. 25 Put differently, democracy institutionalizes the procedure of rational argumentation which we know is most likely to produce correct decisions. But since correctness here is not a matter of scientific truth, but of truth in moral and political matters, the procedure must at the stage of both input and output respect the moral status of all the members of the political community.

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SOUTH AFRICAN JOURNAL ON HUMA.N RIGHTS'

a sermon to former colonies but as an argument for debate among all those who have democratic commitments. More important, in response to Albie Sachs, is that the motivation of those who propose the integrative model is not anti-majoritarian; their aim is not to put obstacles in the path of the majorities of political communities. Rather they attempt to provide an account of the goods for which majority rule is instrumental; an account which will tell us why we should want majority rule at all. There is, I maintain, no good answer to the question 'Why majority rule?' in the absence of such an account. The only candidate is the sceptical one which says that we should adopt a system of unrestricted majority rule because there is no good that can be determined for a political community as a whole. It then seems to follow that the best political system is one which delivers what the majority happens to want, which we determine by counting their preferences on particular issues. But a political system which was designed to maximize preferencesatisfaction in this way need not resemble a democracy in any significant respect. It is not even clear that a system of voting for representatives to decide major policy issues is the best way of establishing what the majority prefers, let alone that people should be guaranteed rights to free speech and other participatory opportunities. As Raz argues, it is highly unlikely that we can build any case for democracy on the weakness of morality rather than its strength.w Moreover, if it is pointed out that among the preferences of the majority figure preferences for democratic institutions including a universal franchise, and that those preferences are themselves based on convictions about goals of human dignity and the equality of all which such institutions serve, then the sceptical candidate is no longer in play. For figuring among people's preferences about 'what they might want here and now on major policy issues will be the higher-order preference that what they want here and now should only be satisfied on condition that they can win by democratic means. That higher-order preference must suppose that majority decisions which are formed in this way are antecedently likely to serve the interests of the people, on the integrative ,understanding of that entity, rather than the particular interests of groups.27 In other words, in the absence of postulating the goals which majority 26 Op cit note 23 at 762-3. 27 Dworkin once argued that a sound political system will count only 'internal preferences' - the preferences an individual has for how she herself should live - and will discount 'external preferences' - the preferences she might have for how others should live. See, for example, his response to H L A Hart in M Cohen, (ed) Ronald Dworkin and Contemporary Jurisprudence (1983) 219--24. As Raz suggests, op cit note 23 at 772--fJ, Dworkin's recent work shows that a more complex taxonomy is required. External preferences are not discounted per se but only when they are hostile to the very nature of the political system, including the principle of independence that people not be discriminated against on the basis of some allegedly inferior characteristic.

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rule is supposed to serve, there' is no reason to support adopting democratic institutions. And if we focus on the goals which are traditionally thought to explain why majority rule is a good, for example, those set out in the 'Constitutional Guidelines' of the African National Congress.e then majority rule takes its place as but one of the crucial institutions of a properly functioning democracy. We want, that is, majority rule but only under conditions of democracy, because only the goals which answer the question 'Why democracy?' can answer the question 'Why majority rule?'. If democracy is non-negotiable, then so are its constitutive principles. DESIGNING A CONSTITUTION

It is easy to say that a democratic constitution will be one that incorporates all those rights essential to a properly functioning democracy. It is harder to present a sketch of such rights and the institutions required to give them force. I will offer such a sketch after I have dealt with an important point at issue between Sachs and Brooks - the procedure for adopting a democratic constitution. Brooks favours adopting a fully fledged constitution in advance of any constituent assembly because the appropriate constitution is appropriate whether or not it would gain majority approval. Sachs is deeply opposed to such an imposition. For him it smacks of opportunism and racism. In the light of my argument that majority rule is a good only in a properly functioning democracy, it might seem surprising that it follows from that argument that one should side with Sachs.s? Brooks is of course right to assert that the truth about democracy is something which is not determined by majority vote, just as the truth about the laws of physics is not determined by majority vote. But there is something Brooks misses which radically distinguishes physics from politics. The laws of physics govern us whatever we think about them but this not true of politics, whose laws are made by people. The sorry history in this century of attempted imposition of political structures in the name of the people shows that popular consent is a precondition of healthy politics. But there is also a reason against non-imposition which goes beyond expediency. A properly functioning democracy is a human good which requires the active, deliberate and willing participation by the members of the political community it is supposed to govern. And it would be against the spirit of an integrative democracy, in particular the principles of participation and independence, to impose this model on South Africans.

28 Reproduced in (1989) 5 SAJHR 129. 29 The South African Law Commission would also side with Sachs on this issue-see its 'Working Paper 25: Project 58: Group and Human Rights' (1989) 490-1.

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However, it would not, as I have suggested, be an imposition to require that the first constituent assembly be elected under conditions which approximate those of a properly functioning democracy, nor that the deliberations of the assembly be conducted in like manner. At least the principle of formal participation must be guaranteed if that assembly is to be representative and to deliberate. But for the rest, proponents of integrative democracy can only hope that the elements of its model inform the manifesto of the political alliance which commands a majority after that assembly has met. What would the constitution of an integrative democracy look like? The model is disposed to a constitution in which rights crucial to a properly functioning democracy are given a protection that does not depend on the whims of government. In short, the model requires independent judicial review of legislative decisions. In a country where the majority of the judiciary has by and large chosen to interpret the law in order to support apartheid and the political suppression of its opponents, the institution of judicial review must be suspect. This worry is deepened when it is observed that the power to determine the validity of majoritarian legislation by resort to broad and indeterminate constitutional standards is one to sabotage on behalf of vested interests. The first response to the worry about judicial review is that there is no reason to suppose that a constitutional court should be staffed by members of the present bench.v In an integrative democracy one must want judges of the constitutional court to be representative of the political community in terms of ethnic origin, culture and gender. All that one would want as a common denominator between them is a commitment to the constitutive principles of integrative democracy as these find expression in the constitution. For such judges, traditional judicial values like impartiality and objectivity do not exist in a vacuum but manifest themselves when adjudication is in accordance with the goals of democracy. Secondly, one can respond to the particular concern about indeterminacy of constitutional standards by noticing that indeterminacy is something of a virtue on the integrative democratic model. For if such indeterminacy is cured - if the standards are rendered determinate - in a democratic fashion, indeterminacy allows for further democratic inputs into the content of law.

30 The South African Law Commission, ibid at 448--9, rejected this option. Its main argument is that homogeneity of population is required for a constitutional court to have legitimacy. But if the function of the court is to help build an integrative community, it should not aim for, nor should it presuppose, homogeneity. Rather the court should seek to ensure that individuals are treated with equal concern and respect. It is essential for the successful operation of such a court that its bench be representative of the community as a whole. The court would be no more 'loaded' than the present bench of the Appellate Division and it would be loaded for the right reasons.

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Indeed, this response provides a partial counter to Joseph Schumpeter's famous dictum about contemporary democracy - that the democratic method amounts to 'that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people's vote.'''

Schumpeter's point is that the popular control which is supposed to be the basis of democracy is an illusion since democracy consists in a periodic choice between elitist political programs. My emphasis on judicial review might then seem to offer as a surrogate something which finds the cure for lack of democracy in even less democracy: a system of judicial review which will result in the decisions an enlightened majority would have taken had they the opportunity. But that is not the case if the kind of judicial review envisaged is one which is meant to provoke popular participation in politics; when it is meant to give substance to the claim that government is in the name of the people. On the assumption that a society sincerely committed to integrative democracy will seek to provide equal access to legal resources in the way it seeks to provide access to all important public goods, constitutional and other legal challenges can enhance the democratic nature of the political process. For it seems a mistake to confine the scope of the principle of participation to periodic electoral politics or to the deliberations of legislative assemblies. And if legislation is subject to challenge in the courts on the basis that it fails entirely or in part to the extent that it fails to meet democratic standards, then members of the political community are given an additional opportunity to participate in the legislative process. Nor is the value of such participation limited to its actual results in court decisions. Not only does the possibility of successful litigation make legislators more aware of the need to meet democratic standards, but even failed litigation raises public consciousness and thus debate about important policy decisions. Finally, one should not underestimate a virtue which pulls against the virtue of indeterminacy which, as I have just argued, lies in an open texture of values permitting the determination of their content by democratic political struggle. This opposite virtue lies in the ability to shape both that struggle and judicial interpretation by careful constitutional drafting. If certain fundamental democratic commitments are given express constitutional expression, then judges have in the process of interpretation to make sense of those commitments in the course of their reasoning. This point is best illustrated by another disagreement between Sachs and Brooks. Sachs regards the negative sphere of rights which Brooks would have constitutionally protected as insufficient. Sachs relies on the distinction 31 Capitalism, Socialism and Democracy (1940) 269, quoted in Arblaster op cit note 11 at 53.

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between different generations of rights, terminology designed to suggest the chronology of the perception that the previous generation did not go far enough. As he describes them, the First Generation are 'Civil and political rights, and rights of due process', the Second Generation are rights of a 'social, economic and cultural nature', while the Third Generation are 'rights to development, peace, social identity and a clean environment'. He asserts that all three are required for anyone to be effective. For him it follows that a Bill of Rights must deal with all three.V However, this is a non sequitur from a correct assertion. At least, it is a non sequitur if one distinguishes between declarations of faith and bills of rights. The distinction is between good faith but legally unenforceable commitments and commitments which are constitutional in the sense that governments and legislative assemblies can be required by a court of law to abide by them. There is more than one risk in not properly attending to the distinction. One risk is that by putting together what is capable of enforcement with what is not one risks ending up with nothing enforceable. Another risk is - that one might give to courts the power to decide issues of policy which it is inappropriate for them to decide. Brooks, who notices these risks, concludes unsurprisingly that a Bill of Rights should be confined to protecting negative rights, including property rights. But this conclusion stands in risk of perpetuating the status quo since it provides a potential charter for judges to stand in the way of welfarist, redistributive measures, just as the Supreme Court stood in the way of the American Congress earlier this century. I think there is a method of dealing with all of the risks which is not merely strategic but in fact required by the integrative model. The method works by incorporating into a Bill of Rights values which make it clear that there is a substantive connection between First, Second and Third Generation rights, without giving to judges the task of creating policy which is meant to put into effect Second or Third Generation rights.P Some examples of what should, in my opinion, be included in a democratic constitution are the right to equality of women, the legitimacy of affirmative action programs, and a charter to protect the rights of workers. Including these examples forces judges to take account of the

32 Sachs op cit note 2 at 4-6. 33 One way of achieving this aim is exemplified in the Namibian Constitution which-in Chapter 11 sets out Second and Third Generation Rights as matters of 'State Policy' which, as Art 101 says, are not 'themselves legally enforceable by any Court' but shall 'guide the Government' and the courts are 'entitled to have regard to the said principles in interpreting any laws based on them'. But, as I argue below, it is important that a democratic constitution be more peremptory in regard to equality issues, as in fact the Namibian Constitution is. (For a contrary view, see Mr Justice Didcott 'Practical Workings of a Bill of Rights' in J van der Westhuizen and H P Viljoen (eds) 'n Menseregtehandves vir Suid-Afrika (1988), quoted at length by the South African Law Commission op cit note 29 at 420-2.)


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fact that a democracy does not aim for equality in the flatly descriptive sense of formal likeness. That understanding of equality, as the .experience of other jurisdictions shows, is just as well served by removing rights from a group which had exclusively enjoyed them as by extending them. If the right to equality of women is given clear constitutional expression then judges can be asked to decide whether statutes or executive schemes for implementing statutes, and perhaps even 'private' arrangements sanctioned by the common law, respect such a right. Here judges are not charged with creating policy but only with seeing to it that policy is in fact aimed at, or at least does not violate, proclaimed constitutional commitments. Similarly, if affirmative action programs are given express constitutional protection this should be interpreted by judges as a pointer to the substantive link between the capacity to exercise negative rights and the basis which makes it possible to do so. Judges will be forced to take into account the thesis that job selection and allocating resources for training programs can legitimately favour particular groups just in virtue of the fact that this is required to remove the traces of unjust structures which in the past denied those groups equal membership of the political community. And if unions are guaranteed rights of association, independence from the state, and the right to strike (including the right to picket), this will alert judges to the fact that democratic institutions other than those of electoral politics are worthy of special constitutional protection. Workers deserve this protection because of their unequal position in a (if not the) fundamental social relationship. To give them this protection recognizes the role workers can play in promoting the kind of equality for which democracy aims, in large part by extending the principle of participation to areas outside of party politics.>' Such examples can show nicely how constitutional values are permeable - how in a well-crafted document the values flow into and inform one another. The justification for including affirmative actions programs as a legitimate constitutional goal is that such programs are required in order to respect a right to equality. But such programs are legitimate only on condition that they are in fact aimed at bringing about the kind of 34 In Canada, many socialist lawyers are deeply disillusioned by tbe results for workers of judicial interpretation of tbe Charter of Rights and Freedoms. For a recent salvo in this debate, see H J Glasbeek 'Contempt for Workers' (1990) 28 Osgoode Hall U 1. But Glasbeek and otbers do not, as far as I know, deal witb tbe possibly different outcomes had tbe Charter of Rights and Freedoms incorporated a charter protecting tbe workers' rights which have been diminished by Supreme Court decisions, and had unions and lawyers created a culture of fighting for tbe content tbey tbought appropriate for relevant constitutional standards. (It is appropriate to contrast in this regard tbe different, though not unproblematic, experience of feminist groups, in particular LEAF which was formed in order to mount legal action on behalf of women in tbe Charter era.)

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equality for which the integrative model aimS.35 And if there is an express constitutional commitment to the equality of women, this shows that the status of women is a special concern about equality. Women are, then, a particularly appropriate recipient of the benefits of affirmative action. The same commitment also shows that the organization and goals of workerist democracy must be congruent with the equality of women workers. There will of course be controversy about interpretation, something-to be expected and even welcomed since it is essential to. a properly functioning democracy that people reflect and argue together about what should be done. But it is important that such reflection and argument take place within a democratic structure. For example, it is not as clear as Brooks seems to think that extensive censorship of racist literature and speech is a spectre which liberal democratic society must avoid.w In such a society activity, including speech activity, is legitimate only on condition that it does not offend the constitutive principles of democracy. And, given a fundamental commitment to equality, racist speech, which aims to perpetuate images of inequality in order to perpetuate or create unequal structures, is something which can have no proper place in politics. Indeed, while a democracy can and should welcome a plurality of cultures, there is no obvious reason why it should tolerate cultures or aspects of culture whose successful existence depends on a climate of intolerance. This claim does not dispose of the argument that censorship of pernicious material risks censoring worthwhile material. But that argument is wholly about practicalities, not about principled opposition.v This topic raises the problem whether we need protection rather than mere toleration of cultures. With thinkers like Raz and Dworkin, I suggest that the only culture worthy of constitutional protection is the pluralistic public culture which seeks to sustain attitudes of respect and tolerance for the traditions of different cultural groups. But it follows that different cultural groups should not enjoy specific constitutional protection. What should be protected is the means of transmission of culture, which requires that individuals should be able to maintain the traditions and institutions which are integral to their conception of themselves as belonging to a distinct culture.v But those means can be protected by 35 Brooks op cit note 2 at 32-3, supposes that affirmative action would be a kind of reverse apartheid. But that is because he does not see the distinction between a policy which seeks to repair a defect in equality and a policy which seeks to reinforce inequality. 36 Ibid at 34-5. 37 Article 10 of the European Convention of Human Rights gives a right to freedom of expression on condition, inter alia, that it does not offend against restrictions 'necessary in a democratic society'. 38 Since freedom of speech and association would figure prominently among the means of cultural transmission, we can observe that certain fundamental political rights serve more than one value.


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making it clear what rights individual members of any cultural group should enjoy without giving special status to any particular group. Similarly, there is no democratic basis for the idea that there should be a second chamber representative of special cultural interests which would have a right of veto over the decisions taken in the legislative assembly. The idea of a minority veto is unacceptable. It is aimed at achieving the same result as the protection of private property rights discussed earlier, for it seeks to give a special weight to a white interest in maintaining the. apartheid status quo under the guise of protecting culture. But whites as a group do not constitute a distinct culture in South Africa unless one understands their common feature as an allegiance to an ideology of racial superiority. It would be consistent with this position for the state to permit a particular group to send their children to a school in which a different language from the official one is the main medium of instruction and to give to that school the same subsidy as the children would enjoy at an ordinary school. But it would be required of the state to monitor the education in such a school, as it would be required to monitor the education in all schools, to ensure that the education was in fact consistent with the public culture of tolerance appropriate to an integrative democracy. 39 It would therefore be inconsistent with this position to allow a so-called right of disassociation, that is, a right for a particular group to have an unfettered discretion to determine the criteria of access and membership oftheir institutions.w One could, for example, stipulate Afrikaans as the medium for communication of a club or organization, but could not stipulate that only white people are permitted to join. For that stipuiation presupposes an inherent superiority of white people as bearers of Afrikaans culture. While cultural organizations will de facto achieve such exclusions, and might be permitted for expedient reasons to do so, permission for such exclusions could not form part of a democratic constitution. One would rather expect that a constitution designed to create a democratic South Africa would expressly prohibit exclusions based on gender, ethnic origin, religion or sexual orientation. A democrat must hold .that all constitutionally entrenched curbs on majority decisionmaking have to be justified by their role in promoting democracy. But on the integrative model of democracy, individuals are disabled from 39 It does not follow that bureaucrats should do the monitoring and it certainly does not follow that party politicians should. One would rather look to school boards independent of central government and representative of the community at large. 40 The South African Law Commission op cit note 29 at 408--10, seems to recognize the force of a similar argument but then recommends in its Art 17 that there should be a right to discriminate by disassociation, the only penalty being that no public funds should go to any person or group who so discriminates. This 'right' would permit a harmful perpetuation of much of the present status quo and so should be rejected.

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participating in the life of a democratic community to the extent that they are not treated with equal concern and respect. Constitutional provisions which enable participation in this way are no' less essential than, say, provisions which protect the right of adult members of the political ' community to vote.s! CONCLUSION

I have presented the argument for an integrative model of democracy on the basis not only that it answers the question 'Why democracy?', but that the answer it gives is particularly attractive. In conclusion, I want to reinforce this argument by briefly contrasting the integrative conception with its main rival, in case it might seem that I have not given the rival its due. Earlier, I dismissed a goal-less majoritarianism on the ground that we need to know why we should want majoritarianism. And I argued that the answer to that question comes as part of the answer to a more complex question, 'Why democracy?'. But that dismissal might seem too quick when we notice that majoritarianism can provide an answer to the more complex question, nainely that we should want democracy because democracy is the political mechanism which leaves important decisions to the discretion of the majority. That answer is not based on scepticism since it regards leaving decisions to the majority as a good. The answer is, however, sceptical in that with Bentham it distrusts the fiction of the community, seeing in that fiction the concealed imposition of a partisan conception of the good on a political community. At most, majoritarianism of this kind accepts political constraints which allow the majority to decide all important policy issues. Such issues should be decided statistically, that is, by a counting of particular interests in the way that representative government permits.v Notice that, other problems aside, this statistical model of democracy makes way for the power politics of instrumentalism, subject to two qualifications. First is that the conception is agnostic about whose interests should prevail. Secondly, in order to preserve the agnosticism, it seeks a political process which will ensure a continual competition between different interest groups for the majority vote. It aims, in other words, for the democratic method which Schumpeter described. But the statistical model does not escape imposing a partisan conception of the good on a political community. As John Stuart Mill remarked of Bentham, the model presupposes an 'idea of the world' such that it is a 'collection of persons each pursuing his separate interest or 41 Dworkin 'Equality, Democracy, and Constitution: We the People in Court' op cit note 4 at 343-4. 42 Dworkin ibid at 329.

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pleasure' .43 It assumes, that is, that a conception of community that reaches beyond this atomistic idea is a mistake because all that a collective decision can be is the sum of particular interests. Why make this assumption? One reason might be metaphysical- the mean and parsimonious view of human nature put forward by Thomas Hobbes. But that reason drives one straight back into a kind of global scepticism which is just as, if not more, likely to support dictatorship as democracy. Another reason is the fear of presupposing more - that is, to presuppose more is to step onto the slippery slope of a monolithic conception of the community which will swallow dissenting individuals. But that reason leads to an anti-democratic stance like Berlin's, where democracy is only tolerable, perhaps as a necessary evil, on condition that it does not impinge on some inviolable sphere of negative liberties. So neither of these reasons should be attractive to democrats of any stripe. By contrast, the integrative model seeks a basis in a collectivist, communal conception that aims to create and preserve equal concern and respect for individuals. Its emphasis on the individual is distinctively liberal and, if the arguments of this essay are right, democrats might be surprised to discover that they were liberals all along. But equally liberals will be surprised to discover that they are democrats of an egalitarian, even socialist, cast. 44 Can South Africa afford such a democracy? The question, rather, is whether it can afford to do without it.

43 J S Mill On Bentham and Coleridge (1950) 70.

44 For a compelling argument about Whysocialists need to take liberal ideals of democracy and the rule of law seriously, see C Sypnowich The Concept of Socialist Law (1990).