The Paradoxes of Democracy and the Rule of Law

The promise of modernization after the Second World War was that economic growth, equality, the rule of law and democracy would proceed together. In many ways, this has happened. Yet many of the promises of social progress developed after WWII have been undermined by internal tensions within the democratic project, as well as by social and economic trends. While stating the challenges that these trends have posed for democratic institutions and actors, we also look at the responses (both proposals and practices) that have emerged in order to address those challenges. In doing this, we note that the very conception of democracy as liberal democracy (based on delegation and majority voting) is under stress as neoliberalism has attacked those very intermediary institutions (parties, unions, voluntary associations) that had been at the basis of the development of the welfare state and democratic capitalism. We start by noting the growth in inequality, which means that formal democracy is shaped by uneven power resources as concentration of wealth provides advantages in the capacity to influence public decision making with mutual convertibility of economic and political resources. The spiral of inequality and corporate political power is reflected in a growing legitimacy crisis in old and new democracies. Liberalism, which promised the separation between the state and the market, has evolved into neoliberalism, , based on the domination of the corporation, exacerbated by privatization and de-regulation. This has raised private profit criteria about considerations of the broader public good and in many cases encouraged corruption. The ensuing inefficiency and lack of transparency foster institutional mistrust, with perverse effects. Challenges are also related to the fact that democracy has been mainly defined in a national mode, with the demos identified as the nation. Economic rescaling produced by global capitalism has however a produced both de-territorialization and re-territorialization, which requires a (yet unachieved) rethinking of the basis for democracy but also of welfare and its foundation in both identities and institutions. In the North and (with different characteristics) in the South of the globe, movement of capital and of people pose challenges of national pluralism and its constitutional recognition, questioning key concepts such as the definition of political community and popular sovereignty and the . relationship between human rights and citizenship. Citizenship is more appropriately considered as related not to fixed institutions but rather as ‘acts of citizenships’ requiring subjectivity and agency and more inclusive conceptions. The main actors in democratic development have been affected by these challenges. Political parties are an important element in democracy but they have become an interest in their own right. A crisis of representation has emerged from growing social detachment of political parties from social cleavages as well as of elected representatives from the citizens. This had most dramatic effects on the Left, when left-wing parties have supported neoliberal reforms. Relying on expertise for the development of progressive policies is not a solution given the non-accountable power of science as well as the increasing challenges of privatization of knowledge-making, opacity of knowledge production and persistence of fundamental class imbalances in access to knowledge. Participatory channels of access to institutions have been opened to ‘ordinary citizens’ but, within neoliberalism, they are often based on individualist conceptions and do not address fundamental issues of inequalities. While citizens often call for direct participation, existing experiments rarely empower the citizens. While the judiciary has been seen as a surrogate for democratic participation for marginalized minority groups, its capacity for rights enforcement is limited by the expansion (in particular at international level) of a lex mercatoria as well as the use of courts in order to protect economic freedom from democratic dynamics. The rule of law has also been subverted by unequal access to the law and by the influence of money while the judiciary also has its own particular interests and corporate lawyers assume a brokerage function in globalized markets. On the other hand, in the control of political dissent, the state, rather than being weakened from globalization, increases its reach and power. The ‘war on terror’ has been used to challenge the rule of law by states of emergency as well as authoritarian drifts with attempts at imposing a permanent ‘state of exception’. On the other hand, progressive social movements have addressed growing inequalities and democratic crises by developing alternative visions of democracy, stressing participation over delegation and deliberation over majoritarian decision-making. Participatory and deliberative conceptions have been prefigured as well as elaborated in recent waves of protests. The consolidation of oppositional actors, however, faces challenges in the fragmentation of the potential social bases, the need to build a new collective identity as well as to establish channels of access to power. This has resulted from, but also triggered, the reduction in citizens’ entitlements and the weakening of the social contract upon which social progress depends