Conclusion: The Second Democratic Revolution

practices, officially intended to foster popular disgust for certain crimes and to force those who are sentenced for them never to forget following their release from prison what they have done, are often criticized, they also have ardent defenders, even within the ranks of selfstyled progressives.44

Degradation penalties were different. They were aimed chiefly at ruining a person’s reputation, by declaring him to be unworthy. In this sense they fell outside the roster of classical punishments. The Roman censors, whose duties included the supervision of public and private morality, were authorized to examine alleged violations of oaths of office or of matrimony, conduct deemed harmful by its indifference to civic virtue, even displays of luxury that were considered to be excessive. But they could not inflict real punishment, either by imposing a fine or by setting a term of imprisonment. Their jurisdiction extended only as far as a person’s reputation, which could be diminished through a reduction of honors or rank, or through a lowering of social status by exclusion from one’s tribe.45 Like stigmatizing penalties, penalties entailing a loss of rank or status were to play an important role until the eighteenth century in Europe. They often strengthened, and symbolically aggravated, penal sanctions applied to persons whose status under the ancien régime was associated with membership in a body considered to be socially influential (the nobility, the clergy, officers of the realm, and so on). Auxiliary punishment consisted in this case in disaffiliating offenders from such bodies. The socalled infamous penalty (peine d’infamie) was a way of publicly dishonoring them—and this in an age when honor was often considered a greater good than life itself. Thus a parliamentary councillor convicted of having falsified an inquest might, in addition to being removed from office, be solemnly stripped of his red robe during a public hearing. A priest sentenced to death might be publicly degraded, by being made to divest himself of the chasuble, stole, and alb he had been forced to wear as if he were preparing to say mass, prior to being executed, again publicly. A noble might be made to forfeit his titles and lowered to the condition of a commoner.46 These penalties, though they were not provided for by law, expressed the determination of such bodies to show themselves worthy of public confidence by expelling those who had showed contempt for their sworn duty to serve the common good. With the French Revolution, honor ceased to be the privilege of a few. But by the same token every person was now

liable to be accused of unworthiness in the event of a grave transgression of civic morality, and above all if he had been elected to public office, since henceforth citizens were expected to choose their representatives by giving priority to those who were “the most deserving of public trust.”47 The notions of trust and worthiness were thus intimately associated at the heart of the revolutionary political ideal. Unworthy representatives were ones who “betrayed the trust of their constituents.” Political unworthiness was the subject of much debate during this period, even if it remained difficult to codify.48 The sanction of civic degradation was instituted by the Penal Code of 1791 in order to curb those failings considered to be most harmful to the common interest, foremost among them the abuse of public trust. It was retained by Napoleon in the Penal Code of 1810,49 which directed that the convicted person should be led to the public square, where a court was seated, and that in a loud voice the clerk of the court address these words to him: “Your country has found you guilty of an infamous action; the law and the tribunal degrade you from the rank of French citizen.”50 Few elected officials seem to have been sentenced to this penalty in the nineteenth century. Nevertheless the loss of civil rights long continued to be a supplementary punishment accompanying certain criminal sentences. The spectacular degradation of Captain Dreyfus, whose sword was broken in the court of the École militaire on 5 January 1895, served to revive, albeit in isolated fashion and notwithstanding that its basis in law had never been fully settled, the ancient ceremony of dishonor by exclusion from a corps.

In France, the notion of indignité nationale enjoyed a stunning resurgence following the Second World War. Support for the idea of sanctioning passive collaboration, which is to say petty instances of moral support for the German occupier, had grown during the Resistance.51 Special jurisdictions known as civic chambers were created to pass judgment on this kind of unworthiness after the Liberation, with the intermittent assistance of regular courts of justice. Alongside cases of active collaboration brought to trial and punished by imprisonment or death (there were some 1,500 judicial executions), as well as popular reprisals in which some 9,000 people were executed without recourse to lawful procedure of any sort, 95,000 men and women were judged to be unworthy of French citizenship. The unevenness of the sentencing, and the vagueness of the justification given for punishment in many cases,

attracted widespread criticism at the time, but its force was blunted by the perceived urgencies of the immediate postwar period.

The accepted view of unworthiness in this sense subsequently evolved, to the point that it came at last to be seen as antiquated. After the abolition of the death penalty in 1981, the new penal code of 1994 effectively eliminated the penalty of civic degradation, retaining only a much weaker version of it in the form of a temporary loss of civil rights. In the process the very category of a peine infamante was surreptitiously gotten rid of as well.52 This situation needs to be reconsidered. At a time when trust between members of society and their elected representatives has all but vanished, the practice of sanctioning democratic unworthiness on the part of officials found guilty of corruption may well deserve to be reinstated in some fashion. JeanLouis Nadal has courageously reopened the subject to debate by suggesting that both chambers of parliament should have the right to expel a member in the event of grave misconduct as a deterrent measure, and to approve stiffer penalties of ineligibility for reelection,53 in extreme cases perhaps even a punishment of permanent ineligibility.54 The question of moral sanctions, above and beyond criminal sanctions, may be expected to stimulate further debate over what needs to be done to ensure greater integrity political life in the years ahead.55

CONCLUSION

The Second Democratic Revolution

THE FIRST DEMOCRATIC REVOLUTION, dedicated to the conquest of universal suffrage, sought to make voting citizens the principal agents of popular sovereignty. This revolution is now behind us, even if some countries still look forward to its arrival. But it is far from having accomplished all the things that people assumed it would almost automatically bring about. The words that Flaubert gave to a character in L’Éducation sentimentale to say in 1848—“With universal suffrage, we will now be happy”—seem almost risible to us today. The history of this first revolution has thus been one of perpetual disenchantment.1 For two centuries, as a consequence, societies have been searching for ways to make up for disappointed expectations and correct the mistakes that gave rise to them. We have now finally arrived at the end of this period of exploration. Tinkering with electoral systems, improving the representativeness of elected officials, implementing a principle of parity, limiting the number of offices that can be held concurrently, involving citizens in the selection of candidates, introducing mechanisms of direct (or participatory) democracy—the list of remedial and palliative measures has long been agreed upon. Where they have been put into effect the results have been positive. Yet there still remains much to be done in this connection to combat unrelenting attempts to muffle, or even silence, the voice of the people, whether it is a question, for

example, of the role of money in campaigns, or party control over the electoral process, or the persistence, and indeed the worsening, of malrepresentation. Reform in these areas has been limited in two fundamental respects. First, there is an abiding attachment to a majoritarian conception of democracy. This is a problem I discussed in the second book of this quartet, La légitimité démocratique, which argued for the need to establish new democratic institutions as part of an enlarged and pluralized approach to expressing the general will.2 But a second and still more decisive shortcoming has to do with the restriction of citizen expression to choosing a head of the executive branch and other elected representatives, which is to say a simple procedure for passively endorsing the general thrust and orientation of a government’s policies.

In the present work I began by noting the many things that a democracy of authorization in this sense fails to do and went on to explore an alternative to it—what I call permanent democracy, founded on a set of principles capable of justly and lastingly regulating the relations between the governed and the governing. Under this regime, citizens are no longer content to be kings for a day. They accept ongoing responsibility for actively monitoring and supervising their governors, who now find themselves subject to a variety of unfamiliar constraints and obligations. In the first book of the quartet, La contre-democratie, I had made a start on understanding this “postelectoral” dimension through an analysis of a novel kind of social and political activism that sprang from a distrust of governments.3 The focus here has been broadened considerably with the presentation of a general theory of democratic oversight, supported by an effort to elaborate the principles of democratic action in politics.

Institutions and Actors of a Permanent Democracy

In this book I have briefly described the five principal aspects of a permanent democracy: legibility, responsibility, responsiveness, truthfulness, and integrity. It is no more than a preliminary sketch, to be sure, but the main outlines are now at least clearly drawn. By contrast, I have done no more than allude to the evidently crucial task of describing the institutions and actors that will be responsible for giving practical effect to these principles, calling on several occasions for the creation of “new

democratic organizations.” Another book would be required in order to address the question in detail, taking into consideration also the fact that what needs to be done will only become fully apparent with the passage of time. It was not until many years had gone by following the initial achievement of universal suffrage, for example, that parties in their modern form first emerged and then came to be regarded as an integral part of the electoralrepresentative system we know today. For the time being, however, and without having the least desire to engage in political engineering,4 I would like to conclude the present work by indicating some paths of research and discussion that will reward further exploration.

A democracy concerned to govern well, and to govern still better in the future, might be organized around three poles: a council on democratic performance, charged with formalizing the legal basis for principles underlying a permanent democracy (integrity of elected officials and transparency of government institutions foremost among them); public commissions, responsible for evaluating the democratic character of public policy deliberation and of the steps taken by administrative agencies to put policies into effect, in addition to sponsoring public debate on all relevant issues; and civic vigilance organizations, watchdog groups devoted specifically to monitoring government performance (especially with regard to responsiveness, responsibility, and the clarity of political speech) and working to promote citizen involvement, training, and education. These three types of organization would form the pillars of the new kind of political system I have in mind. In this context a charter of democratic action could be brought before the public for debate and formal approval, and perhaps one day be accorded a status in many countries equivalent to that of the Declaration of the Rights of Man and the Citizen in France. Without pretending already to have worked out in detail what a permanent democracy would involve, it may nonetheless be a good thing, by way of illustration and for the purpose of stimulating discussion, to give at least a rough idea of what its overall architecture might look like.

The council on democratic performance, under the direction of an executive board, would be responsible chiefly for intervening on behalf of each of the two objectives I mentioned a moment ago, integrity and transparency.5 It would also serve to strengthen the protections available to whistle blowers. To be effective, it should have its own investigative

authority and the power to issue restraining orders to government agencies and individuals alike. It should publish an annual report on the state of democracy, with government officials being obliged to publicly justify their conduct in response to its criticisms and to declare an opinion in respect of its recommendations. All this would require not only that it have more complete jurisdiction than the various independent authorities operating today, but that it be constitutionally recognized as a branch of government in its own right, alongside the executive, legislature, and judiciary. Rallying support for a fourth branch of government is an indispensable condition of being able to bring a permanent democracy into existence.6 Just as constitutional courts are the guardians of public institutions, a council of this type would be charged with ensuring that the fundamental principles of good government laid down in the Charter are respected. Its democratic character would be warranted by the circumstances of open review under which its members are appointed (including, among other things, public confirmation hearings in both chambers of parliament), the obligation to keep the public informed of its work, and the requirement that its own business be transparent to all (thus itself embodying one of the constitutive ideals of a permanent democracy).

The public commissions I envisage would be continuing bodies set up to scrutinize the formulation and administration of public policy, with a view not only to involving citizens in the work of government but also to making sure that economic and social programs produce legible outcomes. Being few in number, such commissions could be asked to concentrate their efforts on areas of particular concern, such as public health and safety, labor and the economy, culture, education, and research. In this way they would support and extend the activity of government bodies such as the state audit office in France, and by expanding the functions that currently are performed in part by parliamentary assemblies would make such bodies more democratic (acting in this regard with greater freedom and efficiency as well, being shielded from the pressures of partisan competition). Additionally, they would be responsible for encouraging public debate on major issues, functioning in this capacity as the primary sponsor of a truly deliberative democracy. The democratic character of such commissions could be guaranteed by adopting a selection principle that brings together persons nominated by prestigious institutions for their technical competence (thus ensuring

objectivity) with persons selected at random (thus promoting equality) and members of citizen groups studying the various topics under discussion (thus furthering the aim of public involvement and what may be thought of as functional representativeness).7 In the best case, the work of such commissions would succeed also by a sort of pendulum effect in restoring elected assemblies to a preeminent place within the framework of democratic guidance.8

The organizations of civic vigilance would include public interest groups and private foundations committed to the advancement of democratic principles. Earlier, by way of example, I mentioned the American organization Common Cause and the various national chapters of Transparency International. Though they are still undeveloped by comparison with larger environmental groups and charitable organizations, they might one day help to bring about citizen involvement of a new type, aimed at combating dishonesty, manipulation, and deceit wherever they stand in the way of open government. Because it is resolved to go directly to the source of a whole range of problems, rather than simply protest their effects, this form of engagement holds greater promise than traditional partisan advocacy. Just as political parties and unions in certain countries receive public subsidies in recognition of their contribution to promoting public and social democracy, a strong argument could be made in favor of granting watchdog organizations similar treatment. As in the case of unions, their representativeness will depend on the size of their membership, their capacity to mobilize support, and the scope of their activity; but such organizations also have a functional character deriving from their original motivation, namely, to create a permanent democracy.9

A regime of this sort, around which a second democratic revolution is now beginning to take shape, will therefore need to be equipped with its own agencies. The three categories of institutions I have just discussed would differ in status and have distinct missions, but they would all serve, in mutually complementary fashion, to protect the proper functioning of existing organs of government. Nevertheless they will be able to fully realize their purpose only if citizens come forward and claim responsibility for them. Making the work of such organizations widely known is obviously a first step in this direction. It will be necessary to go further, however, in order to avoid the risk that they may become sclerotic and inwardlooking in their turn, incapable of promptly adapting

to changing circumstances. Holding an annual democracy day might be a way of solemnly reaffirming their importance while at the same time directly involving people in their undertakings. An occasion of this sort might be preceded by public forums, whose various written and oral contributions would form the basis for a series of debates, broadcast by the media, with elected representatives and government officials being invited to indicate how they intend to respond to the criticisms and suggestions expressed in these forums. An annual democracy day would give the people as a whole, not merely the smaller population of registered voters, the opportunity to exercise their right of citizenship.

Functional Democracy versus Competitive Democracy

The permanent democracy I envision has a functional character in the sense that it does not operate over an area already marked out and divided up by ideological disagreements and conflicts of interest. The end it aims at is by definition consensual, and its methods are expressly designed to win the approval of the greatest number. It is for this reason that it cannot be brought into being by means of election. A democracy of authorization, by contrast, is by its nature conflictual, since governing implies a need to make choices, to give a direction to policy, and to set priorities that very seldom are likely to be unanimous. Recourse to a vote then becomes inevitable, in order to decide. This distinction between the two kinds of regime is essential.

The problem is that election does not consist only in choosing a way forward. As a practical matter it takes the form of a competitive selection among persons. And it is just this kind of competition that harms democracy. Its effect is first to create an oversupply of campaign promises, and then to feed the disenchantment that inevitably follows when those who are elected turn out to be incapable of honoring the very commitments that enabled them to triumph. This clockwork connection between encouraging electoral rivalry and fueling a machine for generating promises has been strengthened with the decline of the idea of revolution, which formerly had made it possible to link competition with alternating party control, if not actually a change of political system. Apart from an implausible appeal to the personal virtue of professional politicians and the doubtful assumption of efficiency in government, there are few institutional mechanisms that might serve to remedy this state

of affairs.10 The one that comes most readily to mind, a lottery, is better suited to shaping legislative decisions that represent the will of the people than to choosing a head of the executive branch, the chief focus of attention today in an age of presidentialization; what is more, a lottery cannot be a method of setting a direction for policy.11 The problem must therefore be considered to be structural. Only the vitality of a permanent democracy will be able to limit its harmful effects, in the first instance by forcing public officials to speak plainly and honestly. But it will also be necessary to create a new and more positive type of relationship to the future if the present flood of empty promises is ever to recede.

Looking Forward to the Future

Promising is a byproduct of the principle of competition in politics, where it operates in an opposite fashion to the one that regulates markets for commodities. In a commodities market the effect of competition is to lower prices and increase demand. In a political market, by contrast, competition raises prices and lowers demand. The reason for this is that politics is really a futures market. Voters buy options, they wager on the future. In this sense voters are speculators. If a promise is not delivered on, which is to say if reality falls far short of expectations, they pay the difference in the coin of disappointment at some later date. They may go on gambling for a while longer, or they may get up from the table and leave (by abstaining from voting or casting a blank ballot). Bringing citizens back to the real economy of politics means replacing promises by truthfulness. This moreover is what makes promising in politics different from promising in a romantic relationship. Two people in love make a commitment to each other that is put to the test every day; words then exist only in tension with the clearsighted gaze that is brought to bear upon breaking a promise or failing to keep one (“There is no such thing as love, only proofs of love,” as the old expression has it). Politics sustains a different relationship between wishes and actions: the future appears less as something that is built day by day than as something that is awaited—an event, a decision, a change of course that will fulfill all hopes, all dreams.

Finding a way out from this perverse cycle of oscillation between an insatiable appetite for promises and a disenchanted turning away from politics is an essential requirement of democratic progress. But no