TFL Vsebine / Revija Revus

Many political and legal philosophers believe that disagreement forms part of the “circumstances of politics”, even to a point where we might say that disagreement is the definitive circumstance of politics. That is to say, disagreement is understood as a central problem of politics, with which the enterprise of constitutional design is centrally concerned. Disagreement is both insoluble and is constitutive and characteristic of politics as such. And, for the most part, liberal and republican theorists dispute only the subject or extent of disagreement, with Rawls emphasizing disagreement as to questions of the good amidst a presumed consensus on questions of right or of justice, but with Bellamy and Waldron arguing that disagreement extends to questions of right as well as good, and that constitutions should be designed accordingly. In turn, such framings of disagreement underlie questions of institutional design, most notably the problem of judicial review and its relation to democratic legitimacy. The purpose of this paper is to challenge this dominant understanding of disagreement as such as being a definitive circumstance of politics, and therefore, as a central problem of constitutional design. I make this argument with reference to two thinkers in particular, Jean-Jacques Rousseau and Pierre Bourdieu. Drawing on Bourdieu, I will argue that ostensible disagreement – as expressed in competing assertions or claims as to the right or the good – need not necessarily be framed in propositional terms, but can rather be understood as socially performative and as exercises of symbolic and social power. Thus, disagreement as such is not antecedent to political and social order but is rather constituted and formatted by it. In turn, I will argue that Rousseau’s constitutional projects can be understood as reflecting a similar insight. In contrast to Rawlsian liberalism, the fundamental problem of political order, for Rousseau, is not a propositional one at all, concerning disagreement as to the right or the good. The starting point of political order is not the search for the good (or the right), but rather, the problem of, and the need for recognition, as the social context within which claims of right and good are asserted. A central challenge of politics, then, is how it is possible to constitute a shared symbolic universe in which political communication and political discourse can assume transparent and non-dominating forms. I will conclude by offering examples as to how constitutional design can account for this problem.