Vol. 10 No. 7 (July 2000) pp. 394-397.

DELIBERATIVE DEMOCRACY AND HUMAN RIGHTS by Harold Hongju Koh and Ronald C. Slye (Editors). New Haven: Yale University Press, 1999. 317 pp.

Reviewed by Edward A. Kent, Department of Philosophy, Brooklyn College, CUNY.

Carlos Santiago Nino was the sort of person one wishes one had known personally during his relatively short lifetime. The brief introductory biographical essay by Nino's friend and colleague, Owen Fiss, "The Death of a Public Intellectual," is deeply moving. A lawyer by profession, Nino became the "philosophy counselor" and friend of Raul Alfonsin. Alfonsin, as its elected president, restored democracy to Argentina following upon the brutal reign of the junta (1976-1983). The junta had "disappeared"' some ten thousand "subversives" -- many entirely innocent university students -- and lost the disastrous Malvinas/Falkland Island war to Margaret Thatcher.

Nino unfortunately died at the age of 49 (29 August 1993) of a heart attack upon arriving at a human rights conference in Bolivia. He had remarked to friends of the potential health risk of Bolivia's high altitude to his weakened heart, but he was determined to participate in what he took to be a crucial moment for human rights. He cared deeply about building democracies through considered "deliberation." He hoped that it might convert the potentially repressive majoritarian impulses of aggregates of individuals to a higher level of democratic decision-making respectful of our fellow humanity. He had engaged a number of the contributors to this collection directly in his efforts.

This festschrift for Nino, edited by Harold Hongju Koh, Yale Law School, and Ronald C. Slye, Seattle University School of Law, is based on a 1994 conference on Nino's thought organized by Orville H. Schell, Jr. for the Center for International Human Rights and held at Yale Law School. It is at once exhilarating and depressing reading. Nino was an optimist about the prospects for converting nations with repressive or disordered regimes to humane and constitutionally directed policies. He argued for a vision of "deliberative democracy" which would institute constitutional practices respectful of the (Kantian) autonomy and dignity of all. However, as a number of the contributors point out, some nations, and particularly third world ones such as Haiti, may be hard pressed to achieve even minimal economic and political order let alone support for the most basic human rights of their inhabitants.

The bulk of the text and of the contributors' attention is focused upon four of Nino's principal concerns: the ethical bases for human rights, the function of constitutions in building democracies, deliberation as an essential factor in humanizing majoritarian rule, and the aftermath of radically evil political regimes.

Nino was the author of three major books -- one published during his lifetime, THE ETHICS OF HUMAN RIGHTS

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(1991) and two posthumously, RADICAL EVIL ON TRIAL (1996b) and THE CONSTITUTION OF DELIBERATIVE DEMOCRACY (1996a). The latter two books particularly figure prominently in the analyses in the book under review and should be read in tandem with it.

Since my own primary field is philosophy of law, I was drawn particularly to the contributions of my wider colleagues, Thomas Nagel, Ronald Dworkin, and Thomas Scanlon who, by chance, initiated the internal debates of three of the four principal topic sections. Nagel, in "Personal Rights and Public Space," begins the dialogue that develops in the section entitled "Two Ethical Bases of International Human Rights." He proposes that, although the right not to be tortured is fundamental, it is "not philosophically interesting." I think he means only that it is so obvious a right that it needs no further defenses. He focuses his attention upon personal privacy rights that he views as fundamental, but which are not universally recognized as such. Thus, "choices of personal pleasures, sexual fantasies, nonpolitical self-expression, and the search for cosmic or religious meaning" need argumentative support. Follow-up contributors to this section, particularly Bernard Williams "In the Beginning Was the Deed," seem to miss Nagel's point that it is the debatable rights that need philosophic elaboration and defense. Williams insists that real life events, particularly situations in which one group represses another, and not theory must determine what rights are self-evident and fundamental. Martin D. Farrell, in "Autonomy and Consequences" and Elaine Scarry, in "On Philosophy and Human Rights," complete this first exploration with analyses, respectively, of Nino's distinctive contribution to our understanding of the necessary bases for autonomy and a skeptical assessment of the contributions of philosophy (or at least Nagel's approach) to resolving flagrant human rights violations.

Ronald Dworkin's "The Moral Reading and the Majoritarian Premise" starts off the second major topic area, which is entitled "Nation Building, Constitutionalism, and Democracy," with his characteristic argument that judges must interpret functioning constitutions from moral perspectives that may occasionally trump the enactments of democratic majorities. Stephen Holmes's "Constitutionalism, Democracy, and State Decay" redirects attention from established democracies to those just emerging from authoritarian rule - - Russia and Eastern Europe -- where, he argues, the need to establish social and economic order takes precedence over protections of individual rights. He states that, the Hobbesian problem has to be solved before the Lockean solution looks attractive." Albert Calsamiglia's "Constitutionalism and Democracy" counters, from a Marxist perspective, that representative democracy is a necessary but not a sufficient guarantee of substantive human rights norms or "the prevention of anarchy is not enough if legitimacy is to be our goal." Ian Shapiro's "Group Aspirations and Democratic Politics" examines conflicts between groups which may sometimes be resolved within a single national context (South Africa?) -- but which may alternatively call for a two state solution (the Israelis and the Palestinians?).

The third topical section, "Democracy and Deliberation," covers the nuts and bolts of Nino's thesis that deliberation can somehow make democracy work. The contributions here are suggestive of the problems that face diverse cultures attempting to implement modern notions of democratic rule: Irwin P. Stotzky's "Creating the Conditions for Democracy,"

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Jaime Malamud Goti's "Power Under State Terror," Jeremy Waldron's "Deliberation, Disagreement, and Voting," Amy Gutmann's "Deliberative Democracy and Majority Rule: Reply to Waldron," Carlos F. Rosenkranz's "The Epistemic Theory of Democracy Revisited," and Paul W. Kahn's ""Democracy and Philosophy: A Reply to Stotzky and Waldron."

I found the most original and suggestive contributions in this text to be those in the concluding section dealing with the "radical evil" (a phrase Nino borrowed from Kant) inflicted by the authorities of renegade states. What should be done with such perpetrators when democratic governments have supplanted their regimes? The proposal that the contributors explore is that exhaustive public exposure of such atrocities may function as sufficiently as direct punishment as a future deterrent -- particularly when punishment is politically impractical or threatens instability. This may be the most lasting of Nino's contributions to modern political theory -- his (and his commentators) exploration of the aftershocks from governments that have massively violated the most fundamental of human rights.

Tom Scanlon's "Punishment and the Rule of Law' poses the conventional question. Should we punish and if so, how and why? He argues that we cannot simply demand universal retribution against perpetrators in such cases, but rather we may be obliged to seek partial alternatives that may still deter such crimes while reassuring victims that their calls for justice have not been betrayed. He is wary of retroactive justice and insists that punishment must be fair and safe -- for the perpetrators as well as the victims. He rejects as unrealistic, however, Nino's proposal that the perpetrators must "consent" to their punishment.

The three responding authors debate the merits of a "truth commission" approach to resolving the problems posed by Scanlon -- particularly that of deterring future abuses without disturbing the stability of sometimes still frail democratic successor governments. Ruti Teitel's "From Dictatorship to Democracy: The Role of Transitional Justice" proposes that the healing effects of "story telling" can engender a sort of "poetic justice" which may answer to the call for acknowledgment of the injustices suffered by victims and also deter repetitions of such crimes. Ernesto Garzon Valdes, in his "Dictatorship and Punishment: A Reply to Scanlon and Teitel," rejects both Scanlon's reluctance to violate retroactivity and doubts that Teitel's truth telling and limited sanctions are sufficient deterrents to future rights violations. He allows that, "the only excuse for [not applying punishment] could be that it would endanger a higher good -- as for example, the transition to democracy." The final contributor, John Shattuck, in "Human Rights and Democracy in Practice: The Challenge of Accountability", maintains that those responsible for state violence must be held accountable for it.

This brief review necessarily omits much of the rich detail of the "democratic deliberation" inspired here by Nino. I found the book useful in its sounding of the profound problems of instituting democracies in our complicated modern world and plan to use it this fall as a supplementary text in my own social philosophy course focused on contemporary democratic theory.

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REFERENCES:

Nino, Carlos Santiago. 1991. THE ETHICS OF HUMAN RIGHTS. Oxford: Clarendon Press.

______. 1996a. THE CONSTITUTION OF DELIBERATIVE DEMOCRACY. New Haven: Yale University Press.

______. 1996b. RADICAL EVIL ON TRIAL. New Haven: Yale University Press.


Copyright 2000 by the author, Edward A. Kent