DEMOCRACY, LAW AND GOVERNANCE

Vol. 21 No. 9 (September, 2011) pp.490-494

DEMOCRACY, LAW AND GOVERNANCE, by Jacque Lenoble and Marc Maesschalck. London, UK and Burlington, VT: Ashgate Publishing Company, 2010. 276pp. Hardback. $124.95/£65.00. ISBN: 9781409403951. E-book. ISBN: 9781409403968.

Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap [at] lagrange.edu.

Clearly she was encouraged by the options Charlotte had described; they were structures after all. Engineering of an imaginary sort, which nevertheless resembled real engineering. So Nadia was tapping away at her screen, sketching out designs as if working on a building, a small smile tugging the corners of her mouth.

“You’re happy,” Art said.

She didn’t hear him. But that night in their radio talk with the travelers, she said to Sax, “It was so nice to find that political science had abstracted something useful in all these years.”

Eight minutes later his reply came in “I’ve never understood why they call it that.”

(Robinson 1997)

When Nadia Cherneschevsky was putting together the Martian constitution she might have found this book useful. Jacque Lenoble and Marc Maesschalck are trying to do exactly what she was talking about: provide a set of engineering principles that can be used to build new structures of governance in a rapidly changing environment. Their solution – what they call a “genetic approach to governance” – is sufficiently interesting to warrant the careful reading their work requires. I remain unconvinced by some of their arguments for reasons I will give in a later section of this review. But first, I need to give those arguments the close review they deserve.

Let us join Lenoble and Maesschalck in considering the problem of collective public action in democracies. The authors identify the problem here as the need to accommodate the shift to “governance” – the increased use of private-public interactions to coordinate public policy favored by neo-liberal regimes. Their main concern is to formulate the imaginary engineering Nadia favors to accomplish this goal while at the same time preserving democratic processes. But, according to Lenoble and Maesschalck, this is not as easy to do as might be thought. They assert that there are two main obstacles to introducing democratic processes into the evolving legal situation. I will follow them by presenting these in order.

The first obstacle the authors describe is a well-taken one, given their emphasis: the concentration by legal theorists on public authorities as sources of workable law. As Lenoble and Maesschalck correctly point out, until recently most legal theories have looked at laws as commands emanating from public authorities. Consequently, the legitimacy of law must be a matter of the capability of public authorities to assert the moral force of their commands. However, as [*491] the authors point out, this course of justification has two problems. First, it assumes what it is trying to prove; law has legitimate authority because authorities can claim it, usually through some reference to the processes used to write the laws in the first place. As Lenoble and Maesschalck say, this does little to advance our inquiry. What such theories (they cite Kelsen and Austin in particular on this) have not done is tell us why the population would recognize the legitimacy of laws they do not approve of simply because they were passed in a legal fashion and the authorities move to enforce them. Second, such theories are dependent on an assertion of an internal mental state among the population. People accept law as legitimate because they have an inherent propensity to do so. No matter how this propensity is formed, it must still be inferred from individual behavior.

Getting around these obstacles, however, is not so difficult. Lenoble and Maesschalck point out that laws can only be established effectively by taking into consideration the actual behaviors of those to whom they are applied. Here they adhere to what they refer to as “the pragmatic turn” in legal theory; i.e. to the idea that law is in fact formed by processes involving interaction between authorities and citizens. Their work includes an extensive critique of the ideas of pragmatic legal theorists, concentrating closely on work by Jules Coleman. The basic critique here, however, is a relatively familiar one: law, to work effectively, must be formed and reformed in interaction with those persons who are subject to it. Hence, the concentration on public authority that is criticized above can be partially redeemed by a recognition that legal principles are contingent on the practical acceptance of the persons to whom they are addressed. This does not mean, as the authors are quick to point out, that law has to be applied to take the preferences of citizens into consideration; indeed, they hold that regulation in modern societies, especially autocratic ones, specifically fails to do this. But, that does not mean that the method of analysis is a failure. Even in authoritarian tyrannies, the passive resistance of the population functions as a test for the actual performance of the law as a regulatory mechanism. Dictators end by being pragmatists. In democratic societies the process is usually more explicit, but, as Lenoble and Maesschalck say, there is still a continuing failure to consider how best to incorporate the preferences of all “stakeholders” into the law.

This failure is most apparent in the difficult transition to the use of governance, and it has a specific cause that the authors identify as the second obstacle to democracy: the persistence of institutions and theories that do not offer clear paths for maximizing cooperation in policymaking. Here Lenoble and Maesschalck identify a true problem for all epigones of governance. Cooperation of both public and private organizations is difficult to obtain even in the best of circumstances, let alone in areas where new public policy is established. They call for the preferences of all stakeholders to be considered democratically. But what if prior commitments and ideological stances stand in the way; i.e. what if the parties involved simply stick to their lasts and refuse to face the requirements of making policy through governance? [*492 How can such intransigence be addressed democratically? Their answer to this question lies in the second part of this book.

Lenoble and Maesschalck postulate that the only way to meet the challenges of their two obstacles is through the “learning process” incorporated in pragmatic policy making. The second part of their work involves a close reading of three different strains of theory in the modern social sciences that have cropped up in examinations of governance: “neo-institutional” economic theory, and what they call “experimentalist” and “reflexive” pragmatism. The authors have some good points to make about each perspective and do a decent job of critiquing their positions. I think it is legitimate, for instance, to criticize the institutional school of economics for using the “natural selection” imposed by market mechanisms as a tool for assuming away coordination problems. When trying to establish governance mechanisms, the authors are correct in pointing out that depending on the market both to effect personal and organizational change and to maintain democratic processes is a bit too much to ask. Similarly, their critiques of experimentalist and reflexive pragmatism as neglecting the need to address directly the superannuated attitudes and commitments that can undermine the learning process in governance situations are also pertinent. Lenoble and Maesschalck’s solution is a new kind of pragmatism, what they call a “genetic approach.” The proposal is to get around the attitudes inhibiting governance by reorienting the stakeholders through “terceization.” As they describe it, this is a process of change in personal and organizational identity achieved by a reorientation to an external party that can refocus the parties’ relations to themselves. (Their example is the shifting of the goals of labor unions from conflicts with management to calls for better work conditions to improve service to consumers.) By such a change, the problems caused by prior commitments in governance policy making can be overcome and the preferences of all stakeholders can be negotiated democratically.

“We showed them what to do! What the Hell went wrong?”

Mies Van der Roe to Anton Drexler.

“It is a sin to believe evil of others, but it is seldom a mistake.”

H. L. Mencken

What are we to make of all this? My first reaction is summed up in the quotes above. It was remarkable to me that Lenoble and Maesschalck could have read so much social science theory on governance and missed the salient point in critiques of the idea: that it ignores the influence of power differences between stakeholders. I do not mean to say that they have ignored differences of power between stakeholders in policymaking situations. It is more that they seem to have set aside the effects of those differences. There are two such effects that are of particular influence here. First, the differences of power between actors can shape the kinds of preferences that stakeholders feel they can put forward. This is the old idea of “non-decisions;” i.e. preferences that are not voiced because there is no real prospect of them prevailing in any negotiation. How will a “learning process” even one [*493] predicated on a “genetic approach” do much to see that those preferences come to the fore? I suppose that Lenoble and Maesschalck might reply that the very process of re-orientation would change the perceptions of the stakeholders in such ways that parties would see opportunities to bring their suppressed preferences to the fore. But, that avoids the criticism: if the actual structural inequalities that led to the original suppression have not changed, why should the re-orientation they support change the incentives for less powerful parties to continue to avoid pressing for preferences that have little chance of success?

The second effect is even more subtle and difficult to overcome. This arises when power differences affect the very preferences of the less powerful. This is Lukes’ (2004) third dimension of power: the use of power to shape the ideological and cultural dimension of societies so as to preclude challenges to prevailing modes of domination. From this perspective, we could find the “genetic approach” working democratically, but producing the perpetuation of existing limitations on the expression of preferences. If the stakeholders have already subsumed attitudes that preclude challenges to prevailing inequalities, their re-orientation of their organizational objectives will simply reinforce existing inequalities since they will never suggest new courses that challenge them. I was not surprised, for instance, that Lenoble and Maesschalck’s example of how the “genetic approach” worked involved a re-casting of union objectives in the Belgian power industry to concentrate less on issues involving management-labor conflicts and more on service to power customers. This tracks the constant pressure by a more powerful capital, in this case backed by the state, to curb the influence of organized labor in neo-liberal economies. That the unions felt their options limited by the economic power of their opponents, bereft of support from the state, and limited by their acceptance of existing economic institutions is obvious, though unstated, in the authors’ account. This is governance alright and in the very form that makes so many suspect it of being a device to tone down opposition along class lines instead of a new method of policymaking. One can call this many things, including an expression of democracy – after all, the unions did acquiesce. However, bootstrapping it into an equal and democratic negotiation characterized by re-orientation by all parties to the preferences of other stakeholders is, in my opinion, a bridge too far.

But, perhaps I should come to a bottom line. I think this book will be a source of continuing scholarly debate for some time. The criticisms made by Lenoble and Maesschalck of other approaches are both well founded and ably argued. Their overview of governance theory is also useful, if sometimes more opaque then necessary. I think the book will attract scholarly interest – Nadia’s “Imaginary engineering” is important, and the whole project of grounding ideas about governance in adequate theory is advanced by their work. However, I doubt that this text will find much use in the classroom. This does not have much to do with the arguments, but with the style of the book. This review is unconscionably late due in large part to the almost impenetrably dense nature of its prose. I do not blame Lenoble and [*494] Maesschalck for this; they are continental scholars and write within their tradition. Of all the books I have reviewed, however, this one stood most in need of an editor more attuned to the stylistic preferences of Anglo-American readers. This is too bad. Lenoble and Maesschalck are imminent scholars who have thought long and hard about the issues they are addressing. Despite my doubts concerning some of their conclusions, I think their work deserves more use than it will probably get in the graduate courses concerned with legal theory and governance to which it is partially aimed. Let us hope that a revised edition will make their work more accessible to both scholars and students alike.

REFERENCES:

Lukes, Steven. 2004. POWER: A RADICAL VIEW. New York: Palgrave Macmillan.

Robinson, Kim Stanley. 1997. BLUE MARS. New York: Bantam.

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