Politics’ broken promise

In this regard, we can distinguish three basic forms of political institution. First of all, there may be rules that directly govern communal life: how to resolve a dispute, how to distribute a resource, or how to make a decision. There may also be rules that confer the power to command upon a person or a body. Finally, there are the rules of governance, the constitutional rules that establish who may make other rules, by what procedures and within what limits. These forms can combine to create legal systems that are either extremely simple or highly complex. What makes them institutions of that society is not only their effectiveness, but the existence of a shared commitment that underpins them. 

From this perspective, a constitution is not merely a text situated at the apex of the hierarchy of legal sources. It is the public articulation of the conditions under which a diverse group claims to govern itself as a ‘we’. It establishes who may govern, how power is conferred, what procedures transform a proposal into law, which rights cannot be sacrificed, and what mechanisms allow decisions to be challenged. Its legal force depends on the institutions that enforce it. Its deepest political force depends on citizens’ ability to recognise it as the grammar of their shared relationships. It is here that Gilbert makes a decisive point. Political obligation is not, originally, a debt owed to an impersonal entity called the State. Rather, it is a mutual obligation amongst the members of the political community. If we are jointly committed (joint committed) to upholding certain institutions, each of us owes the others our share of compliance. The institutions are the substance of that commitment, and our fellow citizens are the recipients of the obligation.

Politics therefore appears less hierarchical than the language of obedience would suggest. There is not simply an authority that commands and a citizen who obeys. There is a plurality of members who owe one another support for their shared institutions. Those who participate in a joint endeavour – writes Gilbert – can be regarded, in a particular sense, as owners of the conforming actions of others. ‘It can be said that those who jointly commit to doing something as a group take mutual responsibility for each other’s compliant actions’ (p. 241). It is this structure that explains political ‘bonds’. This commitment unites people and, at the same time, binds them to one another. This approach also clarifies why tax evasion, corruption, abuse of office or the systematic circumvention of rules are not merely violations against the state. They are breaches of a relationship between citizens. Those who evade do not simply deprive an abstract administration of resources; they shift the cost of the goods they continue to use onto others. Those who exercise a public office for private gain do not merely break a criminal law; they appropriate a power that exists because others have recognised its use for the common good. Gilbert’s terminology brings this fundamental horizontal dimension of political wrongdoing into sharp focus.

The strength of the theory, however, is also its most problematic aspect. How can there be a shared commitment amongst millions of people who do not know one another, have never communicated directly, and often disagree profoundly on the very nature of institutions? Gilbert argues that a plural subject can be vast, anonymous, inclusive and hierarchical. It is not necessary for every member to know all the others personally. It is sufficient that expressions of willingness relate to others in their capacity as members of a given population and become publicly recognisable. In a very large community, the boundaries of the plural subject may also remain somewhat blurred, so that it may be common knowledge that the majority has expressed a willingness to participate in the commitment, without it being possible to identify each individual precisely. But this response raises a political difficulty that cannot be resolved by means of a definition. Where and when do citizens express that willingness? Through voting? Through the oath of citizenship? Through the routine acceptance of procedures? Through taking cases to court, using public documents or referring to institutions as ‘ours’? And what significance should be attributed to the silence of those who have no realistic alternatives? Birth is not an act of allegiance. Nor is residence necessarily so. Emigrating can mean losing one’s language, family ties, work, history and social protection. The philosopher herself acknowledges that entering into a political relationship can take place under intense external pressure and that many migrants choose a new country because every alternative has become intolerable. Participation can therefore be intentional without being entirely voluntary. This point makes her theory more realistic, but also more unsettling. Gilbert, in fact, denies that coercion automatically nullifies a commitment. A person under threat may consciously decide to enter into an agreement. The fact that the decision was extorted does not mean that it did not take place. Similarly, the immoral content of a commitment does not prevent it from giving rise to obligations between the parties. Neither coercive circumstances nor unjust content, in and of themselves, eliminate the normativity of the bond. The consequence is decidedly uncomfortable because, in this way, even a despotic society can constitute a plural subject. Even cruel institutions can be sustained by a shared commitment.

Membership, therefore, does not sanctify the political order. It gives rise to reasons and obligations, but does not dictate that these must take precedence over every other reason. An obligation is sufficient to guide action when there are no stronger countervailing considerations, but it cannot be regarded as necessarily conclusive. I may be genuinely bound by a commitment and yet have a moral duty to breach it. This distinction is essential to understanding civil disobedience. Those who disobey an unjust law do not necessarily have to deny any political affiliation. They may recognise the obligation and argue – precisely because they take the communal nature of institutions seriously – that, in that particular case, higher principles require non-compliance. Protest is not always a departure from the ‘we’. It may be an attempt to remind the ‘we’ of the conditions that justify its existence.

Margaret Gilbert’s aim is not to offer a theory of justice comparable to those of Rawls or Roemer. She does not set out how to distribute income, opportunities, freedom or power. Her contribution is a step back from that and, in some respects, more fundamental. She seeks to explain how there can be a subject to which political commitments can be attributed and within which obligations of justice can become reciprocal. Justice, in fact, is not merely an external yardstick by which an observer evaluates institutions. In a constitutional democracy, it is also part of the promise through which society defines itself. When a constitution proclaims equality, safeguards freedom, limits power and recognises equal dignity, it does not merely describe what already exists. It articulates what the political subject is committed to becoming. It transforms certain principles into internal criteria of coherence, into reasons that citizens can invoke in relation to one another and, above all, to those who act on their behalf. This is why democratic injustice has the structure of betrayal. When a society excludes some from education, tolerates systematic discrimination, abandons entire territories or distributes the protection of the law arbitrarily, it does not merely violate an abstract philosophical principle. It acts contrary to the normative representation it offers of itself. It says ‘we are equal’ yet organises relationships in which some are systematically less equal than others. It says ‘these institutions are ours’, yet allows only some to define their objectives, interpret their rules and exercise their powers. Gilbert’s theory thus enables us to pose a further question regarding the issue of political obligation. We must not only ask ourselves why citizens should support institutions, but also when institutions cease to be recognisable as their own. A system of government, in fact, cannot indefinitely demand obedience by appealing to a ‘we’ imposed entirely from above. If some are subject to the laws without being able to participate in their formulation, if they contribute to communal life without being recognised as members, if they bear the costs of decisions without having a say in the procedures, the flaw concerns not merely the distribution of benefits. It concerns the very constitution of the political subject. The ‘we’ speaks, but not everyone can speak within the ‘we’. It is here that the constitutional promise takes on its most demanding meaning. It does not guarantee the absence of conflict, nor does it require unanimity. It promises something both more modest and more difficult: namely, that those who are asked to respect common decisions may also recognise themselves as their authors; that dissent is not automatically treated as treason; that those in power remain obliged to give reasons; and that belonging is not merely the political name for subjugation.

Margaret Gilbert’s conclusion is, therefore, ambivalent. Without shared commitments, there is no political society, but merely an administered population. Yet not every shared commitment is just, not every sense of belonging is free, just as not every ‘institution of ours’ deserves to be supported. Politics begins when we can say ‘we’. Justice begins when that choice ceases to be a mere rhetorical formula and becomes a real possibility for everyone to participate in defining the rules, to challenge them and to demand accountability should they be breached.