Dissent in a Time of War
Bat-Ami Bar On
Liberal-democracies pride themselves for not only tolerating but actually protecting political dissent. In times of war, though, their governments tend to limit it. As Geoffrey Stone meticulously documents, using as examples legislation, governmental acts, and supreme court decisions from just after the American Revolution when there were expectations of a war with France, the American Civil War, World War I, World War II, the Cold War, and the Vietnam War, even the Untied States, whose constitution guarantees freedom of speech, press, and assembly, as well as other civil and political liberties, “has a long and unfortunate history of overreacting to the dangers of wartime” and limiting political dissent in times of war.
The temptation to limit political dissent in a time of war is great. War is costly and requires a mobilization of resources and people. The success of the mobilization, especially in the case of a liberal-democracy, is dependent on people’s willingness to accept the burdens of the wars that their government commits them to. Political dissent from a government’s official position about the need for a war, its conduct, and the like is a form of political intervention intended to deligitimate the war or some aspect of it. Successful political dissent, because it is constituted in part by its deligitmizing effects, can undermine the moblization of resources and people needed for a war. Why, given that, should political dissent in a time of war not be limited by a liberal-democratic government?
I want to begin my answer with the assertion that in a liberal-democratic polity it is the people qua political actors who animate the polity’s political public sphere. I will not be explicating what I take to be a reasonable liberal-democratic structuring of a polity other than note the importance of some form of basic law, such as a constitution, as part of this structuring. I am mentioning this in order to make sure that law is understood at the outset as protecting the political public sphere of the liberal-democratic polity. It does not do so alone. Even in the liberal-democratic polity, law is buttressed by violence, though in a very deep and profound way, violence is placed by law at the outskirts of the liberal-democratic polity. This can happen because more than violence it is people through their animation of the political public sphere who sustain the law and do so not necessarily by conforming to the letter of the law but rather by insisting on its spirit and significance for a liberal-democratic polity and its political public sphere.
I use the term ‘polity’ rather than the term ‘state’ since it is looser and more encompassing and does not carry the immediate association with regulation and administration that the term ‘state’ does. I use the term ‘people’ rather than the term ‘citizens’ so as to emphasize membership and the inhabiting of a shared political space that is not necessarily territorial. Since the term “people” can be used in a manner that connotes unity, I want to emphasize at the outset the difference or plurality of people qua socially embedded individuals possessing of individuality and even singularity, as well as people’s equality qua members of the liberal-democratic polity. Put succinctly, those peopling a liberal-democratic polity are not a nation. Finally, I use the term ‘political public sphere’ to refer to the totality of the public space for and of political speech and action. The political public sphere is but a part of the public sphere of a complex large contemporary liberal-democratic polity. Some of the political public sphere comes into being due to the media and the publicity it gives to political speech and action. Some of it finds its articulation in formal political institutions ion such as representative parliaments where public political debates take place and legislation is enacted. Some of it is now virtual. Some of it is formed by people coming together in a great variety of more or less stable voluntary associations in order to engage in political speech and action, by people using the space provided by what might be non-political voluntary associations for political speech and action and politicizing it while doing so, and by people using a more abstract public space, such as the space provided by a concert, a street corner, or a blog to speak and act politically.
By asserting that it is people who animate the liberal-democratic political public sphere, I am basically claiming that such vitality as can be found in the liberal-democratic political public sphere is there due to people’s political speech and action whether as participants in voluntary political associations or by speaking and acting politically in other spaces even if only episodically. The political public sphere, then, can be and is often quite anemic even when the media is full of expert political chatter and representative parliaments are functioning quite well as political deliberative and legislative bodies. Nonetheless, normatively, in the case of liberal-democratic polities, it is still important to affirm the energizing of the political public sphere by people since even if people are generally not actively political, in liberal-democratic polities they are in principle sovereign. The more politically engaged people are, the more they practice their sovereignty. However, they remain sovereign even if, for reasons of their own, they limit their participation and do not enliven the political public sphere in interesting or exciting ways.
In liberal-democratic polities, I am suggesting, people’s sovereignty is both a normative principle and embodied in people’s practices of political participation or more generally in people’s public political speech and action. People’s sovereignty, then, is normatively continuous in time and performatively irreducible to this or that single political practice. Scheduled periodic voting, which is one of the people’s political practices, or stated in another way is one of the people’s practices of sovereignty, therefore, does not exhaust people’s sovereignty. And, because people’s sovereignty is both normatively continuous and is multiply practiced politically, though through scheduled periodic voting people authorize their elected political office holders, be these representatives to parliamentary bodies or heads of governments and the like, to speak and act in their name, they do not authorize them to simply say whatever and act in any way that they deem fit in the people’s name for the duration of their time in office.
Understanding people’s sovereignty as normatively continuous and multiply practiced politically goes hand in hand with an understanding of the authorization of office holders as necessarily incomplete. Incomplete authorization is as critical principle of the liberal-democratic polity as the principle of popular sovereignty. The separation of powers that has been institutionalized by liberal-democracies splits authority several ways via its system of checks and balances. Judicial reviews, budgetary reviews, reviews by ombudspersons, and motions of non-confidence that can be used by oppositions parties against a governing party or to censor government officials, all disaggregate authority in many ways making every authorization incomplete. What I am maintaining is that people qua members and inhabitants of the liberal-democratic polity, insofar as they are sovereign in principle and embody their sovereignty in multiple political practices through which they animate the political public sphere, constitute and normatively ought to be taken as constituting one of the stable nodal points in the complex network of incomplete authorization of a liberal-democratic polity.
The inclusion of the people in the complex network of incomplete authorization can be formalized in a variety of ways such as the establishment of various connections between people’s voluntary associations and office holders. Connections of this sort create bridges between people and office holders and are extremely important for a robust conception of liberal-democracy in which peoples’ participation is taken seriously at the institutional level. Here however, I am more interested in the space in between people and office holders, a space that is just part and parcel of any complex network of incomplete authorizations to which both the people and office holders belong and therefore part and parcel of the liberal-democratic polity. In a liberal-democratic polity, a space also exists between office holders as well as people since, as I pointed out before, plurality and difference are ubiquitous in a liberal-democracy. Political dissent by some people from any policy that is decided and enacted by a liberal-democratic polity’s office holders calls attention to these spaces because dissenting political speech and action tend to disturb and trouble, though they are not different in kind from assenting political speech and action when it comes to the animation of the political public sphere and thus, practices of sovereignty and of incomplete authorization.
Political dissent and political assent, of course, differ from each other substantively. But, they are, I believe, similar to each other when considered more abstractly as political speech and action. Allowing the substantive differences to count for the purpose of distinguish between them at this level of abstraction seems to me to gesture at an anxiety about contestation, agonism, and conflict and an understanding of the liberal-democratic polity as requiring a unity that the liberal-democratic polity cannot achieve and still remain liberal and democratic. Such concurrence as can and should be achieved by a liberal-democratic polity can come only from people, who are in a sense thrown together, commitment to cooperate with each other enough in order to secure the conditions necessary for their continued cooperation as socially embedded individuals equal to each other and self-governing, so equally sovereign, as well as securing for all the pursuit of their own sense of flourishing within generally accepted constraints. People’s cooperation with each other require a certain sense of mutual respect, a basic willingness to listen openly and thoughtfully that accompanies such respect, and a willingness to weigh self and other interests together. It may lead to a kind of learnt civic friendship or solidarity and these and a learnt care for the public good may become expected from and improve cooperation. But even the best kind of cooperation does not erase difference and need not lead to a compacted congealed union of the people.
Dissenting and assenting political speech and action in a time of war are like other dissenting and assenting political speech and action. People who speak, demonstrate, or even engage in acts of civil disobedience against some war or some aspect of a war with which they disagree basically offer a negative review of a policy or some aspect of its enactment and a negative judgment that finds the policy or aspect of its enactment lacking and problematic. In so doing, they merely practice their sovereignty asserting their place in the complex network of incomplete authorizations and in this way they animate the political public sphere. When people speak and act in support of a war or aspects of its enactment, their review and judgment of the war are positive and they too are merely practicing their sovereignty and asserting their place in the complex network of incomplete authorizations and in this way animate the political public sphere.
The above implies that I do not think that the fact of war, be it a possibly immanent or an ongoing war, should make a difference when it comes to political dissent. Decisions regarding engagement in war, war ends and the macro level conduct of war are by and large political decisions. There are two reasons why to think about them as such. First, they are decisions about the polity as a whole, its posture in various relations, the use of its resources and the like, and they affect all the people who inhabit the polity and are its members and the many people who are not but with whom they have direct relations and many others. Second, while the decisions are best made with as accurate information as possible about the predictable dangers that a polity faces, outcome trajectories given alternative actions by the polity and the like, there is no algorithm that can be used to generate a decision based on expert information and analyses alone since the decisions also involve contestable interpretations of international law and its constraints on the actions of any polity, as well as of the loosely connected ideas regarding just war, the very concept of which is also contestable.
With so much at stake and so much that can be disputed, though for expediency sake decision making in a liberal-democratic polity is delegated and majorities of delegates determine a course of action for the polity in the case of war as in other matters of policy, the processes of review and reconsideration of the course of action that is so decided and then undertaken is not stopped by the decision and its implementation. In a liberal-democratic polity, with its popular sovereignty and complex incomplete authorizations no policy decision is ever final. Rather decisions are contingent and changeable since the reaching of a decision and even its implementation do not imply the closure of appraisal and judgment and cannot eliminate them or even intervene in them without seriously endangering the core principles and values of the liberal-democratic polity itself.
It is dangerous for any liberal-democratic polity to avow any kind of closure and finality of decisions regarding war no less and no more than any other policy. To set limits on political dissent in a time of war, to actively intervene with it, to create a climate that will chill it, are all forms of imposing finality and closure were they should not be imposed. Attempt to justify any of these as temporary and necessary due to the exigencies of war seem to misunderstand the built in messiness of the liberal-democratic political form of life and construe it as an intolerable risk to itself. The messiness may be annoying but it cannot be gotten rid of and it cannot even properly be construed as risky to a war effort, unless someone is assumed to have a political knowledge of what is good or bad for the liberal-democratic polity that is not generated through the messy liberal-democratic political processes and can trump the sovereignty of the people.
But even if political dissent and political assent are alike in all respects when considered as political speech and action and in a liberal-democratic polity should be expected and encouraged in times of peace and war alike, what about the possible effects of political dissent in a time of war on people whose employment is in occupations and workplaces in and outside of the military that require direct enough involvement in war, for example soldiers, workers in factories with military contracts, or intelligence analysts? Only insofar as the question as stated merely badly formulates an insight into the fact that the choices of such people in a time of war are more complex than those of people in different occupations and places of employment, is it a good question. People in and involved with the military face a dilemma when it comes to war if and when they themselves hold politically dissenting views with regard to a specific war that they are expected to or are in which they already have a role. The felt force of the dilemma can vary depending on the level and strength of existing political dissent. But while political dissenters who do not face the same dilemma may be asked in the name of civic friendship to understand that others do and to modulate their political speech and action accordingly, but they do not have an obligation to be responsive to the request.
Civic friendship, as I pointed out before, is learnt and can arise out of extended cooperation. I believe that it is extremely important, especially in times, like times of war, which tend to be more discordant than others. At the same time, though, claims in the name of civic friendship can be used to dampen political dissent, so I cannot place them above political dissent given my understanding of the liberal-democratic political life.
 Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to
the War on Terrorism, (
. See for an example at calculations for the second US-Iraq war at http://nationalpriorities.org/
See Dan Reiter and Allan C. Stam’s Democracies at War, (
. This is a fairly standard popular argument for limiting political dissent in a time of war. David Horowitz provides a current version of it. See http://www.frontpagemag.com/Articles/ReadArticle.
asp?ID=19188. (accessed December 2005).
See Brian Z. Tamanaha’s
recent work on the “rule of law” in On
the Rule of Law: History, Politics, Theory, (NY:
. I take this to be one of the implications of “the rule of law.” This, I believe, extends beyond constraints on officials who due to their positions have access to the means of coercive violence and is constitutive of the basic civility that is expected in a liberal-democratic polity.
. This is a point that Hannah Arendt makes in her contributions to a discussion titled “The First Amendment and the Politics of Confrontation,” in Dissent, Power, and Confrontation, Alexander Klein, ed. (NY: McGraw-Hill, 1971), pp. 1-32.
. The term ‘polity’ appears in Aristotle’s Politics where he refers to it as a “constitutional government.” (IV.9) Later on (IV.11) he discusses it as a mixed form of government that is a mean between “oligarchy” and “democracy,” and specifically a form of “middle class” rule. I do not mean for these Aristotelian connotations to carry through.
One could probably use the Greek term demos
here. Alternatively one can reconceive citizenship in
terms of identification with the polity as Chantal Mouffe
suggests in “Democratic Citizenship and the Political Community,” in Dimensions of Radical Democracy: Pluralism,
Citizenship, Community, (London: Verso, 1992), pp. 225-239. Margaret Canovan offers an important analysis of ‘people’ in her The People, (
. For an elaboration on these ideas see, Hannah Arendt, The Human Condition, (Chicago: University of Chicago, 1958) as well as Michael Walzer description of the multi-grouped polity in “The Obligation to Disobey,” Ethics 77 (1967): 163-175 and his discussion of membership in Spheres of Justic: A Defense of Pluralism and Equality, (New York: Basic Books, 1983).
. My understanding of the term “political public sphere” derives from Hannah Arendt’s discussion of the public realm and action in The Human Condition (Chicago: University of Chicago, 1958). I am also influenced by Jürgen Habermas’s work in The Structural Transformation of the Public Sphere: An Inquiry Into a Category of Bourgeois Society, (German, 1962) translated by Thomas Burger and Frederick Lawrence, (Cambridge, MA: MIT, 1989) and in Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, (German, 1992) translated by William Rehg, (Cambridge, MA: MIT, 1996).
. There is a tendency in the literature to draw a distinction between formalized political institutions and civil society. See the important work on the subject by Jean L. Cohen and Andrew Arato in Civil Society and Political Theory, (Cambridge, MA: MIT, 1992). While I think that the distinction is important for some theoretical tasks, I fear that when used in the context of theorizing the political public sphere, it tends to depoliticize civil society.
. For a Habermasian version see for example, James Bohman’s “Expanding Dialogue, Extending Deliberation: The Public Sphere, the Internet and Transnational Democracy,” in After Habermas: Perspectives on the Public Sphere, Nick Crossby and John Michael Roberts, ed. (London: Blackwell 2004), pp. 131-155 or Richard Kahn and Douglas Kellner’s “Oppositional Politics and the Internet: A Critical/Reconstructive Approach,” at http://www.gseis.ucla.edu/faculty/kellner/kellnerhtml.html. (accessed December 2005)
. One can talk about multiple political public spheres as a result. See Nancy Fraser’s“Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy,” (1991) in Justice Interruptus: Critical Reflections on the “Postsocialist” Condition, (New York: Routledge. 1997), pp. 69-98. I prefer to think of the political public sphere as one without loosing sight of its internal multiplicity.
The anemia of the political public sphere has been commented on in the
. The principle of popular sovereignty need not
presuppose much but for people constituting themselves as members of a polity
and arrogating sovereignty to themselves. The principle is of course
problematic and paradoxical but is also at the core of liberal-democratic legitimation. Social contract theory gives the classical
articulation of this idea. And see, Larry D. Kramer, People Themselves: Popular
Constitutionalism and Judicial Review, (
There are, of course different attempts to capture this idea. The work of Paul Hirst with its emphasis on participatory practices is
interesting in this regard. See his Associative
Democracy, (Cambridge: Polity, 1993). The work of Iris Marion Young with
its emphasis on communication rather than deliberation is also instructive. See
her Inclusion and Democracy, (
. A different argument for this conclusion can be made from the impossibility of representation due to the multiplicity and fluidity of identities and interests of the members of the democratic-polity and the determination of representation via elections. Proportional representation, especially in a multi=party system ameliorates some of the problems posed by difference but does not solve them. On the complexity of representation see Hanna F. Pitkin’s On the Concept of Representation, (Berkeley: University of California, 1978).
. The more usual argument for incomplete authorization is liberal rather than democratic and based on fears of abuses of power when authority is concentrated. These fears trace their history to the beginnings of liberal arguments, which set themselves against unchecked monarchical rule and unitary religious rule. One can get a feel for this from John Locke’s Two Treatises of Government ((1698/90) edited by Peter Laslett (Cambridge, GB: Cambridge University, 1963) and A Letter Concerning Toleration
((Latin, 1685) translated by William Popple, 1689, edited by James Tully, (Indianapolis, IN: Hackett, 1983).
. Various conceptions of deliberative democracy
advocate some version of this since they take people’s participation as crucial
for the deliberative conception of democracy. Deliberative democracy can be
overly procedural and rationalist and as a result exclusive. See John S. Dryzek’s Deliberative
Democracy and Beyond: Liberals, Critics, Contestations, (
. For suggestions about this see Joshua Coehn’s "Democracy and Associations" (with Joel Rogers), Social Philosophy and Policy, 10, 2 (Summer 1993): 282-312 and Joshua Cohen and Charles Sabel’s “Directly-Deliberative Polyarchy,” European Law Journal 3 (1997): 313-342.
Carl Schmitt is one of the astute observers of this problem. See his The Concept of the Political ((German,
1932), translated by George Schwab (New Brunnswick,
NJ: Rutger University, 1976). See also, Chantal Mouffe’s The
Democratic Paradox, (
. John Rawls tries to formalize this in A Theory of Justice, (Cambridge, MA: Harvard University, 1971) and in the theories revisions.
. Feminist have been among the strongest proponents of the importance of mutual respect and listening. Jürgan Habermas formalizes this most via his conception of discourse ethics. See the two volumes of The Theory of Communicative Action, (German, 1981) translated by Thomas McCarthy, (Boston: Beacon, 1985 and 1989 respectively).
Carl von Clausewitz stated
this in an ambiguous way in On War,
(German 1832) translated by Michael Howard and Peter Paret
(Princeton, NJ: Princeton University, 1984). In the introduction, Howard and Paret insist on this interpretation and are, I think quite
convincing. This is recognized by the
See Cass Sunstein arguments for political dissent
more generally and therefore a clarification of what is lost when political
dissent is stifled in Why Societies Need