Text of my presentation to the colloquium "Testing Expertise" held at the VUB on the 21st of October, 2004. This presentation deals with the necessity to shift from considering political representation as the principle of legitimacy of a transfer of sovereignty, to take it as a mechanism of political construction of ad hoc publics.
Breaking the Mirror: Some Challenges to Representation through PTA Practices and Institutions
I
The 26 May 2003, the Flemish institute for technology assessment (ViWTA) held the final session of its first "citizen forum". This forum was dedicated to the hot question of genetically modified organisms (GMO), and gathered 16 persons, all selected randomly through the lists of the National Institute for Statistics of the Belgian State. These people met three times, a full week-end each time, in order to discuss the issue among them, and to question the positions of the experts they were free to invite. A staff of two coaches was at their disposal, some sort of moderators who had been designated by the organising institute (the ViWTA), so that the possibly arising knots in the discussion could be, if necessary, cut.
All these elementary features are now common features among participatory technology assessment (PTA) practices and institutions. Since the first experiments of the Danish board of technology in the late eighties, the development of such PTA practices and institutions has led to some sort of common rationalisation of the way these practices and institutions work. Nevertheless, history has shown that it is an equally common feature of PTA practices and institutions to remain uncommon: each and every one of the already held experiences in the PTA field have presented a singular interpretation - and then a singular experimentation - of what is a PTA experience, of how it works, and of which purpose it is designated for.
The Flemish decree of the 17 July 2000 (M.B., 1st September 2000) creating the ViWTA didn’t forget this requirement of experimentation and singularity. The definition of the missions of the ViWTA as well as of its institutional place remains open enough to allow an almost complete freedom in the organisation of PTA experiences. This is why, compared to other experiences in the field of PTA, the "citizen forum" on GMO’s organised by the ViWTA was so flexible: no directive questionnaire, no last word to the organisers, minimal interventions allowed from the coaches (and only on material questions), etc. Such a flexibility allowed, if one believes the afterwards published materials, rich and unrestrained discussion on the topic at stake.
So, on the 26 May 2003, the participants to the forum gathered one last time in order to furnish the final paper containing the observations and recommendations they felt the need to formulate at destination of the Flemish Parliament. The resulting document was presented at a press conference, and then, thanks to the interest of the President of the Flemish Parliament, Mr. Norbert de Batselier, was formally recorded as a parliamentary piece, to which reference was therefore compulsory in any parliamentary decision concerning the topic at stake - i.e. GMO’s.
II
Presented like that, the history of this "citizen forum" seems to have been particularly simple and peaceful - and, to some extent, everything had been done to be so. But it was not the case. On the contrary, both the ViWTA and its first experience of a "citizen forum" have been attacked by politicians as well as by experts on several grounds that I summarise as follows:
(a) How can such a "citizen forum" constitute any kind of expertise concerning GMO’s, since the advise given by the citizens involved in this "forum" is not written by experts, but by lay-people subject to their own fears, irrationality and lack of knowledge about all the aspects of GMO’s?
(b) How can the people included in a "citizen forum" be entitled to formulate an advise on behalf of the rest of the population and even be considered as the voice of this population, although they are not numerous enough to be statistically representative of the different categories of this population, and not purposively enough selected such as to represent the diverse interests in it?
(c) Why do we need a Flemish institute for technology assessment, even loosely attached to the Flemish Parliament, after all, since it was already required to recourse to expertise in order to fulfil the obligation of motivation of any Parliament’s decree?
These three questions belong to the realm of what I called the "common features" of PTA practices and institutions. In Flanders as well as in the rest of the world, these are the main issues at stake with PTA, and the main arguments that are used to criticise them as well as to reinforce the traditional structure of the decision-making process in democratic constitutional State, with its cortege of fixed instances, determined agendas, closed roles and expected results. To put it briefly, what is at stake with these arguments against PTA practices and institutions is a democratic critique of these practices and institutions considered as undemocratic, or even dangerous to the current state of democracy.
So, the problem outlined by the three questions I mentioned is a problem of democratic legitimacy. If I then translate these questions into the language of legitimacy, it goes as follows:
(a) PTA experiences are not legitimate as such, for they do not give voice to those who are legally authorised to give advise in matters covered by these experiences.
(b) The citizens involved into PTA experiences are not legitimate to give their opinion on behalf of others, for they are not legally representative of the rest of the population, nor of specific interests recognised within this population.
(c) The PTA practices and institutions are not legitimate as such, for they do not belong to (or, at the best, are redundant into) the legal structure of the decision-making process.
What becomes obvious through these translations is that the problems at stake with PTA practices and institutions are not simply problems of political choice. The critique of PTA is not a mere ideological question - let us say a somehow right/left conflict between institutionally conservatives and progressives. It is not a question of choice between a State-oriented vision of democracy, and a conflicting vision that would share a pluralist conception of the State and then of democracy, a vision in which democracy would be the deconstructive agent of the State. On the contrary, if the question is indeed a question with regards to the State and the theory of the State, this question is a legal question. It is a question addressed to the legal structure of the State and to the principles that govern it.
Things are getting simpler. Starting from three questions, we can now unite the critique of PTA practices and institutions into a single one argument, that is: PTA practices and institutions are infringing the principle of representation that legally governs the structure of the decision-making process understood as the exercise of the sovereign power into a democratic constitutional State. And we are then confronting a dilemma: if it no so, PTA practices and institutions can simply be considered as one kind of expertise among others, and then lose all specificity; or if it is so, then it is necessary to see how it is possible to legally "save" PTA practices and institutions (if we wish so). Yes: how.
III
To understand this last argument, it is necessary to go back to the legal definition of representation. In Belgium, the article 42 of the Constitution states that "The members of the two Rooms (i.e. the Federal Parliament and Senate) represent the Nation, and not only those who elected them." This article is generally interpreted as the legal translation of the social contract, i.e. the transmission of the sovereign power from the People as a whole to the political Sovereign himself.
Interpreted that way, the principle of representation becomes the legal expression of legitimacy of the transfer of power from the multitude considered as a collective abstraction (the People or the Nation) to a few considered as a collective abstraction as well (the Government, which is, in a democratic constitutional State, the Parliament - in Belgium, the "two Rooms"). It is a mandate given to an abstract collective to an other abstract collective to speak on behalf of him. It does not concern the political reality of a given society or a given State: it is the legal explanation of this political reality, not its description.
But as a legal explanation, the principle of representation is indeed not neutral. For Raymond Carr? de Malberg, the leading positivist constitutional lawyer of the first half of the 20th century, the principle of representation, as a principle of legitimacy, always is to construct its own subject. That means that, for him, the People does not exist outside the principle of representation: representation creates the People by the operation of transfer of sovereignty. The fact that sovereignty, in constitutional democratic States, is exercised by the Government as a sovereign power leads necessarily to the fact that there is an entity that could have delegated this power, an entity that could have mandated the Government to exercise sovereignty - an entity that should have been a legal subject in order to do so. And this entity is the People. The People only exists through the transfer of its own fictitiously original sovereignty.
That is why the principle of representation has been so widely criticised. From Rousseau to Negri and from Marx to Badiou, representation has always been designated as the main instrument of alienation of people - of alienation of its own identity as people, and not as the People with a major "P". With the principle of representation, for its critics and despite heavy differences among them, it was a double stealth of sovereignty that was perpetrated: from the sovereignty of the People to the sovereignty of the Government; and from the sovereignty of the constitutive multitude to the sovereignty of the constituted People.
IV
If we now return to the "citizen forum" on GMO’s held by the ViWTA, we can understand why it has been so obvious to many that such an experience was infringing the principle of representation. Because indeed, where is the People, in an experience like that? Where is the Government? What kind of a decision can lead to the acceptance of the mere existence of such an experience, and what kind of a decision, horresco referens, can lead to the official recognition of the advise given as a result of such an experience? Yes, PTA practices and institutions countervene to the principle of representation: they have no democratic legitimacy from the point of view of the social contract.
But do not PTA practices and institutions tell us something else about representation? Is representation only that: the legal joint between a political reality and a democratic p?tition de principe? Can representation only be described in the terms of a legal principle of legitimacy within an abstract division of powers? Is it only that? A mere piece of language forged into the language of law? Are not critics of representation right in pretending that representation, understood in that way, is indeed a double usurpation of sovereignty? Do not critics of the principle of representation have the reality for them - the reality of the concrete multitude, of the living people, of life?
No. Of course not. I even wouldn’t have dared to retain you here if it was only to tell you that. In the debate on representation, nobody is right, and nobody is wrong - from that point of view at least. It simply is that the questions are not well asked. For, when representation is at stake, it is not useful to ask whether this or that institution falls within the scope of the principle. It is not useful to ask the question of legitimacy if the mere foundation of this question can be doubted just the same. If representation understood as a principle of legitimacy does not make the difference, even for the lawyers (because to say that an institution is not legitimate, is not representative, has no legal consequence as such), then it means that another question must be asked. But it must be asked only if it is ensured that representation counts after all - that representation means something for somebody, that it representation is important to the eyes of someone.
I think that it is possible to formulate such a question as well as answering to the condition I just mentioned. And I think that PTA practices and institutions help us to formulate such a question. Why? Simply because they are experiences around this question and experiences around this condition as well. With PTA practices and institutions, what we are confronted to is an experience in order to know what can be a good question to ask to representation, as well as an experience to determine whether or not representation is of any interest at all.
And the consequence I draw from this state of affairs is the following one: the results of this double experience lead to the displacement of representation from a principle of legitimacy to a mechanism of political construction. Why? Because PTA practices and institutions do not try to fit retrospectively into a political picture that precedes them. On the contrary, they try to develop further into the hors-champ of this political picture. What PTA practices and institutions do is to expand the framework of the political picture to which representation is the legal mechanism, by recognising that representation is that legal mechanism of construction and expansion of the political picture.
But how is this possible? The answer is pretty simple: it is because PTA practices and institutions are called upon to answer to questions to which answers cannot be find into the preceding political picture. And these questions do not have answers because there is nobody to answer to them in a representative way. There is nobody to talk on behalf of these questions, because nobody can. Nobody can come an claim a closed knowledge about them: this knowledge and the body of those who will speak on behalf of these questions is precisely what is constructed into PTA practices and institutions.
So, what is the question that PTA ask to representation. It is the following one: what does representation do? And the answer is: representation is a way to let a public constitute himself from a problem that does not have any answer yet. Which means that, after all, representation counts for somebody. It even only does that. Representation is what counts to constitute those for who it counts. It is a huge political lesson enough to understand the price of ?-peu-pr?s that we have to pay for it.