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Speaker: Noah Feldman, Associate Professor of Law, New York University School of Law
Summary by Simon Rippon, Edmund J. Safra Graduate Fellow in Ethics
Professor Feldman is a former advisor to the Coalition Provisional Authority in Iraq, and his lecture explored the connections between some classic problems for a liberal democracy and the concrete political realities of a postwar Iraq under US occupation. Bracketing the question of the legitimacy of the invasion itself, he argued that ethical thought should lead us to favor some specific kinds of policy in Iraq, and also that Iraq may offer us important lessons for how to better legitimize nation-building projects in the future.
Feldman raised two related paradoxes for liberal democracy that become apparent when a liberal democratic government seeks to export its own system and impose it on another nation. In the first place is the theoretical paradox: the idea that liberal democracy, which by definition requires freedom of choice and assumes that the basic choices about government will be made by the people governed, might be imposed on others. In the second place is the practical paradox. There is, on the one hand, a widespread belief, also widespread in Iraq, that if a government is to be just, fair and democratic, it must spring from the basic principles of constitutional and quasi-liberal democracy – in other words, a people must choose its form of government for itself. On the other hand there is the self-understanding of the US coalition as engaged in Iraq in a nation-building project that seeks to establish a democracy, including some details about what constitutes a democracy, without reference to the views of Iraqis themselves in doing this. This paradox, which Feldman traced to an ambiguity in the word "democracy," has led to tension between the project of exporting democracy and that of implementing it.
The ethical questions raised in view of these paradoxes indicate the need to hold elections in order to produce a legitimate government. But while the eventual holding of elections should validate and legitimize the nation-building process, they also highlight an internal tension in that process, for they point precisely, argued Feldman, to the illegitimacy of what has gone before them. If it were possible to hold elections the day after invasion, there would be no need, and no justification, for the project of nation-building at all. The fundamental ethical question, then, is this: What can best be done to legitimate the process of nation-building itself?
Feldman rejects the philosophical view that nations are necessarily born out of moral illegitimacy and offered us a blunt answer to the foregoing question: if getting people into polling places is what legitimates elections, then getting as many of the people as possible involved before elections is what will best increase the legitimacy of the election to come. But can we approximate the legitimating force of elections without actually holding them? Feldman thinks the answer is yes; after all, elections are themselves imperfect methods of having popular voices represented. After elections the losers have no full say in government until the next set of elections comes around. This is true for anyone not included in a governing coalition even under a system of proportional representation. Nevertheless, elections legitimate governments because they are moderately good at getting popular participation and giving voice to the people.
Feldman went on to suggest a couple of methods of approximating elections in these positive respects, short of actually holding them. One method might involve listening to leaders who seem to be able to speak on behalf of the population, either because polls indicate popular support for them or because they can get people out on the streets in protests. This method risks promoting violent protest intended to inflate the appearance of the power of a leader and the scale of his support base, and Feldman saw just this kind of calculation apparent in the contrast between Muqtada al-Sadr’s attempts to demonstrate power with his orchestration of small, violent protests, and Ayatullah Sistani’s power more easily demonstrated by his ability to bring out very large numbers in peaceful protest. However, spokesmen such as these may be the most reliable pre-electoral guide to the way that the people think, feel and believe. Polling data might be useful, but it is unreliable because the way polls are constructed and carried out has such a significant influence on their results. Another possible method would be that of formally empowering self-presented politicians who purport to speak on behalf of the people (as in the case of the 25 Iraqis on the Iraqi Governing Council). Making it the case that participants in such a provisional government expect to have to run for office themselves in the future increases the chances that they will govern in the interests of the people they claim to represent.
Feldman also addressed the question of why the US should continue to involve itself in Iraq at all. In Iraq we see a complex relationship between the occupier and the occupied. To some extent it is true to say that the occupier wants to stay but the occupied people want them to leave, as demonstrated by the range of participants in the Sunni insurgency. In the pure case, Feldman suggested that this makes the ethical conclusion straightforward: the occupier should immediately leave. But in Iraq we also see increasing signs of a different tension, where the occupier, facing mounting costs and limited benefits, has an interest in leaving, but the occupied country’s government, supported by a majority of the population, want the occupier to stay until they can maintain security and stability themselves. Owing to the US having decided to invade without the agreement of the international community, and without something like an ongoing genocide making invasion imperative, this desire of the occupied people lends the US a special responsibility to remain until it can bring about a successful outcome, so long as it has the power to achieve it. Feldman claimed that with improved counter-insurgency strategy the US would have this power and so has a duty to remain. A second reason to remain in Iraq for the time being stems from special features of the political balance there. The elites need to reach a constitutional power-sharing arrangement between themselves that will satisfy all sides. Feldman suggested that the minority Sunnis will need special disproportionate influence in an organ of government such as an upper house that can guarantee them a fair share of resources. The US needs to be there to guarantee the continued observation of whatever agreement is reached. Without this guarantee, the Sunnis would fear a Shia defection on any special concession to them.
Feldman closed with the optimistic thought that a constitutional agreement by the elites that is then ratified by the people might be reachable in Iraq. If this happens, it will not retrospectively justify the moral mistakes that have been made in the process leading up to constitutional negotiation and ratification. But the emergence of a stable quasi-democratic government would leave us with empirical data about how much different methods of participation are workable and some ideas for constructing better, more legitimate methods of pre-electoral governance. Using the experience of it, we might be able to form, he suggests, the beginnings of an ethics of nation-building.