Effective Opportunity and Democratic Deliberation

Parekh and Barry on equal opportunity

In his analysis of equal opportunity in a multicultural society, Parekh questions whether an opportunity of this sort may be effective on the model of strict formality. He challenges the adequacy of this model specifically in terms of his concern with the ‘cultural disadvantages’ that adherence to it may impose on certain cultural minorities (Parekh, 1997 and 2002). In his estimation, strict formality leaves at least some minorities without effective opportunities to function as law-abiding members of society, given the weight of their fundamental cultural beliefs. For Parekh, this most clearly happens in the case of the religiously motivated belief of Sikhs that they should wear the kirpan, a ceremonial knife. Such a belief disadvantages them from the point of view of participating according to the formal terms of inclusion which prohibit carrying a concealed weapon. These terms make a demand for equality which Sikhs cannot, in good conscience, satisfy in so far as wearing the kirpan disposes them, as Sikhs, to break a law to which all citizens are formally bound.

In light of this concern with how beliefs or dispositions can disadvantage cultural minorities, Parekh offers a strikingly innovative conception of what it means to have an opportunity. He contends that ‘a facility, a resource, or a course of action’ does not amount to an opportunity for someone, even if it is actually open to that person, unless she has a ‘cultural disposition … to take advantage of it’. Opportunity is thus a ‘subject-dependent concept’ (Parekh, 1997, p. 135). Lacking the appropriate disposition to obey the law, the Sikhs thus lack the opportunity to participate on formally equal terms with other citizens whose beliefs do not place them at a similar disadvantage with respect to obeying the law.

Parekh, however, takes this initial analysis of the subject-dependency of opportunities a step further by presenting a controversial analogy between cultural beliefs and physical disabilities. On this analogy, just as one's opportunities to participate in society are more or less effective depending on one's physical condition as able-bodied or disabled, one's opportunities for participation are more or less effective depending on one's defining belief set. As culturally mediated, such beliefs do not just place someone at a certain kind of disadvantage with respect to others with different beliefs which place them at odds with the law. Indeed, they positively disable some minority citizens.

Such an analogy between beliefs and disabilities has been sharply criticised, however, by Brian Barry, who accuses Parekh of blurring an entirely commonsensical distinction. This is the distinction between, say, someone who is unable to drive a car due to a physical disability and someone who freely embraces a religious belief that prohibits her from driving a car. For Barry, Parekh's equation of cultural belief and disability is unsatisfactory both to the disabled person and to the religious believer. On the one hand, ‘someone who needs a wheelchair to get around will be quite right to resent the suggestion that this need should be assimilated’ to a religious preference. But, on the other hand, the religious believer will deny that her religious preference is ‘analogous to the unwelcome burden of a physical disability’ (Barry, 2001, p. 36).

According to Barry, Parekh makes the mistake of thinking that the religious believer lacks the opportunity to drive when she has quite simply opted not to take advantage of this opportunity. Distinguishing between ‘limits on the range of opportunities open to people’ and ‘limits on the choices that they make from within a certain range of opportunities’ (Barry, 2001, p. 36), Barry thus dismisses Parekh's contention that opportunity is a function of disposition. For him, opportunity is instead a function of the availability of given opportunity sets and the choices which they hold open to all people, regardless of their dispositions to act. In saying this, however, Barry does not understand himself as claiming something new about what it means to have an equal opportunity. Rather, he understands himself as preserving the established ‘common sense’ meaning of this concept.

The conceptual issue between Parekh and Barry

Above all, Barry's complaint is that by attempting to change the established meaning of equal opportunity in terms of the dispositional analysis, Parekh manages to produce only conceptual incoherence. In responding to this charge, Parekh concedes that there may at least be some appearance of incoherence in the dispositional analysis. After all, it does point to ‘a prima facie inequality of rights in that Sikhs can do what others cannot’ (Parekh, 1997, p. 135). But, he then adds in defence of his innovation that ‘the alleged inequality grows out of the requirements of the principle of equal respect for all’ (ibid.). To this extent, Parekh insists that there is not really an inequality of rights, so much as ‘an appropriate translation of that principle in a different religious context’ (ibid.). This manoeuvre is, however, flatly rejected by Barry as simply mincing words: ‘the right to carry knives amidst a population none of whom can do the same is an inequality of rights, however we look at it’ (Barry, 2001, p. 38).

But, if Barry rejects Parekh's attempt at conceptual innovation, then he also makes it known that he believes that the ‘inequality’ entailed by granting Sikhs the right to carry the kirpan can be justified (Barry, 2002, p. 205). Indeed, Barry endorses Parekh's conclusion concerning the justifiability of such an exemption, while rejecting Parekh's reasoning for this conclusion. So far as Barry is concerned, the exemption for Sikhs must be granted in a way that acknowledges that it is a clear violation of strict equality of opportunity, if the coherence of the concept of equal opportunity is to be preserved. To this extent, he contends that the exemption should be granted as a ‘fair compromise’ with the conceptually coherent but overly stringent standard of strict formality. He argues that a compromise could be modelled on the reasoning involved in the House of Lords decision that granted an exemption to school uniform rules for Sikh schoolchildren who wear turbans (Barry, 2002). This decision made by the Lords was based on an appeal to a wide variety of moral and practical considerations beyond equality.

Here Barry's willingness to grant the justifiability of extending an exemption to the Sikhs leads Parekh to observe correctly that there is ‘no real practical or policy difference’ between them. Parekh thus asserts that his ‘only difference’ with Barry is ‘conceptual’ (Parekh, 2002, p. 136). Indeed, they are unable to agree about whether the exemption ‘equalises’ according to a novel conception of what it means to have an opportunity, or whether it simply offers a complex and multi-faceted justification of ‘unequal treatment’. Consequently, their exchange results in a conceptual deadlock concerning the possibility of producing a substantive revision of the meaning of equal opportunity. This deadlock can easily create the impression that there is no alternative but to choose either one side or the other in their dispute.

Resolving the issue through deliberation and innovation

I want now, however, to suggest a way to break the conceptual deadlock between Parekh and Barry. This may be accomplished by attending to at least one point on which Parekh and Barry evidently do agree: that the meanings of basic terms must be clarified before controversial claims can be resolved. I argue that, by focusing on the clarification of meanings as the precondition of appropriately resolving controversies, Parekh and Barry overlook the further possibility of innovation from within ongoing informal democratic deliberation.

Indeed, while advocating innovation, Parekh does so only from the external standpoint of the theoretician. This is the source of one of Barry's criticisms of him. According to Barry, Parekh stakes out a position from which it becomes unnecessary that ‘minority cultural claims should be subject to democratic deliberation’ (Barry, 2002, p. 213). Consequently, Parekh's innovation aims to justify minority claims without recourse to deliberative testing. But if Parekh conceives of innovation without democratic deliberation, then Barry is guilty of the opposite fault. He espouses democratic deliberation as the test for minority claims, but only in the sense that it is the test of a compromise which does not itself alter the terms of the dispute, but simply accommodates an existing difference. Neither of them, in other words, specifically link informal deliberative testing to the possibility of innovation.

Nonetheless, it is just this possibility of innovation through such testing which promises to mediate the dispute between Parekh and Barry and break their conceptual deadlock. Indeed, the inclusion of the claims of minority speakers in informal testing processes may be seen as the basis of effective opportunities to shape not a compromise, but rather a novel interpretation of the contested term ‘equal opportunity’. So long as the obligations of deliberative democratic uptake are taken seriously by all speakers, the Sikhs may be said to have an effective opportunity to shape an outcome in which a more complex conception of equality might well emerge. Here Parekh's notion of an ‘appropriate translation’ is not simply mincing words, once it is detached from the specious analogy between disability and disposition, as well as from its restriction to innovation only by the theoretician. Instead, the exemption for the Sikhs from the formal ideal of equality can be grasped in terms of a more flexible understanding of what it means to have an equal opportunity that is achieved among diverse speakers in informal deliberation.

Barry might respond to this by saying that he has nothing against innovation, but that it should be kept substantially distinct from the concept of having an equal opportunity. Indeed, he might even embrace the notion of innovation, but insist that its proper role is precisely to create compromises, and not reinterpretations of such a basic term. Here he could appeal to his observation that Parekh's treatment of opportunity ‘destroys the meaning of the word opportunity which originally related to Portunus’, the god of harbours. Appealing to this ancient derivation of the word opportunity, Barry writes that the opportunity to leave or enter the harbour arose only when ‘the wind and the tide were propitious’ (Barry, 2001, p. 37). In this connection, he asserts that opportunity amounts an ‘objective state of affairs’ that depends no more on the deliberative powers of the sailors than on their cultural dispositions.

In this, he would surely be right, given his insistence on sticking with the ancient derivation of opportunity. But there is no especially compelling reason to retain this original sense of the word. Certainly, there are alternative uses of the word opportunity in present usage. Often it will be said, for instance, that the entrepreneur ‘indeed creates their own opportunities’. But this might be dismissed as misleading. Surely, it might be objected, all the entrepreneur does is to take advantage of the opportunities that exist as ‘objective states of affairs’ in the market, choosing from within the currently available opportunity set. But this too can be dismissed as misleading in so far as it ignores the many ways in which markets are frequently manipulated to create opportunities, which did not exist before. It is then by no means inconsistent with present usage to appeal to the idea of creating novel opportunities.

Here the relevant difference from Barry's example of Portunus is that opportunity creation would not refer to objective states of affairs in the world, quite independent of deliberation, such as the wind and tide in the case of the sailors who wish to leave the harbour. Indeed, entrepreneurial opportunities depend to a considerable extent on a complex range of discourses among investors, lawyers, product innovators and so on. In this respect, they are opportunities that have to be ‘talked up’, before they can effectively be acted upon. Unlike the case of the entrepreneur engaged in ‘market discourse’, however, effective opportunity in the case of democratic deliberation about the meaning of a basic political term like equality has a constitutive as opposed to instrumental function. Such opportunities are not concerned with bringing about a specific end such as profit maximisation. Instead, they are concerned with helping to constitute a more ‘desirable world or situation’ (Dryzek, 2004, p. 54; Tribe, 1972).

In the present case, the more desirable situation would be one in which equal opportunity is constituted through an open deliberative democratic process of innovation, as opposed to a compromise appealing to alternate values at odds with equality. This is clearly a more desirable situation because it does not leave minorities in the position in which they cannot understand themselves, and cannot be understood by others, as participating fully in the fundamental democratic ideal of equality. Nonetheless, it could still be objected that such an approach to resolving the issue between Parekh and Barry risks overstating the role of deliberative innovation in defining an effective opportunity. After all, it is surely possible to conceive of instances in which speakers are given ample opportunity to shape deliberation when minority claims prove to be controversial, but this does not result in any significant innovation at all. Indeed, testing could reveal that such claims can satisfactorily be addressed within the existing terms of understanding for the ideal of equality, even though this result was not anticipated by any of the speakers at the outset of deliberation.

In such instances, opportunities are certainly effective in producing an outcome that is satisfactory to all speakers, but their effectiveness does not appear to be tied in any vital way to the possibility of innovation. Here the objection that opportunities may be effective without innovation is fundamental in so far as it calls into question the claim that I made at the start of this article. That is, it calls into question the claim that opportunities are not effective unless they are tied to the possibility of innovation in informal deliberation. Nonetheless, the objection can easily be answered. Indeed, it turns out to be groundless once a simple distinction is made between weaker and stronger forms of innovation with respect to the opportunity to shape a deliberative outcome.

On the one hand, the weak sense of innovation would mean only that the speakers hold the outcome to be genuinely open-ended. They might well conclude after a process of deliberative testing that existing terms are adequate, such that revision is redundant. In so far as this is not simply a foregone conclusion, however, the outcome of the testing process may be said to be at least weakly innovative. This is a remarkably weak sense of innovation, but it is by no means trivial. As James Bohman rightly insists, it is a necessary function of the open structure of democratic deliberation that speakers should always find themselves having to invent or to ‘improvise’ an ‘antecedently unknowable’ result (Bohman, 1997 and 1996). This is consistent with the case in which the unknowable result is that there is no substantive innovation. In such deliberation, effective opportunities remain inseparable from innovation in this weak sense, thus preserving my original claim that they are intrinsically related.

On the other hand, innovation in the strong sense would mean the opportunity to participate in a process in which the meanings of basic political terms do indeed undergo significant revision. This is the kind of innovation that occurs when ‘equality before the law’ is reformulated deliberatively to accommodate Sikhs carrying the kirpan. Or, for that matter, when it is reformulated to accommodate same-sex couples claiming the rights of civil union or marriage that are already widely enjoyed by couples with more orthodox sexual preferences, as well as any other number of related cases of contesting the formal ideal of legal impartiality. To be sure, innovation in this strong sense is not an everyday occurrence. But it is still sometimes necessary to capture the full meaning of having an effective opportunity creatively to shape an outcome. In both the weak and strong senses, opportunities are effective in virtue of the potential for innovation.

Conclusion

What are the larger implications of the above analysis? Not only does the stress on effective opportunities as tied to the potential for innovation offer a more satisfactorily democratic way to address minority claims. It also points to the need to reconsider the goal of the agonistic and deliberative models of democracy. Indeed, effective opportunities depend on the possibility of agonistic testing processes characteristic of a properly deliberative form of democracy. In most conceptions of democratic agon, however, the goal of deliberative testing is not innovation. As in the case of Barry, testing aims at hammering out a compromise, and not reinventing the meanings of basic terms. Here Barry's view is consistent with Isaiah Berlin's liberal agonism in which the meanings of basic terms remain fixed, with the consequence that conflicting claims for equality often prove to be ‘incommensurable’ (see Gray, 1994). Nomatter whether they are fixed in terms of etymology, ordinary language or the conceptual analysis of the philosopher or theorist, meanings determine the shape of democratic agon and limit the possibilities of resolving fundamental disputes.

The notion that meanings should be authoritative prior to actual democratic deliberation is, however, precisely what my analysis of effective opportunity challenges. If the potential for innovation is always present in informal deliberation among speakers who contest the established or ‘pre-given’ commonsensical meanings of basic terms, then the purpose of democratic agon cannot be simply to create compromises within the limits set by such meanings. Instead, the agonistic and deliberative models must be adjusted to accommodate the irreducible potential of speakers to create new meanings through open processes of informal deliberative testing. Here the task of the philosopher would not be to elucidate meanings for speakers in democratic deliberation. Instead, it would be to help elucidate those features of deliberation that motivate uptake for controversial claims, thus ensuring that all speakers have opportunities that are effective in shaping outcomes and constituting a new shared world of meaning.