The Public of Public Inquiries
Liora Salter FRSC
Osgoode Hall Law School
York University
Just when it looks like inquiries have fallen into disuse as tools of policy making, along comes a slew of new ones. Then, when it looks as if inquiries have become a mainstay of policy making, the pundits suggest that inquiries have had their day, being too expensive and unpredictable for those who commission them. Meanwhile, many of the same issues – accountability, cost, the relationship of inquiries and the courts etc.– continue to be raised regularly.[i]
But something new has happened. The literature on public policy has advanced considerably in the last decades. driven by new theory and by the need to respond to both globalization and the de-regulatory state. This literature suggests new ways to look at public inquiries.
From time to time, law reformers have turned their attention to the untidy state of the law as far as inquiries are concerned. Their preoccupation seems mainly to be about the much-vaulted independence of inquiries versus their possible impact on the policy process. Both relate to dual nature of inquiries, their insider-outsider status as instruments of policy making It is worth recalling in this regard, that Simmel (1971) argued that those who were simultaneously insider and outsiders had enormous advantages when it came to the acuteness of their observations. Those who conduct inquiries are close enough in to see things that outsiders might never see, he said, but less thoroughly bound to the policy process. Inquiries are, of course, commissioned by the state, designed to serve the purposes of the state by churning up recommendations for policy. At the same time, their primary characteristic (true across the board) is that inquiries are supposed to be free of state control. In other words, the strength of inquiries may come from what the law reformers have regarded as a problem.
I suspect that the few of us in Canada who focus our attention on public inquiries agree with Simmel, even if we also recognize how often inquiries are often used for the crassest political purposes, and how often they seem to have minimal effect. We might answer, were we polled, that an inquiry commissioned for all the “wrong reasons” often achieves something valuable (good research, for example), while inquiries with stellar mandates often run aground of politics. We might also say that one cannot judge an inquiry by the fate of its specific recommendations, however many are eventually adopted. Inquiries have an impact on both the climate of opinion and the conceptual frameworks that are used for policy analysis. Changes to policy, we would say, often come from new ways of speaking about policy issues, as much as they do from specific recommendations.
Above all, we might say, inquiries should be examined in light of what they, and they alone, add to the policy process: Inquiries often represent the only opportunity for a well structured, well-informed conversations about policy. They bring to the table members of the public who otherwise have no place or role in policy analysis. It is this last point, the public nature of inquiries that offers me a new point of departure for a discussion of inquiries as instruments of policy analysis. The lens I want to use for this paper is deliberative democracy, which is all about the ways that members of the public become part of the policy process.
It must be stated at the onset that I am using the phrase deliberative democracy somewhat differently from many people writing in the literature, where deliberative democracy has a long and torturous history of theoretical entanglements and value-soaked controversies. In this literature, deliberative democracy and the public sphere are closely aligned with each other in various conceptual formulations, but the public sphere is treated as a single construct in its own right, standing for the various theorists’ basic contentions about the nature of the democratic polity, state-non-state distinctions, the role of associations and civic society and the nature of judicial state. In virtually every example of authors writing on deliberative democracy, the tone is almost exclusively normative and prescriptive.
Almost none of this theoretical debate will show up in this article. Indeed, I propose to use the criteria for deliberative democracy laid out in this theoretical literature (about which most theorists agree) in an empirical context, something most of these theorists would be loathe to do. If I refer to the public sphere, for example, it is as the phrase might be used in everyday conversation. Public sphere refers to venues for public debate about important political issues. Ku’s definition of public sphere serves the purpose of this paper if one needs a more theoretically grounded definition: She thinks of deliberative democracy as involving venues to receive and discuss issues, define them in light of collective experience and finally to arrive at civil judgements with collective weight. (Ku 2000)
There is another issue to be laid aside before I can proceed. Some theories, Habermas’s included, suggest that the public sphere develops in contradistinction to the state; it is about civil associations functioning on the private side of the public/private distinction. Other theorists argue that the public sphere is inherently connected to state actions. It is already obvious that I break ranks with those who regularly write about deliberative democracy, and the public sphere associated with it, as antithetical to state action. In speaking about inquiries, I have already mentioned the usefulness of Simmel’s discussion of marginality in suggesting that inquiries are both inside and outside the state. In doing so, I am joining a small group of theorists who argue, as Agnes Ku does so cogently, that:
The modern notion of the public sphere should be tied to both state and civil society. Today state and civil society are so deeply intertwined with each other in shaping the political and moral boundary of public life (that) they are simultaneously subject to a common cultural field that constitutes and regulates public life (2000: 221).
I cannot imagine what the grand theorists of deliberative democracy might make of inquiries, mainly because I cannot imagine them paying attention to inquiries in the first place. In my view their assessment is a mistake. I think a case can be made that inquiries are exemplars of deliberative democracy; they are the public sphere in action. Think about it. Their primary function is to get issues out into the open, to bring evidence to light in a very public domain. They encourage participation from a broadly interested public, encourage free-flowing discussion among people whom they treat (at least in theory) as equals, and they provide informed recommendations to government. Seen in this light, inquiries lift the routine, and not so routine, business of government out of the closed world of government departments and their regular consultants, and transform this business into matters for public debate.
Yet inquiries are not yet on solid ground with respect to their contribution to deliberative democracy. The concepts of the public and the public sphere, always associated with deliberative democracy, are the source of trouble. Not knowing why the public is participating (but only that it should participate) or who indeed properly constitutes the public, inquiries undermine their own stated goals of being both public and democratically deliberative. Earnest though the intentions of their commissioners and staff may be, inquiries easily diminish what they should be enhancing.
I begin with the notion of the public, which is central to every discussion of deliberative democracy. It cries out for examination, and always has. The literature is vast, but this fact need not be a deterrent. My discussion is not meant as a contribution to theory or political philosophy, but instead to lay the foundation for a very practical discussion of inquiries. I want to consider how various conceptions of the public affect what inquiries do and say. I will refer to a number of inquiries, but not provide a detailed description or analysis of any one of them. I am counting on the reader to know a little about these inquiries through their own newspaper reading, and have provided a list of final reports in the reference section. I am using this overview and comparison of inquiries for the simplest of illustration purposes only: only to remind these newspaper readers how inquiries are differently oriented with respect to how they operate. Towards the end of this paper, I will come back to my central contention: that inquiries are, or could be, exemplars of deliberative democracy, but often are not. And I will test this proposition against the arguments I have made. In doing so, I will compare inquiries with other instruments of policy analysis in order to highlight their strengths and weaknesses as instruments of public policy.
Dealing with the terminology:
Connolly lays out the first problem to be dealt with when he lists “public” among the essentially contested concepts that confound political discourse (Connolly 1993). His point is as follows: some words, such as public, can no longer serve as ordinary words, closely tied to their dictionary definitions with widely shared understandings of their meaning. These words are instead elevated to a different plane of language, where they serve as proxies for the political philosophies that underlie political discourse. This would not be a problem but for the fact that the same words are used by groups with diametrically different political philosophies. Such words become emblematic of their very different theoretical assumptions, radical agendas and practical advice. The example that springs to mind is democracy. Recall that East Germany was once called the German Democratic Republic, even as the cold war was being waged by the west under the banner of democracy. Democracy is undoubtedly an essentially contested concept.
Connolly said that essentially contested concepts are fundamentally open-ended with respect to the characteristics that can be added and subtracted from their definitions. For example, virtually anything can be said to be the defining characteristic of democracy. Recall C.B. Macpherson’s now classic study of The Real World of Democracy, where Macpherson attempted to argue (successfully for its time) that the emerging one-party states of post-colonial Africa had as much claim to being democratic as the multi-party states of the western industrialized countries (1966). Macpherson also argued the countries of the then Soviet bloc were democratic too, albeit using a different conception of democracy. Each political system, MacPherson suggested, grounded its conception of democracy in its own political philosophy, and thus used the term not capriciously or merely rhetorically but as an integral part of a coherent conceptual framework. For Macpherson, words like democracy played a pivotal role in politics, and they could not be disconnected from the philosophies or conceptual frameworks that gave them meaning. There was no solid ground to be found for any common definition of democracy, or indeed for any other essentially contested concept.
That said, those who use essentially contested concepts like democracy are so deeply attached to their own conceptions that these words cannot simply be discarded. This is Connolly‘s point too. These words are somewhat like a flag or logo. They stand for, and act as a symbol of the whole. The German Democratic Republic distinguished itself precisely because it was democratic in a way that western market democracies could never be. The one party states were democratic in a way that captured for their leaders of the time what it meant to break away from colonialism. They would say: democracy was worth nothing if it was not indigenous to, and shaped by, the communities in which it took root. What was really at stake, for Macpherson and Connolly alike, were conflicting definitions of democracy. The terminology masked a struggle over philosophy, but it was played out as a conflict over words or, more specifically, over the right to control the definition of emblematic words. The political philosophies that churned up the label democratic would have been lost without their democratic moniker.
Essentially contested concepts are not just essential and contested, in the sense I have just described, Connolly argued, but also serve another function. They lay the foundation for moral judgements, even about seemingly unrelated matters. As such, they are the lynchpins of the value debates that permeate all political discourse, the bearers of moral judgements about all kinds of things, in all kinds of circumstances. These terms set standards, against which all behavior (state behavior, company behavior and even individual behavior) can be judged. To be democratic is good, regardless of what democracy means in practice. To be successful in attaching the label democracy to ones’ actions or beliefs is to bless all one’s beliefs regardless of any connection they may have to democracy, however it might be defined.
It must be emphasized that neither Connolly nor Macpherson was disparaging the use of the essentially contested concepts in political discourse, and neither am I. They were not saying that essentially contested concepts rendered politics meaningless, nor were either writer railing against the drift of modern media-soaked politics. Essentially contested concepts were the way that differences in values and philosophies were factored into political discourse, and philosophical differences were telegraphed from one group to another, each argued. These short-cut words were necessary for making sense of political debate. They were abbreviations for the deep-seated issues and values that divide countries, blocs and political opponents. Political struggles about the proper definition of words like democracy were never really about the word or its definition. That said, words were a useful proxy for conflict, given that the alternative is often war.
As noted, Connolly listed public as an essentially contested concept. By public he meant all of the following: the public interest the public, the public sphere and public participation. All these terms were emblematic of what Dewey once referred to as searching for public policies that reflect “the good of all” (1954). However, something about public makes it a special case, unlike democracy.
Here Raymond Williams provides some guidance (1983). Public is, as Williams would say, also a key word. That is, it is a word whose presence (as opposed to definition) symbolizes what political systems stand for at any moment in history. These monikers describe the political system as a whole, but only temporarily. They orient political discourse at one time, but not at others. Particular key words ebb and flow in political discourse. Their salience changes over time in ways that signify the preoccupations and ethos of the era in which they are used. Let me play this out, using the term public. At one moment in time, public was attached to almost every government action (public interest), every organization with altruistic motives (public groups), and indeed every government policy (public policies). Then, seemingly without warning, public all but disappeared from political discourse. References to the public interest were dropped, public groups became NGOs or “special interests”, the public became citizens, voters or consumers, and policy replaced public policy.
This all too brief discussion of key words and essentially contested concepts serves a specific purpose for this paper. I think that the ebb and flow of keywords, and also the clash reflected in essentially contested concepts, can be used to identify the ideas, values and philosophies that underpin political discourse at any moment in time The fact that the same word is used to mean radically different things, and that this word is emblematic of whole political philosophies and values, make it a window onto differences that are normally hidden from view. If a word resonates politically at one moment in time, and later becomes the centre-piece of political controversy at another, obviously something important is happening to cause the change. Alerted to the fact that there is change, we can search for the reasons why it is happening.
In other words, if I can locate the unspoken ideas and assumptions that are being called into play each time public is invoked, and if I can line up these many ideas and assumptions alongside each other, I can see where public inquiries might differ quite radically from each other despite their common allegiance to being public. I might make sense of their quite different approaches to encouraging public participation. If I then can trace, even in an impressionistic way, the changing conceptions of public that are used by inquiries, and note when the public aspect of inquiries is not being discussed, I have another avenue of approach. I can usefully comment on the implications of adopting one conception of the public over others. My goal becomes to lay bare some of the assumptions that drive individual inquiries, assumptions otherwise hidden by their common description as public inquiries.