Justice and Democracy
If justice is the underlying principle of media policymaking, then it must be seen in light of its relationship with the concept of democracy, first, because “the historical record shows that democracy by itself may often promote injustice” (Bohman, 2007, p. 271), and second, since “[t]he crucial role of public reasoning in the practice of democracy makes the entire subject of democracy closely related to justice” (Sen, 2009, p. 326). Indeed, democracy is essentially connected to the mediation of informa?tion (Fenton & Titley, 2015). The central role the media serve as the platform for public discourse further highlights the need for their just distribution, the equal ability to access them, and a similar capability to utilize them in order to participate in democratic deliberations. Since the transitions in the nature of media lend to a never-ending quest to control them and thus affect the nature of public discourse, a discussion of the optimal structure and form the relationship the media have with governments and markets requires an agreed upon concept of democracy (Schejter & Tirosh, 2014), one that incorporates recognition of the centrality of a theory of justice.
However, it has never been easy to define democracy without reducing it to a set of formalistic procedures, a checklist of must-have mechanisms that determine whether a political regime is democratic or not, without questioning its underlying concept of justice. One result of this reductionist tendency is that democracy is often identified not as a distinct, let alone ideal, system of ideas and values, but rather as a “form of government, or a way of taking collective decisions” (Jay, 1984, p. 120). Yet democracy first and foremost has value without which its formal characterizations are meaningless.
In ancient Greece, where the term democracy was coined, it was understood as a regime whose foundations are citizenship, access to public office, and participation in public discourse. To achieve this norm, notions of equality, the need for procedural certainty in decision making, and the acceptance of the rule of law had to be recognized.3 Once economies of scale required that representatives replace the general public as decision makers, the new challenge became to adhere to a standard in which the public’s needs and wants get reflected in the decisions of the elected assembly. The attempt to rise to this challenge engendered different theories of democracy that tried to cope with the inherent democratic deficit of representative democracy and to redefine it as an idea and as an ideal system of control. Many of these theories had to propose a substitute for direct representation that ensured that indirect representation reflected the wants of the represented.
Held (1987) distinguished between four classical and five contemporary models of democracy, within which Van Dijk (1996) differentiated among the latter five, along two dimensions of political democracy, which he deemed relevant to the understanding of the role of media technologies in a democracy. One continuum stretches between seeing the model as being based on direct or representative democracy, the other on focusing the goal of democracy as lying between “opinion formation” and “decision making.” The present authors perceived these two goals previously (Schejter & Tirosh, 2014) as distinguishing between recognizing theories of democracy as normative, aimed at creating a knowledgeable and active citizenry, or operative, aimed at assuring the system is functioning to reach decisions. Indeed, the latter cannot truly exist without the former, or, more precisely, a system that does not make a normative choice ensuring freedom of expression as the basic mechanism for the development of an opinion cannot be perceived as a democracy.
“Free,” however, is a notion arising from the so-called liberal protective model (Held, 2006, p. 77), which juxtaposes governments against individuals and analyzes the relationship between them as if the political were a separate and distinct sphere from the cultural, the economic, and the private. Indeed, such a differentiation fails to fully encompass the range and level of threats on freedom of expression that exist in contemporary society. While it is clear how the fear of government served as the basis for the theory behind such legal structures as the First Amendment to the US Constitution, identifying government as the only threat to that freedom is naive at best. Freedom of expression is no less at risk owing to the inequitable power structure in society that benefits the wealthy over the less economically fortunate as well as other power brokers who have attained their influence through the exploitation of unfair advantages they enjoy, whether because of their gender, race, or any other affiliation that enjoys a favored position, over those who do not.
Both utilitarianism and Rawlsian philosophy emphasize the importance of freedom of expression for a democracy, yet they differ in their emphasis on how to measure whether that freedom is indeed enhancing democracy. It was utilitarian philosophy that provided the basis for adopting the idea of freedom of expression into US jurisprudence (Schejter & Yemini, 2007). As mentioned earlier, the concepts of a marketplace of ideas, which can be traced back to Mill’s philosophy (Goldman, 1999), and social responsibility of the press (Plotkin, 1996) both lie on utilitarian foundations. However, all these are merely negative justifications in nature, stressing what ought not to be done—suppression of speech—rather than what ought to done—enhancement of speech. Similarly, as stated earlier, ensuring freedom of expression is at the base of Rawls’s list of primary goods. Without the right to speak freely, people cannot exercise their political rights, which Rawls (1993) calls their “fair value of political liberties,” which need to be “roughly equal” (p. 358), “in the sense that all have a fair opportunity to hold public office and to affect the outcome of elections, and the like” (Rawls, 2001, p. 149). Still, establishing freedom of expression in the Rawlsian sense only ensures a minimal level of this freedom. This may be insufficient and reflect only a partial understanding of the role of media in maintaining and supporting democracy, since “the central issues in a broader understanding of democracy are political participation, dialogue and public interaction” (Sen, 2009, p. 326).
Senian justice, in particular the capabilities approach, thus lends to a different relationship between justice and democracy. Instead of focusing on the attainment of freedom, the focus should be on the ability to put it to good use in a way that the person who has the right to it wishes to. Economic inequality can undermine even legally protected political equality since, for example, the expression may be of more value to a wealthy person than to one who lacks means (Estlund, 1998). At the same time, the less wealthy may have the political potential to express themselves guaranteed, but the need to focus on achieving economic security may hinder exploiting that potential. In Sen’s words, “a theory of justice based on fairness must be deeply and directly connected with the actual freedoms enjoyed by different persons” (Sen, 1990, p. 112) and not just by the opportunity to have them. Conversely, to reach the level of justice Sen is advocating, we need to strive for equality in freedom, and “the market place alone or in combination with political (party) pluralism does not guarantee equality in freedom” (Splichal, 1999, p. 21).