Democracy, democratic representation and constitutional logic of ethnic electoral units in Bosnia-Herzegovina

Democracy, democratic representation and constitutional logic of ethnic electoral units in Bosnia-Herzegovina

TransConflict is pleased to present the first part of a three part paper analysing the ethnic electoral units in Bosnia and Herzegovina, produced by the Institute for Social and Political Research (IDPI), a member of the Global Coalition for Conflict Transformation

 Suggested Reading Collaborate Analysis

By Dražen Pehar

According to its basic intention and rationale, democratic method/frame of decision making should primarily serve the purpose of a peaceful and discursive conflict-resolving. When some individuals and groups came across the idea that their association ought to be guided by two rules, one which stipulates that the people should rule itself, and another which stipulates that such a rule need to be founded on a publicly declared and accepted code of laws binding on all, such an idea was primarily put into service of the channelling and institutionalization of social conflict; the idea was to enable both individuals and groups to refrain from non-discursive or violent means of conflict-resolution, and to engage in a conflict-resolution by talk, agreement, and generally by those methods of decision-making that embody some fair, widely comprehensible and stable procedures that apply equally to all the members of the community.[1] Such procedures are supposed to facilitate a joint, discursive, non-violent, and stabilizing arrival at some principally just end-points (conclusions, decisions, adjudications, policies…) to which all the community members need to be committed.[2]

A clear example of such a peace-making, discourse-based function of democracy can be found in the institution of election of legitimate group representatives: elections are held and organized in accordance with the rules that apply to all; one of the most frequently discussed is the ‘rule of majority’, which in some cases is enriched and qualified to such an extent that it can be, for all practical purposes, reduced to the rule of consensus;[3] additionally, elections should be held in such an atmosphere that, as a matter of principle, all the candidates enjoy equal chance of presenting of one’s own program, and also that the very public has an unimpeded access to all the information that could influence their free and reasoned choice; election outcomes are determined by a simple vote count as a part of a fair and transparent procedure that permits no distortion or some deforming or hiding of results. Finally, it goes nearly without saying that everyone, including those who voted for the candidate who was not elected, need to endorse the outcome of the voting as legitimate; everyone should deem the process to be not one of destabilization, but of stabilization of the intragroup relations.[4] The elections should produce an expected and stabilizing sequence of outcomes: candidacy, electoral campaign, the voting itself, declaration of result and the resolution of complaints, the implementation of the outcome, and the establishment of relevant authorities. In all this one can unmistakably recognize the nature of democratic frame of decision-making as one which enables us to steer the conflicts (of ideas and interests) within a community into the direction of a conflict form that is amenable to rational and discursive control, which prevents such conflicts from assuming the form of violence, armed duel, or even war.

It needs to be emphasized immediately that such considerations do not imply the following claims: first, they do not imply that democracy can be effectively reduced to the notion of procedures; secondly, they do not imply that elections are the only means of implementation of a democratic frame or that democracy can be defined simply as a free election;[5] thirdly, and most importantly, the idea of democracy as a frame that enables conflict-transformation from an unruly and uncivilized form into a form that allows for discursive and peaceful conflict-resolution, such an idea may be projected but then remain ineffective and non-materialized; there is the possibility that, at one level, we have defined some democratic frame and procedures, which involves a possibility in principle of implementation of democracy, but then, at some other level, the very same procedures get abused, or interpreted, in the way that effectively blocks implementation of the procedures; the procedures are abused or misinterpreted and thereby guided towards some unjust and destabilizing outcomes: in such a case, one deals with ‘a suicide of democracy.’ That is why I consider the problem of interpretation as critical one. Those communities that suffer from a serious disagreement over the question of how does one need to interpret procedures (or institutions, or rules) cannot function effectively as democracies. This additionally implies that procedures alone do not suffice – we also need a consensus about interpretation that, unfortunately, cannot be produced by a purely procedural method.[6] Note also that a kind of interpretation, despite its intrinsic unpersuasiveness and weak logic, may be imposed due to some relations of political power that prevail at a given moment in a given place; such interpretive imposition will unavoidably produce an increase in social-political instability and transform effectively a potentially democratic frame into non-democratic one. Today’s Bosnia-Herzegovina provides a crystal clear example of such kind of transformation, of ‘bastardization’ of what is initially a sound democratic procedural frame.

Such considerations also explain why some recent ideas about ‘agonistic democracy,’ as proposed by Chantal Mouffe, are npersuasive and de facto cannot be implemented. Mouffe claims that democracy is formed fundamentally by two things: replacement of the notion of ‘political enemy’ with the notion of a legitimate political adversary; and secondly, a common symbolic/institutional frame that is shared by political adversaries and that places limits on the conflict between such adversaries.[7] Due to the problem of interpretation of a procedural frame, such an idea is unpersuasive and non-implementable: given the assumption of a true politically adversarial relationship, which entails a disagreement over the ways of interpreting of a common institutional frame, such a frame cannot be unambiguously legitimate or efficient. True democracy rests on a true consensus concerning the issue of interpreting and implementing of procedures, which is then, contra Mouffe, bound to take democratic mechanisms of decision-making in direction of political friendship, or, to put it in a more neutral vocabulary, direction of peaceful and discursive resolution of political conflict.

Before I present the case of ‘bastardization’ of democracy in Bosnia-Herzegovina, I need to remind the reader of some important facts concerning the notion of ‘democratic representative’ or ‘democratic representation.’

Democratic representation and democratic representatives

Democratic representative is not a mere individual. It is an individual, or a group of individuals (for instance, parliament), endowed with one additional aspect that turns it into a legitimate representative. Simply speaking, one larger group of people needs to stand ‘behind’ the individual and consider him or her as something that is of essential importance to the group taken collectively. Such additional aspect, that makes one a representative, can be grasped only in terms of the theory of discourse generally, and in narratological terms more specifically. Thomas Hobbes, the author of Leviathan, is the first political theorist who presented such additional aspect in persuasive and clear terms.[8]

A sovereign representative, the key figure of the Leviathan, is, metaphorically speaking, ‘a seat of power’ in the sense that the representative, apart from being an individual, also figures as a common voice of those who elected him collectively. In other words, sovereign representation is a social relationship involving a group and an individual, in which relationship the group deems the individual sufficiently authorized to speak in the group’s name. Hobbes presented such a relationship in the following terms: one who assumes the position of a sovereign representative thereby becomes ‘persona’ in the literal Latin sense of the word (which is translation of the classical Greek term prosopon): he puts a ‘mask’ on his face and thus gains the status of one who is more than an individual; one to whom the group attributes a special role in accordance with the mask which can be grasped properly as a symbol and demonstration of a special script/screenplay; the sovereign representative is tasked with performance of both such a role and the script.[9] In other words, sovereign representative is an artificial person brought into life by a projection of social will into a single individual who, through such a projection, is endowed with the status of ‘a moral person’ of a collection of individuals taken collectively. This further means that, by putting on the mask, a key condition of transformation of community into a single political-theatrical space, sovereign representative undertakes the commitment to the idea and ideal of ‘common or public good.’ The whole community endows the representative with a sufficient amount of initial trust, an a priori moral capital, to be able to undertake and start implementing such a commitment.

In other words, the sovereign representative needs primarily to stage a drafted script, which means deliberating and adjudicating on the premise of common good and for the purpose of protecting the collective body. This can be illuminated only through a discursive theory of sovereign representation. A ‘representative’ is one who employs and implements political-legal-moral language in such a way that his language forms and safeguards a collective political body in an especially emphatic mode. His discourse is taken as representative of a collective body in political sense, and, once elected, he himself is deemed capable to confirm and protect such collective body primarily by his argument, that is, by the laws and the law enforcement.

This complex discursive process in its entirety is impossible without some foundational discursive virtues: truthfulness, integrity-coherence, reasonable understanding, interpreting, and implementation of the law, i.e. of collective promises with the status of law, and finally the willingness to buttress one’s own decisions with reasonable and generally plausible arguments. This complex discursive process in its entirety is impossible without some foundational discursive virtues: truthfulness, integrity-coherence, reasonable understanding, interpreting, and implementation of the law, i.e. of collective promises with the status of law, and finally the willingness to buttress one’s own decisions with reasonable and generally plausible arguments.

It is important to emphasize immediately that such discourse-based theory does not advocate the view that trust could not be abused. Hobbes claims that a sovereign representative puts on the ‘mask of moral person’ that represents, and embodies, political power of the group taken collectively; however, it is obvious that the way in which the sovereign actually performs his role, as a part of his mandate, may deviate from the promise, or from the ideal of common good. Some sovereigns perform the role more successfully than others. Apart from such deviations, a proper sovereign representative can be recognized without much difficulty: as Aristotle pointed out in the Nicomachean Ethics, such representative is concerned exclusively with the attributes of ‘honor/morality’ and ‘dignity’ (timé kai géras) that will be awarded to him following his successful performance of the role with which he was tasked by putting on ‘the mask of the sovereign.’[10]

This has two major implications: the role of ‘sovereign representative’ is processual; it evolves over time and proves itself gradually. The ‘mask’ involves some standards/values that can be achieved and confirmed only in the course of a longer period. In other words, one is not a sovereign; one becomes a sovereign through successful acting of the role of ‘the servant to common good.’ Secondly, the right of the group to control and supervise the way in which a sovereign representative embodies the ‘persona’ of common good never ceases to apply. The group’s voice is one that endows an individual, or a group, with the mask of collective body/good, which means that the mask is removed when such a voice is redirected or when the group realized that the voice was attracted originally by fraud or a kind of manipulation.

Now, what is the most important fact concerning the sovereign representative? It is his inherently peace-making or peace-promoting function. In addition to his concern with the rule of law, which is indeed a key factor of peace and stability, the sovereign representative also embodies a free and uncoerced voice of the people; he is a figure with which the popular will agrees and about which a fundamental consensus, brought about by a peaceful discursive procedure, reigns. In other words, he is a living proof of the ability and readiness of the people to agree on a single issue – who ought to represent the popular will in the sense of collective good? This function of peace-making and peace-promoting can be easily explained through some counterexamples. The key problem with representatives such as Sejdo Bajramović, Željko Komšić, or all the quislings of the World War Two, is in the fact that they were imposed: those who impose such representatives thereby offend a whole group of people, and thus generate resentment throughout the group and the need to oppose and protest the fact of violation of a fundamental human value – a free and reasoned human choice. Additionally, as here we deal with individuals who really belong to the group that is a subject to humiliation, non-sovereign representative, i.e. a quisling, also generates a symbolic disintegration and uncertainty within the group. He demonstrates that ‘some of us’ are indeed willing to accept the condition of humiliation in which submission is disguised as democracy and independence due to personal benefit that such a condition brings to them. As to Sejdo Bajramović, one can plausibly argue that his appointment was one of the causes of deterioration in relations between Kosovo-Albanian community and SFRY, or primarily Serbia. Quisling-making is a practice that marked World War II; hence it is not difficult to draw the conclusion that the election of Željko Komšić contributed to the worsening of the relations between some communities.

Before presenting more detail concerning the problem ‘Komšić’ in BiH Presidency, I need as well to emphasize the following: the aforementioned function and meaning of ‘sovereign representative’ has been recognized and emphasized many times in history; in addition to Hobbes, we also find it in Aristotle, in American founding fathers’ theories,[11] and in contemporary political theory, for instance in Philip Pettit.[12] In a rudimentary form we find it too in Searle’s discourse-based theory of institutional facts; for instance, in his influential book Searle put it as follows: “The secret of understanding the continued existence of institutional facts is simply that the individuals directly involved and a sufficient number of members of the relevant community must continue to recognize and accept the existence of such facts. Because the status is constituted by its collective acceptance, and because the function, in order to be performed, requires the status, it is essential to the functioning that there be continued acceptance of the status. The moment, for example, that all or most of the members of a society refuse to acknowledge property rights, as in a revolution or other upheaval, property rights cease to exist in that society…One of the great illusions of the era is that ‘Power grows out of the barrel of a gun.’ In fact power grows out of organizations, i.e., systematic arrangement of status-functions. And in such organizations the unfortunate person with a gun is likely to be among the least powerful and the most exposed to danger. The real power resides with the person who sits at a desk and makes noises through his or her mouth and marks on paper.”[13] In other words, the status of a sovereign representative holds as long as the relevant community recognizes and supports his or her status. In such a sense, how should we view the status of Željko Komšić as a BiH Presidency member, and through what mechanisms has his own status been discursively produced?

Dražen Pehar has a PhD in politics and international relations from Keele University (SPIRE 2006), holds an assistant professorship (BiH) in the philosophy of law and in politics with sociology. Dražen is a DiploFoundation Associate, and previously served as Chief of Staff to the BiH Federation President (1996) and as a media analyst to the OHR (1999/2000).

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1) The very first clear example is found in Eumenides, the third part of trilogy Oresteia, by Aeschylus: the Council of Areopagus votes to declare Orestes not guilty of a murder of his mother Clytemnestra, and thereby establishes itself as a supreme judicial council of Athens; for a general introduction into classical Greek democracy, see Woodruff P. (2005), First Democracy, Oxford, New York: Oxford University Press.

2) A pertinent theoretical frame is proposed in Galtung J. (1965), ‘Institutionalized conflict resolution: a theoretical paradigm,’ Journal of Peace Research 2:4, pp. 348-397; Galtung’s ideas are further elaborated in Luhmann N. (1992), Legitimacija kroz proceduru (Legitimation durch Verfahren), Zagreb: Naprijed, a Croatian translation by I. Glaser; see also Lefort C. (2003), Izumevanje demokratije (L’invention democratique), Beograd: ‘Filip Višnjić’, p. 20, a Serbian translation by R. Kordić.

3) Von Gierke O. (1996), ‘O povijesti načela većine’ (‘Über die Geschichte des Majoritätsprinzips’), in: Legitimnost demokratske vlasti (ed. M. Kasapović, N. Zakošek), Zagreb: Naprijed, pp. 13-33; a Croatian translation by T. Martinović; Čedomir Čupić points out that, “democratic political culture is unthinkable without another device – consensus. The best solutions in social life are achieved by a consensus of all participants, because, when there is a consensus in political decision-making, there is no outvoting and there is no sense of negligence, of unfairness or a defeat.” (Afterword to Harrison R. (2004), Demokratija (Democracy), Beograd: Clio, a Serbian translation by Đ. Krivokapić, p. 318)

4) This entails the need to propose a solution to so-called ‘Wollheim’s paradox of democracy’, on which see Harrison R. (2004, pp. 283-293).

5) See, for example, Pettit P. (2001), ‘Minority claims under two conceptions of democracy’, in: Political Theory and the Rights of Indigenous Peoples (eds. D. Ivison, P. Patton, W. Sanders), Cambridge: Cambridge University Press, pp. 199-215.

6) I advocate the view that discourse-ethics is the only thing that can really help us in this regard; the tradition of discourse-ethics dates back to the time of Greek orator and theorist of rhetoric Isocrates, and includes a number of influential contemporary theorists such as Donald Davidson, Jürgen Habermas, Matthias Kettner, Bernard Williams, and Philip Pettit; for more detail, see Pehar D. (2011), Diplomatic Ambiguity: Language, Power, Law, Saarbrücken: Akademiker Verlag, which can be accessed at, pp. 158-233.

7) Mouffe Ch. (2005), On the Political, London and New York: Routledge

8) In Hobbes T. (1994/1651), Leviathan, E. Curley (ed.), Indianapolis, Cambridge: Hackett Publishing Company, Inc., pp. 101-105 (Chapter xvi)

9) See Skinner Q. (2007), ‘Hobbes on Persons, Authors and Representatives,’ in: P. Springborg (ed.), The Cambridge Companion to Hobbes’s Leviathan, Cambridge, New York: Cambridge University Press, pp. 157–180; and Skinner Q. (2002), ‘Hobbes and the purely artificial person of the state’, in Skinner, Visions of Politics Vol. III (Hobbes and Civil Science), Cambridge: Cambridge University Press, pp. 177-208.

10) Aristotle (1996), The Nicomachean Ethics, Hertfordshire: Wordsforth Classics, translated by Harris Rackham, Book V, 1134b1-8

11) See Harrison (2004, pp. 111-113)

12) Pettit P. (1999), Republicanism, Oxford: Oxford University Press

13) Searle J. R. (1996), The Construction of Social Reality, London: Penguin Books, pp. 117-118

What are the principles of conflict transformation?