In the previous chapter, David showed that procedural fairness could not by itself justify democracy. According to “fair proceduralism”, a law that is the outcome of a democratic vote is legitimate because everyone had an equal role in determining the outcome, regardless of whether it is good or just by other standards. Yet since a coin flip also provides equal input, fair proceduralism must incorporate some substantive value, such as the principle that outcomes should be positively sensitive to voter preferences.
Chapter 5 confronts a possible response to this argument, a response based on a partial concession. Yes, we have to appeal to substantive values to justify democracy, but we can do so with respect to the intrinsic characteristics of decision-procedures, without making any claims about their tendency to yield good decisions or (incidentally) to generate other desirable outcomes. We thus avoid any substantive assessment of political decisions / outcomes (except for endorsing the preservation of democracy, which is an outcome, but the outcome that consists in the continued functioning of our intrinsically-valued procedure). David calls this position “intrinsic democratic proceduralism” (86). The chapter criticizes 3 versions of this doctrine: Habermas, Cohen, and Waldron.
According to Habermas, there are “no standards that loom over the political process, policing its decisions” (88), but only standards of procedural rationality implicit in democratic deliberation itself. So it looks at first as if Habermas avoids any substantive assessment of outcomes. However, it turns out that one of the norms that is implicit in deliberation is that outcomes are legitimate only if they could have been agreed to in the ideal speech situation. The standard is not that outcomes in fact result from a particular, intrinsically-valued procedure, but that they could result from a hypothetical procedure. Habermas too judges outcomes by a standard independent of their actual procedural source (89), and so is not, ultimately, an intrinsic democratic proceduralist.
Cohen too claims that democratic choice is not under any external authority, not even the authority of independent moral truths. Democratic deliberation is free in that participants regard themselves as bound only by the results of their deliberation and by the preconditions for that deliberation – deliberation between free and equal citizens. One of these preconditions, however, is that coercive political arrangements are morally illegitimate unless they can be accepted by citizens with a range of moral, religious, and philosophical views. In other words, a “qualified acceptability requirement” (QAR, as we have been saying) is part of the democratic ideal. Yet Cohen only reaches this conclusion, David claims, by expanding the boundaries of the concept of democracy. Citizens are not radically free, constrained only by the preconditions of deliberation and whatever laws they choose. They are constrained also by the principle that laws must be acceptable to all reasonable people.
Waldron claims that large assemblies are valuable because, whether or not they produce good decisions, they air the views of a wide range of citizens. Apart from any thought about the wisdom of crowds, fairness requires that everyone’s views have a hearing. However, fairness by itself would be compatible with an equal non-hearing of views. If some participants had a greater opportunity than others to develop and air their views, we could achieve equality by leveling down, if fairness were all that were at stake. Imagine that individuals have views of no better than random quality and that the deliberative decision-procedure is no better than random. Individuals would have no interest in participating equally in such a process, when equal treatment in decision-making could be achieved far more easily by lottery. Or, suppose that individuals varied in their persuasiveness, and could hope to attain results they desire, while the decision-making process as a whole is still no better than random in attaining justice / the common good (or whatever non-procedural standard for the assessment of outcomes one prefers). Why should persuasiveness be given special importance in social choice? “The idea of fairness to views is difficult to understand without assuming that the goal is a deliberation or outcome that is more responsive to the genuine balance of applicable reasons” (96).
1. I think David is right that Cohen stretches the idea of democracy too far, but I also think that there is something to Cohen’s argument. Cohen didn’t simply stipulate that “democracy” as he conceives of it includes qualified acceptability. He tried to offer an argument that a QAR was a precondition for democratic deliberation. His main example was religious freedom. Given the overriding importance people place on religious obligations, forcing people to pray or not to pray in a particular way denies them equal standing as citizens, or “full membership” (Cohen 1996, 103). Yes, they could continue to exercise the full rights and liberties of citizens if they were willing to respect the law, but this would mean abandoning their faith. If the majority cannot democratically kill or enslave the minority, perhaps it cannot democratically curtail religious liberty. The majority might impose such policies, but even if popular, enslavement and religious intolerance would still be inconsistent with the ideal of free and equal citizenship. This inconsistency isn’t as clear in the case of restrictions on religious liberty as it is in cases of killing or enslavement of the minority, because dissenters do have the option of converting, but this option isn’t much of a choice. In short, if the idea of democratic citizenship involves an anti-caste conception of equality, then religious liberty is plausibly a precondition of democracy.
I think this argument has some plausibility. However, I also think that it works only for certain core rights. It does not justify a blanket exclusion of reasonably contestable reasons, no matter the kind of policy in question. The mere fact that a reasonably contestable reason is necessary to justify a policy does not imply that someone’s basic rights have been violated. Someone who justifies more generous redistribution of wealth on grounds of Christian charity is not violating my religious liberty, nor excluding me from membership. Not every form of differential treatment can count as a denial of my equal standing as a citizen, even if justifiable only on reasonably contestable grounds. There might be democratic grounds for arguing that “constitutional essentials” must meet a QAR, but any more expansive requirement of qualified acceptability would need an independent (liberal) rationale. And even with respect to constitutional essentials, what matters, on the democratic argument, is not what ideas are invoked but whether there is or is not religious liberty. So I think there is more to Cohen’s argument than David allows, but at the end of the day David is right that Cohen is taking substantive liberal values and relabeling them as democratic.
That’s not much of a question, but I would be interested in knowing whether the modified Cohen argument, the more modest claim that religious liberty is a precondition of democratic deliberation, would count as intrinsic democratic proceduralism.
2. More generally, I guess my question would be why someone couldn’t dispense with all claims about justice or correctness in outcomes, but accept that individuals have interests they want to defend in the setting of policy, and so argue for democratic decision-making on the basis of a conception of equality. We might call this “fairness to interests”, in contrast with “fairness to views”, though we’re talking about fairness to interests in decision-making, not in decisions made. This would seem to be the simplest kind of intrinsic democratic proceduralism. The previous chapter ended with the consideration of this kind of a view, on p.83 – equal (positive) sensitivity to voter preferences. If Chapter 5 is supposed to have “cast serious doubt” on the ambition of normative theory to avoid appealing to procedure-independent standards, doesn’t “fairness to interests” deserve more attention? Of course, this view wouldn’t have much place for deliberation, and the point of the chapter was to criticize the deliberative flight from epistemic substance, but I’m wondering if I’ve missed a step in the argument. No plausible theory avoids all appeal to substantive values(Chapter 4), and the leading theories that claim to appeal to substantive values only in the justification of procedures in fact contain outcome-standards too (Chapter 5), but the minimal p.83 view still seems to be on the table as an example of intrinsic democratic proceduralism.