Brettschneider Reading Group, Chapter 1

Welcome to the first installment of our reading group on Corey Brettschneider’s Democratic Rights: The Substance of Self-Government. This post will focus on Chapter 1, The Value Theory of Democracy.

Summary

This chapter begins by describing the view, commonly held among liberal theorists, that there is a conflict between democracy and individual rights. On this view, democracy is defined by a set of political procedures, whereas rights are substantive, or “procedure-independent,” constraints on the outcomes of those procedures. This view leads to the following puzzle in democratic theory:  If democratic procedures confer legitimacy on their outcomes – because the people who are subject to those outcomes have also authorized them – then how can those outcomes be limited by a set of procedure-independent, or substantive, rights? This is what Brettschneider calls the “problem of constraint” (8).

According to Brettschneider, this problem can be resolved by offering an account of democracy that incorporates both procedural and substantive values. He identifies three core values as central to a democracy in which citizens are seen as free, equal and reasonable. These values are:  equality of interests, political autonomy, and reciprocity. Together, they serve as the basis for what he calls the value theory of democracy (9).

Brettschneider claims two advantages for the value theory over the conventional liberal view. First, unlike theories based on natural or human rights, his account does not rely on “metaphysical” assumptions about human dignity or personhood. The value theory thereby avoids controversies over what it means to be a human being. Second, the value theory resolves the problem of constraint. Liberal theories must explain why substantive rights ought to trump otherwise legitimate democratic outcomes. But according to the value theory, there is no contradiction between rights and procedures. Both are expressions of underlying democratic values.

Before elaborating on the value theory, Brettschneider distinguishes and rejects two competing accounts of democracy:  pure proceduralism and epistemic theories. Turning first to pure proceduralism, he argues that, without acknowledging it, proceduralists rely implicitly on procedure-independent, or substantive, values to explain why procedures confer legitimacy on outcomes. Consider, for example, simple majoritarianism. Why should citizens who are disadvantaged by majoritarian decisions accept their legitimacy? One answer is that majoritarianism allows for the greatest possible participation in the political decision-making process. But if the majority decided to disfranchise a large number of citizens, that outcome would conflict with the underlying reason for accepting the majoritarian procedure. Thus, absent some procedure-independent constraint, majoritarianism is self-defeating. It may produce results that undermine the reason given for its power to confer legitimacy (13).

The same basic criticism applies to more sophisticated forms of democratic proceduralism that attempt to correct for the mistakes of simple majoritarianism by requiring that certain preconditions be satisfied. Procedural theories vary depending on how they specify these preconditions. The usual candidates include:  voting rights (Waldron), rights to free speech (Meikeljohn and Ely), also welfare or subsistence rights (Pateman), and perhaps even rights to privacy (Michelman). But regardless of which rights count as preconditions, proceduralists must explain why participants in a democratic system cannot vote to reject them.

At this point, Brettschneider argues, proceduralists are faced with something of a dilemma:  either they must give up the idea that preconditions are necessary for legitimacy, or they must admit that procedures confer legitimacy only when they do not undermine values (or rights) that are procedure-independent. The former view is normatively unacceptable; the latter effectively concedes that substantive rights are a fundamental part of the democratic ideal. (Brettschneider applies the same argument to Habermas’ theory of deliberative democracy. I’ll leave it to the Habermasians among us to comment on whether there might be ways to respond to this criticism.)

After criticizing pure proceduralism in its various forms, Brettschneider next considers procedure-independent theories of democracy. In particular, he focuses on epistemic theories, which value democracy because it produces outcomes that conform to the truth, or perhaps the truth about what is good or just. When democratic procedures fail to produce true (or just) outcomes, they may be overridden (18). Thus, epistemic theories are not embarrassed by the dilemma facing pure proceduralists. Because they assign democracy a role subordinate to a set of procedure-independent values, they do not have a problem explaining why democratic outcomes should sometimes be trumped by substantive rights and values.

But epistemic theories aren’t free from their own difficulties. They have to explain why procedure-independent values are more important than democratic decisions, which may have the best claim to represent the popular will. More specifically, those who would appeal to a comprehensive conception of the good to constrain or override democratic decisions must explain why imposition of that conception is legitimate in a democracy where citizens may reasonably disagree about such matters. Brettschneider claims that “subordinating democratic institutions to one particular comprehensive view would impose external rule on citizens who, reasonably, did not share that view” (19).

If pure proceduralism and epistemic theories of democracy cannot resolve the problem of constraint, what is the alternative? Brettschneider argues that a democratic theory must appeal to substantive values that respect the “sovereign status” of all citizens, which refers to their status as self-rulers. To explicate this view — the value theory of democracy — Brettschneider invokes Lincoln’s definition of democracy as “government of the people, by the people, and for the people.” Taking each phrase in turn, he interprets “government of the people” as a claim about who may authorize the exercise of state power, namely, those subject to it; “government by the people” suggests that those who authorize state power must also play a role in deciding how it should be used; and “government for the people” refers to the idea that political outcomes ought to respect the interests of citizens, especially their interest in maintaining their “sovereign status” as authors of the law.

Specified in this way, the value theory of democracy has both procedural and substantive aspects. To show this, Brettschneider gives the example of an unelected colonial government, which is undemocratic because it does not permit government by an indigenous people. The people are neither the source of its purported authority, nor participants in its decision-making processes. Furthermore, even if they were included in the political process, the colonial government would still not be “for the people” to the extent that it fails to promote their interests. Thus, the colonial power is anti-democratic both because it excludes “the people” from the democratic process and because it does not respect their interests as individual citizens and self-rulers.

Having presented the value theory of democracy as a complex procedural and substantive ideal of self-governance, Brettschneider next describes the theory’s three “core” values:  equality of interests, political autonomy, and reciprocity.

1. Equality of interests refers to the interests of reasonable citizens, rather than to interests as defined by any comprehensive view. This value requires that every citizen’s interests be given equal weight. This has both procedural and substantive implications. Procedurally, it requires that each citizen be given one, and only one vote. Substantively, it requires arranging political institutions in ways that treat citizens as having equal status.

2. Political autonomy requires that individual citizens be allowed to decide for themselves how to exercise their share of political power. A procedure that forced citizens to vote for particular outcomes would violate this conception of political autonomy. Brettschneider also suggests that this value has substantive implications for restrictions on ex post facto laws, which would impair the ability of citizens to plan for the future.

3. Reciprocity describes a commitment to the public justification of political decisions. Citizens must give reasons based on “common values of autonomy and equality to discern the limits of coercion” (25). Brettschneider describes reciprocity as an “organizing value” because it describes how the core values of equality and autonomy ought to be applied in political decision-making. But as with the other values, reciprocity may have procedural implications – it may recommend the use of procedures in which reason-giving features prominently (e.g., deliberative polling) – and it may suggest substantive constraints to prevent arbitrary legislation.

This chapter concludes by contrasting the value theory of democracy with procedural and epistemic views. Whereas proceduralists hope to avoid reliance on substantive values, the value theory accepts that procedure-independent standards must play a role in explaining democratic legitimacy. But at the same time, the value theory avoids the sectarianism of epistemic theories by appealing only to core values grounded in the idea of self-governance.

Questions

Here are a few questions to get discussion going:

1. Towards the beginning of this chapter, Brettschneider claims two advantages for the value theory of democracy. The first is that the theory doesn’t rely on a metaphysical account of substantive values or rights. This is meant to distinguish the value theory from epistemic theories. But I don’t see why an epistemic theory must adopt criteria of legitimacy drawn from metaphysical or otherwise sectarian comprehensive views. For example, a political liberal (in the Rawlsian sense) might argue that democratic procedures are justified under ordinary circumstances because they will tend to generate outcomes that conform with a range of reasonable political conceptions of justice. But when democratic outcomes can’t be seen to conform with any reasonable political conception, then they ought to be overridden. Given the criticism of epistemic theories presented in this chapter, I’m not sure what would be wrong with this epistemic account. It isn’t metaphysical or sectarian, at least not in any way that distinguishes it from the value theory of democracy. Is there any reason to think that epistemic theories are intrinsically sectarian? If not, are there other reasons to favor the value theory over a non-sectarian epistemic theory?

2. The second advantage of the value theory is that is resolves the problem of constraint, which just looks like a slightly more abstract description of the counter-majoritarian difficulty. In any event, I’m not sure I see why the value theory resolves the problem rather than simply relocating it within the ideal of democracy. The proceduralist will surely say that, on the value theory, there will be conflicts between allowing majorities to have their way and, say, respecting the equal interests of citizens. And when political autonomy conflicts with equality, why should that conflict be resolved in a way that promotes equality at the expense of political autonomy? There is still a problem of constraint; that is, there is a problem of determining when it is legitimate to override the decisions of a majority. The value theory makes that problem internal to democratic theory, but the problem seems to remain.

3. To connect this chapter to another discussion happening here on Public Reason, why is the value of reciprocity explicated in terms of common values or reasons (see p. 25)? Suppose reasonable citizens agree on political outcomes, but not on the reasons for those outcomes. Is there any reason to suspect that their agreement violates the idea of reciprocity? Or, put another way, is there any reason to specify the idea of reciprocity in a way that excludes the legitimacy of their agreement?

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One Response to Brettschneider Reading Group, Chapter 1

  1. Jordan Dodd says:

    Thanks to Micah Schwartzman for arranging this reading group. The book’s a nice choice. I’m hoping to read and participate in the discussion the whole way through.

    Here are some thoughts on Chapter 1 – well, just on section 2 (‘Procedural Democratic Theories’) of Chapter 1. There’s a lot to think about in the chapter. But we’ll be talking about components of the proposed value theory of democracy for a while. So maybe this is a time to look at some of the negative argument Brettschneider (hereafter ‘CB’) provides.

    CB says that in section 2 “I demonstrated the weakness of procedural theories that fail to recognize their reliance on procedure independent standards”. I’m skeptical. Let’s focus on the more sophisticated form of pure proceduralism that CB discusses. CB writes: “[S]ome prominent theorists have developed a view I call ‘rights as procedural preconditions’ to democracy. On this account, the preconditions necessary for citizens to participate as equals must be guaranteed in a legitimate democracy. Supporters of these theories [e.g., Habermas] often claim, therefore, that the rights they defend are procedural, not substantive, because they only serve to enable a good democratic procedure.” Let’s call these views ‘procedural preconditions theories’ (PPTs).

    CB raises two worries for PPTs. “First, it is possible that an empirical study could show that participation was causally unaffected by the preconditional rights these theorists have posited. The result of such a study would undermine purely preconditional defenses of democratic rights. Second, participants within a procedure who are guaranteed preconditional rights might make a decision to jettison the very rights they have been guaranteed. … Such a circumstance is problematic for the preconditional theorist because it forces her to claim both that, on the one hand, the source of legitimacy is the actual participation in the procedure, and, on the other hand, that preconditional rights are necessary for the procedure to be legitimate. The problem here is that the view is supposed to be justified fundamentally on procedural grounds. However, this would mean that those participating in the procedure could decide to revoke the preconditional rights this theory posits.”

    My gut reaction is that if these worries work at all then they only work against very strong versions of PPT. Maybe Habermas’s theory is vulnerable to the worries. But that’s not totally clear to me. Either way we can imagine versions of the PPT strategy that say something like this:

    PPTs needn’t – and shouldn’t – take the strong view that there is some set S of preconditional rights that must be satisfied in any given democratic political community in order for citizens in that community to be able to participate as equals in democracy (and, thus, that must be satisfied in order for a community to have a legitimate democracy). Instead PPTs should say that the job of theory is to suggest a well worked out, but nonetheless tentative, set S of possibly necessary preconditions for fair democratic procedures. In the practical sphere S would serve as a starting point: an initial statement of what preconditions must be established in a political community in order for there to be a legitimate democracy in that community. But, or so this sort of PPT view would go, S could be amended once established in a political community. For example, if some community that has taken on S decides that some member of S is jettisonable or decides that S needs adding to, then that community can vote to amend S for S*. And S* could likewise be supplantable by S**, S** with S***, and so on.

    Many of the details here can be worked out in various ways. But the main idea is that it seems like an open option for friends of PPT to take on a softer stance about the set of preconditions that they prescribe. Instead of saying that the set is necessary, they can say that the set is possibly necessary (or maybe better: plausibly necessary). This softer stance then leaves open saying, in a manner speaking, that it should be left in the hands of the people to use and then trim or add to the intially theorized set come what may.

    This sort of softer PPT view seems to avoid the problems CB raises. The particular softer PPT view we’re imaging can say, without facing a quandry, (vs. CB’s first worry): If an empirical study ends up showing that some member of S is jettisonable, then it’s open to any political community to replace S with S* (either as its actually accepted set of preconditions or as the set of preconditions that it’s trying to establish). Also, intuitively, if confronted with relevant empirical evidence, any paritcular softer PPT view can self-amend its proposed tentaive set of plausibly necessary preconditions. Similarly, as noted above, the softer PPT view can say without facing a quandry (vs. CB’s second worry): If some political community opts to jettison some member of S for some reason, it can straightforwardly move by its extant procedures to replace S with S*. After all S is just, or just aims to be, a well worked out but tentative starting point.

    It’s worth emphasizing that where the softer PPT is ‘softer’ is on the precondition front and not on the pure proceduralism front. That is, the softer sort of PPT can say – like the harder sort of PPT view that CB considers – that the sets of precondition rights that it proposes (as well as any distinct sets that a political community moves to) are procedural rights because (or in the sense that) they only serve to enable a good democratic procedure. The sets are, ex hypothesi, made up just of whatever is agreed at a certain time to be plausibly necessary for fairness in democratic procedures.

    If the sort of softer PPT view that I’m sketching is plausible, then it seems like fans of such view can defend the preconditions strategy without, contra CB’s criticism of hard PPTs, “abandoning the idea that procedure serves as the fundamental locus of democracy.”

    This is all just a sketch of a proposal, of course. But the spirit of the proposal seems intuitive. Also, as hinted at above, once we roughly mark out one way of developing a softer version of PPT, it seems intutiive to think that there’s an array of ways that softer PPTs can be developed that skirt CB objections.

    None of this is to say that it isn’t fair enough that CB focuses on strong / hard versions of PPT. Philosophers tend to defend strong versions of views. So it’s natural to focus on such versions in critique. But it’s not obvious to me that fans of the PPT strategy have to or should take the strong / hard line that’s CB’s focus.

    In a similar vein though, it’s also not obvious to me that CB needs his arguments against pure proceduralism to go through in order to motivate his project in general. There’s plenty of room in logical space for CB to develop his value theory of democracy as an alternative to (among others) pure proceduralisms even if we allow that pure proceduralisms are still a live option.

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