Brettschneider response to comments on Chapter 1 of Democratic Rights

I would like to thank Micah and Eric for organizing this group.  I would also like to thank Micah for his very careful and insightful summary of Chapter One, “The Value Theory of Democracy.”  I’ll take his second question first.  Micah is right to say that the value theory rejects a sharp distinction between democracy and liberal rights but that it relocates a tension between democratic procedures and substantive rights within the ideal of democracy.  The value theory does not resolve the tension between democracy and substantive rights in the particular sense that it gives neither an absolute weight to either democratic rights or democratic procedure.  Ideally, on my view, democratic procedures will affirm democratic outcomes.  But non-ideal circumstances will arise where democratic procedures violate democratic rights.  I examine such non- ideal cases in chapter seven, which Alon will comment on.  I argue there in favor of a balancing approach between democratic substantive rights and democratic procedures when these non-ideal circumstances arise.

So, Micah is right to say that the value theory does not resolve the tension between democratic procedures (as opposed to democracy) and substantive rights.  However, if this particular tension is rightly subsumed under a set of core democratic values, the specific problem of constraint, as opposed to the tension between democratic procedures and democratic rights, is resolved.  The problem of constraint arises because it is assumed by those who have posed it (Bickel being the most famous), that any account that would limit the outcomes produced by democratic procedures is a constraint on democracy.  This assumption is also shared by procedural democrats. However, once we subsume the tension between substantive rights and democratic procedure under an ideal of set of democratic values, the thrust of the objection, namely that any appeal beyond democratic procedure is itself a violation of democracy, is resolved. We should not think apriori that any constraint on democratic procedures is necessarily undemocratic.

Micah also raises a question about epistemic views that avoid comprehensive theories.  The most obvious example of such a view is my colleague David Estlund’s.  Dave and I were writing our books at the same time and we have often discussed our similarities and differences. I think the tensions between the views are more fruitful than hostile but it is worth pointing to a couple of possible distinctions.

First, because Dave formulates democracy itself in procedural terms, at least for the purposes of his book, he is happy to look beyond democracy for grounding to democratic procedures based on their ability to produce outcomes that meet a procedure independent standard.  This procedure independent standard is not comprehensive but it is ultimately grounded in an account of truth and not necessarily in an account of democracy.  In contrast, I am concerned to ask whether we should understand the democratic ideal itself in a way that goes beyond the procedural.  According to the value theory both the procedure independent standard, the core values, as well the substantive constraints on democratic procedures, namely substantive rights, should be understood as part of an ideal of self-government.  This is not incompatible with an account of these standards and limits as true in Estlund’s sense; it’s just not necessarily entailed by Estlund’s view of the truth of these independent standards.  I tried to clarify in footnote 23 of this chapter (p. 18) that Dave’s theory avoids a comprehensive doctrine in the way he defines “truth” and I think Micah is right to say that this is likely enough for him to avoid the charge of sectarianism.  Yet, Dave’s account does not attempt to resolve the problem of constraint.

Second, there is a difference in how each of us views the role of democratic procedures.  It is unclear to me that on Dave’s view there is any value apart from their ability to produce good outcomes to such procedures. Again, this is an issue that will arise again in Chapter Seven, but I read Dave broadly to be in what I call the “pure outcomes” camp.

More generally, I think my own theory could potentially bolster Dave’s epistemic account.  If it turns out that democratic procedures have epistemic value, then there is a defense of them not only on the grounds that they are truth promoting but that they tend towards outcomes which are themselves rightly understood as democratic.  I don’t rely, however, on an assumption of the epistemic value of democratic procedures in thinking about the way in whether substantive rights alongside democratic procedures are themselves part of an ideal of democracy. So, the theories potentially are compatible but they are not reliant on one another.

I’d also like to thank Jordon as well for his careful attempt to build up procedural precondition theories and I think this is an important line of thinking.  Something like Jordon’s suggestion that procedural preconditions are revisable  is needed to potentially save this kind of theory and to avoid the kind of internal contradiction I identify. I argue in the next chapter, however, that theorists like Habermas do not seem to go this route.  In sum, procedural precondition theories must chose between the kind of theory Jordon raises and an account that posits standards independent of democratic procedures, standards that on my view can themselves be understood to be democratic.  I wonder though on Jordon’s view how “soft” he would be willing to make the theory.  For instance would he allow free speech rights or the right to vote itself to be jettisoned?

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2 Responses to Brettschneider response to comments on Chapter 1 of Democratic Rights

  1. Jim Wilson says:

    Thanks, Corey, for this helpful response, and thanks also to Micah for organizing this group and for getting it started with some good questions.

    I thought I’d offer a small further thought on Micah’s second question, the question about whether Brettschneider (henceforth CB) merely “relocates” the “problem of constraint” within the ideal of democracy, rather than actually resolving the problem. It’s a fair question, though I think CB (both in the book and in his post here) admits that his theory won’t eliminate all tension between procedural and substantive democratic values. CB emphasizes that this is a tension within democracy, and therefore that favoring democratic outcomes over democratic procedures in certain cases may not be anti-democratic, even if it may be, for example, “counter-majoritarian.” (By the way, I think this might ultimately be how Alexander Bickel sees things. One way of reading The Least Dangerous Branch is as an attempt to describe a role for the U.S. Supreme Court that would balance our commitment to democratic procedures and democratic outcomes. After all, Bickel ultimately supports a certain kind of judicial review, and I don’t think he sees himself as advocating for an assertion of non-democratic values against democratic procedures. But that may be a discussion for another time.)

    One way to take Micah’s question would be to ask whether it matters if we describe the relevant tension as a tension between democracy and other values (roughly, as the “problem of constraint” has it), or, rather, as a tension within the democratic ideal. One reason it might matter is that a proper understanding of the tension might lead us to different results in specific cases. I think we’ll have a better idea of whether that’s true of CB’s approach or not after reading and discussing subsequent chapters, so I’ll hold off on that point for now.

    A second way a “relocation” of the tension might matter is simply by describing the tension better—i.e., in a way that gives a more accurate account of the values at stake. Let’s say that that this re-description doesn’t lead us to any different conclusions about what to do in given cases. Might the re-description still be valuable for giving us a better appreciation of our situation? Having a clear view of the values that we advance or sacrifice in making certain political decisions, and why those decisions are justified, may be valuable in its own right. Generally speaking, this seems like the goal of “philosophy-as-reconciliation.” I think this is a less significant goal than the basic practical aim of figuring out what to do, but that’s certainly not to say that reconciliation doesn’t matter.

    So maybe relocating the problem of constraint within the ideal of democracy could give us a better appreciation of the political situation in which we find ourselves. Whether CB’s account does that, obviously, is a big substantive question, and one he tries to vindicate throughout the book. But I think that if he answers that question affirmatively, that would be a major accomplishment, even if he didn’t give us any reason to resolve differently any particular practical dilemmas. None of this is to say, of course, that CB should limit himself to this goal—obviously the book’s argument means to have practical consequence as well. But that needn’t be its only contribution.

  2. Jordan Dodd says:

    “I wonder though on Jordon’s view how “soft” he would be willing to make the theory. For instance would he allow free speech rights or the right to vote itself to be jettisoned?”

    This is a good question, Corey. I’m thinking on my feet here, but here’s a potentially interesting way that the soft PPT view could be developed when pressed on the above:

    Fans of the soft PPT view can plausibly try to lean on a distinction. They can submit that there’s a conceptual distinction being trying to specify what preconditions are necessary for fair democratic procedures and trying to specify what preconditions are necessary for democratic procedures in general (be they fair or unfair). That there is some distinction of this sort seems intuitive. For example, it seems open to a deliberative democrat to say that some aggregative democratic views do succeed in specifying terms for democratic government, just not terms for fair democratic government (e.g., maybe on the thought that general enfranchisement + regular multi party elections is more or less sufficent for democratic government but that strong additional conditions (e.g., that policies endorsed via govenment be mutually justifiable and not simply the products of majority decision making) are required for fair democratic government). If the above sort of distinction is available to draw on, then fans of soft PPTs can plausibly say: As for the question of preconditions for fair democratic procedures, we restrict ourselves to specifying a set of plausibly necessary preconditions; but as for the question of preconditions for democratic procedures simpliciter, we endorse no such restriction and are happy to try to specify what the necessary preconditions (e.g., perhaps voting rights) are for merely qualifying as a democratic procedure. (Naturally, if some right A is a precondition for B being a democratic procedure then A is also a precondition for B being a fair democratic procedure. So on the way I’m imagining developing the soft PPT view, the scope of the question of preconditions for fair democratic procedures is to be understood in a restricted sense: it’s the question of what, if any, preconditons there are for fair democratic procedures that aren’t more fundamentally just preconditions for being a democratic procedure simpliciter).

    What are the prospects for this potential development of the soft PPT view? I’m not sure. But it’s worth trying to answer at least the following question, one that bears on that prospects question. If fans of the soft PPT view opt for the preceding tact, do they then immediately run – by virtue of taking a stand on what preconditions are necessary for democratic procedure simplicier – right back into versions of the problems identified in Democratic Politics for hard PPTs?

    It’s not obvious that they do. In response to the analgoue of the problem of empirical rejection, soft PPTs that take the preceding tact can say that the question of what the necessary preconditions are for x merely being a democratic procedure isn’t an empirical issue. After all it’s plausibly not. It may just be a conceptual issue – an issue that can only be settled by thinking about the concept of democracy. This, or so the view would go, is distinct from the issue of what rights, if any, might be necessary preconditions in different political communities for fairness in democratic procedures to be achieved therein – an issue whose solution might well be highly context / community sensitive and, so, be sensitive to empirical findings. In response to the analogue of the problem of jettisoning, soft PPTs that take the preceding tact can say that while a political community might actually opt to jettion some right that is indeed a necessary precondition for democratic government, all this entails is that the community is democratically moving to jettison its democracy. Whenever some such thing occurs (as it may do in e.g., some ‘wartime executive powers’ cases) it’s probably apt to be a sad state of affairs. But it’s not a quandry for soft PPTs that take the tact we’re considering. They can coherently say both (a) and (b): (a) for whatever precondition rights a public might choose to jettison, if those jettisonings are undertaken by democratic means then they are legitimately undertaken; (b) none of this requires that some legitimately undertaken jettisonings don’t conceptually entail that a shift from a government’s being democratic to its being non-democratic is being effected.

    This is just a basic sketch of a possible option, obviously. If there’s no good distinction between ‘preconditions for fair democratic procedures’ and ‘preconditions for democratic procedures’ for fans of the soft PPT view to try to appeal to, then it’s open (among other options, perhaps) to fans of the soft PPT view to just try to stand tall and say that in principle anything that’s suggested as a plausibly necessary precondition for fair democratic procedures is open for jettisoning. It’s at least not obvious that saying this would be a bad move. For one thing it’s nicely epistemically cautious. Obviously, it’s quite something to claim to have discerned that some particular right really is a necessary precondition for fairness in democratic procedures. Maybe it’s prima facie more justfiable to opt instead (as the soft PPT view seemingly does in general) to make a version of the preceding necessity claim that’s just preceded by an epistemic modal – e.g., ‘I claim to have discerned that such and such is plausibly a necessary precondition for fairness in democratic procedures’.

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