Corey Brettschneider argues in Chapter 2 of Democratic Rights that citizens’ status as rulers in a democracy entitles them to claim individual rights based on the core elements of the value theory—equality of interests, political autonomy, and reciprocity. These democratic rights are substantive rights and not just rights of participation. After elaborating how the value theory works to ground substantive rights, Brettschneider closes by considering how two fundamental democratic rights—to the rule of law and to freedom of speech—might be argued for from the perspective of the value theory.
Brettschneider begins the chapter by highlighting a distinction he takes from Habermas’s work. When considering citizens as democratic rulers who claim rights, we ought to consider not just citizens in their capacity as the authors of the laws they live under, but also (and, for Brettschneider, I think, more fundamentally), as the addressees of these laws. As authors, citizens are law-makers. But as addressees, citizens are subject to a demand by the state for obedience to law, and to the threat of coercion if they refuse to comply. Brettschneider argues that we must offer a justification to each addressee of the law, one that shows coercion in accordance with that law to be justifiable to him. It is this need to justify state coercion to each addressee of the law that requires that we extend him substantive, and not just procedural, rights.
Although he highlights Habermas’s distinction between citizens as authors and as addressees, Brettschneider takes issue with Habermas’s particular use of this distinction. Habermas attempts to derive the rights of citizens as addressees from the prior rights of citizens as authors. Specifically, Habermas thinks that citizens have those substantive rights as addressees that they would themselves agree to in an ideal democratic procedure. Brettschneider objects that this renders procedural rights more fundamental than substantive rights. He offers an example to show that substantive rights must instead be grounded independently of any procedures. Imagine “Larry Legislator,” a democratically elected representative in a regime that requires all its representatives to remain confined to a cell during their term in office. Brettschneider constructs the example so that being locked up has no bad effects on Larry’s ability to participate democratically: he can communicate with the outside world and take part in democratic debates via a special machine, he has full access to information, and he is released at election time to campaign. But Larry’s situation shows first, that simply guaranteeing his procedural rights is inadequate to ensure his full range of rights; and second, that the scheme of substantive rights enforced in his society is undemocratic (even though it may have been enacted in accordance with the proper procedures). Larry is meant to demonstrate that we need a procedure-independent standard to determine the substantive rights of legal addressees.
Brettschneider argues that there are other problems with giving sole priority to citizens’ rights as authors of the law. Some citizens are unable or unwilling to participate in the democratic process (think of minors, resident aliens, tourists, and the politically apathetic), but they still have substantive rights against arbitrary coercion in their capacity as addressees of law. For these reasons, Brettschneider argues against Habermas that we should keep the two bases for rights—citizens’ status as authors of law (which grounds procedural rights) and their status as addressees of law (which grounds substantive rights)—distinct: we should not grant one priority over the other. Thus, we might say that whereas Habermas opts for a “one-track” model of rights, where substantive rights are grounded in the priority of procedural rights; Brettschneider goes for a “two-track” model, where substantive rights are grounded separately, and each brand of rights is given equal status.
What grounds citizens’ substantive rights, then, if not their position as equal participants in democratic procedures? Brettschneider suggests it is their equal susceptibility to the impact of law. All addressees of the law—minors, nonparticipating citizens, resident aliens, even tourists—are liable to state coercion. For Brettschneider, this requires that we ensure the laws treat them “in a way consistent with their status as free and equal rulers” (32). We should adopt a Rawlsian principle of reciprocity that requires us to give a justification to each legal addressee, one that takes into account his particular social position, perspective, and point of view, and shows the law treats him as free and equal. This requires extending him substantive rights. Ideally, of course, citizens will also affirm these substantive rights through their democratic procedures; but the rights are grounded in a separate ideal of the justification of state coercion, not in the democratic procedures themselves.
Having established that the basis of substantive rights lies in the need for justification of state coercion, Brettschneider turns to a discussion of how we might interpret two fundamental democratic rights—to the rule of law and to free speech—in accordance with this general theory. Brettschneider argues that rights against ex post facto laws and bills of attainder are not best explained through a proceduralist account—like the one offered by James Madison—that emphasizes how powerful factions could use these tools undemocratically. It is true that ex post facto laws and bills of attainder do allow factions to wield power undemocratically—say, by singling out members of minorities or of an opposing party for prosecution—but that is not what is most fundamentally wrong with them. Instead, what is most objectionable is the way these measures treat legal addressees: they selectively punish legal subjects, thereby failing to recognize their equality; they undermine subjects’ ability to plan their lives secure in knowledge they won’t be subject to arbitrary state coercion, thereby jeopardizing their autonomy; and (especially in the case of bills of attainder) they eliminate subjects’ ability to contest their punishment before an impartial court and to have public access to the reasons that justify their coercion.
In the case of free speech rights, Brettschneider similarly argues that these rights can be better accounted for by focusing on the claims of legal addressees than on either epistemic or procedural considerations. To show that freedom of speech is not justified on epistemic grounds, Brettschneider considers arguments like Mill’s that claim free speech promotes the discovery of truth. He claims that even if a study were to show that free speech distorts rather than clarifies truth, we would not rescind these rights, which shows that they are not grounded epistemically. Likewise, if a scientist were to prove that citizens’ voting their conscience leads to incorrect or unjust outcomes, we would not force citizens to vote in the “correct” way. This shows that freedom of conscience is not justified epistemically either. And although many thinkers justify free speech rights on the proceduralist ground that it aids democratic deliberation, Brettschneider contends that even citizens who do not vote or debate have equally important free speech rights, in their capacity as listeners and as addressees of law. Those who do not participate are entitled to understand the impact of the law, to know what is being done in their name, and to be able to reason with others about it. Citizens are owed free speech rights not (or not only) in their capacity as democratic participants, but as subjects of coercion who have a right to be given reasons for that coercion and to debate and contest these reasons.
Finally, Brettschneider allows that there may be non-democratic values (like security) that sometimes conflict with these basic democratic rights and which may even require that we suspend them in a state of emergency. But he firmly argues that were that to happen, we should view the abridgment of these rights as the suspension of democracy itself, not as a properly democratic act. Security is not a core democratic value, but instead a separate value to be balanced against these democratic considerations.
1. How successful is “Larry Legislator” as a critique of Habermas? Habermas suggests that a valid law is one that all citizens could agree to in a rational discourse. Grounding the substantive rights of legal addressees in the outcome of a rational discourse is not the same as accepting the outcomes of actual discourses and democratic procedures, like the ones in Larry’s society. It is certainly true that Habermas is not as clear about what the co-originality thesis entails as one might like. But when Habermas introduces the co-originality thesis, he argues that it depends on two ideas: the discourse principle, which stipulates that valid laws have to be ones all citizens could consent to in a rational discourse; and the idea of legal form, which stipulates that citizens must regulate their interactions by general and equally applicable laws, which establish private rights. He says that, taken together, these two ideas establish a “right to the greatest possible measure of equal individual liberties” (BFN, 122). It is true that the particular scheme of liberties will have to be elaborated by democratic constitution-making and legislation, but there is certainly room for suggesting that Larry’s liberties are both a) unequal and b) are not as extensive as they could be. Habermas also supports judicial review of legislation by constitutional courts, so it might be possible to interpret him as closer to the position defended by Brettschneider than it would at first seem.
2. What is especially democratic about the rights of legal addressees? One point Brettschneider addresses is that minors, resident aliens, and even tourists all possess the substantive rights of legal addressees. These are all people who do not have the right to participate in the state’s democratic procedures (and some of them may never gain such participation rights). So having participation rights in a state, it seems, is not a condition for having substantive rights there. Treating citizens as “free and equal rulers” requires treating them as “as if” rulers (those who could hypothetically consent to the state’s laws), not “real” rulers (those who actually have a say). But consider, then, the case of a non-democratic government like a monarchy: the laws of this government address their subjects in the very same coercive fashion as do laws in a democracy. And if having substantive rights does not depend on having participation rights, then it would seem that the subjects of the monarch have substantive rights too. After all, they are coerced by the law, so they should be “as if” rulers. We could also easily imagine, I think, that a constitutional monarchy might offer robust protections of the two fundamental rights—to the rule of law and to freedom of speech—considered here. If this line of thought is correct, then the substantive rights of legal addressees may rest on the mere fact of coercion through law—which occurs in any legal state—and not on democracy. In other words, are substantive rights the rights of democratic citizens, or are they rights of legal subjects in general? (Having read ahead, I think that Brettschneider’s remarks on his definition of the “citizen” in Chapter 3 will bear on this question, though I am not sure they fully resolve it).
3. Brettschneider might grant that just like tourists and resident aliens in a democracy, the subjects in a monarchy are owed substantive rights as addressees of the law. But he might add that (unlike tourists and resident aliens) they are also owed procedural rights: the monarch should democratize the state in order to allow his subjects a say in the laws under which they live. My question is: what is the reason for extending these subjects procedural rights once their substantive rights are guaranteed? Does the fact that one is subject to state coercion require that one enjoy both procedural rights and substantive rights? (If so, then why don’t tourists, resident aliens, and even immigrants turned away at our borders have rights of participation in our elections? They are all subject to coercion by our state). Or are procedural rights required for a reason that is distinct from the fact of state coercion? Answering this question would shed light on whether the rights of authors and addressees of law are derived from a single fundamental value or rather from two separate, distinct values.