Many thanks to Anna for another very careful summary and an important set of questions. In Chapter One and our discussion about it I emphasized why the value theory forces proceduralists to make a choice: Either they can acknowledge that there are values and outcomes that constrain procedures or they must give up on the idea that there are democratic rights that cannot be jettisoned. It strikes me that Habermas tries to avoid this dilemma in his repeated insistence that his is a procedural account of democracy at the same time that he proclaims the importance of rights of addressees. Anna suggests that Habermas’ notion that “legal form” and the “discourse principle” are co-original might suggest that he is close to my own view that democratic procedures are at times constrained by some democratic outcomes. On such a reading Habermas would have to give up on procedure as the normative grounding of democracy. I think that this is likely the best reconstructed reading of Habermas, but it is a concession that many Habermasians do not want to make. On such a reading, procedure has a role in but it cannot serve as the fundamental normative grounding of a theory of democracy. Charles Larmore’s piece “The Foundations of Modern Democracy: Reflections on Jurgen Habermas,” is on point here and suggestive of why Habermas himself tries to resist such a move. I would be interested in hearing from others whether they read Habermas as endorsing something like the value theory or whether he might go the kind of route that Jordon Dodd was suggesting in our discussion of the previous chapter.
Anna asks in her second comment/question whether the idea of justifying coercion to addressees is itself a democratic notion. For instance, in monarchy subjects can be treated “as if” they are rulers. It is certainly right to say that the rule of law is an ideal not limited to democracy. For instance, Hobbes arguably saw the value of the rule of law but was no democrat. It is also right that non-democratic regimes might protect rights of addressees. But I take my question about whether democracy requires the rule of law and related rights to be distinct from whether the rule of law requires democracy. Even if there might be law without democracy, my point is that ideal democracy requires the rule of law and the rights that we associate with it.
Thanks too to Alex for his helpful and related comment. Alex importantly highlights why the example of Larry Legislator (Larry enjoys procedural rights but is locked up without justification) serves to generate intuitions about what is lacking in exclusively procedural theories of democracy. As I see it, the example of Larry Legislator seems odd precisely because Larry is given procedural but not basic substantive rights. It therefore serves to support the view that if we begin with an ideal of democracy as our starting point, and that ideal includes democratic procedures, that we are also normatively committed to at least some basic substantive rights. Anyone thought entitled to decide the fates of others should be thought entitled to at least some personal liberty. As I put it, Larry’s right to decide for others should entitle him to make decisions for himself. I take the arguments too that I offer about rights associated with free speech and the rule of law to suggest that there is a further fit between the substantive aspects of these rights and the idea that rights of addressees should be understood as part of the democratic ideal. I don’t’ object to the theory being called one of “liberal democracy” with the understanding that “liberal” or substantive commitments are normatively entailed by the ideal of democratic self-rule.
I have attempted to show in this chapter and the previous one that democratic procedures commit us to substantive rights. I take Anna’s third question to get us to think, in contrast, about whether a commitment to the rights of addressee’s might entail some argument for democratic procedures. I don’t think my account needs to show that a commitment to substantive rights entails democracy to show that democracy entails a commitment to substantive rights. Off the cuff, it seems less intuitive to me that a right to rule ourselves entails any right to rule others. But there certainly is another important question might be about whether liberalism itself demands democracy. I’d be interested too in whether others thought the argument might move in this reverse direction.