Brettschneider response to comments on Chapter 2 of Democratic Rights

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.

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One Response to Brettschneider response to comments on Chapter 2 of Democratic Rights

  1. Jordan Dodd says:

    Some thoughts on the Larry Legislator argument (LLA):

    First some preamble:

    CB uses LLA to two ends. First, to argue for “the importance of a procedure-independent standard in discerning the democratic rights of addressees”. Second, to argue against Habermas’s pure proceduralism. It’s supposed to do these two things because LLA, CB says, “suggests the importance of a procedure-independent standard in discerning the democratic rights of addressees” – and the notion of such a procedure-independent standard is incompatible with Habermas’s democratic theory. I’ll try to argue that LLA doesn’t achieve either of these ends.

    LLA is an intuition pump – viz. “Larry Legislator is a democratically elected representative in a regime that, due to an ancient tradition, requires its representatives to be locked in a cell during their term in office. The representatives, however, are still entitled to govern from confinement. … If we were to define the democratic ideal solely in terms of participatory freedoms that citizens enjoy as makers of law, we might conclude that there is nothing undemocratic about Larry’s confinement. He retains a set of political rights as a maker of law. But are the conditions that coerce Larry in every other area of his personal life consistent with his status as a citizen? Our intuition tells us that, despite his freedom to participate in making laws, Larry is not living the democratic ideal. If citizens are deemed capable of making decisions for others on the basis of rights of political rule, it should follow that they are capable of making decisions for themselves in the most important matters of their own personal lives. … Larry serves as an extreme example of why a society that does not value the rights of addressees of law enough to guard against arbitrary coercion would violate the ideal of citizens as rulers. This example suggests the importance of a procedure-independent standard in discerning the democratic rights of addressees.”

    A natural way to read LLA is as being a modus ponens argument:

    P1. We have this intuition: Larry isn’t living the democratic ideal;
    P2. If we have that intuition, then the Larry example suggests the importance of a procedure-independent standard in discerning the democratic rights of addressees;
    C. So the Larry example suggests…yadda yadda

    Both P1 and P2 seem challengable to me. Let’s look at P1 first.

    CB’s case for P1 is very quick. That is, CB identifies very quickly what he takes to be the intuition that the Larry scenario pumps. There’s some reason to think that this issue should be addressed a bit more slowly – e.g., since, as the restatement of LLA above suggests, a lot of mileage is being extracted from the precise intuition that CB thinks the scenario pumps.

    So here are some more extended thoughts on the scenario. At a very basic level the Larry scenario seems to pump in me the following thought: It’d suck to be Larry. If I ask myself why the Larry scenario seems to pump this intuition in me, I’m inclined to say: Because Larry’s life lacks some values (e.g., general freedom) that I value. If I ask myself whether the Larry scenario seems to pump any intuition about the government in Larry’s society, I’m inclined to say: Since Larry’s life lacks some values that I value and lacks these values because of acts of government, it seems to me that this government is making some bad calls.

    I’m trying to give straight-up statements of my intuitions in response to the Larry scenario. None of the intuitions so far is obviously equivalent to the intuition that CB says the scenario pumps: that Larry isn’t living the democratic ideal. To unpack CB’s intuition claim a bit, it seems that what CB means by the proposition that Larry isn’t living the democratic ideal is something like that Larry doesn’t have all the rights due him given his status as an addressee of the law. If I’ve got this right, then the question to ask is (… in the most leading way possible): Do I – in addition to the preceding intuitive responses to the Larry scenario – have the intuition that Larry doesn’t have all the rights due him given his status as an addressee of the law? Here I’m inclined to say No. For what it’s worth I also don’t have the opposite intuition – i.e., that Larry does have all the rights… If I try to explain this – it can hard, of course, to explain why one doesn’t have such and such intuition – one reason I come to is that it seems to me a pretty complex matter just what rights someone is owed by virtue of being an addressee of the law. I don’t have many simple intuitions in this domain. Those that I do have seem to just be intuitions that addressees of the law are due certain procedural rights. But either way the Larry scenario mostly just makes me ponder democratic theories. It doesn’t pump in me the clear intuition that CB proposes.

    So one option in face of LLA is just to deny P1. Naturally this is an option in face of any intuition pump. But the bigger point here is that we can have some pretty robust intuitions about the badness of Larry’s lot and the badness of Larry’s government without have the very particular sort of intuition that CB claims we do. Maybe the Larry scenario is better taken as compellingly pumping those intuitions and not the one CB says. A similar point is that there is, I think, some reason to think that the Larry scenario mightn’t be a scenario that’s apt to bring much help on the issue that CB takes it to. If pure proceduralists or, more narrowly, friends of Habermas are just apt to have different (e.g., less settled) intuitions here than CB supposes, then the first premise of LLA isn’t something that should be assumed in a case against, e.g., friends of Habermas.

    Let’s move to P2. Suppose we grant CB P1. Does it immediately follow that the Larry example suggests the importance of a procedure-independent standard in discerning the democratic rights of addressees? Perhaps not. It seems to me that if the friend of Habermas grants P1, she can still appeal to Habermas’s ‘all-affected principle’ to undercut the inference in P2. Roughly put, the all-affected principle (which is embedded in Habermas’s analysis of the necessary and sufficient conditions for x being a fair democratic procedure) states: a legitimate law must be justifiable from the standpoints of all affected by it – i.e., from the standpoints of all addressees of the law (regardless of whether these addressees participate as authors in the discussions or votes leading to the law). The all-affected principle is tightly connected with some of the exegetical things that CB says about Habermas’s view. E.g., it’s a cause of it being the case that for Habermas, in CB’s words, “Consideration of the law’s impact on others … would constrain democratic decisions.”

    Given a subscription to the all-affected principle, it’s not clear that Habermas’s view suffers from the sorts of participation quandries that CB alleges. The all-affected principle seems to give the Habermasian a way to say “how citizens who are unable or unwilling to participate in the political process retain rights against illegitimate coercison”. For the Habermasian, these citizens retain such rights because, since these citizens are amongst the addressees of the laws in their society, the laws in said society are legitimate only if they are justifiable from the standpoints of these citizens. Any potential law that would allow for or require illegitimate coercion of addressees of the law is, thus, strike-downable on simple justificatory grounds. Qua allowing for or requring illegitimate coercison, the potential law is presumably not justifiable from the standpoints of all who would be aftected by it – e.g. from the standpoints of those it would allow or require to be illegitimately coerced.

    Here’s how this point maps across to the Larry scenario. It seems like the Habermasian can grant P1 and then say: What the intuition that Larry doesn’t have all the rights due him as an addressee of the law implicates or tracks is that the extant law in Larry’s society isn’t justifiable from standpoint of someone like Larry. But if that law isn’t justifiable from some such standpoint, then – by the Habermasian all-affected principle – it just follows that there was a failure in the democratic procedures that set the laws in Larry’s society. These procedures have allowed a law to pass that is actually illegitimate because it violates the all-affected principle.

    I think CB may be right that Habermas’s practice is to talk about ‘in principle participation’ in response to participation worries. But Habermas’s view (and the pure proceduralist camp in general) has alternative resources that can be appealed to. None of this is to say, of course, that the all-affected principle is an uncontroverisal committment, a dash in the bucket. But I’ve tried to argue here that it’s an available resource for the pure proceduralist to appeal to in order to undermine P2. If I’m right, it suggests that one thing that CB would need to do to prop up P2 would be to undermine the all-affected principle.

    Also, it’s worth noting that the sort of Habermasian move just sketched in response to P2 says nothing about grounding one’s rights as an addressee of the law in one’s rights as an author of the law. Nor does it ground one’s rights as an addressee of the law in a willingness to participate in present or future lawmaking. So at first blush at least the above Habermasian response is compatible with a major proposition that CB defends later in Chapter 2: that “the rights of addressees are distinct from, and often irrelevant to, political participation.”

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