Brettschneider Reading Group, Chapter 3

So far Democratic Rights has forced a choice for theorists developing a conception of democracy. We can accept an austere procedural ideal or an expansive basket of substantive rights. Positions that fall in between are prone to instability. Ronald Dworkin famously exploited this instability in his criticism of proceduralism in Law’s Empire. He thinks that we misconstrue the concept of democracy when we identify it with the mere presence of majoritarian institutions. To make good on this claim, he treats democracy as an interpretive concept. We can get at its inner structure by constructively interpreting the practice where the concept “lives.” What follows is a method for resolving disputes about the content of the concept of democracy. We identify that values that make democracy worthwhile. The interpretation that casts democracy in its best light will yield its concept.

I hope this sets the stage for Chapter 3 of Democratic Rights. It is here that the distinctiveness and ambition of the Brettschneider’s view is fully on display. The chapter aims to put into place the pieces for a position that is considerably more expansionist than Dworkin’s. The idea is that democratic citizens – given their liability to coercion from a system of law – are owed much more than the rights traditionally associated with democracy. It is not enough to extract freedoms of speech and the rule of law from a concept of democracy. We can extend this approach to yield a package of substantive claims normally associated with a theory of distributive justice. The rights defended in Chapters 4 – 7 – including rights to privacy, basic assistance, and not to be executed by one’s state – aren’t understood to follow from ordinary usages of the bare idea of democracy.

How, then, do we extend the realm of democratic rights more expansively than theorists have typically understood it? Brettschneider thinks that we are in need of bridging principles that promise greater determinacy – that fill out what democracy demands for individuals liable to state coercion. Democratic Contractualism (DC) is offered to play this role. Its aim is to guide the task of figuring out which substantive rights follow from a conception of democracy. DC is confined to what we owe to each other as citizens – as co-coercers. This sets it apart from both full-blown theories of morality and distributive justice, preserving the possibility that we are subject to stronger egalitarian obligations.

Start with the first principle. Democracy’s public reason serves as a criterion for assessing democratically-authored coercion. It is not a principle intended to regulate public discussion. Its locus is the kind of reasons offered to back coercive force. Citizens satisfy this principle by constraining their justifications to the three core values defended in Chapter 1: equality of interests, political autonomy, and reciprocity. The most obvious way to offend this principle is to offer reasons that flout these three values. But there are other ways to violate democracy’s public reason. Brettschneider offers a reasonability rider that limits the kind of interpretations citizens may offer for coercion-supporting reasons. You cannot baldy misconstrue reciprocity to support your intolerant religious convictions. Like more familiar appeals to public reason, the role of “the reasonable” is hard at work here.

There’s a third – I think illuminating – way of offending this principle. In offering justifications for the use of coercive force, you are not permitted to interpret the content of the three central democratic values in an undemocratic way. The idea that some interpretations of values are more “democratic” than others is interesting but not self-explanatory. The examples help clarify what interpretations count as undemocratic. Brettschneider’s first example is of the believer who reinterprets “equality of interests” as “equality of interests before God.” (In this chapter, Brettschneider refers to bare equality, but I am taking this as shorthand for the value of equality of interests described in Chapter 1.)The second example sheds light on the full-throated character of the contractualism at work here. Brettschneider suggests that a stock utilitarian interpretation of equality of interests is insufficiently democratic. He cites the utilitarian’s indifference to the distribution of interests across persons. To regard interests “as interchangeable,” he holds, is to run afoul of the first principle of DC. Democracy’s public reason is considerably stronger than its Rawlsian sibling – recall that Rawls finds room for certain brands of utilitarianism within political liberalism. Not only is Brettschneider incorporating a principle of reasonably rejectibility akin to T.M. Scanlon’s, but also the “individualist restriction”: “in rejecting some moral principle, we must appeal to this principle’s implications only for ourselves or for any other single person” (Derek Parfit, Ratio XVI 2003, p. 372). I think that something close to the latter restriction is needed to rule out the aggregation of interests unacceptable under DC. Brettschneider may well accept this strong conception of interpersonal justification, but it’s worth flagging for now.

Turn now to the second principle of inclusion. Its aim is to more fully cash out the content of DC by describing the point of view of reasonable acceptance and rejection. The inclusion principle is recipient- or, in another parlance, patient-centered. It is concerned with the complaints lodged by individual citizens who are subject to coercion, and who are motivated by the aim of seeking (though surely not finding) universal agreement. As I understand it, the main purpose is to describe what a “user” of DC what do with the theory. Brettschneider supplies two questions they might ask: “What types of state coercion can a person reasonably accept if she embraces the core values of democracy – equality of interests, political autonomy, and reciprocity – and is motivated to find agreement with his or her fellow citizens? What types of state coercion can the same citizen reasonably reject?” (65). Is there theoretical value gained by the use of “acceptance” and “rejection”? Parfit, who initially proposed the negative version to Scanlon, has suggested that reasonable rejection registers that contractualism isn’t in the business of asking about the property of rightness, but of wrongness. Of course these are the kinds of questions that a Scanlonian would need to ask. What, then, prevents DC from collapsing into an all-purpose contractualism? First, the kinds of considerations that the democratic constractualist can appeal to are limited to the three specified values. And second, the action-types under consideration are the joint authorship of imposed structure. The principle of inclusion officially incorporates the individualist restriction into DC. All moral complaints are to be made by a single individual, not a collection of individuals. Justification proceeds in a pairwise form.

Like any initial description of a theory, Chapter 3 ends with a promissory note. The payoff of these two principles will come in the four remaining chapters of the book, where these principles will be brought to bear upon legal and constitutional theory. We will get a much better sense of the plausibility of the theory by testing its principles in textured cases, since we haven’t yet put them into a narrow – let alone wide – reflective equilibrium.

Three Questions:

1.       My first question ranges over the first three chapters of Democratic Rights. By what method should we develop a concept of democracy? Perhaps Brettschneider has doubts whether our task is to figure out what democracy “really is” – as Dworkin likes to put it. But if we can bypass this kind of conceptual analysis, what is the underlying approach that allows us to make sense of the predicate “democratic”?Here’s why this question seems especially urgent in light of Chapter 3. It was initially prompted by the chapter’s suggestion that some interpretations of the value of equality of interests were undemocratic. In Brettschneider’s response to Micah Schwartzman, he promises to conceive “the democratic ideal itself in a way that goes beyond the procedural.” Say I start with a heavily procedural concept of democracy. Then you point out that, without a bundle of substantive rights, that governance system wouldn’t have any value. At that point I am faced with a choice: (1) I can expand my concept of democracy – following Dworkin or, more radically, Brettschneider; or (2) I can concede the point without any revisionary implications. To be sure, a system of majoritarian rule and a one-person, one-vote guarantee wouldn’t be morally compelling if citizens could be locked up, only to be freed on election days. But am I under rational pressure to revise my concept of democracy?

2.      The more voracious the ideal of democracy gets, the greater the opportunity for conflicts among its procedural and substantive dimensions. So one possible cost of accepting Brettschneider’s theory is that it creates more intramural conflicts among two-dimensional democratic values that will need resolution. Does the account of democratic contractualism give us the resources to resolve such conflicts?

3.      Since Democratic Contractualism is a full-bodied contractualist view, as I stressed above, is it as vulnerable to the off-the-shelf objections to leading theories of interpersonal contractualism? Or, by constraining itself to a set subject and a limited cluster of values that can be appealed to, is it more resistant to these charges, e.g., Philip Pettit’s worries about the circularity of contractualism, or Parfit’s reductios against the individualist restriction?

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One Response to Brettschneider Reading Group, Chapter 3

  1. Jordan Dodd says:

    Some thoughts on CB’s principle of democracy’s public reason:

    CB gives us three statements of this principle, spread out through Chapter 3:

    1a- “[T]he principle of democracy’s public reason [is] a requirement that coercion be justifiable to citizens generally by appeal to the core values of democracy”

    1b- [The principle of democracy’s public reason] holds that democratically justifiable coercion must appeal to citizen’s status as free and equal; however, coercion based on reasons that are either inconsistent with, or outwardly hostile to, these values is not democratically legitimate … [I]t is a standard for evaluating coercion independent of the way citizens do, or should, express their political beliefs”

    2- “The principle of democratic public reason holds that citizens should evaluate coercive policies in terms of the core values that define their shared status as citizens”

    1a and 1b are clearly very similar. I take it the natural way to read 1b is just as fleshing out 1a a step further. But I did a double take when I first read 2. It seemed to me to say something new and not entailed by 1a/1b. It turns out, I think, that 2 actually serves to draw out an ambiguity in CB’s discussion of the principle of democracy’s public reason. I’ll try to show this quickly below.

    Two readings of 2 suggest themselves:

    2i- each citizen should (her/himself) evaluate coercive policies in terms of the core values…

    2ii- each citizen should require it to be the case that coercive policies are evaluated in terms of core values…

    The difference between 2i and 2ii is sizable. 2i implies – whereas 2ii doesn’t – that each citizen should try to evaluate coercive policies in terms of core values. More broadly, 2i implies – whereas 2ii doesn’t – that each citizen should try to evaluate coercive policies. 2i probably entails 2ii. But the opposite isn’t the case.

    At first blush it seems to me that both 2i and 2ii are plausible readings of 2. But 2i and 2ii bear different sorts of relations to 1a/1b. 2i is compatible with but not entailed by 1a/1b. 2ii is more minimal. Plausibly, it’s both compatible with and entailed by 1a/1b.
    When I first read through Chapter 3, I read 2 as 2i. That’s what lead to my double take. The way 2 is written suggested (and still suggests) 2i to me.

    Here’s the more general ambiguity in CB’s discussion of the principle of democracy’s public reason that it seems to me the 2i/2ii ambiguity tracks. CB tells us “the principle of democracy’s public reason can serve as a guidepost for policymaking in legitimate democracies”. After looking at 2i and 2ii, it’s pretty intuitive that this guidepost metaphor leaves open two possibilities. The first – the correlate of 2i – is that the guidepost is intended as a directive for each citizen to try to follow in his/her evaluations. The second – the correlate of 2ii – is that the guidepost is intended as a directive for the citizenry as a whole to hold policies to prior to passing them. These two sorts of guideposts depart from each other and relate to 1a/1b in same sorts of ways that 2i and 2ii do. So the more general ambiguity is about just what sort of guidepost the principle of democracy’s public reason is or is intended to be.

    Now one reaction to all this jazz is to ask whether any of it matters. One reason it matters is that there are probably reasons to reject the principle of democracy’s public reason if it’s taken in the 2i/first guidepost direction – reasons that don’t crop up if we only take it in the 2ii/second guidepost direction. Two reasons are the following. First, the 2i/first guidepost route seems like it’s bound to put enormous epistemic demands on all citizens. A lot of knowledge is required to reliably evaluate coercive policies in terms of core values. To take just one broad example, it seems plausible that the impacts of lots of coercive policies on folks with widely different lived experiences (cultural, sexual, etc.) can only be (or at least needs to in part be) evaluated from their respective positions. Demanding of all citizens that they try to acquire such broad knowledge bases seems extraordinarily demanding and probably unfeasible. (Note: Citizens are in certain respects ideal agents for CB. But the certain respects don’t include their being in any sense epistemically ideal agents – e.g., being ideal reasoners with ideal knowledge bases). Second, even setting aside epistemic worries, it’s not obvious that having all citizens act as 2i/the first guidepost suggests is a good way to make sure that whatever coercive policies are endorsed nicely satisfy the three core values. One way to illustrate this point is on analogy with utilitarianism. It’s not obvious that a good way to try to achieve a state of affairs that in which which utility is maximized is to have each individual agent to go about trying to maximize utility.

    The rub here is that I think CB is probably better off taking the weaker 2ii/second guidepost option. I mentioned above that I think 2’s phrasing suggests 2i. But I also think CB’s phrasing of the guidepost metaphor primarily suggests the second guidepost option. So I guess I think Chapter 3 is sending some mixed signals about how to sort through the ambiguities I’ve been discussing.

    As a last point, Eric – in his summary of Chapter 3 – gives the following statement of the principle of democracy’s public reason:

    “Citizens satisfy this principle by constraining their justifications [for coercive policies] to the three core values defended in Chapter 1: equality of interests, political autonomy, and reciprocity.”

    This statement of the principle of democracy’s public reason is like 2 in the sense that it admits of readings analogous to 2i and 2ii. But Eric’s statement, it seems to me at least, makes the principle of democracy’s public reason much stronger than any of 1a, 1b, and 2 suggests. None of those statements of the principle talk of ‘constraining’. One way to put this is that 1a, 1b, and 2 each seem to require that justifications of coercive policies appeal to all the core values, whereas Eric’s statement seems to require that justifications of coercive policies appeal to all and only the core values.

    The general upshot here is that just how we should precisely formulate CB’s principle of democracy’s public reason isn’t as yet totally clear. Maybe CB can clarify?

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