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.
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?