Brettschneider Reading Group, Chapter 4

According to the value theory advanced so far, democracy is best understood in terms of three core values: equality of interests, political autonomy, and reciprocity. These values ground democratic rights of citizens, most obviously rights associated with the rule of law, on the one hand, and familiar freedoms of conscience and expression on the other. These rights, and the values they express, take seriously our status as free citizens who are, in equal measure, the willing authors and subjects of the laws.

Democratic contractualism is a framework for justifying coercion consistent with the core democratic values of equality, autonomy and reciprocity. This framework features an account of democracy’s public reason, and a principle of inclusion. Together, public reason and inclusion help us distinguish the boundaries of privacy and reasonable state coercion.

When we understand democracy in terms of the value theory, and legitimacy in terms of democratic contractualism, we find that some apparent conflicts between liberal rights and democratic procedures dissipate. What seemed at first to be a conflict between, say, the federal supreme court imposing rights against the will of state majorities turns out to be an affirmation of rights that are essential to democracy, and which thus properly constrain majoritarian procedures.

Or such is the promise of Democratic Rights.

In this chapter Corey begins to make good on that promise: the second half of the book examines a range of difficult conflicts in light of his value theory and democratic contractualism, and chapter four argues for a democratic right to privacy. Corey shows how his favoured approach draws the line between public and private (and justifies some state forays into family life) in ways more appealing than extant approaches.

Privacy rights have often been defended for intimate affairs among consenting adults that seem far removed from public concerns (what interest does the state have in what goes on between consenting adults in the privacy of their bedroom?). On such defenses, what these concerns seem to cry out for are not democratic justifications of our right to be left alone, but an affirmation of our inherent dignity against majoritarian intrusions.

But some feminists have argued plausibly that intimate affairs often have important public consequences: the personal is political. Privacy rights too often obscure the degree to which private inequalities within families can limit women’s public standing as free and equal citizens—and even if they didn’t, aren’t those private inequalities unjust? shouldn’t the state do something about them?

Assigning pre-political worth to privacy (by appealing, say, to the inherent dignity of human beings, or an ideal of human flourishing) commits us to comprehensive liberalism (typically of Kantian or perfectionist varieties), and besides cannot answer the challenge posed by the feminist critic, who points out that the freedom of some citizens is worth considerably less just insofar as privacy rights preserve a sphere of attitudes and associations immune to public scrutiny and challenge.

But for their part, feminist critics seem to be asserting a comparably comprehensive account of equality which justifies considerable forays into intimate spaces to police inequalities, forcing us to choose in some cases between freedoms of expression and association, on the one hand, and an uncompromising standard of equality, on the other.

The democratic-contractualist account of privacy helps organize and justify contrasting intuitions here, explaining why state interference with matters of sexual intimacy are unjustified (because proffered reasons are either irrelevant to, or inconsistent with, the core values of democracy), whereas some significant state intervention is acceptable to address inequalities within the family (insofar as such interventions advance the core values of democracy that are threatened by the offending inequalities). What is more, we accomplish this without appeal to comprehensive conceptions of liberty or equality, instead appealing to values intrinsic to democracy.

Consider an argument sometimes offered in support of violating privacy with respect to intimate practices between consenting adults. Natural law theorists argue that some sexual practices do not advance the goods of reproduction or marital unity, which in turn are (so it is claimed) intrinsic to human flourishing. Merely pleasurable sexual activities do not advance these goods, and thus are violations of our integrity, and we are right to legislate against such violations, even if they are freely chosen. But as Corey maintains, to find this a convincing rationale for limiting privacy in intimate affairs, we must first affirm this conception of human flourishing, and it is hardly uncontroversial: reasonable citizens will disagree. Treating citizens as free and equal sovereigns and subjects requires that we not demand of them that they affirm moral, spiritual or philosophical doctrines they reasonably reject, and so the natural law position is inconsistent with the core values of democracy, most obviously the value of reciprocity.

Insofar as this claim persuades, the argument — and indeed the entire value theory, especially reciprocity and the account of democracy’s public reason — seems to me to depend rather heavily on the reasonableness standard. Much might be lost if one had grounds to question not only reasonableness, but also (i) the definition of reciprocity in terms of something like reasonable rejection (rather than, say, fair hearing); and (ii) the justificatory strategy of reflective equilibrium.

I suspect that such a critic would not be swayed by the relatively brief discussions of reasonableness in chapters two and three, and she would likely note the absence of a detailed account of how the stated methodological commitment to reflective equilibrium (p. 37) buttresses the validity of reasonableness as a constraint on public justification. And this critic would not be especially convinced that Eamonn Callan’s model of reciprocity does much more than invite argument about why “adherence in good conscience” depends more on “empathic identification” with other viewpoints than on, say, my sincere conviction about the truth of the matter at hand, drawn from my comprehensive doctrine.

But if you are not such a critic, then we have an appealing story (culminating at pp. 82-83) about why state interference with consensual intimate affairs is unjustified: such laws cannot find purchase within the public reason of democracy, and they violate the principle of inclusion by either (i) demanding adherence to comprehensive accounts of the good that some citizens reasonably reject (thus violating the value of reciprocity), or (ii) affirming some aggregative conception of the good, such as utilitarianism, that fails to take our interests seriously as free and equal citizens who are both the authors and subjects of the laws we obey (thus violating either or both of equal interests and political autonomy).

More is required, however: a democratic account of privacy rights promised not only to account for when privacy ought to be respected by the state, but also for when they state may legitimately interfere with our decisional autonomy.

Obviously the state may intervene in our intimate associations – most notably the family – to prevent physical violence or, in the case of children, unambiguous neglect. But these are easy cases. Corey wants to tackle the more difficult questions of intervention that feminist critics of privacy identify.

Suppose some form of inequality within a family does not rise to the level of assault or neglect; indeed, it may even arise out of mutual consent. Perhaps, say, a husband and wife live according to starkly inegalitarian beliefs about the subservient role of women as dictated by the tenets of some religious sect. Further suppose that this inequality at home does nothing to encourage either the husband or the wife, as citizens, to challenge the values of democracy in their public judgements and activities. Indeed, suppose that, as citizens, both routinely vote for candidates who strongly support equality of the sexes and gender equity throughout society.

Does this relationship offend the democratic value of equality of interests?

Democratic contractualism, Corey argues, distinguishes between political and other forms of inequality, and unless the latter offend the former, there is no case for coercive intervention by the state. Indeed, the presumptive right of decisional autonomy “grants citizens the ability to make their own decisions even when this allows them to enter into relationships that seem inconsistent with psychological autonomy and equality.” The state must ensure “rights to conditions that respect citizens’ equal interests” but “it is not attempting to promote equality in a psychological sense” (p. 90). So long as there are feasible opportunities for exit from relationships (opportunities the state may have to promote through divorce laws, education programs, and financial guarantees), and protections against violence and intimidation, the state has provided the conditions demanded by the core values of democracy and the framework of democratic contractualism.

A similar argument is made against Catherine Mackinnon’s indictment of pornography as more than mere speech: pornography, she suggests, shapes men’s attitudes and behaviours in ways that undermine equality. But here too the conception of equality is expansive, perfectionist: pornography is to be regulated not because it generates conditions that clearly violate political equality or autonomy for women, but a broader equality of attitudes and beliefs. As odious as inegalitarian attitudes about sex may be, they are not violations of the core values of democracy.

The line between political and psychological inequality is not always clear, as Corey notes, and he allows that “a widespread instance of inequality in the deep perfectionist case could point to institutional problems” (p. 91). His case in point is polygamy, and he concludes that this practice might in principle satisfy the core values of democracy, if conditions obtained to ensure that women could enter such relationships as informed and willing participants (and were free to leave if and when they wish). Polygamy under those conditions might be legitimately protected as part of the space of decisional autonomy that free and equal citizens rightfully enjoy.

Fair enough, but I wonder how much psychological domination is realistically permitted by the decisional autonomy guaranteed under democratic contractualism? Suppose we’ve structured institutions to ensure that women are sufficiently educated and supported such that they can enter (psychologically) inegalitarian relationships as willing informed participants, secure in the knowledge of their (state-guaranteed) ability to exit if and when they wish. Wouldn’t the process of ensuring these background conditions are met make it very difficult for inegalitarian beliefs and traditions to be imposed on young women in the first place?

… to which we might reasonably reply: so much the better for beliefs and traditions consistent with core democratic values. But I do think the contrast between the democratic and perfectionist equality may be less dramatic that it at times appears in Corey’s presentation. After all, how many relationships characterized by psychological inequality — indeed domination — would also be be characterized by a respect for the core values of democracy? and once we’ve ensured the conditions of informed entry and effective exit for women, how much private inequality and domination are they likely to endure in their personal relationships? This isn’t a point of much philosophical interest; rather, I’m merely voicing a suspicion about how democratic contractualism would likely play out in practice.

In a similar key, I wonder about the case that Corey discusses of the thirty-year old man who is inordinately deferential to the advice of his parents. This example is raised while discussing Glenda and Roger (the privately inegalitarian couple who are somehow egalitarian in public matters). Here Corey wants to illustrate the distinction between psychological (perfectionist) and political (democratic) inequality by drawing a parallel distinction between psychological and political autonomy. Suppose a thirty year old man lives with his parents and follows their advice in every significant decision in his life, regardless of his own preferences. Indeed, to refer to this subservient soul as having distinct preferences of his own seems a bit odd: he votes as his parents instruct, acts as they counsel without fail, and so on—in what meaningful sense does he have (affirm) preferences of his own? Corey wants to argue that, so far as the value theory of democracy is concerned, this subservient man (let’s call him Marty) is politically free. We would, Corey suggests, take it as a violation of his freedom of conscience if the state barred his parents from instructing him how to vote.

Yes, but does it seem a bit weird that democratic contractualism has no concerns with this domestic situation, even from the perspective of the core values of democracy? Does it seem at all strange referring to Marty has having a conscience of his own, in any sense worthy of respect? I see the force of the illustration for less extreme variations in which Marty has to some extent chosen his deferential position; but then, if Marty can gain the critical distance from his parents’ influence to meaningfully affirm his acceptance of their counsel (and also acknowledge available exit options), then the case is no longer especially difficult.

I suppose, then, that my mundane practical point here is this: the appeal to informed choice and feasible exit seems to pull democratic contractualism in the direction of perfectionist hopes, by structuring public institutions in ways that make some problematic relationships of private inequality and domination less likely to prevail over time, because the social conditions for their effective reproduction will be undermined by institutions securing political equality and autonomy.

Again, these are practical speculations rather than concerns about the argument per se, which seems to me to be strong, and developed with admirable clarity and concision (with the caveat that much depends on the appeal to reasonableness and reflective equilibrium, detailed arguments in support of which are not on offer, but are likely available).

A pleasure to read.

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