Many thanks to Eric for another stellar set of insightful and challenging comments. Eric suggests that there is more potential for conflict between the substantive and procedural aspects of democracy than in less robust theories of self-government. I largely bracket this challenge for most of the book. My first ambition is to establish an account of democratic justification to which those coerced by law are entitled and then to think about the basic rights that are required by it. The first six chapters seek only to demonstrate that substantive rights are a part of the ideal of democracy. But Eric’s question moves us in the inevitable direction from ideal to non-ideal theory. Ideally any democratic procedure would affirm substantive democratic rights and there is a loss to the democratic ideal when they do not. But as Eric points out actual democratic procedures which are themselves justifiable on the grounds of democratic contracutalism might not guarantee democratic rights. He asks, can the conflict between democratic procedure and democratic substance be resolved by democratic contractualism? The question seeks to reframe our earlier discussion about the tension between substantive and procedural aspects of democracy with reference to democratic contracualism, the framework I present for applying the core values to rights controversies.
First, I want to highlight an important point that is clear in Eric’s post. One temptation here would be to revert to proceduralism. I could claim that contractualism is itself a procedure that resolves the potential conflict between different aspects of democracy. But this would be to make the same sort of mistake of the theories that I rejected in chapter one. It is important to emphasize here (as Eric’s post does) the difference between democratic contractualism as an independent standard that we might use to ground the substantive and procedural aspects of democracy and the idea that democratic contracutalism is itself to be regarded as a procedure. There is nothing in the idea of democratic contractualism that suggests that we need to set up a contractualist decision procedure as a matter of institutional design. As David Estlund points out such a procedures would give a veto power to individuals and this could result in conservative results. I therefore resist such a procedural strategy. On my view, we should evaluate what counts as a democratic outcome by reference to an procedure independent standard, democratic contracutalism.
In addition to the issue about conflicts between substance and procedure, Eric’s post raises the more general question of whether this procedure independent framework is potentially indeterminate on some issues. The inclusion principle and its version of a test of reasonable rejection is determinative in regard to some, but not all, matters. I do not claim that it can resolve all policy conflicts. Rather it rules out some kinds of justifications, some policies and is of use in making the case that some substantive rights are required in ideal democracy. In an exchange with Frank Lovett in the journal Political Theory (December 2007) I therefore argue that democratic contracutalism is determinate in regard to some unreasonable disagreements. But the theory does not rule out the possibilities of some reasonable disagreements that contractualism might encounter and in regard to which this framework for applying the core values might be indeterminate. In other words, democratic contractualism is determinate in some matters of basic democratic rights, but not necessarily all matters of “middle democracy.” As Eric suggests, democratic contractualism’s determinacy is enhanced by my pointing to specific core values as well as limiting my inquiry to one which concerns citizens as opposed to persons.
But Eric pushes me further on this point. Even if the framework is determinate in generating some rights, there might be conflicts among those rights. Can democratic contractualism’s inclusion principle resolve these conflicts? In particular can it resolve conflicts between rights associated with democratic procedures justified with reference to democratic contracutalism and the rights that I also claim are part of the democratic ideal? I deal with this issue in the last chapter. There I do not employ the full framework of democratic contractualism and in particular I do not appeal to the inclusion principle. Rather I make a more limited point. I seek to balance the conflicts between procedural and substantive rights by reference to the specific rights I have argued for and the core values more generally. The idea of balancing I took to be an acknowledgement that multiple aspects of an ideal democracy can come into conflict in non-ideal circumstances. The acknowledgement of these conflicts within democracy is itself a distinguishing feature of my approach to democracy and a contrast with the approaches of both Dworkin and Waldron. I suggest moreover why it is also an improvement over those two theories. I am open to suggestions, however, about whether people think that democratic contracutalism more fully and in particular the inclusion principle, can offer a “solution” to these conflicts as opposed to the admittedly less precise balancing task by appeal to the core values of democracy more generally as well as the specific rights in question. The book does not take this issue on and it is one that we might come back to in the discussion of the last chapter. I will note that even if the inclusion principle cannot resolve some tensions among rights, it is still of use in getting us to think about what are the rights to which citizens are entitled in a democracy and I think of this task as its fundamental function.Of course, we will still face the challenge of thinking about how to balance rights against each other in some cases. It is worth thinking more about whether this is best done with general reference to the specific rights and the core values more generally or within the specific framework of the inclusion principle. One final thought on this point. I do not think, nor do I take it that Eric is suggesting, that the fact that various democratic rights are potentially in conflict counts against the theory as a whole. That rights are potentially defeasible by appeal to other rights and not absolute in this sense is not a characteristic specific to my theory. Rather i think this is a characteristic of rights more generally.
Interestingly, and related to Eric’s post, in his excellent post Loren King also points to possible tensions within the framework of democratic contracutalism as it applies to questions of privacy. He suggests why the conclusions, for instance, of Catherine MacKinnon might be defended with reference to democratic contractualism, the value theories framework for thinking about the rights of addressees. I hope in a future post to follow up on that argument, which I reject in the book. For now I will reiterate that I do think the kind of perfectionist forceful interventions of the sort Loren points to are reasonably rejected by appeal to the inclusion principle and are not in the realm of reasonable disagreement. For now, however, I want to flag the importance of the kind of challenge Loren raises and what it says about this next stage of the discussion. Namely, the first three chapters set out to argue that substantive rights have a role in a democracy and to provide a way of thinking about what those rights are. Our discussion so far has focused on whether that is or is not a good way to think about democracy. But as Loren ably demonstrates once we have seen the argument for the framework another kind of inquiry concerns its application to various rights controversies. Loren has skillfully started us down that road.
Finally, a long overdue response to Jordon. In his comment Jordon asks the question of who is supposed to appeal to the independent standards of democracy’s public reason and democratic contracutalism. He worries that it is too demanding if this is something that all citizens are obligated to do. I agree. The idea is only that those who wish to think about the democratic ideal and the basic substantive rights required by it should go about that task. But I don’t take it that all citizens are obligated to engage in the questions of democratic theory. There are certainly other, perhaps even more worthwhile pursuits in life. (I say this as I write most of this post on a Sunday) The lexicon I introduce in this chapter, including the distinction between an ideal citizens thinking about these problems who and actual persons is meant to bring home this point and to distinguish myself from theorists like Rousseau who seem conflate the ideal of entitlements for citizens with the obligations of persons. Jordon also points out too that the inclusion principles requirement of attempting to view problems from the perspective of the coerced is epistemically demanding. As I said it is right to say that it would be too demanding to claim each citizen is obligated to engage in such a project. But I think it is the task of the theorist, especially the theorist thinking about basic rights, to put themselves in the position of those coerced by law. We need not occupy the minds of all actual individuals of course. But we should, when considering what makes for legitimate punishment, think about what we could reasonably agree to if one was guilty of a crime and facing punishment.