Brettschneider Reading Group, Chapter 6

In Chapter Six, Corey Brettschneider sets out to argue that citizens of ideal democracies are entitled to basic “welfare guarantees.”  In the two previous chapters, he has argued that democratic citizens are owed certain “negative rights” against state interference; here, he shifts his attention to what he calls the “positive rights of individuals to be given some particular good by the state” (114).  The argument of the chapter develops in three steps.  First, Brettschneider argues that private property in its modern form depends, for its very existence, on state coercion.  Second, he argues that private property must therefore be justifiable to all citizens (using the canons of justification he has defended so far in the book).  Third, he holds that any plausible justification of property must involve a guarantee of welfare rights to citizens.

Brettschneider begins by arguing that private property is best understood as a “bundle of rights” that fall into two categories: “vertical” and “horizontal” rights.  Vertical rights describe the owner’s relationship to the property itself and include her right to use, trade, destroy, and conserve that property.  Horizontal rights, on the other hand, describe the relationship between the property owner and other people.  The most basic of these horizontal rights is the right to exclude others, to prevent non-owners from exercising any control over one’s own property.  This right to exclude, says Brettschneider, requires the power of coercion.

Does this power of coercion necessarily implicate the state? Brettschneider acknowledges that there is some disagreement between liberals and libertarians on this question.  It is conceivable, he grants, to argue that owners could exercise such coercion themselves, or contract with others to provide it.   Such is not, however, the case in contemporary societies, where property ownership depends on state enforcement.  The duty to respect others’ property, and the corresponding right to exclude, are now enforced by law.  They must therefore be justified publicly.

Can property be justified with reference to the any of the three core democratic values? Brettschneider argues that the best justification rests on the value of autonomy.  Citing the argument of Chapter Four, he holds that “respect for autonomy requires a respect for citizens’ ability to develop and pursue their own conceptions of the good” (119).  Property rights enable citizens to exercise control over their own lives, to pursue their own goals.  Whereas collective ownership exposes individual citizens to a great deal of state control, private property expands their capacity to live autonomous lives.

Brettschneider notes, however, that a democratic justification of private property must not only rest on (at least one) of the core values; it must also be compatible with the inclusion principle.  And here is where the trouble arises.  The inclusion principle requires that coercion be reasonably acceptable to all citizens. But poor citizens, he argues, will have good reason to reject many modern property regimes, because those regimes (mostly) exclude them from the rewards of ownership.  The challenge of justifying any particular property regime, says Brettschneider, should therefore be approached through the eyes of the least well-off.  He calls these citizens “minimal owners.”

What can be said to the minimal owner to justify a certain property regime? Brettschneider begins by trying out an argument about the maximization of wealth.  Everyone might have reason to accept property exclusions, he suggests, if such exclusions maximize wealth for society as a whole. Brettschneider observes, however, that this argument will likely seem unsatisfactory to destitute citizens, because it offers no guarantee that their basic needs will be met.  The problem, he suggests, is that this argument “relies on an aggregate conception of interest” which demands an unreasonable sacrifice from some individuals (123).  Any fully acceptable justification of property must, he says, at least “guarantee that the reasonable basic interests of citizens” be met (123).  Any proposal short of this threshold will give the least well-off reasonable grounds to demur.

Having established that any justifiable regime of property rights requires welfare guarantees, Brettschneider then explores three different strategies for guaranteeing the basic economic interests of all citizens.  First, he says, the state might simply guarantee “the right to work for a just wage” (124). Brettschneider remains agnostic as to whether the state would employ citizens itself or simply guarantee wage levels for jobs provided “though public-private partnerships” (125).  He argues that the right to work reflects the underlying democratic value of reciprocity: anyone who puts in a hard day’s work should be rewarded with a just wage.

Brettschneider then explores a second strategy for meeting basic needs: “a right to in-kind resources.”  This is simply a more conventional social welfare proposal: the state would provide for basic needs through in-kind transfers, including food stamps, health insurance, and housing vouchers (128). Brettschneider maintains that such transfers would, at the very least, be necessary to supplement a right to work.  Many citizens are unable to work-because of injuries, age, or impairments-and these citizens would have no reason to accept a property regime that effectively consigns them to destitution.  But Brettschneider goes further.  He argues that this second strategy is generally preferable to the first because it affirms the equal status of all citizens, even those who choose not to work a conventional job.  It also better accommodates citizens’ who choose to contribute to society in ways the market does not reward.

The third strategy Brettschneider discusses is the right to a basic income.  A basic income, he suggests, better enhances the autonomy of its recipients, because unlike in-kind transfers, income is fungible and can be put to a wider range of uses.  At the same time, he concedes that basic income also impinges more deeply on the autonomy of those who are providing the income (by forfeiting a portion of their earnings). Brettschneider stops short of endorsing the right to a basic income; rather, he leaves the question open.  He argues that all three strategies are “reasonable interpretations of the right to welfare,” and that the choice should be settled through majoritarian decision procedures (132).

Brettschneider closes the chapter by considering two libertarian objections to its argument.  First: the state should not provide for basic needs; rather, fellow citizens should provide for each other through voluntary contributions to charities and mutual aid societies, etc.  In response, he argues that citizens must be guaranteed that their basic needs will be met.  Leaving them at the mercy of their fellows is no guarantee.  Brettschneider has no objection to the private provision of charitable services, but he insists that the state should be ready to step in to provide for the needs that are not privately met.  Second, he considers the argument that state welfare induces dependence and undermines the democratic value of autonomy.  He answers that dependence on the state is much less threatening to autonomy than dependence on the goodwill of other private citizens or on the market.

I am largely sympathetic to the argument of this chapter.  So I will raise two small questions about the chapter before trying to articulate a larger, conceptual objection to the book itself.

(1) What would it take to justify a particular property regime to the least well-off?  This part of the argument is deeply indebted to Rawls, but Brettschneider stops short of endorsing the maximin principle.  And I’d like to know why.  If I’m the least well-off and I’m assessing a particular, proposed property regime, I want to know not only whether it will meet by most basic economic needs, but whether there are other  proposals that will provide more for me (and for others in my situation).  So I can imagine rejecting a certain proposal which does meet my most basic needs because I favor another that provides slightly more.  Am I unreasonable when I do so?  And if not, why shouldn’t we simply say that a fully acceptable justification of any particular property regime will try to show that it maximizes the projected well-being of the least well-off?  (One possible answer is that Corey is articulating a standard of democratic legitimacy, not justice.  If this is the right response, then I suppose I’d like to know more about how this modifies the idea of the reasonable.)

(2) Should the state provide for basic needs or should private charities and mutual aid societies do so?  I think this is a more serious question than Brettschneider acknowledges.  He argues that the state should “back up” private giving and guarantee a safety net.  Libertarians respond that the very provision of state guarantees eliminates much of the incentive for private giving and for resolving these problems locally through mutual aid and insurance.  This is not simply a piece of right-wing dogma.  It is part of Theda Skocpol’s argument, for instance, in Diminished Democracy that state activism has helped transform American civil society organizations into petitioners for state patronage, and that this transformation can compromise important democratic values-Tocquevillean values, we might say.  It could be argued, for instance, that this change makes all of us (not just welfare recipients) less autonomous by making us habitually dependent on bureaucratic, state-driven solutions.  To be clear: I am not suggesting that we eliminate state welfare services; rather that the liberal response to these libertarian objections could be a little more charitable and empirically informed.

(3) My broader objection to the book so far has to do with the conception of democracy itself.  Several of the other commentators have raised some form of this complaint (notably Eric, in his first posted question on Chapter Three), and I’ve been struggling to articulate my own version for a while, so let me just try to put it as starkly as I can, in the interest of clarity.

Democracy presents itself as an answer to the question: how should we make collective decisions?  It says, simply, that everyone should have an equal voice in collective decision-making.  It is a fundamentally procedural concept.  What is more, nothing in the idea itself of democracy suggests that equal voice is enough to make any particular decision either legitimate or just.  Democracy, in other words, is neither a theory of legitimacy nor a theory of justice.

Democracy may well form part of any fully defensible theory of legitimacy (or justice).  Like justice, legitimacy is often thought to have both procedural and substantive aspects.  This much is evident, for instance, in Rawls’ discussion of “decent societies,” which meet the threshold of public legitimacy by having both some sort of quasi-inclusive consultation hierarchy and a guarantee of basic human rights.  So, it could be argued (against Rawls) that democracy is a necessary procedural precondition of legitimacy.  But this does not follow necessarily from the idea, or indeed the normative ideal, of democracy.

My concern is that Corey seems to conflate the idea of democracy with the idea of (democratic) legitimacy.  Early in the book, in Chapter One, Corey sets out to reject purely procedural “accounts of democracy” (11).  But as we read on, we discover that what he’s really targeting is a purely procedural account of legitimacy.  On pages 11-12, for instance, he says “Pure proceduralists are characterized by their belief that a decision is democratically legitimate because it is produced by citizens participating in a fair procedure.”  The pure proceduralist, in other words, is someone who holds a certain view of legitimacy-a view Corey rejects.  If he were rejecting a proceduralist idea or account of democracy, he would have said: “pure proceduralists are those who believe that a decision is democratic because it is produced by citizens participating in a fair procedure.”  This leaves open the question of the decision’s legitimacy.

My objection to Corey’s use of these concepts leads me to reject the conclusions he draws from the Larry the Legislator example.  My own intuition is that there’s nothing undemocratic whatsoever about the scenario he describes.  As a co-author of the law, Larry is being respected as an equal: his political rights are intact.  Of course, I agree that as an addressee of the law, Larry has some important complaints.  But these aren’t democratic complaints.  In arguing that his rights as an addressee of the law are being violated, and that the offending laws are therefore illegitimate, Larry is voicing liberal (rather than democratic) objections.  He is best understood as saying: these restrictions are illegitimate because they violate the substantive (not the procedural) dimension of legitimacy.  Democracy alone, in other words, isn’t enough to render the law legitimate.

What, if anything, is the upshot of all of this?  First, I would be more sympathetic to the whole book if it was presented as an account of legitimacy, or even account of justice, rather than an account of democracy.  It seems to me that Corey has developed a compelling (if rather demanding) theory of political legitimacy that rests on three core values and features democratic decision procedures.

Is this simply a semantic disagreement?  Maybe it is.  But even if so, I still find myself wanting to preserve the conceptual distinctiveness of democracy as a procedural idea.  I’m not sure what is gained, conceptually, in amalgamating it in the way Corey proposes with the idea of legitimacy.  In fact, it seems to me a net loss.

Let me conclude with one final point.  Imagine that Corey concedes my semantic point here and says: “look, define democracy procedurally if you want.  My claim is that the reasons that lead you to affirm democratic procedures are reasons that will also commit you to substantive rights.”  My first answer is that this will be true for some democrats and not others (perhaps not, say, utilitarian democrats).  But second: Corey is right to suggest that, for many of us left-democrats anyway, the commitment to democracy and the commitment to substantive (liberal) rights rest on a common moral foundation: the moral equality of persons (of which Corey’s core values simply draw out three implications).  But to concede this is not to concede that substantive rights lie at the heart of the democratic ideal; it is to concede, rather, that a certain style of moral egalitarianism lies at the heart of both our liberal and our democratic political aspirations.

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