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.
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