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Alex Zakaras
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Representation, Vol. 47, No. 1, 2011
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© 2011 McDougall Trust, London DOI: 10.1080/00344893.2011.550203
Alex Zakaras
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Democratic Rights is a rich, provocative and ambitious book. In it, Corey Brettschneider
invites readers to embrace a new conception of democracy—a conception that helps dispel
the tension between democratic governance and individual rights. Indeed, Brettschneider
tries to show that one of the most recalcitrant problems in modern democratic theory—the
so-called ‘counter-majoritarian difficulty’—rests on a misconception. The arguments that
Brettschneider deploys to this end are clear and elegant, and many are persuasive. In the
short space of this article, however, I focus on two areas in which I disagree fundamentally
with the book’s argument.
Brettschneider opens Democratic Rights with three related claims. He argues that
substantive rights—including the right to privacy and to state welfare benefits—should be
(1) as part of the very idea of democracy,
(2) as prerequisites for the legitimacy of democratic governments, and
(3) as ‘necessary aspects of ideal democracies’ (2007: 3).
This article focuses on the first two claims and argues that they are both mistaken. I begin
with the meaning of ‘democracy’, and argue that Brettschneider gives us insufficient reason
to transform it. I try to show that Brettschneider’s argument on this subject is somewhat
undermined by his conflation of democracy with legitimacy. In the article’s second section, I
take issue with the conceptual framework—which Brettschneider calls ‘democratic contrac-
tualism’—that he uses to justify the second claim. I argue that this framework runs afoul of
his own normative criterion: it fails to accord citizens adequate respect.
1. The Counter-majoritarian Difficulty and the Meaning
of ‘Democracy’
In the introduction to Democratic Rights, Brettschneider takes issue with the proce-
dural ‘definition’ of democracy. ‘On a pure procedural view’, he writes, ‘even when demo-
cratic processes produce results that are unjust or violate individual rights, such as the
antisodomy law in Texas, they are democratic’ (2007: 2). Brettschneider would like to replace
this procedural view with a more substantive conception of democracy according to which
any government that enacts, for instance, an antisodomy law, even by means of strictly
democratic procedures, is undemocratic. Because antisodomy laws conflict with what
Brettschneider calls the ‘core values of democracy’, he argues that they cannot be consid-
ered democratic under any circumstances.
Brettschneider concedes that he is trying to change the broadly accepted, procedural
meaning of democracy. As it is typically understood, democracy is a certain way of making
collective decisions: a way in which everyone has equal voice. Brettschneider rejects this
definition because he believes that it is inconsistent with one of the principal values that
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democracy is meant to instantiate: rule by the people. ‘Most contemporary liberal theorists’,
he writes, ‘understand democracy as a set of procedures intended to manifest the ideal of
rule by the people’ (2007: 7). Brettschneider suggests, however, that the procedural concep-
tion of democracy not only offers a deficient interpretation of this ideal, but that it actually
conflicts with ‘rule by the people’, properly understood. The procedural conception of
democracy, he argues, fails to respect citizens as rulers (2007: 17).
In chapter 1, Brettschneider illustrates this point with the help of a series of examples,
each of which shows that democratic majorities can make decisions that obviously fail to
respect citizens as rulers. Majorities can, for instance, disenfranchise a quarter of the popula-
tion (2007: 12–13); they can decide to deny voters crucial information about upcoming
policy decisions (2007: 13); and they can revoke citizens’ right of free expression (2007: 14).
In Brettschneider’s view, such examples reveal what he calls a ‘logical flaw’ at the heart of all
purely procedural conceptions of democracy: the outcomes of democratic procedures can
sometimes conflict with the values that justify such procedures. ‘Accordingly’, he says, ‘if it is
not to be self-defeating, majoritarianism should recognize some limits on policy outcomes
to ensure that its fundamental justification is not undermined’ (2007: 13).
Brettschneider rests a good deal of weight on this claim—that procedural democracy
is, or at least can be, self-defeating. He believes that it presents a serious problem for those
who hold a purely procedural conception of democracy. There is, however, considerable
ambiguity as to what it means, exactly, to hold a purely procedural conception of democracy.
Consider the following few sentences:
Those who point to the countermajoritarian difficulty often assume that democracy is to be
defined exclusively by adherence to majoritarian procedures. They adhere to what I call a
‘pure procedural’ definition of democracy. This means that a decision is democratically
legitimate only if it is produced by citizens participating in a set of sanctioned processes.
(2007: 2)
Brettschneider claims here that those who accept a procedural conception of democracy
find themselves committed to a certain view of legitimacy, according to which democratic
procedures are necessary prerequisites for legitimate government. A similar conflation reap-
pears early in chapter 1, where Brettschneider sets out to reject purely procedural ‘accounts
of democracy’ (2007: 11). As we read on, we discover that what he’s really targeting is a
purely procedural account of legitimacy. For instance, he says ‘[p]ure proceduralists are char-
acterized by their belief that a decision is democratically legitimate because it is produced by
citizens participating in a fair procedure’ (2007: 11–12). Here, Brettschneider suggests that
the pure proceduralist treats fair procedures as sufficient conditions for legitimacy. In both of
these cases, the pure proceduralist is someone who holds a certain view of legitimacy—a
view Brettschneider rejects.1
This second case sheds light on Brettschneider’s concern that democracy can under-
mine itself. Consider again the example in which the majority votes to disenfranchise a quar-
ter of the adult population. The pure proceduralist, in the sense just defined, would have to
accept this decision as legitimate law simply because it was ratified through democratic
procedures. She would be compelled to accept as legitimate a law that clearly undermines
the ideal of rule by the people; she would thus, as Brettschneider suggests, find herself
involved in a contradiction. This seems to be the charge Brettschneider levels at Jürgen
Habermas. Habermas, he writes, insists that ‘the decisions of citizens within [an] ideal proce-
dure are the sole basis of democratic legitimacy’; Habermas therefore ‘cannot explain why
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rights are not vulnerable to revocation by those participants within the democratic
procedure’ (2007: 17).
Brettschneider does seem to have identified a potential problem with purely proce-
dural, democratic accounts of political legitimacy. But these accounts of legitimacy have no
necessary connection to the procedural conception of democracy. Indeed, this account of
legitimacy need not be embraced by those who hold procedural conceptions of democracy,
nor even by those who defend strictly majoritarian institutions. Let me briefly elaborate
these claims. First and most obviously, one’s conception of democracy need not be coexten-
sive with one’s view of political legitimacy. I could hold a procedural conception of democ-
racy while holding, for instance, that the only legitimate governments are those in which
democracy is limited by liberal constitutional constraints.
Second and more importantly, even those democrats who oppose counter-majoritar-
ian institutions might still hold substantive conceptions of legitimacy. Democrats committed
to strictly majoritarian procedures are not necessarily committed to the view that such
procedures are a sufficient condition of political legitimacy. They might hold, for instance,
that while procedural democracy is a necessary condition of legitimacy, so is observance of
basic human rights. Their conception of legitimacy, in other words, might contain both
procedural and substantive requirements.
Majorities that violate human rights do, according to this view, lose legitimacy. But so
does any regime that imposes counter-majoritarian constraints on popular majorities. If
popular decisions can be overruled by a high court, then it seems to follow that the people
themselves no longer really rule. They seem to rule at the discretion of another, higher sover-
eign body. This, of course, is the heart of the counter-majoritarian difficulty as it is conven-
tionally understood: to impose institutional constraints on the majority is to compromise the
ideal of rule by the people in its most literal sense and, it might be said, to fail to respect citi-
zens as rulers. It is somewhat surprising that Brettschneider does not acknowledge the force
of this concern until chapter 7, near the end of the book.
Democrats of this persuasion will be unmoved by Brettschneider’s observation that
democratic majorities have the power to make decisions that conflict with the ‘reasons that
underlie’ democracy itself; they will respond that courts have this power too, as illustrated,
for instance, in the US Supreme Court’s recent ruling in Citizens United.2 They might even
argue that, over time, strictly majoritarian political systems do a better job of respecting rights
and democratic processes than systems with built-in counter-majoritarian constraints.3
The fact that democracy can be self-undermining, then, raises serious questions
about a certain, purely procedural conception of political legitimacy. But it is a conception
that neither defenders of a procedural conception of democracy nor defenders of strictly
majoritarian institutions need take on board. The problems inherent in this conception of
legitimacy will not, therefore, compel these democrats either to revise their conceptions
of democracy or to accept ‘limits on policy outcomes’ enforced by counter-majoritarian
Imagine, now, that Brettschneider concedes that democracy and legitimacy are
conceptually distinct, and says: ‘look, you can keep your procedural conception of democ-
racy if you like. My claim is that the reasons that lead you to affirm democratic procedures are
reasons that will also commit you to substantive rights’. At a very abstract level, this claim is
promising: if the reasons that lead us to affirm democratic procedures also compel us to
protect substantive rights against the political majority, then it might follow that, as a philo-
sophical matter, democracy and rights are closely linked, and that they should not be
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thought to conflict fundamentally. Brettschneider is certainly right to suggest that, for many
democrats anyway, the commitment to democracy and the commitment to substantive
(liberal) rights rest on a common moral foundation: the moral equality of persons. But to
concede this is not to concede that substantive rights lie at the heart of the democratic idea;
it is to concede, rather, that moral egalitarianism lies at the heart of both our liberal and our
democratic political aspirations.
Democracy is morally and conceptually distinct from liberalism, however, in the inter-
pretation it gives to the basic value of equality: democracy, as it is typically understood,
embodies a distinctively procedural conception of equality. It says that the way to treat
people as equals is to give them equal voice in their common affairs, to listen to what they
have to say, and to try to justify oneself to them. As such, democracy compels us to empower
citizens as they are to govern themselves. Its perils are well-known: citizens sometimes make
ill-conceived, uninformed or unjust decisions. But despite this danger, democracy remains a
powerful, egalitarian ideal. It insists that no one has the authority to tell ordinary citizens,
collectively assembled, what to do, even when they are poised to harm themselves or one
another. There are no guardians with authority enough to protect them from themselves.
There is both philosophical value in preserving the distinctiveness of this procedural ideal,
and normative value in honouring it in our politics. As I will argue in the next section, it is
precisely this normative value that Brettschneider begins to lose sight of as he transforms
‘democracy’ into a substantive, liberal creed.
2. Democratic Contractualism and Political Legitimacy
Brettschneider’s most important argument in Democratic Rights is not conceptual; it is,
rather, a normative claim about political legitimacy. Brettschneider argues that a long list of
substantive rights, including the right to privacy and state welfare, are prerequisites for the
legitimacy of democratic governments. And he proposes to vindicate this claim with the
help of a conceptual device he calls ‘democratic contractualism’. In the rest of this article, I
take issue with this framework and argue that it is not democratic enough.
Democratic contractualism forms part of the broader value theory of democracy that
Brettschneider defends throughout the book. In chapter 3, he explains that democratic
contractualism provides a framework for justifying state coercion, and that it consists of two
parts: democracy’s public reason and the principle of inclusion. Democracy’s public reason
holds, broadly speaking, ‘that democratically justifiable coercion must appeal to citizens’
status as free and equal; … coercion based on reasons that are either inconsistent with, or
outwardly hostile to, these values is not democratically legitimate’ (2007: 61). The inclusion
principle, on the other hand, ‘requires that this general concern to justify coercion to a
people be extended to each individual citizen’ (2007: 55). I discuss each of these parts in turn.
Brettschneider explains that democracy’s public reason offers a ‘standard for evaluat-
ing coercion independent of the way that citizens do, or should, express their political
beliefs’ (2007: 61). In order to determine whether a particular policy conforms to the dictates
of democracy’s public reason, we must ask only whether that policy could plausibly be
defended using reasons that satisfy its requirements. We need not pay attention to the
justifications that citizens or officials are actually giving.
What sorts of reasons, then, might satisfy the requirements of democracy’s public
reason? In order to answer this question, I must further elaborate another piece of
Brettschneider’s argument: the three ‘core’ democratic values. Brettschneider argues that
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three core values determine the content of democracy’s public reason: equality of interests,
political autonomy, and reciprocity. Equality of interests requires, roughly, that ‘all reason-
able interests of citizens be respected as having equal weight’ (2007: 23). Political autonomy
entails ‘the treatment of citizens as individual rulers in a society characterized by collective
self-rule’ (2007: 24). It demands that citizens share in their polity’s collective decision-making.
Reciprocity, finally, ‘is a commitment to reason-giving as a central obligation and entitlement
of citizens’ (2007: 25). It requires that public decisions be defensible ‘by appeal to arguments
that reasonable citizens can accept’ (ibid.).
To restate the argument so far: policies will be legitimate if they are defensible (to
reasonable persons) in light of the three core democratic values, illegitimate if they are not.
Of course, as Brettschneider concedes, these values are very broad and subject to many differ-
ent and incompatible interpretations. So how exactly should we draw the boundary between
acceptable and unacceptable justifications? Brettschneider explains as follows. First, any
argument that is explicitly hostile to any of the core values comes into immediate conflict with
democracy’s public reason, and is ruled out as an acceptable reason for policy. Racist reasons,
for instance, because they directly impugn the equality of interests, are ruled out. Second,
arguments that ‘formally cite’ the core values but ‘cannot be understood as reasonable inter-
pretations of them’ are also disqualified (2007: 63). As an example here, he cites the ‘separate
but equal’ standard used to justify racial segregation in America. ‘No reasonable person’, he
argues, could deny that this standard violates democracy’s public reason.
Third, and crucially, arguments that rest on ‘plausible, though undemocratic interpre-
tations of the core values’ (Brettschneider 2007: 64) are also ruled out. The example
Brettschneider gives here is telling. Utilitarian arguments, because they appeal to an aggre-
gative conception of the equality of interests, are excluded. It is worth quoting
Brettschneider at length here:
Utilitarian views, for instance, understand equality of interests as giving each person’s inter-
ests equal weight in the calculus of the common good. Because this interpretation treats
individuals’ interests as interchangeable and does not guarantee that any particular indi-
vidual’s interests will be met, however, it is inconsistent with the democratic contractualist
requirement of justification to individual citizens. The utilitarian interpretation thus violates
the democratic meaning of equality. (Brettschneider 2007: 64)
Brettschneider clarifies the point in chapter 6, where he argues that utilitarian argu-
ments do not pass the test of reasonable rejectability. Reasonable citizens, he says, can reject
any argument that calls on them to sacrifice their basic interests for the sake of the common
good. The utilitarian conception of equality is therefore excluded from democracy’s public
What can this mean? Imagine, for a moment, an exchange between Brettschneider and
a utilitarian. The utilitarian believes that just laws are those that maximise welfare.
Brettschneider responds that not only are such laws unjust, they are actually illegitimate
whenever they could be reasonably rejected by those who are being asked to sacrifice their
interests for the sake of the common good. But of course, the utilitarian disagrees on precisely
this point. She thinks that it is unreasonable for individuals to refuse to sacrifice their own
interests when some clear aggregate benefit is at issue. She thinks, moreover, that respecting
fellow citizens as free and equal requires us to embrace an aggregative conception of equal-
ity. She finds Brettschneider’s contractualist conception of equality inadequate because it
fails to give equal weight to every individual’s well-being. How can this disagreement be
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resolved? Brettschneider would presumably argue that his conception of equality is ‘free-
standing’, in the sense that it does not presuppose any particular ethical doctrine. To this, the
utilitarian has two possible responses. First, she could argue that neo-Kantian contractualism
is at least as much a comprehensive ethical doctrine as utilitarianism. Or, second, she could
present the aggregative conception of equality as a free-standing interpretation of the
public, political culture of modern, liberal democracies.
Sooner or later, Brettschneider will have to concede that his idea of the reasonable
contains a particular, and contestable, normative conception of equality (as well as of
autonomy). Reasonable people, then, turn out to be those who agree with his own,
contestable conception of the core values. This is not, of course, in itself a decisive refuta-
tion of democratic contractualism—Brettschneider’s conception of the core values might
be right, and the utilitarian’s might be wrong. But it does clarify something important
about democracy’s public reason. What seemed, initially, to be a very inclusive category
that excludes only starkly undemocratic reasoning, turns out to be fairly narrow. Utilitarian-
ism is, after all, a form of secular egalitarianism that has been associated with radical demo-
cratic reform since the late eighteenth century. If utilitarian interpretations of the core
values are ruled out as ‘undemocratic’, it seems that a whole host of other modes of
egalitarian reasoning must be ruled out as well.4 In the rest of this article, I argue that this
exclusion is a mistake.
The principle of inclusion—the second main piece of Brettschneider’s democratic
contractualism—is a way of fine-tuning democracy’s public reason. It requires that policies
be justifiable using democracy’s public reason to every individual citizen. It is important to
recognise, however, that Brettschneider uses ‘citizen’ as a term of art. A ‘citizen’ is a reason-
able person who brackets his own particular worldview and uses democracy’s public reason
to assess the legitimacy of state coercion. The principle of inclusion, therefore, asks us to
imagine that all people in society—rich and poor, black and white, religious and secular—
are reasonable. It requires that policies be justifiable to all of these imaginary reasonable
people. In chapter 6, for instance, Brettschneider imagines a conversation between a wealthy
citizen and an imaginary, reasonable, poor citizen about the current property regime in the
United States. He argues that the poor citizen could reasonably reject any argument given
by the wealthy citizen in defence of the current regime. He argues, specifically, that the poor
citizen has good reason to reject the rich man’s (utilitarian) claim that the current regime
maximises wealth for society at large; because the regime also deprives this particular poor
citizen of a fair share in that wealth, it is reasonably rejectable.
What is most striking about this account is how thoroughly Brettschneider has allowed
himself to take leave of reality—that is, of the real convictions of real people. He argues that
the principle of inclusion, added to democracy’s public reason, leads us to ask the following
important question: ‘What types of state coercion can a person reasonably accept if she
embraces the core values of democracy—equality of interests, political autonomy, and reci-
procity—and is motivated to find agreement with his or her fellow citizens?’ (2007: 65).
Brettschneider makes it very clear that he is not asking what types of coercion actual people,
given their own commitments and motivations, and in light of their own interpretations of
the core values, could accept. In this sense, his question is not inclusive at all. He is asking
rather what types of coercion abstract, reasonable people could accept, given that they all
interpret the core values in the same (reasonable) way. The real, empirical characteristics of
citizens’ worldviews—their actual beliefs, motivations and values—fall out of the picture
almost entirely.5
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In my view, such abstraction poses a problem for any theory of legitimacy because it is
antithetical to the particular, procedural conception of equality embodied in the idea of
democracy. Democracy, as I argued at the end of the previous section, is first and foremost
about giving people equal voice in their collective decisions. It means listening to and
honouring what people actually have to say, not what they might have to say if they
conformed to some controversial civic ideal that they might in fact reject. Brettschneider’s
version of contractualism leads his readers to suspect that, in his view, very few people are
capable of making legitimate law (because most people surely do not interpret the core
values in precisely the way Brettschneider requires). If they do succeed in making legitimate
law, it will be by accident, because their judgments happen to be justifiable in democratic
contractualist terms.
To see how far Brettschneider has removed democracy from the actual consent of (even
egalitarian) citizens, consider two illustrative examples. Imagine, first, a group of people who
agree unanimously on an aggregative conception of equality, and who make collective deci-
sions on this basis. Imagine that they decide to implement, say, an eminent domain policy
that seems to Brettschneider incompatible with the ‘democratic meaning of equality’ because
it sacrifices individual property rights on the altar of the general welfare. Brettschneider’s
theory suggests that such a policy would be illegitimate because it would be insufficiently
democratic—even though no one in the polity shared this view. Second, imagine a group
divided between various religious conceptions of equality and secular, utilitarian and natural
law conceptions of equality who reach some compromise that all considered fair and legiti-
mate. This compromise, too, if it should happen to license laws that are incompatible with
Brettschneider’s preferred interpretation of the core values—which none of the assembled
citizens would accept—would be illegitimate (again, for supposedly democratic reasons). The
mere fact that all participants believe that a policy is legitimate, Brettschneider seems to say,
matters little for its legitimacy, even when all participants are not only committed to public
reason-giving, but also sincerely committed to the value of equality.6
Ultimately, the problem with this view is that, in abstracting away from the real
consent of real people, it fails to accord them adequate respect. Brettschneider writes:
When reflecting as a citizen … one at times might find one’s personal beliefs at odds with
the reasonable interpretations of the democratic core values. The ideal of citizenship
requires only that such personal beliefs be bracketed in thinking about how the state
should act. Not to bracket such beliefs would be to respect insufficiently the status of other
citizens who do not share those beliefs. (2007: 58)
Utilitarians, Catholic egalitarians, and others who might disagree with Brettschneider’s
interpretation of the core values, are here told not just that they are mistaken, but that theirs
are mistakes that should not be aired in public or even thought privately (‘when thinking
about how the state should act’). Those who fail to bracket their own convictions, when
these convictions conflict with democracy’s public reason, are told that they are failing to
meet their fundamental civic obligations; they stand accused of thinking and reasoning
about public matters in a frankly immoral or uncivil way (2007: 58). In my view, this accusa-
tion betrays a fundamental lack of respect for their points of view and so for them as auton-
omous agents—how could they possibly interpret it otherwise? It is to say that they are, in
some sense, beyond the pale.
There is some irony in this charge, of course, because Brettschneider’s argument
against the proceduralist is precisely that she fails to respect the citizen’s status as a member
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of the sovereign people. And so the argument reaches something of an impasse:
Brettschneider believes that utilitarians, among others, disrespect others by holding an
aggregative conception of equality (and refusing to ‘bracket’ it whenever it might conflict
with democracy’s public reason); I believe that Brettschneider disrespects utilitarians in
suggesting that they are beyond the pale of reasonable democratic discourse. Our disagree-
ment can be further sharpened, I think, as follows: for Brettschneider, the utilitarian fails to
respect others, ultimately, by trying to coerce them without adequate justification. By
adequate justification, he means justification that the coerced can accept.7 In his view, the
utilitarian does precisely this when she tries to secure policies that are justifiable in utilitarian
terms: because these terms can be rejected by reasonable people, she is in effect just trying
to force them to do what she thinks right. I have already argued that Brettschneider’s
conception of the ‘reasonable’ is partisan and exclusive, and must seem so to anyone who
does not already embrace a neo-Kantian conception of equality and autonomy. In fact, in my
view, Brettschneider is doing to utilitarians precisely what he accuses them of: in trying to
justify coercive policies using reasons utilitarians cannot accept, he is ultimately trying to
force them to do what he thinks right.
In my view, however, such force—‘brute force’, as he calls it—can never be fully
avoided in diverse polities, and it certainly does not render political outcomes illegitimate.8
It is wishful thinking to expect that even the most essential public policies can be justified in
terms that all sensible, cooperative people can accept (unless the terms are so abstract that,
for most practical policy purposes, they are meaningless). From my point of view, then, the
utilitarian and contractualist stand in a relationship of moral equivalence: both are well-
intentioned moral and political egalitarians who are trying to coerce each other using
reasons the other cannot fully accept. The crucial difference, in this case, lies in the fact that
Brettschneider rejects this description of his own enterprise. Rather than simply accepting
that there is deep and legitimate disagreement over the meaning of equality, which will be
negotiated through democratic contestation, he insists that anyone appealing to the aggre-
gative conception of equality to justify policies that conflict with democracy’s public reason
is uncivil or immoral. It is this last move—this placing other well-intentioned, cooperative
egalitarians beyond the pale of responsible democratic argument—that makes democratic
contractualism a morally objectionable way of theorising democratic legitimacy. It is this
move that shows want of respect, for it suggests that utilitarian arguments, like racist
arguments, do not warrant serious consideration.
I suggested earlier that the idea of democracy does not contain a complete theory of
legitimacy, and this remains my view. Democratic decisions that violate certain basic rights
should be thought illegitimate (though not undemocratic). But my list of rights would be
much smaller. Those rights without which citizens cannot make free and informed public
decisions are indeed required for democratic legitimacy.9 But the right not to be executed
for violent crimes, for instance, or the right to extensive state-sponsored welfare services or
basic income, do not fall in this category.10 Whether these should be rights at all is a matter
of legitimate, democratic disagreement.
3. Conclusion: A Democratic Conception of the ‘Reasonable’
I have so far been suggesting that the idea of the reasonable itself, as Brettschneider
conceives it, stands in tension with the idea of democracy, properly understood, because it
signals lack of respect for citizens. But the idea of the reasonable is, of course, subject to
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various interpretations, and some of them are, in my view, compatible with democracy. I
conclude by sketching a brief contrast between what I will call the minimal, or democratic,
conception of the reasonable and the one Brettschneider favours.
Earlier in this article, I argued that democracy embodies a distinctively procedural
conception of equality. Democracy, I argued, requires that we give fellow citizens an equal
voice in our common affairs, that we listen to what they have to say, and that we try to justify
ourselves to them. This is, admittedly, an expansive view of democratic procedure: it
suggests that respectful public deliberation among equals is one of the procedures that
democracy requires.11 The minimal conception of the reasonable corresponds to this delib-
erative view of democracy: it holds that people are reasonable so long as they seek, in good
faith, to find mutually agreeable justifications for state coercion; so long as they do not seek
simply to impose their interests or values on others by commandeering the state, even if
they form a majority. They are committed to reason-giving, and to the activity of justifica-
tion—they are committed, in other words, to democratic deliberation. What happens when
these people meet others who disagree with them fundamentally? They try to persuade
their opponents, to defend their own views against the objections their opponents raise, to
restate their arguments in terms that might be more persuasive to their opponents, to find
errors in their opponents’ reasoning, etc. Only after a good deal of good-faith dialogue will
they resort to the coercive power of the state. Since they are motivated to find common
conversational ground with each different interlocutor, the content of their argument and
reasoning will vary across different conversations—for them, there is no one-size-fits-all
‘public reason’.12
In this view, the reasonable citizen is best defined by the virtues she possesses. She is
receptive to opposing points of view. She is committed to reasoned justification. She is will-
ing to seek common ground with disparate interlocutors. She is respectful of differences. She
is oriented towards a common political good rather than simply pressing her own private
interests. Whether she is reasonable depends, therefore, not mainly on the content of her
views. Rawlsians can be unreasonable if they lack the virtues in question, as can utilitarians.
But utilitarians can also be reasonable if they possesses these virtues; so can Thomists or Aris-
totelians, or for that matter fundamentalist Christians, as long as they are committed to a
principle of public equality. This minimal conception of the reasonable is not wholly inde-
pendent of the content of one’s convictions, however, because certain beliefs make it virtu-
ally impossible to exercise the virtues in question adequately. If I am a white supremacist, for
instance, I will not be able to address my black interlocutors with the respect and openness
they deserve (unless I am severely deficient by white supremacist standards).13 This view of
the reasonable is not, of course, original: similar views have been defended by Nicholas
Wolterstorff and a number of other contemporary democratic theorists.14
This democratic conception of the reasonable gives us a way of ruling out certain citi-
zens’ opinions and arguments—citizens who are fundamentally uninterested in justifying
the exercise of power to one another, or who regard certain interlocutors as contemptible
and not worth their time. But it also substantially narrows the set of principles that all reason-
able people must accept. All they must be committed to is the activity of public justification,
very broadly understood, among moral equals. There is no particular conception of equality,
or autonomy, that all must share. It therefore recognises the inevitable: public policies will be
passed that cannot be justified in terms that all reasonable citizens will accept. And it holds
that such policies can be legitimate. To acknowledge this is simply to acknowledge that
coercion can never be fully removed from politics—not, in any case, in a diverse society.
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The democratic conception of the reasonable does not, however, provide any guaran-
tee of political legitimacy. Policies that are ratified after perfectly reasonable debate,
through perfectly democratic procedures, can still be illegitimate—notably, when they
violate basic individual rights. Democracy and legitimacy, as I have been arguing all along,
are not coextensive.
1. 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
2. In Citizens United v. Federal Election Commission, decided in January 2010, the court over-
turned important clauses of the McCain-Feingold campaign finance law and enabled busi-
ness corporations to pour money into election campaigns. The decision has been widely
denounced as an attack on the core democratic value of equality.
3. See, for instance, part III of Waldron (1999).
4. Brettschneider insists that he does not condemn citizens who speak in public using reasons
that are incompatible with democracy’s public reason: it ‘does not function as an exclusive
way for persons to speak … in the public sphere’ (2007: 61). Rather, it is simply used as a way
of judging whether policies are legitimate. For reasons I explore below, it is unclear to me
whether this distinction can be sustained. Brettschneider argues, for instance, that citizens
who do not bracket unreasonable premises when ‘thinking about how the state should act’
(2007: 58) violate a fundamental civic obligation. The implication is that they should police
the way they think and speak about public matters.
5. Brettschneider’s abstract people do, it must be said, retain some very general empirical
characteristics. Each inhabits a different ‘particular context and social position’ (2007: 66).
Some are rich, for instance, and some are poor. Some are criminals on trial and some are
victims of crime. Some are secular, others are religious. These general characteristics allow
Brettschneider to speak of the many different ‘points of view’ that imaginary reasonable
people might inhabit. These points of view are themselves, however, imagined abstrac-
tions. When in chapter 6 he asks, for instance, what reasons would be acceptable to very
poor citizens, he invites us not to identify with any actual person or group of people, but
rather with an abstract, reasonable person who happens to be destitute.
6. Many philosophers have, of course, defended (largely) substantive conceptions of
legitimacy; few have tried to call them democratic.
7. This idea of acceptance is itself fraught with ambiguity and philosophical difficulty. For a
pertinent and illuminating discussion of the criterion of acceptance in contemporary
democratic theory, see Bohman and Richardson (2009).
8. Mansbridge (1996) makes a persuasive case for the importance of such coercion.
9. There is, of course, plenty of disagreement as to what rights fall into this category, but I do
not have the space to take this up here.
10. Brettschneider does concede that the actual beliefs of the majority do count for something
in determining a policy’s legitimacy. ‘Given reasonable disagreement’, he says, ‘about how
best to secure welfare rights, the intrinsic value of majoritarian procedures might be reason
enough not to overturn legislation that fails to guarantee these rights’ (2007: 148). The
range of disagreement that counts as reasonable, though, again seems very narrow in light
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of his claim that (extensive) welfare rights are in fact necessary to render a democratic
regime legitimate.
11. Some hold a much more limited view of democratic procedures and argue, for instance,
that equal voting rights (and perhaps also speech rights) are democracy’s only procedural
requirements. From this point of view, the idea of public reason that I defend will not seem
specifically democratic (though it could be justified in other terms).
12. Bohman (2003) calls this pluralist justification. One of the salient features of pluralist justifi-
cation, he writes, is ‘that there is no single form of justification or set of reasons that can be
appealed to as democratic’ (2003: 772).
13. If I am willing to exclude some points of view as unreasonable, it might be asked, how can
I criticise Brettschneider for doing the same? To be clear, I fault Brettschneider for excluding
too many points of view, including those of other well-intentioned, cooperative egalitari-
ans. Such exclusions cannot be reconciled with the procedural conception of equality
which forms, not only the living heart of the democratic ideal, but also an important part of
any sound theory of political legitimacy.
14. See, for instance, Wolterstorff (1997).
BOHMAN, JAMES. 2003. Deliberative toleration. Political Theory 31(6): 757–79.
BOHMAN, JAMES and HENRY RICHARDSON. 2009. Liberalism, deliberative democracy, and ‘reasons
that all can accept’. Journal of Political Philosophy 17(3): 253–74.
BRETTSCHNEIDER, COREY. 2007. Democratic Rights: The Substance of Self-Government. Princeton, NJ:
Princeton University Press.
MANSBRIDGE, JANE. 1996. Using power/fighting power: the polity. In Democracy and Difference:
Contesting the Boundaries of the Political, edited by Seyla Benhabib. Princeton, NJ: Prince-
ton University Press, pp. 46–66.
WALDRON, JEREMY. 1999. Law and Disagreement. Oxford: Oxford University Press.
WOLTERSTORFF, NICHOLAS. 1997. The role of religion in decision and discussion of political issues. In
Religion in the Public Square: The Place of Religious Convictions in Political Debate, edited by
Robert Audi and Nicholas Wolterstorff. Lanham, MD: Rowman & Littlefield, pp. 67–120.
Alex Zakaras is Assistant Professor of Political Science at the University of Vermont. His
research interests lie in democratic theory and the ethics of citizenship as well as the
history of political thought. His book, Individuality and Mass Democracy: Mill, Emerson,
and the Burdens of Citizenship, was published by Oxford University Press in 2009.
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ResearchGate has not been able to resolve any citations for this publication.
Political liberals now defend what Rawls calls the “inclusive view” of public reason with the appropriate ideal of reasonable pluralism. Against the application of such a liberal conception of toleration to deliberative democracy “the open view of toleration is with no constraints” is the only regime of toleration that can be democratically justified. Recent debates about the public or nonpublic character of religious reasons provide a good test case and show why liberal deliberative theories are intolerant and fail to live up to democratic obligations to provide justifications to all members of the deliberative community. In a deliberative democracy, accommodations to religious minorities must be based on transformations in the current reflective equilibrium among the norms that make up the complex democratic ideal. This is not merely a conceptual enterprise of commensuration, since the need for any such transformation in standards of justification is due to changes in the nature of the polity itself, changes that in turn modify its regime of toleration.
When the Supreme Court in 2003 struck down a Texas law prohibiting homosexual sodomy, it cited the right to privacy based on the guarantee of "substantive due process" embodied by the Constitution. But did the court act undemocratically by overriding the rights of the majority of voters in Texas? Scholars often point to such cases as exposing a fundamental tension between the democratic principle of majority rule and the liberal concern to protect individual rights. Democratic Rights challenges this view by showing that, in fact, democracy demands many of these rights.Corey Brettschneider argues that ideal democracy is comprised of three core values – political autonomy, equality of interests, and reciprocity – with both procedural and substantive implications. These values entitle citizens not only to procedural rights of participation (e.g., electing representatives) but also to substantive rights that a "pure procedural" democracy might not protect. What are often seen as distinctly liberal substantive rights to privacy, property, and welfare can, then, be understood within what Brettschneider terms a "value theory of democracy." Drawing on the work of John Rawls and deliberative democrats such as Jürgen Habermas, he demonstrates that such rights are essential components of – rather than constraints on – an ideal democracy. Thus, while defenders of the democratic ideal rightly seek the power of all to participate, they should also demand the rights that are the substance of self-government.
The role of religion in decision and discussion of political issues
  • Jeremy Waldron
  • Nicholas Wolterstorff
WALDRON, JEREMY. 1999. Law and Disagreement. Oxford: Oxford University Press. WOLTERSTORFF, NICHOLAS. 1997. The role of religion in decision and discussion of political issues. In Religion in the Public Square: The Place of Religious Convictions in Political Debate, edited by Robert Audi and Nicholas Wolterstorff. Lanham, MD: Rowman & Littlefield, pp. 67-120.