Brettschneider's account of a value theory of democracy is fascinating!
I want to challenge Brettschneider's Larry Legislator Example.
Brettschneider sets up the example such that representatives like Larry, "due to an ancient tradition," are required "to be locked in a cell during their term in office" (31). He uses this to "illustrate the importance of grounding the rights of addressees outside of democratic procedure" (31). Brettschneider argues this is undemocratic because "the conditions that coerce Larry in every ... area of his personal life" besides "his political rights as a maker of law" are inconsistent with his "status as a citizen" (31).
Importantly, Brettschneider argues "when the state coerces citizens arbitrarily, it trivializes political rights such as participation by denying their competence as decision makers" (31). Yet, isn't Brettschneider, by advocating standards outside democratic procedure, denying the competence of democratic decision makers to not agree to a set of rules that imprison their representatives? If rights, by their very nature, are the most important matter in our lives, then shouldn't it follow that, by democratic procedure, democrats ought to be capable of and responsible for making decisions that could, in the long run, uphold or undermine their own rights?
The value theory of democracy imposes a set of liberal constraints on democracy because, despite his argumentation to the contrary, it doesn't absolutely respect the status as rulers of citizens. What if the prisons were really nice and everyone was comfortable? How can Brettschneider simultaneously respect the status of Larry as a ruler while denying his ability to rule he is happy by dictating a 'better' set of values?
If I am ruler of myself, why can't I hit myself with my own hands? I am both ruler and addressee of myself. If I don't hold the same core values as Brettschneider, what is to protect me from hitting myself other than a constraint?
Certainly Brettschneider cites the numerous precedents and intuitions accumulated in the United States -- from ex post facto laws to bills of attainder to freedom of speech/press/conscience -- but, these have been democratically adopted. Even the Constitution and the Bill of Rights, which outline some of these values was ratified and has a procedure to amend it. What would Brettschneider argue if, democratically, the United States amended the Constitution to eliminate the 1st amendment? What about the 2nd amendment? It seems more like a constraint on democracy than respect for the status of citizens as rulers to argue that the representatives we elected are barred from altering the very core values that Brettschneider is upholding in a democratically legitimate way.
To be clear -- I think Brettschneider's world is a better world -- constraints on democracy are a good thing. Democracy isn't the best system -- it's why we have all sorts of checks and balances on it. But, to argue that democracy, in its essence, must abide by certain rules independent from and unchangeable by the procedure of democracy seems fickle. Just like you can't have your cake an eat it too, you can't have your democracy and constrain it without calling it constraints.
Brettschnieder makes an early distinction between the majoritism theory of democracy and his own interpretation of liberal democracy. Brettschnieder’s democracy presupposes certain rights, and protects a rule of, for, and by the people. If Larry’s rights are curtailed, the rules of the democracy have been violated, and Larry’s rights must be reinstated. Brettschnieder’s conception protects the rights of the citizens as long as they follow the rules of the democracy. The protection of these rights is, in fact, the justification for his liberal democracy is that it ensures these fundamental rights.
ReplyDeleteThe majoritism theory of democracy, on the other hand, would allow the people to vote to curtail certain rights. Brettschnieder dismisses in the first chapter a democracy whose sole justification is the vote of the people. Such a system would be self-defeating if the people decided that they could pursue their democracy without certain rights. This would be the sort of system which would allow a revocation of the 1st or 2nd amendment, because such revocations would be applications of the majority rule. Brettschnieder argues specifically against such actions would, and are exactly the sort of problems he finds with majoritism theory.
To be clear, Brettschnieder’s liberal democracy does not stop people from living in a box if they so choose. If Larry believes that he would be a better legislator if he lived in a box, he would be fully within his rights to do so. However, it would be an infringement of his rights if the voters limited his personal options simply because of his duties as a legislator. Larry’s rule over his own life is not violated by his decision to live in a box, but it is if others force him to live in a box. Citizens as rulers does not mean that citizens cannot do what they like with their rights, but merely that policy cannot infringe upon them. Within the law, citizens can live in a box or in Buckingham Palace, and they would not be violating their rights.
It seems that the real issue here is of consent. If I choose to work in investment banking, knowing that the work week means I'll rarely (if ever) leave the office, that's my prerogative. I consent to the conditions, no matter how brutal, when I accept a job.
ReplyDeleteIn the case of Larry the Legislator, Brettschneider establishes that this practice is "ancient custom"; surely Larry the lego man is aware of the customs of his society. I would deny that Larry's conditions are any more unfair than someone who has to work in a factory for long hours. These conditions might not be ones that we would choose, but there's always the option to walk away.
Imagine now that instead of being imprisoned, the law merely says that Larry must wear a tie when giving speeches as a Legislator. This appeal to formality also can seem an arbitrary tradition, but Larry follows the dress code as best he can. In this case, though wearing a tie doesn't benefit Larry's ability to legislate, intuitively, it doesn't strike nearly the same chord that Brettschneider's original example does, even though it's a very similar principle.
Perhaps the Larry example can be refined; instead of it being ancient tradition that the legislator *MUST* be locked away, instead change the presupposed tradition. Now, assume that the tradition allows the legislator's significant other (in this case, Larry's wife) to imprison Larry at their own discretion. No other legislator has encountered such problems, and if Larry and his wife maintain amicable relations, will not be a problem. In this example, Larry consents to the job of being a legislator, but it's suspect whether or not Larry consents to imprisonment, should that day arrive.
Alternatively, give Larry an unhealthy case of amnesia where he forgets the ancient tradition. Moreover, assume Larry is appointed for life. Now, when Larry is elected, he ignorantly consents to imprisonment. This example would give a more clear definition on what abuses of rights are unacceptable.
Brettschneider's example of Larry is fascinating, but it's not as complete or sound as it might seem.