THE NON-INSTRUMENTAL VALUE OF DEMOCRACY: THE FREEDOM ARGUMENT
Christian F. Rostbøll
University of Copenhagen
Prepared for presentation at Columbia University Political Theory Workshop, New York, March 27, 2013.
Draft, February 6, 2016, Please do not quote or circulate without permission from the author.
Comments are very welcome, cr@ifs.ku.dk
I.
Introduction
[1] Can the value of democracy be explained purely in non-instrumental terms, or must we invoke also
democracy-external, epistemic standards to do so? Among political philosophers there is currently a debate
between the view that democracy should be grounded in the intrinsic value of public affirmation of equality
and the opposing view that holds that we cannot understand the moral importance of democracy without
invoking instrumental or epistemic standards.1 This debate concerns whether the value of democracy is best
explained in terms of the inherent features of democracy or rather on the basis of the (comparatively) good
consequences of democratic decision-making. What is left out – or outright rejected – in this debate is the
freedom side of government, or what I shall call the freedom argument for democracy.
1
See in particular Christiano 2008; 2009; Estlund 2008; 2009; Griffin 2003.
1
[2] The aim of this paper is bringing freedom back into the debate about the value of democracy.2 More
precisely, my suggestion is that the debate between the equality argument for democracy and the epistemic
argument for democracy ignores the freedom side of democracy at its peril. The paper takes outset in the
contrast between intrinsic and instrumental accounts of the value of democracy and considers the possibility of
defending democracy as intrinsically valuable. Intrinsic arguments for democracy have come under attack for
being insufficient to justify democratic procedures. Thus, David Estlund argues that if all we care about is the
recognition of equality, we might as well toss a coin, as giving each citizen an equal say in a democratic
process.3 In order to respond to Estlund’s challenge, defenders of the intrinsic argument for democracy must
further specify the meaning of equal standing that they believe is inherent to democracy. The suggestion of this
paper is that the best way to do this is to bring in the freedom and autonomy dimension of democracy. What
explains the legitimacy of democracy is not merely that it affirms the equality of citizens, but that citizens
afford each other equal standing as autonomous beings who share in the making of the laws. The freedom
argument for democracy has, however, been met by strong objections by proponents of the equality argument
such as Thomas Christiano.4 But the response to these objections cannot be to discard the freedom argument
for democracy entirely, because without the norms of freedom and autonomy the equality argument is
incomplete. Rather, the solution is to refine the freedom argument.
[3] The proposed freedom argument is composed of two elements, one pertaining to the concept of the person
as autonomous and the other pertaining to her status as a participant in shared, collective self-legislation.
Autonomy is seen not as an ideal relating to the content of the lives citizens ought to live but rather as a
2
I don't want to suggest that freedom has been entirely absent in recent theories of democratic legitimacy, but only that it
is absent in an important contemporary debate about the value or ground of democratic authority. A few examples of
freedom arguments for democracy are Habermas 1996; Richardson 2002; Rostbøll 2008; Pettit 2012; Saffon and Urbinati
2013.
3
Estlund 2008, ch. 4.
4
Christiano 1996, ch. 1.
2
principle designating the relations in which citizens stand to each other and the specific way they ought to
respect each other. Autonomy is understood not as a matter of self-mastery but as the relational idea of not
having another person as a master. The core of the proposed freedom argument, then, is not that democracy
maximizes a certain good but, rather, that the opportunity to participate in and influence the process of
collective self-legislation constitutes the right way for citizens to regard and relate to each other as free and
autonomous.
[4] The general question that this paper discusses is a comparative question of what gives democracy a
legitimacy that nondemocratic governments lack. Why must I accept democratically enacted laws as valid and
morally binding, even when I disagree with their substance? In particular, is "the value of democratic decisions
[…] entirely a matter of their being democratic,"5 or is it also a matter of their satisfying procedureindependent – that is, democracy-independent – epistemic standards? Thus, I am not here raising the more
general question regarding political obligation, which asks what gives the state the moral right to rule and the
citizens the obligation to obey.6 Indeed, I shall assume, first, that living in political society is a historical
necessity and not something a particular state imposes on its citizens; and, second, living in a Rechtsstaat is a
moral necessity in the sense of being required for the type of freedom and equality that all modern, broadly
liberal political theories are morally committed to.7 Thus, the issue I address is not the general authority of
states to regulate citizens' interactions coercively. Rather, my question concerns the way laws are given within
a political society that by itself is assumed necessary for historical, normative, and functional reasons.
5
Estlund (2008, 65), who rejects this former notion.
Simmons 1999; 2002.
7
See Pettit, 2012, 160ff. The latter is also Kant's view, cf. Ripstein 2009. See also Habermas 1996, who takes the legal
medium as a given.
6
3
[5] The structure of the paper is as follows. Section II clarifies the distinction between instrumental and intrinsic
justifications of democracy. Sections III and IV present, respectively, the equality argument for the intrinsic
value of democracy and the epistemic challenge to this argument. Sections V, VI, and VII argue that in order to
meet Estlund's challenge, the intrinsic justification of democracy must bring in the freedom side of democracy.
The freedom argument for democracy has two components; section V analyzes the respect for autonomy
component, and section VI analyzes the participation in collective self-legislation component. In section VII, I
consider whether the freedom argument has succeeded in avoiding democracy-external epistemic standards of
legitimacy and thus succeeded in showing the intrinsic value of democracy. I argue that it has. Section VIII
responds to objections to the freedom argument. Section IX concludes.
II.
Intrinsic and Instrumental Justifications of Democracy
[6] In order to discuss the value of democracy, we need a general idea of what is meant by democracy. This
point raises the question of whether different models of democracy aren't grounded in different norms or
values. I shall assume, however, that most contemporary models of democracy share a common core, which
defines democracy as a form of government in which citizens have an equal say in collective decision-making.8 I
will limit the analysis further by discussing only a form of democracy in which citizens' right to have an equal
say is realized through having the opportunity to express their opinions in public, to vote in elections, and to
run for elective office, which should be seen in contrast to e.g. election by lot. We are investigating, then, the
value of representative democracy, as we know it from the contemporary democratic countries. This does not
mean that these democracies are ideal; the idea is that we can give a rational reconstruction of their value or
8
Rostbøll 2013, 35.
4
moral basis. This reconstruction can, then, be turned against the exact institutional setup and social
circumstances of contemporary democracies and be used to criticize them. Moreover, I shall be focusing on
democracy as a way of making common decisions and imposing a coercively enforced legal order within
political society. Thus, we are oriented to the value of constitutional democracy. As I mentioned above, I take it
as given that the rule of law is necessary for shared values of freedom and equality, the question being why the
constitutional state must be democratic to be legitimate. However, we should also keep open the possibility
that the rule of law can only be fully realized when democratically imposed.9
[7] In discussions of the value of democracy, political philosophers often distinguish between the instrumental
and the intrinsic or non-instrumental value of democratic decision-making and/or the democratic way of life.10
The instrumental justification of democracy holds, first, that the form of government that ought to be
instituted is the one with the best consequences, and, second, that democracy is the form of government with
the best consequences.11 Thus, on the instrumental view, the value and legitimacy of democracy are derived
from the consequences to which it is believed to be the best (feasible) means. The intrinsic justification of
democracy invokes features inherent to democratic decision-making whose value is independent of their
consequences. Thus, on the intrinsic argument the value and legitimacy of democracy lies in something that is
internal to and expressed by democratic decision-making or the democratic way of life. In short, on the intrinsic
view democracy is good in itself.
9
To show that he latter is the case is a main objective of Habermas 1996; for a useful summary of his argument for the
internal relationship between the rule of law and democracy, see Habermas 1998.
10
On the distinction between instrumental and non-instrumental justification of democracy, see Christiano (2012) and
Estlund (2009, 242f). As the last part of the sentence in the text indicates, we might see the value of democracy more
narrowly in terms of how political decisions are made or more broadly as the value of a democratic culture or way of life
of a community (Anderson 2009). Unfortunately, I will not be able to discuss this difference further.
11
Richard Arneson (2009: 197) calls this view “democratic instrumentalism” – and defends it.
5
[8] The distinction above is useful but not precise enough for my purposes. Particularly, there is some
confusion in the democratic theory literature as to what the opposite of instrumental value is. While it is clear
that non-instrumental or intrinsic value is a form of value that cannot be derived from the consequences, this
value might be understood in two ways. First, the non-instrumental or intrinsic value of democracy might be
understood as a good we enjoy in itself or as an end. Thus, one could say that democracy has non-instrumental
value in this sense if we prefer to engage in it, even if its external results could be achieved by other means.12
As such, the non-instrumental value of democracy might be defended on perfectionistic grounds as the
expression of the highest form of human activity.13 Second, the non-instrumental or intrinsic value of
democracy could be understood as referring to the source of value. Thus, democracy might be said to be
intrinsically valuable because the source of its value is its inherent features rather than its external
consequences.14 These inherent features need not express a good to be maximized (be it well-being or human
excellence) but could be seen as what is right.15 The focus of this paper is on the possibility of defending
democracy as intrinsically valuable in the sense that the inherent or procedural features of democracy are
regarded as the source of democratic legitimacy. I shall not defend democracy as a particularly valuable activity
on the perfectionistic grounds that it is necessary for exercising the highest human faculties.
[9] A prominent and explicitly intrinsic justification of democracy holds that the authority of democracy is
grounded in the fact that democracies treat citizens as equals. In Christiano's more precise formulation,
12
Anderson (2009) uses and defends the non-instrumental value of democracy in this sense.
Hannah Arendt is often mentioned as an example of this view. See Arendt 1958, ch. 5. For discussion, see Rostbøll
2013b.
14
There is some resemblance between this distinction and Korsgaard's suggestion that there are two "two distinctions in
goodness." According to Korsgaard (1996, pp. 250, 257), we must distinguish between valuing something as an end and
regarding something as having intrinsic value. It is not the same to value something for its own sake (to value it as an end),
and to regard something as having its goodness in itself (intrinsic value). The first concerns the way we value a thing, the
second concerns the source of the value or goodness.14 What distinguishes our discussion from Korsgaard's is that we are
concerned not with the source of value as such, but rather the source of political legitimacy. Moreover, my distinction also
includes a consideration of the distinction between the right and the good.
15
Cf. Rawls' distinction between teleological and deontological theories. Rawls, 1999, 21f.
13
6
democracy is intrinsically just, because it “is a publicly clear way of recognizing and affirming the equality of
citizens.”16 According to Christiano, the equality argument is a superior alternative to the freedom argument
for the value of democracy. In short, he believes that it is not possible for democracy to make citizens free or
self-governing, but democracy can treat citizens fairly or as equals.17 Thus, the equality argument might be
seen as a product of the "despair about assessing legitimacy in terms of freedom," which Philip Pettit has
noted.18 But is the public affirmation of equality of citizens sufficient to explain the value of democratic
procedures, as we know them?
[10] Different arguments have been advanced for the idea that we cannot understand the value of democracy,
save by invoking the instrumental belief in its good consequences compared to other forms of government. I
shall focus on Estlund’s forceful argument that we cannot explain why citizens should have an equal say in
political decision-making – the core of democracy in any of its versions – purely with reference to the
procedural value of fairness or public equality. The best reason to favor the right of citizens to express their
views and judgments over and above, for example, coin flipping is that we expect people’s views to be
intelligent and to contribute to the epistemic quality of political decisions in a way coin flipping does not.19 In
other words, Estlund’s argument is that we cannot explain the moral importance of democratic decisionmaking procedures without appealing to their epistemic value.20 Any non-instrumental justification of
democracy must meet Estlund’s challenge, and my suggestion is that the freedom argument can achieve this
aim. The intrinsic argument for democracy to be complete must include not only recognition of public equality
16
Christiano 2008, 96.
Christiano 1996: ch. 1, esp. p. 42.
18
Pettit 2012, 148.
19
Estlund 2008: 6, 82f.
20
Estlund’s own position, “epistemic proceduralism,” is not merely instrumentalist but includes also procedural values of
democracy.
17
7
but also respect for citizens' autonomy and their opportunity to be effective participants in collective selflegislation.
III.
The Equality Argument for the Intrinsic Value of Democracy
[11] The equality argument for democracy is, as mentioned, often a product of despair regarding the freedom
argument for democracy: "Though [individuals] cannot be self-governing, they can be treated fairly and this is
what is essentially attractive about democracy."21 According to Christiano, the ground of democracy, which
explains its intrinsic value, is what he calls the principle of public equality.22 Democratic institutions have
intrinsic moral value because they publicly affirm and recognize the equality of citizens. The public affirmation
of equality is a requirement that justice imposes on social institutions, and democratic institutions fulfill this
requirement because citizens in these can see that they are being treated as equals. It is possible for citizens to
see themselves as treated as equals in democratic decision-making in a way that it is not possible for them to
see themselves as treated as equals by political outcomes.
[12] Christiano's argument is at a fundamental level based on the empirical premise that there will be
disagreement on the justice of outcomes, on law and policy – on whether these treat everyone as equals. This
is part of the reason why democracy cannot be justified instrumentally: we lack shared standards for judging
outcomes. The problem of disagreement does not touch on the justice of democratic procedures, because
21
22
Christiano 1996: 42.
Christiano 2008, ch. 2 and 3.
8
democratic procedures are tailored to the fact that people will disagree on the substance of justice.23 We might
say, then, that it is because citizens despair of coming to agreement on substantive issues that Christiano thinks
they would (or should?) accept a process in which each has an equal say in the process of establishing justice.24
Thus, Christiano's argument is the product of two types of despair or retreat, first regarding freedom and
second regarding substance.
[13] We should distinguish an equality argument that gives democracy instrumental value and one that gives
democracy intrinsic value. An equality argument that justified democracy instrumentally would require an
outcome principle of equality, a standard for what would be an end state of equal treatment. Democracy
would then be justified as the best means to realizing this end state. The trouble with this instrumental
justification is that it requires agreement on the outcome principle, and in the absence of agreement on what
is the correct outcome principle – that is, the correct substantive conception of equality – the fact that
democracy realizes one conception of equality cannot be seen by citizens as treating them equally. Citizens will
not be able to see their own judgment as reflected in the outcome and hence will not be able to see
themselves as treated equally. Christiano's suggestion is that even though citizens can never see themselves as
treated equally in the substance of law and public policy, they can see themselves as treated equally in the
democratic process. And when democracy is justified by the equality that is inherent to the democratic
procedures – the equal vote, equality of opportunities to run for office, and equal opportunities to participate
in negotiation and discussion – democracy is justified intrinsically, rather than instrumentally.25
23
Christiano 2008, 95f, 101f. Christiano assumes "agreement on that each person ought to have an equal say in the
process of establishing justice" (101).
24
As we shall see below, Estlund for this reasons sees the equality argument as bound up in a dynamic of retreat.
25
Christiano 2008, 72f, 75, 95f, 101f.
9
[14] The core of Christiano's equality argument is the principle of public equality. "The principle to be defended
is the principle that well-being ought to be distributed equally by the institutions of society."26 Notice that this
principle holds that citizens must be able to see that social institutions advance their interests or well-being
equally. It is crucial for my argument to note that the equality argument relies on a principle of advancement of
interests and on an understanding of justice as a matter of distribution of benefits and burdens. This equality
argument is goal-oriented and has well-being as its normative core. Later, I contrast this view to the freedom
argument which is relational rather than goal-oriented and which posits autonomy rather than well-being as its
normative core.
IV.
Estlund's Challenge to Intrinsic Accounts
[15] Purely intrinsic arguments for democracy have been challenged by Estlund who sees intrinsic or
procedurals theories as theories that aim to explain the value of democratic decisions entirely as a matter of
their being democratic and rejects that this is possible.27 Estlund sees the appeal of fairness or equality
arguments for democracy as a product of a dynamic of retreat.28 Fair procedures only become important
because there is disagreement on what to do or because of skepticism about independent criteria for good
outcomes. "It is an important fact," Estlund claims, "that the idea of a fair procedure would not even arise if it
were common knowledge that everyone agreed upon what the correct decision is"; this fact "reflects a certain
intuitive priority of substance over procedure."29 The trouble for the equality argument is that the dynamic of
retreat will do away not only with substantive equality but also with the idea that democratic decisions should
26
Christiano 2008, 25.
Estlund 2008, 65, 93.
28
Estlund 2008, 70ff.
29
Estlund 2008, 71.
27
10
be responsive to citizens' views – and with Christiano's equal advancement of interest. The reason is that
retreat from substantive matters would include also the idea of equal advancement of interests, which is a
substantive rather than a merely procedural matter. This retreat will leave the fair proceduralist with a very
thin notion of equality, which cannot explain why democratic procedures as we know them are to be preferred
over and above a coin flip.30 The purely procedural value of equal treatment, independent of the consequences
of equal treatment, cannot explain why citizens must have an equal say in the democratic process; this requires
"bringing in procedure-independent standards for outcomes."31 Estlund’s conclusion is that absent procedureindependent epistemic reasons, we have no grounds for favoring democratic procedures over other fair
procedures. When democrats want political procedures to allow everyone to express their opinions and
judgments, this must be because they believe this has a tendency to improve the quality of the decisions.
[16] What kind of standard is it exactly we need? The ingenuity of Estlund's proposal is that epistemic theories
do not need to be "correctness theories". A correctness theory of democratic legitimacy says that a democratic
decision only has legitimacy if it is correct. Estlund's epistemic theory, epistemic proceduralism, by contrast
regards political decisions as legitimate when they are “produced by a procedure with a tendency to make
correct decisions.”32 Epistemic proceduralism “looks back to the procedure’s generally acceptable tendency to
make substantively correct decisions. This is retrospective still, since the procedure retains its relevant
epistemic features whether or not it gets the right answer in a given case.”33 So what we need procedureindependent standards for is which procedures have a tendency to produce correct decisions. Citizens do not
need to agree on the correctness of each democratic decision to understand the legitimacy of democracy, but
they must accept that the procedure that produced the decision has a tendency to produce correct decisions.
30
Estlund 2008, 72f, 82ff.
Estlund 2008, 82.
32
Estlund 2008: 8.
33
Estlund 2008, 108.
31
11
This requires that we go beyond merely procedural values to standards for epistemically good outcomes. For
we cannot know what kind of procedures produce good outcomes without a standard for what a good, right or
correct outcome is. In fact, self-proclaimed procedural or intrinsic theories already rely on such procedureindependent standards, according to Estlund, but they pretend not to.34
[17] The challenge for the defender of the intrinsic argument for democracy, then, is to show that there are
procedural values that are sufficient to explain the value of democracy without appeal to any outcome
principle. In other words, the task is to develop an account of the intrinsic value of democracy that is not
parasitic upon epistemic concerns or the quality of outcomes as defined by some procedure-independent
standard. Moreover, we must supply an intrinsic account of the value of democracy that is not entangled in the
dynamic of retreat. Now, when we speak of procedure-independent standards in democratic theory, we refer
to standards that are not derived from or produced by the democratic procedure itself. We do not mean
standards that are independent of any conceivable procedure. I shall more broadly call standards that are not
derived from the value of democracy itself for democracy-independent standards. Estlund's position is that the
explanation of the authority and legitimacy of democracy cannot dispense with democracy-independent
standards for outcomes: “Normative democratic theories cannot, then, be radically democratic if this means
that political decisions are to be evaluated entirely according to whether or not they are democratic.”35
[18] I aim to defend the view that democratic theory can be radically democratic and that the legitimacy of
democratic decisions must be evaluated according to whether or not they have been made democratically.
However, I do not think this commits me to the idea that the argument for democracy must not appeal to any
34
Estlund 2008, 92f. Estlund advances this argument not only against fair proceduralist such as Christiano, but also against
deliberative democrats such as Habermas and Joshua Cohen.
35
Estlund 2008, 93.
12
norms or values that are not or cannot be derived from democratic procedures themselves. We can reject
democracy-independent standards for evaluating legitimacy, without rejecting standards for democracy. The
latter standards are simply not external to democracy or outcome principles, but rather standards for how
people ought to relate to each other when they impose common laws on each other. Thus, my aim is to defend
an intrinsic argument for democracy in the sense of an argument for democracy that does not derive
democracy's value from its expected epistemic consequences. This is not an argument for democracy that
eschews all substantive standards.
[19] In order to respond to Estlund's challenge, a defender of the intrinsic argument for democracy must do
two things. First, she must specify the inherent value of democracy in a way that is not susceptible to the
objection that this value might be satisfied by other procedures than democratic procedures (as a lottery or a
coin flip). Second, this specification of the inherent value of democracy must be shown not to be parasitic upon
procedure- or democracy-independent standards. Thus, a tenable intrinsic argument for democracy must
explain why it matters that each citizen's voice and judgment regarding issues of common concern is heard
without any appeal to that this will contribute to the epistemic quality of outcomes, as assessed by some
standard that is independent of the democratic procedure. My suggestion is that this requires that we go
beyond the equality argument for democracy and bring in the freedom and autonomy dimension of
democracy. The freedom argument for democracy involves two parts, one concerns respect for the autonomy
of citizens, the other concerns the opportunity of being a participant in collective self-legislation. The principle
of respect for autonomy is a principle that can be expressed only by democratic procedures (of a specific kind)
and not by other procedures that treat everyone as equals. It is also not an idea that relies on advancement of
interests or well-being, as does Christiano, because it is about relations among persons, rather than a matter of
maximizing something. Being a participant in self-legislation requires that one's judgment is heard and the
13
value of this is not judged from some democracy-independent standard, but from the contribution it makes to
people giving their own laws. The latter is not a democracy-independent standard but a standard a government
must meet to be called democratic.
V.
Respect for Autonomy
[20] To say that democracy expresses the value of equality is not to say very much. There are many different
ways of specifying what equality means and requires. This is exactly the reason why it is possible to level the
objection at the equality argument for democracy that many other procedures than those we commonly call
democratic also treat all involved as equals. And, of course, we see that defenders of the equality argument for
democracy, such as Christiano, also do specify a specific conception of equality, rather than merely relying on a
shared concept of equality.36 The trouble is that these specifications of what equality requires or these
conceptions of equality tend toward instrumentalism and the need for democracy-independent standards. My
suggestion is that the focus on equality wrongly rejects the centrality of freedom in the explanation of the
legitimacy of democracy. Of course, I do not reject the centrality of a norm of equality, but the equality
argument is incomplete without the freedom argument for democracy.37 Moreover, the freedom argument is
better equipped to respond to Estlund's challenge to intrinsic arguments for democracy. The principle of
freedom can explain the value of democracy without invoking standards external to democracy itself, that is, it
can explain why we should regard democracy as intrinsically valuable. In this section, I outline the first
dimension of the freedom argument, which is the principle of respect for autonomy. In the following section, I
36
The concept refers to the core meaning of a term; conceptions are rival ways of understanding, applying, and/or
specifying the concept. See Gallie 1955-56; Rawls 1999, 5; Rostbøll 2008, 9ff.
37
Christiano (1996; 18) argues that the freedom argument is incomplete without a principle of equality, which is true. But
the equality argument is also incomplete without a principle of freedom.
14
outline the second dimension of the freedom argument, which focuses on the opportunity of citizens to be
actual and effective participants in processes of collective self-legislation. There is an important connection
between these two dimensions and understanding this connection helps in responding to Estlund's challenge.
[21] So how should we understand the autonomy that is respected in and by democratic institutions and thus
as explaining the intrinsic value of these? First, it is important to note that I speak of autonomy as something
that is respected and not as something that is promoted as a good by democratic institutions. When we see
autonomy as a norm that is respected rather than a good that must be maximized, this means that it is a
principle that regulates social relations among people as opposed to seeing it as referring to the content of the
lives these people should live. One advantage of this understanding of autonomy is that it does not rely on a
conception of the good about which there is reasonable disagreement, but rather on an idea of an intrinsically
just way of persons relating to each other.38 Note, however, that the freedom argument does not turn to this
conception of autonomy for the contingent reason of disagreement on the good, but rather because of the
fundamental norm that each person has the right to form and follow her own conception of the good. We need
a principle of respect for autonomy of the suggested kind in order to explain why enforcing a sectarian
conception of the good on others against their will is wrong.39
[22] Second, it must be clarified what conception of autonomy is respected by democratic institutions. I shall
understand autonomy as a matter of not having another person as a master. This should not be understood as
a particular relation the person has to him- or herself, but as a relational or interpersonal notion of not being
38
39
See further Rostbøll 2011, 345f.
Rostbøll 2011, 355; cf. Forst 2007, 302.
15
subordinate to other persons' arbitrary choices.40 Not being subordinated to another person's arbitrary choice
means being able to use one's own powers for one's own purposes. When A is used for B's purposes or when
A's powers are destroyed by B, I shall say that A lacks autonomy and is dominated by B. The democratic
constitutional state respects the citizens' autonomy as far as each is independent to follow and use her own
powers of choice compatible with others' right to do the same. Citizens lack autonomy and are dominated
when others' decide on their behalf what their purposes should be.41 This conception of autonomy regards
autonomy as a status that citizens have in relation to each other, a status of being free from having a master.
Even though the notion of autonomy sketched here is relational, it also says something about how citizens
should regard each other and how state and law should regard them. Citizens should be regarded as persons in
the Kantian sense, that is, as rational beings with purposes or ends of their own, as beings that must be treated
as ends and not merely as means.42 It is for this reason I speak of respect for autonomy, namely as respect for
others as persons who are regarded as having the ability to being their own masters, who can have purposes of
their own and follow them.
[23] My third suggestion is that we should not conceive respect for autonomy as a moral ideal specified
independently of a public legal order and democratic institutions. If we see the respect for autonomy as an
independently conceived moral principle, political and legal institutions are in a sense merely instruments for
realizing that ideal. In such an approach, one has first a moral principle of respect for autonomy and then, in a
second step, considers which institutions are the best means for realizing this end. Thus, we end up with an
40
It is important to note that respect for autonomy in the sense specified here requires that one does not have a master
and not that one is free from interference that one has not consented to. The latter would make respect for autonomy
incompatible with decisions made by the majority, which is an inevitable part of democracy. Below, I will aim to show that
a democratic majority need not be a dominating master.
41
The formulation in this paragraph owe much to Ripstein 2009, see particular pp. 4f, 30ff. The formulation also has some
resemblance to Pettit's notion of freedom as nondomination, see Pettit 1997.
42
Kant 1996, AK, 6: 434f; Kant 1997, AK 4: 434ff.
16
instrumental justification of constitutional democracy. It is not instrumental in the sense that the value of the
rule of law and democratic institutions are judged from the outcomes in terms of decisions, but in the sense
that the institutions of constitutional democracy are justified as instrumental for achieving the realization of
moral principles that can be fully specified apart from these institutions. The alternative to this approach is the
idea that the appropriate idea of respect for autonomy or equal freedom "cannot be conceived apart from a
public legal order."43 As I mentioned from the outset, I take it as a given that a public legal order or the rule of
law is a normative and functional necessity for securing equal freedom. Thus, the freedom argument proposes
not a pre-institutional understanding of freedom and autonomy, but a form of equal freedom and autonomy
that is appropriate for a plurality of persons living "in a society where there are laws."44 In the vocabulary of
17th and 18th century political thought, the freedom argument is committed to respect not for natural or
lawless freedom but for civil freedom, freedom under law.45 The freedom argument, then, begins with a
common legal order and considers the type of freedom or autonomy that this makes possible. But it also goes
one step further and shows that democracy is requires for equal freedom.
[24] In the last few paragraphs, I have made three suggestions: First, that autonomy should be seen as a norm
to be respected rather than as a good to be promoted; second, that autonomy should be specified as not
having a master, and, third, democratic institutions should not be seen as instrumental to realizing a moral
principle of respect for autonomy specified independently of these institutions but rather as something
without which we cannot specify the right understanding of autonomy. The third point should be seen in
contrast to the equality argument. Christiano specifies a moral ideal of equality as equal advancement of
43
See Ripstein 2009, 9, that suggests that we find such an idea in Kant's Rechtslehre. The distinction in this paragraph
draws on Ripstein 2009, 7-11, 197ff, 224ff.
44
Montesquieu 1989, 155.
45
Locke 1993, §57, pp. 288f; Montesquieu 1989, 155; Rousseau,1987, Bk. I, ch 8; Kant 1996, AK, 6: 315f; on Kant, see
Ripstein 2009, 199.
17
interests or well-being independently of and prior to a notion of a public legal order and democratic
institutions and then suggests that democratic institutions are the best means to realize this ideal.46 The
fundamental moral concern in Christiano is well-being, which he then argues can be advanced equally only by
democratic decision-making for some contingent reasons (cognitive bias, fallibility, disagreement). My
suggestion is that his utilization of this approach is part of the reason that Christiano's theory is vulnerable to
the type of epistemic objection launched by Estlund. Christiano begins from a moral theory about the just
distribution of benefits and burdens, rather than a theory of how people living in a society with laws ought to
relate to each other as free and autonomous, and this makes him fall into the type of instrumentalism outlined
in the previous paragraph. Relying on such an instrumentalism about democratic institutions, the equality
argument for democracy cannot avoid invoking procedure-independent epistemic standards. The egalitarian
defense of democratic institutions, then, becomes conditional on that democratic institutions do advance
interests equally.
VI.
Participation in Collective Self-Legislation
[25] The idea of respect for autonomy, as outlined in the previous section, does not yet say anything about
democracy; it says only that citizens must stand in a relation to each other where no one is able to dominate
another, where no one has a master. But the democratic idea of equal participation in collective self-legislation
is an implication of the former idea. In a free political community, one cannot and should not escape common
rules – because such rules are constitutive of equal freedom – but one can become an equal participant in the
46
To be fair, Christiano develops a rather complex argument about the relationship between equality, the need for
common rules, and democracy, see Christiano 2008, 78ff. Still, I think it is fair to say that his principle of equality as equal
advancement of well-being is an independently conceived moral principle that is then applied to the circumstances of
politics.
18
making of these rules. The only way in which members of the same political community can avoid being subject
to the arbitrary choice of others, that is avoid being dominated, is by being equal participants in the making of
common rules. This does not mean that collective self-legislation is a mere means to respect for autonomy; it is
rather constitutive of it. My understanding of respect for autonomy implies, moreover, "that the political
process [must] solicit the participation of each citizen as a potential agent of political decision."47
[26] What does being a participant in collective self-legislation mean and why should we hope for it? To be selflegislating means not acknowledging any other authority than one that springs from oneself. To be a
participant in collective self-legislation means not acknowledging any other authority than one that springs
from a joint or collective process in which one is, somehow, an equal and effective participant. Citizens are free
as participants in processes of collective self-legislation because they "regard themselves as bound only by the
results of their deliberations and by the preconditions for that deliberation."48 Note that this is an account of
what gives democracy legitimacy and not an account of what makes decisions just. It is not the outcome of
democratic decisions that makes citizens free and democratic decision-making legitimate, but rather the fact
that in democracy no one can – without violating democratic principles – dominate or make choices on others'
behalf, that is, make collective choices without giving everyone equal influence and control in the process of
political opinion- and will-formation.49 In addition, because democratic decisions are seen as legitimate in
terms of their source and not their content, and because their source is the freedom of citizens, citizens are
always free to contest and try to change the law. Citizens should hope to have the opportunity to be
participants in collective self-legislating because this is a precondition of their freedom.
47
Richardson 2002, 63.
Cohen 1997, 74.
49
It is a large question what type of influence and control is required for nondomination, and to be complete my
argument would have to consider this issue. For one proposal, see Pettit 2012. [On "influence", see Cohen and Arato
1992.]
48
19
[27] This freedom argument for collective self-legislation should not be confused with the Rousseauian idea
that one can equate collective self-legislation with individual self-legislation. Many have pointed out the
implausibility of Rousseau's view that obeying the will of the people is to obey oneself.50 Often in democratic
politics, you will be subject to decisions with which you disagree; you will be subject to the will of others rather
than your own will. And, as I mentioned at the outset, we have not succeeded in explaining the idea of
democratic legitimacy unless we have explained the moral bindingness of decisions with which one disagrees.
Therefore, what I claim is not that obedience to the will of the people or the majority is a kind of freedom, but
rather that having the opportunity to participate in processes of collective self-legislation is so.51 The idea of
collective self-legislation is part of the freedom argument for democracy, because it is a kind of freedom to be
able to decide jointly with one's co-citizens what they ought to do together, what the laws ought to be. The
value of democracy is that the authority to which you are subject is not an alien or arbitrary will, a will that
imposes on you at its own pleasure. Rather, the legitimacy of democracy lies in that everyone has equal access
to influence and control the government.52 If making decisions by the majority principle were all there was to
democracy this would be hard to understand; for viewed in isolation the minority is subject to the will of
another, the majority. But decisions by the majority are not all there is to democracy. Actual democracies are
not purely majoritarian but include a number of institutional mechanisms – dispersal of power,
constitutionalism – that has the aim of securing that citizens are not subject to domination by the majority.53
And normatively, "Democracies ought to be organized so that decisions result from a fair process in which
50
Thus, John Stuart Mill (1989: 7f): “The ‘people’ who exercise the power are not always the same people as those over
whom power is exercised; and the ‘self-government’ is not the government of each by himself, but of each by all the rest”.
See also Estlund 2008, 109f; Pettit 1999: 174; Richardson 2002, 59f; Wolff 1998.
51
Rostbøll 2008, 104f.
52
Pettit 2012, 153, 169.
53
I do not have the space to go into this, but see Richardson 2002, 11ff.
20
citizens participate sufficiently so that it is true to say that they together decide what ought to be done. Only a
democracy so organized adequately respects persons' autonomy."54
[28] The importance of holding on to the idea of collective self-legislation can be understood also by
distinguishing it from a weaker idea of self-government.55 The idea of respect for autonomy might be thought
to require only that the state respect citizens' ability to know what is morally right and conform its rules and
commands to this. In this view, which I shall call the self-government view, citizens' autonomy is respected if
the substance of law is compatible with citizens regarding themselves as autonomous and rational beings. This
way of invoking autonomy focuses on citizens' autonomy as subject to law, focuses on the content of law, and
ignores the source of law. It is, thus, possible to be self-governing under laws that meet an independent,
externally imposed criterion of rightness, if this criterion is one that is based on a substantive notion of respect
for citizens' capacities as autonomous beings. Self-legislation, as I use it, is a stronger notion. It implies that it is
fundamental for freedom not merely to respect citizens' moral personality as autonomous beings as subject to
law, but to respect them as capable of being the actual authors of the laws they live under. When citizens
regard the principles that are binding on them as the product of collective self-legislation, then they award
each other a certain standing; they respect the status of each as co-author of common principles.
[29] The distinction between self-government and self-legislation is sometimes blurred in democratic theory;
for example, when it is suggested that a law is legitimate if it could have been accepted under some ideal
54
Richardson 2002, 179.
The distinction draws on Schneewind 1998, 513-515, but my understanding of self-legislation is not the exact Kantian
one that he discusses. See also Rostbøll 2011, 359ff.
55
21
conditions, as in the deliberative models of Joshua Cohen and Jürgen Habermas.56 Self-government only
requires for a law to be legitimate that autonomous beings have sufficient reason to endorse it, while selflegislation requires that citizens actually have the possibility of giving and evaluating reasons for the law.57 The
freedom argument is that enjoying nondomination requires not merely that one be treated as able to respond
appropriately to reasons given by others and embedded in common laws; one must be able to influence and
control the making of the laws by having an equal say in the process that produces them.
VII.
Is the Freedom Argument an Intrinsic Argument for Democracy?
[30] Is the preceding freedom and self-legislation argument for democracy an instrumental or an intrinsic
argument for democracy? According to the freedom argument, to be free citizens must accept the authority of
a common, public legal order, and they must be equal participants in imposing that legal order on themselves.
This requirement of freedom is fundamental and it has priority over any outcome principle. Also, epistemic
aims specified independently of the legal and democratic institutions and procedures in question are not
necessary to explain their legitimacy and value. Rather, the principle of autonomy and collective self-legislation
are internal to a public legal order and democracy. First, equal freedom and respect for autonomy is a principle
that cannot be understood without the idea of a public legal order. Second, this legal order must be
democratically imposed and renewed in order to respect citizens' freedom and autonomy, that is, in order that
citizens can see it as a product of their own will and not as externally imposed. The notion that democracyindependent epistemic standards are needed to explain the legitimacy of democracy depends on that we have
56
Cohen (1997: 73): "democratic outcomes are legitimate if and only if they could be the object of a free and reasoned
agreement among equals." Habermas (1998: 259): “a regulation may claim legitimacy only if all possibly affected by it
could consent to it after participating in rational discourses.” Emphases added in both quotes.
57
Rostbøll 2011, 361; 2008, 73.
22
standards that can be conceived and fully determined independently of the idea of a public legal order that is
democratically imposed. It is the latter notion that the freedom argument rejects. The ideas of equal freedom
and collectively self-legislation, as understood here, have only a meaning within a political society in which
citizens live under common laws, and the legitimacy of democracy must be understood in relation to such an
order rather than with reference to standards conceived independently of it. Thus, the public legal order and
democratic institutions are not causal means for realizing freedom, as conceived in this paper.
[31] It might be argued that the freedom argument is instrumental in a way that the equality argument is not.
The freedom argument is concerned that the outcome has a certain quality, namely the quality of being selflegislated: Citizens must be able to see the outcome, the laws, as something that they have given to
themselves. On the one hand, this might be seen as an advantage of the freedom argument because it can
explain why the people's views and judgments must be heard, and why a coin flip would not have the same
value and legitimacy as democratic procedures. On the other hand, it might be seen as a disadvantage, because
it might be said to rely on democracy-independent standards. Thus, it could be objected that this view relies on
the procedure-independent standard for outcomes that there should be a certain correspondence between the
people's views and political outcomes.58 But this objection presupposes that the fundamental aim of selflegislation is the end of securing conformity between citizens' interests and the outcome, and that it is this end
state that legitimizes the procedure. My alternative to this view is the idea that what justifies democratic
procedures of self-legislation is not the end achieved but, instead, that these procedures constitute a
relationship among citizens where no one is in a position to dominate another, where no one is another's
master. It is not any democracy-independent epistemic standard for outcomes that justifies the procedure but
rather the democracy-internal standard of treating each citizen as his own master that does so. The point is
58
Estlund 2008, 92f.
23
that each citizens can only see herself as free and self-legislating if the outcomes of democratic procedures is
subject to her influence and control, that is, if her opinions and judgments have had uptake,59 and she has been
treated as an equal contributor in and to the democratic process.
[32] One great advantage of the freedom argument, as I have sketched it, is that it is not vulnerable to the form
of dynamic-of-retreat objection that the equality argument is. The freedom argument does not retreat to
procedures because of disagreement on outcomes (or other contingent factors); rather, it begins with how
political institutions should relate persons who have purposes of their own to each other. Whether or not
citizens agree on political outcomes, the priority is to secure that no person is another person's master. This
requires that the state respect everyone's autonomy and that everyone can be an equal and effective
participant in processes of collective self-legislation. The freedom argument, therefore, must deny Estlund's
intuitive priority of substance over procedure. The latter intuition relies on that what matters morally is what
we get and not how we relate to each other. The freedom argument rejects this idea.60 Estlund shares with the
equality argument, which he criticizes, the focus on democracy as a means of bringing something about,
whereas the freedom argument sees creating relations of nondomination as primary and as the source of
political legitimacy. While the intuitive priority of substance over procedure might apply to intimate relations, it
does not carry over to political society in which a plurality of strangers lives under common laws. The reason is
that in the latter situation, the ideal of freedom as nondomination "requires independency on the will of
others, even the goodwill of others."61 To agree on the substance about what to do together secures only that
one gets what one wants; it does not secure that the relation one has with one's fellow citizens is a
59
"Uptake of reasons does not require that the course of action decided upon in deliberation be the one supported by my
reasons, Rather, uptake … of my reasons by others only shapes and influences the process of deliberation itself, so that I
can at least recognize my reasons as having shaped and influenced the outcome favorable." Bohman 1997, 335.
60
Cf. Korsgaard (1996b, 275): “The subject matter of morality is not what we should bring about, but how we should
relate to one another.”
61
Pettit 2012, 184.
24
nondominating one. Agreement on substance cannot deliver what is most fundamental, respect for autonomy
and the status of being a free and equal participant in processes of collective self-legislation. Only a
constitutional democracy can achieve this.62
[33] In so far as there is a certain similarity to some of what I have said and deliberative theories such as those
of Habermas and Joshua Cohen, Estlund might suggest that the freedom argument is an instrumental and
epistemic argument for the following reason:63 These deliberative theorists, as mentioned, sometimes say that
the criterion of legitimacy is that the outcome is legitimate if it could have been agreed to under an ideal
procedure. Such an approach entails a standard that is independent of the actual democratic procedure,
namely what could have been the result of an ideal procedure. It is also an approach that evaluates procedures
in terms of outcomes, according to Estlund. I agree that in this sense procedure-independent standards do play
a role in deliberative theories such as Habermas's and Cohen's. What Estlund fails to note is that from the
perspective of citizens there is still no source of legitimate authority except the results and preconditions of
their own deliberations. Citizens are not bound by the results of ideal procedures, because they cannot know
what the results of such procedures would be.64 Democratic procedures, thus, has intrinsic value in the sense
that they alone are the source of democratic legitimacy.
[34] Still, Estlund is right that democratic procedures on the deliberative model must be designed with an
expectation of that they produce epistemically good outcomes. The value of deliberative democratic
procedures in Habermas and Cohen cannot be explained merely because of their inherent features but must
also be a matter of their tendency to produce good outcomes. My freedom argument, however, differs from
62
The last part of this paragraph draws on Pettit 2012, 181ff, but his aim is a different one, namely to show that morality is
not sufficient to secure the good of nondomination, and that a coercive state is needed for this.
63
Estlund 2008, 2008, 88-93.
64
See Habermas (1998, 396f) on this issue.
25
Habermas's and Cohen's approach to democratic legitimacy in that it is not based on an ideal model for
producing valid or just outcomes. The freedom argument is not based on bringing anything about at all. The
legitimacy of democratic decision-making, according to the freedom argument, is only – that is, fundamentally
– that democratic self-legislation is required by the principle that no one is in a position to dominate others.
Legitimacy comes from deciding for oneself and equally sharing in joint processes of collective decision-making,
as opposed to being decided for by others. Just as individual rights to decide for oneself are justified
independently of the result, so democratic rights are justified independently of the tendency to produce
epistemically superior outcomes. This does not mean that the issue of which institutions and procedures
produce the best or just decisions is irrelevant, but it means that the quality of outcomes is not what explains
the fundamental legitimacy of democratic as opposed to non-democratic decision-making.
[35] The moral importance of democracy lies in that it is required by the ideal of relating a plurality of persons
to each other in a political society in a way in which no one is in a position to dominate others. This value is not
a matter of promoting some end, but rather of respecting citizens' equal freedom. But do we really need
democratic procedures in which the views of each is heard to realize this ideal? Wouldn't selecting
representatives or laws following a coin flip also be a procedure in which no one is in a position to be another's
master? A coin flip could hardly be characterized as a procedure where one person unilaterally imposes her
own will on the rest and thus dominates them. In the response to this objection, we can see a fundamental
difference between the equality argument and the freedom argument for democracy. The coin flip does
recognize the equality of citizens but it does not in any meaningful sense respect their autonomy in a way that
also makes them participants in collectively self-legislation. A coin flip does not solicit participation, as I said the
political process must do to respect autonomy. Respecting autonomy is respecting citizens as persons, which
means respecting their ability to think and judge for themselves, which includes also their ability to judge on
26
the validity of the laws to which they are subject as addressees. Moreover, the freedom argument entails a
form of recursivity, where what is required for respecting equal freedom is something that must be determined
by the involved parties themselves. Citizens only show themselves as authors of the laws that bind them when
they actively and jointly define what living as free and equal means and requires.65 A procedure that does not
give the participants the opportunity to determine for themselves what it means to be treated as free and
equal, is not a procedure that respects their autonomy and their status as co-rulers.
[36] Note how respect for autonomy and the freedom to have the opportunity to participate in collective selflegislation are connected and that both are necessary parts of the freedom argument. This means that respect
for autonomy on the freedom argument is not realized merely by having the opportunity to exercise one's
autonomy, e.g., by having the opportunity to exercise one's deliberative capacities. Participation is an inherent
feature of democracy but its intrinsic value is not grounded in the joy of participation but in the idea that a
political process that solicits participation by everyone in shared collective self-legislation constitutes relations
of respect for autonomy. When respect for autonomy is combined with the freedom to participate on equal
terms and jointly with other citizens in collective self-legislation, the exercise of one's deliberative capacities
must have an actual influence in the democratic process. And the influence must be the influence of someone
who is respected as capable of thinking and judging for herself in a process of collective self-legislation she
shares with others who are equally treated as autonomous. When the respect for autonomy component is
combined with the participation in collective self-legislation component, it becomes clear why it matters not
65
Benhabib 1996, 79; 2004, 181; Rostbøll 2010, 416; 2011, 12f
27
only to respect people's autonomy but also why the political process must do so in a way that enables each to
influence the outcome in joint deliberation and democratic decision-making, and not in some random way.66
[37] I have argued that the intrinsic value of securing that no one is in a position to dominate another is what
explains the legitimacy of democracy and that this intrinsic value of democratic decision-making has priority
over any outcome principle or epistemic concerns. The idea is that this principle of freedom can explain the
general legitimacy of democratic government. Democratically organized rule is the only or the closest we get to
a form of rule in which no one is the master of another. Now, this does not mean that the principle of freedom
can explain everything about how to organize the democratic state, here epistemic concerns would naturally
play a prominent role. In other words, first we must make sure that the state is organized in such a way that it
respects the equal freedom and autonomy of everyone, and then we can consider epistemic concerns. This
position can be seen in contrast to Estlund's epistemic proceduralism, which brings in epistemic concerns at
the fundamental stage of explaining the authority and legitimacy of democracy. The trouble with Estlund's
position is that it might justify forms of democratic organization and activity, which disregards respect for
autonomy for the sake of the goal of truth-promotion.67 The epistemic model lacks the principle that will
constrain which means can be used for epistemic aims.68 As Estlund himself notes, when "the aim is epistemic
there is no reason to seek such resemblance [with an ideal deliberative situation] for its own sake."69 The
freedom argument, by contrast, suggests that there is a reason to seek resemblance with an ideal of mutual
respect for autonomy and participation in collective self-legislation for its own sake: It is this ideal that explains
the legitimacy and value of democracy.
66
I believe this specification avoids the objection Estlund (2008, 93ff) raises against Jeremy Waldron. The problem with
Waldron's argument being that he does not combine the respect for autonomy component with an idea of collectively
self-legilsation.
67
Cf. Saffon and Urbinati 2013, 2, 6.
68
Rostbøll 2009, 31f.
69
Estlund 2008, 19.
28
VIII.
Objections to the Freedom Argument
[38] Freedom and self-legislation arguments for democracy have been subject to a number of objections. I
cannot respond to all of them here, but will focus on some core objections. Particularly, I want to suggest that
some objections to the freedom argument for democracy rely on the assumption that the freedom argument
relies on a pre-institutional or pre-political understanding of freedom. But the notion of freedom that I suggest
can explain the legitimacy of democracy is an institutional and relational conception of freedom, that is, it is a
form of freedom that can be applied only to a plurality of people living together in political society. This starting
point will help us respond to an objection suggested by Christiano who, as mentioned, advances the equality
argument for democracy because he finds the freedom argument untenable. Christiano objects to the freedom
argument for democracy in the following terms: “Democracy is a system of decisionmaking where each is
dependent on the assent or actions of many others to secure what they want.”70 This dependence on the
assent of others is “a paradigmatic case of unfreedom.”71 This objection relies on an asocial conception of
freedom, an idea of freedom that can be achieved only by being isolated from other people. This is not the
type of freedom that my argument relies on.72 Christiano, moreover, speaks as if it is democracy that makes us
dependent, but this gets the issue backwards. Dependence is inevitable in political society, the aim is to make it
legitimate, as Rousseau might put it.73 Thus, the starting point for my freedom argument is that a public legal
order is necessary for freedom as a relational idea and that the only way in which citizens can live under a
70
Christiano 1996: 25, emphasis added.
Christiano 1996: 24. In his 2008 book, Christiano seems to have a better understanding for the dependence of political
society than in his 1996 book, but he stills rejects the freedom arguments and refers to his earlier analysis.
72
In Philip Pettit's terms, Christiano relies here on freedom as noninterference, which can be achieved "on the heath",
while my understanding of freedom is closer to the republican freedom as nondomination, which "is a social ideal whose
realization presupposes the presence of a number of mutually interactive agents” (Pettit 1997: 66).
73
Following Rousseau Benjamin Barber (1994, 216) writes: “If the human essence is social, then men and women have to
choose not between independence or dependence but between citizenship or slavery.”
71
29
public legal order without dominating each other is by making this legal order subject to democratic decisionmaking. Now, the objection might be reformulated from the idea that democracy makes us dependent to the
objection that democracy does not and cannot achieve the aim of making us independent of the choice of
others. This is an important challenge, but it is important not to see it against an idea of natural or preinstitutional freedom. The question is not whether we can be free from interference of others but whether we
can be free from the domination of others.
[39] It is an often-repeated criticism of the freedom argument for the intrinsic value of democracy that it
implies that “the liberty involved in participating in ruling the society is more important than the individual
liberty involved in more private pursuits.”74 It is objected that proponents of the freedom argument cannot
explain this priority of political freedom over private freedom and that in fact “most people tend to find more
fulfillment in the private sphere. They would rather cultivate their garden than the public good.”75 On this
basis, it may be asked why a little political freedom cannot be traded off for a lot of private freedom to increase
overall freedom.76 This objection implies, first, that freedom is something that should be maximized rather
than something to be respected. Second, it implies that there are two different kinds of freedom, private and
political, each making it possible to partake in different kinds of activities, cultivating one’s garden vs.
cultivating the public good, and that the value of each is independent of whether one enjoys the other. Third,
the objection implies that the freedom argument holds that political freedom (the liberty of the ancients) is
more important than private freedom (the liberty of the moderns).77 My freedom argument rejects that
freedom is something to be maximized and sees it as something to be respected, and it rejects that the value of
74
Christiano 1996: 19.
Bellamy 2008: 162.
76
Christiano 1996: 19, 26.
77
The terms "liberty of the ancients" and "liberty of the moderns" are due to Benjamin Constant (1988). The first refers to
freedoms of political participation, while the latter refers to private freedoms relating to property, contract, conscience,
religion, fair trial etc.
75
30
the liberty of the ancients and the liberty of the moderns can be seen as independent of each other. Moreover,
I don't suggest that political freedom is more important for people than private freedom. However, I accept
that in the freedom argument for democracy political freedom has special importance. But what makes
political freedom special is not that it is a higher good that can be weighed against the good of private
freedom. My suggestion is that private freedom does not have the same meaning and value without political
freedom. Political freedom has a special importance because it also changes the relation in which the privately
free individual stands to her co-citizens. Without political freedom, private freedom will be something that will
be given to us by others, not something we have given ourselves. If we have only private freedom, while others
rule us (even if our private freedoms are legally protected by rights), we will still stand in a subordinate
relationship to others, we will still have masters. The notion of freedom advanced here includes the idea that it
is not the same freedom we enjoy with and without political freedom. But we might say also that political
freedom without private freedom is also not the same freedom. If citizens do not share the same private
freedoms, they will not be able to see themselves as equally free participants in political life.78
[40] Often the idea that democracy is intrinsically valuable because it expresses the value of freedom is
rejected as an untenable sectarian or perfectionistic idea. And, indeed, there are strong reasons for rejecting
freedom arguments for democracy that rely on a conception of the good life that all citizens do not share and
are not unreasonable to reject. In other words, the freedom argument for democracy should not turn on a
sectarian conception of the good nor on what Rawls calls a comprehensive doctrine. This is so not only because
it would violate citizens’ freedom to determine their own conception of the good but also because it would
contravene the democratic ideal of self-rule. As Corey Brettschneider puts it, “subordinating democratic
institutions to one particular comprehensive view would impose external rule on citizens who, reasonably, did
78
On the last point, see Cohen and Arato 1992 and Zurn 2007.
31
not share that view.”79 So the ideal of collective self-legislation does not by itself imply an untenable
sectarianism but rather condemns it. Moreover, as I have emphasized, my argument does not rely on that
autonomy is a good that should be promoted or maximized (which would involve sectarianism or
perfectionism), but rather on a specific ideal about how citizens ought to relate to one another. We are
concerned here with a principle regulating social relations among citizens rather than with the content of the
lives, these people should live. Thus, using the distinction suggested in section II, I defend democracy as the
source of value, rather than as an activity, citizens are presumed to enjoy engaging in as end.
IX.
Conclusion
[41] This paper has defended the view that democratic legitimacy can best be explained on the basis of a
freedom argument that awards democracy intrinsic value. The reason why I must accept democratically
enacted laws as morally binding, even when I disagree with them, is that this is a precondition for mutual
respect for autonomy and for that no person is another person's master. Democratic procedures that solicit the
equal participation of everyone in collective decision-making are constitutive of relations of nondomination.
And it is exactly the kind of relations among people democracies constitute, rather than what they bring about
that is the key to understand why democratic governments have a legitimacy that non-democratic
governments lack. Other forms of government might bring about equally valuable goods as democracies do,
but they cannot do so in a way that respects citizens' freedom and autonomy. This defense of democracy not
only does not rely on procedure-independent epistemic standards; it also gives a more robust defense of
democracy than do instrumental and epistemic theories.
79
Brettschneider 2007, 19.
32
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