The way Brettschneider sees it, democratic theory has been stuck between a rock and a hard place.  Say that we believe, as most advocates of democracy do, that "democracy is the fundamental basis for legitimate polities." [8] Proceduralists about democracy certainly endorse this claim, but then confront an embarrassing problem, that democratic procedures can result in repugnant outcomes.  What if the majority votes to strip some minority of their free speech rights, or their right to vote?  What if the majority votes to do away with democracy?  Have these seemingly illegitimate outcomes thus been legitimated?  Embarrassing.  Others appeal to substantive individual rights [8] to resolve this problem.  If democratic procedures lead to outcomes that violate substantive rights, then they are not legitimate (e.g. are voided).  But this introduces what Brettschneider characterizes as the "problem of constraint": "How to reconcile external constraints on democratic procedures with the belief that democracy is the fundamental basis for legitimate politics." [8]  What legitimates these constraints that are independent of democracy?  What are they, and who interprets them?  Doesn't the appeal to such constraints on democracy invariably have anti-democratic implications?  Many of those who appeal to such substantive rights that are independent of democracy view democracy as merely the most useful means to enforce and safeguard such rights.  But this is an empirical claim, and seems to allow that if we found a more effective way of safeguarding substantive rights, it would then be appropriate to do away with democracy entirely.  Brettschneider believes that there is a path between this rock of proceduralism and the hard place of independent rights that constrain democracy, and argues for it in the excerpt we are discussing on tomorrow.  His path, the value theory of democracy, avoids the shortcomings of purely procedural approaches, while also avoiding the problem of constraint.  What this view is, and how he thinks it preserves the strengths of each approach while avoiding their weaknesses, is something that we want to talk about tomorrow.  See you then! 

Comment to XY

The blog will only let me publish this as a post for some reason, but it's just a comment in response to XY's most recent comment on Grace's post. Sorry for being so technologically challenged and taking up a post with this!

XY,

I think that Ripstein actually says something different about free speech; on p. 264 he says that "the Kantian analysis also explains the familiar idea that public speech is largely exempt from the police power, even when people find the speech inconvenient or troubling." I guess whether or not inflammatory speech is allowed depends partly on your definition of "inflammatory," but for the most part, I think that public speech--both pleasant and unpleasant--is allowed under Ripstein/Kant's view. Ripstein actually goes on to say that the ability of to exercise free public speech is so important because it functions as a tool "through which the state can bring itself more nearly into conformity with the concepts of right in a way that is not itself inconsistent with those concepts" (264). There might be an instance when public speech was so inflammatory that it infringed on others' freedoms, and in that case, I agree that it might not be allowed. But otherwise, public speech does not seem like it can be regulated apart from "neutral limits on time, place, and manner" (264).

I agree that extreme religious actions that infringe on other people's independence/lives would be banned under Kant's view, as would dangerous drugs that led people to hurt/kill others. However, I think it would be difficult to make a case for banning recreational drugs, as it's harder to see how recreational drug use infringes on other people's right to themselves and their property.

KANTradiction?

Ripstein contrasts Kant's non-determinate based theory with that of the Lockean/deontologist or utilitarian/egalitarian who is focused on outcomes. Public legal rules and institutions in a non-Kantian philosophy are justified by their ability to lead society toward predetermined moral/good-maximizing/etc outcomes. "The question," Ripstein writes, "of what results the state should aim to produce is prior to any question about the most effective means of producing it" (9). Kant rejects this framework, arguing instead that legal institutions are not justified because of outcomes but instead necessary because of the need to preserve "each person's entitlement to be his or her own master...consistent with the entitlement of others" (9). Thus, Kant claims supremacy over the other philosophers, because their philosophies are reliant upon the idea that "any particular situation is fully determinate" (9). I see his point when considering philosophers rooted entirely in public outcomes, eg: we need government to ensure equality of income distribution. However, his justification for government (public laws) is also rooted in an outcome, the preservation of each person's entitlement to be their own master. How is this superior to Locke's justification of civil society for the preservation of property (life, liberty and estate)? Kant may argue his theory of true freedom, in his case independence, is better than that put forth by Locke, but Ripstein/Kant seem to confuse philosophers with those implementing their ideas. There is fair criticism to leveled against Lockeans here, but it seems contradictory to criticize Locke himself.

Freedom and Public Interest

In chapter 8, Ripstein discusses that for there to be a "regime of equal private freedom," there must be a system in which a state can compel its citizens to do their part in creating and maintaing this condition. As Professor Hurley mentioned, Ripstein makes the case that private property without public roads takes away an individual's liberty to access the property. Public services, such as access to public roads, ensure people's individual rights and liberties. Ripstein writes that "the state is entitled to make people contribute, both positively and negatively, to their provision, and to regulate them based on a variety of considerations" (238). He is careful to say that this does not mean that the state can autonomously use force to get the cooperation of people. He writes that this mandatory cooperation does not require the assumption "about the state having any more general power to make life convenient" (238). The problem that comes up then is how to define "general power" and where to draw the line between the state acting on behalf of the people to ensure individual liberty, such as the right to property, and the state taking away an individual's liberty for the sake of the public interest. People disagree on whether the government should set strict rules regarding curfew or legalize the use of recreational drugs. One can make the case that both these examples limit an individual's freedom; however they can also be used to argue that the state is acting to protect the interests of the public.

 Although I agree that public authority that can mandate public cooperation through police power is necessary for exercise of other important rights, it is difficult for a state to fairly discern, in a society of people with diverse backgrounds and beliefs, to set laws to protect the interests of the general public  and to ensure that peoples' individual freedoms are not restricted through these laws. Examples that come to mind include the freedom of speech and and religion. We can all agree that these two freedoms should be guaranteed to people. However, at what point should the state intervene to restrict these freedoms on the grounds that it is taking away the freedoms of others ?

One of the cool things about Kant, on Ripstein's reading, is that he is offering a completely different account of the relationship between public right and private right.  As Fiona points out in her draft post, Kant takes freedom to be independence: each person is entitled "to be his or her own master," [4] rather "than the servant of another." [5]  Freedom as independence accounts for the innate private right that each of us has to our own body, and it accounts for why each of us requires a property in things beyond our body, i.e. a private right to land, etc.  But problems of assurance, indeterminacy, and unilateral judgment stand in the way of such legitimate private right to legitimate private property in things beyond our body without the establishment of public powers that can solve these problems of assurance, indeterminacy, and unilateral judgment, in the process paving the way for private right.  In other words, public power is a condition of the extension of private right from our bodies to things and to land.  Notice the subtle but profound shift from Locke and Nozick.  It is not that we have private property, and need the state to protect it; it is that the state (public power) is necessary to establish the conditions of equal individual freedom that are necessary to legitimately acquire rights to private property in things and land.  On this view, you CAN'T have private rights to things and land without the public power of the state.

The chapter 8 argument can be understood as making this point about a specific public power, the power to create, operate, and maintain public roads.  Ripstein is making the case that without public roads maintained by a public authority via public taxation, we cannot have legitimate private property in land.  Private right to land without public roads will violate the conditions of equal individual freedom, hence will be illegitimate.  Putting the point another way, a libertarian account of property fundamentally violates individual liberty -- quite the ironic outcome!  Views about taxes, about when the state can legitimately mandate the cooperation of its citizens, about obligations to the poor, etc., all follow from this fundamental relationship between public and private -- that legitimate public authority is necessary for the the exercise of private right.

Looking forward to tomorrow!
 

Kantian Independence

I found the description of Kantian independence interesting, especially because I think seems to be a contradictory element. Independence comes from the distinction between person and thing, as "a person is a being capable of setting his or her own purpose, while a thing is something that can be used in pursuit of purposes" (14). Ripstein goes on to say, "you are independent if you are the one who decides which purposes you will pursue" (14). This idea of independence is basically that you are independent when you make all the choices for your body and nobody else makes decisions for you. Dependence is when another "person gets to decide what purposes you will pursue" (15). I find all of this convincing and an interesting take on independence, as there is a distinction between autonomy and independence. I found it contradictory that Ripstein explains autonomy as something stand alone, but says that independence can only be understood in relation to dependence. He writes that, "Kantian independence is not a feature of the individual person considered in isolation, but of relations of persons" (15). I understand how independence is the counterexample to dependence, but I still feel like somebody could be independent stranded on a desert island and totally alone. That individual would be independent, as she is only subject to her own choices. I do not know if I am totally convinced that independence can only be understood relationally. I agree with the concept of independence as meaning an individual is in charge of her own choices and can only be thought of as an ends, but I feel like this could also apply to a person in isolation.

NYT OP on Rawls v.s. Nozick

Came across this article about Rawls' "social liberalism" v.s. Nozick's "laissez-faire liberalism" by Amia Srvinivasan. I loved it. It's very thoughtful material that'll probably help those doing the Chamberlain paper.

As someone who's for distributive justices, I am more than a little piqued by Nozick's arguments. I thought Srinivasan made a lot of sense. She says someone pro-Nozick must be able to give unequivocal postive responses to the following four questions:

1.  Is any exchange between two people in the absence of direct physical compulsion by one party against the other (or the threat thereof) necessarily free?
2. Is any free (not physically compelled) exchange morally permissible?
3. Do people deserve all they are able, and only what they are able, to get through free exchange?
4. Are people under no obligation to do anything they don’t freely want to do or freely commit themselves to doing?

It's a short read, highly enourage yous to leaf through it.