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Draft, May 5, 2023, Please do not quote or circulate without permission from the author.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.

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[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.

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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 procedure-independent

– 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.6 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.

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[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.

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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.

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[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.13 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. 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.

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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 decision-

making 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, 96.17 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.

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but also respect for citizens' autonomy and their opportunity to be effective participants in collective self-

legislation.

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

democratic procedures are tailored to the fact that people will disagree on the substance of justice.23 We might

21 Christiano 1996: 42.22 Christiano 2008, ch. 2 and 3.23 Christiano 2008, 95f, 101f. Christiano assumes "agreement on that each person ought to have an equal say in the process of establishing justice" (101).

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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

[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 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.26 Christiano 2008, 25.

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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

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 27 Estlund 2008, 65, 93.28 Estlund 2008, 70ff.29 Estlund 2008, 71.

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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 procedure-

independent 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 procedure-

independent 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.

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

30 Estlund 2008, 72f, 82ff.31 Estlund 2008, 82.32 Estlund 2008: 8.33 Estlund 2008, 108.

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correct outcome is. In fact, self-proclaimed procedural or intrinsic theories already rely on such procedure-

independent 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

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 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.

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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

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.

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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

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.

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.

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[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

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

38 See further Rostbøll 2011, 345f.39 Rostbøll 2011, 355; cf. Forst 2007, 302.40 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.

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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

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

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.

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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

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

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, 199.46 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.

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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

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

47 Richardson 2002, 63.

18

[26] What does being a participant in collective self-legislation mean and why should we hope for it? To be self-

legislating 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.

[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

48 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.]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.

19

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

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

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.54 Richardson 2002, 179.55 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.

20

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

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 self-

legislation 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.

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.

21

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 democracy-

independent epistemic standards are needed to explain the legitimacy of democracy depends on that we have

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 self-

legislated: Citizens must be able to see the outcome, the laws, as something that they have given to

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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 self-

legislation 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

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

58 Estlund 2008, 92f.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.

23

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

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,

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, 184.62 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.

24

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

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.

64 See Habermas (1998, 396f) on this issue.

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[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

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 self-

legislation are connected and that both are necessary parts of the freedom argument. This means that respect

65 Benhabib 1996, 79; 2004, 181; Rostbøll 2010, 416; 2011, 12f

26

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

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 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.

27

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.

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

67 Cf. Saffon and Urbinati 2013, 2, 6.68 Rostbøll 2009, 31f.69 Estlund 2008, 19.70 Christiano 1996: 25, emphasis added.

28

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

public legal order without dominating each other is by making this legal order subject to democratic decision-

making. 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 pre-

institutional 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

71 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.”74 Christiano 1996: 19.75 Bellamy 2008: 162.

29

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

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

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.78 On the last point, see Cohen and Arato 1992 and Zurn 2007.

30

[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

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

79 Brettschneider 2007, 19.

31

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.

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