It has now been over two decades since the publication of Philip Pettit's seminal book Republicanism (1999). The neorepublican approach he inaugurated there is now well established as a distinctive political philosophy that takes the value of freedom as non-domination as one of its central theoretical commitments.1 Republicanism has many features that help explain its influence. First, it provides a systematic reconstruction of the powerful intuitive idea that to be free is to be not enslaved, that is, to not be subject to the arbitrary will of another agent. Using the label ‘non-domination’, it offers an original account of the kind of freedom we can enjoy as members of a society: as individuals who interact with others on equal terms under a government and a system of positive law. Second, it offers a theory of the way the institutions of republican government ought to be designed to promote non-domination in contemporary societies. Based on an egalitarian and inclusive conception of citizenship, Pettit's theory offers valuable tools with which to deal with a variety of practical problems involving institutional design and policy.2 Third, inspired by the work of Quentin Skinner (1997), Pettit argues that representatives of the historical republican tradition had something like his understanding of freedom in mind when they criticised tyrannical governments and defended particular institutional arrangements. This thesis prompted new lines of historical research because it challenged the way the tradition had previously been characterised. In particular, it called into question the widely accepted view that republican thinkers endorsed a positive view of freedom: one that involved active participation in political institutions.
As just mentioned, Pettit's work has had an impact on the way the historical republican tradition is interpreted, putting concerns about threats to freedom at centre stage. However, in achieving this reorientation, Pettit has left other normative concerns at the periphery. In particular, his work has influenced the way many theorists currently see the place that moral rights have within republican philosophy.3 This article argues that the result is that the role of moral rights has been minimised – and their foundational and explanatory role implausibly denied – in mainstream neo-republicanism. In arguing for these claims, my focus will be not only on Pettit's work, but also on the influential theory of Richard Bellamy. Both Pettit and Bellamy admit that protecting a set of legal rights on an equal basis is essential to supporting freedom as non-domination of citizens. But they are critical of the notion of natural rights and, for similar reasons, of any other conception of moral rights that gives them a foundational and explanatory role in republican theory.
Notably, Pettit and Bellamy minimise the extent to which representatives of the historical tradition defended their views on the basis of natural rights. For example, Pettit (1999: 101) admits that John Locke, William Blackstone, and the authors of the Federalist Papers used the language of natural rights to constrain the power of the monarchy and of parliament.4 Pettit suggests that when republicans talked about natural rights they were merely using the phrase in a rhetorical way.5 That is, they only meant to argue for the legal recognition of certain rights as essential to the enjoyment of non-domination; their talk of rights was not an appeal to any sort of fundamental moral norms (1999: 101). To my knowledge, these are the only references that Pettit makes to natural rights republicanism. His discussion of Jean-Jacques Rousseau's and Immanuel Kant's republicanism does not touch on their views on natural rights; nor do his many references to the French and American Revolutions (1999, 2013). Moreover, Pettit argues that republicanism ‘cannot be represented by any stretch of the imagination – or by any will to misrepresentation – as a tradition of rights akin to that which is sometimes associated with liberalism’ (1999: 303).
Following Pettit, Bellamy argues that Locke's political philosophy ‘mixes’ republican language about freedom from arbitrary power with jurisprudential natural rights reasoning. He argues that Locke is best read not as using rights as fundamental norms, but as legal norms that promote freedom as non-domination (2012: 459). Bellamy explicitly links claims about natural rights – when they are understood literally – to a liberal understanding of rights as ‘trumps’ that set limits on the power of governments in order to protect the freedom as non-interference of individuals. And, in explicit contrast to such an understanding, he argues for an alternative account. In his view, rights are best understood as the positive outcome of democratic processes that – provided they satisfy certain conditions – help secure the common good and the freedom as non-domination of citizens. One problem with the way Bellamy contrasts natural rights with what we might call ‘democratic rights’ is that it seems to rule out the possibility of endorsing both natural rights and a conception of freedom as non-domination. But, in my view, this is precisely what at least some historical republicans have done.
It is beyond the scope of this article to discuss Pettit's and Bellamy's historical claims, though I suspect that they are often questionable.6 Rather, I am interested in their views on the significance of moral rights in contemporary neorepublican philosophy. I will argue that Pettit's and Bellamy's views about rights are motivated by certain methodological commitments: in Pettit's case, the commitments are to consequentialism and formalism, while in Bellamy's it is to proceduralism.7 But in fact, there is nothing in neo-republican philosophy that militates against giving moral rights a basic justificatory role.8 Indeed, it turns out that this is a very promising strategy for neo-republicans to adopt when building their theories if – as I have argued elsewhere – one cannot give an informative account of freedom as non-domination without appealing to at least some more basic normative terms (Costa 2007, 2019).
Rights as Moral and Legal Claims
Before turning to the question of how current neo-republicans’ methodological commitments underwrite their views on moral and legal rights, it is worth emphasising that rights play a distinctive practical role in contemporary social life. Joel Feinberg's influential account of rights is particularly useful here (1970). Feinberg defends the view that rights can be understood as valid claims, and that the activity of demanding what one is due is central to the notion of rights. This activity is complex and governed by rules, and these rules can be either legal or moral. Claims about rights count as valid when they are justified by the corresponding system of rules. Claiming rights also involves a particular kind of performance: one that aims at making certain things happen. In this respect, rights seem ideally suited to play a role in the practices of contestation that Pettit describes as checks on the power of government. These practices often challenge predominant understandings of justice and injustice and contribute to extending the benefits of citizenship to new groups (Aitchison 2018). Of course, making claims about rights may fail to produce the desired effects. Such claims may not be properly justified by legal rules or moral principles. And even when they are, those to whom the claims are addressed may not be responsive. Those who are powerful can often bend the interpretation of the law or ignore their moral obligations with a significant degree of impunity. Widespread prejudice often works as a shield against even very well-justified claims by preventing those claims from getting a fair hearing (Costa 2019). The success of practices of contestation crucially depends on people being responsive to the arguments and perspectives of others, a willingness to listen and make an effort to be fair when assessing their demands, rather than dismissing them as lacking credibility (Fricker 2013). But even when they are dismissed, and as Feinberg points out, there are some goods that rights claimants can obtain by simply seeing themselves as holders of rights. The activity of claiming rights supports personal dignity, allowing claimants ‘to stand up and look others in the eye’ (1970: 257).
In some of his early work, Pettit (1986, 1988) himself offers an interesting practical account of rights that does not depend on any particular theory about their foundation. He argues that rights are distinctive in that they are primarily designed to serve individuals in a protective capacity. Claims about rights do not merely present considerations that other people should take into account when they are deciding what is best to do overall. Rather, such claims are meant to elicit a more substantial response: one that protects the rights-bearer against certain types of treatment. Moreover, rights are typically backed by formal or informal sanctions. Pettit points out that in order to serve their protective function, rights must be ‘personalised’ or ‘untradable across persons’. This means that the obligation to respect one individual's right may not be overridden simply in order to minimise the violation of the rights of others. Otherwise the non-violation of rights would be understood merely as a goal, rather than as a genuine constraint on actions that carries significant weight. A closely related feature of rights is that they are ‘privileged’ or ‘trumps’. This means that even if the obligation to respect an individual's right is not absolute, it is not easily overridden. That is, only in very extreme cases will one be justified in violating a right in order to promote collective goods such as peace or public health. Finally, Pettit points out that rights are ‘precise’; their content must be sufficiently clear and determinate that people can be aware of the kind of treatment they require or prohibit. If rights were not precise in this way, they would not help protect individuals in practical contexts.
This article supports the view that rights claims can be underwritten by many different kinds of normative theories. In my view, claims about rights are ‘political’ in the sense used by John Rawls (2001: 1–38): there can be an overlapping consensus on the validity and importance of protecting certain basic rights, even if there are disagreements regarding the comprehensive views that provide a deeper justification for them, as well as some disagreements regarding their content and extent. If rights were not political in this way, they could not serve the protective role they have in contemporary democratic societies: societies that are characterised by a pluralism of substantive outlooks. In such contexts, an overlapping consensus on the validity of rights, at least among a substantial part of the population, turns out to be practically indispensable. Even if the law explicitly granted certain rights, if there was not, in addition, widespread agreement on their moral validity, it would be extremely difficult to enforce those laws and to provide an adequate level of protection for those rights.
Now let me turn to Pettit's and Bellamy's methodological commitments, and the relation of these commitments to their views about rights.
Methodological Commitment I: Consequentialism
Consequentialists like Pettit can accept the practical importance of claims about rights while denying that there are fundamental natural or moral rights (1986: 71–73). Consequentialists claim that the right action is the one that maximises objectively probable value among possible states of the world (Pettit 1988: 43–44). This criterion implies that there is nothing intrinsically wrong about the violation of some rights in certain circumstances – since there is nothing intrinsically wrong with any kind of action. Any plausible version of consequentialism will, of course, favour laws under which certain rights are supported by sanctions, since it is clear that this is the best way to maximise probable value. But Pettit argues for a stronger form of consequentialist recognition of rights that accepts the consequentialist criterion but argues that the kind of moral deliberation that helps us select the best option cannot directly appeal to the criterion of what is right. Rather, we need to employ a restricted form of deliberation. Otherwise, our pursuit of value risks self-defeat. The argument here depends on the idea that certain valuable goods – like dignity or self-respect – can only be obtained by a deliberative strategy that respects rights. The kinds of assurances that people enjoy when they are protected in having certain legal and moral rights is the best way to promote those goods. In Pettit's own words:
a person retains dignity in his treatment by another only if he preserves a certain dominion over how he fares at the other's hands: only if that other agent is not free to do to him whatever he wills, or even whatever some beneficent plan requires. The person must be able to block certain sorts of behavior … even if he retains the power sometimes to license them: the power to loose as well as join. If he cannot exercise such a veto, then he is merely a pawn in the enterprises of the other. (1988: 52)
These remarks connect the enjoyment of the good of dignity with the publicly salient recognition of rights that protect individuals from interference against certain choices. Pettit argues that consequentialists who do not advocate restricting deliberation to options that respect rights are failing to give due importance to the dominion over personal affairs that is required for the enjoyment of dignity. Such consequentialists will allow interference in choices whenever it promises to produce the best consequences overall, and if this fact about moral deliberation is a matter of public knowledge, the promotion of dignity will be undermined.
Given the above reasoning about the place of rights within a consequentialist theory, Pettit seems committed to the view that restricting deliberation in ways that respect rights will be an essential part of an optimal strategy to promote freedom as non-domination. That is, given that – at least according to Republicanism – the goal of the republican state is the consequentialist one of maximising the enjoyment of freedom as non-domination, the legal protection of certain rights therefore appears merely as an instrument in the pursuit of that goal. Now, the statement of this instrumentalist view about rights assumes that non-domination is a goal that can be understood independently of the notion of rights; for example, that it does not simply consist in the robust enjoyment of one's rights (Layman 2022). However, insofar freedom as non-domination is understood as the effective protection from arbitrary interference that negatively affects the basic interests of individuals, the relationship between non-domination and the secure enjoyment of rights appears to be more than merely instrumental.
In order to avoid giving rights the foundationalist role just suggested, Pettit could resort to a subjective welfarist interpretation of the evil of domination. According to such an interpretation, what is bad about lacking the secure enjoying of basic rights is explained in terms of the feelings of subjection, insecurity, or humiliation that such a condition produces – or in terms of the associated frustration of preferences. And indeed Pettit sometimes appeals to these feelings to illustrate the undesirability of domination. But these feelings do not supervene on the condition of being subject to the will of another. Subjection to arbitrary interference is consistent with more or less brutal forms of actual interference, as well as with no interference at all. In some cases, as Pettit acknowledges, people are not even aware of the ways they are subject to the power of others, and when they are, their feelings about this condition are variable. So a welfarist interpretation of what is wrong with domination would not give a plausible explanation of its status as a significant evil.
Methodological Commitment II: Formalism
Legal rights are salient in Pettit's later book On the People's Terms (2012), since a subset of such rights – the ‘basic liberties’ – help determine when a person has the status of being free or undominated. Pettit's attention to this status represents a shift from an earlier focus on freedom as a property of particular actions to a more holistic understanding of freedom as a property of persons or citizens. Pettit argues that in order to have the status of a free citizen, individuals must enjoy a sufficient range of choice in the sphere of the basic liberties. On this more person-centred view, enjoying freedom still depends on having undominated choices to decide how to act. But now what matters are certain types of choices: those related to the activities of free citizens. More precisely, what matters is whether one has a certain threshold of such choices available. This is in line with Pettit's new understanding of the goals of the republican state, which he describes in sufficientarian terms. The focus of republican policy is, now, that all members of society have certain basic rights protected, and that they have sufficient resources to adequately enjoy them.
Rather than defending a list of substantive basic rights that citizens must enjoy to be considered free, Pettit adopts two different strategies that are meant to complement each other. The first consists in making an intuitive appeal to the traditional republican image of the free citizen. This citizen enjoys a privileged civic status and the independence to make personal choices. With this image in mind, we can ask what kind of choices should be available to citizens so that they can all enjoy this status equally. In order to answer this question, Pettit proposes a heuristic called the ‘eyeball test’. He argues that the liberties that should be robustly protected and resourced are those that would ensure that citizens ‘can look others in the eye without reason for the fear or deference that a power of interference might inspire; they can walk tall and assume the public status, objective and subjective, of being equal in this regard with the best’ (2012: 84). This is not to be understood as an empirical psychological test that asks whether actual people would relate to each other in this way if we placed them under various alternative legal systems. Some individuals are simply timid and may not be able to look others in the eye even in a well-functioning republic. And others are uncommonly brave – or reckless – and do not act in fearful or deferential ways even when facing dangerous people who seem ready to harm them. What Pettit's heuristic plausibly points to is whether individuals have reasons to be fearful or deferential under alternative legal systems: systems that recognise more or less extensive sets of rights. It seems clear that they would have such reasons if the law left certain important areas of their lives subject to the arbitrary power of other people – or of the government itself.
While there may be some value to Pettit's eyeball test, one problem with it is that it does not yield precise answers as to what the full list of basic liberties contains. And Pettit admits that cultural factors might result in the inclusion or exclusion of some candidate liberties in the list (2012: 104–107). For example, the right to bear arms has the status of a basic liberty singled out for constitutional protection in the United States but not in other societies. And there can be more or less extensive interpretations of the area covered by each of the basic liberties, as is the case with the right to free expression. At most, what the eyeball test can tell us is that when there are significant restrictions of freedom of expression in a society, so that people have reasons to be fearful of candidly expressing their own views, they are likely to count as dominated.
Pettit's second strategy for specifying the basic liberties begins with the assumption that these liberties should form as large a class as possible. He then appeals to two formal criteria to narrow those liberties down (2012: 92–101).9 The first formal criterion is that the choices that should be protected by basic liberties must be co-exercisable. That is, ‘the choices to be entrenched ought to be capable of being exercised by each, consistent with being exercised by all’ (2012: 93). This implies that the exercise of basic liberties ought not to be a highly demanding ideal that only a few can access. It should not be a competitive ideal either, with the result that when some access it, others are frustrated. The co-exercisability of the basic liberties also implies that the choices to be protected will necessarily be self-referential or agent-relative, in the sense that they cannot involve liberties to determine how other people act. There are also some empirical limits on co-exercisability, since there are things that not everyone can do. Pettit contrasts the example of having a basic liberty of movement within the territory of a state, which can be co-exercisable if the state provides public transportation, and the liberty to climb a high mountain which is at most a derived liberty that is available only to those with certain skills and resources.
Without getting into all the details of Pettit's analysis, it is worth stressing that the state is often needed, not only to provide resources to make choices equally available to all, but also to enforce rules that coordinate activities so that certain choices can be exercised by many people at the same time. This means that which choices are co-exercisable often depends on what resources are publicly available. And this in turn often depends on previous political decisions about which choices matter to the lives of citizens and ought, therefore, to be supported.
The second formal criterion that Pettit introduces to narrow down the list of basic liberties is that of co-satisfiability. This criterion requires that the choices to be entrenched ‘ought to be capable of satisfying or fulfilling each [citizen], consistently with satisfying all’ (2012: 93). Pettit explains that the basic liberties involve choices that, by ‘received social criteria’, promote the enjoyment, fulfilment, or welfare of the individuals who make them. This criterion implies that the state need not protect or resource choices that are harmful to the individuals who exercise them. Moreover, the choices to be entrenched should be such that if everyone exercises them, then everyone can be satisfied. This criterion rules out choices to harm other people and choices that generate serious power asymmetries, since these do not contribute to the satisfaction of people overall. Finally, there are choices whose exercise impose external costs on other people, or have other counterproductive effects, such as the choice of a factory owner to pollute a river. Such choices fail to meet the co-satisfiability criterion, even if in principle everyone could exercise them.
Although Pettit's two formal criteria certainly filter out many choices as relevant to basic liberties, even when used together they are likely to yield an unreasonable proliferation of basic liberties. There are too many choices – like collecting small objects or scratching one's nose – which are co-exercisable and co-satisfiable but do not deserve to have the status of a basic liberty. These criteria support the view that governments should support the enjoyment of as much liberty as it is feasible for everyone to enjoy, but they fail to give definite answers regarding which liberties should be singled out to be protected and resourced as crucial to maintaining the equal status of citizens. Call this the ‘proliferation objection’.
Pettit anticipates the proliferation objection, admitting that there seems to be ‘no obvious end to the choices that satisfy our constraints’ (2012: 102). In response, he argues that it is enough for the state to protect and resource the most general options. In this way, he suggests, the other more trivial options will automatically be entrenched as well. For example, entrenching freedom of speech will also protect freedom to communicate about my holiday plans, to tell you some gossip, and so on, provided these choices pass the two formal criteria. In conclusion, Pettit claims that we only need to think about the more general choices and to protect and resource ‘the largest possible set of such basic liberties’. In his view, these will include things like religious freedom, freedom of association, freedom of movement, freedom to choose one's occupation, among others (2012: 103).
The problem with Pettit's response to the proliferation objection is that the state needs to have some criteria regarding which liberties are most important to protect and resource, since it cannot protect and resource every particular instance of a general basic liberty. It also needs some criteria about the central range of application of the basic liberties. For example, the freedom to criticise the government is more significant than the freedom to engage in commercial advertisement; and the freedom to form an intimate partnership with another willing adult is certainly more important than the freedom to form a polo club. So it is not true that the state simply needs to entrench the more general choices. Rather, it has to protect and resource the most significant ones: those that would make it possible for people to have a chance of living a good life. Regarding the more trivial liberties, there is, admittedly, a presumption in favour of allowing their exercise. But there is no need to devote special resources to facilitate their exercise. The formal criteria of co-exercisability and co-satisfiability do not really help us determine which choices citizens ought to have available to a sufficient degree so that they can enjoy undominated status.
Methodological Commitment III: Proceduralism
A final strategy employed by neo-republicans to avoid substantive claims about the basic rights of individuals is proceduralism. Richard Bellamy's (2013) appeal to proceduralism starts from the premise that there are reasonable disagreements about the rights that should be recognised by law in democratic societies. He argues that such disagreements place rights within the ‘circumstances of politics’. In other words, disagreements prompt the need for a common and authoritative decision about which rights will be legally protected, and a democratic mechanism is the only fair way to settle them. If we assume that the interests of individuals are all affected by the decisions of the political community they belong to, and if we think that typically individuals are in the best position to know and pursue their own interests, then fairness requires that they should all be allowed to participate in political decisions (2013: 256). In this respect, valid claims about rights can be seen as essentially democratic – not in their content, but in their justification. For Bellamy, rights claims can only be justified and made precise by means of democratic procedures in which citizens are represented as equals.10
Bellamy thinks that there are certain features of rights claims that manifest their political or democratic character. And he argues that those working within the mainstream liberal tradition make the mistake of understanding rights as prior to and above politics, having the role of setting constraints on democratic decisions (2013: 254). On the so-called ‘liberal view’, rights are often presented as a ‘two term relation’ in which x has a right to some y. That is, people claim rights to particular things. Some take the validity of these claims to be self-evident, while others argue for them by appealing to substantive and controversial philosophical views. However, according to Bellamy, it is more accurate to understand rights as a ‘three-term relation’ in which x asks z to recognise their claim to y, while z might be expected to wish x to recognise their similar claim to y. One important point highlighted by this way of putting things is that there are costs and benefits for z in recognising such claims, and these will vary with the content of the right in question. Even recognising rights to non-interference has costs related to enforcement (Holmes and Sunstein 1999). And sometimes, recognising rights have moral costs for those who think that it would be wrong not to interfere. For example, this may be the case in discussions about parental rights to make decisions about the educational and medical needs of minors. For Bellamy, these considerations make clear the need to reach a collective agreement about the rights people have, their mutual compatibility, and the kinds of policies that might be implemented to protect them.
Despite what he seems to think, the three-term structure of rights claims that Bellamy describes does not support the conclusion that the only rights individuals have are legal rights established by democratic processes. Rather, what this structure highlights is that rights are social phenomena: right claims are addressed to other people, with the expectation that they will elicit certain types of behaviour. It also draws attention to the fact that rights have a general character in the sense that expecting other people to recognise my right to a certain y commits me to recognise a right to y for those who are similarly situated. Arguments in favour of specific legal rights need to make the case that they support important interests, and that the costs of enforcing them are reasonable. From the fact that there are some reasonable (and also some unreasonable) disagreements on particular rights, it does not follow that moral disagreement is so widespread that the only way to validate right claims is by means of political processes. Right claims can appeal to shared moral norms and can be defended by moral reasons. Sometimes moral rights are only enforced by informal sanctions. For example, I can claim a right to be treated with respect in response to a rude comment by a colleague, and my claim – one would hope – will be backed by other colleagues who agree that I am owed an apology. What this shows is not that rights are the outcome of democratic processes that produce laws, but that rights are associated with shared rules, that they reflect expectations that others will comply with those rules, and that they are associated with sanctions.
A further point against Bellamy's understanding of rights is that moral claims about rights often play an important role in political debates before the corresponding legal rights are recognised. Since actual democratic processes often fail to be genuinely representative and inclusive, claims about moral rights are important tools for debate and contestation of existing legal norms, both within and outside formal political processes (Aitchison 2018). The importance of moral rights as tools for contestation is lost in a theory like Bellamy's that takes valid rights to be only those sanctioned by law. There are certainly disputes about which moral principles or rules are valid, how they ought to be applied, and when and how violations can be justified. But there are also controversies regarding which legal rules are valid and how they ought to be interpreted. Moreover, it is sometimes possible to find moral arguments for recognising rights that are actually persuasive for people holding different comprehensive views. After all, there is significant moral agreement in pluralistic societies about what behaviour counts as morally wrong. And, importantly, not all such behaviour is, or should be, prohibited by law.
Bellamy thinks that the ideal of freedom as non-domination serves as the normative basis for certain kinds of political processes that justify right claims under conditions of reasonable pluralism. He often refers to freedom as non-domination as ‘freedom from the arbitrary rule of a master’. Bellamy claims that political processes must give each citizen an equal voice to negotiate with others, the rights that will be recognised for all, and the policies that will be pursued to support them. Since there will be disagreements in these deliberations, he thinks that democratic procedures offer the only way to make decisions that treat all citizens as political equals, even those whose views do not prevail in the process. In Bellamy's words, ‘domination issues from an individual or body possessing the power willfully to exercise … interference over others, or in other ways to ignore or override their opinions or interests’ (2007: 151). Since there are disagreements about the acceptability of certain types of interference produced by the law, it is necessary to hear the perspectives of all citizens and give them an equal vote to decide about it.
Those who lose in political debates have to comply with laws they disagree with. But, Bellamy stresses, they do not count as ‘subject to the arbitrary rule of a master’ as long as they had opportunities to participate on equal terms and to try to persuade others of their views:
On this account, freedom and rights belong not to an asocial agent outside all social and institutional arrangements and able to do what he or she wants because of the lack of interference with or by others, but rather is a civic achievement of socially situated individuals whose relations are regulated by law. What gives these legal arrangements their liberty preserving quality lies in them being formulated by free and equal citizens who are not bound to any master but rather negotiate their collective arrangements together as political equals in order to arrive at policies that serve the common good rather than partial and potentially dominating interests of particular powerful individuals or factions. (2012: 458–459)
One thing to note about this account of the political processes that justifies rights is that it evinces a great deal of faith in the workings of real democracy. Bellamy argues that actual legislative processes are more reliable than courts for identifying rights that track the common interests of citizens (2013: 265). His argument minimises the extent to which powerful sectors in society typically have their voices overrepresented in government and public opinion, with the result that they dominate the rest. But let us leave this concern aside and assume that the plurality of views and interests of the population get a fair chance to be heard in public debates. Bellamy hopes that political processes that give each adult citizen the right to participate will adequately settle issues about the recognition of rights.
What makes Bellamy's argument procedural is that it avoids making any substantive assessments of the kinds of interests that the law should protect. But a problem with the proceduralist strategy is that it is possible to think of a political process that is inclusive (in the sense that it gives each citizen one vote) and also gives different representative groups a chance to express their views, but that nevertheless fails to recognise certain basic rights of a minority: for example, the rights of LGBTQIA+ people to form intimate partnerships that are legally recognised by law. Even if it would have a ‘cost’ for those who oppose non-heterosexual relationships on religious grounds to pass legislation that protects these rights, the costs to LGBTQIA+ minorities are certainly much more significant, since this legislation directly affects their basic interests. A mere recognition of the rights of all adult citizens to participate in democratic processes is simply not sufficient to guarantee that the resulting laws will treat all of them in ways that are not dominating. In response to the particular example I have just used, Bellamy could try to say that a discriminatory law in this example would not respect a basic ‘right to privacy’. But in fact this move is not available to him. One point that Bellamy repeatedly makes against natural and other foundational moral rights claims is that agreement on highly abstract statements of rights – like the claim that we all have a right to privacy – hides significant disagreement about their application. These are the grounds he offers for claiming that democratic processes are the only fair mechanism available to settle them.
Bellamy's position involves a denial that there is an independent criterion of domination that can be used to evaluate the outcome of political processes that, formally, treat citizens as equals. Against Bellamy, I have argued that there is such a criterion: whether the law adequately protects the basic interests of all members of society. This criterion does not settle issues regarding the relative priority of the non-basic interests of citizens, or how limited resources should be allocated to satisfy them. But one can certainly reach agreement on the most basic interests of individuals, provided the discussion of those interests is conducted with an adequate level of impartiality.
Concluding Remarks
My discussion of Pettit's and Bellamy's methodological commitments raises questions about what it means not to be subject to the arbitrary will of another. I have suggested that to give a full explanation of what it means to enjoy freedom as non-domination, we must unavoidably appeal to a moral theory. The basis of an account of non-domination cannot be value-free. In fact, it will need to appeal not merely to some evaluative notions, like the goodness or badness of certain outcomes, but to some normative notions: either a notion of basic rights, or of the basic moral rules that ground rights.
To provide a further illustration of the need to appeal to some substantive normative notion, let us briefly recall Pettit's definition of domination – a definition that Bellamy also uses as a premise in his argument for democratic rights. Pettit proposes that an individual A dominates another individual B when A has ‘the capacity to interfere on an arbitrary basis in certain choices that the other [B] is in a position to make’ (1999: 52). In explaining this definition, Pettit points out that the notion of ‘interference’ involves the intentional worsening of another person's choice situation. The idea that interference is the result of intentional or quasi-intentional action is significant. It presupposes that domination is an aspect of the relationship between agents, rather than between impersonal structures and agents.11 Pettit takes this perspective on the grounds that claims about political freedom tend to be associated with reactive attitudes that are directed at agents. He mentions a variety of types of actions that count as interference: physical coercion, threats, deception, manipulation, agenda fixing, and punishment for making certain choices. Although Pettit uses the value-neutral language of ‘altering choices’, these are behaviours that are all prima facie wrong, as they involve violations of moral rules (and often legal rules as well). This suggests that he is making an implicit appeal to basic moral criteria to determine whether certain actions count as forms of interference or not. In line with this suggestion, it is worth noting that Pettit does not include competition in the market as a form of interference, even though the appearance of a new business that offers similar products as one's own can certainly make one's choice situation worse. Given certain rules for fair competition, it is not wrong to compete with others for business, jobs, or other goods. Other examples that Pettit discusses also seem to involve moral criteria. He holds that a pharmacist who sells an urgently required medicine for an extortionate price or those who strike hard bargains with desperate people, count as interfering. Beyond defining interference in a way that seems to rely on covert moral criteria, Pettit also argues that, in order for individual citizens to enjoy freedom as non-domination, there must be checks on people's (and the government's) capacities for interference. Such checks consist primarily in laws that support the more or less secure enjoyment of certain moral rights.
In my view, there are a number of normative strategies one could use to explain why domination is a serious evil that the state ought to combat and minimise. Such strategies could involve defending an account of basic rights, or basic moral rules. There is consensus on the evil of domination and the kinds of actions that would produce domination if there were no adequate checks to them. For this reason, many theorists take the ideal of non-domination not only as a starting point of their analysis but also as a basic good. However, freedom as non-domination is not a simple notion. It is the kind of freedom that citizens enjoy under the laws of the republican state. It turns out to be very difficult – perhaps impossible – to explain what it is without appealing to basic moral and legal rights.
Acknowledgements
Many thanks to Joshua Gert and one anonymous reviewer for useful comments on this paper. I am also grateful to William and Mary for granting me a research leave in 2021–22.
Notes
For an overview of the neo-republican project built on the ideal of freedom as non-domination, see Lovett (2018).
Pettit (2012) further develops this account of republican government.
According to Ivison (2010: 31), ‘one of the distinctive features of republican discourse, both in its civic humanist and neo-Roman variants, is the secondary or derivative status that rights are supposed to play in politics’. Also see the comments on rights and republicanism in Laborde and Maynor (2008: 15–16).
On Pettit's claims about historical republicanism, see Hamel (2016)
Against the rhetorical interpretation of rights claims, see Aitchison (2020: 111–114).
Pettit's account of non-dominating state policy has also been criticised as proceduralist (McMahon 2005; Pettit 2006). Frank Lovett (2012) also endorses proceduralism in his general account of non-arbitrary power.
For a very persuasive argument that the robust enjoyment of rights is necessary and sufficient for non-domination, see Layman (2022). Also see Bertomeu and Domènech (2005: 31–32) for a definition of republican freedom that explicitly includes the enjoyment of basic rights.
Pettit is also tempted by formalism in his account of the common good. See Pettit (2004).
Bellamy (2008) defends a republican-inspired model of democracy called ‘political constitutionalism’. This is a parliamentary form of democracy that leaves decisions about the legal protection of rights in the hands of the legislative branch, instead of relying on constitutional review by unelected judges. He argues that such a system, based on equal rights to political participation, best embodies the freedom as non-domination of citizens.
On some difficulties with restricting the notion of domination to a merely inter-agential phenomenon, see Gourevitch (2013) and Gädeke (2020).
References
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