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Institutionalizing Freedom as Non-Domination: Democracy and the Role of the State

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Polity

Abstract

This article critically examines neo-republican democratic theory, as articulated by Philip Pettit, with respect to its capacity to address some of the pressing challenges of our times. While the neo-republican focus on domination has great promise, it mistakenly commits to the position that democracy—the primary tool with which we fight domination—is limited to state activity. Examining this error helps us make sense of two additional problems with his theory: an overestimation of the capacity of legislative bodies to identify sufficient responses to practices of domination, and the potential conflict between avoiding state domination of the general citizenry and avoiding state domination of a part of it. Minimizing domination is simply too demanding and complex a task for us to rely on one institutional structure, no matter how well designed, to accomplish.

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Notes

  1. See, for example, Frank Lovett, “Domination and Distributive Justice,” Journal of Politics 71 (July 2009): 817–30; Michael Thompson, “The Limits of Liberalism: A Republican Theory of Social Justice,” International Journal of Ethics 7 (Summer-Fall 2011): 1–21; Stuart White, “Is Republicanism the Left’s ‘Big Idea’?” Renewal 15 (Winter 2007): 37–46, and “The Republican Critique of Capitalism,” Critical Review of International Social and Political Philosophy 14 (2011): 561–79; Steven Slaughter, Liberty Beyond Neoliberalism: A Republican Critique of Liberal Governance in a Globalizing Age (Basingstoke: Palgrave Press, 2005).

  2. Martin McIvor, “Republicanism, Socialism, and the Renewal of the Left,” in In Search of Social Democracy: Responses to Crisis and Modernization, ed. John Callaghan, Nina Fishman, Ben Jackson, and Martin McIvor (Manchester: University of Manchester Press, 2009), 253.

  3. Nadia Urbinati, “Competing for Liberty: The Republican Critique of Democracy,” American Political Science Review 106 (August 2012): 607–21.

  4. Philip Pettit, “Republican Freedom and Contestatory Democratization,” in Democracy’s Value, ed. Ian Shapiro and Casiano Hacker-Cordon (Cambridge: Cambridge University Press, 1999), 163–90; “Democracy, Electoral and Contestatory,” in NOMOS XLII: Designing Democratic Institutions, ed. Ian Shapiro and Stephen Macedo (New York: NYU Press, 2000), 105–44; “Minority Claims Under Two Conceptions of Democracy,” in Political Theory and the Rights of Indigenous Peoples, ed. Duncan Ivison, Paul Patten, and Will Sanders (Cambridge: Cambridge University Press, 2000), 199–15; “Depoliticising Democracy,” Ratio Juris 17 (March 2004): 52–65; On the People’s Terms: A Theory and Model of Democracy (Cambridge: Cambridge University Press, 2012).

  5. Richard Bellamy, Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007); Patchen Markell, “The Insufficiency of Nondomination,” Political Theory 36 (February 2008): 9–37; John McCormick, Machiavellian Democracy (Princeton, NJ: Princeton University Press, 2011); Ian Shapiro, “On Nondomination,” University of Toronto Law Journal 62 (Summer 2012): 293–35; Urbinati, “Competing for Liberty,” Robin Celikates, “Freedom as Non-Arbitrariness or as Democratic Self-Rule? A Critique of Contemporary Republicanism,” in To Be Unfree: Republican Perspectives on Political Unfreedom in History, Literature, and Philosophy, ed. Christian Dahl, Tue Andersen Nexo, and Christian Pendergrast (Bielefeld: Transcript-Verlag, 2014), 37–54; Lawrence Hamilton, Freedom is Power: Liberty Through Political Representation (Cambridge: Cambridge University Press, 2014), 52–63. For a useful overview of the differences between (and the strengths and weaknesses of) Pettit’s democratic theory and the more radical-democratic alternatives, see Ricardo Silva, “Non-Domination and Political Institutions: The Contested Concept of Republican Democracy,” Brazilian Political Science Review 9 (April 2015): 3–38.

  6. Pettit offers a unified account of the meaning of freedom, in which societies and individuals are free (or unfree) in analogous ways. See Philip Pettit, A Theory of Freedom: From the Psychology to the Politics of Agency (Cambridge: Cambridge University Press, 2001). However, as Markell notes, the analogy breaks down, as freedom for the society is of instrumental value to individuals, rather than intrinsic value. See Markell, “The Insufficiency of Nondomination.”

  7. Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1999), 18.

  8. Ibid., 27–31, 41–44.

  9. Ibid., 32. A historical example of relevance here is “the Chesapeake case.” Due to the volatility of the global tobacco market, some slaves with specialized skills in the Chesapeake region would, during periods of low tobacco prices, have little short-term labor value to their owners. They would be granted significant but temporary freedoms, in exchange for paying their owners a portion of the wages they earned selling their labor on the market. See Peter Kolchin, American Slavery: 1619–1877 (New York: Hill and Wang, 1993), 24–27; 74–75.

  10. Pettit, Republicanism, 55.

  11. Ibid.

  12. Pettit defines avowable interests as those interests that “are conscious or can be brought to consciousness with little effort.” See Pettit, A Theory of Freedom, 156. On the ambiguities and equivocations of Pettit’s uses of the term “avowable,” see Markell, “The Insufficiency of Nondomination,” 13–16, 33–34 n24.

  13. Pettit, “Contestatory Democracy and Republican Freedom,” “Democracy, Electoral and Contestatory,” “Depoliticising Democracy,” and “Democracy, National and International,” The Monist 89 (April 2006): 301–24.

  14. Pettit, “Democracy, Electoral and Contestatory,” 115.

  15. Ibid.

  16. Ibid., 119.

  17. Pettit, “Republican Freedom and Contestatory Democracy,” 176.

  18. Pettit, On the People’s Terms, 23.

  19. Charles Larmore, “Liberal and Republican Conceptions of Freedom,” Critical Review of International Social and Political Philosophy 6 (2003): 96–119; Melvin Rogers, “Republican Confusion and Liberal Clarification,” Philosophy and Social Criticism 34 (September 2008): 799–24; Gopal Sreenivasan, “The Proliferation of Liberties,” Philosophy and Phenomenological Research 63 (July 2001): 229–37. The proper understanding of the relationship between liberalism and republicanism has attracted substantial scholarly attention. There are good reasons to be skeptical of the sharp conceptual and historical contrast offered by Pettit. Rogers, in particular, makes what appears to be a compelling case that Pettit, by overstating the Hobbesian nature of liberal freedom and not examining liberal conceptions of freedom in relation to other important political values, has exaggerated the difference between his neo-republican account of freedom and liberal account. Ira Katznelson and Andreas Kalvyas make a persuasive case that liberalism is best understood as a republican response to a particular historical moment; see their Liberal Beginnings: Making a Republic for the Moderns (Cambridge: Cambridge University Press, 2008). Similarly, Alex Gourevitch argues that the rise of laissez-faire liberalism in the late nineteenth century is best understood as an attempt to fit republican principles to a new set of circumstances (and contrasted against labor republicans’ socialist republicanism) in “Labor and Republican Liberty,” Constellations 18 (July 2011): 431–54. While I am persuaded that the relationship between liberalism and republicanism is more complex than Pettit’s account seems to suggest, I take no position on that issue here.

  20. As Charles Larmore observes, Pettit’s classificatory strategy requires conscripting John Locke as a republican, rather than a liberal—in Larmore’s terms, a “desperate remedy.” See Larmore, “A Critique of Pettit’s Republicanism,” Philosophical Issues 11 (October 2001): 229–43, at 236. The implication that liberals are uniformly committed to freedom as noninterference obviously can’t account for liberals who focus a great deal on autonomy, such as Joseph Raz. See his The Morality of Freedom (Oxford: Oxford University Press, 1986).

  21. Pettit, Republicanism, 149.

  22. Okin makes the case that Rawls’s drawings of the public-private boundary are flawed; see Susan Moller Okin, Justice, Gender and the Family (New York: Oxford University Press, 1989).

  23. Philip Pettit, “The Determinacy of Republican Policy: A Reply to McMahon,” Philosophy and Public Affairs 34 (July 2006): 282.

  24. Pettit, Republicanism, 240–70, 280–81.

  25. Ibid., 240.

  26. Ibid., 246, 249.

  27. Ibid., 247–49.

  28. Pettit, A Theory of Freedom, 160.

  29. Pettit, On the Peoples’ Terms; 75–129; Just Freedom: A Moral Compass for a Complex World (New York: W.W. Norton, 2014), 79–108.

  30. Pettit, On the People’s Terms, 130–86; Just Freedom, 109–49.

  31. On the language of vertical and horizontal domination, see Just Freedom, 6–7, 78, 113. The designation of horizontal seems potentially problematic given the degree of (often justified) hierarchy in a variety of relationships that might, if corrupted, become dominating but do not directly involve the state.

  32. Pettit, On the People’s Terms, 127. He allows for the occasional possibility that norms might replace rather than support laws in discouraging certain behaviors (Just Freedom, 94), but without changing the fundamental relationship between them.

  33. Pettit, Just Freedom, 113.

  34. The only exception here consists of some recent remarks on the primacy of democracy over social justice: See On the People’s Terms, 24–25; Just Freedom, 190, and “Justice, Social and Political,” in Oxford Studies in Political Philosophy, ed. David Sobel, Peter Vallentyne, and Steven Wall (Oxford: Oxford University Press, 2015), 9–36.

  35. William Talbott, Which Rights Should Be Universal? (Cambridge: Cambridge University Press, 2005), 108.

  36. On the scope and methods of Tostan’s success in Senegal and beyond, see Diane Gillespie and Molly Melching, “The Transformative Power of Democracy and Human Rights in Nonformal Education: The case of Tostan,” Adult Education Quarterly 60 (November 2010): 477–98; see also Karen Monkman, Rebecca Miles, and Peter Easton, “The Transformatory Potential of a Village Empowerment Program: The Tostan Replication of Mali,” Women’s Studies International Forum 30 (November-December 2007): 451–64.

  37. U.S. Department of State, “Senegal: Report of Female Genital Mutilation (FGM) or Female Genital Cutting (FGC),” FGM/FGC Country Reports.

  38. Ylva Hernlund and Bettina Shell-Duncan, “Transcultural Positions: Negotiating Rights and Culture,” in Transcultural Bodies: Female Genital Cutting in Transcultural Context, ed. Ylva Hernlund and Bettina Shell-Duncan (Piscataway, NJ: Rutgers University Press, 2007), 36.

  39. Gerald Mackie, “Ending Footbinding and Infibrilation: A Convention Account,” American Sociological Review 61 (December 1996): 999–017.

  40. Andrea Smith, Beth Richie, Julia Sudbury, and Janelle White, “The Color of Violence: Introduction,” in The Color of Violence: The Incite! Anthology, ed. The Incite! Collective (Cambridge, MA: South End Press, 2006), 1–10; see also Gretchen Arnold and Jami Ake, “Reframing the Battered Women’s Movement,” Violence Against Women 19 (May 2013): 557–78.

  41. Smith et al., “The Color of Violence,” 1–2.

  42. Cecile Laborde, Critical Republicanism: The Hijab Controversy and Political Philosophy (Oxford: Oxford University Press, 2008), 152.

  43. Pettit, On the People’s Terms, 128.

  44. A similar diagnostic point about the inadequacy of Pettit’s reliance on “cooperatively admissible considerations” based on prevailing norms to promote non-domination, particularly with respect to deep patriarchal norms, is made by Alan Coffee, “Two Spheres of Domination: Republican Theory, Social Norms, and the Insufficiency of Negative Liberty,” Contemporary Political Theory 14 (February 2015): 45–62.

  45. Chandran Kukathas, The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford: Oxford University Press, 2003), 136.

  46. Naomi Murakawa, “The Origins of the Carceral Crisis: Racial Order as ‘Law and Order’ in Postwar American Politics,” in Race and American Political Development, ed. Joseph Lowndes, Julie Novkov, and Dorian Warren (New York: Routledge, 2008), 234–55; Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2012).

  47. A significant literature on the threat of domination due to colonial or neocolonial histories and their impact on state-society relations in much of the global south is worth mentioning here. See, for example, the work of Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton, NJ: Princeton University Press, 1993), and The Politics of the Governed: Reflection on Popular Politics in Most of the World (New York: Columbia University Press, 2006). For a qualified defense of Pettit’s relevance for such societies in light of this critique, see Rinku Lamba, “Non-Domination and the State: A Response to the Subaltern Critique,” European University Institute Max Weber Programme Working Paper #40, 2008.

  48. Spinner-Halev, Enduring Injustice (Cambridge: Cambridge University Press, 2012), 123–28.

  49. Philip Pettit and Jose Luis Marti, A Political Philosophy in Public Life: Civic Republicanism in Zapatero’s Spain (Princeton, NJ: Princeton University Press, 2010), 56.

  50. Pettit, A Theory of Freedom, 106.

  51. Ibid., emphasis added.

  52. Pettit, “Democracy, National and International,” 307.

  53. Ibid., 308.

  54. Ibid. This characterization of the courts would come as a surprise to American constitutional scholars and jurists, who understand the proper role of the court in much narrower terms and do not consider irrationality in itself a constitutional violation.

  55. Philip Pettit, “A Neorepublican Law of Peoples,” European Journal of Political Theory 9 (January 2010): 71–94, at 72.

  56. If a bill promoting a novel and promising new approach to reducing domination and achieving a public good is submitted, sent to a legislative committee, and never heard from again, is this a “false negative” or simply an outcome of a properly functioning legislative system? Would it matter why or how the bill was killed in committee? It is not clear to me what Pettit’s answer would be.

  57. Bryan Jones and Frank Baumgartner, Agenda Setting and Instability in American Politics (Chicago: University of Chicago Press, 1993).

  58. On iron triangles, see Theodore Lowi, The End of Liberalism (New York: W.W. Norton, 1969); on issue networks, see Hugh Heclo, “Issue Networks and the Executive Establishment,” in The New American Political System, ed. Anthony King (Washington, DC: American Enterprise Institute, 1978), 87–124.

  59. Sven Steinmo and Jon Watts, “It’s the Institutions, Stupid! Why Comprehensive National Health Insurance Always Fails in America,” Journal of Health Politics, Policy and the Law 20 (Summer 1995): 329–72. George Tsebelis, Veto Players: How Political Institutions Work (Princeton, NJ: Princeton University Press, 2002).

  60. Pettit, “Democracy, Electoral and Contestatory.”

  61. Pettit, “Depoliticising Democracy.” For compelling critical accounts of Pettit’s “depoliticized” conception of democracy, see Markell, “The Insufficiency of Nondomination,” McCormick, Machiavellian Democracy; and Nadia Urbinati, “Unpolitical Democracy,” Political Theory 38 (February 2010): 65–92. Pettit has recently abandoned the language of depolicitized democracy on the grounds that it signals an insufficiently robust commitment to a central role for the people in democratic rule. Pettit, On the People’s Terms, 231n44; however, the institutions and the functions they are designed to serve remain similar to the earlier formulation.

  62. For criticism of Pettit’s countermajoritarian tendencies on democratic grounds, see McCormick, Machiavellian Democracy, 145–69; Hamilton, Freedom is Power, 52–62, and Shapiro, “On Nondomination,” 321–32. On the anti-democratic danger of policy “drift” see Jacob Hacker and Paul Pierson, Winner-Take-All Politics (New York: Simon and Schuster, 2011).

  63. Pettit, Republicanism, 150; emphasis added.

  64. Pettit, On the People’s Terms, 212.

  65. Pettit, Just Freedom, 125; On the People’s Terms, 216.

  66. Pettit, Just Freedom, 125.

  67. Pettit, “Minority Claims,” 212.

  68. Fabian Schuppert, “Toward a Republican Understanding of Equality: Non-Domination, Non-Alienation, and Social Equality,” Critical Review of International Social and Political Philosophy (forthcoming). It can be accessed at DOI 10.1080/13698230.2015.1033863. A similar line of criticism, focusing on the potential shortcomings of Pettit’s “intentionality” requirement, can be found in a number of recent commentaries on Pettit’s conception of freedom. See, for example, Sharon Krause, “Beyond Non-Domination: Agency, Inequality and the Meaning of Freedom,” Philosophy and Social Criticism 39 (February 2013): 187–08, 190–93; Clarissa Rile Hayward, “What Can Political Freedom Mean in a Multicultural Democracy? On Deliberation, Difference, and Democratic Governance,” Political Theory 39 (August 2011): 468–87, at 483; Hamilton, Freedom is Power, 55–57; Marie Garrau and Cecile Laborde, “Relational Equality, Non-Domination, and Vulnerability,” in Social Equality: What It Means to Be Equals, ed. Ivo Wallimann-Helmer, Fabian Schuppert, and Carina Fourie (Oxford: Oxford University Press, 2015), 45–64, at 60–61.

  69. Pettit, Republicanism, 199.

  70. Ibid., 199–200.

  71. Pettit suggests that the kind of systemic factors discussed here are best understood as a particularly strong form of vitiating hindrance. On the People’s Terms, 44.

  72. See On the People’s Terms, 35–49. The language of invading and vitiating hindrances replaces his earlier distinction between factors that control choice, as opposed to factors that condition it: see Pettit, “Keeping Republican Freedom Simple: On A Difference with Quentin Skinner,” Political Theory 30 (July 2002): 339–56.

  73. Pettit, On the People’s Terms, 69–70; Just Freedom, 33–38.

  74. An exception is Pettit, “The Determinacy of Republican Policy,” 282–83. Here he concludes that in cases where “the local culture may be such that people do not have a common interest in the reduction of some form of private domination … the state is not authorized to act.” This is not precisely on point, as it refers to blocking dominium rather than committing imperium per se, but insofar as a state allows some forms of dominium to be freely and licitly committed, it may reasonably be said to be implicated in that domination.

  75. Pettit, On the People’s Terms, 24–25; Just Freedom, 190.

  76. Of course, such efforts might still come at some democratic cost. On this see Jacob Levy, “Multicultural Manners,” in The Plural States of Recognition, ed. Michael Seymour (London: Palgrave, 2010), 61–77.

  77. Philip Pettit, “The Domination Complaint,” in NOMOS XLI: Political Exclusion and Domination, ed. Mellissa Williams and Stephen Macedo (New York: NYU Press, 2005), 87–117, 92–100.

  78. Philip Pettit and Frank Lovett, “Republicanism: A Normative and Institutional Research Program,” Annual Review of Political Science 12 (June 2009): 26.

  79. Pettit and Marti, A Political Philosophy, 160.

  80. Philip Pettit, “Republican Reflections on the Occupy Movement,” in Up the Republic! Towards a New Ireland, ed. Fintan O’Toole (London: Faber and Faber, 2012), 175.

  81. See, for example, Elizabeth Anderson, The Imperative of Integration (Princeton, NJ: Princeton University Press, 2010), 3–7; Charles Mills, “‘Ideal Theory’ as Ideology,” Hypatia 20 (August 2005): 165–83; Amartya Sen, The Idea of Justice (Cambridge, MA: Belknap Press, 2009); David Wiens, “Proscribing Institutions without Ideal Theory,” Journal of Political Philosophy 20 (March 2012): 45–70 and “Against Ideal Guidance,” Journal of Politics 77 (April 2015): 433–46.

  82. Prominent examples of anti-statist democratic theory include Miguel Abensour, Democracy against the State: Marx and the Machiavellian Moment (Cambridge: Polity Press, 2011) and Sheldon Wolin, “Fugitive Democracy,” Constellations 1 (January 1994): 11–25.

  83. Richard Bellamy, “Republicanism: Non-Domination and the Free State,” in Routledge International Handbook of Social and Political Theory, ed. Delanty Gerard and Stephen Turner (New York: Routledge, 2011), 130–38; James Bohman, “Critical Theory, Republicanism, and the Priority of Injustice: Transnational Republicanism as a Nonideal Theory,” Journal of Social Philosophy 32 (Summer 2012): 97–112; Lena Halldenius, “The Building Blocks of Republican Cosmopolitanism,” European Journal of Political Theory 9 (January 2010): 12–30; Pettit, “A Neorepublican Law of Peoples,” Fabian Schuppert, Freedom, Recognition and Non-Domination: A Republican Theory of (Global) Justice (Hiedelberg: Springer-Dordrecht, 2014).

  84. Pettit, Republicanism, 92–95; Pettit, “The Domination Complaint,” 95–100.

  85. Pettit, Republicanism, 92.

  86. Pettit, “The Domination Complaint,” 100.

  87. Pettit, Republicanism, 95.

  88. Ibid.

  89. Bellamy, Political Constitutionalism; McCormick, Machiavellian Democracy; Shapiro, “On Nondomination”; Urbinati, “Competing for Liberty.”

  90. Shapiro, “On Nondomination,” 328.

  91. Jeff McMahon, “The Indeterminacy of Republican Policy,” Philosophy and Public Affairs 33 (January 2005): 68–93; Sharon Krause, “Plural Freedom,” Gender and Politics 8 (June 2012): 238–45; Markell, “The Insufficiency of Nondomination”; Schuppert, “Toward a Republican Understanding of Equality.”

  92. Ulrich Beck, “The Cosmopolitan Condition: Why Methodological Nationalism Fails,” Theory, Culture and Society 24 (December 2007): 286–90; Ulrich Beck and Natan Sznaider, “Unpacking Cosmopolitanism for the Social Sciences: A Research Agenda,” British Journal of Sociology 57 (March 2006): 1–23.

  93. Robert Nozick, Anarchy State and Utopia (New York: Basic Books, 1974), 151; Ian Shapiro, The State of Democratic Theory (New Haven, CT: Yale University Press, 2003), 4.

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    David Watkins

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A very different version of this paper was presented at the International Studies Association Annual Conference in San Diego in 2012. I thank my discussant, Lea Ypi, and my co-panelists and audience members, especially Laura Valentini, for further suggestions and comments. This paper has also been improved by helpful comments on previous iterations from Jamie Mayerfeld, Nancy Hartsock, Michael Goodhart, Karen Litfin, Erik Olsen, and the editors of and three anonymous referees for Polity.

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Watkins, D. Institutionalizing Freedom as Non-Domination: Democracy and the Role of the State. Polity 47, 508–534 (2015). https://doi.org/10.1057/pol.2015.18

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