Academic

Pettit on Law & Liberty

By Lawrence Solum

Philip N. Pettit (Princeton University - Department of Politics) has posted Law and Liberty (LAW AND REPUBLICANISM, Samantha Besson and Jose Luis Marti, eds., Oxford University Press, Forthcoming) on SSRN.  Here is the abstract:

The consensus since Bentham has been that law in itself is a restriction of freedom and that it is justified only if it perpetrates less restriction than it prevents. But there is an alternative view of the relationship between law and liberty, which draws on the older republican way of thinking that Bentham rejected. And this view has powerful support. Freedom on this approach requires not living under the uncontrolled will of another, where such a will may be imposed, not just by active interference, but also in other ways: say, by silent intimidation. Let the law represent the will of the community. Is it a will that in itself makes citizens unfree? Not if it is appropriately controlled. And can law be appropriately controlled? Arguably, yes.

The Oxford University Press website currently lists a different title for this forthcoming anthology: click here for the table of contents.

And here is a taste from Pettit's paper:

We have been discussing freedom in particular choices and have argued for three distinctive theses: first, that freedom is a function of how far alien control is absent; second, that alien control may be present without the presence of interference, as in the case of invigilation or intimidation; and third, that interference may be present without the presence of alien control, as when the interferee is in ultimate control of the process.  A given choice will be free just to the extent that it escapes alien control: just to the extent that the agent is not exposed to the exercised or unexercised power of arbitrary interference on the part of another; just to the extent that the agent is not dominated in that choice by that other.

In rounding out the republican view of freedom, we need to add one more element. The tradition did not focus, as I have focused so far, on the freedom of one or another choice but rather on the freedom of a person or a citizen as a whole: on freedom in the sense in which it is the status enjoyed by the ?freeman? of traditional terminology.22 How does the republican idea of the un- dominated person relate, then, to the idea of the un-dominated choice?

There are three claims that enable us to build up a notion of the free person from that of the free choice. The first is that however freedom of the person is understood, it should be a status that is available equally to all citizens. In traditional republicanism, this would have meant a status that is available to all propertied, mainstream males; in neo-republicanism it is bound to mean a status that is available on a more inclusive basis. Take any status that can be made available, then, only to a proper subset of the citizenry. That status may define the privileged status of an elite but it cannot define what it means to be a free person. Freedom in a republic may not be perfectly provided for all members?the society may be less than perfect?but at least it should be a status that is capable in principle of being provided equally for all.

The first claim gives expression to the fact that republicanism is a theory of freedom for people in society?in traditional terms, a theory of civil rather than natural liberty?and that it conceptualizes freedom as something that can be equally enjoyed by all. The second and third claims spell out the implications of that first claim, on intuitively plausible lines. The second says that the free person must be protected in the same choices as others and the third that the free person must be protected on the same basis as others.

The second claim, more specifically, is that the freedom of the person has to involve a freedom to exercise choice over a domain where others can be simultaneously and equally free to exercise choice and, plausibly, over a domain that is not unnecessarily restricted. Assuming that the choices in this commonly protected domain are rich enough to provide the basis of a full life, they can be described, in a traditional phrase, as the basic liberties.23 The specification of the basic liberties may vary somewhat from society to society, since local, variable conventions?for example, conventions governing titles to property and rights of ownership?may play a role in identifying choices that can be protected equally for all. But in any society that can claim to provide for the freedom of persons, there has to be an identified domain of choice, and one that is not unnecessarily restricted, in which each can expect to be equally protected with others.

The third claim that relates the notion of the free, un-dominated person to the free, un-dominated choice is that not only must the free person be protected in the same basic choices as others, he or she must also be protected on the same, robust basis. Did the basis of protection vary between individuals, then the equality that is built into the notion of the free person would be jeopardized. There might be equal protection provided at a given time but the equality of the protection would be highly contingent. The common basis of protection in the republican tradition is provided, of course, by the rule of law as exercised by an impartial government, operating under the control of the citizens. In Harrington?s words, it is a law 'framed by every private man unto no other end (or they may thank themselves) than to protect the liberty of every private man, which by that means comes to be the liberty of the commonwealth'.24

A deeply interesting & important paper.  Highly recommended--download it while its hot!

Full post as published by Legal Theory Blog on December 11, 2008 (boomark / email).