On the People's Terms

Are law and freedom inevitably in tension with each or reconcilable? It is this old question of political philosophy that Philip Pettit sets about to answer in his On the People's Terms (OTPT). In this book, the author presents a theory of republican democracy based on freedom as nondomination (FND) as a core standard of legitimacy. In doing so, Pettit's book joins a movement in political theory that has been labeled as “republican revival.” Generally, this revival is characterized by taking recourse to a particular strand in the history of political ideas in the attempt to get inspirations and conceptions that can help to develop a normatively convincing alternative to liberalism. The term republicanism covers a number of quite heterogeneous approaches ranging from neo-Aristotelian models focusing on an orientation toward a supposed common good and the civic humanism of the Renaissance, up to Rousseau-inspired conceptions of the volonté générale and the constitutional thought of the founding fathers.Probably second to no other contemporary author, Pettit has tried to find resources for a reorientation of political philosophy from a, to paraphrase Kant, pragmatic point of view, by recourse particularly to a conception of freedom that, as he claims, can be found in the Anglo-American strand of republicanism. For more than twenty-five years, Pettit has sought to conceptualize FND and to spell out its political implications. Accordingly, it is one of the central claims of OTPT that this particular understanding of freedom represents—all things considered—an alternative to the liberal idea of freedom that is analytically more plausible and normatively more attractive. The author sees two main advantages of FND: (1) It allows for understanding that the mere capacity of interfering with other people's actions is already sufficient for the unfreedom of the latter—even when this capacity is not exercised as, for example, in the case of the benevolent dictator. (2) Conversely, it also follows that interferences in people's option range that are controlled by these people themselves cannot count as restrictions on freedom. Now, OTPT fleshes out what it means to conceptualize a state and political procedures if we take FND as the core standard of a theory of legitimacy. In doing so, Pettit aims to pass between the Scylla of a Rousseauianism based on constant participation and popular sovereignty and the Charybdis of a realistic-skeptical Schumpeterianism to develop the ideal of a republic resting upon equal freedom of its citizens, a mixed constitution, and vigilant citizenry.In a first step, Pettit restates the conception of FND and analyzes it on the basis of a freedom of choice model: Agents are free with regard to an option if it is up to only them to decide if they want to realize it or not and if the option is given in a modally robust way. That is, when even under changing circumstances (for example, the relation to other agents changes), the option is still open to agents; namely, open without having to adapt to the changed circumstances by groveling and so on. In his account of FND, Pettit succinctly sums up the complex and intense discussion that followed the publication of Republicanism (Pettit 1997) and that was mainly sparked by his proposal to conceptualize freedom by reference to relations of domination. Still, the reader wonders if the contrast between FND and the so-called liberal understanding of freedom in terms of strict noninterference (FNI) is not overstated. Pettit thinks that authors like Bentham have to see each law and so on as an infringement of freedom because they hold an FNI-based understanding of freedom. And that because of this, they tend to subordinate legitimacy under a theory of justice: as the state with its laws will always represent a restriction of freedom, it only matters what content the laws have—not how they are enacted and so on.Now, it might be the case that when visiting the preserved Bentham on display at the University College London, we cannot escape the impression that he indeed would make a splendid scarecrow. But when seeking friends and foes for the republican project, one should shy away from placing—of all people—Bentham as a straw man on the muddy fields of simpleminded outcome orientation and democracy aversion. As recently shown by Schofield (2006) and Elster (2013), quite the opposite seems to be the case. Most FNI theories claim irreflexivity, meaning that we cannot make ourselves unfree—only other agents can do that. Due to this irreflexive character of freedom, authors like Bentham who favor an FNI conception do not exclude the possibility of reconciling freedom and law on the conceptual level. To claim this, is, I think, misleading. Rather, the reason why these authors take laws to restrict freedom de facto is that they do not believe in shaping democratic procedures in such a way that we can reasonably speak of the state's actions being under the control of each citizen. So, the decisive difference between this group of authors and Pettit seems to be more on the level of reconstructing the relation between individual freedom and democracy; that is, between freedom defined by individual control and freedom defined by popular control. Now, OTPT is a book in contemporary analytical political philosophy and not a study in historical republicanism, as Pettit emphasizes. Still, in establishing a dramaturgy according to which the republicans have been historically outmaneuvered by, for example, the utilitarian liberals, in OTPT the reference to the history of ideas provides for a background against which central claims of the neo-republican project become plausible in the first place. The reader cannot help but wonder whether this might contribute to establishing a distorted picture of the complex and delicate relation between freedom and law that will hold us captive further on.After having laid out FND as the core value of the republican political theory, in the second chapter of OTPT, freedom is taken to be the distribuendum of social justice. Here, Pettit argues against a comprehensive understanding of justice and for differentiating between justice and legitimacy. While the latter refers to the vertical relation between the citizens and the state, the former relates to the horizontal relation between the citizens themselves. Drawing on assumptions of the tradition of Roman law, Pettit conceives freedom furthermore as a particular status. Republican justice is guided by the ideal of free citizens having an equal status and interacting with each other without fear or servility.This context-sensitive ideal then serves as a heuristic to specify a range of choices that are of central importance for not being dominated in a respective society and, accordingly, in which the citizens effectively have to be equal. Formally, these choices are characterized by the criterions of “co-exercisability” (all citizens can exercise a choice at the same time) and “co-satisfiability“ (each citizen can realize the benefits attached to the choices). The resultant range of choices Pettit calls “basic liberties” and—hardly surprising, given their formal structure—they resemble very much the standard set of liberty rights.Now, Pettit further assumes that a state is required to establish social justice in terms of nondomination. He even goes so far as to claim that the particular good of FND could be realized only in a state, since only such an entity could guarantee that the citizens in interacting with each other do not depend on the goodwill of the others. The assumption that the state is necessary to realize FND is of central importance for understanding the very point of Pettit's republicanism.As mentioned above, OTPT argues for treating justice and legitimacy as two different issues and for not subsuming legitimacy under justice. In making this assumption, Pettit turns against the possibility of uncoupling a state of affairs from the way it has come about or is maintained. Even though this point is not highly prominent in OTPT and is made almost casually, it seems to me that herein can be found one of the main, as it were, subcutaneous punch lines of a political theory based on nondomination.Correspondingly, Pettit holds the utilitarian, as well as the contractualist and Kantian, traditions, due to their assumed outcome orientation or potentially monological “hypothetization” of contract or universalization, responsible for the “eclipse of legitimacy” that for him characterizes large parts of contemporary political philosophy. To put it pointedly, one has to understand that Pettit blames the alternative theories for not being proper political theories, for missing the independent character of politics, and for understanding it merely as applied moral philosophy. In contrast, he claims that his nondomination-based republicanism represents a theory that is intrinsically political, not only in the sense that a state is necessary to establish the status of free citizens, but also because the particular republican notion of freedom requires that this state be controlled by its citizens, since only under this condition is the state itself not a dominating presence in their lives. Indeed, the punch line seems to be that, from the perspective of nondomination, citizens won't enjoy the status as free citizens in relation to each other if the citizens themselves do not control the agency that safeguards this relation. Now, there is no need to be necessarily convinced of integrating nondomination prominently in one's preferred set of values. And there is also no need to be convinced that the corresponding conception of a state would really be plausible and would not be in danger of giving way to a state fetishism. Nevertheless, the way Pettit levels the concept of FND against the mainstream of contemporary political philosophy is highly intriguing as it actually spotlights the political perspective and provides for a helpful counterbalance to treating political theory simply in terms of applied ethics. It is worth pointing out that this way of conceptualizing the relation between legitimacy and justice is also quite astonishing given the consequentialist background of OTPT's political theory. Certainly, at first glance, one would expect a consequentialist theory to argue for the primacy of justice. But Pettit demonstrates how a thoroughgoing reflection on the particular character of a value like FND reveals that things turn out to be the other way around.The eminently political character of Pettit's republicanism subsequently becomes visible when he tries to argue that freedom and state authority aren't each other's opposites per se. As mentioned above, from the perspective of FNI, or so Pettit claims, every kind of interference by the state (be it law, policies, the imposition of taxes, and so forth) counts as inimical to freedom, but not so in case of FND: if the state's actions are controlled by the citizens, then these actions could not be regarded as inimical to freedom. Now, how does OTPT interpret the idea that its citizens can control the state?In a first step, Pettit narrows down the domain of choices that have to be under the control of the citizens: all constraints that derive from “political necessity” are per se not freedom relevant. Only choices in which the state has relevant discretion qualify as candidates to be included in the relevant domain of choices. The control exercised by the citizens has to be individualized, hence equally accessible; it should impose an equally acceptable direction on government; and it has to be unconditioned and, of course, efficacious. Thus, from the perspective of FND and particularly against the background of its “robust” character, there results conclusively a certain priority of legitimacy over justice.This—in broad strokes—is the normative basis that in the second part of the book is then further spelled out with regard to democratic procedures and institutions. This second part Pettit understands as a realistic proposal that shows that the “ideal of a regime in which people share equally in control of government is institutionally feasible [and not] just a utopian pipedream” (180). Of course, such a claim only makes sense when the feasibility conditions are specified. Nowadays, in the face of the existing power relations in most (if not all) states in the world, it seems as if Pettit's ideas for political institutions and procedures are not feasible. That is, they do not seem to be a political possibility. But if this is the case, then what exactly could it mean to claim that these suggestions are still “feasible”? That institutionally they are not too distant from the constitutional setup existing in some states nowadays (some, certainly not in Saudi Arabia or Uganda)? This is not a criticism as such; only an invitation to define the feasibility conditions more precisely so that the reader can understand what's involved in claiming that the suggested set of democratic institutions and procedures is feasible.Pettit further argues that democratic influence requires an institutional system that is characterized by an electoral-representative assembly and a mixed constitution guaranteeing that the government is responsive to democratic contestation. In this context, Pettit once again elaborates a core idea of his institutional conception of republican democracy. To prevent majority tyranny and to ensure that each citizen has equal access to influence, he argues, citizens have to have the effective opportunity of individual contestation. This means establishing institutional procedures whereby individuals can contest political decisions post festum by claiming that these decisions violate the conditions of equal access. Now, Pettit actually understands contestation in such a way that impartial institutions decide if the respective contestatory claims are valid or not.Unfortunately, this idea—intuitively appealing as it is at first glance—might not be well suited to reduce domination in contemporary societies. Why shouldn't powerful agents and interest groups—that is, groups and agents that benefit from existing domination relations, and because of this have an interest in maintaining the current state of affairs—also make use of contestation to delay political decisions, to block them, or make them more costly? Even if all citizens were to be provided with all the resources and abilities necessary to actually exercise the opportunities of individual contestation, the problem of the blockade of reforms favoring the status quo would not be excluded.To complete his conception of democracy, Pettit goes on to suggest a model of popular control in which control is realized in the long haul by a deliberatively constituted decision procedure. He develops this model by rejecting the obvious possibility of conceptualizing democratic control as intentional control, by which “the people exercise popular control insofar as they intentionally use their influence to force governments to pursue public-interest policies” (245). Since governance goes along with a good deal of discretion, this model would make unrealistically high demands on the virtuousness of all agents involved—people and government—as they constantly would have to track the public interest in an impartial and unmotivated manner. Against this background, Pettit suggests a nonintentional model of democratic control. This model builds on a deliberative process in which only those reasons are allowed that all citizens potentially could find acceptable. The idea is that, due to such a process, norms of policy making would originate over time that would be consistent with the equal influence, respect, and freedom of each citizen. Together with the popular influence exercised by elections and contestation, a dual-aspect model of democracy results that allows for an evolution of policies based on the citizens' convergent interests.OTPT develops a complex and attractive model that hopefully sparks a thorough discussion. But two concerns immediately come to mind. First of all, it is a bit surprising that Pettit considers the deliberative model to be more realistic than the model of intentional control. Why this should be the case remains unclear. The cognitive and virtue-oriented demands on all parties involved seem to be about as high as in the intentional model. Further, it is still an open question if such a highly demanding deliberative process does not run the risk of entrenching ideological barriers. The major alternative to deliberative models is a democratic process based on open and public bargaining. An undeniable advantage of such a model is that conflicts, and thereby partly also the underlying power relations, become evident and are not hidden under an ideological cloak of convergent interests that would impose a type of costs on the contesting actors that makes the political struggle even more difficult. A second concern is about one of the central aims of OTPT, namely, to demonstrate that the republican conception of FND allows for reconciling freedom and law. Certainly, the procedures and institutions that Pettit advocates might restrict the government's discretionary space and help to increase the popular influence on policies. But the reader cannot help thinking that the types of democratic control advocated are substantially different compared to those Pettit gives as conditions that have to obtain so that interferences cannot count as freedom-relevant constraints on the individual's level. This might be an indicator that a certain tension still exists in the FND-based republicanism between the analytics of freedom and the theory of legitimacy.The fact that some of these points invite further discussion only emphasizes what a highly intriguing and thought-provoking book OTPT is. It certainly is one of the best books in contemporary political philosophy, and even if it aims at developing a republican conception of legitimacy, it certainly is of major significance to every philosopher who cares about the normative foundations of political societies

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