Hamel - Are Rights Less Important for Republicans than for Liberals

Are Rights Less Important for Republicans than for Liberals? A Critique of Pettit’s Postface to Republicanism Christopher Hamel (Université libre de Bruxelles) hamel_christopher@yahoo.fr Introduction It has become a commonplace in neo-republican thinking to claim that if the notion of rights can be allowed a place in republican political theory, it can never achieve the prominence that liberalism allegedly grants it To satisfy all current advocates of republicanism, we would have to say, following I Honohan, that although a positive answer to the question “Are there any rights in a republic?” is possible, “rights are a less central motor force in republicanism”, for “republicanism is not essentially rights-based”.1 Even those (few) who have convincingly shown that the traditional opposition between liberal and republican concepts and values is exaggerated still assume that the very idea of “rights” is liberal in essence, so that if republicanism is able to integrate the language of rights it is only as a liberal republicanism.2 Do these considerations apply to the most articulated version of contemporary republican theory, that of Philip Pettit? A comprehensive answer to this question would have to take into account and compare Pettit’s statement on rights in his book Republicanism (which both mirrors and has inspired the view outlined above) with his first formulation of the republican ideal, which by contrast foregrounds the notion of rights in order to legitimate his republican case.3 It would also have to assess this difference in the light of his unfailing preference for consequentialism: while Pettit had argued in previous articles that the consequentialist approach must take rights seriously to be acceptable,4 the consequentialist justification of republicanism in his book of 1997 significantly omits to mention rights at all.5 Is this omission of secondary importance or even trifling, meaning simply that Pettit has the resources to without rights in his consequentialist republicanism? Or does it expose the free-rights argument of the book to the crushing objections that Pettit himself had elaborated in his previous articles? Either way, further inquiry is required One of the reasons why this has not yet been pursued, however—and hence why the issue remains ambiguous in neorepublican thinking—is arguably that the notion of rights is quite simply deemed alien to republicanism This shapes the purpose of the present article: to challenge Pettit’s arguments in Republicanism that rights are less important for republicanism than for liberalism If this challenge is sound, then the vexed issue of Pettit’s position on rights See respectively Honohan 2002, p 206, 209 and Honohan 2009, p 90 See also Honohan 2002, p 1, 78, Bellamy 1993; Viroli 2002, p 7, 60; Laborde and Maynor 2008, p 15-7; Ivison 2010, p 31-2 See Sunstein 1988, p 1569, 1576, 1589, and Dagger 1997, p 5, 116, 191; Haakonssen 2007, p 731 Pettit 1989, p 150-8; his general argument is that “if the state is to promote franchise”—i.e., freedom from domination—it has to “give certain negative liberties the status of rights” (p 151, 150) Pettit 1986, 1988 Pettit 1997a, p 97-102 in his overall republican scheme will be both easier to broach and more pressing to resolve The article is in six sections Firstly, I note the quasi absence of rights in Republicanism (section 1) I then consider one feature of Pettit’s construal of the republican ideal—its encompassing nature—and argue that while this could be seen as a reason to deprive rights claims of their relevance, it in fact makes the question of why rights are virtually absent in his republican manifesto more serious (section 2) The rest of the paper examines three remarks—about rights and institutions, rights and virtue, and rights and powers—made by Pettit to justify the minor role of rights in republicanism compared with liberalism After outlining how Pettit introduces these remarks and considering some difficulties in interpreting the general purpose of the argument (section 3), I assess the remarks themselves in turn (sections 4, and 6), arguing not only that none of them substantiate the point Pettit wants to make, but that once clarified they appear as compelling reasons to think that republicanism takes rights much more seriously than (Pettit’s version of) liberalism The Quasi Absence of Rights in Pettit’s Republican Manifesto As a theory of individual freedom, Pettit’s republican manifesto, Republicanism, grants a very minor place to rights Indeed, the book does not elaborate or rely on any conception of rights, and the term itself—rights—occurs quite rarely in his book The concluding chapter (“Republicanism: a Propositional Summary”), which gives an overall and yet detailed picture of the book’s main claims and arguments, is telling in this regard At none of the main steps of his demonstration does Pettit resort to the concept of rights: neither in the enunciation of the definition of the republican concept of liberty (i.e., the fact of not being submitted to potential arbitrary interference), nor in the presentation of its status as a political ideal to be promoted by the republican state, nor in the articulation of the aims that a republican state should pursue, nor in the description of the institutional forms required to avoid the state itself becoming a source of domination in the citizen’s life, nor in the account of the necessary check mechanisms that aim to protect the republic from human corruptibility, nor in the reflection on the means of civilizing the republic.6 The only exception to this is unessential to the conceptual demonstration, for it appears as an historical allusion suggesting a parallel between the “contestatory conception of democracy” and “the traditional view that the people have the right to challenge and resist laws that are arbitrary in character” Though conceptually secondary, this allusion is nevertheless worth mentioning since it has to with a recurring pattern in Pettit’s book This is his misinterpretation of a key feature of rights in the republican tradition Pettit’s mainly institutional outlook leads him to downplay the natural character of rights, arguing that republicans have in the past referred to rights as natural only for rhetorical (rather than substantive) reasons It seems clear, however, that early-modern republicans thought and described these rights as natural because they deemed it necessary, in order to understand and legitimize the foundations of a just society, to refer to the prerogatives attached to the very nature of man In Pettit 1997a, p 271-81 Pettit 1997a, p 278 Pettit 1997a, p 101 ignoring this natural law background in his readings of Locke or Price 9—and the same would apply to Milton, Sidney, Trenchard and Gordon—Pettit not only misinterprets their conception of freedom, but thereby leaves unresolved the issue of whether the contemporary republican conception of rights is able to without the substantive normative thesis which is the backbone of early-modern republicanism.10 This objection clearly needs more elaboration, but since it concerns Pettit’s view of republican tradition in relation to the language of rights, it can be kept separate from the strictly conceptual objections on which I focus here: those concerning rights in Pettit’s political theory of freedom So let us come back to the striking absence of rights in the detailed summary of Republicanism, and ask why this might be the case Does Freedom as Non-Domination Render Rights Useless? At first glance, the reason for this downplaying of rights seems relatively straightforward: Pettit opens his book insisting on the ecumenical nature of the republican ideal He recalls the “main currents” of ideas that influence political decisions: an economic current aiming at maximal preference-satisfaction, a more social current concentrating on welfare, justice and equality issues, a democratic current placing all political legitimacy in the will of the people, whether represented or directly expressed, and the juridical current which puts forward “people’s universal rights” and “the requirement that political institutions respect and foster the enjoyment of those rights”.11 These currents all share and use what Pettit names “the idiom of freedom”, shaped differently in each case by respective priorities—for example, “the language of rights focuses on rights of free thought, free expression, free movement, and the like” 12 The strength of the republican ideal, in this respect, is precisely its ability to express in a common idiom a grievance important for the advocates of all currents The grievance in question, in the old phrasing that Pettit has brought up to date, is that of “living at the mercy of another, having to live in a manner that leaves you vulnerable to some ill that the other is in a position arbitrarily to impose” because “you are dominated by the other”.13 Now, adds Pettit: Thinking about politics in terms of the demands of freedom as non-domination gives us a very full and persuasive picture of what it is reasonable to expect of a decent state and a decent civil society… This overlapping ideal of freedom… supports and unifies a compelling manifesto of political demands… and if a state and a society looks after the freedom as non-domination of its members, then most other desiderata will look after themselves 14 As developed at length in the section explaining in detail the “Republican causes”, the “language” of non-domination has not only “potentially universal appeal as a language See Pettit 1997a, p 39-40 Pettit’s refusal to enter into substantive issues can be identified in several passages, one being where he states that he will only consider freedom as an instrumental or primary good and not as intrinsic good See Pettit 1997a, p 82-92 Part of Maynor’s purpose is to show that republicanism should endorse a more substantive approach to the ideal of freedom; see Maynor 2003, p 43-59; see also Weithman 2004 11 Pettit 1997a, p 1-2 12 Pettit 1997a, p 13 Pettit 1997a, p 5-6 14 Pettit 1997a, p 4, 6; see also Pettit 2005, p 92 10 of freedom”, but also “relevance to a variety of highly specific, even particularistic, causes”: environmentalism, feminism, socialism and multiculturalism.15 We are to take it, as far as the language of rights is concerned, that if a society efficiently promotes non-domination of its members, it quite simply becomes pointless for them to claim rights, because the grievances expressed in these demands have become groundless So there might be a sense in which Pettit’s focus on the concept and value of freedom as non-domination conveys a will to obviate the need for rightstalk To be sure, the claim that the encompassing nature of non-domination sidelines rights sounds more like a programmatic declaration of intent than the result of a demonstration Republicanism, however, seems to provide (albeit implicitly) a solid ground for this claim, especially when we compare its conceptualization of freedom as non-domination with the notion of rights that emerges from some of Pettit’s previous articles While they usually pass unnoticed—even by Pettit himself—some crucial features of his construal of freedom as non-domination had already served to define his notion of enjoying a right Although this comparison could be productively explored in more detail, for the sake of the present argument I draw out two features: the protective role of freedom and rights; and the moral effect of enjoying freedom or rights (i) A common protective role To enjoy non-domination means to have the assurance that one will not be submitted to arbitrary interference: “non-domination involves a sort of immunity or security against interference on an arbitrary basis”, and hence a “secure or resilient” protection against others 16 Now this is exactly how Pettit had set out the notion of rights: be they conceived as “trumps” (with Dworkin) or as “constraints” (with Nozick), “rights serve their bearers in an essentially protective role”, and those who hold them are more precisely “protect[ed] from certain sorts of treatment”.17 One might contest the comparison, claiming that the emphasis on arbitrariness is intrinsic to the notion of non-domination Yet this would be mistaken: the person enjoying a right “must be able to block certain sorts of behaviour—those… that invade his personal space…If he cannot exercise such a veto, then he is merely a pawn in the enterprises of the other”.18 (ii) A common moral effect It is not only arbitrariness that characterizes Pettit’s view of rights: it would be more accurate to say that it was in thinking about rights that Pettit first elaborated his notion of non-domination This becomes clear when one considers the emphasis on the moral benefit accruing to someone enjoying freedom as non-domination The most important reason why freedom as non-domination is attractive is that while it is impossible to enjoy it without at the same time enjoying dignity or honour, to be deprived of it necessarily means to be humiliated and degraded.19 Likewise, the reason why it seems so important to respect rights is that “such respect invests the beneficiary with dignity” 20 Enjoying dignity—or dominion, 15 Pettit 1997a, p 134, 134-46 Pettit 1997a, p 68-9 17 Pettit 1987, p 9; and see Pettit 1988, p 45-6 18 Pettit 1988, p 52; see also Pettit and Brennan 1986, p 450-1 19 Pettit 1997, p 82-97; see Pettit 1997b, p 52-3, 56, 59-66, where this claim is stated in a much more clearer and straightforward way Pettit’s description throws doubts on the validity of his claim (Pettit 1997, p 83) that he need not address the view that freedom as non-domination is an intrinsic good 20 Pettit and Brennan 1986, p 451; see also Pettit 1988, p 52-3 16 since Pettit considers them as synonyms21—is in turn described in terms of not being dominated:22 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 that other agent is not free to him whatever he wills.23 He can enjoy a certain sort of discretion over [potential interferents’] behaviour; specifically, the discretion to stop [them] sacrificing his interest to the achievement of something that [they] regard as a greater objective good.24 A person cannot enjoy dominion fully if she perceives or suspects that the agents of the state, or indeed any other powers in the land, will not be scrupulous in respecting her rights 25 A full examination of the parallel between being deprived of rights and being dominated in Pettit’s work would confirm the revealing fact that Pettit’s conceptualisation of rights has been the testing ground for his reflection on domination But why would this proximity serve as an argument to justify marginalising rights in republicanism? The reason would be that, on one hand, the most relevant features of rights are recycled in Pettit’s construal of republican freedom; and, on the other, expressing with the sole notion of freedom the common ideal—that of an individual enjoying the dignity of a free person—is more likely to convince advocates of other currents of thought than expressing it with the notion of rights This conclusion might seem to be confirmed by a further observation When discussing “how the value [of non-domination or of non-interference] should shape the system”—as a goal to be promoted in a consequentialist fashion, or as a constraint to be honoured in a deontological fashion—Pettit systematically associates rights with the deontological perspective, and in fact gives no place to rights in his consequentialist justification of republicanism.26 So while the notion of freedom as non-domination incorporates relevant features of rights, consequentialist republicanism would methodologically leave rights out of its field The problem of this further observation, as already mentioned in the introduction, is that it stands in contradiction both with Pettit’s previous case on consequentialism and with his first version of the republican ideal As long as this contradiction has not been resolved in favour of a minor role or uselessness of rights in republicanism, therefore, it remains to be understood why Pettit keeps rights so marginal in his book 21 Pettit 1988, p 53 This quasi-identification of freedom, dignity, and dominion becomes a source of confusion; see Braithwaite and Pettit 1990, p (“dominion amounts to freedom”), p (dominion is freedom, holistically conceived…a republican conception of freedom as freedom of the city”) While the links between these concepts demand clarification elsewhere, the present argument only needs to highlight their close proximity 23 Pettit 1988, p 52 24 Pettit and Brennan 1986, p 451 25 Braithwaite and Pettit 1990, p 76 26 Pettit 1997a, p 97-109, and p 99 22 A Second Reason: the Contrast with Liberalism To answer this question, we must turn to the second reason justifying the quasi absence of rights in Republicanism It can be found in the retrospective reflections that Pettit published as a postface to the second edition of his book in 1999, “Republicanism: once more with hindsight” 27 In this text, Pettit sets out to clarify several points related to his republican case Because he is chiefly addressing liberal theorists—champions of non-interference—it seems natural for him to return to the vexed question of the distinction between liberalism and republicanism As indicated by the title of the fifth and last part of this Postface—“Beyond liberalism”—his purpose in returning to this opposition is to argue that discussions within republican thinking (especially discussions with Skinner on the concept of freedom) vouch for the fact that republicanism is not only different from liberalism, but has also developed beyond its boundaries Now, while the guiding question of this part is “whether it [i.e., republican thought] is distinct in any fundamental way from liberalism”, 28 the very last section of this confrontation between republicanism and liberalism deals revealingly with the issue of rights: “how far republicanism diverges from a liberalism that asserts the importance of rights” Pettit immediately makes clear that this wording is not meant to suggest that the notion of rights is alien to republican tradition Quite the contrary, he says: it had an “important place”, both in the guise of people’s “ancient rights” and in the guise of people’s “natural rights” 29 However, as apposite as this caution might be from someone who had stated ten years earlier that “the natural law tradition, and more broadly the tradition of natural liberty…stood as the main opposition to republicanism or civic humanism in the few centuries prior to 1800”, 30 Pettit makes even more emphatically clear that on no account can republicanism be viewed as similar to liberalism on this issue: 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.31 He then proposes three remarks intended to underline this difference: by contrast with rights-based or rights-centered liberalism (as Pettit sees it), republicanism is concerned (i) not only with the non-violation of rights but also with institutional protection of rights, (ii) not only with rule of law but also with civic virtue, (iii) not only with conferring rights, but also with providing other social powers strengthening nondomination Before considering these remarks in detail, two preliminary considerations must be made Firstly, while Pettit’s initial question is conceptual (“how far republicanism diverges from a liberalism that asserts the importance of rights”), the answer he gives is an historical argument (“republicanism cannot be represented…as a tradition of rights akin to that which is sometimes associated with liberalism”) But in accounting for a conceptual divergence in historical terms, Pettit ignores his own commitment to keep these two orders of argumentation separated on principle History is certainly an 27 Pettit 1999, p 283-305 Pettit 1999, p 297 29 Pettit 1999, p 303 30 Pettit 1989, p 167 n 21 31 Pettit 1999, p 303 (my emphasis) 28 important and constant source of inspiration for him; but more importantly, Pettit deliberately states that his republican theory should be considered as a stand-alone theory, working independently of the issue of the right or best interpretation of republican tradition.32 Though this relationship between the history of political thought and contemporary political theory raises interesting issues in Pettit’s republicanism— including in his reading of rights thinkers 33—I will assume that this categorical discrepancy does not affect his assessment of the divergence I am focusing on.34 Secondly, it is difficult to grasp the precise function of Pettit’s three remarks since it is unclear what the difference turns on: is it a strong conceptual difference, with liberals and republicans defining rights in distinct ways (liberals as rights to noninterference, republicans as rights to non-domination), as one might conclude both from Pettit’s first remark and other critical passages? 35 Or is it simply a difference of emphasis, with liberals and republicans holding divergent views of the role of rights in their respective theory, as suggested by the second and third remarks? Or is it both: a conceptual difference entailing one of emphasis? These questions have far-reaching implications,36 but two reasons argue in favour of the weak interpretation Firstly, the divergence seems to be one of emphasis for the general turn of phrase of the passage The fact that Pettit first asks about the possible divergence between republicanism and rights-based liberalism, then admits the importance of rights in the republican tradition, and finally puts forward reasons why republicanism cannot even so be a tradition of rights as is liberalism intimates that in spite of their presence in republican tradition, rights are less important than in liberalism What also implies this, secondly, is that in each remark Pettit insists on the republican concern with concepts other than rights, meaning that he is trying to substantiate their insufficiency to republican eyes These are the two reasons why I assume that the purpose of these remarks is to support the claim that rights not feature as high on the republican agenda as they on the liberal one As the next three sections will argue, however, scrutinizing Pettit’s three points leads us to draw the converse conclusion: the republican interests in institutions, civic virtue and (social) powers are the very expression of a deeper commitment to rights In 32 See for example: Pettit 1997a, p 10: “the book is not essentially tied to many controversial theses in the history of ideas”; see also Pettit 1993, p 34 33 See above, section (second paragraph) To mention only one further such issue: given that Pettit is anxious to mention when he departs from past republican thought (for example on the question of inclusion), it is strange that he puts forward an instrumental conception of freedom without considering the many objections stated by past republicans against such a view 34 The same categorical discrepancy can be found in Laborde and Maynor 2008 While assessing “The Republican Contribution to Contemporary Political Theory” and devoting a specific section to asking whether “republican political theory…take[s] individual rights seriously”, they mainly place their answer on the terrain of republican tradition, Laborde and Maynor 2008, p (my emphasis), p 15-6 35 See for example Pettit 1997a, p 101 n 4, where he states that a republican conception of rights (centered on non-domination) would be different from a liberal one (centered on non-interference) This conceptual difference on rights seems inescapable since it is rooted in the main line of Pettit’s theory, namely the distinction between (republican) non-domination and (liberal) non-interference; see Pettit 1997a, p 17-31 See also Pettit 1997b, p 57 36 If republicans and liberals endorse the same concept of rights (as the last paragraph of the next section suggests), it becomes difficult to see how the non-domination versus non-interference distinction can hold, and more precisely how it can still be the relevant criterion to distinguish republicanism from liberalism If they not endorse the same concept of rights, it becomes difficult to see what a liberal right of non-interference is supposed to mean order to establish this conclusion, I will strengthen my case relying on Pettit’s own writings and suggest that if he fails to show that rights are less important for republicans than for liberals, his previous work—especially on rights—provide the best grounds for making the converse claim To put it more precisely, in each of the following sections I make three claims: (i) not only does none of Pettit’s three remarks substantiate the claim that rights are less important for republicans than for liberals; (ii) they also form, once rightly stated, strong arguments supporting the opposite claim, namely that republicanism takes rights more seriously than liberalism (iii) Finally, the best arguments in favour of this strong republican concern for rights are provided by Pettit himself Rights and Institutions The first remark combines the two the readings I have isolated Since for liberals, rights “are generally taken to be” “negative rights against interference”, they deem that “what is usually held to matter…is that rights are not actually violated” Concerned by contrast with non-domination, republicans are for their part worried about the insufficiency of such a view: “the non-violation of rights is consistent with the existence of someone who has the power, on a relatively arbitrary basis, to violate the rights” On the republican view, therefore, “what is important about such rights is not the fact, or not just the fact, that they are not violated, but rather the fact they are institutionally implemented and defended”.37 The key assumption underlying this argument is that liberals and republicans are of one mind to contend that claiming a right amounts to claiming non-interference: in Pettit’s pattern, this assumption allows us to understand both why liberals give pride of place to rights and why republicans are unsatisfied with them Liberals would rightly protest against such a characterisation; but important as it is, this issue does not concern my argument here, which focuses instead on how republicans conceptualize rights In this respect, though it has gained a widespread acceptance in neo-republican thinking,38 the aforementioned assumption cannot be admitted for at least two reasons Firstly, it implies an implausible disjuncture between claiming one’s rights and concern for their institutional protection, as if de facto noninterference were enough to enjoy one’s rights But for the republicans who in the past deemed rights as a synonym of freedom,39 a right is nothing if it is not protected against the arbitrary will of the prince That people could enjoy rights under the benevolent but arbitrary will of the king is certainly what absolutists claimed and wanted the people to accept But this is exactly what republican-minded Parliamentarians refused in their struggle against the tyrannical policies of Charles I As they complained in the 26 May 1642 “Remonstrance of both Houses in answer to the King’s Declaration [of May 7] concerning Hull”, the “erroneous maxim” royalists try to instil into the people is that kings’ “kingdoms are their own, and that they may with them what they will” Such a maxim not only justifies the “invading” of subjects’ “just rights and liberties”; it also 37 Pettit 1999, p 304; see also Pettit 1997a, p 99, where “rights-based liberalism” is associated with the ideal of non-interference 38 See Skinner 2002b, p 212; Laborde and Maynor 2008, p 16 39  For the clearest statement to this effect, see Sidney 1996 (II, 31), p. 304: “the right which is common to all is that which we call liberty, or exemption from dominion” “pull[s] up the very foundation of the liberty, property and interest of every subject in particular and of all the subjects in general”.40 Sidney put it unequivocally in the context of the Exclusion Crisis: he who claims that “the rights of a people” proceed from no other “root than the grace and bounty of the prince…declares they have none at all”.41 So it means little to Sidney to say, with Pettit, that the non-violation of rights is consistent with the presence of an arbitrary power, for his point is not that rights are put in jeopardy by the arbitrary power of the prince, but that they not exist at all without institutional protection against every potential arbitrary power As a result, the fact of non-subjection to interference in a given sphere of one’s life does not amount to saying, even in a weak sense, that this sphere is protected by a right, for the very notion of a right presupposes something more: genuine protection against potential arbitrary interferences So it seems difficult to see how the concern with protecting rights could not be an inherent part of claiming them But the implication is that the republican concern for institutional protection of rights is nothing but the expression of a deeper commitment to rights themselves Secondly, we may ask whether the republican conception of rights just outlined does not more generally reflect a constituent feature of rights theories, liberal ones included This, at least, is what Pettit himself convincingly argues in an earlier article providing an analytical of rights Closely examining the concept of rights as construed by Dworkin and Nozick, he argues that to think of a right as a constraint on legislation (Nozick) or as a trump that individuals might claim to override a majoritarian decision (Dworkin), it is necessary to conceive not only of a protection against actual interferences, but also and above all of a guaranty accorded an “infinite weight” against the possible interferences that might be the result of the pursuit of collective goods 42 But if, on Pettit’s own account, these admittedly diverse but still less controversially typical liberal thinkers espouse a concept of rights the robustness of which far surpasses what is required in the liberal non-interference scheme, then it is the very purpose of Pettit’s remark that is flawed: the concept of rights implies, even for liberals, an institutional protection which goes further than mere protection against actual interferences.43 Rights and Virtue Pettit’s second point stresses the typically republican view that, as he phrases it, to “enjoy non-domination” requires a set of rights “far outrun[ning] anything that the law could provide on its own”, for these “richer rights…depend on the sort of informal implementation that is possible only in a vibrant civil society” Although he does not specify what he is referring to with the somewhat woolly notion of “richer rights” that would not be shielded by law, he clearly points toward what the law cannot provide: “civic virtue”, which republicans deem necessary for the stability of a free state, and 40 [Anon.] 1642, p 222; for the general context of civil war in terms of liberty, see Skinner 2002c Sidney 1996 (I 5), p 17 (my emphasis) 42 Pettit 1987, p 11 43 See Pettit 1989, p 164 n 23, where he states that the concept of rights he finds in liberal thought is more robust than non-interference But if construing liberalism with the concept of non-interference is unconvincing (as indicated by Hobbes’ overwhelming importance in Pettit’s liberal scheme), then we stand in need of another criterion to distinguish liberalism from republicanism See the second paragraph of the next section for a possible answer 41 hence for individual freedom If republicanism is less interested in rights than liberalism, suggests the argument, it is because republicanism is more concerned with the issue of “civilizing the Republic”, that is to say of making republican institutions “win a place in the habits of people’s hearts”.44 The republican view that civic virtue is required to enjoy enduring freedom, however, can hardly establish that rights are less important for republicanism than for liberalism This view may enable us to draw out an important feature distinguishing these two political philosophies: both make the protection or promotion 45 of freedom the main aim of political society but, roughly speaking, while liberals reckon the rule of law to be enough to protect individual liberty or rights, republicans are concerned with the further necessity of cultivating civic virtues in order to thwart the corruption of the institutions liable to undermine personal freedom 46 But why would anything in this further concern make it necessary to marginalise rights? Pettit has no answer to this question, but the Pocockian flavour emanating from his contrast between rights and virtue calls to mind Quentin Skinner’s historicphilosophical case on negative freedom, which has famously influenced Pettit’s theory of republican freedom and is built precisely upon Pocock’s premise that rights and virtue are incompatible.47 Skinner is right in challenging the widespread but mistaken intuition that it is impossible to conceive negative freedom without the notion of a (natural) right But from there being “no conceivable obligation to think of our liberty in this particular way” (as Machiavelli’s example helpfully shows), it does not follow that treating civic virtue as a means of sustaining liberty inherently precludes the view of liberty as a right.48 This inference would be correct if rights were to be conceived in the purely egoistic fashion proposed by Skinner, 49 according to which the desire to have 44 Pettit, 1999, p 304 (he refers to his chapter 8); and see Pettit 1997a, p 241-70 and 64; on the “need” or “necessity of virtue”, see also Pettit 1989, p 162, Pettit 1993, p 33 45 Here I deliberately leave aside the difference between promoting and honouring the main political value, which bears importantly on the issue of rights in Pettit’s scheme, as already mentioned in the introduction I leave it aside for two reasons: first, this distinction is not necessary to examine Pettit’s arguments in the Postface; second, considering it properly is beyond the scope of this paper, for it would require an assessment of Pettit’s conception of consequentialism, and of its relations with both rights and republicanism See [reference suppressed for blind review] 46 For this characterisation of the difference between republicanism and liberalism, see Burtt 1992, p 667 Of course liberals also claim civic “liberal virtues” to be a necessary means of upholding the liberal community; see for example Macedo 1990; Galston 1991; Costa 2004 However, since civic virtue is traditionally linked with republicanism and since even the first liberals allegedly endorsed a politics of virtue (see Kalyvas and Katznelson 2008, p 7-8, 18-9, 63, 103-5, 156, 164-5), contemporary advocates of liberal virtues have to explain to what extent these liberal virtues can be distinguished from republican ones 47 See Pettit 1997, p and Pettit 1998, p 73, where he acknowledges that Skinner “pioneered” “in broad outline” the characterization he elaborates upon Skinner (1998, p 19-20 n 58) has admitted that his contrasting account of the relation between rights and virtue was exaggerated in his 1983, 1984 and 1986 articles When he republishes the two first in the second volume of Skinner 2002, however, he not only reiterates the same opposition (see Skinner 2002a, p 179, Skinner 2002b, p 192, 196, 211) but emphasizes in the General Preface as his “overarching historical interest” to “compar[e] two contrasting views”: that which “assigns priority to the duties of citizens, the other to their rights” (p xi) For Pocock’s strong formulation about the incompatibility between rights and virtue, see primarily Pocock 1981 and Pocock 1983, p 248-50 For a detailed critique of this opposition, see [reference suppressed for blind review], p 31-46 48 See Skinner, 2002b, p 211 for this assertion 49  Skinner 1986, p. 244, 249; see also Skinner 2002a, p. 162, 164­5 10 one’s rights protected is incompatible with the need to fulfil one’s civic duties in order to remain negatively free But to suggest that neo-Romans or republicans refused to use rights-talk because they thought rights to be of a Hobbesian kind is a very contentious claim For what is true of most early modern natural rights thinkers is also true of republicans who used the language of natural rights: individual rights are moral rights embedded in a natural law framework.50 The implication, then, is not only that it makes complete sense to say that civic virtue and rights are not in tension with each other, but also that being a virtuous citizen appears to be a very efficient way to have one’s rights protected So the Pocockian assumption that drives Skinner’s argument could in principle provide grounds for Pettit’s notion that the republican concern with virtue means that rights are less important than for liberals But since Pettit never articulates such a claim, his second argument in the Postface is left unsupported The problem is exacerbated by the fact that, as we saw above, some of the main conceptual features of Pettit’s notion of rights are hardly distinguishable from the conceptual apparatus with which he explicates the idea of non-domination.51 The implication is inescapable: if on one hand to enjoy a right is to enjoy dominion or non-domination, and if on the other virtue is a necessary means to remain free, then it makes sense to claim that the raison d’être of the politics of virtue is to provide a best protection of rights Moreover, Pettit himself is again the best ally to dispute his own argument In previous reflections on what it means to take rights seriously, he had been anxious to argue that enjoying rights presupposes not only that the “legal force” of the claims they protect are recognised It also and more demandingly presupposes the “moral force” of rights by which every person in general, and every state official in particular, must recognise himself bound.52 Precisely because rights protection requires rigorous assurance that no arbitrary interference will occur, state officials are potential but particularly dangerous liberticidal agents, and must therefore publicly display a specific attitude of stern respect of rights: In order to promote franchise [i.e freedom], the state and its agents must bind themselves to honouring the liberties [or rights] to which they give legal recognition They must commit themselves to adopting an attitude of rigorous respect… [they must] tie their hands and restrict the compass of their deliberation Unless the state agent “publicly adop[ts] appropriate constraints on how he makes his decisions” and “let[s] the evidence of those constraints have the desired effect”,53 the common citizen will legitimately fear that the agents invested with public power might, even in good faith, infringe upon her rights It should be added, moreover, that there is no reason to limit this argument to state agents: the fact that there is always the arm of a individual behind a public power makes state agents a serious potential threat, but virtually every person has the power to arbitrarily interfere in the life of others The implication is that making enjoyment of rights real also requires that individuals in general display such an attitude of rigorous respect towards others’ rights 50 See Haakonssen 1991 and 1996; the natural law framework of republican conceptions of rights is what confutes the Straussian reading of seventeenth-century republicans as Hobbesian thinkers; see Sullivan 2004; Rahe 2006 and 2008 51 See above, p YY 52 Pettit 1988, p 47-8, 52-3 53 Pettit 1989, p 153 11 As Spitz neatly puts this point: “to be free…means that we live among others who not interfere with our actions because they have in conscience the duty to refrain from doing so”.54 Without such non-interference motivated by duty, we remain subject to potential arbitrary interferences whenever deterrents are too weak: “we not have to be defended against others’ infringements and interferences, but we have to possess this safety which derives from the fact that others have a duty—grounded on the absolute reciprocity of rights—not to interfere”.55 Now is there not a case here for saying that this duty is nothing else than one face of civic virtue—of “civility”, in Pettit’s preferred phrasing?56 This is classically the way early-modern republicans define “moderation”: less as a moral excellence to be pursued for itself than as a way of exercising one’s liberty without infringing others’ freedom or rights.57 Consequently, one can say without exaggeration that combined with Pettit’s conception of rights, his observation that republicans are – unlike liberals – concerned with the necessity of civic virtue should substantiate the claim that the republican concern for virtue is nothing other than an anxiety to improve the protection of rights The paradoxical result remains, however: while he has all the means at his disposal to show how the specific republican concern for virtue means a deeper commitment to rights than that which he finds in liberalism, Pettit sets out this concern as an unconvincing argument for the lesser importance of rights in republicanism Yet again, Pettit himself provides the means of reinforcing this general objection to his second remark elsewhere For it is not only a great deal of the republican tradition that has conceived civic virtue as a indispensable way of bolstering the legal protection of freedoms or rights: 58 Pettit himself mentions the crucial importance of a “culture of equal rights” for the republican ideal of non-domination to be implemented in the spheres of republican society where this culture is sorely lacking 59 Rights must be of foremost importance for individuals if they are to “function properly in a contemporary society”60 and if they are to be able to contest efficiently whatever law they deem dominating.61 In a nutshell, as far as a republican society is concerned by a “culture of 54 Spitz 1995, p 185 n 11 Spitz 1995, p 186, and p 188 (n 18), 189, 214 (n 55), 216 (and n 58), 218, 437-8 (n 11); see also p 193, 198-9 56 Pettit 1997, p 245; see Spitz 1995, p 167-77, 424, for this idea of republican virtue More recently Spitz has dramatically withdrawn this position, stating that “virtue has always given rise to oppression of the multitude by the elite” and that “the theme of civic participation, always fantasized about in modern conditions, leads the way to all repressions” (2009a, p 44); for the same contention, see Spitz 2009b, p 149 (which repeats the same idea) and p 137, 142, 148 57 This account of civic virtue suggests an assumption underestimated in current neo-republican thinking and yet noteworthy If he believes that civic virtue is an unsubstitutable means to realise the ideal of nondomination, the republican seems committed to the idea that a positive dimension to freedom (to master oneself in one’s relations with others—meaning here refraining, out of duty, from dominating them) is a condition for being free in a negative sense (i.e not being submitted to the arbitrary will of others) For further developments in this direction, which clearly exceed the strictly negative limits within which Pettit tries to stay, see Spitz 1995, p 185-8 58 On this issue, see [reference suppressed for blind review] But see Pettit 1993, p 33 where he defines “republican virtue” as “the reliable habit…of behaving in accordance with the law” (my emphasis) 59 See Pettit 1997a, p 61 (the context is that of a the culture of rights relative to children and couple relationships) 60 See Pettit 1997a, p 158 61 See Pettit 1997a, p 193 55 12 rights”, the characterization given by M J Lacey and K Haakonssen in their Introduction to the book they edited under this very title seems particularly apt: “A way of life in which the language of rights plays a prominent role”.62 Rights and Powers Pettit’s third point is the contention that “republicans have no reason to think of rights—however richly conceived—as the only resources whereby people can be protected and assured of their non-domination” Where liberals are content to accord rights to individuals in order to protect them, republicans are committed to granting them “powers” or “countervailing forces” supposed to be more efficacious than rights to protect them from domination: unionization for workers and, more generally, “shifts of culture and power—achieved, in good part, as a result of political activity”— following which freedom as non-domination has in some cases, such as that of women, been furthered “as much as it has been by the formal recognition of their equal rights”.63 Two objections still arise Firstly, without further specification, it seems difficult to dissociate the political struggles already mentioned and the changes they have brought about on one hand from struggles for the recognition of rights on the other An historical account of these struggles would almost surely show that the language of rights, protecting the dominant and dominating parts of society (owners of the means of production; men), was the most useful tool to articulate claims to recognition 64 This is a common fact: that the best way to have one’s grievances heard and understood is to express them in the normative language or value that prevails Secondly, and history aside, there is a stronger objection to Pettit’s point: how could granting a power be more efficient than recognising a right? What is the mere power of unionizing supposed to be if it is not a protected right to so? To be more precise: how exactly does such a power hope to have any chance of protecting workers from their employers’ domination if this power is not also and above all a right to unionize—a power that workers may assert and vindicate independently of, and when necessary against, the powerful will and means of their employers, because it is recognized and sustained by the force of the law? To play a part in the balance of power, it is mandatory that these countervailing forces constitute a significant instrument of pressure, and thus that a violation of the right to unionize or the exercise of union rights expose the transgressor to strongly deterrent sanctions As a result, the republican stance consists less in sidelining the concept of rights in favour of the concept of power or countervailing force than in challenging the too formal understanding of what it means to recognise a right: in republican terms, up to a point, a formal right is not a right at all, but a mere privilege The way Pettit has recently restated his claim makes it clear how the idea that powers supplement rights is misleading The recognition of “rights”, says Pettit, must be completed by the attribution of “certain powers and options”: The protection that has to be provided will establish a dispensation of enforceable rights, like any legal system, but it is also likely to require a regime in which people are assured of certain powers and options that might otherwise be unavailable The cause of protecting workers in the 62 Lacey and Haakonssen 1991, p Pettit 1999, p 304; see also Laborde and Maynor 2008, p 16, who repeat this claim word for word 64  See McCann 1994 63 13 sort of labour market associated with industrial capitalism…is likely to require not just the right not to be fired at will but also the power of organizing in unions and the option of leaving an abusive workplace and living on social security The cause of protecting women in a masculinist culture is going to require not just the right to divorce a husband but also the power to call in the police against a violent partner and the option of living in a refuge for victims of abuse The cause of protecting an ethnic minority is likely to require not just the right to lodge a case against discrimination but also the power of organizing as a group and, in some cases, the option of living under a special form of jurisdiction or government.65 The opposition between rights and powers (or options) is misleading for the simple reason that if these “powers and options” are to be, in Pettit’s own words, “assured”, then it is mandatory that they should be protected as rights.66 So it is not as powers and options that they are more efficacious than “formal rights” to promote non-domination On the contrary, if they are efficacious, it is not because they are powers, but because they are rights proper What Pettit is comparing here are not weak rights and strong powers, but rather insufficient rights and necessary additional rights This objection to his third point is once again reinforced by Pettit’s own reflections Firstly, he had already seen the problem of this empowering thesis: to shield vulnerable people from being dominated by the powerful, the solution cannot be “to reverse roles…and give them power over others”, for “that would only relocate the problem”.67 Secondly, let us turn to the resources Pettit himself gives in Republicanism He is concerned with identifying ways of preventing the state from becoming a source of domination in the existence of individuals—the threat of state imperium It is in this context of fear of a tyrannical majority that he puts forward the theory of democratic contestability In the section dedicated to showing that public decision-making must “track the interests and the ideas of those citizens whom it affects” in order not to dominate them, he considers that this interests-tracking condition is satisfied only if all citizens, individually and collectively, “can effectively contest” any interference deemed to ignore their relevant interests and ideas.68 Turning to the ability to “voice contestations”, Pettit is very clear that rights are a privileged means of doing so To be sure, it is essential that the diverse “arms of government”—legislative, administrative, judicial—should be “inclusive”: that they should be forced to “represent” and hence to voice even minority opinions and interests.69 But if the republican architect hopes to “enfranchise [potential contesters] in more than a purely formal or ceremonial sense”, this will not be enough, for he also has to make one “able to complain and appeal”, “to state a grievance and to demand satisfaction”.70 And the different “channels” he lists are so many rights: They include the opportunity of writing to your Member of Parliament, the capacity to require an ombudsman to make an inquiry, the right to appeal against a judicial decision to a higher 65 Pettit 2009, p 50 Pettit 2009, p 50 See also Pettit and Lovett 2009, p 21 where rights (“to trigger the law against certain abuses”, “to sue for wrongful dismissal”, “to charge [one’s] husband with domestic violence”) and powers (“to strike or…to seek separation or divorce on a no-fault basis) are also distinguished, though less strongly But it still remains unclear how these powers can be efficient in protecting nondomination without being proper rights See Ivison 2010, p 35 for the same confusion 67 Pettit 1996, p 588 (emphasis added); but see p 589-90, where he reiterates the empowering thesis 68 Pettit 1997a, p 184, 185, and p 183-200 for the relevant section; see also p 56 69 Pettit 1997a, p 190, 190-3 70 Pettit 1997a, p 191, 193 66 14 court, and less formal entitlements such as those involved in rights of association, protest and demonstration.71 This seems a necessary state of affairs, since “what is required for nonarbitrariness in the exercise of a certain power is” to “assure” the people, individually and collectively, “the permanent possibility to effectively contes[t]” any law.72 It turns out, then, that the notion of rights lies at the very heart of Pettit’s theory of democratic contestability, which is one of the two “republican forms” he considers in order to promote non-domination institutionally Even clearer is the second opening that Pettit himself provides in Republicanism for contesting his third point about the lesser importance of rights in republicanism than liberalism It appears in the discussion of republican economic concerns, the only passage of his book in which Pettit explicitly emphasizes the robust character of a right What is the republican position on ways of realising “socioeconomic independence”? Pettit’s own answer is that republican socio-economic policy will never be achieved if each person is not assured of receiving the assistance she might need The general implication is that trying to increase her freedom by simply giving her concrete socioeconomic resources would be vain This is the concept of right that allows him to express the idea that such a “support” should never be a mere favour, but should always be publicly recognized and hence duly able to be claimed: However the welfare needs of people are serviced under a state that promotes overall freedom as non-domination, they must not be serviced in a manner that itself involves certain forms of domination Whatever level of income support is given to the needy, for example, it must be given so far as possible in the fashion of a right (my emphasis) But what does it mean, according to Pettit, for something to be given in the fashion of a right? He makes clear the demanding condition for such support to be a right: It must not have the aspect of a gift that may be withdrawn at anyone’s whim: not at the whim of a subsidized employer, not at the whim of a street-level bureaucrat, not even at the whim of an electoral or parliamentary majority Pettit here states a substantial thesis: the right to such a welfare allocation is supposed to trump the will of a sovereign Parliament, and must be protected by a “constitutional guarantee”.73 Consequently, just as the concerns for institutional guarantees and civic virtue turn out to be means of protecting rights, powers and countervailing forces cannot be separated from the robust republican conception of rights This implies, in turn, that if we agree with Pettit that republicanism can be distinguished from liberalism by its focus on these resources, then we must conclude that the divergence between these two political philosophies lies not in the lesser importance the former gives to rights, but on the contrary in the fact that republicanism takes rights more seriously than does liberalism: far from being rights-independent preoccupations, these resources (institutional guarantees of non-domination; civic virtue as an essential support for freedom; increased citizen powers in potential conflicts) are nothing other than the 71 Pettit 1997a, p 193 Pettit 1997a, p 63; see also p 185 for a very similar formulation; see also the case of “conscientious objection” (p 199-200) 73 Pettit 1997a, p 162 72 15 expression of how seriously republicans take rights For in each case, the resource is that without which a right would not really be—or would not remain for long—a right Conclusion On the strength of the argument in this article, Pettit is wrong to downplay the importance of rights in his republican theory, for the very reasons he gives to this effect tend when properly stated to establish the converse claim: that republicanism takes rights more seriously than liberalism (as he construes it) That Pettit’s version of liberalism (and in particular his Hobbesian liberal liberty) is unconvincing is no objection here, for my main contention is not essentially connected with liberalism, but internal to republicanism There might be a powerful objection to this rationale, however One could still object that if it had given individual rights pride of place, Pettit’s republicanism would have had to return to the liberal family, and that this is exactly the reason why he seems so reluctant to so—since he wrote this book to contrast republican and liberal conceptions of freedom Three points can be made to refute this objection Firstly, there is probably some truth in the assumption that the minor role of rights in Republicanism is born of Pettit’s overall purpose of opposing liberalism But, secondly, this strategic retreat appears self-defeating, especially bearing in mind his first formulation of the republican ideal—which contains the most powerful theoretical case for a republicanism of rights.74 This leads me to the third point: Pettit’s reluctance would have been warranted—and hence the objection acceptable—if the concept of rights were indeed irredeemably liberal But as clear as it seems for advocates both of liberalism and of republicanism, this strong assumption needs more than the declamatory repetition that republicanism’s weakness is to “refuse to draw on such familiar liberal strategies” as “thinking of individuals as having rights”, 75 or that the fact that freedom as non-domination presupposes the notion of respect for persons “makes Pettit’s ideal republic a liberal polity”.76 There is no logically compelling reason to conceive of rights as a liberal notion, and both the above argument and Pettit’s first formulation of the republican ideal not only suggest that republicans should not consider rights as the exclusive preserve of liberalism, but also support the claim that republicans have a consistent concept of rights 77 Moreover, were the dispute to shift ground and seek justifications in history or traditions of political thought this would inevitably turn to the advantage of republicanism since republicans integrated the notion of individual rights significantly earlier than the so-called founding father of liberalism, John Locke,78 and used it throughout the eighteenth century.79 74 More convincing than Dagger’s attempt, which in demonstrating that rights and republicanism are not incompatible, continues to associate rights with liberalism 75 Herzog 1986, p 490 (my emphasis) 76 Larmore 2001, p 242 (my emphasis) 77 See Pettit 1989; see also Ivison 2010 and Bohman 2009, for two different attempts to conceptualise republican human rights 78  See Skinner 1998, p 19-20; see also [+ two references, to a book and to a article, suppressed for blind review] 79 See [two references of articles suppressed for blind review] 16 References [Anon.] 1642 Remonstrance of both Houses… in J.P Kenyon (ed), The Stuart Constitution Documents and Commentary Cambridge: Cambridge University Press, 1986 Bellamy, Richard 1993 Citizenship and Rights Pp 43-76 in R Bellamy (ed), Theories and Concepts of Politics An Introduction Manchester: Manchester University Press Besson, Samantha, and Marti, YY 2009 (eds), Legal Republicanism National and International Perspectives, Oxford: Oxford University Press Bohman, James 2009 Cosmopolitan Republicanism and the Rule of Law Pp 60-77 in Besson and Marti 2009 Burtt, Shelley 1992 Virtue Transformed: Political argument in England 1688-1740 Cambridge: Cambridge University Press Costa, Maria 2004 Political Liberalism and the Complexity of Civic Virtue The Southern Journal of Philosophy, 42 (2), 149-70 Dagger, Richard 1997 Civic Virtues Rights, Citizenship and Republican Liberalism Oxford: Oxford University Press Galston, William 1991 Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State Cambridge: Cambridge University Press Haakonssen, Knud 1991 From Natural Law to the Rights of Men: A European perspective on American debates Pp 19-61 in Lacey and K Haakonssen 1991 — 1996 Natural Law and Moral Philosophy From Grotius to the Scottish Enlightenment Cambridge: Cambridge University Press — 2007 Republicanism Pp 729-735 in R Goodin and P Pettit (eds) A Companion to Contemporary Political Philosophy [1993] Malden: Blackwell Publishing Herzog, Don 1986 Some Questions for Republicans, Political Theory, 14 (3), 473-493 Honohan, Iseult 2002 Civic Republicanism, New York, Routledge — 2009 Republicans, Rights, and Constitutions: Is Judicial Review Compatible with Republican Self-Government ? 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??provide the best grounds for making the converse claim To... that rights are less important for republicans than for liberals; (ii) they also form, once rightly stated, strong arguments supporting the opposite claim, namely that republicanism takes rights. .. strong conceptual difference, with liberals and republicans defining rights in distinct ways (liberals as rights to noninterference, republicans as rights to non-domination), as one might conclude