Republican Liberty Research Articles

Two Challenges for Neo-Brandeisian Antitrust

Several scholars and policy-makers have proposed a “Neo-Brandeisian” reform of U.S. antitrust law, aimed at reviving “republican” antitrust. Republicanism conceives of domination as inherently detrimental to freedom. Republican antitrust considers antitrust law as an “institution of antipower,” aimed at dispersing economic power. This paper sets out two key challenges to the Neo-Brandeisian reform agenda and argues for legal formalism to address them. First, republicanism would alter the normative justification, but not necessarily the content of antitrust law. Neoclassical antitrust law does not broadly reflect a Schumpeterian endorsement of dominance. Rather, its epistemological priors and methodology entail skepticism about the mere presence of economic power. Thus, mainstream antitrust law and policy remain unfazed by the Neo-Brandeisian claim that antitrust should target domination instead of consumer welfare. Second, Neo-Brandeisian reform proposals are inherently polycentric. How Neo-Brandeisians aim to balance distinct values including the competitive process, the harm of concentrated power, and the protection of democracy and egalitarianism has remained unclear. This paper argues that both challenges demand for a formalistic approach to Neo-Brandeisian antitrust. Compared to a case-by-case approach, adopting general rules through legislative or administrative decision-making may legitimately overturn current precedent, incorporate alternate methods of measuring power and competitive harm, and pursue a variety of republican goals. Neo-Brandeisian formalism would essentially reinvigorate the Harvard school’s insight that multiple purposes—including both efficiency and republican liberty—can be attained by formalistic rules.

The Constitution of 3 May 1791: Testament of the Polish-Lithuanian Commonwealth

The Constitution of 3 May 1791: Testament of the Polish-Lithuanian Commonwealth

The competition-democracy nexus unpacked—competition law, republican liberty, and democracy

Abstract The proposition that competitive markets and competition law promote democracy constitutes a fundamental normative prior, if not a foundational myth, of US and EU competition law. This article purports to unpack this notion of a competition-democracy nexus. It argues that the idea of a competition-democracy nexus can only be explained by the normative commitment to a specific understanding of liberty: namely, the republican concept of liberty as non-domination. On this basis, the article makes three contributions. First, on a conceptual level, it is the first to pin down a clear and theoretically consistent answer to the question of how competition and competition law further democracy. Second, on a historical level it traces how iterations of the ideal of republican liberty and the associated notion of a competition-democracy nexus shaped competition law in the US and Europe and why both disappeared from our modern competition law landscape. The third contribution is practical. The article sheds light on how the ideal of republican liberty and the competition-democracy nexus can be operationalised through concrete competition law tools and how they could inform ongoing debates on the future of competition law in light of the current challenges posed by the rise of industry concentration notably in digital markets. A revival of the idea of a competition-democracy nexus, the article concludes, must not inevitably conflict with a consumer-oriented competition policy, but requires a radical rethink of the role of competition law.

EDUCATION: A COMPULSORY RIGHT? A FUNDAMENTAL TENSION WITHIN A FUNDAMENTAL RIGHT

ABSTRACT This paper is on the paradox of a right, the right to education that is almost universally declared as compulsory. The reason for the compulsion seems to be in its nature as a right. Within a Hohfeldian framework, any claim-right has a corresponding duty. Given that making education compulsory equates to establishing a duty, the possible candidates to the duty generating right-bearers are considered. The rationales for compulsion from the points of view of positive (for one’s own good), negative (no compulsion at all), and republican liberty (society right) are analyzed, and the conclusion is reached that none of the three can produce sufficient justification for compulsion. The main conclusion is that education is a right, not an obligation. Therefore, neither the children nor their families can be legally forced to an unrestricted exercise of this right without even being heard. The law must reflect, in its progressive flexibility, the growing possibilities of choice for right-holders who are adults ‘in fieri’.

Three errors about republicanism: a reply to Jafarov and Huseynli

ABSTRACT In their paper, ‘Republican Freedom, Domination, and Ignorability,’ Jafarov and Huseynli argue that our analysis of republican freedom in terms of an ignorability test fails to distinguish republicanism from liberalism. In this reply, we defend our view, showing that their argument rests on three common errors about republicanism: first, that republicanism must distinguish itself from liberalism to succeed; second, that republicans cannot admit probabilistic reasoning; and third, that republican liberty and pure negative liberty generate equivalent judgments about freedom.

Bartolomé de Las Casas and Felipe Guaman Poma de Ayala: Republicanism on the Colonial Frontier

This article will examine how Bartolomé de Las Casas and Felipe Guaman Poma de Ayala use the republican lexicon on the colonial frontier. Initially, it explicates how Las Casas extends the concept of republican liberty to include the singular peoples that the American world presented. For this, it highlights the pretensions of truth and validity in the face of the Other, as well as the democratisation of the right to resistance. Then, it introduces how Guaman Poma translates between the republican public good and Andean reciprocity. In the mestizo chronicle’s political imaginary, we find a republican underpinning whose notion of public good presupposes the de-privatisation of the communal.

The Eurocentrism of neo-Roman republicanism and the neglect of republican empire

Republicanism is an approach within political theory that seeks to secure the values of political liberty and non-domination. Yet, in historical practice, early modern republics developed empires and secured their liberty through policies that dominated others. This contradiction presents challenges for how neo-Roman theorists understand ideals of liberty and political freedom. This article argues that the historical practices of slavery and empire developed concurrently with the normative ideals of republican liberty. Republican liberty does not arise in the absence of power but is inherently connected to the exercise of power.

The Federalist Frontier: Settler Politics in the Old Northwest, 1783–1840

The Federalist Frontier: Settler Politics in the Old Northwest, 1783–1840

Criminal Law and Republican Liberty: Philip Pettit\u2019s Account

Philip Pettit has made central to modern republican theory a distinctive account of freedom—republican freedom. On this account, I am not free solely because I can make choices without interference. I am truly free, only if that non-interference does not itself depend on another’s forbearance (what Pettit calls ‘formal’ freedom). Pettit believes that the principal justification for the traditional focus of the criminal law is that it constitutes a bulwark against domination. I will, in part, be considering the merits of this claim. Is the importance of the orthodox realm of the criminal law solely or mainly explained by the wish to protect people from domination? In short, the answer is that it is not. Across the board, the criminal law rightly protects us equally from threats to what Pettit calls ‘effective,’ as opposed to formal, republican freedom. I will develop my critique of Pettit’s account of criminal law, in part to raise questions about the role of ‘domination’ in political theory, and about whether it poses a significant challenge to liberal accounts of criminal law.

Sen’s Conception of Freedom, and a Conjecture on Embodiment

This article explores Amartya Sen’s understanding of freedom, and performs two central functions, one classificatory and the other substantive in nature. First, I situate his reflections within canonical understandings of liberty, finding an irreducible pluralism incorporating positive liberty in ‘capability’ alongside negative and republican liberty in ‘process’, which is subsequently unified in the notion of ‘comprehensive outcomes’. Secondly, I attempt to find a normative referent for the intrinsic value of choice, and thereby indirectly that of freedom, in his account. In contrast to the liberal subjectivity one might – I believe, mistakenly – attribute to Sen’s deployment of neoclassical economic frameworks, I instead argue for a re-interpretation of his account, inspired by the sociological literature on embodiment. Here, an ‘encumbered’ subject must inherit and transcend a normative totality to become an agent in the fullest sense.

Sieyès and republican liberty

In On the People’s Terms, Philip Pettit incorporates the Sieyèsian notion of constituent power into his constitutional theory of non-domination. In this article, I argue that Emmanuel Sieyès’s understanding of liberty precludes such an appropriation. While a republican, his conceptualisation of liberty in the face of commercial society stood apart from theories of civic vigilance, preferring instead to disentangle individuals from politics and maximise what he understood to be their non-political freedoms. Sieyès saw that liberty was heightened through relations of representation and commercial dependency. This conception of liberty was pivotal to the identity of the nation, and so allowed Sieyès to assess forms of collective injustice committed by the French nobility. It also provided the normative foundation of his theory of constituent power. For Sieyès, constituent power guarded against legislative excess in a decidedly minimal sense, intending instead to separate citizens from the political sphere so they were not burdened with ongoing participation or public vigilance.

Republican Liberty As Liberty within Rights

What is the relationship between republican liberty and rights? The received view is that although rights play an important role in republican theory, non-domination is conceptually distinct from rights enjoyment; like liberty as non-interference, republican liberty is a stand-alone conception of liberty that we can understand and perhaps even promote without invoking rights at all. I argue that this is a confusion, one that has left our view of republican liberty, and indeed the entire liberty debate, substantially out of focus. Republican liberty is not, like liberty as non-interference, an account of liberty that is conceptually independent of rights and which may (or may not) stand in relationships of varying importance to rights. To the contrary, republican liberty just is liberty within rights; to enjoy all of one’s rights is to enjoy full non-domination, and to enjoy full non-domination is to enjoy all of one’s rights. Rights enjoyment, we may say, is necessary and sufficient for republican liberty. It is necessary for republican liberty because there is no way to specify the range within which independence from others’ unconstrained wills matters without specifying particular rights that people may claim against one another. And it is sufficient for republican liberty because to enjoy a right is to possess securely a valid claim against one or more other people, where security is a function of institutional sanctions sufficient to dissuade others from violating that right. Thus, ‘R is a right and so requires entrenchment against others’ arbitrary power’ adds nothing to ‘R is a right.’ Once it becomes clear that republican liberty is liberty within rights, the liberty debate reappears as a contest that is fundamentally about whether there is conceptual daylight between liberty and rights.

Le libertà delle città italiane nel tardo medioevo: qualche riflessione

La historia de la libertad en las ciudades italianas de fines de la Edad Media se enfrenta a una "gran narrativa" que interpreta la experiencia política de las ciudades con una tradición comunitaria como una experiencia extraordinaria de la libertad republicana, a partir de algunas convicciones sólidas: que las Comunas habían sido una expresión plena de la libertad de los ciudadanos, que la degeneración de las luchas entre facciones había llevado a su crisis, y que los regímenes señoriales habían marcado el final de la libertad allanando el camino para las invasiones extranjeras de finales del siglo XV. El paradigma central de la "gran narrativa de la libertad" es la identificación de las experiencias políticas de las ciudades italianas de tradición comunal con el sistema político republicano. Sin embargo, esta identificación parece ser una "comprensión previa" interpretativa que no se refleja en la documentación. Tenemos que volver a investigar el significado de las libertates en las ciudades italianas de finales de la Edad Media, sustrayendonos a una carga ideológica tan pesada, para comprender la variedad de los significados premodernos del concepto de libertad centrado principalmente en la reivincidación de libertad como ausencia de dependencia o un régimen político arbitrario. Metodológicamente se trata de comenzar de nuevo a partir del análisis de la documentación y de una exégesis afinada del lenguaje de las fuentes, que revela la extraordinaria variedad de significados y declinaciones asumidas por la noción de libertad en las ciudades italianas entre los siglos XII y XIV.

Sanctuary Cities and Republican Liberty

What are sanctuary cities? What are the political stakes? The literature provides inadequate answers. Liberal migration theorists offer few insights into sanctuary city politics. Critical migration scholars primarily address the relationship between sanctuary cities and political activism, a small part of the phenomenon. The historical literature examines continuities between 1970s sanctuary church activism and contemporary sanctuary cities, confusing what is essential to sanctuary churches and what is only sometimes associated with sanctuary cities. Together these approaches obscure more than they reveal. This article suggests a republican account of sanctuary cities. Reconstructing American migration politics from the colonial era onward shows that sanctuary cities have roots in both the colonial republican revolt and the republican principle of freedom as nondomination. That reconstruction reveals much about both sanctuary cities and the federal government’s long-running assault on them. The resulting robust analytical framework clarifies what is at stake in the politics of sanctuary cities: federal sovereignty in migration politics specifically and republican liberty in migration politics generally.

Socialist Republicanism

Socialist republicans advocate public ownership and control of the means of production in order to achieve the republican goal of a society without endemic domination. While civic republicanism is often attacked for its conservatism, the relatively neglected radical history of the tradition shows how a republican form of socialism provides powerful conceptual resources to critique capitalism for leaving workers and citizens dominated. This analysis supports a programme of public ownership and economic democracy intended to reduce domination in the workplace and wider society. I defend this socialist republicanism from both the Marxist objection that it overlooks the impersonal nature of domination under capitalism and the left-liberal objections that property-owning democracy or worker codetermination are sufficient to suppress dominating relationships. The resulting position identifies the need for more ambitious institutional grounds for republican liberty than is often supposed, while offering us a distinctive emancipatory justification for socialism.

Republicanism within IR: A History of Liberty and Empire

The republican tradition has long been influential within political theory, but has been less acknowledged within the discipline of International Relations (IR). Republican theorists and republican ideas of political liberty underlie many normative claims made by both liberal and realist schools of thought. The following examination of republicanism takes an interdisciplinary approach to argue the relevance of republicanism for IR theory. When republicanism is recognised within IR, it is often through a triumphalist reading of the early American republic and its founding. This article opens new ground by presenting a more critical account of republicanism. It does so by focusing on the connections between republican liberty and the history of republics to dominate those outside the polis. El republicanismo en el ámbito de las relaciones internacionales: Una historia de libertad e imperio

La Boétie and republican liberty: Voluntary servitude and non-domination

The 16th-century French humanist writer Etienne de La Boétie has not often been considered in literature on republican political thought, despite his famous essay, Discours de la Servitude Volontaire, displaying a number of clear republican tropes and themes, being largely concerned with the problem of arbitrary power embodied in the figure of the tyrant. Yet, I argue that the real significance of La Boétie’s text is in his radical concept of voluntary servitude and the way it adds a new dimension to the neo-republican theory of liberty as non-domination. The problem of self-domination or wilful obedience to authority is a form of ideological domination that Pettit’s understanding of arbitrary power relationships between agents does not adequately account for. Furthermore, La Boétie shows that freedom is an ontological condition and is realised not – or not entirely – through the rule of law as the guarantee against arbitrariness, as neo-republicans advocate, but rather through acts of self-emancipation and civil disobedience. Here I understand La Boétie’s thinking in terms of a certain anarcho-republicanism in which the promotion of freedom depends not so much on institutions, as Pettit suggests, but rather on autonomous relations of friendship, love and solidarity between individuals.

Republican Liberty and the Pindaric Genealogy of Modern Abstractions

Pindaric odes written around the time of the French Revolution have a penchant for abstractions. Apostrophized Liberty, Fortune, Virtue, and Joy, which replaced the monarch as the ode’s addressee, attest to the numinous prehistory of distinctively modern concepts that Reinhart Koselleck termed “collective singulars.” In particular, eighteenth-century Pindarics put forward representations of Liberty prevailing over an unenlightened past, which conform to the schema of victorious encounter established in Pindar’s epinician odes. The article dwells closely on two ostensibly pro-revolutionary and highly influential texts in the Pindaric mold, Alexander Radishchev’s Liberty and Friedrich Schiller’s To Joy, which share a concept of freedom that diverges from both the republican and the liberal interpretations.

Migration, membership, and republican liberty

ABSTRACT Neorepublicanism holds that domination is the foremost political evil. More, it claims to be able to address today’s most pressing issues. It follows that neorepublicanism should, then, speak to questions of migration, membership, and domination. However, this is not the case. Some critical voices inspired by the idea of non-domination arrive at interesting critiques of migration, membership, and domination, but their answers are often partial and in some ways problematic. They are also largely ahistorical. The contemporary paucity of neorepublican reflections on migration contrasts sharply with its centrality in republican history. In the US, from the colonial period until late into the 19th century, some republicans understood the domination of migrants and citizens as conjoined concerns. They developed a robust account of the relationship between domestic domination and exclusionary migration regimes. They conceptualized the republic as a global asylum where membership is based on volitional allegiance, and they vigorously defended the right of aliens to expatriate. Those ideas were ultimately defeated by aristocratic, oligarchic, and statist forces. This article explicates that history through a genealogical account of what I call ‘insurgent republicanism’. The article then returns to contemporary theorization to diagnose its limitations, continuities, and potentials as seen from the perspective of the insurgent republican tradition.

Criminal Law and Republican Liberty: Philip Pettit's Account

Philip Pettit has made central to modern republican theory a distinctive account of freedom – republican freedom. On this account, I am not free solely because I can make choices without interference. I am truly free, only if that non-interference does not itself depend on another’s forbearance (what Pettit calls ‘formal’ freedom). To be worth having, my freedoms must not be at the mercy of some other person, making me subject to their domination. Pettit believes that the principal justification for the traditional focus of the criminal law is that it constitutes a bulwark against domination. I will be considering the merits of this claim. Is the importance of the orthodox realm of the criminal law solely or mainly explained by the wish to protect people from domination? In short, the answer is that it is not, even though there are some instances in which it provides such protection. Across the board, the criminal law rightly protects us equally from threats to what Pettit calls ‘effective’, as opposed to formal, republican freedom.