Republicanism: History, Theory, Practice

REPUBLICANISM

Books of Related Interest SCANLON AND CONTRACTUALISM edited by Matt Matravers TRUSTING IN REASON: MARTIN HOLLIS AND THE PHILOSOPHY OF SOCIAL ACTION edited by Preston King THE PHILOSOPHY OF UTOPIA edited by Barbara Goodwin PLURALISM AND LIBERAL NEUTRALITY edited by Richard Bellamy and Martin Hollis THE ETHICS OF ALTRUISM edited by Jonathan Seglow HUMAN RIGHTS AND GLOBAL DIVERSITY edited by Simon Caney and Peter Jones TOLERATION by Preston King

Republicanism: History, Theory and Practice Editors

DANIEL WEINSTOCK CHRISTIAN NADEAU University of Montreal/Université de Montréal

FRANK CASS LONDON • PORTLAND, OR

First Published in 2004 in Great Britain by FRANK CASS PUBLISHERS Crown House, 47 Chase Side, Southgate London, N14 5BP This edition published in the Taylor & Francis e-Library, 2005. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” and in the United States of America by FRANK CASS PUBLISHERS c/o ISBS, 920 NE 58th Avenue, Suite 300 Portland, Oregon, 97213–3786 Copyright © 2004 Frank Cass & Co. Ltd Website: www.frankcass.com British Library Cataloguing in Publication Data Republicanism: history, theory and practice 1. Republicanism—Congresses 2. Republicanism—History— Congresses 3. Republicanism—Philosophy—Congresses I. Weinstock, Daniel M. II. Nadeau, Christian III. Critical review of international social and political philosophy 321 .8′6 ISBN 0-203-49754-6 Master e-book ISBN

ISBN 0-203-58457-0 (Adobe eReader Format) ISBN 0-7146-5593-7 (Print Edition) (cloth) ISBN 0-7146-8480-5 (paper) Library of Congress Cataloging-in-Publication Data Republicanism: history, theory and practice/edited by Daniel Weinstock and Christian Nadeau. p. cm. Includes bibliographical references and index. ISBN 0-7146-5593-7 (alk. paper)— ISBN 0-7146-8480-5 (pbk.: alk. paper) 1. Republicanism. I Weinstock, Daniel M. II. Nadeau, Christian, 1969– JC421.R44 2004 321 .8′6–dc22 2003023032 This group of studies first appeared as a special issue of Critical Review of International Social and Political Philosophy, ISSN 1369-8230, Vol.6, No.1 (Spring 2003) published by Frank Cass and Co. Ltd. All rights reserved. No part of this publication may be reproduced, stored or introduced into a retrieval system or transmitted, in any form, or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher.

Contents

Acknowledgements

vi

Introduction Daniel M.Weinstock

1

Citizenship and the Roman Res publica: Cicero and a Christian Corollary Elizabeth Depalma Digeser

5

On Public Speech in a Democratic Republic at War Barry S.Strauss

20

Montesquieu: Critique of Republicanism? Céline Spector

33

The Twilight of the Republic? Jean-Fabien Spitz

47

Discourse Theory and Republican Freedom Philip Pettit

62

Liberal and Republican Conceptions of Freedom Charles Larmore

83

Non-Domination as a Moral Ideal Christian Nadeau

104

The Cosmopolitan Scope of Republican Citizenship Ryoa Chung

117

Patriotic, Not Deliberative, Democracy Charles Blattberg

134

Abstracts

151

Notes on Contributors

155

Index

157

Acknowledgements

The essays collected here all grow out of a conference on republicanism that was held at the Université de Montréal, and organized by the Centre de recherche en éthique de l’Université de Montréal in March 2002. That they are often quite distant relatives of the papers presented on the day is a testimony to the wealth of ideas and insights that were generated during the conference, and to the republican tradition’s great potential for enriching contemporary debates in political philosophy around questions to do with freedom, civic virtue, public deliberation, equality, and the like. The editors wish to thank David Robichaud and Patrick Turmel for their help in organizing the conference. Caroline Allard, Alex Sager, and Badr El Fekkak helped immensely with the preparation of the manuscript, and we extend our warmest thanks to them.

1 Introduction DANIEL M.WEINSTOCK

Republicanism has emerged in recent years as a full-fledged theoretical alternative to the normative political theories that have been at the centre of philosophical debates in the English-speaking world, such as liberalism, socialism and communitarianism. As formulated in Philip Pettit’s muchdiscussed book Republicanism, the theory is based upon an original understanding of political liberty and of its institutional requirements. According to Pettit, liberty should be understood as ‘non-domination’. Like the negative liberty famously discussed in Isaiah Berlin’s essay, ‘Two concepts of liberty’, republican liberty as construed by Pettit is concerned with removing obstacles to human activity. But unlike the conception of liberty favoured by Berlin, it emphasises potential obstacles to freedom as much as it does fully realised ones. According to this conception, a person is unfree when another can choose arbitrarily to interfere with her, and not only when that person does so choose. A number of important institutional implications follow from this conception of freedom. The essays collected in this volume aim to carry the project of developing republicanism forward in a number of directions. First, they aim to place Pettit’s influential theoretical proposals in a broader historical framework, one that provides us with a sense of the full extent of the conceptual repertoire that has been developed by the thinkers who have been taken as representatives of the republican tradition. Once we attend to the richness and complexity of the republican tradition, one realises just how many values and concepts have been seen at different times as central to thinkers who are fairly uncontroversially taken today as representatives of the republican ‘canon’. For example, take Elizabeth Digeser’s tracing of the continuities between the political writings of Cicero and those of Lactantius. It is commonly thought that the imperial period and the ending of the rule of the Senate marked the close of Rome’s republican experiment. However, Digeser shows that Romans in general, and Cicero himself, defined republicanism not according to the form of government, but according to the values and goals served by government, whatever its form. Justice and the common good are criterial for republican institutions according to both Cicero and Lactantius. Republicanism can on this

2 REPUBLICANISM

view survive regime transformation, so long as subsequent regimes continue to serve these values. Strauss argues that Athenian democracy, and its political and philosophical legacy, should also serve as one of the historical sources for modern republicanism. Strauss emphasises the importance of the public sphere and of public debate as characteristic of Athens’s contribution to our understanding of republicanism. In ways that echo with the contemporary importance ascribed to reasoned public speech and dialogue in the works of thinkers such as Hannah Arendt, Jürgen Habermas and ‘deliberative democrats’ such as Amy Gutmann and Dennis Thompson, Strauss contrasts the impassioned, patriotic oration given by Pericles in the Peloponnesian Wars with the measured, humane contribution made by Diodotus in his debate with Cleon over the fate of the Mytileans. Strauss argues that republicanism requires the kind of public sphere that Diodotean wisdom makes possible. The contemporary revival of republicanism views the latter theory as being quite easily distinguishable from its liberal alternative. To revert once more to the rival understandings of liberty defended in both traditions, liberalism is in its most familiar incarnations centred upon the promotion of negative liberty. The primary goal of institutions in the liberal view is to provide citizens with the freedoms they require in order to lead their lives according to their own conceptions of the good. So citizens need a bundle of rights that ensure that their freedom will not be encroached upon in ways that make the realisation of their projects impossible. Republicanism focuses on a rival account of liberty, one that is perhaps paradoxically compatible with a greater degree of actual interference, as long as that interference is non-arbitrary. Looking at the relationship between republicanism and liberalism through a different lens reveals a more complex picture. Céline Spector focuses on a figure who has famously been taken to have adopted an ambiguous relation to the two traditions, namely Montesquieu. By concentrating on the traditional republican insistence on civic virtue, she shows that liberals and republicans can be taken to share common goals, to do with the promotion of the common good. By the eighteenth century, this had come to be equated with the creation of wealth and the promotion of prosperity. Liberals and republicans differed simply on the means most appropriate to pursue it. Certain sets of social and political circumstances make an appeal to virtue apposite, while others make reliance upon ‘hidden hand’ mechanisms more plausible. Again, as is revealed by Elizabeth Digeser’s essay, a central question that must be addressed has to do with whether republicanism should be identified by reference to a range of distinctive institutional arrangements that are desirable regardless of their consequences, or if, on the contrary, it should be equated with certain the ends and institutions evaluated by their capacity to serve them. Jean-Fabien Spitz’s paper focuses on the specificity of the French conception of republicanism. Drawing on the full range of historical sources constituting the French republican canon, Spitz argues that a concern with equality, and with the

INTRODUCTION 3

state’s role in promoting equality in ways that might seem heavy-handed to the Anglo-American temper, has always been central to French republicanism. This concern places the French tradition potentially at odds with more individualistic Anglo-American counterparts. A second set of essays addresses conceptual issues raised both by Pettit’s work and by the republican renaissance more generally. Philip Pettit’s own contribution to the volume develops and grounds the contrast between republican and liberal conceptions of freedom in a somewhat different manner than he did in Republicanism. Pettit shows that the republican conception is better able than the liberal to incorporate the insight drawn from discourse theory according to which one’s desires and beliefs ought to be amenable to modification in the light of the transformative impact of debate and discussion. Charles Larmore and Christian Nadeau both focus their essays on problems raised by Pettit’s conception of freedom as non-domination. Larmore argues that the idea of negative liberty central to the liberal tradition embodies a distinctive human good, that of being able to act unimpeded. That good must at times be traded off for the sake of other goods, but the republican eschewal of negative liberty hides this from view. Different conceptions of freedom are in Larmore’s view not really conceptual alternatives. Rather, they embody different, equally legitimate goods, none of which can pretend to ‘trump’ any of the others. Nadeau argues that there is a tension between Pettit’s consequentialism and his espousal of freedom as non-domination. A consequentialist should after all be concerned with maximising whatever value he views as being of paramount importance. Now, freedom as non-interference has the advantage of being at least in principle quantifiable in the appropriate way. The fewer obstacles there are to my being able to act as I wish, the freer I am. Freedom as non-domination does not lend itself as easily to a maximising logic, since it does not view freedom as threatened only, or even especially, by identifiable episodes of interference. Nadeau proposes a reinterpretation of the relationship between consequentialism and republicanism that vindicates Pettit’s view. Consequentialism in his view allows us, in a way that deontological theories cannot, to accept local infringements upon liberty that have as a net consequence to increase liberty overall. Finally, a third set puts republicanism in confrontation with other normative political theories. Ryoa Chung’s essay aims to assess the degree of compatibility between republicanism and the requirements of cosmopolitan citizenship. She argues that republicans are wrong to tie their conception of citizenship too tightly to nationalist accounts. On her view, republicans should be open to the idea that the proper locus for the exercise of the rights, privilges and responsibilities of citizenship evolve with changing economic and social circumstances. She then argues that the idea of contestatory democracy central to Pettit’s account, according to which the paradigmatic attitude of the republican citizen is watchfulness and readiness to contest laws and policies enacted by government,

4 REPUBLICANISM

can provide a helpful model through which to understand the way in which cosmpolitan citizenship might come to develop. Charles Blattberg’s essay criticises the conception of deliberation that republicanism as developed by Pettit seems to be connected with. (As we have seen, the connection is drawn even more tightly in the essay contributed by Pettit to this collection). In Blattberg’s view, deliberative democracy, as developed for example by Jürgen Habermas, relies to too great a degree on abstract rules supposed to govern deliberation and decision making. Aristotelian phronesis and hermeneutical interpretive charity are what are needed in conversation. This might be seen as in some measure a friendly amendment to the republican use of deliberative democratic theory. However, it leads to substantial disagreement when one considers that on the view of ‘patriotic’ deliberation espoused by Blattberg, conversation is an on-going process rather than one that issues in discrete decisions that can then be contested in an identifiably distinct moment by republican citizens. Taken together, these papers show that questions concerning both republicanism’s historical credentials and its conceptual core commitments will be at the centre of philosophical discussion for years to come. The authors have contributed greatly to the task of delineating someof the areas that stand in need of particular scholarly attention.

2 Citizenship and the Roman Res publica: Cicero and a Christian Corollary ELIZABETH DEPALMA DIGESER

The Roman people persisted in calling their state a ‘republic’ or res publica long after 31 BCE when the rule of emperors replaced that of Rome’s Senate. Such usage was neither wholly nostalgic nor anachronistic; rather, it suggests that Romans did not define their polity in constitutional terms. Instead, Romans from Cicero (106–43 BCE), Rome’s first political theorist, to Lactantius (fl. 299–315 CE), one of the first Christians to follow in the famous orator’s footsteps, defined a republic as a community of citizens bound together by justice and common interest. Should justice no longer flourish, then tyranny had supplanted the republic. An analysis of Cicero’s and Lactantius’ responses to the res publica in crisis, the former during the last decades of Senatorial rule in the first century BCE, the latter during the Great Persecution (299–313), will illustrate, not only the demands that such a definition placed upon citizens and government alike, but also the remarkable continuity in Roman political thought. Marcus Tullius Cicero, the first Roman with a talent for theorising to reflect upon what defined the republic and what that definition meant for his government and fellow citizens, lived during the crisis in leadership that characterised the last decades of senatorial rule. From the time Cicero first began to establish himself as a player in Roman senatorial politics to the treatises that occupied his last few years, this celebrated orator grappled with the problems of justice, the rights and responsibilities of citizens, and the health of his beloved res publica. These issues first came to the fore in 70 BCE when Cicero, as a young senator, took up the extortion case against Gaius Verres, who had recently served as governor of Sicily (73–71) (see Cicero 1928a:1:ix). Cicero’s discussion of Verres’s crime is the ‘most eloquent hymn to the liberty of the citizen’, according to Claude Nicolet (1980:321). Among the many crimes that Cicero lay at Verres’s door, one of the most serious involved denying due process to Publius Gavius of Consa, who had claimed to be a Roman citizen. Imprisoned in Syracuse’s stone-quarries for alleged involvement in a Spanish revolt (Cicero 1928a:2.5.27–8, 61–3), Gavius had escaped and fled to Messana, where he began to complain about how poorly the governor had treated him, as a citizen of Rome (2.5.61). Unfortunately for Gavius, Messana was full of Verres’s supporters (2.2. 46), who turned the man over to the magistrates and subsequently to Verres himself (2.5.62). Claiming that Gavius was a spy, Verres had the man publicly

6 REPUBLICANISM

flogged and then crucified (2.5.62). In narrating this story, although he suggests that Gavius was framed (2.5.62), Cicero was less concerned with Gavius’ guilt (2.5.64), than with the abrogation of his rights as a Roman citizen. As such, Gavius should have been immune from corporal punishment, even if found guilty in a fair trial (2.5.63, 66). ‘To bind a Roman citizen is a crime, to flog him is an abomination, to slay him is almost an act of murder: to crucify him is— what? There is no fitting word that can possibly describe so horrible a deed’ (Cicero 1928a:2.5.66; see also 646 n. and 654 n.a). According to Cicero, Verres’s treatment of Gavius not only jeopardised the rights and freedoms of all Roman citizens; it also undermined the viability of the republic itself. All Roman citizens, Cicero suggested, were entitled to liberty (libertas) and justice (ius), where ‘libertas’, according to C.H.Wirszubski, denotes the ‘status of the individual as such’. Does freedom, that precious thing, mean nothing? Nor the proud privileges of a citizen of Rome?… Have all these things come in the end to mean so little that in a Roman province, in a town whose people have special privileges, a Roman citizen could be bound and flogged in the market place by a man who owed his rods and axes to the favour of the Roman people? (2.5.63, see also 2.5.61, 2.5.66–7 and Wirszubski 1968:3–4). Consequently, Roman citizenship should bring with it protection from arbitrary treatment. In fact, its protection was so great—at least according to Cicero—that it could command respect even outside the borders of the empire, presumably because the republic had been willing to defend its citizens’ claims to liberty and justice. Poor men of humble birth sail across the seas to shores they have never seen before, where they find themselves among strangers, and cannot always have with them acquaintances to vouch for them. Yet such trust have they in the single fact of their citizenship that they count on being safe, not only where they find our magistrates, who are restrained by the fear of law and public opinion, and not only among their own countrymen, to whom they are bound by the ties of a common language and civic rights and much else beside: no, wherever they find themselves, they feel confident that this one fact will be their defence. (2.5.65, see also 2.5.64) At the very least, these rights meant that Verres, as a magistrate whose authority was granted by the Roman people, should have stopped the proceedings as soon as Gavius voiced his claim to citizenship. ‘Could not that statement, that claim of citizenship, secure from you on your judgment-seat if not remission yet at least postponement of the sentence of death?’ (2.5.64, see also 2.5.63 n.3 and 2.5.65. 168). If Gavius’ citizenship could be verified—as Cicero suggested was easy to do— Verres should have reduced his sentence (2.5.65). All Romans should have

CITIZENSHIP AND THE ROMAN RES PUBLICA 7

been offended by Verres’s unlawful behaviour for a number of reasons, Cicero argued. First, Verres undermined the rights of all citizens, not only because all citizens possessed the same privileges, but also because citizenship united all Romans as kindred, whether one was a Greek-speaking Sicilian or a member of the oldest family to hail from the city of Rome. It was not Gavius against whom your hate was then displayed:you declared war upon the whole principle of the rights of the Roman citizen body. You were the enemy…not of that individual man, but of the common liberties of us all… It was not Gavius, not one obscure man, whom you nailed upon that cross of agony: it was the universal principle that Romans are free men. (2.5.66) And: How must we be affected…when we hear of the anguish of our own kinsman? I say our kinsman, for we must recognise blood-kinship between all Roman citizens; truth, not less than concern for the general safety, bids us to do so. (2.5.67). Unlike the Greek concept, citizenship in Cicero’s view is clearly a matter of status and rights, not ethnicity or ‘worth’ (Buttle 2001:339–40). Second, Verres had undermined Rome’s empire: He had made travel to their provinces more dangerous for Roman citizens (including those who would govern there); he had jeopardised Roman power by suggesting to foreign states that Rome would not defend its citizens; and he had diminished the public space by making all travel and trade unsafe for Roman citizens. Take away this confidence, take away this defense from Roman citizens, lay it down that to cry ‘I am a Roman citizen’ shall help no man at all; make it possible for governors and other persons to inflict upon a man who declares himself a Roman citizen any cruel penalty they choose, on the plea that they do not know who the man is; do this, accept that plea, and forthwith you exclude Roman citizens from all our provinces, from all foreign kingdoms and republics, from every region of that great world to which Romans, above all other men, have always had free access until now. (2.5.65, see also 2.5.67.172) Finally, by neglecting its laws and treating Sicily like his private possession whose inhabitants were his slaves, Verres had undermined the republic itself. ‘A crushed and hopelessly defeated country will often resort to the disastrous expedient of…canceling the sentences pronounced in its courts of law. When this happens, everyone knows that the country (res publica) is tottering to its fall’ (2.5.6). And:

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This place [where Verres crucified Gavius] with its view of Italy was deliberately picked out by Verres, that his victim, as he died in pain and agony, might feel how yonder narrow channel marked the frontier between the land of slavery and the land of freedom (libertas), and that Italy might see her son, as he hung there, suffer the worst extreme of the tortures inflicted upon slaves. (2.5.66) Even in the earlier stages of his career, then, Cicero had a clear conception of the rights and duties of citizenship and the dynamic relationship between citizenship and the health of the republic. A citizen of Rome was entitled to expect his government to grant him libertas and justice, on the one hand, and on the other, he was obliged to consider and treat all Roman citizens as his equals under the law and as his kin. For its part, the government of the republic—made up of citizens acting in an official capacity—must uphold these rights and obligations or risk dissolving into tyranny. Nearly 20 years later, Cicero fleshed out the dynamic relationship between the health of the republic and the rights of its citizens more formally in his treatises, De re publica and De legibus. Written in the mid 50s BCE, as the first triumvirate of Caesar, Pompey and Crassus dominated political life in the city of Rome, these treatises unfortunately survive only in fragments (Cicero 1998:ix– x). Up until Angelo Mai’s 1820 discovery of a partial palimpsest, De re publica was known only through passages quoted in later authors (Cicero 1928b:9); of De legibus nothing survives beyond book 3 (Cicero 1998:xxiii). In De re publica, Cicero strove primarily to discern the best constitution for the republic, while De legibus spelled out the ideal legal system for such a regime. Referring to the earlier De re publica, Atticus at the beginning of De legibus (1.15) urges Cicero to write about law, since he had ‘already written a treatise on the constitution of the ideal State (de optimo rei publicae statu)’. In the process of writing the two treatises, Cicero defined what he considered a republic to be, and he linked this conception to the rights and obligations of Rome’s citizen body. According to Cicero, the ‘res publica’ was what an ‘assemblage of people in large numbers’ (i.e., the populus) held in common when it came together ‘in an agreement with respect to justice (consensu iuris)’ and ‘for the common good (communione utilitatis)’, regardless of the form of government adopted (Rep. 1.39, 1.41–42, my trans.; for this definition see also Wood 1988: 126–7). Such a conception imposed obligations upon government and citizens alike. Now, as 20 years before, Cicero continued to acknowledge the importance of libertas—this is the obvious implication of the mixed constitution that Scipio promotes in this dialogue (Rep.: 46–69 and Wood 1988:148–9); nevertheless he was more reluctant to glorify it, perhaps because he believed that libertas had run amok under the First Triumvirate’s populists (see his critique of democratic liberty in Rep. 1.43, 53, 67–8). He also still believed staunchly in a citizen’s right to justice (Rep. 3.43). Indeed, for Cicero, the government must preserve the ‘bond [s] of justice (vincula iuris)’ by ensuring that the law reflected natural law, which

CITIZENSHIP AND THE ROMAN RES PUBLICA 9

he defined as ‘right reason consistent with nature,’ an ‘eternal and unalterable law’ whose ‘author’ was God, ‘the universal master’ —Est quidem vera lex recta ratio naturae congruens…(Rep. 3.33, trans. Keyes [Cicero 1928b] here and below). If this foundation disappeared, then—as he had suggested twenty years before—the state was no longer a res publica, but a tyranny: ‘Wherever a tyrant rules, we ought not to say that we have a bad form of commonwealth (res publica), …but, as logic now demonstrates, that we really have no commonwealth (res publica) at all’ (Rep. 3.43, see also Wood 1988:127). The guarantee of justice in a res publica also meant for Cicero that citizens would strive to uphold their responsibilities, namely to obey the law (Leg. 3.6). Since the foundation of the law was natural law, such obedience would involve both civic (3.5) and religious obligations (in this context it is important to note that Cicero dedicates De legibus 2 to a citizen’s religious duties). Justice, accordingly, was the lynchpin of the republic: when it was present the republic existed to protect the common interest and the obedience of the citizens was reinforced. Should justice be absent, ‘nothing belonged to the people (populus) and the people itself were the property’ of whomever controls the reins of power; there would be no republic (3.431), the force compelling citizens to obedience would have disappeared, and the regime would have descended into illegitimacy and lawlessness. Thus it is fair to say, that, although Cicero in the 50s was more concerned with a citizen’s duties and right to justice than he was with the right to libertas, he continued to maintain that the republic existed to promote and protect such rights and obligations or risk lapsing into tyranny. Roughly a decade after Cicero completed De re publica and De legibus, the elderly statesman fell victim to the brutal proscriptions effected by Julius Caesar’s heirs, Mark Antony and Octavian. Within another decade, the Caesarians had turned against each other, Antony was defeated at the Battle of Actium (31 BCE), and Octavian (who took the name ‘Augustus’ in 27 BCE) subsequently instituted a form of one-man rule that would prove viable for the next two centuries. Although these constitutional changes—to our eyes—seem to eclipse the republican institutions of Cicero’s day and before, Romans never left off referring to their state as a res publica, as we shall see. Moreover, Cicero’s constitutional treatises continued to be copied and read, even as Romans struggled in the third and early fourth centuries to address political, military and religious challenges that Augustus’s system was never designed to handle—these included a newly resurgent Persia, restless Germanic peoples on the Rhine and Danube frontiers, contests for rule between soldieremperors, and the increasing popularity of Christianity. De re publica, in particular, seems to have been very popular—not only among early imperial historians and moralists (e.g., Tacitus and Seneca), but also among later Neoplatonists (e.g., Macrobius) (Cicero 1998, ix–x, incl. nn.2–4). De re publica and De legibus, in fact, survived to serve as an inspiration to Lactantius, a Christian professor of rhetoric who—like Cicero—tried to make clear the roles and responsibilities of citizen and republic in the new period of crisis that was

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the Great Persecution (299–313). Lactantius’ debt to Cicero is clear from the very beginning of the Divine Institutes, a seven-book treatise motivated by the religious and political questions that the persecution had raised (see DePalma Digeser 2000). References to contemporary events suggest that Lactantius wrote the Divine Institutes between 305 and 310 (see Heck 1972), but that between 310 and 312 he presented a revised version of this text to the court of the first Christian emperor, Constantine I (see DePalma Digeser 1994). From 306–311, Constantine ruled in the West, subordinate to the emperor Galerius. After Galerius’ death in 311, Constantine shared power with Licinius; from 324–337, however, Constantine ruled alone. The first chapter of the Divine Institutes links Lactantius’ project to Cicero’s De re publica and De legibus. First, Lactantius explicitly likens himself to ‘certain great orators’ who had devoted themselves to philosophy after retiring from public life (Inst. 1.1.11) —hich Cicero describes himself as having done (Rep. 1.7–8; Leg. 1.3). (Although Lactantius is the only source for some of De re publica’s fragments, his quotations, where they can be checked against an independent tradition [e.g., Inst. 6.9.6 and Rep. 1.2.3], appear to be accurate.) Next, Lactantius asks, if certain sensible men and judges of equity (aequitas) have set out institutes of civil law, how much better and more correct is it for us to publish divine institutes, in which we speak not of eaves (stillicidiis), or of preventing leaks, or of types of marriage, but of hope, of life, of salvation? (Inst. 1.1. 12; my trans. here and throughout) The educated public for whom Lactantius wrote would have quickly grasped the allusion to Cicero’s De legibus (and indirectly to De re publica) in the reference to the law on eaves. At the beginning of Cicero’s book, which takes the form of a discussion among friends, he asks what he should write about. ‘Am I to put together some books on the law of eaves (stillicidiorum) and walls?’ His friend Atticus answers, ‘since you have already written a treatise on the constitution of the ideal State (res publica), you should also write one on its laws’ (Leg. 1.15: Atqui si quaeris ego quid expectem, quoniam scriptum est a te de optimo rei publicae statu, consequens esse videtur ut scribas tu idem de legibus…). The allusion is not as obscure as it may seem to us. Lactantius held Cicero in the highest regard (e.g., Inst. 3.15.1) and quoted frequently from De legibus throughout the Divine Institutes (e.g., 1.15.23; 1.20.14, 19; 2.1.11–14; 2.10.1, 15; 2.11.1.). Moreover, readers in antiquity had an intimate rote knowledge of the standard corpus (to which Cicero’s works belonged) and were accustomed to the use of allusion to communicate an important idea that the author chose not to speak aloud (Harris 1989:185, 227, 251; Farrell 1991:11). Lactantius had not simply chosen at random from the works of Cicero but had selected treatises deeply committed to the preservation of the Roman republic: As we have seen, Cicero’s stated intention was to write on the ideal republic, a

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project that De re publica began and De legibus completed (Leg. 1.5, see Ferrary 1995:49). (Other parallels also link the Divine Institutes with works of Cicero: both relied on religious law as a primary means of reform; both linked education tightly to reform of the state. See Mitchell: 1984:35.) The allusion to these two works suggests that, like Cicero, Lactantius was interested in exploring the legal and logical foundations of the ideal republic, but within a Christian framework. Like Cicero, Lactantius considered Rome, when properly governed, to be a res publica. As such, its primary function was to uphold justice, a responsibility made possible since natural law should provide the foundation for its laws. Should the state no longer dispense justice in accordance with natural law, then in Lactantius’ view—as in Cicero’s—the republic had dissolved into a tyranny. Like Cicero, Lactantius also believed that citizens in a republic had a right to justice; at the same time, they had civic obligations—primarily to obey the law. I will develop each of these points below. Lactantius’ discussion of the ideal Roman res publica is highly allusive and not the systematic discussion that Cicero had presented. Although such allusions may seem too esoteric to bear the weight that is placed on them here, it is necessary to remember that anyone who actively wrote against the current regime —especially anyone who questioned its very basis, as Lactantius was doing— would have been committing treason. As the twentieth-century political theorist Leo Strauss observed, ‘the influence of persecution on literature is precisely that it compels all writers who hold heterodox views to develop…the technique…of writing between the lines’ (Strauss 1952:24). Despite the allusive character of Lactantius’s prose, he still clearly shares the republican statesman’s concern that if the republic did not guarantee justice and promote laws founded on natural law then it risked dissolving into a tyranny. First, in the dedications to Constantine that Lactantius added to the second edition of the Divine Institutes, he referred explicitly to the Roman state as a res publica, and he indicated that the good government of Constantine has restored the state after the criminal reigns of his persecuting predecessors. Lactantius says (Inst. 1.1) that Constantine has restored justice, which had been ‘overthrown’ and he expresses the hope that Constantine may govern the state (res publica) with justice (see also 7.27.11). Next, in book 7 Lactantius developed the idea that Constantine’s antecedents, the emperors Diocletian (284–305) and Galerius (305–311), ruled tyrannically— a charge already hinted at in book 1. This accusation occurs in a description, ostensibly, of the days immediately before the end of the world, during which one emperor’s reign will be an ‘irrepressible tyranny’ (Inst. 7.16.3–4), but that of his successor will be worse (7.17.2–6). In these days, a very mighty foe from the outermost limits of a northern region who, after the three…who at that time possess Asia are destroyed, will be taken into an alliance by the [remaining kings] and will be set up as emperor of them all. This man, in his irrepressible tyranny, will harass the world… Finally,

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after his name is changed and the imperial seat is transferred, the confusion and disturbance of the human race will result. (Inst. 7.16.3–4) One familiar with the history of Diocletian’s reign (284–305) would recognise that Lactantius is describing this emperor who was a ‘king’ from the north (Illyria), destroyed ‘kings’ in Asia (Carus, Numerian), was set up over other rulers (Diocletian was chief emperor in a college of four), moved the capital (to Nicomedia) and changed his name (from Diocles). The ‘second king, subverter and destroyer of the human race,’ who follows Diocletian is, consequently, Galerius, who ruled from 305–311 (see DePalma Digeser 2000:149–50). Further, the idea that the res publica should promote justice permeates the entire Divine Institutes: Not only does Lactantius claim that Constantine has restored justice (1.1.14), he also makes a passionate plea for the restoration of justice throughout book 5 (e.g., 5.13.17), and he indicates that justice prevailed in the res publica under the more benevolent reign of Rome’s first emperor, Augustus. Again, due to its nature, this discussion is highly allusive and hinges on a contrast that Lactantius makes between the reigns of ‘Saturn’ and ‘Jupiter’. According to Lactantius, Saturn, like his son Jupiter, was a human being (1.11. 53). Because he did not deify his predecessors or himself, Saturn’s reign preserved a modicum of justice (1.11.51, 62; 5.5). The link between Saturn and Augustus is established through a citation of Vergil’s Aeneid. Lactantius also believed—with Cicero—that justice would naturally occur in a res publica founded on the principles of natural law. Unlike, Cicero, however, Lactantius’ interpretation of natural law was based on a Christian perspective. Indeed, Lactantius sought to translate Christian law into Roman terms. According to Lactantius, the ‘first principle’ of divine law is to know God, to obey and worship only the ‘author and ruler (imperator) of all’ (6.8.12; 6.9.1); the second is that man must join himself with his fellow man (6.10.2). The first law is equivalent to piety (pietas) (5.14.12)—which he often equates with cult (religio) (4.3.2; 5.14.7–11), the second to equity (aequitas) (5.14.15). In asserting that piety and equity—as he defined them—were the first two principles of divine law, Lactantius expressed in Roman terms the two commandments upon which the whole Christian law was based. When a lawyer asked Jesus, ‘Teacher, which commandment in the law is the greatest?’ Jesus answered, ‘You shall love the Lord your God with all your heart, with all your soul, and with all your mind.’ This is the greatest and first commandment. And the second is like it: ‘You shall love your neighbor as yourself.’ On these two commandments hang all the law and the prophets. (Matt. 22:36–40). Lactantius’ identification of the first law with the knowledge of God becomes even clearer when one looks at the first commandment, upon which Jesus’

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summary was based: ‘I am the Lord your God…you shall have no other gods before me’ (Exod. 20:2–3; trans. NRSV; see also Buchheit 1979:362–3). The Romanisation and true significance of this Christian law is evident from the link with Cicero that Lactantius establishes here. In his Partitiones oratoriae Cicero said that both divine and human law reflected natural law, ‘the force of [divine law] being cult (religio) and that of [human law] being equity (aequitas)’ (37.129; ed. Wilkins 1902–3). He also believed that a law was just to the extent that it corresponded to natural law, which—as we have already seen—he understood to be both the law of God and the dictates of reason (Leg. 1.6; Rep. 3. 22). A comparison of Cicero’s definitions with those in the Divine Institutes reveals the connections Lactantius made between Roman and Christian law. First, by claiming that Christian law consists in piety or cult (religio) and in equity (aequitas), Lactantius equates the two principles of Christian law with Cicero’s two categories of Roman law: divine (concerned with religio) and human (concerned with equity). By doing so, he suggests that the Christian conception of divine law is synonymous with natural law, which Cicero claimed was the basis of divine and human law. Although he agreed with Cicero that true justice lay in upholding divine law, Lactantius thought that this could not be achieved unless one acknowledged the greatest God (Cavalcanti 1990: 61–2, Heck 1978:173–4). Lactantius intended his understanding of divine law to apply not merely to individuals but to the Roman res publica as a whole. He thought that during the persecution, under Diocletian and Galerius, true justice did not exist in the Roman state (Inst. 5.14.19), even though its leaders were seeking it (5.9.1). So long as evil existed, there would be a need for the state, but the only legitimate government would be one that acknowledged the One God and treated its citizens with equity (aequitas) (Inst. 6.9.7; 5.5.2; 5.8.4; 5.14.19). No other Christian author before Lactantius had drawn so heavily on Cicero to attempt such a thoroughgoing discussion of justice or so clearly postulated a Christian res publica whose foundation was based on a new understanding of natural law (Buchheit 1979:356; Heck 1966:69; Gonella 1937:33). Although the great thirdcentury theologian, Origen of Alexandria, had equated Christian law with natural law, he thought a society that adopted it would need no government (Cels. 5.37, 40; 8.70, see Salvatorelli 1920:333–47). Lactantius’ belief in the necessary existence of evil led him to be far less optimistic than Origen (Inst. 2.17.1–3); hence, his argument filled out the implications of a res publica founded on Christian law. Although jurists after Cicero had elaborated upon the republican orator’s understanding of natural law, many (most prominently the third-century jurist, Ulpian) had also more intimately identified the obligations of a Roman citizen as comprising loyalty to the Roman gods as well as to the laws (Gaudemet 1987; Crifò 1976). Hence, despite the basic similarity in the two systems of thought, developments in natural-law theory within Roman jurisprudence had not brought any immediate benefits to Christians living within the empire. In fact, their

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situation had been made more difficult after 212 CE when the emperor Caracalla, desiring to ‘give thanks to the immortal gods’ and to ‘join the foreigners in applying to the religious observances of the gods’, offered to ‘all the foreigners…citizenship of the Romans’ (PGiss. 40.1). Although leading provincial families had acquired citizenship through individual grants, and so administered the cities and their environs as Roman citizens, most of the empire’s humbler residents, many of whom were now Christians —especially in the East—had not been enfranchised before; as citizens of individual cities, their ties were to local law and cult (Jones 1986:17; Barone-Adesi 1992:30–34; MacMullen 1984:32–3, 38, 135–6 n.26; Barnes 1989:308; Garnsey 1970:266; Hopkins 1998:202–3; Castelli 1998:244). One’s citizenship determined not only the law to which one was subject, but also, in part, the gods to whom one was bound. Thus the grant of Roman citizenship to all the empire’s free inhabitants had profound implications for Christians, who recognised this intimate connection between cult and citizenship. The early third-century Christian apologist Tertullian, for example, complained that ‘we outrage the Romans and we are not considered Romani, since we do not worship the gods of the Romans’ (Apol. 24.8, my trans.). Caracalla’s edict, then, went far beyond its stated intention. From a patchwork of cities and local systems of law, the empire became one giant civitas in which the privileges and obligations of citizenship bound one equally to Roman law and to Roman cult (Barone-Adesi 1992: 30–31, 36 n.10; Rives 1995:250). For Christians, this meant that after 212 whoever refused to worship the Roman gods could, in effect, be accused of treason. Moreover, Christians had, perhaps unwittingly, left themselves open to the charge of treason: not only did Paul claim that his true citizenship lay in heaven (Phil. 3:20), but Christians had also adopted various terms of sacred political association such as ekklesia (assembly) to denote themselves as a separate community subject to their own law (Clevenot 1988:1:108–11). Although some Christians such as the second-century apologist Justin frequently claimed to follow Roman law insofar as it did not conflict with their own (1 Apol. 12, 17), others felt that there could be no compromise between the Christian and Greco-Roman communities. Tatian, for example, described Romans and Christians as belonging to completely separate political communities (politeiai), and many martyrs—even before the Great Persecution— explicitly contrasted Roman law and God’s law (Afinogenov 1990:174; Ehrhardt 1959–69:2:85–8; Salvatorelli 1920:335). In Rome, as well as in Cicero’s De legibus (2), one’s dues as a citizen were paid in a currency for which loyalty to the laws of the res publica and to its gods were always obverse and reverse. And as a result of Caracalla’s edict of citizenship, emperors could require direct participation in the Roman cult as the definitive test. Twice before the Great Persecution, emperors had, in fact, asked something similar of all their citizens: first in the Decian persecutions of 250– 251, then those Valerian sponsored in 257–258. Diocletian and Galerius, the promoters of the Great Persecution, clearly thought that Christians were

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incapable of assuming the obligations of citizenship. This is clear not only from the accusation, voiced during the persecution, that Christians had abandoned the counsel of jurists (Eus. PE 1.2.1ff.). It is also clear from the edicts of persecution and from Galerius’ eventual attempted repeal (since Maximin Daia, emperor in the East, continued to persecute until 313, Galerius’s measure did not in fact make the empire safe for all of its Christian citizens). The edicts implemented between 303 and 304 (Lact. Mort. 12.1,13.1, 15.4; Eus. HE 8.2, 8.5.1, 8.6.8–10) effectively stripped Christians of their Roman citizenship and indicate that Diocletian considered them to be outside Roman society (Kolb 1988:18–19). Galerius’s edict of 311 attempting to repeal the persecution discloses why the Christians were viewed in this way when he accuses Christians of having ‘abandoned the way of their ancestors’, and ‘by their own decision’ creating ‘for themselves laws which they observed’ (Lact., Mort. 34.2; my trans.). Since the dues of Roman citizenship were payable by obedience to Roman law and observance of Roman cult, in the eyes of the persecuting emperors, Christians had fallen short of citizenship’s obligations and thus deserved to be stripped of its privileges. Motivated by the efforts of the persecuting emperors to force their Christian citizens to uphold what they viewed as the responsibilities of Roman citizenship, Lactantius acted as Cicero had in an earlier constitutional crisis: he renewed the call to rethink the foundations of the Roman res publica. Thoroughly condemning the rule of the persecuting emperors as illegitimate, Lactantius instead stressed what he saw as the similarity between Christian law and the fundamental principles that Cicero and his successors had spelled out. In particular, Lactantius echoed the notion, articulated so eloquently by Cicero, that a citizen’s duties were primarily to worship and to obey the law. In modifying contemporary political thinking, he imagined a res publica under which Christians—and anyone else willing to revere the One God —could live as full citizens and under which polytheists would have nothing to fear. Lactantius’s claim that his monotheistic Christian conception of natural law conforms to Cicero’s notion responds directly to the assertion, voiced during the persecution, that Christians had abandoned the counsel of jurists. Indeed, Lactantius had intimately connected his theory of natural law with Cicero’s jurisprudence, and he asserted that this conception of law was the appropriate foundation for the res publica. His framing of divine law as simply embodying the commands to worship the One God and treat other Romans with equity clearly considers all Rome’s monotheists as full citizens. (While the conventional view once saw the Great Persecution as splitting Rome’s citizens into polytheistic pagans and monotheistic Christians, more recent scholarship has increasingly appreciated the number and influence of monotheistic or henotheistic pagans; cf. Barnes 2001:142–62 and Athanassiadi & Frede 1999.) Although Lactantius starts from the same assumptions as Ulpian and other imperial jurists, his more Ciceronian definition of natural law leads to opposite ends. He is in fundamental agreement that all Romans should live under the same

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principles of justice; this inspiration must have guided his decision to take up the subject of natural law at all. And he concurs that a citizen’s fundamental obligations under this law involve both worship and obeying the law (Inst. 6.8.6– 12); indeed, the first dictate of his divine law is to worship the greatest God. Nevertheless, even in an ideal res publica where the divine law of the greatest God was understood as the guiding principle of Roman justice, Lactantius would not do what Decius, Valerian, Diocletian and Galerius had done. He would sever the link between public religious observance and good citizenship: taking inspiration again from a passage in Cicero, he would not muster the punitive capacity of the state to deal with impiety. Cicero believed that the gods should be approached chastely, ‘by people offering piety and laying aside wealth’; God would ‘punish the one who does differently’ (Leg. 2.8 in Inst. 5.20.3). Lactantius interprets Cicero to mean that a true deity would reject human coercion to obtain worship (5.20.5). On the contrary, Lactantius argues, force opposed the spirit of religion (5.19.7). ‘We put up with practices that should be prohibited’, he claims. ‘We do not resist even verbally, but concede revenge to God’ (5.20.9–10). Where several third-century emperors had interpreted refusal to worship the Roman gods as equivalent to treason, Lactantius was convinced that true religious beliefs could not be forced. Although he believed that Christianity was the only true religion, he also asserted that one who had not chosen this faith through the exercise of reason was useless to God (5.19.12–13). A return to the res publica, then, would—as in Cicero—return the populace to a condition of libertas in which deliberative reason could prevail. Accordingly, even polytheists would have their full citizen rights in Lactantius’s res publica. Thus, in response to the legal developments of the third and early fourth centuries, events that effectively ostracised Christians from the state, Lactantius proposed a Christian version of Cicero’s res publica, a polity under which all Romans could live as full citizens. Like Cicero’s res publica, this fourth-century version was designed to promote justice. Likewise, this new res publica would maintain Rome’s natural law tradition, with a monotheistic modification inspired again, in part, by Cicero. Moreover, for Lactantius as for Cicero it was patently clear that Rome’s res publica dissolved when its magistrates abandoned these foundations and chose instead to impose their will as tyrants. In terms of citizens’ rights under the res publica, Lactantius and Cicero agree that justice is fundamental. It is true that the Divine Institutes lacks either the passionate cry for a right to libertas that Cicero voiced in his Verrine Orations or the more muted acknowledgement of this right in the republican author’s later work. Nevertheless, it would not be hard to see Lactantius’ call for voluntas (or free will) in the choice of religion (5.19.8, 11) as at least compatible with Cicero’s conception of libertas. Finally, like his republican mentor, Lactantius sees the relationship between res publica and citizens as dynamic, in which the presence of justice in a state whose laws reflected natural law would naturally compel its citizens to fulfil their obligations in exchange for the recognition of their rights.

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Drafted as a response to a religious and legal crisis, the ideal res publica that Lactantius envisioned in his Divine Institutes did not become the dominant conception of the Christian state that Rome bequeathed to the Middle Ages. In part, this is due to the fact that Lactantius had written in response to a particular situation whose potency gradually ebbed as Rome came increasingly to be ruled by Christian emperors and ultimately to outlaw other forms of worship by the late fourth century. After Constantine, only one emperor (Julian, 361–363) did not profess Christianity, and during the reign of Theodosius I (379–395) Christianity was made Rome’s only legal religion. To a greater extent, however, the decline in Lactantius’s fortunes was due to the tremendous influence accorded to Augustine, the next Christian to tackle the issue of the ideal state (see MacCormack 1997:672–3). Rejecting Cicero’s notion that the Roman state could ever have embodied justice before it became Christian (Civ. 19.21), Augustine’s City of God instead argued that pre-Christian Rome had instead been defined by its lust for domination (libido dominationis) and love of praise (amor laudis) (Civ. 2.14; 5.12). In thus rejecting any continuity between his earthly city, under its Christian monarch, and Cicero’s earlier conception, Augustine severed the ties that had bound the Christian to the Roman res publica. Not until the Renaissance would Lactantius’s view resurface in any important way. But then, at least, seduced by Lactantius’s delightful Latin, humanists began again to read not only the views of the ‘Christian Cicero’ (as Pico della Mirandola termed him) but also those of his republican mentor. ACKNOWLEDGEMENTS The discussion of Cicero and Lactantius here draws substantially on my discussion of the two in ch.2 of The Making of a Christian Empire: Lactantius and Rome (Ithaca: Cornell University Press, 2000). I am very grateful to Marguerite Deslauriers for her comments on a previous version of this essay. REFERENCES Afinogenov, D.J. 1990. ‘To whom was Tatian’s apology directed?’. Vestnik Drevnei Istorii, 192, 167–94. Athanassiadi, P. & M.Frede, eds. 1999. Pagan Monotheism in Late Antiquity. Oxford: Oxford University Press. Augustine. 1955. City of God. Corpus Christianorum Series Latina, vol.41, Turnholt: Brepols. Barnes, T.D. 1989. ‘Christians and pagans in the reign of Constantius’. Dihle 1989: 301–43. 2001. ‘Monotheists All?’. Phoenix, 55, 142–62. Barone-Adesi, G. 1992. L’età della ‘Lex de’i. Naples: Istituto di Diritto Romano e dei Diritti dell’Oriente Mediterraneo.

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Bonamente, G. & A.Nestori, eds. 1988. I cristiani e l’impero nel IV secolo: Colloquio sul cristianesimo nel mondo antico. Macerata: Università degli Studi di Macerata. Buchheit, V. 1979. ‘Die Definition der Gerechtigkeit bei Laktanz und seinen Vorgängern’. Vigiliae Christianae, 33, 356–74. Buttle, N. 2001. ‘Republican constitutionalism: a Roman ideal’. The Journal of Political Philosophy, 9, 331–49. Castelli, E.A. 1998. ‘Gender, theory, and The Rise of Christianity: a response to Rodney Stark’. Journal of Early Christian Studies, 6, 227–59. Cavalcanti, E. 1990. ‘Aspetti della strutturazione del tema della giustizia nel cristianesimo antico (Lattanzio, Div. Inst. V–VI)’. In Atti dell’ Accademia romanistica Costantiniana: VIII convegno internazionale, Perugia. Cicero. 1902–03. Partitiones oratoriae. Ed. A.S.Wilkens. Oxford: Oxford University Press. 1928a. Cicero the Verrine Orations. Trans. L.H.G.Greenwood. Cambridge, MA: Harvard University Press. 1928b. Cicero. De re publica. De legibus. Trans. C.W.Keyes. New York: G.P.Putnam’s Sons. 1998. The Republic. The Laws. Trans. N.Rudd. Oxford: Oxford University Press. Clevenot, M. 1988. ‘Le Double Citoyenneté: Situation des chrétiens dans l’Empire Romain’. in Mélanges Pierre Lévêque Mactoux & Geny 1988. Crifò, G. 1976. ‘Ulpiano: Esperienze e responsabilità del giurista’. Aufstieg und Niedergang der römischen Welt, 2.15, 708–89. DePalma Digeser, E. 1994. ‘Lactantius and Constantine’s Letter to Arles: Dating the Divine Institutes’. Journal of Early Christian Studies, 2, 33–52. 2000. The Making of a Christian Empire: Lactantius and Rome. Ithaca: Cornell University Press. Dihle, A., ed. 1989. L’Eglise et l’Empire au IVe siècle: Sept exposés suivis de discussions. Entretiens de la Fondation Hardt 34. Ehrhardt, A.A.T. 1959–1969. Politische Metaphysik von Solon bis Augustin. Tübingen: Mohr Siebeck. Eusebius of Caesarea. 1903.Praeparatio evangelica. Ed. E.H.Gifford. Oxford. 1903–1928. Historia ecclesiastica. Ed. E.Schwartz. Leipzig. Farrell, J. 1991. Vergil’s Georgics and the Traditions of Ancient Epic: The Art of Allusion in Literary History. Oxford: Oxford University Press. Ferrary, J.-L. 1995. ‘The statesman and the law in the political philosophy of Cicero’. Laks & Schofield 1995:48–71. Fontaine, J. & M.Perrin, eds. 1978. Lactance et son temps: Recherches actuelles. Paris: Editions Beauchesne. Garnsey, P. 1970. Social Status and Legal Privilege in the Roman Empire. Oxford: Oxford University Press. Gaudemet, J. 1987. ‘Tentatives de systématisation du droit à Rome’. Index 15, 79–96. Gonella, G. 1937. ‘La critica dell’ autorità delle leggi secondo Tertulliano e Lattanzio’. Rivista Internazionale di Filosofia del Diritto, 23–7. Harris, W.V. 1989. Ancient Literacy. Cambridge, MA: Harvard University Press. Heck, E. 1966. Die Bezeugung von Ciceros Schrift De republica. Hildesheim. 1972. Die dualistischen Zusätze und die Kaiseranreden bei Lactantius: Untersuchungen zur Textgeschichte der Divinae institutiones und der Schrift De opificio dei. Heidelberg.

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1978. ‘Iustitia civilis—iustitia naturalis: A propos du jugement de Lactance concernant les discours sur la justice dans le De republica de Cicéron’. Fontaine & Perrin 1978. Hopkins, K. 1998. ‘Christian number and its implications’. Journal of Early Christian Studies, 6, 185–226. Jones, A.H.M. 1986. The Later Roman Empire, 284–602: A Social, Economic, and Administrative Survey. (1st ed. 1964), Baltimore: Johns Hopkins University Press. Kolb, F. 1988. ‘L’ideologia tetrarchica e la politica religiosa di Diocleziano’. Bonamente & Nestori 1988. Lactantius, 1890–1897. Divine Institutes. Corpus scriptorum ecclesiasticorum latinorum, vol.1. Vienna. 1984. De mortibus persecutorum. Ed. J.Creed. Oxford: Clarendon Press. Laks, A. & M.Schofield, eds. 1995. Justice and Generosity: Studies in Hellenistic Social and Political Philosophy. Cambridge: Cambridge University Press. MacCormack, S. 1997. ‘Sin, citizenship, and the salvation of souls: the impact of Christian Priorities on late-Roman and post-Roman society’. Comparative Studies in Society and History, 39, 644–73. Mactoux, M.-M. & E.Geny, eds. 1988. Mélanges Pierre Lévêque. Paris. MacMullen, R. 1984. Christianizing the Roman Empire (AD 100–400). New Haven, CT: Yale University Press. Mitchell, T.N. 1984. ‘Cicero on the moral crisis of the late republic’. Hermathena, 136, 21–41. Nicolet, C. 1980. The World of the Citizen in Republican Rome. Trans. P.S.Falla. Berkeley and Los Angeles: University of California Press. Origins. 1965. Contra Celsum. Trans. H.Chadwick.Cambridge, MA: Harvard University Press. Rives, J.B. 1995. Religion and Authority in Roman Carthage: From Augustus to Constantine. Oxford: Oxford Univerity Press. Salvatorelli, L. 1920. ‘Il pensiero del cristianesimo antico intorno allo stato, dagli apologeti ad Origene’. Bilychnis, 333–52. Strauss, L. 1952. Persecution and the Art of Writing. Glencoe, IL: Free Press. Wirszubski, C. 1950. Libertas as a Political Idea at Rome during the Late Republic and Early Principate. Cambridge: Cambridge University Press. Wood, Neal. 1988. Cicero’s Social and Political Thought. Berkeley and Los Angeles: University of California Press.

3 On Public Speech in a Democratic Republic at War BARRY S.STRAUSS

What sort of public speech is appropriate in a republic during time of war? For most of the past generation, this question has been merely academic but in the West today, particularly in the United States, it is all too real. Even a just war fought by just means raises a moral problem for a republic. The essence of good citizenship is reason, forged in individual decisions, and shared by communication. Good soldiers, by contrast, are required to risk their lives for the common good, and reason is not enough to convince men and women to die. How then, can a republic incite sufficient military ardor in its citizens without giving up its commitment to reason? How can it maintain calm and deliberate communication without sacrificing the passion needed to fight in self-defense? The history of the ancient republics of Greece and Rome is rich in data on war and rhetoric. In their heyday, city-states such as Athens, Rome and Sparta were at war as often as not (alas, not always fighting for a just cause or by just means). Furthermore, the citizen-soldier, ready to fight for his ancestral land in word and deed, was regarded as the ideal citizen. Here I turn to a case study in the history and theory of the democratic republic: classical Athens. I focus in particular on one of the greatest students and critics of public speech in that republic: Thucydides. Consider first a few brief words of introduction. I have argued earlier that the experience of ancient Greek democracy, best documented for the case of Athens, offers a friendly amendment to the Roman republican tradition revived by Philip Pettit and Quentin Skinner. To do so, I offer a revionist response to the Enlightenment and nineteenth-century critique of Athens as an example of degenerate democracy or mob rule. Rather, Athens was a democratic republic, moderate, law abiding, and generally well balanced between the interests of the many and the few. Athens put into action the principles of liberty, equality and communitarianism which modern theorists of republicanism advocate (Pettit 1997; Skinner 1998; Strauss 1999). George Grote, one of the greatest of modern students of ancient Greece, saw instead in Athenian democracy a moderate and sensible regime that justified the Liberals of his own nineteenth-century England. Surely Grote went too far— Pericles, after all, was not Gladstone. Yet Grote got the essential point right. Athens was far more moderate and less illiberal than is commonly asserted.

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Dēmokratia—or ‘people power’, as ancient democracy called itself—was neither a fickle mob nor a plebiscitarian populism but rather a constitutional republic rooted in popular participation to secure popular interests according to an egalitarian ideology of liberty. Scholars have asked whether dēmokratia represents democracy or the rule of law and detected a purported trend in Athenian history from popular sovereignty to the rule of law but these dichotomies are overdrawn. Dēmokratia was committed to the rule of law because it recognised that the rule of law protected the interests of the poor as well as the rich (Ober 2000; Ostwald 1986; Roberts 1994; Sealey 1987; Strauss 1997). When considering the legacy of ancient Greece, we must distinguish, as does Rawls, between two theories of the ancient heritage. Civic humanists believe that public life is the highest moral and ethical calling: in the words of the trecento Florentine Coluccio Saluttatti, public life is ‘something holy’ and ‘to be followed both as an exercise in virtue and because of the necessity of brotherly love’. Classical republicans, by contrast, merely argue for citizen participation in public life in order to preserve a constitutional and republican regime (Rawls 1993:205– 6). Both classical republicanism and civic humanism have their roots in the Italian Renaissance. While classical republicans respect antiquity as a laboratory of selfgovernment they nonetheless reject any one-to-one application of ancient wisdom to modern life, with its radically changed conditions. So Guicciardini and Machiavelli. Civic humanists, however, tend to have faith in the direct lessons of the ‘noble Grecians and Romans’. Although the differences between dēmokratia and democracy are great, they are not so great as to exclude dēmokratia from relevance to students of contemporary politics. To be sure, radical changes in social scale since 1800 have attenuated relations between individual and the state, but arguably a dense network of civic associations can compensate for the loss of immediacy, by building the social capital that makes civic action possible. A modern, industrial city may exhibit more civic virtue than a traditional small town. Modern democracy is not so liberal as we would wish nor dēmokratia so illiberal as is often claimed: for example, no Athenian citizen lived with the daily dangers facing an inhabitant of an American urban ghetto. Nor did any Athenian metic (resident alien); slaves of course did risk physical insecurity. Nor should we exaggerate the burden of political participation for Athenian citizens. Theorists like Benjamin Constant have set the bar too high in imagining that the ordinary Athenian citizen normally devoted an enormous amount of his time to public life (Putnam 1993:114–15, 167, 171–3; Hansen 1989).1 Consider, for example, one of ‘the many’ (hoi polloi), those relatively poor citizens of Athens who were both staunch democrats and the bugaboo of the philosophers. If such a man lived in the countryside his lifetime public service might have consisted of nothing more than, say, spending one month in the Council, a few summers rowing in the fleet (in the fifth century BC naval service was voluntary, not conscripted), one year in the jury pool, and now and then attending a civic festival and a drama in

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Athens; had he lived in the city, sporadic assembly attendance might be added to the list. His wife might have now and then attended the Thesmophoria, an annual women’s festival that was organised along civic lines.2 Of course, some citizens ate, breathed and dreamt politics, and they were free to do so, but in Athens, as today, the degree of participation in public life varied greatly. In short, it is not impossible that dēmokratia be a useful model for students of modern democracy. Let us return to the question of public speech in a democratic republic during time of war. It is useful to begin with Arendt and Habermas. Arendt argues for a public sphere of openness, publicity, commonality, a realm that is sharply distinguished from the private sphere. The public sphere is a political realm, a place of shared communication and action. Marked by freedom, it offers the possibility of glory and even immortality through common memory. A knowledge of rhetoric is necessary in the public sphere, because persuasion is the method of decision making. For Arendt, it was the Greeks who invented this sphere. She writes: The polis, properly speaking, is not the city-state in its physical location; it is the organization of the people as it arises out of acting and speaking together, and its true space lies between people living together for this purpose, no matter where they happen to be. (Arendt 1998:198) Arguing that the modern age has lost the Greek notion of the public sphere, that it has subsumed the notion of the political in the notion of the social, Arendt seeks to revive it as the only way, in a secular world, to achieve, not merely freedom, but liberation from the self, to achieve the good life as opposed to mere life. In The Origin of Totalitarianism, Arendt offers the freedom of the public sphere as a bulwark against dictatorships that isolate groups from each other, that then incite them by propaganda, and finally turn them against each other murderously. And in Eichmann in Jerusalem, Arendt took part in the public sphere as a public intellectual, reporting for The New Yorker. Habermas too writes about the public sphere. Habermas (especially the early Habermas of The Structural Transformation of the Public Sphere, first published in German in 1962) argues for a radical democracy in which citizen participation and radical participation are the keys. He is always looking over his shoulder at the dangers of Germany’s authoritarian and totalitarian past and peering with concern at the high-tech variants threatening western democracy in the future. Habermas argues against the electronically controlled, post-totalitarian public sphere that may now be emerging. ‘Once a public starts moving, it does not march in unison’. he states, ‘but rather offers the spectacle of anarchically unshackled communicative freedoms.’ He goes on to say that a ‘democratic mentality…can be formed only within the context of a free and combative political culture; it emerges through criticism and confrontations in the arena of a public sphere that has not lost heart, is still accessible to arguments, and has not been ruined by commercial television (Habermas 1997:144, 163–4).’

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Given the stirrings abroad today, such concerns do not seem unfounded. Yet granting Habermas his analysis does not mean accepting his prescription, because when intellectuals go into the public sphere, bad things can happen. For every Habermas, whose championing of liberalism made him a hero to the generation of 1989 in Eastern Europe, there is a Carl Schmitt, the evil genius who, without repenting his opinions between 1933 and 1945, became the mentor of a postwar generation of West German conservatives—‘a secret prince in the invisible Reich of the German spirit,’ as one of them put it (Habermas 1997: 114). So too in antiquity. The Greek tyrants surrounded themselves with sages as well as poets and artists. The Sophists, with their corrosive relativism, taught rich and talented young Greeks that power was better than truth. Socrates sat out the civil war in Athens between democracy and oligarchy at the end of the Peloponnesian War. Aristotle supported Philip against the Athenians and advised Alexander to treat the conquered peoples of west Asia like natural slaves. Perhaps some academics should stick to their books. Yet given their relative expertise in rational analysis and in pedagogy and given their advantages of leisure and discursive community, intellectuals have something indeed to contribute to public space. Theirs is the time-honoured job of helping to teach the people to let reason prevail. Once an academic takes on the role of a public intellectual, she is no longer speaking ex cathedra. She cannot treat the public like sheep or schoolchildren or the members of an orchestra waiting for the conductor; she cannot engage in the kind of behaviour that Xenophon’s Socrates imagines on the part of a political leader: ‘Ah, I am aware of that’, answered Socrates; ‘but the disposition of our city is now more to a good ruler’s liking. For confidence breeds carelessness, slackness, disobedience: fear makes men more attentive, more obedient, more amenable to discipline. The behavior of our sailors [or rowers: nautai] is a case in point. So long as they have nothing to fear, they are, I believe, an unruly lot, but when they expect a storm or an attack, they not only carry out all orders, but watch in silence for the word of command like choristers.’ (Xenophon Oikonomikos 5.5–6) When she speaks to the public, an intellectual does so as part of the public—as a citizen first and an intellectual second. Her intellectual and pedagogical expertise is merely the card that she plays in a role in which she is otherwise no better than any other citizen, just as culinary expertise is the card that a citizen cook plays and sanitation expertise is the card that a citizen garbage-hauler plays. As a matter of justice, therefore, an intellectual ought to dispense the fruits of her expertise with modesty and with a minimum of egotism. The emphasis should be on the ideas and not the messenger. Because of its emphasis on political equality,

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a republic should see a given citizen’s expertise in this or that as an accident, a gift of birth or luck. Modesty in a public intellectual is also politic, because the public distrusts individuals who claim special virtue and who, by implication, demand special reward. Classical Athenian literature, for example, is full of suspicion of the proud, from the execution of Socrates to the ostracism—that is, exile from Athens for ten years—of Aristeides the Just on the grounds that he was putting on airs by allowing himself to be called ‘the Just’. The Athenian orator Cleon (d. 422 BCE), Thucydides’ bête noire and Aristophanes’ and Aristotle’s arch-demagogue, makes the classic attack on the public intellectual in the name of populism: Unlearned loyalty is more serviceable than quick-witted insubordination; and…ordinary men usually manage public affairs better than their more gifted fellows. The latter are always wanting to appear wiser than the laws, and to overrule every proposition brought forward, thinking that they cannot show their wit in more important matters, and by such behavior too often ruin their country; while those who mistrust their own cleverness are content to be less learned than the laws, and less able to pick holes in the speech of a good speaker; and being fair judges rather than rival athletes, generally conduct affairs successfully. These we ought to imitate, instead of being led on by cleverness and intellectual rivalry to advise the people against our real opinions. (Thuc. 3.37.3–5) Cleon is one of the more memorable rogues in Thucydides’ gallery. Yet his speech narrowly fails (Thuc. 3.49.1). Indeed, in Thucydides, famous speakers often fall short of persuading the audience. For example, Archidamos, king of Sparta, has his advice rejected by the Spartan assembly in favour of the shadowy ephor Sthenelaidas (1.79.2–88). Athenagoras, leader of the people, scores points in the Syracusan assembly against the lesser-known orator Hermocrates, but his recommendation is dismissed and reversed by an unnamed general (6.32.3–41). The most eminent orator of all, Pericles, successfully persuades the Athenian people to reject a Peloponnesian ultimatum (1.139.4–145). His call for patriotic sacrifice in his famous Funeral Oration, however, is made a mockery of by Athens’ social breakdown during the so-called plague that follows, while his call for steely resolve in his last speech wins grudging acceptance of his policy but the imposition of a fine on him (later withdrawn: 2.34–24, 59.3–65.4). By contrast, one of the more effective orators in ancient literature is one about whom we know the least: Diodotus, son of Eucrates. He ekes out a narrow but decisive victory over Cleon and minimises the punishment inflicted on the people of Mytilene for having stabbed Athens in the back by revolting during the Peloponnesian War (Thuc. 3. 36–49). It is heartening for opponents of the cult of oratorical personality to consider how many of the orators of Thucydides are unnamed: from the respective representatives of Corcyra and Corinth who address the Athenian assembly in

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433 to the Athenian envoys who speak at Sparta in 432/431 (1.72–8) to the Mytilenians who address the Spartans at Olympia in 428 to obtain their help in a revolt against Athens (3.8–15) to the Thebans who address the Spartans in 427 in favour of the death penalty for the captured defenders of Plataea (3.60–68) to the Athenians and Melians who speak in the so-called Melian Dialogue of 416 (5.84. 3–112). Of course, these speakers had names, and they were probably known to their audiences, but Thucydides’ failure to name them entitles us to think that they were not superstars. Is the notion of a republican public sphere anti-professional? Yes, to a degree, because it demands that professionalism be balanced with citizenship. Does that amount to an attack on rhetoric, as Stanley Fish would have it? No, because even unvarnished, homespun truths are rhetorical. Democrats should neither try to abolish rhetoric nor want to. Rhetoric is the art of communication and communication is the essence of the public sphere, as Arendt has it. Republicans aren’t against rhetoric but rather against illiberal rhetoric in the public sphere. They are against rhetorical tricks, manipulation and fever-pitch appeals to the crowd. They are against Leni Riefenstahl and Pravda, against media conglomerates and sound bites, against Beltway Bandits and The Wise Men, against closed communications markets and managed news, against pundits and spin doctors, against poll-driven politics and focus groups, against sixty-second spots, subliminal messages and stentorian voice-overs (Fish 1989). What then, are advocates of republican rhetoric for? In regard to the public intellectual, they support a rhetoric that draws on the intellectual’s advantages— in education, theoretical sophistication, cosmopolitan outlook, leisure and sometimes intelligence (though many academics underestimate the intelligence of lay persons)—in order to engage in speech that makes her work intelligible to a lay public without talking down to it. They are in favour of rhetoric that simplifies without distorting, that popularises without debasing, and that spells out without sneering. Republican rhetoric needs to balance what Aristotle calls democracy’s two fundamental elements, liberty and equality (Politics 1317a40–bl6). Lincoln said much the same thing when he described the Union in a speech of 1864 to the 148th Ohio Regiment: ‘Nowhere in the world is presented a government of so much liberty and equality’ (Lincoln 1989: 626). Republican rhetoric should balance the liberty of a few people to push ideas to their limits with the equal claim of all people to engage in communication that incorporates the fruit of those ideas, once those ideas have been put into the public sphere. Republican rhetoric should aim at as simple and unadorned a style as circumstances permit. Republican rhetoric can take a leaf from the book of classic prose style as described by Turner and Thomas in their Clear and Simple as the Truth. ‘Classic prose is pure, fearless, cool, and relentless’, say Thomas and Turner (1994). Addressed to the intelligent non-specialist, it knows what it wants to say and does so directly. It is clear, simple, focused and assured. Classic prose is not necessarily democratic—one of its masters is Thucydides—but in

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the hands of a republican, it can be a stunning vehicle for communication: another of its masters is Jefferson. Republican rhetoric should make a virtue of what aristocratic critics, from Thucydides to Tocqueville, have castigated democracy for, that is, its preference for self-interest to honour. They allege that democracy is down to earth where aristocracy is refined, craft oriented where aristocracy prefers in-grained and hereditary virtue, self-interested where aristocracy is magnanimous, money conscious where aristocracy is disdainful of mere lucre. Democratic republicans know that there is some truth in these charges, but they wear them as badges of honour, knowing that ordinary people, unlike coupon-clippers, cannot attain the good life unless they pay attention to improving the conditions of mere life. Republican rhetoric, therefore, ought to be down to earth. Since the common people cannot afford to take economics for granted, neither should it. Unwilling to concede the superior virtue of a prince to a shoemaker or an exterminator, democratic rhetoric must speak in terms intelligible on the shop floor. Recognising that it is reasonable for the people to wonder about its self-interest, it must address that subject too. All of this might lead the sophisticated to assume that the people are pushovers, willing to fall for any fast-talking promises by self-appointed watchdogs of the public interest. But the people know a bloodhound from a wolf: consider that staple of ancient thought, the ingrained cunning of the simple folk. Homer’s Eumaios or Eurykleia—respectively a swineherd and nurse in Odysseus’s Ithaka —might have nodded knowingly at the judgment of the so-called Old Oligarch, a scathing critic of classical Athenian democracy, who conceded that vile and vulgar as it was, the Athenian common people knew what was good for them. A case in point is the response to the comic playwright Aristophanes’s argument in his Frogs (405 BCE). The poet frets over the lot of Athenian oligarchs exiled after the failed anti-democratic coup six years earlier in 411. He compares them with Athenian slaves who, after serving as emergency rowers in the Athenian victory at sea at Arginusae in 406, had been not merely freed but made citizens. Aristophanes argues that if Athens treats slaves so well, then it should a fortiori restore citizenship rights to exiled oligarchs. Coming forward in the play’s parabasis (that is, digression by the chorus in the name of the author), the poet states: Sin and shame it were that slaves, Who have once with stern devotion fought your battle on the waves, Should be straightaway lords and masters, yea Plataeans fully blown3— Not that this deserves our censure; there I praise you; there alone Has the city, in her anguish, policy and wisdom shown— Nay but these, of old accustomed on our ships to fight and win, (They, their fathers too before them), these our very kith and kin,

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You should likewise, when they ask you, pardon for their single sin. O by nature best and wisest, O relax your jealous ire, Let us all the world as kinsfolk and as citizens acquire, All who on our ships will battle well and bravely by our side. (Frogs 691–702, tr. B.B.Rogers) The poet’s rhetoric passes the test of democratic public discourse: it is clear, simple, rational and focused on the public interest. Unfortunately, it is unconvincing. Slaves were likely to defend democracy both out of gratitude for enfranchisement and out of principle, because of democracy’s reputation for relative leniency toward slaves (though not so much leniency that abolition was ever considered). The oligarchs might be grateful for their pardon, but they were unlikely to give up their principled hostility to democracy. Home again, they might work to make Athens less egalitarian. The people were not fooled. They made short work of Aristophanes’ argument. The exiles stayed abroad until after Athens’s surrender to Sparta in 404 BCE, when they returned and some took part in the oligarchy of the Thirty, whose name became a watchword for terrorism and tyranny. So we have a game of civilized thrust and parry, a tale of sensible debate in the public sphere. Now, a critic might say, that is all well and good, but we live, to cite Cicero, not in Plato’s Republic but in the sewer of Romulus. False consciousness exists, and plenty of people are willing to exploit it with nothing like Aristophanes’ scruples about good behavior in the theatre of Dionysus. While the virtuous republican public intellectual is playing Horatio at the bridge, he is going to be run over by the legions of Rupert Murdoch—or, far worse, of Mussolini or Hitler or any of the other tyrants who have taken power legally in democracies. Should our public intellectual go down singing ‘Happy Days Are Here Again’ and congratulating himself on his good intentions? No, he should not. Yet how is he to protect himself against rhetoricians who pull out the stops, whether in words or on the shadowy screens of new information technology? Not by fighting fire with fire. We don’t need flamboyance, we don’t need verbal pyrotechnics, we don’t need saints, we don’t need bards. What we need is a gray and diligent public speech workers who eat their spinach and commit clear and modest acts of communication. It sounds uninspiring and it is. Inspiration is dangerous in the public space. We need to defend ourselves against rhetoric’s traditional role in defense of the indefensible. Historically, the ultimate task of the orator is to heat the already warm blood of young men to the boiling point, in order to get them to die on behalf of the rest of the community. Afterwards come the funeral orations, and they are invariably inspiring. On closer look, of course, these pied pipers of death are serving up nothing other than elderly rubbish to an apathetic grave, as Auden said. Give me rhetoric and give me death.

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That is precisely the problem with Pericles. Many, including Cynthia Farrar and Harvey Yunis, see him as Thucydides’ ideal of a political leader: wise, incorruptible and a great communicator, he educates the Athenian people in the rule of reason. Yet as other commentators as disparate as W.R.Connor and Leo Strauss have pointed out, Thucydides’ portrait of Pericles is open to an ironic reading: for all his foresight, Pericles failed to imagine the suffering of the Peloponnesian War, while his call for blind love of country opened the door to the passions that destroyed Athens. I have argued that Pericles’ patriarchy proves to be his undoing, for he neither provided a successor nor cultivated the qualities among Athenians that might allow them to survive him. And then there is Auden’s horror at Pericles’ inspiring call to arms (Farrar 1988; Yunis 1996; Connor 1989; Strauss 1977). Yet if Pericles is not the model, who is? Rather than answering democracy’s opponents in kind, the democratic rhetorician needs to mount a two-front counter-attack. First, he needs to support efforts to create a public space that permits free and equal communication. A large and growing scholarly literature exists on the debate over various efforts to do just that, and others, with more expertise than the present writer, discuss those efforts.4 Let us turn here, instead, to the second front of the counter-attack, that is, to the rhetoric with which a democratic orator should respond to demagoguery. Ever since M.I.Finley’s attack on the misuse of the term ‘demagogue’ by critics of Athenian democracy (joined by, among others, W.R.Connor in his analysis of the Athenian ‘new politicians’ and Donald Kagan in his rehabilitation of Cleon), the demagogues have enjoyed new prestige among ancient historians. And deservedly so: the record needed to be set straight. But that doesn’t turn the demagogues into philosopher-kings (Finley 1974a; Connor 1971; Kagan 1975). The surviving rhetoric of democratic Athens, whether as represented by Thucydides, Plato and Aristotle or as more directly recorded by the Attic orators or their editors, is full of inspiration. It is also full of rhetorical tricks, logical fallacies (from ad hominem to tu quoque), character assassination, flights of fancy and, as Danielle Allen has recently demonstrated, of hot blood. In short, it is full of precisely those things that impede reasoned deliberation by the people. Athenian oratory is at best only a limited model for the republican orator (Allen 2001). Yet that does not mean that it is without positive lessons—that it is only a cautionary tale. For all its faults, as a corpus, Attic oratory does a remarkable job of bringing important issues to the attention of the ordinary citizen, without condescension or obsequiousness (as Yunis discusses). Nor do the faults in its oratory mean that Athens was not a democracy. As Josh Ober has argued, the arguments of the orators were subjected, in addition to counter-attacks by other orators, to the intensive scrutiny of the Athenian people. By serving as the watchdog of its own interests, by asking tough questions, by keeping a tight rein on the orators, the Athenian people saw to it that debate in the public sphere was, on the whole, moderate and rational. As George Grote argued long ago, Athenian

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democracy amounted not to mob rule, as ancient and modern critics have charged, but to a regime that amassed an overall record over more than two hundred years of relatively prudent and sensible public decisions. Keep in mind as well the conclusions of the anthropologising or Mediterranean Studies school of ancient historiography. Despite some excesses, this school has demonstrated the power of honour and shame, of violence and repression, of misogyny and androcentrism, in short, of primitive survivals of all sort in Athenian culture. Classical culture was neither therapeutic nor, when it comes to the frank and enlightened confrontation of the irrational, canonical. We can do better today. Or at least we can hope to. Instead of responding to outrageous rhetoric with counter-outrage, the public intellectual in a democratic republic should respond with cunning reason. Thucydides provides an example of just what this might mean. Let us return to the aforementioned pair of speeches of 427 BCE in which the orators Cleon and Diodotus reopen the debate on a previous decision by the Athenian assembly to massacre every male Mytilenian as punishment for Mytilene’s treacherous wartime revolt. Diodotus’s tactics are worth our attention, and so is his audience. Diodotus’s speech is not a work of philosophy: its aim is persuasion, not truth. Farrar and Ober have each criticised the shortcomings in the speech, from leaps in logic to imprudence to mudslinging. They argue convincingly that Diodotus is hardly Thucydides’ ideal. Modern readers, however, are entitled to dissent from Thucydides’ judgment, and might reach a higher estimation of him. In regard to criticisms of his oratory, Diodotus in effect protests innocence; his words, he says, are no rhetoric but merely ‘plain good advice’ (Thuc. 3.43.2). This, of course, is a pose: there is nothing plain about Diodotus’s canny words. Yet the differences with Cleon’s stemwinder are striking. While Cleon summons up moral outrage, Diodotus calls for pragmatism. While Cleon champions anger, emotion and first impressions, Diodotus praises unemotional reflection. While Cleon demands justice, Diodotus avers that expediency is more in order. While Cleon talks about settling scores, Diodotus gives a seminar in deterrence theory (concessions to the guilty now will buy off future malcontents, he contends). The irony, of course, is that Diodotus is rattling the cage of an arch-hawk. Cleon advocates brutality, while Diodotus wants a ‘soft’ punishment of Mytilene: the execution of the guilty rather than of every male Mytilenian (the guilty turn out to be no less than 1,000 men, out of a total male citizen population of, to make a ballpark estimate, 10–20,000). Yet Diodotus takes Cleon’s right flank by beating him at the game of realpolitik. The seemingly offhand use of the words ‘most terrible’ (ta deinotata, 3.43.2) to describe Cleon’s proposal gives Diodotus’s game away. In the end, Diodotus narrowly defeats Cleon. Most of the Mytilenians are spared. This is a democratic decision, in three ways. First, it is a triumph for reason in public space over demagogic manipulation and emotionalism. Second, it is a

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decision that values the life of the ordinary person, even though he be a foreigner and so, by Athenian standards, outside of the charmed circle of privilege.5 Third, it is a decision whose implementation depends on the goodness and decency of the ordinary Athenian. It does so perhaps in two ways, the first of which is demonstrable, the second, speculative. Diodotus himself might be an ordinary Athenian. We know nothing of him outside of Thucydides. At any rate, Thucydides’ silence about Diodotus, compared to his introduction of Cleon as a man of utmost violence and popularity (3.36.6), might suggest that Thucydides makes of him a kind of Athenian Everyman (Yunis 1996:92). The second, more speculative point comes from a detail, revealed by Thucydides, that after the first assembly had decided to slaughter the Mytilenians, an Athenian galley set out to bring the news to the Athenian commander in Mytilene, a distance of about 184 sea miles away. It would have reached the city in time if not for two factors. One was the speed of the second warship, sent out after the revised vote, whose rowers were plied with the ancient equivalent of Gatorade and Power Bars by the Mytilenian embassy. The second factor was what amounted to an act of civil disobedience by the rowers of the first ship: they staged a work slowdown. At least that is what I would like to read into Thucydides’ statement that the first ship ‘made no haste on so monstrous, inhuman an errrand’ (kai men tês proteras neôs ou spoudêi pleousês epi pragma allokoton tautês de toioutôi tropôi epeigomenês, 3.49.4). At a minimum, this statement shows the initiative of a single Athenian ship’s captain (trierarch); at a maximum, it shows the agency of the humblest of the humble, the 170 rowers of a galley. Consider the source of the decency of the ordinary Athenian: nothing other than the equality of Athens’ republican regime. Because their service of rowing in the fleet taught humble Athenians to value each other and to equate their contribution to the polis with that of an elite Athenian’s, ordinary Athenians acquired respect for ordinary people elsewhere. Note that equality is highlighted by Pettit as a characteristic of republican regimes (Pettit 1997:126). There is no contest between Diodotus and Cleon, but could there possibly be a case for Diodotus’s superiority to Pericles as well? Both men respond to irrationality in public space, but Pericles does so by turns thundering like Zeus from Olympus and singing like the Sirens. Modest and forgettable in his character, Diodotus fights demagoguery with rhetorical tricks of his own, by they are mild in comparison to the opposition’s tactics. His favoured mode of analysis is reason, and it underlays his speech. In the end, however narrow his victory, he makes his case successfully. As we consider stepping into the public sphere, we humanists might hold before us the image of Diodotus rather than that of Pericles. Savvy but scrupulous, dedicated to reason and democracy but never naive about what it takes to fight its opponents, a speaker of plain but sharp rhetoric, a modest and not altogether inspiring personality, a mysterious and secret teacher who appears

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when needed and then vanishes again after having seemed to have asked nothing in return, all but as anonymous as the people whom he serves—Diodotus is a figure whom we humanists might contemplate as we prepare to come down from our monastic mountains and join the fray below. To sum up, this essay offers a way for public speakers to help a democratic republic steer a middle course during a time of war. It recognises the need both for republican militancy and for democratic humanity. It suggests that the very equality of republicanism will foster the sympathy that undergirds the latter while promoting the fraternity required by the former. It calls for public speakers to employ cunning rhetoric to guide the public: a rhetoric that is restrained and unemotional, realistic and hard-headed, yet also decent and principled. It calls for a rhetoric that is perhaps clearer than it is simple. Call it a Machiavellian moralism, if you will, or perhaps, it should be called Diodotean wisdom. ACKNOWLEDGEMENTS I would like to thank Danielle Allen, Cynthia Farrar, Melissa Lane, Christian Nadeau, Josiah Ober, Philip Pettit, and Daniel Weinstock, for helpful comments on and friendly dissent with earlier drafts of this essay. NOTES 1. For an argument for the disjunction of ancient Greek and modern republicanism, see Rahe (1992). 2. It is unclear whether metic (resident alien) and slave women attended the Thesmophoria but certainly on the level of discourse the festival was conceived of as a matter for citizen women. 3. The slaves were admitted to Athenian citizenship on the same terms as Plataeans in 427 BCE, that is, they were entitled to all citizen rights except the right to hold certain priesthoods and the chief magistracy. 4. For an introductory survey, useful if dated, see Scott London (1995:33–55). 5. On the preservation of life as a value of ancient democracy, see Strauss (2000: 27ff.).

REFERENCES Allen, D. 2001. The World of Prometheus: The Politics of Punishing in Democratic Athens. Princeton, NJ: Princeton University Press. Arendt, H. 1998. The Human Condition. 2nd ed. Chicago, IL: Chicago University Press. Connor, W.R. 1971. The New Politicians of Fifth-Century Athens. Princeton, NJ: Princeton University Press. 1989. Thucydides, Princeton, NJ: Princeton University Press. Farrar, C. 1988. The Origins of Democratic Thinking: The invention of Politics in Classical Athens. Cambridge: Cambridge University Press.

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Finley, M.I. 1974a. ‘Athenian demagogues’. Finley 1974b: 1–25. ed. 1974b. Studies in Athenian Society. London: Routledge and Kegan Paul. Fish, S. 1989. Doing What Comes Naturally, Durham, NC: Duke University Press. Flensted-Jensen, P., T.H.Nielsen & L.Rubinstein, eds. 2000. Polis & Politics. Studies in Ancient Greek History. Copenhagen: Museum Tusculanum. Habermas, J. 1997. A Berlin Republic. Lincoln, NB: University of Nebraska Press. Hansen, M.H. 1989. Was Athens a Democracy?: Popular Rule, Liberty and Equality in Ancient and Modern Political Thought. Copenhagen: Commissioner, Munksgaard. Kagan, D. 1975. ‘The speeches of Thucydides and the Mytilenian debate’. Yale Classical Studies 24, pp.71–94. Lincoln, A. 1989. Speeches and Writings, 1859–1865, New York: Library of America. London, S. 1995. ‘Teledemocracy vs. deliberative democracy: a comparative look at two models of public talk’. Journal of Interpersonal Communication and Technology, 3/ 2, 33–55. Morris, I. & K.Raaflaub, eds. 1997. Democracy 2500? Questions and Challenges. Archaeolocal Institute of America, Colloquia and Conference Papers, No.2. Dubuque, IA: Kendall/Hunt. Ober, J. 2000. ‘Quasi-rights: political boundaries and social diversity in democratic Athens,’ Social Philosophy and Policy, 17/1, 27–61. Ostwald, M. 1986. From Popular Sovereignty to the Rule of Law. Law, Society and Politics in Fifth-Century Athens. Berkeley, CA: University of California Press. Pettit, P. 1997. Republicanism. A Theory of Freedom and Government. Oxford: Oxford University Press. Putnam, R.D. 1993. Making Democracy Work. Civic Traditions in Modern Italy. Princeton, NJ: Princeton University Press. Rahe, P.A. 1992. Republics Ancient and Modern. Classical Republicanism and the American Revolution. Chapel Hill, NC: University of North Carolina Press. Rawls, J. 1993. Political Liberalism. New York, NY: Columbia University Press. Roberts, J.T. 1994. Athens on Trial. The Antidemocratic Tradition in Western Thought. Princeton, NJ: Princeton University Press. Sealey, R. 1987. The Athenian Republic. Democracy or the Rule of Law? University Park, PA: Pennsylvania State University Press. Skinner, Q. 1998. Liberty Before Liberalism. Cambridge: Cambridge University Press. Strauss, B. 1997. ‘Genealogy, ideology, and society in democratic Athens’. Morris & Rauaflaub l997:141–54. 1999. ‘Civic service, citizen soldiers, and a more democratic republic’. Unpublished paper. 2000. ‘Democracy, Kimon, and the evolution of Athenian naval tactics in the fifth century B.C.’ Flensted-Jensen et al. 2000; 315–26. Strauss, L. 1977. The City and Man, Chicago: University of Chicago Press. Thomas, F.-N. & M.Turner. 1994. Clear and Simple as the Truth: Writing Classic Prose. Princeton, NJ: Princeton University Press. Yunis, H. 1996. Taming Democracy: Models of Political Rhetoric in Classical Athens, Ithaca, NY: Cornell University Press.

4 Montesquieu: Critique of Republicanism? CÉLINE SPECTOR

The opposition between liberalism and civic humanism has been the subject of fruitful scholarly debate, since the work of H.Baron, Q. Skinner and J.G.A.Pocock.1 The ambition of J.G.A Pocock’s book The Machiavellian Moment is clear: by putting these two distinct hermeneutical paradigms to work, it seeks to transcend the hegemony of liberal historiography. The shortcomings in the liberal vocabulary of individualism, which examines the possessive individual in relation to other possessive individuals and considers questions of justice under the guise of the protection of rights, must be mitigated by the use of the language of civic humanism. Civic humanism, or republicanism broadly conceived, does not see the curtailing of power, the problem of individual security or the right to rebel as its fundamental problems. Rather, it is essentially concerned with the corruption of virtue. In the writings of authors belonging to what J.G.A Pocock labelled the tradition of civic humanism, liberty is threatened when citizens’ autonomy, which is guaranteed by the ownership of arms and land, is no longer secure. In these critical ‘Machiavellian moments’ of history, civic virtue is threatened by the forces that endanger its survival, be it fortuna in the Renaissance or finance, credit and commerce in the eighteenth century. The Neo-Harringtonian continuation of the tradition of civic humanism in England— a tradition limited up to that point to the small Italian republics of the thirteenth and fourteenth century—focuses these republican fears around the new economic expansion and its instruments: in the wake of the financial revolution, the new mobile means of access to power, by introducing the reign of money into politics along with the government of passion and of the imagination, undermine the martial spirit of independence and patriotism with which the survival of the republic is identified. The mobility of ownership, which dominates the new mercantile societies, is detrimental to the expression of virtue and renders the ideal of the citizen/soldier obsolete. According to this line of thought, the tradition of English republicanism is no longer associated with the restoration of the ancient republican model where the people as a body politic exercised power. Power is now subordinated to a new vision of constitutional monarchy that might invigorate civic virtue once more, a virtue without which the unceasing struggle between competing factions and interests risks casting the state adrift towards corruption and decadence.

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Beyond this purely British debate, the place of Montesquieu in the confrontation between republicanism and liberalism has been the subject of controversy. All sides seem to seek his seal of approval, and to situate his work at the centre of the tradition which they are advocating. Thus, according to J.G.A Pocock, Montesquieu is the thinker who set the classical science of virtue to work in the eighteenth century. Judith Shklar, basing her claims on the American experience, argues that Montesquieu did for the second part of the eighteenth century what Machiavelli had done for the Renaissance, namely, set the terms of discussion for republicanism. As for Isaiah Berlin, the Esprit des lois establishes the liberal creed, and, since Thomas Pangle’s work, numerous other scholars have adopted this position. However, the opposition between Montesquieu the liberal and Montesquieu the republican seems a little extreme. Does this mean that we should follow Pocock’s view that Montesquieu’s project to find the material conditions for virtue in merchant societies is essentially paradoxical? According to Quentin Skinner, the central question concerning the relationship of the interest of the nation and those of individual citizens has been addressed in two principal ways in modern political theory. The first focuses on the efficiency of institutions and of the ‘invisible hand’, and the other bases itself on the high principles and public spirit of the rulers—Hume is seen as the main representative of the first path, and Machiavelli and Montesquieu incarnate the second one. As we will see, this antagonism can be transcended if we pay close attention to the political theory developed in the Esprit des lois. The Description of the Republic in the Esprit des lois and the Republican Tradition The description of the republican vivere civile in the first books of the Esprit des Lois testifies to the important ties that exist between Montesquieu and the tradition of ‘civic humanism’ as understood by Pocock and Skinner. The theory of the republic presented in his description of the different types of government relies on several arguments used in favour of civic life since the Florentine preRenaissance. At the level of institutions, the analysis of the ‘nature’ of democracy shows the prevalence of the Aristotelian and Ciceronian heritage: the greatest legislators have gained their reputations by limiting the anarchist tendencies inherent in democracy, by giving deliberative and judiciary powers to the people, and by restricting governance to an elite. Moreover, at the level of customs, Montesquieu borrows from Machiavelli and his predecessors the idea that the nature and the principle of government are joined together by a dialectic linking good laws and good customs. Thus, the survival of republican institutions can only be achieved through patriotic sentiments. This justifies the prevalence of the principle or dominant passion which sustains the ‘nature’ of the government: ‘Once the principles of the government are corrupted, the best laws become bad and turn against the state; when their principles are sound, bad laws

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have the effect of good ones; the force of the principle pulls everything along’ (Montesquieu 1950:VIII, 11).2 To this first movement that proceeds from customs to laws one must add a second that progresses in reverse (at least in the case of democracies— aristocracies are a more complicated case), where the laws must also promote virtuous customs. The fifth book of the Esprit des lois stresses juridical and material conditions: the love of equality and of frugality is rooted in the effective existence of these two realities which are in turn based on agrarian and inheritance laws. Legal conditions remain insufficient if they are not backed up by institutions that educate and police customs. Censorship is central in this case. The censors have a crucial role to play since they are endowed with the protection of the ‘depository of the mores’ (‘dépôt des moeurs’). Montesquieu describes their task in the following terms: ‘They must re-establish all that has become corrupted in the republic, notice slackness, judge oversights, and correct mistakes just as the laws punish crimes’ (Montesquieu 1989:IV, 4–8). This unceasing supervision is supposed to lead to an internalisation of the right norms by the citizens who are not expected merely to comply with the external aspects of the law. The example of the Aeropagyte— where a child is put to death for having blinded his bird—is appealed to by Montesquieu: ‘Notice that the question is not that of condemning a crime but of judging mores in a republic founded on mores’ (Montesquieu 1989:V, 19). Whereas in a democracy vices must be punished, in a monarchy private crimes and misdemeanors can flourish in the shadow of the law without threatening the state. The description of virtue offered by Montesquieu is similar to that provided by the Ciceronian humanists. It is a kind of virtue that requires self-abnegation and denial of one’s interests. Such a feat can only be achieved through the ceaseless moral policing that we have alluded to earlier: ‘lt is not only crimes that destroy virtue, but also negligence, mistakes, a certain slackness in the love of the homeland, dangerous examples, the seeds of corruption, that which does not destroy them but weakens them’ (Montesquieu 1989:V, 19). The survival of democracy in the face of the threatening historical forces presupposes a continuous and public exercise of moral judgment that makes citizens conform to a set of common rules, thus maintaining the public morality upon which the security of the republic is based. The importance attributed to customs appears in the role ascribed to them, as a complement or even as a replacement for laws, in the make-up of the body politic. When the agrarian laws are unable to establish a certain equality of wealth, customs supplant the legal failure. The institution of a pyramidal chain of subordination anchors political discipline in a moral bedrock. The subordination of the young to the old, of children to parents, of wives to husbands sustains the authority of the senate. In a democracy this conservation of hierarchical obedience is paramount to the survival of the state: ‘much is to be gained by keeping the old customs’ (Montesquieu 1989:V, 7). The corruption of the republic occurs precisely in the moment where public values lose their legitimacy in the face of an emerging individualist moral order.

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This is the first conclusion to which the analysis of books II to X of the Esprit des lois leads. The major borrowings by Montesquieu from Aristotle’s Politics, which he reads in the light of Machiavelli’s Discourse, shows the extent of his use of what has been called the republican tradition. For Montesquieu, republics are regimes in which isonomia is based on eunomia: namely, where the equal participation in political power is founded on a good customary order. What matters is not so much the participation of the entire people in the government— Montesquieu is convinced that the body politic is incapable of such an undertaking, and must therefore elect magistrates—but the inclusion of all in a vivere civile characterised by homogeneous aspirations and communal customs. The preeminent role given to the conservation of civic practices is reiterated in the special attention placed on frugality, which must be maintained by sumptuary laws. Mobility, due to the increase of wealth and private pleasure that it encourages, must be banned: the expansion of luxury and the escalation of private passions (such as ambition and greed) can only bring about corruption and the dissolution of the social bond. Although, in the Considérations, Montesquieu claims that the heroic virtues and martial discipline of the Romans survived well into the imperial age of luxury and corruption, he does not deny the classical analysis which sees cowardice as being a direct result of luxury. Similarly he does not question the superiority attributed to Roman poverty over Carthage’s opulence. More important than the decline of the military virtues, the decline of the vivere civile is associated with luxury, which translates into the particularisation of interests the moment when citizens come to dissociate their individual aspirations from glory of their country: So far as luxury is established in a republic, so far does the spirit turn to the interest of the individual. For people who have to have nothing but the necessities, there is left to desire only the glory of the homeland and one’s own glory. But a soul corrupted by luxury has many other desires; soon it becomes an enemy of the laws that hamper it… As soon as the Romans were corrupted, their desires became immense. When everyone, by a common impulse, was carried to voluptuousness, what became of virtue? (Montesquieu 1950:VII, 2) To this traditional critique of the weakening of martial virtues one must add, particularly in the Persian Letters, a moral and social critique of conspicuous consumption: by blurring the lines of distinction in the ‘natural’ hierarchy, luxury enables each and every person to seek public acknowledgment based on wealth rather than birth or action. Deploring the corruption induced by John Law’s system, the Persian nobles will insist on the pernicious effects of the ‘confusion of ranks’ brought about by luxury (Montesquieu 1950: Lettres Pers. XCVIII, CXXXVIII, CXLVI). Montesquieu’s views are here closer to those of Bolingbroke and his followers than to the humanist tradition as such. Associated with the rise of commerce and

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finance, luxury appears to be the reverse of virtue, a constant threat to its integrity; it seems to fulfill the role usually attributed to fortune: a factor of social mobility and inconstancy that arouses passions and imagination. Faced with the defense of merchants, seen as the heroes of modern times, and in reaction to the rehabilitation of private interest conducted by the court (partisans of Walpole, Defoe and the London Journal), doesn’t the Country Party—in the manner of Fenelon and the Dukes’ party in France—defend hierarchy and the social order threatened by the new elite of merit and money? Does it not deplore this new elite which is not content only to speculate on movable goods, but manages to repurchase noble lands and menace the balance of property on which the ancient constitution rests? History is used in this polemical debate as a rhetorical tool; references to ancient Roman history in particular are meant to show the imminent decadence of England caused by the disturbance to the balance of power between the King, the House of Lords and the House of Commons. Luxury is seen by the Tory historians of 1730 as the source of the phenomenon which robbed the landed interest of its power and privilege in favour of the moneyed interests, whose supremacy threatened the very foundation of patriotism and love of country. As a remedy, Bolingbroke argues for a return to the principles of the Constitution: moral reform must accompany the return to power of the natural elites whose autonomy can only be warranted by landed ownership. The condition of a politics that transcends factionalism resides in the restoration of the ancient values that were abolished by luxury and other nefarious aspects of the financial revolution. By paying close attention to the adverse consequences of particular interests caused by luxury, Montesquieu in the Esprit des lois pleads for a return to the principles of virtue: ‘When a republic has been corrupted, none of the ills that arise can be remedied except by removing the corruption and recalling the principles; every other correction is either useless or a new ill’ (Montesquieu 1989:VIII, 12). A Paradigm Shift The apparent proximity between Montesquieu and the British NeoHarringtonians ought not to hide the deep divergences in their respective positions regarding the interpretation of history and the irreversible evolution which distances, in his eyes, republic and monarchies, and, to a certain degree, the ancients from the moderns. By regulating republics to a distant past—that of the ancient cities—the author of the Esprit des lois clearly takes a position against the possibility of a ‘return to principles’ which would permit reviving the corrupted virtue. Regarding to question of whether, in absence of morphological conditions and materials which characterise the ancient republic, good mores can still prevail, the response of the Esprit des lois is unambiguous: the analysis of political virtue recognises the incompatibility between the governing of a people as a body politic that presupposes the subordination of the private interest to the common benefit and the conditions that enable the existence of a modern

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society. The development of commerce in the great European states defined by a society ridden with vice and inequality seems to condemn the republic to corruption: The political men of Greece who lived under popular government recognised no other force to sustain it than virtue. Those of today speak to us only of manufacturing, commerce, finance, wealth and even luxury’ (Montesquieu 1989:III, 3). Because it ‘corrupts pure morals’, the development of commerce seems to be incompatible with the conservation of virtue. Against returning to the republican tradition, Montesquieu opts to transcend the antinomy between virtue and commerce and tries instead to underline the compatibility between the spirit of commerce and virtue: both of them share a common self-discipline, the repression of personal passions by the individual— citizen or merchant—under a general rule. The modern commercial republics, then, can recover virtue: in the small states that exercise the ‘commerce d’économie’ (transport), the frugal virtue of the merchants leads to an identification of personal interest with that of the public. Virtue and commerce no longer oppose one another and the possibility for an altogether new path appears for modern republics (Montesquieu 1989:V, 6; XX, 4). The break with the republican tradition is also exemplified by the rejection of its conception of freedom, rooted in the importance of citizens’ political participation. Following Locke, Montesquieu defines liberty as freedom regulated by law. The theory presented in Book XI of the Esprit des lois enables the emancipation from the republican topos: the people’s freedom is not ‘power in the people’s hands’ but security under the law. A citizen can be seen as free when he enjoys a certain peace of mind that springs from the perception he has of his own safety, when he lives without the fear of oppression from others or from the state. In this sense the Republicans confuse political freedom and philosophical liberty: political freedom does not consist in doing whatever we wish, but to be able to do that which we should want to do, all the while not being compelled to do what we should not want to do (‘ne pas être obligé de faire ce que 1’on ne doit pas vouloir’, Montesquieu 1989:XI, 3). Indeed, a free population is not one which is submitted to this or that type of rule but one which enjoys the rule of law: ‘Democracy and aristocracy are not free states by their nature’ (Montesquieu 1989:XI, 4). In the face of the permanent risk of the abuse of power, freedom depends on the distribution of power within the state, which protects the constitution, and on safeguarding the citizen from arbitrary abuse, which entails the protection of his rights. Should we then conclude that, far from adopting the republican vocabulary, The Esprit des lois puts it to use in order to subvert its substance and to demonstrate the absurdity of a moral republic given the nature of modern commercial societies? Private Vice, Public Virtue The critique of the vocabulary of civic humanism can be seen in the use of ancient Roman history in the Considérations sur les causes de la grandeur des

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Romains et de leur décadence, as well as in the Réflexions sur la monarchie universelle, where Montesquieu demonstrates the absurdity of imitating the Roman imperial model due to the evolution of the art of war. From a military standpoint, the incidence of wealth and luxury has changed the situation: the variations in strategy and equipment have turned poverty’s advantage—martial asceticism—into a handicap. Luxury is no longer the cause of the decline of empires; on the contrary, it is the source of its greatness, especially in a time where power is measured in commercial wealth, not territorial possessions. The road explored by Montesquieu in the ‘querelle du luxe’ (the quarrel on luxury) enables us to distinguish him from the supporters of ancient virtue and the followers of the humanist tradition. In the great states where land ownership is uneven, the abolition of the luxury would lead to an economic and demographic decline. Indeed, the suppression of superfluous spending would induce a shortage of revenue for the lower classes and would constitute an impediment to growth. Following Mandeville and Melon, Montesquieu admits that, in a monarchy, the principle that converts private vices into public virtues and moral vices into political virtues is at work. The corruption of mores must be overlooked if vanity and cupidity are to serve national interest (Montesquieu 1989:XIX, 5–9). Where the arts of pleasure and the empire of taste are at the root of wealth, the legislator must let the nation do what it pleases for the sake of the state’s economic power. The conservation of different types of government is regulated by autonomous and sometimes contradictory principles: ‘republics end in luxury; monarchies, in poverty’ (Montesquieu 1989:VII, 4). Thus, the modern path is clear: Athens is to be preferred over Sparta. If virtue is the price that must be paid to achieve economic success, a price readily accepted in the Esprit des lois, then the function of the law is not to regulate morality. This position dismisses the admirers of ancient simplicity and their obsessive concern for moral decay. Far from being incompatible with political freedom, luxury is in fact in accordance with it. The threat to liberty comes now from the desire for moral discipline: from those who want to abuse the power of law to violently reform the habits and mores of a given society by imposing a ‘tyrannie d’opinion’ (a tyranny of opinion). This is the cost of the reverence and awe for the ancient model. The peril that confronts most European states is not the transition from republic to monarchy but the change from monarchy to despotism due to the abolition of the intermediary powers and to the subservient nature of the courtiers. Luxury is not a threat for traditional or constitutional monarchies; and it certainly is not a threat to the viability of the state: the dynamic inherent in the desire to distinguish oneself sustains the obedience to the Prince, while maintaining public freedom. Moreover, the very definition of honour fits into the Mandevillian scheme with self-interest resulting in an outcome that is beneficial for the whole society; Adam Smith will later depict this phenomenon using the image of the ‘invisible hand’. Because individual ambitions can unintentionally and unknowingly have positive outcomes for all, politics in monarchies can do without virtue: The state continues to exist independently of the love of the

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homeland, desire for true glory, self-renunciation, sacrifice of one’s dearest interests, and those heroic virtues we find in the ancients and know only by hearsay’ (Montesquieu 1989:III, 5). Thus, for Montesquieu the republican warnings concerning the mixing of virtue and commerce are valid in the context of ancient history, but only for military republics These warnings lose all their relevance in the case of modern monarchies. The threat of commerce and its negative influence on political liberty becomes obsolete. Furthermore, the modern forms of power offer no basis for fearing the perverse influence of luxury on individual courage and ‘manliness’. Finally, the analysis of the conditions of liberty, dissociated from political virtue and active participation in the exercise of political power, undermines the republican will to return to original principals by prohibiting luxury. The Question of Public Credit The issue of public credit enables us to further distinguish Montesquieu from the tradition of civic humanism. The early recourse to public debt in order to finance the upkeep of permanent armies and the management of recurring wars gave birth to a heated debate concerning the use of public funds in England. The institution of the credit system and the birth of the financial revolution are controversial issues. Walpole’s opponents claimed that the loss of a stable and solid vivere civile was coextensive with the invention of new financial instruments and the development of commerce. Bolingbroke even wrote an essay on the tragic consequences of the public debt: for him, the abolition of the debt is seen as the preliminary condition for the regeneration of the country under the guidance of a Patriot King. The increase of public debt renders the government dependent on a class of professional creditors. The criticism leveled by the Country Party goes beyond the traditional notion that sees money as an inherent corruptor of the ruling class. Rather, it is directed at the epistemological foundations of a society organised around financial exchanges and investments, a society where artifice and deceit take pride of place. In Machiavelli’s terminology the personification of credit under female traits echoes the instability of fortuna. Against the attacks of the Country Party, the supporters of the new financial tools attempt to show the possible conversion of irrationality into rationality, of credit into confidence, of imaginary goods into real goods—as long as the government’s practices and the political situation enables it. In this context, the Persian Letters seem to carry forward the criticism of bank credit along the same lines as the Country Party. The fear of corruption motivates the main characters in this satire of the Regency years. Rica condemns the foreigners who destabilise the state by enabling the acquisition of massive fortunes: ‘God creates men out of nothing and with no greater expedition. How many valets are now waited on by their fellows, and may tomorrow be served by their former masters!’ (Montesquieu 1989: Lettres Pers. CXXXVIII). This myth

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exhibits the fears many harbour before the reign of profit with its plethora of moral, political and social subversions. The corruption of a people, very much like the demise of a corrupt minister, seems to derive from an exorbitant propensity for speculation. The threat posed by the new financial system is, at a deeper level, a fear of the extremes to which human nature, deluded by an illusory project and guided by passion and imagination, will go. The ‘fragment from an ancient mythologist’ recounted by Rica humorously depicts the tragic process by which three fourths of national wealth disappears: ‘Be ruled by me: leave the land of the base metals; come into the empire of the imagination, and I promise you riches which astonish even you’ (Montesquieu 1989: Lettres Pers. CXLII). Similarly in Adison’s Spectator, J.Law is represented as one of the sons of Eolius, a merchant of hot air. He entreats the Betic people to give up their old belief in precious metals and to follow him in the land of imagination and wealth. The language employed in these political parables echoes the Augustan polemic engaged in England. But the position of Montesquieu in the Esprit des lois is much more ambiguous. On the one hand, he seems opposed to the principle of public credit, going as far as to reject the objection voiced by Hume concerning the economic advantages of a public debt (Montesquieu 1989:XXII, 17–18; 1955: p.1221). On the other hand, Montesquieu seems to abandon a direct critique of the public debt and settles instead for a mitigated defence of its use and benefits within the context of contemporary England. The influence of the constitution on British mores enables the conversion of credit into confidence in a given political situation. This phenomenon defines the singularity of a ‘free nation’: This nation would have secure credit because it would borrow from itself and would pay to itself. It could happen that it would undertake something beyond the forces natural to it and would assert against its enemies and immense fictional wealth that the trust and the nature of its government would make real. In order to preserve its liberty, it would borrow from its subjects, and its subjects, who would see that the credit would be lost if it were conquered, would have a further motive to defend its liberty. (Montesquieu 1989:XIX, 27) The ‘country’ problematic (from Bolingbroke and Cato’s letters) is henceforth reversed. The transformation of imaginary and irrational goods into rational and tangible benefits is accomplished by way of the government’s nature: it is the love of freedom that is at the root of the transformation of chimeras into economic realities with strong political implications. Thus, public credit gains strength through the judgment of subjects. They seek to preserve the credit of their nation and ensure it can be trusted, so it can exercise a powerful role in the concert of nations. The double determination of credit is once again based on a theory of judgement. However, this judgement itself is not based on fully warranted appraisals of the government’s virtue. On the contrary, it is based on

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illusory data—the nation venturing beyond its natural reach, following its desires and passions instead of its interest—and these data are supported, because of certain political qualities, by a virtuous circle based on confidence. How does truth come out of deceit, how does illusion become reality? In other words, what is the face of this new cunning of reason? Montesquieu bases this magical power on the free passions and the financial system. Against Hume’s view, the expansion of credit cannot have the same consequences in France and in England, because the passions operate in two distinctly different systems. The transformation of credit into confidence cannot take the same form in a monarchy regulated by honour and intermediary classes and in a republic hiding behind a royal mask. The whims of honour are the French equivalent of the English fantasies of credit. They are just another trick of reason, just another conversion of inconstancy and passion into a vigorous economic tool of political power. In this context, far from being opposed to liberty, commerce seems to be one of its catalysts. Montesquieu shows to what extent commerce— under its many possible guises, including both cultural and material exchanges—brings about great benefits. The boorish nature of the soldier/citizen is tamed by the multiple communicative exchanges implied by commercial activities. Political and military violence is restrained by the development of self-interested rationality. Thanks to the tools of nomadic commerce, the international character of exchanges becomes an impediment to the abuse of power and contributes in this way to the security of goods and persons. The mobility of property, criticised by the republicans, becomes the main obstacle to the extension of despotism. This is the meaning of the praise of ‘doux commerce’ (‘gentle commerce’) in the Esprit des lois. Commerce eases and civilises the mores, and thus contributes to peace and to political freedom (Montesquieu 1989:XX, 1–2; XXI, 20). In this light, liberty is no longer defined as non-interference (of any power within spheres that do not concern it) but as non-domination (from any type of arbitrary threat). In a word it is the liberty of the moderns. The British Constitution and the Partisan System. In the context of this praise of commerce and finance, one must clarify the exemplary status of the British model. England is described by Montesquieu as a ‘nation where republic hides under the form of monarchy’ (Montesquieu 1989:V, 19). In the absence a specific principle, and in particular in the absence of honour and virtue, personal interest seems to be the only ruling passion. The question one must ask then is: what are the chances that a nation in which intermediary powers and the principle of honour have disappeared will remain free? From this point of view the analysis, the British constitution seems to owe much to the Neo-Harringtonian movement. Indeed, Bolingbroke has already suggested that the king, the Lords and the House of Commons fulfil separate political duties, and that this separation of powers creates checks and

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balances. Bolingbroke voices this opinion in the Craftsman: ‘In a constitution like ours, the safety of the whole depends on the balance of the parts and the balance of the parts on their mutual independency on one another’ (Bolingbroke 1735:211). This excerpt resulted in a polemical debate with a journalist from the London Journal.3 In the Spicilège, Montesquieu includes quotations from the Craftsman: ‘Government is good when laws naturally produce virtue and can even make bad men become good ministers.’ But the influence of Bolingbroke on Montesquieu ought not to be overestimated. While the author of the Esprit des lois accepts certain parts of Bolingbroke’s theory, he also distances himself from other important dimensions of it, and most notably, from the criticism of Walpole’s government on the basis of its corruption and lack of patriotic virtue. For Montesquieu, British political life functions properly because of the constitutional oppositions, relayed by partisan opposition. Indeed, within a representative system, the upheaval of passions and factions does not constitute a threat to freedom. Virtue and good morals are no longer necessary. The fear of corruption that was still present in his other writings such as Notes sur l’Angleterre is less pronounced in the Esprit des lois. For Montesquieu, corruption does not represent a real danger for the stability of the regime. When his English correspondent, Domville, questioned him about the length of time served by the average British government and the ill-fated influence of corruption, Montesquieu answered by merely reminding him of the spirit of freedom which exists among the people. Even if the magistrate and the representative are corrupt, the constitution will be preserved as long as the general public preserves its love of freedom. Montesquieu’s last words on the British commercial society are that ‘England, in the future, could well be the last standing nation in Europe with regard to freedom’ (‘le dernier soupir de la liberté sera poussé par un Anglais’) (Montesquieu 1955:1245). The triumph over corruption seems to be the main benefit of free and pluralistic societies—the freedom of the press plays a crucial role in this context—a type of society where anyone can pursue their activity and desired goals without being submitted to the arbitrary will of others or fearing the dictate of civil and religious authorities. Montesquieu’s criticism against the Neo-Harringtonian theses is clear. However, it does not enable us to conclude that Montesquieu subscribes completely to a purely liberal theory—one that sees the free nation as a type of polity in which the representative system exonerates the citizens from any sort of political participation. The liberal opposition between positive and negative liberty, between political autonomy and the enjoyment of rights without interference, must be transcended. This point is confirmed by the Esprit des lois (book XIX, chapter 27) which states that even if direct participation in the exercise of power is not necessary to the existence of liberty, a certain level of civic involvement and public awareness is needed. The citizens, within the state, are first and foremost concerned with the elaboration of laws: ‘As in a free state, every man, considered to have a free soul, should be governed by himself, the

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people as a body should have legislative power’ (Montesquieu 1989:XI, 6). However, their role is not restricted to this single dimension; their general awareness must be heightened and focused on any possible abuse of power. Politics, far from being forgotten by individuals absorbed by their private affairs, is still the main object of concern: If the climate had given a restless spirit and a broad view to many people in a country where the constitution gave everyone a part in the government along with political interests, one would talk much about politics; one would see people who spent their lives calculating about events, which, given the nature of things and the caprice of fortune (that is of men), are scarcely subject to calculation. In a free nation it often does not matter whether individuals reason well or badly; it suffices that they reason; from that comes the liberty ant protects them from the effects of these same reasonings. (Montesquieu 1989:XIX, 27) Montesquieu’s reasoning overlaps here with Bolingbroke’s analysis concerning the necessary zeal and passion for freedom that enabled the British people to maintain their government’s principles.4 The philosopher has already mentioned that the ‘100 eyes of Argus’ never completely closed, which, in England, fulfils an equivalent role to honour in the French monarchy. Furthermore, the balance of power between the political parties is also regulated by public awareness: ‘As these parties are made up of free men, if one party gained too much, the effect of liberty would be to lower it while the citizens would come and raise the other party like hands rescuing the body’ (Montesquieu 1989: XIX, 27). The British break from the humanist model does not entail a restriction of the individual’s participation in the public sphere. Once one goes beyond the limited definition of the common good as virtue, it becomes possible to find within the merchant societies the potential for a public spirit associated with rational self-interest The protection of private interest depends on the full exercise of one’s citizenship. Individualism transcends itself by focusing on the defence of free institutions. The partisan spirit contributes to an active citizenry, which preserves pluralism. The involvement in public life is not an obstacle to independence or an impediment to the enjoyment of freedom; as Quentin Skinner has argued, civic watchfulness can be essential to the protection of individual rights. Conclusion The singular position of Montesquieu’s political philosophy seems to raise the question: is not the opposition between republicanism and liberalism a largely artificial one? Today’s modern democracies seem to easily mix features of the two traditions: a representative political system with the development of commercial exchanges, the sovereignty of the people and the interdependence of the citizens, a strong public spirit and the growth of the private realm. Is this

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spirit republican or liberal? One could answer this question by painting a pure version of liberalism based on Locke’s theory (protection of individual natural rights). The supporters of the republican tradition would then reply in the style of J.G.A Pocock that Montesquieu’s defence of commerce and the general defence of a commercial society was carried forth in the social philosophy of the Enlightenment with the intellectual tools provided by humanism—which becomes then a ‘legal or merchant humanism’. The enigma of Montesquieu— claimed by the liberal as well as the republican tradition—could then be solved: the liberal defence of the merchant order is in fact a response to the questions raised by the language of humanism; by turning the virtues into manners— commerce being a vector of civilisation and not merely an economic tool—the humanist tradition concurs with the liberal camp by warranting individual freedom without being reduced to a theory of rights. This solution was not seen as satisfactory by the most celebrated of Montesquieu’s heirs, Constant and Tocqueville. Instead of going through the objections made by these liberal thinkers in opposition to the republican discourse, an altogether wiser and more fruitful approach would try to define ‘liberalism’ and ‘republicanism’ in less rigid terms. By not paying too much attention to the theoretical constructs produced by these concepts and by trying to reduce the inner antagonisms that exist within the two traditions, does one not run the risk of obscuring the debate rather than clarifying the key issues? Putting an end to the debates about the possible dissociation between republicanism and value monism, between civic and moral virtue or between community involvement and a unique conception of the good life, political philosophers should probably tackle other issues, notably issues touched upon by Montesquieu concerning not the liberty of commerce and luxury, but its justice. NOTES 1. The expression ‘civic humanism’ was most certainly fashioned by H.Baron in 1928 in German as Bürgerhumanismus, a term which Baron developed in opposition to Burkhart’s notion of ‘Renaissance’ in Baron 1966. 2. While awaiting the whole publication of the complete works of Montesquieu in the new edition of the Voltaire Foundation, all my references to Montesquieu will be to the Masson Edition (1950–1955). All other unspecified references and quotations are to the Spirit of the Laws (the Cambridge edition edited and translated by Cohler et al.). 3. Francis Osborne castigates the strict separation of powers: ‘There never was really any such thing, nor can any business be carried on or government subsist by several powers absolutely distinct and absolutely independent’ (London Journal: 4 July 1730); ‘lt is a mere utopia scheme to assert, that the business of a nation can be carried on, and government maintained, BY POWERS ABSOLUTELY DISTINCT AND ABSOLUTELY INDEPENDANT’ (London Journal: 19 September 1730).

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4. Bolingbroke state his idea clearly in this excerpt: ‘I assert, that liberty cannot be long secure, in any country, unless a perpetual jealousy watches over it, and a constant determined resolution protects it in the whole body of the nation… The hundred eyes of Argus were not always kept open; but they were never all closed. The whole body of a nation may be as jealous of their liberties, as a private man of his honor. They may be, at all times, animated by a generous resolution of defending their liberties at any risk; as he may, at all times, feel in his heart the courage of venturing his life to maintain his honor’ (Craftsman: 13 June 1730).

REFERENCES Baron, Hans. 1966. The Crisis of Early Italian Renaissance: Civic Humanism and Republican Liberty in the Age of Classicism and Tyranny. Princeton, NJ: Princeton University Press. Montesquieu, Charles de Secondat, baron de. 1950–1955. Oeuvres completes. Ed. André Masson. Paris: Les Éditions Nagel. 1989. The Spirit of the Laws. Ed. and Trans. A.M.Cohler, B.C.Miller & H.S.Stone. Cambridge: Cambridge University Press. Pocock, J.G.A. 1975. The Machiavellian Moment: Florentine Political Theory and the Atlantic Republican Tradition. Princeton, NJ: Princeton University Press.

5 The Twilight of the Republic? JEAN-FABIEN SPITZ

French political theorists, philosophers and historians seem recently to have been gravitating toward the idea that French national political culture inherited from the revolution is an exception to mainstream Western political thought because its gives paramount importance to two intertwined tenets. First, there can be no individual freedom short of some sort of deep seated equality that goes well beyond equality of rights to a kind of equality of opportunity and resources (Millon-Delsol 2002; Bouretz 2000). The second tenet is that the proper function of the state is to promote this kind of equality—a fair equality of opportunity, in Rawlsian language—without which individuals would be exposed to various forms of private domination due to inequality in wealth, influence, access to education and proximity to power. The first way to accomplish this is to operate—through progressive taxation— publicly funded systems of education and healthcare which provide a form of national solidarity between the different sections of the population. The second way is to create social rights where the least advantaged members of the community can alleviate at least some of the most severe consequences of their personal dependence and lack of autonomy. Unions rights are an example. Taken together, these two tenets combine into a law-centred vision of politics: in order to be free, citizens must be equally submitted to the law set by the general will of the community, so that, in a process which produces civil liberty for individuals, the state is allotted the central role of preventing private domination to arise, making sure that no important asymmetries can develop, placing one individual under the dependence of another. Providing knowledge and education to all is one of the state’s essential missions, but it is not the only one, since some kind of equality of rights and equality of power must also be placed at the centre of the republican public agency’s agenda. In such a political culture the modern predicament—how to connect the authority of the state and the freedom of the citizen—is not approached from the standpoint of individual rights. The roots of modern liberty are not supposed to lie in the tools individuals may use in order to defend themselves against the state, but in a vision of democracy which permits, as Philip Pettit puts it, the state to track the interests and opinions of the citizens themselves (Pettit 1996: ch.6). Democracy and the general will, not rights, are the keys to liberty so that,

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paradoxically enough, freedom is not freedom from public intervention but freedom by public intervention. Along with this egalitarian drive, French political culture is also permeated with a highly idiosyncratic conception of democracy. According to this conception, democracy should be defined as a kind of regime where the general interest—primarily conceived in terms of equality and in terms of liberty as nondomination—should always prevail over particular interests. This means that, in principle, particular and private interests cannot claim any right to satisfaction, since they possess such a right only insofar as the general will judges it compatible with the common interest. This way of being suspicious toward particularity of interest gives birth, in our political culture, to a magnification of the state and the public sphere as the embodiment and incarnation of the general interest. Whereas Anglo-American culture is prone to think that whatever is private is legitimate and that whatever is public needs apology and justification, French political culture tends to think the other way around: whatever is private is a priori illegitimate and suspected of tending towards domination, while whatever comes from the state is too easily seen as conducing to the general interest and, as such, as invested with a priori legitimacy. A crowning idea in this republican conception is that public institutions can be legitimate only if they endeavour to promote as far as possible this kind of equality. It is only then that such a thing as a res publica can exist and that citizens may come to see the political institutions as truly theirs and deserving respect. When public institutions promote equality, it is evident that they are not instruments for the powerful to maintain their domination, but rather guarantee freedom for all by providing the largest possible amount of primary goods in order that citizens can fulfil their ends. Seen from an Anglo-Saxon perspective, this French republican political tradition may seem very odd indeed, since it can be looked upon as inimical to the central values of any free society: individual independence on one hand, and, on the other hand, that the autonomy of civil and contractual associations from state interference not be required for the protection of persons and property. Many features in the French revolutionary and republican political tradition seem to be unsuitable for the promotion of these values. On the contrary, some of them can very easily be seen as long-standing resurgences of some deep absolutist and authoritarian past which France could not manage to overcome, hindering her complete admission into the Western liberal family. More particularly, French political culture seems to suggest that it makes no sense to speak of freedom from state intervention since freedom is literally assimilated to a form of reciprocity and non-domination in social and political relationships, which is produced and warranted by the state and cannot obtain but by public means: freedom is defined as a kind of subjection to egalitarian and democratically enforced laws. AngloAmericans have never been able to understand how such a paradox—which, in their eyes, culminates in the blatant absurdity according to which one could be ‘forced to be free’ —could ever have been articulated and put forth as a serious

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political proposition. Far from these stunning and dangerous paradoxes, AngloAmerican political thought seems to stick to a few simple ideas which must be reasserted, especially where the influence of socialist thought has mechanically pushed democratic states toward excesses in big government, welfarism and state intervention. The order of the day is now individual autonomy, downsizing the state-run economy, and a new power for individuals to meet as few obstacles as possible to their desire for free enterprise. Civil society, conceived as a free web of private associations, must be given pride of place in this renovated liberal approach, which questions the very idea that law could have any positive function in the production and maintenance of individual freedom. Freedom is freedom from the law, not freedom by the law. Of course law and political institutions are central in any liberal society, but they are supposed to protect and enforce what belongs to men by nature, i.e. the right to appropriate and to be left alone when they do not wrong their fellow citizens; they are not supposed to be the fons et origo of what it means to be free. Parallel to this revaluation of the role of civil society and individual initiative, critics of the French republican model tend to say that democracy should be conceived as a market where private and particular interests try to get the largest advantages for themselves, while representatives tend to be viewed as mere spokesmen for local or partial interests, whose function is to defend them in the public forum. Democratic politics are not so much the search for any kind of common good conceived in terms of equality and legitimacy, than a kind of permanent negotiation: the political stand of the society as a whole looks like a seismograph registering from day to day the respective weight of the different factions as well as their ability to promote their own interest and to gain the best compromise for their members. Lobbies and pressure groups are the main actors of modern democratic life, which is now rapidly freeing itself from the twin myths of general interest and general will that gave the an overarching, but ill deserved prestige. Of course, such a disenchanted form of political life needs some specific safeguards, and this is where the culture of rights comes into the picture. Public life is so marred by private interests and factions that the majoritarian will tends to reflect at best a coalition of particular interests and prejudices. This is precisely why individuals need some rights in order to trump the majority when it wants to have things its way at the expense of minorities. The aim of this essay is to assess the validity of this criticism of the so-called French conception of republican politics. The main thesis defended here is that this criticism cannot pretend to illustrate an alternate Anglo-Saxon conception of politics, for though it seems to describe the way England and the United States have been governed since the beginning of the 1980s, it is entirely foreign to the main current of Anglo-American philosophical liberalism. As Will Kymlicka has emphasised, political conceptions now fashionable among the governing circles in America are a mix of social Darwinism and conservatism which cannot validly amount to a liberal view of society and politics, since it staunchly rejects

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any idea of compensating for the effects of social origin and pure chance on individuals lives (Kymlicka 1998). Furthermore, the very conception of democracy which is asserted in this criticism is not a democratic conception, far less give birth to a regime of political freedom. Where arbitrary differences are not regulated and compensated by public institutions, and where civil society becomes a closed field where unjustified differences and private forms of domination can freely flourish under the protective umbrella of a minimal state, democracy fades along with legitimacy. Democracy is impossible where the least advantaged section of society is unable to see that public institutions are merely tools in the hands of those who dominate them. The basic structure of society can be legitimate only if it does something more than simply regulate the conflicts between various particular interests, blowing hot air from time to time in favour of the most actively protesting interests in order to escape the breaking point. When politics is nothing more than the art of negotiating compromises, it is no longer the rule of right but the rule of might. To suppose that public institutions have no compensating or equalising function is to suppose that all the equality needed for anyone to be able to live an autonomous life is simply given and that the civil sphere is just a place for free interactions between individuals with equal power or, at least, with all the powers each of them deserves to have in relation to his own efforts and his personal qualities. But just the reverse seem to be true: in the democratic societies of the beginning of the twenty-first century, freedom is challenged by unjustified differences which cannot be proven to function for mutual advantage, so that liberty’s main enemy is not only the state but also the extraordinary concentrations of private wealth and power which constrain those who are not members of the wealthy inner circle to forms of behaviour most profitable for the upper class. The dismantling of the welfare state and the transformation of civil society, where individuals enjoy their personal rights against the state, empty democracy of its egalitarian content. Private domination, through wealth and education, becomes a normal phenomenon. Criticising the French republican model of politics for its supposed illiberalism is one of the ways through which this enterprise is progressing in contemporary political culture; suggesting that the tradition of Anglo-American philosophical liberalism from Locke to Rawls should be understood as in harmony with this enterprise is another. This suggestion is highly questionable, since personal autonomy depends on a just share of social resources, while liberty requires that others have a duty to respect it. But, in turn, such a duty can be grounded only on an equal of access to resources which makes autonomy effective or—which amounts to the same thing —on vigorous and continuous public intervention which ensures that no citizen is subjected to private domination or is prevented from enjoying freedom as nondomination. Thus, reflection on the role of public institutions in protecting individuals against private domination and the effects of wide and unjustified inequalities of

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resources is part of the modern conception of freedom. Likewise, the reflection on the means public institutions must resort to in order to be able to play this protective role is also a part of the modern conception of freedom. Contrary to what seems to be a widely diffused and accepted idea, the reflection about the nature of democracy—how to keep the law and public institutions in line with citizens’ interest in non-domination—is essentially connected to the nature of freedom. Democracy involves the means and procedures by which public institutions contribute to individuals’ defence against domination and discrimination flowing from inequality. Since Benjamin Constant, many self-proclaimed liberal writers have suggested that the preoccupation about equality is at bottom a preoccupation about power. These same writers also suggest that these two values are mutually exclusive, and that the egalitarian aspiration for equal conditions of the exercise of liberty is an outworn archaism reflecting the lingering question: who rules whom. They suggest that this question should be abandoned for the sake of another one: how free are we, that is, how limited is the power which governs us and what are the rights we are able to exercise in order to prevent that power from exceeding its own limits? Against this, the French republican tradition suggests that equality and liberty are deeply connected one with the other so that, in Rousseau’s words, ‘liberty without equality is a true contradiction’ and that the main spokesmen for the liberal tradition today in the Anglo-Saxon philosophy seem to agree. Taking this into account we might make the three suggestions. First, the French idea of freedom is a specifically modern way of thinking about the conditions of individual freedom. Its law-centred, egalitarian bias is not an awkward feature in a liberal setting and it is not an outworn remnant of some soon-to-be-forgotten, distant, absolutist past. It has to do with a republican conception which stresses liberty as non-domination, and which says that liberty does have two different enemies: one is the non-democratic state which concentrates power in the hands of a few and which is itself a dominating institution; the other is private power and privilege and the numerous abuses they can perpetrate against equality. Second, we should be suspicious of the dichotomy between an Anglo-Saxon model of politics centred around the autonomy of civil society from public intervention and the autonomy of rights-bearing individuals from state interference, and a supposedly French model involving a centralised public endeavour which attempts to master private domination and inequality. Mastering private domination through law and trying to regulate and compensate unjustified inequalities through public institutions in order to create a fair equality of opportunity is not specifically French, since it is the very heart of liberal political philosophy. Third, this republican conception of politics needs to be defended against those who try to persuade us that there is no place in the liberal intellectual universe for a publicly managed endeavour to control inequalities and private domination. The role of modern democracies goes beyond making civil society as

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independent as possible of state interference and endowing individuals with rights protecting personal freedom. In order to substantiate this defence, I would like to offer three different arguments, two philosophical and one historical. The first philosophical argument bears on the definition of democracy inherent in the critique of the French model. I attempt to show that, would such a definition prevail, it would mean a very serious impoverishment of the liberal political tradition. The second argument examines the meaning of freedom and questions the way the critique sketched above approaches the relationship between freedom and equality. Instead, I argue that liberty and equality are interdependent concepts. Since our aim is to throw into doubt the very dichotomy between a supposed Anglo-Saxon model and a French one, it seems appropriate to suggest that contemporary English-speaking liberal philosophy is a major source for both of these arguments. The implication is that that they are not only French, but truly liberal arguments whose liberal credentials have been dissimulated by what passes or tends to pass today for a liberal philosophy of politics and society. The third argument tries to substantiate the following idea. It may be true—as many critics have suggested since Tocqueville—that the conditions in which the French republican model developed do amount to a very specific historical context which has been absent from English and American history, including a deeply resilient aristocratic society that caused the French people to succumb to an egalitarian pathology. But it is not true that, today, this fact should prevent anyone from taking this conception seriously (Palmer 1958:266–282). These conditions enabled French political culture to unearth what has become a very important part of the reflection on modern freedom: the irreplaceable function of law and public institutions in the production of individual freedom. Let us review the argument about the definition of democracy. According to the critics of the French model, there should be two different meanings of democracy. One is the constitutional meaning which says that democracy is a regime where individuals enjoy some rights they may use in order to trump the collective will when it appears that this will is tainted by prejudices which endanger their capacity to be morally independent and equally respected persons. The second meaning is a majoritarian one, which is supposed to say that democratic individuals can enjoy no rights against the law since all the rights they have are conferred by the law, so that the democratic character of the state— the fact that the people do govern themselves—appears to be the only resource individuals might resort to in order to protect themselves from oppression. According to the critics, this second conception is based upon a deeply misleading confusion between liberty and power, so that there is no reason to worry if we see that contemporary democracies are eliminating it, moving, without much more ado, towards the first one. Such an evolution is all the more welcome since, in modern societies, it becomes less of a possibility that laws track the interests and opinions of the whole citizenry; laws are nothing more than compromises, they no longer express any kind of common interest but

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merely reflect the way different lobbies and private factions do negotiate their respective shares in the distribution of the advantages produced by social cooperation. Since laws only express bunches of particular interests, individuals urgently need rights against them. Now the very distinction between a constitutional and a majoritarian account of democracy only make sense if we make a further distinction between two different meanings of constitutional democracy. According to the first meaning— forcefully presented by Bruce Ackerman (1991)— constitutional democracy means that there is a possibility of appealing to the will of the people, as represented by the legislative, and to the people in its constituent capacity, in order to receive protection from the will of private citizens exclusively preoccupied by their own interests. The tendency to view politics as an occasion for compromise between particular interests must be mitigated by the will of mobilised citizens engaging in questions of principle, whose solution is crucial for the community’s future. This kind of constitutional democracy aims at the preservation of the sovereign people’s will during periods of normal politics when the citizens do not raise fundamental questions and pay only a soft and diverted attention to the political process; during these periods, the sovereign people needs constitutional devices—such as the Supreme Court in the United States—which amount to a power to oppose the legislative will of their representatives. In such an approach, the function of judicial review is only to verify the compatibility between day to day legislation enacted by representative assemblies and the constitutional principles which the people have accepted the last time they have been involved in constitutional politics. A second task of the Supreme Court is to synthesise the different principles put forth by the people in their constituent capacity and to decide, after the most recent one, how to reorganise the constitutional heritage so as make it into a coherent whole. This view of constitutional democracy does not resort to independent rights based either in nature or reason. What can trump the present will of the legislative is not some philosophical proposition about the individual rights, but a political proposition about what orders the people, in their constituent capacity, want to give to their representatives in Congress. Seen in this light, the practice of checking the legislature by resorting to rights is only a reminder of a far-reaching truth: those who govern, be they in charge of a legislative or an executive function, are not the people themselves, so they cannot claim sovereignty. This means that the political process is not necessarily an art of negotiating compromises between particular interests; while this is what politics is about most of the time, it remains possible (and necessary for the future of democracy) that the people themselves turn their attention to questions of principles and that, at least in exceptional moments, they decide how their rights should be interpreted and what rule of common existence they want to settle their collective existence upon. So, it is not true that politics is necessarily marred by particular interests, and that these particular interests are the only topic discussed and

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negotiated in the political process, requiring individual rights in order to protect against the possible results of such a highly non-principled process. In this version of constitutional democracy, there is no contradiction between rights and the general will, since the rights citizens have are only those which flow from the principles they have asserted in their constituent capacity. There is no tendency towards the idea that rights should be taken as intangible trumps in order to restrain the empire of collective decisions on individuals since it is openly admitted that individuals do not have any rights except those that they themselves— not their representatives—have enacted through law. The other version of constitutional democracy is the one put forth by Ronald Dworkin. It amounts to a definition of democracy which refers to the very content of the decisions taken and not to the forms or procedures according to which they have been taken: what deserves to be called democratic is a kind of decision which shows equal respect for all citizens, which takes into account the right of all citizens to be treated as an equal and to have the conditions of their moral independence respected (Dworkin 1996: ch. l). Constitutional democracy is thus a kind of political regime in which non-discrimination, or the refusal to consider any individual to be less valuable than others, is the central point; according to Dworkin, it belongs to judges, armed with jurisprudence and natural philosophical reason, to decide what acts of ordinary legislation are compatible with such a right to equality of respect, and to enforce, as far as possible, the best possible interpretation of this fundamental egalitarian principle. We are not concerned here with any extended discussion of the comparative strengths or weaknesses of these two competing conceptions of constitutionalism. Let us only notice that the critic of the French republican model can be associated with the idea that contemporary democracy is necessarily progressing toward the Dworkinian version. Such an option is dictated by the fact that, in the modern world, it has become impossible to have citizens, and that politics is now unable to address questions of principle. Since questions of what rights we should have do not fit in a political process exclusively made up of compromises between particular interests, and since principled and constitutional politics irremediably belongs to the past, it is time to have judges controlling the whole thing and saying what rights are required by the democratic claim of equality of respect. This rebuttal of the very idea of the general will cannot be accepted at face value for several reasons. In the first place, it is not altogether coherent, as Jeremy Waldron has shown, to claim on the one hand that citizens in modern democracies should have rights, and to claim on the other hand that they are unable to make collective decisions from the point of view of their common interest (Waldron 1999a, b). Rights can only be legitimately claimed if they are indispensable for the exercise of some moral and political responsibility, so that citizens must have these rights in order to be autonomous and to lead a rational, responsible life according to the choices they have made for themselves. But if modern citizens are unable to respond to

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anything but their own private interests, if they are supposed to be unable to address themselves to questions of principle and to shape their lives accordingly, what is the point of having rights? Rights are necessary not in order to enable people to get what they want, but in order to enable them act as citizens in a community which makes sensible and rational choices. In the second place, it could be suggested that justice and rights are as much the object of reasonable disagreement as our conceptions of the good and of human excellence. If such is the case, why should judges who are supposed to be the very embodiment of philosophical reason be allowed to decide questions of principle by themselves? To proceed this way just amounts to giving a blatant and unjustified advantage to one competing conception of what rights should be, pretending to settle a major disagreement without resorting to a democratic procedure whose formal character could legitimise the obligation to comply with its outcomes. One of the reasons Dworkin puts forth for not making the people themselves act as the umpire in questions of principles—and for trusting the judiciary instead—is that judges are far less susceptible to err in questions of that kind because they are far less exposed to the pressure of factions, particular interests and demagogy which pervade the sphere of democratic politics. But this answer can be upheld only if one wants to hide the less than respectable part played by the judiciary during several periods of American history. The decisions in the Dred Scott or Lochner cases might be enough to testify that the judiciary is not free from error and prejudice. And again, if the citizens themselves are so deeply distrusted in their capacity to address and answer questions of principle, what’s the point of conferring them any rights? (see for instance Tushnet 1999; Sunstein 1996, 1999). A third reason for doubting the validity of the Dworkinian conception of constitutional democracy is that it is risky. As many critics have shown, it would be adventurous to believe that the judiciary will suffice to defend individual rights. On the contrary, it seems that judicial activism has the effect of turning the community’s attention away from questions of principle, causing a loss in the degree of awareness, in the mind of the common citizen, of why anyone should have to defend his rights. Judicial activism in the Dworkinian account can thus create a false security grounded on the idea that some professional right-watchers are specifically appointed in order to keep the constitution alive and to inspect legislation so as to prevent any encroachment on rights. At bottom, our first argument amounts to a very simple suggestion: should it become true that there are no citizens in the modern world, that people are unable to address questions of principle, that politics is only an art of negotiating compromises, that particular interests are the only possible protagonists’ in the political field, democracy’s future would be very grim indeed. The second philosophical argument bears on the nature of the connection between equality and liberty. It purports to show that freedom, as far as it is taken as a normative value and is thought of as the major value to be realised in a liberal society, cannot be separated from an equality of resources or from the

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intervention of law and public institutions. As Ronald Dworkin has shown in a series of papers dating back the 1980s (Dworkin 2000), the kind of freedom which stands in dramatic opposition with equality in libertarian discourse is only a descriptive concept and it can refer only to what individuals are physically or materially able to do. When freedom is taken in this sense, it is obvious that any kind of public action in favour of equality curtails liberty. But the question is whether such a descriptive liberty really does possess a normative value and whether a liberal society must protect liberty in this sense. Dworkin’s answer is negative, since it can be shown that freedom as a normative concept is necessarily connected with the idea of what an individual is able to do with a just share of social resources. Briefly stated, this means that normative liberty cannot be defined without alluding to that just share, and that what deserves to be protected and promoted in a liberal society is precisely this freedom in a normative sense. What individuals are able to do with an unjust share— that is, with a share of social resources which is greater than the one they would have in an egalitarian distribution—is no liberty at all, or rather, it is liberty in a descriptive and not normative sense. If this is true, there is no liberty short of equality of resources in the Dworkinian sense. Furthermore, no set of principles of social cooperation can claim to be liberal if it does not purport to make significant progress toward such a kind of equality of resources. In his contribution to the discussions which have followed the publication of Michael Sandel’s Democracy’s Discontent, Will Kymlicka suggested in a similar way that any proposition which presents equality as a value which is not necessarily integrated in the definition of a free society would be unable to qualify as a liberal one. This would inevitably lead to what appears to be a paradox in the liberal intellectual universe: that the lives of the citizens do not have equal value or importance, and that a liberal society should not serve its citizens equally, since it can easily tolerate that some of them have—for reasons not connected with their choices or the exercise of their responsibility—many more resources than others in order to pursue their aims. How can we claim that liberty is an important value without claiming at the same time that it is equally important for all to be free? And how can we claim that it is important for all to be free if we do not claim at the same time that inequalities of resources flowing from arbitrary causes are unjust and must be compensated? According to Kymlicka, any political proposition which would thus refuse to say that the lives of all citizens have equal importance would clearly be non-liberal and it would gravitate toward some form of conservative social Darwinism. Both Kymlicka and Dworkin thus argue that the intervention of public institutions would be an obstacle to individual freedom only in a context in which equality of resources could be actually realised, so that, by the very hypothesis, no public action in favour of such an equality can be considered as preventing individuals to be free. These arguments have been put forth in several forms by contemporary liberal egalitarians, and the question is which of the two options—the French law- and state-centred republican model, or the so called Anglo-Saxon model supposedly

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based on individual liberty and an independent civil society—is more faithful to the liberal project of liberating the individual, and to the fundamental principles of liberal political philosophy according to which individuals should equally and indiscriminately be free to choose and to revise the values and aims shaping their lives, whatever their religion, gender, colour of skin, or personal opinions? If the very heart of this liberal political approach is the idea that society and the state must not make any value judgements on what individuals are nor on what they think, and if the concrete form of this idea is that public institutions must be absolutely impartial and non-discriminating between citizens, what form of social and political regulation is best able to answer to these claims and to fulfil the promises inherent to it? I believe that the kind of society which agrees with this liberal approach is obviously a society in which the state and public institutions are willing to promote some redistribution of resources and to make some progress toward a more robust equality so that all citizens might be offered some fair equality of opportunity. If an action meant to guarantee that equality of rights does not correspond to an unjustified and arbitrary inequality of fact, no society can claim to be faithful to the primary liberal inspiration where no individual has more value than any other. No individual can ever justly claim that he deserves to have more resources than others in order to conduct his life and pursue his projects and personal aims. As for the historical argument, it can be formulated in a very simple way. If we go back to pre-revolutionary France, we can see that this period is characterised as a conflict between two different conceptions of power and liberty (Van Kley 1994a). On the one hand, we find what has been called the thèse parlementaire, tainted with a spirit of Anglophilia. This conception approaches the problem of freedom from the point the view of an opposition between civil society and absolute monarchy. Its main point is that liberty can be grounded on a kind of ancient constitution which gives an important place to intermediary powers independent of the monarchy. Those intermediary powers—the parlements, but also the church, provincial and municipal privileged bodies, guilds, aristocratic families— are necessary in order to check the power of the king and to constrain him to compromises, so that such a conception stresses the importance of what Tocqueville would call ‘aristocratic liberty’, a kind of liberty attached to the privileges of constituted bodies able to resist the various encroachments and despotic enterprises of the crown and its ministers. The reference here is to the English mixed constitution supposed to be a necessary cooperation between crown, lords and commons considered as independent estates not subordinated to each other, thus providing a system of checks and balances avant la lettre. This political point of view reaches the peak of its influence in the 1770s when, in the name of the king, Chancelier Maupéou tried to suppress the parlements and to end the right they pretended to have to take part in the legislation of the kingdom (Echevarria 1985). This amounted to a very impressive endeavour to modernise French political society by putting an end to privileges and to the braking

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function of some intermediate bodies which, in the eyes of the king’s minister, used their self proclaimed political role to promote and protect their own particular interests. It is worth noticing here that what the parlements did speak for is not liberty in the abstract sense but liberties in the plural, which mean privileged status and the right (obtained by history or custom) to be treated in a specific way and to escape the common lot of other citizens (in fiscal matters mainly). What they were fighting for was a hierarchical society composed of various bodies with unequal rights. Being independent from power meant, under this conception, being able to keep a privileged and self-proclaimed juridical status, to escape an egalitarian law and, of course, to use those very privileges in order to dominate those who did not possess any. This is the point where those who claim an independence from power can be seen as claiming the right to exercise power. At the other end of the spectrum, there is what has been called thèse royale. According to this second conception, the centralised monarchical power should be used in order to dissolve privileges, to submit each and every citizen to the same legal rule, and thus to create a renovated society made of citizens with equal rights and equal duties. In such a conception, the question of freedom is not seen from the perspective of an opposition between monarchy and civil society and liberty is not defined as a kind of independence from political power (Linguet 1770, 1774). On the contrary, what is seen as the main obstacle to common freedom is the difference in juridical status between privileged and nonprivileged, between the constituted bodies enjoying particular and specific rights and those who lack any privilege. This difference allows the privileged orders both to escape common duties and to dominate, exercising a kind of non-publicly authorised power. In this context, the centralised monarchical power is not the enemy of freedom but its main ally, since it is the only power able to repel privilege and to suppress it in order to create a society of equal citizens. The confrontation between these two competing conceptions of liberty has some very paradoxical effects. Followers of the thèse parlementaire constantly refer to ‘the people’, and to the rights of the people not to be oppressed by the ministerial despotism of the monarchy. But what they have in mind is not the people made up of free and autonomous individuals, but the people conceived as a society of orders, composed of different groups invested with different rights and trying to defend these rights as the instruments of their liberty, that is, of their independence from the monarchy. In this intellectual context, the people in its modern sense, the constituent people of Locke and Rousseau, simply does not exist. The thèse parlementaire is not associated with a political conception where the state of nature and the social contract would play a significant role in explaining the origin of rights and power, but with an historical conception grounded on the notions of custom and antiquity. So, the party opposed to monarchy and claiming some independence from power is unable to draw upon the modern concept of a people.

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On the other hand, the partisans of the thèse royale also refer to the people but, for them, the word, is invested with a very different meaning. The people is what they want to create, what in their view will be the result of the king’s victory over the privileged orders. There, when the monarchy will have won its battle against those who claim to enjoy a special status and to escape the common legal lot, there will be a people worthy of the name, which will take the place of this oppressive body of sundry pieces with no common status. The paradox is that where there is opposition to monarchy, there is no people, and that where the concept of a people in the modern sense is at hand (in the thèse royale) there is no possibility for this people conceived as claiming any rights against an encroaching central political power, since it is clear that such a people can exist only as the result of some deliberate action of this very centralised power. So the situation prevailing in the pre-revolutionary period in France is very different from the social, political and intellectual context in which the English speaking world launched its own reflection on the conditions of modern freedom. In England, the society of orders has progressively dissolved itself and, in America, it simply has never existed so that, for better of for worse, the question of freedom from start has been a question linked to the nature of the relationship between free individual and the power they erect over themselves in order to settle their mutual conflicts. This is why, in this context, the question is always how to have a power without having a master, how to be both able to protect and unable to oppress. It is possible for individual rights and the independence of civil society to offer a solution to this problem since individuals are seen as invested with intangible rights which make them equal outside any political society, and since political society’s function is only to defend and protect these rights. Civil society made up of individual right-bearers freely associating one with another can be seen as the main barrier against an ever encroaching political power since such a civil society can be seen as given by nature, as existing outside any political form and independently from it. But no so in the French context. A civil society of equal individual rightbearers cannot be seen as something given, since what is given by history and custom is a society of orders with the resulting privileges and private domination which go with it, meaning that civil society is not the solution but the very problem to be solved: how to dissolve orders, replacing them with a society of equal individual right-bearers? How to put and end to this kind of non-collective life where the privileged can exercise domination over the non-privileged? How to suppress private power and replace it by the rule of law? The answer is obvious: such a revolution is possible only through centralised legislation and a very potent state. But, in turn, this answer is paradoxical, since it amounts to saying that far from being true that free individuals create the state they need in order to protect the rights nature has given them, law and a central public agency create free individuals as right-bearers, and that the rights they have are not so much used in

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order to defend themselves against the encroachments of the law, but conferred on them by law in order to defend themselves against the would be oppressors and dominators amongst their fellow citizens. Maybe there is some occasion for regret in the fact that the French reflection on freedom has taken this very bizarre turn for historical reasons, but maybe not, for one obvious thing should emerge from this historical argument: no one can seriously claim that inequality, private power and private domination are not enemies to individual freedom; and no one can seriously claim that equality is simply given and that the only real problem is how to defend equal individuals against the political device they place over themselves. There is obviously another problem: how to prevent freely acting individuals from becoming unequal to the point where private power—which means a power not consented to— would be. regain its status. How to prevent pure chance creating difference between individuals which would allow some of them to dominate the others? For such a problem, law and centralised public agency are the inescapable answer, and that is precisely what follows from the highly particular origins of the French republican conception. REFERENCES Ackerman, B. 1991. We the People, Vol. 1 Foundations. Cambridge, MA: Harvard University Press. Allen, A.L. & M.C.Regan, eds. 1998. Debating Democracy’s Discontent, Essays on American Politics, Law and Public Philosophy. Oxford: Oxford University Press. Bouretz, P. 2000. La république et l’universel. Paris: Gallimard. Dworkin, R. 1996. Freedom’s Law, The Moral Reading of the American Constitution. Cambridge, MA: Harvard University Press. 2000. Sovereign Virtue, The Theory and Practice of Equality. Cambridge, MA: Harvard University Press. Echevarria, D. 1985. The Maupeou Revolution, A Study in the History of Libertarianism, France 1770–1774. Baton Rouge, LA: Louisiana State University Press. Kymlicka, W. 1998. ‘Liberal egalitarianism and civic republicanism, friends or enemies?’. Allen & Regan 1998:131–48. Linguet, S. 1770. Lettres sur la théorie des lois civiles. Amsterdam. 1774. Du plus heureux gouvernement ou parallèle des constitutions politiques de l’Asie avec celles de l’Europe. London. Million-Delsol, C. 2002. La République, une question française. Paris: Presses Universitaires de France. Palmer, R.R. 1958. The Age of Democratic Revolution. Princeton, NJ: Princeton University Press. Pettit, P. 1996. Republicanism, A Theory of Freedom and Government. Oxford: Oxford University Press. Sunstein, Cass.R. Legal Reasoning and Political Conflict. Oxford: Oxford University Press.

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1999. One Case at a Time, Judicial Minimalism on the Supreme Court. Cambridge, MA: Harvard University Press. Tushnet, M. 1999. Taking the Constitution away from the Courts. Princeton: Princeton University Press. Van Kley, D. 1994a. ‘From the lessons of French history to truths for all times and all people: the historical origins of an anti historical declaration’. Van Kley 1994b: 72–113. ed.1994b. The French Idea of Freedom. The Old Regime and the Declaration of Rights of 1789. Stanford, CA: Stanford University Press. Waldron, J. 1999a. The Dignity of Legislation. Cambridge: Cambridge University Press. 1999b. Law and Disagreement. Oxford: Oxford University Press.

6 Discourse Theory and Republican Freedom PHILIP PETTIT

Common to all conceptions of freedom in human agents is the idea that freedom is reduced or lost when certain hindrances are put in the way of choice. What distinguishes such conceptions from one another is the fact that different hindrances are taken as relevant by different approaches. Some approaches think that any costs imposed on choice, no matter by what instrumentality, are freedomrelevant hindrances; others that only costs that actually block choice are relevant; others that only costs imposed intentionally by other people are relevant; and so on. I am concerned in this essay with the differences that divide the liberal conception of freedom as non-interference—this is a conception endorsed in at least some streams of liberalism—and the republican conception of freedom as non-domination (Braithwaite & Pettit 1990; Pettit 1997).1 I want to argue that whereas the standard image of the human subject as a relatively rational centre of belief, desire and action gives us no firm ground for ruling either way on how those differences should be resolved, a second, more specific image of the human being— one that adds some further specifications—rules in favour of the republican position. This image casts the human agent not only as a centre of belief and desire and action—as a decision-theoretic subject— but also as a creature which has the capacity to reason about beliefs and desires and actions in discourse with others; broadly speaking, it casts the human being in the manner of discourse theory (Habermas 1984–1989, 1995; Pettit 2001a). The essay is in three sections. In the first I give an overview of the two crucial issues that divide the two conceptions of freedom. In the second I look at the two images of agency mentioned which I describe, perhaps somewhat pompously, as the decision-theoretic and the discourse-theoretic. And then in the third I argue that while the differences on these issues are left unresolved under the generic, decision-theoretic image, they are resolved in favour of the republican under the discourse-theoretic. I see this as a powerful argument for the republican conception, since that image clearly offers a faithful picture of human nature.

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The Dividing Issues Overview Suppose that someone has a choice between different options, A, B and C, in situation S. What are the different ways, intuitively, in which that choice might be hindered, with the costs of one or more options being raised? One source of difference among potential hindrances is that they may vary in intensity between those, at one end of a spectrum, that make the choice of certain options impossible and those at the other end that make it only a little more difficult. Another is that the options the hindrances affect may be more or less important to the agent, by whatever metric of importance is thought relevant; they may impinge on things the agent cares little about, for example, or on things that matter greatly by the agent’s lights. And a third is that if we distinguish out as finely as possible the different costs that a given hindrance imposes on an option, then we will find that each sort of cost has coordinates on at least three dimensions: it will be real or experiential in its essential character, depending on whether it is physically obstructive or psychologically inhibiting; it will be current or prospective, depending on whether it attends the action or comes later; and it will be harmful in absolute or just in relative terms, depending on whether it makes some option more costly than it was or just makes rival options more attractive. Thus, hindrances can vary, not just in intensity and importance, but also in the sorts of costs that they impose. These modes of difference are all in a certain sense intrinsic to the hindrances that are put in the way of choice. A second mode of difference stems, not from what the hindrances are like in themselves, but from the instrumentality whereby they are imposed, and this mode of difference will be of more concern to us here. While there are lots of interesting issues about what intrinsic modes of variation in hindrances are relevant to whether freedom is reduced, the dividing issues under discussion in this essay both relate to the instrumentality by which hindrances materialise. There are a number of ways in which the books might be kept on this mode of variation but I think it is probably most useful to distinguish the available instrumentalities into three broad categories: situational, psychological and interpersonal. Whenever hindrances are put in the way of choice, they come of costs that are imposed by the agent’s situation or psychology or interpersonal status. Situational costs derive from either of two broad sources, respectively material and social. Social costs are those that a person faces as a result of the operation of economic, cultural and related processes, when those processes are not intentionally controlled by anyone who is intent on imposing such costs on the person: so far as the costs are in that sense situational. Thus the market in which producers are situated, if it ensures competitive pricing, will impose costs on anyone who tries to sell above that price. And for each of those individuals the

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FIGURE 1 VARIATIONS IN THE HINDRANCE OF CHOICE

precise way in which they are situated in that market—their market power—will carry its own associated constraints and costs. The physical, situational costs that such individuals face will often be dictated by external factors like the fertility of the land, the hospitality of the weather, the cleanliness of the water, as well as their own particular level of access to those resources. But they may also be associated with the state of their own bodies: a person’s health or strength or sheer intelligence will have just as great an impact on how costly various options will be as factors of a more external sort. The second instrumentality whereby various options may incur costs for an agent is their own psychology. Let a person have a morbid fear of doing something and it will be that much more costly for them to attempt it. Or let them find it difficult to maintain resoluteness across time—let them be weak of will— and the costs will accordingly increase. Or let them be compulsively or obsessively attracted to a certain sort of option in any choice set they confront— say, the option of taking the drug or indulging the gambling habit—and again the costs associated with other options will be that much greater. Just as the person’s choices may be hindered by factors in their material and social situation, so clearly they may be hindered by factors of this kind in their own personality. The third and last instrumentality whereby costs may be imposed on options, and choices thereby hindered, is interpersonal in character. This is perhaps the most salient of all, for the very paradigms of choice-hindering costs are associated with interpersonal relations. They include the act whereby another individual or group removes an option from someone’s choice set, whether by

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force or manipulation; the act of coercion whereby they threaten them with a certain penalty in the event of their making a particular choice; the deceptive or manipulative act whereby they get them to have a false belief, say about the options available or about the associated costs; the persuasive act whereby they get them to change their minds about what to do; the offer of a reward that increases the attraction of one option and raises the relative costs of others; and the inhibition, perhaps quite involuntary, that one person or group induces in another just through being saliently in a position to do them benefit or harm at will. One person may impose costs on another just through falling in their path, or infecting the air they breathe, but I do not count these as examples of interpersonal costs, since they could just as well have been imposed by nonpersons. Acts of intentionally blocking someone from doing something, issuing a threat that is designed to stop them from doing it, misleading them about the costs of doing it, or making an offer designed to get them to do something else instead will, by contrast, count as interpersonal modes of hindering choice. But interpersonal modes of hindrance, it should be noticed, may also be nonintentional in character. If it is obvious to you that I can hurt you in some way or help you out in some way—those being themselves interpersonal overtures— then regardless of my intention or even awareness, that fact may raise the prospective cost of your doing something that you expect me to dislike and, noticing this, you may shrink from the action in question out of a desire to keep me sweet. To sum up, then, a choice will be hindered so far as one or more of the options involved incurs costs. The sorts of costs can be more or less intense, can affect more or less important options, and can vary in being real or experiential, current or prospective, absolute or relative. And the costs may be imposed by any of three major instrumentalities, respectively situational, psychological and interpersonal. The picture is summed up in Figure 1. The Crucial Issues Freedom as non-interference, in the more or less standard mode in which I shall take it here, is distinguished—like every other conception —by the hindrances that it takes to be relevant to the question of whether freedom is reduced. It assumes that freedom-relevant hindrances may vary in intensity, recognising that coercive threats, and not just those interventions that make the choice of some option impossible, may reduce freedom (pace Taylor 1982; Steiner 1993, 1994; Carter 1996). It is associated with the view that any hindrance to any option, no matter how unimportant, can reduce a person’s freedom, though it is not inherently hostile to allowing the importance of the options to be taken into account in any reckoning or measurement of freedom (for rival views on this, see Taylor 1995; Sugden 1998). And it takes a fairly generous line on how far the costs imposed by freedom-relevant hindrances may vary in the dimensions we

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mentioned. It allows that they may be real or experiential in essential character, and that they may be current or prospective, though it does not countenance the possibility that the merely relative costs associated with offers should count as reducing freedom (Nozick 1969). In these respects, freedom as non-domination is indistinguishable from freedom as non-interference and I shall not be discussing them further in this essay, though there are interesting questions as to how far they are justifiable within the different images discussed in the next section. The differences between the two conceptions come in their different attitudes to the instrumentalities whereby freedom-relevant hindrances may be imposed. Freedom as non-interference takes the line that one’s situation, material or social, does not reduce one’s freedom as such—does not compromise it, as I shall say—though it may certainly reduce the extent to which one can enjoy the amount of freedom or non-interference one has. It may condition one’s freedom, as distinct from compromising it (Pettit 1997, chs 1–2)—if you like, it may reduce the worth of one’s freedom (Rawls 1971)—but it does not affect one’s freedom as such. The hindrances put in one’s way by niggardly nature or hostile fortune do not count as interference proper, though they may put limits on how far or with what ease one may enjoy or exercise the non-interference one has. As one’s material and social situation may not reduce one’s freedom as such— one’s freedom in the sense of non-interference—so those features of one’s psychology that one might be disposed to bemoan as constraints on choice do not reduce it either. One’s morbid fears or one’s pathological beliefs may reduce one’s autonomy—this is the psychological version of positive liberty (Berlin 1969)—and this may be a very regrettable deprivation. But nevertheless it is not a reduction in freedom as non-interference. That this is so should not be taken necessarily as a powerful argument against freedom as non-interference. The fact that the conception overlooks such psychological constraints may be put down to a recognition that there is little that the state can directly do to improve people’s performance on the psychological front, together with a desire to have a notion of freedom that is politically relevant. Freedom as non-domination is indistinguishable in its attitude to situational and psychological constraints from freedom as non-interference. In saying that, however, I hasten to add that both conceptions of freedom are capable of supporting calls for interventions by the state that are designed to reduce the conditioning of freedom in the natural and social order, or at least the conditioning that can be feasibly and efficiently reduced by coercive, collectively authorised action. Freedom as non-interference and freedom as non-domination will each be made effective, rather than remaining just formal benefits, so far as people are sufficiently well supported in natural and social ways to be able to enjoy their uninterfered-with or undominated status across a wide range of choices, and without great difficulty. There is no reason on these fronts, then, why either conception should be less that politically radical in what it recommends (Van Parijs 1995; Pettit 1997). 1

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And so, finally, to the category in which freedom as non-interference finds those hindrances to choice that compromise freedom in the fullest sense. It is in the interpersonal relations to others, so the conception suggests, that people’s freedom is properly at risk. One will suffer a loss of freedom just so far as others intentionally seek to limit one’s choice or are negligent about not trying to avoid limiting one’s choice (Miller 1984, 1993)—and this, however slight the intensity of the limitation, however unimportant the option reduced, and regardless of whether the cost involved is real or experiential, current or prospective: the only qualification is that the cost imposed must not be the merely relative sort of cost associated with offers. The conception is characterised by the all-claim that all acts of interference—all intentional actions that are designed to limit choice by the imposition of such costs—take away freedom in some measure, and by the corresponding, only-claim that nothing else does so. The opposition of freedom as non-domination to freedom as non-interference shows up in its rejection of these two claims. Against the all-claim, it argues that there are certain acts of interference, in the relevant sense, that do not count as ways in which freedom is compromised, though they may count as ways in which it is conditioned. And against the only-claim, it maintains that there are certain non-intentional aspects of how someone relates interpersonally to others that do reduce the person’s freedom. Freedom as non-domination denies that to be free is to lack the interference of others as such, holding rather that to be free is to be more or less proof against a certain sort of interference—the kind that is usually described as arbitrary. One is free to the extent that one is not exposed to the arbitrary interference of another, not just to the extent that one happens to avoid interference of either an arbitrary or non-arbitrary sort. Freedom as non-domination is intuitively less demanding so far as it demonises only the arbitrary form of interference, therefore, and intuitively more demanding so far as it demonises even exposure to the possibility of such interference. It takes a soft line on the exercise of nonarbitrary power and a hard line on exposure to arbitrary power. The soft line means that non-arbitrary interference is not a compromise to freedom, so that the all-claim given has to be rejected. The hard line means that something other than an act of interference—the state of being exposed to arbitrary interference—does compromise freedom, so that the only-claim also has to be withdrawn. The source of these differences lies in the connection between exposure or vulnerability to arbitrary interference and the status of being the subject of another (Pettit 1997, 2002; Skinner 1997). To be exposed to arbitrary interference is always in some measure to endure subjection or subordination to another—to suffer their dominatio, in the phrase used by Roman republicans. The interference associated with domination will be arbitrary so far as it is controlled by the will or judgment of the interferer or the interferer’s principal— so far as it is controlled by that alien arbitrium—and is not forced to track the will or judgment of the interferee. The possibility of arbitrary interference will be reduced so far as the would-be interferers are inhibited by the costs involved

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from attempting arbitrary interference; they may be inhibited by the threat of the law, or the possibility of retaliation, or the collateral damage they will do themselves, or whatever. Such agents may be able to interfere but only in a nonarbitrary manner: only in a manner that is ultimately controlled by the interferee, as in the case of Ulysses and his sailors. Or their access to interference may be more or less effectively blocked. The dominator escapes those inhibitions and, in the paradigmatic case, is able to interfere at will and with impunity. So far as the interference occurs at will it is arbitrary. So far as it materialises with impunity it testifies to domination. One final observation. The hard line that republicans take on exposure to arbitrary interference, and its effect on freedom, is probably more distinctive than the soft line taken on the exercise of non-arbitrary interference (Pettit 2002). While the exercise of non-arbitrary interference does not dominate people—it does not represent the presence of a master in their lives, so far as the interference is forced to track their express or readily expressible interests—it does clearly limit the range within which people can enjoy their non-domination. In other words, it conditions freedom as non-domination, in the way that situational factors may condition it—or condition freedom as non-interference. The exemplar of non-arbitrary interference for traditional republicans is the coercive law that has those features, whatever they are, that make it nondominating or arbitrary; different approaches emphasise different features but the idea is that such law will be forced to track the express or readily expressible interests that are common to the people. While republicans will emphasise that such law does not make people unfree, in the sense of dominating them and so compromising their freedom, they may of course acknowledge that it does condition that freedom: it reduces the range in which people can enjoy their undominated status. We may sum up the results of this discussion in Figure 2. Two Images of Human Agents I have argued elsewhere for a sociological explanation as to why the notion of freedom as non-interference took over in the late eighteenth and early nineteenth century from the conception of freedom as non-domination: or more strictly, for why it took over in the work of authors like Jeremy Bentham and his even more influential follower, William Paley (Pettit 1997). Paley recognises the idea of freedom as non-domination as the received and common notion of freedom— this, in a book published in 1785—but argues paradoxically that it is too radical to be endorsed: it would ‘inflame expectations that can never be gratified, and disturb the public content with complaints, which no wisdom or benevolence of government can remove’ (Paley 1825:168). The best explanation for Paley’s preference for the admittedly newfangled idea of freedom as non-interference is, I think, that while he was radical and original enough to think of women and workers as included in the compass of the state’s concern—in particular, its

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FIGURE 2 THE ISSUES BETWEEN FREEDOM AS NON-INTERFERENCE AND NON-DOMINATION

concern for the freedom of its people—he was sufficiently realistic to see he would be laughed out of court if he argued that they should therefore be delivered from the domination that they suffered under contemporary domestic and master-servant law. Better argue for the more modest theory that they would be free so far as they were not actually interfered with, even if that result came about, not by dint of legal or social status, but by grace of gentlemanly manners in the one case, economic rationality in the other. I have also argued elsewhere that it makes for a better political philosophy—a philosophy in greater reflective equilibrium with our sense of what is right (Rawls 1971)—to conceptualise freedom as non-domination and to hold that the state should prioritise a concern for freedom in this sense, not just in the more common sense of non-interference (Pettit 1997). This normative argument complements the sociological, so far as it seems plausible to maintain that what was infeasible in Paley’s time—and what could not therefore be seriously recommended—has become feasible in ours. There is now good reason to argue that the state should aim to promote freedom as non-domination in people’s

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relations with one another and to entrench the demands of non-domination in constraints on its own relations to those people. Here, however, I wish to go beyond those sociological and political arguments, and take a different tack. I ask whether the divergence between the approaches can be resolved by looking at how they relate to the best, comprehensive images of the human being available in contemporary thought. Any image of human beings is likely to project an ideal of what it is for a human agent to perform fully to type and to direct us to the sorts of factors that may compromise such a performance. An image will give support to a certain conception of freedom, therefore, so far as the compromising factors it identifies correspond to the hindrances indicted under that conception as obstacles to freedom. The support given may not establish the conception as decidedly the best available but it will help to reinforce the claims of that conception over competitors. We need to consider two questions, then. First, what are the most compelling images of the human subject on offer in contemporary thought, in particular social and political thought? And second, does any enable us to rule on the divergence between the liberal and republican conceptions of freedom? I address the first question in this section, the second in the next. I think that the most prominent image of the human being in contemporary social and political thought is decision-theoretic in character and that the only serious rival is not an inconsistent image but an image that adds further specifications to the decision-theoretic. I describe this as the discourse-theoretic image. I now proceed to give a sketch characterisation of the two. Before going on to that characterisation, however, it is worth mentioning that both of the images to be considered are very abstract specifications of constraints that we would expect any mature human being to meet, short of suffering some impairment. Thus the images abstract away from the detail that might distinguish more particular psychological and neuroscientific stories about human performance: say, stories about the extent to which our brains program many of our responses without our being aware of this debt to our subpersonal nature. The images discussed are cast at a level where the only rivals that have been seriously canvassed are those structuralist pictures under which human beings are nodes at which social forces operate, not centres of agency that have any interesting autonomy. I do not think that this sort of image has much claim on us and I note in any case that it would deny significance to every conception of liberty (for a critique, see Pettit 1993). The Decision-Theoretic Image The standard image of the human subject in contemporary social science, certainly social science of a more or less economistic cast, is best captured in the picture of agency projected in decision theory, particularly decision theory in the broad tradition of Bayes (Eells 1982: ch.l). This picture depicts the human agent as a locus at which two different sorts of states interact in the production of decision

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and action. On the one hand, there are the agent’s credences or degrees of belief, and on the other his or her utilities or degrees of preference. These are defined over different states of the world—possible ways the world may be—and correspond to how the agent takes the actual world to be and wants the actual world to be. The Bayesian picture makes three claims about these credences and utilities. First, any agent who satisfies certain conditions of rationality, intuitively understood, can be represented as acting on the basis of a well-behaved credence function: a function that evolves under new evidence in such a way—to take the standard version of Bayesianism— that the unconditional credence given to any event in the wake of finding that evidence is the same as the credence that used to be given to the event conditional on the appearance of the evidence; the function evolves so as to satisfy what is known as conditionalisation. Second, any agent who satisfies intuitive conditions of rationality can be represented as having such a credence function and such a utility function that for any option involving different possible outcomes the agent will attach a degree of utility to that option—a degree of expected utility—which reflects the utility of each possible outcome and the credence given to its coming about in the event of the option being chosen; different Bayesian theories tell different stories about the exact way this is defined. And, third, as between different options with different degrees of expected utility, any agent of that intuitively rational kind will prefer the option with the highest degree of expected utility and choose accordingly; the agent will maximise expected utility. The Bayesian image of the human agent is rather formally and artificially constructed but the basic elements correspond fairly well to aspects of our makeup that are recognised in common sense. True, there are some striking gulfs between folk psychology and decision theory. For example, folk psychology depicts us as forming judgements as well as forming degrees of preference and credence, where judgements are on—off commitments; we do not judge in degrees, though we may judge that a scenario has this or that degree of probability. And folk psychology also depicts us as forming degrees of preference for different ways the world may be, whether these be probable prospects or determinate states of affairs, on the basis of judgments as to the properties of those scenarios (Pettit 1991). But nevertheless there is a fairly good fit between common sense and the basic thrust of decision theory. The notion of maximising expected utility is a formalisation of the ordinary notion of acting as our beliefs suggest we should act if we are to satisfy our desires. This fit is so good, indeed, that much of what is assumed about human agents in the broad reach of normative and policy-related thought sits well with essentially a decision-theoretic image.

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The Discourse-Theoretic Image But if decision theory gives a picture of human psychology that picks out many elements already recognised about human agents in common sense —beliefs, desires, actions, and so on—there is one broad aspect of human performance that it overlooks.3 Human beings may be decision-theoretic subjects who act on the basis of beliefs and desires that can be modeled, however approximately, in certain credence and utility functions. But they are not just that. They are, more specifically, decision-theoretic subjects whose beliefs and desires evolve under the influence of discourse with one another, and indeed with themselves (Habermas 1984, 1989). Like many non-human animals, we human beings form beliefs and desires and act so as to satisfy our desires according to our beliefs, or at least we do so under intuitively favourable conditions and within intuitively feasible constraints; this is what gives application to the decision-theoretic image. But unlike non-human animals, we also give intentional expression to the ways things present themselves as being in the light of our beliefs and our desires. We do not just have the ability to believe that p; we can assert that p: we can use a voluntary sign, in Locke’s phrase, to represent how things present themselves as being, given that belief (Locke 1975, bk 3, ch.2). We do not just have the desire that q, we can assert that the prospect that q is attractive or whatever: we can use a voluntary sign to represent how things present themselves as being, given that desire. We can express our beliefs in regular, content-specifying sentences and we can express our desires in sentences that predicate attraction or something similar of the contents desired. The fact that we are articulate believers and desirers in this sense means that we can do something that marks us off very sharply from mute animals. All agents of the kind modeled in decision theory will have reasons to believe and to desire those things that it is rational for them to believe and desire according to the theory. Thus if an agent has a very high credence in q conditionally on p, and comes to give full credence to p, then he or she has reason to give a very high credence to q. Or if the agent gives full credence to the claim that there are two options available — to A or not to A—and assigns a higher expected utility to A-ing, then the agent will have reason to A rather than not to A. But that agents have such theoretical or practical reasons for believing and desiring things does not mean that they can see the reasons they have for making such responses, recognising them as reasons. The states in virtue of which they have reasons may operate within them without their having any beliefs— any credences—to the effect that there are such and such reasons available or, equivalently, to the effect that it is right or desirable or appropriate for them to believe that q, or to A. Thus the agents may be unable to form beliefs about what reasons they have and what it is right, therefore, for them to believe or desire; they may lack the normative concepts required.

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This is likely to change, however, if the agents are articulate in the relevant domains. Articulate agents who have the reasons illustrated will be able to give expression to those reasons as such. They will be able to say to themselves in the first case: ‘p, and if p, very probably q’— assuming, for convenience, that this is the way to express such credences. They will find themselves disposed in virtue of having the beliefs thereby expressed to believe and say that it is very probable that q. And they will thereby put themselves in a position to register that the fact, as they believe it to be, that p and that if p, very probably q, is a reason for believing that it is very probable that q; it makes it right or appropriate or desirable, as decision theory implies, to believe that q. Although it is sketchy, this line of thought should prove generally persuasive; the controversy comes in the details of how it is to be filled out (Pettit 2001b). Assuming that it is correct, it means that articulate subjects will be able to see as such the reason that they have—and had all along—for giving a high credence to q: viz., that p and that if p, very probably q. By a parallel train of reasoning, articulate agents will also be able in this sense to see the reason that they have in the practical example, not just to have that reason in the fashion of mute animals. They will be able to say: there are two options, to A or not to A, and it is more attractive to A—assuming that ‘attractive’ expresses higher utility. And saying this, they will be able to register that that fact, so expressed, makes it right or appropriate or desirable for them, at least in the decision-theoretic sense, to A. Once we allow that articulate believers and desirers can see as such the reasons that they have for believing and desiring various things—see those reasons as well as having them—we can discern the role that discourse is capable of playing in their lives. For assuming that they have a common currency of expression, and that this is a matter of common awareness—(see Pettit 1993, chs 2, 4)—they will each be able in principle to present another with reasons there are for the other to believe or to desire this or that (Pettit 200 la). They can communicate with one another to the effect that p, thereby offering those who believe that if p, very probably q, a reason to believe that it is very probable that q. And so on in other cases. They will be able to advise one another on what they should believe and desire, then, and they will be able to debate with one another about what they should believe and desire in common (for more on reasons to desire see Pettit 2001b). They will be able to reason together, as we say. I think of discourse as consisting primarily in this process of co-reasoning with other people, although I recognise that, once learned, the process is one that a person may equally be able to conduct in the internal forum. To say that we are discursive creatures means by my lights, then, that we are decision-theoretic subjects who are further characterised by a nest of distinctive abilities. We have the ability to articulate our beliefs and desires and related states; the ability to see as such the reasons for forming further beliefs and desires that those states may give us; and the ability, in consequence, to share and exchange such reasons with others. As discursive and not just decision-

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FIGURE 3 TWO IMAGES OF HUMAN AGENCY

theoretic creatures, we have access to a special way of acquiring reasons and a special way of being alerted to the reasons that we already have. The two images described in this section can be usefully summarised in Figure 3. The Resolution of the Issues So much for the two most compelling images of agency in contemporary social and political thought. I now wish to look at how the adoption of one or another image is likely to impact on one’s view of how the differences between liberals and republicans should be resolved. A Decision-Theoretic Ideal Suppose we adopt the decision-theoretic image of human agency, ignoring the discursive aspect of people’s competence. Where is this likely to lead us—if anywhere—in thinking about which hindrances to choice should be regarded as inimical to freedom, which not? And how in particular is it likely to guide us on the differences between the rival conceptions of freedom as non-interference, on the one hand, and as non-domination on the other? The decision-theoretic image will provide a clue to how we should think of freedom only if it helps us to identify a type of agent-performance that may be more

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or less approximated by different individuals, or by the same individual in different situations, and that represents a decision-theoretically unfaultable ideal; it involves the agent performing fully to the type that decision theory projects on agents. Is there any ideal of performance, then, that stands out under this approach? Decision theory certainly suggests that the more that agents conform to the demands of rationality in the way they update their beliefs and desires and make decisions in the light of them, the more fully they conform to its specifications on agency. Agents will differ on how broad are the limits within which rationality is feasible for them, and on how special are the favourable circumstances under which they succeed in being rational, and decision theory would naturally identify someone as measuring up more fully to the constraints on agents, the wider those limits and the less special those circumstances. This ruling is of no use in the debate between our two conceptions of freedom, however, because the issues between them do not arise on that psychological front. As we saw, they may each allow that there is a sense of freedom—autonomy— that is enhanced by removing psychological constraints on rationality but for the essentially political purposes to which the conceptions are tailored, such constraints are not in the picture. Is there a similar ideal to be extracted from the decision-theoretic image that is likely to prove relevant in non-psychological domains: say, in judging on how far different situational and interpersonal hindrances may impact on the ideal working of the decision-theoretic subject? If there are, then it would make sense to see these as hindrances that are particularly relevant to freedom. On the face of it, the decision-theoretic image is not going to be very helpful. Consider a hindrance of the sort that both liberals and republicans will indict as inimical to freedom: an act of arbitrary interference in someone’s life, in particular the sort of arbitrary interference that comes involves a coercive threat. While this will be inimical to freedom under both conceptions, it is not clear that it prevents the agent performing fully to decision-theoretic type. After all, when the agent considers the threat, looking at the probability of its being carried out and at the disutility it would impose, he or she is acting true to precisely that type. One can lose one’s freedom in some measure, it seems, and still exemplify ideal decision-theoretic functioning. I see only one way in which we might hope to extract a more helpful ideal from decision theory. This would involve introducing the notion of the self, and arguing that an agent will perform fully to decision-theoretic type only so far as it is truly the agent’s self that operates in determining which of a number of options to choose. Let the agent’s beliefs and desires be tampered with, as in the case of the coercive threat, and the self of the agent is not the only presence relevant to what is done; let the agent be left to his or her own devices and it is, or at least may be. Unfortunately, I do not think that this resort to the notion of the self and to the ideal of self-determination that goes with it will be of any particular help. The

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problem is that it is often completely unclear where the boundary between self and non-self should be drawn; certainly there is nothing in decision theory to dictate its location. When his sailors interfere non-arbitrarily with Ulysses, following his earlier instructions, do they represent the presence of a non-self in the determination of his actions? In one sense, yes: after all, the sailors are thwarting his current preferences when they refuse to let him go. But in another sense, no: they are merely implementing his own longer-term policy as to how he should behave. Or consider the other sort of case that divides republicans from liberals. Does the person who has to keep a powerful presence sweet, but who does not suffer actual interference, act true to self or not? Does Nora in A Doll’s House give expression to her self or to the non-self represented by her husband, Thorvald, when she chooses to make herself pleasant and to hide the macaroons that she knows he disapproves of ? Again, it is hard to say; decision theory does not put a firm enough boundary in place between the self and the non-self for us to be able to rule on whether or not her actions are self-determined. I think that these observations should make clear just how unlikely it is that the decision-theoretic image of the human subject, all on its own, can be used as a ground for resolving the differences between our two conceptions of freedom. We must look elsewhere if we are to find any help in this task. A Discourse-Theoretic Ideal The decision-theoretic image of agency would have served the purpose we wanted it to serve had it been able to give determinate shape to the ideal of selfdetermination, policing a firm boundary between the self and the non-self. The discourse-theoretic image will serve this purpose only if it can give relatively determinate shape to a similar sort of ideal. And it turns out, so I now argue, that it can. It directs us fairly unambiguously to an ideal that I describe as that of having discursive status. The first thing to notice by way of bringing out this claim is that the discoursetheoretic image does not suggest that self-determination, understood in any straightforward way, is inherently attractive. Suppose that I act on my own erroneous beliefs or act out of my own fallacious reasoning, thereby determining all on my own what it is that I do. How should I feel about the possibility that I might have been put right by another, having the error or the fallacy made clear to me? Should I feel that it’s as well that didn’t happen: that in that case I would have lost some of my own control, being influenced by another? Surely not. Surely not, in particular, under the discourse-theoretic image of the human subject as someone capable not just of having reasons, but of seeing reasons and of having reasons made salient by others. There is nothing objectionable under this image about others exercising an influence over me, provided that the exercise is reason mediated: provided that it is implemented by giving me reasons that I may or may not act on, depending on whether I endorse them.

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Moving now to a more positive note, what does the discourse-theoretic image hold out as the positive ideal for agent-performance? The image requires that the agent be capable of processing reasons, having full ratiocinative capacity. But it also suggests that things will go better in its own terms to the extent that the agent is subject to the discursive influence of others—to the extent that the agent is able to access and adjudicate the sorts of reasons that others can provide—and to the extent that he or she is not subject to any influence that is discursively inimical. The agent must have, not just the ratiocinative capacity to process reasons, but also the relational power of occupying in common with others a space that mediates discourse-friendly influence and only discourse-friendly influence. The agent must enjoy what I describe as discursive status (Pettit 200la) . The ability to process reasons is a psychological, ratiocinative capacity, the ability to access reasons is a sociological, relational power: a power that enables one to engage in discursive influence with others, while being more or less proof against the discourse-unfriendly influences that they may exercise. Some discourse-unfriendly influences would reduce one’s capacity to act as the relevant reasons require, whether by removing options, denying one information, or affecting one’s psychology in a mesmerising way. Other such influences would rig the reasons from which one deliberates, as in the case of the coercive threat: one is free to reason when a threat is made but the threat rigs the premises on which deliberation is conducted. There are many non-discursive influences that people will have on one another which will leave their discursive status unaffected—influences like those involved in joking, teasing, cajoling and so on —but the influences mentioned will not just be non-discursive: they will be inherently inimical to discursive influence and discursive status.4 I have been arguing that things will go better with an agent, in the terms of discourse theory, so far as that agent enjoys discursive status. That this is so, indeed, is marked within discursive practice itself. Such practice singles out episodes in which a subject has the ratiocinative and relational power involved in discursive status as in a certain sense ideal. Consider the way discursive practice rules on episodes where we made a promise, or avowed a belief or desire, for example, but later failed, apparently in breach of discursive standards, to live up to it. For some episodes we will be able to exonerate ourselves by reference to some feature of the episode itself, arguing that we were temporarily impaired, or under duress, or afraid for our lives, or whatever; those factors will be identified as inhibiting the ideal performance that would incur full discursive responsibility. For other episodes we will not be able to exonerate ourselves just by reference to any feature of the episode itself; there will be nothing about the episode, by the norms of discoursive practice, that allows such exoneration. These latter sorts of episode are implicitly represented, then, as conforming to a certain ideal that is endogenous to discoursive practice. But the cases so singled out, lacking any feature that would exonerate a subject from discursive responsibility, look to be precisely the sorts of cases where the subject has

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discursive status. They are cases where the subject is not ratiocinatively impaired or relationally oppressed in a way that would provide an excuse for noncompliance with commitments made there. They are cases, presumptively, where the subject has full discursive status. Given that the discourse-theoretic image directs us to an ideal of discursive status, the question is whether that ideal can help us to rule on the difference between the conceptions of freedom as respectively non-interference and nondomination. I think, to come finally to the punch-line, that it can. The image provides clear and unambiguous support for the republican way of conceiving freedom. The republican conception of freedom is characterised, as we have seen, by the hard line that it takes on vulnerability to arbitrary power, arguing that this in itself reduces freedom, and by the soft line it takes on the exercise of nonarbitrary power: here it argues that while the exercise of such power may reduce the range of choice in which people can enjoy undominated status—while it may condition their freedom as non-domination—it is not a dominating influence itself and does not compromise their freedom. Both lines make good sense within the discursive image of agency, given that that image naturally supports an ideal under which people have discursive status in relation to one another. Take the hard line first. The discursive image will support this line, so far as the factor that is demonised—exposure to arbitrary power—is something that reduces the possibility of enjoying full discursive status. And of course it is. There is an old injunction, deriving from the republican Quakers of the seventeenth century, that one should always speak truth to power. The very fact that this is something enjoined as a norm which people should try to fulfil gives vivid expression to the fact that it is very difficult to speak truth to power and, more generally, that it is very difficult just to act as one might be independently inclined to do in the presence of power. So far as people live in the force-field of another’s power, being exposed to the possibility of that individual’s interfering arbitrarily in their lives, it will make very good sense to keep that person sweet: to say and do things that placate and ingratiate, to avoid saying and doing things that might give offence or cause displeasure, and to resort to guile and cunning in order to hide any sayings or doings that might turn the powerful against them. It will make good sense to self-abase and to self-censor. And not only is this so. Living in the presence of such a power, no matter how forthright the weaker might be disposed to be, will give others reason to think that anything they say and do must bear the warping marks of the force-field in which it materialises. It will not be a matter of common awareness, then, that when they speak they show their minds, and that when they act they manifest their values. On the contrary, they will be deprived of the credence that is required for enjoying discursive status in relation to others. If they speak well or act favourably towards the power in their lives, that will easily be taken as sycophancy or servility. And if they speak badly or act unfavourably that will equally readily be taken as an expression of resentment or defiance, not as a

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credible, sincere revelation of how they think. Either way, such people will have their words and even their actions deprived of their ordinary social significance. They will be discursively disenfranchised. This should be sufficient to show just how powerfully the discursive image of agency, with its associated ideal of discursive status, supports the hard republican line on exposure to arbitrary power. But what of the soft republican line, according to which the exercise of non-arbitrary power in relation to a person or to a group of people does not compromise their freedom, even if it conditions it? Whenever interference is non-arbitrary, it will be forced to track the express or readily expressible interests of the interferee. This means that while it is imposed by the hands of another, it is subject in a certain sense to the virtual power of the interferees. The interferees will have a standing which means that should the interference not conform to a certain pattern—a pattern answering to their express or readily expressible interests—then they can prevent the interference from occurring or continuing, they can force a revision in the pattern it takes, or at least they can punish the interferer for a departure from pattern and so inhibit such departures. Ulysses has such virtual power over the sailors, not just by dint of having instructed them to bind him, but so far as his standing means he can later punish them for having disobeyed. The people who live under a nonarbitrary government—a government that can genuinely be called to book, should it fail to track the common interests that crystallise in their deliberations— equally enjoy a virtual power over their political governors. Just as the refusal of the sailors to release Ulysses, then, does not reduce his freedom as such, so it may be said—and has traditionally been said by republicans—that the taxes and laws and penalties coercively imposed by that government will not reduce the freedom of the people as such, though it may of course condition it. This said, it should be clear that wherever someone’s interference in a person’s life is non-arbitrary, that interference does not take from the person’s discursive status. It will leave their ratiocinative capacity unimpaired, of course, and more importantly it will do nothing to reduce their power in relation to others: in particular, their power of entering discursive relations with others, while remaining proof against discourse-unfriendly influences. Whatever happens to the person in the course of non-arbitrary interference happens in a way that they can discursively challenge, say on the grounds that the interference does not answer to a pattern they authorise, and so it does not take in any way from their status as subjects capable of commanding a discursive hearing in relationships with other parties. As mentioned earlier, I have argued elsewhere for a revival of the republican idea of liberty, on the grounds that it was given up under pressures that no longer obtain—those that made the ideal too radical for Paley and classical liberals— and that it holds out the prospect of a theory of government that is in reflective equilibrium with the judgements that many of us are disposed to endorse. I think that the observations in this essay provide substantial reinforcement for those arguments. They show fairly conclusively that under an image of agency that few

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FIGURE 4 TWO IDEALS OF HUMAN AGENCY

of us will find ourselves able to reject, the two distinguishing marks of the republican conception make the best possible sense. Acknowledge that we are not just decision-theoretically rational, but also capable of discursive reasoning, and it becomes immediately intelligible why our agency is diminished by having to act in the presence of an arbitrary power, and why it remains intact under a nonarbitrary interference that we virtually control. It becomes immediately intelligible why republicans should take a hard line on the first and a soft line on the second. The position we have reached in this third section of the essay can be summed up in Figure 4. Indeed the Figure serves equally well to sum up the claims of the essay as a whole. ACKNOWLEDGEMENTS An ancestor of this essay was given at a conference in Palermo, September 2001, where I learned from the criticisms of my commentator, lan Carter. It was later presented at a conference on republicanism in the University of Montreal, and at colloquia in the University of Michigan and the Australian National University. I benefitted greatly from the comments received at all those venues.

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NOTES 1. Not only am I happy to admit that the conception of freedom as non-interference is not the only conception that might be described as liberal; I am also happy to agree with Charles Larmore that even the republican conception would count, in some books, as liberal. I tend myself to use ‘liberal’ for movements that began about the time that the word came into use in the early nineteenth century: in particular, for the self-consciously novel approach to freedom and government associated in England with Jeremy Bentham and, even more influentially, with William Paley. See Pettit 1997, ch.1. 2. For the record, there is extra reason why freedom as non-domination should be radical: viz., that if someone is poor or insecure or whatever, then they are much more liable to domination by others: that is, much more liable in these terms to have their freedom compromised. See Pettit 1997. 3. This is what explains the failure to take account of judgment, noted in an earlier comment, though I shall not address that particular claim here (McGeer and Pettit 2001). 4. How does discursive status, so understood, relate to self-determination? It requires, not so much the rule of the self, as the rule of the reasonable: not so much the rule of the autos or self as the rule of the orthos or the right—that is, the right as one (reliably) identifies it. This ideal might be described, in a variation on the usual etymology, as ‘orthonomy’ rather than autonomy (Pettit and Smith 1996).

REFERENCES Bacharach, M. & S.Hurley, eds. Essays in the foundations of Decision Theory. Oxford: Blackwell. Berlin, I. 1969. Four Essays on Liberty. Oxford: Oxford University Press. Braithwaite, J. & P.Pettit. 1990. Not Just Deserts: A Republican Theory of Criminal Justice. Oxford: Oxford University Press. Carter, I. 1996. ‘The concept of freedom in the work of Amartya Sen’. Politeia, 12 / 43–44), 7–29. Eells, E. 1982. Rational Decision and Causality. Cambridge: Cambridge University Press. Habermas, J. 1984–1989. A Theory of Communicative Action. 2 Vols. Cambridge: Polity Press. 1995. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Cambridge, MA: MIT Press. Locke, J. 1975. An Essay Concerning Human Understanding.Oxford: Oxford University Press. McGeer, V. & P.Pettit 2001. ‘The self-regulating mind’. Language and Communication22, 281–99. Miller, D. 1984. ‘Constraints on freedom’. Ethics 94, 66–86. ed.1993. Liberty. Oxford: Oxford University Press. Morgenbesser, S., P.Suppes & M.White, eds.Philosophy, Science and Method: Essays in Honor of Ernest Nagel. New York: St Martin’s Press. Nozick, R. 1969. ‘Coercion’. Morgenbesser et al. 1969:440–72.

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Paley, W. 1825. The Principles of Moral and Political Philosophy, Vol 4, Collected Works. London, C. and J.Rivington. Pettit, P. 1991. ‘Decision theory and folk psychology’. Bacharach and Hurley 1991: 147–75. 1993. The Common Mind: An Essay on Psychology, Society and Politics. New York: Oxford University Press. 1997. Republicanism: A Theory of Freedom and Government. Oxford: Oxford University Press. 200la. A Theory of Freedom: From the Psychology to the Politics of Agency.Cambridge and New York: Polity and Oxford University Press. 2001b.‘Two sources of morality’. Social Philosophy and Policy 18/2, 102–28. 2002.‘Keeping republican freedom simple’.Political Theory 30/3:339–56. Pettit, P. and M.Smith, 1996. ‘Freedom in belief and desire’. Journal of Philosophy 93, 429–49. Rawls, J. 1971. A Theory of Justice. Oxford:Oxford University Press. Skinner, Q. 1997.Liberty Before Liberalism. Cambridge:Cambridge University Press. Steiner, H. 1993. ‘lndividual Liberty’. Miller 1993. 1994. An Essay on Rights.Oxford: Blackwell. Sugden, R. 1998. ‘The metric of opportunity’. Economics and Philosophy, 14, 307–37. Taylor, C. 1995. Philosophical Arguments. Cambridge, MA: Harvard University Press. Taylor, M. 1982. Community, Anarchy and Liberty. Cambridge: Cambridge University Press. Van Parijs, P. 1995. Real Freedom for All. Oxford: Oxford University Press.

7 Liberal and Republican Conceptions of Freedom CHARLES LARMORE

In recent years there has occurred a remarkable surge of interest in classical republicanism. Among the different currents in this republican revival, the most important, I believe, traces itself back through Machiavelli and his Discorsi sopra la prima deca de Tito Livio to the political thought of ancient Rome. It has been the subject of a series of important historical studies by Quentin Skinner,1 and in the Anglo-American world it has found its most ambitious theoretician in Philip Pettit. Indeed, the republican model of political life has received in his hands the sort of detailed exposition which it never enjoyed before. His book, Republicanism, is a landmark work (Pettit 1999). A few minor differences apart, Skinner and Pettit have essentially the same vision of what is of enduring importance in the republican tradition, namely its understanding of freedom. In this conception they are joined by a third contemporary neo-republican, Maurizio Viroli.2 I am convinced that the republican theory of freedom, which the three of them have been at one in advancing, represents an invaluable contribution to our political thinking. All the same, I also believe that they have not properly understood the true character of their achievement. Since Pettit is the most systematic thinker in the group, I shall begin by laying out this neo-republicanism primarily in the terms which he has provided, though I shall also embroider some of the points in my own way, this being an expression of my large measure of agreement. My ultimate aim, however, is to examine this movement’s problematic relation to the modern liberal tradition. Three Concepts of Liberty At the centre of the neo-republican enterprise is a conception of political liberty which Pettit and the others call ‘non-domination’. According to this view, we are free to the extent that we do not find ourselves under the domination of others, subject to their will and thus exposed to the vicissitudes of their desires. The conception goes back to Roman law, according to which a free person is one who, unlike a slave, does not find himself in potestate domini. But in the republican tradition of the sixteenth and seventeenth centuries, its meaning broadened into a comprehensive political ideal. ‘Liberty’, wrote Algernon

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Sidney, the great republican thinker executed for treason in 1683, ‘solely consists in an independency upon the will of another’ (Sidney 1996:17). This notion of freedom, we may begin by noting, refers to a condition in which we can find ourselves, namely, the condition where we are not living under the thumb of another. It does not mean the exercise of a capacity, and so in particular it does not signify the control which an individual or community exercises over the shape of its own existence. Another way to put this contrast lies with the categories deployed by Isaiah Berlin in his classic essay of 1958, ‘Two concepts of liberty’ (reprinted in Berlin 1969:118–72). The idea of freedom as non-domination forms a ‘negative’, not a ‘positive’ conception. In general, identifying freedom with a condition entails equating it with the non-occurrence of those factors which are regarded as significantly diminishing a person’s possibilities, and in the present case the factor whose absence is deemed essential to freedom is living at the mercy of another’s will. Nothing is said, so far as freedom itself is concerned, about what is to be done with the possibilities secured by the absence of domination. Freedom as non-domination does not therefore consist in rational autonomy or democratic self-government, as freedom has often been positively defined. Much less does it signify the activity by which we supposedly realise our true nature or give expression to our higher self, which are the sorts of conclusions to which positive conceptions of freedom typically lead. To be free from the domination of a master does not mean being the master of oneself, since it is a condition which people may enjoy in a variety of ways—as much by letting themselves be carried away by passion (a dangerous thing when at the mercy of the powerful) as by bringing themselves under the rule of their own reason. Positive conceptions of freedom are not without their plausibility, and I shall return to this point below. But in Pettit’s eyes as in mine, they seem too narrow to capture all that we value as political freedom. A free people is one whose freedom consists in the nature and the extent of the possibilities which lie open to them. Their freedom extends beyond their participation in democratic selfgovernment, and it need not involve their shaping their lives ‘autonomously’, according to a plan of their own devising. Political freedom is best understood as a ‘negative’ concept referring to a condition of existence, rather than as a ‘positive’ concept denoting a particular sort of activity. Nonetheless, freedom as non-domination differs fundamentally from the understanding of negative freedom that Berlin himself advocated. In fact, one of Pettit’s most important contributions consists in having broadened the range of theoretical options. Negative freedom as Berlin conceived of it is the domain of action where individuals can do as they may want without interference on the part of others. Like Hobbes and Bentham before him, he viewed individual freedom as the absence of actual obstacles. ‘A Free-Man’, Hobbes declared, ‘is he, that in those things, which by his strength and wit he is able to do, is not hindered to do what he has a will to do’, and Berlin explicitly endorsed this definition (Hobbes 1968: ptII, ch.21, para.2; Berlin 1969:123 n.2).3 To be sure,

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Berlin cautioned that a person’s freedom should not be said to consist in the absence of obstacles to the fulfilment of his desires. Such a definition would allow the person to increase his freedom simply by extinguishing his unsatisfied desires. The obstacles relevant for judging the extent of a person’s negative liberty ought rather to be conceived as obstacles to his possibilities, as roadblocks standing in the way of the courses of action that he might choose to pursue (Berlin 1969:139).4 Berlin did not waver, however, in defining our negative freedom by reference to actual interference, even when it is our possibilities which are thereby limited. As a result, people must count as free in this sense, even when another could encroach upon their projects (present or possible) and yet decides not to do so. Negative freedom, Berlin once remarked, is not compromised by a despotic regime, so long as the despot happens to be benevolent and chooses to pursue an indulgent policy toward his population. Reserving all political power to himself, such a ruler may otherwise leave his subjects a large measure of freedom to pursue their various projects as they please.5 Yet surely it is wrong, Pettit objects, to hold that people are then free, inasmuch as they pursue their projects at the mercy of a prince who, well disposed for the moment, can at any time change his mind and policies. So too workers are not free if, to have a job at all and earn enough to survive, they have no choice but to work for a single employer who, well meaning though he may be, can at any time shut up shop or move his enterprise elsewhere. Freedom really entails an absence of both actual and possible interference at the hands of others. Or more exactly, Pettit adds, it consists in being exempt from all such arbitrary interference. For suppose that we inhabit a society governed in accord with just laws: we will consequently not possess an immunity from all interference in our affairs. Even then, the state must stand ready to discourage and punish any infractions of the laws. But the point is that such conditions, where the threat of arbitrary interference has disappeared, mark a qualitative difference. The rule of law does not amount to one form of domination having been exchanged for another, as though its utility consisted in offering us a greater net balance of freedom over constraint than we would otherwise have if living under despotic rule or under no rule at all (in a ‘state of nature’). Domination itself, so Pettit insists, has come to an end when the authority of just laws replaces the will of particular individuals. Freedom as the absence of domination differs therefore in two respects from any view like Berlin’s that equates negative freedom with the absence of obstacles (Pettit 1999:22ff.). On the one hand, domination can occur without any actual interference. Our freedom is abridged by the simple fact that we depend on the goodwill of others, since their power to meddle in our life can be so great that, even if they choose not to exercise it, we find ourselves obliged to anticipate their possible actions, modify our plans, and curry their favour. On the other hand, every act or threat of interference need not constitute domination. If just

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laws have the function of making us free by checking the arbitrary will of others, their influence on our conduct and the prohibitions they impose do not amount to a reduction in our freedom. It is on this latter score that the two ‘negative’ conceptions of freedom differ most tellingly. For Hobbes and Bentham and those who follow in their footsteps, every law as such diminishes our freedom, even if its objective is to prevent the greater loss of freedom that would ensue from the absence of law. Berlin himself made the point explicitly. ‘Law is always a “fetter”’, he wrote, ‘even if it protects you from being bound in chains that are heavier than those of the law’. Similarly, ‘every law seems to me to curtail some liberty, although it may be a means to increasing another’ (Berlin 1969:123 n., xlix). On this view, civil freedom, the liberty we enjoy within political society, becomes the silence of the law, since all law is in itself an intrusion and liberty begins where law ends. As Hobbes wrote, ‘The Liberty of a Subject lyeth therefore only in those things, which in regulating their actions, the Sovereign hath praetermitted.’ Or again: ‘Liberties…depend on the silence of the law. In cases where the Sovereign has prescribed no rule, there the Subject hath the liberty to do, or forbeare, according to his own discretion’ (Hobbes 1968: pt II, ch.21, paras 6 and 18).6 According to the republican conception, by contrast, law and liberty are not intrinsically opposed. The exact nature of their relationship depends on the character of the laws in question. To the extent that just laws deliver us from the relations of domination in which the natural course of things would otherwise place us, they make up freedom’s condition of possibility, not its antithesis (Pettit 1999:35; Viroli 2002: 9). Here is the way that Machiavelli summed up the point: Only the name of freedom is extolled by the ministers of license, who are the men of the people, and by the ministers of servitude, who are the nobles, neither of them desiring to be subject either to the laws or to men. But when it happens…that by the good fortune of a city there rises in it a wise, good, and powerful citizen by whom laws are ordered by which these humors of the nobles and the men of the people are quieted or restrained so that they cannot do evil, then that city can be called free. (Istorie fiorentine, IV. 1) Freedom and Self-Government In the light of these initial observations, it should be plain that the idea of freedom as non-domination, distinct though it is from the ‘positive’ conception of freedom as autonomy, provides nonetheless a natural rationale for the institution of democratic self-rule (Pettit 1999:8, 183ff.). Universal suffrage and the widespread participation of citizens in political life offer the best guarantee that the laws will be just, instead of serving particular interests and private concentrations of power. For those who see the essence of freedom as the

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absence of interference, there exists no such internal connection between liberty and democracy or self-rule. For them, as we have seen, extensive freedom may co-exist with government by the few. Berlin was displaying an admirable consistency when he declared that ‘freedom in [my] sense is not, at any rate logically, connected with democracy or self-government’ (Berlin 1969:129–30). He was drawing the same implication from the notion of freedom as noninterference which Hobbes did when observing in a famous passage of the Leviathan (directed explicitly against the republican writers of his time): There is written on the Turrets of the city of Lucca in great characters at this day, the world LIBERTAS; yet no man can thence inferre, that a particular man has more Libertie…there, than in Constantinople. Whether a Commonwealth be Monarchicall, or Popular, the Freedome is still the same (Hobbes 1968: pt II, ch.21, para.8). For Hobbes like Berlin, freedom depends on the absence of actual interference, whatever may be the source of the limits on conduct represented by the law. Once freedom is understood as the absence of domination, its relation to the idea of democracy changes completely. Yet, once again, we need to keep in mind that such a conception does not entail equating freedom with the exercise of selfgovernment. The kind of republican theory that it inspires—Pettit calls it ‘neoRoman’ (not least because its early-modern exponents drew so often upon Machiavelli’s Discorsi)7 – has therefore quite a different shape than another strand of political thought which has also styled itself ‘republican’, but which has taken its bearings from a positive notion of freedom. This other version of republican thought Pettit appropriately calls ‘neo-Athenian’, and he finds it exemplified by writers such as Hannah Arendt and Michael Sandel. Often invoking a highly idealised view of the Greek polis, these thinkers express an unqualified admiration for ‘the liberty of the ancients’. They tend to identify freedom with self-rule because they regard political life, in which common purposes are discussed, decided and acted upon, as the primary domain in which the virtues are exercised and the human good achieved. Other names too might be added to Pettit’s list of contemporary ‘neoAthenians’. Indeed, I believe that a purer example of this intellectual current than the two figures whom he mentions is J.G.A.Pocock, though I hasten to add that I mean, not so much Pocock the historian whose admirable book, The Machiavellian Moment, played an essential role in the rediscovery of the republican writers of early-modern Europe, as rather Pocock in his own theorising moments. The key text is his essay of 1981, ‘Virtues, Rights, and Manners’. There Pocock asserts that the republican idea of freedom was at bottom the ‘positive’ one of participating in the activity of self-rule because it drew on the civic-humanist vision that ‘homo is naturally a citizen and most fully himself in a vivere civile’ (Pocock 1985b:39).8 During the course of the seventeenth and eighteenth centuries, Pocock argues, this republican conception

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was shoved aside by a ‘jurisprudential’ paradigm that regarded freedom as merely the ability to pursue one’s own affairs unimpeded by others. The language of virtue gave way to the language of rights, as the focus of attention shifted from the relations in which people stand to one another, sharing in the construction of their common life, to the relations in which they stand to things (that is, to property), secure from interference on the part of others. Pocock’s historical thesis may appear attractive in its simplicity, yet it is too simple to be true. The increasing importance of rights in early modern thought did not reflect solely a concern for the protection and disposability of property. On the contrary, the notion of rights— particularly those of conscience and free association—recommended itself precisely as a way to order the relations between people themselves, in light of the deep and abiding disagreements which had emerged about the nature of the human good. The language of fundamental rights was a modern development, not merely because it served ‘bourgeois’ interests, but also because it aimed to put an end to the Wars of Religion and provide the new basis of a common life. Not by accident, it