Academic

Bruegger on Republican Freedom

By Lawrence Solum

John A. Bruegger (Washington University School of Law) has posted Republican Freedom - Three Problems on SSRN. Here is the abstract:

This article discusses and critiques a popular modern theory of freedom ? republicanism. Largely through the extensive work of Princeton professor Philip Pettit, republicanism has stood as a third alternative in the freedom literature to other popular theories such as negative liberty (or liberalism) and positive liberty.

The article identifies three troublesome areas in this theory that have not been adequately analyzed in the previous literature. First, by taking the focus off interference (such as represented by ?the law?) and shifting it to ?domination,? republican freedom leads to the result that a ?tyranny of the majority? can impose harsh interference over the people, but claim that it is for the people?s own good, and therefore does not reduce their liberty. Secondly, while republicans suggest constitutional restrictions on the power of the majority to dominate the minority, all of the restrictions themselves are inextricably bound to the idea of majority rule, and therefore are ineffective. Finally, with its focus on domination instead of interference, republicanism destroys the possibility of objective freedom because all freedom enjoyed by a person or a state is subject to the potential for dominating action by another more powerful state. Freedom becomes subjective and relative.

My article highlights these inherent problems in republican freedom theory and attempts to resolve the conflict between majority rule and protecting the fundamental freedoms of all members of society. Furthermore, this work highlights the danger in cloaking the concept of freedom in the heading of ?domination,? which could actually lead to a greater reduction in the individual?s freedom by the state.

Full post as published by Legal Theory Blog on March 22, 2011 (boomark / email).