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Freedom, Law, and the Republic Scott, Paul Francis (2013) Freedom, law, and the republic. PhD thesis. http://theses.gla.ac.uk/4941/ Copyright and moral rights for this thesis are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Glasgow Theses Service http://theses.gla.ac.uk/ [email protected] Freedom, Law, and the Republic Paul Francis Scott LLB, LLM Submitted in fulfilment of the requirements for the Degree of PhD School of Law College of Social Sciences University of Glasgow July 2013 Abstract This thesis considers the question of human freedom through the lens of the revival of republican political theory that has taken place in recent decades. In its first part, it distinguishes between different strands of that revival and argues that one of these presents a variant of human freedom which more adequately captures the human condition than does the ideal of freedom traditionally endorsed by liberal thought. It then considers that question of freedom in relation to very fundamental questions of power, law, and the reasons for which we accept the existence of an organised public power in the first place, arguing that the individual finds himself trapped between, on one hand, threats to his freedom which are horizontal, emanating from private parties, and those which are vertical, arising from the apparatus of public power which exists in order to protect man from man. In part two, one of the principal advantages identified for the neo-republican ideal - its aptness for application to the freedom of individuals in relation to each other, as well as in relation to the state - is explored within the specific contexts of the relationship of husband to wife and that of employer to employee. In each case, the relationship between the question of freedom and the specific legal rules which determine when and where public power will intervene against or on behalf of one party in relation to another, most generally the rules of private property, is analysed. It is argued that freedom is primarily a function of the ‘ordinary’ law: that which determines one’s rights and duties in relation to others, and which determines the distribution of property through taxation and spending. On the basis of this account, a renewed republican constitutionalism which focuses upon issues of property within the constitution - as a right protected by fundamental rights documents, and as a potentially distorting factor within the democratic process - is offered in part three. The normative element of republican constitutionalism is not exhausted by the issue of how to organise the organs of the state such that the individual is not dominated by the state: issues of private right being a function of constitutional processes, the constitution must also ensure that its outputs do not force man to live at the mercy of man. i Contents Acknowledgements viii Author’s Declaration ix Introduction - The Dual Failure of Republican Constitutionalism 1 Part 1 - The Republican Ideal and the Human Condition Chapter 1 - Republicanism and Neo-republicanism 1.1 Republicanism 7 1.1.1 Belated clarity 1.2 Dichotomies of freedom: ancient and modern 8 1.2.1 Exercise and opportunity concepts 1.2.2 The triumph of modern liberty 1.2.3 Commerce and freedom 1.3 Dichotomies of freedom: positive and negative 13 1.3.1 Negative liberty 1.3.2 Positive liberty 1.3.3 The triumph of negative liberty 1.3.4 The politics of negative liberty 1.3.5 Theorists of liberal freedom 1.4 Republican freedom 20 1.4.1 Republican historiography 1.4.2 The theory of free states 1.4.3 The republican eclipse 1.4.4 The first republican revival 1.4.5 Vagueness and communitarianism 1.4.6 Normative and descriptive communitarianism 1.4.7 The collapse of the first republican revival 1.5 Pettit’s neo-republicanism 28 1.5.1 From interference to domination 1.5.2 The particularity of Pettit’s arbitrariness 1.6 Methodology: freedom from who? 31 1.6.1 Relationality 1.6.2 Embeddedness 1.7 Conclusion 34 Chapter 2 - Freedom between Anarchy and Absolutism 2.1 Consequences of neo-republicanism 36 2.2 Law and freedom 36 2.2.1 Individual freedom and net freedom 2.2.2 Which laws reduce freedom? 2.2.3 Bentham against liberty 2.3 Hobbes on the state of nature 41 2.3.1 Constructing Leviathan ii 2.3.2 Freedom and law in Hobbes 2.4 A republican appropriation of the state of nature 44 2.4.1 Unfreedom and absolutism 2.5 The empire of laws 46 2.5.1 Harrington versus Hobbes 2.5.2 Constructing the empire of laws 2.5.3 Law which tracks interests 2.5.4 Harrington’s institutions 2.5.5 Harrington’s constitutionalism 2.5.6 Situating the empire of laws 2.5.7 From the empire of laws to the rule of law 2.6 The rule of law 55 2.6.1 Dicey’s rule of law 2.6.2 The legacy Dicey’s rule of law 2.7 Categorising accounts of the rule of law 59 2.7.1 Why the rule of law? 2.7.2 The rule of law and the arbitrary exercise of power 2.7.3 Arbitrary power in rule of law scholarship 2.7.4 Republican freedom and the rule of law. 2.8 Conclusion 68 Part 2 - Law and Horizontal Freedom Chapter 3 - Private Unfreedom and Public Power 3.1 Horizontal unfreedom and public power 70 3.2 Slavery: the ideal type of horizontal unfreedom 70 3.2.1 Public power and private domination 3.3 Republicanism and feminism 73 3.3.1 Feminism against republicanism 3.3.2 Feminism against non-domination 3.3.3 Mary Astell 3.3.4 Forms of gendered domination 3.3.5 The lowest common denominator 3.4 Neo-republican redemption? 81 3.4.1 Pure gender-based horizontal domination 3.4.2 Public and private in (feminist) republicanism 3.5 Economic Republicanism 86 3.5.1 Free labor 3.5.2 Free labor against wage slavery 3.5.3 Slaveholders against unfree labor 3.5.4 The end of labor republicanism 3.5.5 The Slaughter-House cases 3.5.6 Wage slavery and non-domination 3.6 Conclusion 98 Chapter 4 - Problems of Freedom and Property 4.1 The contemporary vocabulary of freedom 99 iii 4.2 Neo-liberal freedom 100 4.2.1 Rhetoric and reality 4.2.2 The role of the state 4.3 The distribution of property and freedom 104 4.3.1 Definitional purity 4.4 Liberalism, capitalism and freedom 107 4.4.1 Money versus interference 4.5 A republican take on freedom and money 110 4.5.1 The presupposition of plurality 4.5.2 Relative inequality and republican freedom 4.5.3 Neo-republican freedom and poverty: two lessons 4.5.4 Equality and freedom 4.6 Property and freedom 114 4.6.1 Property and unfreedom 4.6.2 Property as interference 4.6.3 Moralising interference 4.6.4 Moralising ownership 4.6.5 The insufficiency of legality 4.7 Acquisition and transfer 122 4.7.1 Historical entitlement theory 4.7.2 Freedom in an owned world 4.7.3 Paradoxes of freedom and property 4.8 Property and freedom in the republican revival 127 Chapter 5 - Marriage, Divorce and the Law 5.1 Horizontal relationships and freedom 130 5.1.1 The choice of case studies 5.2 Husband and wife 134 5.2.1 The criminal law 5.2.2 The consequences of marriage 5.3 Ending a marriage 136 5.3.1 The new law of divorce 5.3.2 Bargaining, divorce and freedom 5.3.3 Horizontal freedom and the conditions of divorce 5.3.4 The expansion of freedom 5.4 The background of property 145 5.4.1 Marital property at common law 5.4.2 Statutory departure 5.4.3 The undue influence exception 5.6 Financial provision on divorce 149 5.6.1 Perverse incentives 5.6.2 The principles governing financial provision 5.7 The matrimonial home 152 5.7.1 The quality of interference 5.8 Effects of legal reform 155 5.9 Conclusion 156 iv Chapter 6 - Law, Freedom and Property - The Case of Employees 6.1 From the specific to the general 160 6.2 The employer/employee relationship 161 6.2.1 Property, material needs and employment 6.3 A general theory of (republican) freedom and law 163 6.3.1 Weber, violence and private law 6.3.2 Property as sovereignty 6.3.3 From property to rights 6.3.4 From power to consent 6.3.5 Consent and coercion 6.3.6 The mutuality of coercion 6.4 The law and coercion 173 6.4.1 Bargaining in the shadow of law 6.4.2 Law and domination 6.5 The freedom of employees 177 6.5.1 Ending employment 6.5.2 The ‘right’ to strike at common law 6.5.3 Statutory departure 6.6 Justifying the right to strike 187 6.6.1 The right to strike and forced labour 6.6.2 The partiality of collective laissez-faire 6.7 Free labor in the republican revival 193 6.8 What happens when the state ‘retreats’? 195 Part 3 - Republican Constitutionalism in the Shadow of Horizontal Freedom Chapter 7 - The Failures of Republican Constitutionalism 7.1 Republicanism and constitutional design 198 7.1.1 The failure of non-domination as a constitutional ideal 7.2 Republicanism, democracy and elitism 199 7.2.1 Justifying republican elitism 7.2.2 Intrinsic and instrumental justifications of democracy 7.3 Neo-republicanism and democracy 205 7.3.1 A republican failure? 7.3.2 Conclusion 7.4 Republicanism and rights review of legislation 210 7.4.1 Rights review in liberal democracy 7.42 Rights review - principle and pragmatism 7.5 Political constitutionalism 216 7.5.1 Politics versus law 7.6 From liberalism to republicanism 221 7.6.1 The arbitrariness of rights 7.7 Conclusion - on democracy and rights 227 v Chapter
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