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Book Review [Republicanism: a Theory of Freedom and Government] Santa Clara Law Review Santa Clara Law Review Volume 39 | Number 1 Article 9 1-1-1998 Book Review [Republicanism: A Theory of Freedom and Government] Santa Clara Law Review Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Santa Clara Law Review, Book Review, Book Review [Republicanism: A Theory of Freedom and Government], 39 Santa Clara L. Rev. 355 (1998). Available at: http://digitalcommons.law.scu.edu/lawreview/vol39/iss1/9 This Book Review is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. BOOK REVIEW THE REPUBLICAN MANIFESTO Republicanism: A Theory of Freedom and Government. By Philip Pettit. New York, Oxford University Press, 1997. Pp. 304. Hard Cover. $29.95 Reviewed by Mortimer Sellers* The United States Constitution provides that the federa- tion shall guarantee a "[r]epublican [florm of [g]overnment" to every state in the Union.1 This makes republicanism one of the guiding principles of American law, to be imposed, by force if necessary, whenever states depart from their republi- can foundations. Yet despite its central position in American constitutional law, the republican guarantee has become an ideological cipher, used to mean anything or nothing and generally ignored by judges and lawyers, or misapplied by le- gal academics.2 Now at last Philip Pettit's new book on Re- publicanism examines republican government from a sound historical perspective, illuminating the republican guarantee in the light of contemporary philosophical insights, and sug- gesting what republican ideals require, applied to modern problems. Pettit does not waste much space on history, because his purpose is normative, but his short first historical chapter * A.B. 1980, J.D. 1988, Harvard University. B.C.L. 1988, D.Phil. 1986, Oxford University. M.N.S. Sellers is a Professor of Law and Director of the Center for International and Comparative Law at the University of Baltimore School of Law. 1. U.S. CONST. art. IV, § 4. 2. See G. Edward White, Reflections of the "Republican Revival": Inter- disciplinary Scholarship in the Legal Academy, 6 YALE J.L. & HUMAN. 1 (1994); Daniel T. Rodgers, Republicanism: The Careerof a Concept, 79 J. AM. HIST. 11 (1992) (critizing the use of republican terminology by law school academics). 355 356 SANTA CLARA LAW REVIEW [Vol. 39 justifies the rest of the book by explaining clearly and suc- cinctly what republicanism is and has been through the ages.! Recent American academic and law school discussions have sometimes implied that Aristotle,4 Sparta,5 or Athenian democracy' were in some sense models of republican govern- ment in the United States and elsewhere.' Pettit correctly insists that republican allusions always evoked the primor- dial conception of liberty, or libertas, of the world's first res publica in Rome.8 Republican liberty requires that governments must never intervene in private lives, except to serve the common good (res publica) of the people.! Pettit demonstrates that republics secure liberty for their citizens as "non- domination," protecting all equally against arbitrary interfer- ence by self-interested groups, individuals or the state." He usefully distinguishes more recent Hobbesian conceptions of liberty as license, or the absence of restraint, from the older republican tradition of liberty through law." This differs from simple democracy or tyranny of the majority in not be- ing populist, homogenous, or even necessarily communitar- ian." The state is not the servant of the people, but their trustee, acting faithfully in the interests of all." Pettit's Project Pettit's argument begins (chapter 1) with a history of the republican conception of liberty, culminating in its greatest 3. Cf. M.N.S. SELLERS, Republican Liberty, THE JURISPRUDENCE OF LIBERTY (Moens and Ratnapala, eds., 1996). 4. Frank I. Michelman, The Supreme Court 1985 Term, Foreword: Traces of Self-Government, 100 HARV. L. REV. 4 (1986). 5. PAUL A. RAHE, REPUBLICS ANCIENT AND MODERN: CLASSICAL RE- PUBLICANISM AND THE AMERICAN REVOLUTION (1992). 6. MICHAEL J. SANDEL, DEMOCRACY'S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY (1996). 7. These views probably derive from misreadings of J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION (1975). 8. M.N.S. SELLERS, AMERICAN REPUBLICANISM: ROMAN IDEOLOGY IN THE UNITED STATES CONSTITUTION (1994). 9. PHILIP PETTIT, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT, at vii (1997). 10. Id. at vii. 11. Id. at 5. 12. Id. at 8. 13. Id. at 9. 1998] REPUBLICANISM 357 triumph in the American Revolution. He goes on (chapter 2) to develop a philosophy of freedom as non-domination, distin- guishing republican liberty from later Hobbesian construc- tions of freedom as non-interference. This lays the ground- work for a broader application of liberty (chapter 3) to the project of designing a state. Pettit sets out to explain (chapter 4) the egalitarian and communitarian appeal of re- publican political and legal institutions. Such institutions will act (chapter 5) to restrain private power, which Pettit calls "dominium," as well as public power (chapter 6), which Pettit calls "imperium." This requires certain regulating checks and balances (chapter 7) to keep the system stable, al- though Pettit concludes (chapter 8), that republican institu- tions will not be enough in themselves. To succeed they also need the support of virtue, which is to say, of embedded re- publican attitudes in society at large. The project as a whole falls into two parts. First (Part I), Pettit must identify what republican freedom is. Then (Part II), having done so, he explores the political and legal institu- tions that secure republican government in a just and stable commonwealth, or free state. Applied to United States con- stitutional discourse, Part I corresponds to the Preamble and XIVth Amendment: what it is to "secure the blessings of lib- erty to ourselves and our posterity" 4 or "deprive any person of... liberty." 5 Part II corresponds to the body of the Consti- tution, guaranteeing a "republican form of government" to every state in the Union. 6 Neither makes sense without the other. Republican governments secure liberty. Liberty de- fines republican government. This is why, as George Wash- ington observed when he inaugurated republican government under the United States Constitution, "the sacred fire of lib- erty and the destiny of the republican model of government, are justly considered as deeply, perhaps as finally, staked on the experiment entrusted to the hands of the American Peo- ple." 7 14. U.S. CONST. preamble. 15. U.S. CONST. amend. XIV. 16. U.S. CONST. art. IV, § 4. 17. George Washington, The First Inaugural Speech (April 30, 1789), in GEORGE WASHINGTON: A COLLECTION, at 462 (W.B. Allen ed.,1988). 358 SANTA CLARA LAW REVIEW [Vol. 39 Republican Liberty Defined Republican liberty, as Pettit (correctly) defines it, re- quires immunity from arbitrary power.18 Pettit repeats Tom Paine's definition of arbitrary state power as the power in public officials to act with themselves, "and not the res- publica," as their object."9 So "[e]very government that does not make the res-publica its whole and sole object, is not good government" and "republican government is no other than government established and conducted for the interest of the public.""° Pettit considers governments arbitrary that have the power to impose their will contrary to the public good, whether or not they exercise this power. It is the lack of con- straint that makes power arbitrary.2 Republics must be "empire[s] of laws, and not of men."2 Law professors, judges and lawyers have tended to lose sight of the purposes of America's constitutional experiment. They casually adopt a new vocabulary of "negative" liberty first advanced (as Pettit shows) by opponents of the Ameri- can Revolution.23 This replaced the original republican con- ception of liberty as non-domination with a new conception of liberty as non-interference." Such profound changes in meaning entailed corresponding changes in the law, or rather in academic and judicial perceptions of the relationship be- tween liberty and the law. 5 The original sense of liberty re- quired law for its existence, since laws create the freedoms that citizens share. As John Locke observed against Sir Rob- ert Filmer: "the end of law is not to abolish or restrain, but to preserve and enlarge freedom," by protecting citizens against the violent impositions of their fellow human beings.26 Recent liberal philosophers, rejecting Locke's viewpoint, 18. PETTIT, supra note 9, at 51. 19. Id. at 56, (quoting THOMAS PAINE, "THE RIGHTS OF MAN: PART II," re- printed in POLITICAL WRITINGS 168 (Bruce Kuklick ed., Cambridge Univ. Press 1989)). 20. Id. at 29-30 (cited and partially quoted in Pettit). 21. Id. at 55. 22. Id. at 39 (quoting JAMES HARRINGTON, THE COMMON WEALTH OF OCEANA AND A SYSTEM OF POLITICS 8 (J.G.A. Pocock ed., Cambridge Univ. Press 1992). 23. PETTIT, supra note 9, at 35-41. 24. Cf. M.N.S. SELLERS, THE SACRED FIRE OF LIBERTY: REPUBLICANISM, LIBERALISM, AND THE LAW (1998). 25. PETTIT, supra note 9, at 35-41. 26. JOHN LOCKE, TWO TREATISES OF GOVERNMENT, at II.57 (1690). 1998] REPUBLICANISM 359 have embraced the doctrine of Hobbes and Filmer, to view
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