The insufficiency of non-domination

Political Theory

Volumn 36, Issue 1, 2008, Pages 9-36

  Markell, Patchen ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

Agency; Democracy; Imperialism; Pettit; Republicanism; Slavery

Indexed keywords

EID: 38049042744     PISSN: 00905917     EISSN: 15527476     Source Type: Journal    
DOI: 10.1177/0090591707310084     Document Type: Article

References (71)

1. Instructions to General E. S. Otis, December 21, 1898, in United States Adjutant General's Office, Correspondence Relating to the War with Spain and Conditions Growing Out of Same (Washington, DC: Government Printing Office, 1902). 859.
2. Denktagebuch, 1950 - 1973, ed. Ursula Ludz and Ingeborg Nordmann, vol. 1 (Mnich: Piper, 2002). 367 (Book XV, May 1953, No. 33), my translation.
3. Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford, UK: Oxford University Press, 1999). A Theory of Freedom: The Psychology and Politics of Agency (Oxford, UK: Oxford University Press, 2001). Hereafter R and TF.
4. Philip Pettit, " The Domination Complaint, " 92, and " Reply to Bader and Vatter, " 185, both in Melissa S. Williams and Stephen Macedo, Political Exclusion and Domination, Nomos 46 ( New York: New York University Press, 2005 ).
5. See, for example, Niall Ferguson, Empire: The Rise and Demise of the British World Order and the Lessons for Global Power (New York: Basic Books, 2004). 315 - 16 ; on the Philippine war, see Stuart Creighton Miller, "Benevolent Assimilation": The American Conquest of the Philippines, 1899-1903 ( New Haven: Yale University Press, 1982 ).
6. See, for example, Harry Harootunian, The Empire's New Clothes: Paradigms Lost, and Regained (Chicago: Prickly Paradigm Press, 2004). and Chalmers Johnson, The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic ( New York: Henry Holt, 2004 ).
7. See most recently and most reflexively Cullen Murphy, Are We Rome? The Fall of an Empire and the Fate of America ( Boston: Houghton Mifflin, 2007 ).
8. See Pettit's brief comments about the "colonial" state at R 291.
9. Edmund Burke, " Speeches on the Impeachment of Warren Hastings, " in The Portable Edmund Burke, ed. Isaac Kramnick (New York: Penguin, 1999). 394ff ;
10. see also Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton, NJ: Princeton University Press, 2005). chap. 3.
11. See Robert L. Beisner, Twelve Against Empire: The Anti-Imperialists, 1898-1900 ( New York: McGraw Hill, 1968 ).
12. For the emergence of this ideology see Eric Stokes, The English Utilitarians and India (Oxford, UK: Clarendon Press, 1959). esp. chap. 1.
13. For an analogous argument, focusing on a different insufficiency, see Henry S. Richardson, " Republicanism and Democratic Injustice, " Politics, Philosophy, and Economics 5, no. 2 (2006). 172 - 200.
14. This way of putting it reflects both my debt to, and disagreement with, Miguel Vatter's recent argument that Pettit's framework fails to attend to the phenomenon of "nonarbitrary" domination ("Pettit and Modern Republican Thought," in Melissa S. Williams and Stephen Macedo, Political Exclusion and Domination, Nomos 46 [ New York: New York University Press, 2005 ], 129). What concerns Vatter is a form of "domination" that consists in the fact of subjection to law, which the law cannot produce on its own and which must therefore be produced through a prior act of sovereign decision (126-29). Yet this characterization of the problem reproduces the idea that domination consists in a kind of arbitrariness-in this case, an arbitrary decision that stands behind the law as its condition of possibility. (Vatter's insistence that this kind of domination is "nonarbitrary" depends on the claim that for Pettit "arbitrary power only refers to the sway that private arbitrary decisions can have over the lives of others" [128], but in fact, Pettit explicitly indicates that both public and private power can be arbitrary and therefore dominating [R 130, 150]). The problem, I contend, lies in the term "domination" itself: Pettit is right to see a tight connection between domination and arbitrariness, but wrong to think that domination can capture the full range of forms of injustice; identifying the limits of Pettit's approach therefore requires a more radical departure from the concept of domination than Vatter performs.
15. Quentin Skinner, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998). 38 - 40.
16. On paternalism in Roman and neo-Roman republicanism, see Daniel Kapust's excellent " Skinner, Pettit, and Livy: The Conflict of the Orders and the Ambiguity of Republican Liberty, " History of Political Thought 25, no. 3 (Autumn 2004). 377 - 401.
17. The difference between these two kinds of paternalism is important. Pettit claims that republicanism outlaws something like paternalism in the first sense-a state that "fails to take account of people's perceptions of their interests" (R 291). But paternalism in the second sense flies below the radar both of Pettit's republicanism and of conventional liberal treatments of paternalism, which tend to focus either on cases of interference with individual choices or on the substitution of one person's judgment for another's.
18. The terms are taken from Tocqueville's account of "democratic despotism" in Democracy in America, ed. J. P. Mayer, trans. George Lawrence (Garden City, NY: Anchor Books, 1969). 692.
19. For example, from Roman jurists' catalogues of corporeal objects subject to ownership: "land, a slave, clothing, gold, silver, and countless others." Gaius Inst. 2. 13 (Gaius, Elements of Roman Law, trans. Edward Poste [ Oxford: Clarendon Press, 1890 ], 147). On the trouble with reducing slavery to the ownership of persons, see Orlando Patterson, Slavery and Social Death: A Comparative Study ( Cambridge, MA: Harvard University Press, 1982 ).
20. On the fantasy of "the slave as a perfectly responsive instrument" see Richard Friedman, " Liberty Conceived as the Opposite of Slavery, " in Bonnie Honig and David R. Mapel, eds., Skepticism, Individuality, and Freedom: The Reluctant Liberalism of Richard Flathman (Minneapolis: University of Minnesota Press, 2002). 175.
21. This point suggests something important about the ways in which political language carries historical legacies. The risk involved in using a political language that originated in a hierarchical context-as the language of republicanism did-is not that it will tend to reproduce anti-egalitarianism wherever it goes, as though terms and concepts were agents of transhistorical contamination; for political languages can and have been turned against the very hierarchies, such as slavery, that their originators supported or countenanced. What remains most problematic in such languages is not that they were once used to support hierarchy; it is that they were useful in this respect because they tendentiously misrepresented the nature and operation of the hierarchical institutions they supported; correspondingly, the danger in trying to use such language to other ends is not that, in doing so, we will somehow be drawn back toward an endorsement of subordination, but that we will misunderstand the very phenomena we wish to criticize.
22. Oxford English Dictionary, 2 nd ed., s. v. "arbitrary," first sense.
23. See also the OED's third sense: "derived from mere opinion or preference, not based in the nature of things; hence, capricious, uncertain, varying." Oxford English Dictionary, 2 nd ed., Ibid.
24. On Christian paternalism see Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Pantheon Books, 1974).
25. On the law of slavery in Greece and Rome see T.E.J. Wiedemann, Slavery, Greece & Rome: New Surveys in the Classics no. 19 (Oxford, UK: Clarendon Press, 1987). 22 - 29.
26. On legal codes in British and Latin America see David Brion Davis, The Problem of Slavery in Western Culture (Ithaca: Cornell University Press, 1966). chap. 8.
27. It is not always clear what kind of weight the term "avowable" bears. Often Pettit uses the term to mean "conscious or [able to be] brought to consciousness without great effort" (TF 156), or, as he has more recently said, "avowal-ready" (" The Determinacy of Republican Policy: A Reply to McMahon, " Philosophy and Public Affairs 34, no. 3 [ 2006 ]: 278 - 79).
28. In this sense "avowable" specifies that an agent's interests are defined by what she herself is disposed to say about them. Sometimes, however, Pettit uses "avowable" to specify something like legitimate interests, those that "are consistent with the desire to live under a shared scheme that treats no one as special" (" Republican Freedom and Contestatory Democratization, " in Ian Shapiro and Casiano Hacker-Cordón, eds., Democracy's Value [ Cambridge: Cambridge University Press, 1999 ], 176).
29. and he has used the verb "to avow" to mean "to commit oneself to" (" The Capacity to Have Done Otherwise, " in Rules, Reasons, and Norms [ Cambridge: Cambridge University Press, 2002 ], 267 - 71).
30. On the stronger sense of "avow," see also Christopher McMahon, " Nondomination and Normativity, " Pacific Philosophical Quarterly 88 (2007). 322.
31. On this basis Christopher McMahon has argued that Pettit's idea of arbitrariness is "moralized," a claim that Pettit has resisted. (McMahon, " The Indeterminacy of Republican Policy, " Philosophy and Public Affairs 33, no. 1 [ 2005 ]: 67 - 93 ;
32. Pettit, " The Determinacy of Republican Policy ";
33. McMahon, " Nondomination and Normativity.") If to call a conception of arbitrariness "moralized" means that something is arbitrary if it is judged to be immoral through the application of independent standards of evaluation, then Pettit seems to me right that his use of "arbitrary" isn't moralized. But Pettit's second sense of "arbitrary" does seem moralized in a narrower way, insofar as the interests that must be tracked if interference is to be non-arbitrary are not any old interests, but have been passed through the legitimating filters of "commonness" and "avowability." Where McMahon seems to me to go wrong is in assuming that this work of filtering out illegitimate interest-claims is equivalent to having an all-things-considered moral debate about the instance of interference in question.
34. See Frankfurt, " Freedom of the Will and the Concept of a Person, " in The Importance of What We Care About ( Cambridge: Cambridge University Press, 1988 ).
35. Oxford English Dictionary, s. v. "wanton," sense b.1. Pettit cites Frankfurt's use of "wanton" at TF 52.
36. For Pettit's characterization of the theory of freedom as non-domination as, in Berlin's terms, "certainly negative," see " Keeping Republican Freedom Simple: On a Difference with Quentin Skinner, " Political Theory 30, no. 3 (June 2002). 340 ; for other discussions, see R 17-31, 51; TF chap. 6.
37. The foregoing account is simplified: in Pettit's account, the recursive and bystander problems both arise in principle for all three of the candidate theories of freedom he considers (as does a third problem, the "modal" problem, which I don't discuss here). Still, the recursive problem is in the foreground of Pettit's critique of the theory of freedom as rational control, just as the bystander problem is in the foreground of his critique of the theory of freedom as volitional control.
38. Notably, Pettit's use of "person" in this context runs counter to the way he uses the term in the rest of the book. Elsewhere, "person" names the third of the three sorts of thing to which "freedom" may be ascribed: theories of freedom as rational control focus on free action; theories of freedom as volitional control focus on the free self-that is, on an agent's "relationship to their own psychology"-and theories of discursive control focus on free personhood, understood as a matter of an agent's "social status" (TF 4). There, "person" is a thicker concept than "self," so it comes as a surprise when Pettit presents the criterion of personal identity as more minimal and less discriminating than the criterion of self-identity. Yet far from being a sign of muddled thinking, Pettit's shifting use of the term "person" is significant because it continues a long history of equivocation about the meaning of personhood, and of uncertainty about how to relate personhood conceived as a brute, bodily fact to personhood conceived as an intersubjectively achieved status, traces of which can be seen in, for example, the doctrine of the king's two bodies, natural and politic, or in the doubled position of slaves in Roman law, suspended between the law of things and the law of persons. (On the parallel between these doublings see Stephen M. Best, The Fugitive's Properties: Law and the Poetics of Possession [ Chicago: University of Chicago Press, 2004 ]). I shall return to this theme later.
39. I owe this insight into the import of Pettit's reduction of the bystander problem to the problem of the elusive self to Loren Goldman.
40. That, at least, is the typical gloss in modern commentaries on Roman law (e.g. Thomas Collett Sandars, The Institutes of Justinian, 5 th ed. [ London: Longmans, Green, and Co., 1874 ], xlvii).
41. although the classical sources never actually define dominium in these terms, nor offer any general definition of ownership (Barry Nicholas, An Introduction to Roman Law [ Oxford, UK: Clarendon Press, 1977 ], 154;
42. Shael Herman, " The Uses and Abuses of Roman Law Texts, " American Journal of Comparative Law 29, no. 4 [Autumn 1981 ]: 671 - 90).
43. On the origins of the legal terminology see Max Kaser, Eigentum und Besitz im älteren römischen Recht (Köln: Böhlau-Verlag, 1956). 306 ff;
44. György Diósdi, Ownership in Ancient and Preclassical Roman Law (Budapest: Akaémiai Kiadó, 1970). 135 - 6 ;
45. Orlando Patterson, Slavery and Social Death, 31 - 32.
46. Peter Jones and Keith Sidwell, eds., The World of Rome: An Introduction to Roman Culture (Cambridge: Cambridge University Press, 1997). 211.
47. Peter Jones and Keith Sidwell, eds., The World of Rome: An Introduction to Roman Culture 1997. 211, Ibid, 83 - 93;
48. Andrew Lintott, The Constitution of the Roman Republic (Oxford: Oxford University Press, 1999). chap. 7.
49. On prouincia, see Jones and Sidwell, World of Rome, 16.
50. Lintott, Constitution of the Roman Republic, 96 ;
51. and Jones and Sidwell, World of Rome, 84.
52. Jones and Sidwell, World of Rome, 109 - 111.
53. Of course, dominium establishes horizontal relationships between owners and non-owners too, but since dominium is by definition exclusive and indivisible, the very term seems to render nonsensical all questions about whether ownership in a particular object is "unduly concentrated." With dominium, the horizontal axis can only become controversial if there is uncertainty about which person is really the exclusive owner of a thing.
54. If "domination" is the characteristic form of injustice threatened by dominium, it might be tempting to call this second sort of injustice "imperialism," to echo imperium. But this would be misleading, because, unlike "domination," in ordinary language "imperialism" has a concrete referent. Calling this dimension of injustice "imperialism" would thus falsely imply both that imperialism (in its ordinary sense) is the only or primary example of this sort of injustice, and that imperialism (in its ordinary sense) can only be unjust in this way and not also as a source of domination.
55. Livy 6.34.4 ( Livy, History of Rome, ed. Rev. Canon Roberts [ New York: Dutton, n.d.], translation modified [substituting the literal "usurped possession" for "won back," and "honor" for "dignity"]).
56. Livy 34.32.2.
57. Cic. Leg. agr. 2.17-18 (The Orations of Marcus Tullius Cicero, trans. C. D. Yonge, vol. 2 [ London: George Bell, 1909 ], 220)
58. see also 2.29-35. On the law, see Andrew Lintott, Judicial Reform and Land Reform in the Roman Republic: A New Edition, with Translation and Commentary, of the Laws from Urbino (Cambridge: Cambridge University Press, 1992). 56 - 57.
59. Here it is important to resist the modern association of "usurpation" with the theft of another's property. In classical Latin, usurpare was not invariably negative, but often meant simply "to take into use" or "make use of" something; and usurpatio commonly referred to a "taking into use" or "making use" of a thing, or the use of a word or expression. (Charlton T. Lewis and Charles Short, A Latin Dictionary [ Oxford, UK: Clarendon Press, 1879 ]).
60. Usurpatio could also mean an inappropriate "seizing" or "using"-but even in such contexts, its character as a usurpation was not necessarily rooted in a strong counter-claim of ownership in the sense of dominium. See the discussions of usucapio and usurpatio in Justinian Digesta 41.3 (The Digest of Justinian, English translation ed. Alan Watson [ Philadelphia: University of Pennsylvania Press, 1998 ]).
61. and Nicholas, Introduction to Roman Law, 122 ff. I hope to trace some of the subsequent history of "usurpation" as a political term in future work.
62. Stokes, English Utilitarians and India, 3 - 7.
63. James Scott's distinction between "public" and "hidden" transcripts represents one effort to negotiate this dilemma (Domination and the Arts of Resistance: Hidden Transcripts [ New Haven, CT: Yale University Press, 1990 ]).
64. For a history that keeps the two points of view in balance, see Steven Hahn, A Nation Under Our Feet: Black Political Struggles in the Rural South from Slavery to the Great Migration ( Cambridge, MA: Harvard University Press, 2003 ).
65. On the limited success of such efforts see Hahn, A Nation Under Our Feet, chap. 1.
66. For an analogous point about the contingent relationship between deviant practices and political resistance in contemporary politics, see Cathy J. Cohen, " Deviance as Resistance: A New Research Agenda for the Study of Black Politics, " Du Bois Review 1, no. 1 (2004). esp. 37-41.
67. For Pettit's view of democracy see especially R 8 and chap. 6; TF chap. 7; " Republican Freedom and Contestatory Democratization, " in Ian Shapiro and Casiano Hacker-Cordn, eds., Democracy's Value (Cambridge: Cambridge University Press, 1999). " Depoliticizing Democracy, " Ratio Juris 17, no. 1 (March 2004). 52 - 65.
68. See also his rejection of democracy understood as collective autonomy in " Depoliticizing Democracy, " 58 - 60. For another democratic critique of Pettit's turn to Rome, see John P. McCormick, " Machiavelli Against Republicanism: On the Cambridge School's 'Guicciardinian Moments,' " Political Theory 31, no. 5 (October 2003). 633 - 636.
69. Pettit, " Depoliticizing Democracy, " esp. 58 - 62.
70. See e.g. Arist. Pol. 1.5 (1254b16-26).
71. See Welch, Response to Imperialism, chap. 9.