Law and Republicanism: Mapping the Issues

Samantha Besson and Jos Luis Mart

Positive laws in constitutional government are designed to erect boundaries and establish channels of
communication between men whose community is continually endangered by the new men born into it.
Arendt, H., Between Past and Future.1

I. Introduction
Since the last decade of the twentieth century, debates in political theory have been
increasingly dominated, at least in Anglo-American circles, by the opposition between
liberalism and republicanism. Today, it is safe to describe republicanism as the major
alternative to liberal political theory. This is true in the European context given the long
republican traditions in Italy, France, or United Kingdom, and the more recent but remarkable
awakening of republicanism in Spain, but also beyond Europe as exemplified by the
development of republican scholarship in the United States and Latin America.
Republicanism is a well-known political and democratic theory. In the sense used in this
volume, it has nothing to do with the contemporary opposition to monarchyat least to the
extent that it is part of a constitutional and democratic set of political institutionsor with the
current American political party. It refers, instead, to a long tradition in political philosophy
that goes back to Ancient Greece. Scholars versed in the history of political thought have long
started providing detailed accounts of the main authors and works that have contributed to this
tradition for more than twenty-five centuries, from Aristotle to Montesquieu, Rousseau, or
Arendt, and from Cicero or Machiavelli to Harrington, Paine, or Jefferson. 2 In the last few
1

Arendt, H., Between Past and Future: Six Exercises in Political Thought, 2nd edn. (New York: Viking Press,

1968), 465.
2

See e.g. Baron, H., The Crisis of the Early Italian Renaissance, 2nd edn. (Princeton: Princeton University Press,

1966); Bailyn, B., The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University
Press, 1967); Wood, G. S., The Creation of the American Republic 1776-1787 (Chapel Hill, NC: University of
North Carolina Press, 1969); Pocock, J. G. A., The Machiavellian Moment: Florentine Political Thought and the

years, a number of philosophers and political theorists have begun to develop a contemporary
political doctrine founded on that republican tradition, and have produced a myriad of books
and papers intending to criticize and improve the state of current constitutional democracies
and to differentiate themselves from political liberalism. 3

Atlantic Republican Tradition (Princeton: Princeton University Press, 1975); Skinner, Q., The Foundations of
Modern Political Thought: Volume 1 The Renaissance (Cambridge: Cambridge University Press, 1978); Van
Gelderen, M. and Skinner, Q. (eds.), Republicanism: A Shared European Heritage (Cambridge: Cambridge
University Press, 2002); Skinner, Q., Liberty before Liberalism (Cambridge: Cambridge University Press, 1998);
Bock, G., Skinner, Q., and Viroli, M. (eds.), Machiavelli and Republicanism (Cambridge: Cambridge University
Press, 1990); Viroli, M., For Love of Country (Oxford: Oxford University Press, 1995); Vetterli, R. and Bryner, G.,
In Search of the Republic: Public Virtue and the Roots of American Government (Totowa, NJ: Rowman &
Littlefield, 1987); Pangle, T. L., The Spirit of Modern Republicanism: The Moral Vision of the American Founders
and the Philosophy of Locke (Chicago: The University of Chicago Press, 1988); Rahe, P., Republics, Ancient and
Modern: Classical Republicanism and the American Revolution (Chapel Hill, NC: University of North Carolina
Press, 1992); Nicolet, C., L'ide rpublicaine en France (1789-1924) (Paris: Gallimard, 1982); Spitz, J.-F., La
Libert politique (Paris: Presses Universitaires Franaises, 1995); Spitz, J.-F., Le moment rpublicain en France
(Paris: Gallimard, 2005); and Sellers, M., American Republicanism: Roman Ideology in the United States
Constitution (Basingstoke: Macmillan, 1994); Sellers, M., The Sacred Fire of Liberty: Republicanism, Liberalism
and the Law (Basingstoke: Macmillan, 1998).
3

See e.g. Sandel, M., Democracys Discontent: America in Search of a Public Philosophy (Cambridge, MA:

Harvard University Press, 1996); Sandel, M., The Constitution of the Procedural Republic: Liberal Rights and
Civic Virtues, Fordham Law Review, 66/1 (1997), 1; Taylor, C., What's Wrong with Negative Liberty, in Ryan,
A. (ed.), The Idea of Freedom (Oxford: Oxford University Press, 1979); Taylor, C., Cross-Purposes: The LiberalCommunitarian Debate, in Rosenblum, N. (ed.), Liberalism and the Moral Life (Cambridge, MA: Harvard
University Press, 1989); Michelman, F., The Supreme Court 1985 TermForeword: Traces of Self-Government,
Harvard Law Review, 100 (1986), 4; Michelman, F., Laws Republic, Yale Law Journal, 97 (1988), 1493;
Sunstein, C., Beyond the Republican Revival, Yale Law Journal, 97 (1988), 1539; Sunstein, C., The Partial
Constitution (Cambridge, MA: Harvard University Press, 1993); Pettit, P., Republicanism: A Theory of Freedom
and Government (Oxford: Oxford University Press, 1997); Pettit, P., A Theory of Freedom: From the Psychology
to the Politics of Agency (Oxford: Oxford University Press, 2001); Habermas, J., Human Rights and Popular

In spite of this burgeoning literature, a lot of work remains to be done and on several fronts.
First, the history of ideas continues to play a significant role in shaping republican doctrine, 4
and the numerous and detailed historical studies published on republicanism have left some
issues open and others underexplored. 5 Second, while everyone accepts that republicanism is
a heterogeneous tradition that has historically grown around distinct lines of thought and
involving very different accounts of politics and democracy, there is no agreement on how
many republican streams or schools there are and what they are. Civic republicanism,
Aristotelian republicanism, neo-Roman republicanism, neo-Athenian republicanism, socialist
republicanism, communitarian republicanism, and even liberal republicanism are often
distinguished. But there is no consensus on how to define each of these groups of thoughts
and how to distinguish republicanism from other competing political doctrines, such as
liberalism, communitarianism, or socialism.

Sovereignty: The Liberal and Republican Versions, Ratio Juris, 7/1 (1994), 1; Habermas, J., Between Facts and
Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg (Cambridge, MA: MIT Press,
1996); Habermas, J., Constitutional Democracy: A Paradoxical Union of Contradictory Principles?, Political
Theory, 29/6 (2001), 766; Viroli, M., Republicanism, trans. A. Shugaar (New York: Hill & Wang, 2002); Dagger,
R., Civic Virtues: Rights, Citizenship, and Republican Liberalism (Oxford: Oxford University Press, 1997);
Kymlicka, W., Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford: Oxford
University Press, 2001); Honohan, I., Civic Republicanism (New York: Routledge, 2002); Weinstock, D. and
Nadeau, C. (eds.), Republicanism: History, Theory and Practice (London: Frank Cass Publishers, 2004); Honohan,
I. and Jennings, J. (eds.), Republicanism in Theory and Practice (New York: Routledge, 2006); Lovett, F.,
Republicanism, Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/republicanism); Bellamy,
R., Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge:
Cambridge University Press, 2007); and Laborde, C. and Maynor, J. W. (eds.), Republicanism and Political
Theory (Oxford: Blackwell, 2007).
4

On the importance of the historical studies in understanding this political tradition, see Honohan, Civic

Republicanism (above, n. 3), 2-4.

5

Three chapters in this volume are intended to contribute to this inclusive historical effort and to cast some light

onto the French (Spitz, chapter 12; and Lacroix and Magnette, chapter 13) and Scottish republican traditions
(Tomkins, chapter 14).

Third, as a result of the latter, the very core of republican thought is still in question. Many
authors have emphasized the importance of freedom as the core value for republicanism, 6 but
others prefer to prioritize the role of civic virtues 7 and the community.8 There is certainly not
more disagreement among republicans than among liberals, concerning their respective basic
values. However, what is distinctive of republican thinkers is that they do not only disagree
about what these central values mean, but also about which of them should take priority over
the others. That fact and the heterogeneity of both traditions add a particular complexity to the
confrontation between liberalism and republicanism. 9
A fourth concern for current republican theories is institutional design. Certain proponents of
contemporary republicanism have been concerned about practical and institutional issues, or
at least have endorsed a view of republicanism that is non-utopian. 10 Recently, some authors
6

See Skinner, Q., The Idea of Negative Liberty: Philosophical and Historical Perspectives, in Rorty, R.,

Schneewind, J. B., and Skinner, Q. (eds.), Philosophy in History: Essays on the Historiography of Philosophy
(Cambridge: Cambridge University Press, 1984); Skinner, Q., The Republican Ideal of Political Liberty, in Bock,
G., Skinner, Q., and Viroli, M. (eds.), Machiavelli and Republicanism (Cambridge: Cambridge University Press,
1990); Skinner, Q., On Justice, the Common Good, and the Priority of Liberty, in Mouffe, C. (ed.), Dimensions
of Radical Democracy: Pluralism, Citizenship, Community (London: Verso, 1992), 211; Skinner, Liberty before
Liberalism (above, n. 2); Taylor, Whats Wrong with Negative Liberty (above, n. 3); Taylor, Cross-Purposes'
(above, n. 3); Pettit, Republicanism (above, n. 3); Pettit, A Theory of Freedom (above, n. 3); Habermas, Human
Rights and Popular Sovereignty (above, n. 3); Habermas, Constitutional Democracy (above, n. 3).
7

See Arendt, H., The Human Condition (Chicago: Chicago University Press, 1958); Arendt, H., On Revolution

(New York: Penguin, 1977); Dagger, Civic Virtues (above, n. 3); Viroli, Republicanism (above, n. 3).
8

See Sandel, M., The Procedural Republic and the Unencumbered Self, Political Theory, 12 (1984), 81; Sandel,

Democracys Discontent (above, n. 3); Sandel, The Constitution of the Procedural Republic (above, n. 3).
9

Aim of this introduction is not to offer such a panoramic account and comparison, but the present volume should

reflect part of the pluralism one can find within the republican tradition.
10

Pettit, Republicanism (above, n. 3); Pettit, P., Examen a Zapatero, trans. J. L. Mart (Madrid: Temas de Hoy,

2007); Sunstein, C., Republic.com (Princeton: Princeton University Press, 2001); Bellamy, Political
Constitutionalism (above, n. 3); Laborde, C. and Maynor, J. W., The Republican Contribution to Contemporary
Political Theory, in Laborde and Maynor (eds.), Republicanism and Political Theory (above n. 3), and most of the
essays in that volume. As an example of a concrete policy, see the debate on civic education through Gutmann, A.,

have started addressing legal issues more closely, applying republican theory to certain
political and legal institutions. What is still missing, however, is a more holistic approach to
the political and legal organization of a republic. This is what the concept of legal
republicanism aims at capturing, for institutional design in political doctrines is usually
channelled through legal institutions. Besides a few studies that focus on constitutional
republicanism11 and international law12, it is Braithwaite and Pettits seminal work about

Democratic Education (Princeton: Princeton University Press, 1987); and Kymlicka, Politics in the Vernacular
(above, n. 3), ch. 16.
11

Pettit, Republicanism (above, n. 3), Part II; Bellamy, Political Constitutionalism (above, n. 3); Bellamy,

'Republicanism and Constitutionalism', in Laborde and Maynor (eds.), Republicanism and Political Theory (above,
n. 3); Honohan, Civic Republicanism (above, n. 3), Part II; Sellers, M., Republican Legal Theory: The History,
Constitution and Purposes of Law in a Free State (New York: Palgrave Macmillan, 2003); Sellers, American
Republicanism (above, n. 2); Sellers, The Sacred Fire of Liberty (above, n. 2); Tomkins, A., Our Republican
Constitution (Oxford: Hart Publishing, 2005).
12

Onuf, N. G., The Republican Legacy in International Thought (Cambridge: Cambridge University Press, 1998);

Habermas, J., Hat die Konstitutionalisierung des Vlkerrechts noch eine Chance?, in Habermas, J., Der
gespaltene Westen. Kleine politische Schriften X (Frankfurt: Suhrkamp, 2004), 113 (translated as Does the
Constitutionalization of International Law Still Have a Chance?, in The Divided West, ed. and trans. C. Cronin
(Cambridge: Polity Press, 2006), 115); Habermas, J., Eine politische Verfassung fr die pluralistische
Weltgesellschaft?, in Habermas, J., Zwischen Naturalismus und Religion (Frankfurt: Suhrkamp, 2005), 324; and
Habermas, J., Kommunikative Rationalitt und grenzberschreitende Politik: eine Replik, in Niesen, P. and
Herborth, B. (eds.), Anarchie des kommunikativen Freiheit (Frankfurt: Suhrkamp, 2007), 406; Sellers, M.,
Republican Principles in International Law: The Fundamental Requirements of a Just World Order (London:
Palgrave Macmillan, 2006); Bohman, J., Democracy Across Borders: From Demos to Demoi (Cambridge, MA:
MIT Press, 2007); Bohman, J., 'Non-Domination and Transnational Democracy', in Laborde and Maynor (eds.),
Republicanism and Political Theory (above, n. 3); Besson, S., Deliberative Demoi-cracy: Towards the
Deterritorialization of Democracy, in Besson, S. and Mart, J. L. (eds.), Deliberative Democracy and Its
Discontents (Aldershot: Ashgate, 2006); Besson, S., Institutionalizing Global Demoi-cracy, in Meyer, L. et al.
(eds.), International Law, Justice and Legitimacy (Cambridge: Cambridge University Press, forthcoming); and
Besson, S., Theorizing the Sources of International Law, in Besson, S. and Tasioulas, J. (eds.), The Philosophy of
International Law (Oxford: Oxford University Press, forthcoming).

criminal justice that has been most crucial for the development of a republican theory of law. 13
Notwithstanding, legal republicanism remains largely unexplored qua legal doctrine and
deserves more attention by philosophers and legal scholars. Besides pointing out some
concrete institutions or identifying the content of republican laws, it is important to identify
the impact of republican values both on the content and on the form and structure of law in
general, or even on the theoretical understanding of law itself. 14
In any case, legal republicanism is not only a matter of designing concrete legal institutions
for republicanism in a real world. The intersection between law and republicanism also
concerns importantparticularly normativeissues of legal theory, on the one hand. On the
other, exploring those legal theoretical issues and clarifying what should be the content of
republican law are also necessary to developing a complete and deep understanding of the
political, abstract principles of republicanism in general. Defining the principles of legal
republicanism is, at least in part, a task of mutually accommodating political and legal
principles and values. Thus, when arguing whether judicial review is compatible with
republican political principles of freedom and self-government, we are improving our
understanding of republican political principles themselves.
One of the major difficulties hampering the development of a republican theory of law has
been that philosophers are usually unable to deal with a concrete and detailed analysis of
actual institutions and that legal scholars often ground their institutional analysis on
insufficient theoretical and normative foundations. In our view, then, one of the priorities
13

Braithwaite, J. and Pettit, P., Not Just Deserts: A Republican Theory of Criminal Justice (Oxford: Oxford

University Press, 1990). See also Pettit, P., 'Republican Theory and Criminal Punishment', Utilitas, 9 (1997);
Braithwaite, J. S., Regulation, Crime, Freedom (London: Ashgate, 2000); Dagger, 'Republican Punishment,
Consequentialist or Retributive?', in Laborde and Maynor (eds.), Republicanism and Political Theory (above, n. 3);
Duff, R. A., Punishment, Communication and Community (New York: Oxford University Press, 2001); Duff, R. A.,
Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart Publishing, 2007); and
Lacey, N., State Punishment: Political Principles and Community Values (London: Routledge, 1994).
14

See Pettit, chapter 1 in this volume.

should be to create a common legal language for legal republican endeavours so as to foster
cooperative reflection about common themes, and hence to consolidate ties among political
philosophers and legal scholars who are working on republican theory. The renaissance of the
republican tradition in political theory cannot be complete before its legal dimension is
sufficiently explored and clarified. This collection of essays aims at exploring this legal
dimension and hence provides the necessary complement to the current revival of republican
political theory.15 The chapters in this volume amount to more than a mere exercise in
deductionwhether in application of abstract principles to concrete realities or in deduction
of legal principles from political ones, and their efforts involve an act of philosophical,
political and legal reflection.
In the remainder of the present introduction, we will map some of the fundamental theoretical
principles underlying republicanism in general and legal republicanism in particular. The idea
is to set a research agenda for the years to come through a survey of the main issues raised by
legal republicanism. Whereas several of the questions identified in the introduction are
addressed in some of the chapters of the book, others are still open and in need of further
studies. Another caveat is in order. Although many of these general topics were discussed
during the workshop at which the chapters in this book were first presented, the views
expressed in this introductory chapter do not necessarily reflect those of all authors in the
book. On the contrary, as will become clear in the course of the book, many of the central
issues identified in this introduction constitute the focal point of most disagreements internal
to the republican tradition.

II. Republicanism
A serious discussion of the legal aspects of republicanism requires a prior assessment of the
central values and tenets of republican political theory. Before we start our preliminary study
15

See the most recent examples of that revival in Laborde and Maynor (eds.), Republicanism and Political Theory

(above, n. 3).

of legal republicanism, it is useful to provide a broad overview of what we regard as the key
features of republicanism tout court.

1. Republicanism(s) and other political theories

Republicans disagree about what constitutes the primary or core value(s) in contemporary
republicanism. As mentioned before, some of them emphasize freedom or liberty, 16 while
others stress the role of civic virtues and active citizenry as a distinctive feature of that
tradition,17 and still others ground the doctrine in the idea of a community and the common
good,18 or more specifically in a deliberative defence of democracy. 19 Disagreement about the
core values of republicanism is often interpreted as a sign of the co-existence of many
republicanisms: some views of republicanism are closer to the liberal tradition in their
vindication of liberty as a consequence of the Roman origins of their ideas; others are situated
closer to the Aristotelian tradition with their emphasis on virtues and a citizenry that finds
self-realization in political participation; finally, others come closer to communitarianism in
their valuation of the community, or to socialism in their defence of the central value of
political equality.20

16

Skinner, The Republican Ideal of Political Liberty (above, n. 6); Skinner, Q., The Paradoxes of Political

Liberty, in Miller, D. (ed.), Liberty (Oxford: Oxford University Press, 1991); Skinner, Liberty before Liberalism
(above, n. 2); Skinner, Q., A Third Concept of Liberty, Proceedings of the British Academy, 117 (2002), 237;
Taylor, Whats Wrong with Negative Liberty (above, n. 3); and Taylor, Cross-Purposes' (above, n. 3); Pettit,
Republicanism (above, n. 3); Pettit, A Theory of Freedom (above, n. 3); Habermas, Human Rights and Popular
Sovereignty (above, n. 3); Habermas, Three Normative Models of Democracy (above, n. 6); Habermas, Between
Facts and Norms (above, n. 3); and Habermas, Constitutional Democracy (above, n. 3).
17

Arendt, The Human Condition (above, n. 7); Arendt, On Revolution (above, n. 7); Dagger, Civic Virtues (above,

n. 3); Viroli, Republicanism (above, n. 3).

18

Sandel, The Procedural Republic and the Unencumbered Self (above, n. 8); Sandel, Democracys Discontent

(above, n. 3); Sandel, The Constitution of the Procedural Republic (above, n. 3).
19

Sunstein, Beyond the Republican Revival (above, n. 3), 1539; Sunstein, The Partial Constitution (above, n. 3).

20

Laborde and Maynor, The Republican Contribution to Contemporary Political Theory (above, n. 10).

This brings us to the important question of how republicanism relates to other competing
political doctrines. Again, authors disagree about what differentiates republicanism not only
from liberalism, but also from communitarianism and socialism.
Mainstream literature insists on the opposition between republican and liberal theories. 21 This
is especially true of authors who consider liberty and/or civic virtues as central values of
republicanism, and try to differentiate the republican from the liberal notion of freedom, or to
specify how liberals traditionally have been unable to recognize the relevance of virtues in the
political system. At the same time, many neo-republican authors are admittedly deeply
influenced by the thought of first modern republicans, such as Rousseau, Montesquieu, Paine,
or Jefferson. The latter sharply distanced themselves from the liberal orthodoxy of their time,
as represented by Locke, Paley, or Bentham; those differences pertained especially to their
disagreements with Roman and Italian thinkers like Cicero and Machiavelli. 22 In any case, it
is undeniable that republicanism represents a political tradition much more ancient than
liberalism. And when contemporary republicans go back to the origins of republican thought
to find inspiration for current proposals, they are trying to distinguish themselves from the
newer liberal tradition.
The relationship between republicanism and liberalism obviously depends on how we define
both concepts. And this is not an easy task given the plurality of views and perspectives
grouped under both headings. While it is possible to contrast republicans and liberals who
endorse a clearly negative conception of liberty, like libertarians, it is more difficult to
distinguish republicans from egalitarian liberals who might argue for an interventionist
21

See Taylor, Whats Wrong with Negative Liberty (above, n. 3); Taylor, Cross-Purposes' (above, n. 3); Spitz, J.-

F., The Concept of Liberty in "A Theory of Justice" and Its Republican Version, Ratio Juris, 7 (1994), 331; Spitz,
La Libert politique (above, n. 2); Pettit, Republicanism (above, n. 3), ch. 1 and 4; Skinner, 'On Justice, the
Common Good, and the Priority of Liberty' (above, n. 6); Skinner, Liberty before Liberalism (above, n. 2); Sandel,
Democracy's Discontent (above, n. 3), 25-8; Viroli, Republicanism (above, n. 3), ch. 4; Lovett, Republicanism
(above, n. 3). See, also, most of the chapters in this volume.
22

For the exact contrast between Bentham's liberalism and republicanism, see Pettit, chapter 1 in this volume.

account of the State.23 At the same time, it is obvious that modern republicanism endorses
some principles traditionally attributed to the liberal tradition, such as the separation between
public and private spheres, the separation of powers, or the broader principle of State
neutrality. Partly because of this, some authors have suggested that republicanism and
liberalism are not foes but allies and that there is nothing wrong in defending a liberal brand
of republicanism. 24
Three remarks are in order in this context. First, no matter how difficult it is to trace doctrinal
divisions in political theory, they are useful in the academic debate and help improve our
understanding; complete awareness of the meaning of ones arguments stems from the precise
identification of ones competitors.25 For contemporary republicanism to assert itself as a
major political theory, it needs to be carefully distinguished from its main alternatives. And
this is particularly important with respect to freedom, if it is to be one of its core values, as
freedom is traditionally identified in priority with liberalism.
Second, those who reject the incompatibility between republicanism and liberalism generally
do so because they consider themselves deeply influenced by paradigm liberal thinkers, like
John Rawls, or because they endorse views that until now have been widely considered as
main liberal assumptions. However, different contexts and backgrounds call for different
23

See Pettit, Republicanism (above, n. 3), 8-10; also Sunstein, Beyond the Republican Revival (above, n. 3); and

Kymlicka, Politics in the Vernacular (above, n. 3), ch. 18.

24

Kymlicka, Politics in the Vernacular (above, n. 3), 387; Patten, A., The Republican Critique of Liberalism,

British Journal of Political Science, 26 (1996), 25; Ackerman, B., We the People, Volume 1, Foundations
(Cambridge, MA: Harvard University Press, 1991), 29-30; Sunstein, Beyond the Republican Revival (above, n.
3); Macedo, S., Liberal Virtues: Citizenship, Virtue, and Community in Liberal Contractualism (Oxford: Oxford
University Press, 1990); Haakonssen, K., 'Republicanism', in Pettit, P. and Goodin, R. (eds.), A Companion to
Contemporary Political Philosophy (Oxford: Blackwell, 1993); Laborde and Maynor, 'The Republican
Contribution to Contemporary Political Theory' (above, n. 10). For an analysis of that debate, see Lovett,
Republicanism (above, n. 3).
25

In opposition to that idea, see Laborde and Maynor, The Republican Contribution to Contemporary Political

Theory (above, n. 10).

10

answers and labels. Because republicanism had virtually disappeared during the nineteenth
century and most of the twentieth century, or at least because it was not explicitly vindicated
at those times, it was to be expected that authors like Rawls were not required to differentiate
between liberalism and republicanism, and just assumed to be liberals, or to consider
republicanism as an incompatible doctrine. And, for that reason, it is entirely irrelevant to ask
whether they were republicans or liberals, in the meanings we are currently using. 26 As a
result, although some contemporary writers may identify themselves as liberals, this is not a
definitive exclusion of their republican affiliation. 27 These labels mean different things
depending on the person who uses them, on the purpose for which they are used, and on the
context to which they are applied. What matters, of course, is to distinguish the ideas
underlying those labels.
The third remark has to do with the previous two. As mentioned before, a growing number of
contemporary philosophers and political and legal theorists declares their allegiance to the
republican tradition as a way to significantly oppose the dominant standpoint in political
theory that is usually identified as a liberal one. These authors stress the importance of values
such as freedom, equality, self-government, civic virtues, or active citizenship.
Unsurprisingly, some of these values, and hence some of the concrete institutional proposals
propounded to protect them, are also shared within the liberal tradition, 28 despite important
differences in their interpretation. It is this very difference of approach and interpretation of
the same values that explains why it is worth keeping liberalism and republicanism
conceptually separate in contemporary debates. Different conceptions of freedom, different
evaluations of the private-public sphere distinction, different notions of legal rights, different

26

The same can be said in relation to the endless debates about whether Immanuel Kant, Friedrich Hegel, and John

Stuart Mill were republicans, liberals, or both.

27

For instance, Waldron regards himself as a liberal, and Habermas situates himself halfway between liberalism

and republicanism. But the republican reading of their writings is probably the most consistent one with our
general presentation of political republicanism.
28

Pettit, Republicanism (above, n. 3), 10-11.

11

conceptions of the constitution linked to a particular view of democracy, and diverging

interpretations regarding which kind of dispositions, attitudes, or virtues can be required of, or
fostered among citizens are all significant elements that can be used to differentiate both
traditions. In the next section, we will endeavour to explore the specifically republican
interpretation of those values.
Similar problems arise in relation to the distinction between republicanism and other political
theories, such as communitarianism, nationalism, or socialism. Republicans share several
commitments with communitarians: first, the criticism of the sometimes excessively
individualistic liberal view of society; second, a richer and more complex notion of freedom
that requires citizens engagement in the public or in the political community, connected to the
rejection of a self-centred, egocentric, and privatizing conception of individual life; and third,
as a consequence of the latter, a different interpretation of the public-private division and a
different emphasis on each, together with a shared rejection of the liberal principle of
neutrality.29 In addition to those theoretical overlaps, one should mention that authors like
Taylor and Sandel, who were generally deemed as advocates of communitarianism during the
1990s opposition to liberalism, are now usually associated with republican theory. 30 As a
matter of fact, the Aristotelian legacy is usually vindicated by both doctrines. It should not
come as a surprise therefore that some authors conflate republicanism and communitarianism,
or defend a communitarian reading of republicanism. 31 In any case, despite some common
29

Pettit, Republicanism (above, n. 3), ch. 1 and 4; Skinner, 'On Justice, the Common Good, and the Priority of

Liberty' (above, n. 6); Sandel, Democracy's Discontent (above, n. 3), 25-8; Viroli, Republicanism (above, n. 3), ch.
4; Haakonssen, 'Republicanism' (above, n. 24).
30

Sandel, The Procedural Republic and the Unencumbered Self (above, n. 8); Sandel, Democracys Discontent

(above, n. 3); Sandel, The Constitution of the Procedural Republic (above, n. 3); Taylor, Whats Wrong with
Negative Liberty (above, n. 3); and Taylor, Cross-Purposes' (above, n. 3). While distinguishing between them,
Honohan claims that republicanism is a variant of communitarianism; see Honohan, Civic Republicanism (above,
n. 3), 8-12.
31

This occurs with Jrgen Habermas, who sometimes opposes republicanism because he identifies it with

communitarianism, considering Hannah Arendt as the representative of both traditions. See Habermas, Between

12

views, communitarianism defends cultural traditions in a way that republicanism need not. It
also values cultural social ties and moral virtues in general, whereas republicanism promotes
civic bonds, public virtues, and political participation in organizing the political community.
For those reasons, while communitarianism may be characterized as an eminently
conservative doctrine that looks back to past practices, republicanism is more forward-looking
as it tries to identify the conditions for fully protecting liberty and complete self-government,
thus enabling the political community to determine its own future.
More or less the same can be said with respect to nationalism and socialism. On the one hand,
republicanism has in certain historical contexts shared nationalists criticism of tyranny and
the defence of liberty, autonomy, and self-government. 32 According to some contemporary
republicans, republicanism and nationalism jointly hold the claim against liberalism that a
free society requires patriotism and solidarity bonds. 33 On the other hand, certain republicans
have shared socialists criticism of the thin liberal conception of freedom, the emphasis on the
basic equality among citizens, or the struggle against domination, exploitation, or alienation. 34
It would take too long to analyze in full the concrete relationship between republicanism and
these and other competing political doctrines. 35 It suffices to note that contemporary
republicanism encompasses a sensitivity to political problems that is at least slightly different
in emphasis from those expressed by the doctrines just mentioned.

Facts and Norms (above, n. 3), ch. 4, Parts I and II. See e.g. Habermas, J., The European Nation-State: Its
Achievements and its Limits, in Balakrishnan, G. (ed.), Mapping the Nation (London: Verso, 1996), and
Habermas, Constitutional Democracy (above, n. 3).
32

See Tomkins, chapter 14 in this volume.

33

Taylor, Cross-Purposes' (above, n. 3).

34

Pettit, Republicanism (above, n. 3), ch. 5; Honohan, Civic Republicanism (above, n. 3), 118 and 191; Gargarella,

chapter 7 in this volume.

35

Republicanism also shares some concerns with feminism; see Pettit, Republicanism (above, n. 3), ch. 5; and

Philips, A., 'Feminism and Republicanism: Is This a Plausible Alliance?', Journal of Political Philosophy, 8 (2000),
279.

13

2. Republican values
Most republicans endorse a similar set of values or principles, mainly including those of
liberty, political equality, civic virtues, and deliberative democracy, while they disagree, as
mentioned above, about which of them must be given priority in republican theory.
Notwithstanding those theoretical disagreements, most republicans tend to agree on the
majority of concrete implications of the whole set of principles. It might be considered,
therefore, that conceptual priorities or the relative centrality of one or the other value need not
make much difference in the practical conception of republican institutions, even though they
are surely related to their theoretical justification. 36 In spite of the importance of that
justificatory and philosophical debate, one may proceed while leaving it open, and explore
each of those central values in turn.
There are at least four main elements at the core of republican political thought: (i) a
particular and rich conception of liberty, that departs from a narrow, liberal one; (ii) a
particular and ambitious conception of basic and political equality, that ought to be
distinguished both from liberal and socialist conceptions; (iii) a strong and deliberative ideal
of democracy, much more participatory than what liberal democratic theory can
accommodate; and (iv) an idea of civic virtue that entails a particular conception of the
public-private distinction, that would be unacceptable from the classical liberal perspective.

a. Liberty
According to the majority view, the idea of liberty is the central value in republican political
tradition. Even though other political doctrines can share that value, the republican notion of
liberty is taken to be different from other doctrines and particularly from the liberal notion.
36

There is one aspect of that debate which is not irrelevant and which is whether republicanism is a pluralist theory

that endorses several values that cannot be ordered or balanced in a general way, or whether it assumes the
possibility of reducing or at least ordering all these values in a coherent way. This has practical implications since
it affects the way in which we operate with such values in legal practice.

14

The most popular formulation of republican liberty is Pettit's 'freedom as non-domination', 37

although it is roughly equivalent to 'neo-Roman liberty' as depicted by Skinner, 38 to 'political
liberty' as described by Taylor,39 or to 'full autonomy' with a private and a public or political
dimension as propounded by Habermas. 40 All of them are slightly different formulations of
the same republican intuition:41 the necessity to define liberty in a richer and more demanding
way than the traditional negative liberty, to borrow Berlins famous opposition, but without
conflating it with its positive characterization. 42 For most of those authors, republican liberty
constitutes a third conception that differs from negative and positive accounts of liberty, 43 a
sort of middle way between la libert des anciens and la libert des modernes, to use
Constants famous opposition.44 While negative liberty focuses on the effective absence of
interference in ones behaviour or choice, republican liberty depends on the absence of
domination, defined as the control exerted by others on ones basic domains of choice and
independently from interference. Domination, in short, means the possibility of arbitrary
interference, be that effectively realized or not. Others can control ones choices and

37

Pettit, Republicanism (above, n. 3); Pettit, A Theory of Freedom (above, n. 3); Pettit, 'Republican Freedom: Three

Axioms, Four Theorems', in Laborde and Maynor (eds.), Republicanism and Political Theory (above, n. 3); and
Pettit, chapter 1 in this volume.
38

Skinner, Liberty before Liberalism (above, n. 2).

39

Taylor, Whats Wrong with Negative Liberty (above, n. 3); and Taylor, Cross-Purposes' (above, n. 3).

40

Habermas, Human Rights and Popular Sovereignty (above, n. 3); Habermas, Between Facts and Norms (above,

n. 3); and Habermas, Constitutional Democracy (above, n. 3).

41

There are some minor differences among these characterizations, of course. As we will see later, some authors

have identified two different strands of thought in the republican conception of liberty just outlined: the neoAthenian and the neo-Roman.
42

Berlin, I., Two Concepts of Liberty, in Four Essays on Liberty (Oxford: Oxford University Press, 1969), 118.

43

Skinner, A Third Concept of Liberty (above, n. 16).

44

Constant, B., De la libert des anciens compare celle des modernes, in crits politiques (Paris: Gallimard,

1997), 589; see also Spitz, La Libert politique (above, n. 2); and Pettit, Republicanism (above, n. 3), 36.

15

behaviour without active interference, and in doing so they are violating or invading ones
republican liberty.45
On the other hand, republican liberty is not supposed to turn into the positive conception of
liberty, at least as Berlin understood it, i.e. as a way of self-realization. This positive
conception has traditionally been criticized for being paternalistic or even perfectionist. Most
republicans, however, stress that endorsing such a positive conception of liberty would fail to
respect the private liberty of individuals. It is not entirely clear what Berlin considered
positive liberty to amount to concretely, but Pettit spells out the opposition by defining
republican liberty as the situation in which a person holds a perfect dominion of her own
choices and behaviour. According to Pettit, to be free in a republican way merely requires the
absence of external domination, while to be free in a positive way would also require avoiding
all the internal causes that prevent, distort, or simply affect our free choicethings like
weakness of will, adaptive preferences, cognitive dissonances, and so on. 46 If the republican
polity was to protect and grant the liberty of individuals in such a positive view, it should
intervene in large domains of our lives in order to help us avoid those internal effects or
distortions, and this would surely lead it to adopt perfectionist or at least paternalistic policies.
Thus, it is extremely important to emphasize that the republican liberty, just as the negative,
liberal one, requires the absence and not the presence of something. But what must be absent
is not interference, but domination.

45

Pettit, Republicanism (above, n. 3); Pettit, A Theory of Freedom (above, n. 3); Skinner, The Republican Ideal of

Political Liberty (above, n. 6), 301-03; Patten, The Republican Critique of Liberalism (above, n. 24), 25, 28 and
29; Lovett, Republicanism (above, n. 3); see also a parallel strategy in Macpherson, C. B., Berlins Division of
Liberty, in Macpherson, C. B. (ed.), Democratic Theory: Essays in Retrieval (Oxford: Clarendon Press, 1973),
esp. 117-19.
46

Pettit, Republicanism (above, n. 3); Pettit, A Theory of Freedom (above, n. 3); Pettit, 'Republican Freedom: Three

Axioms, Four Theorems', in Laborde and Maynor (eds.), Republicanism and Political Theory (above, n. 3); and
Pettit, chapter 1 in this volume

16

Negative Liberty NON-ACTIVE INTERFERENCE

Liberty

LIBERTY AS NON-DOMINATION
(it permits interference when it is not arbitrary)

Positive Liberty - SELF-DOMINION

Some republicans, however, have not entirely abandoned the positive conception of liberty.
According to Bellamy, Laborde and Maynor, for instance, the neo-Athenian interpretation of
republican liberty propounded by Michael Sandel or Charles Taylor rests on ideas of selfmastery or self-realization in a community, and implies that liberty is intrinsically or
definitionally linked with popular participation. 47 This more demanding interpretation of
republican liberty seems akin to the positive conception of liberty, at least if we understand it
by reference to Constants notion of libert des anciens. It stands in stark contrast to another
republican conception of liberty, defended centrally by Skinner and Pettit, which can be called
neo-Roman. One difference between the two republican views of liberty would be that while
the former requires active political participation for granting and exercising liberty, the latter
would only require the absence of external political control, that is the absence of political
domination.48 Both perspectives value liberty and democracy. But while neo-Athenians do it
on the intrinsic grounds that it [democracy] promotes individual self-realization through
political participation, the neo-Romans do it on the instrumental grounds that it guards

47

Laborde and Maynor, The Republican Contribution to Contemporary Political Theory (above, n. 10); Bellamy,

'Republicanism and Constitutionalism' (above, n. 11), 161 et seq.; Bellamy, chapter 4 in this volume; also
Honohan, chapter 3 in this volume.
48

Laborde and Maynor, The Republican Contribution to Contemporary Political Theory (above, n. 10).

17

against domination and enshrines our status as equal citizens. 49 And this might be seen as a
fundamental division within contemporary republicanism concerning the way to interpret the
republican value of liberty.
The distinction between neo-Athenian and neo-Roman republicanism seems very clear, as far
as it relates to a sharp distinction between intrinsic and instrumental justifications, but things
are slightly more complicated. Three different levels in the understanding of liberty ought to
be carefully distinguished, and they are not necessarily connected to each other. The first level
is the negative and positive conceptions of liberty, as outlined above; the second one is the
level of the private and public dimensions of liberty, understood as domains in which liberty
can be exercised; and, finally, at the purely justificatory level, we find the instrumental and
intrinsic reasons in favour of liberty. The problem with the distinction between neo-Athenian
and neo-Roman republicanism is that it conflates these three different levels. It would be
wrong, however, to equate negative liberty with the private domain of liberty, and with
instrumental justifications, as well as it is a mistake to consider the public exercise of liberty
as a case of positive liberty, justified only by intrinsic reasons.
First of all, with respect to the negative-positive level, it is erroneous to argue that neo-Roman
republicanism is not concerned at all with the conditions of the exercise of autonomy, since
what is valued by republicans, including the neo-Romans, is not the mere formal liberty, but
to some extent the capacity to exercise that liberty. As a result, Pettit's distinction between
negative, republican liberty and positive liberty could be misinterpreted. It is true that the
republic is not required to grant all the conditions, external or internal, objective or subjective,
that allow for the actual exercise of self-dominion or full autonomy, conceived as the capacity
49

Bellamy, 'Republicanism and Constitutionalism' (above, n. 11), 159. Pettit, for instance, argues that it is only

when political institutions admit contestability and popular control and when the citizenry is attentive, civically
virtuous, and politically motivated that political domination can be avoided and liberty protected ( Pettit,
Republicanism (above, n. 3)). Skinner still clearly argues that the exercise of self-government is valuable only for
instrumental reasons, i.e. to achieve the conditions of a free State (Skinner, 'On Justice, the Common Good, and the
Priority of Liberty' (above, n. 6)).

18

to determine all the aspects that affect ones life. It would be impossible to do so without
adopting a perfectionist view of self-dominion. But the republic should, of course, remove or
avoid, as much as it can, obstacles to the exercise of ones full autonomy when they stem
from social and political reality (i.e. the complex set of social and political institutions) or
when they compromise natural preconditions for that exercise, jeopardizing, for instance, the
fulfilment of ones basic needs. This is the reason why a republican polity must take care of
its citizens basic needs. When those needs are not fulfilled, citizens cannot experience liberty
at all. As a result, it is difficult to state so easily that positive liberty is the only form of liberty
concerned with the conditions of exercise of liberty, while both negative and republican ones
are not.
Second, it is one thing to refer to that what Pettit tries to capture as positive liberty, when he
talks about self-dominion as the effective possibility of rationally governing our choices and
actions, along the lines perhaps of Aristotle, 50 but it is quite another to identify the public
aspect or dimension of liberty that one can obtain only when exercising ones liberty in the
public domain, as requested by Taylor or Sandel. True, for the State to guarantee my positive
liberty in the first sense, it needs to intervene quite incisively and paternalistically in my
private life in a way that is incompatible with the basic respect for freedom that Pettit and
others claims should apply. Still, this is not the same as permitting or even encouraging one to
participate in political decision-making.
It is hard to see why permitting political participation through the creation, for instance, of
semi-direct participatory institutions intended to complement representative bodies, is
perfectionist or paternalistic. Organizing new ways of exercising liberty cannot be at odds
with liberty itself.51 On the other hand, it is also difficult to understand why even public
encouragement of political participation through educative civic campaigns can be considered
50

Pettit, Republicanism (above, n. 3), 17-21; Pettit, A Theory of Freedom (above, n. 3), 125-9; and Pettit, chapter 1

in this volume.
51

The outcome of that exercise of liberty might lead, as a byproduct, to a violation of liberty, depending on the

content of public decisions. But permitting that exercise of liberty cannot itself be a violation of liberty.

19

an unacceptable paternalistic intervention. Promotional policies are not necessarily

compulsory ones. One often justifies State interventions to promoting certain values, as
exemplified by public encouragements to adopt a healthy life style, the promotion of culture,
and so on. Not to mention a whole range of compulsory interventions, like the obligation to
use seat belts in cars or helmets when driving motorcycles, which are generally deemed
justifiable even if they are paternalistic. Of course, this is a complex debate that would
deserve more attention than there is scope for in the present introduction.
What has become clear at this stage is the following: it is one thing to be concerned with the
public dimension of liberty, and quite another to be referring to the internal, effective, and
positive conditions for the actual exercise of that liberty. Perfectionism and paternalism are
related to the latter, not to the domain (private or public) in which liberty is exercised. In other
words, a republican can endorse a complex conception of liberty that embodies both a private
and a public dimension, and even emphasize the importance of effective political
participation, as Habermas does, without defending a positive conception of liberty, as
described by Pettit.52
And third, to value political participation and self-government for intrinsic reasons, does not
imply endorsing a perfectionist or paternalistic take either. Perfectionism and paternalism
refer to the kind of State intervention defended by a doctrine, to the institutions or policies
proposed, but not to the values they are supposed to honour or respect. Therefore, a
republican author concerned with the intrinsic value of liberty when it is exercised in the
public domain as a use of self-government, can constrain his institutional proposals by
considerations based on the same value of liberty, avoiding thus both perfectionism and
paternalism. On the other hand, an instrumental view of political participation might also be
52

The original confusion is probably due to the mistake of considering Berlins distinction between private and

public liberty equivalent to Constants one between la libert des anciens and la libert des modernes. It is true
that the two levels mentioned in the text appear conflated in the Athenian thought, and it is the reason why Berlins
and Constants accounts seem to be paralleled. But the former rests more on the idea of self-realization, while the
latter emphasizes the value of political participation.

20

sufficient to lead someone to defend broad paternalistic policies. The perfectionist or

paternalistic character of a doctrine is not conceptually related to the kind of reasons it uses to
justify a political institution or practice.
In a nutshell, there are important differences in the way in which republicans conceive liberty,
and there is no need to deny the differential influence of the Greek and Roman classical
thought on several contemporary authors. All the same, the distinction between neo-Athenian
and neo-Roman contemporary republicanisms does not account sufficiently for all the
interesting open issues relative to republican liberty. On the other hand, despite those deep
disagreements relative to the clarification of the republican idea of liberty, contemporary
republicans almost unanimously accept that the defence of liberty is conceptually related to
political self-government, be it in a strong sense and connected to active political
participation, or be it in a weaker sense and related only to the absence of political
domination.53 More particularly, the majority of contemporary republicans claim that the
current representative democratic institutions are incapable of granting adequate channels of
political participation (or democratic control and contestation) for citizens, and they conceive
of liberty as connected to a richer and more demanding ideal of democracy, such as the
deliberative ideal.54 Only when citizens are engaging in public or political debates, have an
equal share in political decision-making, and do so in developing their civic or public virtues,
only then can their liberty be secured and the threat of domination put aside. For most
contemporary republicans, as a result, political equality, self-government, deliberative
democracy, and civic virtues are all values connected to the primary idea of liberty.

53

Pocock, J. G. A., The Machiavellian Moment Revisited: A Study in History and Ideology, Journal of Modern

History, 53 (1981), 49 at 71; Dagger, Civic Virtues (above, n. 3), 105; Sunstein, Beyond the Republican Revival
(above, n. 3), 1539; Sunstein, The Partial Constitution (above, n. 3).
54

Pettit, Republicanism (above, n. 3); Habermas, Human Rights and Popular Sovereignty (above, n. 3);

Habermas, Between Facts and Norms (above, n. 3); and Habermas, Constitutional Democracy (above, n. 3);
Sunstein, The Partial Constitution (above, n. 3).

21

b. Equality
Basic or political equality has received considerably less attention on the part of
contemporary republicans, although it also constitutes a pre-condition of the existence of a
republic. To the extent that republicans are concerned with domination, they cannot tolerate
that some citizens be freer than others. The sort of equality that matters to republicans is not,
or at least not mainly, economic equality in terms of distributive justice. The strong
democratic commitment in republicanism is derived from its conception of the basic equality
of all citizens. All citizens must be equally free, particularly from the political point of view
that defines their status as citizens.55 Citizens equality is, in other words, equality in access to
power or equality in effective political influence. 56 As soon as some citizens enjoy greater
political influence than others, when influence is understood as the capacity to determine
ultimate political decisions, they are more capable than others of imposing their desires,
beliefs, or preferences and thus more likely to dominate others. Domination can only be
neutralized once we equilibrate that capacity to determine political outcomes. In other words,
all citizens should be considered as equally free in their public exercise of autonomy. What
matters for this public dimension of autonomy is once again not mere formal equality, but the

55

Pitkin, H. and Shumer, S., On Participation, Democracy, 2 (1982), 44; Michelman, The Supreme Court 1985

Term (above, n. 3), 33, 40-1; Honohan, Civic Republicanism (above, n. 3), 188-92; and Spitz, chapter 12 in this
volume.
56

This concern has been addressed in detail by promoters of deliberative democracy: see Knight, J. and Johnson,

J., What Sort of Equality Does Deliberative Democracy Require?, in Bohman, J. and Rehg, W. (eds.),
Deliberative Democracy: Essays on Reason and Politics (Cambridge, MA: MIT Press, 1997), 279; Cohen, J. and
Rogers, J., On Democracy: Toward a Transformation of American Society (New York: Penguin, 1983), ch. 3;
Cohen, J. and Rogers, J., Associative Democracy, in Bardhan, P. and Roemer, J. (eds.), Market Socialism: The
Current Debate (Oxford: Oxford University Press, 1993); Bohman, J., Public Deliberation: Pluralism,
Complexity, and Democracy (Cambridge, MA: MIT Press, 1996), ch. 3; Bohman, J., Deliberative Democracy and
Effective Social Freedom: Capabilities, Resources and Opportunities, in Bohman and Rehg (eds.), Deliberative
Democracy (above), 321; and Christiano, T., Deliberative Equality and Democratic Order, in Shapiro, I. and
Hardin, R. (eds.), Political Order: Nomos XXXVII (New York: New York University Press, 1996), 251.

22

prohibition of discrimination or inequality in the exercise of liberty. As it would be the case in

the private sphere, inequalities in the exercise of liberty constitute the seeds of domination.
As a result, the republican defence of liberty presupposes the equal dignity of every citizen:
that no one is regarded as better than the other and, to borrow Pettits expression, that citizens
can look into each others eyes and see fellow-citizens, and not others vested with special
privileges.57 According to Pettit, basic equalitylike the other republican valuesis entailed
in the very concept of republican liberty qua primary value of republicanism. 58 The fact that
the republican conception of liberty encompasses considerations of basic equality is perceived
as a feature of parsimony that makes the republican conception superior to the liberal one. 59
Other republicans, by contrast, conceive of basic equality as a separate value that
complements liberty in a complex articulation of principles. 60
Notwithstanding, it is important to distinguish two separate components in the idea of
republican equality that are not sufficiently considered in the literature. First, the republican
polity should neutralize socio-economic inequalities that prevent an equal enjoyment of the
private dimension of liberty. It is in virtue of this first element that the republic is expected to
secure social equality of opportunities, starting with an adequate response to basic needs.
Republicanism shares this first element with other egalitarian traditions like socialism or
liberal egalitarianism, which claim to be empowering the disadvantaged. 61 Like left-wing
liberalism, republicanism also requires the provision of welfare to enable the protection

57

Pettit, Examen a Zapatero (above, n. 10).

58

Pettit, P., Freedom in the Market, Politics, Philosophy, and Economics, 5 (2006), 131.

59

List, C., Republican Freedom and the Rule of Law, Politics, Philosophy, and Economics, 5 (2006), 201.

60

Michelman, The Supreme Court 1985 Term (above, n. 3), 4; Bohman, Public Deliberation (above, n. 56);

Bohman, Deliberative Democracy and Effective Social Freedom (above, n. 56); Christiano, T., The Significance
of Public Deliberation, in Bohman and Rehg (eds.), Deliberative Democracy (above, n. 56), 243.
61

Sandel, Democracys Discontent (above, n. 3); Pettit, Examen a Zapatero (above, n. 10); Spitz, chapter 12 in this

volume.

23

against dependency.62 Understood along those lines, the first element of republican equality is
connected to the private dimension of liberty discussed before.
The second element of republican equality, by contrast, is much more radical than any liberal
alternative and it is based on the idea of effective political equality. Since the republican view
of liberty stresses the importance of the public dimension of autonomy and self-government,
and supports a richer and demanding ideal of participatory and deliberative democracy, it also
calls for a more subtle and ambitious notion of political equality that goes beyond formal
equality. The kind of political equality propounded by republicanism should lead to the
effective equal capacity of every citizen to influence or determine the political decisions that
bind them.63
This second political element of republican equality is related to the public dimension of
liberty and has two kinds of effects. First, it requires removing, reducing, or eliminating as far
as possible those socioeconomic obstacles and conditions that contribute to unequal positions
in political decision-making. And, second, it requires remedying as much as possible
deliberative inequalities to secure the equal capacity to exert political influence. The first
prong of the political dimension of republican equality makes for a much more demanding
ideal of equality; it deepens the egalitarian considerations deriving from the first element of
republican equality, which is related to the private dimension of liberty. The second prong is
even more ambitious as it purports to enhance personal and cultural capabilities. In short, the
value of republican equality lies in the reduction or the elimination of what James Bohman
refers to as political poverty and that encompasses a great variety of inequalities and
differences.64 Although it is not a distributive ideal, it generates obvious distributive
62

Pettit, Examen a Zapatero (above, n. 10).

63

Bohman, Public Deliberation (above, n. 56), ch. 3; Bohman, Deliberative Democracy and Effective Social

Freedom (above, n. 56); Christiano, Deliberative Equality and Democratic Order (above, n. 56); Knight and
Johnson, What Sort of Equality Does Deliberative Democracy Require?, in Bohman and Rehg (eds.),
Deliberative Democracy (above, n. 56); Cohen and Rogers, On Democracy (above, n. 56).
64

Bohman, Public Deliberation (above, n. 56), 123; and Bohman, Deliberative Democracy and Effective Social

24

consequences, and they can become as ambitious as those proposed by other egalitarians. It
also constitutes a central idea in republican political theory, which proves particularly strong
in its political dimension when it is connected to a thick interpretation of the democratic ideal.

c. Self-government and democracy

According to Michael Sandel, the liberal begins by asking how government should treat its
citizens, and seeks principles of justice that treat persons fairly as they pursue their various
interests and ends. The republican begins by asking how citizens can be capable of selfgovernment, and seeks the political forms and social conditions that promote its meaningful
exercise.65 As mentioned before, the neo-Athenian republicans, such as Sandel or Taylor,
consider self-government and democracy in general as the main core value of republicanism,
and find a conceptual link between liberty and self-government. So do the neo-Romans,
although for slightly different reasons.
As previously indicated, almost all republicanscertainly both neo-Athenians and neoRomansaccept the connection between republicanism and the ideal of self-government.
They can differ about the reasons why participation in democracy is valuable, as well as about
the concrete political settings that respect that value, but most of them share a commitment to
the idea of self-government, and believe that the best interpretation of that ideal is that of
deliberative democracy.66 Contemporary republicanism is deeply concerned with the public
Freedom (above, n. 56), 332.
65

Sandel, Democracys Discontent (above, n. 3), 27.

66

Sandel, Democracys Discontent (above, n. 3); Michelman, The Supreme Court 1985 Term (above, n. 3), 4;

Michelman, Laws Republic (above, n. 3), 1493; Cohen, J. and Rogers, J., Secondary Associations and
Democratic Governance, Politics & Society, 20 (1992), 393; Sunstein, The Partial Constitution (above, n. 3), ch.
1 and 133-45; Pettit, Republicanism (above, n. 3); Honohan, Civic Republicanism (above, n. 3), ch. 7; Mart, J. L.,
La repblica deliberativa (Madrid: Marcial Pons, 2006), ch. 6. On the general idea of deliberative democracy, see
Gutmann, A. and Thompson, D., Democracy and Disagreement: Why Moral Conflict cannot be Avoided in
Politics, and What should be Done About It? (Cambridge, MA: Harvard University Press, 1996); Gutmann, A. and
Thompson, D., Why Deliberative Democracy? (Princeton: Princeton University Press, 2004); Bohman, Public

25

dimension of liberty, the exercise of public autonomy, as well as the necessity of justifying
public, coercive decisions in order to prevent public domination. 67 Considering citizens as
autonomous and free individuals implies enabling them to participate in political decisionmaking and offering them reasons they can reasonably accept. It means, in short, organizing
minimal conditions of democratic deliberation. True, deliberative democracy may seem prima
facie compatible with both a liberal and a republican reading. It can be argued, however, that
the republican conception is more consistent with the values of autonomy and equality
underlying the ideal as a whole.68
Disagreement among republicans pertains to the scope of effective participation of citizens in
political decision-making,69 and the so-called politicization of democracy.70 Some of them
defend a more participatory conception that requires as much effective participation of the
people as possible in decision-making procedures, 71 while others are satisfied with ensuring
institutional accountability and popular contestability. 72 This difference of view could be
Deliberation (above, n. 56); Bohman, J., Survey Article: The Coming of Age of Deliberative Democracy, The
Journal of Political Philosophy, 6 (1998), 400; Bohman and Rehg (eds.), Deliberative Democracy (above, n. 56);
Elster, J. (ed.), Deliberative Democracy (Cambridge: Cambridge University Press, 1998); Macedo, S. (ed.),
Deliberative Politics: Essays on Democracy and Disagreement (Oxford: Oxford University Press, 1999); Fishkin,
J. and Laslett, P. (eds.), Debating Deliberative Democracy (Oxford: Blackwell, 2003); and Besson and Mart
(eds.), Deliberative Democracy and Its Discontents (above, n. 12).
67

See Bellamy, chapter 4 in this volume.

68

Honohan, Civic Republicanism (above, n. 3), 222; Mart, La repblica deliberativa (above, n. 66), ch. 6.

69

Laborde and Maynor (eds.), Republicanism and Political Theory (above, n. 3).

70

Contrast Pettit, P., Depoliticizing Democracy, in Besson and Mart (eds.), Deliberative Democracy and Its

Discontents (above, n. 12); with Bellamy, chapter 4 in this volume.

71

Sandel, Democracys Discontent (above, n. 3); Sandel, The Constitution of the Procedural Republic (above, n.

3); Taylor, Whats Wrong with Negative Liberty (above, n. 3); Taylor, Cross-Purposes' (above, n. 3); Habermas,
Between Facts and Norms (above, n. 3); Cohen and Rogers, Secondary Associations and Democratic Governance
(above, n. 66); Honohan, Civic Republicanism (above, n. 3); Bellamy, 'Republicanism and Constitutionalism'
(above, n. 11).
72

Pettit, Republicanism (above, n. 3); Pettit, Examen a Zapatero (above, n. 10); Sunstein, The Partial Constitution

26

derived from a more fundamental divergence in their interpretation of liberty and the
connection between liberty and democracy, as outlined above, but is not related to the privatepublic liberty issue, nor to the intrinsic or instrumental justification of democratic
participation. Most of them, however, argue that current democratic procedures should be
strengthened or that new ones should be created to provide for greater control and
participation, and especially to enhance democratic deliberation. In this sense, most
republicans argue for more participatory settings and institutions, even when they disagree
about the desirable horizon, and see this claim as a distinctive republican feature by
opposition to liberal democratic theory.
Most republicans also share a fear about populism qua form of domination, even if they
diverge about which preventive mechanisms should be adopted. 73 In fact, their difference of
views about the scope of popular participation corresponds in part to this divergence. They
agree, however, that popular political participation is not always valuable, but only as far as
some epistemic quality is recognized to the decision-making process. Democratic
deliberation, as a result, is assumed to be the best safeguard against populism due to its
epistemic character.74 In sum, deliberative democracy serves both the purpose of enabling an
effective and real exercise of the public dimension of liberty or public autonomy, and the

(above, n. 3).
73

See Pettit, Republicanism (above, n. 3); Honohan, Civic Republicanism (above, n. 3); Lovett, Republicanism

(above, n. 3).
74

Estlund, D., Whos Afraid of Deliberative Democracy? On the Strategic/Deliberative Dichotomy in Recent

Constitutional Jurisprudence, Texas Law Review, 71 (1993), 1437; Estlund, D., Beyond Fairness and
Deliberation: The Epistemic Dimension of Democratic Authority, in Bohman and Rehg (eds.), Deliberative
Democracy (above, n. 56), 173; Habermas, Human Rights and Popular Sovereignty (above, n. 3); Habermas,
Between Facts and Norms (above, n. 3); Habermas, Constitutional Democracy (above, n. 3); Lafont, C., Is the
Ideal of a Deliberative Democracy Coherent?, in Besson and Mart (eds.), Deliberative Democracy and Its
Discontents (above, n. 12), 3; Mart, La repblica deliberativa (above, n. 66), ch. 4 and 5; and Mart, 'The
Epistemic Conception of Deliberative Democracy Defended: Reasons, Rightness and Equal Political Liberty', in
Besson and Mart (eds.), Deliberative Democracy and Its Discontents (above, n. 12).

27

objective of enhancing the epistemic quality of democratic decision-making that avoids

populism and accordingly the risk of domination.

d. Citizenry and civic virtue

If the protection of republican liberty requires, conceptually or instrumentally, establishing
more participatory and deliberative democratic procedures, these procedures call for an active
and motivated citizenry to be effective. Both republicans who defend a strong participatory
democracy and those who only argue for control and contestation, emphasize the necessity of
increasing civic and democratic culture and fostering certain civic or public attitudes of the
citizenry. If citizens are not motivated enough to seek information about public affairs and to
contest public decisions, if they are passive and conformist, public power becomes
uncontrolled and perhaps dominating.75 If such citizens are not committed to the common
good or to public interest -or to some idea of impartiality- when participating in public lawmaking, but are strategically pursuing their personal self-interest, democratic deliberation is
widely undermined.76 And, when this happens, merely aggregative or negotiated democratic
procedures -alternative to deliberative democratic ones- can also lead to a dominating tyranny
of the majority. Therefore, both the absence of political participation and the presence of the
wrong kind of it, can lead to political domination. In other words, civic virtues are necessary
both to enable and to promote the right kind of, political participation. 77 Given that
75

Passivity can even be a symptom of previous alienation (a kind of domination without interference), since people

can refrain from participating because of a deficient understanding of their own interests, celebrated (or even
promoted) by the powerful.
76

The relationship between deliberative democracy and self-interest is not as simple as that, and there are many

kinds of self-interest motivations compatible with a range of different deliberative procedures. For a detailed
analysis of this complex issue, see Mansbridge, J., Bohman, J., Chambers, S., Estlund, D., Follesdal, A., Fung, A.,
Lafont, C., Manin, B., and Mart, J. L., The Place of Self-Interest in Deliberative Democracy, manuscript.
77

This means that not all sorts of political participation are valuable and that participation is not necessarily good

at any rate. This is precisely, as mentioned above, what distinguishes a participatory democratic republicanism
from populism.

28

deliberative democracy is a condition for the respect of republican liberty, and given that an
active (participatory) and impartially or publicly motivated citizenry is a condition for
deliberative democracy, the respect of republican liberty (and the struggle against domination)
can be said to require civic virtue.78
Civic virtues are generally understood as a set of attitudes or motivational dispositions
oriented to public concerns, to impartiality or to the common good. 79 To mention just a few of
them, citizens should feel and act with respect for and loyalty to the law, the republic's
institutions, and the substantive and procedural values of republicanism; they should feel and
act with respect for pluralism and for others' preferences and opinions; they should feel and
believe that others are fellow-citizens that deserve exactly the same consideration and respect,
and that all of them should enjoy effective basic and political equality; they should develop
some interest for politics and political participation both in political decision-making and in
controlling public power; and they should have the motivation to pursue the common good
instead of their own particular advantage through political participation. 80

78

Skinner, The Republican Ideal of Political Liberty (above, n. 6), 301-03; Skinner, 'On Justice, the Common

Good, and the Priority of Liberty' (above, n. 6); Viroli, Republicanism (above, n. 3); Dagger, Civic Virtues (above,
n. 3); Arendt, The Human Condition (above, n. 7); Arendt, On Revolution (above, n. 7); Sunstein, Beyond the
Republican Revival (above, n. 3), 1539; Taylor, Cross-Purposes' (above, n. 3); Pettit, Republicanism (above, n.
3), ch. 8; Honohan, Civic Republicanism (above, n. 3), ch. 5; and Lovett, Republicanism (above, n. 3).
79

For general accounts of the idea of virtue, see Brennan, G. and Hamlin, A. (eds.), Democratic Devices and

Desires (Cambridge: Cambridge University Press, 2000); Paul, E. F., Miller, F., and Paul, J. (eds.), Virtue and Vice
(Cambridge: Cambridge University Press, 1998); Paul, E. F., Miller, F., and Paul, J., Human Flourishing
(Cambridge: Cambridge University Press, 1999); and Chapman, J. and Galston, W. (eds.), Virtue: Nomos XXXIV
(New York: New York University Press, 1992).
80

This is a minimal list. Other authors have included many other virtues, such as a sense of belonging to the

political community, communal solidarity, and overall patriotism. See Taylor, Cross-Purposes' (above, n. 3);
Taylor, C., Why Democracy Needs Patriotism in Cohen, J. and Nussbaum, M. (eds.), For Love of Country:
Debating the Limits of Patriotism (Boston: Beacon Press, 1996); Viroli, Republicanism (above, n. 3); and Viroli,
For Love of Country (above, n. 2).

29

The republican conception of the common good retains, however, considerable ambiguity and
should be clarified and examined in more detail. 81 The first dimension of the common good to
come to mind is substantive and is presupposed by the whole set of republican values just
outlined. Republican values of liberty, equality, self-government, and civic virtue are to be
considered common goods in a republic, public goods for everyone. When a political
decision, no matter the extent of popular support for it, violates some of these values, it must
be considered anti-republican. On the other hand, there is also a procedural dimension of the
common good based on republican foundations, whose content remains open to the
specifications set by each political community according to its exercise of self-government.
Since republicanism values self-government, it also necessarily trusts the outcome of selfgovernment. When a political decision is reached according to democratic and deliberative
procedures, no matter how wrong its content could be, such decision should be considered a
specification of the republican common good. These two dimensions in the notion of the
common goodthe substantive and the proceduralusually enter in conflict and are difficult
to reconcile, but both are equally central to the republican tradition. 82 Besides this, it remains
to be established if the republican notion of the common good transcends the traditional
liberal view which sees the public interest merely as the aggregation of citizens individual
interests, thus becoming something more holistic tied with a strong view of the political
community, or if it simply is the sum of all the individual goods that citizens have for being
members of the same community.83
And, finally, republicans also disagree about the best strategy to enhance civic virtues among
citizens, that is, about the republican policy to ensure or promote this fourth central value.
That is a crucial issue since liberals use to criticize republicanism as inevitably leadings to
81

See some efforts in Honohan, Civic Republicanism (above, n. 3), 148ff; Pettit, chapter 1 in this volume; Dagger,

chapter 6 in this volume; Cheneval, chapter 10 in this volume; and Sellers, chapter 8 in this volume.
82

On how this double dimension can help overcome the Benthamite problem of non-dominating albeit coercive

law, see Pettit, chapter 1 in this volume.

83

Honohan, Civic Republicanism (above, n. 3), 150-8.

30

perfectionism or to unjustified paternalism, especially when it proposes an intervention into

the sphere of individual virtues. The traditional liberal point of view repudiates the idea of a
State encouraging, promoting, or enhancing the development of citizen's virtues, even of a
civic kind,84 and also rejects any related discourse about the common good. Both things would
entail a violation of the liberal principle of neutrality, an imposition of a particular conception
of the good, and accordingly a perfectionist intervention. But, as noted above in the
discussion of the intrinsic conception of republican liberty, this critique needs to be assessed
more carefully. First, promoting civic virtues involves, it is true, a re-conceptualization of the
public-private distinction.85 Republicans tend to consider the liberal distinction between the
public and the private spheres as too narrow, due to the impoverished liberal conception of the
public. Once the public is understood in a richer way that pays attention to the value of selfgovernment and its conditions, the requirement of civic virtues becomes crucial and remains
attached to the public sphere only; these civic virtues are never supposed to be private ones,
but only dispositions that individuals must have in their relation to other citizens, to the State
or to the public itself.
Second, there are strategies for enhancing civic virtues that do not involve direct State
intervention. Political practice and deliberative procedures themselves encourage this kind of
dispositions, because they create certain conditions that make partiality and selfishness
difficult to admit publicly.86 Thus, simply by fulfilling the principle of self-government
84

Interestingly, there have been some signs of departure from that traditional idea in contemporary liberalism. This

is the case when John Rawls affirms the necessity of thinking of citizens as having a sense of justice and
impartiality, of tolerance and mutual respect, in order to ensure the stability of democratic institutions, and this is
why he argues that there is a duty of civility on the part of citizens (Rawls, J., A Theory of Justice (Cambridge,
MA: Harvard University Press, 1971). See also in the same vein, Macedo, Liberal Virtues (above, n. 24).
85

Honohan, I., 'Dealing with Difference: The Republican Public-Private Distinction', in Baghramian, M. and

Ingram, A. (eds.), Pluralism: The Philosophy and Politics of Diversity (London: Routledge, 2000); Honohan, Civic
Republicanism (above, n. 3), 158; Patten, The Republican Critique of Liberalism (above, n. 24), 42.
86

Pateman, C., Participation and Democratic Theory (Cambridge: Cambridge University Press, 1970), 42;

Hirschman, A., Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge,

31

entailed by the third republican value, the State is indirectly fostering the fourth one. And this
cannot be considered as a perfectionist or paternalistic intervention. Third, as mentioned
previously, the majority of republicans prefer promotional interventions of the State, like civic
education, to more direct interventions. In the end, virtue is not a disposition that can be made
compulsory. The republic should endeavour to foster and encourage it, but it certainly cannot
force citizens to comply with it. Finally, even in the few cases in which republicanism
supports the adoption of compulsory measures to force citizens to act in a given manner, those
measures could probably be justified qua acceptable paternalistic interventions.

III. Legal republicanism

Based on this general presentation of republican values, it is time to turn to the relationship
between republicanism and law, law being the most important political creation and
instrument. As mentioned above, legal republicanism should be seen as a crucial part of
political republicanism, and not merely as its concretization. Since political theories
encompass a view of political organization, a larger part of which is forged by legal means,
the institutional dimension of those theories ought to refer to legal institutions and provisions.
Thus, when liberalism, for instance, purports to defend liberty, it does so by requiring the
introduction of legalor constitutionalrights protecting the different dimensions of liberty.
As a result, any normative political theory ought to entail its own normative legal theory as
part of its model of institutional design. Political republicanism entails legal republicanism,
just as political liberalism implies some kind of legal liberalism.

MA: Harvard University Press, 1970); Macpherson, C. B., The Life and Times of Liberal Democracy (Oxford:
Oxford University Press, 1977), ch. 5; Manin, B., 'On Legitimacy and Political Deliberation', Political Theory, 15
(1987), 338 at 354 and 363; Mansbridge, J., A Deliberative Theory of Interest Representation, in Petracca, M.
(ed.), The Politics of Interests: Interest Groups Transformed (Boulder, CO: Westview Press, 1992), 32;
Mansbridge, J., Beyond Adversary Democracy, 2nd edn. (Chicago: The University of Chicago Press, 1983); and
Fung, A., Empowered Participation: Reinventing Urban Democracy (Princeton: Princeton University Press, 2004).

32

The expression legal republicanism, however, is interestingly ambiguous. It concerns at

least two different, although partly related, levels of doctrine. First, and primarily, legal
republicanism is a normative theory about the content, the structure or the form of law.
Second, it can also refer to a republican normative jurisprudence or legal philosophy. As a
normative theory about the content of the law, it establishes those substantive and procedural
standards which the law should attain to be considered republican. Identifying those standards
amounts to determining the principles of republican law. One may therefore refer to this first
sense of legal republicanism as republican law. If this pertains, republican law constitutes an
alternative to liberal law, provided we can fairly distinguish republicanism from liberalism;
just as one may ask whether French or German laws are liberal or socialist, one may also ask
whether they are republican.
Legal republicanism, understood in this first sense as republican law, includes requirements
derived from the protection of republican values regarding both the content of law and the
structure and forms of law and procedures of law-making. While honouring republican
liberty, for instance, may require the recognition and protection of some basic individual
rights and liberties, perhaps at the constitutional level, honouring the value of self-government
and deliberative democracy entails privileging some decision-making procedures and a
particular theory of legislation. We might refer to these two different implications as
substantive legal republicanism (or substantive republican law) and procedural legal
republicanism (or procedural republican law) respectively, being aware that their
requirements may conflict.87
The second meaning of the expression legal republicanism refers to a more general
approach, not directly connected to the specific content of law: a general legal theory or
jurisprudence that analyzes legal concepts and the functioning of law according to the
principles of republicanism. It is what one may coin as republican jurisprudence or as
87

This tension within legal republicanism mirrors the tension identified before between the substantive and

procedural notions of the common good in republican theory. See also Pettit, chapter 1 in this volume.

33

republican legal theory. This may at first sound unorthodox to a legal positivist, given that
legal positivism qua legal theory is supposed to be a scientific and value-free discipline. A
legal theorist is supposed to do her work without being influenced by her normative
commitments. In our view, however, this reasoning ought to be more nuanced.
Although there is certainly some place in legal theory for neutrality -for neutral description-,
it is impossible to build general conceptual theories of law in a completely value-free way.
Contrary to what traditional methodological legal positivism claims, 88 there are reasons to
believe that interesting theories of law are conceptual and normative at the same time.
Furthermore, as some authors have argued, if positivism aims at coherence with its own
original values, it necessarily must adopt the form of normative (or ethical) positivism. 89
Finally, if jurisprudence involves a normative dimension, it is reasonable for it to be
influenced by normative political theory.90 Of course, this reasoning depends on one crucial
premise: that legal theory or jurisprudence necessarily entails a normative dimension. And
this premise is conceptually unrelated to political or legal republicanism. This means that
while a republican legal theoristin the normative sense just outlinedis someone who
88

The classic reference in Anglo-American jurisprudence is Hart, H. L. A., The Concept of Law (Oxford:

Clarendon Press, 1961). The historic champion of continental legal positivism is Kelsen, H., Reine Rechtslehre,
2nd edn. (Wien: Auflage, 1960).
89

See e.g. Campbell, T., The Legal Theory of Ethical Positivism (Aldershot: Dartmouth, 1996); Campbell, T.,

Prescriptive Legal Positivism: Law, Rights and Democracy (London: UCL Press, 2004); Waldron, J., Law and
Disagreement (Oxford: Oxford University Press, 1999); Waldron, J., Normative (or Ethical) Positivism, in
Coleman, J. (ed.), Harts Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University
Press, 2001), ch. 12; Perry, S., Hart's Methodological Positivism, in Coleman (ed.), Hart's Postscript (above);
Murphy, L., The Political Question of the Concept of Law, in Coleman (ed.), Hart's Postscript (above), and
Murphy, L., Better to See Law this Way, NYU Law Review, 83 (2009), forthcoming.
90

To be more exact, this is so unless one holds a thesis as controversial as the fragmentation of practical discourse.

Only if one defends the idea that there can be several, unrelated, and incommensurable realms for normative
reasonsone for law, another for politics, and perhaps still another one for ethicsis it possible to keep both
normative political theory and normative jurisprudence separate. But it is certainly counterintuitive to imagine a
normative theory of law unrelated to political values. What would be the point of political theory otherwise?

34

conceptually endorses political and legal republicanism (and therefore republican

jurisprudence entails both political and legal republicanism), the reverse need not be true; it
may be possible to defend a republican approach to the content or the form of law without
endorsing a normative conception of jurisprudence or, at least, to do that for different reasons.
It depends on ones conception of legal theory or jurisprudence.
Republican legal theory, in this sense, is a doctrine that emphasizes certain features of
democratic law: first, the idea of authority, and more concretely of legitimate authority, that
integrates a theory of law-making; second, a rich and complex notion of the rule of law; and,
third, as a consequence of the other two, a number of jurisprudential theses regarding the role
of adjudication, legal interpretation, the very notion of norm, and so on. 91
In short, therefore, legal republicanism has two dimensions. The first one is republican law,
which itself is comprised of two parts, one substantive about the content of the law, the other
formal or procedural about the structure and the form of the law. Republican law amounts to
normative principles and standards, substantive or procedural. The second dimension is
republican legal theory, which is the application of those normative standards to a general
account of the law, a theoretical or jurisprudential conception of the law.

Substantive Legal
Republicanism
Republican Law

Procedural Legal Republicanism

Legal Republicanism

Republican Legal Theory or Jurisprudence

91

Waldron, Law and Disagreement (above, n. 89).

35

IV. Republican law

Legal systems in advanced democratic societies are eminently liberal in all their elements. We
are used to living under and with liberal law. The creation of law through legislative activity,
its contents, and the institutions which implement it, are (almost) all liberal in nature; they are
the expression of legal liberalism, the normative legal doctrine derived from political
liberalism. In this context, those who endorse political republicanism should be aware of the
requirements this political theory places not only on the form and the content of law, but also
on its creation, adjudication, and application. These requirements constitute what we have
called republican law.
Republican law may be found in all the areas that traditionally constitute the law. While
republicans have focused in recent years on three of them mainly -namely, constitutional law,
criminal law and international law-, nothing prevents from developing principles of
republican contract law, republican labour law, republican administrative law, and so on. 92
To start with, as any other modern political doctrine, political republicanism endorses a view
of the basic political organization and distribution of rights and duties, both things being
usually regulated by constitutional law. Constitutional provisions are crucial from a
republican point of view, and accordingly republicans concerns have mainly focused on
constitutional issues.93 Most of them converge on the need to recognize and protect basic
individual rights and democracy in a constitution, and to enforce civic duties. They disagree,
92

Fraser, A. W., Spirit of the Laws: Republicanism and the Unfinished Project of Modernity, (Toronto: Toronto

University Press, 1990); Braithwaite, J., On Speaking Softly and Carrying Big Sticks: Neglected Dimensions of a
Republican Separation of Powers, University of Toronto Law Journal, 47 (1997), 305.
93

See, for instance, Pettit, Republicanism (above, n. 3), Part II; Honohan, Civic Republicanism (above, n. 3), Part

II; Sellers, Republican Legal Theory (above, n. 11); Tomkins, Our Republican Constitution (above, n. 11);
Bellamy, Political Constitutionalism (above, n. 3). In this volume, see Pettit (chapter 1), Bellamy (chapter 4),
Honohan (chapter 3), and Tomkins (chapter 14).

36

however, about the compatibility of republicanism with judicial review or the ideal degree of
constitutional rigidity.94 They also differ in their understanding of the traditional republican
principle of a mixed constitution, and about the kind of civic duties that should be
constitutionally required or enhanced.
Promoters of republican criminal law have focused on the definition of crimes, the role and
justification of punishment, the organization of the criminal judicial process, and the
democratization of the whole criminal justice system. 95 There is wide consensus that crime
should be defined according to the basic republican values of freedom and equality, and that
those values should also be used to determine the adequate public response in case of offence
and particularly the appropriate punishment when it is to be applied. Republicans emphasize
the importance of education, prevention, and promotion, and also defend the application of
alternatives to a traditional, punitive judicial process, like restorative justice. Advocates of
republican criminal law also converge about the importance of the role of the citizenry and
the community for the whole criminal system, as well as about the necessity to democratize

94

In favour of a certain constitutional rigidity and judicial review: Pettit, Republicanism (above, n. 3); Dawood, Y.,

The Antidomination Model of the Judicial Oversight of Democracy, Georgetown Law Journal, 96:5 (2008),
1411; Honohan, Civic Republicanism (above, n. 3); Honohan, chapter 3 in this volume. Against that thesis:
Waldron, Law and Disagreement (above, n. 89); Bellamy, Political Constitutionalism (above, n. 3); Bellamy,
'Republicanism and Constitutionalism' (above, n. 11); Bellamy, chapter 4 in this volume; Besson, S., The Morality
of Conflict (Oxford: Hart Publishing, 2005); Gargarella, R., Full Representation, Deliberation, and Impartiality,
in Elster (ed.), Deliberative Democracy (above, n. 66), 260; but also, with a slightly different position, Gargarella,
R., Should Deliberative Democrats Defend the Judicial Enforcement of Social Rights?, in Besson and Mart
(eds.), Deliberative Democracy and Its Discontents (above, n. 12), 232; Tomkins, Our Republican Constitution
(above, n. 11).
95

See Braithwaite and Pettit, Not Just Deserts (above, n. 13); Pettit, P., 'Republican Theory and Criminal

Punishment', Utilitas, 9 (1997); Braithwaite, J. S., Regulation, Crime, Freedom (London: Ashgate, 2000); Dagger,
'Republican Punishment, Consequentialist or Retributive?' (above, n. 13); Duff, Punishment, Communication and
Community (above, n. 13); Duff, Answering for Crime (above, n. 13); and Lacey, State Punishment (above, n. 13).

37

the criminal justice system, both in order to protect freedom and fundamental rights, and to
develop civic responsibility.96
Certain republican lawyers and philosophers have also recently started to be concerned about
international law and relations.97 In that context, they have focused on the articulation of a
global legal system that protects basic republican values. While they disagree about the
interpretation of the Kantian cosmopolitan ideal and about the desirability or even the
possibility, in the long run, of instituting a global government, there is widespread agreement
on the necessity of strengthening international law and politicizing a putative global public
sphere in order to create a global republican polity or community. Most of them regard the
traditional, modern nation-State as largely obsolete in the face of global challenges and make
suggestions as to how to design international institutions that are respectful of cultural and
national pluralism and compatible with local or regional democracy, but can be responsive to
the requirements of global politics and international law-making. There is no unanimity
among those authors, however, as to the identity of the subject(s) of republican international
law and as to whether States should remain the main subjects or whether one should be
developing some kind of global citizenship. Finally, there is still a lot of work to be done in
determining how basic republican values can be transposed onto the international arena and in

96

For instance, in this volume, see Mart (chapter 5), Dagger (chapter 6), and Gargarella (chapter 7).

97

See for example Onuf, The Republican Legacy in International Thought (above, n. 12); Habermas, Between

Facts and Norms (above, n. 3); Habermas, Constitutional Democracy (above, n. 3); Habermas, Hat die
Konstitutionalisierung des Vlkerrechts noch eine Chance? (above, n. 12); Habermas, Eine politische Verfassung
fr die pluralistische Weltgesellschaft? (above, n. 12); Habermas, Kommunikative Rationalitt und
grenzberschreitende Politik: eine Replik (above, n. 12); Sellers, Republican Principles in International Law
(above, n. 12); Besson, Deliberative Demoi-cracy in the European Union (above, n. 12); Besson,
Institutonalizing Global Demoi-cracy (above, n. 12); Besson, Theorizing the Sources of International Law
(above, n. 12); Besson, S., Whose Constitution(s): International Law, Constitutionalism and Democracy, in
Dunoff, J. and Trachtman, J. (eds.), Ruling the World, (Cambridge: Cambridge University Press, forthcoming);
Deudney, D., Bounding Power: Republican Security Theory from the Polis to the Global Village (Princeton:
Princeton University Press, 2007).

38

designing democratic international institutions in a way that does not undermine, but on the
contrary reinforces domestic democracies. 98
Besides those substantive elements, republican law also brings about formal or procedural
requirements. A republican lawyer is expected to endorse a strongly democratic theory of
legal authority. The laws legitimacy stems from its adoption by democratic institutions,
showing due respect to actual disagreements among citizens. 99 Furthermore, according to the
republican view of the rule of law, legal and constitutional provisions ought to be adopted in a
way that ensures a strict separation of powers and that prevents the judiciary from intervening
too much in the law-making and law-applying processes. Political republicanism implies a
number of complex requirements in terms of procedure that have not yet been sufficiently
explored in spite of their great importance for the republican project. The writings of Waldron,
Campbell, and Murphy constitute an essential starting point in this exploration, 100 but more
work needs to be done.101

V. Republican legal theory

To date, legal republicanism has focused mostly on the content of substantive republican law.
As a result, it has not paid sufficient attention to the consequences of endorsing political
republicanism for the way in which we understand the law in general, and in particular to its

98

In this volume, see Bohman (chapter 2), Sellers (chapter 8), Besson (chapter 9), Cheneval (chapter 10), and

Lafont (chapter 11).

99

See Waldron, Law and Disagreement (above, n. 89); Besson, The Morality of Conflict (above, n. 94).

100

Waldron, Law and Disagreement (above, n. 89); Waldron, J., The Rule of Law as a Theater for Debate, in

Burley, J. (ed.), Dworkin and his Critics: With Replies by Dworkin (Oxford: Blackwell, 2004), 319; Waldron, J.,
The Concept and the Rule of Law, manuscript (2007); Campbell, The Legal Theory of Ethical Positivism (above,
n. 89); Campbell, Prescriptive Legal Positivism (above, n. 89); Murphy, The Political Question of the Concept of
Law (above, n. 89); and Murphy, Better to See Law this Way (above, n. 89).
101

See a further step in Bellamy, chapter 4 in this volume; and Bohman, chapter 2 in this volume.

39

implications for legal theory or jurisprudence. Let us draw here a sense in which
jurisprudence could be said to be republican.
Jurisprudence usually identifies certain features of law in a particular geographical and
historical context, and theorizes them under a general, apparently purely conceptual account
of the law. If modern legal theorists account for the law, for instance, as a legal system
compounded by general norms that pre-exist the facts adjudicated by such norms, it is
because they are abstracting certain features of concrete legal orders that, ultimately, derive
from a liberal understanding of law and the rule of law. Modern legal theorists never single
out a determinate concept of law so general as to encompass all legal manifestations in the
world and across history. Their account hardly embraces, for instance, the features of ancient
Roman law. As a consequence, if what they are capturing is basically a liberal form of legal
order, which has been dominant in modern democracies in the last centuries, it is reasonable
to expect that their conceptual analysis embodies some liberal features as well. This kind of
influence on legal theorization, however, should not be our concern here, since it is unrelated
to normative jurisprudence as discussed here.
Republican jurisprudence is a doctrine that emphasizes certain features of democratic law,
such as the idea of authority or the ideal of rule of law, and that assumes a normative
approach to legal theory. Authors such as Scarpelli, Waldron, and Campbell have explained
why someone committed to a democratic theory of legal authority ought to endorse a
normative approach to legal positivism, rather than a merely conceptual one. 102 They defend
what has been called ethical, prescriptive, or normative positivism. This is not to say,
however, that republican legal theory can be identified with normative positivism. A
normative positivist need not be republican, as Jeremy Bentham or John Austin, who are
102

Scarpelli, U., Cos' il positivismo giuridico (Milan: Edizioni di Communit, 1965); Campbell, The Legal Theory

of Ethical Positivism (above, n. 89); Campbell, Prescriptive Legal Positivism (above, n. 89); Waldron, Law and
Disagreement (above, n. 89); and Waldron, Normative (or Ethical) Positivism (above, n. 89). See also Perry,
Hart's Methodological Positivism (above, n. 89); and Murphy, The Political Question of the Concept of Law
(above, n. 89).

40

usually identified as the ancestors of normative positivism despite being champions of

liberalism. But there seems to be a connection the other way around. First, we argued that the
only way to make sense of republican jurisprudence is in interpreting jurisprudence as
necessarily normative. It would be difficult otherwise to see why a normative account of the
lawrepublican lawcould affect a purely conceptual form of jurisprudence. Second, legal
republicanism ought to encompass a positivist theory of law, because it cannot rely on the
existence of a natural, pre-political validity. If so, it seems that republican legal theory has a
lot in common with normative positivism.
Let us now briefly present the main features of this jurisprudential position. Contemporary
defences of normative positivism emerged as a criticism of methodological or descriptive
positivism.103 At first glance, however, descriptive and normative positivisms seem to capture
different things and hence to be compatible. 104 However, contemporary normative positivists
hold at least two theses that they consider as interrelated. One of them is clearly normative,
while the other is methodological and in plain contradiction with the basis of descriptive
positivism:
(1) There is a normative claim underlying the positivist tradition as to what the law should be.
That claim is committed to the values of the rule of law and to a particular view of legal
authority and validity.
(2) It is not possible or interesting to reduce legal positivism to a merely descriptive theory.
An adequate legal theory is inevitably value-laden and must be openly normative. 105

103

Marmor, A., Legal Positivism: Still Descriptive and Morally Neutral, Oxford Journal of Legal Studies, 26

(2006), 683.
104

Ibid., 684 and 690-2.

105

Waldron, Normative (or Ethical) Positivism (above, n. 89). It is this second thesis which is not necessarily

shared by all political republicans, and this is why political republicanism, or even legal republicanism as a
normative doctrine of law, does not entail republican legal theory.

41

It is the second thesis that leads normative positivists to criticize allegedly value-free legal
theories. The concept of law refers to a social and institutional practice that has a normative
dimension. As a result, it has nothing to do with natural concepts that try to describe natural
reality.106 As part of institutional reality, the law exists if, and only if, practitioners believe it
exists, and it consists in what should be in certain particular circumstances. 107 As a normative
practice, it bears the purpose that the practitioners attribute to it, and as a result the law in a
given society is inevitably linked to the political values of that society. 108 This is not simply to
say that Kelsens, Ross's, or Harts legal theories emerge from a particular intellectual and
political background, and are often motivated, more or less explicitly, by a moral-political
vision.109 This would surely be applicable to physicians and biologists as well, although their
objects of study do not belong to the institutional reality at all. The law has a normative
dimension that is not present in natural reality or even in other objects in the socialinstitutional reality. As a social practice, it has purposes, functions, or points, and some of
them are normative. To understand them, we need therefore to engage in moral argument. 110
This does not make legal positivism normative yet, as one could account for other
institutional and normative practices like games or sports without rely[ing] on any particular
views about the moral merit or worth of the functions or purposes that would make sense of
the practice in question.111 But the law is not like games or sports in an essential way: the
normative dimension of the institutional practice of law does not only stem from the fact that
it is regulated by rules, but that it rests on certain assumptions about what can acceptably
count as a legal authority and the role it plays in practical reasoning. The contrast between
games and the law can be vividly observed in the different relevance that disagreements

106

Dworkin, R., Justice in Robes (Cambridge, MA: The Belknap Press of Harvard University Press, 2006), 2-10.

107

Searle, J. R., The Construction of Social Reality (New York: Free Press, 1995).

108

Perry, Hart's Methodological Positivism (above, n. 89).

109

Marmor, Legal Positivism (above, n. 103), 691-2, 699.

110

Perry, Hart's Methodological Positivism (above, n. 89).

111

Marmor, Legal Positivism (above, n. 103), 697.

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conflicts have for the whole practice. While disagreements about the rules in a game are
contingent, and also obstacles for the adequate functioning of the game, legal disagreements
are essential to the practice of law and a very condition for its change. Participants in a legal
practice disagree about what the law requires, about what the rule of law requires, or about
what justice requires, but all those disagreements take place despite (or by virtue of) a basic
agreement on the very concept of law.112 The relationship between the stability of expectations
in law and change, between legal agreements and disagreements, has therefore been
considered an essential feature of modern law.113
Of course, general jurisprudence ought to be able to find general features in law that are not
specific to this or that legal order. But it is also true that there is a sort of trade-off in the
search for generality in terms of relevance or interest. The more general the features we
identify as legal theorists, the less relevant or interesting they will be for our current
purposes.114 If we were capable of determining an all-encompassing concept of law that could
be applied to all those instances in which someone has described a practice as legal around the
world and across history, it would probably be a trivial, empty notion of law, completely
irrelevant to most of our purposes. It would be a notion of law which would not make any
reference to legal authority, legal process, norms, courts and adjudication, and perhaps even to
sanctions. What both Kelsen and Hart knew was that they had to try to identify a notion of
law that was connected to the legal practices of their time, hence their respective account of
legal norms.
The task of general jurisprudence is to explain and reconstruct what characterizes legal
practice and what can be considered as the normative point of that practice, because this is
precisely what can be recognized as an essential feature of the practice by practitioners. As a
112

Dworkin, Justice in Robes (above, n. 106), 9-10.

113

Sunstein, The Partial Constitution (above, n. 3); Waldron, Law and Disagreement (above, n. 89); Besson, The

Morality of Conflict (above, n. 94); and Moreso, J. J., Legal Positivism and Legal Disagreements, manuscript
(2008).
114

Waldron, Law and Disagreement (above, n. 89), 46.

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result, that normative point is exactly what makes that practice exist. And this is especially
important since the practice of law, by contrast to other social practices like sports or
Christmas celebrations, is seen as normative. Our legal theory must account for our sense of
why it is important whether something counts as law or not. 115 This, finally, makes our
considerations about what the law is depend on our considerations about what makes the law
good or bad, and compromises the normative neutrality assumed by descriptive positivists.
What counts as law is dependent on what we value in law, and this is a normative question. In
this respect, the conceptual discussion about what the law is, is very similar to the discussion
about the concept of democracy. Any attempt to define democracy in a value-free way has
failed because our understanding of democracy is not totally independent of what we value in
democracy.116
This methodological critique of descriptive positivism is shared by other normative views of
the law like Dworkins.117 The normative or prescriptive positivism defended here differs from
Dworkins theory, however, with respect to the first thesis outlined above. The main element
in a normative account of the law is indeed the ideal of the rule of law 118, i.e. a political
value that requires certain features from the law, mainly procedural, such as publicity,
predictability, and so on. This was recently pointed out by Waldron:

115

116

Waldron, Normative (or Ethical) Positivism (above, n. 89), 420

See, for instance, Sartori, G., Democrazia. Cosa , 2nd edn. (Milan: Rizzoli, 2007); Held, D., Models of

Democracy, 3rd edn. (New York: Polity Press, 2006); Arblaster, A., Democracy, 2nd edn. (London: Open
University, 2002). The same comparison may be found in Murphy, Better to See Law this Way (above, n. 89).
117

See Dworkin, R., Law's Empire (Cambridge, MA: Harvard University Press, 1986); and for a recent

restatement, Dworkin, Justice in Robes (above, n. 106).

118

Fuller, L., The Morality of Law (New Haven: Yale University Press, 1964); Waldron, Law and Disagreement

(above, n. 89); Waldron, Normative (or Ethical) Positivism (above, n. 89); Waldron, The Rule of Law in
Contemporary Liberal Theory, Ratio Juris, 2 (1989), 79; Waldron, The Concept and the Rule of Law' (above, n.
100); Campbell, The Legal Theory of Ethical Positivism (above, n. 89); Campbell, Prescriptive Legal Positivism
(above, n. 89). See, in this volume, Pettit (chapter 1), Honohan (chapter 3), Bellamy (chapter 4), Sellers (chapter 8),
Bohman (chapter 2), and Besson (chapter 9).

44

The Rule of Law celebrates features of a well-functioning system of government such as publicity and
transparency in public administration, the generality and prospectivity of the norms that are enforced in
society, the predictability of the social environment that these norms help to shape, the procedural
fairness involved in their administration, the independence and incorruptibility of the judiciary, and so
on. It looks to a world where people in positions of power exercise their power within a constraining
framework of public rules rather than on the basis of their own preferences, their own ideology, or their
own individual sense of right and wrong.119

The rule of law is valuable because it is a necessary condition for justice, particularly for the
respect of individual autonomy and democracy understood as self-government. 120 In other
words, the rule of law can be seen as a requirement for the exercise of autonomy both in its
private and its public dimensions and all its requirements can be understood as a function of
either of those two elements.
This is also why republicans emphasize the importance of the rule of law to fulfil republican
values.121 The ideal of the republic can only be achieved in a legal order inspired by the value
of the rule of law. Without the rule of law, citizens would fall prey to domination, both
because they could not have stable expectations and because they could not exercise selfgovernment. The rule of law is not only a formal or procedural property of legal orders, but,
as we have said, a normative, political ideal. As a result, legal republicanism must enforce that
ideal as part of its normative theory. But at the same time, as contemporary normative
theorists have shown, it must also be part of our concept of law.
119

Waldron, The Concept and the Rule of Law' (above, n. 100).

120

Waldron, The Rule of Law in Contemporary Liberal Theory (above, n. 118); Waldron, Law and Disagreement

(above, n. 89); Campbell, Prescriptive Legal Positivism (above, n. 89).

121

Pettit, Republicanism (above, n. 3), 174-6; Pettit, Examen a Zapatero (above, n. 10); Pettit, chapter 1 in this

volume; Honohan, Civic Republicanism (above, n. 3); Lovett, Republicanism (above, n. 3); Bellamy, Political
Constitutionalism (above, n. 3); Bellamy, 'Republicanism and Constitutionalism' (above, n. 11); and Bellamy,
chapter 4 in this volume. On the importance of the international rule of law, see Waldron, J., The Rule of
International Law, Harvard Journal of Law and Public Policy, 30 (2006), 15; Besson, Theorizing the Sources of
International Law (above, n. 12). See also Besson, chapter 9 and Bohman, chapter 2 in this volume.

45

As a consequence, the controversy surrounding the interpretation of the rule of law and its
requirements simultaneously pertains to political theory, normative legal theory, and
jurisprudence. This is why all the chapters in this volume, which all directly or indirectly
revolve around the idea of the rule of law, are contributions to all three disciplines at once.

46