Coherence,Consistency,Equality

I

Philip Pettit’s On The People’s Terms is a characteristically tightly argued, clearly written, and intellectually challenging book. It is more than that, however: it is a kind of completion of his most important book in political philosophy, Republicanism, building on his work over the intervening almost two decades. ¹ If it is not quite an official change of position from Republicanism—and I’m not sure whether it is or not—it is certainly a substantial addition. Although he modestly presents it as a tying up of loose ends and an elaboration of some underdeveloped issues, I think it stands as an at least equal second volume of Republicanism, and in some ways surpasses it.

Chapters 1 and 2 both deepen and formalize much of the argument from Republicanism about the meaning of liberty and the idea of non-domination. I have been and remain skeptical of the idea that liberty consists only in non-domination and not also in non-interference, and relatedly of the idea that the liberal tradition was ever committed only to non-interference and not also to non-domination. Pettit develops his arguments on these questions further in this book, but I set them aside for purposes of this review, as the book’s real novelty lies elsewhere. The remaining two-thirds of the book breaks genuinely new ground as Pettit complements his theory of justice with an account of legitimacy, building an impressive account of why and how a political theory should have compatible but distinct accounts of both values. In so doing he not only develops his republicanism into a more complete political theory; he also affirms a central place for democracy in it, something that many critics thought lacking in the earlier book.

Pettit’s treatment of democracy within republicanism has a number of virtues. One is that it is openly contestatory. Pettit firmly argues that Rousseau was an anomalous theorist of republicanism in a number of ways, and seeks to connect his own republicanism to the pre-Rousseauian tradition. He must do so in order to say that republicanism is committed to a negative, and not in Berlin’s sense a positive, theory of liberty. I am not persuaded that this attempt to distinguish Rousseau’s theory of liberty itself from that of the broader republican tradition wholly succeeds. But Pettit also emphasizes the contestatory mixed-constitution tradition within republican thought that Rousseau firmly rejected. This part of his attempt to isolate Rousseau is surely right, and Pettit’s own democratic theory is stronger for it. The high tide of theories of deliberative democracy teleologically oriented toward consensus has passed, but self-consciously republican thinkers may be slower to let go of that ideal than others. Rousseau’s vision continues to be attractive to many readers, as does the civic humanist idea of personal virtue consisting in deliberative devotion to the public good.

Pettit instead argues for contestation over the use of power as the stuff of daily democratic politics. He does not embrace agonism, or Schumpeter’s almost-chaotic understanding of alternation in power. Indeed, drawing on his work (with List) on group agency, he insists that the state must be a coherent corporate agent, able to demonstrate intertemporal consistency of intention. ² It must be the kind of social entity that can act in a direction for reasons, not the mere effect of causes that bounce it around randomly. But he argues that this is compatible with a kind of democratic activity that does not directly aim at consensus; in daily political life, we argue about the direction the state takes. The immediately visible stuff of democracy is argument between sides trying to win; but that contestation gradually gives the state a direction. In a legal system the vast majority of imaginable cases never arise because the vast majority of law is genuinely easy and settled, although what we see is the disputes that do end up in court and judges making close, sometimes arbitrary or political, decisions in close cases. Over time and in aggregate those cases do shift the less-visible settled law. Something like this is Pettit’s understanding of democratic politics, what he refers to as a “dual-aspect” theory of democracy.

This highlights further virtues: Pettit’s theory is strongly institutional and constitutional. ³ For one thing, he takes very seriously the institutional weight, force, and autonomy of the state. Its existence is not something we choose, and most of its shape most of the time is fixed. There is no question of the popular will simply being made manifest in the world, no romanticism about immediate (i.e., non-mediated) change simply happening. Democracy is a matter of seeking, through institutional means, to steer a very large ship that always has its own momentum. This means that questions of institutional design more generally must loom large. Although Pettit disclaims the ability to do them justice in this book, he moves quickly but carefully through enough of them to make the theory institutionally plausible, and to make clear the debt he thinks republicanism still owes to the mixed-constitution tradition. His analysis of why we should prefer a competitively elected legislature to either a lottery-selected one that is descriptively representative, or to any form of direct democracy, is a highlight of the book. And he makes clear that, and why, the legislature should not be untrammeled. Although he does not offer detailed recommendations, he makes clear that his theory could justify at least some institutions and rules from among bicameralism, judicial review, ombuds’s review, a separation of powers, and appointed administrative authorities.

On The People’s Terms brings Pettit’s democratic commitments more to the fore than Republicanism sometimes did. He more clearly situates the contestatory administrative and judicial institutions he still favors in a broader democratic politics. This will not necessarily satisfy those who were concerned that Republicanism offered an insufficiently democratic vision; in good mixed-constitutionalist fashion he still distrusts the majoritarian legislature and disbelieves in the capacity of the extra-institutional people to rule.

II

I mentioned above that Pettit recognizes the institutional weight and distinctiveness of the Weberian state. He also admirably acknowledges the question of whether “a corporate, coercive state” is a matter of “necessity” for the pursuit of justice at all. He entertains the possibility that, for example, “independently of state or law, communal norms emerged that had the effect of exposing all forms of deception, fraud, manipulation, intrusiveness and violence to the condemnation of community,” that a “rule of impersonal norm” might “emerge and stabilize as if by an invisible hand” (134). Although he does not specify these cases, and may understand himself to be defeating an abstract anarchist challenge, his discussion is open to interpretation as leaving space for the non-state orders studied by Elinor Ostrom or James Scott, or the non-state political systems that characterized, say, medieval Europe and pre-colonization North America. ⁴ He does not avail himself of the standard contractarian answer by fiat, the answer that the outcomes of non-state systems simply could not count as justice.

Instead he relies on intuitively plausible accounts of why non-state systems are “unlikely” to identify basic liberties correctly, to provide the needed resources for their protection, or to protect them for all equally (135). This is surely the better strategy, but it surely also demands assessments of relative likelihood, assessments Pettit does not even gesture toward providing. States, after all, are also probabilistically “unlikely” to do all of those things; for any given specification of those values, most states have failed to fulfill them most of the time, and often they have failed quite spectacularly. His conclusion that “the cause of social justice requires the corporate agency of the state and that no apolitical order could serve in that role” (136) is an unfortunate one, and represents a kind of backsliding toward Rawlsianism; because it is unlikely that non-state orders could generate justice, the state is morally mandatory—regardless of how likely it is to generate justice, or even to generate more of it than the alternatives. Mere possibility on the side of the state is contrasted asymmetrically to improbability on the side of the non-state.

Pettit does avail himself of a very different argument, one that renders the comparison between state and non-state largely irrelevant: that, under our current historical circumstances, states are inevitable and inescapable. We are subjected to states by impersonal forces of history, not by our choices. States are not created by the consent of their subjects, and it’s not open to us to un-create them by withholding it. The importance of this is, I think, widely unappreciated in political philosophy. Imagining the state as something we could decide to have or not to have, then working through the conditions in which we would, should, or must decide to have it, is a category mistake that deforms a great deal of the field. Pettit rightly sees that imputed consent is no solution to the problem of how to reconcile human freedom with life in political society. And so he changes the subject from consent of the governed to the capacity of the governed to direct and control the institution that governs them; he says that this is where we must look for legitimacy and for the reconciliation of politics and freedom.

These last few steps seem to me dubious and at best under-argued-for. The facticity of states means that imputed consent cannot solve the problem of how we can be morally free and yet governed. It does not follow that there is no such problem. Imputed consent cannot generate legitimacy; it does not follow that there must be some other ground for legitimacy. Indeed, it seems to me that the facticity of the state pushes against the urge to philosophically legitimate it at all. Pettit supposes that there must be some way to do what social contractarians tried to do with imputed consent: to make the chains in which we everywhere find ourselves legitimate. (This is backsliding toward Rousseau.) But perhaps there isn’t. Perhaps the facts of the world are such that we are governed in ways that are not wholly compatible with our liberty and not wholly legitimate. We might then work to answer normative questions about how best to manage that situation, how to get what we can out of it, how to make it morally tolerable and on net beneficial. But we can do all that without the alchemy of turning our life in politics into liberty itself.

III

I worry that Pettit’s embrace of mixed constitutionalism and contestation, on the one hand, sits poorly with his strategy for reconciling liberty with the corporate coercive state, on the other. In criticizing majoritarian-legislative or popular-participatory models of democracy, he emphasizes the decision-theoretic problems with aggregating judgments (or preferences) within a legislature to generate coherence over cases and over time. The arbitrariness associated with lawmaking under conditions of cycling or other kinds of inconsistency mean that “you and your fellow citizens could not hope to use your influence to impose any sort of direction on such a state. You can’t do business with a body that finds nothing to apologize for in the fact that it upholds a number of inconsistent propositions or instructions” (191). In order for us to be free under the state, we have to be able to influence and direct it, which means that it needs to be capable of having a direction.

Pettit hopes that surrounding the democratic body (probably the legislature, but this could be done for a populace governing by referendum, too) with opportunities to rethink and to reconcile judgments in contestatory fora will alleviate that problem. I suppose that I hope so, too. But if the mere possibility of incoherence in legislative judgments is enough to indict the plenary legislature, why isn’t the same true for the possibility of incoherence in the overall state of affairs generated by a sometimes-incoherent legislature and various contradictory second-guessing other institutions? Again, I think that Pettit’s sociological realism abandons him at these moments. He thinks that there must be a solution that provides coherence to the corporate agent that is the republican state as a whole. Since he cannot find it in the sovereign legislature, he thinks that it must be found in the alternative arrangement.

I share Pettit’s belief that constitutional complexity, when it is well-designed, can generate normatively more attractive outcomes, better overall law and policy to live under, than sovereign unity. But the idea that greater coherence emerges seems dubious. Pettit nicely criticizes the simple equation of institutional simplicity with coherence; against Hobbes and Rousseau, he insists that a unified corporate state need not demand a unitary institutional voice for it. But since he does admit coherence as a desideratum, he owes us an account of why constitutional complexity doesn’t suffer from at least as much possibility of its absence as does the unitary assembly.

IV

Pettit aims at a republicanism purged of aristocracy and inequality; indeed his work has been so influential that I fear many readers take for granted that republicanism must be egalitarian and anti-aristocratic. But this has historically been very far from being the case. It is widely understood that so-called neo-Athenian republican theory must grapple with slavery and inequality, given the priority given by Greek accounts both to time spent in the assemblies (and so not in productive work) and to the incompatibility between servile work and lofty politics in the same character. But Rome was no less a slave society than Athens, and the status of the non-dominated citizen or freeman that sits at the center of neo-Roman republicanism was traditionally not thought to be available to all simultaneously. Roman political and legal thought, and Renaissance appropriations of it, placed a high value on that status, and one can read celebrations of it across the centuries; but they were not egalitarian celebrations or arguments that all humans were morally entitled to the status.

In describing the development of the ostensibly liberal non-interference theory of liberty, Pettit writes

Bentham and Paley and their ilk were reformers, committed to having the state cater for the freedom—and more generally for the utility of happiness—of the whole population, not just the freedom of mainstream, propertied males that government had traditionally protected. So why would they have weakened the ideal of freedom so that it is not compromised by having to live under the power of another, only by active interference? My own hunch is that it was more realistic to argue for universal freedom if freedom was something that a wife could enjoy at the hands of a kind husband, a worker under the rule of a tolerant employer—in other words, if it was an ideal that, unlike universal freedom as non-domination, did not require redressing the power imbalances allowed under contemporary family and master-servant law. (9, emphasis added)

But universal non-domination was not the likeliest alternative. One could take Pettit’s hunch seriously but rephrase it as follows: once “each counts for one and none for more than one” is admitted as a foundational moral-political principle, that creates intellectual pressure to find a valuable sense of freedom that could imaginably be available to all. Just insofar as neo-Roman liberty was a status tightly bound up with holding superordinate not subordinate social positions—master, husband, father, rather than slave, wife, child—it became inadmissible as an understanding of valuable liberty. The thinned-out sense of liberty appealed to by Bentham and Paley was preferable to the neo-Roman sense just because the former was egalitarian and the latter was not. Pettit’s treatment of “universal non-domination” as a relevant alternative obscures this; in fact, republican ideas were slow to accommodate themselves to the demands of democratic equality, and considerable intellectual effort had to be deployed in the nineteenth century to reshape republican ideas in light of egalitarian commitments. ⁵

Pettit’s work often shows a kind of confidence that egalitarianism is easy, that people will generally be happy with the status of “equal.” In Made With Words he (rightly) emphasizes the importance for Hobbes of the idea of perpetual status competition. ⁶ He counters with the possibility that humans seek non-inferiority rather than superiority, and so equality of status is a happy equilibrium. The war of all against all need not arise “if people are acknowledged to find a high degree of satisfaction in having equal standing with others. Let that be granted, and it is possible to be much more sanguine” (3). A similar confidence runs through The Economy of Esteem, and I admit that I consider that the central flaw in a masterful and important book. ⁷ Zero-sum and negative-sum status competition, the urge to stand out and stand above just for the sake of it, are consistently strangely absent from his theoretical imagination. I cannot help but engage in a kind of complimentary argument ad hominem: it seems likely to me that Pettit genuinely believes in the psychological attractiveness of equal status, on the basis of his own introspective understanding of moral psychology. Yet it seems to me plainly false. What Adam Smith characterized as the “love of domination and tyrannizing” is all-too-pervasive and basic a feature of the human mind. To take one of Pettit’s examples, the history of the rule of husbands over wives seems to me incomprehensible without taking that love of domination seriously.

To say this is not, of course, to justify “tyrannizing.” But it is to say that I think Pettit unjustifiably “sanguine,” too ready to believe that people crave status only because they crave equality, and far too quick to think that the deeply inegalitarian neo-Roman tradition can be redeemed by simply universalizing what it valued. The status of the free man that so concerned that tradition was a status, and its meaning and value partly came from the fact that it was a status above other possible social positions. For all of the valuable and technically impressive work Philip Pettit has done developing a normative theory that draws inspiration from that tradition, I think there are elements in it (militarism may be another) that are so alien to him that he does not easily see that there are even questions to be asked about their centrality to it.