Freedom as non-domination in the jurisprudence of constitutional rights

WORKING PAPER – [email protected]

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Freedom as non-‐domination in the jurisprudence

of constitutional rights

Eoin Daly

School of Law, NUI Galway

Abstract

In recent decades, neo-‐republican philosophers have developed a theory of freedom

as non-‐domination, which, they claim, is conceptually and analytically distinct from

the “liberal” concept of freedom as non-‐interference. However, neo-‐republicans have

intervened in constitutional debate almost exclusively in relation to structural issues

of institutional competence, and have made little impact on the analytical

jurisprudence of constitutional rights. While judicial review seems ill equipped to

respond to the distributive dimensions of republican freedom, republicans like

Richard Bellamy have argued that the whole edifice of countermajoritarian, strong-‐

form judicial review is itself an affront to freedom as non-‐domination properly

understood. Republican freedom, in this lens, is defined structurally, procedurally

and politically rather than in relation to a definite set, concept or theory of rights

that is put outside and beyond politics. And partly for this reason, there has been

little commentary concerning how the theory of freedom as non-‐domination might

inform constitutional-‐rights doctrine. This article will argue, first, that the neo-‐

republican view can usefully inform constitutional-‐rights doctrine notwithstanding

republican reservations concerning judicial power. Second, it will propose a number

of specific ways in which the jurisprudence of constitutional rights might account

for the central concerns of the republican idea.

Introduction

Perhaps the single most important claim of republican legal theory is that

freedom is best understood not as an absence of interference or coercion as such,


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but rather as resilient security against arbitrary power. Freedom, then, consists of

non-‐domination rather than non-‐interference. It is undermined by the

apprehension of arbitrary interference as much as its actual exercise, and since it

is a function of power imbalances, it pervades social relationships generally

rather than being confined to discrete invasions or abuses of “rights”. A growing

political-‐theory literature elaborates the specific facilities and resources people

need to realise freedom as non-‐domination in practice – and how this

differentiates it, analytically speaking, from the liberal concept. However, there

has been little discussion concerning how the non-‐domination concept might

inform the jurisprudence of constitutional rights, specifically.

The republican idea has been applied extensively to issues of institutional

competence and constitutional design: indeed many republican scholars have

argued that it supports a model of political constitutionalism or legislative

supremacy, precluding any model of strong-‐form judicial review or of judicial

supremacy in relation to constitutional rights. And this partly explains why the

republican idea of non-‐domination has so rarely been applied to constitutional-‐

rights doctrine: simply because most republican scholars have rejected the very

concept of strong-‐form judicial review, of judicially enforced rights that are

interpreted independently of political and legislative process. Republican

freedom, they have insisted, is realised in the institutional process for reconciling

competing rights claims, rather than by any specific content or definition of rights

that is decided in advance or independently of politics. Thus, republicans such as

Bellamy have argued that the very attempt to define and adjudicate “rights” a-‐

politically is itself a source of domination. If the very process and mechanism of

constitutional adjudication is itself a kind of structural, technocratic domination

as Bellamy claims, then to think about republican interpretations of freedom, that

we believe courts ought to adopt in exercising such powers, is very much to miss

the wood for the trees.

Some republican sceptics might accept the centrality of “rights” yet dispute

whether judges are better positioned than legislators to capture their content.

More radical republicans, mindful of those forms of domination that are

embedded in social and economic power relationships, will doubt whether

freedom of non-‐domination can be captured by rights-‐based analysis at all, or at


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least whether rights are a useful way of framing issues of justice and freedom.

And at a practical level, republicans might well doubt whether the complex

distributive dimensions of non-‐domination can be captured within the formal

strictures of judicial decision-‐making.

This article aims to show, first, why the concept of freedom as non-‐

domination can usefully be applied to constitutional-‐rights doctrine

notwithstanding republican reservations concerning strong-‐form judicial review.

In doing this it makes no firm case in favour of “legal constitutionalism” as such.

Instead, it defends the idea that republican theory can inform constitutional

jurisprudence within such existing models, or that certain judicial approaches can

be considered more or less conducive to the central concerns of the republican

idea notwithstanding republican reservations concerning rights-‐based

constitutional review in general. Secondly, I will offer some specific suggestions as

to how the central concerns of the republican idea might inform constitutional-‐

rights doctrine. While some aspects of the republican ideal are already captured,

implicitly, in established constitutional doctrines, the non-‐domination concept

challenges certain traditional strictures of constitutional-‐rights theory.

I. The republican concept of freedom as non-‐domination

For republicans, domination – rather than interference as such – is the antithesis

of freedom. Domination consists, roughly speaking, of subjection to arbitrary

power or “alien will”.1 Individuals are unfree to the extent that others enjoy an

unchecked capacity to arbitrarily interfere in the choices they are positioned to

make. They are free, conversely, to the extent that they enjoy resilient guarantees

against arbitrary interference in those choices.

Thus republicans reject any understanding of freedom as an absence of

external restraint on individual actions or choices. Skinner juxtaposes a Roman-‐

republican concept of freedom as non-‐domination with a modern liberal concept

1 Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press,

1997), Chapters 1 and 2.


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that he attributes chiefly to Hobbes.2 For Hobbes, “a free man is he that in those

things which by his strength and wit he is able to do is not hindered to do what he

hath the will to do.”3 In contrast, republicans understand freedom not as the

absence of interference as such, but rather as a broader guarantee of security

against arbitrary power. This Roman concept – what Skinner coined as “liberty

before liberalism” – runs through thinkers as diverse as Cicero, Harrington and

Machiavelli, and is often contrasted a “positive liberty” concept, whether

Aristotelian or Arendtian, as much as with the “negative” liberal account.4

Building on Skinner’s historical work, Philip Pettit in particular has

elaborated the analytical dimensions of freedom in this neo-‐Roman sense. We are

not unfree, he suggests, where we suffer interference understood as coercion of

choice, but rather where other agents have an unchecked capacity to interfere, on

an arbitrary basis, in choices we are positioned to make.5 Unfreedom is not a

function of the interference agents actually suffer, however it is measured – or

even of the probability of such interference – but rather of the powers of

interference that other agents enjoy, independently of whether or not, and to

what extent these powers are ever exercised.

This makes the non-‐domination concept analytically distinctive in two

respects (although this distinctiveness has been contested).6 First, interference as

such carries no automatic “cost” for freedom, even in an initial prima facie sense.

Pettit contrasts this with Bentham’s claim that all coercive laws are intrinsically

abrogative of freedom prima facie.7 He argues that, far from abrogating freedom,

public interference – exercised under democratic control – in fact constitutes

2 See generally Quentin Skinner, Liberty before Liberalism (Cambridge: Cambridge University

Press, 1998). 3 Thomas Hobbes, Leviathan: Or the Matter, Forme, and Power of a Common-‐Wealth Ecclesiasticall

and Civill, ed. by Ian Shapiro (Yale: Yale University Press, 2010), Chapter XXI. 4 Pettit (n 1), 18 5 See generally Republicanism (n 1) 6 See e.g. Matthew Kramer, “Liberty and Domination” in C. Laborde and J. Maynor, Republicanism

and Political Theory (London: Blackwell, 2008), pp 37-‐51 7 Philip Pettit, “Law and liberty”, in Samantha Besson and José Luis Martí, Legal Republicanism:

National and International Perspectives. (Oxford University Press, 2009).


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freedom as distinct from causing it, because it secures citizens against private

domination. Hence a thesis of interference without domination.

Secondly, freedom can be undermined without interference ever being

suffered at all (hence domination without interference). For domination to occur,

others need only have capacity or power to arbitrarily interfere in our choices,

even where that power is never used. Powers of interference are “arbitrary”

where they are exercised at the pleasure or discretion of the interfering agent,

where they are not controlled by, and do not track the interests of those affected.8

Freedom, then, is undermined by the apprehension or possibility of interference

as much as by its actual exercise. Power disparities in various social relationships

that are clothed by formal consent – say, in the employment or familial contexts –

will enable some agents to intimidate and invigilate others, and therefore, to

dominate them, without ever inflicting actual interference.9 In such contexts,

people who are vulnerable to and apprehend arbitrary interference – at the hands

of say, capricious employers or spouses – may be forced to self-‐ingratiate and self-‐

censor, to “fawn and toady” – and to distort their life-‐plans in various ways .10 In

the republican idiom, a free citizen can “look others in the eye” without fear of

reprisal. 11 And whereas liberalism may legitimate insidious forms of social

domination with reference to consent, republicans will argue that freedom should

be defined not by consent to power but rather its control.12

Freedom as non-‐interference may, in principle, be secured under non-‐

democratic government, inasmuch as appropriate spheres of non-‐interference are

observed. However, for republicans, coercive public power is non-‐arbitrary – and

thus non-‐dominating – only where it is subject to appropriate systems of popular

control, i.e. where it is subject to the ultimate control of those upon whom it is

exercised. 13 In turn, this means, contra Bentham, that freedom requires

8 ibid 9 ibid 10 Pettit (n 1), 134. 11 Philip Pettit, On the People’s Terms: a Republican Theory and Model of Democracy (Cambridge:

Cambridge University Press, 2013), 3 12 ibid, Chapters 1 and 2. 13 ibid, chapters 4 and 5


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democracy in a conceptual, and not merely a contingent sense. Even those living

tranquilly under a non-‐democratic regime remain subject to a power that is alien

in that it evades their control, checked only by the goodwill of the power-‐wielder.

Although often traced to Roman thinking, these insights were reflected, in the

early-‐modern period, in Rousseau’s theory of political freedom. He rejected

Hobbes’ contractarian defence of absolutism not merely because he disputed the

egocentric moral psychology on which the “state of nature” was predicated, but

also because he maintained that servitude consists not of subjection to an

external will as such, but rather to an arbitrary or alien will. Even where we avoid

coercion or interference, we remain deeply dependent on the will of alien others;

in particular, we depend on them for recognition and self-‐respect. While

dependency as such is intractable in human societies, Rousseau conjectures that

through the social contract, we can replace dependency on arbitrary power with

mutual inter-‐dependency in the form of political community.14 In a self-‐governing

political community, we are equally inter-‐dependent because we are subject to a

will – the infamous “general will” – that we can recognise as being our own: we

realise political freedom by internalising the source of our social dependency. And

we enter into political society not to guarantee ourselves a sphere of non-‐

interference for our private ends, but rather to free ourselves of domination in all

its insidious social forms.

In contemporary political philosophy, Pettit suggests freedom as non-‐

domination can be secured where public power is subject to certain systems of

popular control and where power disparities in the private sphere are checked

through appropriate distributive mechanisms. 15 While Pettit’s neo-‐Roman

account rejects Rousseau’s communitarian and “authorial” understanding of

democracy, both insist that since freedom is an intrinsically political relation, it

can only be enjoyed through and in the context of political community. Politics

does not preserve freedom, but rather constitutes it. And ostensibly at least, this

republican perspective seems inconsistent with the dominant understanding of

constitutional rights as limits or barriers against state power. 14 Frederick Neuhouser, ‘Freedom, Dependence and the General Will’ (1993) 102 Philosophical

Review 390. 15 Pettit (n 11), Chapter 2.


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II. Freedom as non-‐domination in constitutional debates

It is not self-‐evident that the idea of freedom as non-‐domination can usefully

inform constitutional-‐rights doctrine. Doubts arise based partly on considerations

of efficacy, and specifically, concerning whether the (partly) distributive character

of non-‐domination can be captured within the institutional constraints of judicial

decision-‐making. However, for many republican thinkers, the very concept of

constitutionalised, judicially enforced rights is not merely unhelpful to, but

positively negates freedom as non-‐domination, where it is understood in a

procedural and institutional sense. From this perspective, it is pointless to

consider “republican” analyses of what is thought an intrinsically illegitimate, and

dominating practice. Accordingly, this section addresses republican objections to

strong-‐form judicial review (i.e. judicial review of legislation, as distinct from

administrative action), as well as a broader scepticism concerning how non-‐

domination can be captured within the format of rights-‐based judicial review.

Non-‐domination, “rights” and judicial power

The first objection relates to the largely distributive character of republican

freedom and correspondingly, the institutional limits of judicial power. As

discussed, domination is a function of “relative powers”,16 and so can exist

without interference as such ever occurring. Thus while freedom as non-‐

domination responds to the apprehension and insecurity experienced by those

living within asymmetrical power relationships, more generally domination is

constituted, in part, in social and economic structures. In this light, judicially

enforced constitutional rights may not prove very effective in protecting freedom

understood in this broad sense. (Arguably, it might actively entrench domination,

although I provisionally bracket this question). Freedom, in this sense, cannot be

realised through a constitutional bill of rights enforced by courts against other

16 Pettit (n 1), 113-‐4


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agencies; more fundamentally, it is irreducible to any enumerated list of specific

rights.17 It is realised, in large part, through distributions of social, economic and

political power, that judiciaries are ill equipped to effectuate or even decisively

influence.

In the Rousseauan tradition, this objection is foundational and intractable,

given the conceptual inseparability of freedom and collective self-‐rule. Insofar as

political freedom requires the rule of a non-‐arbitrary “general” will across all

areas and interests, it cannot be captured as a list of codified rights, understood as

immunities or spheres of non-‐interference, that are defined independently of

legislative process. Moreover, since a non-‐dominating general will must be given

expression democratically and in legislative form, political freedom precludes any

substantive constitutional restraints on legislative power. Since neo-‐Roman

republicans reject Rousseau’s “authorial” concept of democracy and its emphasis

on popular sovereignty,18 rights-‐based constitutional review is not objectionable

in this foundational sense; in fact Pettit, in particular, embraces “legal

constitutionalism” as an important institutional buttress of non-‐domination.

Nonetheless, even if the democratic objection is disregarded, it may still be

impossible to capture the social breadth of freedom as non-‐domination within the

formal and institutional constraints of judicial decision-‐making.19 Since non-‐

domination depends on people’s “relative powers” 20 – and thus, the opportunities

and resources they enjoy relative to others – it requires a strong commitment to

social and distributive justice that cannot be captured or realised as a set of

judicially enforced individual rights, or might even be thwarted by it. If, as

outlined, freedom as non-‐domination can be undermined simply by power

disparities that make some dependent on the goodwill of others, republican social

justice – and thus republican freedom – will be effectuated through, for example,

social-‐welfare systems and wealth redistribution, domestic-‐violence legislation,

17 On social justice and non-‐domination, see Pettit (n 11), Chapter 2. 18 Pettit (n 1), 18. 19 See generally Lon Fuller, ‘The forms and limits of adjudication’, (1978) 92 Harvard Law Review

353 20 Pettit (n 11), Chapter 2.


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educational provision, etc., and other measures that are not effectively pursued

through constitutional law.21

Perhaps there is no reason, in principle, why freedom as non-‐domination

should not be captured or expressed as a set of “rights”. Certainly, some republican

are ambivalent towards juridified rights-‐culture, insisting citizenship comprises a

“continuously reflexive process, with citizens reinterpreting the basis of their

collective life in new ways that correspond to their evolving needs and ideals.”22

However, the republican objection can hardly be to “rights” as such. We might

conceptualise rights broadly; we might say simply, for example, that there is a

right not to be subject to arbitrary power. Republican scepticism, then, must be

directed more specifically towards judicially enforced constitutional rights, both

in terms of their efficacy and legitimacy. This objection arises in part because the

adversarial format of constitutional adjudication cannot capture the diffuse and

polycentric character of the power relationships on which domination is based.

Additionally, it stems from the limited remedies available to courts.

Thus, precisely because domination can obtain without interference

occurring, it is difficult, in particular – leaving aside institutional limitations – to

envisage how complaints of domination could be framed within the form and

institutional structure of constitutional rights. Rights-‐based constitutional review

operates, for the most part, in a negative sense, through the invalidation of

legislation, or other forms of public interference, that violate specific “rights”.

Historically at least, it operated by asserting areas of immunity, for individuals,

from state interference. On the one hand, this fails to address problems of private

domination; additionally, however, it cannot effectively account for those subtle

forms of insecurity, apprehension and servitude that stem from subtle,

multifarious power disparities across various social and economic domains.23 A

constitutional-‐rights complaint must usually establish an “interference” in, or

21 However, for a countervailing view, see Cecile Fabre, “Constitutionalising Social Rights” (1998)

3 The Journal of Political Philosophy 363. 22 Richard Bellamy, ‘Constitutive Citizenship versus Constitutional Rights: Republican Reflections

on the EU Charter and the Human Rights Act’, in Tom Campbell, Keith Ewing and Adam Tomkins

(eds), Sceptical Essays on Human Rights (Oxford: Oxford University Press, 2001), 15. 23 See generally Fuller (n 19).


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violation of rights. The mere existence of a power differential, the kind of which

causes domination, is difficult to frame in this way, not least because there may

not be a definite party against whom the complaint can be levelled, and because

the complaint embraces a multitude of hypothetical future interferences. (This

problem is discussed further in the final section).

It might be argued that these are historically contingent, rather than intrinsic

limits on judicial power; indeed, judicial remedies for constitutional rights might

be affirmative or declaratory rather than negative, while constitutionalised socio-‐

economic rights might partly capture the distributive nature of non-‐domination.24

Yet given the polycentric and complex nature of distributive problems, even

successful models of constitutionalised socio-‐economic rights will not usually

define such rights in relative terms – but rather in terms of rights to say, housing,

education or health – and so they fail to capture the problem of power

differentials as such. For example, a person might enjoy a satisfactory standard of

housing and healthcare in absolute terms, but remain economically vulnerable to

a capricious family and indeed, dominated in a structural/social way by virtue of

patterns of class and wealth reproduction.

Non-‐domination, then, could certainly, in principle, be formulated as a

constitutional right (“nobody shall be subject to arbitrary power”), but judicial

enforcement would prove peculiarly inapt to enforce or promote the substance of

non-‐domination, even assuming, provisionally, that it would not actively

undermine it. Even judges who might be sympathetic to social and economic

dimensions of freedom are limited by what are arguably intrinsic or at least

intractable formal limits on judicial power, which make it unsuitable to address

the distributive dimensions of domination. And importantly, this remains true

without considering any more radical theories of structural or “constitutive”

domination focussed on ideology or exploitation, on the control of social

rationalities and value systems and so forth; 25 it applies to the relatively

conservative account of domination embraced by the neo-‐Roman writers, which if

24 On the constitutionalisation of social rights generally, see Fabre (n 21). 25 See e.g. Michael Thompson, “The two faces of domination in republican political theory” (2015)

European Journal of Political Theory Published online before print April 15, 2015, doi:

10.1177/1474885115580352, last accessed April 16, 2015.


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focused more narrowly on the relational control of individual choice. Accordingly,

it seems that the distributive dimensions of non-‐domination – understood as a

pattern of resourcing across all social relationships – can only be realised through

legislative and administrative channels, and could only ever be affected by judicial

doctrines (or indeed constitutional drafting) in a piecemeal or indirect way at

best.

Freedom and political constitutionalism

Leaving aside efficacy, a more fundamental republican objection centres on the

political effects and the political legitimacy of strong-‐form judicial review. While

some republicans embrace strong-‐form judicial review as a vital check on

arbitrary power and a conduit of principled public deliberation,26 others argue

that rights-‐based constitutional review of legislation is not merely inefficacious in

securing freedom as domination, but in fact, actively negates it. Specifically, these

scholars argue that freedom, understood as non-‐domination, is inconsistent with

any concept of “rights” that aims to identify areas of immunity for individuals, and

thus to define, in advance, those questions that are placed beyond ordinary

political contestation. From this perspective, the problem with constitutional

adjudication is not merely that it is ineffective as an institutional response to

social and economic domination. Rather, in attempting to depoliticise “rights”

issues – that is, to take them out of the ordinary political domain and entrust them

to an independent judicial sphere – it establishes a form of political domination,

independently of issues of efficacy.

As already noted, the Rousseauan strand of republican thought embraced an

“authorial” theory of democracy – and thus an unbridled account of popular

sovereignty – that necessarily rejects any judicial constraints on legislative power

in the guise of constitutional rights or otherwise.27 Beyond Rousseau, some

26 See e.g. Iseult Honohan, ‘Republicans, Rights and Constitutions: Is Judicial Review Compatible

with Republican Self-‐Government’ in S. Besson and J.L. Marti (eds), Legal Republicanism: National

and International Perspectives (Oxford: Oxford University Press, 2009). 27 Mortimer Sellers, The Sacred Fire of Liberty: Republicanism, Liberalism and the Law (New York:

Macmillan and NYU Press, 1998).


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republicans argue that “tights talk” generally, or a juridified culture opposing legal

rights against democratic process, tends to “depoliticise” freedom both

conceptually and institutionally, depicting it as a “boundary around the individual

… against the state.”28 Republicans of any ilk will insist that since freedom

consists of security from arbitrary power, it is constituted (rather than caused)

through politics – not against or despite it.29 Thus, in the Rousseauan-‐influenced

French constitutional tradition, for example, republican scepticism towards

justiciable constitutional rights historically translated to a doctrine of strong

legislative supremacy.30

Arguably this doctrine leaves individuals and minorities vulnerable to

societal animus; in extremis it suggests rights are “nothing but determinations of

the prevailing political will”.31 However, contemporary republican like Richard

Bellamy have offered a more subtle defence of legislative supremacy. Bellamy

defends “political” against “legal” constitutionalism not from within Rousseau’s

demanding “authorial” understanding of democracy, but rather, using the familiar

neo-‐Roman account of freedom as a resilient security against arbitrary power.

While Pettit argues that freedom as non-‐domination requires checks on

majoritarian politics, Bellamy insists, in contrast, that the non-‐domination ideal is

best realised through a relatively unbridled and procedural version of

majoritarian parliamentary democracy, unconstrained by any justiciable

constitution. He argues that we cannot realise freedom, in the republican sense,

by somehow settling, in advance, on a concept of rights that is to be placed

beyond politics and hived off from the ordinary procedures of contestation.

Inevitably, such determinations prove ad hoc and historically arbitrary: a state

cannot be built on a durable consensus about “rights”. Contra Rawls, the starting

point for political philosophy is the fact that reasonable citizens disagree, in a

28 Duncan Ivison, ‘Republican Human Rights?’ (2010) 9 European Journal of Political Theory 34. 29 ibid 30 Rousseau, Du Contrat Social, Books II and III. See also Peter Lindseth. Law, History, and Memory:

Republican Moments and the Legitimacy of Constitutional Review in France (1996) 3 Columbia

Journal of European Law 49 31 Frank Michelman, (1989) 41 ‘Conceptions of Democracy in American Constitutional Argument:

Voting Rights’, Florida Law Review 443 fn 446.


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permanent and intractable way, not only on the good, but also questions of right.

Therefore, freedom as non-‐domination is not realised by enshrining any specific

concept or content of rights; rather, it is realised in the institutional process for

reconciling competing rights-‐claims. Thus, it is realised specifically through a

majoritarian parliamentary politics which, by according equal weight to each

vote, enshrines “equal concern and respect” for citizens who (quite reasonably)

disagree on the content of rights.32 Conversely – as Waldron has equally argued –

there is no reason to believe that any specific institution, judicial or otherwise,

can claim a privileged perspective on the content of rights. In effect, then, Bellamy

– along with Tomkins and others – argues that the indeterminacy (or uncertainty)

of “rights”, combined with a principle of political equality, must yield a strongly

procedural account of democracy.33 To map this on to the broader republican

lexicon, he effectively contends that public power is non-‐arbitrary (and thus non-‐

dominating) only if it enshrines political equality (understood procedurally), and

in turn that procedural political equality requires a majoritarian democracy

unhindered by strong-‐form judicial review.

Bellamy’s starting point is a realist one – it is not the hope of successfully

capturing or enshrining a true or even a politically authoritative concept of rights;

rather it lies in recognising, and accommodating the fact of disagreement

concerning rights. And this gives a republican flavour to Griffith’s influential claim

that “rights” are best understood as political claims rather than as objective moral

propositions.34 He argues that unfettered majoritarian democracy permits on-‐

going contestation about the meaning of rights in a way that respects and

enshrines citizens’ political equality. In contrast, the very features that are

thought to make constitutional courts uniquely suited to protecting rights – their

non-‐political nature non-‐contestatory character – undermines political freedom

in this republican sense. More fundamentally, it is the very attempt to determine

32 Richard Bellamy, Political Constitutionalism (Cambridge: Cambridge University Press, 2007). 33 Adam Tomkins, Our Republican Constitution (Hart, 2005). 34 John Griffith, “The Political Constitution” (1979) 42 Modern Law Review 1… Alternatively,

strong-‐form judicial review has equally been challenged from within rights-‐centred liberalism.)

See e.g. James Allan, ‘Bills of rights and judicial power: a liberal's quandary’ (1996) 16 Oxford

Journal of Legal Studies 337


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a-‐politically a substantive concept of rights, to demarcate the limits of politics

using rights, that leads to political domination in the guise of arbitrary rule – as “a

juridified culture of rights freezes the debate on their contents.”35 In short,

“depoliticisation can fuel domination.”36

If Bellamy is correct, it seems pointless to consider how constitutional-‐rights

doctrine might capture freedom as non-‐domination – say, to consider whether

discrete doctrines and rulings are more or less responsive to domination –

because judicially enforced constitutional rights are inconsistent with the ideal in

a systemic and structural sense. Indeed while we might argue that judges ought

to decide cases in particular ways – in ways, say, that are more responsive to

problems of domination in social life – the point is that whatever in fact they

choose to do cannot be controlled or contested through any democratic

procedures.

Certainly, some republicans will dismiss any attempt to make out a

“republican” analysis of an institution they perceive as being fundamentally

illegitimate. They might dismiss as pointless those arguments concerning the

content of constitutional rights in the abstract, preferring instead to focus on

systemic questions of process and form. However, this absolutist rejection of

republicanised constitutional rights – based on the political domination intrinsic

to the very concept – ignores the socially diffuse nature of domination. That is to

say, it ignores that domination assumes multiple sources and forms across social

and political life. This means, surely, that there is no single set of institutional

arrangements that can be said to realise non-‐domination independently of

localised variables and contingencies, simply because non-‐domination is never

realised, but rather maximised or optimised. The fact that domination has

multiple sources, public and private, means that efforts to increase non-‐

domination in one sphere might bear costs for non-‐domination in another.37 Thus

35 Marco Goldoni, ‘Constitutional Reasoning According to Political Constitutionalism’ (2012) 11

German Law Journal 1, 4 36 Bellamy (n 32), 152. See also Jeremy Waldron, ‘A right-‐based critique of constitutional rights',

(1993) 13 Oxford Journal of Legal Studies 18 37 Philip Pettit, ‘The determinacy of republican policy: A reply to McMahon’ Philosophy & Public

Affairs (2006) 34, 275


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as a consequentialist, Pettit argues that the republican state attempts a kind of

calculus of non-‐domination, maximising overall non-‐domination. 38 This may

involve certain trade-‐offs, e.g. efforts to decrease social and economic domination

may inadvertently increase bureaucratic domination. This makes it difficult to

crystallise non-‐domination as a strict set of a priori institutional prescriptions,

because optimal non-‐domination will depend on a set of complex, context-‐specific

variables, including say, whether or not judicial or political culture, in a particular

time of place, is capacious enough to fulfil particular goals or tasks assigned to it.

Therefore, while republicans like Bellamy might be correct in identifying

strong-‐form judicial review as a source of domination – of political domination,

specifically – this is only one kind of domination. And political domination, much

like the private domination that obtains between individuals and groups, operates

as a matter of degree rather than in an all-‐or-‐nothing way.39 The decisive point is

the following: a constitutional practice or feature that causes domination (as a

matter of degree) in one dimension (e.g. political domination) might attenuate a

different dimension of domination (e.g. social domination). Whether this trade-‐off

is desirable depends on various empirical and social contingencies, or at least it is

a complex question of political sociology. Crucially, the possibility that this trade-‐

off is worth it holds true even if strong-‐form judicial review is intrinsically

dominating, in a conceptual rather than a contingent way. Following Pettit’s

consequentialist logic, such an institutional arrangement could never be

discounted on republican terms.

Therefore, it follows that is perfectly consistent to accept that strong-‐form

judicial review represents a source of political domination, in one dimension, yet

while insisting that particular constitutional doctrines might alleviate other

sources or dimensions of domination in more piecemeal or discrete ways – while

bracketing the question of whether strong-‐form judicial review enhances non-‐

domination overall.

Certainly, then, judicial approaches that appear to enhance non-‐domination in

discrete domains form part of a broader system that may well represent a kind of

expert technocracy and thus, political domination. Yet equally, republicans might 38 ibid 39 Pettit (n 11), 56


16

recognise that discrete doctrines within such systems may serve to alleviate some

immediate problem of domination in social life – say, by invalidating a statute that

grants officials arbitrary power. Contra Bellamy, therefore, the dominating

character of strong-‐form judicial review and indeed, the question of whether it

has a net cost for non-‐domination, is highly context-‐specific. Given the

consequentialist view detailed above – the idea of a “calculus” of non-‐domination

– it follows that we can investigate the positive effects of judicial power for non-‐

domination in one domain while admitting the possibility that it might worsen it

in another dimension.

Even republicans who disagree, and who categorically reject the entire

institutional edifice of rights-‐based constitutional adjudication, must still

recognise that constitutional rights can be interpreted in ways that are more or

less amenable to the republican understanding. Pragmatically, strong-‐form

judicial review is an intractable feature of most contemporary liberal

democracies. The most ardent republican opponents of judicial supremacy would

have to accept that specific constitutional doctrines might relieve citizens from a

particular kind of arbitrary power, say, the arbitrary power of some category of

public officials, despite the mechanism itself representing a different kind of

domination. And finally, political constitutionalists do not usually reject rights-‐

based judicial review as such, but only strong-‐form judicial review – i.e. rights-‐

based judicial review that is accompanied by an unqualified power of legislative

invalidation. 40 Thus, neo-‐republicans should naturally be interested in how

alternative systems of rights-‐based review – that are consistent with, or even

supportive of republican aims – can effectively incorporate the non-‐domination

ideal.

In summary, then, republicans might doubt whether judicial review is an

appropriate mechanism for securing a non-‐dominating form of government, while

acknowledging that, within a given constitutional framework, certain adjudicative

approaches might be more or less sensitive to problems of domination in discrete

areas of social life.

40 See Bellamy, ‘Political Constitutionalism and the Human Rights Act’ (2011) 9 International

Journal of Constitutional Law 86


17

III. Non-‐domination and constitutional rights: propositions

Having defended the idea that it can usefully inform constitutional rights doctrine,

I now suggest specific ways in which the theory of freedom as non-‐domination

can inform constitutional-‐rights doctrine, while taking into account the

institutional limits of judicial power. While this discussion begins in rather

abstract terms, the following section suggests more concrete doctrinal

applications.

Firstly, freedom as non-‐domination can inform judicial understandings of

rights that are connected to political activity specifically. As discussed earlier,

republicanism emphasises popular contestation and control of government as

criteria of non-‐domination. State power is non-‐dominating to the extent that it is

subject to a system of “jointly shared” democratic control and thus a directive

popular influence.41 Of course, democratic control, in Pettit’s sense, will not be

secured solely through constitutional rights; mechanisms such as freedom of

information – typically protected in statutory form – will enable informed citizens

to challenge and contest abuses of state power.42 Nevertheless, the idea of

democratic control as a component of non-‐domination can inform our

understanding of the scope of some constitutional rights. For example, it suggests

that freedoms of expression and association cannot be understood simply as

rights of private autonomy, guaranteeing rights of non-‐interference for

individuals considered independently of the political domain: rather, they must

be understood as playing an essential role in subjecting state power to

individualized contestation and directive popular control. 43 Indeed in

jurisdictions such as the United States, political expression has received a higher

degree of protection given its role in democratic citizenship.44 Similarly, since

freedom of association protects the associational infrastructure of civic life as well

41 Pettit (n 11), Chapters 4 and 5. 42 See Tomkins (n 33), Chapter 4. 43 See Julia Guttman, ‘Primary elections and the collective right of freedom of association’, (1984)

94 Yale Law Journal 117; Samuel Issacharoff, ‘Private Parties with Public Purposes: Political

Parties, Associational Freedoms, and Partisan Competition’ (2001) 101 Columbia Law Review 274 44 Issacharoff, ibid


18

as “private” collective activities, political associations might receive a higher level

of constitutional protection.45

Secondly, the idea of non-‐domination can inform the interpretation of

constitutional rights that are not directly connected to civic and political activities

– for example, personal liberty or freedom of religion. It might inform the scope of

these rights in the sense of the particular safeguards and resourcing they require,

the activities they protect, and the demarcation of those state actions and

omissions that violate those rights. More importantly, however, the republican

idea can inform doctrinal standards of review for constitutional rights. The most

familiar doctrinal approach to interpreting fundamental rights involves a two-‐

stage analysis whereby the court establishes first whether “interference” in the

relevant right has occurred, and secondly whether that interference is

nonetheless justified as a proportionate mechanism for pursuing certain public

interests. For example, Articles 8-‐11 of the European Convention on Human

Rights (EHCR) specify the grounds based on which the freedoms of religion and

expression, as well as family rights and privacy rights can be limited “in

accordance with law” (e.g. “public order” and “the rights of others”).46

Interference without domination

Using the template of this two-‐stage analysis, republican theory can inform our

understanding first, of what constitutes “interference” in a right prima facie, and

second, what constitutes sufficient justification for such interference. On the one

hand, since republicans suggest interference as such carries no necessary “cost”

for freedom, it follows that state actions which coerce the relevant choices or

actions will not necessarily count as prima facie infringements of the relevant

constitutional rights, of the sort that require some special justification at the

second stage of analysis. For example, where a religiously motivated practice is

prohibited by virtue of the general application of an otherwise legitimate law that

is not itself targeted at religious practice, arguably there is no “interference” in 45 ibid. 46 See generally Pieter Van Dijk, Fried Van Hoof and Arjen Van Rijn (eds.), Theory and Practice of

the European Convention on Human Rights (The Hague: Kluwer, 1998).


19

religious freedom at the first stage of analysis.47 Nor, then, does it have to be

subject to any special justification or proportionality test at the second stage,

provided that the prohibition meets certain criteria that qualify it as a non-‐

dominating form of interference – say, where it is exercised pursuant to a

contestatory legislative process rather than official discretion, and where it tracks

interests that are shared by those it affects.48 Effectively, the U.S. Supreme Court

endorsed a similar conceptual schema in Employment Division v Smith.49

This approach defines “rights” in a very particular way – not as granting

immunities, or guarantees of non-‐interference, to privileged areas of activity (e.g.

religious practice), but rather as controlling the criteria of state action in

particular domains. Thus it makes constitutional rights appear less as guarantees

of non-‐interference for individuals as such than as controls on the predicates and

grounds of state action, and specifically, then, as bulwarks against arbitrariness in

its republican sense. And indeed this seems attractive from the standpoint of

institutional competence: using the religious-‐freedom example, again, judges

seem better equipped to decide whether a law restricting religious practices

reflects legislative animus – or spurious policy justifications – than to understand

the spiritual importance, or even the theological authenticity of the practices

affected (that is, to say whether or not they come within the category of activity

that defines the right in question).50 There are no clear grounds on which a court

might decide whether a particular religious practice is of sufficient importance to

warrant exemption from otherwise valid laws, but it might discern whether or not

the law in question is implicitly sectarian or discriminatory.51

This might seem a stark position. Taken to its logical conclusion, it would

reject any right, however limited, for religious believers to be exempted from

neutral and generally applicable legislation (for example, to use prohibited drugs

47 Here I distinguish “interference” in the ECtHR’s terminology – a prima facie infringement of a

right at the first stage of analysis – from the more technical sense of the term used in analytical

legal/political philosophy. 48 Pettit (n 1), Chapter 7, (n 11), Chapters 4-‐5. 49 494 US 872 (1990). 50 ibid 51 See Church of Lukumi Babalu Aye v City of Hialeah, 508 US 520 (1993).


20

for sacramental purposes).52 Facially neutral laws impeding religious practices

might count as “arbitrary” interference if they are non-‐neutral in the sense of

being motivated by sectional or sectarian interest; it is less clear, however,

whether laws could be overturned simply because they are indifferent or

negligent to minority religious needs.53

Nonetheless, the republican perspective suggests that the role of the

constitutional judge is not to define privileged spheres of activity that are to

remain presumptively free of coercive interference or regulation – not least

because such decisions often prove somewhat ad hoc. Instead, their role is to

police the procedural and justificatory basis for administrative and legislative

coercion. Of course, rights are ostensibly defined in relation to specific activities

(religion, expression, association, etc.), and Pettit, for example, acknowledges that

the republican state will entrench and protect only certain choices against

domination (the domain of the “basic liberties”).54 But the point remains that

these rights do not protect citizens from interference as such, but only arbitrary

interference, albeit within specific domains of activity, and thus they can be seen

as instrumental guarantees of non-‐arbitrary government rather than safeguards

against interference as such.55

The idea of non-‐domination – and particularly the republican concept of

arbitrariness – can inform the legitimate limits of rights as well as their prima

facie scope. Specifically, the legal-‐doctrinal idea of proportionate “interference” in

rights roughly maps on to the theoretical understanding of interference without

domination. For republicans, non-‐dominating interference must pursue a

legitimate aim connected to a common public good – that is, an interest shared at

some level by all those affected – rather than say, a factional or sectional interest. 52 On this issue, see Christopher Eisgruber and Lawrence Sager, Religious Freedom and the

Constitution (Cambridge, MA: Harvard University Press, 2007) 53 See generally Douglas Laycock, ‘Formal, Substantive, and Disaggregated Neutrality towards

Religion’ (1990) 39 DePaul Law Review 993, 54 Pettit (n 11), 83 55 Pettit insists that a broad range of activities and choices, but not “any old choices”, must be

protected by the basic liberties; they “need resources and protection in a range of choice where all

can operate at once without getting in another’s way…. [this is] the domain of the fundamental

liberties.” Pettit, ibid.


21

And this quintessentially republican concern is captured, at least in part, in the

existing methodologies of constitutional and human-‐rights courts. For example,

articles 8-‐11 of the ECHR define the criteria based on which freedom of

expression, religion, assembly, etc., may legitimately be limited. These arguably

echo the republican concept of arbitrariness in many respects – for example, in

the requirements that interferences are “prescribed by law” (rather than based on

administrative discretion) – a formula echoed in the Canadian Charter56 – and

that they must be “necessary in a democratic society ... or for the protection of the

rights and freedoms of others”. National constitutions are often less specific. The

rights encompassed by the First Amendment to the United States Constitution

(religion, association, expression, assembly, “petition” of government) offer no

definition of limiting criteria.57 The Irish Constitution uses vague formulae such as

“public order and morality” (Article 44) or “the exigencies of the common good”

(Article 43), while the Canadian Charter refers to the “such reasonable limits … as

can be demonstrably justified in a free and democratic society” (Article 1). Yet

irrespective of textual and stylistic variations, the two-‐stage structure of much of

constitutional-‐rights doctrine arguably shows that the function of constitutional

judges is to safeguard against arbitrary interferences in rights specifically, and

thus that their role can ultimately be understood in light of freedom as non-‐

domination rather than the more familiar liberal concept.

This idea is also reflected in the structure of proportionality doctrine.58

Generally speaking, proportionality analysis requires that restrictions on rights

have a legislative basis, that they pursue a legitimate aim, and that rights are

impaired no further than is necessary to realise such aims.59 Since limitations on

rights must be “rationally connected to the objective and not be arbitrary, unfair

56 Canadian Charter of Rights and Freedoms, 1982, Article 1. 57 The first amendment provides: “Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.” 58 Heaney v Ireland [1994] 3 IR 593; Cox v Ireland 14 [1992] 2 IR 503. 59 For discussion see generally Tom Hickman, ‘The substance and structure of proportionality’

(2008) Public Law 694.


22

or based on irrational considerations”,60 this can be interpreted as a mechanism

for ensuring that coercive state interference remains non-‐arbitrary in the

republican sense, in that it tracks “commonly avowable” public interests.61 Again

this helps to show that constitutional rights are not moral rights, institutionalised,

but rather, controls on the predicates of state power – entirely consistent with a

“political” concept of rights, and accommodating of the fact of “disagreement”

about rights.

This understanding of constitutional rights has received support beyond the

domain of republican theory. Adler, for example, argues that American

constitutional law is not concerned, primarily, with the moral rights of

individuals, but rather the “predicates of Government action”.62 This is given

expression, as already argued, in the Supreme Court’s recent jurisprudence on

religious liberty, which focuses not on the religious harm caused by government

actions (say, with reference to the spiritual importance of the restricted practices)

but rather on whether laws restricting such practices are “neutral and generally

applicable.”63 Similarly, Kagan has argued that free-‐speech doctrine is focused

primarily on the purpose rather than the effects of state action.64 And in turn, if

constitutional review focuses on the “pattern, purpose or context of government

action” rather than “some specific aspect of one’s liberty or welfare”,65 this

illustrates, again, that constitutional rights are not concerned primarily with

preserving, for individuals, a pre-‐defined sphere of non-‐interference, but rather

with checking arbitrariness in state power.

60 Heaney v. Ireland [1994] 3 IR 593, 607. 61 Pettit (n 11), Chapters 4 and 5. 62 Matthew Adler, ‘ Rights against Rules: The Moral Structure of American Constitutional Law’

(1998) 97 Michigan Law Review 1 63 Employment Division v Smith 494 US 872 (1990). 64 Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First

Amendment Doctrine’ (1996) 63 University of Chicago Law Review 413. Pildes cites Board of

Education v Pico 457 U.S. 853 (1982) to support this view. Richard Pildes, ‘Why Rights Are Not

Trumps: Social Meanings, Expressive Harms, and Constitutionalism’ (1998) 27 The Journal of

Legal Studies 725 65 Christopher Eisgruber and Lawrence Sager, ‘Religious liberty and the moral structure of

constitutional rights’ (2000) 6 Legal Theory 253.


23

This is reflected in standards of review other than proportionality. For

example, it has been argued that the American “compelling state interest” test

(“strict scrutiny”) “requires courts to determine the scope of rights with reference

to the justifications government offers for limiting them” – precisely because

“rights are better understood as means of realizing certain collective interests”66

rather than as definite, “pre-‐political” spheres of non-‐interference for individuals.

Similarly, the concept of “balancing” limits on rights against communal interests

can be interpreted as an attempt to define those reasons or criteria that constitute

“impermissible justifications for state actions in different spheres” – and thus,

again, as a means of realising “those specific common goods the pursuit of which

is the point of recognising particular constitutional rights.”67 In short, then,

constitutional rights “police the kinds of justifications government can act on in

different spheres rather than protecting atomistic interests in autonomy, or

liberty, or dignity.”68 Pildes argues that if rights are understood as “channelling

the kinds of reasons government can invoke when it acts in certain arenas”,69 they

are not, then, “trumps” on the common good – as Dworkin argues – but rather its

conduits and its signposts. Again, this feature gives constitutional rights a

potentially republican flavour.

Domination without interference

I have argued that, from the republican perspective, basic liberties are

undermined, in a prima facie way, not by coercive interference as such, but only

by powers of arbitrary interference. I have also argued that this is implicitly

reflected in some familiar constitutional-‐rights doctrines. However, conversely

the republican analysis suggests basic liberties can be infringed without any

“interference” actually occurring – and this dimension of republican freedom is

less well accounted for in constitutional doctrines. As explained previously,

domination without interference occurs where citizens are exposed to the

66 Pildes (n 64), 731. 67 ibid, 733 68 ibid 69 ibid, 729, emphasis added.


24

arbitrary power of others – in essence, to their discretion and goodwill – and

therefore have to self-‐censor or self-‐invigilate in anticipation of possible

interference or reprisal. This stems partly from the psychological effects of

interpersonal power disparities on individuals’ life plans, and the evasive

strategies dominated individuals will need to deploy to stave off interference.

If domination, and thus unfreedom can obtain without interference as such

ever being suffered, how can this be accommodated within the constricted

conceptual landscape of constitutional rights? While I have sketched the apparent

problems previously – in particular, the fact that a complaint of domination is

difficult to frame within an adversarial judicial format – there are nonetheless

limited, but significant ways in which constitutional rights protect persons from

the “mere” apprehension of unchecked power.

On the one hand, domination without interference underlines the need for

protections against unchecked administrative discretion. Without such

guarantees, citizens might suffer no interference as such, but nonetheless find

themselves forced to engage in evasive strategies to ward off apprehended

interference. While this dimension of non-‐domination will likely be protected, in

the public-‐law sphere, through common-‐law principles of judicial review, it might

also inform the scope of certain constitutional rights (that is, it might inform

judicial review of legislation as well as of administrative action).

On the other hand, domination without interference might equally result

from disparities of bargaining power in the “private” sphere. And this is more

difficult to capture within the traditional strictures of constitutional law. For

example, the freedoms of religion, association and expression might be

undermined by the powers of invigilation or intimidation wielded by private

individuals as much as by those powers of interference held by the state. Where

the right to change one’s religion, for example, is conditioned by economic

pressures within a family or community, this can hardly be accounted for, in full,

in the doctrinal landscape of constitutional religious freedom. As I have noted,

domination is a function of relative powers, and so “the intensity of freedom as


25

non-‐domination which a person enjoys in a society is a function of other people’s

powers as well as of their own.”70

Thus, again, it bears repeating that non-‐domination – defined by the

resources and guarantees we need to resist arbitrary power in whatever form –

will be realised through a “pattern of resourcing” across social relationships

generally – of the sort that enables us to “walk tall and look others in the eye.” 71

Therefore, the polycentric nature of distributive questions – difficult to capture in

an adjudicative format – means that non-‐domination will inevitably be effectuated

at various sub-‐constitutional levels – for example, in the security or paths of exit

that a welfare state might provide.72

Moreover, this is conceptually intractable: it applies no matter how

extensively or radically constitutional rights might be re-‐cast. This is not to claim

that say, “positive” or socio-‐economic rights cannot effectively be

constitutionalised;73 perhaps constitutional judges could usefully be empowered

to protect say, rights to housing or subsistence.74 Similarly, courts in some

jurisdictions have allowed “horizontal” enforcement of constitutional rights

against private actors, such as trade unions or private employers, as well as public

and governmental agencies. 75 But as already argued, these innovations fail to

capture the complex distributive nature of non-‐domination as a “status” freedom,

70 Pettit, Pettit (n 1), 113. 71 Pettit (n 11), 88, 84 72 See e.g. Lena Halldenius, 'Non-‐Domination and Egalitarian Welfare Politics’ (1998) 1 Ethical

Theory and Moral Practice 335; Stuart White, ‘The republican critique of capitalism’ (2011)

14Critical Review of International Social and Political Philosophy 561. 73 Fabre (n 21). 74 On the South African experience see Mark Kende, ‘The South African Constitutional Court's.

Embrace of Socio-‐Economic Rights: A Comparative Perspective’ (2003) 6 Chapman Law Review

137. 75 Danwood Chirwa, ‘The horizontal application of constitutional rights in a comparative

perspective' (2006) 10 Law, Democracy and Development 21. On the Irish example specifically, see

See eg Meskell v CIE [1973] 1 IR 121; Educational Co. of Ireland v Fitzpatrick (No 2) [1961] IR 345;

SPUC v Grogan [1989] IR 761. Sibo Banda, ‘Taking Indirect Horizontality Seriously in Ireland: A

Time to Magnify the Nuance’, Dublin University Law Journal, 31 (2009); Colm O’Cinnéide, ‘Irish

Constitutional Law and Direct Horizontal Effect’, in Oliver and Fedkte, Human Rights and the

Private Sphere;


26

the fact, that is, that it depends on the resources people possess in relative rather

than absolute terms – such that it “consists in relating to [others] on a pattern that

rules out domination [and in] command[ing] a certain standing amongst your

fellows.”76 Potentially significant forms of domination, for example, might occur

where individuals use their economic leverage to control family members’ life

choices; such routine problems could never be captured by “rights to” specific

benefits or entitlements, or whatever kind. And a right not to be dominated seems

too elusive and complex, in its content, to be entrusted to judicial enforcement.

Of course, problems of private domination will be more typically addressed

by criminal and private-‐law doctrines rather than constitutional rights, while

“horizontal” constitutional rights might offer an additional safeguard for

individuals affected by various kinds of private domination which have not, for

one reason or another, been regulated by statute or common-‐law doctrines. But

the broader point remains that, if private domination is constituted by patterns of

distribution, such innovations will have only a piecemeal effect, at best, on an

overall political project of freedom as non-‐domination. It is this feature,

ultimately, that makes non-‐domination difficult to shoehorn within an adversarial

judicial format. Domination obtains in the possibility or the apprehension of some

indefinite future interference, based on power imbalances which are necessarily

polycentric and multifaceted in nature. A dominated person will apprehend and

stave off potential interference from multiple quarters, whether a capricious

employer or a domineering spouse. This gives it a diffuse nature that makes it

difficult to frame as a specific “rights” complaint. The fact that freedom is denied

by a power imbalance as such, and thus, the possibility of a range of future

hypothetical instances of interference, makes domination intrinsically difficult to

frame as a cause of action in law, partly because the class of persons who may

interfere is naturally indefinite. Legislation, and other more generalized state

actions, seems more responsive to these features of domination.

Nonetheless, while judicial review seems inappropriate to deal with the

multifarious and diffuse forms of domination, social, economic and political, and

while constitutional law can hardly account for all the social pressures that are

76 Pettit (n 11), 91


27

brought to bear on constitutionally protected activities, the idea of non-‐

domination might be addressed in more piecemeal ways within a realistic domain

of constitutional law.

IV. Doctrinal applications

Despite the relatively modest role of judicial power in the wider political and

social project of non-‐domination, the point, again, is that constitutional doctrines

might respond more or less effectively to specific problems of domination within

whatever domain of freedom or “rights” that is entrusted, for historical or

prudential reasons, to constitutional protection. Private-‐law doctrines may

certainly have an important role in preventing and checking the effects of

disparate bargaining powers – for example, say, through doctrines of

unconscionability in contract. The question I address, however, is how

constitutional-‐rights doctrine can account for these dimensions of status freedom

within the range of choices and activities that it protects.

Arbitrariness, Interference, Discretion

In concrete terms, what would it mean for a court to identify a breach of

constitutional rights based on a power disparity per se, that is, domination without

interference? Usually, in order for a breach of a constitutional right to be

recognised it is necessary that some form of “interference” has occurred, typically

a prohibition or restriction in a defined sphere of activity. And generally speaking,

the insecurity or fear that citizens may experience as a result of power

differentials, or disparate bargaining resources, is not a cause of action in

constitutional rights. As discussed, there is probably good reason for this, given

the polycentric nature of distributive questions and the limited scope of judicial

remedies. For example, if say, an economically dependent person hesitates to

renounce their religion due to a fear of familial reaction, this is a real constraint


28

on freedom of religion in the neo-‐Roman sense, but it could hardly be ever framed

as a constitutional religious-‐freedom complaint.

Despite these intrinsic limitations on judicial power, constitutional rights

might nonetheless account for domination-‐without-‐interference within a certain,

limited domain. It is already accounted for, in certain modest ways, in existing

constitutional doctrines. As outlined, people suffer domination where they live in

apprehension of interferences that may occur, even improbably, with a change in

circumstance or fortune, or in others’ goodwill. An obvious example arises where

individuals live in apprehension of a statute being used to sanction particular

forms of conduct, even where they have never suffered any such sanction and it is

improbable ever to occur. The idea that constitutional freedoms may be

undermined solely by the apprehension of interference is reflected, for example, in

the law of standing (locus standi). In many instances, a litigant will not need to

demonstrate that interference has in fact occurred, but only establish a possibility

or fear of interference in order to challenge the constitutionality of a law. For

example, in the Irish case Norris v Attorney General,77 a gay senator challenged the

constitutionality of a Victorian-‐era statute that criminalised sexual intercourse

between men, but no prosecutions were taken under the law in the decades

preceding the case, and Norris himself faced none. Interference as such had never

occurred, and it seemed highly improbable it ever would. Nonetheless, and

although Norris’ substantive arguments were rejected by a majority of the

Supreme Court, it accepted that he enjoyed standing to challenge the law. It

effectively recognised that constitutional rights may be undermined by the state

of uncertainty or fear as to the possibility of future interference in some protected

conduct, as much as by the actual experience of such interference. Henchy J

(dissenting) observed:

… fear of prosecution or of social obloquy has restricted [Norris] in his

social and other relations with male colleagues and friends; and in a

number of subtle but insidiously intrusive and wounding ways he has been

restricted in, or thwarted from, engaging in activities which heterosexuals

77 Norris v Attorney General [1984] IR 36.


29

take for granted as aspects of the necessary expression of their human

personality and as ordinary incidents of their citizenship.78

Elsewhere, the Supreme Court stated it is obliged “not merely redress a

wrong resulting from an infringement of the [constitutional] guarantees but also

prevent [their] threatened or impending infringement.”79

Certainly, in some instances standing rules are drawn more narrowly. For

example, in United States constitutional law some authorities have insisted that

injuries suffered must be actual or “imminent”, rather than merely apprehended –

which seems closer to the logic of non-‐interference than that of non-‐domination.80

Yet Pildes argues that an insistence on litigants suffering direct and actual injury

may reflect separations of powers concerns rather than any essential feature of

the “rights” in question; it is quite consistent with the aforementioned

understanding of constitutional rights as instruments of the “common good”

rather than as protections for atomistic individual interests.81

And going further again, some constitutional systems will allow challenges to

legislation not only from individuals who merely apprehend interference, but also

from those who suffer no particular harm or prejudice at all, even in an

apprehensive or anticipatory sense. For example, rules of standing might be

waived where no particular citizen is especially affected by a government wrong

(i.e. an unconstitutional ratification of a treaty). 82 Under the “overbreadth”

doctrine in American constitutional law, citizens whose conduct can

constitutionally be regulated can challenge a law that regulates the relevant

category of conduct (e.g. speech) too broadly and thus, which violates the rights of

78 [1984] IR 36, 69, emphasis added. 79 East Donegal Co-‐Operative Ltd v Att. Gen [1970] IR 317, 338, emphasis added. 80 See Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville,

508 U.S. 656, 662–63 (1993); (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992);

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976); Allen v. Wright, 468 U.S. 737,

752 (1984), all cited in Adler (n 56) See also Cass Sunstein,’ What’s Standing after Lujan? Of

Citizen Suits, ‘‘Injuries,’’ and Article III’ (1992) 91 Michigan Law Review 163. 81 Pildes (n 64) 733 82 See e.g. the Irish case Crotty v An Taoiseach [1987] IR 713


30

hypothetical third parties.83 And in European-‐style systems that practice “abstract

review” of legislation via specialised tribunals, this feature is obviously present

given the absence of any individual litigant.

This supports, again, the idea that constitutional justice may be concerned

with the predicates of government action (and thus non-‐arbitrariness) rather

than definite rights of non-‐interference as such; moreover, that citizens can

challenge laws without suffering any direct prejudice themselves supports the

idea that constitutional justice can be understood as a mechanism for checking

government power, even where such challenges are shoe-‐horned in the

terminologies of “rights”. It supports the idea that the starting point for “rights” is

not a moral concept of the person that yields, in turn, certain immunities or

spheres of non-‐interference, but rather a particular concept of government.84

Rights, in this sense, are merely “linguistic or rhetorical tools the law deploys for

pragmatic reasons and aims” and “techniques by which courts police the kinds of

purposes government can offer to justify its action.”85 Of course, such normative

concepts of government – say, non-‐arbitrary rule – are not unconnected to moral

understandings of individual “rights”. Yet “rights”-‐based constitutional

adjudication does not necessarily take, as its starting point, some idea of defined

areas of “non-‐interference” for individuals: it is consistent with an idea of rights

as “political” or even determinate.

Perhaps constitutional rights, then, are not “subjective” rights at all,86 and

citizens are “rights-‐holders”, constitutionally speaking, only in a highly procedural

and instrumental way, in that they may challenge the predicate, criteria or

purpose of state action in some domain where they happen to be affected. Some

constitutional provisions ostensibly relating to the structure, predicates and

purpose of government – for example, the American prohibition on

“establishment” of religion – have been understood being nothing more than

corollaries of individual rights, such as religious freedom. 87 However, on a

83 Hoffman Estates v. The Flipside, Hoffman Estates 455 U.S. 489 (1982). 84 Pildes (n 64) 85 ibid 730 86 See Raymond Geuss, Philosophy and Real Politics (Princeton: Princeton University Press, 2008). 87 See Lee v Weisman 505 US 577, 689 (1992).


31

republican view, sceptical of “rights talk”, the reverse idea is more compelling:

constitutional “rights” are not definite moral rights, for individuals but signposts

for government power. The fact that such provisions are, in the Anglophone

world, invoked through judicial review by individuals can lead to confusion

concerning their scope and moral structure. That a constitutional injunction on

state power is phrased in “rights” terms may be little more, then, than linguistic

and procedural accident. Again, this suggests that the institutional edifice of

constitutional rights is not inconsistent with Bellamy’s insistence that “rights” in

the narrow sense – of what legal immunities people enjoy – must be left open to

on-‐going political contestation as part of the “circumstances of politics”.

Standing rules aside, there are ways in which substantive constitutional

doctrine captures domination without interference. For example, constitutional

rights to personal liberty may be violated where criminal offences are defined too

vaguely or imprecisely.88 Again this reflects the familiar republican idea that

unfreedom may be experienced by those who never suffer any sanction or

interference but whose conduct is self-‐restricted as a result of apprehension and

fear. And again, this shows that constitutional rights are rarely defined in relation

to a sphere of non-‐interference for some specified, privileged sphere activity; they

are often silent as to which kinds of human activities are deserving of privileged

protection, focusing instead on the arbitrariness of the means of restriction or

regulation. As noted in the context of religious-‐freedom law, whether or not

domination is suffered will not depend, primarily, on the importance of the

activity restricted – or of the interests underlying the interference – but rather the

process through which it is restricted.

Similarly, constitutional rights might be violated by the excessive discretion

enjoyed by officials in respect of the exercise of a particular choice or activity

rather than by the fact of interference in that choice as such. Most fundamentally,

certain activities might permissibly be restricted by clear statutory language but

not by executive, administrative or judicial discretion. Indeed, republican thought

defines arbitrariness partly in relation to discretion, in the sense of powers that

are exercised based on the private judgement of the decision-‐maker. Indeed, 88 See Irish cases King v Attorney General [1981] IR 233; Douglas v. Director of Public

Prosecutions [2013] IEHC 3.


32

Pettit suggests that an “arbitrary” act is one that is “chosen at the agent’s

pleasure.” 89 However some degree of discretion is, of course, inherent in

adjudication and administration alike, given the indeterminacy of legal rules. 90

Certainly, non-‐domination can only ever be achieved as a matter of degree, and so

republicans might legitimately seek to minimise rather than eliminate discretion.

However, a republican social politics concerned with combatting non-‐domination

in various social domains will, correspondingly, increase the size and scope of the

public administration – and thus in turn, the extent and range of discretionary

powers enjoyed by administrators. Dicey argued that an expanding

administrative bureaucracy would undermine the “rule of law”, by allowing state

coercion to be exercised based on officials’ subjective preferences rather than

enacted legal rules.91

Certainly, progressive social policies will necessarily require giving

potentially extensive discretionary powers to public agencies Arguably, a

republican conundrum emerges because attempts to alleviate social and

economic domination through the administrative state, by redistributing power

and resources, will likely entail a corresponding increase in bureaucratic

discretion and thus (arguably) increased domination. Even with the requirement

of legislation authorisation, there is always a risk of administrative abuse even

within the discretion permitted by the relevant statute.92 Since non-‐domination is

social calculus and a matter of degree,93 perhaps bureaucratic domination is an

acceptable trade-‐off for enhancing non-‐domination in the economy and society:

more intense forms of domination would arise were the state to retreat to its

minimal functions.

89 Pettit (n 1), 55; see also Frank Lovett, “What counts as arbitrary power” (2012) 5 Journal of

Political Power 137 90 Timothy O’Neill, ‘Liberal Constitutionalism & Bureaucratic Discretion’, (1988) 20 Polity 371. 91 Albert Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1897),

Part 2, Chapter 4. 92 ibid; see also Patrick McAuslan, ‘Administrative law, collective consumption and judicial policy’,

(1983) 46 Modern Law Review 1; Ronald Pestritto, ‘The progressive origins of the administrative

state’, (2007) 24 Social Philosophy & Policy 16

93 As a consequentialist, Pettit assumes non-‐domination is a value to be maximized. Philip Pettit,

‘The Consequentialist Can Recognise Rights’ (1998) 35 Philosophical Quarterly 537


33

However, the scale of the problem should not be overstated: the ground need

not be ceded to Dicey and Hayek. On a closer reading, Pettit does not endorse the

strict Diceyan view that regards discretionary power per se as intrinsically

arbitrary. What he regards as “arbitrary” is not a decision that is made based on

the subjective judgement or preference of the agent as such, but rather one made

based solely on the agent’s “pleasure”. An act is arbitrary, he says, if it is “subject

just to the arbitrium, the decision of judgement, of the agent”, or where an agency

can act “just as their own whim … leads them.”94 Arbitrary power exists where

“the only check on the interference that [agents] can inflict is … their own

unchecked judgment.”95 Thus discretion that is exercised within a sphere of

legislative authorisation or constraint entails no arbitrariness as such; only

“untrammelled” or “unchecked” discretion entails domination.96

What Pettit does insist is that non-‐arbitrary public power must “track”

interests and concerns shared by those upon whom it is exercised, i.e. public or

“common” interests rather than the sectional or factional concerns of the power-‐

wielder. 97 Thus “the acts of interference perpetrated by the state must be

triggered by the shared interests of those affected.”98 It is clear an act can be

discretionary, in the Diceyan sense, while meeting this criterion; it can be based

say, on policy judgment rather than legislative criteria, yet without embodying

factional considerations and concerns. Pettit’s concern, then, cannot be that all

administrative decisions are understood as applications of legislative intent or

that they are somehow legislatively determined, but that they are subject to

safeguards which ensure they track common rather than sectional concerns.

94 Pettit (n 1), 54, 64 emphasis added. He continues (at 54): “what is required for non-‐arbitrary

state power … is that the power be exercised in a way that tracks, not the power-‐holder’s

worldview, but rather the welfare and world-‐view of the public … the acts of interference

perpetrated by the state must be triggered by the shared interests of those affected under an

interpretation of what those interests require that is shared, at least at the procedural level, by

those affected.” 95 Ibid, 56 96 Ibid, 56 97 ibid, 55 98 ibid, 55


34

In turn, this republican concern for controlling arbitrary administrative

power is reflected – at least obliquely – in a number of familiar doctrines of

constitutional jurisprudence. It is well established, for example, that limitations

on basic liberties must have a legislative basis,99 or at least be “in accordance with

law”, using the ECHR phraseology. Similarly, through the doctrine of

proportionality, domestic constitutional courts have acknowledged the central

role of parliamentary legislation in reconciling the exercise of constitutional

rights with public interests100 Of course, a requirement of legislative authorization

for administrative interference provides no absolute guarantee against

arbitrariness in Pettit’s sense, as legislation, using vague criteria, may accord

wide, almost unlimited discretion to decision-‐makers. Thus, constitutional and

human-‐rights jurisprudence does not usually insist merely that administrative

interferences in rights be legislatively authorised in the bare sense. It has been

recognised in ECtHR jurisprudence, for example, that laws authorising limitations

on rights must indicate the extent of the executive discretion through which such

limitations are imposed in particular cases.101 Yet even where administrative

interference is both legislatively authorised and constrained by legislative

criteria, it will usually be exercised based on a degree of non-‐legal judgement or

appraisal. The fact that a decision is determined, in part, by non-‐legal standards

does not make it arbitrary in Pettit’s sense; conversely, however, the mere fact of

legislative authorisation for discretionary decisions is not an absolute safeguard

against the abuse of discretionary powers for sectional or factional purposes.

Therefore, in addition to legislative authorisation and the (weaker)

requirement of legislative constraint, non-‐arbitrariness will require procedural

constraints that can prevent statutory discretion being abused for sectional or

factional purposes. Pettit insists that an act is arbitrary “by virtue of the controls –

99 See the limiting provisos in Articles 8-‐11 of the European Convention on Human Rights. See also

DPP v Fagan [1994] 2 IR 265; Howard v Commissioners of Public Works [1994] 1 IR 101.

Articulating a more general principle of legality, Justice Kearns stated: “every executive or

administrative act which affects legal rights, interests or legitimate expectations must be legally

justified.” Browne v Attorney General [2002] IEHC 47. 100 Heaney v Ireland [1994] 3 IR 593. 101 Malone v United Kingdom (App. 8691/79), 2 August 1984, (1985) EHRR 14.


35

[or] specifically, the lack of controls under which it materializes [rather than] the

particular consequences to which it gives rise.”102 And the potential abuse of

legislative powers is checked – to a limited degree at least – through the rights of

procedural fairness that control the exercise of discretion in common-‐law

systems. For example, natural-‐justice principles oblige decision-‐makers to give

those affected by their decisions an opportunity to be heard, to refrain from

taking irrelevant considerations into account, to provide reasons, and to avoid

any perception of bias. 103 Thus while administrative decision-‐making is

irreducible to legal control or determination – while it is inevitably based, to a

degree, on non-‐legal standards and judgements – the requirement that decision-‐

makers must hear those affected will, in practice, at least substantially reduce the

arbitrariness of such powers in the republican sense. Indeed, Pettit suggests that

there are “two generic constraints” that “reduce arbitrariness” in public power:

on the one hand, “penalties” which prevent interference with “impunity”, and on

the other, “filters”, which check the predicates of administrative action. These

force the state “to track relevant interests and ideas”; they “put preconditions of

action in place which make sectional interference that much more difficult.”104

Examples of such “filters”, I argue, are effectively found in the quasi-‐constitutional

requirements of natural justice that courts in common-‐law countries impose on

power-‐wielders. The two fundamental requirements of natural justice are that

persons affected by administrative decisions are heard (audi alteram partem), and

that the decision-‐maker should have no vested interest in the matter (nemo iudex

in causa sua). Both, effectively, serve to vindicate Pettit’s requirement that

administrative interference should track interests shared by those affected, as

distinct from sectional or illegitimate interests. They reflect both a substantive

idea of non-‐arbitrariness (i.e. that the power wielder track relevant interests) and

102 Pettit (n 1), 54 103 In the UK, see Paul Craig, Administrative Law (Oxford: Oxford University Press, 2012), Chapters

12, 14, 15. In Ireland, see David Gwynn Morgan, Hogan and Morgan’s Administrative Law (Dublin:

Round Hall, 2010), Chapters 12-‐15. In some jurisdictions, the procedural rights associated with

natural justice have been elevated to constitutional status, meaning they cannot be overridden by

parliamentary legislation. In Ireland, see McDonald v Bord na gCon [1965] IR 217 104 Pettit (n 1), 56


36

a procedural understanding (i.e. that the relevant decisions are checked by

suitable procedures).105 Pettit does insist, additionally, that while state power

generally (presumably in its legislative guise) should be subject to an equally

shared system of “popular control”, state actions should also be contestable by

those affected. Thus “filters”, it seems, cannot be checks that operate

independently of those affected: “it must always be possible”, Petit says, “for

people in the society … to contest the assumption that the guiding interests and

ideas [of state power] really are shared and, if the challenge proves sustainable, to

alter the pattern of state activity.”106 In practice, contestability is secured, first, by the requirement that individuals affected must be heard by decision-‐makers, but

secondly, also, in the quasi-‐constitutional right to access judicial review of

administrative actions.107

In summary, then, the gist of existing constitutional tradition roughly

corresponds to Pettit’s neo-‐republican understanding of non-‐arbitrariness in the

administrative and bureaucratic contexts.

Freedom and equality in constitutional jurisprudence

Thus far, I have focused primarily on the constitutional control of discretionary

legislative powers, sanctioned by state coercion. As discussed, however, agents

can be dominated simply by virtue of a disparity of bargaining powers, of the sort

that enables others to control their choices, whether by way of “intimidation” or

105 On the distinction between procedural and substantive understandings of arbitrariness, see

Lovett (n 89). 106 Pettit (n 1), 62 107 The “constitutional” status of the right to judicial review varies across different common-‐law

jurisdictions. While its “constitutional” status is obviously most ephemeral in the United Kingdom,

the right to judicial review of administrative action is implicit in Article 34 of the Irish Constitution

of 1937, while Article 24 of the Canadian Charter guarantees the right to apply to a court for a

remedy for infringement of Charter rights. Article 6 of the ECHR guarantees a “fair and public

hearing within a reasonable time by an independent and impartial tribunal established by law”.


37

“invigilation” 108 . Thus the question arises how constitutional doctrine can

account, if at all, for problems of private domination. Such domination may stem

from economic disparities – which, I have argued could only ever be affected in a

piecemeal way by constitutionalised socio-‐economic rights – while “horizontal”

rights will similarly have a limited effect against abuses of private economic

power. Relatedly, however, discrimination might constitute a significant source of

private domination. Finally, therefore, I will argue that constitutional

jurisprudence may account for the idea of non-‐domination in its approach to

equality, and specifically by accounting for the interrelationship of freedom and

equality. Neo-‐Roman republicans like Pettit have argued that equality is simply

instrumental to an overarching goal of non-‐domination. Pettit, in particular,

argues for a “sufficientarian” (as distinct from egalitarian) concept of distributive

justice, which aims to redistribute resources and wealth to the extent necessary

to prevent domination.109 Yet similarly, equality in the narrower sense of non-‐

discrimination may also be understood as instrumental to non-‐domination. While

discrimination constitutes “interference” in its broad sense (where used as a

means to limit choice, or as a form of agenda-‐setting), a licence to discriminate is,

quintessentially, an instance of arbitrary power. Those who lack resilient legal

protection against discrimination may be forced to engage in strategies of

fawning, self-‐ingratiation and self-‐censorship – which republicans understand as

salient aspects of domination – even where no such discrimination is ever

suffered. Where other agents have capacity to discriminate against us, this will

likely represent an “alien will” at work in our lives as we are forced to suppress or

disavow the relevant characteristic, identity or choice.

Correspondingly, anti-‐discrimination statutes can be understood as serving

the value of freedom (as non-‐domination), rather than promoting equality as a

separate value. In constitutional jurisprudence, however, freedom and equality

have often been understood not only as conceptually separate but also as

competing and antagonistic values. In this understanding, strict non-‐

discrimination principles limit and undermine individual freedoms, particularly

freedom of religion and association. And in turn, constitutional freedoms trump 108 Pettit, (n 7). 109 Pettit, (n 11), 18.


38

equality where these values conflict. Thus, in constitutional doctrine, equality (in

the sense of non-‐discrimination) usually features only as a policy-‐based limit on

freedom (e.g. freedoms of association and religion) rather than as a freedom-‐

based goal in its own right.110

However, freedom as non-‐domination challenges this traditional doctrinal

stricture. Insofar as non-‐discrimination is understood as a safeguard for

individual freedom rather than a limit on it, this might, on the one hand, support a

broader interpretation and application of constitutional equality clauses that are

usually applied only to state actors in the narrow sense – for example, the “equal

protection of the laws” clause in the United States Constitution or the equality

“before the law” clause in the Irish Constitution.111 These have been interpreted

as inapplicable to private bodies, even where publicly funded or where exercising

public functions.112 Yet the understanding of non-‐discrimination as a freedom-‐

based concern might support a more generous demarcation of those actors to

whom such clauses apply.

Moreover, constitutional equality law has been demarcated narrowly, in this

sense, partly because discrimination by private bodies has been considered an

exercise of freedom of association and of religion.113 Accordingly, in jurisdictions

like the United States and Ireland, equality legislation has been limited by virtue

of a pervasive understanding of equality and individual freedom as antagonistic

constitutional values. Some forms of discrimination, it is assumed, are an exercise

of constitutionally protected freedoms – and since freedom must be understood

as taking precedence over equality in the hierarchy of constitutional values,

legislation prohibiting certain forms of discrimination – say, discrimination by

religious bodies – may be regarded as unconstitutional. For example, the Irish

Supreme Court held that a constitutional religious-‐equality principle could not be

applied to private bodies, even where publicly funded, partly because this would

110 See e.g. See Eoin Daly and Tom Hickey, “ Religious freedom and the 'right to discriminate' in the

school admissions context: a neo-‐republican critique” (2011) 31 Legal Studies 615 111 Article 40.1, Constitution of Ireland, 1937 112 See e.g. Murtagh Properties v Cleary [1972] IR 330. 113 See e.g. the Irish case Schlegel v Corcoran and Gross [1942] IR 19.


39

“lead to a sapping and debilitation” of religious autonomy, 114 and that

denominational exemptions from equality statutes were necessary to give “life

and reality” to religious freedom.115 Similarly, exemptions in equality statutes are

typically justified based on an understanding of freedom and equality as separate

and conflicting goals.116 In United States constitutional law, first-‐amendment

freedoms are also used to trump and negate equality guarantees.117 For example,

religious freedom prevents equality protections from being applied to certain

categories of religious hiring (posts equivalent to “ministers” of religion).118 Yet

while the “ministerial exemption” frames religious freedom as a freedom of non-‐

interference, conversely it ignores the freedom-‐based interest of those who are

discriminated against, or who face employment insecurity: indeed this kind of

interest cannot be captured by the prevalent non-‐interference concept. And

where “freedom” takes this narrow form, correspondingly equality receives a

relatively low priority.

However, insofar as equality legislation can be valued as a safeguard against

domination – and thus unfreedom – in various “private” relationships, this

undercuts freedom-‐based arguments against the extension of non-‐discrimination

principles to these domains.119 From this perspective, the dichotomy of freedom

and equality overstates the degree to which discrimination constitutes an

exercise of freedom, and more importantly, it overlooks how discrimination itself 114 McGrath and Ó Ruairc v Trustees of Maynooth College [1979] ILRM 166. 115 Re Article 26 and the Employment Equality Bill 1996, [1997] 3 IR 321, 360. 116 In Ireland, the Equal Status Act 2000 while prohibiting discrimination on religious grounds in

the provision of goods and services, exempts “educational establishments”, “whether or not

supported by public funds”, where “the objective of the school is to provide education in an

environment which promotes certain religious values”. See sections 7 (1) and 7 (2). See similarly

section 37 of the Employment Equality Act 1998. These exemptions are typically rationalised in

constitutional terms; see Seanad Éireann, Volume 150, 15 April, 1997, 1488, emphasis added. 117 Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston 515 US 557 (1995); Boy

Scouts of America v Dale 530 US 640 (2000). However, see also Bob Jones University v United States,

461 US 574 (1983), In relation to religious freedom as distinct from freedom of association, see

Bruce Bagni, “Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by

Religious Organisations” (1979) 79 Columbia Law Review 1514. 118 Hosanna-‐Tabor Evangelical Lutheran Church and School v EEOC 565 US _ (2012). 119 See Daly and Hickey (n 110).


40

can represent a form of unfreedom for those who experience it. For example,

those who are subject to religious discrimination in the provision of services, say

in school admissions, may experience domination where they are forced to

exercise discretion and self-‐censorship – for example, by feigning religious

exercise or belief, or indeed have their children baptised, in order to secure

enrolment.120 In this sense, derogations from equality law work to undermine the

freedom of those with relatively lesser resources and power. Those who may feel

obliged to obtain a baptismal certificate, for example, in order to secure

enrolment to a school, may experience domination without ever being subject to

“interference” as such: it is rather the power to interfere arbitrarily – in the guise

of a power to discriminate – that compels them to check and distort their life

plans. In this light, any constitutionally enshrined licence to discriminate, on

religious or other grounds, empowers agents to arbitrarily interfere in, and thus

dominate, religious (or other) choices that others are in a position to make. And in

the case of the countervailing “freedom” claim – the non-‐interference claim

against equality law – the “interference” in question is hardly arbitrary, since it is

imposed legislatively rather than on a discretionary basis, and since it tracks an

interest – that of equality in access to public services – which all affected persons

share.

Conclusion

Whereas constitutional rights can be interpreted and understood in a republican

light, ultimately they may occupy a relatively modest role as instruments of

republican freedom. While I have suggested certain ways in which constitutional

rights might be interpreted in a manner that accounts for and promotes non-‐

domination, in general terms this analysis suggests constitutional jurisprudence

should take greater account of concrete power relationships and the various ways

in which they may result in the “alien control” of citizens’ choices and life-‐plans –

at least in that domain of “freedom” that constitutional rights protect. This is, in

120 ibid.


41

effect, a republican argument in favour of courts taking account of power

differentials in certain contexts, while remaining sceptical as to whether judicial

power can attenuate power differentials in society at large. In some instances at

least, court can reasonably be expected to recognise that certain kinds of power

differentials may lead to constitutionally protected choices being subject to a form

of “alien control”, if not always coercive interference. This approach finds some

support in existing constitutional doctrines. In other areas, however, it offers a

basis for challenging traditional strictures that favour a narrower, conception of

freedom as non-‐interference – and that ignore the salience of power in citizens’

lived experience of freedom and unfreedom.

Freedom as non-domination in the jurisprudence of constitutional rights

Documents