Domination and the Rule of Law

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Abstract

This chapter argues that contemporary republicanism is mistaken in its claim that the rule of law is compatible with individual liberty (understood as non-domination), because it is non-arbitrary. It considers three republican definitions of non-arbitrariness—in terms of consent, interests, and control—and argues that all three are dubious and that the rule of law does not satisfy any of them. The chapter then analyzes republican concerns with arbitrariness as resistance towards discretionary powers and argues, finally, that the republican idea of eliminating discretionary power is not always desirable or essential to political freedom. Discretionary powers are not necessarily dominating and may be independently desirable, and non-discretionary powers can be dominating. The exclusive focus on arbitrary interferences with liberty obscures principal forms of political domination.
Original languageEnglish
Title of host publicationOxford Studies in Political Philosophy
EditorsDavid Sobel, Peter Vallentyne, Steven Wall
Place of PublicationOxford
PublisherOxford University Press
Chapter5
Pages128-155
Number of pages28
Volume2
ISBN (Print)9780198759621
DOIs
StatePublished - 2016

Keywords

  • Republicanism
  • Domination
  • Individual liberty
  • Arbitary power
  • Discretion
  • Rule of law

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