Egalitarian liberty and reciprocity in strategic context

Paul Gowder

doi:10.1017/CBO9781316480182.005

In this chapter, I consider the chief alternative to the normative account of the preceding three chapters. Most philosophers and lawyers have thought that the rule of law is closely associated with an ideal of liberty. I have some skepticism about this claim (“the liberty thesis”), and aim with this chapter to subject the multiplicity of arguments for it to closer examination. To do so, this chapter introduces the transition between the purely normative and conceptual analysis of the rule of law and a strategic analysis. The full account of this book integrates the two analytic strategies, arguing that both give us reason to expect a strong association between the rule of law and equality. Here, this integration is begun.This chapter begins section I by arguing – using an elementary game theoretic model – that the rule of law actually may facilitate the control by officials over nonofficials, and thus may impair rather than advance individual liberty. This strategic argument foreshadows the later chapters of this book (especially Chapter 6), which center on the claim that the rule of law will be maintainable only in an environment in which coordinated nonofficial action holds officials to account. This tool for holding officials to the limits of the law, I argue, also can be a tool to allow officials to credibly commit to costly punishment, and hence to reliably get their orders carried out.This chapter then considers several arguments that have been offered in the philosophical and legal literature for the liberty thesis. Although, as noted, I approach them with substantial skepticism, the goal is not to refute them – all have their merits – but to find their boundaries and to consider the extent to which they apply to real-world states. In examining these arguments, the focus remains largely on the strategic context – that is, on the incentives that the rule of law and its institutional supports create, and the extent to which those incentives either facilitate or inhibit interferences with the choices of nonofficials.The chapter closes by returning to the equality thesis of the previous chapters, and to the expressive approach to interpreting value claims that those chapters emphasize. It turns out, I argue, that we can helpfully interpret compelling arguments in the domain of liberty as egalitarian appeals to the ideal of equal respect for people as autonomous decision makers.

Egalitarian liberty and reciprocity in strategic context

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