ABSTRACT
The rule of law is often seen as a necessary condition for legitimate political order of any kind, whether it be in states or in international institutions. To this extent, republican and liberal conceptions of justice share the ideal that institutions beyond the state ought to achieve some version of the rule of law. While they overlap to a significant degree in practice, their underlying conceptions of the rule of law have quite different goals. According to liberals, the rule of law promotes a kind of formal justice, but not in the sense that republicanism requires. Given the familiar constraints of publicity, nonretroactivity, and generality, the rule of law is at best a means to promote justice in the sense of Rawls’ “justice as regularity” (Rawls 1971: 236). By contrast, republicans see the rule of law constitutively, as establishing a “civil condition” in which everyone has at least one fundamental status; the status of being a citizen. And, as Rawls, Hart, and others have pointed out, justice as regularity is consistent with “great in iquity” (Hart 1997: 204) and may even regularize forms of domination. One such iniquity is the existence of a legal order that necessarily leaves many people either without legal status or in the condition of illegality, as mere subjects of legal authority. Although republicans have said little about this problem, such lack of legal status and pervasive illegality should be regarded as the paradigmatic violation of the rule of law. My purpose here is to explore the contours of a more robust conception of the relationship between citizens and noncitizens and of the rule of law that has both instrumental and constitutive value: an instrumental value in that it is a means to the end of avoiding great evils and ills, and a constitutive value with respect to a distinctive form of freedom, specifically freedom related to the status of persons rather than citizens. Such a conception of the rule of law is republican to the extent that it relies upon the idea of a shared status as a solution to the problem of political domination. This status suggests not only a right to freedom, but also one that is not derived from membership as it is usually understood. However, republicanism can be concerned with such a universal status because it is a deeply cosmopolitan tradition – so much so that the main republican institutional innovations, such as federalism, suggest that modern polities cannot be free as unitary entities with a monopoly of powers, but rather should more closely resemble transnational entities with respect to their size and diversity (Bohman
2007). Many historians and theorists now argue that Madison and other federalists constitutionally entrenched this transnational conception of the polity in order that subunits are not dominated by each other (Tomasi 2003; Deudney 2007). While this multilevel aspect of republicanism informs my thinking, I will discuss more internal aspects of the often implicit cosmopolitan commitments accompanying the idea of constitutional order. The form of republican cosmopolitanism that I defend here is a cosmopolitanism that begins at home and rejects as a fundamental injustice the denial of basic legal status to any human being. Given that the formal conception is pre-eminent in philosophical defenses of the rule of law, it may be difficult even to conceive of the rule of law in a republican fashion as promoting freedom. Most liberals also see the rule of law in relation to a particular conception of freedom – as, for example, when Rawls says that liberty can be restricted by coercive law only for the sake of greater liberty (Rawls 1971: 201). With Philip Pettit’s development of a conception of freedom as nondomination in contrast to liberal freedom as non-interference, the republican alternative to Rawls’ account comes into view, with its substantive emphasis on “the rule of law and not men” (Pettit 1997: 302). When put in the context of the rule of law, the difficulty with this particular interpretation of freedom is now apparent in many objections to Pettit’s idea of domination as “arbitrary interference” (Pettit 1997: 82). The difficulty cuts even more deeply. The inadequacy of such a republican conception in the contemporary context goes back to the basic republican contrast between “free citizens” and slaves. While informed by this classical contrast, violations of the rule of law now cut across a different distinction: between those who have civil and legal status and those who do not. Today, falling under the control of another is, more often than not, due to the difficult circumstances under which many people who lack legal and civil status live in the world today. To have a status, as Hegel remarks, is to be someone; to lack it is to be nobody, the existence of which is not even to be counted (Hegel 1991: 271). Accordingly, the formal rule of law may now fail to provide adequate protection from powerful private and public actors; but it can fail more deeply and sometimes catastrophically when people lack even the most basic legal status. In what follows I explore what it means to lack legal status, a condition that makes undocumented migrants particularly vulnerable to domination and exploitation. First, I argue that pervasive illegality is itself a violation of the rule of law. Illegality is now a common condition due not only to the movement of people across borders, but also to the movement of peoples even within their own borders. Second, the lack of status leads to domination, a condition in which those who have status have arbitrary power over those without it, whose interests and opinions do not count. Finally, I offer a solution to this problem that is consistent with the cosmopolitan features of many constitutions, the distinction of the legal status of persons and the status of citizens. Such universal statuses are not only a protection against domination, but also a condition of a just, democratic society in the situation in which noncitizens of various sorts live together with citizens.
