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. (shrink)

Accounts of non-domination have tended to emphasise the role resources and other capacity and voice building mechanisms can play in giving people the power and the institutional means of living lives that are free of domination. Yet the role of exit - of institutionally protected means of withdrawing from relationships - has remained undertheorized in accounts of non-domination. Drawing on a range of public policy examples, this paper seeks to shed light on the ways in which, and under what conditions, (...) institutionalised means of exit can contribute to realising the ideal of non-domination. It shows that while rights of exit and low exit-costs can play an essential role in protecting people from dependence on the arbitrary wills of others, it is only under certain conditions these can be said to contribute to the realisation of the ideal of non-domination in a broader sense. Understanding the relationship between exit and non-domination, it further argues, gives us a clearer picture of the relationship between non-domination and sources of power such as monetary resources and voice. (shrink)