Rule of Law Radicalism: The Pluralist Potential of Republican Legal Theory

By Mary Liston, Law, University of British Columbia

Modern republican theory constitutes the normative foundation of responsive regulation. John Braithwaite’s initial approach to responsive regulation appears firmly grounded in the kind of democratic republicanism espoused by theorists like Philip Pettit and Jeremy Waldron. His most recent (re)statement reveals important shifts in his reliance on republicanism as a foundational political morality for public law.

In order to analyze and explore the possibilities represented by this shift, the paper will first describe the main tenets of republican theory, especially those identified by Pettit, and illustrate how these tenets distinguish republican conceptions of the rule of law from liberal conceptions. The paper discusses why this matters for the rule of law in terms of the scope and robustness of both republican and liberal approaches to controlling for arbitrariness in public decision-making and regulatory environments. The difference between the two approaches comes to a head in the valuation of rights and the merits of strong judicial review. This aspect of republican theory is best represented in the work of Jeremy Waldron and his well-known opposition to strong judicial review. Braithwaite’s republicanism appears to offer a reconciliation in the tensions among judicial review, democracy, and institutional design. The paper argues that such a reconciliation crucially matters because it corresponds with several key features of Canadian public law.

Proponents often claim that republicanism represents a single unified theory capable of controlling all forms of arbitrariness. The viability of republicanism as the principal political morality for our times falters when the demands of pluralism are taken into account. Braithwaite’s conceptual shift enables republican theory to go some distance to meet the significant challenges that pluralism and incommensurability—both permanent conditions in modern political communities—pose.

Finally, if confronting multiple forms of arbitrariness appears to be a rule of law commitment shared among several theoretical approaches, this paper argues that republicanism should ally itself with these compatible approaches in order to expand the depth and breadth of law to resist arbitrary modes of decision-making in a multiplicity of contexts. In contrast to other republican theories, Braithwaite’s work seems to anticipate this necessity by offering a dynamic, sophisticated and principled regulatory approach that aims to respond to complexity through innovative institutional design and the ideals of restorative justice.