Conclusion: a reckoning. Liberty used to be defined as absence of dependence. Nowadays it is usually defined as absence of restraint. But the underlying aim of this book has been to establish that there are several reasons for thinking that the ideal of liberty as independence is to be preferred. We gain from it a better sense of how the mere fact of living in subjection -- whether or not we are restrained -- takes away our liberty. We also gain from it a more helpful way of thinking about fundamental rights. Rather than conceiving of them as universal moral claims, there may be good reasons for preferring to think of them as the creation of specific independent communities. Above all, the ideal of liberty as independence helps us to see the importance of cherishing the value of autonomy in relationships between states as well as individual citizens. It is difficult to see how the requirements of justice can be met in the absence of a commitment to the ideal of liberty as independence.

INTRODUCTION. When and why did it come about that one prevailing way of understanding what it means to be free was replaced by a strongly contrasting account that came to be no less widely accepted, and still remains dominant? The argument of the book is that, in Anglophone political theory, the change happened quite suddenly in the closing decades of the eighteenth century. Before that time it was generally agreed that what it means to be free is that you are not subject to, or dependent on, the arbitrary will and power of anyone else. Liberty was equated with independence. But by the early nineteenth century it had come to be generally accepted that liberty simply consists in not being restrained from acting as you choose. What prompted the change, the book argues, was not the imperatives of commercial society, as has often been argued. Rather it was a growing anxiety, in the face of the American and French Revolutions, about the democratic potential of the ideal of liberty as independence.

This chapter reflects upon findings of this book, from the perspective of two central distinguishing themes. First, it endorses and explores the implications of understanding the rule of law in terms of a central aspiration or goal – reduction of the possibilities of arbitrary exercise of power – rather than any purported checklist of legal instruments said to embody it. Second, it discusses the distinctive implications of examining the rule of law in a transnational, not merely national, context. Part III examines the geopolitical sources of transnational enthusiasms for the rule of law, and the implications of geopolitical changes that might lead to the exhaustion or extinction of such enthusiasms. Finally, the chapter suggests that optimists might curb their constructivist enthusiasms, and pessimists acknowledge that speed bumps are not necessarily the end of the road, if both reflect on how long securing the rule of law might be expected to take.

This chapter is largely devoted to commenting on the other contributions to the volume.An attempt is made to evaluate the arguments and criticisms brought to bear by each contributor on the project of defining civil liberty not as absence of interference but rather in neo-Roman terms as absence of more general conditions of subjection and dependence. The chapter opens with an exposition of the neo-Roman theory, focusing on its articulation in Roman and common law traditions of thinking about the law of persons and related arguments about ‘fundamental’ rights and liberties. The chapter next defends the distinctiveness and coherence of the neo Roman approach against a number of objection that have been raised against it. The chapter ends by reflecting on how the re-appropriation and development of a neo-Roman perspective might help us to think more fruitfully about some current threats to privacy and democracy as well as individual liberty. This concluding section focuses particularly on threats stemming from increasing surveillance and other silent exercises of power.

Law by its very nature tends towards the constraint of the decision-making of individuals, and so has an inherent – but not inevitable – mythological disposition, especially when in combination with both the sovereign and regulatory power of the State. Thereby it reflects shifting forms of – most recently neoliberal – power and truth. A non-mythological law will need to be framed constitutionally but will also require a rethinking of the rule of law, which is currently mostly comprised of anatomical lists of preferred characteristics. There are alternative approaches in the form of teleological accounts – preferred here – and prominent amongst which is that of Krygier. However, he does not go far enough, settling for a critical exploration of social traditions and seeing the arbitrary use of force as the dominant target. This tends to ignore the spread of sovereign power into regulatory forms, which are as intrusive as arbitrary power, albeit in a different manner. An existential rule of law would be founded on purpose-based, fiduciary principles which committed agencies to promote the non-mythological interests of self-responsible individuals. Trust would play a valuable but secondary role in such arrangements.