Against Recognition:

Identity Politics and Democratic Non-Domination

FIRST DRAFT – COMMENTS WELCOME

Clarissa Rile Hayward

Washington University in St. Louis, Political Science
chayward@wustl.edu

Ron Watson
Washington University in St. Louis, Political Science
rewatson@wustl.edu

Prepared for presentation at the 2009 meeting of the Association for Political Theory
College Station, TX, October 22-24, 2009
 In the wake of Barack Obama’s election last fall, American television commentators and

other contributors to popular media applauded his presidency as a sign that the United States is

now “post racial.” What America needs from the Obama administration, in their view, is a color

blind national agenda: one that helps the country move beyond its painful racial past, by getting

the state altogether out of race. Racial identity is no longer, and it no longer should be, a concern

of American state actors. Instead law and public policy in the twenty-first century should be fully

race-neutral.

Critics on the left countered that fighting racial oppression should be at the top of the new

administration’s agenda. Racial hierarchies remain pervasive in the United States, their claim

was. Not only are opportunities and resources distributed unequally along racial lines; so are the

respect and the social recognition that come from the public valuation of one’s particular group

history, experience, and identity. What America needs from Obama, by this view, is for him to

continue his early career efforts to fight for racial justice, for example, through laws aimed at

documenting and rooting out racial profiling, through programs of affirmative action in

education and in hiring, and through policies and programs that promote the acknowledgment

and positive valuation of African-American history and culture, such as multicultural curricular

programs in public schools.

In the parlance of contemporary political theory, the question on the table was whether or

not the new administration should work to recognize black racial identity. Is an approach that

treats all individuals equally, refusing to involve itself in the politics of race, the most

appropriate approach at this juncture in history? Or alternatively, should the American state

continue to intervene in the politics of racial identity? Should state actors, for instance,
sometimes treat people differently based on their ascribed racial identity, with a view to

redressing important racial injustices and harms?

In this paper, our claim is that framing this debate—indeed, framing any debate about

identity politics—in terms of state recognition is incoherent. In a very basic sense, we want to

argue, states cannot simply “recognize” identity. Whether through acts, or through failures to act,

states inevitably help to produce and reproduce collective identities. Hence the question on the

table in debates about identity politics is not whether states should recognize racial and other

collective identities, but rather how states should help construct and reconstruct them. States

should shape identities, our argument is, in democracy-enhancing ways. Specifically, they should

promote what we call democratic non-domination, by acting to enable all those affected by

identitarian norms and practices to have a hand, and a roughly equal hand, in their making and

re-making.

The argument proceeds in three parts. In the first, we critically engage political theories

of multicultural recognition, making the case that, because group norms and boundaries are

always contestable, whenever states affirmatively acknowledge and support some particular

definition of a collective identity, they necessarily help to shape and re-construct that identity.

State never simply “recognize” (pre-political) identities; instead they help produce and reproduce

them. In the second section, we take on what is arguably the most important philosophical

account of nondomination: Philip Pettit’s work on republican freedom as nondomination.

Although Pettit usefully draws attention to how people’s capacities to act can be socially

constrained by the actions of others, his account, we argue, is naïve about relations of power. In

the third and final section, we make the case domination obtains, whenever agents’ fields of

action are socially constrained, and in ways they cannot challenge and change. In identity
politics, nondomination requires the social capacity to revise power relations across and within

socially constructed identity groups, as well as the social capacity to revise the boundaries, the

norms, and the standards that define collective identities.

1. Recognition and its critics

At least since Charles Taylor’s seminal essay, “The Politics of Recognition” (Taylor

1994), political theorists and political philosophers have framed the debates surrounding

muliticulturalism and identity politics in terms of the advantages and disadvantages of state acts

of recognition. As is well known, Taylor argues that states should, under certain circumstances,

affirmatively acknowledge, or recognize particularistic identities (such as, in Canada, the identity

of the French-speaking Quebecois minority) by granting members of some groups legal

exemptions, rights, and/or privileges not granted non-members. Identities, Taylor underscores,

are not reflections of an essence from deep within the self, but rather social constructions which

are formed and re-formed, in his terms, “dialogically” (Taylor 1994, 32). Because people’s well-

being depends importantly upon their developing and maintaining healthy identities,

misrecognition—the social devaluation of deeply constitutive identities—can be a non-trivial

harm (Taylor 1994, 25). Hence states should take positive steps to recognize (some) collective

identities. States, even liberal states, should not necessarily treat all individuals the same,

granting each a uniform set of rights and freedoms. Instead, they should sometimes treat

individuals differently, with a view to ensuring that all can pursue important identitarian aims,

even if doing so comes at the expense of granting all equal individual rights.
 Taylor’s essay triggered a productive debate in political theory and in political science

more generally, as students of identity politics increasingly attended to human ends that can only

be pursued collectively, and made the case for a range of institutions and policies designed to

promote those ends.1 To be sure, important differences separate different arguments for the

recognition of identity. Still, at the most basic level, all who advocate recognition agree, first,

that when people’s deeply constitutive identities are misrecognized, they are harmed, and

second, that states should sometimes mitigate such harms through policies and practices that fall

under the rubric of “recognition.”

Will Kymlicka’s influential liberal account of the politics of recognition is a case in

point. Kymlicka argues that states should recognize (some) cultural groups, in his words, “not

because they have some moral status of their own, but because it’s only through having a rich

and secure cultural structure that people can become aware...of the options available to them, and

intelligently examine their value” (Kymlicka 1989, 165). Kymlicka’s argument departs from

Taylor’s, both in the reasons offered in support of recognition (which, for Kymlicka, center on

promoting individual autonomy), and also in the forms of recognition endorsed (only those that

promote autonomy). Yet, like Taylor (and others), Kymlicka views state intervention in the form

of recognition as key.

What would it mean to recognize racial identities in the contemporary U.S.? To different

proponents of recognition, it might mean different things. Some might advocate state support for

African-American cultural associations, publications, and programs, or for public school

curricula that focus on African-American historical struggles and achievements. Some might

1
See, for example, Galston (1995, 2002); Kukathas (1992, 2007); Kymlicka (1989, 1992,
1995, 1998, 2001, and 2007); Levy (2000); Parekh (1996, 2000, and 2008) Raz (1994); and
Spinner-Halev (1994). For a more detailed review and evaluation, see Hayward and Watson
(2010) .
advocate various forms of group rights, such as the so-called “right to (racial) difference”

demanded by the plaintiff in Renee Rogers, et. al. v. American Airlines, Inc.2 For others,

recognizing African-American identity might require racial group veto power, at least in those

contexts in which African-Americans would be disproportionately affected by a proposed

collective decision (see Young 1990, ch. 6). For some, it might even mean broad and relatively

enduring powers of group self-government.3 Notwithstanding nontrivial differences among these

(and other) proposals, in each case the guiding principle is the same. American state actors

should not simply prohibit racial discrimination. They also should publicly affirm, and politically

accommodate black racial identity.4

As critics of theories of multicultural recognition have emphasized, however, collective

identities do not only contribute to people’s well-being. They are also the source of important

harms (see, for example, Brown 1995, Butler 1999, Connolly 1991, Foucault 1979). Not just

racial identities, but all collective identities exclude at their boundaries. Even as identification

encourages intra-group solidarity and promotes public-regardingness vis-à-vis insiders, it

simultaneously defines “others,” very often fueling punishing attitudes and actions directed at

them. Collective identities, what is more, are important sites of normalization. Those named one

2
In this oft-cited case, a female African-American airline employee sued her employer for
prohibiting her from wearing her hair in the “corn row” style she claimed “has been and
continues to be part of the cultural and historical essence of Black American women.”Renee
Rogers, et. al. v. American Airlines, Inc. 527 F. Supp. 229 (1981). For a discussion and critique,
see Ford (2005), ch. 1.
3
On self-government rights and group rights more generally, see Kymlicka (1995). His
position with respect to black Americans, however, is that, because he believes they aim
principally for incorporation into the larger American society and polity, they should be treated
differently than “national minorities,” who often want and deserve self-government rights. Ibid,
ch. 7.

For a more in-depth discussion of recognition policies, including a helpful typology, see
4

Levy (2000, especially chapter 5).

of “us” must perform their identities well, or risk discipline and punishment. State recognition,

then, can exacerbate identity’s harms. If recognition strengthens extant identities, then it bolsters

their power to exclude externally and to discipline internally. At the same time, it lends them the

normative sanction of the state. Thus for Wendy Brown, recognition can produce a “plastic cage”

which “reproduces and further regulates” the very subjects it claims to protect, while remaining

(unlike Weber’s “iron cage”) “quite transparent to the ordinary eye” (Brown 1995, 28).

Collective identities are an important source of human well-being, then, and they are a

significant site of exclusion, normalization, and discipline. State recognition can enable

solidaristic attachments and meaningful social practices, and it can lend public resources and

public power to those who would punish internal and external others. One intuitively appealing

response is simply to judge proposed policies case by case: to weigh the harms and the benefits

of recognition against one another. “Were the American state at the turn of the twenty-first

century to recognize African-American identity through policy x,” one might ask, “would it

promote solidarity among black Americans and public respect for black historical and cultural

achievements?” “Alternatively—or perhaps at the same time—would it compel individuals who

are ascribed black racial identity to perform what Anthony Appiah (1994) has characterized as

‘tightly scripted’ racial roles?”

Perhaps state recognition is not so very different (this response suggests) from any other

legal or policy intervention that has both benefits and costs: tax policy, for instance, market

regulation, even the regulation of traffic. Perhaps recognition, not unlike any other action states

might take, is justified in just those circumstances in which its benefits outweigh its harms. If so,

the goal should be state recognition in those cases in which it promotes solidarity, supports

valued social networks and cultural practices, and enables people to develop and maintain secure
and healthly senses of who they are. States should not recognize, by contrast (this view

suggests), those identities that are excessively normalizing and othering, and/or those for which

the costs to individuals in terms of discipline and punishment outweigh the benefits from

increased solidarity and social respect.

This strategy is a tempting one. But it is flawed. Debates about whether or not states

should recognize identities are misguided debates, because states never merely “recognize” a

collective identity. State actors never merely “acknowledge [identity’s] existence or truth,” that

is to say, or fail to do so (OED 1989). Instead, when states grant rights and protections; when

states publicly affirm particular groups, practices, and traditions; and when they do not—when

they treat individuals equally, turning a blind eye to identitarian differences—they inevitably

shape and re-shape collective identities.

It is almost never the case (if it is ever) that there exists a single, uncontested definition of

“the” boundaries, “the” practices, “the” values that define any collectivity: race, nation, caste,

class, community. Instead, there are almost always competing definitions of “who we are,” and

of which experiences, values, and traditions count as “ours.” Typically, these diverge from, even

directly contradict one another. Hence when states affirmatively acknowledge one particular

definition, they support a subset of those persons who identify and/or are identified as members,

legitimizing one contestable interpretation of the group’s identity. So-called “recognition”

unavoidably plays a role—often a determinant role—in producing and reproducing identity.

Indeed, states actors are among the most influential actors in the making and remaking of

identity. Clearly, states help make national identities, for instance through citizenship law and

through family law (Stevens 1999). States help make racial and ethnic identities, as well, for

example through the definition of census categories (Nobles 2000) or through the construction of
racialized urban and suburban spaces (Hayward 2003). What is more, when states determine the

distribution of resources and opportunities, they often do so along identitarian lines: a practice

that does not simply treat individuals differently according to (fixed) identities, but incentivizes

them to organize, to mobilize, and to identify in particular ways (Jung 2008).

Consider, again, Charles Taylor’s principal example: the debate about whether the

Canadian state in the late 1980s should have recognized the French-speaking minority in

Quebec. Analyzing the proposed Meech amendment to the Canadian Charter of Rights of 1987,

Taylor argues in favor of the so-called “distinct society” clause, which would have allowed

Quebec to restrict some of the individual rights and freedoms provided by the Charter to

Canadian citizens, in particular the freedom of French-speaking Quebeckers to educate their

children, and of some business owners to print signage and conduct transactions in English

(Taylor 1994, 51-61). To the extent that these restrictions were necessary for Quebecois survival

and flourishing, Taylor’s claim is, the state should have used them as a means to recognize

Quebecois identity. To fail to do so would be to trade important collective aims and ends for less

important individual rights (Ibid, 59-61).

The principal difficulty with this analysis is that, regardless of whether the Canadian state

were to permit rights restrictions or to refuse to, it would have shaped identity. The state would

have shaped Quebecois identity if it allowed English-speaking institutions and practices to

influence and alter French-language communities. It also would have shaped Quebecois identity

if it acted to limit their influence. It is simply not the case that to impede the expansion of

English-language practices and culture would be to preserve true or authentic Quebecois identity.

There is no true Quebecois identity. Instead, there are multiple, competing, at times conflicting

interpretations of which beliefs, values, traditions, and practices constitute the Canadian
Quebecois. In the case of the Meech amendment, although many Quebeckers supported the

“distinct society” clause restrictions, others believed they were unnecessary, or even

impermissible.5 Some argued bilingualism was a sufficient policy, for instance.6 Some women’s

groups in Quebec worried that the amendment would create a “hierarchy of rights,” empowering

the province to preserve existing linguistic practices, at the expense of the interests and desires of

women and members of other marginalized groups within the Quebecois community.7 At the

same time, Francophone minorities outside Quebec worried that they would be left with fewer

rights than Quebeckers (Mackie 1992). Had the Meech amendment passed, then, the Canadian

state would not have enabled French Canadian culture to remain closer to its “true” form.

Instead, it would have supported one group of French-speaking Canadians at the expense of

others.

States never simply recognize (pre-political) identities. Instead, by their acts, and by their

omissions, they make identities and they re-make them. Hence normative debates about identity

politics cannot be debates about whether states should intervene to protect identities, or

Polls in Canada during the Meech debate indicated significant opposition inside Quebec
5

to the “distinct society” clause. For example, a Globe and Mail/CBC poll in February, 1990
found a full 41 percent of Quebeckers opposed the “distinct society” clause (Winsor, 1990).
Given that only about seven percent of Quebeckers are native English speakers, this result means
a sizeable portion of Francophone Quebec opposed the clause. Some of this opposition was
likely opposed function of opposition to the Meech Accords altogether, from respondents who
thought any compromise would make Quebec’s evemtia; independence less likely. This group
certainly did not comprise all of the opposition, however. In the same poll, only 30 percent of
Quebeckers completely opposed the Meech Accords.

See Coyne (1990) for an argument in favor of bilingualism. Although bilingualism or

6

“Trudeauism” (after the charismatic former Prime Minister) was a powerful movement in
Anglophone Canada, it is not possible to infer from polling datathe precise extent to which
Quebeckers embraced arguments for bilingualism.

The National Action Committee on the Status of Women, for example, claimed that the
7

distinct society clause would undermine equality rights. See Stewart (1992) and Mallea (1992).
alternatively, whether collective identities should be protected from state intervention. Instead,

the relevant normative question is how states should shape identities.

Democratic states, our view is, should shape identities in democracy-enhancing ways.

Specifically, they should promote what we call democratic non-domination, enabling those

persons who are affected by identitarian norms, practices, and boundaries to participate

effectively in their making and re-making. In the third section, we flesh out this claim. First,

however, we turn to what is arguably the most influential account of nondomination on offer:

Philip Pettit’s notion of republican liberty as nondomination.

2. Liberty as nondomination: Pettit’s view

So-called “negative” concepts of freedom as non-interference are fundamentally flawed,

Philip Pettit has argued, because they fail to take into account forms of mastery in which an

agent does not actively alter the choices or the actions of another agent.8 The principal example

Pettit uses to illustrate is that of the benevolent master and the slave. If a slave owner were to

allow a slave to do just what she pleased—if she did not compel her to work, or in any way

restrict or constrain her field of action—according to theories of negative liberty, Pettit writes,

the slave would be free. This judgment he finds counter-intuitive to the point of absurdity. The

relevant question, he underscores, is not whether the master interferes in the affairs of her slave,

but whether she dominates her, by which he means whether she has the capacity to interfere
8
The most famous defense of negative liberty is Isaiah Berlin’s (Berlin 1982 [1958]).
Pettit also rejects so-called “positive” understandings of liberty as self-mastery, for the same
reasons Berlin rejects them: they can legitimize interference in people’s lives on grounds that it
promotes freedom.
arbitrarily in important choices the slave might make. By definition, a slave master has the

capacity to interfere arbitrarily in her slave’s important choices. Hence slaves are, in Pettit’s

view, by definition, unfree.

Let us consider this definition more precisely. Domination, as Pettit conceives it, has six

key components:

For A to dominate B, (1) A must be an agent who (2) has the capacity to interfere

(3) intentionally, and (4) arbitrarily, (5) in “certain choices” B might make, and

A must have a capacity to do so (6) in a way that “makes things worse” for B

(Ibid, 52).

What does each component-part entail? As far as the first is concerned, although Pettit grants

that dominating agents may be collective agents, he asserts that domination cannot be the

product of “a system or network or whatever” (Ibid). As to the second, he claims A must have

“an actual capacity… a capacity that is more or less ready to be exercised… not a capacity that is

yet to be fully developed” (Ibid, 54). He insists, further, that A’s capacity must be a capacity to

harm B (component 6), and to do so intentionally (component 3). Hence when and if A does

interfere, her interference:

cannot take the form of a bribe or a reward; when [A interferes, A] makes things

worse for [B], not better. And the worsening that interference involves always has

to be more or less intentional in character (Ibid, 52).

A’s capacity to interfere must be a capacity to interfere arbitrarily (component 4), by which

Pettit means at A’s discretion, and without reference to B’s interests and opinions (Ibid, 55).

What is more, it must be a capacity to interfere with some specific range of choices that are

considered important (component 5), since “domination in some areas is likely to be considered
more damaging than it is in others; [it is] better [to] be dominated in less central activities, for

example, rather than in more central ones” (Ibid, 58).

None of these component-parts of Pettit’s definition is, in our view, free from problems.

We will begin at the end, with numbers five and six. Suppose you are a woman in a patriarchal

society, or a worker in an inegalitarian class-stratified society, and suppose your husband/boss

has the capacity to take actions that severely constrain the actions you might take, but in ways

that seem unimportant, because not “central” (“It’s just the private sphere, after all,” you might

tell yourself), or even in ways “make things better” for you (after all, you would be much worse

off if he did not reward and bribe you with financial support / a salary). To suggest that, under

such conditions, you enjoy a state of nondomination is (to recall the language introduced above)

counter-intuitive to the point of absurdity.

Of course, Pettit may have in mind something different from what he writes. He might

think, for instance, that your husband and boss do dominate you by rewarding/bribing you to

work for them, if it is the case that working for them “makes things worse” for you. He might

think, further, that what matters is these “things” your husband and boss “make worse” are

important things, rather than that they are things that are generally considered to be important. If

so, however, he surely needs to say more about what it means to “make things worse,” and about

what these important things that might be worse are. Until he does, the fifth and sixth

components his definition suggest he is naïve about what is often called the “third face of

power.” In Steven Lukes’s words, it is:

the supreme and most insidious exercise of power to prevent people, to whatever

degree, from having grievances by shaping their perceptions, cognitions, and

preferences in such a way that they accept their role in the existing order of
 things, either because they can see or imagine no alternative to it, or because they

see it as natural and unchangeable, or because they value it as divinely ordained

and beneficial (Lukes 2005, 28).9

If the fifth and sixth components of Pettit’s definition reveal it to be naïve about the third

face of power, the first and third reveal it to be naïve about power “de-faced” (Hayward 2000).

Suppose my husband does not intend to harm me, but rather to fulfill his duties as a man in a

patriarchal society. Suppose, similarly, my boss does not intend to “make things worse” for me,

but rather to make a profit. Even still, I am dominated, if and to the extent that I am positioned in

a relation of power that severely limits my field of possible action. Codified and institutionalized

human actions (“a system or network or whatever”) can significantly limit people’s freedom. The

project of identifying and criticizing relations of domination is badly served by the exclusion—

via definitional fiat—of significant forms of social constraint on human freedom.

It is the second and fourth components, however—(2) the capacity to interfere, (4)

arbitrarily—that are the truly distinctive parts of Pettit’s account. At first glance, these seem less

objectionable than the other four. The master/slave example, recall, suggests it is not

interference but the capacity to interfere that renders agents unfree. More specifically, it is the

capacity to interfere arbitrarily: that is, without tracking their interests. Republican political

leaders, after all, have the capacity to interfere with the actions of citizens (they can tax them,

they can compel them to obey property laws, even to serve in the military) but republican

political institutions constrain them to do so in ways that track citizens’ interests. The slave

master, by contrast, is constrained neither by institutions (such as civil rights) that are “designed

to filter or screen out unsuitable acts,” nor by penalties (such as the penalties citizens impose on

Feminists have long been sensitive to the third face of power, as have some deliberative
9

democrats. See, for example, Elster (1986), Nussbaum (2000, ch. 2), and Okin (1998 and 1999).
leaders when they vote them out of office) that are “designed to expose unsuitable acts of

interference to sanction” (Ibid, 58).

Defining domination in terms of the capacity to interfere arbitrarily has intuitive appeal.

But even these relatively attractive components-parts of Pettit’s definition are problematic.

Imagine A and B live on a desert island, and that they have lived there, peacefully, for all of their

lives. A, let us stipulate, is physically stronger than B, and she is also much more clever. Still, she

has never compelled B to do anything B does not want to do or prevented B from doing anything

B does want to do. A has never taken any of the things B uses or wants to use; A has never hurt or

threatened to hurt B; indeed, A has never harmed B in any way. By Pettit’s account, no matter

how long this peace endures, no matter how long A persists in her noninterference, B is

dominated, because A, with her greater physical and cognitive abilities, has the capacity to

interfere with B, and because she is not externally constrained to track B’s interests.

Now, let’s tweak the example. Imagine A and B—the same A and B—live in a political

society. Let’s make it Switzerland. By Pettit’s account, B is now properly free, since institutions,

such as property laws, limit A’s ability to interfere with B, and institutions, such as criminal laws,

would sanction A if she were arbitrarily to interfere. But if it were in fact the case that A never

would steal from B—not in Switzerland, and not on the desert island—then it is deeply counter-

intuitive to suggest their relation constitutes total domination in one instance and total freedom—

nondomination—in the other. If A’s habits and dispositions render it entirely predictable that she

will not steal from or otherwise harm B, and if B (accurately) understands this to be the case,

then the institutional context that is the backdrop to their relationship cannot matter decisively.

Of course, Pettit might reply: “Only constraints, such as institutions, can create

predictability of this sort!” But the objection is moot. Many institutions generate less
predictability than do enduring social norms and routines, habits of perception, and deeply

engrained dispositions. You might be dominated by the class bully, or by the drug dealer on the

corner, even if, eventually he will face sanctions for interfering with your action. You might not

be dominated by your friend, your neighbor, or your loving parent, even if laws and other

institutions give them tremendous leeway to interfere.

What we are concerned about when we are concerned about domination is not precisely

whether constraints are in place to discourage arbitrary interference, and whether sactions are in

place to punish them, so much as whether people’s fields of action are socially constrained, and

in ways they cannot act to challenge and change. Institutions can be an important mechanism for

promoting nondomination. But they are not always effective, and they are not strictly necessary.

At our university, there is no rule preventing our colleagues from bringing Scottish bagpipes to

work, and then walking the halls of the Political Science department while playing them, thus

interfering with our reading and research. Our colleagues do not therefore dominate us. Our

colleagues do, however, interfere significantly with our freedom to read and conduct research

when they write in library books, notwithstanding the (highly ineffective) institutions in place to

prevent and sanction that behavior.

Defining non-domination in terms of social constraint on action deflates the intuitive

force of the benevolent master example. Slavery creates a powerful set of social norms,

expectations, and practices. It enables and strongly incentivizes masters to exploit and coerce

slaves, while it effectively prevents slaves from resisting their oppression. Indeed, slavery

produces such powerful expectations and patterns that the benevolent master example (unlike the

example of the professors who never bring bagpipes to work) is likely to induce incredulity in

many readers. “Surely the slave is dominated,” they might think, “because at some point the
master surely will coerce and exploit her!” If the slave could be absolutely certain, however, that

the master would never interfere with her action, and if she could be certain that she would not

expect slave-like behavior from her, and act upon those expectations—then that particular master

would not dominate that particular slave. By virtue of her status as slave, however—as we

explain in the final section—the slave would be dominated.

3. Democratic nondomination and identity politics

Human agents are, as a result of the actions of other agents—including their codified

actions, and their institutionalized actions—rendered more or less capable of helping to make

and remake the moral and ethical principles, the laws, rules and other collective decisions, and

the social norms, routines, and customs through which they govern their lives together.

Democratic nondomination is that state of power relations in which all participants are enabled,

and equally so, to challenge and change, or to defend and preserve their terms. Democratic

nondomination is social; it is caused by actions people take (and by their failures to act). It is

relative: a matter, not of either/or, but of more and less. Democratic nondomination can be, but it

need not be, the intended product of the choices that individual and collective agents make.

Democratic nondomination has two analytically distinct dimensions. Interagentive

nondomination obtains when all participants in power relations are free from rule by other agents

who have disproportionate power to set their terms. You are dominated along this first dimension

if your husband decides whether or not you will complete your education and whether or not you

will work outside the home. You are dominated along this first dimension if your employer
decides whether or not you will have a bathroom break and whether or not you will leave work

to care for your sick child. You are dominated along this first dimension if your master decides

when, where, and how you will labor, or—to return to debates about multiculturalism—if the

majority in your political society decides how members of the minority group with which you

identify will dress, communicate, teach, learn, and worship.

Systemic nondomination obtains when participants in a power relation achieve collective

agency vis à vis its terms. As argued in section two, an agent can be dominated, even if not

subjected to intentional harm by another agent. You are dominated along this second dimension

if your action is shaped by deeply entrenched—or at the limit, by unalterable—rules, laws, and

institutions, for instance, if you are a slave and the institution of slavery defines a permanent

condition of servitude. You are dominated along this second dimension if your decisions and

choices are governed by norms that have been thoroughly naturalized, or thoroughly sacralized,

for instance by norms of femininity—or, for that matter, norms of masculinity—that are widely

(mis)understood to be natural facts. If, by contrast, your action is shaped only by rules, laws,

norms, and customs which you are socially enabled to question, to challenge, and to help change,

then you enjoy a state of systemic nondomination.

As even this brief explication should make plain, we are concerned (as is Philip Pettit)

with social capacities. Our focus, however, is not exclusively agents’ capacities to interfere

intentionally in each other’s actions. Instead, it is the distribution of the social capacity to

challenge and to change relations of power, as well as the overall level of that capacity. With

respect to the latter concern, what is at stake is the malleability of relations of power: their

responsiveness to the human subjects whose lives they govern. If and to the extent that you and

your husband (and the other women and men in your patriarchal society) fail to challenge and to
change patriarchal rules and norms, and fail to do so because you regard them as natural, or as

otherwise inevitable, then you are all, along this second, systemic dimension, dominated. You

(and other women) are systemically dominated, even as men dominate you inter-agentively. You

would be systemically dominated, what is more, even if your husband (like Pettit’s benevolent

master) were never once to interfere in your action.10

Our thesis, recall, is that democratic states should not—cannot—simply “recognize”

collective identities, and that, instead, they should promote non-domination in identity politics.

Doing so, we now want to argue, requires promoting nondomination among socially constructed

identity-groups, and also within socially constructed identity groups: two distinct forms of inter-

agentive nondomination. It requires, in addition, promoting systemic nondomination vis-à-vis the

boundaries, and the norms and standards, that define identities. Let us consider each in turn.

Inter-group nondomination:

In multicultural political societies that are also hierarchical political societies, relations of

power tend to follow group lines. Members of marginalized groups tend to have distinctive

perspectives on political life. They very often have distinctive experiences, interests, preferences,

and needs. They often have distinctive understandings of collective problems, as well, and also

of possible and desirable solutions to those problems. To return to the example with which we

began, in the contemporary U.S., due to past and present racial discrimination in housing,

African-Americans are disproportionately concentrated in those sections of older cities that are

characterized by aging infrastructure; by high rates of unemployment and underemployment;

Hence the slaves of benevolent masters would be dominated, even if they were able to
10

know with absolute certainty that their masters would never interfere with their action. They
would be dominated systemically, because slavery is permanent servitude.
high rates of poverty and social problems associated with concentrated poverty; and under-

funded and under-performing public services, including public schools. Although African-

Americans are densely concentrated in many urban areas, they form a numerical minority in the

nation as a whole, and in each of the nation’s fifty states. Hence in this case and in others like it,

promoting inter-group nondomination may require laws and policies of the sort that typically are

advocated by theorists of recognition.

It may require, for example, granting black Americans special group rights and

exemptions. It may require public subsidies for black civic associations and their projects. It may

require institutions that promote what some call “descriptive representation,” such as quotas, or

majority-minority electoral districts, or some form of proportional representation, to encourage

the representation of African-Americans by people who share their experiences and their

political interests and preferences.11 It is important to underscore, however, that the goal of such

institutions would be, not to preserve the allegedly true or the authentic identity of black

Americans, but instead to ensure that they have an effective voice in processes of making and

remaking the laws and other collective norms that govern them.

Intra-group nondomination

As emphasized in section one, however, relations of power do not stop at the boundaries

that define racial and other particularistic group identities. Indeed, pressure to conform to

canonical definitions of one’s ascribed identity can be—no less so than can pressure to assimilate

to a dominant, or a majority culture—a nontrivial form of domination. For this reason, promoting

11
The term “descriptive representation” is from Hanna Pitkin (1967), whose is famously
ambivalent toward this form of representation. For compelling arguments in favor of descriptive
representation, see Dovi (2002), Mansbridge (1999), Phillips (1995), Williams (1998), and
Young (1990, ch. 6).
democratic nondomination requires attention to relationships not only across, but also within

social groups. For state actors to promote intra-group nondomination will often require laws and

policies of the sort advocated by liberal theorists of individual rights. Specifically, it will require

legal protections for individuals from the groups with which they identify (and with which they

are identified). These may include rights to bodily integrity, for instance, and to freedom of

speech and freedom of conscience. Crucially, it will include the freedom to exit or otherwise to

dissociate from one’s chosen and ascribed identity groups.

In addition, promoting intra-group nondomination will require that efforts to promote

inter-group nondomination take the form of laws and policies that avoid granting the power and

legitimacy of the state to dominant definitions of “the” norms and values of particular groups.

Recall the example of so-called rights to racial difference. Richard Ford has argued persuasively

that marginalized and minority groups are better served by anti-discrimination law than by legal

efforts to protect ethical differences alleged to be rooted in distinctive group cultures (Ford year,

pp).

Not unlike laws and policies that promote inter-group nondomination, legal rights and

protections that promote intra-group nondomination should be tailored to their task. Their aim is

not to maximize individual autonomy. Instead, they aim to ensure that people, even as they

associate with particularistic groups and other collectivities, and even as they are ascribed racial,

ethnic, and other social identities, are enabled to participate in making and remaking the norms

defining those groups.

Systemic nondomination:
 Promoting nondomination in identity-politics requires, then, ensuring that all have a

roughly equal hand in making and re-making those collective norms that shape their action,

including those norms that define the groups with which they identify. It requires, what is more,

ensuring that all are enabled to shape all the norms, standards, and values that enable and

constrain them. This third claim is the most democratically demanding of the three. It is the

claim that puts our view at the greatest distance from that of strong multiculturalists such as

Charles Taylor. Identities should not, we want to argue, appear to those they name as if they are

fixed, or static: packages people passively inherit, and which states then can “recognize” (or not).

Instead, identities should be open to—and they should be transparently open to—re-

interpretation, re-evaluation, and re-creation, by people who act together to make and to re-make

their self-understandings.

For states to promote systemic non-domination in identity politics will require, not only

group-based rights and legal exemptions, and not only individual rights and protections, but also

laws and policies of the sort typically advocated by theorists of democratic deliberation. It will

require laws and policies, that is to say, which define institutions and procedures that encourage

the give and take of reasons for revising, or for maintaining, collective norms.

Among these are identitarian norms. If and to the extent that debates about U.S. census

categories open to political questioning and political challenge what were once presumed to be

fixed and stable racial categories, those debates are domination-reducing. But it is not only

identitarians norms that must be opened to contestation. A wide array of laws and policies and

social and political institutions may be relevant. Consider, in the American case, the local

municipal jurisdictions that perpetuate residential segregation in the wake of Jim Crow. At last

count, there were nearly 88,000 local governments in the United States, nearly 39,000 of which
were general purpose governments.12 These are legally enabled to make a wide range of

autonomous political decisions, including the land use decisions that perpetuate de facto

segregation. To the extent that local jurisdictional boundaries are off the table politically—to the

extent that those excluded from affluent suburban municipalities can effectively challenge

neither their exclusion, nor suburban jurisdictional boundaries—American metropolitan regions

are sites of systemic domination. Nondomination requires subjecting municipal boundaries to

political contestation, and/or permitting cross-jurisdictional voting, so that, for instance, city

dwellers and residents of inner ring suburbs can influence zoning and other collective decisions

in nearby affluent exclusive suburbs (Frug forthcoming).

As this last example makes clear, it is not only the institutions typically favored by

deliberative democrats that promote systemic nondomination. Sometimes the key is simply to

put on the political agenda questions and problems that are off. Even when deliberative

procedures are in order, however, the end or the aim is not, as it is for some deliberative

democrats, the “rational agreement” of all affected. Instead it is the revisability of laws and other

collective norms, including those norms that define racial and other collective identities.

12
The exact figures are 87,849 and 38, 971, respectively. U.S. Bureau of the
Census, APreliminary Report No.1: The 2002 Census of Governments,@ available at
http://ftp2.census.gov/govs/cog/2002COGprelim_report.pdf.
1 |Page

Conclusion

In this paper, we have argued that debates about whether or not states should “recognize”

racial and other collective identities are poorly framed. States never simply recognize collective

identities. Instead, they inevitably help produce and reproduce them. Democratic states, our

claim is, should promote democratic nondomination with respect to identity, by enabling people

to enjoy an agentive relationship to identitarian norms and practices, and by ensuring that all

have an equal hand in their making and re-making. Our understanding of nondomination, we

have emphasized through our critical engagement with Philip Pettit’s work, is a specifically

democratic conception. It adopts as its premise the basic democratic principle that all should

have a capacity, and a roughly equal capacity, to participate in making and remaking the

institutions, norms, and practices that govern them and shape their possible action. To be sure,

political equality thus understood is not a decisive value; other values, such as justice and

stability, must be weighed against it. But if and to the extent that a political society values

democratic equality, it should pursue, with respect to identity politics, not state recognition, but

democratic nondomination.

What of the question with which began: the question of whether the United States has

reached a “post-racial” era? Months after this question was first posed in the popular media, it

reemerged—this time to be answered with much greater skepticism—following the arrest of

Henry Louis Gates, Jr. for allegedly “disorderly conduct” while entering his own home. Deep

and enduring racial hierarchies persist in the United States. America is not, by any stretch of the

imagination “post racial.” Still, the concept of democratic nondomination can help us think
2 |Page

through what it would require for the United States to move closer to eradicating racial

hierarchy.

According to the 2004 census, more than 55 percent of blacks in America never achieve

education beyond high school, compared to just 43 percent of whites.13 Unemployment for

blacks is 11 percent, more than double the 5 percent rate for whites.14 Twenty-five percent of

American blacks live below the poverty level, almost five times the level for whites.15 And,

although, nearly 30 percent of white households have annual incomes exceeding $75,000, only

14 percent of black households do.16 Resource inequalities do not convert directly into

domination. They can, however, serve as powerful sources of inter-agentive domination.

Money is fungible with political power, and inequalities in educational attainment, achievement,

and professional status translate into inequalities in effective democratic participation.

What is more, resource inequalities are not the only contemporary source of racial

domination. Recall the fragmented structure of local governance, cited above. In the

contemporary United States, fragmentation and decentralization ensures that those who are born

resource-poor into ghettoized sections of American metropolitan areas can neither move to

municipalities with relatively high tax bases, nor act collectively to change the laws that keep

them out. Fragmentation is one important source of systemic domination.

Making significant progress toward achieving a “post-racial” America would therefore

require more than state action aimed at “recognizing” black identity. It would require laws,

policies, and institutional arrangements geared toward promoting inter-agentive nondomination,

13
http://www.census.gov/population/socdemo/race/black/ppl-186/tab7.pdf.
14
http://www.census.gov/population/socdemo/race/black/ppl-186/tab10.pdf.
15
http://www.census.gov/population/socdemo/race/black/ppl-186/tab16.pdf.
16
http://www.census.gov/population/socdemo/race/black/ppl-186/tab14.pdf.
3 |Page

both among and within racial groups. It would require laws, policies, and institutional

arrangements geared toward promoting systemic nondomination, by granting all participants in

power relations structured around “race” the collective power to problematize and to change

them.
4 |Page

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