Human Rights

There is little disagreement surrounding the claim that freedom is the central value of the liberal political order. However, there is little agreement regarding the proper understanding of this value and, more precisely, the kinds of constraints on individual freedom that the state would be justified in imposing. On this issue, proponents of freedom can be roughly divided into two basic camps: those who articulate the value of freedom negatively as “freedom from” interference, and those who understand it in a more positive fashion as “freedom to” live under certain conditions, participate in particular activities, or develop in a specified way. Simply put, advocates of negative freedom limit their focus to constraints that originate in the wills of other individuals or in state intervention. Freedom, in this sense, focuses on external human control over the decisions and actions of individuals, and it calls for respect for fundamental civil liberties. Accordingly, the function of the state is to maintain and enforce laws that protect this domain for individuals. In contrast, advocates of positive freedom point out that individuals also are constrained in other ways (e.g., by lack of opportunity or lack of resources). Some of the constraints may be material in origin, yet others political. Proponents of positive freedom appeal to certain desirable states of affairs for which negative freedom will not be a sufficient means.

Benjamin Constant drew the relevant distinction as one between the civil liberties exalted by modern theorists and the participation in public life that the ancients regarded as the essential component of being free. John Stuart Mill makes the classic argument for a modern notion of freedom in his book On Liberty. Mill defends freedom of conscience, freedom of the press, freedom of expression, freedom of association, and freedom to pursue “our own good  in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it.” As opposed to Mill’s conception of freedom, that of Jean‐​Jacques Rousseau more closely approaches that of the ancients, at least as Constant characterizes it. In The Social Contract,  Rousseau famously identifies the most important kind of freedom as a constitutive element of democratic government. For Rousseau, freedom is not solely acting as we want without hindrance from other human agents. As Rousseau understands it, a person is free only to the extent that he participates in the political decisions that determine what he may or may not do. In this way, the state plays an active role in enhancing not only political freedom, but also moral freedom, “which alone makes [a man] truly master of himself.” Political man trades the  freedom of the state of nature for the freedom to be something much greater than he might otherwise have been.

It is clear that these differing conceptions of freedom arise from competing views of moral agency. Some conceptions of freedom give substantial weight to an individual’s understanding of his own well‐​being. For example, Mill holds that, “with respect to his own feelings and circumstances the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by anyone else.” In marked contrast, as Isaiah Berlin points out in his seminal essay, “Two Concepts of  Liberty,” other accounts draw on notions of a

dominant self … variously identified with reason, with my “higher  nature,” with the self which calculates and aims at what will satisfy it in the long run, with my “real,” or “ideal,” or “autonomous” self, or with myself “at its best”; which is then contrasted with irrational  impulse, uncontrolled desires, my “lower” nature, the pursuit of immediate pleasures, my “empirical” or “heteronomous” self, swept by every gust of desire and passion, needing to be rigidly disciplined if it is ever to rise to the full height of its “real” nature.
 

Berlin’s analysis can thus be read as a pointed warning against political orders committed to this view of human agency. In Berlin’s  words, “Enough manipulation with the definition of man, and freedom can be made to mean whatever the manipulator wishes. Recent history has made  it only too clear that the issue is not merely academic.”

In  response to just this kind of argument, Charles Taylor claims that those who would have us reject positive freedom for “fear of the Totalitarian  Menace” make us “incapable of defending liberalism in the form we in fact value it.” Taylor’s thesis is that freedom is not “just the absence of external obstacles tout court, but the absence of external obstacle to significant action, to what is important to man.” We protect certain kinds of freedom (e.g., religious freedom) by appeal to their significance, not by appeal to the overall amount of freedom their exercise would allow. According to Taylor, no society would be considered more free simply because its members were permitted to carry out more acts all told, but fewer meaningful ones, say, fewer acts of religious worship. But if we concede that the objects of freedom can be more or less significant, it is hard to imagine how we might “maintain the incorrigibility of the subject’s judgments about his freedom, or rule out second‐​guessing” with respect to these judgments. Taylor’s  argument urges a return to what he calls “the most inspiring terrain of liberalism, which is concerned with individual self‐​realizations,” and it suggests “a view of freedom which sees it as realizable or fully realizable only within a certain form of society.” Of course, this line of argument does little to ensure that such a society will not bring with it “excesses of totalitarian oppression in the name of liberty.”  Taylor’s point, however, is that these worries must be taken up in their own right, not predetermined by a particular definition of freedom.

Challenges to conceptions of justice predicated on negative accounts of freedom extend beyond the objections posed by the proponents of positive accounts. In particular, critics of libertarian conceptions of justice have charged that appeals to freedom as understood in its negative sense do not provide the support that one might attribute to them in arguments for the minimal state. Critics contend that freedom‐​based justifications for the minimal state fail even when we assume that negative freedom would be determinative in such an argument. G. A. Cohen, for example, maintains that “it is quite unclear that social democratic restriction on the sway of private property, through devices  like progressive taxation and the welfare minimum, represents any enhancement of governmental interference with freedom.” Here it is important to notice that Cohen is concerned with negative freedom. His claim is that, without further argument, we cannot reject redistributive schemes on the grounds that they increase the total number of restrictions on negative freedom. For just as property rights constrain non‐​owners’ actions to maximize negative freedom for property owners,  “incursions against private property which reduce owners’ freedom and transfer rights over resources to non‐​owners thereby increase the  latter’s freedom.” Cohen concludes that “private property, like any system of rights … is a particular way of distributing freedom and unfreedom,” even in its negative variety.

This species of critique leaves the advocate of libertarianism with several possibilities for response. First, the libertarian can offer the argument that the minimal state does indeed enhance negative freedom. This argument would be all the stronger for showing that strong property rights increase negative freedoms on the whole in society. A second line of response better attends to the fact that certain negative freedoms have more value than do others. The rights‐​based form of this  argument draws on conceptions of negative freedom typically associated with John Locke. On Locke’s account, the state should limit itself to a concern with those constraints on negative freedom that violate individual rights. Admittedly, the appeal to negative freedom cannot be foundational in an argument for the minimal state. Because the value of the negative freedoms protected by the minimal state is grounded in a particular set of individual rights, the rights must be grounded in something other than negative freedom.

One alternative to the rights‐​based defense of certain negative freedoms is consequentialist  in nature. Here the work of F. A. Hayek is instructive. In his book The Constitution of Liberty, Hayek makes the argument that, “the case for individual freedom rests chiefly on the recognition of the inevitable ignorance of all of us concerning a great many of the factors on which the achievement of our ends and welfare depends.” In other words, the negative freedoms  identified with the minimal state allow individuals to “make use of this knowledge in their actions” for their own well‐​being and for the well‐​being of others. The consequentialist version of the argument thus allows one to defend a particular distribution of negative freedoms without an appeal to a particular set of individual rights.