Freedom of Association Kimberley Brownlee Word Count

Chapter 12: Freedom of Association

Kimberley Brownlee

Word count: 7179

Abstract: This chapter explores the contours of our freedoms to enter into and leave particular associations with particular people. The chapter highlights the fact that often our associations with each other are morally complex and, indeed, morally wrong. This moral complexity stems partly from the fact that associations are necessarily intersubjective: they affect the social needs, claims, and freedoms of at least two people. When our associations are morally wrong, we must determine whether they can be protected nonetheless by our sphere of associative freedom. The chapter shows that our sphere of associative freedom depends greatly on the character and consequences of our associations (or dissociations). The chapter also shows that, under certain conditions, freedom of association is less important than other associative rights, such as the positive associative claim-rights of utterly dependent people.

Keywords: freedom of association, social connections, social rights, rights to do wrong, freedom of religion and expression,

Introduction

We spend the majority of our waking hours in the company of other people

(Cacioppo et al 2009). The ways that we spend those hours can be carved up into different types of social connections. These include our family bonds, friendships, religious affiliations, business partnerships, collegial ties, club memberships, and

1 political associations (see Lawrence 2008). Some of these connections are deeply intimate, such as a typical parent-child relationship or a typical marriage. Others are less intimate, such as, typically, clubs, teams, and unions, but those less intimate connections can be gardens in which more intimate connections grow. Together, our various social connections exert a comprehensive influence over our life-plans and personal identities. They also give us some of our heftiest moral roles including mother, father, child, spouse, sibling, cousin, grandparent, friend, boss, partner, and teammate.

In addition, our social connections include, more modestly but no less importantly, our ordinary, day-to-day interactions with strangers. Such ordinary interactions are minimally decent in that they are neither gratuitously offensive nor indefensibly aggressive. We greet the shop clerk when we buy groceries. We thank the person who brings us a delivery. We chat about the weather with a stranger on the bus. These interactions fall far short of associations since they are momentary, goal- oriented exchanges, and therefore lack the persistence, investment, and meaningfulness of associations. However, they are still a fundamental part of our practice of living harmoniously in close proximity with other people. They are also very important to people who have no closer social ties; and they are often the cradle in which closer ties develop.

This chapter puts aside ordinary interactions to focus on the wonderfully diverse, but morally messy world of associations (for a related discussion, see

Brownlee 2015a). The potential range of that diversity is constrained only by the limits of our associative imaginations. The associations we are inclined to imagine and realise for ourselves are informed by our community’s cultural norms. Within different cultures, different types of association become dominant, and those

2 dominant types shift as cultural norms shift (cf. Putnam 2000). Consider marriage as an example. In addition to the Western stereotype of the legal, consensual, church- blessed, self-selected, monogamous, heterosexual, adult marriage, there are many other models including homosexual marriages, arranged marriages, civil partnerships, non-monogamous marriages, polygamous marriages, “walking” marriages, forced marriages, and informal partnerships. The moral merits of different models depend partly, but only partly, on cultural and environmental conditions.

Human associations are often inescapably morally messy, by which I mean that they are morally complex and problematic in ways that can defy a principled analysis. This is because associations are, by nature, intersubjective: they necessarily involve two or more persons’ interests. We cannot associate alone. (Of course, when we’re self-sufficient, we can dissociate from everyone and then be alone, but often that will be at the expense of someone who would otherwise be our associate.)

Consequently, when we choose how, when, why, and with whom to associate, we make decisions that are inescapably bound up with other people’s associative interests. Here are some examples of morally messy associative decisions:

• A girl is married off by her family at age twelve, but comes to embrace the

marriage as she matures.

• An intern has a sexual relationship with a President.

• Two people have a one-night stand that leads to an unintended pregnancy. The

woman gives the child up for adoption.

• Romeo and Juliet risk both each other’s lives and their family members’ lives

to be together.

3 • Paul Gauguin leaves his wife and children to become a painter (cf. Williams

and Nagel 1976; Williams and Nagel discuss the moral merits of Gauguin’s

decision to leave his family, noting that their discussion is not intended to

track historical facts.)

• A lonely, elderly widower rarely leaves the house, has no social circle, and

does not believe he needs or should have one.

• A world-renowned, state-funded orchestra admits only male members.

• A national youth club refuses to admit openly gay group leaders.

• A business club elects only white members.

• A group of Neo-Nazi supporters parade publicly together.

• A State military refuses to admit either homosexuals or women.

• An established Church refuses to elect female bishops.

• A bar refuses to serve pregnant women.

• A fine dining restaurant refuses to admit children.

In some of these cases, the associative part of the persons’ conduct might seem not to matter morally. But, in fact, it does matter morally when one person mistreats another in ways that define their association or dissociation. In what follows, I explore the morality of the form and content of associations.

The above associative decisions are morally messy for different reasons. For instance:

1. In some cases, the moral messiness comes from people choosing to be

exclusive. The orchestra, military, Church, business club, bar, and

restaurant all exclude people. So too does Gauguin when he leaves his

4 family, as does the woman when she puts the child up for adoption. The

military and the established Church are also morally complex for another

reason, namely, that they are state institutions.

2. In some cases, the moral messiness lies in people making problematic

associative decisions for their dependents, such as the family marrying off

their twelve year-old daughter, and the woman putting the child up for

adoption.

3. In some cases, it comes from associates making decisions that either pose

risks for each other, as Romeo and Juliet do for each other, or pose risks

for third parties, as Romeo and Juliet do for their families. (That said, it is

more accurate to say that Romeo and Juliet act in a way that increases the

chance that their families will pose risks to them and to each other.)

4. In some cases, the moral messiness lies in the grey area between autonomy

and heteronomy. The lonely widower does not believe he needs or should

belong to the social circle that he cannot form without help. The intern is

flattered, but also finds it hard to refuse the President’s advances.

Associative decisions like these confront us with many tough applied philosophical questions, which can be grouped under three headings that will be the focus of this chapter:

5 1. Content: What kinds of choices, attitudes, and behaviours does freedom

of association protect, in principle?

2. Scope: How expansive is our freedom to associate or not as we please

with whom we please in the ways we please? What rights-protected space

do we have to act wrongly when we form, maintain, dissolve, and avoid

particular associations? How does the scope of associative freedom

compare with the scope of other personal freedoms such as freedom of

expression or religion?

3. Value: What is the value of freedom of association? How does that value

compare with the value of securing people’s basic social needs regardless

of their associative preferences?

What philosophers have to say about these three themes is highly relevant to a host of significant social problems that we confront today, such as pervasive chronic loneliness, social isolation, institutional segregation, child neglect, child abuse, and the neglect of elders (see Chapter 1 of this Companion for an analysis by Kasper

Lippert-Rasmussen of the relevance, practical, activist, and empirical conceptions of applied philosophy, all of which pertain to philosophical debates about freedom of association.). In the West at least, aging populations, collapsed social welfare structures, and individualistic cultural norms all threaten people’s abilities to meaningfully build and sustain associations with each other. Moreover, these threats are not necessarily lessened, but may indeed be heightened, by our expanding technological potential. This potential enables us, first, to engage in instantaneous,

6 globalised, digital communication, which can make us “friends” to each other where that often means being alone together (see Turkle 2011). Second, it enables us to deploy (putative) social surrogates such as robots and virtual environments to replace direct human contact, but which can leave isolated people as badly off socially as they were before they received the surrogate.

Unlike some topics in applied moral, political, and legal philosophy, which concern only certain people such as doctors, soldiers, or judges, associative rights are important to us all. Undeniably, some of us cannot exercise associative freedom, such as babies, very young children, and people with severe impairments, and some of us are not permitted by society to exercise associative freedom, such as most prisoners.

(Young children and prisoners can exercise some associative control in that young children can choose which kids they play with at nursery and prisoners can choose whether to form friendships, to join voluntary prison groups, to meet with people who come to visit them, and to divorce a spouse while in prison. However, neither young children nor prisoners can exercise associative control over their principal associations in their core environment. Young children cannot extract themselves from their families. Prisoners cannot choose their cellmates or lack of cellmates or the amount of time they spend with (or without) those cellmates.) Nevertheless, we all have fundamental interests in having access to associative opportunities (rooted in our basic social needs), on the one hand, and in having some associative control according to our abilities to exercise it (rooted in autonomy and self-respect), on the other hand.

Applied moral, political, and legal philosophy must, first, make sense of these competing associative interests and, second, provide the conceptual and evaluative tools with which to address real-world associative problems.

7 To be credible, an account of associative freedom must explain what the human practices of associating and dissociating are. It must also explain how and why we engage in these practices as we do. Moreover, it must explain why these practices are valuable, if they are. Finally, it must explain why we tend to assert a right to engage in these practices freely even if ultimately it rejects the idea that we have a largely unconstrained freedom of association. Let’s begin by pinning down what we mean by “freedom of association”.

The Content of Freedom of Association

Positive Freedoms and Negative Freedoms

Freedom of association has two sides. The first side is whatever positive freedom we have to form and sustain associations with people. The second is whatever negative freedom we have to avoid and dissolve associations with people.

The positive, or active, side of freedom of association includes both the general freedom to have associates at all and whatever particular freedom we have to be associates with particular people in particular ways. The general freedom depends on the particular freedom. If we’ve no freedom to have particular associations with particular people (who may or may not be our preferred associates), then we have no meaningful general freedom to have associates at all.

In addition, the positive freedom covers whatever freedom we have to engage in specific kinds of association-defining activities, such as romantic, sexual, parental, fraternal, professional, mercenary, competitive, sportive, or collegial activities, with particular people.

The negative, or passive, side of freedom of association includes whatever general freedom we have not to associate at all as well as whatever particular

8 freedoms we have not to associate with particular people. Again, the general freedom depends on the particular freedom. If we do not have the freedom to avoid or dissolve particular associations, then we do not have a general freedom not to associate.

Both the positive freedom and the negative freedom are necessary for us to have a complete freedom of association (which is not the same thing as having an unlimited freedom of association). Completeness means having both the option to act and the option not to act in a given situation. If we have no option, morally speaking, but to associate with some people (such as the young baby we’re raising), then, in those situations, we do not have a complete freedom of association. We have half a freedom since we have only the option (if it can be called an “option”) to associate.

The same is true when we have no possibility or permissible option to associate. If we cannot associate with anyone (like the solitary elderly person who cannot leave the house without help) or we are not allowed to associate with anyone

(like the prisoner who is held in solitary confinement), then again we really have but half a freedom. In the spirit of Joel Feinberg, to say that we have freedom in such cases is similar, grammatically, to saying that a woman has two children when in fact she has three. To say that she has two children is correct, but misleading since we assume it means that she has only two children (see Feinberg 1970). Likewise, to say that we have a freedom to associate when we’re duty-bound or forced to associate (or not) is misleading since we assume rightly that freedom of association includes both the options to associate and not to associate.

Associative freedom is one kind of associative right. It is not the only kind of associative right. Associative rights also include whatever positive associative claims we have on others to have associations with them, such as the baby’s claim to be raised by a caring guardian (usually the parents) or the severely impaired person’s

9 claim to be cared for by a competent, supportive caregiver (often family members), regardless of our preferences about the association. Although this chapter focuses principally on freedom of association, it returns briefly to positive associative claim- rights below.

Intimate Freedoms and Collective Freedoms

Scholars and practitioners often distinguish between freedom of intimate association and freedom of collective association and assembly. The United States

Supreme Court highlighted this distinction in Roberts v. United States Jaycees where

Justice Brennan, writing for the majority, states that:

Our decisions have referred to constitutionally protected "freedom of

association" in two distinct senses. In one line of decisions, the Court has

concluded that choices to enter into and maintain certain intimate human

relationships must be secured against undue intrusion by the State because of

the role of such relationships in safeguarding the individual freedom that is

central to our constitutional scheme. In this respect, freedom of association

receives protection as a fundamental element of personal liberty. In another set

of decisions, the Court has recognized a right to associate for the purpose of

engaging in those activities protected by the First Amendment - speech,

assembly, petition for the redress of grievances, and the exercise of religion.

The Constitution guarantees freedom of association of this kind as an

indispensable means of preserving other individual liberties (Roberts v. United

States Jaycees 468 U.S. 609, 618 (1984)).

10 Even though intimate associations and collective associations have distinct argumentative foundations, the conceptual space between these two freedoms is rough terrain. Indeed, some thinkers deny that the two types of association can be clearly divided since both types are sites in which our beliefs germinate (Shiffrin 2005, 865), and since a single association often has both collective and intimate dimensions

(Alexander 2008).

That said, paradigmatically, intimate associations with family and friends differ from collective associations such as unions and clubs in that intimate associations need not have any further purpose beyond associating to motivate their existence. By contrast, collective associations have some further purpose as outlets for people to express shared values and pursue shared goals. Even a “friends club” will be animated by an overarching purpose that, in principle, can clash with individual members’ associative aims.

Since, however, collective associations are often the gardens in which intimate associations blossom, we could think of our associations as lying along a fluid spectrum of intimacy with the more impersonal and instrumental at one end and the more personal and non-instrumental at the other (Brownlee 2015a).

A second contrast exists between individual rights and collective rights (or group rights). Whatever negative freedom we have to dissociate from others is an individual right, that is, a right we have as individual persons. By contrast, whatever positive freedom we have to associate with others seems to be a group right, that is, a right we hold in conjunction with the people with whom we have the association, in the same way that language rights are group rights (Kymlicka 1995). The potentially group-right nature of positive associative freedom raises several interesting conceptual and evaluative questions. For instance, where group rights exist, they are

11 not simply the summation of the individual rights of their members. A group has claims, powers, permissions, and immunities that its individual members do not have.

It is common to regard national self-determination as a group right. If other associations, such as clubs, teams, unions, parties, and families, are analogous to nations in the relevant respects, then they too should be seen as the bearers of group rights. Such questions must be put aside as topics for another day, but this discussion does return briefly to national self-determination below.

Permissions, Claims, Powers, and Immunities

When we talk about freedom of association we can mean one of several things

(for a general analysis of rights, see Jones 1994, ch. 1):

1. Permission: Freedom of association can mean being permitted, or being at

liberty, to associate or not, which means that we’ve no duty not to act. We can

have a moral permission to associate with a person in a certain way, which

means we do nothing morally wrong by having that association. Or, we can

have a legal permission – a legal right – to have that association, which means

we do nothing legally wrong. Of course, legal permissions don’t necessarily

give us moral permissions. A man might have a legal permission to marry a

twelve year-old girl, but he would have no moral permission to do this since

she would be too young to give informed consent and would be vulnerable to

abuse. We can also have a moral or legal permission not to be in a certain

association. The twelve year-old girl certainly has a moral permission to

refuse the marriage, and she certainly should have a legal permission to refuse

it.

2. Claim-right of conduct: Freedom of association can mean having a claim-right

to associate or not, even if it’s morally wrong for us to do so. Here our

freedom gives us a protected sphere of associative action with which, in

general, other people may not justifiably interfere (Raz 1986, ch. 7). A moral

claim-right gives others moral duties not to interfere. A legal claim-right gives

the state (and others) legal duties not to interfere. The question is: How

expansive is this protected sphere? Does it protect all of the morally messy

associative choices listed above? I will address this question below.

3. Power: Associative freedom can mean having the power to alter our

normative, associative position in relation to other people. (Powers track what

is possible for us to do rather than what is permissible for us to do. What

philosophers call a “Hohfeldian power” (after the philosopher Wesley Hohfeld

who isolated the concept) is the ability to create or remove various Hohfeldian

categories such as claims, duties, permissions, no-claims, powers, immunities,

disabilities, and liabilities.) Having an associative power means we have the

ability to create or remove our own and others’ associative claims,

permissions, and powers in relation to us. For instance, in marrying someone,

we exercise our associative powers to give that person new claims on us and

new duties to us. In marrying us, that person does the same.

4. Immunity: Associative freedom can mean being immune to others’ exercise of

their associative powers. For example, once someone marries us, this gives us

new claims and powers over them that they cannot simply take back by

13 divorcing us. We retain some legitimate claims and powers, i.e. some immune

options, which usually relate to joint property and guardianship of any

children.

Constrained by space, this chapter won’t explore all of these senses of “freedom of association”. It will focus only on freedom of association as a claim-right of conduct that protects us when we make morally wrong associative decisions, such as the ones listed above. Like other personal freedoms such as freedom of expression and freedom of religion, freedom of association protects some wrongful associative behaviour. The question is: Which of our morally wrong associative decisions does it protect? What are the limits of our moral and legal freedom to act wrongly in the realm of associations?

Form and Content

Before answering these questions, we must distinguish the different ways in which associating and dissociating can be morally wrong. Dissociating is morally wrong when the person who dissociates herself has a moral duty to form or maintain the association in question. (A person could also have decisive moral reason to associate with someone, but that would not necessarily make her decision to dissociate morally wrong.)

Similarly, positively associating is morally wrong when the person, or people, who associate have either a duty not to do so or, at least, a duty not to do so in that way. Forming and maintain associations can be morally wrong in one of three ways:

14 1. Form: An association is morally wrong in form when it shouldn’t exist

regardless of its content. For example, an under-aged marriage or any forced

marriage is morally wrong in form. The parties to the marriage may treat each

other very well such that the content is morally fine, but nonetheless the

association shouldn’t exist. Similarly, if a person kidnaps a child and then

raises her beautifully, the content is morally fine (because, if we didn’t know

the background, we wouldn’t object to the connection). But, still the

association shouldn’t exist. Likewise, if a Neo-Nazi group is apathetic and

harmless, it’s content is fine, but the association shouldn’t exist given its

underlying commitment to exterminating Jews.

2. Content: An association is morally wrong in content when associates’

dominant behaviours are morally wrong. A stereotypical consensual,

heterosexual, legally enforced, church-blessed adult marriage is morally fine

in form, but may be rife with abuse. Similarly, an orchestra is morally fine in

form – there’s nothing morally wrong with orchestras – but may be rife with

harassment of members.

3. Form and Content: Some associations are morally wrong both in the fact that

they exist and in the ways some associates treat other associates or third

parties. A forced marriage that is also abusive is wrong both in form and in

content. A Neo-Nazi group that is well organised, active, and effective is

wrong both in form and in content.

15 In some cases, the line between form and content is blurry. This happens when an association’s identity as the kind of association it is (its form) is intertwined with the kinds of activities the associates typically engage in (its content). For instance, if a business club is all-white, then it is probably morally problematic both in form and in content, at least when 1) the group makes a prejudicial, improperly discriminatory judgement about the people it excludes, 2) the exclusion knowingly relates to factors other than expertise, and 3) this informs the group’s collective activities, such as their selection procedures if nothing else.

We cannot rank either form-wrongs or content-wrongs as being generally morally worse than the other. It’s not obvious that it’s morally worse to be in a forced, but benign marriage than in a consensual, abusive marriage, or vice versa. We can probably rank associations that are wrong in both form and content as morally worse than other wrong associations, but there will be many exceptions to this rule.

Associative freedom protects some but not all associations that fall into each category of wrongness; it can protect only so much moral wrongdoing. Many kinds of associations are too morally wrong for us to be allowed to live them out within our protected sphere of associative freedom. Let’s examine further which associations those are.

The Scope and Value of Freedom of Association

To this point, this discussion has identified several factors that can make associative decisions morally wrong. These include: 1) exclusivity and (improper) discrimination, 2) rejection of others’ legitimate associative claims, 3) lack of consent where consent is required, 4) undue risks to associates, 5) undue risks to third-parties, and 6) conflicts between associative claims and duties. We want to know when these

16 factors are morally salient and when, in addition, they are weighty enough to restrict associative freedom.

Although these various factors can be grouped roughly into form-problems and content-problems, no single factor is salient in all cases. For example, it’s a form- problem that a forced marriage lacks the forced party’s (or parties’) consent. But, it’s not a form-problem that a parent-baby relationship lacks the baby’s consent.

For another example, it’s a form-problem when clubs are exclusive on improperly discriminatory grounds, such as when the Boy Scouts of American refuses to admit openly gay group leaders. But it’s not typically a form-problem that families are exclusive and stereotypically only accept members who have a certain genetic and gestational pedigree.

For a third example, it’s a content-problem that Romeo and Juliet pose risks to each other and their families. But, it’s not a content-problem that they assume risks for themselves, just as it’s not a content-problem that a mother accepts the risk of contracting a deadly illness when she chooses to be the primary carer for her contagious child.

Various elements can meaningfully limit the scope of associative freedom.

Let’s focus on such three elements: exclusivity, consent, and harm. The limits they impose can be moral, social, or legal. Moral limits pick out the boundary of our morally protected sphere to act wrongly. Social limits lie in the informal, but effective social checks, reproofs, and consequences that can come with our associative choices.

Legal limits come through the state regulating our associations.

Exclusivity

17 Liberal thinking takes it for granted that the right to be exclusive is central to freedom of association. John Stuart Mill states:

We have a right…in various ways, to act upon our unfavourable opinion of

any one, not to the oppression of his individuality, but in the exercise of ours.

We are not bound, for example, to seek his society; we have a right to avoid

it…for we have right to choose the society most acceptable to us (Mill 1859,

ch. IV).

In a similar vein, Amy Gutmann states (as do many others) that “the freedom to associate necessarily entails the freedom to exclude” (Gutmann 1998, 11). These statements are applied usually to collective associations, such as teams, unions, and clubs, which often assert rights to be exclusive as part of their identity (White 1997).

These claims are also sometimes made about states: that they have a right to exclude people, such as undesired immigrants, on the basis of legitimate, national self- determination (Wellman 2008). Finally, these claims can be made about our intimate associations with family and friends, where exclusivity is less contentious politically.

Exclusivity in intimate associations is inescapable not only for reasons of identity, but also for the reason that we cannot be genuinely intimate with more than a small number of people.

One argument for the right to be exclusive focuses on the core functions of people’s association including any expressive purposes they have. This argument highlights the assault on those functions and purposes that forced inclusiveness would entail. Most starkly, the argument says that a right to exclude is a necessary precondition for people to form associations with specific purposes at all such as

18 active sports clubs, committed religious groups, or indeed loving, close-knit families

(White 1997).

A second, related argument looks at the values that are realised when associations are allowed to be exclusive, such as teamwork, competitive advantage, cohesiveness, autonomy, self-determination, and self-respect (McKinnon 2000, 498).

But, of course, the value of the putative goods of exclusivity cannot be assessed wholly independently of the association’s aims. A Neo-Nazi student club might display teamwork, competitive success, cohesiveness, self-determination, and self-respect. But, if these traits have any value independent of their content, that value is vastly outweighed by the gross disvalue in the cause they advance and the risks that go with this group’s successful exclusivity.

However, the Neo-Nazi student club should have the legal and moral right to exist and be exclusive because society has collective interests in toleration, diversity, experiments in living, and freedom of expression. That said, when we tolerate such associations, we run the risk that we endorse their intolerance toward the people whom they exclude, which is an unavoidable tension within liberal societies.

By contrast, we cannot argue credibly that every kind of association should have the right to be exclusive in the way the Neo-Nazi student club is. Suppose that no grocery store in a town will sell food to a Jewish person. Suppose that no

Caucasian-owned restaurant in a city will serve a black person. Suppose that the main business club in the country won’t admit women. Certain legal and social checks must be put on people’s right to be exclusive in their collective associations to ensure that they do not improperly limit others’ rights to equal respect, consideration, and fair opportunity (White 1997, 383ff).

19 Moreover, concerning those associations that are allowed to be exclusive, we must attend to their impact on third-parties generally even when third-parties have no desire or reason to be included since, as Sarah Fine argues, free associations can have harmful effects on third-parties simply when they engage in the activities that define their association:

When a private club in a residential area regularly arranges noisy late-night

gatherings, the group’s actions have spill-over effects for the local residents.

In that way, while seemingly going about its own business, the private club

has the potential to harm the interests of non-members (Fine 2010, 346).

Fine observes that this fact calls into question “the presumption in favor of the group members’ freedom to do as they please”. More radically, a Neo Nazi club that is actively fomenting violence against Jews has no right to exist as it does since it threatens the lives and basic interests of the people it excludes.

When it comes to states’ rights to be exclusive, some philosophers, such as

Christopher Wellman, argue that the state is analogous in relevant ways to individual citizens. In liberal states, citizens are morally entitled to control their self-regarding affairs, as they have strong interests of self-determination. This is why they may choose their own marriage partners and their own religion. So too, Wellman argues, the state has analogous interests in self-determination, and for this reason ceteris paribus we should privilege states’ rights to exclude over immigrants’ competing claims to be admitted (Wellman 2008).

Wellman’s analogy between states and individuals ignores the fact that, as individuals, we cannot exercise self-determination over our closest familial relations,

20 which define us at our very core biologically, developmentally, and socially. We cannot choose our genetic parents, our gestational mother, or our developmental parents. We cannot choose our siblings, grandparents, cousins, aunts, and uncles, or the lack of them. In other words, we cannot choose our own biology, our biological relations, or our familial surroundings during our protracted period of childhood development. Moreover, as parents, we have only a very limited ability (at present), and arguably no right, to choose our children in any detailed sense. Furthermore, we cannot choose our associates, or lack of associates, during periods of utter dependency, such as incapacitation, injury, illness, and very old age.

These limits on our self-determination are analogous to the limits on national self-determination posed by a state’s history, geographical location, resources, and neighbours (unless it conquers those neighbours).

Given the significant limits on individual self-determination, it does not offer a credible argument by analogy for state exclusivity. States’ rights to be exclusive, if they have such rights, are undoubtedly qualified, and turn on considerations of local and general wellbeing such as resource scarcity, overpopulation, and environmental damage. Moreover, as the above point about harms to third parties makes clear, it’s not obvious that states’ rights to be exclusive, if they have them, should take priority ceteris paribus over third parties’ rights not to be harmed.

In our intimate associations, we have considerable associative freedoms to be exclusive, but these freedoms must also compete with others’ positive associative claim-rights. We may well have a right, in principle, to act wrongly by abandoning our family, retreating from the world, and living as a hermit. We may have a right to put our aging parents into institutional care facilities or to put our children up for adoption because we do not wish to be their carers. But these rights will bump up

21 against the positive associative claim-rights of those same people who have legitimate claims on us. And, there are many reasons to prioritise the claim-rights of dependents over the dissociative freedoms of their affiliates. Indeed, there are reasons to privilege the claim-rights of utterly dependent people over anyone else’s dissociative freedom.

We all needed someone to care attentively for us when we were young children.

Without that, we wouldn’t be able to exercise associative choice later in life. We also all need someone to care for us as we age and when we are ill. If no one has an overriding duty to care for us during periods of dependency, then our most basic social needs will go unmet (see Brownlee 2015a; 2015b).

Consent and Harm

Some of our intimate associations are mutually consensual. Some are not. As just noted, the absence of consent doesn’t always pose a moral problem, such as in the case of most parents and young children. But, sometimes it does. The question then is whether associative freedom protects morally wrong associations that lack consent.

The answer is that sometimes it does and sometimes it doesn’t. Here are three examples where it does.

First, sometimes, associative freedom protects guardians in wrongfully severing or redrawing associations on their dependents’ behalf without their consent.

For instance, for health but not life-saving reasons, parents might decide to separate conjoined twins before the twins are old enough to give informed consent; the parents’ decision is morally problematic, but it falls within their sphere of protected associative decision-making.

Analogously, one conjoined twin might seek to be separated from her sibling without the other’s consent, thereby radically redefining her sibling’s sense of identity

22 as well as her associative position. Provided that the separation does not threaten the non-consenting twin’s life, we might privilege the exclusivity claim of the twin seeking separation, despite its moral wrongness.

Second, associative freedom protects parents in making associative decisions about their own relationship even when it produces radical associative changes for their dependents. When parents divorce, the family’s associative arrangements change drastically, and possibly wrongfully, but nonetheless the parents’ freedom of association protects them ceteris paribus in terminating their own intimate association with each other.

Third, associative freedom protects guardians in forming some morally objectionable associations on their dependents’ behalf without their consent. For example, a girl’s parents might agree to an arranged marriage, which she will enter into once she has matured. Since it is arranged before she is approaching maturity, she is unable to give informed consent to the arrangement, and therefore it is wrong given the kind of association it sets up. But, let’s assume that the daughter will embrace the idea of an arranged marriage when she matures and that the parents have good reason to believe that she will embrace it. Thus, the arrangement will be acceptable to her at the time that she is expected to enter into the marriage. Although the parents acted wrongly when they made the arrangement, nevertheless they were arguably protected in doing so given their credible beliefs about their daughter’s future values. (Let us bracket the issue of adaptive preferences.)

By contrast, associative freedom does not protect parents in pursuing an arranged marriage to which their daughter doesn’t consent when she reaches a mature age. If they force the marriage on her, then they act in a morally wrong way that

23 associative freedom cannot protect. They have no right to force her into a marriage.

Her own freedom of association protects her from this imposition.

Turning to consensual associations, although sometimes mutual consent guarantees that an associative decision is protected by freedom of association, other times it does not. Here are two examples where it does the work, and one where it does not.

Consider an intern who voluntarily enters into a sexual relationship with a

President. Or, consider an of-age student who voluntarily enters into a sexual relationship with her professor. These associations are morally problematic because the subordinate party is not well placed to judge the relationship and is vulnerable to mistreatment during it and afterward. Nevertheless, mutual consent can explain why such choices fall within our sphere of protected freedom of association.

Consent can probably also do the work to protect associations where the associates pose severe risks to each other, such as the risk that Romeo and Juliet willingly assume (if they were both of-age) in order to be together. (But, of course,

Romeo and Juliet’s liaison also poses life-threatening risks to their families members, which those people do not willingly assume. Therefore, although it’s not Romeo and

Juliet’s fault that their families are at war, their freedom of association doesn’t extend to posing such risks, or is overridden by the risks it poses to their families.)

By contrast, arguably, consent cannot do the work to protect an association that would rob us of all future prospects for associative choice. In other words, we cannot legitimately consent to being a slave, as it eradicates all future possibility for associative control.

Conclusion

24 This discussion has shown how morally complex our associative decisions are in virtue of the fact that social connections are necessarily intersubjective. Our decisions to associate or not are inescapably bound up with others’ social needs, claims, and freedoms.

This discussion has also shown that freedom of association is not content- insensitive. Our morally protected sphere of associative choice depends greatly on the character and consequences of an association (or dissociation), including its impact on others, the presence or absence of needed consent, and so on. Our legally protected sphere of associative choice should too.

Given its content-sensitivity, associative freedom differs from the other personal freedoms with which it is usually aligned such as freedom of expression and freedom of religion, which do provide broadly content-insensitive protection within their domains (see Brownlee 2015a). Freedom of expression protects us in saying things that are offensive, disgusting, and even harmful. Freedom of religion protects us in making personal choices, including some parenting choices, that are wrong and even harmful, and would otherwise be prohibited. By contrast, associative freedom protects some wrongful behaviour, but not nearly as much as liberal thinking would lead us to suppose. It does not protect either an underage marriage or a loving parent- child relationship that forms as a result of a kidnapping; it does not protect an abusive marriage or a severely neglectful parent-child relationship. Freedom of association is a distinct, morally complex practice that deserves more sustained consideration in moral, political, and legal applied philosophy.

25 Acknowledgements: I thank Thomas Parr, David Coady, Kasper Lippert-Rasmussen and an anonymous referee for helpful feedback on this chapter. I also thank Thomas

Parr for his research assistance.

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