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Legal Values: Freedom View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Jagiellonian Univeristy Repository L Legal Values: Freedom the type of freedom which is or can be an object of human aspirations and, consequently, is or can be Katarzyna Eliasz and Wojciech Załuski pursued by means of law (by contrast, freedom as Jagiellonian University, Krakow, Poland a fact cannot be aspired to; either human beings are endowed with free will or can be free only in the sense of freedom from compulsion). One can Introduction distinguish four types of freedom as value, viz., negative freedom (i.e., freedom as non- The concept of freedom is strongly ambiguous: it interference), freedom as non-domination, politi- has many different meanings which come into cal freedom, and positive freedom. The article will complex relationships. It seems that a good point aim at presenting them and analyzing their mutual of departure for disentangling these meanings is relationships. making a distinction between freedom as a fact and freedom as a value. The former type of free- dom has a purely descriptive sense: it describes, “ ” Freedom as Noninterference (Negative so to speak, a metaphysical condition of man. Freedom) and Freedom as The basic controversy in this context is whether Non-domination human beings have free will (which is the capacity to make choices undetermined by past events) or The basis for the distinction between freedom as whether the only type of freedom inscribed in noninterference (negative freedom) and freedom their “metaphysical condition” is freedom from as non-domination – two types of freedom which compulsion (which consists in acting in accor- are usually opposed to each other – is the question dance with one’s desires and beliefs and is about the conditions under which one can plausi- compromised either when an agent is coerced bly say that freedom is violated. The adherents of into doing an act by some other agent or if she freedom as noninterference claim that freedom is suffers from some mental disease, deficiency, or undermined in the case of the actual interference disturbance that makes her incapable of recogniz- into a subject’s sphere of choices, whereas the ing the significance of her act and/or controlling adherents of freedom as non-domination claim her conduct). This controversy, essential for the that the very possibility of interference, i.e., poten- philosophy of criminal law (and more specifically, tial interference with an agent’s sphere of choices, for the question about the conditions of moral and constitutes a diminution of her freedom (Pettit legal responsibility), will not be a focus of this 1996, 1997). article. Its focus will be freedom as a value, i.e., # Springer Science+Business Media B.V. 2017 M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy, DOI 10.1007/978-94-007-6730-0_234-1 2 Legal Values: Freedom The famous formulation of freedom as non- distinction with a master-slave scenario: the interference (negative freedom) comes from Isa- slave may have a benignant master who does not iah Berlin who claimed that being free is interfere with his activities. For the proponents of equivalent to enjoying a state of lack of coercion, freedom as noninterference, this alone would be i.e., “the deliberate interference of other human sufficient to claim that slave’s freedom is not beings within the area in which I could otherwise compromised. However, the master could alter act” (Berlin 2000: 194). Interference, if thus his conduct and interfere with slave’s affairs on understood, is a deliberate encroachment aimed an arbitrary basis and with impunity. This state of at worsening a subject’s situation of choice. This being at the mercy of the other person is tanta- manner of thinking about freedom can be, in gen- mount to unfreedom according to the adherents of eral, attributed to the representatives of the liberal freedom as non-domination (Pettit 1997:22–23). tradition (e.g., Hobbes, Locke, Mill, or von In this point, freedom as non-domination proves Hayek). For instance, in Thomas Hobbes’s formu- to be a wider or stronger ideal than freedom as lation, a free man is the one who can act in accor- noninterference, as it implies that liberty is dance with his wit or strength without compromised not only by actual but also by impediments (Hobbes 1996: 146). In a likewise potential interference. However, saying that free- manner, Friedrich August von Hayek defines free- dom as non-domination is an extension or dom as the absence of coercion, where coercion is strengthening of freedom as noninterference understood as a state “when one man’s actions are would not be fully apt, since, as is emphasized made to serve another man’s will, not for his own by Pettit, acts of interference are not regarded by but for other’s purpose” (Hayek 2011: 199). the adherents of freedom of non-domination as Needless to say, the acceptance of the conception infringements thereof unless they have a dominat- of freedom as noninterference does not entail the ing character. It should be noted that if, as the support for the unlimited sphere of this freedom. republicans claim, unfreedom of an agent is cor- Maximal negative freedom, i.e., unrestrained by related with the other agent’s (who may be an any external (e.g., legal) regulations, would turn individual but also institutions) capacity to exer- into its opposite – a state of minimal negative cise arbitrary power over her sphere of choices, freedom in which all could interfere with one the question arises as to the means by which another’s choices without impediment. Thus, freedom as non-domination can be secured. The although the supporters of negative freedom con- republicans assert that freedom as non- sider legal and political institutions as a limitation domination can be most effectively secured by of liberty, they acknowledge its necessity. properly designed legal and political institutions, The supporters of freedom as non-domination i.e., based on such measures as the separation of draw attention to the insufficiency of freedom as powers, checks and balances, or the rule of law. noninterference. Although the idea of non- These measures minimize political domination, domination has been thoroughly examined and i.e., domination in the sphere of relations between developed in Philip Pettit’s works, it is not a the citizens and the state. However, as is empha- contemporary conception (Pettit 1997). sized in the more contemporary works in the According to Pettit, equating freedom with non- republican tradition, for freedom as non- domination is a trademark of republican political domination to be fully realized, also social domi- thinkers, such as Machiavelli, Harrington, or nation, i.e., domination in the social relations, Montesquieu. The republicans oppose freedom must be diminished. Social domination results to domination, i.e., a state of arbitrary interfer- from the glaring inequalities in social and eco- ence of one party into the affairs of another under- nomic status. Thus, contemporary supporters of taken at will and with impunity, where non-domination acknowledge that fulfilling this arbitrariness is understood as the lack of “refer- ideal requires certain means of promoting per- ence to the interests, or the opinions, of those sonal independence and economic prosperity affected” (Pettit 1997: 55). Pettit illustrates the (Pettit 1997: 158–165). For instance, according Legal Values: Freedom 3 to Frank Lovett, non-domination demands some foreign governments; in voting laws; in pronounc- form of distributive justice, e.g., guaranteeing for ing judgments; in examining the accounts, the each citizen unconditional basic income (Lovett acts, the stewardship of the magistrates; in calling 2009). them to appear in front of the assembled people, in It is worth noting at the end of this section that, accusing, condemning or absolving them” at the general level, there exists no fundamental (Constant 1988: 311). Thus, ancient political free- disparity between the approaches to law by the dom encompassed an extensive bundle of political supporters of freedom as noninterference and the rights. However, such conception could not be supporters of freedom of non-domination. Both sustained in the modern and contemporary era would agree in the crucial point, namely, that law due to the transformations in the sociopolitical is effective in realizing the type of freedom they conditions, e.g., to the emergence of mass socie- adhere to. However, some subtle differences exist ties. For this reason, the idea of direct participation between them. Firstly, while the former claim that of all citizens in governance has been replaced by law, although effective in securing a possibly the support for representation (among contempo- large amount of negative freedom, constitutes rary philosophers, it was Hannah Arendt (1958) nonetheless its infringement, the latter do not who – despite certain reservations – supported the definitionally oppose law and freedom and ideal of wide political participation in the public thereby do not depict being under the protective realm). Moreover, the support for the ideal of legal and political institutions as a form of a lim- representation stemmed from disbelief that the itation of freedom as non-domination. Secondly, majority could make reasonable decisions and while the former assume that law is an effective from the fear of what Alexis de Tocqueville but not necessary way of generating a possibly labeled as “the tyranny of the majority,” taking large sphere of negative freedom, the latter (given place when the majority of citizens forces its their claim about the definitional connection demands upon minority without taking into con- between law and freedom) assert that law is a sideration (or even at the expense of) its needs and necessary means for realizing freedom as interests (Tocqueville 2000: 239–241).
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