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Legal Values: 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 or can be free only in the sense of freedom from compulsion). One can Introduction distinguish four types of freedom as , 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 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- 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 , 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 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 ’s formu- to be a wider or stronger than freedom as lation, a free man is the one who can act in accor- noninterference, as it implies that 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 . 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, . 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 , e.g., guaranteeing for ing judgments; in examining the accounts, the each citizen unconditional basic income (Lovett acts, the 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 . 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 (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 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). For this non-domination. reason, in the contemporary times, political free- dom is mainly associated with the participation in electing political representatives and participating Political Freedom in other direct forms of political decision-making (such as referendums). Participation in certain The notion of freedom as non-domination draws forms of expressing political convictions, such attention to the connection between freedom and as manifestations, is also a form of political free- (viz., that liberty requires protective legal dom (although it is at the same time an individual and political institutions), but it does not exhaust right). Political freedom thus understood is one of all of the possibilities of achieving liberty through the chief democratic values, partly due to its close politics. Political freedom in a stricter sense is relationship with the abovementioned concep- associated with political action, i.e., a possibility tions of freedom, viz., noninterference and non- to participate in governance. The conception of domination. Expressing political attitudes and political freedom thus understood can be broader participating in public governance can be one of or narrower depending on the scope of participa- the means of securing both kinds of freedom, as in tion in the political life of community. The broad public participation and deliberation citizens man- conception of political freedom is characteristic ifest their and dissent toward legal author- for the ancient Athenian model of politics. The ities and express their opinions as to legal ancient liberty “consisted in exercising collec- regulations, thereby setting the boundaries for tively, but directly, several parts of the complete the legal intervention in social life. However, the ; in deliberating, in the public square, supporters of the theory of non-domination attach over war and peace; in forming alliances with the greater value to the institutional safeguards to 4 Legal Values: Freedom freedom than the supporters of freedom as non- political value, many thinkers question the impor- interference, although, as it should be empha- tance of positive freedom in legal-political sphere. sized, both the former and the latter are skeptical These two differences deserve a closer analysis. toward a broad (Athenian) model of political free- The concept of positive freedom is notoriously dom (their skepticism stems mainly from their unclear: its definition –“being a true master of fear of the tyranny of the majority). It should not oneself” or “governing oneself”–says very little be thought, however, that there exists some fun- besides indicating that it refers to an internal state damental disparity between political freedom, on of an agent. Accordingly, it needs to be developed one hand, and negative freedom and freedom as by stating what “governing itself” exactly consists non-domination on the other. They cannot be rec- in. It is worth presenting (in very broad outline) onciled only if political freedom is understood in a the main accounts (conceptions) of positive free- radical way – as enabling the citizens to make any dom proposed in the philosophical literature. The political decisions, i.e., if political freedom is first account, which can be dubbed “Socratic,” unrestrained by individual, inviolable rights. says that an agent is positively free only if her beliefs – regarding herself as well as the external world – are true beliefs. It follows from this Positive Freedom account (among other things) that a positively free agent will not be prone to self-deception. Positive freedom is one of two concepts of free- The second account, which comes from , dom (the other being negative freedom, i.e., free- says that an agent is positively free only if her dom as noninterference) analyzed by reason controls her passions. This account does in his famous essay Two Concepts of Liberty. The not require that our passions – the spirited intuition that stands behind the distinction (thumoeides) and the appetitive (épithumêtikon) between negative and positive freedom (the dis- part of our soul – should be extinguished but only tinction deeply embedded in the history of West- that they should be controlled by reason – the ern philosophy and thereby not invented by rational (logistikon) part of our soul. The third Berlin) is that we can use the term “freedom” to account, formulated by Stoics, says that an agent describe two markedly different phenomena: is positively free only if she has reached the state either a situation which is external to an agent or of apátheia, i.e., if she has extinguished her pas- an internal state of an agent. In the former case, by sions and, thereby, as was emphasized especially saying that an agent is free, we mean that she by Epictetus, is not attached to things which are would not encounter external (i.e., imposed by not dependent “on us.” A Stoic sage who has other persons) constraints if she wanted to act on reached this state manifests amor fati: she does various desires (those desires which she actually not want to change the course of events that hap- has and which she could have as a human being). pen to her but accepts it as good. The fourth In the latter case, by saying that an agent is free, account – Epicurean – implies that an agent is we mean that she “governs herself” or is a “true positively free only if her desires are limited to master of herself.” There are two interesting dif- those which are natural and necessary; according ferences between these two concepts. The first one to this account, the widening of the scope of one’s concerns the degree of their clarity: the concept of desires must lead to an inner enslavement. The negative freedom is clear and thereby needs no fifth account – developed by St. Augustine and explication, whereas the concept of positive free- other thinkers from the Christian tradition – dom is notoriously unclear and thereby needs an assumes an agent is free only if she makes morally explication (and, consequently, one can formulate proper choices (an man is therefore by defi- various conceptions of positive freedom). The nition positively unfree). The sixth account – second one concerns their cogency as a legal- Nietzschean – says that an agent is positively political value: whereas negative freedom is com- free only if she is not a “reactive person,” i.e., if monly accepted as an uncontroversial legal- she is free from ressentiment. The seventh account Legal Values: Freedom 5

(which can be called “procedural”) asserts that an safeguards her negative freedom, it refers at the agent is positively free only if her goals – values to same time to an external situation of an agent and, be realized by her – have been formed in the in a sense, to his internal state (i.e., to the feeling process not based on manipulation, pressure, of security – which arises from awarding her a ignorance, deceit, etc. The eighth account, which legally guaranteed status – that the sphere of her can be called “axiological,” says that an agent is negative freedom will not be arbitrarily curtailed). positively free only if her goals – values to be Regarding the second difference between neg- realized by her – are of special kind: they are ative freedom and positive freedom, negative high values. Three additional remarks seem to be freedom, as was already mentioned, is commonly in order here. Firstly, none of these accounts, accepted as an uncontroversial legal-political when considered in isolation, seems to reflect the value, though it is widely discussed how broad whole richness of the phenomenon of positive the sphere of negative freedom ought to be. The freedom; in order to build a concept of positive views proposed in this controversy (which is in freedom which would fully reflect this phenome- fact a controversy about the limits of legal inter- non, one must arguably combine at least some of vention in social life) range from the strongly the above – partial – accounts (which, with per- liberal (which assume ’s “harm haps some exceptions, are not mutually exclu- ”) to the strongly moralistic and paternal- sive). Secondly, as was mentioned in section istic (which assume that the law, apart from pre- “Political Freedom,” called venting harm to others, may enforce also those political freedom “the freedom of the ancients.” moral norms which do not concern interpersonal It seems, however, that this view should be qual- relations and interfere with the freedom of an ified: given that the most influential and, perhaps, autonomous agent without her consent if the also most mature conceptions of positive freedom agent’s welfare is thereby increased or protected were formulated by the ancient philosophers and from decreasing). It is worth mentioning in this that this concept of freedom was the main object context that the strongly liberal views, i.e., those of their theoretical reflection, one could just as which imply that limitations of negative freedom well argue that it is positive freedom that can be can be justified only if they in fact lead to the most aptly called “the freedom of the ancients” increase of the amount of negative freedom in (or that there are two “ of the ancients” society, can be of two different types. Within one that can be justifiably opposed to the “freedom of type, negative freedom is considered to be an the modern”). Thirdly, the concept of negative instrumental value, subservient to some intrinsic freedom is clear, though, as was mentioned in value; within the other, negative freedom is section “Freedom as Noninterference (Negative assumed to be an intrinsic value, that is, worthy Freedom) and Freedom as Non-domination,” it of pursing for itself. The most famous representa- is not quite certain what exactly is its relations tive of the former view was John Stuart Mill who with the concept of freedom as non-domination. assumed that negative freedom derives its value One can supplement the analysis of these relations from the fact that it contributes to the maximiza- conducted in section “Freedom as Non- tion of utility, which he believed to be an intrinsic interference (Negative Freedom) and Freedom as value. The latter view was most fully developed Non-domination” by noting that while negative by who rejected any other ground freedom unambiguously refers to an external sit- for the state coercion than the protection of nega- uation of agent (describes, to put it metaphori- tive freedom, which he called “the only inner cally, her “breathing space”) and positive right” and defined as “independence from being freedom unambiguously refers to an internal constrained by another’s choice, insofar as it can state of an agent, freedom as non-domination coexist with the freedom of every other in accor- transcends or rather cuts across the distinction dance with a universal law” (Kant 1996: 30). He “external situation-internal state”: since it is a emphatically opposed those who believed that the legally guaranteed status of an individual which state is justified in imposing any particular 6 Legal Values: Freedom conception of on citizens; he stressed Conclusions that any attempt at such an imposition would amount to treating them as children, infringe At the end, it is worth pointing at the conceptual upon their negative freedom, and constitute an relations between law and various kinds of free- offense to their “transcendental freedom,” i.e., dom distinguished in this article. Negative free- free will (in which the value of negative freedom dom and positive freedom, unlike freedom as non- is ultimately embedded). Positive freedom, in domination and political freedom, are conceptu- contradistinction to negative freedom, is contro- ally independent on law, i.e., in their definitions, versial as a legal-political value. According to no reference is made to law. This implies, of Isaiah Berlin’s famous claim, it can be used by course, that they need not be necessarily realized the authorities to justify the imposition of consid- by means of law. It remains the fact, though, that erable limitations on citizens’ negative freedom. law is arguably the most effective means of real- The justification might proceed in the following izing negative freedom even if at the same time it way: since the citizens cannot achieve by their constitutes, according to the adherents of negative own efforts the level of their “true or noumenal freedom, infringement thereof (they admit, how- selves” and thereby cannot be “true masters of ever, that, on balance, however, law may cause themselves,” they must be deprived of those and usually causes a “net gain” of negative free- options which are likely to be selected by their dom). Thus, realized (i.e., legally guaranteed) “empirical selves.” However, Berlin’s argument negative freedom is equivalent to freedom as that the concept positive freedom could be easily non-domination, though, as was mentioned in used to justify encroachments into the sphere of section “Freedom as Noninterference (Negative citizens’ negative freedom seems to be valid only Freedom) and Freedom as Non-domination,” the with reference to some accounts of positive free- phrase “legally guaranteed negative freedom” is dom, namely, those that imply some form of the not a fully adequate definition of freedom as non- distinction between the “true or noumenal self” domination. The problem of the factual relations and “the empirical self,” not with reference to all between positive freedom and law is much more accounts of positive freedom. For instance, the complex: it is neither clear whether positive free- account of positive freedom which requires that dom can at all be realized or favored by law nor agents select their goals – values to be realized by whether, if it could, such a realization would be them – as a result of their autonomous delibera- desirable (given Berlin’s misgivings about the tions, i.e., deliberations pursued in the absence of threat that positive freedom, when appealed to any external coercion, can hardly be invoked by by politicians, may constitute a threat to negative the authorities to justify the curtailment of the liberty). sphere of negative freedom. But it must be admit- ted that even if positive freedom was to be regarded as a non-dangerous political ideal, it is Cross-References hard to imagine how it could be effectively real- ized or promoted by the state. Moreover, and more ▶ Human Right to importantly, one may argue that it is not possible ▶ Isaiah Berlin to reconcile liberalism (which assumes that the ▶ Nietzche and the Law state should not support any conception of good ▶ Philip Pettit life but, rather, should create conditions for devel- ▶ Rule of Law: Historical (Theoretical) oping various conceptions of good life) with the Perspectives suggestion that the state should pursue the ideal of ▶ Rule of Law: Philosophical Perspectives positive freedom – one of many (even if, for some ▶ people, especially attractive) conceptions of good life. Legal Values: Freedom 7

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