Beyond the Freedom of the Void
The liberal tradition is centrally concerned with liberty. But the different currents within liberal thought naturally differ in their conceptions of freedom. (I take freedom and liberty to be synonyms and will use both interchangeably.) One of the most common distinctions drawn is between negative freedom and positive freedom. In this essay I will argue that this basic division between positive and negative freedom is conceptually clarifying but perilous. The boundaries between positive and negative freedom are vague upon close examination, and both mutually depend on the other. The liberal concern with freedom must include positive as well as negative liberties.
Negative freedoms are freedoms from interference by others. A negative freedom, like freedom from violence or freedom from theft, imposes a direct obligation on others to refrain from some action (don’t hurt, don’t steal). Positive freedom refers to the actual ability to act or choose among a set of viable options. A related idea is the distinction between negative and positive rights. Negative rights and negative freedoms are roughly interchangeable; to enjoy negative freedom is to have your negative rights respected. Positive rights are entitlements to certain goods or services. They impose obligations on others to provide those goods or services. Positive rights are one of the building blocks of positive freedom.
One of the principal differences between progressives and libertarians is their differential emphases on one or the other kind of freedom. Progressives affirm negative freedoms but they tend to place much more importance on positive freedom, and especially positive rights, which are understood to meet basic needs and form the foundation of positive freedom. New Deal style freedoms like freedom from want, from hunger, and from ignorance really describe positive rights. Libertarians by contrast often deny that positive freedom is a valid kind of freedom, or that positive rights are really rights at all. Some do affirm the importance of positive freedom, but believe it is best secured by focusing solely on defending negative freedoms.
The basic libertarian argument against positive rights is superficially plausible. Negative rights impose obligations on specific persons. Namely, each person must refrain from, say, inflicting physical harm on another person. Obligations are much vaguer when it comes to positive freedoms. Who specifically must provide food to the undernourished? Or clothes and shelter to the exposed? Or education to the ignorant? Or love and comfort to the fearful and anxious? The answer is often presumably the government (sometimes even for love and comfort). Libertarians then contend that government provision of such services must involve impinging on negative liberties, as well as in many cases (such as determining public education curricula) compromising state neutrality with respect to citizens’ religious and philosophical beliefs.
Positive rights are of little value without negative liberties in an obvious way. Without rights to life and basic freedoms, an individual can’t make use of whatever positive liberties they have. Shelter and education offer little value if the individual is subject to arbitrary violence or if their projects and life plans are subject to capricious interference. Well-nourished and protected slaves lack agency, and thus are deprived of a central feature of the human experience. Feminists speak of the gilded cage: even women of the upper classes who to all outward appearances enjoy lavish, pampered lifestyles fail to achieve authentic flourishing, which includes agency and self-determination.
Negative freedoms also depend on positive rights. Freedom from interference, as it is actually cashed out in the real world of human beings living in society, requires positive actions from other people.
Consider the most basic negative right: freedom from violence. If Cain strikes Abel (all else equal), he thereby violates Abel’s right to be free from violence. What comes next? Abel presumably wishes to be made whole in some way. He could seek vengeance personally, but not if he’s dead, incapacitated, or just generally weaker than Cain. In any environment more socialized than a private war of all against all, Abel will require positive actions from his fellows to be able to expect redress with any confidence. Other people in society must perform policing activities like investigating and apprehending criminal suspects, public security, fairly assessing damages, as well as adopting norms like shaming offenders.
But let’s not forget about Cain, who could be unjustly accused. Cain also requires the participation of his neighbors in receiving a fair and speedy trial and not suffering grossly disproportionate punishment. A fair trial involves judges, jurors, and often the option of publicly provided legal counsel, because Cain shouldn’t suffer from incompetent counsel or no counsel at all merely because he lacks financial means.
The dependence on the actions and commitments of other people deepens as we move along to other institutions associated with negative liberty-focused worldviews. Erstwhile Cato Institute scholar Brink Lindsey presents a thorough and compelling case that even a hardcore libertarian framework leaves many open-ended questions about how particular rights should be protected in his essay, “The Poverty of Natural Rights Libertarianism”.
The tradeoff between security of rights and freedom of action can also be seen as a conflict of rights: the right to secure and unmolested possession of one’s property, on the one hand, and the right to make active and productive use of one’s property on the other. Both, of course, are part of the bundle of rights that come with ownership of property, but these rights frequently come into collision. Resolving the conflicts requires value judgments about the relative importance of these two elements of the bundle.
These conflicts arise regularly with respect to issues of liability – that is, when the question is whether rights are being violated. For example, consider nuisances – unwelcome matter, noise, or light coming from someone else’s property. At what point do these physical trespasses (of effluents, sound waves, or photons) become legally actionable? If the threshold is set low enough, landowners will be highly constrained in what they can do on their property. Indeed, under an entirely plausible reading of nuisance law, industrial civilization would be basically impossible – imagine if any polluting activity, no matter how trivial the external effects, could be enjoined. Meanwhile, if the threshold is set high enough, landowners will be highly vulnerable to noxious and dangerous interference from their neighbors.
Even within a purely libertarian society, there’s a multiplicity of plausible ways to interpret and implement negative rights, leading to inevitable disagreements. Adjudicating these disagreements requires some form of collective decision-making and thus politics, which requires its own set of institutions. Determining and coordinating on the parameters both of the first order negative rights definitions and the second order political procedures requires positive actions of other people that go far beyond mere non-interference; collectively these actions provide vital services for the individual. Enjoying the environment of stable rules that results from functioning, well-designed political institutions is clearly a form of positive liberty, the capability to participate in such political institutions even more so.
Positive rights as rights to effective institutions
Freedom from violence, freedom from arbitrary punishment, and property rights* are fundamental negative freedoms, yet they require some provision (somehow) of positive actions by third parties. That is, they require a kind of positive right. At this point I make no claim about how these positive rights are provided. Perhaps they can be adequately provided by clan-based societies or worker communes in addition to liberal democracies. Whatever the form of government or structure of society, there must be institutions that provide these positive rights if individuals are to be genuinely secure in their negative liberties.
This agnosticism about the source of provision is important. I want to stress that positive rights can usefully be seen as rights to access to effective institutions. This allows us to acknowledge the necessity of positive rights without getting bogged down in precisely matching specific positive rights recipients to specific providers. Lacking such specificity may appear to undermine the status of positive rights as genuine rights, which must – one might think – be guaranteed. But this is just another song of the siren of idealism. Virtually everyone agrees negative rights deserve to be guaranteed, yet such guarantees are only ever imperfect, in part because they come in the form of imperfect human institutions (and human natures).
Health care is a common stage for arguments on positive rights, with progressives looking to the obvious need everyone has for healthcare while libertarians point to the ethical problems involved in – ultimately, if all else fails – compelling doctors to provide their services and paying for them with taxes obtained by coercion. But much of the plausibility of the libertarian case against healthcare-as-a-right owes to politically contingent features of the American healthcare industry. Costs and other basic details of the industry are impenetrable to consumers. Healthcare is contorted by its unnecessary fee-for-service design (with its poor incentives) and a perverse link to employment status. Medical care and pharmaceuticals seem to be one area where innovation leads to continually increasing costs with only uncertain improvements to health outcomes. Many individuals don’t have easy access to adequate healthcare services for political and policy-related reasons. (One need merely look at better healthcare outcomes in comparable nations to confirm this assessment.) Entirely reasonable, responsible individuals may yet struggle to secure adequate healthcare, and risk medical bankruptcy when they cannot. On the access-to-institutions view, their rights to healthcare are infringed.
Compare healthcare to the right to adequate nutrition (or freedom from malnourishment). In developed countries, well-functioning markets provide nearly every reasonably responsible and reasonably lucky person with access to adequate nutrition, and nutritional assistance programs (like food stamps and subsidized school meals) are simple adjustments to improve the normally pretty effective market institution. On the institutional view, because the vast majority of people who aren’t in exotic circumstances have straightforward pathways to attaining adequate nutrition, we can reasonably declare their rights to adequate nutrition are respected. Though they are more diffuse and indirect, the obligations generated by positive rights are no less real than those generated by negative rights.
The point of freedom
The realization that even negative liberties depend on institutions – social constellations of positive rights relations – lends greater credence to progressive understandings of freedom. Libertarians believe the point of freedom is to maximize the capability of the individual to choose their involvements with other people, even to the point of being totally free from interference by others. But this is the freedom of the void, and it is alien to the social, highly dependent, and institutionally mediated lives of real human beings. We are born to unchosen parents in unchosen lands that dramatically shape how we understand the world, how we relate to others, and the opportunities we enjoy. We are dependant upon others for the first several formative years of our lives, before we can even conceive of what it means to interfere with others. And our dependence only evolves, rather than diminishes, throughout our lives. Even at the height of our individual powers, we depend on others to behave in expected ways, to respect norms and to participate relatively predictably in an extended order of distributed labor and intersubjective value. And then of course the luckiest among us once again experience some years of banal dependence before our deaths.
Our lives are simply too suffused with interference for the freedom from interference to be a useful defining limit in our theories of freedom. Our lives are so deeply socially embedded that the ability to choose involvements with others makes little sense as a value to maximize. We have too many unchosen yet deeply meaningful involvements and derive massive benefit from distant and indirect involvements about which we’re mostly blissfully unaware, especially in a modern open economy.
We have to think imaginatively about what a freedom appropriate for human beings comprises. We are subject to the contingencies of evolutionary history, subjecting us to tribal and hierarchical impulses, in addition to other embarrassing behavioral foibles. We are embodied, dependent on others for physical care, and ultimately mortal. And we are socially embedded, such that our understandings both of the external world and the good life are inked and textured by the well of available cultural meanings; our most important desires and projects almost always reference our relations to others, whether to impress, win favor, pay back, or dominate. Even our reason is socially scaffolded. Yet we are also indubitably distinct individuals with private narratives, desires, ambitions, and moral powers, who experience pleasures and pains in uniquely separate ways.
A truly human freedom must be a freedom contingent on all these features, one dynamic to our developmental trajectories and sensitive to the physical and psychological components of individual well-being. Positive freedom, and its constituent positive rights to the social and physical necessities of human life, is an essential complement of negative freedom. Freedom from interference has its place, but only from arbitrary interferences unjustified from other considerations of genuine freedom, plural and complex. A free and equal human being is one whose basic needs have been met and whose agency has been cultivated by a healthy social environment to be able to develop and pursue their own life plans in a responsible manner.
This is an ideal, and the obvious risk is that we declare individuals somehow unfit for freedom because they have failed to enjoy a luxurious upbringing and other blessed environmental circumstances. But we can explore doubts about the genuine agency of others with sympathy while at the same time recognizing that sometimes the very act of respecting by default the genuine agency of others goes some way toward enhancing that same agency.
These considerations do not justify a thoroughgoing paternalism. Such paternalism both makes heroic assumptions about the character of the paternalists and transparently leads to its own kind of unfreedom. The point is to secure the social and environmental conditions for genuine freedom to prosper in all its complexity. The plural values of this kind of freedom in a world of scarcity imply inevitable trade-offs. And the complex adaptive nature of human society – with all the attendant biases, incentives, cultural and social forces, and peculiar personalities involved – testify powerfully against any ability to prescribe singular antidotes to human unfreedom. Still, recognizing that freedom for humans is a social kind of freedom is a critical first step in a long and tortuous path of progress.
This path proceeds through institutions, which have the advantage of already existing with some degree of stability, however imperfect they may be. This avoids the pitfalls of radically novel design problems. A more expansive understanding of human freedom gives us a compass for reform. The philosopher John Tomasi, in his book Free Market Fairness, suggests a normative compass for regimes as a whole:
Liberal justice requires that we ask of any regime: does this regime create the social conditions in which all citizens, viewed as individuals, can exercise and develop the moral powers they have as citizens: the capacity for responsible self-authorship, and the capacity to also respect the self-authoring capacity of their fellow citizens? [p.113]
But we can modify this for individual institutions, whether they are governmental bodies or cultural norms. Does this institutional feature foster the social conditions in which all persons can exercise and develop a truly human freedom, consistent with similar freedom of others? And how can we work toward tweaking this institution to better realize human potential?
* Property rights are usually understood as negative rights, but they can also be construed as positive liberties. In her book Private Government, the philosopher Elizabeth Anderson points out that “If Lalitha has private property in a parcel of land, her liberty over that parcel is secured by an exclusive right at the cost of the identical negative liberty of seven billion others over that parcel.” [p. 46, emphasis in original.]
Featured image is Roosevelt signing the Social Security Act.
