Negative Liberty Requires Positive Liberty

Image credit

Having commented on a post relating to positive and negative freedom in Liberty Demands a Strong State - The Role of Capabilities, I re-post below a discussion of the subject that I have written more than three years ago in 2015:

In Negative Liberty and Positive Liberty (1/2) I propose:

It is an infelicitous move by liberals to place negative liberty at the front-line of their case for freedom.

Not all do - Kant and Mill did not - but many, including Hayek and most libertarians today do.

Its validity as a vital test criterion for policy implications notwithstanding, the perspective suggested by negative liberty throws into darkness swaths of issues that constitute the most urgent concerns of real human beings and their political representatives. It is a conceit to think that the logic of negative liberty suffices to define such a concept of "the good society" as is likely to be consistently pursued by real human beings.

Try to solve the immigration debate by applying the logic of negative liberty. Allow open immigration and there will be substantial discomfort somewhere in society, with its blow-back of political agitation, and social and economic upheaval, academic perplexity and hubris. Restrict immigration and the same effect will make itself felt in a different variant. Outside of the lecture theatre, we will be called upon to patch up the problems with a lot of action that belongs in the pigeon-hole of positive liberty.

The advocate of negative liberty places values in the weighing pan that embody wisdom we ignore at our peril; but there are other values to be accommodated as well.

The Precedence of Positive Liberty over Negative Liberty

Regardless of the libertarian preference for negative liberty, a society based on nothing but "do nots" is not possible.

While negative liberty may be highlighted as an important feature of freedom in the real world for purposes of conceptual analysis and political deliberation, from a different vantage point, we discover that workable prohibitions - the workhorse of negative liberty - require us to enlist all kinds of entitlements and empowerments that belong to the sphere of positive liberty.

Before rights can be defended, there must be procedures in place or - more broadly - acts performed that represent positive liberty and establish by fiat or single-handed deed the entitlements that constitute rights and the institutions of empowerment that ensure protection of the rights.

Liberty and Coercion

Identifying the demarcation line between negative and positive liberty is closely related to the question of legitimate coercion.

A regime of negative liberty is held by its proponents to be one of non-problematic coercion. But they are facing a nested set of difficulties.

The so-called principle of non-aggression postulates that coercion is legitimate only if exerted in reaction to the violation of the rights protected by negative liberty. This leaves unanswered a number of central questions.

Firstly, who is entitled to define the rights of negative liberty, and how are they to be practically arrived at?

Secondly, is it possible to arrive at these rights without coercion incompatible with negative liberty, or put differently: can we establish rights by "do nots" alone?

Could the differences between the Federalists and Anti-Federalists be resolved by acts entirely enclosed within the framework of "do nots"?

Thirdly, is it possible to define rights that do not entail an unequal distribution of (effective rights to or states of) coercion among the the law's subjects?

Red Cedars and Apple Trees

The negative liberty that protects my neighbour's apple trees and my red cedars from mutual encroachment may not rarely contain at least a latent distribution of unequal coercive power or a positive liberty that extends only to one of the two parties.

If my red cedars spread a tree disease to my neighbour's apple trees, it becomes clear that under continued non-intervention, I have a right to do something adequate for my purposes - to keep my trees intact while they destroy my neighbour's trees - while my neighbour does not have a right to do something adequate for his purposes - to destroy the disease's source, the assailant of his trees. I may attack his trees, but he is not entitled to attack my trees.

We have a situation of unilateral privilege of coercion - whether we do nothing to change the status quo, or weather we create a new option for protection on behalf of the damaged party, in particular, the right to cut my trees.

We see that from a situation of negative liberty there may arise a situation of positive liberty, which latter in a way has always been dormant within the structure of negative liberty to begin with.

See Red Cedars and Apple Trees - The Political Character of the Economic Process.

Moral and Political Scarcity

Mankind lives in a world of moral and political scarcity - meaning: there are lots of issues on which people disagree absolutely. Freedom should neither be conceived of in ignorance of moral and political scarcity, nor should she be assumed to be able to do away with irreconcilable attitudes dividing men.

The Transrational Function of Freedom

The function of freedom is to take political scarcity from its highly explosive original level to another one of lower inflammability, where it is processed for reconciliation. This involves an entire culture and institutional network of compromise, give-and-take, and tiered layers of coercion - by which latter I mean, for instance, taking turns in being able to coerce the other party, as may unfold in elective cycles ("okay, you are coercing me this time, but next time, I will be in the driver's seat,") which may spawn games of relative considerateness, which in turn achieve the transformation of high-tension disagreements into habits of lower-tension coexistence. It substitutes insoluble absolute rational disagreement by a transrational experience of placidity in the presence of divergency. Incidentally, this is what I call the invisible hand of politics. Political participation (democracy) is indispensable for freedom, as it drives the culture of compromise, give-and-take, and tiered layers of coercion, mentioned above.

Relational Freedom: the Tug-of-War between Negative and Positive Freedom

It is impossible to pacify modern society under a regime of freedom without incorporating demands and initiatives of positive freedom into the framework of negative freedom. Both shape one another.

Positive liberty is the force that questions and tries to change the legal and political status quo, negative liberty resists and filters out the challenges that jeopardise robust conditions of freedom.

Zooming into full vision of society, we may state that the end product of freedom is the simultaneous presence of personal autonomy, peace and productivity - realised among hundred of millions of people related to one another in this way, without personal acquaintance. The marvel of a free society cannot be attained by insisting - to the exclusion of the other - either on negative liberty or on positive liberty.

Naturally, as the initiating force bent on transformation, even iconoclasm, positive liberty will always be a step ahead of negative liberty. However, as protector of the resourceful and inventing individual, negative freedom remains ultimately the mainspring of positive liberty and its demands for change in human society. And, of course, it should not be forgotten that within the confines of negative liberty plenty of change and advance is brought about.

Posted by Georg Thomas on 06/05/2015 at 12:40 PM in Congress, Constitution, Georg Thomas, Liberty Laid Bare, Pure Politics, Social Philosophy, Supreme Court, Taxes and Spending |