This volume of essays by one of America's preeminent philosophers in the area of jurisprudence and moral philosophy gathers together fourteen papers that had been published in widely scattered and not readily accessible sources. All of the essays deal with the political ideals of liberty and justice or with hard cases for the application of the concept of a right.
Originally published in 1980.
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Rights, Justice, and the Bounds of Liberty
Essays in Social Philosophy
By Joel Feinberg
PRINCETON UNIVERSITY PRESSCopyright © 1980 Princeton University Press
All rights reserved.
The Idea of a Free Man
Professor Peters's admirable essay has two primary aims: (1) to articulate more clearly a widely prized ideal of character and (2) to consider how that particular personal excellence can be 'learned,' or at least fostered by a certain kind of institutional environment. The character trait in question is one that shares the glittering name of 'freedom' with a puzzling variety of other things that are not virtues of character, among them, a certain class of institutional arrangements and control systems. By analyzing the ideal of the free man, on the one hand, and the nature of a free social system, on the other, Peters hoped to be in a better position to illuminate the connection between the two in a way that will be useful for the purposes of educational policy and congruent with the results of psychological learning theory. I think that these purposes of Peters's have been largely achieved by his essay, and therefore I will restrict my comments to a related topic that he had to pass over.
When Peters writes that an examination of 'what is meant by "freedom" in a social context, like that of a school, and what is meant by a "free man,"' can lead to 'some suggestions ... about the connection between the two,' he has in mind a connection of an instrumental kind. He is concerned to tell us how a free institutional environment can help bring about freedom as a trait of individual character. My intention is to complement his essay by considering the conceptual, rather than the instrumental, connection between the two kinds of freedom. I shall proceed by surveying the various things we might mean when we say of an individual person that he is free.
I Free from ... and free to ...
'He is free' might, first of all, be an elliptical expression of a singular judgment that someone is, happily, without impediment or constraint to a desire that he has or might have to do, or omit, or be, or have something in particular. It is useful to interpret these singular judgments in terms of a single analytic pattern with three blanks in it:
———— is free from ———— to do (or omit, or be, or have) ————
Sometimes it is perfectly clear from the context whose freedom is under discussion. On other occasions, especially when we talk grandly about 'economic' or 'religious' freedom, relying on the adjective in the absence of any names or pronouns, the first blank in the schema will have to be filled in for the sake of clarity and the prevention of equivocation. On other occasions the speaker will be quite clear in his own mind what the subject of his assertion is free to do, but will be quite vague about what constraint he is now free from. Perhaps all he means to convey in his enthusiasm is that nothing now prevents him from doing X, in which case the whole intended emphasis of his remark is on the new option now open to him, and no specific descriptions of missing constraints are necessary to fill out his meaning. If, however, the X in question is something most of us are normally free to do anyway, we may be puzzled by the speaker's remark until he specifies more narrowly which constraint to his desire to do X, formerly present, has now been removed. But when this puzzlement does not arise, no description of specific missing constraints is required for clarity.
On other occasions, the primary or exclusive emphasis of a speaker's assertion of freedom may rest on a specific missing constraint. He may, for example, claim to 'be free' simply because one hated barrier to a given desire has been lifted, even when other barriers to that very same desire admittedly still remain. In that case, all of the emphasis of his remark is on the removed constraint, and his newly asserted freedom does not imply that he can yet do any more than he formerly could. He is free from one barrier to his doing X, and that may seem to be blessed relief from an oppressive burden, but he may still be unable to do X. In an extreme limiting case, a speaker may have no concern with future actions whatever, and the existence of new alternatives for choice may be no part of his intended meaning when he asserts that he is free from C. He may be exclusively preoccupied with the removal of some odious condition quite apart from any effect that removal might have on his other desires or options. He may simply hate his chains and conceive his 'freedom' to consist entirely in their removal. In this not uncommon limiting case, freedom from ... implies no new freedom to ... other than the freedom to be without the thing one is said to be free from.
More typically, however, when we use the language of missing-constraint, we imply that there is something we want to do (or might come to want to do) that the constraint prevents us from doing, and that to be free from that constraint is to be able to do that which the constraint prevents us from doing. In the typical case, then, 'freedom from' and 'freedom to' are two sides of the same coin, each involved with the other, and not two radically distinct kinds of freedom, as some writers have suggested. Indeed, it is difficult fully to characterize a given constraint without mentioning the desires it does or can constrain (that is, desires other than the exclusive desire to be relieved of it). The man outside a divorce court who tells us that he is now free (presumably from the woman who was his wife) has not communicated much to us until he specifies which desires he can satisfy now that he could not satisfy when he was married. (It might be very bad public relations on his part to leave this entirely up to our ill-informed imaginations.) Without further specification, we know only that he is now without a wife and quite happy about it; but then, as we have seen, that may be all that he had in mind when he said that he was free.
It has often been said that there are two main concepts, or types, or ideals of freedom, one positive and the other negative, and that ideologies conflict in so far as they employ, or give emphasis to, the one, or the other, or both of them. The writers who have attached great importance to this distinction have often had an important insight, but even when that has been so, their insight can be preserved and expressed with greater economy in terms of the 'single concept' analysis given here. The writers to whom I refer argue that only one of the two allegedly distinct concepts of freedom, namely the 'negative' one, is to be analyzed as the absence of constraints. We may be free of all constraints to our desire to do X, these philosophers maintain, and still not be free to do X. Hence, they conclude, 'positive freedom' (freedom to ...) is something other than the absence of constraint.
This way of making out the distinction between positive and negative freedom will seem plausible, I think, only if the idea of a constraint is artificially limited. In fact, however, two important distinctions between kinds of constraints, each cutting across the other, can be made, and once these distinctions are recognized, the apparent ground for the 'two concept' analysis vanishes. The distinctions I have in mind are between positive and negative constraints and between internal and external constraints. There is no doubting that some constraints are negative — the lack of money, or strength, or skill, or knowledge, can quite effectively prevent a person from doing, or having, or being something he might want. Since these conditions are absences, they are 'negative,' and since they can be preventive causes, they are constraints.
How we make the distinction between 'internal' and 'external' constraints depends, of course, on how we draw the boundaries of the self. If we contract the self sufficiently so that it becomes a dimensionless non-empirical entity, then all causes are external causes. Other narrow conceptions of the self would attribute to its 'inner core' a set of ultimate principles or 'internalized values,' or ultimate ends or desires, and relegate to the merely 'empirical self or even to a world altogether external to the self, all lower-ranked desires, whims, and fancies. If the distinction between internal and external constraints is to be given a political use, however, then perhaps the simplest way of making it out is by means of a merely spatial criterion: external constraints are those that come from outside a person's body-cum-mind, and all other constraints, whether sore muscles, headaches, or refractory 'lower' desires, are internal to him. This would be to use a wide 'total self rather than the specially intimate 'inner core' self in making the distinction.
The two distinctions described above cut across one another creating four categories. There are internal positive constraints such as headaches, obsessive thoughts, and compulsive desires; internal negative constraints such as ignorance, weakness, and deficiencies in talent or skill; external positive constraints such as barred windows, locked doors, and pointed bayonets; and external negative constraints such as lack of money, lack of transportation, and lack of weapons. Freedom from a negative constraint is the absence of an absence, and therefore the presence of some condition that permits a given kind of doing. The presence of such a condition when external to a person is usually called an opportunity, and when internal, an ability. Not every absent condition whose presence would constitute an opportunity or ability, however, is a negative constraint. Only those whose absence constitutes a striking deviation from a norm of expectancy or propriety, or whose absence is in some way an especially important consideration for some practical interest either of the subject or of some later commentator can qualify as constraints.
If only positive factors are counted as constraints, then a pauper might be free of constraints to his (actual or possible) desire to buy a Cadillac, and yet, of course, he is not free to buy a Cadillac. Similarly, if constraints are restricted to external factors, then the chronic alcoholic and the extremely ill man in a fever or a coma are both free from constraints to go about their business, but of course, neither is free to do so. Once we acknowledge, however, that there can be internal and negative constraints, there is no further need to speak of two distinct kinds of freedom, one of which has nothing to do with constraint. A constraint is something — anything — that prevents one from doing something. Therefore, if nothing prevents me from doing X, I am free to do X; and conversely, if I am free to do X, then nothing prevents me from doing X. 'Freedom to' and 'freedom from' are in this way logically linked. Thus, there can be no special 'positive' freedom to which is not also a freedom from.
Still, there is no harm, I suppose, in characterizing 'positive freedom' as the absence of negative constraints, and 'negative freedom' as the absence of positive constraints, provided (1) that both positive and negative freedom are held to be necessary, and equally necessary, to a man's freedom all told (without any adjective), and (2) neither is held to be 'higher' or 'lower' or intrinsically more worth having than the other, and (3) neither is analyzed as totally different in kind from the absence of constraints.
A final distinction between types of constraints can obviate still other difficulties in interpreting singular judgments of the form 'Doe is free to do X.' A speaker might mean by this judgment either of the following:
(i) X is something Doe may do, i.e. something he is permitted (but not required) to do by someone in authority over him, or by moral or legal rules to which he is subject. (Another way of saying all of this is that Doe is at liberty to do X.)
(ii) X is something that Doe can do, i.e. something he is not in fact prevented from doing (or required to do) by coercion (direct or indirect) from others or by other kinds of constraints. (In this kind of case, talk of 'liberty' is not always interchangeable with talk of 'freedom.')
When commands or rules are not effectively enforced a person might well be able to do something that he is not permitted to do. Similarly, a person might be permitted to do something that he is unable to do because he is prevented from doing it by constraints other than rules backed by sanctions. Again, a person might be incapable of doing some act simply because the act is prohibited by commands or rules that are very effectively enforced. In that case, the enforced rule is itself a constraint.
Corresponding to the distinction between what may be done and what can be done is that between two perspectives from which singular freedom-judgments are made, namely, the juridical and the sociological. The former is the perspective of a system of legal or legal-like regulations itself. When I say that no one in New York State is free to play poker for money in his own home, I am simply reciting what the New York legal codes prohibit. My judgment is confirmable or discomfirmable by reference to those codes. In fact, of course, thousands of persons play poker for money in private homes in New York every night with little or no risk of apprehension by the indifferent police. When I speak from the sociological perspective, I might well say that everyone in New York, in effect, is free to play poker if he wishes. This judgment is subject to a different kind of confirming or disconfirming evidence, namely, an account of how effectively a law is enforced by the police, how intimidated poker players actually feel by the law, and how many of them in fact are willing to run the risk of detection and conviction.
From the juridical perspective, what I am free to do in a given case is not a matter of degree. For any given act or omission, either it is permitted or it is not; I am at liberty (entirely) to do it or I am not at liberty to do it at all. There are, of course, more subtle forms of legal control which employ variable constraints that permit talk of 'degrees' of freedom. If there is a $100 tax on conduct of type A and a $500 tax on type B, I am left by authority, in a quite intelligible sense, more free to do A than to do B. In the case of the criminal law, however, and all other regulations that control conduct by enjoining, permitting, and prohibiting, my freedom to do any act is, from the law's point of view, either entire or nonexistent. On the other hand, from the sociological perspective, it is always intelligible to speak of degrees of freedom or unfreedom even of a particular person to do some one given act, and even when that act is unconditionally prohibited by law, if only because the probabilities of being detected and for convicted vary from offense to offense.
Most of us, of course, do not feel free to do acts that are forbidden by rules or authorities that we have accepted, even when there are no effective external hindrances to our doing so and we stand to profit by disobedience. We are constrained from disobedience not by external barriers and threats but by internal inhibitions. Whether the internal constraint is taken to be a restriction of the self's freedom to act depends upon how we model the self, that is, upon which of the elements of the 'total self' we identify most intimately with, upon where in the internal landscape we take ourselves to live. If we are prevented from doing that which, upon reflection, we think is the best thing on the whole to do, by some internal element — an impulse, a craving, a weakened condition, an intense but illicit desire, a neurotic compulsion, or whatever — then the internal inhibitor is treated as an alien force, internal or not: a kind of 'enemy within.' On the other hand, when the inhibitor is some higher-ranked desire and that which is frustrated is a desire of lesser importance albeit greater momentary intensity, we identify with the desire that is higher in our personal hierarchy, and consider ourselves to be the subject rather than the object of constraint. A fortiori, when the desire to do that which is forbidden is constrained by conscience, that is, by the 'internalized authority' of the prohibiting rules themselves, we take ourselves to live where our consciences are, and to be repelling the threat to our personal integrity posed by the refractory lower desire which we 'disown' no matter how 'internal' it may be.
Excerpted from Rights, Justice, and the Bounds of Liberty by Joel Feinberg. Copyright © 1980 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents
- FrontMatter, pg. i
- Contents, pg. vii
- Preface, pg. ix
- Sources and Acknowledgments, pg. xv
- 1. The Idea of a Free Man, pg. 1
- 2. The Interest in Liberty on the Scales, pg. 30
- 3. Harm and Self-interest, pg. 45
- 4. "Harmless Immoralities" and Offensive Nuisances, pg. 69
- 5. Legal Paternalism, pg. 110
- 6. Duties, Rights, and Claims, pg. 130
- 7. The Nature and Value of Rights, pg. 143
- 8. The Rights of Animals and Unborn Generations, pg. 159
- 9. Human Duties and Animal Rights, pg. 185
- 10. Is There a Right to Be Born?, pg. 207
- 11. Voluntary Euthanasia and the Inalienable Right to Life, pg. 221
- 12. Duty and Obligation in the Non-Ideal World, pg. 252
- 13. Noncomparative Justice, pg. 265
- 14. Wollaston and His Critics, pg. 307
- Index, pg. 315