Thinking about Rights to Freedoms

A right is a normative rule establishing that society owes or allows something to certain parties. Some rights guarantee freedoms. Rights to freedoms are the focus here. When thinking about freedom it is useful to keep in mind that freedom is not a simple property that an individual may or may not have, nor is it a simple state of affairs that may or may not hold in a society. Freedom is instead a complex relation with variables that need specification.

Analyzing Freedom

As Joel Feinberg (1973) argues, freedom involves three key elements: the party/agent with the freedom, a particular constraint or set of constraints, and an activity. Freedom is thus a (minimally) 3-place relation where x is a party, y is a potential constraint on x’s doing z, and z is some activity.

x is free from y to z

We can also speak of the right to a freedom.

x has a right to be free from y to z

Thus, the statement “We want to be free” leaves out both the constraint and the activity and leaves the party under-specified. Feinberg calls such statements elliptical. Ideally, our statements would clearly specify party, constraint, and activity as in the examples below.

Ex. 1: American citizens have the right to be free from the constraints of government intervention to own property.

Ex. 2: Human beings should be free from interference by other humans to get an education.

In these examples, all three variables are specified. Specification of each is important as we will see next. While the focus here is on the variables of the freedom relationship, the same points hold for rights.

An Example

A statement that is notoriously vague on these three counts is the Second Amendment to the U.S. Constitution, ratified in 1791.

Second Amendment: A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This single sentence has been the subject of passionate debate in America for decades now. Much of that debate comes from widespread disagreement simply over what it means. Here, I set aside the question of whether the Second Amendment is a good or bad idea so that we can focus on its various interpretations.

The Party

Does the noun ‘people’ refer strictly to people as a group who may, as a “well regulated militia”, keep and bear arms; does it refer strictly to people as individuals; or does it refer to both groups and individuals? Of course, the different interpretations specify very different states of affairs, and we have seen no end the arguments on both sides of this issue.

The Constraint

While the Second Amendment leaves the party unspecified, it doesn’t even mention the constraint. And yet, in the U.S., there are many effective constraints. For instance, with the exception of law enforcement, firearms cannot normally be possessed in post offices, in federal courts and prisons, or on planes. And if you want only people without guns to be on your property, you can freely impose that constraint. But these instances are not considered infringements of the right to keep and bear arms. Thus, even though the Second Amendment states that the right to keep and bear arms “shall not be infringed,” we do not interpret it as saying that the right shall not be infringed by any constraint whatsoever. On the other hand, it is clear that the statement means that there are at least some constraints that shall not infringe this right.

The Activity

What is it to “keep and bear Arms”? Clearly, the framers of the Second Amendment intended that some weapons be somehow allowed to people (the groups/individual question aside). But the Second Amendment has not been interpreted to guarantee the right to any guns. Automatic weapons are heavily restricted in the US. And as it has been interpreted since U.S. v. Miller (1939), the “right to keep and bear Arms” does not guarantee a right to keep or bear a sawed-off shotgun, nor, under the Switchblade Knife Act of 1958, does it guarantee a right to carry a switchblade. But automatic weapons, sawed-off shotguns, and switchblades are all clearly arms in the classical and current sense of the term: they are things designed to be weapons. Thus, as it has been interpreted by our courts, the Second Amendment does not guarantee the freedom to own any and all arms. Ideally, it would have avoided so much ambiguity on this matter.

Limits to Freedom

However desirable freedom may be, a society of absolute freedom is unobtainable. For freedom is limited in two ways: it faces its own logical limits, and—as anyone who’s set foot in the real world will have to admit—it is limited by sociological realities.

Logical Limits to Freedom

Every right to a freedom imposes some duty, that is, a task that one is required by society to perform. Here is an instance of the general argument.

Suppose you have the right to be free from state intervention to speak your mind. Then agents of the state have a duty: not to intervene in your speaking your mind. Consequently, agents of the state are prohibited a freedom: the freedom (from state intervention) to intervene in your speaking your mind.

The argument generalizes. Rights to freedoms entail duties. And certain duties prohibit certain rights, including certain rights to freedoms.

Consequently, freedoms are essentially restrictive of other freedoms. They are transactional. Talk of simply “being free” (full stop), “believing in freedom”, and so on is a misleading and often abused oversimplification. This is the logical limit of freedom: the more freedom of one kind, the less of another. Of course, this is not to say that there aren’t better and worse ways of structuring freedoms.

Practical Limits to Freedom

The so-called “paradox” of freedom (which I attribute to Karl Popper, who attributes it to Plato) is as follows: If we try to have as little state intervention or as few laws as possible, then brutes or others in power (even benevolent overlords) will overtake and control the meek, thereby severely curtailing freedom. This of course does not hold as a matter of pure logic. If we were all angels, there would be no brutes, and freedoms would not be violated. But according to the so-called paradox of freedom this possibility is unrealistic.

Of course, certain anarchists believe such a state (or a good enough approximation) is possible and should be pursued. Others, however, hold that such a state is either humanly impossible or at least highly unlikely, temporary, or fragile. And you don’t have to be a cynic to see how easily a demagogue, a warlord, or an aggressive paternalist could abuse a state of anarchy.

Moreover, there are other forces that tend to take us from anarchy to governance. If, for example, most of us don’t want people doing nude yoga in our town square, we might decide to ban it. While doing so is not accurately described as brutish, people are nevertheless limiting freedom.

Burning Man and Wikipedia are both running experiments in the optimization freedom. Over time, both have become decidedly more governed, evidently because of these kinds of forces and the transactional nature of freedom itself. I am arguing not that we will or should move inevitably toward more and more governance, only that some attempts to optimize freedom typically result in a shift back to some amount of governance, and that these shifts are explained in part by the very nature of freedom.