A. General:

Immanuel Kant Empirical freedom – whether one must admit to the powerPractical freedom – whether one’s will can be independent from coercion or necessitation through impulses

John Locke Natural rights – civil liberties

B. John Stuart Mill – On Liberty

Central idea: harm principle as the source of power of government Harm principle: Everyone is rightfully warranted for self-protection, and the

only ground for power to be exercised over members of civil society would be to prevent harm against others

Limitation: not applicable to children, people required to be taken care of by others, barbarians (lack mature faculty)

Tyranny of majority: the electoral government submitting themselves to the majority and end up coercing the minorities – can even penetrate more into details of life than tyranny of rulers

Background: Finding of nature and limits of power – “struggle between liberty and

authority” Liberty is important to safeguard the necessary power from being dangerous

to be tyranny against, limit: (1) political liberties (2) constitution Election does not bring out liberty – tyranny of majority Human beings are guided by the practical principle of feeling and likings –

affecting the rules Utility is the ultimate guide but harm principles applies it in the largest sense

(external preference utilitarian/ rule utilitarian) Harm principle could cover inaction but requires more scrutiny

Criticisms(1) Exclusion of some groups(2) Every activity carries harm

Self-harm would case harm to others, e.g. resources, emotional damage to loved ones etc.

(3) Harm principle does not correspond to laws in civil society Some laws are paternalistic, e.g. R v Brown, competition law (?)

(4) Types of harm Economic competition is not a harm (as to be good for society)

(5) Harm itself is under the challenge of remoteness and causation(6) As a consequentialist how to know if that act would cause harm if that has

never happened (?)

Connection with Utilitarianism Mill considered utility as the ultimate moral guide

“I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interest of man as a progressive being. Those interests, I contend, authorize the subjection of individual spontaneity to external control, only in respect to those actions of each, which concern the interest of

other people.” But in essence he adopts utility in the largest sense Only external preference/rule utilitarianism Justifies competition

On Liberty is one of Mill’s most famous works and remains the one most read today. In this book, Mill expounds his concept of individual freedom within the context of his ideas on history and the state. On Liberty depends on the idea that society progresses from lower to higher stages and that this progress culminates in the emergence of a system of representative democracy. It is within the context of this form of government that Mill envisions the growth and development of liberty.

Chapter I defines civil liberty as the limit that must be set on society’s power over each individual. Mill undertakes a historical review of the concept of liberty, beginning with ancient Greece and Rome and proceeding to England. In the past, liberty meant primarily protection from tyranny.

Over time, the meaning of liberty changed along with the role of rulers, who came to be seen as servants of the people rather than masters. This evolution brought about a new problem: the tyranny of the majority, in which a democratic majority forces its will on the minority. This state of affairs can exercise a tyrannical power even outside the political realm, when forces such as public opinion stifle individuality and rebellion. Here, society itself becomes the tyrant by seeking to inflict its will and values on others.

Next, Mill observes that liberty can be divided into three types, each of which must be recognized and respected by any free society. First, there is the liberty of thought and opinion. The second type is the liberty of tastes and pursuits, or the freedom to plan our own lives. Third, there is the liberty to join other like-minded individuals for a common purpose that does not hurt anyone. Each of these freedoms negates society’s propensity to compel compliance

Mill’s critics: everything I do may have results which will harm other human beings.

Mill:

Berlin1) Liberty in general

a) Lack political freedom: is coercion, deliberate interference to prevent from attaining a goal by human beings. Mere incapacity is not.

b) Importance of Liberty: A frontier must be drawn between the area of private life and that of public authority. Stems from libertarian principle from mill and lock that there is a certain minimum area of personal freedom that are sacred,

and shall not be violated from anyone. For example, freedom of expression, religion, property,etc. these minimum freedom is essential if we are not to “degrade or deny our nature”. According to Mill, civilization cannot advance if there is no liberty. Because Mill says only in conditions of freedom man can develop critical, original, imaginative, independent character. However, where to draw the line is a matter of argument.

c) Berlin admits that individual freedom is not every man’s primary need. If we offer political right to man that do not even have sufficient food and clothing then we would only be mocking their condition. However the minimum freedom one needs are the same, regardless whether you have in poverty or a millionaire. The freedom man seek do not differ according to their social or economic conditions.

d) If individual liberty is an ultimate end for human being, none should be deprived of it by others. That is equality of liberty. Therefore the minority who possess liberty should not gain it by exploiting the vast majority who do not.

e) However compulsions can be justified according to both Mill and Berlin. Since justice demands all individuals to be entitled to a minimum freedom, all other individuals were necessity to be retrained. (some call it natural rights) Human sacrifice liberty to co-exist. This can be explained by utilitarian principle. The loss of liberty can be compensated by a gain in justice and peace.

f) Negative Libert does not necessarily mean democratice gov. Freedom is not necessarily connected with democracy. Because “who governs me” and “ how far does government interfere with me” is logically distinct. One is positive liberty, one is negative liberty. (corresponds to Mill tyranny of the majority) the main problem for those who desire negative liberty, individual freedom is not who wields this authority, but how much authority should be placed in their hands.i) As Berlin admits,on the negative view of freedom, I am

free even if I live in a dictatorship just as long as the dictator happens, on a whim, not to interfere with me (see also Hayek 1960). There is no necessary connection between negative freedom and any particular form of government.

ii) Other theorists of freedom have remained closer to the negative conception of freedom but have attempted to go beyond it, saying that freedom is not merely the enjoyment of a sphere of noninterference but the enjoyment of certain conditions in which such non-interference is guaranteed (see especially Pettit 1997, 2001, and Skinner 1998, 2002). These conditions may include the presence of a democratic constitution and a series of safeguards against a government wielding power arbitrarily, including the exercise of civic virtues on the part of citizens

iii) Freedom is not simply a matter of non-interference, for a slave may enjoy a great deal of non-interference at the whim of her master. What makes her unfree is her

status, such that she is permanently liable to interference of any kind. Even if the slave enjoys non-interference, she is, as Pettit puts it, ‘dominated’, because she is permanently subject to the arbitrary power of her owner. Contemporary republicans therefore claim that their view of freedom is quite distinct from the negative view of freedom.

a) However the very least liberty of religion, expression, property must be guaranteed against arbitrary invasion.

b) Liberty and utilitarianism c) Therefore oppose paternalism: because it is to treat men as if they were not

free. 2) Positive and Negative Liberty

a) Negative Liberty: i) Negative liberty means absence of obstacles and interference external to

the agent. One is free if no one is stopping him from doing whatever he wants to do. It answers the question “what is the area within which the subject is or should be left to do or be what he is able to do or be, without interference by other persons?”.

ii) Berlin disagree what Mill defined as negative liberty. Mill defined negative liberty as the ability to do what one wishes. If being free meant being from realizing one’ s desires, then one could reduce one’s unfreedom by desiring fewer things. No doubt the man will FEEL free, but it is not true freedom. To liberate oneself from desires that he knows he cannot realize, one determines himself not to desire what is unattainable. It is like a “retreat to the inner citadel”. It is like to eliminate the obstacles in my path by abandoning the path. But this is not freedom, and it risks masking important forms of opporession.

b) Positive Liberty: i) Positive liberty means the presence of control, self-directive INTERNAL

to the part of the agent. That means one must be able to control his own destiny in his own interests. That means man wants his life and decisions to depend on himself (internal), not on external forces, to being his own master. It answers the question “what or who is the source of control or interference that can determine someone to do, or be, this rather than that?” (1) Be independent, free of control: but may I not be a slave to nature? This

dominant self is then variously identified with reason, with my 'higher nature', with the self which calculates and aims at what will satisfy it in the long run, with my 'real', or 'ideal', or 'autonomous' self, or with my self 'at its best' which is then contrasted with irrational impulse, uncontrolled desires, my 'lower' nature, the pursuit of immediate pleasures, my 'empirical' or 'heteronomous' self 'higher' freedom: to coerce men in the name of some goal

i) A slippery slope of positive liberty: To some extent, being one’s mater means that to be one’s real or higher self, but not the lower self being driven by uncontrolled desires. The lower-self pursuits immediate pleasures and is swept by desire and passion. However this notion if liberty is very dangerous because it can be used to justify coercion of others to raise them to a “higher” level of freedom. They are in position to ignore the wishes of men or societies, to bully and oppress them in the

name of “true” freedom. It is okay to say that “I may be coerced for my own good”, but not okay to say “if it is for my good, then I am not being coerced”.

b) Analogy of +/- freedom: One analogy is driving a car. At a crossroad When You choose to turn left, no one was forcing you to go one way or another. In this case the driver is completely free. But if the reason the driver turn left is that he is addicted to cigarettes and he is desperate to get to the tobacconists, then his urge to smoke lead him uncontrollably to turn left. Moreover, he is aware that if he turn left he will probably miss a train. In this sense he is not free because this irrational desire is stopping him from what he should be doing.

c) The word liberty must include a minimum of negative liberty. But some (e.g. fathers of liberalism: Mill and Constant) want more than this minimum.

d) The chief value for liberals of political “positive” rights (of participating in government) is as means for protecting an ultimate value of negative liberty.

e) Berlin: because the concept of negative freedom concentrates on the external sphere in which individuals interact, it would provide a better guarantee against the dangers of paternalism and authoritarianism perceived by Berlin.

2) The retreat to inner citadel: a) If freedom = unprevented from realizing one’s desires, can one be more free

by desire fewer things? i) Negative theorist says no. a salve is not free. Happy =/= free. ii) Positive theorist says yes: salve is indeed free. Berlin: it is like cutting off

my wounded leg.3) The tempo of sarastro:

a) Children are not salves because although they are coerced, they obey orders given in their own interest. Similarly, subject of a true commonweal is not salve because the common interest will include his own. (the tempo of sarastro)

b) A rational judge will send you to prison because it is evidence that you have not listened to your own inner reason, like a child, so you are not free of self-direction, or permanently incapable of it.

4) How can a society be truly free? a) The chief value for liberals of political “positive” rights (of participating in

government) is as means for protecting an ultimate value of negative liberty. b) No society is free unless it is governed by two interrelated principles: (1) no

power but only rights can be absolute. (2) there are frontiers, not artificially drawn, within which men should be inviolable

5) One concept of liberty: a) American legal philosopher Gerald MacCallum (1967) put

forward that there is in fact only one basic concept of freedom, on which both sides in the debate converge. MacCallum defines the basic concept of freedom as follows: a subject, or agent, is free from certain constraints, or preventing conditions, to do or become certain things. Any statement about freedom or unfreedom can be translated into a statement of triadic relation by specifying what is free or unfree, from what it

is free or unfree, and what it is free or unfree to do or become. Possibility of fusing positive and negative liberty

A single formulation – an agent, certain preventing conditions, and certain doings or becomings of the agent

Every act carries consequence to the positive and negative freedom They would eventually lead to the same consequence – limitation of freedom b) Positive camp more extensive. (see leaflet)

Positive liberty Negative libertyFreedom from Freedom toWhat is left to be free to do? Who is the master?Maximum liberty in the absence of external obstacles

Presence of internal self-control/self-mastery

More dangerous Authoritarian (by ignoring others)Easier for powers to manipulate by giving the false impression to freedom “I will make you free”

Less dangerous

Liberty Q

1. How have legal theorists tried to repair the defects of Bentham's Utilitarianism? How successful are these attempts? (2014)

2. Describe Isiah Berlin's distinction between positive and negative liberty. Do you think it a convincing distinction? Why? (2014)

3. What is liberty? Is Berlin's distinction of negative and positive concepts of liberty correct? (2012)

4. 'The desire to be governed by myself, or at any rate to participate in the process by which my life is to be controlled, may be as deep a wish as that of a free area for action, and perhaps historically older. But it is not a desire for the same thing. '

Isaiah Berlin, 'Two Concepts of Liberty,' (1958)

Critically discuss. (2013)

• Are the negative and positive concepts of liberty mutually exclusive, so that people using them are talking past each other?

• Can we capture both positive and negative liberty in ‘X is (is not) free from y to do (not do, become, not become) Z’

• Liberty and rights: is the idea of rights at its most basic better captured by ‘negative’ or by ‘positive’ liberty?

• What are rights? What is liberty? How, if at all, are right and liberties related?

• Does Isaiah Berlin’s distinction of ‘Two Concepts of Liberty’ make sense?• Which concept of liberty, if any, does Berlin favour? Do you agree with

Berlin?