Aspects of individual liberty are considered in two recent articles, with some implications for the role played by law in working through the practical implementation of liberty in society. ‘Other People’s Liberties’ published in Ratio Juris questions whether the undeniable advantages of liberty to an individual are readily transferable to a number of individuals, relating together within a society. ‘Overcoming von Wright’s Anxiety’ published in Theoria attempts to deal with an enduring anxiety experienced by Georg Henrik von Wright throughout his engagement with deontic logic across the course of his professional life, over the apparent reducibility of permission to an absence of obligation.
It should be noted that the terms ‘permission’ and ‘obligation’, preferred in deontic logic, are respectively equivalent to the terms ‘liberty’ and ‘duty’, more familiar to lawyers. It is also worth mentioning that those working in the field of deontic logic, including von Wright himself, take law to be a principal source of illustrative material for deontic logic.
Of the two topics, von Wright’s anxiety is perhaps the easier to grasp. It is accepted that a permission (liberty) to do something amounts to the absence of an obligation (duty) not to do it. Your liberty to speak freely can be rendered as your having no duty not to speak freely. But if liberty can be reduced to the absence of duty then it loses any independent significance as a deontic, or normative, concept. And this troubled von Wright. In particular, he was concerned that this lost the relational – or, as he put it, the ‘social’ – feature of permission (liberty). Your liberty to speak freely, if it only amounts to the fact that you are under no duty not to speak, will not count for much when faced with serious opposition from others designed to stop you speaking. Or, to take another example, your liberty to engage in enjoyable activities within your own property, if it only amounts to the fact that you are under no duty not to engage in such activities, will not count for much if others remain free to interfere with your enjoyment.
The proposed solution to von Wright’s anxiety involves moving from the narrow deontic relationship between permission (liberty) and obligation (duty), which is restricted to the position held by a single individual. The provision of wider analytical resources is found in Hohfeld’s scheme, which not only focuses on correlative relationships between individuals but also, in its fuller application, takes account of aggregate legal positions composed of a number of correlative legal relations. The correlativity point is less important (some recognition of it can be found within deontic logic), but the aggregate perspective proves radical in transforming a conception of permission limited to the singular standing of the holder with regard to the absence of obligation, to a fuller aggregate conception of permission (liberty) which is capable of encompassing the restrictions on the conduct of others, required if that liberty is to be fully enjoyed.
The problem surfacing in the other topic is less easy to appreciate, given the assumptions placed on individual liberty in satisfying the twin objectives of individual self-realization and social cohesion, at least in Western political thought. Nevertheless, the argument is mounted on a number of fronts that the evident advantages of a single individual possessing a liberty cannot be simply transferred to a greater number of beneficiaries.
In parallel with the treatment of von Wright’s anxiety, the conundrum of extending individual liberty to all is approached with the assistance of a Hohfeldian aggregate-level analysis. Again, the aggregative aspect is crucial to expanding our understanding of liberty beyond the mere negation of duty (referred to here as a liminal liberty) so as to include rights against interference imposing duties on others. However, here it is stressed that such duties are not a logical implication of a liminal liberty, but the product of further normative reasoning, which may be affected by competing rationales affecting the conduct promoted by the liberty and the conduct amounting to interference with it. It does not follow from the existence of a liberty that any interference with it will be prohibited. Return again to the example of a liberty to engage in enjoyable activities within your own property. At times the rationale for the private enjoyment of property will compete with other normative rationales, such as a rationale for allowing a public right of way, in determining precisely which duties of non-interference will be upheld. The rationale for allowing the public access across a private beach for recreational purposes conflicts with the rationale for permitting club members exclusive enjoyment of their beach.
Once such normative conflict is acknowledged as affecting the pursuit of individual liberty, and with it the recognition of one person’s liberty imposing a deficit of liberty on others, then it becomes problematic to rely on individual liberty alone to set the boundaries of relations between individuals within society. This point is reinforced by rejecting an axiomatic argument for liberty from Heidi Hurd, and also by countering efforts to rescue liberty on a reciprocal basis undertaken by Ariel Zylberman and Hanoch Dagan. The conclusion is reached that a principle of individual liberty is incapable of retaining its foundational standing in the construction of society; that in order to extend the advantages of individual liberty to all something other than liberty is required.
As for the role played by law in working through the practical implementation of liberty in society, one observation arising from these two articles would be that the realization – and enjoyment – of liberty within society cannot be left to formal logical inferences, nor to philosophical abstractions. The, at times messy, resolution of competing normative rationales is the business of the law.
Keywords: individual liberty, legal relations, deontic logic
AUTHOR INFORMATION
Andrew Halpin is Co-Director of the Centre for Legal Theory and a Professor at the NUS Faculty of Law.
Email: halpin@nus.edu.sg