The standard view is that freedom is the absence of impediments (constraints, obstacles, barriers) to doing as one wishes. Impediments of any sort invade and diminish freedom so understood. That’s what freedom is. While there are cases where a violation of freedom so understood doesn’t matter, there are other cases where it does. Les’s strategy is to concentrate on the latter cases and treat disagreements about freedom as normative disputes about what matters, not metaphysical disputes about what freedom is.
We can proceed that way. The worry is that a thread may run through all the cases where the violations matter. We don’t want to miss such a thread, if it exists, or else our account won’t get the normative phenomenon right.
Perhaps freedom so understood never matters as such.
Examples abound. The night is an impediment to many activities. I can’t ride a bike by the river when it’s dark, but it’s implausible that something of value in the neighbourhood of freedom is lost in my inability to do so. The point is not that the injury is mitigated or balanced out because the night makes other things I wish to do possible, though it does. It’s that nothing is lost in the fact that I can’t do something just because it’s dark. Maybe we should rage against the dying of the light, albeit not in the service of any freedom worth having.
Berlin cites Rousseau: the nature of things does not madden us, only ill will does.
Focusing our thinking about freedom. First pass. I am free to the extent that other people do not interfere with my activity. The impediments that matter to freedom, then, have their source in the action of others. Somewhat more narrowly, freedom is a political value. What’s at stake is not just any impediments whose source lies in the action of others but those that the government creates or supports.
But that’s not enough. This government prevents me from driving on the right side of the road. But surely nothing of value is lost — and much is gained by this intervention. After all, it would have to be one side or the other. How is this different from preventing me from expressing my opinion about the government? We need another constraint.
It’s a notoriously hard question what that further constraint might be. For example, could it be that a policy violates liberty (or freedom) in virtue of
-the type of choice it constrains or inhibits
-the role the choice plays in the agent’s life
-the subject matter of choice
-the motive behind the policy
-the social forces that explain the policy, whatever the actual motives of those who designed it
-the best justification of the policy
-the character of justification in play, e.g. moral (about what we owe to each other) or ethical (about how to live)
-the sort of judgment a policy might be understood to express about those whose action it restricts
-the history of the treatment of those that the policy affects by the government or the community
I am tempted by the view that, at bottom, the freedoms that are worth cherishing are limits to what government can do that are grounded in government’s basic duty to treat people as equals. This approach appears most promising when it comes to explaining how it is that government can legitimately mandate vaccination but not communion.
Fortunately, we don’t have to resolve the fundamental issues to deal with the corona restrictions. That is an easy case, where different theories would get the same result.
What is it that the covid restrictions prevent us from doing? Sometimes misleading examples are given: during the so-called lockdown, people were told not to visit the public park. That’s a misleading example because it makes it seem that the inhibited activities are those a single person could undertake. But the response to the pandemic is all about collective action.
Suppose I am granted a personal exemption from any and all lockdown restrictions. I can do as I please. My freedom as we defined it is surely restored. Here is an idea: I could drive to Durham. But that’s not what I want to do to get my life back. I want to go out to dinner. But there is no restaurant to go to, no one in the kitchen to cook for me, no front of house staff to take my order, no other diners to gossip about. To make it possible for me to do the thing I wish to do, many others would have to cooperate. But surely I have no right to their cooperation, just on the ground that I feel like dining out tonight.
There is no neutral default position. If government lifted the restrictions for everyone, I might get to dine out. But that would be so only because restaurant owners and staff would then have no decent alternative: they’d have to go back to work, and be exposed to the risk of infection and liability. These are costs, and I have no right that these be borne by those who run a restaurant business or work in the industry.
In March when schools were waiting for guidance and No 10 (I use ‘No 10’ advisedly to allow for different views about who was in charge) was wavering, headmasters assured parents that the school would understand if they pulled their kids. But there are costs to not sending your kid to school while the school is open and other kids continue to attend. A pandemic calls for a common response.
Think about childhood vaccination. The antivaxxers claim a right not to have their kids vaccinated. But a vaccination policy requires high participation. The herd immunity threshold for measles is over 90%. Since some, such as those with compromised immune systems, who would get seriously ill by the vaccine, must be exempted, for the policy to work almost everyone else must get the vaccine. The antivaxxers have no right that the rest of us live with measles. Unlike them, we do have a right that they vaccinate.
Les says, “Those who refuse precautions or who insist on large indoor gatherings impose on others the risk of a freedom-limiting illness.” Another way of putting it: we must be sensitive to the costs that those people's plans and projects impose on the plans and projects of others. The freedom fighters have no right that these costs be borne by others. If government allowed this transfer, it would not be treating those on whom the costs were transferred with the same care as those whose choices were thereby protected.
Corona is highly contagious before symptoms occur. This means that those who have it continue to mingle with those who don’t and unwittingly pass it on. Before any action was taken, tens of thousands of Typhoid Marys were in circulation, their numbers growing exponentially. To break the chains of transmission, we had to get everyone out of circulation.
The case is relevantly similar to the policy of driving on the left. It’s about what we, together, do. It’s eminently the government’s business, indeed its main business, to work out a policy for everyone. Designing an effective pandemic policy is surely a complex task. Population density, travel patterns, demographics, medical and other resources, … But in the end it’s like managing traffic, or erecting flood defenses, or building a national grid. In doing all that, we are taking care of everyone.
If I am right about the foundation of the freedoms worth cherishing, protecting public health cannot be a violation of such freedoms because it is not a violation of government’s duty to care for everyone equally but a direct expression of that care.
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© Nicos Stavropoulos 5 June 2020
See also my conversation with Les Green: https://www.law.ox.ac.uk/news/2020-06-12-your-freedom-and-theirs-discussion-about-freedom-time-covid-pandemic-les-green-and