The presumption in favour of freedom
The starting point for many, although not all, political theorists in debating this
topic is what can be termed the presumption in favour of freedom. That is, we
assume people ought to be free unless there are compelling reasons for restricting
their freedom. This argument is not uncontroversial, for it presupposes that we can
identify something called ‘freedom’, which is then limited by the state. American
literary theorist Stanley Fish, in discussing a specific kind of freedom – free speech- argues that there is no such thing as free speech in the abstract. ‘Free speech’ is
the name we give to verbal behaviour that serves our agenda (Fish, 1994: 102). The
First Amendment to the American Constitution – which dominates debates over
free speech in the United States – states that ‘Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances’ (emphasis
added). Fish argues that the apparent absolutism of this defence of free speech
conceals the fact that the Supreme Court can quite easily find ways of limiting speech
by redefining it as a form of action – as ‘fighting words’. In fact, the Supreme Court
Justices do notlimitfree speech, but rathercreateit through classifying some actions
as speech and some as action (Fish, 1994: 105–6) (we discuss the distinction between
speech and action later). All speech, Fish argues, is the product of context. For
example, the idea of academic freedom – the right of students and professors to
express unpopular or controversial views – only makes sense if you understand the
purpose of a university.
In short, Fish rejects the presumption in favour of freedom. The presumption is
nonetheless a useful heuristic device. That is, we take it as a rule of thumb that
freedom is a good thing and that limits on it require justification. But then we face
a different problem. Presuming freedom is a good thing supposes that we can agree
on a single concept of freedom, even if we disagree about which freedoms matter
or more generally about the value of freedom. An important starting point here
was provided by Isaiah Berlin in his famous essay ‘Two Concepts of Liberty’ (note:
we use the terms ‘freedom’ and ‘liberty’ interchangeably – that is, as synonyms).
Berlin’s two concepts
Acknowledging that in the history of political thought there have been more than
two concepts of freedom, Berlin maintains that ‘negative liberty’ and ‘positive
liberty’ have had the greatest influence, and the contrast between them throws into
relief fundamental differences about the role of the state:- Negative libertyis involved in the answer to the question: ‘what is the area within
which the subject – a person or group of persons – is or should be left to do or
be what he is able to do or be, without interference by other persons?’ (Berlin,
1991: 121–2).
36 Part 1 Classical ideas