Freedom, Liberty, Autonomy
di Frank van Dun
University of Ghent


Freedom and the natural person
As we have seen, ‘free’ refers to the pure, natural state or the proper condition of something. Thus, my freedom is, literally, my natural condition. In this sense, freedom, applied to persons, is properly called a natural right — indeed, the first, most fundamental natural right of a natural person.
To fully appreciate the relevance and the proper scope of this statement, we should take note of a distinction between two senses of the expression ‘freedom of a person’.

Real versus effective freedom
There is a sense in which it is undeniable that human persons are free. This sense is usually identified as the doctrine of free will. [6] Anybody who denies that human persons are free (have free will) can easily be forced, by the logic of his denial, to admit one of two things:
1) Either he admits that he has free will and that he merely claims that other people do not have free will. This is obviously an arrogant and foolish claim.
2) Or he admits that his denial of free will applies also to himself. He then states that his denial of free will is not based on due consideration of the evidence and careful analysis of relevant arguments but is instead caused by something else apart from himself. Now, either that something else is rational or it is not.
a. If it is rational, then he is invoking a superhuman or, in any case, a non-human intelligence (say, a god or demon); and while denying free will to humans, he affirms it for non-human beings. He effectively says that although human beings have no free will, they are nevertheless creatures of free will.
b. If the cause of his denial of free will is not rational, then he implicitly denies that there is any logic to his denial of free will. It would be a merely physical or psychotic effect of chemical, electromagnetic or other physical forces and events affecting his body or brain. It would be like a sneeze or a groan of pain — in which case, there would be no point in questioning or criticizing it, or in taking it as a manifestation of his or any other intellect. In fact, he would not be saying anything at all. It would be mere inexplicable coincidence that the sounds he makes resemble a meaningful statement.
Thus, the only denial of free will that makes sense amounts to the claim that we humans are merely puppets manipulated or “possessed” by one or other god or demon. That claim is common in animistic, pagan, magical worldviews, but not in religious worldviews per se. For example, free will is an essential human characteristic in the Biblical religions of Jews and Christians[7] . Indeed, one may be forgiven for suspecting that that is an important — perhaps the only — reason for the eagerness with which some intellectuals wish to deny free will.

That human persons are undeniably free means that they are undeniably capable of acting on their reasons. It does not mean that everything they do is a free act. Sneezing, blushing, stumbling, throwing up, blinking, writhing in pain and the like are not free acts — even though pretending or simulating doing any of such things is a free act. [8]Moreover, circumstances may severely restrict your freedom of action, e.g., when your foot is stuck between the roots of a tree, or when somebody else chains you to a wall. Having free will does not necessarily mean being able to act according to your will.
Your freedom that is defined by your having free will, I call your “real freedom”. It cannot be taken away from you without destroying you as a person. You would have to be killed, or your brain would have to be damaged accidentally, surgically or by the administration of drugs, so that you would be incapable of functioning as a person. However, your ability or opportunity to exercise your real freedom can be restricted even without interference with the freedom of your will. Your abilities and opportunities to exercise your free will, I call your “effective freedom” or “freedom of action”. Discussions about freedom among lawyers, economists, and moral philosophers are far more likely to be about effective freedom than real freedom. However, a person’s real freedom is the presupposition of all talk about his effective freedom. Attempts to build up sciences of human actions and interactions that neglect this real freedom of human persons are therefore inherently defective. For one thing, science itself would be unthinkable if the actions involved in “doing science” were not based on and subject to competent logical, rational judgments but were instead involuntary responses to physical stimuli. What would be the point of criticising, correcting or refuting an involuntary response?

Freedom and the natural law of persons
Note that one person’s real freedom does not interfere with another’s. The reason is simple: any one person is different, distinct and separate from any other. Thus, the rights one person derives from his freedom do not diminish the rights another derives from her freedom. This follows from the fact that natural or human persons are natural things, well defined by objective, natural boundaries and relations of identity. For example, it is possible, always in principle and nearly always in practice, to determine whether this is my body or yours, whether these are my words or deeds and not somebody else’s, whether this is my or another person’s land (or maybe nobody’s land), and so on.
Another way of putting this is to say that natural persons constitute a natural order of things. When and where interpersonal differences, distinctions and separations are respected, human affairs are in order; otherwise, there is disorder. When disorder is caused by personal actions, we commonly speak of injustice. Thus, destroying a person, treating a person as a non-person; praising or blaming, rewarding or punishing one person for what another has said or done; taking what belongs to another, and the like — these acts do violence to a person’s integrity and are all universally acknowledged to be acts against justice. This association of the ideas of a natural order of persons, on the one hand, and justice, on the other hand, is not merely contingent. It is in fact a matter of logic. Let us see why this is so.

The natural order of persons is traditionally known as the natural law — specifically, the natural law of conviviality. [10] It is called ‘law’ because human persons undeniably ought to respect each other as persons. A full explanation of why this is undeniable lies outside the scope of this lecture. [11] The explanation relies on the peculiar logic of self-referential arguments, which in some cases allows one to conclude aprioristically that a proposition that might be true if were not proposed cannot be true once it is proposed — consider, for example, the logical status of “All Cretans lie all the time”, if it were made by a Cretan. Denying the requirement of mutual respect for persons as persons amounts to placing oneself outside the order of human persons, thereby waiving any claims to have one’s rights respected by others. In short, such a denial is like saying, “I shall treat you as a mute animal; you may treat me likewise.” Now, it is certainly possible to say such a thing, but it is impossible to prove argumentatively that it is right, let alone that it is a position every person ought to endorse. Now, a statement that no person can logically deny to be right no person ought to deny. Among persons, it is an unassailable truth. Its truth is not diminished by the fact — and unfortunately, it is a fact — that many people ignore it. For the mark of a truth is not that everybody believes it but, precisely, that everybody ought to believe it on the strength of the arguments and the evidence adduced in support of it.
The binding character of the natural law, i.e., the respectability of the natural order of persons, is therefore argumentatively provable. Or, as the ancient authors put it, it is a matter of “right reason”. It is sometimes alleged that arguments for natural law involve the “naturalistic fallacy” of deriving ought from is, or value from fact. That allegation is false, because in this case, the fact from which the argument starts is us — in other words, it is a self-referential argument about beings who are capable of arguing. Now, argumentation implies the validity of normative propositions (e.g., respect for truth and facts, respect for the laws of logic, also respect for the opponent as another person). Moreover, it implies the acceptance of the validity of those propositions by the arguers: you simply cannot argue with someone who cannot or will not distinguish between truth and falsity, sound and fallacious reasoning, another human being and a monkey. Binding norms are prerequisites of every argument. In the case of the argument for natural law, the conditions of argumentation are part of the facts that the argument is about. Hence, there is no “naturalistic fallacy”.
Because the natural law is an order of persons who share the same nature as rational beings, hence have the peculiar capacity called “free will”, it is a relation of freedom among likes — a relation among free and equal persons. Indeed, for a long time, the commitment to freedom among equals was regarded as the cardinal virtue of the practice of law. The practical, operative principle of natural-law justice (or jurisprudence) was the requirement that this relation be maintained and, if necessary, restored to the fullest extent possible. That is why, “law” could be considered a genuine science: both its theoretical and practical principles were objectively verifiable.

Natural law and legal positivism
The natural law poses a challenge to all non-voluntary hierarchical arrangements, in particular political societies. Political writers have always tended to downplay, even dismiss, appeals to the natural law, because they felt such appeals might undermine socially established authority and therefore the efficiency and cohesion of social organisations. They were not interested in questions of law (compliance with right reason) but in questions of legality (compliance with the rules promulgated or accepted and enforced by social or political authorities). Accordingly, they focussed on the study of the particular artefacts that we now call ‘legal systems’. So-called customary law is the ancient form of this refusal to deal with persons (and things generally) according to their objective or true nature. It substitutes customary or traditional beliefs and opinions for objective facts — custom trumps nature. In modern times, doctrines of so-called legal positivism derive their concepts of legality (“positive law”) from influential yet thoroughly subjective opinions, beliefs and practices in a particular place at a particular moment, to the extent that these inform the actions of people “in authority”. Thus, under the influence of political and legal-positivistic doctrines, the word ‘law’ came to refer to the organisation of positions, functions and roles in particular societies — in a word, their legal systems. The essentially political category of official command (lex) displaced the natural category of the bond of speech (ius) as the integrative concept of thinking about order in human affairs.
[12]The most significant implication of this change of focus was the demotion of the human person to an accidental feature of the law (or rather, one or other legal system). In the perspective of legal positivism, human persons are relevant only to the extent that they occupy a position or perform a role or function in a legal system. They have no rights or obligations themselves; strictly speaking, only their positions, roles or functions — i.e., only artificial persons legally defined by the state — are subjects of rights and obligations. Philosphically, this is a nonsensical notion, for there can be no artificial persons unless there are natural persons — legal systems are human artefacts, human persons are not legal artefacts. Hence, legal positivism, which asserts that there is no law outside legal systems, cannot account for the differences between “law” and “arbitrary rule”. [13]
Indeed, unless there is a law of natural persons, legal systems are exactly like the rules of any game, which have no connection to concepts of law, justice or personal obligation.
This brings us to the concept of liberty.

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