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


Liberty and the artificial person
Whereas the concept of freedom is central to natural-law jurisprudence (solving interpersonal conflicts within the natural order of persons), “liberty” is intimately related to problems of social organisation. Nowadays, it is almost exclusively denotes full membership in a political society (a state). As such, it is closely related to, if not identical with, citizenship. For some time, when the nation-state was the dominant political model in Europe, it may have seemed that liberty was an inclusive concept: everybody in the state was considered a citizen entitled to the liberty of the legal system of that state. In recent decades, however, mass-immigration has challenged this presumption. Even earlier, the presumption was challenged by the demands of ethnic minorities who had ended up on the wrong side of some national border or other in the long and arbitrary process of state formation in European history. Moreover, when the natural law boundary between law and authoritatively imposed legislation broke down, the Enlightenment idea of equal liberty for all citizens gave way to the present mishmash of complicated regulations, differentiated according to age, sex, education, income, profession, and so on. All of these interlock in various ways and make it nearly impossible for any person to determine the details of his legal status (hence his “liberty”) without the help of experts to guide him through the jungle of ever-more complex, ever-changing rules and regulations. Obviously, however, none of these legislated regulations change the nature of natural persons. They leave the real freedom of natural persons intact but provide legal pretexts for impeding and restricting their effective freedom by authoritarian acts.
Citizenship is usually accorded to natural persons, but that is certainly not a logically necessary requirement. The Citizen is, in fact, an artificial person in the state in the same way that the King, Queen, Knights, Bishops, Rooks and Pawns are artificial persons in the game of chess. The rules of chess define what these artificial persons can or cannot do, regardless of whether the game is played by human chess players or by computers. It is the same with legal systems. It is said that the Roman emperor Caligula wanted to make his horse a Consul of Rome. From the natural-law perspective, it would be absurd to consider a horse the equal (let alone the superior) of a human person. From the perspective of legal positivism, there is no absurdity at all: the rights and duties of a Consul remain the same no matter who or what occupies the position. The modern equivalent is the emerging practice of according legal standing to automatic processes — for example, speed cameras linked to computerized systems for the administration and collection of fines; also computerized tax-withholding, and so on. We are close to a situation in which the state can require automobile manufacturers to install electronic devices into cars that enable the authorities to regulate the speed of vehicles, even to prevent them from starting, by remote control. There is, of course, also the possibility that these systems will be “hacked” and put to “illegal use”. From the perspective of legal positivism, people are simply resources that can be regulated and managed any which way, according to the policy needs of the day.

Demands for liberty reflect the ambiguities of the notion of equal liberty for all. For example, the political philosophies of classical liberalism and libertarianism insist that liberty (a legal status) be defined to interfere the least with, and to provide the most institutional support for, the freedom of natural persons. [14] Here, liberty is the means and freedom the goal of political action. This was still the position adopted by the French National Assembly when it promulgated the Declaration of the Rights of Man and Citizen in 1789. [15] In contrast, for minorities, the demand for liberty is usually the demand for equal treatment, not for personal freedom. However, when the minority is concentrated in a particular region, its demand for liberty is more likely a demand for political autonomy or even independence for the region, not for equal treatment or freedom of natural persons.
Because of its political and legalistic overtones, “liberty” is a relative concept. Unlike your freedom, you cannot take your liberty with you across the border: the liberty of an Italian in Italy is not the liberty of an Italian in Austria. Unlike freedom, which is a natural, personal property regardless of time or place, liberty is a property of a collective, a tribe, a community, a society or a state at a particular time in its history. Hence, the liberty of an Italian in Italy is not the liberty of an Austrian in Austria; and the liberty of an Italian today is not the liberty of an Italian, say, in the eighteen-nineties. The liberty of a citizen of the former Soviet Union did not leave much space for a person to live his natural freedom. To varying degrees, the same is true of the citizens of North Korea, the European nation-states or the European Union itself. All of them have rights and obligations decreed for them, and imposed and enforced on them, by social, political and bureaucratic “authorities”, regardless of their own nature as human persons, regardless of their values, preferences, plans, opinions, or knowledge. Unlike your freedom, your liberty is defined by rules specified by the opinions of others (especially, the past and current rulers of the state in which you happen to live). Thus, perhaps paradoxically, where human persons are concerned, “liberty” more often rhymes with “heteronomy” than with either “autonomy” or “freedom”.
So let us turn our attention to “autonomy”.

Autonomy and the non-individual person.
The French eighteenth-century philosopher Jean-Jacques Rousseau was acutely aware of the connection between the liberty of citizens and heteronomy. The opening paragraph of the first chapter of his famous On The Social Contract identifies the problem:

MAN is born free;[16] and everywhere he is in chains. One thinks himself the master of others, and yet remains a greater slave than they. How did this change come about? I do not know. What can make it legitimate? That question I think I can answer.
The “masters” and “slaves” of which Rousseau spoke are eminently legal positions. Their legal status is defined by, hence relative to, a particular society; it is legally valid only within the confines of that society. In that sense, both masters and slaves are creatures of a rule that is imposed on them. So apparently, being in political society excludes the possibility of freedom. That is the problem.
There is, of course, a solution to this problem that is, as H.L. Mencken put it, clear, simple and wrong. Such a solution is the theory of the social contract, which assumes that the problem is solved if only membership in a political society were voluntary. Rousseau realised that reliance on contract would not do. Although freely assuming obligations is generally an exercise of freedom, only a madman would consent to obligations that imply the total and irrevocable loss of his effective freedom — and as Rousseau remarked, madness creates no right. Consequently, contracts can only have force in law [17] if they are compatible with the parties to it being and remaining free. However, this makes the problem even more perplexing, because being in political society requires renouncing all claims to freedom and accepting the authority of its legal system — even if one’s entry into the society was voluntary.[18] In essence, Rousseau hit upon the problem of voluntary slavery (which had been dormant in Western political philosophy since the early days of the opposition against the rise of Grotian and Hobbesian contractual doctrines of political, originally royal, absolutism ). [19] Commenting on the English Constitution, Rousseau wrote, “The people of England regards itself as free; but it is grossly mistaken; it is free only during the election of members of parliament. As soon as they are elected, slavery overtakes it, and it is nothing. The use it makes of the short moments of liberty it enjoys shows indeed that it deserves to lose them.” [20] Autonomous citizens
Rousseau’s fame as a political thinker rests on his claim that he solved the problem of the legitimacy of voluntary slavery. Indeed, at least for a while, he thought that it was possible to legitimise the state, which, he realised, was at its theoretical best a system of contractual slavery and in practice just plain, unilaterally imposed slavery. The concept of autonomy figured prominently in his solution. He believed that the state could be legitimised if it were possible to come up with a legal formula according to which the citizen-slaves would be equal under a law they had imposed on themselves. That formula he called “the republic”.
The crucial step in his solution was that human nature be transformed, or rather that a human being’s natural personality be replaced with an artificial, conventional, “legal” personality [21] — citizenship. The effect of that transformation should be that the state, instead of being an association of natural persons, becomes a unity of artificial persons (citizens), all of them identical to the state, hence “equal” in their relation to the state. Thus, instead of a state being moved by the particular wills of particular people (which would be tyranny), the state is supposed to be moved by the general will of the state itself — i.e., by its constitution and statutes, with which all citizens identify, by definition. If the argument made sense, it would explain how a multitude of citizens can be “free and equal” — equal because no citizen has a right that is not also a right of every other citizen, and free (i.e., autonomous) because everyone of them agrees to every legal rule imposed on them by the state. In other words, the state would formally meet the requirements of justice. It would be an arrangement of freedom among likes — but the likes would not be natural human but artificial persons (citizens) of the same state.

The premise of Rousseau’s argument was the observation, which had also been made by Plato, that political rule cannot be just or lawful among human beings. [22] Hence, political rule can be made legitimate only if human nature were changed to suit the requirements of the state. Human beings must be transformed into citizens.
This transformation is usually considered the task of collective political education. Think of Plato’s education of the guardians of a city; Aristotle’s requirement that a city be composed of interrelated families sharing the same traditional culture, which they pass on to their children; Rousseau’s education of the citizens of the state by its legislator[23] ; and the modern welfare state’s claim to be the highest, if not the only, educational authority. In each case, the aim is to transform natural human persons so that they fit as well as can be into the legally defined positions that make up the legal system of the state — the legitimisation of political rule is a matter of indoctrination and pervasive conditioning. [24] A citizen is not oppressed by the state, because he is the state. The rules of the state do not oppress a citizen, because the obligation to obey those rules is part of the definition of “citizen”. Of course, Rousseau’s solution of the political problem applies only to such artificial persons. It leaves the fact of oppression of some natural persons by others intact. It is, after all, no more than a formula for legitimising such oppression.

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