The Individual vs. the State Conference

20^th annual The Individual vs The State Conference

The Tragedy of Liberty:

From Liberation to Self-Destruction and Irrelevance

June 8 –  9, 2012

Central European University, Budapest

Constitutional legal systems promised a liberty-based political and (at least, arguably) social order. But the liberty of women and men turned into a self-destructive force. It became a tragedy in the sense of opening up too many opportunities, and creating a backlash. Tragedy here means that a consistent application of liberty runs the risk of self-destruction and it also dictates it. In a milder form, tragedy refers to a constant dilemma: are we to legitimize demonstrations which run the risk of disorder, and which are by definition a matter of disorder? Dissent is not only innovation and self-realization: it is also nuisance and trouble. Freedom of religion and from religion is also insult and blasphemy.  Conversely, as part, or result, of the tragedy of freedom, liberty was restrained and the constitutional order was undermined or reshaped in the name of alternative concepts of liberty, aiming at the realization of “genuine” liberty, and often resulting in increased State intervention. Rights cases in courts are not only about warding the state off anymore, but about demanding positive government action to promote rights, or –rather- allegedly righteous causes. Again, the interventionist welfare state had to admit that more and more spheres of life attempt to run away from its control in the name of newfound liberties, unknown in constitutional law textbooks. At the same time, in a caring welfare state lack of regulation does not result in more room for individual action, but it often amounts to a de facto prohibition: what is not permitted is not possible any more.

Notwithstanding usual doomsday scenarios and prophecies about sledging towards another road to slavery (a road that was too often undertaken to make fun of contemporary Cassandras) we do not have a clear knowledge about the contemporary state of liberty in constitutional states. Perhaps we are still moving towards maximizing liberty in state and society. After all, gay and lesbian rights were gradually extended in the Western world, privacy has been discovered, minorities enjoy more and more rights, punishment is less harsh in many countries. In less than a decade Europe recently accepted that a lawyer shall be made available from the very beginning of the criminal process, and that trial by jury may violate human rights for lack of properly reasoned conviction. Torture is broadly construed and universally condemned (though, like in many instances above, not necessarily in response to liberty arguments.) At the same time privacy and freedom of expression are under stress, prisons are overcrowded, pre-trial detention is abused etc. The threat of anti-terror measures looms large. Passion for liberty (if there ever was one, except in the formative days of political liberation and democratic constitution-making) seems to vanish in public opinion; liberty is made suspect for its alleged egotism and lack of responsibilities. Moreover, echoing Marx, the emerging relativism treats liberty as one of the many ideologies which claim to be neutral only to disguise imperialistic bias. It seems that in the name of respect of identity choices other people have the right to have freedom as they like it, as long as they do not intend to interfere into what we believe to be freedom in our way. The fear of imposed liberation results in fear of all forms of liberation.

At the level of reflection (viz. political science and constitutional theory, human rights claims etc.) liberty seems to be neglected, even forgotten. While Isaiah Berlin’s concerns served as the frame of reference in the days of constant totalitarian pressure, the appeal of Dworkin’s concern for equal respect without liberty playing a distinct role (although, of course, still being somehow produced) is quite telling about the interest in liberty. In an interconnected legal world of respect, equality and dignity (the prevailing language of contemporary concerns) there is little space left for liberty. The diminishing interest in liberty (in the public action and expectations, in legal practice, and in theory) is facilitated by the disappearance of totalitarian systems. Concerns about equality and social needs serve to express socialist interests which were compromised by totalitarian political aspirations and non-sustainability in the 20^th century.

In the new regulatory environment freedom efficiency, welfare and security matter and liberty does not come up as a relevant consideration. After all European liberalism is passé and libertarians are presented as narrow-minded, doctrinaire reactionaries. At best it is assumed that freedom remains unaffected. Freedom is undergoing a narcissistic restoration in the public mind; in public practices it is reconstructed and, at least from a traditional perspective, it is diminished. Liberty is often restricted for the sake of other liberties which were not high on the liberty list, or for purposes which serve what philosophers (beginning with St Thomas Aquinas) call “real” liberty. Such “real” liberty is often determined by majorities and traditions, without reference to personal autonomy. At the same time, practices which were traditionally understood to amount to restrictions of liberty (such as policing or prisons) are increasingly handed over to private service providers in the name of expertise and costs-efficiency, those exempting commercially provided services from traditional judicial control (consider the abuses by private military contractors in Abu Ghraib.)

Are we at a point where the concept of liberty that underlies constitutional democracy has lost its relevance and meaning? Is this because of the inherently self-destructive nature of liberty, or its alleged egotism and heartlessness? Is it because liberty became psychologically unsustainable in a complex world where other considerations offer a better strategy of social organization and success? Is liberty losing its appeal because the necessary social and mental conditions which were identified by J.S. Mill, are absent or disappeared? Was/is Fromm right? Is liberty a secondary consideration in law, where freedom emerges accidentally, from respect for equality (redistribution), tolerance and dignity? Or, is it simply a new hierarchy of liberties that we observe at work here? Is a new understanding of liberty capable to call our attention to new forms of authoritarianism (as the concept of negative liberty and its institutions was able to do)? Are we intellectually ready to face managed democracy, anti-immigration, unbound religious or ethnic identity politics, or an anti-politics of global responsibilities without the priority of liberty?

The discussion of papers will take place as the 20th Annual Conference on ‘The Individual vs. the State’ at Central European University Budapest, on June 8 – 9, 2012.

Past Conferences