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b u l l e t i n

Issue V

Freedom Edited by Darcy Leigh


Table of Contents

note from the director of research

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editorial 8 preface 10 A threatening personification of freedom

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Freedom and the Scottish independence referendum 19 Freedom and Unfreedom of Movement

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Freedom and the Criminal Law

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Freedom and Predistribution 37


note from the director of research Dr. Louise Braddock

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he ISRF, founded in 2008, exists to support social science research which is unlikely to be otherwise funded because it is antithetical and challenging to accepted approaches. Indeed the core sense of the ‘independence’ of independent social research is the independence of academic freedom. The ISRF’s founders believe that existing disciplinary boundaries and exclusions have not served either social science or society well and that foundational ethical questions are being lost sight of within ‘normal’ social science. Reorienting research and teaching must be the goal of individual academics, funding agencies and institutions of higher learning if the ethical, the conceptually fertile, and the practically effective are to be combined in addressing real social problems. The Director of Research’s job is to carry out these founding intentions and promote these aspirations. At present the ISRF’s funding is disbursed, or disbursable, in Europe. We are not a UK foundation although, probably because the UK competitive funding system precisely selects very competitive international scholars, we find ourselves at present mainly funding in the UK, with many of the scholars we fund coming from Europe and beyond. It is evident that throughout Europe the academic environment and conditions in which research is done are continually in process of changing, in many different ways and not invariably for the better. We try to respond to this from the perspective, still, of what individual researchers need in order to do what they do best - their own work - and through our Fellowship competitions to find and fund projects which address the ISRF’s founding ambition to revive the ethical in social science. We look for research which aims at conceptual originality through

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NOTE FROM THE DIRECTOR OF RESEARCH

radical, innovative thinking and unusual ideas and methods, and which is combined with scholarly excellence. Our assessment process is geared to this search. Its cornerstone is peer assessment over as much of the disciplinary range of each proposal as can be managed: we don’t ‘mainstream’ and we do work hard to get full competent assessment for unusual ideas and methodologies. For this we rely on, and are very appreciative of, the remarkable willingness of pretty much everyone we approach to do this for us gratis. We try to make the task as straightforward as possible and, as with the applications themselves, to set a short word-limit and minimise the reading and writing involved. Making every word matter imposes a requirement of conciseness which identifies incisive thinkers among the applicants and allows assessors to be succinct. Assessors put a lot of thought into what they write and we don’t ask them to numericise their views. We read what they say. Inevitably reservations raised in the assessment can militate against a proposal’s being shortlisted. Awards are made by an academic panel which considers and discusses each shortlisted application along with its assessments. After a competition I am always willing to give what feedback I properly can to those who are unsuccessful and, when assessors agree, to make their (anonymised) reports available to applicants. There is nothing to prevent submission of a revised proposal which takes these comments into account. Our insistence on interdisciplinarity means that we do not privilege any theoretical or methodological orientation in advance of the case made for their use. Nor do we identify themes or programmes for our Fellowship competitions. We are however intent on raising challenges. In 2015 we shall be directing our foundational question about an ethical basis for social science research to current economic thought and its thinkers. The 2015 ISRF Essay Prize in Economics is to be awarded (if an essay of sufficient merit is submitted) in partnership with the Cambridge

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DR. LOUISE BRADDOCK

Journal of Economics where the winning essay will appear. It is being advertised currently (see the end of this Bulletin), with a view to seeing how scholars in the discipline respond to the topic ‘What is the place of care in the economy?’ This is a question that surely matters to us all and it will be interesting to hear what social scientists, from across the ‘disciplines’, have to say to us about it.

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editorial Darcy Leigh ISRF Editorial Assistant

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elcome to the fifth issue of the ISRF Bulletin. This issue is my first as its Editor. I joined the ISRF in June as one of this year’s Editorial Assistants and have taken over editing the ISRF Bulletin from Fraser Joyce. The second Editorial Assistant, Rachael Kiddey, joined at the same time. Rachael and I have spent many hours - along with ISRF Administrator Stuart Wilson and Director of Research Louise Braddock – working out how best to showcase the ISRF to the world. This Bulletin is just one part of that ongoing task. In addition, Rachael is developing the ISRF’s online presence and, as she describes in her note at the end of the Bulletin, is translating Fellows’ research into new arenas and formats. Rachael, Louise, Stuart and I are all working towards the annual ISRF workshop next year in Edinburgh which will be on ‘Social Science as Communication’. None of this would be possible, of course, without the ISRF Fellows. The Fellows work across a vast array of different topics, fields and methodologies. It has been an exciting challenge to grapple with such a diverse body of work during my first months with the ISRF. My task has been to put Fellows in conversation with each other through the Bulletin. In this issue that conversation is facilitated by the theme freedom and is framed by ISRF Academic Advisor Marilyn Strathern’s preface. The issue captures a shared commitment of ISRF Fellows: to engage real world social problems in original ways. Freedom has long been a central concern of social scientists. In recent years, however, the words ‘resistance’, ‘critique’ and ‘agency’ have often replaced ‘freedom’ in academic discourse. Perhaps this is in part

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DARCY LEIGH

due to a turn away from large-scale thinking and theorizing, and a recognition of the risks and challenges attendant to researching something called ‘freedom’. Nonetheless, contributors to this Bulletin have risen to the challenge and returned ambitiously to the question of freedom. They have not, however, returned to old ways of thinking about freedom. Instead, in my reading, the pieces in this Bulletin conceive and engage the problem of freedom in entirely new, current and concrete ways. For all these reasons, it gives me great pleasure to introduce this issue of the ISRF Bulletin.

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preface Professor Marilyn Strathern ISRF Academic Advisor, Fellow of the British Academy and honorary Life President of the Association of Social Anthropologists (UK and Commonwealth).

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s it all a matter of room for manoeuvre? Or a question of trade-offs and compromises? These five glimpses into some of the constraints brought to mind by the idea of freedom set up an intriguing nexus of questions about limits. Of course, at least as it is used in English, ‘freedom’ behaves as it says: the very extensiveness of the concept seemingly opens out onto a horizonless expanse of possibilities. Yet what is of itself free of delineation subsequently comes to appear limited through whatever the specificities by which it is grasped and described. Specificity is inevitable. To deploy the concept in a particular situation (that is, to deploy it at all) is to curb its scope. This might not be so apparent if one were not here, in a very short compass, afforded several challengingly different reflections. Each writer has in fact used the constraint of the short compass to great effect. There is also, as I shall suggest, a further effect in these pieces being brought together. The first two writers (Hook and Hearn) are both dealing with situations where the concept of freedom is in the air as politically potent rhetoric. Although the conditions of unfreedom are so different, what is arresting is the way in which a future becomes bound up with – tied to, twinned alongside – what, to follow Hook, are freedom’s signifiers: land for black South Africans, nation in the yes-voters for Scotland’s independence. Neither is to be dismissed as ethnic chauvinism, Hearn’s warning in the Scottish case, for the twinning with freedom speaks to much more than political rhetoric. In both instances it [the twinning] points to

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PROFESSOR MARILYN STRATHERN

profoundly held convictions about how one would ever know one was free: freedom for the individual is measured by the realization of certain aspirations for a collectivity. It is grasped, described, in these terms. The idea of land or of national government being in these hands rather than those hands becomes specifiable in the personification of promises of one kind rather than another or in the value put on exercising choice for one set of constraints over another. Then again, for white South Africans, signifiers of freedom coincide with signifiers of threat, while both sides on the Scottish referendum may see empowerment – one of the goals of freedom – as the better embedded in the constitutional arrangement that only they themselves favour. With their sympathetic critiques, Hook and Hearn set the tone of the essays as a whole. There is a different resonance between the accounts by Laite and Matravers. Here freedom is brought to life by the authors as a necessary if implicit assumption on the part of those responsible for defining policy or making legal judgements. It is tied to the exercise of individual agency: the degree of coercion under which individuals are held to act gives something of a measure of their existing freedom. It becomes open to assessment. But that depends on teasing out what is often blurred together. If officials dealing with the trafficking of persons sought to dramatize the plight of those under duress by running together different motives for migration organized through third parties (traffickers), one outcome is how these days to disentangle the heterogeneous issues involved, notoriously between sex work and labour migration. Perhaps the officials were half right, insofar as they were pointing to the systemic nature of exploitation, although Laite poignantly observes that government intervention has had trafficking-like, exploitative consequences too. And legislation to make it harder for traffickers coercing those perceived to be vulnerable in the end limits the free movement of persons. The question of coercion is central to Matravers’s general reading of the (British) criminal justice system in the eyes of moral and legal philosophers. The systemic nature of people’s unfreedom – all

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PREFACE

the contingencies that mean that no single act is ever without innumerable causes beyond the agent’s control – has to be disregarded: when it comes to making a judgement, the freedom that is assessed is narrowed down to the capacity of the person to choose (to do) an action. Alternatively put, this seemingly small but absolutely crucial principle is magnified for the significance it has precisely when it becomes the signifier of the agent as a free person. It leads Matravers to make an audacious plea for keeping the tension in play between moral culpability and legally recognized criminal responsibility – a window forever open – in reflecting upon assessments in actual cases. The fifth piece also ends with a question about how things might be different. O’Neill squarely confronts the systemic nature of unfreedom with respect to the equalizing of opportunities and outcomes that underpin the kind of effective freedom that is worth wanting. True democratization of productive capital, for instance, would entail the twinning of freedom and equality in the definition of the citizen. His concept of predistribution points specifically to the need to assess the distribution of ownership and control already embedded in political-economic conditions. This conclusion is prefaced by a consideration of philosophical debates that remind us of the diversity of conceptions of freedom, here within the same disciplinary compass. It is liberating to appreciate that there is indeed no reason to make any single realization of freedom normative in our thinking. At the same time the discussion of the notable argument that there is only one conception of it – everything else is specification or constraint – touches on the magnifying feature of the idea itself with which we began. The imagining of freedom amplifies the room for manoeuvre that people accord themselves or are prepared to allow others or must wrest from the odds they see stacked against them. These essays give us a spectrum of positions on such imaginings. Taken together, it seems to me, they mirror back something of the writers’ freedom to pause and reflect, which surely magnifies the scope of the ISRF fellowship programme. 12


A threatening personification of freedom Robert Sobukwe and the promise of land Dr. Derek Hook ISRF Mid-Career Fellow, Lecturer in Social Psychology at Birkbeck, University of London

My ISRF research project ‘Post-apartheid libidinal economy’ concerns the affective postures adopted by white South Africans two decades after the demise of the white supremacist system of apartheid. Crucial here is not simply the idea of affects, as freefloating emotional patterns, but affect precisely as it is linked to a given social imaginary. The 20th anniversary of the fall of apartheid coincided almost perfectly with the death of Nelson Mandela, a coincidence which proved telling in a number of ways. The year in question – 2014 – was an election year, and it proved to be a political watershed of sorts. It was a period that saw a marked increase in so-called ‘service delivery protests’ and in the prominence of radical political demands, like that of the Economic Freedom Fighters (EFF), led by the fiery Julius Malema. The EFF argued, amongst other things, for the nationalization of the country’s banks and mines, and for the expropriation of illegally appropriated land without compensation. What is the land the EFF have in mind? The land stolen from the indigenous people of the country – Africans – by successive systems of colonial and apartheid governance.

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A THREATENING PERSONIFICATION OF FREEDOM

Nelson Mandela remains a totemic image in South Africa. His name – something of a master-signifier in self-representations of many white South Africans – is a synonym for the liberal discourse of multi-racial tolerance and progress. One cannot deny the symbolic – if increasingly unrealistic and idealized – significance of Mandela. All this being said, the death of Mandela appears to have coincided – certainly judging by the political rhetoric of the times – with the practical demise of ‘rainbowism’, that is, the project of multi-racial reconciliation and integration (of the ‘Rainbow Nation’) that Mandela made many to believe was possible. This was the sobering reality of 2014: Mandela, as a figure embodying the promise of post-apartheid optimism, of a truly post racial future, a future where social divisions would be definitely overcome and surmounted, has most certainly been laid to rest. I have been interested, working as I am from a psychoanalytic basis, in affects, in the phobic, anxious, idealized and defensive reactions of white South Africans to the new political realities that are dawning on the country. Such affective reactions often play an important role in consolidating group identifications, in holding in place the passionate attachments that more than anything define the group in question. As noted above, such an investigation of affects necessitates as engagement with associated narratives (narratives which often entail a powerful fantasmatic dimension), with the corresponding social imaginaries, that is, figures of fear, anxiety, of repressed history, and so on. Interestingly – although perhaps not unexpectedly – signifiers of freedom and threat coincide for many white South Africans. Given the history of South Africa this is, in retrospect, unsurprising, certainly so inasmuch as calls for economic freedom, for the re-distribution of the country’s wealth and the expropriation of land will necessarily pose a threat to those in possession of these resources. There are many ways of tapping into such defensive formations,

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DR. DEREK HOOK

trying, for example, to read the popular press for nightmare scenarios, for those larger-than-life eventualities – fantasy scenarios – of social demise, representations of what white South Africans most cherish and fear losing, the figures they love to hate, and so on. One finding of the research was that these reactions often were personified, pinned to either a historical figure (like Mandela himself) or a current personality (like Malema). Less expected was the fact that such a personification might also be operative in the context of a ‘return of the repressed’. What do I mean by this? In collecting instances of popular and political culture in South Africa – newspaper articles chiefly, but also online resources – I became aware of the re-emergence of a historical figure that had, so it seemed, been long subject to a consensus of forgetting. The figure in question was Robert Mangaliso Sobukwe, Mandela’s one-time political rival, and leader of the Pan-Africanist Congress responsible for the mass demonstrations of March 1960 that had sparked the infamous Sharpeville massacre. Sobukwe, an intellectual and political leader that preached an uncompromising form of African Nationalism, far more militant and revolutionary in tone than the liberal multi-racialism of Mandela’s African National Congress, has over the last decade suffered an ignominious symbolic fate. Relegated to the status of historical irrelevance by the majority of South Africa’s voting public, Sobukwe’s views are once again rising to the surface of popular consciousness. Historically-located as his Africanist critiques might be, his attacks on the shortcomings of liberal tolerance as a palliative in apartheid South Africa, and on the enduring structures of white privilege, remain potent still today. We might put it this way: if there is a personification of the return of the repressed in the fearful political imaginary of white South Africans, it is Sobukwe. Let me give two brief examples – cut from my ongoing research – of what Sobukwe means today in South Africa: It has now become known that Mandela gave the country

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back to the colonialists, and today they are fighting to retain those privileges. The colonial and imperialist world has turned Mandela into an icon and there is now a preposterous cult of the man. Sobukwe, who spent almost eight years alone, separated from the other political prisoners on Robben Island is given secondary importance. Why?1 Sobukwe here becomes a corrective to liberal (and/or colonial/ imperialistic) narratives affirming the greatness of Mandela. From this perspective, Mandela ceases to be the master-signifier that holds together a viable post-apartheid social consensus and starts to represents something different: a misdirected form of political compromise that ensures not so much a break between apartheid and post-apartheid political eras, but rather a form of continuity. Consider, furthermore, the analysis offered by Sipho Seepe: As we enter the period of disillusionment with the so-called rainbow nation that excludes the centrality of African content, we need to…reclaim our heroes, learn from the our past.. Sobukwe’s literary and political contributions are a necessary antidote to the meaningless but intoxicating language of rainbowism. 2 In short: the name ‘Sobukwe’ today stands as shorthand not only for a series of critiques of the current socio-economic postapartheid order, but – much by the same token – for a series of promised freedoms that have yet to be attained. Perhaps more cutting yet is the critical commentary offered by Dumisani Methula. Sobukwe, he maintains, would have spoken out against: the elitist transition founded on racial capitalism and the 1. Bunsee, B. (2013). True ideologies of Pan-Africanism will triumph. Sunday Independent, 23 June. 2. Seepe, S. (2008). Sobukwe – Legacy Revisited. http://www.iol.co.za/ news/politics/sobukwe-legacy-revisited-1.391095#.U615631wbmI accessed 28 July 2014 16


DR. DEREK HOOK

philosophical ideology of political neo-liberalism that took place in 1994, that secured the interests of white oligarchs and the emerging black bourgeoisie at the expense of the majority of African citizens in Azania… Sobukwe would have spoken against the property clause in the constitution, that legalized land theft and justified land robbery and resulted in South Africa being notoriously the most unequal country in world. 3 Part of what is so useful about Methula’s commentary is the degree to which he goes on to stress the importance of the land question. Sobukwe’s political ideology and social philosophy, he says, “was centred on the land question, for him land redistribution was the alpha and omega…of understanding the struggle for liberation”. Let us draw to a close then by noting a few observations on the cultural and historical significance of land as a signifier of freedom in the African context. In the September 2014 issue of New African, Onyekachi Wambu reflects on this issue in an article entitled: land equals freedom.4 He recalls discussing the issue with an English colleague who claimed that Africans overobsessed about land, particularly in modern economic times when technology, capital, and even ideas were, by contrast, more valuable. An incredulous Wambu tried then to explain to his colleague how the issue of land lay at the heart of the liberation struggle; that African notions of freedom are inextricably linked to the land, that land effectively equals freedom; how the concept of a free person in Igbo culture is “an Amadi”, a peer with land. Wambu intimates that what is true of his native Eastern Nigeria is true of much of Africa: land has traditionally been at the heart of the political economy of the people. In the same issue of New African Pusch Commey offers the 3. Methula, D. (2014). The historical legacy of Robert Mangaliso Sobukwe. Unpublished paper presented at Sobukwe Today Colloquium, University of Pretoria, 5 March. 4. Wambu, O. (2014). Land equals freedom. New African. September, p. 98. 17


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following comments – an appropriate conclusion for this brief article – on what land inequality might mean for the future of South Africa: It is undeniable that the scourges of colonialism, racial oppression and exploitation have an economic motive, and the root of all these has been the land and its economic benefits. And as long as the question of unequal land distribution and ownership remains unresolved, all the gains of democracy, economic boom, and racial reconciliation…could one day be swept away in winds of frustration.5

5. Commey, P. (2014). Not all that glitters… New African, September, pp. 6-7. 18


Freedom and the Scottish independence referendum Professor Jonathan Hearn ISRF Mid-Career Fellow, Professor of Political and Historical Sociology at the University of Edinburgh

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s I write this Scotland, where I live, is about a week away from an historic referendum on the question of whether or not to become independent from the UK. The polls have narrowed—at the moment it is neck and neck between the ‘yes’ and ‘no’ options. In this context (combined with the start of the teaching semester) it is difficult to put one’s mind to much else. But I think I can make a virtue of a necessity, because what people think and feel about freedom has quite a lot to do with this issue. So let me try. The first point is that people today often misunderstand nationalism, simply equating it with ethnic chauvinism, or an emotional commitment to some identity, however defined. It is true that nationalism mobilizes whatever identity resources there are to hand, and these are often ethnic and cultural. But other kinds of identity also are subject to mobilization, such as religion or political ideology. Nationalisms have also mobilized strenuous civic republicanism and Marxism, among other things. There is much more than just the mobilization of identity at work here. Modern nationalism has its roots in movements of the eighteenth century that sought to throw off the domination of traditional elites and assert freedom, in the form of new territorial sovereignty (the US), or the replacement of old elites by a new class (France). And this is characteristically done in the name of

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FREEDOM AND THE SCOTTISH INDEPENDENCE REFERENDUM

‘the people’, as a project of collective liberation. This idea of a free people had its ideological antecedents, particularly in the republicanism of the Renaissance Italian city-states. But it took on a substantially new form as the rise of transatlantic commercialimperial society weakened traditional structures of authority, creating the space for evolving ideas of democracy to more fully establish themselves and supplant those structures. This demand for freedom, sovereignty, and self-determination, is at the core of nationalism. Anyone who thinks it is simply an expression of ethnic chauvinism does not understand the phenomenon they are dealing with. This association of nationalism with the demand for freedom does not automatically give it a clean bill of health, but it does mean that respectable demands for freedom will often, for necessary structural reasons, take a national form. That is the situation we find ourselves in, in contemporary Scotland. To make sense of the referendum, and the heat surrounding it, we need to understand the value we place on freedom, and the complexities of that deceptively simple idea. One side in the current debate sees national independence as the best or necessary path to greater freedom. Collective control over national and natural resources, scope to customize social policy, the capacity to opt out of morally repugnant politics (e.g. the Iraq War, Trident), are some of what this position aims for. The people want to be free to make separate choices from the rest of the UK on these matters, and there is evidence that they would make many different choices to those made by UK governments in the recent past, if they had the choice. Calls for freedom are always shaped by, and defined against, that which they resist. There is a prevalent view in Scotland that its freedom has been perversely limited by a UK state, captured by neoliberal ideology, and destined to be controlled by either the Tories or a Labour Party that has given up on its social democratic roots. Or even worse, to be given over at the hands of UKIP, to a combination of ‘little England-ism’ and anti-Europeanism. Many Scots see these

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as encroachments on and threats to their freedom. The cry has been that there is a permanent democratic deficit—that Scots are regularly at risk of being governed by a Conservative Party with only minimal support in Scotland. And indeed, the modern state and its governments, laws and policies are always the immediate face of the limits that are placed on our freedoms. It is something relatively solid and tangible that one can kick against. The other side in the debate sees continuing membership in the UK, combined with the likely extension of devolved powers, as the best way to protect and increase the freedom of the Scottish people. But this side is not kicking against a clear opposition, other than the SNP and the ‘yes’ campaign (two different things), which makes its alternative assessment of freedom much less apparent. Instead it is inevitably cast in the role of the agent of those very forces of unfreedom that the yes campaign opposes. ‘No we shouldn’t’ tends to be heard as ‘no you can’t’, which in some quarters merely consolidates the yes position. But there is a case to be made here. Freedom in the real world is always limited by circumstances, and membership in larger collectivities amplifies the agency of mere individuals. Those who want to be as free as possible need to make hard choices about which collectivity they invest their powers in. The ‘no’ campaign generally consist of people who think the UK is still a crucial context for that enhancement of freedom, from the individual, on up through the various collectivities that make up our lives in modern society. Both sides can legitimately question each other’s judgment about where the best option lies. But the image that one side wants to loosen its chains, while the other wants tighten the manacles (an eternal image of nationalism), is a misrepresentation, a rhetorical flourish. Much depends on what we identify as the sources of our unfreedom, our domination. As I said before, the state always provides the most visible face of constraint. It forbids, punishes infractions, and allocates powers. But states dominate us not just as the final arbiters of force and law. Democracy itself constrains

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us at the same time that it enables us. The freedom to play a role in choosing those who govern us comes with the constraint of submitting to those we have not chosen, at least some of the time. And even if we manage to elect our preferred rulers, their policies will reflect complex compromises among supporting forces, and only partly our preferences. The state and its political classes are of course only one force that places limits on our freedoms. Global capitalism, while constituted through and reliant upon an international network of cooperating states, and often having strong national roots, nonetheless as a whole creates a transnational environment over which each state has only partial control. States and their policies are dominated by economic forces beyond their immediate control. Moreover, states are compelled to operate within a context of international alliances, and sometimes hostilities, in which big players have disproportionate influence over negotiations and agreements. In the context of the Scottish referendum, the point is that breaking away from the domination of the British state and various political parties it contains is not the same as breaking away from the domination of capitalism or the constraints imposed by international relations. If Scotland becomes independent, the constraints imposed by international capitalism and geopolitics, will become more apparent. So we can seek to break free from the structures that limit our freedom. But another way to look at this question is to ask, not what is placing limits on our freedom, but what will enhance it. Implicit, or weakly articulated in the ‘no’ campaign’s arguments, is the idea that membership in the UK for Scotland is not just more safe, secure and stable, but more empowering. Power, which is the true face of freedom, is always a matter of amplifying one’s lesser powers by conjoining them, through social coordination and organisation, with those of others. In teams, businesses, alliances, unions, campaigns, parties, and yes, states. And that amplification of power, of scope of choice and maneuver, inevitably involves compromises with one’s fellow members. The core contradiction of power dynamics is that greater freedom

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sometimes requires greater submission. This is a frustrating message. Who wouldn’t choose to be free, full stop, over being free by means of a chosen form of subordination. But only the latter is ever really on offer. So it is perhaps not surprising that the ‘no’ campaign have had trouble making their case. I am sure that in some quarters of the unionist camp, there is condescension towards the idea of Scottish self-government, and insulting belief that Scots couldn’t manage on their own, that they require the safety and greater wisdom of Britain. But I am also sure that many on this side of the argument sincerely believe that Scotland is more empowered within the UK than it will be without, that the compromises of UK membership nonetheless yield more freedom than the compromises of independence. An honest case for independence needs to grapple with this same dilemma. It needs to discuss not just how options are constrained by the status quo, but how a sovereign Scotland will confront the pressures of global capitalism, to lower taxes and wages in competition with other states, and the pressures of other states to enter into various undesirable deals. The inherent compromises and constraints of democracy will appear again in an independent Scotland. The frustration of getting the government you didn’t vote for will be reproduced. It is in the nature of democracy that a substantial portion of the population always gets the government it didn’t vote for. Independence will be liberating in some respects, but perhaps not as globally liberating as many on the ‘yes’ side seem to expect. I have no doubt that many on the ‘yes’ side are aware of these challenges, but have reached such a state of exasperation and disillusion with the political status quo in Britain that they prefer to face these and other challenges, and take their chances. I am also convinced that there is a good portion of those planning to vote yes who have unrealistic expectations about the liberating effects of independence and the scope of maneuver Scotland will find there. There is a risk of a new wave of distinctively Scottish disillusion for these people. The language of nationalism is one that links problems of personal

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FREEDOM AND THE SCOTTISH INDEPENDENCE REFERENDUM

agency to those of the collective agency of the nation. It promises freedom in those terms. All forms of collective social organisation that seek support and membership do this—it is not peculiar to nations. This is also true of trade unions and political parties for example. But as we know, the membership and vibrancy of those last two are in a sorry state. They have been weakened, in part by a broad cultural shift towards the idea that it is as individual agents in the marketplace that we will achieve the most freedom. In this environment it is not surprising that a national movement in Scotland, with its left-of-centre leanings, has become the vessel that helps carry aspirations for greater agency and freedom. How much of that it can deliver, if a Yes vote succeeds, we will have to find out. The extreme alienation from the moribund and Londoncentric state of mainstream British politics is understandable. I’m sure it is not peculiar to Scotland. But for reasons of historical particularity, Scotland has a means of acting on that alienation that the other parts of the UK do not have. The perhaps surprising strength of the Yes campaign is evidence of the enduring link between nationalism and the search for freedom in the modern world.

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Freedom and Unfreedom of Movement Women’s Labour Migration and Discourses of Sexual Trafficking in Historical Perspective Dr. Julia Laite ISRF Early Career Fellow, Lecturer in History at Birkbeck, University of London

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rafficking is one of the most used and most controversial terms related to migration. It has roots in the late nineteenth century concept of ‘white slavery’, which was used to refer simultaneously to the forced migration of women across borders for the purposes of prostitution, to exploitation within prostitution, and sometimes to prostitution itself. By 1927, the League of Nations recognized the term ‘white slavery’ as out of date and inaccurate, and changed the term to ‘the traffic in women and children’ in its conventions. Despite the change in wording, League definitions of trafficking remained firmly entangled with prostitution in the interwar years, and the first UN convention on trafficking, adopted in 1949, did little to change the accepted paradigm. While it conceded to be the ‘Convention for the Suppression of the Traffic in PERSONS’, it included the suppression of ‘the exploitation of the Prostitution of Others’ within its remit, which entangled trafficking not only with migrant prostitution but also with non-mobile forms of exploited commercial sex. By the post-war era, ‘sex trafficking’ was largely synonymous with ‘trafficking’ more broadly. The metaphor of slavery continued to be employed to describe sexual

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FREEDOM AND UNFREEDOM OF MOVEMENT

trafficking, but also prostitution more generally. This was tied up with a particular branch of feminist politics that maintained that it was impossible for a woman to choose prostitution, and that prostitution was, inherently, a form of violence against women. This contested viewpoint has dominated in international discussions about policies surrounding prostitution and trafficking. The history of these terms and policies are important because the historical entanglements of trafficking, smuggling, and prostitution have dramatically impacted the way in which all three are understood and dealt with. The linguistic, ideological and legal entanglements of these phenomenon have obscured the way in which migrant sexual labour and sex trafficking are part of wider labour migrations and labour exploitations. In keeping the problematic associations of ‘trafficking’ and ‘prostitution’, and in insisting on migrant sexual labour and sexual labour more generally as predominantly ‘unfree’, discourses on sex trafficking have helped to construct immigration regimes that deny the rights of free movement to vulnerable women. In the early twenty first century there is a growing body of social science research that indicates that women are just as if not more likely to be trafficked as service workers than as prostitutes, and that men can very often be victims as well. There is a growing awareness of ‘the trafficking in human beings’ today, but ‘sex trafficking’ remains the aspect that garners the widest attention. Meanwhile, policies around trafficking focus upon tackling international organized crime and upon prevention, which usually means curbing movement in the first place. As sociologist Maggy Lee argues, not only do policies on sex trafficking overlook the fact of women’s migration, they actively attempt to discourage it and to remove the right of people to be mobile. Meanwhile, careful language is used to distinguish trafficking from smuggling. While trafficking victims cannot consent to their trafficking; smuggling takes place with the consent of the person being smuggled. These are semantic and legal distinctions far more than

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they are experiential ones, and I would argue that they are virtually impossible to separate, particularly in the historical record. In my ongoing research that is supported by the ISRF, I am especially interested in the ways that these restrictive immigration policies have affected migrant women and sex workers, and created more problems than they have solved. I will be focusing in the main upon the history of trafficking and its attendant policy in the first half of the twentieth century, a period that laid most of the ground work for the immigration policies and anti-trafficking initiatives that are in place in the present day. These initiatives have been studied so far from an ideological and internationalist perspective, and have focused on wider social and political movements rather than local case studies. Instead, I will be looking at the experiences of the women who were caught up within trafficking and smuggling networks as well as immigrationcontrol measures, and assessing the ways in which anti-trafficking measures were applied at the local, ground level. I want to know about the actual impacts of the laws that were put in place in the early twentieth century, both intentional and unintentional. I also want to break down the false dichotomies of ‘freedom’ and ‘unfreedom’, of ‘work’ and ‘exploitation’, that helped to construct these laws. So far, I have begun to discover how the application of antitrafficking measures was deeply entangled with new measures that controlled labour migration. In Britain, these interventions were highly complicated, involving not just police officers and immigration officials, but also magistrates and judges, high ranking civil servants, and members of philanthropic and moral reform organizations. Individual states and local governments struggled with the application of idealistic international legal conventions, based upon simplified conceptions of the differences between trafficking and smuggling, sexual labour and other labour, and ‘consent’ and ‘exploitation’, to real-life situations. Law made in the name of trafficking was also sometimes driven by other more pragmatic and self-serving reasons. States may have

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aimed to encourage undocumented migration as a source of cheap labour, for example, or conversely to discourage migration as a way to protect the racial integrity of a particular group. 1 The interventions were also met with the machinations of the women themselves (who often undertook to reenter the countries they were expelled from) and the solicitors and barristers they — as well as their smugglers and traffickers — increasingly hired. It is at this local level where we are best able to see migrant women’s entangled experiences — between sexual labour and domestic labour, between agency and victimization, and between trafficking, smuggling, and licit mobility. Thinking about sex trafficking as intimately and historically related to migration and labour more generally has the power to disrupt not only the equation of trafficking with prostitution, but also the understanding of trafficking as something done by organized criminals as opposed to the state. In Blue China: Single Female Migration to Australia, for instance, Jan Gothard catalogues in detail the way that the Australian and UK government’s sponsored migration programs for female domestic servants frequently defrauded and indebted women who migrated into service. The nature and location of their work was commonly obscured, their rate of pay was often misrepresented, and they were threatened with repayment of their passage if they left their assigned role. Putting aside the very obvious trafficking-like practices of convict transportation, and the even more obvious fact of western governments’ prolonged involvement in the chattel slavery of West Africans, work on government-sponsored migration helps to demonstrate the just how blurry the lines between trafficking and many forms of government approved migration are. The discourse of trafficking has created a false dichotomy between the legitimate state’s control of migration and illegitimate organized crime’s control of migration, whereas in reality both serve to promote labour exploitation and achieve this aim in 1. Indeed, as historians Eithne Luibheid as well as Adam McKweon point out, ostensible panics about Chinese prostitutes in the American West were crucial to blocking all female—and later male—migration from China. 28


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similar ways—threats of repatriation, defrauding, imprisonment, the confiscation of identity documents, and control over the specific labour that the person who was trafficked, smuggled or sponsored is required to perform. Even in cases where it is difficult to directly implicate the state in the business of trafficking, it is clear that migrant domestic servants and migrant prostitutes were managed by similar authorities, who struggled as the twentieth century progressed to define different kinds of legal and illegal migration. In this way these authorities managed concerns about illicit migration through their participation in international conventions against trafficking, while also recognizing that the free flow of cheap feminized labour was crucial to the functioning of the modern global economy, and their national one as well. If prostitution was the nineteenth century’s ‘necessary evil’, seen as the only way to control men’s sexual urges outside of marriage, then trafficking is today’s ‘necessary evil’, see as the price western government must pay to benefit from cheap and undocumented labour, while simultaneously appearing to restrict migration. When ‘white slavery’ was first conceived of, it was only foreign prostitutes, and a handful of others, who were subject to immigration restrictions. The very early twentieth century West still believed in the right of people to freedom of movement, and recognized their obligations (albeit frequently begrudgingly and self-servingly) to allow imperial people access to the metropole. Today, the migration of all people who do not hold citizenship or permanent residency of the nations in which they wish to work is restricted. Anti-trafficking legislation, which was all too often deployed as anti-immigrant legislation, played no small part in creating the massive restriction of immigration that people experience in the present-day. Crucially, we must recognize that the discourse of white slavery and trafficking was instrumental in shaping immigration law and policies. From the very beginning, trafficking was entangled with the regulation of labour and mobility. By effectively disallowing the free movement

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of most people around the world, even though the globalized economy created their inequality and demands their migration, the immigration restrictions in place today have gone a very long way to creating the problem of trafficking and smuggling. Laws that were conceived of to combat sexual un-freedom have taken away migration freedom, and encouraged exploitation. For some, these are highly problematic entanglements. Where does this leave the lines we have drawn between migration and smuggling and trafficking, sex work and other women’s marginal and exploited labour, and between the demand for prostitutes and the demand for servants within an iniquitous gender structure and global economy? If smuggled and trafficked domestic servants report experiencing sexual violence and exploitation as much or more than prostitutes—and if migrant sex workers claim to have started selling sex in order to escape from other exploitative labour—where does that leave those who insist that sex trafficking is a specific and isolated problem? And where does that leave the question of the state’s—and our own—complicity in these licit and illicit, free and unfree, migrations? Sex trafficking blurs the lines between free and unfree movement. The discourse of sex trafficking served to render all migrant sexual labour exploitative. Using the metaphor of slavery, it defined all movement for sexual commerce as unfree. Conversely, or at least ironically, sex trafficking also enabled laws to be put into place to control women’s freedom of movement. The spectre of ‘white slavery’ allowed not only for increasingly strident restriction of women’s migration, but played no small role in helping to build up the bureaucracies and legal frameworks that have come to (unequally) restrict the migration of all persons. Finally, sex trafficking and trafficking more generally, as a modern discourse, has helped to create delineations between free and unfree labour and migration that are actually far blurrier in practice. Historical perspective can help illuminate the discourses surrounding trafficking and profoundly question the accepted way in which women’s sexual labour, migration, and exploitation is understood in the present day. 30


Freedom and the Criminal Law Professor Matt Matravers ISRF Mid-Career Fellow, Professor in Politics, Philosophy and Economics at the University of York

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ontemporary analytic legal and political philosophy is often highly technical. In most cases this is a good thing; fine conceptual distinctions are essential to clear thinking about the difficult topics these subjects confront. That said, in the thickets of the latest contribution to the literature it is possible to lose sight of the original problem. Good philosophy often starts with a puzzle prompted by some feature of the natural or social world: “how can this or that be like this?” or “how can we justify doing this or that?” and it is sometimes interesting to return to that initial puzzle to remind oneself and others what is, as it were, the point of it all. What, then, is puzzling in the relationship of freedom and the criminal law? The criminal law is one of many mechanisms of social control. In much of it - for example, in many regulatory and strict liability offences - it resembles the other mechanisms. However, in responding to serious wrongdoing - assault, murder, some property offences, and so on - the criminal law is distinctive in that it not only imposes particularly harsh penalties on convicted offenders, but it does so as a means (or form) of blaming or censuring them. In these cases, the legitimacy of the system relies on the link between serious legal wrongdoing and moral culpability. A system of criminal law that routinely condemned the morally blameless would rightly be thought unjust and illegitimate.

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Freedom is of course central to this: to warrant condemnation one must in general have acted freely. Young children, the insane, those who are acting under hypnotic influence, and so on, perform actions - and some of those actions might be both wrongful and harmful - but they are not held to be morally or criminally responsible because their actions are not, in the relevant sense, “free” or voluntary. However, this tight connection between core forms of legal liability, moral blame, and freedom confronts us with a puzzle of the kind described above. Our personalities and actions are the results of many factors. Some - perhaps many and perhaps the most important - of those factors have their origins in things we could not have controlled and that pre-date our existence. How then can we be morally at fault - at fault in a way and to a degree that underwrites extremely serious censure and extremely harsh penalties - if our actions are the result in (large) part of such factors? I think this is a serious puzzle that worries us when we engage in the social practice of punishing. However, for the most part, moral and legal philosophers think otherwise. They think to be worried by the mere existence of causes is an almost adolescent error. In the rest of this short piece, I will first say why that is before arguing that the proposed answer does not fully satisfy and that the puzzle and attendant worries continue to haunt not just adolescents and rogue philosophers, but also those engaged in the criminal justice system. Anyone with children - in particular young adolescents - is familiar with the argument (I use the term loosely in this instance), “I didn’t ask to be born” or “you made me; it’s your fault I am this way” usually offered in response to an instance of parental blame or censure. In such a context, we do not take this seriously. Responsibility for not having tidied one’s room, for example, cannot be avoided by appeal to the fact that the unwillingness to do so has some of its origins in factors over which the child had

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no control (even if that is true). What matters, is that the child can deliberate about whether or not to tidy her room and that she has the capability to do so (no-one is stopping her). To put the point more technically, it is not that we have “counter-causal” freedom (that is, our actions are uncaused) that matters, but rather that we possess certain capabilities and our actions are uncoerced (are “free”). The criminal law (at least in its contemporary liberal manifestation) follows in rejecting the need for counter-causal freedom in two important ways. First, criminal responsibility requires, among other things, that at the time of performing some act that violates the law, the agent must possess certain mental capacities - for example, to be able to deliberate and to understand the nature of that deliberation - and (in core cases) must have acted with an appropriate mental state (intent, recklessness or, less often, negligence). Second, the criminal law focuses on the moral quality of the action, not of the actor. The concern is with what the agent did (intentionally wound, for example) not with why the agent did it. Thus, a person who lacks the capacity to deliberate in any meaningful sense - who, for example, believes himself to be controlled by the voices of aliens that whisper in his ear - does not “act” and is not criminally responsible. A person who does act, but whose action features some relevant quality that changes our view of its character - for example, it was performed in selfdefence or under duress - has a defence. She is responsible for the act in the sense that she performed it, but she is not properly held criminally liable (not properly blamed or punished) because her action was blameless. There, the orthodox account of the criminal law rests. Or at least, it rests in terms of responding to the initial puzzle. The literature in criminal law theory is largely in refining our understanding of mental capacity (for example, in discussions of the insanity defence) and our understanding of the moral relevance of various

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forms of control. Most importantly, for present purposes, when any new “threat to responsibility” appears on the horizon, it is to be headed-off by either being incorporated or shown to be incompatible with existing legal doctrines of duress, excuse, justification, and so on. One - perhaps slightly uncharitable way of putting the argument below is that criminal law theorists spend their time revising and reformulating their existing accounts precisely because of the “felt threat” that causal accounts of human action will undermine the whole edifice of moral culpability and thus render legal judgements of blame vulnerable. My argument is not that this is wrongheaded (at all), but rather that the resources to which the orthodox account is restricted are sometimes inadequate to the task. Consider, for example, the idea that there ought to be a defence of “rotten social background”. Think of a young boy raised in very poor social housing by a single unemployed mother who has a succession of abusive partners. The boy engages in petty theft and is routinely dealt with by social services and youth offending teams. One does not have to think that such a child must end up an adult offender, but were he to do so we might think it was at least predictable in the circumstances. Or think of recent advances in neuroscience and imagine a young man charged with assault who offers in his defence a brain scan in which the area of his brain associated with self-control is shown to be in some way damaged (or even simply less developed than is the norm). He is not incapable of self-control, but it is much harder for him not lose his temper than it is for the rest of us. Finally, consider a woman in a long term abusive marriage whose drunk husband threatens her with yet another beating, but before he can administer it he falls asleep. She could leave the house (there are safe houses available although whenever she has gone to them before her husband has found her and convinced her to return), but she does not in this. Instead, she goes to fetch a knife, sharpens it, returns to her husband and kills him.

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Cases such as these can be addressed by asking if they fit (or not) into existing doctrines. We can ask if the deprived adult and the angry man have a sufficient cognitive impairment (as a result of upbringing and brain structure respectively) so as not to know the nature and quality of their acts or so as not to be able to deliberate properly and to act on the results of that deliberation. In the abused woman case, an attempt might be made to bring the act into one or other of the categories of self-defence or provocation. There is much to be said for this strategy (both theoretically and in practice). There are huge dangers in thinking of the disadvantaged, those whose brains can be shown to be different from the norm, and of abused women, as non-responsible; as defective persons who need treatment. Yet, incorporating (or not) cases such as these into the existing law does not do justice to the concerns that they generate. In these three cases, we feel some pressure because, pace the ordinary understanding of the law, we are interested not just in what was done, but in why it was done. We pause to think because it seems unfair to hold the person fully to blame given how they came to be the way they were when they acted. This pressure - and the degree to which it is felt within the criminal justice system - emerges perhaps most clearly in the domestic abuse case. Provocation and self-defence both require a degree of immediacy between the provoking or attacking act and the response and, indeed, in such cases juries in England (and elsewhere) have rejected such defences. In other cases and places, what has been mooted is that such women may be suffering from a personality disorder - Battered Person Syndrome - that may be relevant in assessing provocation or diminished responsibility defences. The result, at least in English criminal law, was that the law was adjusted to allow for a defence of “loss of control” (S.54 Coroners and Justice Act 2009). This removed any requirement of “suddenness” or “immediacy”, and was widely understood to be formulated precisely so as to allow a defence to long term abused women who kill their abusers. What remains,

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though, is a feeling that the assessment of the moral culpability of the battered woman who kills is not captured by the legal account of loss of control. In short, what I have tried to argue is that there is a tension between two things: one the one hand, the criminal law’s narrow understanding of criminal responsibility, which in the main depends on the agent possessing certain capacities to reason and so on at the time of acting and, on the other, our beliefs about moral culpability, which are much more sensitive (I believe) to matters of history and character. That is in part a matter of the nature and function of the criminal law, which is distinct from that of morality generally (as well as from other forms of social regulation). However, the distinctiveness of the criminal law lies not just in its needing standards of proof, procedural rules, and in its needing “to get a result� (something that moral judgements can often avoid), but as was noted at the beginning, in its censuring and punishing. It is precisely in virtue of those features that the tension is so keenly felt: to censure and punish those who, even if they could have acted otherwise, acted as they did for reasons we can understand given the kinds of people that they are is, in many (but not all) cases, morally uncomfortable. Moreover, that discomfort will likely increase as neuro- and other behavioural sciences lay bare the causal mechanisms by which human beings operate. I have not argued that all such causes excuse, but rather that we need to be sensitive to the tension identified and aware that our current model of criminal responsibility may not be adequate to the task of quieting our troubled consciences when we censure and punish.

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Freedom and Predistribution Dr. Martin O’Neill ISRF Early Career Fellow, Senior Lecturer in Moral and Political Philosophy at the University of York

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he thing about freedom is that everybody is in favour of it. Like democracy, freedom is a strikingly popular political value, its popularity explained in part by its adaptability and malleability, and by the fact that there are a plethora of competing conceptions available in the political and philosophical marketplace of ideas. There is an evident connection between the facts that, as Isaiah Berlin put it, on the one hand “almost every moralist in human history has praised freedom” and, on the other, that “like happiness and goodness, like nature and reality, the meaning of this term is so porous that there is little interpretation that it seems able to resist.”1 Thus, Roy Hattersley could write a book defending the pre-New Labour programme of the old, Croslandite rightwing of the Labour Party, and call that book Choose Freedom2, while, decades later, and in a harsher and more strident political context, appeals to “freedom” could also be the rallying cry of the small government ultras of the Tea Party movement in the United States. So too in more philosophical contexts, it isn’t difficult to see that freedom for Rousseau is very different to freedom for Hobbes; freedom as understood by Rawls is similarly distant from freedom as understood by Nozick3,4 1. I. Berlin, “Two Concepts of Liberty,” [1958] reprinted in D. Miller, ed., The Liberty Reader, (Edinburgh: Edinburgh University Press, 2006), p. 33 2. R. Hattersley, Choose Freedom: The Future of Democratic Socialism, (London: Penguin, 1987) 3. J. Rawls, A Theory of Justice, revised edition, (Cambridge, MA: Harvard University Press, 1999) 4. J. Rawls, Justice as Fairness: A Restatement, (Cambridge, MA: Harvard University Press, 2001) 37


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Attempts have been made to cut through the confusion and multiplicity, and to boil down the conceptual variety of conceptions of freedom to something more manageable. In his justifiably famous, but oddly slippery, Inaugural Lecture as Chichele Professor of Social and Political Thought at Oxford in 1958, Isaiah Berlin proposed that we should see there as being “Two Concepts of Liberty” (like Berlin, I’ll use ‘freedom’ and ‘liberty’ interchangeably). Here, Berlin was following selfconsciously in the footsteps of Benjamin Constant, whose distinction was characterized in terms of the distinction between “The Liberty of the Ancients” and “the Liberty of the Moderns”, but the content of which was strikingly similar to Berlin’s own way of dividing-up the territory.5 Constant’s modern liberty, like Berlin’s negative liberty, was about non-interference; that is, being left alone to live one’s life as one sees fit within a zone in which others cannot tell one what to do. Constant’s Ancient liberty, like (at least one version of) Berlin’s positive liberty, was about collective self-government, and living in a political community which gave form and expression to it citizens standing as free individuals, governing their own affairs while undominated by outside forces. Berlin’s distinction between positive and negative forms of freedom is often simply remembered as a distinction between ‘freedom from’ and ‘freedom to’. But the grammatical simplicity hides a multitude of buried conceptual complexities. In fact, Berlin’s attempt at a neat demarcation between two distinct concepts of liberty is notably unsuccessful on more careful examination. His category of positive freedom slides around between a number of non-equivalent formulations. Sometimes his positive freedom is about the kind of republican selfgovernment at the level of the polity that Constant had had in mind when he wrote about the Ancients. At other times it is about an idea of ability or capability not entirely dissimilar to Sen’s later idea6, and held up in distinction to the idea of freedom as merely 5. B. Constant, “The Liberty of the Ancients Compared With That of the Moderns,” [1819] reprinted in B. Fontana, ed., Constant: Political Writings, (Cambridge: Cambridge University Press, 1988) 6. A. Sen, Development as Freedom, new edition, (Oxford: Oxford Univer38


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being unmolested by others, whether or not one is able to do what one wants to do. At still other times Berlin characterizes positive liberty in terms of obedience to one’s ‘higher’ or ‘true’ or ‘genuine’ self, as against the blandishments of mere passion, whim or inclination. This latter characterization is of an idea of liberty of the kind that one would associate with Kant’s idea of obedience to one’s noumenal self, qua giver of the moral law, or, combining this idea of obedience to one’s higher self with the republican idea of collective self-determination, with Rousseau’s idea of acting in accord with the dictates of the General Will. (For a wonderfully clear presentation of Berlin’s confusingly amorphous characterization of the contours of the distinction between negative and positive liberty, see Swift’s Political Philosophy: A Beginner’s Guide for Students and Politicians, 20137 ). It is undoubtedly impressive to see Berlin marshal his troops, recruited from the whole history of western political thought, across the paper battleground of the fight between positive and negative liberty, but it is little wonder that, when the opposing armies contain such a multiplicity of characters as Occam, Erasmus, Hobbes, Locke, Bentham, Constant, Mill, Tocqueville, Jefferson, Burke and Paine, all on one side, and Plato, Epictetus, Montesquieu, Spinoza, Kant, Herder, Rousseau, Hegel, Fichte, Marx, Bukharin, Comte and T. H. Green on the other, that theoretical care gets sacrificed at the expense of dramatizing a scene that is presented in high contrast. There have been successful attempts at clearing up the conceptual territory of accounts of freedom or liberty. Gerald MacCallum’s deeply sensible 1967 paper does an unimprovable job of describing the conceptual space. 8 There are not two concepts of liberty, MacCallum tells us, but just one: Liberty is the freedom of x, from y, to do (or not do, or become, or not sity Press, 2001) 7. A. Swift, Political Philosophy: A Beginner’s Guide for Students and Politicians, 3rd edition, (Cambridge: Polity Press, 2013) 8. G. C. MacCallum, “Negative and Positive Freedom,” Philosophical Review, 76 (1967): 312-32, reprinted in D. Miller, ed., The Liberty Reader, (Edinburgh: Edinburgh University Press, 2006) 39


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become) z. Every claim about freedom is thus both a claim about ‘freedom from’ and a claim about ‘freedom to’, even if one side of the claim is emphasized and the other side is merely implicit in what is said. But while we have just one general concept of liberty, there are a huge variety of conceptions, with these conceptions differing from one another depending upon what kinds of things one views as being a suitable candidate to be an agent, x, an obstacle or barrier, y, and a goal or objective, z. This is elegant conceptual mapping, but of course that doesn’t get us very far at all. It does not settle the issue of how we should conceptualize our x, y or z terms in claims about liberty, and so it doesn’t help much in making sense of which conceptions of liberty are useful or significant or central to our political thinking, and which are not or should not be. My own suggestion is that, when philosophers think about the task of demarcating the most important or pressing concept (or, as MacCallum has it, conception) of liberty, there is a real danger of finding oneself on a hiding to nothing. There is no reason to think that there is a single idea of liberty or freedom that needs to have normative priority in our thinking about the organization of political or economic life, or the form of an individual life. There are a number of distinctive conceptions of freedom that matter significantly on their own terms, and we do a disservice to the complexity of normative reality if we set ourselves the task of valorizing one at the expense of needlessly downplaying others. Let us then take three conceptions of freedom or liberty which, I’ll suggest, are all conceptions that are significant for our thinking about how well individual lives might go, and how one might justify or condemn the political and economic contexts in which those lives play out. I do not claim that this list is exhaustive. But I do claim that, even if not every valuable conception of liberty is here listed, then it is at least the case that every conception of liberty listed here is valuable. Liberty as effective freedom or capability: that is, the idea of not

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just being unconstrained by others in achieving or deploying some valuable human functioning, but actually having the effective means and opportunity to do so. Liberty as autonomy: or the freedom of individuals not just to do what they happen to want to do, but to weigh options, deliberate, come to reasoned conclusions about which goods or ends are worth pursuing, and then pursue them. Liberty as non-domination: that is, the idea of freedom developed in the republican tradition, whereby freedom is about being free of domination by others. This is in the sense that others do not, as a matter of fact, interfere in one’s life. Further, it is also in the sense that others do not have the capacity or ability so to interfere, and that one therefore does not live one’s life free of interference only on the sufferance of others, or only by virtue of courting the favour of some powerful outside agent. Now, my title was “Freedom and Predistribution”, and I have as yet only discussed the first half of that pair. While ‘freedom’ is an essential political idea, part of the core normative language in which we might talk about politics, the idea of ‘predistribution’ is by contrast much more abstract, wonkish, and distant from quotidian political debates. But the idea is simple enough, and is easily explained by reference to the contrast with redistribution. Redistribution is the pursuit of fairer or more egalitarian outcomes, not through shaping markets or the capacities or powers of individuals who engage in market activities, but through shifting the fruits of market activity from one individual to another through fiscal transfers. Predistribution, by contrast, is the process of creating a fairer or more egalitarian economic settlement not through ex post transfers, but by reshaping markets and the powers and capacities of those who engage in market activity (See O’Neill and Williamson, 20129; Hacker, Jackson and O’Neill, 201310). 9. M. O’Neill and T. Williamson, Property-Owning Democracy: Rawls and Beyond, (Boston: Wiley-Blackwell, 2012) 10. J. Hacker, B. Jackson and M. O’Neill, “Interview: The Politics of Predis41


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Predistributive strategies may take a variety of forms, some connected to early investment in human capital (see, e.g. Heckman, 201311 ; Morel, Palier and Palme, 2012 12 ), others connected to changes in economic governance so as to shift the balance of power from employers to workers, or between capital and labour more broadly, and still others to do with the general background distribution of ownership and control over productive resources (see Meade, 196413; Rawls, 2001 14; O’Neill, 201215; O’Neill and Williamson, 201216). Justifications for the shift between redistributive and predistributive strategies have generally been motivated by claims about the proper understanding of the core normative value of equality. But what I want to claim here – and what I do can only be to raise this as a claim, and signal it as a claim that I hope can be substantiated in further work on these issues – is that the normative justification for the shift from a focus on redistribution towards exploring the capacities for strategies of predistribution is one that can also find its justification in terms of a number of these central conceptions of valuable forms of freedom that I have outlined above. Seeing an important role of government as building-up the capacities, powers and capabilities that individuals can then deploy in economic life (see, e.g. Heckman, ibid.), as opposed tribution”, Renewal: A Journal of Social Democracy, 21 (2013), 2-3, 54-64. Online here: http://www.renewal.org.uk/articles/interview-the-politicsof-predistribution/ 11. J. Heckman, Giving Kids a Fair Chance, (Cambridge, MA: MIT Press, 2013) 12. N. Morel, B. Palier and J. Palme, eds., Towards a Social Investment Welfare State? Ideas, Policies and Challenges, (Policy Press, 2012) 13. J. Meade, Efficiency, Equality and the Ownership of Property, (London: George Allen & Unwin, 1964) 14. J. Rawls, Justice as Fairness: A Restatement, (Cambridge, MA: Harvard University Press, 2001) 15. M. O’Neill, “Free (and Fair) Markets without Capitalism: Political Values, Principles of Justice and Property-Owning Democracy,” in M. O’Neill and T. Williamson, eds., Property-Owning Democracy: Rawls and Beyond, (Boston: Wiley-Blackwell, 2012) 16. M. O’Neill and T. Williamson, Property-Owning Democracy: Rawls and Beyond, (Boston: Wiley-Blackwell, 2012) 42


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to compensating, through transfers that can be used to increase individual consumption, those whose economic powers prove weak, is a shift defensible both in terms of the value of effective (rather than merely formal) freedom and the value of individual autonomy. Similarly, using changes in economic governance to rebalance the relative powers of workers and employers is precisely to create a world in which economic relationships lose the character of interpersonal domination that they can have when asymmetries of power are substantial, and is thereby to be valued in terms of the republican conception of liberty as non-domination. Predistributive strategies of both investment in human capital, and of reregulating and rebalancing economic relations of production, have weighty effects in terms of individuals’ access to the kinds of freedom worth wanting. Perhaps even more significantly, the dispersal and democratization of productive capital, which is at the core of the more radical dimensions of predistribution associated with a tradition of egalitarian political thought that flows from Thomas Paine in the eighteenth century (see Paine, [1797], 200017; also Jackson, 201218), through to James Meade and John Rawls in the twentieth century, would transform the political economy so as to make it a much more fertile territory for these valuable forms of freedom. As I’ve said, such radical approaches to reimagining the structure of economic life most often find their normative defence in terms of the value of equality. It is worth bearing in mind, however, that the motivating conception of equality is itself an idea of equality between active, free individuals (in Rawls’s terms, between individuals conceived of as “free and equal citizens”). Values of liberty are also in play here. Thinking about the justification of strategies of economic reform that spread the ownership and control of capital is therefore to think about how political values, closely related to the constellation 17. T. Paine, Agrarian Justice [1797], reprinted in B. Kucklick, ed., Paine: Political Writings, (Cambridge: Cambridge University Press, 2000) 18. B. Jackson, “A Short History of Property-Owning Democracy,” in O’Neill and Williamson, eds., Property-Owning Democracy: Rawls and Beyond, (Boston: Wiley-Blackwell, 2012) 43


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of ideas relating to the value of freedom, should inform our economic thinking. An economy where human and non-human capital is broadly dispersed, as in the more egalitarian societies imagined by Meade and Rawls, is a society that does much better than our own in terms of values of republican non-domination, individual autonomy, and effective (rather than merely formal) freedom. Taking freedom seriously should therefore lead us to pursue policies of predistribution that would create a transformation towards a more egalitarian political economy, and more egalitarian forms of economic life for free and equal people.

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This issue features: Jonathan Hearn Derek Hook Julia Laite Matt Matravers Martin O’Neill Marilyn Strathern

ISRF Bulletin Issue 5: Freedom  

The issue captures a shared commitment of ISRF Fellows: to engage real world social problems in original ways. Freedom has long been a centr...

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