The Third Notion of Liberty
Quentin Skinner has developed Berlin's idea in a remarkable way. In the following, the focus is on mainly on the Skinnerian version of liberty. According to Skinner, Berlin originally thought of positive liberty as the freedom to follow a specific form of life.
However, positive liberty, when defined in these terms, does not conceptually differ from negative liberty, since all the situations covered by negative liberty are ones in which one is free to act - that is, to realise the form of life one has chosen.Berlin's next attempt was to identify positive liberty as being one's own master, but the fate of this attempt proved similar to the concept of liberty built on the realisation of the form of life. If one is his or her own master, he or she is free in the negative sense of the concept, being free from constraints, for which reason a distinction cannot be made between positive and negative liberty.
Berlin found a solution in a form of (positive) liberty where the agent tries to determine himself. The proposal in some ways (although not by its philosophical foundations) reminds one of Soeren Kierkegaard when he said: “What is hardest is becoming what one is, to become oneself”. Skinner describes Berlin's proposal by saying that liberty is therefore not equated with self-mastery but more specifically with self-realisation (becoming to oneself), especially the perfection of the self, the idea of myself as the best one can possibly be when he or she is in harmony with the true nature of his or her being.
When defined like this, the concept of (positive) liberty is detached from a mere absence of constraints. The concepts of positive and negative liberty have thus been separated. Positive liberty is not analysed through constraints that prevent action but as a specific model for action. However, the solution is anything but free from difficulties.
The problems are involved in the notion of being, which is essential for the positive liberty characterised above. The definition of “being” leads to all the problems usually met by analyses of “essence” or “the nature of things” or (ideal) forms of being. Skinner is right to point out that there are as many interpretations of “being” as there are views on the moral nature of man. For some, the being of man is defined in religious terms, whereas some define it in a moral or humanistic sense.The suggestion that the goal of being could be the best possible form of life gives some relief to the difficulties, but it needs specification as well. Without approving this standpoint in detail, Quentin Skinner formulates his own suggestion as follows: Liberty consists of a way of life where, free of all our passions and sufferings, we finally reach harmony with nature (Skinner 1984, 193, 2003, 12).
These noble suggestions have some attractive features, but even the best ones prove to be vulnerable upon closer inspection. In order to understand Berlin's thoughts on positive liberty we must, as Skinner acutely reminds us, connect them with the early years of the Cold War. Isaiah Berlin wrote on positive liberty at a time when his British generation took distance from any form of totalitarianism. Berlin and likeminded individuals connected with idealistic concepts of what is best for all humans. Every attempt at defining the features of the “socialist man” led to the exclusion of the opinions of others, and then in worst cases to their violent repression. For these reasons, Berlin grew away from his earlier ideas of positive liberty. This was especially so in relation to the ideal of the “Soviet man”, but it might also fit with the more recent attempts at forming the “new European man”.
I don't feel the same as Berlin did. This text is written at a time when the European totalitarian states have become a thing of the past. Thus positive liberty has a different political dimension in the 21st century than some decades ago.
It is knowing oneself in the sense of the Socratic advice “Know thyself”. It is with this byword and its applications that the analysis will continue here.The viewpoint in what follows is limited, but still relevant for the positive liberty part. The fundamental question from the legal theoretical perspective concerns the notion “being a legal scholar”. This “being” is of an ideal type. We are now dealing with the necessary conditions of a “good legal scholar”. In this regard, “becoming something” means the same as fulfilling the criteria of an ideal scholar or decision-maker (a judge). In the real world, there are no such beings, but as an ideal or standard, “becoming an ideal scholar” is of great importance. It is this dimension where Berlin's concept of positive liberty has strengthened the theoretical foundation of this treatise.
In the sense of negative liberty, one is not free if others prevent one from doing what he or she could otherwise do. On the other hand, the use of one's liberty cannot prevent or disturb the use of someone else's. This solution to the collision of liberties is essential in terms of maximising social liberties. This is largely the point in the much-discussed collision between fundamental rights. The notion of negative freedom is, therefore, at the core of law, the legal system and legal reasoning as well.
Berlin and Skinner make a crucial distinction between the lack of negative liberty and the lack of capabilities. According to Skinner, we only lack freedom when it becomes impossible to perform an action that is within our capabilities. The distinction was made earlier by Thomas Hobbes, and Skinner does refer to Hobbes as the father of the idea (Pettit 2009, 44; von Wright 1971, 72; Lagerspetz 1995, 105). If an external sanction prevents someone from leaving the room, he is not free to leave in a Hobbesian sense. In more precise terms, he is free formally but not effectively. The same cannot be said of the person who has taken to his bed due to sickness and cannot get up.
He or she is not free or lacking freedom. He or she is incapable of leaving the room. The same goes for a blind person who has to read a certain notice. The blind person is not lacking in freedom, he is incapable of reading the message meant for him.In my opinion, Skinner's (and Berlin's) proposal needs a certain, although minor, adjustment. In the case of a blind person it is acceptable to speak about lacking the freedom to read, at least in some sense of negative liberty. However, if a person lacks the physical ability to read, he or she is not prevented by any external factor. Neither is the obstacle “internal” to him in the form of fear or weakness of will. It would be closer to the truth to say that there is a contradiction between the person's ability and his goals.
This also goes for a lawyer who sets himself the goal of mental growth (and growth of know-how). Not everyone makes their own fortune. This is an everyday realism of life, and should not be changed with a specific theory. The theory of rational discourse, for example, is not a magic word making every interested party a lawyer of the “best degree”. If the theory seeks something like this, it is doomed to fail even before its final formulation.
Quentin Skinner's individual contribution is not within the specification of the concepts of positive and negative liberty but in the formation of a new dimension of negative liberty, or, to be precise, in the presentation of a concept of negative liberty. For this reason, the title of his treatise “The third concept of liberty” hits the target. I shall not devote time here in going through the analyses of the Roman period or the birth of English parliamentarianism, with which Skinner shows the roots of the third concept of liberty, thus proving that the concept is older than the formulation given by Berlin.
The core of the story is that one may lack freedom even when nothing in the traditional sense of negative liberty prevents one from acting. This is the case when one has to be dependent on the power of some other person.
In this regard, the liberty is the absence of dependence, which may be social or political in its nature. Skinner summarises the matter by saying that the way in which man finds him or herself to be constrained is in lacking the freedom to abstain from saying or doing certain things.The person who is not free follows the will on which he sees himself to be dependent. The thinkers of the Roman classical period, such as Livius, took this as a sign of slavery. What is most important is that dependence is not forced, since it is internal to man. The mere consciousness of dependence makes man do things he thinks others expect of him. In this context, I have sometimes discussed political corruption without being able to conceptualise my thoughts in an adequate manner. The core of the idea is that a person who becomes “corrupted” in this very sense is ready to follow a superior (political) will, but only because it is important for him to belong to the “circles” without trying to gain a benefit from it, such as a higher status or authority.
In the area of legal research, the same phenomenon may be articulated as a researcher's unwillingness to criticise the higher courts for fear of losing his authority. A researcher like this has “enslaved” himself in the Skinnerian sense, and lost his genuine freedom of expression. This person sees it as more heroic to keep the voiced criticism to a minimum. By doing so, one may achieve something that one holds as beneficial, but, whether he or she realises it or not, he or she has lost the independence and the autonomy. In Skinner's terms, now liberty may be constricted and held captive without the presence of any kind of prevention or power. A will cannot be independent if it is not also independent from the wills of all others.
The media is a powerful actor in modern society. Freedom of speech is a cornerstone of modern journalism. Still, being conscious about the fact that one may face a crossfire from the media as a consequence of one's opinions easily leads to restricting one's freedom of honest discussion.
It is better to be on good terms with the media if one wishes to preserve one's status and prestige as a presenter of social opinions. This is an extremely important point for DSL as well as the judiciary. The media is a figure of authority in modern society in exactly the same way as the constitutional figures of the legislature, executive power and the judiciary. There are strong grounds to speak of a four-fold division of power.In a Skinnerian sense, the media by no means sets limits on negative liberty. Freedom of speech is secured in the constitution. However, the constitutional protection of liberty does not concern the third form of liberty, man's internally constructed consciousness of the limits to his own freedom. This is why the independence of DSL and that of the judiciary is in an important sense independence from the “will” of the media. The scholar and the judge who do not dare to present their own opinions to the public are slaves of the public in a similar sense as discussed by the classics of Rome, with Livius at the forefront, when blaming the public for not conforming to figures of authority. The independence of the judiciary is not only constitutional, it is also the avoidance of “slavery” in all actions taken to realise judicial relief.