The Traditional View

For the purposes of this contribution, Philip Pettit has made an important distinction between singular and plural notions of liberty or freedom. He writes:

We concern ourselves in the singular mode with how far someone is free to do or not to do certain things, or with how far someone is a free person or not a free person.

Pettit continues the analysis of plural liberties dealing with the life of a free person, In this, he spells out that requirement in three constraints, which he describes as feasible extension, personal significance and equal co-enjoyment. For the theory of DSL, however, this analysis is not as important as the singular mode. The same holds true as far as the relationship between law and liberty is concerned. In this respect, it is essential to formulate the problem as Pettit does: Does the coercion involved in threatening to impose penalties mean that the subjects of the law thereby suffer a loss of freedom? (Pettit 2009, 39).

However, the focus of the following discussion is not on the freedom of citizens but on the fundamental preconditions of the rational legal reasoning. A rational dis­course on morals, ethics and law is impossible without a certain degree of freedom. The preconditions have been the key issue in, for instance, Jürgen Habermas’ and John Searle’s theories. However, instead of these theories, the general notion of liberty as such will be dealt with.

The traditional concept of liberty is three-fold. It is focused, as Philip Pettit emphasises, on a singular mode, i.e. on a certain agent, its goals and the restrictions on the realisation of the intended goals. Very often, liberty is understood simply as the absence of restrictions. This traditional concept does not permit any other way of thinking about liberty, and it is this one-sidedness that Isaiah Berlin grasped, separating positive liberty from the absence of constraints that are negative liberty (Berlin 2002, passim; Carter 2007, 3; von Wright 1971, 99; Veitch, 67, 123; Nelson, 58). The idea of negative liberty is intertwined - in a complicated way - with three other notions: intimate, private and public. The absence of constraints is different in each of these cases and it would be more precise to speak about three notions of negative liberty (Garzon Valdes 2006, 61).

Stephen Toulmin writes on lacking liberty as follows: “On the extreme view, indeed, all human choices and decisions whatever, are - strictly speaking - settled by outside forces, regardless of other appearances; so that any discussion of thought, action and belief as “rational”, with its implications that our “choices” and “reasons” are something more than surface phenomena, is delusive (Toulmin 1976, 329).