•3•

Liberty

Not only is this book not a comprehensive theory of rights, it is also not an exhaustive discussion of basic rights. Its primary purpose is to try to rescue from systematic neglect within wealthy North Atlantic nations a kind of right that, as we have already seen, deserves as much priority as any right: rights to subsistence. But it is essential to consider briefly the right conventionally most emphatically endorsed in North Atlantic theory: rights to liberties. Some liberties merit our attention for many reasons, not the least of which is a strange convergence between supposed “friends” of liberty in the North Atlantic and rulers in the poorer countries who would share my emphasis on the priority of subsistence rights. Both groups have converged upon the “trade-off” thesis: subsistence can probably be enjoyed in poor countries only by means of “trade-offs” with liberties.¹ The only discernible difference between these friends of liberty and these particular friends of subsistence is the professed reluctance with which the friends of liberty advocate that the poor in other people’s countries should be subjected to the “trade-off.” The two versions might well be called the theory of reluctantly repressive development and the theory of not so reluctantly repressive development.

The Shah of Iran and his spokesmen, for example, were clumsy advocates of not so reluctantly repressive development. In an article by the Shah’s representative at the International Monetary Fund and World Bank published prominently by the New York Times in the Sunday edition of its Op-Ed page we find the necessity of exchanging liberty for subsistence readily assumed:

In the third world countries suffering from poverty, widespread illiteracy and a yawning gap in domestic distribution of incomes and wealth, a constitutionally guaranteed freedom of opposition and dissent may not be as significant as freedom from despair, disease and deprivation. The masses might indeed be much happier if they could put more into their mouths than empty words; if they could have a healthcare center instead of Hyde Park corner; if they were assured gainful employment instead of the right to march on the capital. The trade-offs may be disheartening and objectionable to a Western purist, but they may be necessary or unavoidable for a majority of nation states.²

The opposite view was put with eloquent clarity by martial-rule opponent and former Senator Diokno of the Philippines:

Two justifications for authoritarianism in Asian developing countries are currently fashionable.

One is that Asian societies are authoritarian and paternalistic and so need governments that are also authoritarian and paternalistic; that Asia’s hungry masses are too concerned with providing their families with food, clothing, and shelter, to concern themselves with civil liberties and political freedoms; that the Asian conception of freedom differs from that of the West; that, in short, Asians are not fit for democracy.

Another is that developing countries must sacrifice freedom temporarily to achieve the rapid economic development that their exploding populations and rising expectations demand; that, in short, government must be authoritarian to promote development.

The first justification is racist nonsense. The second is a lie: authoritarianism is not needed for developing; it is needed to perpetuate the status quo.

Development is not just providing people with adequate food, clothing, and shelter; many prisons do as much. Development is also people deciding what food, clothing and shelter are adequate, and how they are to be provided.³

Even the theory of justice of John Rawls, the depth and sincerity of whose commitment to liberty is in no way in doubt, sometimes easily assumes both the possibility and the necessity of exchanging liberty for economic growth. As Robert E. Goodin has noted, “When, as an exception to his general rule, Rawls (Sec. 82) allows that a desperately poor nation might justly sacrifice some civil liberties for some increase in economic well-being, the whole discussion presupposes that a nation can purchase one at the price of the other.”⁴ What is the place of liberty in a framework that acknowledges the importance of subsistence?

I want to show that although the advocates of repressive development profess, as I do, a strong commitment to the provision of subsistence, those theories of repressive development must be sharply distinguished from the theory of basic rights presented here. One of several major differences is the place assigned here to at least some liberties, and it is the purpose of this chapter to indicate how fundamentally the same argument that establishes security rights and subsistence rights as basic rights also justifies the acknowledgement of at least certain political liberties and certain freedom of movement as equally basic.

ENJOYING LIBERTY FOR ITS OWN SAKE

As indicated early in chapter 1, rights are basic “only if enjoyment of them is essential to the enjoyment of all other rights,” irrespective of whether their enjoyment is also valuable in itself.⁵ A liberty is usually valuable in itself, and liberties are usually discussed in terms of the satisfaction, if not exhilaration, that their exercise can directly and immediately bring. But the substance of a basic right can have its status only because, and so only if, its enjoyment is a constituent part of the enjoyment of every other right, as—to use our standard example—enjoying not being assaulted is a component part of the enjoyment of anything else, such as assembling for a meeting. Consequently, in this chapter liberties that are candidates for the status of substance of a basic right will be examined solely from the admittedly restricted point of view of whether they are constituents of the enjoyment of every other right. I will after this section simply set aside the consideration of any direct and immediate satisfaction that comes from enjoying the liberty in itself. But this conscious omission in no way implies any denial of any other value that liberties may have in themselves. And even the enjoyment of liberty for its own sake has an important implication concerning basic rights.

Certainly there are many liberties the exercise and enjoyment of which are valuable in themselves—and are for that reason very valuable indeed, irrespective of whether these liberties are also valuable as constituents of the enjoyment of some larger activity. And not all liberties that are valuable in themselves are especially grand. Sheer freedom of physical movement, not being forced to stand still (a common form of torture) or being kept locked in an overcrowded prison cell, but being allowed simply to walk around, may strike most people, who have never been deprived of’ it, as a liberty providing rather minor satisfaction by itself. And to some degree it may not be the presence of the liberty but the absence of its deprivation—the absence of walls and enforceable threats against movement—that we value. At least the intensity of the dissatisfaction from being deprived may be much greater than the intensity of the satisfaction from enjoying the liberty. But then we do not normally value things only for the intensity of the satisfaction they bring. For though it may not be especially exhilarating just to stroll out and see if the bluejays are still angry at the squirrel with the crooked tail, it can be very important and satisfying to know that if one wants to, one may (and if one doesn’t want to, one need not).

If one is free to walk around, one’s freedom of physical movement is of course also valuable as a mere means—of visiting friends, obtaining exercise, buying groceries, etc. It is valuable as a means in addition to its independent value in itself, and this value as a means can be called its instrumental value. But its direct satisfaction remains. In a humane prison, one’s friends could visit, one could run in place or perhaps in the exercise yard, and the groceries would be not only supplied but prepared. None of this would lessen the desire to be able simply to go for a walk when and if one wished, for the sake of the walk itself and not because one needed to get somewhere.

It is true of many liberties, of course, that they are valuable not because one will be constantly—or, ever—exercising them but because they are available if wanted. Having a liberty can be valuable in itself even if one does not actually exercise it. But what may seem to be a fine distinction here is vitally important. For the people who do not in fact exercise their liberties, it must nevertheless be true that they actually could exercise them. It must not merely be the case that they comfortingly believe they could, when they could not if they were to try, because they would be prevented or hindered by common and serious but remediable threats. This provides a connection in one direction with the two basic rights already established.

People can obtain real satisfaction from false beliefs. If I am optimistic about the next few years because I believe that I am essentially healthy, my optimism is no less real if my confidence is misplaced and I have undiagnosed cancer. But the correct explanation of my confidence, then, is not my health. It is my mistaken belief that I am healthy when I am not. Similarly, people may feel content because they believe that opportunities for political participation, for example, are guaranteed to them, when in fact if they try to vote, or vote the “wrong way,” they will be beaten up, arrested or fired. If so, they are not deriving satisfaction from a liberty they have but are not exercising. They are living in a fool’s paradise quite different from their real situation. Illusions are not liberties.

So, it is true that people can derive satisfaction from liberties that they do not exercise but could exercise. But in order for it to be correct to attribute their satisfaction to their liberties, not to illusions about liberties, it must be true that the liberties can in fact be exercised, if the people try to exercise them, without subjection to standard threats. The belief in the usability of the liberty, on which the people’s satisfaction rests, must be correct, if it is to be the liberty that is beneficial to them. Thus, it is fraudulent to comfort people with promises of liberties that they cannot actually enjoy because necessary constituents of the enjoyment, like protection for physical safety, are lacking. It is fraudulent, in other words, to promise liberties in the absence of security, subsistence, and any other basic rights.

When arguing against an imbalance in one direction (toward promised rights to liberties and away from needed constituents of the exercise not only of rights to liberties but of all other rights), it is extremely difficult not to strike a position that is unbalanced in the opposite direction.⁶ Insofar as the enjoyment of rights to liberties depends upon the enjoyment of security and subsistence, the rights to security and subsistence appear to need to be established first. And it does seem to follow that if there are rights to liberties that cannot be enjoyed in the absence of security and susbistence, rights to security and rights to subsistence must be more basic than rights to liberties.

But this does not follow. It is also possible—and, I will now try to show, is actually the case—that not only does the enjoyment of rights to some liberties depend upon the enjoyment of security and subsistence, but the enjoyment of rights to security and subsistence depends upon the enjoyment of some liberties. A mutual dependence holds both between enjoyment of rights to some liberties and enjoyment of security and subsistence and, in the other direction, between enjoyment of rights to security and subsistence and enjoyment of some liberties. And, of course, if the enjoyment of security and subsistence is an essential component of enjoying liberties as rights, then one has a basic right to the enjoyment of security and subsistence, as we have already seen. And if, as I will now try to show, the enjoyment of some liberties is an essential component of enjoying security and subsistence as rights, then one also has equally basic rights to those liberties.

An unwelcome complication, however, is that the dependence is not completely symmetrical: the enjoyment of rights to every liberty is dependent upon the enjoyment of security and subsistence, but the enjoyment of rights to security and rights to subsistence is dependent upon the enjoyment of only some liberties. These are the liberties that, whatever the satisfaction they give in themselves (it may be considerable), are a constituent part of the enjoyment of other rights. To single out at least some of these liberties as among the basic liberties, or more properly the liberties that are the substances of basic rights, is the purpose of this chapter.

To avoid misunderstanding it is vital to keep in sharp focus the question to which I am hereafter in this chapter seeking the answer. I am not asking which are the richest or most elevated forms of liberty, judged by moral ideals of the good life or the good society.⁷ Undoubtedly there are kinds of liberty that are necessary for, say, the cultural and artistic expression invaluable to the highest forms of society. But if the exercise of those liberties is not necessary for the exercise of all rights, those liberties are not basic rights, however important they are for other reasons. My concern now is to determine not the highest, but the most basic, kinds of liberty. I am here, as elsewhere in this book, working on the foundations, not the spires, of the edifice of rights. The basic liberties will turn out to include the liberty of participation.

IS PARTICIPATION UNIVERSALLY DESIRED?

Much more might well be said in order to tighten up the overused concept of participation than can be said here.⁸ Three points, however, are essential to mention. First, the focus of the participation I will be discussing is: the fundamental choices among the social institutions and the social policies that control security and subsistence and, where the person is directly affected, the operation of institutions and the implementation of policy. Without genuine influence over fundamental structures and strategies, influence over implementation may be to little effect. But without influence over details of implementation and operation where one’s own case is affected, influence over fundamentals may be to little effect. On the other hand, it is unrealistic to say that everyone is entitled to influence upon all details. Thus, I arrive at the characterization of the focus of participation just given: all the fundamentals and the details affecting one’s own case.

Second, for a right to the liberty of participation to be of any consequence, the participation must be effective and exert some influence upon outcomes. The participation must not be merely what Carole Pateman has called “pseudo participation” and “partial participation.”⁹ Obviously it cannot be required that genuine participation will always yield the result wanted, but it is not enough, at the other extreme, that people be heard but not listened to. I can combine these first two points by saying that we will be discussing effective participation, meaning genuine influence upon the fundamental choices among the social institutions and the social policies that control security and subsistence and, where the person is directly affected, genuine influence upon the operation of institutions and the implementation of policy.

Third, participation as discussed here is not construed in a narrowly political sense. One’s security and subsistence, and the remainder of one’s life, are at least as deeply influenced by economic organizations, like domestic corporate oligopolies and gargantuan transnational corporations, as by governments and strictly political organizations. Whether broad participation in the constraint of corporate activity can be direct or must be by way of political institutions, many of which are in any case deeply intertwined, is a question of means that can be pursued after settlement of the question about basic rights to be considered now.¹⁰

Two chief considerations are brought against the judgment that effective participation is a basic right. First, it is sometimes noted that many people are in fact not interested in participation in fundamental choices about social institutions or social policies, even if the fulfillment of their own rights is affected. From this observation it is then inferred that participation cannot, therefore, be a universal right. Charles Frankel maintained: “To be so characterized a right must meet two tests. First, do people everywhere think of it as a right . . . ?”¹¹ In quite a few traditional peasant societies, in fact, the social structure was sharply hierarchical in each community, and in each community the major landlord made the fundamental decisions even about the basic rights of security and subsistence. Moreover, in at least some of these communities the specific decisions made did actually provide both security and subsistence. The landlord saw to it that his workers were safe from want and attacks, and they were content to enjoy their security and subsistence and to be free ordinarily of concern with necessary arrangements.¹² And one can try to imagine a benevolently paternalistic dictatorship over a modern society in which people are free from deprivation or, when protection fails, are assisted in overcoming their lack of security or subsistence; institutions and policies are designed entirely by the dictator and his “experts”; and the people, as well as the dictator, are satisfied with the results of the arrangements.

But although the premise (that many people are in fact not usually interested in participation even in fundamental choices) is true, the conclusion (that participation cannot be a universal right) does not follow. It is not a necessary condition of something’s being a universal right that it is universally believed to be a right. People can certainly have rights that they do not know they have. Some slaves, for example, may expect and accept beatings from their masters. They may believe that masters have a right—a duty, even— to “discipline” their slaves. If so, the slaves’ beliefs are mistaken: there is no right to possess, or to violate the physical security of, another human being. Beliefs about rights can be incorrect, just as beliefs about almost all other subjects can.¹³

Which rights people have is independent of which rights they believe they have. This is a perfectly general point, applicable to any right. People’s rights may be more numerous—or fewer— than they think. The same is true of duties, of course. People do not have only the duties they believe themselves to have. If that were true, no master who believed otherwise could have a duty not to “punish arrogance” with physical assaults upon his slaves. It is not “OK as long as you are sincere,” and neither rights nor duties are determined subjectively.

Which rights, and correlative duties, people have is determined by weight of reasons. If the reasons for according everyone a particular right are strong enough, everyone has that right, and everyone else and all organizations and institutions ought at least to avoid violating it, and some others ought to protect it and to assist those deprived of it. If the reasons for according it are too weak, there is no such general right. In order to decide which rights there are one must assess the quality of reasoning, not measure the quantity of belief.

Saying that people can have rights regardless of whether they believe they have them, needs to be sharply distinguished from saying that people must exercise the rights they have regardless of whether they want to exercise them. The latter is ridiculous as a general thesis and has no connection with the former. That I have a right to freedom of movement, for instance, does not mean that I must constantly or, for that matter, ever move, if I do not wish to. Probably some rights actually ought to be exercised—for example, a right to a public education probably ought to be exercised, at least by everyone who cannot afford to pay for a private one that is better than the public one available. Perhaps a right to freedom of movement ought to be enjoyed by anyone able to enjoy it, because of some such consideration as the alleged broadening effects of travel. But any duty, if there is one, to take advantage of a right you have would not be a duty correlative to the right, but the quite different kind of duty that flows from a moral ideal of a rich or fulfilled life. Such ideals and their associated duties may well be important, but they are simply not part of a theory of rights. Whether people ought, as part of an ideally full life, to want to participate in the institutions and policies that control the fulfillment of their rights is an important question. But it is a different question from whether they have a basic right to participate if they do want to—and even if they choose not to.

IS PARTICIPATION UNIVERSALLY NEEDED?

A second consideration against acknowledging effective participation as a basic right is much more difficult to handle than was the fact that some people do not want to participate, and it raises much more fundamental issues. This second contention is that at least some people do not need to participate in order to receive the substance of some of their rights, including even the basic rights already established: security and subsistence. Since, by definition, something can be the substance of a basic right only if enjoyment of it is essential to the enjoyment of all other rights, participation cannot be a basic right if any other rights can be enjoyed even in the absence of participation. If even only one other right can be enjoyed in the absence of participation, then the enjoyment of participation is not an essential component of enjoying something as a right and does not, strictly speaking, qualify to be the substance of a basic right. Some despotisms, which allow little or no participation, do provide security, subsistence, and some other substances of rights to their populations. Is participation actually necessary, then, for receiving other rights? Does the example of an enlightened despotism that provides security and subsistence not show that participation is not strictly necessary?

These are hard questions to answer. In order to decide about them we need a firm and sharply defined conception of what it means to enjoy a right. Clearly a paternalistic dictatorship can provide both security and subsistence. But can a dictatorship without participation provide for the enjoyment of a right to security and of a right to subsistence? We must recall exactly what some features of a right are, as introduced in the first chapter.

A right provides (1) the rational basis for a justified demand (2) that the actual enjoyment of a substance be (3) socially guaranteed against standard threats. That the enjoyment ought to be socially guaranteed means that arrangements ought to have been made by, or with (if participation is established as a basic right), others for situations in which a person otherwise could not arrange for his or her own enjoyment of what the person has a right to enjoy. An alleged right that did not include a demand for social guarantees, in the sense of arrangements made by, or with, some of or all the rest of humanity, would be a right with no correlative duties, with nothing required of others, and this would not be a normal right at all but something more like a wish, a dream, or a plea.¹⁴

Enjoyment of the substance of the right is socially guaranteed, as our analysis of duties in the previous chapter showed, only if all social institutions, as well as individual persons, avoid depriving people of the substance of the right, and only if some social institutions (local, national, or international) protect people from deprivation of the substance of the right and some provide, if necessary, aid to anyone who has nevertheless been deprived of the substance of the right. Enjoyment is socially guaranteed, in short, only if the three correlative duties constitutive of a right are provided for, as necessary, by social institutions. A person is actually enjoying a right only if the person is living among social institutions that are well designed to prevent violations of the right and, where prevention fails, to restore the enjoyment of the right insofar as possible. Is it, then, true that a person can in fact enjoy, most notably, rights to security and to subsistence in the absence of rights to genuine influence upon the fundamental choices among institutions and policies controlling security and subsistence and, where the person is directly affected, choices about the operation of institutions and the implementation of policy?

All things considered, the answer is no, although some qualifications must be added before we are finished. It is not possible to enjoy full rights to security or to subsistence without also having rights to participate effectively in the control of security and subsistence. A right is the basis for a certain kind of demand: a demand the fulfillment of which ought to be socially guaranteed. Without channels through which the demand can be made known to those who ought to be guaranteeing its fulfillment, when it is in fact being ignored, one cannot exercise the right.

The apparent counter-example of the benevolent dictator is a case of the enjoyment only of security and subsistence, not a case of the enjoyment of a right to security and a right to subsistence. It is the enjoyment of things that are the substances of rights (security and subsistence), but not as substances of rights. What is missing that keeps people under the ideally enlightened despot we are imagining from enjoying rights, and that would be supplied by rights to participate in the control of the substances of other rights, is social institutions for demanding the fulfillment of the correlative duties, especially the duty to provide one vital form of protection: protection against deprivation by the government itself, if it should become less enlightened and less benevolent, in the form of channels for protest, levers for resistance, and other types of protective action by the deprived or potentially deprived themselves. Such action is of course to some degree self-protection, not protection by others acting out of a duty to protect, but what others will have done in fulfillment of their duties in this case is to have cooperated in providing and maintaining in advance of the need for them the institutional means of self-protection through effective participation. And participation is a component not only of the prevention of deprivations of rights but also of the arrangements for securing aid when violations have occurred.

To see why the benevolent dictator cannot provide rights to security or rights to subsistence we need to look at the case more closely. The dictator may of course provide security, subsistence, or both at any given time, but simply to provide something is not the same as to provide it as a right. To provide something as a right means to provide social guarantees for its enjoyment against standard threats, and these guarantees must include adequate arrangements for the effective performance of all three types of correlative duties.

The case of duties to aid is perhaps the weakest, but still sufficient. Certainly aid might be provided to people deprived of security or subsistence even if the victims had no right to participate in any of the arrangements for security or subsistence, including the arrangements for aid. Aid might be provided by individuals and by non-governmental institutions, and it might also be provided even by the dictator’s government itself. One item that would be missing without participation would be one of the best sources of information about who needed aid, which kind of aid they needed, and why they needed it. Information could be requested or spontaneously supplied without the recognition of a right to participation, of course, but it could also be suppressed relatively easily if no right to participation was recognized and institutionalized. And the information made available to the despot directly by victims of deprivation could probably be secured indirectly if the despot were for some reason sufficiently dedicated to staying fully aware of people’s needs for aid. Surveys could be regularly conducted, etc., however unlikely it is that any actual despot would be so assiduous in collecting information about expensive assistance needed by people in no position to demand it.

The supplying of information, however, is barely, if at all, a form of genuine participation. A more important item that would be missing without guaranteed participation for the intended recipients of the aid would be a powerful disincentive for the kind of theft of aid supplies for which the Somoza regime in Nicaragua was notorious but which is not at all uncommon.¹⁵ If the intended beneficiaries were not treated as passive, they could do much to restrain bureaucratic corruption. Most important, however, are the detailed knowledge of a local area and the commitment to seeing that their area obtains what it needs that local residents could bring to decision-making about the implementation of general policies.

The cases of duties to avoid and to protect are clearer still. A benevolent dictator certainly might have very efficient arrangements to protect subjects from deprivation by fellow subjects. This kind of law and order could be extremely effectively provided by a dictator who was not corrupt, however unlikely it is in fact that a dictator can for long avoid corruption. The main problem is: how are people to be protected from deprivation by the dictator? One of the critical features of dictatorship is that potential deprivation and potential protection are in the same hands. A dictator might choose to be benevolent by avoiding deprivation of security or subsistence. But even a dictator who had been self-disciplined in the past also might, for any one of a number of obvious reasons, change his or her behavior toward at least some subjects. Against deprivation by a previously benevolent dictator, no defense may be possible in the absence of established forms of participation available to intended victims.

What the absence of provisions for participation that would allow protest and mobilization of opposition against any deprivation undertaken means is, quite simply, that people who did enjoy security and subsistence would be enjoying it entirely at the discretion of the dictator. And to enjoy something only at the discretion of someone else, especially someone powerful enough to deprive you of it at will, is precisely not to enjoy a right to it. In the absence of participatory institutions that allow for the forceful raising of protest against the depredations of the authorities and allow for the at least sometimes successful requesting of assistance in resisting the authorities, the authorities become the authoritative judge of which rights there are and what it means to fulfill them, which is to say that there are no rights to anything, only benevolent or malevolent discretion, including the discretion to decide what counts as benevolent.

OTHER LIBERTIES: FREEDOM OF PHYSICAL MOVEMENT

My discussion has concentrated so far upon a kind of liberty that is normally thought of as an economic and political liberty: participation in the control of the economic and political policies and institutions that determine the fulfillment of security, subsistence, and other rights. I have left aside many other liberties, some of which will turn out to be basic rights upon thorough examination. This is not the place for a comprehensive discussion of the varieties of liberty, important as that task is. But it is worthwhile for contrast to look briefly at one very different type of liberty, freedom of physical movement, which was our initial example of a liberty that is itself very satisfying. Does freedom of physical movement also serve as a component of every other right in a way that would make it a basic right?

Most notably, freedom of physical movement is the absence of arbitrary constraints upon parts of one’s body, such as ropes, chains, and straitjackets on one’s limbs, and the absence of arbitrary constraints upon the movement from place to place of one’s whole body, such as imprisonment, house arrest, and pass-laws (as in South Africa), at least within regional boundaries.¹⁶ One might have hoped that something as apparently straightforward as physical movement and its prevention by others could be simple. Of course it is not and I cannot pursue many of the complications here. But two complications need to be underlined.

First, some qualification like “arbitrary” is necessary because of cases of physical constraint that are conventionally accepted as morally legitimate, such as straitjacketing a psychotic who would otherwise mutilate himself or herself until tranquilizers have had time to take effect, and imprisoning common criminals after prompt and fair trials. But the use of “psychiatric terror” in the USSR, for example, means that even the question of “treating psychotics for their own good” must be handled with care.¹⁷ And practically every repressive regime in the world holds that those whose rights to freedom of physical movement, among other things, it is violating are common criminals, terrorists, traitors, subversives, etc. But since these problems are widely recognized, I will not pursue them and will simply assume that we have some rough but workable notion of due process in the commitment of the allegedly psychotic or criminal to mental institutions, prisons, or house arrest.¹⁸

Second, the qualification “at least within regional boundaries” is needed simply to reserve for other discussions two extremely important matters that—this is the only point here—are not simply matters of freedom of physical movement and would therefore require extensive, separate analysis. One is the conscription, usually of youths, for public service in places they would not themselves choose to go. This includes practices like the traditional U.S. system of military conscription that sends youths outside their own country to fight and the Chinese system of peacetime conscription that sent youths to other regions within their own country to serve in agriculture, etc.¹⁹ The other matter is the right of emigration and the relatively neglected but necessarily related right of immigration. I will simply not pursue questions about the status of these further liberties here, but will look very briefly at the simplest case: freedom of physical movement within the general area in which one is already living, free of arbitrarily imposed chains and walls.²⁰

Freedom of physical movement is so clearly satisfying in itself that it is initially somewhat difficult to focus on the question whether it has the kind of value as a component of other activities that qualifies it to be the substance of a basic right. Obviously free movement has great value as a part of many kinds of enterprises, but is it actually true that the enjoyment of freedom of physical movement is necessary for the enjoyment of every other right? Examples readily come to mind of other rights that one could evidently enjoy while, for example, in prison. For instance, at least some composers could, provided they were supplied with the necessary equipment, enjoy even a particularly valuable other kind of liberty, namely freedom of expression, and perhaps create radically new musical forms. As long as the length and severity of the prison sentence was unrelated to the content and style of the composition and the composer did not need contacts unavailable in prison, some hardy souls could—indeed, some have—let their imaginations soar in spite of the imprisonment of their bodies. The followers of at least some religions, even if they were denied equipment they might prefer to have (books, altars, etc.), could— once again, often do—still believe as they wish, meditate, pray, and sing, provided that their sentences are not based upon or affected by their religion. As long as people are not being tortured, beaten, exploited for labor, or otherwise harrassed, they can enjoy quite a few activities, especially what might be called the solitary intellectual liberties, like individual creativity requiring only modest material needs and like the individual aspects of religion and contemplation.²¹ We have an entire genre of prison literature, much of it fine and much of it very free in spirit. Indeed, the free spirit in the shackled body is a recurrent theme of poetry and folklore.²²

Yet, these examples are, I hope, not very compelling. Certainly the aspiring composer can be supplied with pen and ink, with a turntable and records too perhaps. But he or she can as well so very easily be deprived of them all. The records, the writing hand, the eardrums, even the spirit, can all fairly easily be broken. And there is no need actually to break things: the materials can be politely removed, the person instructed to write nothing, and the instruction enforced, as necessary. Much can be permitted and everything can be prohibited. With contemporary drugs the most independent mind can readily be plunged into nightmare and chaos. And it is all dependent upon the wishes of people other than the prisoner, upon whoever is in power. Vulnerability and dependence, helplessness in the face of all serious deprivations, are the normal fate of at least the arbitrarily imprisoned.²³

The argument here can be telescoped, since the argument about freedom of movement can now be seen to be the same as the argument about participation. Yes, even in the absence of a right to freedom of physical movement, people can enjoy the substances of many rights. But they cannot enjoy them as rights, only as privileges, discretions, indulgences. Deprivation can occur as readily as provision, and this is not what enjoying a right means. A right provides the basis for a demand the fulfillment of which ought to be socially guaranteed, and a right can be enjoyed only where individuals and institutions avoid deprivation, protect against deprivation, and aid any who are nevertheless deprived. A right can be enjoyed only where, to the extent that individual action will not guarantee the substance of the right, institutions are available to do it. A person is not enjoying a right when he or she is enjoying the substance of a right in total dependence upon the arbitrary will of others. To enjoy a right is to exercise it within institutions that effectively protect one against deprivation of it, especially deprivation by those with the most power in the situation. And effective protection must include channels through which those whose rightful demands have not been satisfied, can in fact repeat and insist upon their demands until they are fulfilled.

No one in the state of vulnerability and dependence of the arbitrarily imprisoned is in any position effectively to make even the demands for the things that are rights. The arbitrarily imprisoned are at the mercy of their captors. They cannot flee and they cannot fight, and they certainly cannot make demands. To be deprived of freedom of physical movement is to be deprived of the independence essential to the kind of self-protection needed as part of any adequate institutions for performance of the duty to protect. If one is in no position to make demands (deprived of freedom of movement) or if one has no channels through which to make demands (deprived of liberty of participation), one cannot effectively make known—or, more important, organize resistance to—failures in the performance of duties to avoid, duties to protect, or duties to aid. Therefore, the freedom of physical movement, as well as the liberty of economic and political participation, are basic rights, because enjoyment of them is an integral part of the enjoyment of anything as a right.

PATERNALISTIC DICTATORSHIP REFORMED?

The varieties of liberties are so numerous that an exhaustive consideration of which liberties are basic liberties would require an extensive and, for my purposes, unnecessary further analysis. My purpose is to explore reasonably fully the structure of the fundamental argument for any judgment that something is the substance of a basic right and the specific application of that argument to subsistence, which is customarily ignored by theorists around the North Atlantic. And we have now seen that fundamentally the same argument originally given to support the judgment that security and subsistence are basic rights also supports the judgment that liberty of participation and freedom of movement are basic rights as well. Unfortunately, the argument has a weak spot, when applied to liberties, that it does not have when applied to security and subsistence. Before we leave the subject of liberty this difficulty ought to be noted, although it is not, I think, in the end fatal.

Rights provide the basis for demands, but it is useful to distinguish the content of the demand from the act of demanding, or the making of the demand. One may demand one’s rights, but obviously one may in addition, or instead, demand someone else’s rights—that is, demand that someone else’s rights be fulfilled for him or her. Conversely, and more importantly here, someone else may demand one’s own rights on one’s behalf. Many a lobbying group acts on behalf of the rights of people who are not in the group.

Now this practice reflects the fact that it is not a necessary condition of obtaining fulfillment of a right that one be in a position oneself to make the demand for the substance of the right. Some controversy exists about whether animals and future generations of human beings, for example, have rights. If they were to be declared not to have rights, it could not be for so simple a reason as that they are not able to press on their own behalf the demands for the substance of their rights. On the contrary, we tend to believe that it is precisely those who are most vulnerable to deprivation and are most powerless to resist it, like the unconscious person, the torture victim, and, perhaps, animals and unborn generations, for whom it is of the greatest importance that duties to protect and to aid be performed. A major purpose of rights, after all, is to protect against deprivation those unable to protect themselves, and to aid when protection fails. It is ironical but essential that a right provides the basis for a demand sometimes made on behalf of, and often made by, those with little or no power themselves to press it upon the individuals and institutions who have the correlative duties to fulfill the right but prefer to ignore it and their own duties.

Now this fact that people do not need to have obtained the substance of a right for themselves in order to enjoy it is the source of difficulty in justifying the acknowledgment of participation and free movement as basic rights. For it seems that people would also not need to participate in obtaining something for themselves in order to be able to enjoy it as a right. The reply on behalf of accepting participation and free movement as basic rights was, in essence, (1) that full performance of the correlative duty of protection that is necessary to complete fulfillment of a right must include the building and maintaining of effective institutions for self-protection as the ultimate barrier against deprivation, and (2) that self-protection involves both physical movement and political participation.

Unfortunately for the case in favor of accepting liberties as basic rights, (2) is much more obvious than (1). Certainly self-protection, or the defense of one’s own rights, depends on physical mobility and effective political influence (and possibly other liberties as well). But it is less clear that adequate protection must include mechanisms for self-protection. Why not, instead, simply make the protection so thorough and effective that no self-protection is ever called for? It might be suggested, for example, that the importance of protection merely establishes the need for some kind of system of checks and balances, which could be non-participatory. Indulging the fantasy of the benevolent and uncorrupt dictator a little further, we could perhaps imagine a dictator who established in at least partly independent form either an ombudsman or even a judicial system with some authority to protect people against abuses by the rest of the regime. Our despotic caterpillar is now on the verge of becoming a restrained butterfly, and it is progressively less certain why the government we are imagining should continue to be called a “dictatorship.” But leaving aside worries about labeling the example, we can certainly note the abstract possibility of a rule of law protecting rights without any genuine influence by those with the rights on fundamental decisions about the institutions embodying the rule of law or the implementation of the institutions’ policies.

The quickest way to indicate the practical inadequacy of this model of the non-participatory rule of law is simply to recall, for example, the Vorster regime in South Africa, which used an elaborate and, in many respects, rigorous system of rule of law precisely as an instrument for the deprivation of rights to both security and subsistence of members of the majority of the population, who could not effectively participate in the federal government.²⁴ It is barely conceivable, it might be conceded, that a paternalistic dictatorship might go so far as to establish a genuinely independent legal system that could in some respects restrain even the dictator. But what if, as in South Africa, the legal system is itself carefully designed to maintain and protect, not rights, but a systematic pattern of gross violations of security rights and subsistence rights, as well as rights to liberty?

It would appear that, however many levels of checks and balances are built into a political and legal system, institutions providing for participation are almost invaluable as the ultimate monitors and brakes upon the substantive results of the procedures. To put the point in its most abstract form, we have no reason to believe that it is possible to design non-participatory procedures that will guarantee that even basic rights are in substance respected. Consequently, whatever the non-participatory protective procedures, it will always be important to have other procedures or institutions that allow the people who have assessed the usefulness of the protective procedures (and also of the participatory procedures themselves, of course) on the basis of whether they themselves can in fact exercise their rights, to act upon their assessment in some influential way. The “bottom line” is the extent to which people’s rights are enjoyed, and however many ranks of official watchdogs may be established, the crucial information lies with the people whose rights are the alleged object of all the official attention. These people may not care enough to participate effectively, even if channels are available, especially if long denials of rights have crushed their spirit. We have, however, no reason at all to suppose that the official watchdogs and official maintainers of checks and balances will in general have a deeper level of commitment to seeing that people can enjoy their rights than most of the people with the rights, and no reason not to add the ultimate check of political participation. The participatory institutions should, accordingly, be in general at least as effective as any other institutions for detecting and resisting violations of rights.

The lack of any certainty that arrangements for participation in choices among institutions and policies controlling security and subsistence will enable everyone to enjoy security and subsistence may appear to undercut this part of the argument for acknowledging participation as a basic right. The underlying argument for the importance of participation has been that participation is always essential for retaining security, subsistence, and other rights, as rights, because it is a vital component of protection. Now it is being admitted that even if rights to participation are guaranteed and used, all this may still fail to guarantee everyone’s rights. This is even more obviously true of freedom of movement. Is it not being conceded that participation and free movement may not serve the purpose invoked to justify guaranteeing them?

It is indeed being granted that even the enjoyment of a right to full participation may fail to retain for people the enjoyment of their other rights—even their other basic rights. But the reason being advanced here in favor of acknowledging participation as also a basic right is not that the exercise of a basic right of participation is sufficient for the exercise of other rights, but that it is necessary. The case for judging that participation is indeed necessary, especially for the fulfillment of the duties of protection correlative to every right and for the fulfillment of the correlative duty of every government not to deprive people of the substance of their rights, has now been made. This case is in no way weakened if, in spite of being necessary, full participation is not also sufficient for creating conditions in which people can exercise their other rights. The same is true for free movement.

In general, if more than one condition is necessary, no one condition can be sufficient (because something else is also necessary). Our earlier arguments that security and subsistence are each necessary for the exercise of all other rights—and are therefore basic rights—had already established that no other condition could by itself be sufficient. In fact, we have little reason for confidence that even the enjoyment of all these basic rights— security, subsistence, participation, and freedom of movement— is sufficient, as a set, for the enjoyment of any other rights. But it is very clear that the absence of any of these basic rights is sufficient normally to allow the thwarting of the enjoyment of any other rights, and that is why each of these is a basic right.

Something of a soft spot, however, remains in this argument for participation and in the structurally identical argument for freedom of movement. At the practical level there is no room whatsoever for doubt that no non-participatory system of government will ever be so paternalistically solicitous of the safety and welfare of the population under its rule that members of the population would not find extremely valuable some very solid mechanisms for participation in the arrangements for their safety and welfare. Where are people safe and well-nourished by the grace of their self-disciplined and solicitous dictators? The Philippines? Kampuchea? Indonesia? Brazil? South Africa? Ethiopia? Haiti?

At a purely speculative level it is nevertheless imaginable that some non-participatory system of protection might somehow be as effective as the best participatory system possible in the same circumstances. Perhaps there could be something like a system of advocates, as if everyone always had a court-appointed attorney-cum-bodyguard to prevent failures in the fulfillment of his or her rights, and each person would be better looked after by his or her respective personal advocate than through any efforts at self-protection. We need not try to design a seemingly realistic institution, since the theoretical point is clear in the abstract. The one aspect of the hypothetical example that must be quite definite, however, is that it is not simply that most people happen not usually to participate actively in making arrangements for that to which they have rights. Probably most people everywhere do not in fact usually participate in making arrangements for fulfillment of their rights. What counts about the hypothetical example is that, whatever else is said about the people’s enjoying rights, they do not have the right to participate in the arrangements for fulfilling the other rights that they are said to have, even if they want to participate.

What I am calling the soft spot in the argument at the theoretical level, then, is the fact that it is not utterly inconceivable that some set of institutions without a basic right to participation might turn out to protect people’s other rights as well as, or better than, the most effective participatory institutions do. However unlikely this is in practice, it is not evident how to rule out the theoretical possibility within the terms of the present argument. Roughly the same is true of the right to freedom of movement. Some regime that was otherwise marvellously benign but did not want its citizens moving about freely might confine everyone to a type of house arrest—it might, say, have a permanent curfew with the requirement that everyone be in his or her appointed place every evening at curfew unless given special permission to be elsewhere—but guarantee to everyone the enjoyment of everything other than freedom of movement (and participation in decisions about whether there should be freedom of movement) to which people have rights. Once again, this does not seem to be unimaginable, although I will not pause to fill in all the details, and, because it appears to be conceivable, it cannot be ruled out as, in this sense, possible. These extraordinary hypothetical examples, however, seem to me to give little guidance for ordinary actual cases. Hence, I believe the argument for treating the two liberties I have considered as basic rights remains secure.²⁵

Meanwhile, it ought to be emphasized how high a hurdle any would-be paternalistic dictator would be attempting to leap if the dictator tried to meet the terms of this argument. All that it has been necessary to concede is this: if a regime actually provided better protection for every right, including of course security rights and subsistence rights, except rights to liberties like political participation and freedom of movement, than any of those rights would receive if rights to liberties were acknowledged and honored, then the regime’s failure to provide for liberties would be permissible, other things being equal.²⁶ The minimum standard is a higher level of protection for every other right. I do not expect ever to see such a regime, and I certainly would not allow any dictator with such pretensions the chance to experiment with me, given the weight of the historical evidence against success.²⁷