Rights vs Freedoms

Rights vs Freedoms

Note that these are not new ideas; they have been discussed extensively in academia and elsewhere. But it is a lens that I find can be helpful.

In some recent reading and discussions a concept that has come up is the distinction between freedoms and rights. Broadly, this states that traditional liberalism focuses on freedoms – for example freedom of speech, religion and association – whereas the modern social progressive movement focuses on positive rights, such as the right to education, the right of equal treatment or various employment rights. Crucially, freedoms focus on the absence of government control, whereas rights must sometimes be positively upheld, potentially by the government. Naturally, rights and freedoms can sometimes conflict.

This is not a perfect division for a number of reasons. Firstly, some rights, notably the right to a fair trial, date back to Magna Carta if not before, and tend to be defended more by traditional liberals than by social progressives. Some rights are misnamed: the right to bear arms is clearly a freedom, under this definition (even the most committed Second Amendment advocates do not interpret it as saying the government must give everyone a gun!). And in other cases, such as same-sex marriage, it’s not entirely clear whether the government is enforcing the right (given marriage is recognised by the state) or permitting a freedom (by refraining from prohibiting the activity).

Nevertheless, in a lot of areas in current debate, this lens seems to shed some light. The debates on freedom of speech, for example, pit the freedom to speak against the right of people not to be offended. Discrimination laws pit the freedom of people to hire and fire who they will against the right of people to equal treatment – and laws such as quotas for women on boards or for certain groups to attend university (as exist in India and the United States) further restrict freedom in order to enhance perceived rights. Social progressives tend – currently – to favour greater government control and intervention; conservatives tend – currently – to favour less.

It’s clear to almost everyone that the extremes are not good. All but the most ardent libertarians see a role for the state in restricting violence: laws against murder may be a limitation on freedom, but they are undeniably a good thing. The end-point of ultimate freedom is anarchy. And, similarly, the end-point of government trying to enforce all rights absolutely is the Soviet Union, an equally unpalatable dystopia. In principle, we all accept there is a trade off; it’s just unclear where to draw the line.

One can go through linguistic contortions to argue that actually more government intervention will make people ‘more free’. This, to me, seems unhelpful. It may make people better off, but it will not make them more free. It seems better to recognise that freedom and rights are both good things, that they may sometimes be in tension, and that the difficult decision is where best to draw that line. In terms of constructive debate, acknowledging that your preferred policy may reduce someone’s freedom – or someone else’s rights – but that you nevertheless consider it the right thing to do, for reasons (a), (b) and (c), is more likely to lead to genuine consideration than trying to co-opt your opponent’s values.

There is perhaps one further complexity in this: to what extent should large corporations be considered ‘like governments’, such that government intervention to preserve freedom of religion/speech/association at them (for example, preventing a company firing someone for being a Muslim/Christian/atheist) constitute a freedom rather than a right. The East India Company was certainly in this category. How about Facebook? Or Tesco? My not-particularly-helpful answer here is ‘a bit’: on the one hand, such laws would increase freedom in many senses; on the other, being able to play a full part in society is important, but being able to exist AT ALL in a society is even more important, and so it’s worth recognising the government has a unique role. Ultimately, I’d suggest it doesn’t matter. Any lens, like any analogy, is only good up to a point or in certain circumstances, and once it stops being useful, it’s better to drop it than to worry about the definition.

Conclusion

In short, the lens which sees a distinction between freedoms and rights can be a helpful one, as it highlights that both are good things that may be in tension and, therefore, may need to be traded off against each other. In this model, the ‘most free’ or ‘most rights’ solution is not necessarily the best, though individual freedoms and rights may continue to be extremely important. The model has limitations, in particular when considering the role of large, very powerful non-state actors such as corporations, but it nevertheless can be a helpful tool.

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