A legal duty to act?

“True possession is proved only by giving; all you are unable to give possesses you.” Andre Gide

Underlying this controversial question, there can be found a great battle raging – an age old battle between the diametrically opposed ideologies of left and right, socialism and individual liberty. This is why the question is so attractive to a student of law, and why at the very beginning of this essay I shall assert that there will be no correct answer to this loaded question. The answer lies with the democratic will of the people : if the majority values their individual rights and liberties over that of social coercion for overall public benefit, then the answer is a no, and vice versa. Thus the essay already turns away from answering the question per say, and is henceforth duty bound to outline the arguments for and against the establishment of a positive duty to rescue and to highlight the strengths and weaknesses of the respective arguments, so that at the end of the day, the essay can perform the social obligation of informing the reader/s to enable them to decide for themselves whether the answer to the question is yes or no. The end result being a better informed general public, so that the correct answer will become obvious to judges and legislators, pressuring them to act (or omit to act) accordingly.

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On Liberty

Freedom is an elusive concept. As such it has been the topic of much debate in recent decades. The vigour of these debates is indicative of the highly subjective nature of freedom, and its’ ineluctable relationship with politics. However it seems that a failing with many of these academic experts, is that freedom has wrongly become their justificatory banner for each and every political system they happen to support. The difference between religious thought and scientific thought has been humorously put this way:

The scientists say: This is the data, what conclusions can we draw from this?

The clergymen say: This is the conclusion, what data can we find to support it?

The field of political science is in danger of repeating the religious mistake if political scientists continue to hijack broad philosophical concepts such as freedom to support the political systems they affiliate themselves with. And while there are plenty of offenders, Berlin, Benn and Weinstein among them, there is a refreshing school of thought led by McCallum trying do get at the theoretical core of freedom, “free” of any political dogma. However, while this is streaks ahead of Berlin and the like, McCallum too, for reasons of logic, has failed to come up with a satisfactory theory of freedom.

Isaiah Berlin’s text, Two Concepts of Liberty, undoubtedly deserves description as the seminal text on negative and positive liberty. Berlin outlines negative freedom as the extent to which “no man or body of men interferes” with an agent’s activity. In other words a free society is one which interferes in the lives of its’ citizens as little as possible. A discussion of what coercion means then follows: that only other humans can coerce, and that mere incapacity is not a restriction on freedom. Benn and Weinstein agree with both those assertions, as outlined in Gray’s book, Freedom. The first qualification, that only other humans can coerce, does make sense regarding natural obstacles such as mountain ranges and gravity. To elaborate, talking of gravity as being a restriction on our freedom is absurd; as to be bound by gravity is an essential part of how we operate as a species. However, this qualification seems incomplete. To ignore the agent himself as a potential coercer of his own freedom is to ignore perhaps the biggest culprit. Benn and Weinstein come to Berlin’s defense by claiming that internal impediments to action are not restrictions on your freedom, but are rather reductions in the agent’s abilities. For example, a paraplegic is not unfree to walk; he is rather unable to walk. This claim doesn’t hold when illustrated with another example. We have three men. One is locked up in a ten metre by ten metre cage; the second is within a ten by ten square and is told that if he steps out of the square he will be shot; the third man is within the bounds of the same square but is not given this warning. According to Benn and Weinstein, only the first man is unfree. Only he is physically prevented from leaving his ten by ten area. The other two are free to go if they wish. The second man is merely unable to leave, due to an internal impediment to action, namely the belief he will be killed if he does attempt to leave. This, presumably, would be considered by Berlin and Co. as a sophisticated form of paraplegia – a lack of ability rather than a lack of freedom is governing the situation. The third man, oblivious to the danger, leaves the square and is shot dead. Benn and Weinstein would claim he was free to leave. This makes absolutely no sense at all. To confine freedom to the absence of external certainties is an incomplete picture. Perhaps a more palpable example is the ridiculous assertion that if two men have all their appendages strapped down on a table, and one man is a quadriplegic, then the able man is less free than the quadriplegic. The agent himself can be a restriction on freedom and often is.

Our bodies and minds might be our only source of liberty, but it does not follow to say that they cannot also inhibit our freedom at the same time. Mohammed Ali is well known to have been an energetic, talkative person before he was struck down with Parkinson’s disease. His animate body, while it is the prime source of his liberty on the one hand, it has also become a biological prison of sorts on the other, as he is no longer free to express himself in the ways he was famous for. There is perhaps, at the root of this problem with Berlin, a sense that the concept of negative liberty is incomplete. To focus so heavily on the absence of impediments as the core of liberty, is, as Gray outlines, to ignore the nature of the agent(X) and the action(Z), to the detriment of the theory itself. In other words, Berlin has been blind to the true nature and complexity of humanity in the pursuit of a workable definition of freedom.

Aside from these weaknesses in his concept of negative freedom, there is his dogmatic support for it, over the ‘potential evils’ of positive freedom. The natural extension of the discussion of negative freedom is the analysis of to what extent is coercion desired for the functioning society. Berlin argues that a minimalist state is all that is desired and anything more interfering is both undesirable and counterproductive to freedom. A state that merely protects individuals from violent chaos with one another, and ensures the functioning of the marketplace is a sufficient sovereign for Berlin. On the political side, Berlin forgets the fact that, political power is a vacuum – whatever responsibility the government does not take up, will be taken up by the private sector in some manner. One advantage of having the government in these spheres of power as opposed to private individuals, is that governments tend to be more transparent and accountable to the general will. While some despotic sovereigns will not be so, it is always the case in a Berlin society of autonomous individuals that private owners of power will never be brought to account before the general public (that would be an unjustifiable interference with those individuals’ freedom). On the economic side, Berlin emboldens imposters like Milton Friedman to justify the unbridled forces of the market to be set upon society:

            “The fundamental threat to freedom is the power to coerce……..the greatest threat to freedom is the concentration of power………..the private sector is necessary to be a check on the powers of the government sector.”[6]

That the market leads to unregulated competition that leads to exploitation of the working class, which is followed by an entrenched ‘dog eat dog’ culture, a materialization of life in general, and a blindness to anything of intangible value, which all results in a sub-optimal, unsustainable, state of nature-like outcome, doesn’t seem to bother Freidman in the slightest. On average, a person’s “economic” life in such a market led society would most likely be solitary, poor, nasty, brutish and short. Negative liberty paints a picture of humanity where no man feels a duty towards others, where an individual’s space is paramount, and interference with it by others sacrilegious. Dahrendorf summarises this hidden agenda beautifully by saying that negative liberty is merely “a defence of the vested interests of the haves”.

Berlin’s criticism of positive liberty is weak for the same reasons. He briefly outlines the concept saying that humans are inwardly conflicted, and that the more the ‘true’ purpose, or inner spirit manifests itself, the freer the individual. His chief criticism is then not theoretical in nature, but rather a blatant attempt at associating positive freedom with unsavoury regimes. Firstly he claims that a concept that supports a sovereign bound by duty to encourage the best out of people could easily be “used”[by tyrants “to justify their worst acts of oppression”. Berlin goes further to say:

 “Enough manipulation with the definition of man, and freedom can be made to mean whatever the manipulator wishes. Recent history has made it only too clear that the issue is not merely academic”.

This allusion to the Soviet Union is a completely unfair criticism of positive freedom. Just because a country’s rulers have abused the concept – falling well short of the responsibility required by a sovereign governed by positive freedom – should not discredit the concept itself. It appears Nike has abused the concept of negative freedom to justify the exploitation of third world workers with little bargaining power in the name of gaining the maximum possible profit from their enterprise, but I’m sure Berlin would be up in arms if anyone attempted to use that argument to attack the concept of negative liberty.

Berlin’s strongest argument against positive liberty is that it is too hard to identify each individual’s true self to make a workable sovereign for all. No government is omniscient to the degree required by positive libertarians and as such should give up on the idea. Charles Taylor responds to this by saying that negative liberty in practice make distinctions in the  value of a freedom as well. Taylor uses the example of society holding the freedom to practice a religion in higher regard to travelling in automobiles unencumbered by traffic lights. If we subconsciously make decisions as a society as to what is “important to man”, then a positive libertarian sovereign is theoretically possible. A Rawlsian ‘behind the veil’ approach would be possible, where a ‘hands on’ education system would encourage, and coerce the youth of society to discover their talents and career preferences. Therefore, the workforce would be demonstrably freer; as more people would be doing the job they feel they were born to do.

Gerald MacCallum and Tim Gray are both refreshing with their Bahai-like insight that all the previous theories on freedom were really just “flowers of the same garden”. More precisely, that all the different theories are different conceptions of the umbrella concept – the triadic formula that the agent (X) is free from impediments (Y) to do or be Z (the action). All debate about freedom is merely about the definitions and meanings of X, Y and Z. MacCallum is correct to say that negative and positive freedom are only different in degree, as even negative freedom requires that some coercion is needed for the great remainder of freedom to be preserved. Rousseau outlined this paradox that we need to be forced to be free, via the social contract, whereby we trade our absolute freedom in the state of nature, to ensure the long-term protection of our civil liberty. Therefore, debates about freedom are only ever debates about the scope of the triadic terms.

Benn and Weinstein forward their own interpretation of what X, Y and Z mean. Only humans can be agents, and this is the least controversial assertion. Only other people can be impediments to the agents, when talking about freedom. Already Benn and Weinstein crash in burn in a pyre of logic. They intend to exclude the agent himself from the scope of Y, but they cannot do this. This is because they have already said that only humans can be agents. They would say the reason for this is only humans have a rational capacity to appreciate freedom in the first place. Therefore, internal impediments within the agent himself can be restrictions on freedom as the more we are gripped by what Charles Taylor described as ‘brute’ instincts, the less distinguishable we are from ordinary animals, and therefore are in danger of failing to meet the requirements to be considered an agent. To be defined out of the equation altogether is the condition for slavery. Therefore, our rational capacity does need to be encouraged, at least to a certain extent, and therefore Benn and Weinstein’s sovereign would be forced to coerce people to exercise at least basic rational thought.

MacCallum has been endorsed by Gray, as he sees it as a move away from the dyadic conception of freedom ( Is X free?), which was too absolutist,  to the triadic conception, which is sufficiently broad to envelop all conceptions of freedom. However, the triadic formula does not go far enough either, as without qualifications to this statement, no freedom exists. For example, many people include our own bodies as a potential impediment to freedom (as in the paraplegic example, he is unfree from his body, to walk). If this is the case, then our own mortality and sentience in the linear space, is an infinite impediment on our desire to go beyond our mortal means. The desire to be in two places at once is a common feeling, and according to the triadic formula, would compromise our freedom. Clearly, therefore, if freedom is to exist, some conceptions are out of bounds, and needed to be stated as such by MacCallum. Without these qualifications, MacCallum’s theory is incomplete.

Cranston makes the salient point that freedom is a loaded term. It’s unsurprising therefore, that any attempt to forward a workable definition of freedom is criticized somewhere. MacCallum is guilty of conceptual incompleteness, but his sin is minor compared to the thinly veiled flag waving dressed up as theoretical commentary of Isaiah Berlin. This political posteuring and hijacking of philosophical terminology is damaging to the academic standards of political scientists and should be given the respect it deserves, none.

[1] Berlin, “Four Essays on Liberty”, Oxford Uni Press, 1969, p 122.

[2] N.1, Berlin contradicts himself on the next page saying, “If my lack of material means is due to my lack of mental or physical capacity, then I begin to speak of being deprived of freedom..”

[3] Gray, “Freedom”, Atlantic Highlands, NJ : Humanities Press International, 1991 p 20.

[4] n 3, p 21.

[5] n 3, p 22.

[6] Freidman, “Capitalism and Freedom”, The Uni of Chicago Press, 1962, pp 2-15

[7] To turn a negative freedom exponent’s phrase back onto him!

[8] Dahrendorf, “Life Chances”, Weidenfeld and Nicolson, 1979, p38.

[9] N 1 :  p 133.

[10] Instead of using the word “abused”, he preferred a term that would associate the concept more closely with the tyrant himself.

[11] N 1 :  p 133.

[12] N 1 :  p 134.

[13] N 1 L p 133.

[14] Taylor, Charles, “What’s Wrong with Negative Liberty,” Philosophical Papers, p 149-150.

[15] Ibid.

[16] To coin a painfully overused phrase of the Bahai faith.

[17] MacCallum, Gerald, “Negative and Positive Freedom,” Philosophical Review, Vol. 76.

[18] N1, p 125.

[19] As outlined in Bluhm, “Force or Freedom?” Yale University Press, 1984, p 4-5.

[20] N 3, p 20-23.

[21] Taylor, Charles, “What’s Wrong with Negative Liberty,” Philosophical Papers.

[22] N 3, p 13.

[23] Cranston, “Freedom” 3rd Ed. Longmans, 1967, p 3.


Too Busy to Think

By Darrell Cake

I’ve been so busy I haven’t had a moment to think…”
What a thing to admit to. In effect you are admitting that you have been running around unconscious, without thinking, or without even knowing why you are running around.
Have you asked anyone lately, “how are you,” and received the answer – “I’m very busy.”
One woman I asked this of gave me this reply, along with an accusing stare which said:

“I’m very busy – aren’t you?”
Almost as if to say, “If you were REALLY busy you wouldn’t have time to ask such a question.”

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White Collar Crime Should Attract the Death Penalty

If you were to tune into your car radio, turn on your TV at night, or occasionally glance at the front page of any major newspaper then it would probably be obvious that the issue of crime is a major issue for most Australians. What would not be apparent however, by referring to the aforementioned sources of media is that the ‘crime problem’ is more than just a problem of the proletariat. Mass media, in the pursuit of their perfectly understandable goals of ratings and revenue, tend to treat white collar crime with ambivalence, preferring to focus on the invariably more “sensationalist activities of primarily lower class crime”[1]. What is of concern is that this ambivalence in the mainstream media towards at least the less sensational corporate criminal activity seems to have driven criminological theory and sentencing jurisprudence towards a trend of leniency when the law deals with white collar crime. To compound matters further, it appears that the structural (both soft and hard) inequality in Australia’s justice system has sent us further towards an intolerably soft treatment of white collar criminals, especially in comparison to the perpetrators of blue collar crime.

This paper sets out to first highlight just how damaging white collar crime is to the community, secondly to reveal how morally obtuse a white collar criminal has to be to commit these sorts of crimes, and thirdly that as a matter of equality, social justice and utility it is imperative by virtue of the first two points that the severity of punishments for white collar crimes be increased dramatically.

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The Dennett Institute of Advanced Athiest Studies

Often we atheists find that, when confronted by rational argument based on our wealth of scientific knowledge, god believers retreat to the one last refuge where they believe no atheist can touch them. I refer, of course, to the following argument: “Ok, perhaps I cannot prove that god exists in any physical way, and admittedly I cannot show you that god does or ever has interacted with the physical world, but really none of that matters, for god is not a physical being and so of course we cannot see him or find his hand in physical doings. God is beyond the physical, and just because you and I cannot comprehend what that means is no good reason to dismiss it.” I think we have all heard a variation of this, and have recoiled from it (surely even god believers find it a little peculiar to have an omnipresent, omnipotent being who has no presence and no measurable physical effects {i.e., no physical effects} in the world whatsoever). But because it is so hard to pin down the actual meaning of the argument it has always been very difficult to refute it. Let us, then, examine what exactly it is that is being said here, and find out whether the convenient obscurantism of the god believer’s last line of defence is so convenient after all.

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Our Teachers are Overpaid? Try hiring a babysitter!

“It seems that many people are getting greedy. Including the politicians, cops and teachers” —Anonymous.

This is a comment on the latest poll about teachers deserving a pay rise. I am all for diversity of opinion but I would just like to refute this statement unequivocally with a simple example.

Mathematics is often something that confounds me, but on this occasion it proves quite useful for showing how grossly underpaid teachers are. That they are concurrently undervalued is also demonstrated by the widespread opinion of people like the person who made the above comment.

Let’s take the most minimalist value for teachers. Let’s say that teachers are nothing more than glorified babysitters and for now say nothing of the value of the knowledge they impart on our children. Let’s also take the smallest possible family, with only one child.

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Mandatory Sentencing Laws Racist?

“You are what you repeatedly do.” — Aristotle

Let us examine whether WA’s controversial Mandatory Sentencing laws can be considered in any objective sense as racist. To do so we need to first examine the traditional principles of what sentencing is designed to achieve, we need to produce a workable definition of ‘racist’, and finally examine the laws as they exist today in this context to see if they come within the ambit of our definition.

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The White, Upper/Middle Class, Elderly Male & Unconstitutional High Court Bench

I intend to prove that there is a constitutional basis for enforcing a policy of affirmative action in the make-up of the High Court of Australia’s bench. I will first establish not only that there is such a basis, but that this policy is imperative to the proper function of contemporary Australian society under the Commonwealth Constitution. To demonstrate this, I will first look at the purported role of the High Court in the framework of Australia’s legal system and will then be examined in comparison to Australian jurisprudence which highlight a failure to live up to this role, a failure, it will be contended, that would have been remedied if affirmative action informed the appointments to the High Court bench. The constitution itself will be constantly referred to throughout, drawing from it elements that imply a need for affirmative action in the constitution of the High Court bench.

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As the number of victims from terrorism continues to escalate, it is obvious the “War” on Terror is not working.

Sitting comfortably in middle class clothes, casually munching on a long chain of malteasers, it came like the proverbial whack to the head. There on the silver screen was a disconsolate man of Middle Eastern appearance. He was carrying a toddler, limp and charred; still wearing the blue overalls his mother had dressed him in that morning. As he placed the blackened, lifeless form on the back of a rapidly filling utility he was crying out uncontrollably and although it was in another language you knew what he was saying: “WHY!” This scene from Michael Moore’s latest documentary film, Fahrenheit 9/11 is just one example of the countless victims of terrorism since the phenomena stormed back into the public consciousness since September 11, 2001.

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