[Majordomo,
Friday February 25, 2005 at 6:44pm]
Panel 1: What is Freedom?
(Reposted to fix comments problem)
THIS POST OPEN FOR COMMENTS — CLICK THE "X COMMENTS" LINK AT THE BOTTOM AND CHOOSE "POST AS GUEST"
The first panel of "Law and Freedom" is entitled "What is Freedom and What is the Role of Law in Protecting It? Competing Philosophical and Jurisprudential Perspectives on Liberty.
The panel features:
* Professor Charles Fried, Harvard Law School
* Mr. Kevin J. Hasson, Becket Fund for Religious Liberty
* Professor Michael S. Moore, University of Illinois Law School
* Professor Michael J. Sandel, Harvard University
* MODERATOR: Professor Gary S. Lawson, Boston University School of Law
I'm not the most philosophically-minded law student — but am looking forward to this panel. Professor Moore's paper on whether the attack on the World Trade Center on September 11 counted as one occurrence or two is one of the most interesting law-and-philosophy papers that I've read (available from SSRN).
Here's the panel description:
This panel will examine several competing definitions of freedom. The definitional question will likely raise fundamental questions such as: Is freedom merely the absence of external constraints? Is freedom still possible if the State is not neutral with respect to "the good"? Panelists will be encouraged to argue for their own conceptions of freedom. As a result, the hope is that the major perspectives on freedom, including both deontological (libertarian and liberal egalitarian conceptions) and teleological theories, will emerge. The discussion will provide a necessary orientation for the entire conference by defining and clarifying the (often disputed) terms of the debate.
THIS POST OPEN FOR COMMENTS — CLICK THE "X COMMENTS" LINK AT THE BOTTOM AND CHOOSE "POST AS GUEST"
The first panel of "Law and Freedom" is entitled "What is Freedom and What is the Role of Law in Protecting It? Competing Philosophical and Jurisprudential Perspectives on Liberty.
The panel features:
* Professor Charles Fried, Harvard Law School
* Mr. Kevin J. Hasson, Becket Fund for Religious Liberty
* Professor Michael S. Moore, University of Illinois Law School
* Professor Michael J. Sandel, Harvard University
* MODERATOR: Professor Gary S. Lawson, Boston University School of Law
I'm not the most philosophically-minded law student — but am looking forward to this panel. Professor Moore's paper on whether the attack on the World Trade Center on September 11 counted as one occurrence or two is one of the most interesting law-and-philosophy papers that I've read (available from SSRN).
Here's the panel description:
This panel will examine several competing definitions of freedom. The definitional question will likely raise fundamental questions such as: Is freedom merely the absence of external constraints? Is freedom still possible if the State is not neutral with respect to "the good"? Panelists will be encouraged to argue for their own conceptions of freedom. As a result, the hope is that the major perspectives on freedom, including both deontological (libertarian and liberal egalitarian conceptions) and teleological theories, will emerge. The discussion will provide a necessary orientation for the entire conference by defining and clarifying the (often disputed) terms of the debate.
Related Posts (on one page):
He emphasized how "disregard" is the true enemy of "liberty," and how the dilemma of "law and freedom" is the dilemma of when we hinder by disregarding and running into each other; how we have rerived property, as the n-dimensional space in which a free person may disregard others without being hindered by them, making property the guarantor of liberty.
His final thoughts: what then of love, friendship, art, science, etc. Are these not the things that are valuable about us? Yes, they are, if they are freely chosen and they arise out of our personal, individual choices. If they are not, their value disappears.
Once a motorcycle rider, and talked about ABATE, a counter-helmet law motorcyclists organization. Rather than dividing America into red states and blue states, they divide states into free states and "slave" states, based on the presence of helmet laws!
To ask two questions - "What is valuable about liberty?," and then "Could you have a right to liberty?
Lays out six values to liberty, which create a presumption of liberty, not a right.
Then maps two ways to think about the right, against a Burkeian criticism:
1. Derived right of liberty - your right to liberty begin where your obligations end -- your obligations not to transgress against the criminal law. If you have the right definition of liberalism - that there is no morality in issues like sexual conduct, you can make this worse.
2. A sphere of liberty in decision-making (cf.Justice Scalia concurrences). Claim: The post-Griswold jurisprudence of choices that define who you are defines this right to liberty. You have either the "objective" approach - Justice Stevens - how big a difference does it make in your life. Or the subjective approach, (see Blackmun's dissent in Bowers), outlining the choices you make to define who you are.
Can this sphere really be defined? The jury is still out.
[To Prof. Fried]: You must support the disestablishment of marriage, don't you?
Prof. Fried: Yes, I guess so.
Prof. Sandel: If the airlines say "our fundamental purpose is to transport passengers and amuse them in sexist ways," should they be free to decide for themselves that purpose, and courts should not intervene to keep them from discriminating in favor of attractive young women?
Prof. Fried: You're asking me if I would overrule Lochner. We've made a distinction between commercial matters (which the state may regulate these issues on) and matters of conscience, personal lifestyle, freedom of thought, and so on, which I hope will never be seen as matters the state decides. Was the statute unconstitutional? Not since Lochner.
Prof. Sandel: But don't you have to decide the true purpose of airlines - whether to maximize revenue through titillation, or just to transport passengers?
Prof. Fried: I'm going to have to say "yes," but the legislation could be written to avoid deciding it.
Prof. Sandel: If you wrote that legislation, you'd have to decide, then.
Prof. Fried: I don't think I'd write that legislation.
And then, a humorous exchange --
Prof. Sandel: Are you aware there's a Hooters Airline?
Prof. Fried: I've been thinking about scantily-clad women the entire time you've been talking.
Prof. Sandel: And I thought you were thinking about Kant.
Fried: The civil jury was a mistake. A license for irresponsible people to incite even more irresponsible people to behave unlawfully and there's no good in it.
Prof. Sandel retorted: Charles, that sounds an awful lot like a definition of democracy.
1. Eliminating legal restraints, thus enhancing positive liberty
2. Millian autonomy, as the absence of government coercion makes people authors - he referenced the end of Fried's remarks
3. Kantian autonomy - ensuring that people act morally for the right reasons, rather than practical "avoid conflict with authority" reasons
4, 5, 6. Utilitarian arguments, from Rawls perspective, enforcement costs, e.g. privacy harms perspective, and one other..
Hasson's point: The acts of the Puritans weren't wrong because they failed to follow democratic procedures in enacting the laws; they did. They weren't wrong because capital punishment is inherently wrong; it may be, but jail terms would have been equally wrong. No government grants religious liberty, so no government can justly deny it. As humans are born, so too are they born to seek the good, the just, and the true, and they cannot be denied.
I do think he looks like George Lucas, though. And he could probably make better movies than the last two...
It was the experience of Hasson's storytelling that is making people go gaga, I think-- he has a certain hush-voiced, conspiratorial air that added force to the otherwise unexceptional observation that religious freedom and freedom of conscience are (for most of us) moral commitments that pre-date and outreach mere positive law.