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Panel 1: What is Freedom?


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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.
Panel 1: My observation on Prof. Sandel and Casey Martin


Professor Sandel uses the Casey Martin case as an illustration of how all debates about rights are in fact substantive debates about what rights are worthy of honor and public recognition, and extends the idea into the question of gay marriage.

He raises Michael Kinsley's suggestion of "disestablishing marriage" or "privatizing marriage" (with which I agree).

Prof. Sandel suggests that the reason people on both sides don't embrace this suggestion is that what's at stake here are two rival conceptions of the essence of the practice, the moral values of the practice, and the social virtues that the practice rewards.

While Sandel is probably right, in what keeps people from embracing this, it seems to me that this reflects a fundamental misdirection in our polity - of having allowed government to bestow its blessings and condemnation on so many things, that we award such a blessing untoward, unjustified value.

If we privatized more of the social practices and elements of public recognition, those elements themselves would become "privatized."

I missed Professor Fried's responsive comments in this panel, which I think may have touched on this point.

Related Posts (on one page):

  1. Panel 1: Transcript of Hasson remarks from December
  2. Panel 1: My observation on Prof. Sandel and Casey Martin
  3. Panel 1: What is Freedom?
Panel 1: Transcript of Hasson remarks from December


Becket Fund founder Kevin Hasson was one of the stars of tonight's panel on "What is Freedom?" At the conclusion of his retelling of the stories of Mary Dyer and the Panchen Lama, he mentioned that he's told this story and posed his questions at universities across America. I've tracked down a transcript, from his remarks at the U.S. Embassy to the Holy See, on December 3, 2004. His remarks tonight paralleled this portion of his address:
When asked where religious liberty comes from the typical American responds in a way that would appall Madison: "well, it comes from the Constitution, of course". And even when pressed to the next step, "and what if the Constitution were to be amended or repealed?" most Americans hold their ground and say "well then I guess religious liberty would be amended or repealed as well". They thus appear to be thoroughgoing if amateur positivists. But not for long. In my experience, they are easily rescued from this position. Give them the story of Mary Dyer and they will instantly be deeply ashamed...

The story of Mary Dyer is indeed a shameful one. It takes place in pre-colonial Boston, which was then known as the Massachusetts Bay Colony. The Massachusetts Bay Colony was legally erected as a puritan sanctuary. Puritanism was legally established, and with a vengeance. It did not suffer anything remotely resembling religious liberty. So in 1656 when Quaker evangelists began to appear, the duly elected legislature duly enacted a law providing that such Quakers were to be expelled and if they returned, flogged and expelled once again. To their astonishment, the Quaker preachers returned, often repeatedly, to preach and, if necessary, to be flogged. So the following year, the duly elected legislature duly enacted

a new stature providing that repeat offenders were to have one ear cut off. Those who persisted beyond that point would have the other ear cut off, and for a third offense their tongues were to be bored through with a hot iron.

This was still insufficient to deter the Quakers who believed they were obeying the command of God himself to preach against the Bay Colony. Once again they returned... [O]n June 1, 1660, Mary Dyer was solemnly, lawfully hanged on Boston Common for her insistent preaching...

There was no constitution yet. Well then, why didn't Mary Dyer have it coming?...

[R]eligious liberty is a human right that no government grants in the first place and therefore no government may properly deny. It follows from human nature itself and more precisely from a mind and heart that is born to seek the true and the good, and from a conscience that insists we embrace the good and the true we believe we have found.
Many comments on the earlier Forum 1 post relate to Mr. Hasson's remarks.

Related Posts (on one page):

  1. Panel 1: Transcript of Hasson remarks from December
  2. Panel 1: My observation on Prof. Sandel and Casey Martin
  3. Panel 1: What is Freedom?