About The Workshop
SW 66- Positive Freedom, Democracy, Republic and the Law
Convenors: Stephan Kirste, Konstantinos A. Papageorgiou
Contact: stephan.kirste@plus.ac.at; albericogentili@gmail.com
Freedom is a great moral and political ideal and a fundamental value of democratic constitutional states. But, as Annelien de Dijn has recently put it, it is also an “elusive concept”.
Freedom (or for that matter liberty) has not been always understood in a uniform way. In fact, the last two centuries favored for various reasons a “legalist” conception of freedom. The concept supposedly demarcates strict boundaries of individual activity to be protected from third party intrusion or hindrance, notably so by the state itself (“negative freedom”). This particularly reading led to further interpretative distortions as to the importance of freedom and the role of law and state.
Indeed, fundamental rights protect freedom vis-à-vis the state (and can have third-party effects towards the infringement of freedom by private parties) and grant claims of political participation or social benefits in case individuals are unable to realize their own potential for freedom. Because of the artificial divide between the so-called “freedom of the ancients” and the “freedom of the moderns” which Benjamin Constant’s famous essay helped establish, a more expansive understanding of freedom-based rights has been met with skepticism and critique. These critical positions are as a rule inspired by a reductive conception of freedom that has its roots in the 19th century discussion.
Isaiah Berlin’s famous essay intended to protect freedom from tyrannical abuse but his reference to the traditional distinction between negative and positive liberty failed to provide a workable solution. As both neo-Hegelian and republican contributions have argued, a purely negative idea of freedom as non-intervention is not sufficient to help us reappreciate the significance of freedom for the democratic constitutional state. But what are the remaining options at hand? Should we conceptualize freedom as self-determination, self-rule or self-government, understood as the individual’s capacity to set her own goals and to voluntarily assume responsibility? Or should we, rather, seek softer alternatives to a robust conception of positive freedom? How should the law interpret and demarcate the space of liberty and how can it empower individuals and citizens without encroaching on their right to shape and control their own lives? The workshop will address these issues based on older and more recent contributions, will discuss alternatives to purely negative conceptions of freedom, and explore the importance of liberty for democratic constitutional states and citizens. The general theme of the workshop touches upon a vast list of topics related to freedom, democracy and the law such as law and paternalism, the moral, political, social and economic foundations of equal freedom, corruptions of democracy posed by “expertocracy”, populism, and “authoritarian democracy” and finally the demands of our social and ecological responsibility as citizens.
Stephan Kirste, Konstantinos A. Papageorgiou
