Imagine a woman is driving a car through town, and she comes to a fork in the road. She turns left, but no one was forcing her to go one way or the other. Next she comes to a crossroads. She turns right, but no one was preventing her from going left or straight on. There is no traffic to speak of and there are no diversions or police roadblocks. So she seems, as a driver, to be completely free. But this picture of her situation might change quite dramatically if we consider that the reason she went left and then right is that she is addicted to cigarettes and is desperate to get to the tobacconists before it closes. Rather than driving, she feels she is being driven, as her urge to smoke leads her uncontrollably to turn the wheel first to the left and then to the right. Moreover, she is perfectly aware that turning right at the crossroads means she will probably miss a train that was to take her to an appointment she cares about very much. The woman longs to be free of this irrational desire that is not only threatening her longevity but is also stopping her right now from doing what she thinks she ought to be doing.
This story gives us two contrasting ways of thinking of freedom. On the one hand, one can think of freedom as the absence of obstacles external to the agent. You are free if no one is stopping you from doing whatever you might want to do. In the above story the woman appears, in this sense, to be free. On the other hand, one can think of freedom as the presence of control on the part of the agent. To be free, you must be self-determined, which is to say that you must be able to control your own destiny in your own interests. In the above story the woman appears, in this sense, to be unfree: she is not in control of her own destiny, as she is failing to control a passion that she herself would rather be rid of and which is preventing her from realising what she recognises to be her true interests. One might say that while on the first view freedom is simply about how many doors are open to the agent, on the second view it is more about going through the right doors for the right reasons.
1 Negative and positive freedom
Isaiah Berlin, the English philosopher and historian of ideas, called these two concepts of freedom ‘negative’ and ‘positive’. The reason for using these labels is that in the first case freedom seems to be a mere absence of something (i.e., of ‘obstacles’, ‘barriers’, ‘constraints’ or ‘interference from others’), whereas in the second case freedom seems to require the presence of something (i.e., of ‘control’, ‘self-mastery’, ‘self-determination’ or ‘self-realisation’). In Berlin’s words, we use the negative concept of freedom in attempting to answer the question ‘What is the area within which the subject – a person or group of persons – is or should be left to do or be what he is able to do or be, without interference by other persons?’, whereas we use the positive concept in attempting to answer the question ‘What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?’1
It is useful to think of the difference between the two concepts in terms of the difference between factors that are ‘external’ and factors that are ‘internal’ to the agent. While the prime interest of theorists of negative freedom is the degree to which individuals or groups suffer interference from external bodies, theorists of positive freedom are more attentive to the internal factors affecting the degree to which individuals or groups act autonomously. Given this difference, one might be tempted to think that a political theorist should concentrate exclusively on negative freedom, a concern with positive freedom being more relevant to psychology or individual morality than to political theory. This, however, would be premature, for among the most hotly debated issues in political theory are the following: is the positive concept of freedom a political concept? Can individuals or groups achieve positive freedom through political action? Is it possible for the state to promote the positive freedom of citizens on their behalf? And, if so, is it desirable for the state to do so? The classic texts in the history of western political thought are divided over how these questions should be answered: theorists in the classical liberal tradition, like Constant, Humboldt, Spencer and Mill, are typically classed as answering ‘no’ and, therefore, as defending a negative concept of political freedom; theorists that are critical of this tradition, like Rousseau, Hegel, Marx and T.H. Green, are typically classed as answering ‘yes’ and as defending a positive concept of political freedom.
In its political form, positive freedom has often been thought of as necessarily achieved through a collectivity. Perhaps the clearest case is that of Rousseau’s theory of freedom, according to which individual freedom is achieved through participation in the process whereby one’s community exercises collective control over its own affairs in accordance with the general will. Put in the simplest terms, one might say that a democratic society is a free society because it is a self-determined society, and that a member of that society is free to the extent that he or she participates in its democratic process.
For liberals, on the other hand, Rousseau’s idea of freedom carries with it a danger of authoritarianism. Consider the fate of a permanent and oppressed minority. Because the members of this minority participate in a democratic process characterised by majority rule, they might be said to be free on the grounds that they are members of a society exercising self-control over its own affairs. But they are oppressed, and so are surely unfree. Moreover, it is not necessary to see a society as democratic in order to see it as ‘self-controlled’; one might instead adopt an organic conception of society, according to which the collectivity is to be thought of as a living organism, and one might believe that this organism will only act rationally, will only be in control of itself, when its various parts are brought into line with some rational plan devised by its wise governors (who, to extend the metaphor, might be thought of as the organism’s brain). In this case, even the majority might be oppressed in the name of liberty.
Such justifications of oppression in the name of liberty are no mere products of the liberal imagination, for there are notorious historical examples of their endorsement by authoritarian political leaders. Berlin, himself a liberal, and writing during the cold war, was clearly moved by the way in which the apparently noble ideal of freedom as self-mastery or self-realisation had been twisted and distorted by the totalitarian dictators of the twentieth century – most notably those of the Soviet Union – so as to claim that they, rather than the liberal West, were the true champions of freedom. The slippery slope towards this paradoxical conclusion begins, according to Berlin, with the idea of a ‘divided self ’. To illustrate: the smoker in our story provides a clear example of a divided self, as there is the self that wants to get to the appointment and there is the self that wants to get to the tobacconists. We now add to this that one of the selves – the respecter of appointments – is a ‘higher’ self, and the other – the smoker – is a ‘lower’ self. The higher self is the rational, reflecting self, the self that is capable of moral action and of taking responsibility for what she does. This is the ‘true’ self, since it is what marks us off from other animals. The lower self, on the other hand, is the self of the passions, of unreflecting desires and irrational impulses. One is free, then, when one’s higher, rational self is in control and one is not a slave to one’s passions or to one’s ‘merely empirical’ self. The next step down the slippery slope consists in pointing out that some individuals are more rational than others, and can therefore know best what is in their and others’ rational interests. This allows them to say that by forcing people less rational than themselves to do the rational thing and thus to realise their ‘true’ selves, they are in fact ‘liberating’ them from their merely empirical desires. Occasionally, Berlin says, the defender of positive freedom will take an additional step that consists in conceiving of the self as wider than the individual and as represented by an organic social ‘whole’ – ‘a tribe, a race, a church, a state, the great society of the living and the dead and the yet unborn’. The ‘true’ interests of the individual are to be identified with the interests of this whole, and individuals can and should be coerced into fulfilling these interests, for they would not resist coercion if they were as rational and wise as their coercers. ‘Once I take this view’, Berlin says, ‘I am in a position to ignore the actual wishes of men or societies, to bully, oppress, torture in the name, and on behalf, of their “real” selves, in the secure knowledge that whatever is the true goal of man ... must be identical with his freedom.’2
Those in the negative camp try to cut off this line of reasoning at the first step, by denying that there is any necessary relation between one’s freedom and one’s desires. Since one is free to the extent that one is externally unprevented from doing things, they say, one can be free to do what one does not desire to do. If being free meant being unprevented from realising one’s desires, then one could, again paradoxically, reduce one’s unfreedom by coming to desire fewer of the things one is unfree to do. One could become free simply by contenting oneself with one’s situation. A perfectly contented slave is perfectly free to realise all of her desires. Nevertheless, we tend to think of slavery as the opposite of freedom. More generally, freedom is not to be confused with happiness, for in logical terms there is nothing to stop a free person from being unhappy or an unfree person from being happy. The happy person might feel free, but whether they are free is another matter. Negative theorists of freedom therefore tend to say not that having freedom means being unprevented from doing as one desires, but that it means being unprevented from doing whatever one might desire to do.
Some positive theorists of freedom bite the bullet and say that the contented slave is indeed free – that in order to be free the individual must learn, not so much to dominate certain merely empirical desires, but to rid herself of them. She must, in other words, remove as many of her desires as possible. As Berlin puts it, if I have a wounded leg ‘there are two methods of freeing myself from pain. One is to heal the wound. But if the cure is too difficult or uncertain, there is another method. I can get rid of the wound by cutting off my leg’. This is the strategy of liberation adopted by ascetics, stoics and Buddhist sages. It involves a ‘retreat into an inner citadel’ – a soul or a purely ‘noumenal’ self – in which the individual is immune to any outside forces.3 But this state, even if it can be achieved, is not one that liberals would want to call one of freedom, for it again risks masking important forms of oppression. It is, after all, often in coming to terms with excessive external limitations in society that individuals retreat into themselves, pretending to themselves that they do not really desire the worldly goods or pleasures they have been denied. Moreover, the removal of desires may also be an effect of outside forces, such as brainwashing, which we should hardly want to call a realisation of freedom.
Because the concept of negative freedom concentrates on the external sphere in which individuals interact, it seems to provide a better guarantee against the dangers of paternalism and authoritarianism perceived by Berlin. To promote negative freedom is to promote the existence of a sphere of action within which the individual is sovereign, and within which she can pursue her own projects subject only to the constraint that she respect the spheres of others. Humboldt and Mill, both defenders of the negative concept of freedom, usefully compared the development of an individual to that of a plant: individuals, like plants, must be allowed to ‘grow’, in the sense of developing their own faculties to the full and according to their own inner logic. Personal growth is something that cannot be imposed from without, but must come from within the individual.
Critics, however, have objected that the ideal described by Humboldt and Mill looks much more like a positive concept of freedom than a negative one. Positive freedom consists, they say, in exactly this ‘growth’ of the individual: the free individual is one that develops, determines and changes her own desires and interests autonomously and ‘from within’. This is not freedom as the mere absence of obstacles, but freedom as self-realisation. Why should the mere absence of state interference be thought to guarantee such growth? Is there not some ‘third way’ between the extremes of totalitarianism and the minimal state of the classical liberals – some non-paternalist, non-authoritarian means by which positive freedom in the above sense can be actively promoted?
Much of the more recent work on positive liberty has been motivated by a dissatisfaction with the ideal of negative liberty combined with an awareness of the possible abuses of the positive concept so forcefully exposed by Berlin. John Christman, for example, has argued that positive freedom concerns the ways in which desires are formed – whether as a result of rational reflection on all the options available, or as a result of pressure, manipulation or ignorance. What it does not regard, he says, is the content of an individual’s desires.4 The promotion of positive freedom need not therefore involve the claim that there is only one right answer to the question of how a person should live. Take the example of a Muslim woman who claims to espouse the fundamentalist doctrines generally followed by her family and society. On Christman’s account, this person is positively unfree if her desire to conform was somehow oppressively imposed upon her through indoctrination, manipulation or deceit. She is positively free, on the other hand, if she arrived at her desire to conform while aware of other reasonable options and she weighed and assessed these other options rationally. There is nothing necessarily freedom-enhancing or freedom-restricting about her having the desires she has, since freedom regards not the content of these desires but their mode of formation. On this view, forcing her to do certain things rather than others can never make her more free, and Berlin’s paradox of positive freedom would seem to have been avoided. It remains to be seen, however, just what a state can do, in practice, to promote positive freedom in Christman’s sense without encroaching on any individual’s sphere of negative freedom. An education system that cultivates personal autonomy may prove an important exception, but even here it might be objected that the right to negative liberty includes the right to decide how one’s children should be educated.
Another group of theorists has claimed that Berlin’s dichotomy leaves out a third alternative, according to which freedom is not merely the enjoyment of a sphere of non-interference – as it is on the negative concept – but the enjoyment of certain conditions in which such non-interference is guaranteed.5 These conditions may include the presence of a democratic constitution and a series of safeguards against a government wielding power arbitrarily and against the interests of the governed. As Berlin admits, on the negative view of freedom, I am free even if I live in a dictatorship just as long as the dictator happens, on a whim, not to interfer with me. There is no necessary connection between negative freedom and any particular form of government. On the alternative view sketched here – often called the ‘republican’ concept of freedom – I am free only if I live in a society with the kinds of political institutions that guarantee noninterference resiliently and over time. The republican concept allows that the state may encroach upon the negative freedom of individuals, enforcing and promoting certain civic virtues as a means of strengthening democratic institutions. On the other hand, the concept cannot lead to the oppressive consequences feared by Berlin, because it has a commitment to liberal-democratic institutions already built into it. It remains to be seen, however, whether the republican concept of freedom is ultimately distinguishable from the negative concept, or whether republican writers on freedom have not simply provided good arguments to the effect that negative freedom is best promoted, on balance and over time, through certain kinds of political institutions rather than others.6
2 Freedom as a triadic relation
The two sides in Berlin’s debate disagree over which of two different concepts best deserves the name of ‘freedom’. Does this fact not denote the presence of some more basic agreement between the two sides? How, after all, could they see their disagreement as one about the definition of ‘freedom’ if they did not think of themselves as in some sense talking about the same thing? In an influential article,7 the American legal philosopher Gerald MacCallum put forward the following answer: there is in fact only one basic ‘concept of freedom’, on which both sides in the debate converge. What the so-called ‘negative’ and ‘positive’ theorists disagree about is how this single concept of freedom should be interpreted. Indeed, in MacCallum’s view, there are a great many different possible interpretations of ‘freedom’, and it is only Berlin’s artificial dichotomy that has led us to think in terms of there being two.
MacCallum defines the basic concept of freedom – the concept on which everyone agrees – as follows: a subject, or ‘agent’, is free from certain constraints, or ‘preventing conditions’, to do or be certain things. Freedom is therefore a ‘triadic relation’ – that is, a relation between three things: an agent, certain preventing conditions, and certain doings or becomings of the agent. Any statement about freedom or unfreedom can be translated into a statement of the above form by specifying what is free or unfree, from what it is free or unfree, and what it is free or unfree to do or be. Any claim about the presence or absence of freedom in a given situation will therefore make certain assumptions about what counts as an agent, what counts as a constraint or limitation on freedom, and what counts as a purpose that the agent can be described as either free or unfree to carry out. Let us return to the example of the driver on her way to the tobacconists. In describing this person as either free or unfree, we shall be making assumptions about each of MacCallum’s three variables. If we say that the driver is free, what we shall probably mean is that an agent, consisting in the driver’s empirical self, is free from external (physical or legal) obstacles to do whatever she might want to do. If, on the other hand, we say that the driver is unfree, what we shall probably mean is that an agent, consisting in a ‘higher’ or ‘rational’ self, is made unfree by internal, psychological constraints to carry out some rational, authentic or virtuous plan. Notice that in both claims there is a negative element and a positive element: each claim about freedom assumes both that freedom is the absence of something (i.e., preventing conditions) and that it is the presence of something (the doings or beings that are unprevented). The dichotomy between ‘freedom from’ and ‘freedom to’ is therefore a false one, and it is misleading say that those who see the driver as free employ a ‘negative’ concept and those who see her as unfree employ a ‘positive’ one. What these two camps differ over is the way in which one should interpret each of the three variables in the triadic freedom-relation. More precisely, we can see that what they differ over is the extension to be assigned to each of the variables.
Thus, those whom Berlin places in the ‘negative’ camp typically conceive of the agent as having the same extension as that which it is generally given in ordinary discourse: they tend to think of the agent as an individual human being and as including all of the empirical beliefs and desires of that individual. Those in the so-called ‘positive’ camp, on the other hand, often depart from the ordinary notion, in one sense imagining the agent as more extensive (or ‘larger’) than in the ordinary notion, and in another sense imagining it as less extensive (or ‘smaller’): they think of the agent as having a greater extension than in ordinary discourse in cases where they identify the agent’s ‘true’ desires and aims with those of some collectivity of which she is a member; and they think of the agent as having a lesser extension than in ordinary discourse in cases where they identify the ‘true’ agent with only a subset of her empirical beliefs and desires – i.e., with those that are rational, authentic or virtuous. Second, those in Berlin’s ‘positive’ camp tend to take a wider view of what counts as a constraint on freedom than those in his ‘negative’ camp: the set of relevant obstacles is more extensive for the former than for the latter, since negative theorists tend to count only external obstacles as constraints on freedom, whereas positive theorists also allow that one may be constrained by internal factors, such as irrational desires, fears or ignorance. Third, those in Berlin’s ‘positive’ camp tend to take a narrower view of what counts as a purpose one can be free to fulfil. The set of relevant purposes is less extensive for them than for the negative theorists, for we have seen that they tend to restrict the relevant set of actions or states to those that are rational, authentic or virtuous, whereas those in the ‘negative’ camp tend to extend this variable so as to cover any action or state the agent might desire.
On MacCallum’s analysis, then, there is no simple dichotomy between ‘positive’ and ‘negative’ freedom; rather, we should recognise that there is a whole range of possible interpretations or ‘conceptions’ of the single concept of freedom.8 Indeed, says MacCallum, a number of classic authors cannot be placed unequivocally in one or the other of Berlin’s two camps. Locke, for example, is normally thought of as a staunch defender of the negative concept of freedom, and he indeed states explicitly that ‘[to be at] liberty is to be free from restraint and violence from others’.9 But he also says that ‘liberty’ is not to be confused with ‘licence’, and that ‘that ill deserves the name of confinement which hedges us in only from bogs and precipices.10 While Locke gives a more ‘negative’ account of ‘constraints on freedom’, he seems to endorse a more ‘positive’ account of the third freedom-variable, restricting this to actions that are not immoral and to those that are in the agent’s own interests. This suggests that it is not only conceptually misleading, but also historically mistaken, to divide theorists into two camps – a ‘negative’ one and a ‘positive’ one.
3 Constraints on freedom
To illustrate the range of interpretations of the concept of freedom made available by MacCallum’s analysis, let us now take a closer look at his second variable – that of ‘constraints on freedom’.
We have seen that for those theorists Berlin places in the ‘negative’ camp, only obstacles external to the agent tend to count as constraints on her freedom. We should now note that these theorists usually distinguish between different kinds of external obstacle, restricting the range of obstacles that count as constraints on freedom to those that are brought about by other agents. For theorists who conceive of ‘constraints on freedom’ in this way, I am only unfree to the extent that other people prevent me from doing certain things. If I am incapacited by natural causes – by a genetic handicap, say, or by a virus or by certain climatic conditions – I may be rendered unable to do certain things, but I am not, for that reason, rendered unfree to do them. Thus, if you lock me in my house, I shall be both unable and unfree to leave. But if I am unable to leave because I suffer from a debilitating illness or because a snow drift has blocked my exit, I am nevertheless free, or am at least not unfree,11 to leave. The reason such theorists give, for restricting the set of relevant preventing conditions in this way, is that they see freedom as a social relation – a relation between persons.12 Freedom as a non-social relation is more the concern of engineers and medics than of political and social theorists.
In attempting to distinguish between ‘natural’ and ‘social’ obstacles we shall inevitably come across grey areas. An important example is that of obstacles created by impersonal economic forces. Do economic constraints like recession, poverty and unemployment merely incapacitate people, or do they also render them unfree? One way of supplying a clear answer to this question is by taking an even more restrictive view of what counts as a constraint on freedom, and saying that only a subset of those obstacles brought about by other persons counts as a restriction of freedom: those brought about intentionally. In this case, impersonal economic forces, being brought about unintentionally, do not restrict people’s freedom, even though they undoubtedly make many people unable to do many things. This last view has been taken by a number of market-orientated libertarians, including, most famously, Friedrich von Hayek, according to whom freedom is the absence of coercion, where to be coerced is to be subject to the arbitrary will of another.13 Critics of libertarianism, on the other hand, typically endorse a wider conception of ‘constraints on freedom’ that includes not only intentionally imposed obstacles but also unintended obstacles for which someone may nevertheless be held responsible,14 or indeed obstacles of any kind whatsoever.15 Thus, socialists have tended to claim that the poor in a capitalist society are unfree, or are ‘less free’, than the rich, in contrast to libertarians, who have tended to claim that the poor in a capitalist society are no less free than the rich. Socialists typically assume a broader notion than libertarians of what counts as a ‘constraint on freedom’, though without necessarily embracing anything like Berlin’s ‘positive’ notion of freedom.16
If we take an even closer look at the different notions of ‘constraint on freedom’ employed, we can see that there are in fact two different dimensions along which one’s notion of a constraint might be broader or narrower. A first dimension is that of the source of a constraint on freedom – in other words, what it is that brings about a constraint on freedom. We have seen, for example, that some include as ‘constraints on freedom’ only obstacles brought about by human action, whereas others also include obstacles with a natural origin. A second dimension is that of the type of constraint involved. We have seen, for example, that some include only coercion or physical barriers as relevant types of preventing factors, whereas others want to include as ‘constraints on freedom’ more subtle forms of influence, including not only external constraints but also internal ones such as those brought about through ideological manipulation. To see the difference between the two dimensions of source and type, consider the case of ‘internal’ constraints. An internal constraint is a ‘type’ of constraint, defined by reference to its location ‘inside’ the agent. It is a category that covers various psychological phenomena such as ignorance, irrational desires, illusions and phobias. Such a constraint can be caused in various ways: for example, it might have a genetic origin, or it might be brought about intentionally by others, as in the case of brainwashing or manipulation. In the first case we have an internal constraint brought about by natural causes; in the second, an internal constraint intentionally imposed by another. Given the independence of these two dimensions, one might want to combine a narrow view of what counts as a source of a constraint with a broad view of what types of obstacle count as constraints, or vice versa. The two dimensions are represented as in Table 1.1, where a narrower notion of constraints is one that restricts freedom-limiting factors to those located towards the top left-hand corner of the table, whereas a broader notion is one that includes more factors located towards the right or towards the bottom of the table.
To illustrate the independence of these two dimensions, consider the case of the unorthodox libertarian Hillel Steiner.17 On the one hand, Steiner has a much broader view than Hayek of the possible sources of constraints on freedom, extending that notion as far as the third row in Table 1.1: he does not limit the set of such sources to intentional human actions, but extends it to cover all kinds of human cause, whether or not any humans intend such causes and whether or not they can be held morally accountable for them, believing that any restriction of such non-natural sources can only be an arbitrary stipulation, usually arising from some more or less conscious ideological bias. On the other hand, Steiner has an even narrower view than Hayek of what counts as a type of constraint, restricting this to the left-most column in Table 1.1: for Steiner, an agent only counts as unfree to do something if it is physically impossible for her to do that thing. Any extension of the constraint variable to include other types of obstacle, such as those brought about by coercive threats, would, in his view, necessarily involve a reference to the agent’s desires, and we have seen that for those liberals in the ‘negative’ camp there is no necessary relation between an agent’s freedom and her desires. Consider the coercive threat ‘your money or your life!’. This does not make it impossible for you to refuse to hand over your money, only much less desirable for you to do so. If you decide not to hand over the money, you will of course be killed. That will count as a restriction of your freedom, because it will render physically impossible a great number of actions on your part. But it is not the issuing of the threat that creates this unfreedom, and you are not unfree until the threat is carried out. For this reason, Steiner excludes threats – and with them all other kinds of imposed costs – from the set of obstacles that count as freedom-restricting.
|Sources of constraint||Types of constraint|
|The physical impossibility of action||The difficulty or costliness of action||Internal factors (e.g., phobias, compulsions, irrationality, ignorance)|
|Intentional human actions|
|Actions for which humans are morally responsible|
Steiner’s account of the relation between freedom and coercive threats might be thought to have counter-intuitive implications, even from the liberal point of view. Many laws that are normally thought to restrict ‘negative’ freedom do not physically prevent people from doing what is prohibited, but deter them from doing so by threatening punishment. Are we to say, then, that these laws do not restrict the freedom of those who obey them? A solution to this problem may consist in saying that although a law against doing some action, x, does not remove the freedom to do x, it nevertheless renders physically impossible certain combinations of actions that include doing x and doing what would be precluded by the punishment. There is a restriction of the person’s overall freedom – i.e., a reduction in the overall number of act-combinations available to her – even though she does not lose the freedom to do any specific thing taken in isolation.18
We began with a simple distinction between two concepts of freedom, and have progressed from this to the recognition that freedom might be defined in any number of ways, depending on how one interprets the three variables of agent, constraints, and purposes. Might Berlin’s concepts of ‘negative’ and ‘positive’ freedom nevertheless still be of some use? Perhaps, in the sense that the concept of self-mastery or self-direction implies a presence of control that may not be adequately captured by MacCallum’s explication of freedom as a triadic relation. If one thinks of freedom as involving self-direction, one has in mind an ‘excercise concept’ of freedom, as opposed to an ‘opportunity concept’.19 On an excercise concept, freedom consists not merely in the possibility of doing certain things (i.e., in the lack of constraints on doing them), but in actually doing certain things in certain ways – for example, in realising one’s true self or in acting on the basis of rational and well-informed decisions. MacCallum’s triadic relation does not really capture this ‘excercise’ element in the concept of freedom as self-direction. The importance of this concept continues to be dicussed in contemporary political philosophy, though normally under the rubric of ‘personal autonomy’. MacCallum’s framework has nevertheless tended to dominate in contemporary discussions about the nature of ‘constraints on freedom’, about the relation between an agent’s options and her desires or values, and about whether and how an agent’s specific freedoms can be aggregated so as to make sense of the liberal political prescription that people enjoy ‘maximal’ freedom or ‘equal’ freedom.