Who said liberty is the right to choose

Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9 No one shall be subjected to arbitrary arrest, detention or exile. Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11 Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.

Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.

Article 13 Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14 Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15 Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16 Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

Marriage shall be entered into only with the free and full consent of the intending spouses. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 17 Everyone has the right to own property alone as well as in association with others.

No one shall be arbitrarily deprived of his property. Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Locke, and Kant, [ assume that the sovereign people guarantees individual liberty in any human association.

Both thinkers hold both that human associations or societies of free persons cannot deny the political facts of power, obedience and command Locke, [ ; Kant, and that, in natural rather than political conditions, individual liberty is unrestricted.

Since in the state of nature it is possible for one to obey unconditionally, having only duties, while the other in turn commands unconditionally, having only rights, the unrestrictedly obedient enjoy no protection against unrestricted power, at least concerning their right to life Locke, [ ; Kant, From this perspective, i.

The people as a political body expresses precisely this alliance: an inter-protective construction that replaces the state of unconditional obedience and command.

Following the controversial model of the contractual act Gough, , individuals transfer to the political power their unrestricted natural right to liberty.

As members of the people, individuals equally consent to restricting their liberty under a political order and to preserving an equal coercive power, which prevents them from being reduced to servile persons and, correlatively, prevents any one of their numbers from becoming a despotic lord Locke, ; Kant, As such, they establish public law —a system of laws for a people, i.

Through public law, i. When pursuing their personal well-being, as members of the people, individuals cannot ignore this common set of rights and restrictions. When pursuing their well-being, individuals are also, but not exclusively, bound to demands that are independent of their individual interests. Neoliberal theory and practice does not preclude a common law Buchanan and Tullock, ; Hayek, The common law that it involves is not, however, a law of the people that provides liberties rights and imposes a unique set of restrictions Buchanan and Tullock, ; Hayek, ; Nozick, Indeed, neoliberal political theory does not allow for the transformation of individual personalities or isolated natural selves into a collective or single public, viewed as the ultimate intentional lawmaker, which is the model we find, for example, in Locke, , Kant, , and Rawls, They do not constitute a common person subject to common legislation that defines and regulates political authority and applies equally to all persons.

On this view, human rights result from personal interests, and persons cannot be bound to claims that are independent of their private interests. These claims presuppose a public obligation or the possibility of coercion , which involves a political organization in which decision-makers act as collective agents: as members of a people rather than individuals.

Yet on the neoliberal conception, collective deliberation of this sort limits, and even undermines, individual liberty Buchanan and Tullock, ; Hayek, ; Nozick, , leading to oppression Buchanan and Tullock, , if not to serfdom Hayek, The people as a political body is based on the supposition that someone the people can intentionally prevent or promote certain results, which, via end-rules, guiding organizations can compel individuals to attain. Requiring that the situation of the less well off be improved via the principle of the equality of opportunity, for example, involves restricting individual liberty in order to improve the situations of others Hayek, , ; Nozick, This improvement is thought to be unacceptable because, in addition to presupposing that we can determine the circumstances under which individuals pursue their aims, binding persons to claims that are independent of their private interests constitutes an interference in their liberty Hayek, To regard only the public law as serving general welfare and the private law as protecting only the selfish interests of the individuals would be a complete inversion of the truth: it is an error to believe that only actions, which deliberately aim at common purposes, serve common needs.

The fact is rather that what the spontaneous order of society provides for us is more important for everyone, and therefore for the general welfare, than most of the particular services which the organization of government can provide, excepting only the security provided by the enforcement of the rules of just conduct. Hayek, , p. This means not only that governments ought to mirror that order—they cannot provide any rights of themselves—but also that the judicial system ought to be redesigned to fit with the Great Society.

This model cannot accommodate the idea of a public person, the people, to whom individuals belong; indeed, the role of ultimate intentional lawmaker is taken from the people and given to the spontaneous order , the Great or Open Society.

Under the negative conception of liberty, individual freedom is compatible with impediments and constraints liberty is not bare license, which ultimately undermines negative liberty; Berlin, Abstract rules allow for private restrictions on liberty, and neoliberal governmental organizations ought to ensure that any restrictions on liberty are limited to the private realm.

Neoliberal theorists do not understand this protection as a form of intervention or interference, however. Hayek, , for example, argues for this notion by establishing a distinction between repairing and intervening.

When a person oils a clock, they are merely repairing it, securing the conditions required for its proper functioning. In other words, just as oiling a clock provides the conditions required for its proper functioning, so governmental protection of the private scope of restrictions on liberty allows for the proper functioning of the Great Society.

Both merely create the conditions under which individual wellbeing can be maintained, if not increased. They permanently adjust the rules to the neoliberal common law.

Consider a situation in which two people, A and B, are involved in cooperative activity and in which both establish a common rule to safeguard the maximization of their interests. Under this rule, A and B both contribute to the maximization of their own well-being. Although it accepts the interdependence of individuals when pursuing their personal well-being, neoliberal reparation does not allow for a common right to the results of that cooperative interdependence Hayek, ; Nozick, In denying the existence of a public person, a public will, and in ultimately challenging the idea that there is a common right to a share in the total well-being that results from the contributions of all, neoliberalism not only allows, but also requires , that one party has a claim to the exclusively private enjoyment of the benefits of their mutual relationship.

Accordingly, neoliberal repair a metaphor for neoliberal government ought to remove public law, which allows for the common right to well-being, and should replace it with private law.

The resulting intensification of poverty and inequality Greer, ; Matsaganis and Leventi ; Stiglitz, , the diminishing security of employment and income Clayton and Pontusson, ; Stiglitz, , and growing authoritarianism Brown, ; Bruff, ; Kreuder-Sonnen and Zangl, ; Orphanides, ; Schmidt and Thatcher, are not problems in themselves.

Accordingly, when choosing between the intensification of poverty and inequality and allegiance to the right of non-interference, non-interference must prevail, thus preventing political and social action to reduce or compensate for poverty and inequality.

Notwithstanding the underlying theoretical debate on the legitimacy and justice of the acquisition of private rights Hayek, ; Marx, ; Nozick, ; Rawls, , , enforcing the rules of the Open Society deprives one part of that society of the right to their well-being and to their contribution to the general well-being.

Under the neoliberal model of government and law, certain citizens are deprived of the right to enjoy the public goods that result from their collective activity, while others enjoy a private right to goods that result from the contribution of all. Since those who benefit are not able to acknowledge the contribution of others, they erase it and privatize the public law.

This privatization shows that the neoliberal trinity of privatization, flexibilization and deregulation ultimately results from the original privatization of the public or common law. Aside from the controversy concerning the epistemological value of the distinction between negative and positive liberty Berlin, []; Gray, ; Rawls, , ; Taylor, , theoretical disagreement about their meanings Taylor, , and the caricatures by which they are often understood e.

Similarly, the imposition of that right on society as a whole through legislation, including those who have been deprived of their well-being, also constitutes positive coercion. Citizens who are deprived of their well-being must simply accept the neoliberal diktat , i.

In a paternalistic way—according to Berlin, , positive liberty is always paternalistic in some sense—neoliberal politicians argue that there is no alternative TINA to neoliberal political legislation the government knows best.

Consequently, under the veil of state juridical and political violence, neoliberal politicians present governmental rules as an ultimatum , precluding consent, i. The rejection of all public right, i. In other words, the neoliberal political order mirrors the despotic nature that neoliberals attribute to the meaningless or mystical general will Buchanan and Tullock, Neoliberal theorists understand public rules as means of protection, as if private interests were not highly dependent on law.

In addition, however, rather than accepting the collective protective scope of the law, they demand a monopoly on it. Although neoliberalism casts them as utterly independent actors—lone Robinson Crusoes—they are highly dependent not only on the contributions of others for their well-being but also on the positive law. Neoliberal positive liberty thus leads to the establishment of legal and political inequality: some command without consent, i.

Ultimately, making use of the benefits of negative liberty depends on the political attribution to individuals of certain legal and political statuses, under which they can make use of their liberty. Moreover, the positive liberty that underlies the spontaneous order not only deprives certain citizens of their share of the general well-being but also leaves no room to claim a right against that deprivation.

Indeed, although framed by abstract rules, rights are always obtained under particular circumstances, i. Despite the interdependence of all individuals, individuals always remain separate unities and are thus deprived of the right to claim a common share of the fruits of their relationships—as if belonging to a common body entailed personal indifference and the abandonment of private interests. Accordingly, if the Great Society, which replaces the will of the people, does not provide rights to citizens, and if those citizens do not obtain them from their private interactions, it is meaningless to claim such a right or to complain that such a right has been denied them.

There is nothing to claim or to complain about. In other words, where there are no rights, there can be no deprivation of rights. Even if individuals wish to complain about the deprivation of their rights, the neoliberal state—which considers such rights imaginary, fictitious, mystical—does not contain institutions that can address such complaints.

Under the neoliberal state, both the people and public institutions vanish into thin air. As Beck stresses with regard to neoliberal globalization, neoliberalism is the power of Nobody Beck Even though Nozick unlike Hayek accepts the existence of natural rights and liberties, his rejection of a public person and public restrictions shows that the assumption of natural rights does not guarantee their enjoyment. A free serf is someone who, although deprived of political protection—whether this is understood as it was in the medieval era Bloch, , which made a distinction between the protector and the protected, or as it was understood in the liberal tradition Locke, ; Kant, , in which each person is simultaneously protector and protected—can still satisfy their bodily needs through selling themselves or their labor.

Neoliberal private restrictions on liberty cannot override the unrestricted autocratic deliberation of those who, in the absence of public law, can freely renounce their liberty in situations of extreme need, thus voluntarily enslaving themselves.

The rejection of a public limit to individual liberty, along with the overlapping of public law and private interests, allows for unrestricted orders and, correlatively, for obedience without liberty on work precariousness see Gill and Pratt, ; on work conditions in sweat shops, see Bales Consequently, neoliberal political theory and practice allow for the creation of a situation in which some citizens serfs only obey while others lords only command.

This legal and political inequality is at work, for example, in systems where lords offer protection in exchange for total obedience on the part of serfs and vassals Bloch, From the perspective of neoliberal theory, we are all equal: neoliberal society does not contain legal or political inequality and does not divide citizens into those who are superior and those who are inferior.

To be at the disposal of someone else who can do whatever they please and to whom one owes unrestricted obedience entails neither that one has an inferior legal status nor that the political relationship at stake is one of a superior to an inferior.

Persons have the same legal constitutional status they all are seen as equally free , and all are equally entitled to pursue their private interests. Even if people sell themselves, this concerns the private restriction of liberty from the perspective of neoliberalism and does not conflict with the conditions required for the proper functioning of the spontaneous order, i. Besides entailing what is known in political philosophy as the liberty of slaves, i.

Thus, even if in neoliberal spontaneous societies people are not assigned explicitly different political statuses, which entail different political rights and duties, neoliberal political society does not prevent people from becoming servile or, correlatively, from becoming despotic.

This fact reveals the extent to which neoliberalism entails a dangerous process of what some authors have called refeudalization Supiot, ; Szalai, , full analysis of which deserves examination of its own. Nevertheless, when obeying without liberty , if citizens fail to acquire their rights they risk becoming something less than a free serf, i.

A free excluded citizen is a citizen who lives in a free society without having the personal, social or institutional resources to make use of their own liberty. In this case, voiceless and invisible citizens can only enjoy purely negative liberty, in the absence of the personal, social and institutional resources with which they might otherwise achieve well-being. Neoliberalism also entails the continuous risk of passing from servile or docile citizenship into lawless personhood.

Neoliberalism does not reduce to fostering the entrenchment of political inequality: the division of citizens into those who obey and those who command. It also does not merely imply a situation in which some are protected by the state while others are not, where private interests have a monopoly on legal protection and rights while others are denied political protection and only have duties on work precariousness see Gill and Pratt, Ultimately, neoliberalism risks leading to the total exclusion of some citizens under the veil of full liberty.

The vanishing of the will of the people results in the invisibility of certain kinds of people, who are then forced to live in the spontaneous society as if they were stateless or lawless persons. Neoliberalism has retained some of the elements of that state such as the protection of the rights of the most vulnerable , although these elements have been reshaped by the market approach to social welfare Hartman, ; MacLeavy, On this basis, neoliberal officials have assigned public goods and services to private market providers, redesigning social programs to address the needs of neoliberal labor markets rather than personal wellbeing and establishing partnerships between the state and the private sector Brodie, For example, economic internationalization has affected the competitive viability of the welfare state Boyer and Drache, ; Rhodes, Also, the expansion of the state weakened intermediate groups and jeopardized individual liberties, subjecting citizens to increasing bureaucratic controls Alber, We shall not dwell on a full analysis of these developments.

The applicant lost the case before the domestic courts. The right to freedom of movement is a fundamental human right, which has found expression and won endorsement in a range of human rights and humanitarian instruments.

Its first legal recognition can be traced back as early as the English Magna Charta After , changing conditions have affected the issues covered by the right to freedom of movement. Increasing international mobility, tourism and migration on the one hand and alarming tendencies of xenophobia and restrictive attitudes of many states towards asylum seekers, migrant workers and aliens on the other, have made the right to freedom of movement increasingly important and at the same time controversial.

Freedom of movement, commonly understood, entails the right of everybody lawfully within a given territory to move about freely within it, without hindrance, and without having to ask specific permission of the authorities. The right to move freely within a given territory. Everyone lawfully within the territory of a state has the right to move freely within that territory.

The citizens of a state are always lawfully within the territory of that state. As regards aliens, however, a state may determine by law whether persons may move freely in accordance with the law. The Human Rights Committee has held on this matter that an alien who enters a state lawfully, and whose status is regularised, must be considered lawfully within the territory General Comment Protection of the natural environment is a further justifiable basis for controlling movement.

The Human Rights Committee has indicated that under Article 12 ICCPR it is permissible to restrict the categories of persons entitled to live on tribal reserves, for the purpose of protecting the resources and preserving the identity of the tribe see, e. In the case of a woman, the obligation to protect includes the right to move freely and to choose her residence without any interference, by law or by practice, by any other person, including a relative.

The right to choose a residence within a territory. The right to choose where to live includes protection against all forms of forced internal displacement. It also means that the state is not permitted to prevent the entry or stay of persons in a defined part of the country. This right was successfully invoked before the Human Rights Committee in, inter alia , Ackla v.

Togo , where the applicant was under a prohibition from entering a certain area and his native village. The Committee found that in the absence of an explanation from the state justifying the restriction, there had been a violation of Article 12 1 ICCPR see also Mpaka-Nsusu v.

It involves the right to depart permanently emigration , or for a shorter or longer period. It stems from the general principle that no state owns an individual, and that the right is a personal one.

The right to leave any country is not restricted to persons lawfully within the territory of a state, which means that an alien being legally expelled from the country is allowed to choose the state of destination, with the agreement of that state. Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country includes the right to obtain the necessary travel documents.

Normally, the issue of a passport falls under the obligation of the state of nationality of the individual. If the citizen is resident abroad, or being resident abroad has obtained travel documents from another country, this does not relieve the state of nationality of the obligation to issue a passport. In such a case, obligations are imposed both on the state of residence and on the state of nationality.

The Human Rights Committee has been called upon, in the context of analysing the right to freedom of movement, to consider the denial of provision or revocation of passports to citizens living abroad. The state of residence is primarily obligated to avoid interfering with the freedom to leave; the state of nationality is under a positive duty to ensure effective possibilities to leave by issuing the necessary documents; States that deny their citizens a passport thus violate Article 12 2 [of ICCPR] insofar as this denial is not justified pursuant to Article 12 3 see, e.

Uruguay and El Ghar v. Libyan Arab Jamahiriya. The right to return is of particular importance for refugees seeking voluntary repatriation.

Absolute freedom of movement would include the right to enter another country. However, given the complexities of residence, the rights of the nationals already residing in a country, and the preservation of certain cultural rights, it has never been possible to achieve absolute freedom of movement in any human rights fora.

This has, however, had the side effect of a rather strict entry policy for persons from countries not belonging to the Schengen agreement.

The right to the freedom of movement is found in a number of international and regional Conventions. The UDHR contains the first universal statement on the right to freedom of movement. Under many subsequent international and regional instruments, however, the right to freedom of movement applies only to persons lawfully within a given territory.

Article 12 3 ACHPR is unusual in that it provides that a person has the right not only to seek but also to obtain asylum. The right to the freedom of movement has not generated as detailed case-law as other civil rights. Having said that, the Human Rights Committee, the Inter-American Commission and Court and the European Court have some interesting case-law regarding the right to the freedom of movement, which has helped interpret and clarify this right.

General Comment 27, adopted in , was a welcome addition to the jurisprudence. States parties have been able to justify restrictions to the right to freedom of movement by invoking the limitations despite the fact that limits to freedom of movement and the right to leave the country are to be interpreted Narrowly see, e. Sweden and Peltonen v. In Stewart v.

Canada , the Committee found that Canada would not violate Article 12 4 by deporting a British citizen who had committed petty crimes, even though he had lived in Canada since the age of seven and both his mother and brother still resided in Canada.

De facto restrictions upon liberty of movement have also been found to violate Article A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow. What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.

And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.