A Southeast Asian Perspective on Freedom from Domination — Epoche C1
Power that need never be used Article 436 of Myanmar's 2008 constitution requires the assent of more than three-quarters of the national legislature to amend its principal provisions, and Articles 109 and 141 reserve one quarter of the seats in each chamber for serving officers nominated by the commander-in-chief. The arithmetic is the point: a bloc holding one seat in four can defeat any proposal needing more than three in four, so no constitutional change could occur without the army's consent. For thirteen years that veto sat unexercised in the ordinary business of government, and on 1 February 2021 the army dispensed with the constitution altogether. During those thirteen years, was the Burmese electorate free? The question has two respectable answers, and which one a theory gives depends on what it takes freedom to consist in. This note examines the claim, made in its earlier form here, that Isaiah Berlin's concept of negative liberty already contains the resistance to arbitrary power that the republican tradition makes central. The examination will not confirm that claim. Berlin's texts say something more specific and less convenient, and the Southeast Asian material, read carefully, tells against the original thesis rather than for it. What emerges is a different and better-supported conclusion: Berlin's political liberalism wants precisely what the republican concept supplies, and cannot state it in his own vocabulary. What Berlin's concept actually is Berlin's 'Two Concepts of Liberty', delivered at Oxford in 1958, defines negative liberty as the absence of obstruction by other people: I am free in this sense to the extent that no one interferes with my doing what I could otherwise do. Positive liberty, his second concept, answers the different question of who is master, and consists in self-direction. So far the earlier account is accurate. Two features of the negative concept then need stating, because the original argument here was built on their opposites and must be corrected. First, on Berlin's analysis every interference reduces negative liberty, whatever its source and however well justified. He follows Jeremy Bentham in holding that a law, however necessary, is to that extent an infringement of liberty, and he insists that a fetter remains a fetter even when it protects the person fettered from something worse. The proposal attributed to Berlin earlier in this note — that interference by a legitimate, democratically enacted authority is not a loss of negative liberty, while interference by an arbitrary power is — is not Berlin's view, and it inverts one of his central contentions. He argued at length that the question 'how far does the government interfere with me?' is logically distinct from the question 'who governs me?', and that answering the second tells you nothing about the first. A self-governing people can be highly interfered with; an absolute monarch may leave large areas alone. Second, Berlin devotes a section of the essay to what he calls the search for status and recognition — the demand to be treated as a responsible agent by one's own community — and he insists that it is neither negative nor positive liberty but a third thing, frequently confused with both. This matters here because a good deal of what the earlier version of this note described as a demand for negative liberty, including the demand for accountable government and for a judiciary that treats citizens as equals, is exactly what Berlin classifies under recognition rather than under freedom. The one element the earlier account got right is the inviolable minimum. Berlin does insist that there is a frontier of personal freedom which no authority may cross, and he grounds it in the claim that certain rules are so basic to what we take a human being to be that infringing them is a form of barbarism. But this is a normative claim about how much liberty ought to be protected. It does not follow from the definition of negative liberty, and it says nothing about the difference between a power exercised and a power held in reserve. The republican alternative, set out as a test Philip Pettit's Republicanism (1997) and Quentin Skinner's Liberty before Liberalism (1998) recovered an older account, drawn from Roman law and from the English commonwealthmen of the seventeenth century, on which the opposite of freedom is not interference but slavery. On this neo-Roman view a person is unfree when subject to another's capacity to interfere at that other's discretion — domination — whether or not the capacity is ever used. The slave of an indulgent master is unfree while unmolested, because the indulgence is the master's to withdraw. Correspondingly, interference that the interfered-with can contest, and that must answer to their avowed interests, does not make them unfree: a tax imposed by a law they may challenge in court and vote to repeal conditions their freedom rather than compromising it. Pettit later formulated the test in ordinary terms in On the People's Terms (2012): one enjoys freedom as non-domination when one can look others in the eye without reason for fear or deference. The weight in that account falls on the word 'arbitrary', and Pettit gives it a definite sense rather than leaving it as a term of abuse. Interference is arbitrary when it is not compelled to track the interests and the expressed views of those it falls upon. The test is procedural and public: is the power exercised under rules the subject can invoke, before a body that must give reasons, subject to challenge and to change? A tax passes; a demand for the same sum by an official who may or may not levy it does not. This is why the republican can say, without paradox, that law can make one freer, whereas on Berlin's accounting the very same statute is a net subtraction from liberty that may nonetheless be worth its cost. The two concepts therefore cross-classify rather than compete along one dimension, and setting them out as a