The Individual vs. the State Conference
21st annual The Individual vs The State Conference
Liberty in the Protective State
Theories and Practices of State Obligations to Secure Civil and Political Rights
October 25 – 26, 2013
Central European University, Budapest
For a reader who was trained to look at fundamental (human) rights as claims against the state, today’s landscape of human rights victories must look odd. While liberty used to mean an exercise of personal autonomy without state interference, today in order to be effective the conditions of the exercise of a right are also to be respected, and seem to necessitate a minimum of positive regulation. The contemporary welfare state is regulatory, in the regulatory state practically everything is regulated: regulation is the default, and only what is regulated is considered safe and acceptable. Suddenly, in the absence of positive regulation, what used to be a matter of uncontested private choice becomes unusual and uncertain. In a very densely regulated world some disadvantages emerge for freedoms without regulatory endorsement. A liberty may necessitate a positive regulatory environment which will produce the legal certainty providing the right to choose with effectiveness.
The German Constitutional Court is well known for its jurisprudence on outlining the duty of the state to protect basic rights (Schutzpflicht). In the jurisprudence of the European Court of Human Rights (ECtHR) the duty of the state authorities to investigate death or maltreatment which occurred in state custody follows from the provisions of Convention on the right to life (Article 2) and the prohibition of torture (Article 3), as does under the free speech clause (Article 10) the duty of the state “to put in place an appropriate legislative and administrative framework to guarantee effective pluralism” in the audiovisual media sector. Positive obligations grant the state wide discretion in managing specific risks. In return, the state’s mandate under a positive obligation might be misused to disregard the historically fundamental obligation of the State not to interfere into a liberty (i.e. a negative obligation). A reference to a positive obligation may, therefore, endanger that fundamental understanding of human rights and liberties.
The ECtHR is certainly not alone with regularly prescribing governmental obligations in the name of defending /enabling fundamental rights. Courts in the UK are also known to follow suit with imaginative remedies prescribed under the Human Rights Act. Other countries embark on similar ventures either because of their specific understanding of the welfare state’s caring function, or simply under the influence of ECtHR jurisprudence
Outside Europe a parallel concept of ‘due diligence’ has emerged slowly in the Inter-American system. Recently the Inter-American Commission on Human Rights found that the US “failed to act with due diligence to protect Jessica Lenahan and her daughters from domestic violence, which violated the State’s obligation not to discriminate and to provide for equal protection before the law under Article II of the American Declaration.” This decision is in direct contravention of the long-held stance of the US Supreme Court which is hostile to the idea of a constitutional duty to protect individuals from private acts of violence (see most famously DeShaney v. Winnebago County (1989).
Certainly, a comparable concept already exists in public international law. The ‘due diligence’ standard emerged in the Inter-American system and was also endorsed by the CEDAW Committee in the domestic violence context. The special rapporteur on violence against women, Yakin Ertürk claims that ‘due diligence’ is a rule of customary international law. Whether approached from the perspective of human rights or public international law, the horizontal effect problem raised by the language of positive state obligations is apparent. Even in a most modest setting one finds that the responsibility of the state is raised not only due to the behavior of its own employees, but on account of the acts of non-state actors. The ensuing norms are slowly transforming private law. Although the emergence of anti-discrimination norms is the most apparent example of the constitutionalization of private law, numerous further examples exist.
While questions may be asked as to whether certain forms of the welfare state are compatible with ideals of liberal constitutional democracy and the protection of negative liberties, this debate appears largely academic amidst the realities of most contemporary regulatory states. What remains unsettled is this: what are the specific criteria or conditions that trigger a duty of the State to act for the sake of rights protection and how “far” the regulator may go in the protective exercise? Some of the prescriptions require the state to maintain institutional safeguards, or functioning and efficient procedures for enforcing rights, while others are meant to prompt the state to prevent a particular wrong or minimize a certain risk, or even criminalize and punish, including perhaps actions protected otherwise as liberties.
At the entry level the problem of the preventive and protective state, if it is run through the judiciary, presents problems of redistribution, evidence and legitimacy (or the lack thereof). One may also inquire as to the standards courts apply for prescribing state obligations, after all, proportionality review (and its equivalents) are meant to measure permissible limitations of rights, and not the nature and extent of desirable state action in a given case. Furthermore, it is problematic if a protective measure is prescribed on account of a particularly harsh or extreme instance of violation of rights which may be regarded as exception, yet, it is equally questionable if a court intervenes to reinforce majority sentiment or preferences in the face of challenges from those who were left behind. Are victims’ vulnerability or a history of state inaction the proper grounds for imposing positive obligations? How far reaching can these obligations be in the sense of entering into private relations?
Courts are not the only source of hard questions, however. States are increasingly expected to counter not only actual harms, but also expected to prevent dangers, and even (often less carefully specified) future risks. Measures adopted by the responsive state are mostly likely to limit the liberties of some, or more, at least to some extent. When assessing risks and dangers, and imposing limitations on the options available to individuals, state actors take into account a wide range of factors. The extent to which states should be able to stir (or nudge) their citizens towards better options is as much a debate about good public policy or costs, as it is a debate about individual autonomy (or what is left of it). On the face of the matter, pragmatic questions about governmental involvement sound, for instance, like should the state be responsible to inform the public about the adversary effects of certain foods or chemicals on human health, should it prohibit the sale and manufacturing of such foods or drugs, or should it influence the behavior of individuals by other means, to make them stay away from dangerous products? At its heart, however, these are questions about the choices an individual is able to make about the what may be left of the good life. To put the same question from a different perspective: is there a line, and where does it lie, between efficient public administration on the one hand and an individual’s life under state control on the other?
With an interdisciplinary group of lawyers, political scientists, philosophers and sociologists we explored the above questions at an international conference on October 25-26, 2013 at the Central European University, in Budapest.
20th annual The Individual vs The State Conference on The Tragedy of Liberty: From Liberation to Self-Destruction and Irrelevance at Central European University, Budapest, June 8 – 9, 2012
Constitutional legal systems promised a liberty-based political and (at least, arguably) social order. But the liberty of women and men turned into a self-destructive force. It became a tragedy in the sense of opening up too many opportunities, and creating a backlash. Tragedy here means that a consistent application of liberty runs the risk of self-destruction and it also dictates it. In a milder form, tragedy refers to a constant dilemma: are we to legitimize demonstrations which run the risk of disorder, and which are by definition a matter of disorder? Dissent is not only innovation and self-realization: it is also nuisance and trouble. Freedom of religion and from religion is also insult and blasphemy. Conversely, as part, or result, of the tragedy of freedom, liberty was restrained and the constitutional order was undermined or reshaped in the name of alternative concepts of liberty, aiming at the realization of “genuine” liberty, and often resulting in increased State intervention. Rights cases in courts are not only about warding the state off anymore, but about demanding positive government action to promote rights, or –rather- allegedly righteous causes. Again, the interventionist welfare state had to admit that more and more spheres of life attempt to run away from its control in the name of newfound liberties, unknown in constitutional law textbooks. At the same time, in a caring welfare state lack of regulation does not result in more room for individual action, but it often amounts to a de facto prohibition: what is not permitted is not possible any more.
Notwithstanding usual doomsday scenarios and prophecies about sledging towards another road to slavery (a road that was too often undertaken to make fun of contemporary Cassandras) we do not have a clear knowledge about the contemporary state of liberty in constitutional states. Perhaps we are still moving towards maximizing liberty in state and society. After all, gay and lesbian rights were gradually extended in the Western world, privacy has been discovered, minorities enjoy more and more rights, punishment is less harsh in many countries. In less than a decade Europe recently accepted that a lawyer shall be made available from the very beginning of the criminal process, and that trial by jury may violate human rights for lack of properly reasoned conviction. Torture is broadly construed and universally condemned (though, like in many instances above, not necessarily in response to liberty arguments.) At the same time privacy and freedom of expression are under stress, prisons are overcrowded, pre-trial detention is abused etc. The threat of anti-terror measures looms large. Passion for liberty (if there ever was one, except in the formative days of political liberation and democratic constitution-making) seems to vanish in public opinion; liberty is made suspect for its alleged egotism and lack of responsibilities. Moreover, echoing Marx, the emerging relativism treats liberty as one of the many ideologies which claim to be neutral only to disguise imperialistic bias. It seems that in the name of respect of identity choices other people have the right to have freedom as they like it, as long as they do not intend to interfere into what we believe to be freedom in our way. The fear of imposed liberation results in fear of all forms of liberation.
At the level of reflection (viz. political science and constitutional theory, human rights claims etc.) liberty seems to be neglected, even forgotten. While Isaiah Berlin’s concerns served as the frame of reference in the days of constant totalitarian pressure, the appeal of Dworkin’s concern for equal respect without liberty playing a distinct role (although, of course, still being somehow produced) is quite telling about the interest in liberty. In an interconnected legal world of respect, equality and dignity (the prevailing language of contemporary concerns) there is little space left for liberty. The diminishing interest in liberty (in the public action and expectations, in legal practice, and in theory) is facilitated by the disappearance of totalitarian systems. Concerns about equality and social needs serve to express socialist interests which were compromised by totalitarian political aspirations and non-sustainability in the 20th century.
In the new regulatory environment freedom efficiency, welfare and security matter and liberty does not come up as a relevant consideration. After all European liberalism is passé and libertarians are presented as narrow-minded, doctrinaire reactionaries. At best it is assumed that freedom remains unaffected. Freedom is undergoing a narcissistic restoration in the public mind; in public practices it is reconstructed and, at least from a traditional perspective, it is diminished. Liberty is often restricted for the sake of other liberties which were not high on the liberty list, or for purposes which serve what philosophers (beginning with St Thomas Aquinas) call “real” liberty. Such “real” liberty is often determined by majorities and traditions, without reference to personal autonomy. At the same time, practices which were traditionally understood to amount to restrictions of liberty (such as policing or prisons) are increasingly handed over to private service providers in the name of expertise and costs-efficiency, those exempting commercially provided services from traditional judicial control (consider the abuses by private military contractors in Abu Ghraib.)
Are we at a point where the concept of liberty that underlies constitutional democracy has lost its relevance and meaning? Is this because of the inherently self-destructive nature of liberty, or its alleged egotism and heartlessness? Is it because liberty became psychologically unsustainable in a complex world where other considerations offer a better strategy of social organization and success? Is liberty losing its appeal because the necessary social and mental conditions which were identified by J.S. Mill, are absent or disappeared? Was/is Fromm right? Is liberty a secondary consideration in law, where freedom emerges accidentally, from respect for equality (redistribution), tolerance and dignity? Or, is it simply a new hierarchy of liberties that we observe at work here? Is a new understanding of liberty capable to call our attention to new forms of authoritarianism (as the concept of negative liberty and its institutions was able to do)? Are we intellectually ready to face managed democracy, anti-immigration, unbound religious or ethnic identity politics, or an anti-politics of global responsibilities without the priority of liberty?
19th Annual Conference on 'The Individual vs. the State' at Central European University, June 10-11, 2011
An Enforceable Right to Health?
The right to health has been at the center of considerable academic and professional debate for long. While the International Covenant for Civil and Political Rights seems to have obtained universal acceptance and acclaim, the International Covenant on Economic, Social and Cultural Rights has been seen much less evident not only for political, but also for practical reasons. Whether the ‘right to the highest attainable standard of health’ (Article 12(1) of the ICESCR) has a minimum core, whether it guarantees access to the enjoyment of certain facilities, procedures or medication, and the extent to which progressive realization and resource availability as mentioned in Article 2(1) of the ICESCR should shape the scope of the right and of state obligations are key points of legitimate disagreement.
18th Annual Conference on 'The Individual vs. the State' at Central European University, June 4-5, 2010
Religion in the Public Square
The Legal Studies Department of Central European University, Budapest in partnership Open Society Institute, Budapest intends to discuss the constitutional problems of religion and its organized forms in public life not as a strictly legal issue, but combining constitutional and human rights aspects with historical, political, psychological and sociological dimensions. Opening remarks by President and Rector John Shattuck. Confirmed speakers include Shlomo Avineri, Matthias Mahlmann, Bassam Tibi, Michael McConnell, Judge Lech Garlicki, Ayelet Shachar, Cole Durham, Nazila Ghanea, Patrick Weil, Susana Mancini and Karl-Heinz Ladeur, Lorenzo Zucca, Ronan McCrea, Robert Blitt, Peter Petkoff, Javier Martinez-Torron, Balazs Schanda, Guy Haarscher.
17th Annual Conference on 'The Individual vs. the State' at Central European University, June 12-13, 2009
Arguments that Work
16th Annual Conference on 'The Individual vs. the State' at Central European University, June 7-8, 2008
Constitutional Axiology, or Is There Anything Behind / Above the Constitution?
15th Annual Conference on 'The Individual vs. the State' at Central European University, June 1-2, 2007
Free to Protest: Constituent Power and Street Demonstrations
14th Annual Conference on 'The Individual vs. the State' at Central European University, May 12-13, 2006
Free Speech and Religion: The Eternal Conflict in the Age of Selective Modernization