Written: Gabriel Crouse
What is freedom?
December 2018 – when parliament has voted to amend the Bill of Rights in another strike at the root of freedom – is a fine time to consider what freedom is with reference to one of the world’s dispassionate experts.
We tend to speak of two freedoms in South Africa, the political and economic. This tracks a fundamental distinction, but the particular words obscure that. When abstracted from party politics the “economy” usually just means a marketplace and marketplace freedom is the freedom to trade whether you have anything to trade or not. In other words economic freedom is nothing more or less than enjoying robust property rights, which sounds like the cornerstone of political freedom. But when we talk about economic freedom we usually mean actually having property, not just the right to it.
Philip Pettit is a philosopher at Princeton and Australian National Universities and the rare living (non-identity) political theorist around whom cottage industries have grown in the academe. He uses the terms option-freedom and agency-freedom to track the same disjunction more precisely. Option-freedom is what you notice by looking through a person’s eyes at the viable options around without looking so far as the source of what limits those options. Agency-freedom is noticed of a person in the context of other persons, in terms of power-status.
The useful thing about the visual metaphor of freedom from a point-of-view is that it evokes the differentiating role of limitations. Look through a person’s eyes at a room and you can only see the inside with its contents, optional things to use. That’s the view of option-freedom. It takes checking the outside to see the guards patrolling and it takes an even more abstract view to know if the guards are keeping the room’s inhabitant safe, or prisoner.
Can you imagine a poor person who is also a free citizen? Can you imagine a slave with a very rich and indulgent master, a slave who has plenty of material options? If you can imagine both then you know the distinction between agency- and option-freedom. And how could you not? To my eye the simplest “narrative” of South Africa is legible on Pettit’s diagram for the simple reason that we all know these two different views of freedom in our bones: 1994 brought most of us agency-freedom, but so not much so fast in the way of option-freedom.
Our future course can also be plotted on Pettit’s diagram. The 1994 promise broadly was to move from A to B. But revolutionaries, marxists and race nationalists, considered this a false route. According to ideologies of dominance, there is no viable line from A to B. Those who are free can walk in and out the door and roam about, in emptiness and no more. The true route to B is via C, so say the domineering. The state must first dominate, make citizens slaves to a degree, literally enthrall us, in order to gather up the power government needs to give many options to all citizens.
The IRR has tracked over thirty attempts to take us from A to C by infringing property rights, but what new words will be in the Bill of Rights? No one knows. Instead we live on promises of non-interference. Whatever the new Bill of “Rights” says will not interfere with you directly, since only a tiny portion of property holders will be deprived without compensation. And you will not be interfered with indirectly, since food security will not be interfered with and the economy will not be interfered with and generally you should not worry because nothing will really change. The only real change, we are more or less tacitly assured, is that grabbing just a few bits of land will release a great buildup of national frustration – and the feeling of relief after will allow us a great togetherness.
There is a clear reason that the promises of non-interference have resonated so powerfully among the urban elite; it fits into an idea of freedom that has reigned under the label “liberalism” for a couple of centuries, that is, freedom as non-interference. This version of freedom gets spiked on one of two horns by Philip Pettit.
“Either it is a theory of option-freedom, in which case it is not clear why impersonal sources of influence do not count equally with interpersonal obstacles to freedom. Or it is a theory of agency-freedom, in which case it is not clear why interference is so important as such”. If that is a bit abstract go back to the room and let’s try to check if its inhabitant is free by seeing if she gets interfered with. Ah, dammit, she has only one arm due to genetic defect. That interferes with her ability to cook her own food the way she likes, but it is not the right kind of interference to count as a violation of “liberal” norms – so tracking the “liberal” non-interference cannot be the same as tracking it on option-freedom.
On the other hand, she never leaves the room so the guards patrolling outside never interfere with her at all. So we cannot tell if they are protecting or imprisoning her by checking actual interference. To make things worse, there is a visitor who comes in once a week and now we see that visitor stop her from detonating a massive bomb. So we’ve just seen her interfered with in a way that is not arbitrary, nor contingent on her status as a free citizen or not, just as we can all be interfered with by the law without thereby having our agency denied. So checking by actual interference we are not really checking her agency-freedom either.
Given how unhelpful interference-tracking is, Pettit found it necessary to develop a theory about why it became popular to think of freedom as freedom from interference (or as we would now say “disruption”). Pettit’s theory is embodied by the man who, born in 1748, ordered his own corpse to be cut open and preserved in oils for public display in London. Jeremy Bentham was a great thinker, has some claim to being the first modern social justice warrior, and was the inventor of utilitarianism. Despite what follows, it should be noted that Pettit holds Bentham in the highest esteem.
In Bentham’s attempts, with allies, to argue for better treatment of women and other marginalized groups, he balked at granting freedom from domination, the freedom of freemen. Some women were much richer than free men in 1700s Europe, but they were still women. And for a woman other than the queen to be free from domination was, it seemed, too much for a mere woman to handle. So the “liberals” like Bentham and William Paley invented a new concept that departed from the classic ideas: freedom from interference. For women and other second class people freedom from interference would have to do while true agency-freedom as freedom from domination remained exclusive to some men.
The effective slogan of Benthamite social justice was not no masters, but better masters; not sane adults should be equal before the law, but men should be equal and treat their wives as if they are equal most of the time; not stop domination, but stop interfering.
If you think this is a distinction without a difference think again. In many codes, then as now, a woman has no right to rebuff her husband’s sexual advances. In such a society a husband need not actually rape his wife to be in a domineering marriage. Discomforting as it is, consider the man who insists on his right to copulate with his wife against her will, the man who insists on this right in public. How would this affect the wife, and how would that effect be ramified if the crowd said yes, you have the right but is it wise to exercise it?
In answer, the man promises that he would not actually go ahead and rape his wife, at least not very often. He says that his wife will have to cook the meals and he doesn’t want the family to go hungry, so he will never rape her while she is busy cooking or taking care of the children for that might ruin dinner. He says that his business depends on neighbours liking him so he will only rape his wife when she is too tired to scream very loudly or when the neighbours are otherwise distracted. But most of all, he says, no one should worry because he wants the house to run smoothly and that means keeping his rapacious ways to a bare minimum. He might not even do it at all, but he needs the world to know that it is his right to treat her body as his own property.
If this seems a little extreme, consider this defence offered in a South African appeal court long ago, the case of S vs. H. A man was convicted of assaulting his estranged wife and filed an appeal. The judge summarized the appeal thusly: “A husband cannot be convicted of raping his wife. That is said to be the law of the land. And if this is so…he can likewise not be guilty of an assault on his wife if he uses physical force in order to have sexual intercourse with her against her will. Such force is part of rape or attempted rape. What is condoned for the purposes of rape cannot be condemned for the lesser offence of assault.”
Is it more shocking that such an appeal was ever made or that it was made as recently as 1985? The argument takes for granted that rape within a marriage is legal (as did the appeals judge and the earlier ruling) and tried to claim that physical assault in order to achieve rape should therefore be legal too. If he had simply beaten his wife then the guilty ruling should stick, but the appeal was made on the basis that physical force was used for a legal pursuit, namely marital rape. This is the seldom-heard-of “rape defense”.
The back-and-forth court argument then turned on the amount of force that would be “reasonable” for a husband intent on raping his wife. In a landmark decision, the court ruled that no amount of physical force is “reasonable” to rape your wife, and enthusiasm for marital reform ensued. Rape is now illegal within marriage.
The distressing thing is that until that reform all marriages were therefore institutions of male domination in the eyes of the law. There were, however, other social codes that censured rape and abuse within marriage, mitigating this domination. Neighbours and families and marital parties had to be the law where the law was an ass and as far as I can tell men who publicly insisted on the right to rape their wives were de facto criminalized in civil society although shockingly permitted de jure.
The crucial difference brought out by this recent history is between the man who insists on his right to rape but promises to do so rarely if ever to keep things running smooth and the man who insists on no such right in the first place. If all you care about is actual or promised levels of interference that is a world of difference you are going to overlook.
If you think marital freedom in monetary terms is much older than sexual freedom consider that it was only the previous year, 1984, in which the “rule in terms of which a husband obtains the marital power over the person and property of his wife” was repealed in SA to quote the Matrimonial Property Act no. 88. To continue quoting, “the effect of the abolition of the marital power is to do away with the restrictions which the marital power places on the capacity of a wife to contract and to litigate.”
Pettit’s favourite story about domination comes a century earlier, from Henrik Ibsen’s 1879 play A Doll’s House (which appears on some SA national school syllabi). Ibsen adapted a true-story consequence of the Benthamite “liberalism” that called for husbands to be better masters of their wives rather than equal agents in partnership. In the theatrical version, heroine Nora has a charming husband who indulges her every whim and lavishes her with an option-rich life. But he’s the master. so when it comes to the serious stuff, she remains, well, just a pretty face to his eyes. He never actually interferes, she anticipates his judgements and adapts her own behaviour to keep master happy. Through a series of traumas catalyzed by her inability to obtain credit (because property rights are for masters not their thralls by the law of the land) she realizes that her pretty house is really a kind of prison and she a kind of doll-slave in it.
As it progresses, the corrosion of the Bill of Rights will be attended by more promises of non-interference and conditions. We will take only what lies still or only from those who embarrass the nation.
The freedom you get when master promises to leave you alone as long as you are otherwise occupied, whether it is your body or your property, or when you are in master’s good graces is play-play freedom. We know this in our bones, too – play-play liberals have enthralled this country since its Union. Most obvious were those who opposed the Nationalist Party by saying that white mastery is fine, but whites should try hard to be nicer masters, a line the Nats were happy to debate along. Champions of play-play freedom still say that some poor black rural people should not have title deeds, but better masters instead, often nominating themselves.
And though it will look just the same on the day the Bill of Rights cracks, you will have entered into the doll’s house, too.
* Gabriel Crouse is an Associate at the Institute of Race Relations (IRR), a liberal think tank that promotes political and economic freedom. If you agree with what you have just read then click here or SMS your name to 32823. (Smses cost R1. Ts and Cs apply)