Measuring Freedom

Abstract: This article focuses on two groups that are sometimes regarded as advocating freedom in Australia: the so-called civil libertarians who promote personal freedom and the so-called economic rationalists who promote freedom through economic reform resulting in more competition. Civil rights and democracy have been discussed before, perhaps most notably in the October 1992 issue of Optionality, that featured in the articles 'Freedom of Communication' and 'Optionality versus Democracy', as well as the text of DonParagon's song 'Liberty'. Economic reform such as deregulation and privatisation have also been widely discussed in earlier issues. What perhaps needs some further thought is the question how much optionality is already here among us. This discussion largely reflects the difference between optionality and freedom. Optionality rejection of the law implies that, as long as the law rules, optionality cannot be fully enjoyed. Freedom, on the other hand, is not as rigorous in rejecting the law, in fact, freedom often demands a legal framework to protect various freedoms. This difference between optionality and freedom is worked out in this article, highlighting some of the difficulties in measuring freedom to conclude that it makes more sense to focus on optionality.

A. More Personal Freedom

Many rights and freedoms have been formulated, such as freedom of the press, the freedom to move and live where you want, the freedom to work and trade, to choose a partner and have children, etc.

But isn't it fundamental to all such rights and freedoms that one is able to first of all make up one's mind without being dictated what to think?

Compulsory education that indoctrinates children with the 'virtues' of discipline, 'universal rules' of nature, 'competitive' team-sports, nationalism and the law, is just one example of such dictatorship.

In Australia, the law has always treated freedom of speech as a joke, but many believed things were improving when the High Court in 1992 found some rights to express political opinions implied in the Constitution (see Appendix). In 1994 the High Court extended that right to express political opinions by rejecting litigation for defamation by a politician with opposing views. Such litigation can be costly. That same year a court verdict awarded $ 1.3 million to a solicitor who sued over two articles that implied, among other things, that he had committed professional misconduct.

In 1995, the High Court's Teoh-statement promised legal recognition of civil rights that were internationally agreed upon, but not (yet) implemented in law.

Many Parliamentarians do not like such an 'adventurous' High Court; many see recent appointments to the High Court as a reversal of this move towards civil liberties. Late last year, a woman wrote a letter to Queensland's Premier to complain about the behavior of a public servant; she thought her letter would be treated confidentially; but the Premier sent the letter to the respective department, where it ended up with the public servant, who. . . sued the woman for defamation. Also late last year, the Government proposed to formalize its censorship over the media by, among other things, introducing fines of up to $ 1 million against publishers of reports deemed to threaten national security and fines of up to $60,000 for journalists who disclose 'sensitive' matters.

Some say the human inclination of judges and jurors are adequate safeguards against dictatorship. But judges frequently use the threat of 'contempt of court' to silence people or to force them to reveal confidential information in court; people regularly go to jail for this. In December 1995, a rape crisis counsellor was jailed for refusing to obey a defence subpoena demanding to see the notes she had made during her discussions with the victim of the alleged rape. Can freedom be guarded by judges who time and again prove to have little respect for privacy and other basic rights? Isn't the legal system per definition dictatorial?

So, what is freedom and how much personal freedom do we have? Courts draw lines, as if it can be determined that freedom goes that far and not an inch further. But in the legal system, freedom remains a vague concept, even when written in black and white. Court decisions may take a long time and cost a lot of money, while appeals, new laws and technical innovation may change the entire situation. One cannot expect the law to define what freedom is, because conceptually freedom is quite alien to the law, real freedom must be looked for outside the law.

B. And Economic Freedom

So, while some developments may be regarded as improvements over the existing situation, the law is inherently limited in providing freedom and any political reform is in the end a dead-end road.

As an example, many welcome the recent deregulation of U.S. laws that previously enshrined monopoly situations in telecommunications, broadcasting and cable-TV. Ironically, such deregulation always seems to come with a raft of new regulations, such as obligations to indiscriminately give access and interconnect, licences for use of frequencies, numbers and rights of way; some therefore rather talk about re-regulation than de-regulation. Most controversial is that the total package comes with a bill to curtail freedom of speech on the Internet. The situation in Australia and in many other countries is expected to develop along similar lines. This paradox of relaxing one set of regulations, while formulating others, is typical of deregulation.

As mentioned before, the law is limited in establishing freedom, as the law in the end always calls for dictatorial enforcement of its dictates. What the law may aim to enforce is competition. Many advocate such a development and call this economic freedom. But it is important to note that there are differences between competition and optionality.

Competition is largely manufactured by law, without much input from consumers. Competition is what takes place between suppliers, it does not focus on the end-users. Consumers may benefit from competition, but they are not in control.

Instead, it is the law that creates what it deems to be a competitive situation. Without continued legal enforcement, competition would collapse; competition is something that is constructed by law; if regulations are relaxed, such competitors collude and form cartels; eventually such competitors fight each other until a single winner emerges; after all, their primary focus is competition, not customer satisfaction; potential competitors with a different inclination are taken out of the market not because they are inferior suppliers, but because they face the wrath of the law. This economic freedom is a selection process that favors organizations that structure themselves in ways to exploit loopholes in the law, e.g. in tax, and that aim and have learned to work on the edges of the law.

C. Let's have Optionality

The Government itself is a huge monopoly that determines the way people and organizations act to a large extent. What kind of freedom and competition can be created by using monopoly force of the legal system, police, the military, etc? By contrast, optionality rejects such legal constructions. Once it is there, optionality will continue because it is appreciated, not because it is enforced.

As DonParagon says in his song Liberty, freedom as a concept is rather negative, as it derives its meaning from describing what is not desirable. This makes freedom hard to measure; instead it makes more sense to focus on optionality. Similarly, competition is a concept that goes hand in hand with legal enforcement; instead, optionality as a target makes more sense. If optionality, as DonParagon puts it, is primarily a belief or an ideology, how can such a belief or ideology be expressed or, even more fundamentally, be professed in a society that dictates how people should think. In the end, those measures of freedom inevitably get stuck in a dead-end road, because they focus on civil rights, trade and similar concepts that are all part of cultures that are disappearing fast. Instead of trying to measure any economic or personal freedom, it is better to focus on optionality!

Appendix: Freedom of Communication?

In 1992, Australia's High Court over-ruled legislation enacted by the Government to restrict political advertising in electronic media before elections. And it overruled legislation that made it an offence to criticize the Industrial Relations Commission, a government authority deciding work disputes.

But it still is illegal to reject Australia's democracy, in which candidates are numbered consecutively on the ballot paper, to get a winner with 'majority' support. Voting is compulsory and it is even illegal to suggest people vote informally (e.g. by leaving the ballot paper blank) or mark their ballot paper contrary to official instructions.

Earlier this month, Albert Langer was imprisoned until April 30 for distributing Vote for Neither fliers. Aware of a 1987 court injunction against a Don't Vote campaign, Albert suggested voters to mark some candidates equally last, arguing that the Electoral Act accepts and counts such a way of voting as a formal vote. Albert said the Act did not specifically prohibit him advocating a way of voting that reflects the political freedom to choose one candidate without giving a mandate to a candidate one opposed.

But the High Court decided the prohibition under the Act was valid and a Supreme Court ruled that Albert had breached the law and, defiantly, Albert was jailed for contempt of court.

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