Paul Kirchhof, Professor for Public Law and Tax Law, addressed the topic of freedom in the C! Edition Dealing with Downturns: Strategies in Uncertain Times. His thoughts remain relevant today. Read the essay here:
Freedom: How to Deal with Uncertainty
Freedom means that the individual decides their own affairs himself, personally taking on both the opportunities that come their way and also taking the risks of making the wrong decisions. The uncertainty of the future is made tolerable when the individual takes responsibility for shaping their own life. Of all the decisions concerning freedom, those based on one’s own sense of responsibility promise the maximum amount of reliability in terms of the individual, as well as peace in the broadest sense, cultural development, and economic prosperity.
"If you want to create peace among human beings you make laws. Anyone who wants to ensure that laws are binding in perpetuity emphasizes freedom."
Uncertainty as a condition of freedom
The idea of “freedom” advances our understanding of the law. The law demarcates the individual’s spheres of activity and their freedoms, and it regulates a human community in which everyone has rights, powers to act, and responsibilities. Animals that live according to their instincts do not need laws, but if you want to create peace among human beings you make laws. Anyone who wants to ensure that laws are binding in perpetuity emphasizes freedom.
Today, however, some scientists, and neurobiologists in particular, claim that the individual has no free will, and is subject to causal laws of nature that determine the individual’s every decision. They say that unconscious forces in the brain control the individual’s consciousness, their will, and their actions. According to this theory the individual is not rationally and responsibly in control of himself, but rather—like a skier on a ski lift—they are operated by mechanical forces and led inevitably toward an end point.
If this theory were correct, there would be no freedom, but also no uncertainty. All events would be determined by causal laws of nature, human instincts, or divine predestination. An individual’s efforts to improve their life chances through education, performance, and responsibility would be pointless. Responsibilities—blame and liability—would not exist. The difference between good and evil would have to be replaced by the causal categories of cause and effect that come into play without the will and responsibility of the individual. Individuals no longer know anything about care, consideration, love, nor about the common good and public responsibility, nor about the peace created by law, nor about justice—neither the scales nor the sword of justice. Driven by causality each individual seeks the pleasure of the moment, the delusion perhaps that they can somehow gain advantage for himself through their own action.
Our experience argues in favor of freedom. We experience freedom when we decide if we are going to have a glass of wine or a beer this evening, when we carefully consider which book we are going to read tomorrow, and when the day after we make arrangements with our friends to spend the weekend in the mountains or at the lake. We like being determined by desire, curiosity, and the need for relaxation. However, we reserve the right to decide where and with whom we choose the lifestyles that result from this.
The natural sciences alone cannot explain the human individual. Of course their activities are dependent on environmental conditions, on established customs, and on social, legal, and financial conditions. But their intellectual debate covers the choice between duty and inclination, the search for what is subjectively considered more respectable, weighing up alternatives, sifting through and organizing options for action, striving for the new, the contrary, the adventurous, and the unconventional. Art and science, love and enthusiasm, disappointment and sadness, courage and anxiety cannot be explained causally through the natural sciences. Anyone who has looked their own child in the eyes, read a great novel, heard a concert, or made a scientific discovery is immune to any idea of restricting the individual to the causality of the natural sciences alone. And the law requires personal responsibility, blame, liability, atonement, and forgiveness. A society without law would mean a struggle of all against all, the destruction of those in need of protection, and chaos. Thus, even the natural scientist, who believes in the mechanical, naturalistic determinacy of the individual, would have to demand a legal system that protects responsibilities, respects self-determination, and defines blame and liability.
Freedom is the right to be different
Freedom means being allowed to be different from other people. One person spends all day and all night drawing up balance sheets and becomes rich in money; another spends all day and all night writing verses and becomes rich in poems. As people and in their living conditions they are both different, and they will cultivate this difference more as their lives go on. This freedom to be different from others creates a plan out of the general uncertainty of the future, a plan that is desired by the individual and for which they take responsibility. The progress of one’s own life is not tolerated with resignation but shaped according to the personal hopes of the free citizen. The individual knows that their future depends on themselves, that it corresponds to their needs and value choices, and that they can coordinate it again and again to suit new situations and realities. The individual cannot deliberately eliminate their finite nature, their intellectual and physical limitations, nor their being bound in space, time, and culture; but they can use this space to explore their creativity in freedom within the constraints of their circumstances and their times.
"The law cannot eliminate uncertainties from human life, but uses them full of hope in light of freedom."
The intellectual foundations of our culture of freedom have their roots in Christianity, humanism, and the Enlightenment. Christianity teaches that humanity was created in the image of God, thus establishing the most radical law of freedom and equality in legal history. In this life, each person is given value, endowed with freedom, and aware of their responsibility. Legal claims arise from these attributes. They are inherent to each person, handed down, and thus universal. Humanism tries to combine the educational values of ancient civilizations with the Christian view of the world, and develops standards to shape the life of the individual more humanely according to the model of Greco-Roman antiquity, and to help the individual personality to flourish. The Enlightenment made the law of freedom the basis of human society. The freedom that had been established by nature subjectively within each person is transformed by the law into a freedom that is guaranteed by the state, a freedom that seeks universally established standards.
Thus the modern world is characterized by an idea of freedom that does not accept and tolerate an uncertain future but that shapes it through the self-determination of the individual and their sense of responsibility. The law cannot eliminate uncertainties from human life, but uses them full of hope in light of freedom
Civil Liberties
France’s Declaration of the Rights of Man and of the Citizen (1789) recognizes freedom as the right of each individual to be allowed to do anything that does not harm others. Every individual may exercise their natural rights and freedoms without limits with the exception of those that safeguard the enjoyment of these same rights by other members of society. The law must make these limits clear; it may only forbid activities that harm society.
In the first instance freedom means freedom from something … The individual is threatened by their fellow individuals, state authority, and foreign powers, but can expect security through the efforts of all those who concede to each individual their rights. The individual lays claim to a universal law, equality before this law, and security and protection in a community based on freedom.
However, if the individual lacks the material conditions needed for self-determination, they demand the freedom to do or have something. The individual demands property, a job, social security to cover crisis situations, education and training, and above all state provision to protect their life and health. The question of the extent to which the state can create and guarantee the conditions of freedom lies at the heart of the debate about what is the correct economic system.
Ultimately, after securing the freedom of the individual and other associated freedoms, political freedoms become the focus of the community. The individual who wants freedom realizes their freedom in something. In the context of society the individual claims freedom of speech, of assembly, of association, of the press and radio, and in a democracy they demand participation in elections and ballots. In these different aspects of the idea and concerns of freedom we can see the fundamental choices concerning the extent to which the uncertainties and risks inherent to life can be planned and managed freely by the individual; and to what extent the individual can expect the state to provide both minimum and maximum degrees of security.
Uncertainties – Civil Liberties
Freedom liberates the individual, allowing them the self-determined development of their talents, their aspirations, and their concept of community. The more civil liberties are successful in this notion of creating the individual, the more new questions are asked about the principle of freedom, and the idea of freedom becomes uncertain once again.
Freedom in science and technology has led to an industrial upheaval that removes essential production processes from human control and transfers them to the machine—the computer and the robot. Today cars, computers, and pharmaceuticals are manufactured by machines. Humanity invents and uses the machine; they supervise it and enjoy its products. The human is liberated from heavy physical labor. But humanity is also faced with the question of who owns the results of mechanical production. Traditionally a person owned what they produced with their own hands, what they added to nature through their work (Locke). Today it is the machine that produces, creating new goods and values that cannot be found in nature. If we expect the profit produced by the machine to belong to the investor who finances the machine, and who has thus made mechanical production possible, then the reason why this kind of property came about is only called into question at the moment when all the machines’ basic productions processes have been completed, and in so doing a huge redistribution of income from manpower to financial power has been effected.
The excess in financial resources lies behind today’s developments on the financial market. Here more money is available than is needed for the production of goods and services. And so the market begins exchanging money for money, hoping for changes in value, and betting on the rise and fall of companies and countries. This financial market becomes ever more anonymous, and scarcely takes responsibility any more for the capital investment from which it realizes its returns. It threatens the idea of property that has been gained responsibly and is only therefore justifiable.
Freedom in the world of science creates dramatic possibilities in communication, media, the digital world, and in medicine. Today, if medicine can produce whole genome sequencing quickly and at a reasonable cost, so that one individual can know more about the identity of another individual than the individual does themselves, and the one individual is also prepared to change this identity for medical reasons—perhaps also for reasons of regulation and education—then a basic legal concept is questioned: the inviolability of a person’s value in terms of their individuality and personality.
"Freedom is the principle of the individual who hopes."
Freedom strives for limitlessness and has in many ways—in science, media, on the global economic market, in sport, and in travel—overcome the boundaries of states and continents. There are encounters between countries, legal systems clash, states and the free citizen must come to terms with foreign laws. But this issue does not lie in the problematic lack of a global state, but in the necessity of the separation of powers between many states. State power can only do justice to the citizen if the state thinks and acts like a citizen, if it does not try to force the multiplicity of cultures into an almost uniform world culture, if the condition of democracy—a population that knows its own identity—remains a reality. The importance of the plurality of the almost 200 states on this earth becomes particularly relevant to the individual who wants to escape the power of the regime that is currently determining their life. The individual can emigrate, immigrate, and seek asylum. If there were only one world state that, according to statistical probability, would probably look more like a dictatorship than a democracy, then such a state could seek out this individual in any corner of the world. They would inevitably be delivered up to this regime.
Freedom overcomes uncertainty and contains uncertainty within itself. But freedom creates hope out of the unknown, the invisible, and the uncertain. This hope refers to the individual human being, their right to self-determination, their joy in creativity, and their sense of responsibility. Freedom is the principle of the individual who hopes.
Paul Kirchhof in: Dealing with Downturns: Strategies in Uncertain Times. Convoco Edition 2013.