Of the many insights in Jason Brennan and David Schmidtz’s very interesting essay is the idea that negative and positive liberty designates a collection of ideas rather than a dichotomy. Similarly, they point out, correctly in my view, that questions about the proper degree and kind of liberty enjoyed by citizens cannot be determined by conceptual analysis, that (in terms they don’t use but might welcome) liberty is an essentially contested concept and so cannot be used to settle political disputes, since such disputes turn on conflicting views of those very concepts.
The authors’ main point, however, is that the question of the conceptual distinction between so-called negative and positive conceptions of liberty should be shelved in favor of the more empirical question of whether good effects can be expected when government attempts to promote either (or both). They want to question the assumption that liberty, in any of its central senses, should be promoted by government at all, either directly or indirectly. Philosophers and political theorists, they argue, have been waylaid by the discussion inaugurated (in its modern form) by Isaiah Berlin that public valorization of liberty in some of its senses is dangerous, and that we should therefore stick to promoting alternative (negative) conceptions. That project, the authors think, is to replace the difficult task of examining the real effects of social policies — whether aimed at promoting positive or negative freedom (or some hybrid) — with the idle musings of armchair philosophy. They propose to engage more directly in this empirical work of measuring the actual effects of liberty-related government policies rather than haggling about its true meaning.
This is an interesting project, and I applaud the call for interdisciplinary fieldwork on actual policies rather than simple philosophical reflection. However, in order to formulate this research project coherently, we will not be able to escape the armchair, I’m afraid. We will need, for example, a working specification of the concepts of liberty at issue (a sample taxonomy of which the authors provide). More importantly, however, we will need a conception of “government” and of social activities/relations independent of government (so conceived) so that we can consider the effect of the former on the latter. But, as I will argue, herein lies a fundamental difficulty. For in order to consider the question of whether “government” policies aimed at the promotion of liberty actually have positive effects we must be able to specify what “liberty” means and when such policies have these aims. Even more fundamentally, such a project assumes implicitly that the desirability of such policies are left undetermined until we find this out. But what if these government policies count as justified, as meeting an independent standard of right (if there is one)? Then whatever effect they have on (whatever we mean by) liberty will not count against them. Rather, we will merely conclude that the actions, opportunities, or capacities that fall under the rubric of “liberty” and which these policies curtail are not worth promoting in the first place.
It is as if we are to imagine the workings of one institutionalized entity — the government — and another set of phenomena — individual capacities, activities and social relations — and then ask how the actions of the former affect the latter. But how are we to understand social activities and relations apart from any determination of what is allowed or proscribed in a given social setting? For example, imagine a law is passed by procedurally correct democratic means that prohibits me from taking objects in your possessions which have been properly designated as your “property”; then the fact that I am legally prevented from doing so should not count against that law. At least it should not so count if we accept the legitimacy of that law.
Of course, one could question that legitimacy by saying that liberty is a prima facie good and that any restriction of it must be evaluated according to how it affects that good. But if this is the line of argument pursued, then we really do have to argue about concepts (of liberty), for it will very much be a matter of dispute whether “liberty” in the sense in question should be taken as a good to be protected independent of the otherwise justified actions of (say) democratic majorities.
The most contentious aspect of this issue, I imagine, will be property rights. Will the passage of a new tax policy aimed at raising money for schools count as an increase in liberty or a decrease? Those taxed by the new provision will no longer be able to use that income, but if the policy is justified (somehow) it is not clear that should count as a loss of liberty. Is it any more a loss of liberty than my inability to walk in a line that courses through the place you are now standing (without asking your permission) to get by? And what about the attempt to improve educational policy, presumably attempting to better enable students to develop capacities that will be central to any plausible conception of positive liberty? Will that count as a net increase in liberty overall? a trade-off of one kind against another?
These questions are not simply indications of work left to be done. Rather these are examples of the indeterminacy of the research program envisioned here, as I understand it.
So the two questions I wish to raise about the approach taken here are these: how can a determination be made whether a government policy succeeds in increasing liberty without a prior and independent evaluation of the justification of that policy? Second, in the determination of the extent of liberty enjoyed by citizens and consequent effects on their well being, why and how is the focus to be solely on the actions of the “government” rather than, say, on other powerful social actors such as economic firms and corporate agents? Indeed, how will the line be drawn between a “government” policy and the actions of (say) a publicly owned corporation whose legal status is determined by legal statutes?
Brennan and Schmidtz say at one point: “Identifying a role for government—or any other institution—as a protector or promoter of liberty requires a real argument.” But in the rest of their discussion, reference to “any other institution” drops out in favor of a focus on “government”. One wonders if institutions like corporations will also get attention in asking whether business decisions and corporate strategies have an effect on positive or negative liberty. Clearly many such strategies (and the government policies that given them authority) have serious effects on the abilities of people to live self-directed lives free from unwanted interference. For such decisions may make medical, educational, housing, or other badly needed resources too expensive for many people to afford, thus restricting their ability to develop their talents and lead a life that they value, or if they attempt to take such resources they will be prevented, thus limiting a certain species of their negative liberty. How will such phenomena be understood, as the actions of private individuals (or individual-like entities) or the work of complex legal and social arrangements backed by the force of law (and presumably, in some jurisdictions at least, subject to revision and review by democratic means)?
For example, when the Chinese government puts pressure on Google to censor its content and the company considers shutting down its Chinese operation, who should we say is responsible for robbing Chinese citizens of access to the site? That question is complicated of course, but even if one places the blame on the doorstep of the government of China, the fact that Google is the only major search engine that can deliver what is needed by the Chinese users is also clearly relevant to the appraisal of the extent of their liberty. The lack of freedom to gain crucial information is the result of complex public policy decisions that extend back beyond the current controversy, back at least to events that allowed Google to gain such an extensive market share. Even if one thinks that the superiority of Google’s innovative search technology explains its market dominance, the fact that its own business decisions (whether pressured or not) can result in the limitation of the freedom of Chinese dissidents means that the lack of freedom that results cannot simply be laid on the doorstep of “government”.
Now one could say that because a corporation acts within its rights there is no loss of freedom on the part of those whose options are narrowed as a result of those actions. But this is to rely on a conception of liberty that assumes the justification of the property rights scheme that rendered those decisions legally legitimate, and critiques of unrestrained markets question that very assumption. So defining liberty in this way would beg the question at issue.
Of course, the particular project outlined here is not the question of whether government policies actually increase or decrease liberty, per se, but rather whether government attempts to increase liberty, directly or indirectly, actually succeed in making people better off (along some other dimension). But which policies are we to examine, ones which have as their stated legislative aim the increase in “liberty”? This, however, will not be a reliable guide since the stated aims of any bit of legislation will often be hard to determine. Are we then left with the question of whether such policies have the effect of increasing or decreasing liberty of some sort? If that is the plan, then, we return back to the difficulty I have been raising, namely how to define “liberty” apart from the question of whether such policies are independently justified.
However we answer these questions, Brennan and Schmidtz might reply that their proposal here is to look at examples of government policies that are defended on the grounds of increasing (positive or negative) liberty and see whether such policies actually improve the lives of citizens, leaving the actions of “private” firms to the side, assuming that if government policies systematically fail to actually improve people’s lives when they aim at promoting liberty, we should leave that task to non-governmental entities that form civil society more generally, as well as to individual initiative and collective effort. But to repeat, it will be difficult if not impossible to draw a line around “government policies” in order to distinguish it from the actions of economic firms and corporate entities that government policies make legally possible (for example by specifying property systems that define the legal status of such entities).
Finally, for many of us, the track record of economic forces and the workings of competitive markets in effectively improving the lives of citizens in an equitable and morally acceptable manner, in a world where over one billion people still live on less than one dollar a day with no foreseeable prospect of meaningful improvement from market innovations, is already an obvious and dismal failure. I applaud the call for all of us to leave our armchairs and evaluate the effects of actual policies, but for those of us who have done so and looked at a woefully under-served global population, we can say “thanks but we’ve seen quite enough.”
 Though they will acknowledge that there are some centers of gravity in this collection, perhaps one hovering toward what Charles Taylor called an “opportunity concept” and the other toward what he labeled an “exercise concept.”
 This is a point made by several writers; for example, cf. Ronald Dworkin’s claim that any contest between equality and liberty is one that liberty must lose (Sovereign Virtue, Cambridge, MA: Harvard University Press, 2000, chap. 3).
 For a similar point about taxation and ownership, see Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice, Oxford: Oxford University Press, 2004. My own version of this claim is defended in The Myth of Property, Oxford: Oxford University Press, 1994.
 It should be noted that I have not read the text of Brennan and Schmitz’s book A Brief History of Liberty, where this investigation is presumably pursued. It may well be that many of these questions are adequately answered there.