在電視新聞和報章評論中﹐我們常常聽見政治人物和團體說權利與自由這兩個字。在一般人的字典裏﹐權利就是權利﹐自由就是自由﹐他們並不為意在不同的語境下﹐權利和自由有著兩種裁然不同的定義。在我們談論權利的時候﹐我們要清楚是在說那一種權利。同樣在我們談論自由的時候﹐我們也要清楚是在說那一種自由。不然大家雖然同說權利和自由二字﹐但這兩個字卻代表完全不同的意思﹐結果雙方雞同鴨講﹐不但溝通不到反而加深誤解。

兩種權利

權利可以分為消極權利和積極權利兩種。消極權利是指人生安全受到保障的權利﹐而積極權利則是指獲取生活必需品的權利。權利不能夠獨立存在﹐權利必然絆隨義務。正確點來說﹐一個人的權利﹐是建立於眾人的義務之上。只有當眾人也履行他們的義務﹐一個人才能夠獲得他的權利。消極權利中的消極﹐﹐便是指義務上的消極。每個人只要安份守己﹐不作出損害他人性命財產的行為﹐所有人的消極權利就受到保障。換一句話說﹐每個人什麼也不用做﹐每個人的消極權利就已經受到保障了。相反積極權行中的積極﹐是指義務上的積極。若有人沒有足夠的生活所需﹐其他人必需要作出物質上的犧牲﹐才能夠保障那個人的積極權利。理論上不論在任何情況下﹐也可以滿足所有人的消極權利﹐現實中能不能實行是另一回事。但在某些特定情況下﹐如發生大飢荒或世紀大災難時﹐理論上根本無法滿足所有人的積極權利。因此消極權利是比積極權利更基本的權利﹐所以也是更加重要的權利。

理論歸理論﹐人類社會不是烏托邦。在現實中﹐消極權利有積極的一面﹐而積極權利也有其消極的一面。若果每個人只盡自己的消極義務﹐那麼每個人的生命財產還不未得到充份的保障﹐因為總會有些不履行消極義務的壞人﹐會作出捐害他人性命財產的事。在這個情況下﹐每個人也同時有積極的義務﹐去保護其他人免受壞人的侵犯。在現代社會中﹐這個責任由政府負責。我們通過檄交稅款﹐讓政府成立警隊法庭監獄﹐去懲罰那些不遵守消極義務的人﹐讓每個人的消極權利也有保障。若一個人在社會上能夠自給自足﹐可是因為有人破壞他的生計(如中國大陸強行徵收農地)﹐讓他不能夠賺取生活所需﹐那麼其他人便要履行積極義務去接濟這個人﹐。在這個情況下﹐只要好好保障他的消極權利﹐其他人不用作出任何物質犧牲﹐便已等同保障他的積極權利。

消極權利是每個人的基本權利﹐差不多是從古至今任何社會能夠正常運作的先決條件﹐基本上沒有什麼可以爭議。可是積極權利卻極具爭議性﹐因為若要維護所有人的積極權利﹐便必定要一些人履行其積極義務作出犧牲。一個人到底要作出多少犧牲﹐才算是盡了積極義務呢。若果這些物質犧性並非自願﹐又有沒有侵犯他們的消極權利呢。若一個人因他控制以外的因素﹐如自然災害或他的消極權利受到侵犯﹐沒法去滿足他的積極權利﹐一般而言其他人也樂於履行他們的積極義務﹐向那些不幸的人暫時供應生活所需。可是若果一個人是因為自身因素﹐如能力不足﹐懶躲或愚昧﹐長期沒有辨法滿足自己的生活所需﹐那其他人有沒有滿足他積極權利的義務呢。又如何介定一個人生活所需不足﹐是因為外在因素還是自食其果呢。這一連串也是討論積極權利時也要考慮的問題。

兩種自由

自由也可以分為消極自由和積極自由兩種定義。消極自由是指免受干預的自由﹐亦是傳統上對自由的定義。在這個定義下不自由是指他人限制我去做能我夠做到的事情。我做不到我能力以外的事情﹐如不能飛或不能凌空跳起十尺﹐並不算是不自由。同樣道理我們也不會說一個盲人沒有閱讀的自由﹐或說一個破子沒然走路的自由。在消極自由的定義下﹐現代用語經濟自由帶有內在矛盾﹐沒有經濟自由說穿了即是貧窮。若果貧窮是純萃因為能力不足﹐沒法賺取足夠的金錢﹐那與盲人或破子的何子一樣﹐窮人並不是沒有經濟自由﹐而是他們根本沒有經濟能力。正確的說法﹐是他人控操社會制度﹐在不公義和不公義情況下窮人沒法謀生﹐他們失去賺錢的自由。消極自由並不等同政府完全不干預﹐否則每個人都可以任意干預其他人﹐完全自由便等於沒有自由。只有通過有限度地限制每個人的自由﹐限制每個人只能對別人作最小的干預﹐才能夠保障每個人最大的自由。在此定義中自由並非至高無上的價值﹐現實中我們有時需要在自由與公義﹐平等﹐效率或繁榮等其他價值中作出取捨。只是我們要分清楚前因後果﹐我們是放棄自由去換取其他的東西﹐而非那些東西增加我們的自由。

積極自由則從另一個介定自由﹐當一個人只有擁有對自己的主權﹐他才擁有自由。若果說當自己的主人﹐只是在不受別人干預的情況作關於自身的決定﹐那積極自由與消極自由並沒有分別。可是若果把自身分成高低兩個層面﹐便可以說當一個人淪為低層欲望的奴隸﹐並不能真正地為自己作出決定當自己的主人。若一個人只是順從肉體﹐文化﹐宗教﹐階級等枷鎖的意願﹐並不是獨立地自主地作出對自己有益處的決定﹐在這個時候便可以為他好作理由﹐去干預他低層欲望作出的決定﹐強迫他擺脫低層欲望的束縛﹐解放他的高層意志讓他擁有真正的自由。

兩個自由的定義有各自的問題。在消極自由的定義中﹐只要人的意願不受到干預﹐便是擁有自由。當一個人想做什麼也能做到﹐他所有欲望也能夠滿足﹐他便擁有絕對的自由。若一個人有不能滿足的欲望﹐他便是沒有自由。要解決不自由的問題有兩個方法﹐一個方法就是盡辨法滿足欲望﹐第二個辨法便是讓欲望消失。當一個人完全沒有欲望﹐什麼也不要求什麼也不想做﹐別人完全不能干預他﹐他也擁有絕對的自由﹐儘管他什麼也沒有做。否定自我或許是靈修或成佛之道﹐但也成為當權者洗腦的工具﹐讓人民否定自己的欲望訴求﹐縱使他們沒有自由﹐只要他們不追求自由﹐他們便不是不自由了。在積極自由的定義中﹐每個人只有依靠高層意志作出決定才是真正自由﹐可是高層意志帶有客觀性和唯一性﹐對每個人必定是放諸四海準﹐每個人也會作出同樣正確選擇。結果不論是高層意志代表什麼﹐基督教口中的真理﹐民族主義者口中的國家認同﹐或是馬克思所只的唯物辯證歷史觀﹐也可以則淪為當權者的藉口﹐美其名解放人民想思﹐實際上干預他們的意願奴役人民。

Reference:
Basic Rights – Henry Shue
Two Concepts of Liberty – Isaiah Berlin

城市規劃是現代社會不可缺少的一環﹐政府制定法例管理公共空間﹐讓大多數市民能夠分享使用公共空間。可是這些規則漠視露宿者使用公共空間的權利。限制公共空間不準非指定用途﹐對於一般市民影響不大﹐因為他們對去公園是散步玩樂﹐街道是從一點走到另一點的通道﹐他們在家中有私人空間作私人活動﹐如睡覺吃飯或大小二便。但對於露宿者來說﹐街道公圍天橋底便是他們的家﹐不許他們在公共空間活動﹐便等於對他們趕盡殺絕。Jeremy Waldron在Homeless and the Issue of Freedom一文中﹐嘗試指出限制公共空間的用途﹐等同剝削露宿者的個人自由﹐否定他們身為人類的尊嚴。我這篇論文主要檢視他的論點﹐並挑出其中數點漏洞作出反證。在原文設定的特定條件下﹐把露宿者驅逐出城市﹐並不會構成侵犯自由的問題。

Homeless and still free

In “Homeless and the Issue of Freedom” [1], Jeremy Waldron argues that imposing restrictions to forbid unwanted activities on common properties will limit the freedom of homeless people and violate their human dignity. In this essay, I am going to first examine and illustrate Waldron’s claim. Then I will provide a counter argument to demonstrate the freedom of homeless people is violated even with all the restrictions imposed on common properties.

Waldron lay out the foundation of his argument by stating distinctions between different types of properties; they are the private property, collective property and common property. Private property is owned by private citizen. The owner of the property has the power to determine who is allowed to access and what is allowed performed in his property. If someone violates his property rights, say by sneaking into his property, the owner can persecute the trespasser with the aid of the government by simply asking the police to remove unwelcome trespassers. In contrary to private property, collective property is not owned by any private citizen, it is owned by the government. Some collective properties, such as government office and military base, are not open to the public, but a subset of the collective property is fairly accessible to everyone. The collective property marked for public use is common property that includes parks, streets, sidewalks, subways, wilderness area, etc. No private person has the power to determine the usage of common property. The usage is usually determined by the government, acts in the name of the society.

By definition, homeless people are those who have no access to private property, whether the property is owned or rented. Property owners may invite homeless people to their home, but the homeless people are on the mercy of the property owners. Homeless people do not have a place called home that they have the exclusive rights to do whatever they want whenever they like. People with private property perform fundamental human activities like urinating, washing, sleeping or cooking in their own private place. However, since homeless people are excluded by all private property, they have no where to perform those primal human tasks except on common properties. If the government restricts what kind of activities is allowed in common prosperities, it would be disastrous to the homeless people who have no where to go. They will have no place to sleep and no place to urinating without breaking the law.

In the traditional notation of freedom, it usually applies to actions rather than locations. A person is free to perform a certain action or not free to perform another action. This notation neglects the fact that man is a three dimensional being that occupies space. If a person is free do something, he ought to do that thing at some place. If a person is not allowed to be in a place, he is not free to be there and not free to do anything there. If a person is not free to be in any place, he is not free to do anything, hence he is comprehensively without any freedom [1:435]. The freedom of homeless people depends on their use of the common properties since they have no where else to perform their actions freely.

Waldron criticize our society is willing to tolerate an economy system in which a large numbers of people are homeless and at the same time not willing to allow those who are in this predicament to act as free agent, looking after their own needs, in public places [1:436]. He further argues that the freedom to perform those basic human needs is a very important freedom in our society. Unlike traffic laws or commercial regulation that limits the freedom of certain actions, the freedom of sleeping and urinating is the pre-condition of living, which is a freedom on par with the freedom of speech or freedom of religion. In order to preserve the freedom of homeless people, Waldron suggests the government should either provides public facilities, such as public washroom or shelter to the homeless people to attend their basic needs or allow them to perform those actions in common properties by taking care of themselves. The problem of homeless is not just a welfare problem; it is also a problem require us seeing homeless people as agents with freedom and dignity.

Waldron has considered many objections in his article. He examined the objections from positive freedom, general prohibitions, intention and responsibility and refuted all of them successfully. I am not going to repeat the same arguments in the essay. However, Waldron failed to consider one of the strongest objections. He argues that if an action X is prohibited (to everyone) in public places and if a person A has no access to a private place wherein to perform it, then action X is effectively prohibited to A everywhere, and so A is comprehensively unfree to do X. [1:441]. Indeed if X is prohibited to do every where, the unintended cumulative effect restraint A from doing X universally. How about A has access to one and only one public place to perform action X. In this case, A is no longer comprehensively unfree to do X. If we deliberately leave an exit, set aside a place that everyone can do X, then A is still free to do X, although he is not free to do X anywhere he likes.

Let us revisit the two questions posed by Waldron in [1:436]. He claims that most people with a home and a job are willing to tolerate an economic system with a large number of homeless people. I am afraid he is making a false assumption in answering this question. It is possible for us to answer NO to both questions. What if it is not that we are willing to tolerate the homeless people in our society; it is rather we are not willing to spend extra tax money to serve the homeless people? Operating and maintaining a public washroom or homeless shelter is expensive. If the homeless people who use those facilities could not pay for their cost, then who is going to foot the bill? What if we actually do not tolerate any homeless people at all? Giving the above loop hole in Waldron’s argument, forbidding homeless people to look after their own needs in public places, could very well means we simply want to drive them away, so we don’t have to tolerate them anymore.

I do agree with Waldron that posing restriction on what activities are allowed in common property will limit the freedom of homeless people given that the same restriction is imposed on all common properties. I also agree with Waldron that as long as there exists some common property allow the homeless to perform their basic human necessity, it will not violate their freedom. If we set limitation on common property by eliminating all the possibilities that contradict to the two requirements one by one, we will soon realize there exists a case fits neatly in the middle. In this special scenario, we do not have to tolerate the homeless people hanging out in public places; we do not have to spend our tax dollars building new public facilities for the homeless; and most important, their freedom is not violated at all. The solution is surprisingly straight forward. The government can impose restrictions on all common properties except a patch of designated area on the outskirt of the city or maybe even in the wilderness. The homeless people are free to perform whatever activities they like in the middle of nowhere without interfering with the rest of us in the society.

The obvious objection to my argument is by doing so we forcing them to move out of the city which seriously violates their freedom. Let us take a closer look at this objection and examine this scenario using the criteria of freedom proposed by Waldron himself. When Waldron talks about the homeless are excluded from all of the places governed by private property, he is not puzzled by the fact that most people are excluded from all but one of those places [1:434]. From this statement, we can deduce that if we are excluded from all but one place together does not violate our freedom even we are subjected to the restrictions on common property. If homeless people are allowed to sleep or urinate in a given place, they should be as free as the rest of us who are also allowed to sleep or urinate in one place, our home. Assign a piece of land to homeless people is essentially the same giving homeless people a home. Although their home is far away from the city, a home is still a home. Once a homeless person is not homeless anymore, he is subjected to the same rule as the rest of us. If restricting private activities on common property does not violate our freedom, it does not violate any homeless (now homed) person’s freedom.

Another line of objection is sometimes taken is this: if the society restricts the homeless from all of the private and common property in the city; we are confining them into a ghetto and deprive their freedom of living in the city. We have to be very careful about the conception of freedom used in this objection. In Waldron’s paper, he is arguing the along the line of traditional liberal idea of negative freedom [1:436] instead of the controversial, question-begging conception of positive freedom. The homeless people are not banned from entering the city. They are free to enter the city as long as they follow the same rules that apply to everyone. The homeless people are free to own or rent a place in the city if they can afford it. After a person secure the property rights of a place, he has the exclusive use of that place and it is his negative freedom to do whatever he likes in his place. Trespassers into private properties violate the negative freedom of the owner because they obstruct the owner from doing something in his place, such as excluding unwelcome trespassers.

It would be absurd if we allow trespasses on the ground of negative freedom as it directly contradicts with the negative freedom of the property owners. It makes more sense if owning a property is a positive freedom because it requires money to purchase or rent a place and not everyone is able to afford the price to live anywhere he wants. Even within the same city, the property price varies in different districts. For example, not everyone can afford to live in West Vancouver; they have to live in a less expensive area like Coquitlam. For those who cannot even afford a place in Coquitlam, they may have to settle in more remote areas like Abbotsford or Langley. At last for those who cannot afford any place in the city, namely the homeless, they have no choice but accept a free home in the ghetto. We would not grant the negative freedom for those who live Coquitlam to trespass the home of those living in West Vancovuer; why would we grant the same negative freedom to the homeless living in the ghetto?

Unlike the freedom of religion or freedom of speech, the freedom of sleeping and urinating is not a pure negative freedom. A society can grant freedom of speech and freedom of religion to everyone without anyone’s freedom being violated. However, space is a scare resource. If someone is using a space for one thing, it implicitly limits the freedom of another person using the same space for another thing. If some one is sleeping in the park, it violates the freedom of other people using the park for recreational purpose. Even if the park has open access to homeless people, there are only a fix number of benches in a park. When one homeless person occupies a bench to sleep overnight, he displaces other homeless people from using the same bench to sleep. Urinating in public places create hygiene problem, if the government allows people to urinate in a park, it won’t be long before the park become unusable to all. According to Waldron, there are three types of rules governing the usage of common property. The second rules maintains that if public places are to be available for everyone’s use, then we must make sure that their use by some people does not preclude or obstruct their use by others [1:439]. When homeless people using common property for activities other than the designed purpose of the places, they violated the second rules and interfere with another people who want to enjoy the common property.

At last, Waldron may try to object the idea of sending the homeless to live in ghetto on other moral reasons such as injustice, being cruel to them or violate their basic human rights. If he argues along this line of thoughts, he will fall prey on his own accusation of the “moralization” of freedom [1:438]. It will not only transform our concept of freedom into a moralized definition of positive liberty, but also excludes the concept of freedom altogether from the debate about the homeless. The insistence that the enforcement of the ghetto rules is anything but a restriction of freedom is a serious strategic mistake, since freedom is the core of Waldron’s argument. In the end, Waldron is trapped in a self-created dilemma. On one hand, he cannot give up the freedom argument or his efforts in the paper would be lost in vain; on the other hand, he cannot dispute driving the homeless people to a ghetto would not violate their freedom according to his earlier arguments in the paper. Either way he loses.

References:
[1] Jeremy Waldron, “Homelessness and the Issue of Freedom,” in Contemporary Political Philosophy, R.E. Goodin and P. Pettit, Ed., MA: Blackwell, 2006, pp. 432-448

根據自然法的理論﹐法律賦與人民的權利﹐是基於每個人屬有的道德權利。但是每個人的道德權利並非與生俱來﹐而是建立在人的自然權利基礎之上。自然權利源於人擁有選擇的能力﹐每個人與生俱來﹐有不受別人強迫作出選擇的自由。任何人行使他的道德權利﹐其實等同於限制別人自由選擇的自然權利。只有每個人有權利某程度上限制其他人的自由﹐才能保障每個人擁有相同的自由。每一個人的道德權利﹐必定有一個相對的道德責任。不過這個不是雙向關係﹐享受別人道德責任的好處﹐並不等同擁有道德權利。

道德權利可以分為兩大類別。一般權利是自然權利的申延﹐每個人有能力自主選擇的人﹐有不受別人干預的自由的權利。特別權利是建立在自願性的特別關係之上﹐例如一個人對另一個人作出承諾﹐那前者就有履行承諾的責任﹐而後者享有以承諾限制前者自由的權利。人民參與社會契約﹐自願放棄一些自由﹐換取享受社會提供的福利﹐人民也是通過特別權利﹐去限制參與者自由﹐要他們遵守社會秩序的權利。最重要的一點﹐每個人的自然權利優先於道德權利﹐除非有合理充分的理由﹐否則以道德權力為名﹐限制他人的自然權力並不合乎道德。

道德權利優先於法律權利﹐當政府立法違反人民的道德權利時﹐人民便有反抗法律的權利。這個公民抗命的權利有兩個層面。薄權利是指人民有權違法﹐但政府仍然在道德上有權以法律懲罰違反法律的人。厚權利力則是指若果人民的道德權利受法例侵蝕﹐政府在道德上沒有懲罰違法人民的權力。注意的是訴諸良知並不等同道德權利﹐所以憑良知行為違反法律的人只有薄權利﹐政府仍然在道德上有權懲罰他們。只有在法例違反人民的道德權利時﹐如禁止言論自由或人身自由時﹐人民才有公民抗命的厚權利﹐沒有遵守不公義法律的道德責任。在厚權利下的公民抗命﹐並不會削弱法律的威嚴﹐因為削弱法律威嚴的是不乎合道德權利的惡法。

Reference:
Are There Any Natural Rights? – H.L.A. Hart
Taking Rights Seriously – Ronald Dwokin