“You do not enumerate the freedoms you want”

'V' sign and hand in Englefield Green, Surrey

Crosbie Fitch, in the Atom feed summary for this post looking at how ‘freedom’ can and should be defined, says:

You see copyright’s suspension of your freedom to perform particular activities, and so for each activity you demand a specific freedom. This is how the GPL arose.
This is an inverted perspective from which to define ‘free culture’ (and free software).
To define freedom you define its constraints — you do not enumerate the freedoms you want.
This is because freedom is what we start off with in the first place. We constrain it to make it better. It is when we under or over-constrain it that we make it worse.

It’s the “To define freedom you define its constraints — you do not enumerate the freedoms you want” which especially stands out to me. This seems such an important principle, yet one which so many politicians entirely ignore when they talk about their commitments to ‘human rights’.

Am I being overly simplistic to equate this to the contrast between a ‘planned’ society – where everything is banned unless specifically permitted in an enumerated list of freedoms – and an ‘evolving’ society – where everything is permitted unless specifically banned? (Also: how does the contrast between codified Roman law and ‘evolving’ common law compare to this?)

Whatever the political and legal comparisons might be, the principle is certainly pertinent to the rise of architectures of control in technology. Up until just a few years ago, most technology was effectively ‘open’, assuming you could get hold of it. All of us had freedom to do what we wanted with it – take it apart, modify it, repurpose it, improve it, break it, even if the originators had never expressly intended anything like this, and even if it were ‘illegal’. Now, though, we have (some) technology into which intentions can be codified. We have products with hyper-restrictive End-User Licence Agreements which we must accept before we use them, and which can report back if we don’t abide by them. We have products which are intended to provide one-function-and-nothing-but-that-function, and are designed to frustrate or punish users who try anything different. We have politicians seeking to specify exactly what technology can and can’t do. How do I know what freedoms I want until I’ve experimented? How can I even explain them until I’ve experienced them? Should the progress of tomorrow really be shackled by registering as law the prejudices and errors of today?

Of course, in the context of this blog, I’m merely striking the key-note once again, and that can make for a very dull tune. But that phrase, “you do not enumerate the freedoms you want,” will stay with me. It’s important.


  1. Looks like a couple more people groping towards the realization I had years ago — the one fundamental right we all need is the right to self-determination. Everything else follows from that. The tricky matter is when someone’s self-determination if carried out would limit someone else’s; the rules and laws governing who gets priority in these cases need to maximize overall self-determination. This tends naturally to occur when everyone is minimally restrained, chiefly from restraining or violating others, and suggests law enforcement be focused fairly narrowly on violent crime and theft and vandalism. In practise, the need for state provision of defense and protection of public goods like clean air also arises.

    Unfortunately, the historic pattern has usually been to maximize one individual’s self-determination (some sort of king, pharaoh, emperor, or dictator) at the expense of everyone else’s. This is easily seen to be suboptimal; average self-determination per capita is actually just about minimized by such systems. 😛

  2. 1:25 am? Server must be on Europe’s west coast, hmm.

    Also, your antispam filter is severely broken. Again. It kept saying “Sorry, you can only post a new comment once every 15 seconds. Slow down cowboy.” on attempting to post this comment for well over 15 MINUTES (subtract the earlier post’s timestamp from the later to get the exact amount of time I actually had to wait) after posting the above comment. This is clearly incorrect behavior, unless the server’s clocks actually tick extremely slowly, by two or more entire orders of magnitude. I suggest you either find the software bug and fix it, or yank the server further away from that black hole’s event horizon, whichever is applicable. 😛

    In any case, I don’t think I’m going to bother commenting here anymore. It’s become obvious that, regardless of what you say, your actions (or at least your server’s actions on your behalf) indicate that my comments aren’t really all that welcome, or why would I be subjected to frequent gratuitous problems and frustrations with posting them? Comments simply disappearing, comments left in limbo and held hostage to some minimum time limit that’s much longer than claimed, comments placed at unnecessary risk of being lost by crash, power failure, or other accident scenario because I have to wait ages after writing them before being able to submit them successfully … and to top it off, at least one of my older comments has apparently been edited and a large chunk of discussion regarding computer operating systems removed.

    Of course there’s a certain amount of irony here, since my comment posting behavior is evidently being trammeled and constrained arbitrarily by precisely the sorts of “architectures of control” you frequently criticize!

    I know when I’m not welcome. I think I’ll go now.

  3. Dan

    I apologise for the spam filter (Spam Karma 2) behaviour. From time to time the ‘Slow down cowboy’ message does seem to appear in error: I’ve had it myself a few times now and, following an earlier suggestion in the comments from Mako, I’ll be trying Akismet as a replacement as soon as I can.

    The server for this website is in Denmark (One.com, formerly B-One): I don’t host it myself as I’ve never lived anywhere with a fast or reliable enough internet connection to be able to do this on my own. When I signed up with B-One back in 2003, they were the best value host I could find that would allow me to pay by cheque. Increasingly in recent months the reliability has been an issue, and has I know this has affected the availability of the site. I’ll look into a different host.

    Honestly, your comments are extremely welcome and you’ve contributed some very clear, sharp insights which I very much appreciate. As with the posting problems last autumn I don’t know why some of your comments seem to provoke the ire of the spam filter more than other people’s, or if indeed they do at all.

    Please let me know which of your older comments seems to have had the operating system discussion edited out! I am not aware of this at all and if the comment really has been edited then there is a major problem which I need to investigate.

  4. The “choice of defaults” comment which also mentions diet soft drinks and the like. In response to the “carrot, stick, speedometer” false trichotomy I was exploding. 🙂

  5. Pingback: OLDaily[中文版] » Blog Archive » 2007å¹´4月23æ—¥

  6. moniker

    Some of this is due to confusion over the difference between what is a liberty and what is a civil right. I’m afraid I’m not very well versed in English Common Law, given my American upbringing, to speak in that context, so hopefully the US’s Bill of Rights will suffice.

    It is actually a misnomer for the document because it doesn’t mention any rights that are granted to the populace. What it does is enumerates liberties that they enjoy. Limits that are placed on what the government can do, intended to protect the individual from they tyranny and the arbitrary abuse of power a state can wield. Civil rights, on the other hand, are protections that require governmental intervention to maintain or to ensure.

  7. cs

    The phrase you’re responding to – “To define freedom you define its constraints — you do not enumerate the freedoms you want” – is poignant, but I’m unsure how it fits with the discussion of “free culture.” The root problem is a minor terminological confusion. “Freedom” is generally synonymous with “liberty” and it’s content is that entire field of behaviors about which various structures of control say nothing – e.g. law, convention, etc. A “right” is essentially defined by three elements – a right holder, the agent held under obligation by the right, and the authority by virtue of which the right is held. (This is why the Bill of Rights is, really, a bill of RIGHTS: it defines rights held by individuals against the government by virtue of the authority of the people as a whole.) It is essential, by the way, that a right constrains freedom by virtue of authority that is acknowledged as valid by both the right-holder and duty-holder.
    At it’s most abstract, the argument of those trying to articulate a notion of “free culture” can only claim with regard to copyright, insofar as it is strictly a “right,” either that the content of the duties imposed are “unjust” or that the authority granting the right is invalid (both of which are variants of the same argument.). In order to advance either of these arguments, they must make positive and specific points about the duties required by systems of copyright. I guess the discussion you quoted is off a bit because the “free culture” people fundamentally aren’t actually talking about “freedom.” The entire discussion takes place within the context of “rights” and what the are attempting to do is modify the content of a set of codified duties. Given that they are trying to modify those duties into nonexistence, the distinction might seem rather niggling, but it’s nonetheless pointless to object that “free culture” has to “define” each “freedom” since they’re actually trying to redefine duties. “Freedom” is the “negative space” within which we have constructed large scale systems of control and, yes, talking about any right (e.g. copyright) is necessarily discussing the content of those systems of control, not the surrounding negative space.

    The “negative space” metaphor also explains why the contrast isn’t really between “planned” and “unplanned” societies, or between articulated and customary systems of law, as it is between more and less pervasive systems of control around which human behaviors just sorta’ flow. I guess one fundamental question is whether this “negative space” is bounded – e.g. can systems of authority eliminate freedom entirely? This is obviously the intent behind the architectures of control in, say, consumer electronics, but it’s unclear whether the intent may be successfully realized.

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