We’re talking about the concept that this statue points to.

Since writing the piece “Anti-Romulus”, I’ve been struggling to articulate a conception of Rights that doesn’t hinge on the Roman conception of property. This is difficult, considering how deeply ingrained this particular way of framing things is.

The basic problem comes from David Graeber’s Debt: The First 5,000 Years (Bookshop link here), which pointed out in an offhanded fashion that those who spent the most time enumerating and cataloging the rights of people were primarily interested in how such things could be bartered, traded, or taken from people – similar to how the earliest knowledge of the anatomy of birds and hoofed animals was most likely collected by cooks and butchers.

Of course, the problem is that when an idea is hegemonic, it organizes all discourses around itself. The idea of “property” as defined by Roman Law, which has spread through much of the world, pulls at all similar concepts the way that a magnetic field pulls at iron filings. This is true to the extent that in The Ecology of Freedom (Bookshop link here), Murray Bookchin’s primary innovation was simply removing one-third of the triad of subsidiary rights that make up property rights.

Let’s take a different angle on things for a moment. In a book I read some time ago, American Nations (Bookshop link here) by Colin Woodard, the author articulated one of the principle cultural divisions between larger groups that settled some sections of the United States by writing:

One might ask how such a tyrannical society could have produced some of the greatest champions of republicanism, such as Thomas Jefferson, George Washington, and James Madison. The answer is that Tidewater’s gentry embraced classical republicanism, meaning a republic modeled after those of ancient Greece and Rome. They emulated the learned, slaveholding elite of ancient Athens, basing their enlightened political philosophies around the ancient Latin concept of libertas, or liberty. This was a fundamentally different notion from the Germanic concept of Freiheit, or freedom, which informed the political thought of Yankeedom and the Midlands. Understanding the distinction is essential to comprehending the fundamental disagreements that still plague relations between Tidewater, the Deep South, and New Spain on one hand and Yankeedom and the Midlands on the other.
For the Norse, Anglo-Saxons, Dutch, and other Germanic tribes of northern Europe, “freedom” was a birthright of free peoples, which they considered themselves to be. Individuals might have differences in status and wealth, but all were literally “born free.” All were equal before the law, and all had come into the world possessing “rights” that had to be mutually respected on threat of banishment. Tribes had the right to rule themselves through assemblies like Iceland’s Althingi, recognized as the world’s oldest parliament. Until the Norman invasion of 1066, the Anglo-Saxon tribes of England had ruled themselves in this manner. After the invasion, the lords of Normandy imposed manorial feudalism on England, but they never fully did away with the “free” institutions of the Anglo-Saxons and (Gaelo-Norse) Scots, which survived in village councils, English common law, and the House of Commons. It was this tradition that the Puritans carried to Yankeedom.
The Greek and Roman political philosophy embraced by Tidewater gentry assumed the opposite: most humans were born into bondage. Liberty was something that was granted and was thus a privilege, not a right. Some people were permitted many liberties, others had very few, and many had none at all. The Roman republic was one in which only a handful of people had the full privileges of speech (senators, magistrates), a minority had the right to vote on what their superiors had decided (citizens), and most people had no say at all (slaves). Liberties were valuable because most people did not have them and were thought meaningless without the presence of a hierarchy. For the Greeks and Romans there was no contradiction between republicanism and slavery, liberty and bondage. This was the political philosophy embraced and jealously guarded by Tidewater’s leaders, whose highborn families saw themselves as descendants not of the “common” Anglo-Saxons, but rather of their aristocratic Norman conquerors. It was a philosophical divide with racial overtones and one that would later drive America’s nations into all-out war with one another. (p.29)

Though Woodard uses the word “right” within this, I would object to his use of that particular word – what he is laying out here might best be called “liberties” and “freedoms.” We tend to use these three words with some degree of interchangeability – among the “civil liberties” enumerated in out “bill of rights” we have a number of freedoms, such as “freedom of speech.”

One thing I often tell my students is that the English language doesn’t actually have synonyms – there are only words that can be functional synonyms when they don’t directly concern the topic of discussion. This is why bag and sack, or box and crate, are interchangeable in most situations, but it’s necessary to differentiate them in, say, the context of a logistics conversation where you need to differentiate the one piece of cargo from another.

Ergo, Liberty, Freedom, and Right are related, but it’s incoherent to put them forward in the way that they are, because they are not the same thing.

A depiction of the Tennis Court Oath by Jacques-Louis David, the event by which a number of French noblemen got carried away and swore away their feudal privileges.

A “Liberty” is thus a privilege in the old feudal sense. This is, in fact, exactly what the word means if you encounter it in the context of the French ancien regime – when a french nobleman is talking about his “liberties,” he’s not talking about something that the unwashed masses of Paris had access to. He is talking about something particular to him. These could, of course, be generalized out somewhat, but they’re a class-based thing. Right now, the possession of a mega-yacht or going to space is a matter of liberty; but you do not, by any stretch, have the freedom or the right to do so. If you possess the means, then a liberty means that no one can stop you.

On the other hand, “Freedom” is something nominally possessed by all members of a community, and primarily concerns what is often called “negative liberties” or “freedom from” – in short, you are free because no one can make you. Of course, we shouldn’t romanticize the societies that produced the concept of “freedom” too much – freiheit, as Woodard notes, is rooted in Northern European Germanic cultures, and the Norse held on to explicit slavery far longer than any other culture in Europe (before, of course, it was formally revived in the Early Modern Period; and we shouldn’t overlook the horrors of serfdom).

The poster for Robert Eggers’s *The Northman*, which clearly depict the savagery of the Norse, but also is a reasonably competent adaptation of Hamlet.

I think the most important distinction here is one I’ve already made: liberty means “no one can stop you,” and freedom means “no one can make you.” Both involve a certain amount of license for coercion, though – your liberty may easily trample another person, and the societies that produced the concept of freedom often saw it not as something possessed by all people, but by all members of a generally closed community. Of the two, “freedom” seems preferable, because it is more evenly distributed, but neither is perfect.

So, what is a “right”?

The Bill of Rights, as depicted in an Atlantic Article. A lot of constitutional originalists (talked about here) seem to forget about #9.

A right is a particularized (and reified) liberty or freedom. By “particularized,” I mean that your freedom of speech doesn’t give you freedom of movement or freedom of worship. Each one is a specific thing. By “reified”, I mean that it is an immaterial thing that’s treated as a discrete object that one is able to possess: presumably, we’re endowed with these rights at a certain time (by our creator, or at age of majority.)

It’s specifically, in my opinion, the reification that’s the problem with “rights” as a concept – it’s something conceived of as separate from the person, rather than as an attribute of the person. Because it is thought of as something that is separate from a person, then it becomes permissible to remove it when the person misuses it.

Think about it: it’s considered common sense that someone who has proven themselves unable to responsibly use a firearm or automobile should no longer have that and that it should be removed from their possession. This means that conceiving of a right as a possession allows us to come up with situations whereby someone can be reasonably deprived of their right to free speech, right to freedom of movement and so on. After all, if they misuse it, then it becomes reasonable for them to no longer have that right – just as if they misused a firearm or automobile.

For more on the treatment of the native population of the United States, please see Roxanne Dunbar-Ortiz’s fabulous book, *An Indigenous People’s History of the United States*, bookshop link here.

This is the same logic by which the colonization of the Americas proceeded: the native inhabitants were not seen as improving the land and putting it to economical use, which meant that they did not have a right to it. This is also the same logic by which slavery was enacted: they lost their right to self-ownership because they were misusing it.

Here’s the thing: once the social and legal apparatuses exist to remove something from a person’s possession, then it becomes more a question of when to use it and less of whether to use it, and as with all things, it gets used more and more. Ever since the passage of the thirteenth amendment, people have been trying to figure out ways to legally coerce labor. Economically speaking, the war on drugs was a mass enslavement, largely of black people (though if others get scooped up alongside, I don’t think the authorities mind all that much).

It is because of our way of conceiving of rights that this problem emerges: because we view freedom as something that can be legitimately stripped from a person, we have constructed a society that regularly does just that. The most extreme forms of this are through our carceral system, but this is not the only location where this happens – this happens formally in the workplace and informally in the family.

If you think about it, every employment contract is an agreement by which these freedoms are stripped from a person: not simply the overt loss of freedom of movement during work hours, but also – and more generally – the worker’s freedom to portray themselves as they wish (the obsession of the workplace with disciplining the distribution of hair upon a worker’s body, for example, is extremely strange to me).

I will not focus on the family, because as Tolstoy noted, all unhappy families are unhappy in their own way. I would add to this the note that most families are unhappy in one way or another.

So here we get to the heart of the rights/freedoms/liberties question. It isn’t a question of any of these things. It is a question of coercion and consent.

By framing it this way, we leave many of the questions of freedoms, rights, and liberties off the table. It presumes that everyone has a measure of freedom – they are free people and relations of coercion are largely off the table. Of course, it should be noted, it does seem that one could theoretically consent to be coerced – which changes it from real coercion to a kind of play-coercion.

I haven’t read it, yet, but I’m given to understand from summaries I’ve read that Sigmund Freud’s Civilization and its Discontents proposes that “civilization,” as we understand it, is inherently coercive. Because people have a tendency to seek pleasure instead of submitting to drudgery, the functioning of civilization requires that a large portion of the people who would otherwise simply seek pleasure must be coerced into working (and, presumably, some of those must be coerced into doing the coercing).

Perhaps it’s the fact that I haven’t read it, but I’m stuck on the question of why. Why does this have to work this way? And what would a non-coercive society – perhaps it wouldn’t be a “civilization” – look like?

Imagine, for a moment, the population as a series of nodes – like pixels on the screen in front of you. Depending on the quality of your monitor, each pixel might have an endlessly varied character, adopting any color, hue, or shade – and if one of them dies or is damaged, you can see it and it lessens the whole. Each one matters, but the whole working in concert can achieve more. It is from the interaction of all of these individual, radically different parts, that a greater meaning can be achieved.

So the question becomes how to organize that, how to make it work, how to allow each individual part to retain its individual color? What is the interrelation between the singular and plural forms of humanity?

The possessive-rights model of the coercive society basically states that it is up to the individual to barter away their respective privileges and protections for membership in a greater whole. I’m not even close to fully articulating it, but what we could – in parallel – call the interactive rights model of the consensual society might state that it is through membership in overlapping and complementary blocs that the individual is able to realize the freedoms ensured by a just a society – limited, of course, not just by wanting to avoid trampling on the rights of others, but by the duty to help ensure that these overlapping and complementary blocs function harmoniously with one another.

It’s entirely possible that our acculturation to the coercive society that we dwell in prevents us from easily conceiving of such a thing, but we have to conceive of it if we’re going to try to build it and feel comfortable taking part in it.

However, in this hypothetical Society of Consent – constructed in opposition to Societies of Sovereignty, Discipline, and Control – we can imagine that a different conception of the world will come into being, renegotiating not just the relationship of one person to another but between the singular and plural forms of society.

However, I do think that this shift in conception – from the “rights” of the individual being possessions owned by that individual to a product of the interaction between individuals – would be a useful one.

There are, of course, problems with this conception, and so I’m not completely committed to it: if one of these “overlapping and complementary blocks” is the nation state, then it does provide grounding for the revocation of these rights, especially if it secures for itself sovereignty over the distribution of protections and privileges. What is necessary is for the blossoming of sub-national societies that secure these protections and privileges for both members and non-members. If the principle goal of these groups is not altering society as a whole, then there is the danger of society being treated as a lifeboat from which certain people and groups can be expelled.

A spirit of magnanimity, motivating associations of people to protect others on the grounds that they are also people – with no exceptions – would be essential to such a project succeeding.

As such, I intend this piece to outline an incomplete sketch, and to raise problems which can be addressed by myself and others at a later point. This is not the end of this project, but a jumping off point.

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Freedom against Liberty, Liberty against Freedom: a Discourse on Rights