May 22, 2005

What is freedom, part 4,782

Mika LaVaque Manty: May 22, 2005

Here are two examples of how people can exercise cherished freedoms: One, you buy some land in the country — 20 acres, say — and because you don't like snow-mobilers or hunters or hikers or just 'coz, you put up a chain link fence around it and lots of "No trespassing" signs. Two, you love the outdoors and rejoice in the fact that wherever you go, you'll be able to head into the woods without having to worry about fences or "No trespassing" signs, knowing that pretty much everywhere you can pick berries, collect mushrooms or wildflowers, swim in lakes and even camp a night or two.

The former is familiar to everybody in North America. The latter may strike North American readers as not a freedom at all, not least because it conflicts with the former. But it is a real freedom. While my point here is not to adjudicate between the two freedoms or advocate one over the other — they do conflict, but both have their places and uses, as far as I'm concerned — thinking about the two is conceptually helpful: it's one of many reminders that freedom isn't natural, but an institution, and that if one wants to defend one conception over another, one had better have arguments that are attentive to history and context.

That's a trivial point, perhaps, but I find myself needing to make it pretty often.

The second freedom, in case you're wondering, is the so-called Right of Public Access, and it's an ancient Scandinavian institution still alive and well in Sweden, Norway, and Finland. The original Swedish term allemansrätt (allemansrett in Norwegian, jokamiehenoikeus in Finnish) literally means "everyman's right." The basic idea is that it allows everybody — not only citizens —  "free right of access to the land and waterways, and the right to collect natural products such as wild berries and mushrooms, no matter who owns the land."  There are national variations on the legal status of the right and its details. In Sweden, it has been a constitutional right since 1994: "There shall be access for all to the natural environment in accordance with the right of public access" (The Instrument of Government, ch. 2, art. 18). In Norway, its details are in the Outdoor Recreation Act (which explicitly prohibits most barriers and "No trespassing" signs).

Happily, this kind of freedom comes with lots of responsibilities, and most of the detailed statutes and policies list many more "don'ts" than "mays." The Swedish slogan "inte störa, inte förstöra" captures the constraints pretty well: "Do not disturb, do not destroy." It's close to the North American "leave no trace" principle about wilderness behavior, in addition to which you can't disturb other people in nature or at their homes.

It's not surprising that the Right of Public Access hasn't ever quite existed elsewhere in Europe: Scandinavia's low population density has made it possible and in fact probably originally motivated the convention. So my point here is not to argue that it would be a nifty idea worth adopting elsewhere. Counterfactually maybe, or maybe not. (What if Leif Eriksson had stuck around and had occupied the continent with Norsemen, instead of varieties of Brits reeling from their own tragedy of the commons being the primary early occupiers?) But clearly the idea is now a non-starter, here and elsewhere. In North America a quasi-Lockean commitment to the sanctity of property rights is pretty firmly established.

I have no particular interest in arguing against that quasi-Lockean conception of freedom. In fact, I happen to like it pretty well much of the time. My point is primarily theoretical, even if the example I use is from the real world. The example is particularly interesting because it predates state institutions. The Right of Public Access is an institution, all right, but the state — in any meaningful sense of the word — is not its creator. The state eventually comes to protect it and to enshrine it in its laws, but its emergence is organic: it's a convention enforced by mutual understandings and local social pressures before the state emerges (or appears on the scene, as the case was in late medieval Finland). And so what we have as a result is that, in Scandinavia, the very idea of property in the land does not include an unqualified right to prevent others from using it.

You might think this appalling, of course. You might also think you now have an idea why those weird Scandinavians seem so fond of the intrusive welfare state. (There may be a connection, there may not be; it's a seriously difficult historical question lots of people have tried to answer.) But if you think so, you'll have to offer an argument for why it's appalling. What you can't do is say that the quasi-Lockean conception just is freedom and the Right of Public Access is not.

(I'll leave it for another post to argue why the Right of Public Access is also a liberal and an individual right.)

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