This is another in what I hope to be a month long series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope is that, built up on each other, the series will provide a matrix of thoughts that together might lead the reader in new directions. Though each can be read independently of the others, they are intended to be read together and against each other.
States appear to preserve a sphere of liberty of conscience, and constrain liberty of action, especially in theocratic states. Yet action ans conscience are linked in ways that make this distinction perverse. Conscience shackles the freedom of will and action; liberty is another way to suggest the limited framework within which conscience permits action.
The recent debates in the United States and elsewhere about religious liberty, and the appropriate method for its protection, suggests a number of inversions. And indeed, the great lengths to which states appear to preserve a sphere of liberty of conscience, and constrain liberty of action, especially in theocratic states, reminds me of one of Voltaire's Dialogues (Voltaire, Liberty, A Dialogue Between a Philosopher and His Friend, Philosophic Dialogues, Chapter IV, Works of Voltaire, Vol. VIII, 485-486 (Roslyn, NY: Black's Readers Service, 1927) (Dialogues Philosophiques).
The dialogue touches on the nature of liberty. The argument posited: liberty is grounded on the power to act ("Liberty, then, is nothing but the power of doing what I will" Id., at 485). Yet it is unconnected to any power to will the action ("How! am I not at liberty to will what I will?" Id.). The answer is no. Liberty is essentially the power and freedom to act:
At this rate, my greyhound is as free as I am. He has necessarily a will to run at the sight of a hare, and likewise the power of running, if not lame: so that, in nothing am I superior to my dog. This is leveling me with the beasts. Id., at 485As to the liberty to will what to will--that does not exist. There is no liberty to will--for the will is is not free. It is bound by a framework within which it can be formed. The will is a creature of those who have created the reality within which will can be formed. For Voltaire, of course, that framework--the chains that bind the will--are bounded in what he called reason.
Friend: I mean that I have the liberty of willing as I please.And he considers the basis for grounding will in the choice of a wife or the act of making a choice in a gambling game. "In your willing to be married, you evidently perceive the determining reason; and in playing at even and odd, you do not perceive it; and yet one there must be." Id.
Philosopher: By your leave, there is no sense in that. Do you not perceive, that it is ridiculous to say, I will will. You will necessarily in consequence of the ideas occurring to you. Id., at 486
And thus, the Philosopher ends, "Your will is not free, but your actions are. You are free to act, when you have the power of acting." Id., at 486.
And yet the law is based on the inverse premise. People are accorded a liberty to will, but are absolutely constrained to act. The law of religious tolerance in the United States, for example, is grounded on this inversion. See Reynolds v. U.S., Yet, if the will is constrained, and the only liberty is that of action, then, the law effects a double bind--suggesting a liberty where none exists and positing a range of constraint in the only sphere in which liberty may be effectively asserted. The Iraqi Constitution provides a similar constraint, protecting a sphere of belief and a limited tolerance fo religious rites ("This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice such as Christians, Yazedis, and Mandi Sabeans." Iraqi Constitution Art. 2).
And yet, this inversion may serve the project of law well, when understood as the most visible manifestation of communal power over individual liberty For might it not be logical for a state to seek to control only those aspects of the human experience where an individual may assert some liberty, and protect an individual in the preservation of a will over which there is no control. In this sense, law can be understood principally as a mechanism for constraining, not preserving, liberty.