Negative Liberty Research Articles

Negative Liberty: Public Opinion and the Terrorist Attacks on America by Darren W. Davis

Negative Liberty: Public Opinion and the Terrorist Attacks on America <i>by Darren W. Davis</i>

O Esquecimento do Humano: como a Indolência da Sociedade Brasileira Compromete a Efetividade dos Direitos Humanos Fundamentais

This article aims at demonstrating that the option for a civic apathy made by the Brazilian society has compromised the effectiveness of the human rights; somehow such behavior depreciates the essence of the democratic regime. When society accommodates itself in a negative liberty, reinforces the abstentionist shade of the Liberal State that many times produces social discontentment. A weak citizenship makes the individual trust extremely in political representations, distancing itself from the instinct of sociability, one of the alternatives of pos-modernity to emancipate men from power regulation that had debilitated it through the latest two centuries. We cannot waste the lessons obtained from experience or give away to a political fatalism and do not break with this state of indolence potentially prejudicial to the fundamental human rights’ exercise.

Liberdade e lei no neo-republicanismo de Skinner e Pettit

O artigo objetiva analisar as intervenções de Quentin Skinner e de Philip Pettit nas disputas atuais sobre o significado do conceito de liberdade. Argumenta-se que, malgrado diferenças de método e estilo entre os autores, ambos convergem para a defesa de um ideal republicano de "liberdade como ausência de dominação", que não se reduz ao ideal de autogoverno de cidadãos ativos (liberdade positiva), nem ao ideal de simples ausência de coerção sobre os agentes (liberdade negativa). Embora a liberdade republicana à la Skinner e Pettit caracterize-se também pela ausência de interferência, ela se diferencia da visão liberal dominante ao repudiar somente as formas arbitrárias de interferência - fenômenos da dependência e da dominação - que corrompemas relações entre concidadãos, bem como as relações entre cidadãos e Estado. Formas não-arbitrárias de interferência podem ser benéficas à - ou mesmo constitutivas da - liberdade.

Rewriting Canonical Discourses: The Political Subject of Gender-Neutral Freedom

Rewriting Canonical Discourses: The Political Subject of Gender-Neutral Freedom Laura Grattan (bio) Nancy Hirschmann Gender, Class, and Freedom in Modern Political Theory. Princeton: Princeton University Press, 2007. 352 pages. $24.95 (pbk). $69.50 (hc). ISBN13: 978-0-691-12989-1 If it seems increasingly difficult to get a purchase on freedom in today’s world, it is worth revisiting its canonical roots with Nancy Hirschmann’s Gender, Class, and Freedom in Modern Political Theory. She intervenes skillfully in the literature on Hobbes, Locke, Rousseau, Kant, and Mill to engage contemporary theoretical and popular discourses of freedom that fail to acknowledge their limits. In the United States, at least, we appear content to Chase Freedomsm into the consumer realm, captivated by the allure of a society where the multinational banking company teams up with the Rolling Stones to reiterate the popular myth: “I’m free/To do what I want/ Any old time.” The commercialized narrative of self-mastery and unlimited opportunity reminds us that ideal of negative liberty, as the absence of external barriers on choice, has not lost its luster. And yet, when we confront the fine print -- a maze of complex specifications, percentage chances, and indecipherable terms -- the chase often renders freedom illusory. The fine print, Hirschmann hopes to prove, is the condition of judgment and action: our everyday lives are interwoven with economic, social, administrative, and discursive powers that not only circumscribe the arenas of choice, but more fundamentally, shape the identities, attitudes, and desires that inform our choices, and not least of all, structure our conceptions of freedom itself. If we try to chase the concept of freedom in the marketplace of ideas, we risk overlooking its political power. The de-politicization of freedom in theoretical and popular discourse is a primary concern animating Hirschmann’s recent writing, which aims to discursively reconfigure it. In this regard, her new book is logically a prequel to her previous one, The Subject of Liberty: Toward a Feminist Theory of Freedom. That book analyzes women’s concrete experiences with domestic violence, welfare, and Islamic veiling to provide a rich, contextual account of the ways in which discourses of freedom emerge from specific configurations of power and produce the kinds of subjects, relationships, practices, and institutions necessary to sustain them. But such thick social constructivism, she acknowledges, has had limited influence on most contemporary political theories of freedom. Gender, Class, and Freedom thus aims to meet the discipline on more familiar grounds, by carefully tracing the historical contexts, the specific configurations of gender and class power, and the discursive practices that significantly structure the concept of freedom in the works of five key canonical thinkers. The result is one of those rare books with the potential to bridge a variety of disciplinary and interdisciplinary perspectives and approaches. Hirschmann’s close reading of five modern thinkers engages traditional debates on their theories of freedom and stakes out new claims in relation to feminist interpreters and others who read modern political theory against the grain. But she is explicit that the “potentially radical force” of her arguments will be tested by their ability to compel “mainstream” theoretical discourses of freedom to wrestle with questions about context, power, and human subjectivity they so often resist.(17, 2) This is both a crucial and promising challenge, and it is with regard to these stakes that I ultimately question the limits of the book in rewriting canonical discourses of freedom. Hirschmann’s two books on freedom are best read in conjunction with one another, as evidenced by their interrelated form, arguments, and methods. Formally, Gender, Class, and Freedom reiterates and expands the first two chapters of Subject of Liberty. Those chapters, and the new book, set the conceptual and historical grounds for her contemporary engagements with women’s lived experiences and, finally, for her constructive theory of freedom. Readers interested in Hirschmann’s constructive vision have to read backward in time to reach the punch-line of her argument. (Warning: This review will contain spoilers.) In terms of argument, both books begin with Isaiah Berlin’s typology of negative and positive liberty, which unfortunately structures much contemporary theoretical discourse on freedom. While...

Reconceiving Rights and Constitutionalism

Human rights invoked in the international context are often treated as having self-evident content. The focus is on implementation and enforcement. The urge to enforcement is especially strong when...

Negative liberty: public opinion and the terrorist attacks on America

Negative liberty: public opinion and the terrorist attacks on America

After the Security Dilemma: The Challenges of Insecurity in Weak States and the Dilemma of Liberal Values

The security dilemma — which raises the imminent risk of war between sovereign states — has always been considered the core issue of international relations. But, the security dilemma is in decline. Interstate war is no longer the supreme concern on the international security agenda. Instead, new dilemmas have emerged, in particular the insecurity dilemma and the associated value dilemma. The insecurity dilemma poses a looming risk of violent domestic conflict in weak states. The related value dilemma concerns the ambiguous content of core liberal values. Negative liberty is autonomy, self-determination and the ability to act unimpeded by others. The promotion of negative liberty calls for non-intervention. Positive liberty is removal of the obstacles that stand in liberty's way: oppression, poverty, ignorance and tyranny. The promotion of positive liberty calls for intervention. Emphasizing negative liberty creates grave problems; emphasizing positive liberty creates grave problems of a different kind. Compromises between intervention and non-intervention must always be troubled and uneasy, because they involve trade-offs between liberal values that are all desirable. There is no clear path to a more liberal world order.

American Democratic Practice, France, and Russia: Institutions, Values, and Alternative Democratic Experience

The US emphasis on democratic procedures and property rights profoundly distinguishes the American polity from nearly all consolidated and newly emergent democracies; democracies that place stress on more egalitarian notions of social justice. Interrelating institutional arrangements and democratic values through an application of George Tsebelis's veto players theory and Isaiah Berlin's notions of positive and negative liberty, we juxtapose the American and French democracies as we assess Russia's post-Soviet democratic consolidation. We focus on the policy-making proclivities of these three states, and a combined application of the veto players framework and positive-negative liberty dichotomy reveals a US policy bias toward the status quo as contrasted with a French and Russian system bias facilitating more substantial policy change. The 1993–1995 Clinton health-care initiative, the 1997–2002 Jospin-Left program, with attention to the 35-hour workweek and associated policies, and the 2000–2006 Putin policy agenda, with attention to health care and housing measures, serve as national case studies to illuminate our arguments.

Liberalisms and the limits of knowledge and freedom: On the epistemological and social bases of negative liberty

This article sets out to show that it is more precise to speak of different liberal traditions than it is to speak of liberalism in general. The argument is pursued by showing how contrary to French liberalism, which has a strong republican element, and in contrast with English and Scottish liberalism, which reserve an important place for political economy, there is also a central European liberalism with a marked philosophical dimension. This particular form of liberalism is analysed by examining the writings of Kant, Simmel and Freud. It is stated at the outset that critiques of liberalism often fail to appreciate the richness and diversity of liberal thinking, and that this depth must be borne in mind in any effective critique. It is explained that there are indeed grounds to critique liberal thought and practice, but that these grounds are obscured by lumping distinct and heterogeneous traditions together as if they all suffered from the same defects.

Calder v. Bull, interpreting the Constitution as a social compact; or a sequel to Jean Jacques Burlamaqui and the theory of social contract (I)

Calder v. Bull turns to be the vehicle to link the social contract theory of Jean Jacques Burlamaqui with the American Constitution. After analyzing the thought of Samuel Chase and the framers of the Declaration of Independence, we conclude that the pursuit of happiness ought to be seen as a principle of interpretation of a Constitution that is not an isolated document, but part of a larger compact that integrates not only negative liberties but also social rights. Fecha envio: 18/12/2006 Fecha aceptacion: 26/03/2007

LIBERALISM AND THE CONSTITUTION

If the U.S. Constitution is a liberal Constitution, liberal governments can have a constitutional obligation to secure positive benefits or welfare rights. The original constitutional text describes a government instrumental to the Preamble's abstract ends or goods. Constitutional rights can be reconciled to the text's instrumentalist logic by viewing them as functional to better conceptions of abstract ends among actors who would compensate for their fallibility. The Federalist confirms the instrumentalism of the constitutional text. Conservative writers who treat negative liberties as constitutional ends err in several ways. They assume rational actors would establish a government for the sake of limiting it, and they ignore the positive nature of goods (life, liberty, property) that are the objects of negative liberties. They also fail to see that tax-supported protections for all positive goods, including the objects of negative liberties, must be justified by public purposes.

Health Promotion and the Freedom of the Individual

This article considers the extent to which health promotion strategies pose a threat to individual freedom. It begins by taking a look at health promotion strategies and at the historical development of health promotion in Britain. A theoretical context is then developed in which Berlin's distinction between negative and positive liberty is used alongside the ideas of John Stuart Mill, Charles Taylor and T.H. Green to discuss the politics of health promotion and to identify the implications of conflicting perspectives on freedom. The final section looks at current health promotion policy in Britain and beyond and argues that, if freedom is seen in terms of empowerment, health promotion can enhance individual freedom.

Lost and not yet found: The New First Amendment

Lost and not yet found:The New First Amendment Mark A. Graber (bio) Steven Shiffrin in 1983 argued that "one size, fits all" approaches to the First Amendment distorted both legal and rhetorical practice. "[S]peech interacts with the rest of our reality in too many complicated ways," he wrote, "to allow the hope or the expectation that a single vision or a single theory could explain, or dictate helpful conclusions in, the vast terrain of speech regulation."1 Rather than continue working within the frameworks established by the classic works in civil libertarianism,2 Shiffrin urged scholars to emphasize "the diversity of speech" and develop "more appreciation for the advantages of thinking small." "It is time," he concluded, "to move away from a general theory of the first amendment."3 The essays that follow reflect different movements away from the general theory of the first amendment. Most, following Shiffrin, focus on particular free speech problems. Peter Quint writes about hate speech and campaign finance reform. Gordon Silverstein explores judicial precedents concerned with the right not to testify before legislative committees. Few find the general theory of the first amendment to be of much use. Kermit Roosevelt observes that the traditional civil libertarian focus on negative liberty is antiquated in a world of "pervasive government regulation." Kathleen Sullivan suspects a "free speech doctrine" that emphasizes an "abstract political subject" will be "unable to address both truth and power in its current context." Most interesting, many essays reject the first amendment as a basic organizing category for general theorizing. Such matters as campaign finance reform and hate speech are placed into broader constitutional categories, but those categories do not encompass all free speech issues and encompass many issues tangential at most to the civil libertarian tradition. Deborah Hellman explores campaign finance reform in the context of general theories concerned with what money should buy. Donald Downs explores hate speech in the context of general theories concerned with the purpose of universities. The format of these essays and the conference at which they were first presented reflects another aspect of the movement away from the general theory of the first amendment. The reign of civil libertarianism facilitated the sort of normal science conducive to traditional academic conferences and conference papers. These formats are more problematic when inherited paradigms are collapsing, but not yet replaced. Alternatives to the general theory of the first amendment, the "schmooze" approach suggests, may require alternative forms of academic conferences and conference papers. Ludwig Wittgenstein famously observed, "(a) philosophical problem has the form: 'I don't know my way about.'"4 Sometimes displacement is minor. Persons debating the fastest way to the University of Maryland typically know where they are, where they are going, and the various alternative routes. Civil libertarians debating whether a particular speaker has a right to champion the proletarian revolution agree that speech required more judicial protection than property5 and that speech may be prohibited, if prohibited at all, only if the speaker incited "imminent lawless action."6 On other matters, disorientation is severe. Teenagers contemplating life after high school may not know whether they want to go to college, whether they want to study engineering, or how to identify a good undergraduate engineering program. Civil libertarians debating whether cigarette advertising is constitutionally protecting may not agree on whether the matter concerns speech or property, on the constitutional justifications for state regulation, or on the constitutional benefits from protection. In both cases, confusion about appropriate frameworks generates confusion about the relevance and weight of evidence. Is a university in which faculty consistently win substantial grants one with highly productive professors or one that deemphasizes undergraduate education? Does a study demonstrating that commercials influence smoking decisions strengthen or weaken the case for banning Joe Camel? Traditional convention panels and papers work best when displacement is minor. The standard fifteen minute paper presentation practically assumes broad agreement between presenter and audience on general frameworks. Issues are confined to the application of well known models to a particular problem. Everyone knows the basic elements of a successful argument and what constitutes evidence for each position. The sole question for consideration is whether a conventional rhetorical strategy...

Re-sourcing the Self?

The aim of this article is to compare the theories of Isaiah Berlin and Charles Taylor with regard to the topic of freedom. I will argue that Berlin’s famous positive-negative distinction still serves an important purpose by maintaining a crucial tension within the concept of liberty. This tension allows ethical pluralism to be taken seriously instead of being covered up by ideological rhetoric. Berlin held that the implementation of positive liberty – defining the boundaries of true liberty – is always problematic. Taylor, however, tries to bypass the gap between negative and positive liberty by means of his concept of authenticity. I will argue that this notion is a sound descriptive term for an individual’s entrenchment in community, but that the normative appeal from authenticity amounts to a project of ‘re-sourcing the self’ which is ultimately rooted in an optimistic perspective on pluralism and multiculturalism. However, to the extent that there are indeed different communities with different values and different ways of being authentic, it is worthwhile to repeat the Berlinian Grundgedanke that human beings should cope with the inexorable and irreducible tragedy in moral life.

Maintaining Security within Borders: Toward a Permanent State of Emergency in the EU?

Freedom, wherever it existed as tangible reality, has always been spatially limited. This is especially clear for greatest and most elementary of all negative liberties, freedom of movement; borders of national territory or walls of city-state comprehended and protected space in which man could move freely. Treaties of international guarantees provide an extension of this territorially bound freedom for citizens outside their own country, but even under these modern conditions elementary coincidence of freedom and limited space remains manifest. What is true for freedom of movement is to large extent valid for freedom in general. Freedom in positive sense is possible only among equals, and equality itself is by no means universally valid principle but, again, applicable only with limitations and even within spatial limits. Hannah Arendt, On Revolution, 1963 Contemporary challenges to traditional concepts of security, and especially to distinction between internal and external security, has stimulated justifications across Europe for significant increase in practices involving intrusive surveillance, policing, and restrictive measures toward people in general. (1) In some instances, this change may have resulted in erosion of civil liberties, human rights, and rule of law. Therefore, practices implementing Schengen borders regime merit attention. The Schengen agreement of 1985 and Schengen Convention of 1990 that implemented it (2) were intended to establish, through an intergovernmental approach, (3) application of the principle of free movement of persons within European borders. (4) The Single European Act, which came into effect on July 1, 1987, by introducing article 14 into EC Treaties (formerly, article 8a), stipulated that European Community should adopt measures aimed at achieving a market without frontiers; that is, an internal market. Article 14.2 states: The internal market shall comprise an area without internal frontiers in which free movement of goods, persons, services and capital is ensured in accordance with provisions of Treaty. Thus, an internal market should consist of an area without qualitative or quantitative barriers in which free movement of persons, among other three freedoms of movement, should be ensured and fully respected under certain circumstances. (5) It is also important to recall that it was not until May 1, 1999, when Amsterdam Treaty came into effect, that Schengen became part of EU machinery (6) and section dealing with Schengen borders acquis (7) was incorporated within first pillar. A protocol annexed to Amsterdam Treaty finally integrated Schengen acquis into framework of European Union, including decisions and declarations adopted by executive committee established by 1990 convention. Looking at implementation by member states of some of measures adopted under Schengen regime, (8) however, different path has been taken from one carefully settled in EU Treaty (TEU) structure (9) as consequence of predominance of claims about need for security over claims about conditions of freedom. (10) In some instances, member states have unilaterally reintroduced border controls and checks on individuals, justified on grounds of special security concerns or state of emergency. Thus, not only has one of main goals of internal market, freedom of movement of persons, been undermined, but so, too, have other fundamental rights and freedoms provided at European as well as at international level. Additionally, categories of people affected by these restrictive policies cover not only those who qualify as third-country nationals or others, (11) but also EU citizens in general. …

Welfare and the constitution

Acknowledgments ix Preface xi CHAPTER ONE: Introduction: Every State a Welfare State 1 The Negative-Liberties Model of the Constitution 5 Every State a Welfare State? 8 Welfare: How Capacious the Term? 12 CHAPTER TWO: Charter of Negative Liberties: Arguments from Text and History 23 Is Positive Constitutionalism Ahistorical? 23 Welfare and the Framers 36 CHAPTER THREE: Negative Constitutionalism and Unwanted Consequences 42 The Slippery Slope in General 42 Does Welfare Constitutionalism Undermine Negative Liberties? 44 A Benefits Model and Liberalism's Private Sphere 53 Does a Welfare Constitution Reach Too High? 55 CHAPTER FOUR: Moral Philosophy and the Negative-Liberties Model 65 Is the Benefits Model Unjust or Unfair? 65 Is the Benefits Model Undemocratic? 68 Is the Benefits Model Antiliberal? 71 The Moral Philosophy of Positive Constitutionalism 77 Welfare and Moral Skepticism 79 Moral Philosophy and Intolerance 86 CHAPTER FIVE: The Instrumental Constitution 92 Some Formal Elements of the Instrumental Constitution 92 Welfare as an End of Government 96 Well-Being in America: A Hypothesis 100 What Constitutes Well-Being? 106 CHAPTER SIX: Is the Constitution Adequate to Its Ends? 118 Welfare and Power: Structure and Context of the Question 119 The Constitution's Formal Adequacy 122 Welfare and the Courts 142 Index 157

Selection Effects in Constitutional Law

The standard consequentialist analysis of constitutional law focuses on the incentives that shape the behavior of government officials and other constitutional actors. Incentive-based accounts justify elections as a means of constraining officials to promote the public welfare, or at least the welfare of the median voter; justify the separation of powers as a means of making ambition counteract ambition; justify negative liberties, such as free speech and free association, as a necessary corrective to incumbent officials' incentives to suppress political opposition; and so forth. In this experimental essay I offer a preliminary sketch of a different way of looking at constitutional law generally and constitutional structure in particular: through the lens of effects. Constitutional rules, on this account, should focus not only on the creation of optimal incentives for those who happen to occupy official posts at any given time, but also on the question which (potential) officials are selected to occupy those posts over time. Where an incentive analysis is short-term and static, asking only how legal rules affect the behavior of a given set of officeholders, selection analysis is long-term and dynamic, asking how legal rules themselves produce feedback effects that, over time, bring new types of government officials into power. This turn to selection-based analysis yields fresh insight into the dynamics of constitutionalism. Because constitutional rules affect the pool of potential and actual officeholders, as well as the behavior of current officeholders, focusing on selection effects shows that some constitutional rules prove self-stabilizing: the rules tend to select a corps of officeholders who will act to uphold and stabilize the rules themselves. Other constitutional rules, by contrast, prove self-negating: the rules tend to select a corps of officeholders who work to undermine or destabilize the rules themselves. This framework supplies insights into diverse areas of constitutional law and theory, ranging from governmental structure, campaign finance and voting rights to criminal sentencing, free speech, and affirmative action.

The Future of American democratic politics: principles and practices

Even before the terrorist attacks of September 11, 2001, political scientists were assessing changes and continuities in the principles and practices of American democracy. Recent events, including the passage of the U.S. Patriot Act and the current debates about civil liberties versus homeland security, intensify the need to examine the long-term viability of democracy. In this book, fifteen major scholars assess the current state of American democracy, offering a spirited dialogue on the future of democratic politics. Contributors focus on three principles fundamental to democracy-equality, liberty, and participation. They examine these principles within the context of the basic institutions of American democracy: Congress and the state legislatures, the president, political parties, interest groups, and the Supreme Court. They raise questions regarding the checks and balances among formal governmental institutions (with the contributors sharing concern over the fading power of the legislature and the increased power of the executive and judiciary) as well as the role of political parties and interest groups. Topics discussed include: the incomplete mobilization of the electorate, the debates over campaign finance reform and term limits, the Supreme Court's activist role in the Florida recount, the dangers of teledemocracy and state initiatives, the separation of political participation from residential location, identity politics, the clash of negative and positive liberty, and the prospects for personal freedom in an era of terrorist threats. This timely collection covers the issues relevant to the future of American democracy today not only for lawmakers, students, and historians, but for any concerned citizen.

The &amp;quot;New Property&amp;quot; Theory of Welfare Rights: Promises and Pitfalls

The "New Property" Theory of Welfare Rights:Promises and Pitfalls Elizabeth Bussiere (bio) While always central to the U.S. liberal lexicon, the idea of security has loomed very large in political discourse since 9-11. The destruction of national landmarks, coupled with a faltering economy, has aroused a foreboding sense of insecurity even among the solidly middle class. Yet it is the poor who are the most vulnerable. A recent study should give pause to those who advocate stiffening the work rules under the Temporary Assistance for Needy Families (TANF) program. Increased numbers of children are living in households without either parent, a disconcerting development given that TANF was touted as a means of strengthening families. The "stresses of the new welfare world — loss of benefits, low-wage jobs at irregular hours and pressure from a new partner needed to pay the rent" contribute to family break-up.1 Ironically, some TANF recipients' plights have deteriorated because of their own dogged efforts to be conscientious employees. In August 2002 a New York City mother was charged with neglect and lost custody of one of her children after she had gone to her welfare-to-work job at the city's human resources office, leaving her kids with their substance-abusing father. The mother was at work when one child injured himself while the drunken father slept.2 The heightened sense of physical insecurity compels Americans to rethink the principles of our social contract. This essay provides an analysis of the "new property" theory of Charles A. Reich, a Yale University law professor during the 1960's whose theory about insecurity influenced poverty lawyers and Supreme Court justices. Originating in the McCarthy era, Reich's ideas have added resonance for those uneasy about the war on terrorism. In the mid-1960's Reich published two prominent articles advocating that all government benefits, including professional licenses and welfare grants, be reconceptualized as "new property." The fragile "boundary" between the individual and the State needed strengthening to provide the citizen a safe haven from government authority. Since private property was the functional equivalent of a secure "island," Reich sought to convert "government largess" into "new property" rights. While the catalyst for his theory was government's suppression of political dissent, later Reich became aware of other government excesses, e.g., government-sanctioned "midnight raids" designed to catch welfare mothers having out-of-wedlock sexual relations.3 Reich's explanation of the new property theory is suffused with the classical liberal language of "negative liberty" — the freedom of the individual to act unencumbered by political restraints. The Supreme Court incorporated Reich's libertarian language into its Goldberg v. Kelly decision in 1970, requiring government to provide pre-termination hearings to welfare recipients.4 [End Page 1] [Begin Page 4] Yet, as Gregory Alexander's essay reveals, Reich's new property theory contained a conception of "positive liberty" encompassing a right to subsistence. Holding that the poor's subsistence rights flow from their "rightful share in the commonwealth," Reich argued that the U.S. welfare state could never assure individual "well-being and dignity" without providing a "vested legal right" to public assistance. Government had a duty to respect both the negative rights under the Constitution's Due Process clauses and a positive, substantive right to welfare assistance, which he viewed as codified in the Social Security Act of 1935. Unlike Professor Alexander, however, I maintain that Reich's new property theory contained ideological contradictions that undermined a positive theory of welfare rights. Nevertheless, I conclude that Reich's ideas deserve reexamination today because he grappled seriously with a set of circumstances that is eerily familiar today. The Political Contexts of Charles A. Reich's "New Property" Theory Reich's new property theory originated as a civil libertarian reaction against the abuses of government authority during the McCarthy era and the wide discretion that had accrued to bureaucratic officials since the New Deal era. While a law clerk to Supreme Court Associate Justice Hugo Black, Reich thought about recasting property rights in order to give greater protection to civil liberties. Barsky v. Board of Regents, in 1954, was a pivotal case for Reich. Dr...

Liberty and Respect in Child Protection

The paper begins by introducing Isaiah Berlin’s concepts of positive and negative liberty and the application of these concepts to child protection. There is discussion of some recent debates on the social and political context of state social work and child protection in particular. The authors then consider, in turn, the experience of children, parents and social workers in the child protection system. There is also a consideration of partnership and rights. The conclusion is that opportunities for statutory child protection to be liberating are limited, but that there is more potential than the most pessimistic accounts might allow. Rather than libertarian child protection, social workers can aim for child protection practice that is respectful. The paper concludes with some principles for respectful practice, based on the ideas of Richard Sennett. Most importantly, Sennett’s ideas recognise the importance of relationships in social welfare and acknowledge the context of inequality within which social work takes place.