Book Review: Positive Freedom and the Law

Positive Freedom and the Law by Kim Treiger-Bar-Am, a legal academic in Israel.

In Western thought, the notion that freedom is merely the right to be left alone is inescapable. This book seeks to explore the alternative conception of freedom as a duty of respect toward the autonomy of others. To do so, it considers conceptions of freedom in both Kantian philosophy and Jewish thought - two schools that represent underpinnings of Western law and thought. Through this perspective, the book considers the property right and right of expression surrounding copyright. The book posits the notion that modern communication has transformed readers and users into subsequent authors, calling for a re-examination of copyright law in the 21st century through a lens of freedom as a duty of respect. 

The work is divided into two parts. 

Part one outlines these two schools of thought, and how they relate to form a conception of freedom deriving from a duty of respect to others. Part two employs the conception of freedom outlined in the first part to analyze two intersections of expression and the law: the rights and duties of authors in copyright and the controversy surrounding women's prayer at the Western Wall. 

After the introduction, which provides excellent footing for one without prior experience in philosophical academics, a discussion of purported points of conflict between the two schools of thought is provided. Chapter one challenges the readers understanding with regards to the relationships between universality and particularity, reason and faith, and autonomy and heteronomy. This discussion serves to both legitimize the analysis of the two together, but also exposes their agreement on the relationship between freedom and obligation.

Chapter two explores the Kantian view of autonomy, deriving from it an "ethic of care." The book contends that the respect for the autonomous being carries along the respect of the autonomous agent for the dignity and autonomy of others. Chapter three considers autonomy from the perspective of Jewish thought. Relating the concepts of free will and ethics (also discussed in the terms of "covenant"), it elucidates the concept that freedom enables obligation (adherence to ethics), which in turn fosters freedom. This is reflected in the coming of age ceremony, bar mitzvah (literally "bearer of covenants") in which the rise of both the independence and obligations of adulthood are celebrated.

Chapter four coalesces these two schools, deriving the concept of positive freedom as a duty of respect arising from obligation. The chapter outlines the concept of respect in both schools as an affirmative concept evident in deeds, intent, and compassion. In Kantian theory, the autonomy of all calls for the dignity of all, necessitating respect toward others. In Jewish thought, God enacts the dignity of all through the unity of creation, thus commanding respect toward others. The unity of these schools of thought provides the lens through the book considers expression in part two.

Part two begins with a discussion of authorial expression and copyright in Chapter five. The dichotomy in the principles underpinning copyright law between the incentive model of the UK and US and the moral rights model of the Berne system is explored; the incentive model is dubbed instrumental while the moral rights model is framed as deontological. Rather than contrasting these models, the chapter considers a symbiotic relationship between the two, allowing for an analysis of copyright law through the perspective of positive freedom. 

The chapter continues with a discussion of the expressive ways that readers and "users" interact with original expression. For instance, today, news articles are not merely read but commented upon by the readers. Similarly, the book contends that the internet and social media have promoted a culture of sharing, conversing, and transforming original expression such that what was the audience has become a series of authors as well. With this in mind, the positive conception of freedom allows for a re-examination of copyright which is more attuned to the current reality: freedom of expression necessitates a duty of respect both toward the original author from the public, but also from the original author toward subsequent authors. 

The book is incredibly well-researched, offering an alternative perspective to the view of negative liberty that pervades our legal cultures. The analysis covers complex philosophical concepts in an approachable way. The book is written in quite a readable fashion and carries the reader through a journey of rewarding and worthwhile considerations. 

Hardback ISBN: 9780367137861 - £120.00
eBook ISBN: 9780429276668 - £22.50

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