Functions of freedom: privacy, autonomy, dignity, and the transnational legal process.

• Author: Sourgens, Frederic G.
• Position: I. Introduction through III. Whose Freedom: States, Peoples, or People? A. States - Sovereign Equality, p. 471-505

"Freedom is just another word for nothing left to lose, Nothing don't mean nothing honey if it ain't free, now now." Janice Joplin, Me & Bobby McGee (1971) (1)

ABSTRACT

What is the function of freedom for the transnational legal process? This Article answers this question through the lens of the ongoing Ukrainian crisis and the deeply inconsistent international legal arguments presented by each side of the conflict. These inconsistencies suggest that criticism of international law as purely political pretense has merits. The Article shows that transnational legal process theory can account for and incorporate these facial inconsistencies and thus address the criticism leveled at international law. The

Article proceeds to develop a theory of freedom as a value that is internal to, and necessary for, transnational legal process. This theory of freedom relies not upon the classical liberal understanding of freedom as positive or negative freedom. Instead, it reconstructs freedom around the value of human dignity. The Article concludes that freedom as dignity is a central value of the transnational legal process and that the transnational legal process would cease to function in its absence.

TABLE OF CONTENTS I. INTRODUCTION II. THE PROBLEM OF FREEDOM: MIGHT, RIGHT, OR PROCESS A. When Realpolitik Meets Idealism--The Ukrainian Crisis B. Might--International Law as Realpolitik C. Right--International Law as Command D. Process--International Law as Balance III. WHOSE FREEDOM: STATES, PEOPLES, OR PEOPLE? A. States--Sovereign Equality B. Peoples--Self-Determination C. People--Individual Freedoms D. The Transnational Moment--People in Society IV. WHICH FREEDOM: PRIVACY, AUTONOMY, OR DIGNITY? A. Privacy--The Concept of Negative Freedom B. Autonomy--The Concept of Positive Freedom C. Dignity--The Concept of Civic Freedom V. CONCLUSION: FREEDOM AS THE END OF BALANCE I. INTRODUCTION

Just like rival armies from the Middle Ages to Modernity proclaimed that they fought for "God," rival groups in violent uprisings today claim that they fight for "freedom." (2) For instance, in Ukraine, pro-Western forces employ freedom to justify their ouster of an unpopular president; (3) pro-Russian forces invoke freedom to justify their ejection of regional and local governments unfriendly to their cause in Crimea and throughout Eastern Ukraine. (4) Obviously, the same God could not have supported rival sides in war. (5) Perhaps just as obviously, rival groups could not all have freedom on their side, either.

But freedom is not just a slogan. It is a principle invoked by states taking sides in these conflicts to legitimize the behavior of their local champions. (6) Problematically, it is invoked by the same states to support facially inconsistent actions. Thus, the United States and European Union use freedom to legitimize the formation of a government by pro-Western Ukrainian protestors following their ejection of a Pro-Russian President. (7) At the same time, the United States and European Union invoke freedom to condemn actions taken by pro-Russian groups to similar ends in Crimea and Eastern Ukraine as "undemocratic" and the result of "aggression." (8) Russia similarly relies on the concept of freedom and "independence" to support Crimean secession from Ukraine but deems the actions of protesters in Kyiv as inimical to freedom because they are "unconstitutional." (9)

Such apparently inconsistent use of a legal concept by rival sides in a geopolitical conflict highlights a core problem. When sophisticated superpowers like the United States and Russia each make arguments that on close inspection appear to defeat themselves, international legal argument appears little more than pretense. (10) Such exchanges make it look as if international law lacked a means to sort sense from nonsense--acceptable argument from preposterous proposition. (11) Critics of international law have long seized upon this perplexing quality of international legal argument. (12) They submit with some apparent force that international law simply cannot be used as a measure for assessing international behavior; international law is normatively bankrupt. (13)

As discussed in Part II, transnational legal process scholarship provides a means to refute this skepticism. (14) It shows that international law is not a formalist system, as the critique would tacitly suppose, but rather a synthetic meaning-generating process anchored in the norms and values of its participants. (15) As the wealth of transnational legal process scholarship explains, this synthetic process does not prefer any problem solutions because of their greater purity measured by reference to an outside axiom, or policy preference. (16) Instead, this web of problem solutions reflects the entire normative world inhabited by its participants. But this web remains a "legal" rather than a policy process because the web organizes this material in an inherently autonomous manner on the basis of the inductive strength of a proposed problem solution to the web of past legal problem solutions. (17) The apparent contradictions identified by a Koskenniemian critique thus do not speak to the futility of international law but are testament to its richness and vitality. (18)

Through the lens of transnational legal process, there is thus no facial contradiction in the positions taken by the United States and Russia with regard to the Ukrainian crisis. (19) Instead, the United States and Russia argue about which past problem solution the current situation most resembles. (20) In other words, both appeal to our store of cumulative historical experience rather than a purely scientific or metaphysical principle.

But Part II also concludes with a puzzling question: when current events force us to analyze the use of rivaling conceptions of freedom in international legal argument we have to ask does transnational legal process engage merely in strategies of evasion? (21) The fulcrum of the international legal critique is that international law is normatively meaningless because it lacks a value of its own. (22) In fact, transnational legal process theorists such as Harold Hongju Koh appear to concede as much when they reject theories that on their face import a single value or policy preference into the legal process. (23) Critics therefore appear free to argue that this renders transnational process arguments entirely dependent upon politics. (24) The current Ukrainian crisis painfully appears to illustrate their point: one's conception of freedom even as international lawyers appears to depend not upon our legal convictions but upon the side from which we perceive the conflict. International law then does in fact appear to be "singularly useless as a means for justifying or criticizing international behavior" in Ukraine. (25)

The Ukrainian crisis, and others like it, thus illustrates both the difficulty and the importance of the task ahead. To defend transnational legal process theory, one has to identify the value of the transnational legal process--what are scholars engaged in transnational legal process theory actually for? (26) Failing to answer that question makes transnational legal process theory little more than dress up for the foreign policy positions espoused by their respective governments. (27) As this was one of the problems the transnational legal process project sought to resolve, answering this question is of particular importance for the growing number of adepts of this school of thought. (28)

Given the international nature of crises like Ukraine, the first question is whether freedom applies only to states, or whether it reaches peoples or individuals. Part III begins its analysis by addressing this question. It notes that the United States and Russia each argue on the basis of fundamentally inconsistent subjects of freedom. At times, each argues that Ukraine (as a state) is free to discredit the actions of political dissidents. (29) At times, each argues that individuals are free in order to discredit the actions of the central government. (30) And at times, each argues that ethnic groups or peoples have a right to self-determination to trump the rights of both Ukraine and individuals living in Ukraine. (31)

As Part III explains, the transnational legal process accepts each of these facially inconsistent arguments as valid legal propositions. (32) This on its face means that the transnational legal process either completely lacks a concept of freedom--and accepts historically based arguments about freedom from any theory of historical importance for the development of international law--or that the transnational legal process can still overcome these deep inconsistencies. (33)

Part III provides a basis for reconciliation. Transnational legal process accepts that each of these arguments are relevant but does so through the lens of personal freedom. (34) Transnational legal process reconciles these competing positions because it views persons not as atomistic individuals but instead as citizens and members of a wide variety of communities. (35) Transnational legal process accepts arguments about the freedom of the state (i.e., Ukraine) and the freedom of peoples (e.g., ethnic Russians and ethnic Tatars) because they, too, reflect personal liberty. (36) A person living in a state that is occupied or otherwise coerced by its neighbor or is part of an oppressed ethnic minority sensibly should claim that he or she lacks freedom. In other words, the transnational legal process submits that there is tension because each person feels a similar tension or conflict when "Freedom," capital "F," is threatened. (37)

Part IV turns to the question of what this new-found personal freedom means. Traditionally, conceptions of freedom in political theory are defined as "positive" freedom (freedom to) (38) and "negative" conceptions of freedom (freedom from). (39) Part IV showcases how the United States and...