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  • Loren E. Lomasky (a1)

Individuals care deeply about with whom they associate and on what terms. A liberty to avoid entanglement in the disfavored designs of others is counterposed by an entitlement not to be excluded from valued modes of activity. These interests generate not one but two freedoms of association, the former negative and the latter positive. Often they conflict. This essay begins by setting out several respects in which negative free association is crucial to a liberal order and then examines several pleas for positive association, at least one of which is judged to be compelling. Because the two freedoms of association are in conspicuous tension, the essay concludes with strategies for reconciling their competing claims.

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1 See Marx Groucho, Groucho and Me (New York: Da Capo Press, 1995). I have been unable to find any evidence that Marx was an influence for Yogi Berra's assertion, “No one goes there nowadays, it's too crowded.”

2 The Fifth Amendment protection against compelled self-incrimination is a related species of the liberty to withhold speech.

3 See, for example, Adam Smith's denunciation of the law of settlements that restricted the occupational mobility of would-be workers: “To remove a man who has committed no misdemeanour from the parish where he chuses to reside, is an evident violation of natural liberty and justice…. There is scarce a poor man in England of forty years of age, I will venture to say, who has not in some part of his life felt himself most cruelly oppressed by this ill-contrived law of settlements.” Smith , The Wealth of Nations I.x.c (Indianapolis, IN: Liberty Press, 1981), 157.

4 Among the many pleas on behalf of women's liberty to dissociate, see Wollstonecraft Mary, A Vindication of the Rights of Woman (New York: Penguin Classics, 2004); and Mill John Stuart, The Subjection of Women (New York: Dover, 1997).

5 The phrase is Adam Smith's. See The Wealth of Nations I.ii, p. 25.

6 Secure control over one's body and labor are also requisite for independence. John Locke and other classical liberal theorists tend to amalgamate these as forms of property.

7 Thomas Hobbes, Leviathan, chap. XIII, “Of the Naturall Condition of Mankind as concerning their Felicity, and Misery.”

8 Locke John, Second Treatise, in Locke, Two Treatises of Government, ed. Laslett Peter (Cambridge: Cambridge University Press, 1988), sec. 13.

9 Both Adam Smith in The Wealth of Nations and J. S. Mill in On Liberty are insistent on this point.

10 Schumpeter Joseph, Capitalism, Socialism, and Democracy (New York: Harper, 1975), 82.

11 Cowen Tyler, What Price Fame? (Cambridge, MA: Harvard University Press, 2000).

12 Universal, that is, relative to the civil order in question. Pending the success of cosmopolitanism, multiple universalisms are the only ones on political offer.

13 “When the Vanquished, to avoyd the present stroke of death, covenanteth either in expresse words, or by other sufficient signes of the Will, that so long as his life, and the liberty of his body is allowed him, the Victor shall have the use thereof, at his pleasure.” Hobbes, Leviathan, chap. XX, “Of Dominion Paternall and Despoticall.” Locke also extends the bounds of consent by an expansive understanding of what constitutes an act of tacit consent.

14 Kant Immanuel, Metaphysics of Morals, in Kant: Political Writings, ed. Reiss Hans (Cambridge: Cambridge University Press, 1970), 137–38; emphasis added.

15 The nature of the “self” in question, and its determinations, are admittedly among the more opaque subjects in all of political philosophy.

16 The term is Glendon Mary Ann's from her book Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 2004).

17 See, for example, Taylor Charles, “Atomism,” in Avineri Shlomo and de-Shalit Avner, eds., Communitarianism and Individualism (New York: Oxford University Press, 1992), 2950; and Macpherson C. B., The Political Theory of Possessive Individualism (Oxford: Clarendon Press, 1962).

18 See, for example, Sandel Michael's critique of liberalism's “unencumbered selves” in Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), and MacIntyre Alasdair's invocation of communal norms in After Virtue (Notre Dame, IN: University of Notre Dame Press, 1981).

19 Rawls John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 102. It is worth observing that in the revised edition of the book, this sentence is excised.

20 The most noteworthy social capital evangelist is Robert Putnam. See Putnam , Making Democracy Work: Civic Traditions in Modern Italy (Princeton, NJ: Princeton University Press, 1993), and, especially, Putnam , Bowling Alone (New York: Simon and Schuster, 2000).

21 Rabbi Schwartz is listening to the complaints of two feuding congregants. The first man explains why the other guy is in the wrong, and the rabbi responds, “You're right!” Then the second man presents his case and the rabbi says, “You're right!” Then a third man who was standing nearby asks, “Rabbi, they're at odds, so how can they both be right?” Rabbi Schwartz scratches his chin, thinks for a while, and then turns to the third man and says, “Yes, you're right, too!”

22 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

23 Plessy v. Ferguson, 163 U.S. 537 (1896).

24 But see note 25.

25 These points apply equally to statutes (such as the Civil Rights Act of 1964) outlawing discrimination by private parties with regard to hiring, access to hotels, restaurants, and other public accommodations, and so on. It is very difficult to justify these as applications of compensatory justice because the parties on whom the associational constraints fall are typically not those responsible for prior patterns of injustice. However, insofar as these mandates are reasonable prescriptions for addressing the kinds of social distemper that jeopardize civic peace, they may be justified.

26 A partial exception to this generalization is the passage in 2007 by Utah's legislature of a means-adjusted universal voucher program. As this essay is being written, implementation of the program remains blocked by opponents who have gathered signatures sufficient to force a referendum. See Stoltz Martin, “Voters Will Decide on Voucher Program,” New York Times, May 15, 2007, (accessed August 15, 2007).

27 I speak of cartel rather than monopoly because there is significant diversity among K through 12 educational services providers. Both within and among states, there exists a plethora of more or less independent school districts that parents “buy” via their residential choices. Private and parochial schools are also at liberty to compete for patrons, but they do so from a position of acute disadvantage against state-supported competitors that price their services at a marginal cost of zero to the consumer. Parents are not forbidden to exit, but they must pay a steep price to do so. Many who might wish to opt out of the public schools lack the financial means to do so. Moreover, ubiquitous governmental regulation imposes further constraints on alternative providers and on parents. Positive freedom of classroom association in state schools is, then, not mandatory, but people's choices are very much tipped in that direction by current educational policy.

28 A typical statement: “The American public still stands behind their public schools and their local school board according to the 39th Annual Phi Delta Kappa/Gallup Poll of the Public's Attitudes Toward Public Schools. The majority of the public rate their local public school with an A or B. They also prefer that local school boards have the greatest influence in deciding what is taught in public schools.” See (accessed August 15, 2007).

29 So also do constraints on trade. I discuss these matters at greater length in “Toward a Liberal Theory of National Boundaries,” in Miller David and Hashmi Sohail, eds., Boundaries and Justice (Princeton, NJ: Princeton University Press, 2001), 5578.

30 See my essay Liberalism Beyond Borders,” Social Philosophy and Policy 24, no. 1 (Winter 2007): 206–33.

31 One such force was the “Know Nothing” movement of the 1850s, notable among other things for being the most aptly named political party in American history.

32 In response to an earlier draft of this essay, one reader protested: “Isn't the Post Office sufficient? We need to all share a loathing of an inefficient and uncaring national health system, like Britain's, to solidify waning solidarity? That doesn't make a whole lot of sense to me…. Everyone needs to be equally mistreated, subjected to endless waits, and denials of expensive or ‘experimental’ care?”

I confess to some sympathy with this denunciation. But the more accurate its depiction of the warts of national health care, the more puzzling becomes the overwhelming support in countries such as Canada and Great Britain for their systems of universal provision. Reforms are proposed from time to time, but fundamental revision or replacement is politically unthinkable. Why? The conjecture on offer here is that the perceived attractiveness of positive freedom of association possesses some measure of explanatory force.

33 See Musgrave Richard's entry “merit goods” in The New Palgrave: A Dictionary of Economics (New York: Macmillan, 1987), 3:452–53.

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