'Freedom of Association: It's Not What You Think' by Kimberley Brownlee in (forthcoming)
Oxford Journal of Legal Studies comments that
associative freedom is not what we tend to think it is. Contrary to standard liberal thinking, it is neither a general moral permission to choose the society most acceptable to us nor a content-insensitive claim-right akin to the other personal freedoms with which it is usually lumped such as freedom of expression and freedom of religion. It is at most 1) a highly restricted moral permission to associate subject to constraints of consent, necessity, and burdensomeness, 2) a conditional moral permission not to associate provided our associative contributions are not required, and 3) a highly constrained, content-sensitive moral claim-right that protects only those wrongful associations that honour other legitimate concerns such as consent, need, harm, and respect. This paper also shows that associative freedom is not as valuable as we tend to think it is. It is secondary to positive associative claim-rights that protect our fundamental social needs and are pre-conditions for any associative control worth the name.
Brownlee argues that
Freedom of intimate association with family members, friends, and acquaintances is not what we tend to think it is. It is not, as John Stuart Mill thinks, ‘the right to choose the society most acceptable to us’. Nor is it, without significant qualifications, what the US Supreme Court describes as the protection of our choices to enter into and maintain certain intimate human relationships as a fundamental element of personal liberty. Nor does it entail in any general sense the right to exclude. Contrary to these standard liberal positions, intimate associative freedom is neither a general moral permission to associate or not as we wish nor a content-insensitive moral claim-right that protects us in behaving wrongly when we do so. Both as a permission and as a claim-right, associative freedom is highly constrained and content-sensitive. As such, it differs from the other personal freedoms with which it is usually lumped such as freedom of expression and freedom of religion, which are largely content-insensitive claim-rights that do protect us in behaving wrongly within their domains.
Associative freedom is also not as valuable as we tend in liberal societies to think it is. Although considerable associative control is necessary for self-respect, wellbeing, and the cultivation of judgement, nevertheless it is not the most important associative right we have. Our fundamental associative interests ground more important positive claim-rights. These are, first, the right to have intimate associates (not necessarily of our choosing) during periods of abject dependency and risk of abject dependency and, second, the right to have minimally adequate opportunities to cultivate intimate associations when we are not abjectly dependent. These positive protections are necessary pre-conditions for any meaningful associative freedom worth the name. As such, they not only limit our moral permissions to associate or not as we please, but also trump our moral claim-rights to refuse to associate. Appropriate state institutions cannot fully guarantee these positive protections because, first, it is part of the nature of intimate associations that they tend to require more investment, care, and persistence than state provisions can secure and, second, such institutions are hostage to people’s willingness to perform their functions. But, of course, state institutions can go some way to filling basic associative gaps, and can do much to assist (or impede) people in carrying out their personal associative duties.
