Ripstein’s understanding of Kant’s
argument for the State’s involvement through public action is based on
obligation to “equal freedom.” Ripstein begins by critiquing understandings of
public action by the state that focus on such actions as a balancing of
competing interests. For Ripstein’s Kant, the state can build roads not because
they are balancing the interests of liberty and safety, but because they state
builds roads as a means of protecting every member’s equal freedom from private
intrusion by another: “Public terms of access to roads are just structural
features of public guarantees that there will be no private terms of access to
other persons” (250). In short, public roads solve the issue of one being
reliant on one’s neighbors to interact with other people. They allow the
voluntary interactions that are so important to contract theory to remain
voluntary and free, not subordinate to someone else’s desires: they continue
the “rightful condition.”
Ripstein notes, though, that the
members of society must also balance the fact that the roads are designed to
protect the individual members freedom with an obligation to not prevent anyone
else from using the public space. In many ways this seems a similar argument to
basis of the roads in the first place: no one person’s actions should be able
to limit another’s freedom. Ripstein lists some acts that Kant argued violated
this agreement originally that still hold today like begging and large noisy
public crowds, and notes “these examples all occur in public spaces. Their
universal practice would make those spaces unavailable to the public, or impede
public use of the space” (263). Only actions that privately appropriate the
public space, though, are an issues according to Ripstein’s Kant and one’s
opinion of actions that don’t hurt the “rightful condition” should be
acceptable: “The fact that I do not like or approve of what you do in public
plays no part in the analysis, no matter how upsetting I might find your
conduct” (264).
This raised an interesting thought
in my head: what would he say about public nudity? The argument against begging
or prostitution was that it involved a privately motivated action that prevented
another individual from using the road as they wished because the beggar or prostitute
(male or female) would block the way while soliciting what they sought. Could public
nudity, or other things that we currently consider unfit for public display for
that matter, be rightly banned under this model? I would think not.
This is an interesting post, and I think you've identified all the most relevant passages. I am also inclined to think that Ripstein would be fine with public nudity, but I have one major reservation. From my first reading, it seems as if the Kantian account articulates "a principled account of the basis and limits of the police power," but that this merely constitutes the most basic elements the law should address. In this picture, the decisions of a "competent public authority" could create additional laws, such as laws regulating public nudity. However I'm not sure how that fits into the discussion about begging and prostitution, and I'm still trying to figure out how large a role this public authority plays in his scheme. Regardless, I think there are some clues on the final two pages of the reading.
ReplyDeleteRipstein does acknowledge that traffic laws seem “pointless from the point of view of harm,” and I do agree that theoretically Ripstein could find no issue with nudity, but I think that in practical implementation, public nudity would still be illegal under this system (250). As Mo pointed out, public authority would have the ability to implement rules to regulate public rights of way. Ripstein acknowledges, “the public authority, acting on behalf of everyone, is entitled to decided how to provide roads, and what terms of use to specify” (262). Thus, while it is irrelevant whether to Ripstein whether nudity causes me harm, if the public authority deems it an inappropriate use of public lands and deems that it interferes with the rights of “private citizens coming and going as they please, making use of the road,” it could still be condemned under this system.
ReplyDeleteAlso, in footnote 38, Ripstein acknowledges public prostitution in another similar case. In this case he does not condemn the "offenses against public morals," but rather the fact that this instance is public and thus "interferes with the right every citizen has to access to public spaces" (264).
Interesting post, and interesting comments. Ellen is right that public authority is entitled to decide what terms of use to specify for roads. But remember that the mandate of public authority is limited to securing the conditions of equal individual freedom. So the question should be whether public nudity violates the terms of equal individual freedom. Does it? If, for example, children have difficulty coping with public nudity, and risk being disturbed or traumatized, might limits on public nudity be justified as securing the equal individual freedom of the children among us? There may also be other reasons arising from securing the conditions of equal individual freedom for limiting public nudity.
ReplyDelete