Individual freedom of thought and expression

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By Rafael Salatini*

In Western modern history, individual freedom was conquered only gradually, from a series of practical disputes (such as the civil revolutions of the XNUMXth and XNUMXth centuries, on the European continent, and the independence revolutions of the XNUMXth century, on the American continent) and philosophical (in which eminent intellectuals such as Pufendorf, Bayle, Spinoza, Milton and Locke, in the XNUMXth century, Constant, Voltaire, Montesquieu and Kant, in the XNUMXth century, and Fichte, Stuart Mill and Thoreau, in the XNUMXth century, to mention only some champions of freedom).

At the cost of a lot of blood, on the one hand, and a lot of ink, on the other hand, they crystallized – having the Charta Magna Libertatum (1215) as a first and magnanimous experience – in legal texts of the importance of Petition of Rights (1628), from Habeas Corpus Act (1679) and the bill of rights (1689), in the seventeenth century, from US Declaration of Independence (1776), the Virginia Bill of Rights (1776) and from Universal Declaration of the Rights of Man and Citizen (1789), in the eighteenth century, and Napoleonic Code (1804) and the Encyclical rerum Novarum (1891), in the XNUMXth century. Among the XNUMXth century charters that defend individual rights, we count the Universal Declaration of Human Rights (1948) ea American Convention on Human Rights (1978), to quote only the most general texts.

All these charters defend rights such as freedom of movement, freedom of thought, freedom of expression, freedom of faith, the right to private property, the right to enter into private contracts, the right to justice, etc. , in an immense list of rights, which, together, materialize what Constant called the “freedom of the moderns”, based on individual independence.

Benjamin Constant condenses these achievements in the following passage (which I quote in full, for its clarity): “Everyone has the right to submit himself only to the laws, not to be arrested, detained, condemned, or mistreated in any way. , by the effect of the arbitrary will of one or more individuals. Everyone has the right to express their opinion, to choose their work and to carry it out; from disposing of his property, even from abusing it; to come and go, without needing permission and without having to give an account of his motives or his steps. It is the right of every one to assemble with other individuals, either to discuss his interests, or to profess the worship which he and his associates prefer, or simply to fill his days and hours in a manner more consonant with his inclinations, with your fantasies. Finally, it is the right of everyone to influence the administration of the government, either by appointing all or certain officials, or by representations, petitions, claims, which the authority is more or less obliged to take into account. (Of the freedom of the ancients compared to that of the moderns, from 1818).

Among modern individual rights, freedom of thought and freedom of expression have a particular history. Defended in classic works such as the Areopagitic (1644) of Milton the Tractatus theologico-politicus (1670) of Spinoza and the Claiming freedom of thought (1793) by Fichte, gained its best-known defense in the article “Answer to the Question: What is Enlightenment?” (1784) by Kant, where one can read the following (another passage of unique clarity): “No doubt, there are those who say: the freedom to speak or to write can be taken away from us by a superior power, but not the freedom of think. But how much and how correctly would we think if we didn't, so to speak, think in communion with others, to whom we communicate our thoughts and they communicate theirs to us! Therefore, it can very well be said that the external power, which takes away from men the freedom to publicly communicate their thoughts, also robs them of the freedom to think: the only treasure that, despite all the civil burdens, we still have left and by which only a means can be created against all the evils of this situation”.

Like Spinoza, Kant argues that the main right that individuals have in the civil state, without which their existence, as the exercise of the free use of reason, is absolutely impaired, is the right to freedom of thought, to which they are opposed (the right to freedom of thought). ) civil coercion, (b) tutelary power and (c) heteronomy.

Under the first aspect, concerning civil coercion, freedom of thought requires, on the contrary, as conditio sine qua non, another freedom: the freedom to speak or write (which we would call today freedom of expression, present in article 5, IX, of our current Federal Constitution, which states that “the expression of intellectual, artistic, scientific and communication activities is free , regardless of censorship or license”). Freedom of thought refers to the private use of reason; while freedom of speech or writing refers to its public use. According to Kant, without the second freedom, the first can only develop incompletely and imperfectly, and therefore, in the end, the suppression of the second ends up constituting equally the suppression of the first.

Concerning tutelary power, the second aspect, Kant defends, on the contrary, freedom of conscience, especially with regard to religion, echoing the libels in defense of religious tolerance from the previous century (Locke) to his own century (Voltaire), for which he opposes the “formulas of faith prescribed and accompanied by the anguishing fear of the danger of a personal inquiry”, typical of religious tutelage, to the superiority of the rational arguments inherent to freedom of thought, attributed to religion (which we would call today freedom of conscience and of belief, present in article 5, VI, of our current Federal Constitution, which states that “freedom of conscience and belief is inviolable, the free exercise of religious cults being ensured and the protection of local of worship and its liturgies”).

In reference to the third aspect, heteronomy, finally, freedom of thought also requires the guarantee that the only laws that will be imposed on reason will be the laws of autonomy, that is, the laws imposed by reason itself (defended by the 1th-century philosopher ). Using a Roussian expression, Kant states that reason can only admit its submission “to no other laws than those that it gives itself”, which is nothing more than the legal translation of the principle of democracy. Which had also been enshrined in article 11, VI, of our current Federal Constitution, which states that “the Federative Republic of Brazil [...] constitutes a democratic State of law [...]”, among other 5 constitutional articles that mention the same principle (art. 17, XLIV; art. 23; art. 34; art. 90, VII, a; art. 91, II; art. 92; art. 2, IV, § 127; art. 194; art. 205, VII; article 215, VI; and article 1824, IV; in addition to Title V, which deals with “the defense of the State and democratic institutions”). In fact, the democratic principle was present in all Brazilian constitutions, both in the imperial constitution (of 1891) and in the republican constitutions, and both in the democratic constitutions (of 1934, 1946, 1988 and, as pointed out, the current one of 1824 ) how much – be amazed! –, in the autocratic constitutions (from 1937, 1967, 1969 and 5, and even – even more amazing! – in Institutional Act number 1968/XNUMX, which sought to ensure, in its preamble, the “authentic democratic order” !).

Concerning freedom of the press, which was already present in the Brazilian constitution of 1824 (in article 179, IV), and would be repeated in all the others, it is interesting to note, following Kant, its intrinsic relationship with freedom of thought itself, which consists of one of the most fundamental civil liberties (besides the freedom to come and go), without which the very exercise of being free, one of the most important ideals of modern political thought, eminently taking individual freedom as a reference, loses much of its meaning. its actual effect.

Whether we conceive freedom negatively, as a sphere of action independent of State interference (liberal conception of freedom), or whether we conceive it positively, as the principle of autonomy (democratic conception of freedom) – and in Kant we easily notice the confluence of the two conceptions, with a predominance of the second –, freedom of thought (private freedom) and freedom of the press and expression (public freedom) can only be thought of as belonging to the fundamental rights of modern individuals, who differ politically from the individuals of the past , in large part, precisely because they possess these fundamental and constitutionally guaranteed rights (remember the consternation with which Constant spoke of the “freedom of the ancients”, for which the individual mattered little, whether a common citizen or Socrates himself, unjustly condemned to death by poisoning). 

To return to the letters of law quoted above, concluding with examples taken from ex lex, remember (to keep only the most recent documents) that the Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (XIX); O International Covenant on Civil and Political Rights (1966) says: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print or in the form of art, or through any media of his choice” (III, 19, 2) ; and the American Convention on Human Rights states: “Everyone has the right to freedom of expression. This right includes freedom of opinion and freedom to receive or impart information or ideas without interference by any public authorities and regardless of frontiers” (10, 1). If one wants to list, finally, one more Brazilian constitutional article, it could not be other than article 220 of our current Federal Constitution, which categorically states that “the manifestation of thought, creation, expression and information, in any form , process or vehicle will not suffer any restriction”.

I started with Kant, I end with Kant (in his Critique of Practical Reason, 1787), in a passage in which both negative freedom and positive freedom are combined, pointing to a universal principle of freedom whose foundation is none other than morality, stating that “however that independence is freedom in the negative sense, while this legislation proper to pure reason and, as such, practical, is freedom in the positive sense", and that, "in this way, the moral law only expresses the autonomy of pure practical reason, that is, freedom, including in this the condition formality of all maxims, under which condition they can only coincide with the supreme practical law.

The concept that Constant will distinguish historically (the “freedom of the ancients” (collective) and the “freedom of the moderns” (individual)), at the end of the XNUMXth century, Kant had already substantiated, in the previous century, with the moral principle, which opposes from “autonomy” (consistent with the “freedom of the moderns”) to “heteronomy” (consistent only with the “freedom of the ancients”, which Kant considered despotic, for subsuming individuals), with all its legal effects, which the letters of modern and contemporary, national and international law, would only posit it, and, in the case of freedom of thought and freedom of expression, would only specify.

*Rafael Salatini Professor of International Relations at Unesp-Marília

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