Issue #17 March 2006

Book review:
Active Liberty

by Michael Tiemann

Pericles is quoted as telling his fellow Athenians "We do not say that the man who fails to participate in politics is a man who minds his own business. We say that he is a man who has no business here."

In the book "Active Liberty", Supreme Court Justice Stephen Breyer provides a short and insightful explanation of how he understands one of the great documents of democracy today, the U.S. Constitution. If you have read "Code And Other Laws of Cyberspace" by Lawrence Lessig, you probably already know that when it comes to constitutional interpretation there seem to be two major schools: those who believe that every new question of law today must be force-fit into the world that was current when the constitutional text was created (textualists, literalists, and/or originalists), and the other school that believes that the question is best answered by understanding the intentions of the text and applying them to the question as it appears in the modern era. And as Lessig shows so well in Code, neither answer is particularly satisfying when legal questions that arise in the virtual world--a world never contemplated by any constitutional convention--must be adjudicated in a constitutional court.

Breyer clarifies the logic of these two perspectives by focusing on what he believes to be the key animating and sustaining force of the U.S. Constitution: Active Liberty. The French Revolution was somewhat contemporary with the early days of the American Constitution, and the paths taken by France and America in those early days highlighted the difference between power that came from liberty (American-style Democracy), and liberty that came from power (which descended into the Reign of Terror). Breyer writes that Active Liberty consists of a sharing of a nation's sovereign authority among that nation's citizens.

I see a deep parallel between Breyer's notion of Active Liberty and my own understanding of Free Software. And I see a deep parallel between his other interpretations of liberty and my own understanding of Open Source. And Breyer's forceful simplicity reminded me that there is a fundamental understanding about both free and open source software that is too often forgotten: the active role that the user can and should play as a citizen in a world increasingly governed by technology.

Citing Benjamin Constant, a French political philosopher writing 30 years after the adoption of the U.S. Constitution, Breyer elaborates "[f]rom the citizen's perspective it meant 'an active and constant participation in collective power.'". Breyer goes on to quote Constant as saying "[The sharing of sovereign authority] enlarged [the citizens'] minds, ennobled their thoughts, [and] established among them a kind of intellectual equity which forms the glory and the power of a people." If Constant were alive today, he would recognize the GNU Manifesto as Active Liberty for the software world.

However, Breyer also points out that Active Liberty is susceptible to creating a new tyranny: the tyranny of the majority. The freedom to pursue one's own interest and desires free from improper government interference is a modern concept, and one that Breyer calls Modern Liberty. Again citing Constant, Breyer writes "[a] society that overemphasizes modern liberty runs the risk that citizens, 'enjoying their private independence and in the pursuit of their individual interests, [will] too easily renounce their rights to share political power. [We must] learn to combine the two together.'" Both proprietary software and certain Open Source licenses provide the freedom to remove software from the intellectual equity that forms the glory and the power of a people, and instead keep it glory and power for just one party.

My biggest complaint with the mainstream press is that they comprehend the Open Source movement, and Free Software in particular, only from the perspective of individual liberty: how does it affect the individual's interest divorced from any question of larger public purpose? How does the purveyor of Open Source make money? How do their investors cash out? How do customers get the support they need? Why would any rational developer contribute to the public good without some guarantee of renumeration? And the more questions they ask, the more they tend to believe that the questions themselves demonstrate the weakness of the model.

Of course, they are free to have whatever perspective they like, but to me, they are reporting at most half of the truth, the half of pure self-interest. And by ignoring the aspect of Active Liberty, the public sharing of technological power that is at the core of the Free Software movement, they are actually misrepresenting the subject to their audience. And as Breyer so elegantly shows, this misrepresentation is not limited to the world of software. Our constitutional democracy itself is being eroded by a public too interested in their private worlds.

When companies talk about democratizing technology or democratizing content, do they believe this happens by simply making it easier to buy? Does it mean controlling channels of distribution so that it's impossible to avoid? Or do they mean standing by an underlying principle so that all who would be citizens of the newly democratized world have the full rights and expectations to be active participants, thereby creating glory and power for themselves as individuals and themselves as a people? That is the message, the mission, and the sustaining force of the Free Software movement. And perhaps the greatest triumph of Free Software will be to reacquaint the People with a sense of Active Liberty strong enough to affect not only how they think about software, but how they think about Democracy itself.

More information

Breyer rebuts 'originalist' in Tanner Lecture, Harvard Law School website

About the author

Michael Tiemann has been asking questions about the commercial aspects of free software since 1987 and has been (reluctantly) giving answers since 1989. Michael signed the first commercial contract for free software development in 1991 (with a large company in Sweden), made his first international commercial tour in 1994 (visiting 9 countries in Europe in 21 days), and made his first of more than two dozen trips to Asia in 1996. Last year Michael flew over 250,000 commerical miles, talking about open source in addition to free software. He is Red Hat's VP of Open Source Affairs and President of the Open Source Initiative.