Conclusion: a reckoning. Liberty used to be defined as absence of dependence. Nowadays it is usually defined as absence of restraint. But the underlying aim of this book has been to establish that there are several reasons for thinking that the ideal of liberty as independence is to be preferred. We gain from it a better sense of how the mere fact of living in subjection -- whether or not we are restrained -- takes away our liberty. We also gain from it a more helpful way of thinking about fundamental rights. Rather than conceiving of them as universal moral claims, there may be good reasons for preferring to think of them as the creation of specific independent communities. Above all, the ideal of liberty as independence helps us to see the importance of cherishing the value of autonomy in relationships between states as well as individual citizens. It is difficult to see how the requirements of justice can be met in the absence of a commitment to the ideal of liberty as independence.

INTRODUCTION. When and why did it come about that one prevailing way of understanding what it means to be free was replaced by a strongly contrasting account that came to be no less widely accepted, and still remains dominant? The argument of the book is that, in Anglophone political theory, the change happened quite suddenly in the closing decades of the eighteenth century. Before that time it was generally agreed that what it means to be free is that you are not subject to, or dependent on, the arbitrary will and power of anyone else. Liberty was equated with independence. But by the early nineteenth century it had come to be generally accepted that liberty simply consists in not being restrained from acting as you choose. What prompted the change, the book argues, was not the imperatives of commercial society, as has often been argued. Rather it was a growing anxiety, in the face of the American and French Revolutions, about the democratic potential of the ideal of liberty as independence.

The freedom and power of citizens was buttressed by the exclusionary effects on non-citizens. My reading of Apollodoros’ Against Neaira ([Dem.] 59) in Chapter 5 exemplifies the practical results of the ideology of freedom on all levels of Athenian society. The case calls into question the limits of citizenship and demonstrates how a status transgression can impair the jury’s own power. The prosecution speech alleges that Neaira, a resident foreigner, is guilty of pretending to be a citizen. As a foreign, female sex laborer, Neaira represents the antithesis of the model citizen. Neaira’s arrogation of citizenship privileges, however, gives her a measure of positive freedom and power. In contrast to other readings, I show that power struggles are crucial to analyzing the prosecution’s arguments. The prosecution attempts to show that instead of doing “whatever she wishes,” Neaira deserves to be subject to others doing “whatever they wish” to her. Apollodoros’ characterization of her transgressions as destabilizing citizenship indicates the centrality of autonomy and power to citizen identity. Hence, the importance of positive freedom was not simply theoretical, but practical.

Born of a critical moment in Australia’s social and political history, the Aboriginal Land Rights (Northern Territory) Act 1976 is a vestige of earlier attempts to grapple with Aboriginal rights and restitution. The Act has led to the restitution of large stretches of land and coastal areas in the Northern Territory and has a history of implementation in a relatively consistent policy setting. For many Aboriginal groups, the era of seeking rights under the ALRA has transformed into one of self-management of Country and the seeking of economic and cultural futures for younger generations of Aboriginal landowners. For the first group to lodge a claim under the Act in 1976, the Yanyuwa (and including Binbingka, Garrwa and Mara claimants) in the southwest Gulf of Carpentaria, their story now stretches over four decades. This chapter accounts for existing Indigenous Laws in relation to lands and waters in the Gulf of Carpentaria, norther Australia. These Laws co-exist with white Australian law and have found themselves entangled in the context of an Aboriginal Land Claim. Yanyuwa culture and Law have not been obliterated by legislative land rights nor the legal fight it entails. In fact, many aspects of Law and culture have been assured through the act of generational knowledge transfer that is demanded as an evidentiary mandate, and due to the intense scrutiny of knowledge that must be displayed during the process of land claim hearings.

This chapter is largely devoted to commenting on the other contributions to the volume.An attempt is made to evaluate the arguments and criticisms brought to bear by each contributor on the project of defining civil liberty not as absence of interference but rather in neo-Roman terms as absence of more general conditions of subjection and dependence. The chapter opens with an exposition of the neo-Roman theory, focusing on its articulation in Roman and common law traditions of thinking about the law of persons and related arguments about ‘fundamental’ rights and liberties. The chapter next defends the distinctiveness and coherence of the neo Roman approach against a number of objection that have been raised against it. The chapter ends by reflecting on how the re-appropriation and development of a neo-Roman perspective might help us to think more fruitfully about some current threats to privacy and democracy as well as individual liberty. This concluding section focuses particularly on threats stemming from increasing surveillance and other silent exercises of power.