Part II — The life the design leaves alone

8. What Nobody Has to Ask Permission For

People may learn, publish, believe or refuse belief, gather, research, make art, speak their own language, play sport, keep friendships, form associations and help their neighbours without first obtaining official permission. Public power bears the burden of justifying any restriction on these activities, and one person's freedom gives them authority over nobody else's association or cooperation.

The things power may not prescribe

The rules conclude ten limits on public power for Adam by name. Each forbids a kind of act against him: arbitrary interference with his privacy; coercion of his bodily choices; restriction of his movement without a supported ground; a decision with consequences for him made without review; forced association; prescribed expression; compelled conscience; a prescribed form of family; an unequal civic status; and prescription of his private or civic life. Personhood is the whole premise of each.

For Nell, whose record holds a birth entry and nothing more, these rules ask for nothing and forbid a great deal: the same limits follow for the child, who is also owed learning, expression, belief and company, each by the State, and the limits stand apart from those debts. Learning follows where a teacher teaches the child and the child hears; company follows from a matching receipt attested by an independent witness authorised for Nell. Expression and belief lie beyond any provider's power to certify, so the rules stay silent about what Nell says and believes. On the one-line record all four remain debts.

The limits bind public power directly and oblige public institutions to prevent, investigate and answer private interference; a private person owes another a direct duty only where a rule names one. A limit on prescribed expression is a different thing from a recorded voice. Each limit forbids an act; whether a public body committed one needs its own evidence.

When a restriction may be made

A public body that wants to narrow one of these activities must first have a reviewed restriction in force in one of ten named fields, which together cover the activities above; a record naming any other field completes nothing. The ground must be an evidenced harm to someone's rights or to the commons, and those are the only two; the record names offence, disagreement and an official view of the truth as outside it. The record must also show that the least restrictive means that would work was considered. The restriction must define the activity it reaches and the people it affects, give public reasons with accessible notice, provide independent review with a challenge that suspends it during that review, stay neutral as to viewpoint, belief and identity, leave activity beyond its reach free of prior permission, certify nothing about truth, taste or creative merit, and name its end. It restricts conduct or sets a condition on access.

Three separate attesters must record every element identically: a source, an independent evidence authority and an independent reviewer, each distinct from the restricting body. If two of them disagree on an element that takes one value, the restriction stays incomplete. A responding office hears challenges, with an independent alternate behind it; both stand apart from the attesters, from each other and from the restricting body. While the record is current, the restricting body holds authority for that restriction and must publish its reasons and evidence, and the responding office must hear challenges and correct the record. A superseded record confers nothing.

Enforcement is a separate record that must name the reviewed restriction and match it on matter, field, restricting body, version, period, jurisdiction, legal scope, end and form. A restriction therefore reaches only its own matter and field: one reviewed for a newspaper leaves a gallery untouched. Enforcement must be proportionate to the reviewed harm alone and must give the affected person notice, reasons and an accessible challenge before it takes effect. Standing, the floor and the ballot lie outside its reach.

When the ground was missing

The rules follow one sequence through. A restriction in learning and information access completes on an evidenced harm to rights, and a record enforcing it against one person completes as well. Three separate attesters then complete a defect record finding the harm ground unevidenced. The restriction's authority ends, and with it the enforcement permission and every duty resting on the two. The responding office named on the defect must review and correct the record, and the restricting body must publish the correction. A defect against some other record leaves this restriction in force.

Throughout, the person the restriction reached remains a person, owed food and holding the ballot, with the limits against compelled conscience and coerced association intact. The rules conclude nothing adverse against them: a credibility finding, confinement and a recorded loss all stay absent.

Freedom written down

The ordinary case runs the other way. A residual record can state, for a named activity, person and public body, that no reviewed restriction applies, that no registration, licence or approval conditions the activity, that no register of belief, opinion or association membership is kept, and that nothing on the record certifies truth, taste or creative merit. It then binds that body to leave the activity free of any permission requirement and to refrain from registering what people believe, what opinions they hold and what they have joined. It grants the body nothing: authority to restrict and permission to enforce stay absent.

Because this record only protects, its duties follow from its source's record alone, and the independent reviewer named on it owes prompt review and can withdraw them. Records of public information, accessible communication and the independence of inquiry and creation work the same way; a restriction, its enforcement, a defect finding and a concentration finding wait for all three attesters.

A record that merely notes someone's belief or association concludes nothing about them. They remain a person, owed food and holding the ballot, and keep the limits against compelled conscience and against association that is coerced or involuntary.

Information, inquiry and concentration

A reviewed public-information record lets a requester see, correct or receive in accessible form information held by or for a public function, and obliges the holding body to supply it accessibly. A refusal needs a reviewed ground and reasons, with any releasable part released; the requester need give no reason for asking, and no fee may shut them out. Public bodies must communicate in accessible formats and plain language, adjust on request free of charge, and convey every meaning through more than one sense or notation. A researcher or artist named on a reviewed record may publish or perform without prior approval; the public body must leave question, method, result and content to them, and funding conditions stop short of dictating findings.

A concentration finding concerns structure: ownership, distribution, and ranking and attention. It obliges the concentrated body to disclose its reach and the basis of its ranking, and lets the responding office open an independent plurality review. It judges no truth or editorial choice, classifies no audience or belief, and restricts nothing.

Who bears the cost

A restricting body must assemble evidence, three agreeing attesters, reasons and review before it acts, and the people a restriction would protect wait while it does; while a challenge suspends the restriction, they wait again. A restriction needs one of the two grounds, so people hurt only by offence or disagreement find this route closed. A protective record binds a body on one source's word, before any review, and the body bears those duties unless a reviewer withdraws them.

What this cannot settle

The harm ground is whatever three separate attesters record. If they agree in calling offence a harm to rights, the restriction completes as surely as an honest one would; the challenge, the defect route and final review are where that relabelling can be caught.

The duty to leave an activity free of permission, and to keep belief and membership unregistered, binds a body only through a residual record naming that activity. Without one, the ten limits every person holds still apply.

A defect finding corrects the record; a remedy for the person a restriction reached needs its own route. Whether any office publishes, hears, corrects or holds back is a question for the second book.

Run it: the companion runs this chapter's cases on your own device, at dhilipsiva.dev/rights-nobody-has-to-earn/cases.

Argument: Two grounds and an end

The companion states these rules as Article 7.

I choose to put the whole case for a restriction on the public body, and to write the freedom that remains as duties on a named body, because a liberty that lasts only until an official objects is held on sufferance. Freedom read from silence would rest on an absent entry, and the rules treat an absent entry as silence rather than a finding; a residual record names the body that must leave an activity free of permission and keep belief and membership unregistered. The burden itself is borrowed. The Siracusa Principles, drawn up at an expert conference in 1984 and circulated as a document of the UN Commission on Human Rights, state that a limit on a Covenant right that must be "necessary" has to respond to a pressing public or social need, pursue a legitimate aim and be proportionate, use no more restrictive means than required, and leave the burden of justification with the State.^[1]

The strongest alternative keeps the burden and the test of means but leaves the purpose open to argument in each case. Aharon Barak treats proportionality as the main tool for limiting constitutional rights and analyses it in four components: a proper purpose, a rational connection to it, necessity, meaning that no less restrictive means would achieve the purpose, and a final stage of balancing.^[2] Its strength is that the question of purpose is put to each restriction as it comes, so a reviewing court can weigh an aim that a list-maker failed to foresee, and the balancing stage still guards the right.

I answer the purpose question in advance, with two grounds, and that costs whatever an open test would have protected. People whose injury from speech is offence alone, a community whose sacred things are mocked among them, find the restriction route closed, where a balancing court might weigh their injury against the speaker's freedom. I accept that cost because I would rather keep offence, disagreement and an official view of the truth off the scale altogether than trust each balance to weigh them lightly against a dissenter. The suspensive challenge adds a second cost: while a challenge runs, the restriction waits, and the people it would protect bear the harm meanwhile. The written record adds a third, smaller one: a body's particular duties wait for someone to make it, though the ten limits hold in the meantime. I require an end because a restriction justified by one harm at one time should lapse with its reasons unless it is justified again.

I would add a third ground if a serious, evidenced injury kept recurring that neither ground could name. I would reopen the list only on evidence that an open purpose test, applied by independent reviewers, protects dissent and unpopular belief as reliably as two fixed grounds while answering those injuries too. And I would narrow the suspensive challenge on evidence that challenges routinely keep evidenced harms running through review.