Philosophising by Osgoode’s Front Doors on a Sunny September Afternoon
The front entrance of Osgoode Hall Law School is a regular sparring ring for minds to go head-to-head. Concrete blocks and the iconic Osgoode Hall plaque all make up a congregation space suited for busy minded law students to unwind and let their colours show. It’s the second week of school, and I sit with one of my old colleagues from 1L. The air is still warm from the summer. One of those September days where we look to the sky and say to ourselves, “thank you for not being shitty.” I set down my heavy backpack and my 3000-page Income Tax Act on the concrete bench; it has been a long day, and I can think of nothing better than to just sit and let my mind run free.
“Freedom, what the hell is that?” I blurt out to my friend. He is aptly armed with sunglasses and a black polo T-shirt. Freedom, he says, needs to be looked at objectively. We are free when we can pursue whatever we wish to do without anything stopping us from doing it. It is objective because a person either has it or they do not have it. How do we figure out whether a person has freedom? We look at their surroundings. Look at where we are: Osgoode Hall Law School; the greatest law school in Canada. We have freedom here, because we have the facilities, the staff, and a diverse and vibrant student body. A place where ideas flourish, and where future lawyers regularly face the dark realities of the profession. We can say that freedom is similar to opportunity. At least, from the objective perspective, freedom exists whether we know it or not. We have all of the resources of Osgoode at our disposal, but it is up to us to seek them out. You, as an Osgoode Student, have an abundance of opportunity at your disposal, and you have the freedom to use it. In the objective analysis, we look at a person’s surroundings, and we can know what freedoms they have. In practice, if you are like me, you will only see as much opportunity as you think you deserve. Better yet, you will only see the opportunities you can see.
What do I mean by this? Imagine you are taken into a room as a prisoner and the guard tells you, “I am locking you in.” You believe him. He closes the door. Unbeknownst to you, the guard does not lock it. By simply looking at the door, you cannot tell the difference. You firmly believe that the door is locked, when it is in fact open. Objectively, you are free, but you cannot see it.[1] Nothing will stop you from opening the door, but that doesn’t mean you will open it.
I look at the sky, then glance down at the massive construction project before me. There is a new student centre being build right across from Osgoode’s beautiful front entrance. Observing the bare steel and concrete is something I do often. I try to envision what the final product will look like. Why are they building a new student centre? Not the reason, because the reason is obvious; we need more student space at York. I am asking how this process began. To my knowledge, York students voiced their desire for more study space and restaurants and they pushed to make this project a reality. I recall years ago signing a petition for this exact cause. Where did the students get the idea to make this happen? When did they catch a glimpse of this opportunity? Where did they get the freedom to make this a reality? I look back at my friend, “where in the objective analysis of ‘having freedom’ did we discover the freedom to make a construction project happen? Was that opportunity in the objective analysis?” Frankly, observing an opportunity like this is quite different from observing all of the opportunities Osgoode students enjoy through the law school’s programs. It is completely different from being “trapped” in an unlocked room. Rather, it is like the students were confined to an unlocked room and they created a portal made of shoelaces and stale Gatorade. Creativity was involved in making the new student centre happen. The opportunity was not there; it was waiting to be seen, or given to us. It was created. Let’s call this “creative freedom”.
If creative freedom is a thing, can we accept the objective view of freedom? Again, the objective view is supposedly complete, it looks at our surroundings and identifies everything we can and cannot do and freedom is simply the product of adding them together.
Let’s try it and see if objective freedom and creative freedom are compatible. Supposedly, the opportunity to petition for a student centre existed before the students ever got the idea. It must have been there – the metal, the concrete, the machines, the space, the workers and everything else necessary all existed. By this analysis, every student had the opportunity to pitch this idea because anyone could have had the idea. Now I ask, how do we draw limits in the objective analysis? If the objective analysis includes creative exercises of freedom, then we need a creative analysis of objective freedom; that way nothing gets left out of our theory. More to the point, if I want to analyze how objectively free someone is, how do I quantify the extent of that freedom if there are opportunities available that we have not created yet? On the other hand, how do we objectively rule out certain freedoms? Five years ago, if someone said that students are not free to actually initiate a construction project, they would be wrong. They would be objectively wrong. Further to the point, for all we know, any random idea that comes to our heads can become possible if we take it seriously.
In my humble opinion, we are free to do anything we imagine. From using what is plain and obvious before our eyes to creating something from nothing. So, what is freedom really if we are free to do just about anything? We have grown up being told, “this door is locked, and so is that one, oh, and don’t even bother with that door over there, its triple locked”. Not to mention, there may be unlocked doors we have not even found yet. Who says that we even need a key to open the door?
If creative freedom is real, then we can believe just about any idea, and it can be true, we just haven’t figured out how it is true. Thinking now, there is not much difference between using Osgoode’s first-rate opportunities to join clinics, intensives or RA positions, and having the idea to make a new student centre appear. Both enrolling in programs and creating a building is a freedom which students at York and Osgoode have. In fact, it takes courage to even pursue freedoms that are right before us. To raise our hand in class, to join a student club, or participate for the first time in a moot. Courage is indispensable when it comes to exercising our freedoms. The more far-fetched the idea, the more courage it would take.
By this time, hours have gone by. I have not done my readings. I have a million things on my mind, and I am killing time talking philosophy. You could say I have this freedom to spend my afternoons making fuzzy philosophical arguments to pass the time. That really is the beauty of freedom; we can exercise choice. I often try to remind myself: every choice amounts to something.
Privilege is another important dynamic to remember in this context. As Osgoode students, we are free to enjoy the facilities and opportunities of Osgoode because we are privileged enough to have these freedoms granted to us. Not just anyone can walk into Osgoode’s library during exam season because you need that red “Osgoode” sticker on your York University student card; otherwise you are not permitted. Not just anyone can graduate with an Osgoode JD. Only students who can scrape together the high tuition fees may have a hope to graduate. Privilege is not just important when analyzing freedom, it is indispensable.
Much of the afternoon has now slipped by, and indeed I feel rejuvenated after a long and fruitful conversation with my colleague. Although we cleared a lot of the air, he remains convinced that I have not understood his position. He is probably right about that, as I would likely suggest he has not understood mine. I write this article, partially, in hopes that someone will have something to add to this discussion.
What do you think of freedom, privilege and choice? Send your thoughts to the Obiter Dicta!
[1] This thought experiment I credit to John Locke and many other philosophers who have used this same thought experiment. I cannot remember where I have read it, but I acknowledge that it is not my original idea.