Dear readers, this article summarises the conclusions of a series of recent posts on this blog relating to freedom, liberty and natural rights.
It might help you in reading the article to think of it as an outline of the chapter on freedom in a book about freedom, progress and human flourishing. It would help me if you could provide comments below, or by email, on whether you think the article captures adequately what it is important to know about liberty.
The meaning of freedom, liberty and rights.
Freedom sounds good, but the meaning of the word depends on context. For example, when people talk about freedom from fear, or freedom from want, they may have something important to say about human flourishing, but it isn’t necessary related to personal freedom or economic freedom, which are aspects of liberty. My focus in this post is on liberty.
Liberty has a more precise meaning than freedom. I adopt Friedrich Hayek’s definition of liberty as “a state in which coercion of some by others is reduced as much as is possible in society”. In the civic republican tradition, liberty is sometimes defined more broadly to encompass political freedoms, including the right to political participation. To avoid confusion, however, I think it best to stick with Hayek’s definition.
Rights refer to things that one is morally or legally entitled to do or have. As with freedom, the precise meaning depends on context and qualifier words. A negative right is a right not to be subjected to an action of another person or group whereas a positive right is an entitlement to have another person or group do something. The Universal Declaration of Human Rights encompasses not only the negative right to liberty and positive legal rights (including political freedom) but also economic and social aspirations that cannot necessarily be met by anything that a person or group might do.
My focus here is on natural rights, including the rights to life, liberty and the pursuit of happiness - as famously proclaimed in the United States Declaration of Independence. The inclusion of “pursuit of happiness” as a right in the Declaration might appear to be redundant since pursuit of happiness is encompassed in our understanding of liberty. In 18th century America, however, an inalienable right to liberty could have been interpreted in civic republican terms. At that time, pursuit of happiness was widely perceived as the activity of human flourishing, as perceived by Aristotle. (Further explanation is provided in an earlier post.)
Liberty is worth having.
Anyone who lives in a liberal democracy should ask themselves from time to time what it would be like to live without liberty. What would your life be like if you lived in a country where you didn’t have freedom of religion, where you could be jailed for expressing views not approved of by political leaders, where you could be subject to arbitrary arrest, where your property could be arbitrarily seized by the government, or where your freedom to move around was restricted? Such countries are still easy to find.
The right to freedom of speech is particularly important because free speech helps to protect liberty more generally. Some restrictions on freedom of speech have long been widely accepted as desirable, for example to discourage incitement to violence. However, recent efforts in some liberal democracies to make it a crime to offend others based on identity characteristics - such as ethnicity, religion or gender - have potential to curtail freedom of speech substantially. Even when people strive to be respectful in the way they present their views, some people with opposing viewpoints are likely to claim to be offended if they can thereby stifle debate on controversial topics.
Norms of liberty make it possible for individuals to flourish in different ways.
As explained by Douglas Rasmussen and Douglas Den Uyl:
“Individual rights are … needed to solve a problem that is uniquely social, political and legal. … How do we allow for the possibility that individuals might flourish in different ways … without creating inherent moral conflict in … the structure that is provided by the political/legal order? How do we find a political/legal order that will in principle not require that the human flourishing of any person or group be given structural preference over others? How do we protect the possibility that each may flourish while at the same time provide principles that regulate the conduct of all?” (Norms of Liberty, 2005, p 78).
A discussion of views of other authors who have also advanced metanormative arguments for individual rights was posted on this blog some years ago.
Moral intuitions support natural rights.
Natural rights are inherent in human nature. They have traditionally been seen to be endowed by God, but widely-held intuitions about natural rights can also be explained in terms of the evolution of the ethics of respect. Moral intuitions that it is good to respect the lives and autonomy of others provide support for norms of liberty that maximize the opportunities available for all to flourish. As discussed in a recent post, it seems reasonable to suppose that the ethics of respect evolved because of the benefits that voluntary cooperation for mutual benefit brought to individuals and communities.
Those who seek to deny the existence of natural rights tend to argue that individual rights are bestowed by governments, so it is legitimate for governments to remove them if that serves what they see as the “greater good”. There are times when individual rights do need to be compromised (e.g. via compulsory land acquisition) to prevent a community being held to ransom by an individual, but this should not be done lightly and fair compensation should be provided.
Respect for the rights of others has been advocated as an ideal since ancient times.
In ancient Greece, the poems of Hesiod, which appear to date from the 8th or 7th century BCE, urge people to comply with rules of just conduct rather than to seek to benefit via predation. In his poem, Works and Days, Hesiod advises his brother Perses, to “put away all notions of violence” for “fish, and wild animals, and the flying birds” may “feed on each other, since there is no idea of justice among them,” but “to men [Zeus] gave justice,” which is the “best thing they have.” Hesiod condemns both force and fraud: the grabbing of goods either by “force of hands” or by “cleverness of … tongue.” (Further discussion here.)
Perceptions of natural law have not always supported universal human flourishing.
Aristotle (384-322 BCE) was the great philosopher of individual human flourishing. His emphasis on the natural capacity of humans to use reason to guide themselves and exercise appropriate moderation in their behaviour provides a basis for understanding human flourishing to be an essentially self-directed activity.
Nevertheless, Aristotle argued that it was natural to make slaves of defeated enemies. He viewed the system of conquest and slavery as a natural system governed by internal sources of change. By identifying the whole system as natural he was able to disregard the use of force at the heart of it.
The perception of what was natural of Cicero, the Roman statesman, lawyer and philosopher who lived from 106 BC- 43 BC, was more supportive of liberty. He argued that “nature made us just that we might participate our goods with each other, and supply each others’ wants”.
Reason and spontaneous legal processes both played a part in recognition of natural rights.
Beliefs and values supporting natural rights of individuals to life, property and liberty seem to have travelled from Cicero to the modern world through both the spontaneous evolution of rules and evolution of reasoning about the natural law. Those different transmission processes interacted. There were periods when reasoning about natural law held back recognition of individual rights to participate in mutually beneficial activities e.g. lending and borrowing. Eventually, however, reasoning about natural law reinforced and extended individual rights recognised under common law. (Further discussion here and here).
Rule of law protects natural rights and enables people to live in peace.
From the 12th century onwards, with the advent of centralised monarchies in Europe, homicide came to be viewed as an offence against the crown, rather than a civil matter. That enabled societies to avoid the violence associated with do-it-yourself justice. More effective justice systems penalised plunder, and thereby promoted peacefulness and improved incentives for mutually beneficial exchange.
Evolution of the rule of law provided greater protection to natural rights by requiring people to refrain from initiating or threatening any forceful interference with other individuals or their property. (Further discussion here.)
Systems of government preferment are an infringement of natural liberty.
Adam Smith argued that it was an unjust infringement of natural liberty for the powers of government to be used to assist some economic groups at the expense of others. Smith’s ideal of everyone being free to pursue their own interests in their own way is consistent with Francis Hutcheson’s earlier explanation of the right to natural liberty in terms of pursuit of happiness. (See this post).
In The Law, published in 1850, Frédéric Bastiat foresaw the potential for the universal franchise to endanger natural rights. He was concerned about the use of the power of the state by some groups to seize and consume the products of the labour of others. Legislation that seriously endangers natural rights is difficult to reconcile with rules of just conduct that have evolved to foster mutually beneficial interactions. (See discussion here.)
The right political participation should be viewed as a natural right.
Moral intuitions supporting the right to political participation presumably evolved because human flourishing has always required individuals to participate actively with others in decisions relating to provision of collective goods. Such involvement is less active in modern societies in which many collective goods are provided by remote government agencies and citizen involvement usually involves little more than voting.
The exercise of voting rights provides citizens with some protection against tyranny, but increasing numbers of people in the liberal democracies nevertheless feel unhappy about the outcomes of democratic political processes. That unhappiness may stem to an important extent from unrealistic expectations of what political processes can deliver. It seems likely to increase as low productivity growth reduces government revenues and demographic change increases political demands on governments.
Technological advances that enhance opportunities to seek mutual benefit in cooperative enterprises offer hope that people will in future be able to exercise their natural political rights in ways that give them more involvement in decisions that affect them.
For liberty to prevail the ‘real constitution’ must be pro-liberty.
It is illusory to think of political institutions as external to society. The rules of the game exist only insofar as they are continually maintained in existence by human agents acting in certain systematic ways. The constitution of a free society is a pattern of interactions in which people give one another incentives to act and keep acting in ways that tend to maintain liberty. It is not the rules per se that gets disputes resolved, but rather the incentive structure that makes the system’s administrators likely to act in accordance with such rules.
Sheldon Richman defines the real constitution as the set of dispositions that influence what most people will accept as legitimate actions by the politicians and bureaucrats who make up the government. He derives support for this concept from Roderick Long’s observation that “government is not some sort of automatic robot standing outside the social order it serves; its existence depends on ongoing cooperation, both from the members of the government and from the populace it governs”.
It follows that for liberty to prevail the real constitution must be pro-liberty. As a corollary, tyranny cannot persist in any jurisdiction when the real constitution is pro-liberty.