This is a discussion of George H. Smith’s new book The System of Liberty: Themes in the History of Classical Liberalismpublished by Cambridge University Press (2013). Smith describes how he came to write the book, the works of the history of political thought which inspired him (in particular the writings of the German legal historian Otto von Gierke), and the methodology he uses in approaching the history of ideas (Locke’s idea of “the presumption of coherence”). He demonstrates his approach with a brief discussion of one of the key ideas he has identified in the history of classical liberal thought, namley, the idea of “inalienable rights,” or to phrase it in the terminology of 17th century natural rights philosophers like Pufendorf, the distinction between “perfect and imperfect rights.” His essay is discussed by Jason Brennan, assistant professor of strategy, economics, ethics, and public policy at Georgetown University; David Gordon, Senior Fellow at the Ludwig von Mises Institute; and Ralph Raico, Professor Emeritus of History at the Buffalo State College.
- Jason Brennan, “The Idea of Freedom: Little Is at Stake” [Posted: September 6, 2013]
- David Gordon, “Utilitarianism and Natural Rights” [Posted: September 9, 2013]
- Ralph Raico, “Why Only in the West?” [Posted: September 11, 2013]
- George H. Smith’s Reply to Ralph Raico, David Gordon, and Jason Brennan [Posted: September 13, 2013]
- Ralph Raico, “What Thou Meanest by Seizing the Whole Earth?” [Posted: September 18, 2013]
- George Smith replies to Ralph Raico: And the Secular Powers Checked the Church [Posted: 23 September, 2013]
- David Gordon, “Is Social Utility Enough to Justify Natural Rights?” A Response to George Smith [Posted: September 24, 2013]
- Jason Brennan, “Consequences without Consequentialism” [Posted: September 24, 2013]
- George H. Smith, “Were Natural-Rights Theorists Consequentialists?” A Reply To Jason Brennan [Posted: September 25, 2013]
- George H. Smith, “Natural Rights and Moral Autonomy“: A Reply to David Gordon [Posted: September 25, 2013]
About the Authors
George H. Smith is an independent scholar and a weekly columnist at the Cato Institute’s Libertarianism.org. He is the author ofAtheism: The Case Against God (1974), Atheism, Ayn Rand, and Other Heresies (1991), Why Atheism (2000). He is also the author of the audio series on “Great Political Thinkers,” “The Meaning of the Constitution,” and “The Ideas of Liberty.” He has articles and book reviews published in the New York Times, Newsday, Reason, Liberty, The Journal of Libertarian Studies, Free Inquiry, and The Humanist.
Jason Brennan is assistant professor of strategy, economics, ethics, and public policy at Georgetown University. He is the author ofCompulsory Voting: For and Against, with Lisa Hill (forthcoming from Cambridge University Press); Libertarianism: What Everyone Needs to Know (Oxford University Press, 2012); The Ethics of Voting (Princeton University Press, 2012); and, with David Schmidtz, A Brief History of Liberty. He is currently writing Against Politics for Princeton University Press as well as Why Not Capitalism? and, with Peter Jaworski, Markets without Limits for Routledge Press. He has published in Philosophy and Phenomenological Research,Philosophical Quarterly, The Australasian Journal of Philosophy, and Social Philosophy and Policy. He blogs (sometimes) at Bleeding Heart Libertarians <http://bleedingheartlibertarians.com/>.
David Gordon is Senior Fellow at the Ludwig von Mises Institute. He received his Ph.D. in History from UCLA in 1975. He is the author of Resurrecting Marx, An Introduction to Economic Reasoning, and The Essential Rothbard. He is the Editor of the Mises Review and a member of the senior faculty of the Mises Institute. He has contributed to Analysis, Mind, Ethics, Quarterly Journal of Austrian Economics, Journal of Libertarian Studies, and other journals.
Ralph Raico is a retired professor of European history at Buffalo State College. He studied in Chicago with F. A. Hayek, where he received his Ph. D., and in New York with Ludwig von Mises, whose book Liberalismus he translated into English. Raico is the author of two collections of essays, Classical Liberalism and the Austrian School and Great Wars and Great Leaders, a revisionist work. His history of German liberalism was translated into German by Joerg Guido Huelsmann. Raico has lectured widely on classical liberalism in the U. S., Canada, and Europe.
The System of Liberty: Themes in the History of Classical Liberalism was written, on and off, over a period of nearly 15 years. I originally had in mind a longer, more ambitious book of which System would have comprised only a third, but reality finally persuaded me — “compelled” might be a better word — to divide the project into smaller segments along the lines of F.A. Hayek’s Law, Legislation, and Liberty. The working titles of the other two parts of my trilogy, should I ever be able to finish them, are The Disciplines of Liberty and Sovereign State, Sovereign Self.
Every account of history has a history of its own. This consists of biographical details – personal factors that caused historians to become interested in their subject matter and that shaped their perspective. Whether or not such personal details are relevant to understanding a particular text will vary from case to case, but when considering a history of controversial ideas, as we find in accounts of religious and political thought, some biographical knowledge of the historian may help us to understand his or her text.
As I reread The System of Liberty while preparing to write this essay, I was struck by how my basic perspective on the history of modern political thought was formed many years ago. In 1969, while a student at the University of Arizona, I visited my favorite used bookstore in Tucson and found, side by side, copies of two books by the great German scholar Otto Gierke. One was a paperback edition of Political Theories of the Middle Ages. The other was a hardcover version of Natural Law and the Theory of Society, 1500-1800.
Both books, which were taken from Gierke’s three-volume work, Das deutsche Genossenschaftsrecht (The German Law of Association, 1881), were tough going for an undergraduate whose knowledge of the history of political theory had come mainly from superficial survey courses. I had never heard of Gierke before, but as I thumbed through the volumes for around 20 minutes, I was intrigued by his generalizations. Although the paperback was only a dollar, the Cambridge hardcover was ten dollars, which was more than I had ever paid for a used book. But having gotten paid the day before from my job at an auto supply store, and with two weeks of minimum wage income weighing me down, I decided to purchase both volumes. That decision would significantly influence my subsequent intellectual development – an influence that is reflected in The System of Liberty.
I still possess both volumes, and after 44 years it is instructive to see the passages that I bracketed for future reference. For example, in Political Theories of the Middle Ages (p. 87), Gierke, referring to the transition from medieval to modern political thought, wrote:
The Sovereignty of the State and the Sovereignty of the Individual were steadily on their way towards becoming the two central axioms from which all theories of social structure would proceed, and whose relationship to each other would be the focus of all theoretical controversy.
Gierke’s contrast between state and individual sovereignty is reflected in various places in my book, most conspicuously in the title of Chapter 4, “Sovereign State, Sovereign Self.” Although it is possible to trace features of individualism to the ancient and medieval worlds, I maintain in System that the political individualism of classical liberalism is a distinctively modern phenomenon, one that did not coalesce into a coherent political philosophy until the early 17th century. This development was facilitated, perhaps necessitated, by the rise of the absolute nation-state and, more specifically, by philosophical defenses of absolutism that became prominent in the 16th century. Such defenses of state sovereignty – as found, most famously, in the writings of Jean Bodin – were expressed in the language of rights, or enforceable moral claims. These rights were merely the flip side of the obligations that subjects owed to their sovereign. Bodin even discussed “inalienable”rights when considering which rights a political sovereign could never transfer or renounce.
Faced with this arsenal of arguments for state sovereignty, opponents of absolutism typically framed their criticisms in terms of individual sovereignty – a concept that went by various labels, such as property in one’s person, self-propriety, self-proprietorship, and, later, self-ownership and self-sovereignty.
Here, from Natural Law and the Theory of Society (p. 96), is another passage that I marked decades ago:
[T]he guiding threat of all speculation in the area of Natural Law was always, from first to last, individualism steadily carried to its logical conclusions. Every attempt to oppose this tendency was necessarily a revolt, on this point or on that, against the idea of Natural Law itself….The fixed first principle of the natural-law theory of society continued to be the priority of the Individual to the Group.
Gierke was not favorably disposed to the individualism of natural-law theories. He believed that the modern demotion of medieval corporations to a secondary status, one that placed them under the jurisdiction of a sovereign state, promoted absolutism by leaving no protective buffers between the state and the individual. The natural-law tradition recognized no group personalities; only individual human beings could claim moral autonomy. Thus, for natural-law liberals, the natural rights of individuals became the moral foundation of civil society – and this approach, in turn, generated the need for a fictitious social contract (in some form) to justify political authority through a process of consent. Thereafter the major currents in political thought became a struggle between the sovereignty of the state and the sovereignty of the individual.
The following is another passage from Natural Law and the Theory of Society (p. 113) that I not only bracketed but further emphasized by writing “NB” in the margin.
[T]he theory of the Rights of Man grew into a great and spreading tree. The supposition that individuals, on their entry into civil society, were only willing to surrender the smallest possible part of their freedom, was now associated with the doctrine that certain of the original rights of the individual were inalienable and intransferable, and could not, therefore, be effectively surrendered, even by an express act of contract. In this way a distinction came to be drawn between inherent and acquired rights. Acquired rights, it was argued, were subject to the system of positive law, which depended on the existence of the State; but inherent rights were based on the pre-social Law of Nature, and since that law was still valid to protect them, they were immune from any invasion by legislative action.
Although parts of Gierke’s summary are misleading, such as his depiction of “inherent rights” as pre-social rather than as pre-political, it was after reading this passage that I came to appreciate the theoretical significance of inalienable rights in the tradition of liberal individualism. For natural-law liberals, inalienable rights were inextricably linked to man’s moral agency, so they could not be transferred, abandoned, or otherwise alienated, even with the consent of the rights-bearer. A person could no more transfer his inalienable rights than he could transfer his powers of reason and volition.
As I argue in Chapter 6, “The Radical Edge of Liberalism,” the doctrine of inalienable rights played a crucial role in the Radical Whig theory of revolution. The hypothetical construct of a social contract was unable to specify with precision which alienable rights had supposedly been delegated to government, so this was regarded as a legitimate topic of debate. But inalienable rights were a different matter altogether. Since they were incapable of transfer, no government could legitimately claim jurisdiction over them by appealing to a social contract or to a theory of implied consent. Consequently, a government that repeatedly violated inalienable rights qualified as tyrannical and became theoretically ripe for revolution.
In “The Radical Edge of Liberalism,” I use this analysis to explore the old controversy about why Thomas Jefferson did not include “property” in his list of “unalienable” rights in the Declaration of Independence. Aside from the fact (one often overlooked) that Jefferson wrote “among these” when referring to the inalienable rights of life, liberty, and the pursuit of happiness – thereby indicating that his list was not exhaustive – I point out that to have mentioned “property” as an inalienable right would have proved confusing to eighteenth-century readers. At that time “property” could refer to the moral power of dominion over one’s body, labor, actions, conscience, and so forth; or it could refer to external objects. In the former sense, “property” was regarded as an inalienable right, but this was not true of “property” in the narrow, more modern sense of the term. We can obviously alienate our external property by transferring ownership to other people. Indeed, Lockeans commonly argued that a social contract entails an agreement to transfer some of our property, collected as taxes, which governments need to function. Thus for Jefferson to have included property in his partial list of inalienable rights would have been highly ambiguous, at best.
Lastly, I employ the notion of inalienable rights in The System of Liberty to call attention to an essential difference between theories of liberal utilitarianism and natural rights. Although the liberal theory of natural rights has been characterized as a type of rule utilitarianism, this overlooks the function of inalienable rights in that tradition. Inalienable rights, such as “liberty of conscience,” were immune to calculations of public utility, the general good, the common good, etc. Inalienable rights, unlike alienable rights, were viewed as absolute.
Having discussed some aspects of my approach to the history of modern political philosophy, as presented in The System of Liberty, I shall now summarize some of my thoughts about methodology, and I shall conclude with a topic that, in my judgment, merits further investigation by historians of classical liberalism. I have chosen the following topics in the hope that they will stimulate discussion.
1) Although, as I state in the introduction, my book “is not a history of classical liberalism per se,” its historical perspective raises the same problems of methodology that we encounter in any history of ideas. I have an enduring interest in the philosophy of history and have accumulated a mini-library of books on that topic alone, but I am skeptical whether technical discussions of meaning, intention, and related matters are of much value to working historians, however interesting they may be to philosophers. Although the modern stress on context, such as we find in the methodological writings of Quentin Skinner, J.G.A. Pocock, and other historians associated with the Cambridge School, is valuable, I don’t think there is much that is essentially new in that approach.
2) So far as the interpretation of texts is concerned, I’m surprised that more attention has not been paid to John Locke’s discussion in An Essay for the Understanding of St. Paul’s Epistles, published posthumously in 1707. Concerned with the tendency of laypersons to rely upon the interpretations of supposed biblical authorities (who often contradicted one another), Locke proposed some commonsensical rules for understanding texts, which may be summarized as follows:
Locke points out that we naturally tend to interpret a passage through our own understanding of words, even when those words meant something different to an author from a different era and culture. To overcome this obstacle we should read through a given section or chapter as if it were a self-contained unit – seeking thereby to understand the central theme of that unit, or if it contains additional themes, to ascertain how they are connected, if at all. We should seek, in other words, a general view of the writer’s “main purpose in writing,” as well as his fundamental arguments in which that purpose is fulfilled. This will give us a sense of “the disposition of the whole.” One or two hasty readings is insufficient, according to Locke, especially when a text proves difficult to understand. The reading “must be repeated again and again, with close attention to the tenor of the discussion.”
It is best to assume that a given section “has but one business and one aim, until, by a frequent perusal of it, you are forced to see that there are independent matters in it.” When seeking the meaning of “obscure and abstruse” passages, we need to recall the overall purpose and context of the writer. It helps to know the particular circumstances and intended audience of the writer. If we cannot discern these, then we must use the text itself as a tool of interpretation. We should assume that the writer was coherent and informed, and we should interpret him in a manner that is consistent with this assumption. We should interpret a text with a view to the writer’s “character,” which we come to know from “diligent examination.” We should look for “coherence of discourse, tending with close, strong reasoning to a point.”
Locke thus proposes what we may call a presumption of coherence. We should presume that the author had a full and comprehensive grasp of his subject and, moreover, that he had a reason for expressing his arguments in a certain manner. These assumptions, though defeasible, will lead us to an interpretation that is more likely to be correct than any other. Or, at the very least, this procedure will enable us to eliminate some of the more improbable interpretations as inconsistent with the overall tenor of the text. Having studied how a writer argues – and, by implication, how he thinks – we will be able “to pronounce with confidence, in several cases, that he could not talk this or that [way].”
I first read Locke’s discussion around 1977, and I found it more useful for practical purposes than volumes of modern, hyper-technical discussions about the historical interpretation of texts.
3) A topic that I discuss briefly in The System of Liberty is the distinction between “perfect” and “imperfect’ rights and obligations. This is, in effect, an early version of the crucial distinction that later libertarian writers, such as Lysander Spooner, made between crimes and vices, so I think the topic deserves more attention than I was able to give it.
Although Hugo Grotius, writing in 1625, distinguished between perfect and imperfect rights, linking the former to “Justice properly and strictly taken,” the definitive formulation, so far as later writers on natural law were concerned, was that given by Samuel Pufendorf in The Law of Nature and Nations (1672).
It should be observed … that some things are due us by a perfect, others by an imperfect right. When what is due us on the former score is not voluntarily given, it is the right of those in enjoyment of natural liberty to resort to violence and war in forcing another to furnish it, or, if we live within the same state, an action against him at law is allowed; but what is due on the latter score cannot be claimed by war or extorted by a threat of the law.
The dichotomy between moral obligations that may be coercively enforced and obligations that must rely on voluntary compliance became standard fare in the literature on natural law and natural rights. As I discuss in my book, Adam Smith mentioned it during his Glasgow lectures on jurisprudence (1762-63), and it is reflected in his discussion of justice in The Theory of Moral Sentiments. 
I cannot say when this usage fell into disfavor, but I know of one criticism from the late 18th century. In The Principles of Moral Philosophy Investigated, Thomas Gisborne criticized “the injudicious practice of moralists, in dividing rights into two kinds, which they have termed perfect and imperfect.”
This division I have rejected, as being radically indefensible and groundless, and a source of continual and important errors. Under the title perfect, all rights whatever were in fact comprehended. Those denominated imperfect, were not rights, according to any consistent definition of that term. If I were told by a moral philosopher, that a person in distress had a right to my charity, I should admit that he might have good reasons for presuming that I should relieve him; because he might reasonably expect that I should cheerfully employ the gifts which God had bestowed upon me, in a manner so conformable to the will of the donor: but I should deny that he had a right to that assistance from me which my Creator gave me authority to confer or to withhold at my discretion; and authority for the due exercise of which I am answerable to him alone.
I have mentioned only a few of the intellectual currents that run through The System of Liberty: Themes in the History of Classical Liberalism. The book covers a good deal more, such as “the presumption of liberty,” so I hope my commentators will feel free to discuss anything that interests them.
Smith’s book is deep and rich. Anyone with an interest in the history of liberal thought will learn something valuable from it.
In this short response, I’m going to focus on the issue of how two different thinkers—Thomas Hobbes and John Locke—defined “liberty,” and what is and is not at stake in their definitions. Hobbes and Locke would have thought that their different definitions of liberty have different implications about what governments ought and ought not do, but I think they’re mistaken.
Classical liberals are liberals. What is supposed to make liberal doctrines distinctive is that it gives freedom some special, privileged, or fundamental place. But, as Smith notes (134) this presents a few problems.
First, there is a lot of disagreement about just what “freedom” or “liberty” signify, and also what it takes to secure freedom, so defined. Isaiah Berlin claims to have identified 200 different concepts of freedom, though Berlin doesn’t tell us what these 200 different concepts are, and Smith is rightly skeptical that Berlin found quite that many. (134) Even non-liberals or anti-liberals claim to be for rather than against freedom. Marxists and fascists both say their preferred systems deliver a better kind of freedom or do a better job delivering freedom than liberal capitalism does.
Second, “liberty” and “freedom” are often defined in terms of other moral concepts, such as rights, property, and coercion. (These terms are often in turn defined in terms of freedom, leading to problems of circularity.) So, while a typical libertarian will say that he advocates the free market because she opposes coercion, a typical Marxist will responds that she rejects the free market because she opposes coercion. Here, the two disagree about what counts as coercive.
Smith says that debates about the “‘true’ meaning of freedom are usually futile,” because “nominal definitions are determined by linguistic conventions, not by philosophers, and the conventional meanings of ‘freedom’ are significantly diverse to support a wide variety of interpretations.” (135) So, for instance, one cannot just pound the table and insist that “freedom” just means libertarian negative liberty—that won’t reflect the common usage of the word in English and it will just come across as ideological special pleading.
Smith proposes instead (in chapter 7, “The Idea of Freedom”) to dispense with the futile debate about what the “true” meaning of “freedom” or “liberty” is, and instead to just examine how classical liberals thought of the concepts, as the concepts were embedded in the context of classical-liberal ideology.
Smith notes that in conventional English, the words “liberty” and “freedom” appear to be used to refer to variety of related but not identical things. My view is that “freedom” and “liberty” are not in the first instance philosophical concepts, unlike, say, “epistemic justification” or “social contract.” Instead, these are conventional concepts in natural language, though they are concepts that philosophers appropriately take great interest in. Thus, there is a default presumption that philosophers should yield to common usage when discussing what “liberty” really means. (The same goes for, say, the word “fish,” which is a pre-scientific term, but not the word “mammal,” which is a scientific term.[ In contrast, there is a default presumption that laypeople should yield to philosophers’ usage when discussing what “epistemic justification” means. These presumptions can be defeated, of course. So, for instance, if the common usage of “liberty” turned out to be radically confused or incoherent, then philosophers have grounds for revising the language, if they can.
Very little is at stake ideologically in how we define our terms. For any plausible definition of “liberty,” it will be an open question—a question not settled by definition—whether that kind of liberty is valuable, whether we have a right (of some sort) to that kind of liberty so defined, whether and how that liberty ought to be protected or promoted, and so on. In short, the real debate between, say, Marxists and classical liberals is not over the best understanding of the word “liberty,” but is about something else.
Smith says classical liberals often adopt “negative” conceptions of liberty. A “negative” conception of liberty defined liberty in terms of the absence of something. Smith notes that while Thomas Hobbes and Locke both had negative conceptions of liberty, these conceptions were different in kind. Hobbes’s conception is “mechanistic” while Locke’s is “social” (136). Hobbes says that literally any physical obstacles to achieving your goals count as impediments to your liberty, while Locke reserves the word “liberty” to refer to the absence of rights violations (in one’s property). So, for Hobbes, if a tree falls and pins you down, this is just as much an impediment to your freedom of movement as when a thug pins you down. In contrast, Locke would say that the thug violates your freedom, but he would not say (except in a loose sense) that the tree impedes your liberty.
Smith says that these two ways of understanding liberty “can have profound ideological implications….” (137) For absolutists like Hobbes and Filmer, it would be absurd to say the purpose of laws is to promote liberty, because laws always, in the first instance, create obstacles where there were none. Governments primarily restrain liberty, and for good reason, according to Filmer and Hobbes. In contrast, for Locke, when a government protects rights, it thereby protects our freedom. For Hobbes, to stop a thief from mugging you involves a loss of freedom for the thief, while to allow the thief to mug you involves a loss of freedom for you. For Locke, only the latter counts as a loss of freedom—since the thief has no right to your wallet, it doesn’t count as a loss of freedom to stop him from mugging you. (139)
I think Smith’s exegesis is correct, and I think he’s right that Locke and Hobbes would have seen their disagreement about the right way to define “liberty” as in turn leading to different conclusions about politics. But I disagree with Locke and Hobbes here over whether this difference in definition in fact has any moral implications. Locke and Hobbes have deep disagreements, but this disagreement is does not result logically from their disputes over the best way to define “liberty.”
To see why, consider: I’m pretty much an anarchist classical liberal, yet I also I pretty much accept the Hobbesian definition of negative liberty. In my view, as in Hobbes’s, 1) a tree that falls on me is just as much an impediment to my freedom as 2) a big thug pinning me down in order to mug me, which is turn the same impediment to my freedom as when 3) a police officer pins me down after I’ve mugged someone. However, while there is no metaphysical difference among these cases—I’m equally unfree in all three—there are huge moral differences. In the first case—a tree falls on me—I’m unfree, but this is just an unfortunate fact of no moral significance. In the second case, I’m unfree, and wrongly so. In the third case, I’m unfree, and rightly so. The situations are the same in terms of freedom but not in terms of their moral portent.
I take issue with Locke’s definition of liberty, because it implies, as far as I can tell, that people who are rightfully imprisoned haven’t lost any freedom. After all, they ought to be in prison, and so their rights aren’t be violated. Since their rights aren’t being violated, they aren’t unfree. Yet, there they are, behind bars. That seems a bit weird. Isn’t it conceptually cleaner just to say that justly convicted and imprisoned prisoners are not free to leave, and rightly so?
Continuing with this point, I’d say that a classical-liberal government restrains the freedom of government officials to do as they please—and rightly so!—while an authoritarian government gives officials great freedom to do as they please—and wrongly so! My right of free speech, when protected, comes at the expense of others’ freedom to restrict my speech—and rightly so. Etc.
If we decide to use the Hobbesian definition of “liberty,” then the ideological question isn’t so much what counts as a restriction of freedom, but what counts as a good or bad, rightful or wrong restriction of freedom. Very little is at stake in how we define our terms.
The mechanistic view [of liberty] was favored by absolutists … because it supported their contention that all laws necessarilyrestrict liberty. All governments enforce laws that restrain people from doing what they might otherwise have a will to do – so it is absurd to claim, as did the political individualists, that the primary purpose of government is to preserve liberty. It is therefore nonsensical to reject absolutism for its supposed incompatibility with freedom.
Again, I think Smith is right that the absolutists, Hobbes and Filmer, saw things this way. But the absolutists are making an important mistake. I agree with Hobbes and Filmer that, say, a law forbidding rape, if enforced properly, stops would-be rapists from having the freedom to rape. But since people shouldn’t have the freedom to rape, this is a good and just restraint of liberty. In contrast, a government that stops people from, say, smoking pot restrains liberty, but in this case, unjustly. I can just agree with Hobbes that even a liberal polity restricts freedom, but then respond that it restricts wrongful freedoms while allowing rightful freedoms. When Locke says that a good government promotes freedom, we can easily translate this into Hobbesian language by saying instead that a good government protects rightful freedoms while restricting wrongful freedoms. So, again, nothing is at stake in how we define our terms. The debate over what governments ought and ought not to do is not settled by finding the right definition of liberty.
Note that even on Hobbes’s own terms, the move to government from the Hobbesian state of nature should be seen as an improvement in how much liberty we enjoy. The state of nature is a war of all against all, Hobbes argues, in others continuously interfere with us. The Leviathan imposes barriers and obstacles upon us, and so in the first instance reduces our liberty, as Hobbes understands the concept. But the result is that we are interfered with much less than we were in the state of nature. So, overall, we gain rather than lose liberty. What’s more—and here Hobbes agrees—the value of the liberty we enjoy under the Leviathan is much higher than the value of our liberty in the state of nature. Now, Smith and I both dispute whether anarchy really would be like the Hobbesian state of nature, and of course neither Smith nor I accept Hobbes’s favored form of government. My point here is just that even Hobbes’s argument for government can be re-stated as the view that government exists to promote liberty, even if Hobbes himself didn’t describe it that way.
In closing, I think there are three main questions about liberty:
- What is it?
- How much and what kind of value, if any, does liberty have? (Do people have a right to certain kinds of liberty?)
- What institutions and social conditions best produce and protect the kinds of liberties worth having? (In particular, what role should government have?)
The first question is the most basic. One cannot answer the other questions without having good answer to the first. The third question (and the second, to some degree) requires more than just the tools of philosophical theorizing. To know what institutions best produce and protect liberty requires social scientific investigation. It cannot be answered from the armchair.
The right way to think about these questions is to answer them in order. But I tend to find—and Smith notices something like this as well (133)—that most people tend to theorize about these questions in the something like the reverse order. People first begin with their ideology, whatever that is, and then reverse-engineer a definition of “liberty” such that it comes out, fortuitously, that their favored political regime is the only regime that promotes real liberty. It’s bogus, regardless of whether a Rousseauian or a Randian is doing it.
 E.g., Benito Mussolini and Giovanni Gentile, “The Doctrine of Fascism,” <http://www.upf.edu/materials/fhuma/nacionalismes/nacio/docs/muss-doctrine.pdf>: “In our state the individual is not deprived of freedom. In fact, he has greater liberty than an isolated man, because the state protects him and he is part of the State. Isolated man is without defence.”
 With all due respect, this is how I see Tom Palmer’s essay here: <http://www.cato-unbound.org/2010/03/12/tom-g-palmer/liberty-liberty>. Nonlibertarian understandings of the word “liberty” have been mainstream pretty much forever.
 John Dupré, “Natural Kinds and Biological Taxa,” The Philosophical Review 90 (1981), 66-90, here esp. pp. 75-76.
 For more on this, see David Schmidtz and Jason Brennan, A Brief History of Liberty (Boston: Wiley-Blackwell, 2010), pp. 1-29.
Reading George Smith’s outstanding new book brought back a pleasant memory. I first met George Smith in 1978 at the Acres of Books bookstore in Long Beach, California, and, if memory serves, we spoke about one of George’s favorite authors, the historian and sociologist J.M. Robertson. George’s vast learning very much impressed me then, and it has continued to do so through the many years that have elapsed since that first encounter, when we were both young.
George’s scholarship is abundantly evident in The System of Liberty. Despite my reputation, to my mind an undeserved one, as a harsh reviewer, I do not have any criticisms to offer of the book. Rather, I’d like to ask questions about a few passages, in the hope that George will be able to cast further light on these.
George quotes a puzzling remark from Locke: At any rate, it has puzzled me. “The rightness of an action does not depend on its utility; on the contrary, its utility is a result of its rightness.” (p.27. All subsequent references to the book will be by page numbers in parentheses in the text.) George seems to me entirely right in grouping Locke among the liberals who saw natural rights and social utility as “perfectly compatible.” (p.27) What, though, is meant by saying that the rightness of an action results in its utility? How can the rightness of an action bring about, or cause, it to be useful? If Locke just means that right actions tend to be useful, then Locke’s meaning is clear. But saying that a right action is useful and saying that the rightness of the action causes it to be useful are two different claims. What exactly does Locke mean?
Thinking about this passage leads to a question of greater scope. A principal theme of the book is a contrast between two sorts of classical liberal. Both sorts thought that there was a general presumption in favor oflaissez faire. Interference with liberty, they all agreed, required justification: laissez faire was the default position. The difference between the two groups was that one of them forbade altogether interference with certain rights, deemed inalienable. Considerations of social utility, those who held this position maintained, could not trump these rights. The other group did not exempt these rights, or anything else, from interference, if a case could be made for it. “Those liberals who, like Jefferson, distinguished between alienable and inalienable rights typically maintained that only alienable rights should be regarded as defeasible presumptions. Under no circumstances could a government violate inalienablerights, so rights in this category were regarded as absolute.” (p.23, emphasis in original)
George’s contrast of the two sorts of liberalism leads to a question. He says: “The difference consists mainly in this: Utilitarians justified rights solely on the grounds of their social utility, whereas proponents of natural rights considered social utility to be aconsequence of observing moral principles that are ultimately justified in terms of human nature–especially the role of reason in judging which actions will enable a person to live a good life.” (p.33, emphasis in original).
In sum, the supporters of natural rights argued in this way. “In order to figure out how to lead a good life, we need to examine human nature. If we do so, we will discover that people require a protected sphere of activity in order to flourish. Living in a society that guarantees this sphere of activity though rights that the government cannot violate will best promote human flourishing.”
Does this not raise a question? Are not people who argue in the way just described themselves appealing to social utility? They are saying that it is best for everybody if natural rights are respected. If rights are respected, this will result in an increase in social utility. If so, it would seem that we have here an intramural quarrel among utilitarians. One group asserts, and the other denies, that the proper way to promote social utility is to respect rights. Are there considerations to which the natural rights liberals appeal that are independent of human flourishing, and if so what are they?
Certainly there have been professed utilitarians who endorsed natural rights. Herbert Spencer, about whom George has, both in The System of Liberty and elsewhere, written illuminatingly, was one such. This raises all the more pointedly the need to set forward exactly how a natural rights view differs from a utilitarian one, if indeed it does.
Further, I think another position should be noted. A classical liberal could defend complete laissez faire, or close to it at any rate, without appeal to rights. Mises defended this position. He argued that the free market is the only viable social system. Interferences with it will fail to achieve the goals their supporters favor; and, if continued and extended, lead to socialism, a system doomed to calculational chaos.
As will by now be evident, the topic of rights is central to George’s book. Reading George’s account of rights leads me to one more question. George writes: “Whatever the origin of individual rights may be, the general notion of a political right to compel obedience is implicit in the notion of political obligation. To ponder our duty to obey a political authority is also to ponder the right of that authority to compel obedience. Whether this authority was historically conceived as secular or religious is irrelevant to this point, as is the specific language that was used to express this right. So long as political philosophers were concerned with the justification of political obligation, they were also concerned with the justification of political rights.” (p.68, emphasis in original)
I do not doubt that George is here perfectly correct. If I am obligated to obey someone, this obligation can be rephrased as someone’s right to compel me to obey. The question I wish to raise is whether the principal defenders of a duty to obey the state did in fact speak in this connection of the right of the state to compel obedience. They could have, but did they? Would, e.g., defenders of absolutism have said something like this: “You are required to obey the king, because if you don’t, you would be violating the king’s rights”?
That is a very broad question, so let us narrow it down. In his discussion of sovereignty, George rightly draws attention to Jean Bodin. “Sovereign power, according to Bodin, is ‘absolute and perpetual’; a sovereign authority is not limited in power, in function, or in length of time. This stress on the absolute nature of sovereign power is what links Bodin and others in his school to the political approach called ‘absolutism.’”(p.77) Did Bodin speak of the sovereign’s right to compel obedience? I do not mean in asking this to suggest that he didn’t. It has been many years since I read him, and I fear that I do not recall. But I think it is an important question whether the language of rights was explicitly used about the sovereign.
In his discussion of sovereignty, George valuably draws attention to an argument deployed by Bodin and by Marsilus of Padua before him. According to this argument, there must be a single final source of authority to resolve conflicts in a society. Marsilus imagines a situation in which there are several competing governments in a territory. Each government might at the same time summon a person to appear before its respective court, but the person summoned, unable to be in two places at the same time, “would be held in contempt by at least one ruler for failing to fulfill a moral and legal obligation that no one could possibly fulfill.” (p.79)
It is worth pointing out that this argument does not on its own terms succeed in showing the need for a single sovereign. Suppose someone faces conflicting legal obligations of the kind described. For each such instance, there must be an authority to resolve the conflict. Otherwise, the person will be unable to fulfill at least one obligation. It does not follow from this, though, that the same authority must resolve all such disputes. From “For each conflicting obligation, there must be an authority to determine which (if any) is binding” it does not follow that “There must be in a society be a single authority to resolve all disputes about obligations.” The fallacy is the same as that involved from going from “Every person has a father” to “Someone is everyone’s father.”
The System of Liberty is a major contribution to the understanding the classical liberal tradition, and I highly recommend it. The chapter “The Anarchy Game” is particularly important.
 Note, to revert to my previous question, that to claim that observing people’s rights will promote social utility is not to claim that the rightness of doing so brings about an increase in utility.
My good friend George Smith is, in all likelihood, the premier scholar of freethought of the present day, besides being an excellent historian of modern political thought in general. His new book will doubtless be an important contribution to the history and philosophy of classical liberalism.
I wonder, though, whether George has ever considered why liberalism and the idea of freedom originated in the West and not in other great civilizations, such as China, India, and Islam. Ludwig von Mises noted the fact that liberalism is quintessentially Western, but, again, did not explain why. In fact, in Europe even classical antiquity lacked the idea of individual freedom. For the Greeks, the polis was the center of their existence. The Romans worshipped their city; Roma was a goddess, with temples and priests to serve her.
What made the difference in the West was the introduction of a powerful new factor: Christianity.
Christian contributions include the mitigation of slavery and a greater equality between parents within the family. But the crucial political impact of Christianity emerged with the critique of state-worship of the early Church Fathers, particularly St. Augustine, who contrasted the City of God to the City of Man, giving unquestionable priority to the first. Karl Ferdinand Werner, in (Baechler, Hall, and Mann, eds. Europe and the Rise of Capitalism, 1988) pointed out that St. Augustine and other Christian writers had desacralized the state and thus radically altered the conception prevalent in Greco-Roman antiquity.
In my view, a reliable guide to the history of liberty is Lord Acton. In his great essays, “The History of Freedom in Antiquity” and “The History of Freedom in Christianity,” Acton traced the dichotomy that made liberty possible to the words of Jesus Himself:
When Christ said: “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s,” those words, spoken on His last visit to the Temple, three days before His death, gave to the civil power, under the protection of conscience, a sacredness it had never enjoyed, and bounds it had never acknowledged; and they were the repudiation of absolutism and the inauguration of freedom. [From “The History of Freedom in Antiquity”.]
A Roman Catholic, Acton explains how Jesus provided, in addition to the idea, the practical means for its achievement:
For our Lord not only delivered the precept, but created the force to execute it. To maintain the necessary immunity in one supreme sphere, to reduce all political authority within defined limits, ceased to be an aspiration of patient reasoners, and was made the perpetual charge and care of the most energetic institution and the most universal association in the world. The new law, the new spirit, the new authority, gave to liberty a meaning and a value it had not possessed in the philosophy or in the constitution of Greece or Rome before the knowledge of the truth that makes us free. [From “The History of Freedom in Antiquity”.]
Acton records the results of the medieval struggle between the Catholic Church and the state:
To that conflict of four hundred years we owe the rise of civil liberty…. [A]lthough liberty was not the end for which they strove, it was the means by which the temporal and the spiritual power called the nations to their aid. The towns of Italy and Germany won their franchises, France got her States-General, and England her Parliament out of the alternate phases of the contest; and as long as it lasted it prevented the rise of divine right. [From “The History of Freedom in Christianity.”]
In recent years, Acton’s conclusions have come to be supported by a large body of scholarship. Harold J. Berman, in his essay, “The Influence of Christianity on the Development of Western Law” (1974) and his work, Law and Revolution: The Transformation of the Western Legal Tradition (1983),has stressed that with the fall of Rome and the eventual conversion of the Germans, Slavs, Magyars, and other peoples, Christian ideas and values suffused the whole blossoming culture of Europe. Importantly, such Christian ideas included the concept of natural law, including the legitimacy of resistance to unjust rulers.
Berman, like Acton, focuses attention on a critical development that began in the 11th century: the creation by Pope Gregory VII and his successors of a “corporate, hierarchical church … independent of emperors, kings, and feudal lords,” [p. 56] and thus capable of foiling the power-seeking of temporal authority. In this way, he bolsters Acton’s analysis of the central role of the Catholic church in generating Western liberty by forestalling any concentration of power in the secular rulers such as marked the other great cultures.
Berman’s work is in the tradition of the learned English scholar, A. J. Carlyle, who, at the conclusion of his six-volume study of political thought in the Middle Ages, A History of Medieval Political Theory: Political Theory from 1300 to 1600 (1950), summarized the basic principles of medieval politics: that all–including the king–are bound by law; that a lawless ruler is not a legitimate king, but a tyrant; that where there is no justice there is no commonwealth; and that a contract exists between the ruler and his subjects.
Other recent scholarship has supported these conclusions. In his last, posthumous work (Religious Thought and Economic Society, 1978), the distinguished historian of economic thought, Jacob Viner, noted that the references to taxation by St. Thomas Aquinas “treat it as a more or less extraordinary act of a ruler which is as likely as not to be morally illicit.” Viner pointed also to the medieval papal bull, In Coena Domini–evidently republished each year into the late eighteenth century–which threatened to excommunicate any ruler “who levied new taxes or increased old ones, except for cases supported by law, or by an express permission from the pope.”
Throughout the Western world, the Middle Ages gave rise to parliaments, diets, estates-generals, Cortes, etc., which served to limit the powers of the monarch. A. R. Myers (Parliaments and Estates in Europe to 1789, 1975) notes:
Almost everywhere in Latin Christendom the principle was, at one time or another, accepted by the rulers that, apart from the normal revenues of the prince, no taxes could be imposed without the consent of parliament…. By using their power of the purse [the parliaments] often influenced the rulers policies, especially restraining him from military adventures. [pp. 29-30]
Popular rights, above all protection against arbitrary taxation, were defended by representative assemblies elected by the tax-bearing classes and were often enshrined in charters that the rulers felt more or less obliged to respect. In the most famous of these, the Magna Carta, which the barons of England extorted from King John in 1215, the first signatory was Stephen Langton, Archbishop of Canterbury.
In a synthesis of modern scholarship (Inventing the Middle Ages, 1991), Norman F. Cantor has summarized the heritage of medieval times
In the model of civil society, most good and important things take place below the universal level of the state: the family, the arts, learning, and science; business enterprise and technological process. These are the work of individuals and groups, and the involvement of the state is remote and disengaged. It is the rule of law that screens out the state’s insatiable aggressiveness and corruption and gives freedom to civil society below the level of the state. It so happens that the medieval world was one in which men and women worked out their destinies with little or no involvement of the state most of the time. [p. 416]
One highly significant factor in the advance of the West is its relative lack of institutionalized envy. The sociologist Helmut Schoeck (Envy: A Theory of Social Behavior, 1987) has drawn attention to the omnipresence of envy in human societies. Perceived as a grave threat by those at whom it is directed, it typically results in elaborate envy-avoidance behavior: the attempt to ward off the dangers of malicious envy by denying, disguising, or suppressing whatever traits provoked it. The anti-economic consequences of socially permitted–or even encouraged–by envy and reactive envy-avoidance scarcely lend themselves to quantification. Nonetheless, they may clearly be highly damaging. Western culture has somehow been able to inhibit envy to a remarkable degree, a fact that Schoeck links to the Christian faith: “It must have been one of Christianity’s most important, if unintentional, achievements in preparing men for, and rendering them capable of, innovative actions when it provided man for the first time with supernatural beings who, he knew, could neither envy nor ridicule him.”
Thus, long before the 17th century, Europe had produced political and legal arrangements and personal attitudes—a whole way of life—that set the stage for both individual freedom and the later industrial “takeoff.”
With the Reformation and the French Revolution, the Church felt compelled to turn to the state to fight its Protestant and then its anti-Christian enemies (an alliance that lasted into the 19th century). By then, though, the job of the Catholic Church in engendering Western liberty was done.