Vol. 17 No. 2 (February, 2007) pp.87-91
MODERN LIBERTY AND THE LIMITS OF GOVERNMENT, by Charles Fried. New York: W.W. Norton & Company, 2006. 288pp. Hardback $24.95. ISBN: 0393060004.
Reviewed by Samuel T. Morison, Office of the Pardon Attorney, U.S. Department of Justice. E-mail: stm5 [at] georgetown.edu.
The concept of liberty – like closely related political terms such as equality, justice, and democracy – seems to be what William Gallie (1956) called an “essentially contested concept.” While the notion of essential contestability itself has been a matter of some debate, the basic idea has a strong intuitive appeal in social thought, particularly if one accepts the pluralistic assumption that there exists no single conception of the good that is compelling for all persons and that the clash of incommensurable ends is therefore an ineliminable feature of civic life. The suggestion, then, is that while linguistic and conceptual analysis may be able to produce a reasonable degree of consensus about the abstract meaning of the key terms of political discourse, or at least a range of meanings that share a family resemblance, the persistence of widespread disagreement about the criteria for their correct application is likely to remain intractable. The source of the disagreement is precisely that differing judgments about the best realization of these political ideals are rooted in substantive normative commitments to rival visions of social life, which are deeply resistant to rational resolution.
The extent of the dispute becomes clear when one considers specific cases. Everyone presumably agrees that physically restricting a person’s bodily movements by, say, shackling his hands and feet in chains is a prima facie violation of his liberty, which can be justified, if at all, only on some morally serious ground, such as the conviction of a crime. In this sense, liberty simply means freedom from external constraints. The problem of economic necessity, however, is much more vexing. Whatever else it may mean for citizens in a community to enjoy maximum equal freedom, if the coercive enforcement of the system of property and contract rights that underlies capitalist competition creates the conditions in which some persons are chronically hungry, poorly educated, unable to afford adequate medical care, or presented with few and unappealing employment prospects, they are certainly not free from those constraints in the pursuit of whatever aspirations they happen to have. The question thus arises: can a person really be said to be free in the relevant sense if she is faced with substantial social obstacles that, through no fault of her own, impede or defeat her ability to develop and pursue her own idiosyncratic life plan?
More broadly, the outstanding hallmark of large-scale market institutions is their tremendous productive capacity, which has proven to be an unrivaled engine of economic growth, innovation and efficiency. But the process of “creative destruction” engendered by markets is [*88] by no means an unqualified good, and therefore stands in tension with the competing values of a small-scale market place, which are instantiated, for example, in those ubiquitous zoning ordinances enacted by local polities designed to restrain unfettered market outcomes. At the very least, the impulse to place limits on commercial activity in order, say, to preserve green spaces or the unspoiled character of a neighborhood clearly enjoys widespread democratic support. Even within the liberal tradition, theorists’ normative intuitions about these matters differ sharply, ranging from anarcho-capitalism on one end of the spectrum to socialism on the other end, with welfare liberalism ambiguously located somewhere in between. The practical business of politics – at the retail level, so to speak – can be understood as an attempt to adjudicate between these competing conceptions of freedom.
If I have read him correctly, Charles Fried’s graciously written but thinly-argued essay – Fried himself has characterized it as a “very unbuttoned book,” chock-full of “free association” – is an effort to reintroduce to a wide audience Benjamin Constant’s notion of “the liberty of the moderns,” which, as G. K. Chesterton famously quipped, was “the philosophy in office” during the nineteenth century. Fried’s primary aspiration is thus to rescue the classical liberal conception of liberty from the contemporary positivist dogma that rights claims are little more than conventional forms of legal regulation the state confers for its own purposes, with the consequence that we have only whatever civil liberties it deigns to grant us. Without denying the material benefits derived from the modern welfare state, Fried argues that a coherent theory of political liberty must be grounded in certain imprescriptible facts of human existence (about which more below), which constitute the empirical foundation for ascribing a set of natural or inherent rights that both determine the legitimate scope of our freedoms and are resistant to manipulation by the government. “If we have some rights, and therefore liberties, that are prepolitical rights which the state is bound to recognize,” he asserts, “rights that are there before the state gets down to the business of defining rights, then, like Archimedes with his lever, we have a place to stand, and liberty can move the world. . . . [U]nless we have [such] natural, prepolitical rights, liberty is not secure” (pp.144-145). Quite the contrary, Fried claims that if we assume that such rights are not naturally given, but rather are “defined by what government does, then government cannot be constrained by that freedom” (p.113).
Accordingly, Fried’s analysis begins with an anthropological observation, namely the “rock-bottom, indigestible fact of each person’s lonely individuality, his ultimate responsibility for his own beliefs, judgments, and choices,” which in turn “grounds our demand that we be free” (p.22). He readily acknowledges that human development, and hence the capacity to exercise autonomous choice responsibly, depends crucially on the material support of others, given that “we are born ignorant, unreasoning, and dependent” (p.172). Nonetheless, he [*89] insists that the fundamental right of competent adults to go about the business of living without officious intermeddling, “except as we choose to ask for or give our cooperation,” is an implication of the existential fact that “[w]hat gives my goals and satisfactions worth – depth and intensity – is that they are mine, that I have imagined them, seen them, judged and chosen them” (pp.60, 67).
In this view, it follows that liberty, rightly understood, is an exclusively negative relation between persons, “a relation in which each person refrains from interfering with the self-determination of others,” out of respect for their not-yet-fully-realized capacity for rational agency, rather than a positive relation in which one is effectively “enlist[ed] into a cause one does not share” (pp.51, 32). The content of our rights, therefore, consists in “the entailments of what we are: free and reasoning persons, capable of a conception of what is good, and mortal, so that in the end we are urgently responsible to ourselves for achieving that good (which in all likelihood often concerns the good of others).” For this reason, “those who say that our rights depend on or are the creatures of states have it the wrong way around” (pp.71-72).
There is, to be sure, much to be said in favor of this venerable account of the foundation of human rights as a vehicle for authentic self-realization. As Jeffrey Reiman (1997) has pointed out, it has been a staple of Enlightenment thought at least since Descartes that human beings necessarily exercise authority over their own beliefs, because even when a person harbors doubts about the certainty of her beliefs, she always has a reason for doubting (e.g., an evil demon might be deceiving her, her cultural blinders might be misleading her, and so on). This is arguably true even when a person assents to the dogmatic authority of some comprehensive religious or philosophical doctrine, because she must ultimately judge for herself that it is worthy of her allegiance. The authority of reason in this sense, which is an inherent feature of our unique linguistic capacity, is thus a condition of the possibility of inquiry, discourse, interpretation, and so on, rather than merely the imposition of a parochial Western viewpoint.
Furthermore, if this picture of human beings as embodied rational animals is roughly correct, as I am inclined to believe, then it is arguably appropriate to allow persons so constituted to live as far as possible by their own lights, according to beliefs that they judge for themselves to be worthy of assent, consistent with the ability of others to do likewise. This also explains why it is widely thought to be a serious moral insult to force one’s normative judgments about the best form of life on those who do not freely assent to them. Accordingly, Fried quite plausibly argues that there is a kind of realist moral basis for political liberalism’s robust endorsement of rights to the free expression of ideas, however offensive or unpopular (pp.95-123), to form close associations with others, including intimate sexual relationships, without public interference (pp.124-143), and to acquire, possess and exchange personal [*90] property (pp.144-161), each of which is a necessary component of individual human flourishing.
But while this conception of “individual sovereignty” (as Reiman puts it) implicates a set of characteristically liberal duties or moral requirements concerning the just treatment of persons, it does not necessarily yield convincing answers to the sort of the policy questions that Fried is anxious to insulate from the reach of democratic intrusion, such as the delivery of health care services or the sale of ordinary consumer goods by large corporate retailers. As Fried admits, the definition of the legal incidents of property and contract constitutes a persistent source of controversy, since no such regime is naturally given, yet has the effect of “limiting the liberty of some as it establishes the liberty of others,” which, in turn, threatens to produce “[g]ross inequalities . . . [that are] incompatible with relations of trust and respect” (pp.147-148). The injunction to maximize liberty therefore significantly underdetermines policy initiatives, which require the exercise of a qualitative and not merely a quantitative judgment about what counts as a genuine constraint on personal freedom.
Indeed, as Jeremy Waldron (1992) has argued, even if we assume that there are moral facts about human nature that make evaluative judgments objectively true or false, independently of what anyone thinks about the matter, there is neither any agreement about what those facts entail nor a widely-held consensus on an epistemic procedure for authoritatively resolving such differences, as there is in the natural sciences. “The facts don’t reach out and grab the decision-maker,” Waldron observes, “preventing her from deciding capriciously, or dictating themselves to her in any unavoidable way. . . . Facts don’t constrain us in the sense of constraint in which we are interested in politics.” As a result, legislators, judges, bureaucratic administrators and voters will invariably reach conflicting value judgments about such contested questions of social policy, “even when they take themselves to be pursuing the right answer, and nothing about the ontology of the right answer gives any of them a reason for thinking her own view is any more correct than any other.”
The persistence of moral disagreement certainly does not imply that any definition of rights the government officially adopts is ultimately warranted – far from it. The result of a democratic decision procedure does not necessarily bring the demand for justification to an end. But it does suggest that, even if there is a meaningful sense in which an individual’s right to liberty is grounded in the natural fabric of human relations, as Fried claims, the concrete scope of each person’s liberty is invariably a matter for social choice, based on a fallible assessment of the normative merits of the question at issue. The tangible content of such rights cannot be simply read off an apolitical moral landscape. But this means that, if government regulation is to be constrained within reasonable limits, it is a matter for which we share joint responsibility. No account of human nature, contra Fried, can relive us of the burden of choice. [*91]
REFERENCES:
Gallie, William B. 1956. “Essentially Contested Concepts.” 56 PROCEEDINGS OF THE ARISTOTELIAN SOCIETY 167-198.
Reiman, Jeffrey. 1997. CRITICAL MORAL LIBERALISM: THEORY AND PRACTICE. New York: Rowman & Littlefield.
Waldron, Jeremy. 1992. “The Irrelevance of Moral Objectivity.” In Robert P. George (ed). NATURAL LAW THEORY: CONTEMPORARY ESSAYS. New York: Oxford University Press (158-187).
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© Copyright 2007 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official position of the U.S. Department of Justice.