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REALIZING FREEDOMLibertarian Theory, History, and Practice
By TOM G. PALMER
CATO INSTITUTECopyright © 2009 Cato Institute
All right reserved.
On the 23rd of March, 1775, Patrick Henry mounted the pulpit of St. John's Church in Richmond, Virginia, to deliver his famous "Give Me Liberty" speech before the delegates to the Virginia Convention. His topic was the undecided question of war for independence and freedom. He understood that the issue was one that required thought, debate, and high seriousness-in a word, theory. As he stated:
The question before the house is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at the truth, and fulfill the great responsibility which we hold to God and our country.
But he also knew that theoretical speculation alone was not sufficient; theory without history is blind. History is the key to understanding the affairs of mankind:
I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past.
Neither contemplation nor observation, however, is sufficient to secure justice and liberty. Ideas and policies do not implement themselves. For that, action-practice-is required:
Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!
This book is about the theory, the history, and the practice of liberty. It consists of a selection of the essays, long and short, that I have published over the past few decades. As I reviewed my published works and culled out those that were too dated, or too esoteric, or too juvenile, I noted several themes that have matured in my thinking on the themes of freedom, justice, and social order and that recur in various forms in the essays in this volume.
Liberty, Rights, and the Rule of Law
The first theme regards the intimate connections between liberty, rights, and the rule of law. That sentence, concluding with "the rule of law," may sound stale and uninspiring to some, but the rule of law is the key to freedom. I recall watching, some years ago, a German film that had a doddering old man pronouncing gravely that "the Rechtsstaat [the law-governed state] is a great accomplishment." The point of the vignette in the film was to belittle the idea of the rule of law, but the elderly gentleman, who no doubt lived through the horrors of National Socialism, had good reason to be appreciative of the law-governed state. It should, in fact, be inspiring, and the more I have worked to advance liberty, the more I have come to appreciate the central importance of the rule of law and to be inspired by it. Its centrality has been made all the more evident in my work in post-totalitarian societies, in which the central issue is the development of the legal and political legal institutions of liberty. Without the rule of law, one is at the mercy of the arbitrary will of others, and that is to exist in a condition of nonfreedom. The rule of law is always at the center of the struggle for liberty, whether in the countries of central Asia, China, east Asia, Russia, Eastern Europe, Africa, Latin America, or North America.
When I first began to think seriously about the issue, after my exposure to the great theorists of the Rechtsstaat and the writings of James Madison, Bruno Leoni, F. A. Hayek, Lon Fuller, Harold Berman, and others, I saw how naïve are formulations of liberty that rest on merely "doing what you want," or on "enjoying one's rights," without attention to the legal/institutional framework within which equal freedom can be realized. More specifically, stability of rules (and rights are rules that govern actions) is a necessary condition of freedom. I have quoted several times in this book, in several essays, Locke's statement that:
[T]he end of law is not to abolish or restrain, but to preserve and enlarge Freedom: For in all the states of created beings capable of Laws, where there is no Law, there is no Freedom. For Liberty is to be free from restraint and violence from others which cannot be, where there is no Law: But Freedom is not, as we are told, A Liberty for every Man to do what he lists: (For who could be free, when every other Man's Humour might domineer over him?) But a Liberty to dispose, and order, as he lists, his Persons, Actions, Possessions, and his whole Property, within the Allowance of those Laws under which he is; and therein not to be subject to the arbitrary Will of another, but freely follow his own. (John Locke, Second Treatise of Government, Chap. VI, 57.)
Those who have the power to arbitrarily reassign, eradicate, or create "rights" to achieve their ideas of fairness, efficiency, or community, put the rest of us at their mercy and eradicate our freedom. Moreover, rights that are so mutable are not rights at all. James Madison put it quite succinctly in Federalist No. 62, when he said of a "mutable policy":
It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action, but how can that be a rule, which is little known, and less fixed?
It was the great accomplishment of classical rights theory to connect "subjective right" (it's her right to X) and "objective right" (it is right to Y), meaning that the way in which justice is achieved is mutual respect for rights. That achievement is in peril from theorists who sever the relationship, such that rights must be systematically overridden in order to achieve "social justice," a process that-to the extent that it is realized-weakens or even eliminates the rule of law, rights, justice, and freedom.
I consider alternative, nonlibertarian accounts of freedom in the first essay in this volume, "Freedom Properly Understood"; nonlibertarian accounts of rights in the essays "Saving Rights Theory from Its Friends" and "What's Not Wrong with Libertarianism," in my essay on John Rawls's theory of justice, "No Exit: Framing the Problem of Justice," and in several of the reviews included in the section on "Books and Ideas."
The topic of the relationship between freedom, rights, and the rule of law is one that deserves much more thought and study. I hope that my studies may help others to delve more deeply into the issues and may help us to understand the interconnection of dignity and rights, autonomy and freedom, and justice and the rule of law.
Abstract Rights Concretely Situated
The second theme regards the historical rootedness of abstractly formulated accounts of rights, and the importance of identifying narratives of liberty for each culture. I strongly disagree with those who identify libertarian principles with "Western culture," for several reasons. "Western culture" includes not only the ideas of freedom, justice, peaceful trade, respect for rights, and the rule of law, but also coercion, theft, slavery, genocide, war, and other decidedly nonlibertarian practices. As my Chinese friends have pointed out, communist totalitarianism is not really a "Chinese idea," unless you consider the German communist Karl Marx to have been "Chinese." All cultures and civilizations contain within themselves narratives of freedom and narratives of subjugation, and the task of libertarians is to identify within each cultural context the indigenous narratives of freedom and connect them with the present struggle for freedom. The task may be harder or easier to carry out in different contexts, but there is no culture that is purely libertarian, nor any that is purely anti-libertarian.
The rights claims of the classical liberal tradition are abstractly formulated; as the American Declaration of Independence put it:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The text does not say that "people like us" are so endowed, but that all human beings have such rights. Like the claims of law generally, it is abstractly formulated.
Notably, though, the text of the Declaration of Independence was written and deployed in a particular context; that text, in different contexts, later provided powerful intellectual support and moral inspiration for more consistent application of the idea of equal rights, regardless of gender, race, and other accidental features of human beings. But its rootedness in a particular historical tradition (for example, drawing on item 39 of Magna Carta of 1215) gave it more of a grip, so to speak, than purely abstractly formulated claims not rooted in such identifiable narrative traditions. Its history gave it an appeal that a merely abstract statement would have lacked. Item 39 of the Magna Carta stated that:
No freeman shall be captured or imprisoned or disseised [to have one's estate seized] or outlawed or exiled or in any way destroyed, nor will we [the King] go against him or send against him, except by the lawful judgment of his peers or by the law of the land.
That statement had a great impact on the subsequent development of the ideas of liberty and the rule of law, including key elements of the Constitution of the United States of America (trial by jury and due process of law, for example). But as Voltaire reminded us, the phrase "freeman" in that text does not refer-as it was later interpreted and deployed to mean-"everyone," for if so, why specify "freeman" at all? It tells us that at that time not everyone was a freeman; indeed the term freeman specified a narrowly defined class of people. But in later contexts, that text was deployed to achieve freedom for more people. That text, with its deep connection to English identity, provided strong roots for the more libertarian applications of it that came later. Magna Carta is largely forgotten among speakers of English today, but it was well known by those who penned the American Declaration of Independence and the U.S. Constitution. Today, the role of Magna Carta is played by those later documents in the consciousness of American advocates of liberty.
In a Chinese context, the writings of Lao Tzu and Meng Tzu (Mencius) play a similar role, and create a culturally Chinese context for basic libertarian insights that were expressed long before Magna Carta, the Declaration of Independence, or The Wealth of Nations were written. Similar statements and claims can be found in the writings of Lao Tzu and Meng Tzu, and in the writings of the Islamic tradition, in African legal culture, and in every culture and every civilization-for the desire for freedom has been present in all of them.
The great challenge for libertarians in all cultures and contexts is to identify the roots of liberty in their own culture and to connect our struggle with those roots. I have learned much-including reason for humility-from my libertarian friends and colleagues in Russia and Eastern Europe, in the Muslim world, in Africa, in China, in Central and South America, in south and central Asia, well ... everywhere, about the dialectic of the universal and the particular that characterizes the struggle for liberty. The roots of freedom are there in each culture; they must be excavated and reconnected with the present for our cause to be successful. That effort will give liberty the deep roots that it needs in order to flourish and to resist the efforts of the enemies of freedom who try to eradicate it; and at the same time it will reveal the universal character of fundamental justice.
I have treated some of those themes in "Classical Liberalism and Civil Society" and "The Great Bequest," as well as in passing in some of the other essays. I hope that my friends in other contexts will be able to do a better job than I at identifying the roots of liberty in their own cultures and creating narratives of freedom that will change the world for the better.
Ideas as an Independent Variable
The third theme, which may seem obvious to some, is the independent role-for good or for ill-of ideas. The idea that the "superstructure" is determined by the "material base" has been substantially discredited, certainly in the primitive form posited by Marxists. (For the way in which Marx adopted from libertarian writers-and then completely muddled-the idea of group conflict, see "Classical Liberalism, Marxism, and the Conflict of Classes: The Classical Liberal Theory of Class Conflict.") Ideas have an ability to sway us, sometimes in very self-destructive ways. The challenges posed to libertarian ideas toward the end of the nineteenth century by nationalism, socialism, racism, and imperialism are examples of the independent power of ideas. There was no "material necessity" for European society to abandon the ideas of freedom; it was a failure of the liberals of the time to meet the challenges posed by their competitors that doomed so much of humanity to the violence, oppression, brutality, poverty, and suffering inflicted on them in the name of "the nation," "the state," "the race," "the universal class," or the other false gods to which flesh and blood humans were sacrificed. It was in the battle of ideas that liberalism was first defeated. As the libertarian editor of The Nation E. L. Godkin opined in 1900, "Only a remnant, old men for the most part, still uphold the Liberal doctrine, and when they are gone, it will have no champions." In one of the most chilling prophecies ever penned, he predicted that:
We hear no more of natural rights, but of inferior races, whose part it is to submit to the government of those whom God has made their superiors. The old fallacy of divine right has once more asserted its ruinous power, and before it is again repudiated there must be international struggles on a terrific scale.
And so it turned out to be. Godkin identified as the enemy of liberty, not an irresistible force, but "the old fallacy," that is, an old and previously refuted idea.
The German novelist and philosopher Robert Musil portrayed the experience of that generation of liberals very well in his book The Man Without Qualities, in the form of the experience of a Jewish businessman in pre-World War I Vienna, who has to suffer the involvement of his daughter in the milieu of "Christian socialism," with its horrible promise of future anti-Semitic mass murder. Musil wrote:
Director Leo Fischel of the Lloyds Bank enjoyed philosophizing, but only for ten minutes a day. He enjoyed thinking that human life had a solid rational basis and that it paid off intellectually; he imagined this on the pattern of the harmonious hierarchy of a great bank and noted with satisfaction the daily signs of progress he read about in the papers. The faith in the immutable guidelines of reason and progress had for a long time enabled him to dismiss his wife's carpings with a shrug or a cutting retort. But since misfortune had decreed that in the course of this marriage the mood of the times would shift away from the old guidelines of liberalism that had favored Leo Fischel-the great guiding ideals of tolerance, the dignity of man, and free trade-and reason and progress in the Western world would be displaced by racial theories and street slogans, he could not remain untouched by it either. He started by flatly denying the existence of these changes, just as Count Leinsdorf was accustomed to deny the existence of certain "unpleasant political manifestations" and wait for them to disappear of their own accord. Such waiting is the first almost imperceptible degree of the torture of exasperation that life inflicts on men of principle. The second degree is usually called, and was therefore also called by Fischel, "poison." This poison is the appearance, drop by drop, of new views on morals, art, politics, the family, newspapers, books, and social life, already accompanied by the hopeless feeling that there is no turning back and no indignant denials, which cannot avoid a certain acknowledgement of the thing denied. Nor was Director Fischel spared the third and final degree, when the isolated showers and sprinklings of the New turn into a steady, drenching rain. In time this becomes one of the most horrible torments that a man who has only ten minutes a day to spare for philosophy can experience.
Excerpted from REALIZING FREEDOM by TOM G. PALMER Copyright © 2009 by Cato Institute. Excerpted by permission.
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