THE PHILOSOPHIC CONCEPT OF LIBERTY

Liberty is a word with many meanings. Every language in the world has a word for "liberty", and it is mentioned in the U.S. Constitution several times: "To secure the blessings of liberty..."; "Life, liberty, and the pursuit of happiness"; "Life, liberty, and property." The term is often used to describe the sum total of specific liberties, including:

Liberty has a history showing it varies with time and place. In England prior to the Habeas Corpus Act (1679) a person could be seized and kept in prison indefinitely without trial or hearing. Freedom of conscience was unheard of prior to the Protestant Reformation. The rights to vote and hold public office were practically unknown before the 19th century. Liberties are acquired through the joining of like-minded individuals to gain special privileges for themselves. The most familiar event was the Magna Carta when English barons in 1215 wrested from King John certain freedoms that in time they had to share with the rest of the people.

The history of liberty has always involved groups of people winning immunities from external control. In the middle ages, artisans and craftsmen, by agreements with their feudal overlords, obtained release from certain feudal dues and bonds, gaining a limited freedom to carry on trade and manufacture, which formed the nucleus of a middle class and the foundation of capitalism. Our founding fathers wanted America to be capitalist and to have a large middle class, and that's why so much of liberty in the American context is all about freedom of commerce and contract. The feminist movement is a good example of the attempt to gain liberty in this sense. Other minority groups haven't gotten past the stage of acquiring civil liberties. 

The acquired nature of liberty -- its dependence on conditions of time and place -- also makes it particularly susceptible to loss. Liberties have to be maintained, defended against encroachment, or else they become curtailed, restricted, and eventually disappear. Even the best of governments do this in times of national emergency when rights are suspended, as was the right of habeas corpus by President Lincoln during the Civil War. Democracy is a term describing a process by which citizens compete for scarce resources and power to turn their preferences into law. It's a game of numbers which assumes equal footing at the starting line and that wins and losses will be more or less evenly distributed. Our founding fathers knew this and that's why so many personal and political liberties are guaranteed -- to avoid the specter of perpetual winners at the expense of perpetual losers. Tyranny by the majority is just as bad as tyranny by the minority. In America, democracy has always been representative (indirect vote) rather than plebiscitary (direct vote). The distinction is therefore made between a democracy and a republic. The U.S. is not a true democracy; it's a republic; or more properly a constitutional republic. People don't vote or have direct input into decisions everyday, as a true democracy would. Instead, they elect representatives from among the people who make the hard decisions. The only way to ensure liberty in a constitutional republic is by a system of checks and balances, and by ensuring that people elected to civic office are virtuous and from among the people.     

The notion of self-expression (internal liberty), as opposed to freedom from restraint (external liberty), has become increasingly important to the philosophical concept of liberty. Internal liberty involves the creation of conditions necessary for individuals to develop their fullest potential. This idea has always been closely tied to the notion of equality, as that term was used during the French Revolution, when liberty became associated with equality of opportunity. Inequality of opportunity is the greatest obstacle to individual development and liberty than any form of external restraint. Therefore, the French Revolution took the American Revolution a step further by trying to equalize as much as possible conditions in such areas as education, health, housing, and establishing freedom from want and fear, so that every individual might have an equal opportunity for self-realization. Comparatively speaking, the United States has been a late player in the game of equal opportunity. 

To be sure, there's also been the global problem of imperialism. The right of former colonies to be independent and sovereign has also come to be regarded as a principle of liberty. Since 1945, more than 50 former colonial areas have become independent states. The UN Commission on Human Rights has sought to promote the extension of political and cultural liberty throughout the world through treaties and covenants, the most important of which has been the Declaration of Human Rights. Liberty is one of those concepts where a threat to it anywhere is a threat to it everywhere, this being the idea of fraternity or brotherhood.

NATURAL LAW AND SOCIAL CONTRACT

Liberty is a word that can be used for many political purposes, to justify constitutionalism as well as fascism. It can be used to justify anarchism (no government at all) or the nationalist dream of total world domination. You can even set up a constitutional monarchy under the guise of liberty, or a totalitarian regime under Rousseau's version of republicanism as popular will. Politicians of every stripe usually have no problem working the word into their political rhetoric. It's not a conservative-liberal issue. It's a political philosophy issue. To examine this issue, we need to understand two competing philosophies -- natural law and social contract. It's widely regarded that the U.S. Constitution is an unusual mixture of natural law and social contract. The idea of natural law is very ancient, going back to the Greeks and Romans. The idea of social contract also reaches back to the ancient Greeks.     

NATURAL LAW

The idea of natural law is tied to a conception of the whole universe as organized, regular, repetitive, cyclical, or predictable. The ancient Greeks called it Kosmos, the order of things as opposed to chaos. To have wisdom about it was called Logos, and to know the direction of it was called Telos. Natural law is at once an organizing, directing, and moving principle. It is always superior to human law (positive law), no matter how well-designed. Plato defined justice as conforming to natural law. Aristotle derived the concept of right from the idea of justice ("what everywhere has the same effect and does not depend on diverse opinion"). After the death of Aristotle, Greeks and Romans divided into two camps - the Epicureans and the Stoics - with the Stoics maintaining the idea of natural law as cosmopolitanism, or world citizenship. The most famous Stoic was Cicero, who said "true law is right reason which conforms to nature", this standing as a definition of natural law for many years. 

After the fall of Rome and the rise of Christianity, the Church adopted natural law as official doctrine. The apostle Paul was a Stoic who said "nature has given the pagans something, a law engraved in their hearts, to which their conscience bears witness as well as their thoughts" (Romans 2:14-15). Subsequent Church scholars debated the degree to which reason (conscience and thoughts) is integrated with faith (a law engraved in their hearts). St. Augustine believed that natural law cannot exist without faith in God, and St. Thomas Aquinas believed that natural law is implicit in reason. Then there was Albert the Great (1206-80) who defended vigorously the idea that natural law is the intended product of human reason. In the Middle Ages, natural law consisted of a simple Golden Rule -- pursue good and avoid evil.

During the Renaissance, two important thinkers were Jean Bodin (1530-96), who defined tyranny as any government which violates natural law, and Hugo Grotius (1583-1645), who claimed that even if God did not exist, there would still be natural law. Some have called Grotius the father of natural law. After the Renaissance, natural law became equated with the natural faculties of humans. Because it is an innate part of human nature and has been around since the origin of mankind, natural law is always equitable and just.  

The so-called Protestant school of natural law in the Reformation associated natural law with the moral value of freedom. Human law is amoral; natural law is moral. Man by his very nature is the concrete bearer of freedom, and justice is anything that preserves the dignity of free men making moral decisions. The Protestant doctrine is that the dignity of all people outweigh the dignity of any one man -- such as a king or Pope. This would later evolve into the theory of natural rights -- that personal dignity outweighs any sovereignty needs of government. The most influential Protestant leaders were Martin Luther and John Calvin. In Germany, Luther preached salvation by faith and the liberty of Christians to interpret Scripture any way they wanted. This notion of liberty established itself in every religion except for Catholicism and Anabaptists. In Switzerland, Calvin preached that all churches and pastors were equal, that congregations should enforce a morally disciplined private life for its members. As it happened, Calvinism became a militant movement for political rebellion internationally.

Calvinists in England persecuted the Puritans, a group of Anglicans who believed they could reform the Church of England from within. They eventually opposed the existence of any state Church whatsoever, and in order to avoid persecution and to follow their conscience, fled to America as the first colonists. Along the way, they signed a pledge to something called the Mayflower Compact, a document which expresses the ideas of individualism, popular sovereignty, and liberty in the form of a social contract that respected natural rights.

SOCIAL CONTRACT

The idea of social contract refers to an act by which people were assumed to have first established an agreed-upon form of social organization. It can be thought of as the birth of society, a pact between equals, or more often, as any civil agreement between people prior to the establishment of a government. Some writers prefer the words "compact" or "covenant" instead of the word contract. Regardless of the terminology, two main assumptions seem to be common to all forms of social contract theory: (1) self-determination, or the idea that people control their environment, that nature is man's plaything, that society is artificial rather than natural; and (2) the notion of consent, or the idea of contract as a voluntary agreement by those who will be bound by the rules they establish. Of these two, the notion of consent probably has the most variation.

Historically, the notion of contract goes back to the ancient Hebrews, to the covenants made between God and Noah, Abraham, and David. One of the most widely accepted doctrines in Judeo-Christianity is that the world was founded on a compact or covenant with God. For many years, it was just assumed this was how societies were also founded. Social contract thinking has also been associated with the mythology of a Golden Age of antiquity, a lost Atlantis-like civilization, if you will. Sometimes, this ancient civilization is portrayed as peaceful and tranquil; other times, it's described as nasty and harsh. Either way, its called the philosophical device or mechanism of State of Nature. Social contract theories use assumptions about the State of Nature to compare and contrast pre-governmental conditions with post-governmental conditions.

Ideas about social contract go back before Socrates, to a school of thought before him called the Sophists, a group of professional teachers of rhetoric, law, and government. They, like the Epicureans, the school of Diogenes (the Cynics), and Xenophon believed that truth was relative, politics was practical, and each person should find their place in society according to how they can best maximize their pleasure. Socrates and Plato, of course, viewed intelligence as pleasurable. In one of Plato's dialogues (Crito), we find the earliest statement of a concept which later becomes extremely important in social contract theory -- the idea of tacit consent -- the notion that all people dwelling within a state are assumed, by their continued residence, to consent to the laws by which they are governed. There are different versions of tacit consent, such as consent by ancestors versus popular consent, but the basic idea is there, that people are bound by the laws of a jurisdiction merely because they live there. If you don't like it, leave.

Throughout the Middle Ages, social contract took the form of feudalism, a type of economy based on land tenure, loyalty oaths, and a system of rights and duties between lords and vassals. The notion of consent gave way to the notion of obligation during the Dark Ages. The King would provide safety and security; the subjects would provide loyalty. It was in this context that the Magna Carta (1215) took place, ensuring that no ruler would ever be above honoring rights and privileges inherent in a contract with the people. In other countries, rulers stressed their obligation to God and God alone. 

In religion, the French Huguenots, with the support of certain Jesuits and of course the Protestants, attacked the notion of divine right and obligation of a King to God and God alone. They resurrected the notion of consent. They believed it was appropriate to oppose a King if he had broken a contract with God or with the people. The right of resistance to a King's authority grew steadily, and involved one of the first mixtures of natural law and social contract. Natural law allowed people to receive the word of God without the need of a ruler to act as intermediary, and social contract provided the belief that obedience was based on consent, not obligation. This culminated in 1620 with the aforementioned Mayflower Compact by the Puritans, who brought these ideas to America. It was nothing less than a complete rejection of any ruler's right to rule, or less militantly, connected with the idea of inalienable rights, which social contracts are intended to secure and which the state should not infringe.

Soon after the Puritans left for America, England plunged into a series of civil wars, and a number of philosophers emerged to defend the monarchy. Foremost among these was Thomas Hobbes (1588-1679), author of the classic book, the Leviathan (1651), the branching point for constitutionalism and fascism. Hobbes followed Machiavelli (1469-1527) in having little use for religious Scripture. Machiavelli said that in a pinch, reasons of state must override morality and religion. In a nutshell, Hobbes is a critic of natural law, or more specifically, the State of Nature device. Hobbes said that in a state of nature, it is a war of all against all, that life is "poor, solitary, nasty, brutish, and short".  Right is whatever the state, through its laws, says is right, and wrong whatever the state says is wrong. Hobbes saw rights as conveniences; liberty as the right to disobey. Therefore, in order that we might have more and better rights, state power should be as absolute and total as possible. The state should pervade and dominate every relationship, suppress any form of association it does not create and control, and silence any criticism of its absolute power (so that we might be more free by having more conveniences). The social contract exists where any sovereign entity, be it man or assembly, speaks for what is best for all the people. All people yield some natural rights, such as the right to force and self-government, to form a sort of super-person, or leviathan. The powers of this leviathan become the basis for all civic obligations. People fulfill their obligations out of fear of punishment. Fear is not incompatible with liberty; a covenant without the sword is useless. The only true liberties people retain are: (1) to self-defense; (2) to refuse to incriminate oneself during trial; (3) to refuse a suicidal mission; and (4) to bring certain matters of debt and taxation before the law.

Baruch Spinoza (1632-1677) agreed with Hobbes on many points, but generally had a softer viewpoint. He presented a view of limited sovereignty where the government should not trample on freedom of thought. Spinoza argued that you cannot make anyone believe something by fear of punishment. You can lead the horse to water, but you can't make them drink it. Acts of injustice should not go unpunished, but the state should also avoid censorship or regulation of anything that allows thought, reason, and intelligence to grow.

John Locke (1632-1704) presented an even softer view of government in the service of people. His radical reasoning was that if security is to be maintained in the general interest, then the people must be dominant. If people are dominant, then government must be subservient. His notion of social contract involved neither consent nor obligation, but trust. Government should be a passive listener to the will of the people, and never seek to silence, alter, or distort the voice of the people. Locke distinguished liberty from license. License refers to an abuse of freedom, carte blanche to do anything, or liberty of action. Rules against license are derived from natural law. Anyone who engages in license declares themself to be in a state of war with all other people. In order to prevent this state of war from erupting into all-out vigilantism, people enter into a social contract where they expect the government to act as a higher power or umpire. Judges are expected to be answerable to all the people, just as all regulations and laws are expected to be enacted and enforced in good faith and trust. By accepting the government's protection against violence and theft, people surrender their liberty of action and implicitly recognize the right of the state to punish them for violation of its laws. When the government breaches its trust, power devolves to the people, and the government is dissolved. Locke's Second Treatise on Government is widely regarded as a blueprint for a constitutional republic.     

Jean Jacques Rousseau (1712-1778) presented a new concept of social contract based on an awareness of common interests that creates a bond between people. He used the term general will to describe those common interests, which at bottom, were nothing more than the preservation of equality among men. Without equality, there can be no liberty. Rousseau believed the state of nature was a condition of pure equality, and that with the rise of civil society, class distinctions emerged as well as a system of subordination that passes for civilization in the modern world. He viewed the rich and powerful as unable to abide by any social contract requiring mutual respect and dignity. Only the general will can enforce justice. Any government which rejects the general will by claiming any one group has natural authority over another deserves to be dissolved. Karl Marx and John Stuart Mill, each in their own way, picked up on this tension between authority and liberty; Marx claiming that all authority was just simply a rationalization for oppression and exploitation; and Mill claiming that some authority had to naturally carry with the government's advisory function.

The founding fathers were also influenced by Thomas Paine (1737-1809), who just a few months before the American Revolution in 1776 published a book called Common Sense which stated America's cause was the cause of all mankind. Paine wrote of the need for a new constitutional republic, a republic that would not be subject to downfall as were the Greek and Roman republics. The social contract, for Paine, was the only way such a desired government ought to be formed. This contract would be based on the idea of government as trustee, with a duty to serve the people. He saw a constitution as capable of being drawn up for this.

We have thus seen how liberty has many meanings and uses. The founding fathers were to make use of many different strands of thought. From natural law, they would adopt principles of individualism and natural rights; from social contract, they would adopt notions of trust, freedom of conscience, and sovereignty by a government answerable to its people. The Constitution was to be an exercise in balance and the establishment of limited government on the basis of popular sovereignty. In order to ensure the continued maintenance of popular sovereignty, numerous safeguards were created -- a system of checks and balances, bicameral legislatures, and the uniquely American system of republican governance called federalism.  

Federalism (a federation) unites several political entities into a single unit but does not diminish the integrity of any individual entity. Ours is an indestructible union composed of indestructible states built upon a consensus politics. The people and the states delegate certain limited powers to a federal government, which is itself separated and limited in its powers. This way, the people reserve as much local control, dignity, respect, and freedom as they want.  If the people are both competent and interested in handling their local problems, then the Constitutional recipe works as the perfect way to foster freedom without sacrificing order, and the perfect way to carry out authority without limiting liberty.  

INTERNET RESOURCES:
The Anti-Federalist Papers
James's Liberty File Collection
The Judeo-Christian Foundation of Human Dignity and Personal Liberty
The Liberty Library of Constitutional Classics
Locke's Second Treatise on Government

PRINTED RESOURCES:
Berlin, I. (1990) Four Essays on Liberty. NY: Oxford Univ. Press.
David, J. & R. McKay (1989) The Blessings of Liberty. NY: Random House.
Foner, E. (1999) The Story of American Freedom. NY: W.W. Norton & Co.
Glasser, I. (1991) Visions of Liberty. NY: Arcade Publishing.
Mill, J.S. (1859) On Liberty. NY: Penguin Classics.
Paine, T., Jefferson, T. & Kramer, L. (1998) Paine and Jefferson on Liberty. NY: Ungar Pub. Co.
Ridvas, M. & M. Konvitz (1967) Expanding Liberties. NY: Greenwood Press.
Swomley, M. (1972) Liberation Ethics. NY: Macmillan.

Last updated: 06/25/03
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