The basic political definition of freedom within the tradition of the English-speaking world could be “the right to do whatever is not specifically forbidden by law”. Anarchists, who regard freedom as the absence of law, would obviously object to this definition. It is an important starting point however, because it is the opposite of the notion that people are only allowed to do whatever they are expressly permitted to do by the law.
In these two concepts we see the essential difference between a society that is constitutionally free, and a society that is constitutionally tyrannical or totalitarian. A constitutionally free society has clear, specific rules as to what you are not allowed to do but otherwise leaves you free to make your own choices. A constitutionally tyrannical society has specific rules as to what you are permitted to do and if you do something that is not on that list you could be in trouble with the government. English-speaking countries are by a long-standing tradition constitutionally free societies.
It should be apparent from this that freedom is quantifiable. In a constitutionally free society, the more laws there are the less freedom you have. There is a form of tyranny which can exist within the form of a constitutionally free society because “the right to do whatever is not specifically forbidden by law” does not particularly mean much when there are laws against everything.
Clearly then if we wish to live in a free society we should be aiming for less laws rather than more. This brings us to the question of what kinds of actions should laws forbid.
Evelyn Waugh admirably expressed the Tory (1) position on this question when he wrote:
I believe in government; that men cannot live together without rules but that these should be kept at the bare minimum of safety. (2)
Laws should be limited to what is necessary. This is true, not only for the sake of maintaining liberty in a free society, but also in order to ensure that the laws we do have are effectively enforced. When laws are multiplied, society’s law enforcement agencies have a tendency to concentrate on laws that are easily enforced but less important over laws that are more important and more difficult to enforce. This produces the situation that Dr. Samuel Francis dubbed “anarcho-tyranny”. (3) Picture a city where the police department goes to great effort to make sure the traffic regulations are kept while gang violence runs amok and unsolved homicide after homicide cases pile up, and will you get the idea.
Now, you have undoubtedly noticed that I have not actually answered the question of what kinds of actions should laws forbid in asserting that laws should be limited to those which are necessary. That assertion merely leads to the question being rephrased as “what laws are necessary?”
How do we determine whether a law is necessary or not?
We can only do so, by examining the purpose of law itself. Laws exist as a means to a particular end and their necessity is determined by whether they are essential to achieving that end.
What purpose do laws serve? What is their ultimate end?
The right answer to this question is that laws exist to facilitate society and to ensure its safety and security.
Society consists of people and between people conflicts often arise. It is to be preferred that people settle their disputes peacefully themselves, but if they cannot do so, the need arises for the dispute to be arbitrated. This produces a need for laws which we would categorize as “civil”. Their purpose is to keep disputes from escalating into violence that threatens the fabric of society.
Lets say you and your neighbor disagree as to where the property line dividing your yards is to be located. Your neighbor would like to put up a fence that will cut through your flower garden whereas you believe the fence should be erected so as to include an apple tree your neighbor claims as his own on your property.
How is this to be resolved?
One way is for you and your neighbor to go throughout the neighborhood, gathering support from your friends, and then fight it out between the two parties, destroying property and shedding blood in the process. This is not the optimal solution.
The other way is for society to have clear laws as to how disputes of this nature are to be settled and a magistrate with the authority to hear your side and your neighbor’s and issue a ruling based on the law which both you and your neighbor must abide by.
Civil laws of this nature facilitate society, that is, they make it possible for people to live in peace together in that collective venture we call society.
The other major category of law is “criminal law”. Criminal laws prohibit acts like taking or vandalizing another person’s property, assaulting or killing another person, or raping or kidnapping someone. If you commit a criminal act you are forced to pay a penalty to society, after you have been caught, arrested, and been proven guilty in a court of law. The purpose of criminal law is to protect society and its members from harmful and destructive behavior.
This brings us back to the question of which acts should be proscribed by law – and to the classical liberal answer to that question.
Classical liberalism or libertarianism as it is more commonly known as today asserts that society’s laws should only prohibit actions which harm people other than the person committing the action in their person or property. This is called the “harm principle”. It was the basic thesis of John Stuart Mill’s famous On Liberty (4) but the concept is present in the writings of earlier liberal thinkers as well.
Liberalism’s harm principle should not be dismissed lightly. As an answer to the question of which acts should be illegal and which should not, there is much to commend it. Actions, the criminality of which are uncontroversial among sane people, such as murder, rape, theft and the like, all fall under the category of actions which are harmful to others.
There are, however, problems with the libertarian position which appear when we look at the underlying philosophy behind it and its application to controversial actions.
The philosophy behind the harm principle is the philosophy of classical liberalism. This philosophy asserts that only “individuals” (persons by themselves, not as members of any larger group) are real, that society is a voluntary association of individuals, and that political society and its laws exist to protect the rights of the individual.
One of the earliest liberal thinkers was the 17th century English empiricist John Locke. Locke’s held that in a hypothetical (not necessarily historical) “state of nature” prior to society, all men as individuals are absolutely sovereign over themselves and possess absolute rights to their life, liberty, and property. In this “state of nature”, however, men are vulnerable to violence from other people. Therefore, to protect themselves and their rights, men form societies, which are contracts between sovereign individuals in which they agree to relinquish a portion of their sovereignty to society, so as to obtain laws to protect their rights against the violence of others. (5)
The problem with all this, however, is that it is manifestly wrong and is indeed the exact opposite of what is observable about the nature of human beings and their societies.
All human societies that are older than a single generation existed prior to the people who make up their membership. More importantly, when we look at society in its most basic form, the family, we see that it is not a “voluntary association of individuals”.
The family is the simple form of society, the building block from which more complex societies are established. Each of us entered the world as a member of a family that we did not choose to enter. We were sired by a father, and born to a mother, neither of which we chose. We do not chose our relationships to our parents, nor do we chose our relationships to our siblings.
The family is prior to the individual person, therefore society is prior to the individual person.
Indeed, there is no such thing as an “individual” the way liberalism conceives him. Liberalism’s “individual” is a person, detached from all society, identified not by that which distinguishes him from other people, but by that which supposedly makes him the same as all other people, i.e., a set of “natural rights” which all individuals are supposed to possess equally.
A person apart from society, however, is not living in a “natural state”. Take a hermit living on top of a mountain, in a remote cave, or out in the desert somewhere? Is such a person living in a more “natural” state than a man living with his wife and children in a community with other men who live with their wives and children? Of course not! These kinds of people, are extremely rare, for precisely the reason that their behavior is not normal or natural for human beings.
Furthermore, a person in isolation from society, is not in the position of having rights but no means to enforce and protect them. Isolated from society, a person has no rights whatsoever. A “right” is by definition a claim on other people and therefore cannot exist in the absence of society.
If liberalism’s philosophy of the sovereign individual being logically prior to society is false and contrary to all observable evidence (and it is), it follows that liberalism’s answer to the question of what is the primary purpose of law, i.e., to protect the rights of individuals, cannot be correct.
Now, if the philosophy of classical liberalism is wrong, and its view of the purpose of law is wrong, does that mean the harm principle is also wrong?
As mentioned previously, if we look for laws which are found universally throughout civilized human societies and which forbid actions that few if any would dispute are criminally wrong, we find these laws tend to correspond to the harm principle.
We also find, when we look into the thought of pre-liberal Western ethical philosophers and theologians, that the harm principle itself is older than liberal individualism.
The most famous work of St. Thomas Aquinas, the 13th Century Dominican priest, is his Summa Theologica. The second part of this treatise is devoted to ethics. Here Aquinas raises the question of “Whether it belongs to the human law to repress all vices?”
In his answer, Aquinas states:
Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like. (6)
The Thomistic position is both similar to and different from the liberal harm principle. The main difference is that Aquinas’ view affirms society and lawfully constituted authority whereas the libertarian view of J. S. Mill is subversive of society and authority.
The subversive nature of liberalism is such that, despite its protestations to the contrary, liberalism is no friend to the free society. When society and legitimate authority within society are undermined, the result that ensues will be either chaos, tyranny, or a mixture of both. It will never be a free society in which people enjoy both freedom and the benefits of society.
Society as we have seen, is not a “voluntary association of individuals”. It is organic in nature, consisting of a variety of social institutions (family, church, cultural and economic associations of various natures, neighborhoods, communities, etc.) which exist in multiple layers in which society expands outward from the family to become the sovereign polity. Within each social institution and every level of society there are positions of authority.
What is authority?
Authority is the right to command obedience. It is distinct from power, which is the ability to compel obedience by force. It is not completely separate from power, however, because authority includes the right to use an appropriate degree of force to ensure that rules are obeyed.
Where is authority located?
Authority is vested in offices or positions, rather than in the people who occupy those positions and exercise the authority.
What is the source of authority?
The source of authority is the constitution of society. The constitution of society is not a charter written on paper like the British North America Act or the Constitution of the United States of America, important as those documents may be. The true constitution of any society is its system of organization, written in its traditions, and established by prescription.
Society’s constitution is not the voluntary contract that liberalism conceived it to be. Rather, it is as Edmund Burke (7) conceived it:
a partnership in all science, a partnership in all art, a partnership in every virtue and in all perfection…not only between those who are living, but between those who are living, those who are dead, and those who are to be born…linking the lower with the higher natures, connecting the visible and invisible worlds, according to a fixed compact sanctioned by the inviolable oath which holds all physical and all moral natures, each in their appointed place. (8)
That description could better be called a “covenant” than a contract. The covenant of society, like all covenants, functions according to the faith of its members.
When members of a society believe in their constitution they will respect the offices of authority established by that constitution (if not necessarily the people who occupy the offices at any given time). The more faith people have in their constitution, the more respect they have for the constitutional authorities, and the more they voluntarily obey the rules without the use of force.
This has a direct relationship to the degree of freedom in society. A wise ruler will seek to govern so as to maintain faith in society and its authorities, and will therefore seek to effectively enforce essential laws without burdening the people with excessive regulations. A foolish ruler, who prefers to maintain order through naked power, will not be concerned about maintaining people’s faith in society by limiting the laws to the few essential laws effectively enforced.
Thus is a functioning society held together by faith. Governors keep faith with the people on their part, by enforcing the laws that are necessary and not passing excessive laws. The people keep faith with the government by respecting the authorities and voluntarily obeying the laws.
In this we see that there is a relationship between legitimate government and consent. It is not the relationship liberalism suggests, however, but rather the inverse. Liberal theory once again has the cart before the horse. Government does not derive the legitimacy of its authority from the consent of those it governs. Rather people voluntarily consent to government when they believe it to be exercising legitimate authority derived from a legitimate constitution.
How does a constitution obtain legitimacy?
The one word answer is “prescription”.
Prescription is the word we use to describe the process whereby a social arrangement gains legitimacy by virtue of having passed the test of time. Rationalists will scoff, but people have far more faith in a social arrangement that has weathered the storms of time and served society well for generations than in an abstract theory that looks good on paper as to why such-and-such a social arrangement is best.
Do not mistake me. I am not saying that we should accept something that is obviously unjust simply because “that is the way it has always been”. I am saying that the generally accepted legitimacy of a stable constitution of society is something that develops over the course of generations through a long period of time.
It can be overthrown, however, in a very short period of time, by government which abuses its authority and betrays the faith of the people, or by subversive doctrines like liberalism which tell people that their personal interests are more important than those of society.
Most of us in the English-speaking world wish to be free. We also wish to be, like all normal human beings, members of societies. We therefore wish to enjoy freedom within society.
The traditional constitution of English-speaking countries in which we are legally free to do whatever the law does not specifically proscribe, contributes towards the fulfillment of that wish. So does the basic idea expressed by St. Thomas Aquinas, that human laws exist to restrict not all vices, but major vices, primarily those in which harm is done to others.
Since we value being part of a society, however, a real society and not liberalism’s “voluntary association of individuals”, we must resist allowing Aquinas’ concept to be twisted into the anti-social, subversive individualism found in the theories of classical liberals like J. S. Mill.
(1) As is my usual custom, here I use “Tory”, not to mean a member/supporter of the Conservative Party necessarily, but a traditionalist conservative, particularly those within the British and Canadian traditions who support the parliamentary monarchy and the Christian Church.
(2) “A Conservative Manifesto” found on page 161 of the 1986 Penguin edition of The Essays, Articles and Reviews of Evelyn Waugh edited by Donat Gallagher, taken from Waugh’s Robbery Under Law.
(3) The oldest reference I can find for this is “Anarcho-Tyranny USA”, the speech Dr. Francis’ gave to the John Randolph Club in 1993 and published on pages 14-19 of the July 1994 issue of Chronicles: A Magazine of American Culture. In the text of the address Dr. Francis makes reference to his having used the term in earlier columns, but I have no bibliographic details about these. He wrote about it until the end of his life, and revisited the topic in “Synthesizing Tyranny”, the last essay he wrote for Chronicles published in their April 2005 issue.
(4) Mill defines the principle in the 9th paragraph of his introductory chapter. Note that Mill begins this paragraph by saying that the principle should limit all social control over the individual, whether it be by actual laws enforced by the state or the “moral coercion of public opinion”.
(5) Locke’s views can be found in his Two Treatises of Government, originally published in 1689, particularly the second treatise.
(7) Edmund Burke was an 18th Century British statesman who was originally a classical liberal himself. He entered politics as a member of the Whig Party (the liberal party of the 18th century). He was a friend of Samuel Johnson, the prominent 18th century man of letters, who was noted for his Tory views. Burke once wrote to Johnson’s friend and biographer James Boswell that he had dined with Johnson and “we had a very good day, as we had not a sentence, word, syllable, letter, comma, or tittle of any of the elements that make politics”. Burke may very well have been the “scoundrel” Dr. Johnson had in mind in his famous remark about (false) patriotism, recorded by Boswell. The French Revolution changed all that. Seeing the horrible violence that sprung from the “armed doctrines” of the “Enlightenment”, Burke took up cudgels for tradition, organic society, the ancient constitution, monarchy, and the church – the traditional articles of Tory faith - in a treatise entitled Reflections on the Revolution in France originally published in 1790. When Marie Antoinette was beheaded in 1793, Burke bemoaned the fact that in a “nation of gallant men…honor…and of cavaliers”, “ten thousand swords” had not “leaped from their scabbards” to defend her, and mourned the death of the “age of chivalry” and the rise of that of “sophisters, economists and calculators”. Burke had, to paraphrase Irving Kristol, become a “Whig mugged by reality” , a “neo-Tory” if you will.
(8)Edmund Burke, Reflections on the Revolution in France, Gateway Edition, (Henry Regnery Company: Chicago, 1955), pp. 139-140.
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