A Tradition of Liberty

In recent essays I have been harshly critical of liberalism, the Modern Age ideology which attempted to lay a foundation for political liberty in the notion of the sovereignty of the individual. I criticized liberalism for making liberty the enemy of society, tradition, and authority. The subject of this essay will be liberty in its proper context – the tradition of a stable, civilized society.

In the Book of Genesis, the first book in the sacred canon of both Christianity and Judaism, we find the account of creation, in which God makes the heavens and the earth, and all that is therein, then makes man. In the second chapter of Genesis, God, after having placed Adam in the Garden of Paradise in Eden, tells him “Of every tree of the garden thou mayest freely eat; but of the tree of the knowledge of good and evil, thou shalt not eat of it: for in the day that thou eatest thereof thou shalt surely die.” Note the nature of this commandment. Man is prohibited from eating the fruit of one specific tree. He is free to eat fruit of all the other trees.

The Garden of Eden was not a democracy. Adam and Eve were not sovereign individuals. It was an absolute monarchy. God was King, His word was law, He did not derive His powers from “the consent of the governed”, He did not hold regular plebiscites on His right to rule, He did not poll His people. Yet Adam and Eve were free, and arguably a lot freer than any of their descendants. The laws were few (the only other one was “Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth”), and clear, and Adam and Eve were free to do whatever was not proscribed by law. The law prohibited the eating of one fruit, all other fruit they were free to eat.

Now regardless of the degree of literalness with which you take the Genesis account, we find in this arrangement the illustration of how law and freedom work together. Good laws are few and clear, and tell you what you are not supposed to do rather than what you are permitted to do, leaving you free to do whatever is not specifically proscribed. Throughout the Holy Scriptures, this is the way God governs His people, first Israel, then the Church.

If God, the Absolute Sovereign of all Creation, governs His people with a few basic rules, leaving them otherwise free to do whatever He has not prohibited, how much more then should human governors, who are fallible and prone to error, do the same?

The British legal system, which evolved under Christianity for centuries, and to which Canada as a country under the British Crown is heir, reflects this understanding of the complementary relationship between law and freedom. Under Common Law, personal liberty is limited only by what positive law requires and prohibits. If the law does not say you cannot do this, you are free to do it. The prescriptive rights which evolved alongside with and under Common Law protect this freedom. If an agent of the Crown, possessed of the duty of maintaining the Queen’s peace by enforcing the law, is to detain you, you have the right to be informed of the charge under which you are being detained. You have the right to have a magistrate hear your case and determine whether the officer had just cause to arrest you. You have the right to have your case heard and determined before a jury of your peers. What all of these rights are designed to guarantee is that you are free to go about your daily business, without fear of the police arresting you so long as you are not doing what the law specifically says you cannot do.

A different understanding of the relationship between law and liberty is held by those who gave us the “Charter of Rights and Freedoms”. In 1982 Prime Minister Trudeau achieved the crowning goal of his premiership with the repatriation and renaming of the British North America Act. At the same time that the Canadian constitution was made made subject to amendment by the Canadian parliament and provinces, the Charter of Rights and Freedoms was added to it. At the time, there was a huge propaganda campaign aimed at selling the Charter to Canadians, which told us that we desperately needed such a Charter to tell us what our rights and freedoms were. (1)

The problem with such an approach is that it designed to create the attitude of “I am free to do whatever the government permits me to do”. Notice the difference between that attitude and “I am free to do whatever I want, so long as the law does not prohibit it”? There is a huge difference between “freedom to do whatever the law permits” and “freedom to do whatever the law does not prohibit”.

This Charter of Rights and Freedoms contains a clause in Section 33, which allows the federal and provincial governments to pass laws which conflict with the rights and freedoms in section 2 and sections 7-15, for up to 5 years. At the five year point these laws can be renewed. This effectively nullified Section 2 and sections 7-15. Section 2 says that Canadians have the fundamental freedoms of freedom of conscience, religion, thought, belief, and expression, etc. Section 7-15 include our rights to life, liberty, and security of our person, our freedom from unreasonable search and seizure and arbitrary detainment, our right to legal counsel and right of habeas corpus, and our rights of presumption of innocence and against self-incrimination. All of these rights and freedoms, were more secure before the Charter was passed than since the Charter was passed, because the Charter gives the government a right it did not possess prior to the Charter – the right to take those rights and freedoms away.

Those who look to the Charter of Rights and Freedoms to secure liberty in Canada are clearly misguided. So are those who look to democracy. Remember how the Reform Party used to demand “direct democracy” (plebiscites on important issues) and a “Triple-E Senate” (elected, efficienct, equal)? With all due respect to the old Reform Party (2) which was right-wing populist rather than conservative (3), democracy is not the friend of liberty. As power has shifted, from the Crown to the Commons, in the English-speaking world over the last five centuries, size of government and of government's role in people's everyday lives has consistently increased rather than decreased. So are those who look to the Lockean doctrine of “natural rights” (i.e., rights derived from a pre-social “state of nature”), to making all relationships in society voluntary/contractual relationships mirroring the relationships of the business world, and to the doctrine of “individual sovereignty”. Such concepts make liberty the enemy of law, society, authority, and tradition, when in reality these things are the friends of liberty.

All of these things – Charter, democracy, “natural rights”, contractual society, individual sovereignty, are abstract ideals, thought up by rationalist philosophers as progressive improvements on a traditional civilized society, with classical and Christian roots. They are not improvements. Simple laws, which are few and clear, which prohibit certain acts of criminally vicious behavior, but otherwise leave us free to live our lives as we wish, as individuals, but also and more importantly, as families, communities, churches, and a society, are the best laws.

(1) For a good discussion of Common Law versus Charter Law see William D. Gairdner, The Trouble With Canada: A Citizen Speaks Out (Toronto: Stoddart Publishing Company, 1990), especially chapter 16 “Political Sleight of Hand”. A new and revised edition of this book is due out sometime this fall. Also see a number of books and booklets by Kenneth McDonald, especially The Monstrous Trick (APEC Books, 1998), and Alexis In Charterland (Belleville: Epic Press, 2004).

(2) I joined the Reform Party in my college days and remained in it in its Canadian-Alliance stage. My membership expired before it absorbed what was left of the old Progressive Conservatives and became the current Conservative Party. I did not renew. While I agreed with, and still agree with many, probably most, of the right-wing positions on social and economic issues, taken by the Reform Party in its early years, on the level of basic political philosophy I have always been more in sympathy with the older Tory tradition represented by Samuel Johnson, Walter Scott, T. S. Eliot, and in the USA by Russell Kirk.

(3) I will be looking at populism, its strengths and weaknesses, and its differences and its overlaps with conservatism, in an upcoming essay. In the meantime, I refer you to Dr. John Lukacs’ excellent book on the subject, entitled Democracy and Populism: Fear and Hatred, which was published by Yale University Press in 2005. My essay may take the form of a review of Lukacs’ book. It has been 5 years since I read it last and will be picking it up for a re-read in the new few weeks.