J.S. Mill, On Liberty.
Sir James Fitzj. Stephen, Liberty, Equality and Fraternity.

  1. Mill and Stephen.

This dispute was famous in its day, and was to some extent re-fought in the dispute between Devlin and Hart over the ‘enforcement of morals’, when the issue was the specific one that came to the fore in British politics in the sixties, of whether homosexual conduct should be criminalised. Mill was a spokesman for liberal causes, which he also supported in Parliament, where he sat as a member of the Liberal Party. Some of his works, such as On Liberty, are written in the spirit of classical liberalism, arguing for clear and strict limits to the power of the state and the scope of the law. Other of his works, such as the Principles of Political Economy, move in the direction of liberalism in the modern American sense, envisaging large powers for the state to intervene in the economy and in private associations, for the sake of justice or charity. Mill’s writings are full of internal tensions and conflicts which he doesn’t resolve, and he is claimed by liberals, socialists and conservatives as a would-be member of their camp. Sir James FitzJames Stephen was a judge in India, who had been deeply impressed by the experience of India, and the violence done to Indian customs by Western liberalism. He was a Utilitarian, and also a conservative of the ‘anthropological’ persuasion discussed last week. (He was from a famous family: his brother, Sir Leslie Stephen, was a leading literary scholar, first editor of the British Dictionary of National Biography, and father of Virginia Woolf and Vanessa Bell (the painter). Mill also was a central figure in Victorian culture, and godfather of the future Bertrand Russell, whose grandfather, the first Earl Russell, was Prime Minister during Mill’s time in Parliament. Despite being a godfather it is uncertain whether Mill believed in God.)

Mill had given a qualified (some say self-contradictory) defence of Utilitarianism in his book of that title, arguing that the ‘Greatest Happiness’ principle provides the final court of appeal in moral and political argument. But he recognized that this could be used to justify oppression of minorities and of individuals, and indeed of everyone, if the arguments so tended. Lenin was a utilitarian, after all: he argued that the greatest happiness of Russian society would be achieved by following the communist program; meanwhile, however, obstructive people had to be removed, inconvenient minorities broken up and destroyed, awkward people compelled to do the bidding of the party – in short the liberty of everyone sacrificed to the greater good. On Liberty was designed to rectify the defect in Utiliarianism that led to such justifications of tyranny. The law cannot be used, he argued, to compel people to do what they would not otherwise do, if there is no proof that by following their inclinations people would cause others harm. ‘Harm’ becomes the test of legitimacy: the thing that must be proved if an action or type of action is to be forbidden. The purpose was to define and defend a sphere of private life, in which the individual would be sovereign, and where the state could not interfere. Stephen’s response is to argue, first that privacy is in the eye of the beholder: what you do in private may seriously impact on others, if it disturbs their sense of belonging to a community in which their values are endorsed and upheld. People are multiply responsive to and dependent upon each others’ behaviour, and you do not make a sacred private sphere merely by putting a screen around it. Secondly, liberty is a benefit to some, but not to everyone, and its value must always be weight against its cost, if we are to have a clear perception of how far to extend it. Stephen’s arguments are paradigms of the ‘external anthropological’ account of institutions, and show how that account is naturally utilitarian in structure.

Negative Liberty.

Isaiah Berlin made a celebrated distinction (‘Two Concepts of Liberty’) between a negative and a positive concept, arguing that in its true and valuable sense, liberty is to be understood negatively, as an absence of constraint, and not positively, as a power to achieve your goals. We know how to achieve the negative kind of liberty, but not the positive, and attempts to ‘empower’ people have a lamentable tendency to end up enslaving them.

Negative liberty means the absence of legal constraint, not the absence of moral constraint. Much that the state permits morality forbids, and one purpose of Mill’s argument was to make this clear. Conservatives of Stephen’s persuasion are apt to argue that by permitting things the State sends a signal to the general public, and one that might prove socially disastrous in the long run. Stephen would nevertheless agree that the liberties provided by the state must be negativeliberties, defined by the absence of coercion rather than the provision of power.

One way of understanding the idea of negative liberty is in terms of rights: I am free to do something if others have no right to prevent me; and if you have no right to prevent me then I have a right to do it – I am ‘within my rights’. Rights here are legal rights – the rights defined and upheld by the law – rather than moral rights, which are defined by moral principles. Many of the discussions of political liberty have been overlain and to some extent superseded by discussions of rights. What exactly is a right? Once again there is a distinction between a negative and a positive application of the idea. Some rights are freedoms – rights to go about your business undisturbed. But some rights are claims – rights to receive something. For instance I have a right to my salary at the end of the month; you have a right to the property that your mother left in her will. Conservatives and liberals dispute hotly over the idea of a claim right, the first believing that claims must always be justified by the history that validates them, the second believing that there are claims of need that we all have by virtue of our nature. The difference here is best understood in terms of duty. Every right creates a duty. My right to walk freely creates a duty on others not to stop me. My right to my salary creates a duty in my employer to provide it. But what about my ‘right to health’ – supposing there is such a thing? This is a paradigm of a claim right that does not arise from any human agreement or commitment. So whose is the duty to provide the health to which I have a right? The inevitable candidate is the state – and this shows the way in which liberal claim-rights automatically lead to an expansion of the state and its power. Some conservatives would go further, and argue that while freedom-rights extend freedom, claim-rights restrict it – for they create obligations that lie on all of us and which we must strive to fulfil.

An interesting right in this connection is that referred to in the Declaration of Independence: the pursuit of happiness. Is this a freedom-right or a claim-right? If the declaration had referred to ‘the right to happiness’, then it would be proposing a strong (and probably unsatisfiable) claim on others to provide it. But since it refers only to the right to pursue happiness, it is to be understood as proposing a freedom – others are not to impede my pursuit, which may or may not be successful.

Religious Freedom.

One of the most important freedoms over which dispute now rages is religious freedom: the freedom to practice your faith or your lack of it, and to follow your conscience in matters of religion. What exactly does this mean and how is it secured? Conservatism arose in the Enlightenment, as a partial reaction to the secularisation of Western societies, and an attempt to hold on to old customs and settled loyalties, despite the seismic disturbance that had occurred in the religious foundations of society. Yet no conservative has ever rejected the axiom of religious freedom – not even de Maistre, who saw religion as an indispensable premise of political order, but who accepted the Christian view that faith must be a free choice of the individual if it is to be a genuine offering to God.  The American constitution, which on one interpretation at least is a profoundly conservative document, also makes explicit provisions for religious freedom, while insisting, in the ‘no establishment’ clause, on the separation of church and state. Of course the Founders had no idea that one day Christianity would be under challenge from within its historical territories by atheism on the one hand and radical Islam on the other. They clearly believed that the shared Christian assumptions on which the American republic was built would endure. And this raises interesting questions in the theory of constitutional law, to which we will return when we get to that topic.

History of the Idea. The parable of the tribute money makes it very clear that Christ believed that the spheres of politics and religion are separate, and that the one has no right to invade or take over the other. Pope Gelasius the 1st expressed this in the ‘two swords’ doctrine – that God has given two powers for the government of men, one secular for the government of worldly affairs, and one spiritual, for the salvation of souls – and the separation of spheres is reaffirmed by Aquinas. This did not prevent the religious wars of the Renaissance, or the breakaway of the protestant churches; nor did it prevent those churches from forcing themselves on people with a new censoriousness and zeal. Only at the Enlightenment did religious freedom become a political reality, with dissenters permitted to live freely within the terrains claimed in the name of orthodoxy. Nevertheless this ‘permission to dissent’ soon became one of the cherished attributes of Western societies, and conservatives joined classical liberals in endorsing it. The question is: what exactly were they endorsing? In his letter on toleration, Locke made a strong case for toleration of religious differences as fundamental to a free political order; but he did not extend this toleration to Catholics. His grounds were that Catholics had a rival allegiance to the State, which would cause them to undermine the order on which toleration depends. (He had good grounds for this belief at the time. See also the General Observation at the end of these notes.)

Freedom to dissent and freedom to practice. Where there is a majority religion or official faith, then religious freedom at least includes the freedom to dissent from that faith, and to refrain from its practices. But what about the freedom to express one’s dissent? The freedom to argue with orthodox believers? The freedom to convert people away from orthodoxy? Islam allows none of those things, and some would say that it is unnatural for a religion to permit them. Then there is the freedom to practice alternatives. This goes one stage further still. People are offended by religious practices that are manifestly different from their own. Why is that? Because religion is a community-forming force, and one that provides membership.

Even if the state deals at arm’s length with religion there is always the question whether religion is supporting the state or undermining it. Radical Islam in Europe, for example, openly advocates the overthrow of the blasphemous order of the secular state, and the imposition of the shari’ah – a law supposedly laid down by God – in place of the law invented by people. It is clear that a state which allows freedom of religion cannot allow the freedom to overthrow, subvert or campaign against the state. This is an enormous problem in Europe today. There can be freedom of religion only for those religions that do not seek to abolish the freedom of religion. (See General Observation at end.)

The withdrawal of the state. One response to this has been for the state to withdraw completely from religious matters, and to regard majority faith and minority faiths as on an equal footing. This is what the ‘no establisment’ clause is normally taken to mean. (Contrast England.) There is a tacit agreement that all religions within the jurisdiction will recognize the freedom of other religions to compete with them peacefully and within the limits laid down by the law. But the state will give its endorsement to none of them.

This creates problems, however, at two levels. First, in defining the limits of the state. Secondly in defining the legitimate expression of religious belief. Some argue that, because the state funds public schools, it cannot permit religious ceremonies within them, since this would be in effect to offer its endorsement to the religion in question (the problem of school prayers). This argument has even been taken as a ground for removing icons of the ten commandments from court rooms. There is something oddly literalist and unyielding about the argument, which makes it look like an expression of the very religious fervour that it is attempting to forbid. Why is there no room for compromise here?

Moreover, there is the second problem: of the extent of legitimate expression of belief. You cannot actually believe in the Christian doctrine, for example, without also believing that you must bear witness to it in your daily life, and also offer to those in your care the opportunity to know God and pursue salvation. For a Christian teacher in a public school this creates a big dilemma: children who are not going to get the gospel from any other source pass before her in manifest need of it (in her view), so that she has a religious duty at least to point them towards it, to introduce them to the idea of prayer and the good news of their salvation. To say that she must not do this looks more like a denial of religious freedom than an extension of it.

The peculiar nature of religious belief. Scientific beliefs concern matters of fact, which can be discovered only if there is freedom to discuss the various theories, to criticize and to dissent. Hence free expression is a pre-condition of scientific progress. But free expression is often received by religion as a threat. Religious beliefs are not just speculations about matters of fact: they concern duties towards God, rules of conduct, conceptions of the sacred and of religious practice, which have an ‘untouchable’ quality. Whence does this quality arise? Durkheim’s suggestion: these are community-forming beliefs and practices, and threats to them are threats to the community. But this means that the community, in turn, offers a potential threat to free speech.

All this is coming very much to the surface in the confrontation with Islam, to which the conservative response is to affirm as much as can be affirmed of the Judaeo-Christian tradition, within the Enlightenment framework of religious freedom.

Political Freedom.

The freedom of a people to decide their own destiny. Whether there is or can be such a thing, and if so what is necessary to achieve it, are central questions of political philosophy, which cannot be solved in a morning. But it is important to have a grasp of the main points, and what the conservative response to them has been.

Collective choice/social choice. A broad and contentious topic, with a sociological and a logical branch to it. The sociological aspect asks the question: how do individual decisions combine to produce a single movement, policy or collective outcome? The logical aspect asks the question: how are collective outcomes justified by individual choices? Here is an entry from my Dictionary of Political Thought (third edition, out next year):

collective choice. An ambiguous term, used in a variety of contexts, and in connection with a variety of theories. These theories fall broadly into two kinds:

  1. 1. Theories of *social choice, which attempt to derive ‘social choices’ from individual choices, in accordance with principles which justify the first in terms of the second.
  2. 2. Theories of ‘collective action’, which attempt to describe and explain the ways in which *groups conduct their affairs, and the ways in which the actions of groups emerge from the actions of their members.

The first is a normative study, belong­ing to logic, political philosophy, and welfare economics. The second is a partly descriptive, partly normative, study, belonging to sociology and political science. However, it overlaps with the theory of social choice, to the extent that, in this area, description depends on the answer to normative questions: i.e. whether a choice is described as made by a group will depend in part on whether it can be justified in terms of the choices of the members. The second kind of theory (here considered) deals, then, with such questions as the following: how do people with an interest in a decision also influ­ence that decision? And, when is a decision really the decision of a group rather than of some agent, individual or *pressure group within it? In many ways the second question is the most interesting, since, if there is no clear answer to it, then there is no clear answer to some of the most important questions of political theory. Thus advocates of *collectivization wish to see collective *control over the means of production, and this involves determining when actions proceed from a genuine collective choice, and when they are imposed. In practice all of the following have been called collective choice: state decisions made by a politburo in secret; votes of activist ?lites at open meetings; block votes; decisions taken without con­sultation with, but ‘on behalf of’ some group and so on. Consider the procedure of voting exemplified by the UK Trades Union Congress. Each delegate casts a vote that is weighted according to the size of his union; it is therefore possible for a decision repugnant to a majority of trade unionists to be taken with the authority of their ‘majority vote’. In what way. can that decision be said to be a ‘collective choice’ made by the trade union movement as a whole?

The question illustrates the extent to which normative and descriptive ques­tions here arise together. *Rousseau made an important distinction between the *general will, and the will of all, arguing that the first need not coincide with the second. The general will is that which is expressed in group choices; the will of all is that which is arrived at by aggregating the several individual choices. Some argue that there can only be genuine collective choices if there is also a general will, in the sense of a new kind of *agency distinct from the agencies of the members of a group. A *constitution is required to establish that agency, and the real test of the existence of collective choice lies in the nature of that constitution. (For example, is it such that the majority consented to be governed by it, or would consent if asked?)

By contrast, there seem to be things that happen as a result of individual choices which, while in some sense expressing the ‘will of all’, are not really the expression of a general will. This can occur when the result issues, not from a constitution, but from a mechanism. Thus, consider the *market system, as conceived by *classical economists. Here the actual behaviour of commodities is influenced by every choice made by sellers and purchasers, and determined by all of them. Some might argue that this could only be a real collective choice if it were mediated by a constitution: that is, by a system of rules, to which the members of society might consent. But if people had the choice as to whether to submit to the market mechanism or not they might refuse. Although their decisions determine the behaviour of the market, the existence of the market is not their decision. (See also *invisible hand.)

Here is the entry on social choice:

social choice. A technical term meaning a choice for a society derived from the choices of its individual members. The aim of social choice theory is not, typically, that of the theory of *collective choice (although as noted, the term ‘collective choice’ is also used to refer to what is here described as ‘social choice’). The theory is concerned not so much to describe and explain the actual inputs to social choices or to determine how the various kinds of influence and control regulate the making of political decisions, but rather to invest­igate the relation between social choices and individual preferences, when the second are taken as the ground and justification of the first. The theory of social choice is a complex area of applied mathematics, and many definitions are in fact current in the literature, both of ‘social choice’ itself, and of the *social welfare function which is the theory’s principal device (the device which gener­ates a statement of social choice from the statement of individual preferences). Much current work studies the derivation of social choices from the choices and *preference orderings of all individuals, and pays great attention to ‘impossibility theorems’. These are results such as *Arrow’s theorem and the *Paretian lib­eral which imply that, given certain requirements (e.g. that no member of society should dictate the outcome, that a social choice satisfies some given principle of *optimality, etc.), it is impossible to derive a social welfare function for a society. In other words, those require­ments turn out to be inconsistent with the desire that social choices be determined by individual choices. The impossibility the­orems have sometimes been thought to capture intuitive difficulties in the concept of *voting, and of collective choice gen­erally.

Those entries are simply by way of showing you how complex this area has become. We all of us believe that there is a difference between states where there is political freedom, and states where there is not; and it is fairly likely that the difference between them is a matter of degree. But what factors are relevant?

Voting. Obviously the freedom to cast one’s vote in an election is one of the most important that we have. But it does not, in itself, amount to political freedom. For a start, there must be a genuine choice of candidates. And the successful candidate must thereby acquire a genuine place in government or administration. (There can be Potemkin Parliaments, with a merely decorative role, all power being brokered behind the scenes by the mullahs, or the mafia or whatever.) There are also questions to be raised about the voting procedure itself. (Secret ballot versus show of hands and so on.)

Office holding. Aristotle argued that the crucial component in the free polis is not election, but rotation: if each citizen should have a chance to hold office, and if offices rotate, then there is constitutional government, and a kind of separation of politics from the will and power of individuals. This is, for Aristotle, a more important aspect of political freedom than voting, and, like Plato, he is in fact highly suspicious of democracy, as giving too great a voice to ignorance, and too little influence to virtue. It is certainly true that one part of political freedom is the freedom of the citizen to hold office – in other words, to petition for the votes of those who choose the office holders.

Again there is a conflict between negative and positive liberty. You all have the freedom to stand in a  US congressional election, but not the power – that requires enormous wealth and institutional backing. Does this mean that the American citizen is less free politically than the citizen of Britain or France?

The elected official. What is the relation between the official elected and the people who elected him? Burke contrasts delegation and representation. In the first the official is a mouthpiece for the people who sent him to Parliament. In the second he is a mouthpiece for his own conscience, bound by the rules of the House, and by his fiduciary duty towards his electorate, who can throw him out if he does not fulfil it. Very important distinction, if not entirely clear. The important thing, for Burke, was that a representative must represent the interests of all his constituents, including those who didn’t vote for him. In addition to delegation and representation, there is also mandation: the idea that a candidate has a mandate to pursue specific goals, and that these goals will therefore be legitimate, even if public opinion turns against them.

Counting votes. A great many methods have been proposed for advancing from the primary information of the votes cast to the political conclusion of the candidate selected. There could be rankings of candidates (preference orderings), if the candidates are more than two – but this leads us straight into the trap of Condorcet’s paradox. (A preferred to B preferred to C preferred to A.) This is where the theory of social choice becomes relevant (see above).

Division of Powers. The celebrated thesis of the division of powers originated in Locke but was given in its modern form by Montesquieu in The Spirit of the Laws. M. recognizes three powers as fundamental to any form of free political order: executive, legislative and judicial. The first is very hard to define, but the threefold division influenced the American Constitution, which sets up the rights and duties of the president, the legislature and the supreme court.

Protecting Rights. It is obvious that, when people are free to stand for office, and to elect their own officials, and when those officials occupy the important posts in the legislature and executive, there is something that could be called political freedom. Maybe it could be enhanced, by adding further provisions (free speech, for example, religious freedom and a bill of rights). But it displays the essential feature, which is the ability of the people as a whole to choose their own government. However, this ability contains dangers: the majority might elect a government which is bent on persecuting or even massacring a minority. The majority might vote for an Islamist government which immediately sets about executing infidels. (The case of Algeria is important here.) Hence political philosophers in the classical liberal tradition (notably Mill and Tocqueville) have warned against ‘the tyranny of the majority’, and argued for the need to assign rights to individuals and minorities. This is another area in which discussion of rights has superseded that of freedom. The rights in question are freedom rights: non-defeasible barriers against invasion. They define areas where the individual, and the minority to which he or she belongs, are free to be what they are.

How far should such rights extend? This is another version of the difficult matters discussed above under religious freedom. A minority that defines itself in opposition to the state, or to procedures necessary for its own protection, is abusing its right of self-perpetuation.

Accountability. Elections are a form of accountability: the official who displeases his electorate is soon out of office. But most people recognize that there is more to accountability than that. Political freedom means that the people should not be deceived, manipulated, etc; that officials should be compelled to answer enquiries truthfully, and that political decisions should be, so far as possible, transparent. Conditions for achieving these results are complicated and fraught with internal difficulty.

It is obvious from those conditions that elections, however free and fair, may very well not produce political freedom: that a tradition of institution-building and constitutional limitation is just as important as the ballot box, and that there are customs, religions and ways of life that are inimical to political freedom, even if they endorse elections to political office. A conservative is likely to say that, when we understand the real presuppositions of political freedom, the number of habits and procedures that must be in place before it can be a reality, then we will inevitably move in a conservative direction, recognizing the real achievements of Western forms of political order, and the danger of experiments that meddle with enduring institutions and habits of association. They will represent political freedom as something ‘laboriously constructed and precariously defended’ (Evelyn Waugh), and will tend to accuse liberals of failing to understand just how precarious the legacy of freedom is, and just how easy it would be to tip the balance from freedom to anarchy, and therefore to tyranny (which is what anarchy inevitably produces).

Economic Freedom.

This is the freedom that was the subject of the most heated political debates during the 20th century, and it is of course a topic in itself. Here are some of the salient points, from the perspective of conservative philosophy:

Private property. The fundamental economic freedom is the freedom to own things. Ownership is a composite right, and includes the right of exclusive use, the right to alter, dispose of, destroy and transfer, and so on. You can have some of those rights without the others. E.g. if you own an historic house you might not have the right to alter it or pull it down; if you own a title of nobility you do not have the right to transfer it; if you own land with a right of way across it you do not have the right of exclusive use, and so on. Debates about whether there is or ought to be private property rights have an antiquated air, but some political theorists pursued them only recently – e.g. Nozick, defending Locke, G.A, Cohen, attacking Nozick, Jeremy Waldron defending a kind of liberal socialism. The conservative position is roughly this: private property is a fundamental institution of civil society, one that enables an individual to ‘realize himself’ (Hegel), through work, home-building, charity and hospitality. Take it away and you will deprive people of the primary avenue to social membership, which is gift.

Free exchange. Nevertheless, private property is not the same thing as free exchange. Arguments over the market economy concern the extent to which people should be free to exchange goods, to accumulate wealth, and to retain the surplus of their economic transactions.

Three kinds of conservative argument here:

(1) Free exchange is simply economic democracy – allowing the economy to emerge from individual choices, in something like the way the government emerges from individual votes. This doesn’t mean that there should not be restrictions on what can emerge, just as there are in politics, in the provisions for accountability, minority rights etc. There can be laws against monopolies, anti-trust legislation, planning controls and so on, without denying the freedom of the economy – i.e. the fact that it is produced by individual choices rather than by government edicts.

(2) Economic order should be seen as a by-product of individual choices, and cannot itself be the object of choice. (The ‘invisible hand’ idea of Adam Smith.) Why cannot it be the object of choice? Various theories here: von Mises, Hayek, Friedman.

(3) The epistemological argument that we will come to later in the course, when dealing with law, legislation and Hayek.

General Observation.

Classical liberals and conservatives agree on a fundamental axiom, which has the air of an a priori rule: freedom cannot be extended to allow the activities that subvert freedom; to extend it this far is not to grant freedom, but to take it away. In the end it is that axiom, rather than the doctrine of ‘harm’, that underpins Mill’s argument in On Liberty. He is saying: extend freedom to the point where any further extension will undermine it. Conservatives add that, in all its forms, freedom presupposes continuous and authoritative institutions, and that if we value freedom we must conserve those institutions. ‘Freedom without authority is empty; authority without freedom is blind’.

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