Published January 1, 2008
Modern Liberty and the Limits of Government, by Charles Fried.
Charles Fried is an esteemed scholar and public figure–the former solicitor general of the United States and a Harvard law professor. So it comes as no surprise that he is unafraid to tackle such a serious issue as the relationship between liberty and government. The result, his new book Modern Liberty and the Limits of Government, is a thought-provoking treatise that deserves our appreciation–but also our close critical scrutiny.
It is clear that Fried intended to author what might be called a love poem to liberty. Indeed, he begins his book by paraphrasing the Aeneid, writing, “it is of the liberty of the moderns that I sing.” He attempts to show that this liberty–the liberty of an individual human being to live, insofar as possible, a self-chosen existence–is central to life in modern democratic societies. As such, democratic political decisions ought to be made with the scales of justice tilting firmly in liberty’s direction.
This is all well and good, and most citizens in modern democratic states would certainly agree with these general outlines, but the flaws in Fried’s argument become apparent once we delve into the details. In certain ways, Modern Liberty and the Limits of Government is oddly unsatisfying. Far from clearly establishing those limits on state power, this book demonstrates exactly how difficult it is to define them, and why any attempt to derive a practical account of freedom from an abstract theory of rights is inherently problematic.
Coming from a lawyer and a man politically aligned with the wing of the Republican party sympathetic to libertarian arguments, one would expect this book to argue for restraining government power. In particular, one would expect it to delineate the points at which taxation and regulation of property cross the line into the subjugation of liberty, and what one might do to re-establish that boundary. Instead, Fried’s defense of liberty proves surprisingly weak, and leaves the door open for extensive government action.
Fried’s case would be easy, at least rhetorically, if he meant to contrast democratic liberalism with ancient or modern despotism. But he expressly eschews that approach in his first chapter, saying that he seeks “to show why and how it [modern liberty] matters, not in easy contrast to the pharaohs or Pol Pot or even contemporary China or Iran or Cuba, but in modern, prosperous democratic societies.” He then presents three examples of the sort of modern regulation he finds intolerable: A law in Quebec, Canada that, in order to ensure that the French language “would remain the culture and language of the province,” prevents public communication in any language other than French; another Quebec law that prohibits the purchase or sale of private health insurance covering health care services provided by the public system; and a Vermont law that tries to prevent large retail stores, such as Wal-Mart, from opening in that state.
Why do these laws unacceptably infringe upon liberty? Fried’s answer shows how his defense of liberty is not simply that of the classical liberal. For the modern classical liberal would argue that these laws all deprive people of choice–the Quebec language law deprives people of the right to speak how they want, while the last two laws deprive people of the right to buy and sell what they want and from whom they want. Fried’s response, however, is subtly different: It is not the loss of choice per se to which he objects; it is, rather, that each law has “a sense of personal enlistmentinto a cause one does not share.” (Emphasis in the original.) Since none of these laws permit the dissenter to opt out, “it is the cramming of a way of life down people’s throats that seems the offense.”
This subtle distinction shifts the emphasis of Fried’s concept of liberty from that of the rights of the individual against government control to that of the individual’s right to non-participation in certain government laws and regulations. It also permits him to endorse substantial taxation and regulation while simultaneously proclaiming his defense of liberty. For instance, Fried dismisses the argument that taxation itself is compelled enlistment in a cause to which one may not wish to belong, asserting that “only the most extreme . . . claim that these forced contributions deprive them of their liberty.” The reason for this, according to Fried, is that the taxpayer receives benefits through certain programs with which he theoretically dissents, such as national defense or road construction. In the economics jargon Fried adopts, these are “positive externalities” on which the dissenting taxpayers are “free riders.” Since taxpayers receive benefits from such policies whether they pay for them or not, Fried does not consider their forced contribution an unjustifiable infringement on liberty.
It should be noted, however, that this distinction alone does not completely separate Fried from classical liberalism. After all, most classical liberals adhere to the social contract theory that has long recognized the need for taxes to protect citizens from physical harm. Hence, classical liberals tend to support the “night watchman state”: A state that provides for national defense, police, and the courts as public goods supported by taxes. Where Fried really departs from classical liberalism is in his refusal to limit his concept of justifiable intervention to laws that address those externalities with a physical component. Instead, he accepts the idea that other types of externalities may justify mandatory public action. For instance, he defends universal, compulsory education on the grounds that everyone supposedly benefits from an educated citizenry. He makes a similar case for income redistribution intended to alleviate extreme poverty, insisting that
Everyone is better off in a society without misery. The presence of misery in our midst erodes our sensibilities–imagine the streets of Calcutta, where men and women must wade ankle-deep, as if through a swamp of men, women, and children living without shelter, cooking, washing, and relieving themselves in the gutters, illiterate and ignorant of the basic guides to personal and social life.
The case of the Calcutta streets is particularly informative. Fried does not argue, as a classic liberal might, that such squalor creates a public health problem because fetid streets are a breeding ground for germs that might threaten the general population. Classical liberals can accept interventions meant to address physical harms such as this. Rather, Fried explicitly takes moral offense to the conditions of slum dwellers, and argues that it is this offense–to our sensibilities–that commands our public action.
These concessions place Fried in a difficult position, one that he spends the rest of the book trying to write his way out of. They fatally undercut the classic liberal argument against egregious state power, and provide justification for such phenomena as a large government bureaucracy, high levels of taxation, and other measures of which most classical liberals disapprove. The reason for this is that if legislation is justified by the existence of any type of externality, either positive ones for which all citizens must pay, or negative ones (such as pollution, crime, etc.) that one person’s actions impose unwillingly upon another and for which he must be punished, then we are faced with the question of who decides which externalities are most problematic and must therefore be addressed. Even more crucial are the grounds upon which the decision is made. Can a deciding entity simply declare any action it wishes to be an externality demanding action, and establish any sort of order it desires to address it? Or are there some normative guidelines to which such decisions must conform if they are to be legitimate? If these questions cannot be satisfactorily answered, then we are left with the worst of all possible scenarios: The appropriateness of state intervention will be decided, arbitrarily, by those who happen to be in power at any given time.
Fried assumes that the “who decides” issue should be settled in favor of roughly majoritarian democratic government. The question Fried must answer then becomes whether there is any normative limit to the exercise of majoritarian democratic power. The rest of his book seeks to discover those limits, define them, and then show why the limits Fried has defined are desirable for modern society.
Fried believes that the distinction between things that are privy to regulation by the community and those that are not must rest on unambiguous pre-political, hence natural, rights; in other words, they comprise a sphere or “bubble” of individual entitlement that no state or community can legitimately encroach upon. He identifies two fundamental rights that meet these criteria: Freedom of thought and freedom of sexual expression, to which he dedicates chapters four and five of his book.
Freedom of thought, or “liberty of the mind,” argues Fried, “is the preeminent freedom, different in kind and importance from all others.” Following the English philosopher John Stuart Mill, Fried perceives this freedom as a basic expression of self-ownership. While the government may restrain physical freedom in order to protect the rights of other people, it cannot do so in regard to one’s individual judgments. This is why, according to Fried, freedom of thought “spells the limits of community and its claims.”
And yet, our minds are not wholly autonomous: They are constantly exposed to and shaped by outside influences. Fried demonstrates this simple truth by returning to the issue of the Quebec language laws:
Our minds are not like computers encased in our skulls and running on machine code waiting to be translated into whatever application is installed and activated. . . . We think in language. . . . And whether or not it falters, the intent of the language law quite clearly is to get into our heads, for if thought is unavoidably thought-in-a-language, then whatever translating we may be doing, what comes out is thought in French. That means that our thought as it reaches others is not quite the thought we would have chosen. It is in part dictated by others.
Fried then correctly moves from this observation to note, “If the very language of our thoughts is a resource constructed and shared by others, then even the claim to self-ownership of our minds is undermined.” To circumvent this admission and its ominous implications, Fried falls back on an a priori assumption:
My responsibility for my judgments is unavoidable. If we do not take responsibility for our own judgments, we might as well give up on thought and argument, on trying to convince others and being open to being convinced by others.
This is not unreasonable. In essence, he is saying that belief in the individual’s freedom of the mind is as vital to human existence as the point is to geometry: Take either away, and the essence of what remains is decisively changed. Geometry without points is not geometry; human existence without individual reason and speech is not human.
But this formulation raises another question. Fried has already justified regulation of physical freedom, because it takes place in relation to others, and hence inevitably produces externalities, positive or negative. But are the workings of the mind so different as to be free of externalities? Can we really draw such a sharp distinction between the mental and the physical in this regard?
The difficulty of distinguishing between rights of the mind and rights of the body becomes most apparent when one considers the book’s chapter on sex. Fried argues passionately that sexual behavior ought to be free from regulation because “if the sex is consensual, then the joining of the two personality bubbles is just about as close as you can get to the irreducible heart of self-ownership.” Throughout this chapter, Fried never mentions that sex might have externalities, i.e., that it might have physical and non-physical consequences for others. Obviously, this is a serious oversight. For starters, sex can give rise to deadly diseases such as aids, which in turn create severe public health problems. In the same manner, the number of children produced by sexual relations has enormous social significance: Societies are often forced to address the demographic repercussions of having too few or too many children through collective action.
Now, a modern, wealthy society can address these externalities without regulating sex directly. But if there is an obvious, natural, extra-political right to unregulated sexual behavior, as Fried claims, then such a right ought not to be contingent upon our membership in a modern, wealthy, democratic society. To see this, we need only consider the possible responses of a pre-modern society to these sexual externalities: If half of all children die before the age of majority, is it wholly illegitimate for a society to create a legal regime that encourages marriage and childbearing? If there is little understanding of the process of disease and no modern medicines, is it wholly illegitimate to forbid certain sexual practices?
Now let us consider the non-physical externalities of sex. Fried makes light of these, reducing them to the claim that people are disturbed “at the very idea” that two people, like gays, are having sex of which others disapprove. But is this distaste really different in kind from the type Fried feels at the thought of people suffering in the streets of Calcutta–the suffering he views as legitimate justification for government intervention?
Fried ignores the fact that there are very real non-physical sexual externalities with which modern societies are grappling. There are discernible cultural differences, for example, between societies in which children are raised in stable, two-parent families and those in which children are raised in single-parent households, a difference that is compounded if the household in question has been formed as the result of an illegitimate birth rather than a broken marriage. One can argue about how to deal with these externalities, and surely we can all agree that explicit bans on sexual behavior ought not to be our first line of defense. But any reasonable public response short of that rests on changing the ratio of costs and benefits society bestows upon certain sexual practices through its public subsidy programs, divorce and custody laws, and the like. If sex is legally unassailable, then these laws, too, must be suspect. The fact that they go unmentioned in Fried’s book suggests that, while he is aware of the threat this poses to his argument, he has no real solution to the problem.
The difficulties Fried encounters in attempting to establish a “pre-conventional, deeper-than-political” account of liberty bring us back to the starting point of the discussion. They also remind us, by way of contrast, of Aristotle’s assertion, near the beginning of his book Politics, that man is by nature a political animal. By this, the Greek philosopher meant that a man’s habits and actions are unavoidably shaped by his political environment–his “regime,” as it were–and that, as such, a man has no pre-political claims upon the regime under which he lives. The problem for Fried, and for us, is this: Can we preserve and protect the liberty of the individual without a foundation of pre-political, natural rights?
The answer ultimately depends on whether one thinks that societies can act justly. For Aristotle, justice is an act of prudential reasoning, or the application of the facts at hand to certain principles that suggest certain tendencies, but do not necessarily compel certain outcomes. It is a society’s devotion to and practice of justice that Aristotle uses as the dividing line between legitimate and illegitimate regimes. One can, as modern men do, disagree with Aristotle as to what justice is without disagreeing with his observation of how legitimate societies act, and it is in this vein that a defense of liberty can be established without recourse to a hard theory of natural law.
Now, many modern thinkers believe justice of this sort is impossible, holding instead that all such principles are mere exertions of will and personal belief to which others need hold no allegiance. Like Fried, I am not a metaphysician, so I will not attempt to refute this idea philosophically. In this regard I am more like Samuel Johnson, who, when confronted with the argument of the idealistic philosopher Bishop George Berkeley that matter does not exist, simply kicked a rock and uttered, “I refute it thus.” I think it is clear that societies can act justly because I observe that they do act this way. And with respect to the problem Fried outlines–the problem of defending liberty in the modern society–he inadvertently provides us with the principle of justice upon which such a political defense of liberty can be based.
That principle is what Fried calls “the spirit of liberty.” Fried’s example of sexual behavior shows that political decisions depend upon reasoning, and that political reasoning takes place in a political context. Such decisions can be taken with the spirit of liberty in the forefront of our minds, or they can be taken in its absence. This becomes obvious when we look at specific examples. Let’s take security: When there is no obvious physical threat to their existence, societies are more willing to let people come and go as they please, without the burden of, for example, checkpoints. Clearly an individual’s physical mobility is fundamental to liberty, and in normal times this “right” is recognized by modern societies. But introduce a greater threat, like the one Israel faces on a daily basis from suicide bombers and the like, and society imposes upon itself more stringent restrictions than it would otherwise prefer, without removing the basic idea of liberty. Or, to use an example Fried himself often returns to, let’s take income redistribution. Fried argues that liberty demands some income redistribution because
People with little or no property are liable to suffer every kind of pain of body and mind. They are humiliated, dependent, and lack any real opportunity to enjoy the individuality of which liberty is the normative manifestation. No reader of mine will or should follow an argument that is indifferent to such suffering of his neighbor. (Emphasis added.)
An admirable sentiment, but it raises an immediate dilemma: How does one determine the degree of income redistribution that will ensure that a person has enough wealth to “enjoy a decent life”? And when does redistribution go too far and severely violate the property rights of the individual? Fried himself admits that there is no clear answer to these specifics, saying only that, “I know the spirit in which we determine that point . . . . It is the spirit of liberty.”
The importance of this principle is underlined by an examination of how liberal and illiberal societies use the existence, or fear of, extreme poverty to guide their actions. Societies that value liberty may build welfare states, but they also preserve basic economic freedoms. This is unsatisfying to the classical liberal who rejects the idea that non-physical externalities can justify public action, but it retains more of the spirit of liberty than do onerous policies. Illiberal societies, such as Hugo Chavez’s Venezuela or countless African dictatorships, for example, use the same poverty as justification for suppressing liberty and amassing political and economic power in the hands of a non-accountable, centralized state. If we want to understand the difference between these societies we must bear in mind the political context of public opinion: Liberal societies value liberty, and hence curb themselves; non-liberal societies, or political actors within such societies, do not, and act accordingly.
There are risks to this approach. “The spirit of liberty” is a vague notion, and thus easily abused. As Fried himself notes, certain players in the social and economic arenas often invoke the public good in order to serve their own selfish interests. Unions and businesses can seek to protect themselves from competition. Environmentalists, religious groups, and other non-governmental organizations can use democratic laws to force others to live according to their dictates. And the myriad abuses of income redistribution are simply too numerous to name. The United States was founded, after all, in a revolt against the tyranny of improper taxation. Worse still, the most horrible atrocities in history were often committed in the name of the loftiest ideals–“liberty” being one of them.
But there is no avoiding these risks. Fried at one point rejects a strict libertarian argument that opposes any income redistribution on the grounds that charity alone will suffice, insisting that, “it is enough to say that such regimes have never been tried.” So, too, with politics: Look where you will, you will not find an example of a regime without politics. It seems that liberty, if it is to be valued, must find its realization in the political sphere, and as such must manifest itself in the hearts and minds of the people who make up a particular polity. As Abraham Lincoln said, “Our defense is in the preservation of the spirit which prizes liberty as the heritage of all men, in all lands, everywhere.”
Such a defense is assuredly not hopeless. Contrary to common wisdom, political debates and actions in modern societies do not occur on a merely instrumental basis. They necessarily involve weighing competing claims to action, which by definition demands an explicit discussion of justice, i.e., the obligations people owe to one another. If people believe, like Lincoln, that liberty is “the heritage of all men, in all lands, everywhere,” then they are likelier to protect it and to resist infringements upon it.
Friends of liberty like Fried are enjoined to remind us that liberty is an important component of justice, one which engages our mind and our hearts. He does this best by recourse to anecdotes and concrete examples. When Fried tells us about the grandmother who could not order an English-speaking doll for her Quebecois grandchild because to do so violated the French language law, her plight garners our sympathy. When he argues that a law banning Wal-Marts from Vermont prevents people from buying goods they want at prices they can afford, we are understandably upset. And when he argues that some income redistribution is justified in order to avoid the fetid streets of Calcutta, we may not agree, but our moral sensibilities are effectively engaged.
It is this spirit of sympathy that is essential to modern liberty. It clearly invites–perhaps even requires–an idea of the natural, pre-political rights of the individual by which political decisions should be judged. I readily grant this likelihood, even this necessity. However, it is important to remember that such sympathy would not have been evoked in many places and times in human history. It seems to me that, contrary to Fried’s intentions, he has written a book that is, at heart, a political defense of liberty–one that takes the idea of an autonomous individual as its touchstone, but which recognizes that the devil is always in the details, and the details are sorted out by men acting in contexts–that is, through politics.
As a defense of liberty, Fried’s book is to be warmly welcomed. Nonetheless, the conceptual problems of clarifying the foundations of liberty and its limits remain. Those problems, insufficiently addressed by Fried, have to be dealt with, so that the individual and his freedoms will be made more secure.
Henry Olsen is a senior fellow at the Ethics and Public Policy Center.