Rights or Liberty? 26

Which would you rather be able truthfully to claim:

“I have a right to …”

or

“I am free to …” ?

There has been some discussion in the comments section of our post The Colossus … and the enriching of America (29 January, 2018) about whether government is necessary for the protection of a citizen’s rights or the protection of his liberty. I say, for the protection of his liberty. That is what defines “a free country”. In the United States of America, there are certain “rights” granted in law that are themselves protective of the individual’s freedom. The ultimate aim of the Founders in granting those rights was the protection of liberty.

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Freedom is not a state of nature but an artifact of civilization

– Friedrich Hayek, The Constitution of Liberty, Chapter Four.

To be for freedom to do what one wants to do is not to be for unbounded liberty. (I use the words “liberty” and “freedom” interchangeably, as they are synonyms.)

What then are the bounds of liberty?

Ideally, my liberty is limited by nothing except everyone else’s liberty.

Sane, sober, sensible self-interest tells me that if I don’t want to be bonked on the nose by my neighbor, I would do well not to bonk him on his nose. But I cannot trust everyone else – or even myself – to be always sane, sober, and sensible.

If I live in a time and place when and where I have to fear continually that I will very likely be assaulted, injured, killed, and that the things I have acquired to sustain my existence, comfort, safety, and pleasure may be forcefully taken from me, I am not free. I am constrained to be perpetually on my guard against attack. I must never venture abroad unarmed. I must carry my possessions with me or stay with them. I am burdened with anxiety. I am severely hampered.

But if my freedom is protected by law and the apparatus of law-enforcement – police, judicial courts, prisons, gallows – I can take the safety of my person and my things for granted, and go lightly about my business among my fellow citizens. (Which is not to argue that it’s unnecessary to insure my house and its contents, or register my intellectual property. These are, it is true, private protections taken on by personal choice, but available to me only in a society governed by the rule of law.)

The city-states of ancient Greece embodied the idea of a society made up of people from many different countries, nations and tribes, all governed by the same rule of law. Your willingness to obey the law made you a worthy citizen, regardless of what region of the earth you derived from. The idea that people of many different nations could melt together into one nation ruled by law (“e pluribus unum”) was lost and forgotten for centuries and was not applied again until the eighteenth century with the founding of the United States of America.

However, the idea of a nation governed by the rule of law rather than by a monarch, re-emerged earlier than that, in England, with the signing of the Magna Carta in 1215. By signing it, King John conceded the principle: “Be you ever so high, the law is above you.” It was intended to be a “charter of liberties”, not a bestowal of “rights” on his subjects or on any one class of his subjects such as the barons. Clause 60 declared: “all the customs and liberties which we have granted to our own men shall be observed by all of our men, both lay and clerk [cleric], to their own men”. In other words, just as the king pledged liberty to the barons, so the barons, by the same token (the Charter) pledged liberty to their tenants.

Magna Carta affirmed the vital principle of freedom under the law. Clause 39 of the Charter said: ‘no free man shall be imprisoned or deprived of his lands except by judgement of his peers or by the law of the land’.  Clause 40 said: ‘To no one shall we sell, delay or deny right or justice’ (“right” in the sense of what is right, not “a right”).  Before Magna Carta, the king had been able to do pretty well whatever he liked – and did.  After the making of the charter of liberties, the king was as firmly subject to the law as everyone else.

(It is true that the monarchs of England nevertheless went on for centuries having too much arbitrary power. But it would be a mistake to believe that the continuing existence of an English monarch now means that the people are not as free as the American people. [The British have recently become less free, but not for that reason.] Since the Glorious Revolution of 1688, when William of Orange and his wife Mary became the constitutional monarchs of the United Kingdom, the reigning king or queen is the nominal and ceremonial head of state, not the power of the state. The present Queen has no choice but to sign the acts of law that Parliament passes. The people are “subjects” in name only.)

A free country is one in which the people are free to do anything that is not specifically prohibited by law. Most of its laws proscribe rather than prescribe. They say you must not do this and that, such as murder, steal, perjure yourself. While there  are some that say you must do – for instance, the laws of the fisc: you must pay your taxes – the fewer “must” laws there are, the freer the people.

Now let us suppose that legislators decide that the law should specify everything you may do. Those would be your rights. It would be an infinitely long list, never exhaustive. So the enterprise would be impossible.

Does that mean that there can be no such thing as a “right” granted by law? No, it does not mean that. The law, and only the law, can grant a right. Even if one believes in a god, and makes the claim that the god bestowed certain rights on every human being ever born – the right to life, say – it would be meaningless if it were not recognized as a right, and protected, by the law.

Only the law can grant a right. The rights the laws of a free country can grant are very few. And there is a danger in granting any: that some governments, having granted a few, may claim that what those few permit you is all that you are permitted.

Why can governments only grant a few rights? Because no one can have a right that puts an obligation on someone else.

That is why it is nonsense to speak of a “right” to health care; a “right” to an education, a “right” to a house, a “right” to a minimum income, a “right” to equality of pay; a “right” to social security; a “right” to an abortion; a “right” to contraception; a “right” to a sex-change operation; or, the crowning stupidity, a “right not to be offended”. That takes away the essential freedom on which all the rest depend – the freedom to speak. And it is in itself a deeply offensive notion.

If your “right” compels the labor of someone else, it is not a “right” but a privilege – and what is worse, the indefensible privilege of the parasite.

What of your “unalienable”[1] rights named in the Declaration of Independence as “Life, Liberty, and the Pursuit of Happiness”? They do not put an obligation on someone else, so aren’t they good rights? You are declared to be endowed with them by your “Creator”, “Nature’s God” – which is a way of saying that they are yours simply because you exist. And many there are who believe that because they exist, they have a right to exist.

If you believe that God or Nature granted you the right to live, to be free, and to pursue happiness, you may also believe that God or Nature will protect those rights of yours. But in fact Nature guarantees you nothing. You have no natural rights. You can call them natural, you can call them God-given, but unless they are recognized and supported by the law, you may find that they are not dependable.

So what rights can the law grant – and sufficiently protect to make the granting of them more than just the wistful thought of a somnolent parliament?

These: The right to speak freely. The right to a trial if you are accused of breaking the law. The right to safeguard yourself, your property, your reputation. They are among the rights granted by the US Constitution in the first ten amendments (the Bill of Rights), and all of them can be, and are, protected by the law. By protecting them, the law – or say the government – is protecting your freedom.

That is what the Declaration of Independence and the Constitution are all about: realizing the idea on which the USA was founded – the idea of liberty.

 

Jillian Becker   January 31, 2018

 

[1] “Unalienable” means the same as “inalienable”: that which cannot be taken away.