“Liberty” is a word that figures centrally in our political lexicon, the term around which every other revolves. No one—neither the friends nor the foes of our traditions—who seeks a hearing in “the public square” that is our political discourse could coherently think to refrain from enlisting it in the service of his cause. And no one would think to expose himself as an enemy of “liberty”—even if he really considered himself as such.
But for as simple as it is, “liberty,” being a concept that is both general and abstract, admits of a plethora of views, many of which are mutually contradictory. Thus, if he is to avoid confusing others and, more importantly, himself, it is imperative that the lover of liberty specify the object of his affections with all of the exactness of which the subject matter admits.
The prevailing conception of it equates liberty with a “right” that is alleged to be “natural” or “human.” And because “this right,” being timeless, is a “first principle,” a proposition whose truth owes nothing to history, it is “self-evident.” Walter E. Williams, Andrew Napolitano, and Ron Paul—men deserving of no small measure of respect—are among the most visible of contemporary proponents of this view. They are only the most recent of its representatives, however. This vision of liberty has roots stretching back centuries, and its pedigree is as impressive as it is extensive. Our own Declaration of Independence is about as notable, and notably succinct, an expression of it as any.
However, in spite of the undeniably valuable purposes that it has served, the notion of a “natural right to liberty” is not without its problems.
First, if this “natural right to liberty” was the self-evident proposition that its defenders claim, then presumably, anyone and everyone with just a shred of reason should be able to grasp it. But for most of human history, up until near the advent of the modern era, no one spoke of “natural rights.” The idea of “natural law,” it is true, has been in circulation for thousands of years. Yet all expositors of “natural law,” whether Greek, Roman, or Christian, agreed that the natural law, like all law, postulated first and foremost obligations for its subjects to observe—not rights for them to exercise. The concept of “rights” rooted in nature was alien to this tradition of natural law.
If there really is a self-evident right to liberty, then presumably it would be as impossible to question it as it is impossible to cast doubt upon the propositions that “2+2 = 4,” “I am a conscious entity,” “The world is more than five minutes old,” and the like. However, even the defenders of natural law throughout the ancient and medieval periods had never heard or dreamt of natural rights. When we couple this fact with the consideration that to this day, many an astute observer, including and especially those of a more conservative temperament, question the concept of natural rights, it becomes obvious that it does not possess the self-evidence that its proponents ascribe to it.
This is a problem, though, because in claiming that there is a “self-evident” natural right to liberty in spite of the fact that it has been anything but evident to most people, the proponent of natural rights arouses suspicions that he either doesn’t believe that of which he speaks or realizes that his belief is without basis.
Another difficulty with the natural right conception of liberty is that even if it is “self-evident” that everyone has a natural right to liberty, this no more generates guidance for action than does the “self-evident” fact that we are awake. An allegedly “self-evident” natural right to liberty is as compatible with communism, socialism, and capitalism as it is compatible with liberalism, libertarianism, neoconservatism, and anarchism.
It may be true that there is such a right, but this in and of itself tells us nothing about how we should conduct our lives, arrange our institutions, or shape our policies.
Finally, although its apologists haven’t seemed to have grasped this fact, the notion that there is a “natural right to liberty” is of the same philosophical piece as the notion that rights are the creations of government alone.
The nineteenth century English philosopher Jeremy Bentham had famously declared that “natural rights” are “nonsense on stilts.” From Bentham’s perspective, far from being “natural,” rights were utilitarian devices that we contrive in order to “maximize pleasure and minimize pain for the greatest number of sentient beings.” Although this position and that affirming a natural right to liberty are mutually exclusive, they are equally animated by the same philosophical impulse. This impulse has been called rationalism.
Rationalism is variously depicted, but common to all rationalists is an aversion to anything and everything that threatens to defy the reason/nature dichotomy within which Western philosophy has operated for most of its history. To put it more specifically, the rationalist’s analyzes of human conduct attach little to no importance to tradition, custom, culture, or civilization—i.e. that which is intermediate between reason and nature. Either morality is grounded in an unencumbered, universal Rationality or else it is rooted in an unencumbered, universal human nature. Both the proponents of “natural rights” as well as their utilitarian enemies assume that these are our only two alternatives.
Yet they are both mistaken.
Neither reason nor nature is unfettered: both are constituted by the culturally and historically-specific traditions within which they develop. The seventeenth century French Catholic philosopher Blaise Pascal once noted that while habit is usually said to be “second nature,” it just may be the case that nature is “second habit.” The point that he is making, I think, is that habit and nature are so closely bound that they are practically indistinguishable.
Though we mostly always speak of “liberty,” in truth, this is but a short-hand term for our liberties. Our liberties are not “natural.” They are not goods to which all human beings in all places and at all times have “a right.” Rather, they are the fruits of the labors of our ancestors, a rich cultural inheritance that generations and generations worked tirelessly to bequeath to us.
We no more need to lose ourselves in grand metaphysical speculations when affirming our liberties than when affirming our families. Rather, we need look no further than our constitutional arrangements. Our self-conflicted government with its wide dissemination of power and authority, its numerous “checks and balances,” and its subservience to the rule of law; it is within the interstices of these peculiar arrangements that our liberties are located.
Genuine lovers of liberty can disagree over how best to interpret the object of their affections. However, those whose love leads them to elevate liberty into an abstract metaphysical perfection—a “self-evident” and “natural right”—would do themselves a good turn to consider that in raising it too highly, they risk losing it altogether.
Jack Kerwick, Ph.D.