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Earth-Hunger and Other Essays/Liberty and Law

Liberty and Law

Sir Robert Filmer defined freedom to be "liberty of every one to do as he lists, to live as he please, and not to be tied by any laws"; on this definition he based a philosophical treatise on absolutism in government, affirming its natural necessity and political propriety. He was perfectly right, for that definition of liberty is the one which would lead to despotism. At the same time, it is the anarchistic definition. There is no contradiction in this. Sir Robert meant by his definition to lay a basis from which to affirm that liberty is impossible, absurd, irrational; the anarchists affirm the same definition, and take it to be rational, real, and true. Around this issue all the great controversies in political science of the last two hundred years have raged, and around this issue they must revolve without solution so long as the metaphysical notion of liberty is accepted.

The liberty to do what one lists can never be complete, unless it is supplemented by the further liberty not to do anything. A man who had this liberty might, therefore, be in the society but not of it, living upon it and enjoying a privilege to exert his energies in any way, no matter how harmful to other men. The notions of social rights, social duties, and liberty are, therefore, all born together, and correct definitions of them all will be consistent and coherent. The notion of liberty which we have been criticizing, however, is hostile to all notions of rights and duties; the man who had that liberty would have no duties, nor any rights, properly speaking, because he would have privileges. Rights and duties, in a combination consistent with liberty, constitute the social bond. Such rights, duties, and liberty are the elements of political institutions which give them their form and value.

We who live in the midst of a modern civilized state, with high security of persons and property, with well-defined rights, with no burdensome duties, with no privileges secured to some at the expense of others, easily assume that this all comes of itself, that it is the natural order of things, and that any departure from it would have to be forced by injustice. We believe that men have easily made up their minds that they would have it in this way, and that, by adopting proper resolutions at the right moment, they have brought it about. We therefore suppose that all we have is secured to us by the most stable and unquestionable reality, that we run no risk of losing it, that we can afford to find fault with it, throw it away, despise it, and break it in pieces.

The facts are far otherwise. The peace, order, security, and freedom from care of modern civilized life are not the product of human resolutions; they are due at last to economic forces, which, by expanding the conditions of human existence during the last three hundred years, have made all which we possess possible. Our history has been written on politics almost entirely; and, without joining in the current easy abuse of it on that account, we may fairly say that people have not learned at all to understand the extent to which political resolutions are controlled by economic conditions, or the extent to which political and social institutions are conditioned in economic facts. It is not too much to say that economic facts are always present and controlling in the apparently arbitrary acts of constitution-makers and legislators. Our whole history must be reconstructed with a view to this fact. If that is once done, we shall understand better the narrow range within which the law-givers, philosophers, constitution-makers, and legislators can work.

It is the opening of the new continents and the great discoveries and inventions which have made this modern age; they account for the power of man, and they have, by their form, conditioned the mode in which that power might be used. It has been wasted and abused to such an extent that man has never enjoyed more than a small percentage of the real power which was at his disposal for the enhancement of his earthly existence; and the modes in which it has been wasted have been chiefly those of social policy and political device. The ignorance, folly, and wickedness of statesmen, together with the incompetence of the social philosophers, seem great enough to have brought the world to universal penury, if the discoveries of science and the inventions of art had not been rapid and strong enough to bear all the losses and leave a surplus, by virtue of which mankind could gain something. The chief source of new power, however, has been the simplest of all, that is, an extension of population over new land. If a half-million proletarians in Europe should inherit each an estate, no one would think it any mystery that they were not proletarians any more; why, then, should it be a mystery that they are not proletarians when they have inherited an estate in America or Australia by going to it? To this we append, in passing, another useful reflection. If the statesmen and philosophers of the past made such mistakes, which are now visible to us, how do we know we are not making equally gross mistakes, which somebody will expose a century hence? We do not know it. We should hold this ever in mind. It is exactly the reason for distrusting our wisdom and for "letting things alone."

The political and civil liberty which we enjoy has issued out of all the stumbling and blundering of the past. The errors have been cured, to some extent, by bitter experience. The institutions which are strong and sound have only grown up through long correction, and have been purified of the stubborn folly of men only after long and bitter suffering. They are not stable; they are not founded in immovable facts; they are delicate products of care and study and labor. They could be easily lost and they require high good sense and self-control for their maintenance. Civil liberty is in the highest degree unstable. If we should fill libraries with written constitutions we could never guarantee liberty. Terms change their meaning, ideas move through a development of their own; nothing stands still here more than elsewhere. Intelligent conscience and educated reason are the only things which can maintain liberty, for they will constantly be needed for new cases and new problems. We could not make a greater mistake than to suppose that we could throw down all social institutions and guarantees, and still keep all the peace, order, security, and freedom from political anxiety, which we now enjoy. Time and again in history men have sacrificed liberty rather than incur anarchy. When anarchy comes and every one tries to realize the liberty to do as he likes, the man who has anything knows that he will not be able to do as he likes, because it will take all his energies and more to protect his property. He knows that some of the other people who will be doing as they like will be sure to rob him. The man who is too young or too old, or physically weak, and the women, know that they will not do as they like, because somebody else will make them do as he likes. These will all flee to any protection which can save them from plunder and abuse, because liberty and anarchy are totally inconsistent with each other, no matter what the definition we give to liberty. Filmer was right when he held that, if liberty meant license to do as you list, it made despotism the only rational and possible form of civil government.

There is, therefore, no liberty but liberty under law. Law does not restrict liberty; it creates the only real liberty there is—for liberty in any real sense belongs only to civilized life and to educated men. The sphere of it is not in the beast-like non-reflection of savages; it is in the highest self-determination of fully educated and responsible men. It belongs to defined rights, regulated interests, specified duties, all determined in advance, before passions are excited and selfishness engaged, prescribed in solemn documents, and guaranteed by institutions which work impersonally without fear or favor. Such are the institutions under which we live. Their integrity is worth more to us than anything else in the domain of politics; their improvement, that they may perform their functions better, is the highest political task of our civilization. That is why liberty in its true sense is worth more than the suppression of intemperance, or the restriction of trusts, or the limitation of corporations, or any other pet reform. Liberty which consists in the equilibrium of rights and duties for all members of the state under the same prescriptions, liberty which secures each man, in and under the laws and constitution, the use of all his own powers for his own welfare, has not therefore the slightest kinship with the spurious liberty of doing as we please, but is the prime condition of happy life in human society. The thing to which it has generally been sacrificed in the past has been "the reason of state"; that is, some other object than the happiness of men, an object selected and imposed upon the society by some arbitrary political authority. There is a modern abuse which is exactly parallel to this, and which consists in using the law to impose pet social aims on society, which use up the time and energy of the citizens in other aims than those chosen by themselves for their own happiness. Thus the most difficult problem in respect to liberty under law is now what it has always been, to prevent the law from overgrowing and smothering liberty.

This work was published before January 1, 1924, and is in the public domain worldwide because the author died at least 100 years ago.