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History

Freedom Is the Birthright of All Humanity

Tom G. Palmer

History matters. It is of especially great significance when considering ideas and practices of justice, social order, and political or communal life. Historical understanding offers a powerful lens through which to understand scientific theories, philosophical concepts, legal enactments, and other social phenomena. It generally helps to understand an idea if one understands its history. Ideas, concepts, and theories can be understood as tools that we use to solve problems and thus an understanding of their histories—of the problems to which they were presented as solutions—can help us to understand those ideas, concepts, and theories. Understanding the history of individualism can help us to understand better individualism in theory and – of greater importance – in practice.

The recognition of individuality, of the uniqueness of each individual, is commonplace in all cultures.

A focus on history carries some dangers, as well, for some make the unjustified logical leap to the conclusion that the history is necessary, not only to generating an idea or practice, but to understanding it or adopting it, as well. Although history matters, offering a historical account of an idea need not imply that the idea is limited in validity to certain people, times, or places. Nor need it imply that it could only have been developed under those conditions; certainly it is common for people widely separated in time and space to develop similar or identical tools, including ideas, and it is also common for tools and concepts to spread to other groups through persuasion and emulation.

There has been a great deal of talk lately that suggests that individualism is a exclusively “western” approach to life and cannot be enjoyed by others, or that recognition of the rights of the individual is inappropriate to non-western cultures, and should be rejected by them. Both of those claims are false.

The recognition of individuality, of the uniqueness of each individual, is commonplace in all cultures. It’s simply undeniable that persons are individually distinct; indeed, specific organs and regions of the human brain are functionally necessary to distinguish and recognize human faces, without which sustained patterns of human cooperation would be impossible.[1] Each human person is unique, even if rulers may consider us interchangeable and expendable. What is less commonly grasped is that we all share in common something morally significant and that therefore all human beings have legitimate claims to rightful treatment by each other, that is, to respect for their human rights. Only in modern times has such an idea achieved widespread, albeit far from universal, acceptance.

The theoretical appreciation of individuality at both the level of individual uniqueness (or “individuation”) and of individualism as a foundation for legal and political claims emerges at different times in different places. Those streams of individualistic ideas that merged to form liberalism mostly emerged from Europe, although the core elements of liberal individualism can be found in Chinese, Islamic, Indian, and other civilizations. They emerged in Europe for a number of historically contingent reasons, including: Europe’s post-classical radical decentralization of political authority (which resulted in both feudal society and later civil society, the former mainly rural and the latter mainly urban and commercial, but both decentralized responses to violence and predation that facilitated experimentation and competition among jurisdictions);[2] the separation and rivalry of the institutions of organized religion and state;[3] the competition of political authorities (including city republics, kingdoms and principalities, archbishoprics, manors, and other political entities) to attract workers, skills, and capital, and the ensuing growth of industry and commerce;[4] and the rediscovery and frequently very selective re-appropriation of the heritage of classical (mainly Greek and Roman) philosophy and law.[5] (The emergence of liberalism is itself a spontaneous order, not the product of one or a few brilliant minds; it emerged from the confluence of a number of different processes to form a coherent and evolving mutually reinforcing body of ideas in law, moral philosophy, economics, sociology, psychology, history, and other humane sciences.[6])

Historical Contingency

History is full of contingencies, of things that could have been otherwise. Had the Mongol armies continued into Europe after the poisoning of the great Khan Ögedei on December 11, 1241, European history would likely have taken a radically different course. As it was, the Mongol war lords returned to Karakorum to elect a new Khan and central and western Europe were spared the Mongol conquests that so profoundly influenced the trajectories of the societies of Russia, Asia, the Caucasus, Central Asia, India, and the Middle East. Historical accident and contingency give us reason to be wary of essentialist claims about cultures.

The historical trajectory could have been otherwise, but it wasn’t.

Inferring necessary development from initial starting points is risky, but that rarely stops people from doing it. Some years ago I participated in a colloquium on the comparison of Confucian and Aristotelian thought, at the end of which one participant concluded that a culture with Aristotle at its base resulted in the US Constitution, the Industrial Revolution, and the abolition of slavery, whereas one with Confucius at its base resulted in Mao Zedong, the tens of millions of deaths of the Great Leap Forward, and the Cultural Revolution. It was as if nothing else had happened in the time between the lives of Aristotle and Confucius and the present; according to that all-too-common approach, history is just a linear trajectory from an idea to a set of outcomes. What shapes society is exclusively the Idea (with a capital “I”) and, because different Ideas have different implications, it’s just a matter of tracing out those implications to deduce the present from the ideas of the past. One reads the Bible or Aristotle or the Quran or the Analects or the Mahabharata and, with neither interpretive apparatus nor context, deduces its implications. (Sometimes the associations are especially absurd, as with the association sometimes made between “Asian culture” and collectivism. When such claims about the inevitability of tyranny in Asia are made, Chinese libertarians point out that Karl Marx, Friedrich Engels, Vladimir Lenin, and Joseph Stalin, whose posters are still hung in the buildings of Chinese state institutions, are rather implausibly classified as Chinese or Asian thinkers.[7] The horrors of collectivist tyranny in Asia had far more to do with ideas articulated by European thinkers than with “Asian culture,” which, in any case, is hardly monolithic.)

One can find statements of libertarian ideals in classical times,[8] and expressions of individuality and personal freedom in Arabic and Islamic civilization[9] (the last itself also an heir to classical civilization), in Chinese civilization,[10] and in Indian civilization,[11] but the intellectual and institutional sources of what became global liberalism converged mainly in Europe.

The historical trajectory could have been otherwise, but it wasn’t. While individualistic thinking can be found in other cultures—and, had some things gone differently, liberalism might have emerged instead, or more strongly, in those other cultures (and not in Europe)—that’s not what happened, which is why historians focus on the origins of liberal individualism in Europe. (A number of the physical sciences were also disproportionately pioneered by European thinkers, as well, but few would claim that modern biology, chemistry, physics, and mechanics are only for Europeans, simply because some of the pioneering inventions and discoveries in those fields were made in Europe.)

Individuality and Moral/Political Individualism

Awareness of one’s distinct individual identity and attention to the individuality of others is related to political individualism, in the sense of a legal and political order based on respect for the rights of individuals, but individuality and individualism are not, strictly speaking, the same. Both recognize the uniqueness of the individual, but the latter combines that recognition of individuality with claims about a common feature ascribed to all human beings, namely, that they have equal basic rights (e.g., “life, liberty, and the pursuit of happiness”). When did those ideas begin to take clear form and to gain more widespread acceptance?

Each human being is a unique individual, but all bear common features, among them equal rights.

The historian Colin Morris identified the twelfth century as “a peculiarly creative age” for “the development of self-awareness and self-expression . . . the freedom of a man to declare himself without paying excessive attention to the demands of convention or the dictates of authority.”[12] Morris focused on the importance of humanist thinking (particularly the rediscovery of the writings of Cicero and Seneca the Younger, two important Roman philosophers), the theological shift from seeking the salvation of mankind to focusing on individual salvation, and the depiction of human individuality in art and literature.[13] Artistic and cultural appreciation for individuality increased through that period and beyond. John Benson has focused our attention on such elements as the development of biography and portraiture, diversification of names, monasticism, the substitution of conceptions of individual guilt for social shame, and the focus on the distinction between childhood and adulthood as elements in the increasing appreciation of individuality.[14]

The recognition of the equal rights of all is complementary to the recognition of the individuation of persons, who are not merely interchangeable units. Each human being is a unique individual, but all bear common features, among them equal rights. (In the words of the American Declaration of Independence, “All men are created equal . . . they are endowed by their Creator with certain unalienable rights . . .”) A key document in the history of the legal recognition of universal rights was a Decretal, or legal pronouncement, issued by the lawyer Pope Innocent IV, about the year 1250. It concerned the rights of non-Christians.

I maintain . . . that lordship, possession and jurisdiction can belong to infidels licitly and without sin, for these things were made not only for the faithful but for every rational creature as has been said. For he makes his sun to rise on the just and the wicked and he feeds the birds of the air, Matthew c.5, c.6. Accordingly we say that it is not licit for the pope or the faithful to take away from infidels their belongings or their lordships or jurisdictions because they possess them without sin.[15]

It’s worth pausing to consider the role played by religion in that story. Pope Innocent IV quotes the Book of Matthew from the Christian New Testament, as well as alluding to the scholastic/Aristotelian idea of the commonality of rationality. He cites a Christian Gospel text, so was it simply Christianity that was playing the key role? And if so, which of the many Christian theologies, or which elements of the various Christian doctrines, were essential? And what role is played by the insistence that “these things were made not only for the faithful but for every rational creature as has been said”?

In a thoughtful and provocative book, full of novel ideas, the political theorist Larry Siedentop has provided an answer that reminds me forcefully of the story I told above of the colloquium participant who concluded that the American Constitution was a result of Aristotle’s ideas and China’s disastrous “Great Leap Forward” was the result of Confucius’s, that each result was an implication of texts written thousands of years ago. It’s worth examining Siedentop’s account, because understanding how mistaken it is may help us to appreciate better the universality of the ideas of liberal individualism. In his recent book Inventing the Individual: The Origins of Western Liberalism, Siedentop hints that Christian doctrine, in the form of the ideas set forth by St. Paul (hereafter “Paul”), is the necessary foundation for liberal individualism and that the ideas of rights not only emerged from a particular context, but could not have emerged elsewhere, and perhaps could not be realized at all without the necessary theological context. Siedentop argues that it was Paul’s message that made liberal individualism possible. According to Siedentop, Paul’s

understanding of the meaning of Jesus’ death and resurrection introduced to the world a new picture of reality. It provided an ontological foundation for “the individual,” through the promise that humans have access to the deepest reality as individuals rather than merely as members of a group.[16]

Starting with the writings of Paul in an account of “the invention of the individual” may seem somewhat unpromising, because Paul’s writings seem to suggest not the recognition of the individual as a unique moral being, but the submergence of the individual in a collective identity through her or his incorporation into the greater body of the Church: “For just as the body is one and has many members, and all the members of the body, though many, are one body, so it is with Christ” (1 Corinthians 12, Revised Standard Version).[17] Moreover, in his letter to the Romans, Paul instructs them that all political authority is vested with the authority of God: “Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment” (Romans 13, Revised Standard Version). (Learned scholars have pored over those texts and concluded that they can indeed be reconciled with liberal individualism, but the wording of Paul’s letters suggests that substantial interpretive apparatus is required to do so.)

The emergence of liberal individualism cannot be merely the drawing out of the implications of texts.

Siedentop does not deal with those issues, but instead provides a not very clear account of how faith undermined rationality, which—surprisingly—he understands, not as a universal characteristic (recall Innocent IV’s comment about how “these things were made not only for the faithful but for every rational creature as has been said”) but instead with aristocracy, moral and legal inequality, and privilege! According to Siedentop, in the ancient world and for very long thereafter, “Reason or rationality—logos, the power of words—became closely identified with the public sphere, with speaking in the assembly and with the political role of a superior class. Reason became the attribute of a class that commanded. At times reason was almost categorically fused with social superiority.” He invokes throughout the book an alleged “ancient association of rationality with inequality.”[18] It is a very perplexing account and reverses the usual understanding of the relationships.

But even without going into the subtleties of theology, the proper interpretation of Paul’s views on the church as the body of Christ, the presumptive legitimacy of established political powers, or whether reason should be understood to be egalitarian or hierarchical, there is a gaping and obvious hole in Siedentop’s historical account: Paul’s letters are also accepted as part of the Bible by Orthodox Christians, among whom liberal individualism did not emerge and flourish as it did in Latin (“Western”) Christianity. Yet Siedentop, who puts emphasis squarely on the words of Paul, never bothers to consider why the same texts in other contexts did not produce the same outcome. Siedentop quite unfairly tars any objections to his thesis as mere “anti-clericalism” and insists that “texts are facts. And the texts remain.”[19] Indeed, for Siedentop, it’s all a matter of ideas unfolding and revealing their implications:

Centuries would be required for the implications of Christian moral beliefs to be drawn out and clarified—and even more time would pass before long-established social practices or institutions were reshaped by these implications.[20]

Why were “the implications” of the same texts “drawn out and clarified” in some contexts and not in others? Siedentop seems oblivious to the problem. (Throughout the book Siedentop also refers to “Christian moral intuitions,” a term which is far more vague than the implications he thinks he has discovered in the writings of Paul. He even asserts that the Gregorian Reformation and the freedom of the Church, which was accomplished in Roman Christianity but not in Orthodox Christianity, was a case of Pope Gregory VII “drawing out the deepest moral intuitions of the church.”[21]) One might ask why it took thousands of years for the implications that allegedly led to toleration to be made explicit.[22] Further, the emergence of liberal individualism cannot be merely the drawing out of the implications of texts or even intuitions when the same texts (and presumably the same intuitions) did not seem to have the same implications elsewhere. Rather, different ideas became dominant for a long time in countries in which Orthodox traditions were the norm.[23] When liberal individualism reached those countries it was more often adapted from ideas that had germinated in Europe. Siedentop’s story of the “texts” of Paul’s Epistles (or the rather vaguer “Christian intuitions”) grounding liberal individualism fails utterly to account for its emergence on this account alone: Paul’s letters are not only considered part of the Christian Bible among Latin (or Western) Christians, but among other Christian traditions, as well, including the Coptic and Orthodox Churches, yet the ideas and intuitions that Siedentop claims were implicated or intuitable did not result in liberal implications or intuitions being drawn from them in those other traditions that also embraced Paul’s Epistles.

To his idiosyncratic theological and historical accounts Siedentop tacks on a controversial and untenable philosophical one, namely, that the philosophical tradition of “nominalism” (i.e., the idea that what exists are individuals, rather than timeless essences and that universals are mere names) of the great European medieval thinkers Peter Abelard and William of Ockham was another necessary foundation for individualism. Nominalists are held to believe that what exists is the individual entity “Larry,” and not the essence “man.” If “essences” do not exist, but only a multitude of individuals (Moe, Larry, and Curly, for examples) do, then—voilà!—individualism. Ockham was both a nominalist and a pioneer in the development of modern theories of individual rights; he was also a “voluntarist” in theology, meaning that he explained God’s creation of the world and its laws by recourse to God’s will, rather than to God’s timeless essence or intellect. The problem with Siedentop’s account is that Ockham’s ideas on individual rights neither rest on nor invoke either his nominalism or his voluntarism, as Brian Tierney (ironically, Siedentop’s main source on Ockham) makes very clear: “Ockham is presented in my [Tierney’s] work as an important figure in the development of natural rights theories; but I argue that his characteristic teachings were not derived from his nominalist and voluntarist philosophy, but rather from a rationalist ethic applied to a body of juristic doctrine available to him in the canon law collections that he knew well and cited frequently.”[24] As Tierney and other scholars have demonstrated, parallel theories of individual rights were being developed by thinkers who shared neither Ockham’s nominalism in philosophy nor his voluntarism in theology. Siedentop cites Tierney as a source, but seems not to have followed, or perhaps even read, Tierney’s argument.[25]

Liberal individualism is not an exclusive property of European Christians.

None of that is to suggest that either Christianity or nominalism were unimportant in the history of thought (which would be absurd), nor to denigrate any particular interpretation of nominalist philosophy, of theological metaphysics, or of the ideas of Paul, but merely to point out that Siedentop’s attempt to establish his curious interpretation of Paul and his claims about nominalism as necessary and sufficient conditions for the emergence of liberal individualism fails.[26]

Why is all of that important? For three reasons:

A) Because respect for the universally valid rights of each and every unique individual is compatible with a wide array of philosophies, religions, and cultures and the limitation of liberalism to only one cultural context is incompatible both with the evidence and with the universal claims of liberalism itself;

B) Because Siedentop’s account ignores or downplays important institutional innovations that were significant conditions for the development and triumph of individual liberty and because those institutional innovations may be necessary for the maintenance of liberty; the innovations of greatest concern include constitutional limits on government power, checks and balances among competing powers, freedom of trade and freedom of exit, respect for property, and accountability of authorities to the law and to their publics;

C) Because Siedentop implies that Christianity, or at least his understanding of it, is a necessary element in the defense of civil liberty and, moreover, that “Islam” (rather than intolerant political Islamists) is “challenging” Europe, which he identifies with liberty. Siedentop rather excitedly claims that “Europe is now faced with the challenge of Islam” and asks “Will Europeans come to understand better the moral logic that joins Christianity with civil liberty?”[27] thus suggesting that defending civil liberty requires the embrace of that which is joined to it by “moral logic,” i.e., a particular interpretation of a particular religion. That unjustified claim is in conflict with liberalism itself.

Siedentop’s puzzling reconstruction of liberal individualism’s origins may in fact be quite harmful to the very liberalism he seems eager to defend, for it suggests a closed club of cultures that are open to liberalism; others need not apply. Liberal individualism is not an exclusive property of European Christians; nor is it an inevitable consequence of “Christian intuitions,” nor a necessary implication of an eccentric interpretation of Paul’s writings, nor an outcome of European philosophical disputations over realism and nominalism. It is a philosophy open to people of all faiths or none who embrace the moral principles of respect for the rights of others.

Origins of Liberal Individualism

The historian Walter Ullman presented a strong rebuttal to Siedentop’s thesis, long before Siedentop formulated it. Ullman traced the transformation of the passive “subject” to the active rights-bearing and rights-asserting citizen of liberal society and did not find it in any implications of the texts of Paul: “Most, if not all, of the basic principles relative to the individual as a subject to higher authority are contained in the Bible, notably in the Pauline letters.”[28] For example, the transition from subject to citizen, from obeying laws that were imposed on one to following rules in which one had some role, is not an obvious implication of Paul’s letter to the Romans, which maintains that all earthly authority is ordained by God. In Paul’s account, the power of kings comes, not from the consent of the people, but from God:

The king received his powers as a concession from divinity—another Pauline principle was concretely applied: there is no power but of God—and what he had received through the grace of God in the shape of public power, he could concede to his subjects. The individuals as subjects had no rights in the public field. Whatever they had, they had as a matter of royal grace, of royal concession.[29]

Ullman focused attention, not on the theories of government that were shared by rather small numbers of upper-class people, but on the actual practices and functioning institutional arrangements by which most people ordered their lives. After the collapse of the Roman imperium, European political orders splintered and military defense had to be reorganized to fend off raids and invasions. Following the withdrawal of the Roman legions (or their replacement by Germanic mercenaries) and the greater vulnerability to invasion from the North (the Norsemen), the South (the “Saracens”), and the East (the Avars and Magyars), the old order could not be maintained. Military decentralization was followed by political and legal decentralization, as well. [30]

The institutions that emerged to solve problems of social coordination (including defense against aggression) helped to set the stage for liberal individualism and modernity.

If one wishes to understand why and how it came about that from the late thirteenth century the individual gradually emerged as a full-fledged citizen, it would seem profitable to look at two rather practical facets of medieval society: on the one hand, the manner in which those far away from the gaze of official governments conducted their own affairs and, on the other hand, the feudal form of government which was practiced all over Europe.[31]

Both of the facets of medieval society that Ullman identified were matters of practice and trial-and-error, rather than theoretical speculation. Merely intellectual history without attention to the emergence of practice is unable to explain what happened, for without attention to the actual legal practices of the people, “it would seem well-nigh impossible to explain why there was the somewhat radical change toward the end of the thirteenth century, a change that in more than one respect ushered in the period which we like to call modern.”[32] The fracturing of kingly power through the system of political contract that came to be known as “feudalism,”[33] and the emergence of a multitude of legal systems with competing and overlapping jurisdictions[34] all contributed to an ever-wider space for individual action and to greater restrictions on the powers of rulers.

The growth of cities was especially important; it was from the cities that the key institutions of “civil society” were to emerge. The legal order of the cities, or “communes,” was focused on peace and freedom. As Henri Pirenne described the citizens (“burghers”),

The burghers were essentially a group of homines pacis—men of peace. The peace of the city (pax villae) was at the same time the law of the city (lex villae).[35]

The city was a place of peace (relative, at least, to the countryside outside its walls) and the citizens enjoyed liberty, at least relative to the peasants who resided outside their walls: “just as agrarian civilization had made of the peasant a man whose normal state was servitude, trade made of the merchant a man whose normal condition was liberty.”[36] If you could get into a city and stay for a year and a day, you became a free person: “City Air Makes One Free” was a distinguishing feature of the cities of Europe.[37]

As important as Magna Carta is, it was not the only such charter of liberties.

The replacement of war and subjugation with peaceful commerce and contractual relationships corresponded to, indeed, demanded, increases in rational self-control, notably the ability to ignore or control harmful impulses, especially aggression, and to delay gratification. As Benjamin Constant noted, “A man who was always the stronger would never conceive the idea of commerce. It is experience, by proving to him that war, that is the use of his strength against the strength of others, exposes him to a variety of obstacles and defeats, that leads him to resort to commerce, that is to a milder and surer means of engaging the interest of others to agree to what suits his own. War is all impulse, commerce, calculation.”[38] The gradual replacement of war by commerce went hand in hand with the replacement of impulse by calculation, zero-sum games by positive-sum games, short-term by long-term thinking, and subjection to power by personal responsibility and liberty.[39] The gradual replacement of violence and repression has been facilitated by commerce more than by philosophers.[40]

According to Siedentop, authority and legal order descended from above in accordance with theories set out in books, but the historical record suggests that the legal orders of modernity emerged from forms of association generated through practice and trial and error, in other words, from the bottom up.

[T]here were throughout the Middle Ages numerous associations, unions, fraternities, guilds, and communities which in one way or another considered the individual a full member. What these truly numberless associations exhibit is the urge of individuals to combine into larger groups: partly for reasons of self-protection, partly for reasons of mutual insurance, partly for reasons of pursuing sectional interests, these unions were to all intents and purposes communities, which provided for the individual the security which he would otherwise have lacked. . . . In the village potteries, smithies, tileries, quarries et cetera, working conditions were laid down by the village community itself. In other words, we have here a “system” at work which shows all the characteristic features of the ascending theme of government and law, according to which original power resided in the members of the community, in the individuals themselves.[41]

A major element in the decentralization of power (military, political, and legal) was the rivalry between the church and the empire and other political authorities, which set the stage for a competition that distinguished Western Europe from the other political systems of the Eurasian landmass in a way that religious texts did not (as both Latin and Orthodox churches accepted the Pauline Epistles that Siedentop considers so important). Harold Berman terms the change the “Papal Revolution” and it set in motion changes that are still playing out.[42] Notable among them was the formulation of the idea of the supremacy of law (the “rule of law”) and of what has come to be known as “constitutionalism.”

Magna Carta, which doesn’t merit a mention in Siedentop’s book, looms large in the history of nations deriving their political institutions from English law; it was itself strongly influenced by the Papal Revolution.[43] That raises a problem similar to that raised by Siedentop’s account. Focusing exclusively on Magna Carta reveals the danger of a different kind of essentialism, which asserts that “only the English” understand liberty, because Magna Carta, some assert, was unique.[44] But as important as Magna Carta is, it was not the only such charter of liberties; it was an important part of a movement that was European in character, and not merely English. One could mention its many precedents, including Henry I’s “Charter of Liberties” issued in 1100, which made various concessions to the English barons and knights;[45] the Assizes of Ariano, promulgated in 1140 by King Roger II of Sicily;[46] and shortly after 1215 the Golden Bull of Hungary of 1222, signed by King András, which instituted a long period of constitutionalism in central Europe;[47] the Constitutions of Melfi issued by Emperor Frederick II in 1231;[48] and numerous others. Even the important terms regarding “the law of the land” and “trial by one’s peers,” which later reappeared in the US Constitution, predated Magna Carta, for example, in a constitution agreed to by Emperor Conrad II in 1037, which declared that no vassal should be deprived of an imperial or ecclesiastical fief “except in accordance with the law of our predecessors and the judgment of his peers.”[49]

Liberty is an achievement, not an inevitable condition or the logically necessary implication of some one big idea.

It was not inevitable that liberal individualism would emerge among European Christians (and Jews), nor were the ideas of Paul (or “Christian intuitions”) sufficient to germinate liberal individualism among the countries in which Orthodoxy held sway. To identify the processes that gave rise to liberal individualism entails identifying those that could have produced it elsewhere, as well. We should remember that ideas do not have to be created or germinated independently by each person or group for them to be shared commonly; having once been produced, ideas may be communicated in poems, songs, and books, through art and science, in blog posts and Tweets, and they may be understood, embraced, or followed by people whose ancestors did not themselves produce the ideas. In the case of the moral, legal, and political principles of liberalism, that’s especially obvious; refugees from tyrannies often embrace the norms of the freer societies in which they find refuge, including the expectation of respect for their rights and willingness to respect the rights of others, even if their societies of origin had had little tradition of such respect.

Conclusion

Liberty is an achievement, not an inevitable condition or the logically necessary implication of some one big idea. It was through particular kinds of associations that people came to enjoy, and later to theorize, liberty. As Antony Black put it of the guilds and communes of Europe,

The crucial point about both guilds and communes was that here individuation and association went hand in hand. One achieved liberty by belonging to this kind of group. Citizens, merchants, and artisans pursued their own individual goals by banding together under oath.[50]

What emerged were societies of greater individual liberty, but to understand such societies one must realize that a group is not a big person like the persons who constitute it, or even a great body of which the “members” are precisely like the “members”—the hands, feet, kidneys, head—of a human body. Groups, associations, churches, clubs, societies, and governments are made up of individuals and their complex and multifarious relationships. There is no individual who is completely unrelated to any others who joins similarly unrelated individuals to form human society, but within the context of their inherited relationships humans do, in fact, form myriad associations, connections, and relationships. The more complex the social order, the greater the need for its members to exercise self-control.[51]

The right to liberty is not limited only to inheritors of one or another tribe or culture, or to practitioners of only one or another religion, or to speakers of one or another language. It is the right of all human beings as such, regardless of religion, color, language, nationality, or other features. It offers the choice to live one’s life as one chooses in association with others in communities one chooses. Some exercise their self-control to live in highly structured voluntary communities (monasteries and convents are the obvious examples), others in fluid urban neighborhoods; some like to live in stable and rooted communities and others prefer to roam the world and experience many ways of life. Free and self-controlling persons make such choices for themselves. They are not dictated to by others. The self-controlling individual is neither atomistic nor anomic, but creates or accepts relations based on choice and voluntary agreement.

Those who pursue happiness may not always achieve it, but when someone does, it is his or her achievement.

The legal historian Sir Henry Sumner Maine described well “the movement of the progressive societies” as “a movement from Status to Contract.”[52] Creating contracts, rather than merely acquiescing in what is assigned to one by birth, means acquiring the habit of self-control. The philosopher Robert Nozick called it a “framework for utopia,” meaning not that one perfect and blissful utopia, but a framework of choices from within which people may choose their own preferred arrangements.[53] It’s not perfection, but it is far better for the vast majority of human beings than being subjected to controls imposed on them by others who are generally no wiser, no smarter, no more moral, and no better informed about the life situations of those they control.

Self-controlling individuals pursue happiness by using their own knowledge to achieve their own ends. Those who pursue happiness may not always achieve it, but when someone does, it is his or her achievement, which is something that slaves, serfs, subordinates, subjects, and those subjected to the coercive will of others cannot say.

Once learned and embraced, principles and ideas can also be forgotten; their transmission may require certain ongoing experiences. Habits and practices generally require repetition for them to be sustained and transmitted to new generations. At least some of the conditions that made liberalism possible may be necessary for its maintenance, as well, such as free exit from legal and political orders and competition among political and legal authorities to attract taxpayers and capital. (Thus, federalism, when combined with freedom of movement for person and goods, recommends itself to classical liberals as a political structure that tends to sustain liberty.) Much as some sciences require laboratory experiments to be learned, some moral, legal, and political principles require continuous manifestations of the institutional conditions under which they emerged for their maintenance.

***

Individualism and limited government have their particular intertwined histories, but as with other concepts and practices, history does not preclude universal application. Those who would reserve them for only some have failed to understand them.


[1] “Reciprocal cooperation can be stable with a larger range of individuals if discrimination can cover a wide variety of others with less reliance on supplementary cues such as location. In humans this ability is well developed, and is largely based on the recognition of faces. The extent to which this function has become specialized is revealed by a brain disorder called prosopagnosia. A normal person can name someone from facial features alone, even if the features have changed substantially over the years. People with prosopagnosia are not able to make this association, but have few other neurological symptoms other than a loss of some part of the visual field. The lesions responsible for the disorder occur in an identifiable part of the brain: the underside of both occipital lobes, extending forward to the inner surface of the temporal lobes. This localization of cause, and specificity of effect, indicates that the recognition of individual faces has been an important enough task for a significant portion of the brain’s resources to be devoted to it. Just as the ability to recognize the other player is invaluable in extending the range of stable cooperation, the ability to monitor cues for the likelihood of continued interaction is helpful as an indication of when reciprocal cooperation is or is not stable.” Robert Axelrod, The Evolution of Cooperation (rev. ed., New York: Basic Books, 2006), 102–103.

[2] The classic account of the formation of feudal society as a response to invasion can be found in Marc Bloch, Feudal Society (1940; New York: Routledge, 2014), 5–61.

[3] See the chapter on “The Origin of the Western Legal Tradition in the Papal Revolution,” in Harold Berman, Law and Revolution: the Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983), 85–119.

[4] See Eric Jones, The European Miracle: Environments, Economies, and Geopolitics in the History of Europe and Asia (Cambridge: Cambridge University Press, 2003); Nathan Rosenberg and L. E. Birdzell Jr., How the West Grew Rich: The Economic Transformation of the Industrial World (New York: Basic Books, 1987); Robert S. Lopez, The Commercial Revolution of the Middle Ages, 950–1350 (Cambridge: Cambridge University Press, 1976).

[5] Of special significance was the rediscovery of the codification of the Roman law that was supervised by the lawyer Tribonian (and sponsored by the Emperor Justinian; the texts are thus popularly known as the Digest of Justinian and the Institutes of Justinian) and which provided a sophisticated legal framework for an emerging commercial society. Also important were the copying and circulation of texts by Aristotle, Cicero (notably his On Duties), and other thinkers from the ancient world.

[6] The growth and development of libertarian thought has been told many times; for a short introduction, including citations for further study, see my “The History and Structure of Libertarian Thought” in Why Liberty, ed. Tom G. Palmer (Ottawa, Illinois: Jameson Books, 2013), available for downloading in PDF form at http://studentsforliberty.org/wp-content/uploads/2013/07/Why-Liberty-Final-Typeset-with-Cover.pdf.

[7] The scholar Lin Yutang, writing of twentieth-century reinterpretation of the policies of Wang Anshih from the eleventh century, refers to “Western ideas of collectivism.” See Lin Yutang, The Gay Genius: The Life and Times of Su Tungpo (New York: The John Day Company, 1947), 96.

[8] Consider the lament of Helen in Euripides’s play Helen: “For the deity hates violence, and biddeth all men get lawful gains without plundering others. Wealth unjustly gotten, though it bring some power, is to be eschewed. The breath of heaven and the earth are man’s common heritage, wherein to store his home, without taking the goods of others, or wresting them away by force.” Euripides (2012-04-30). Helen (Kindle Locations 809–811). Neeland Media LLC. Kindle Edition.

[9] S. D. Goitein explores the rich tradition of individualistic depictions in Arabic literature in “Individualism and Conformity in Classical Islam,” in Individualism and Conformity in Classical Islam, ed. Amin Banani and Speros Vryonis Jr., 3–17. Liberalism in the Islamic tradition is discussed in detail, from a libertarian perspective, in Mustafa Akyol, Islam Without Extremes: A Muslim Case for Liberty (New York: W. W. North & Co., 2011), Antony Black, The History of Islamic Political Thought: From the Prophet to the Present (2nd ed.; Edinburgh: Edinburgh University Press, 2011), discusses liberal ideals in the Ottoman Empire (281–299); especially interesting is his treatment of Khayr Al-Din Al-Tunisi, reformer and author of The Surest Path to Know the Conditions of the State (290–293). Khayr Al-Din Al-Tunisi explained the prosperity of Europe by their policies, and wrote that the rise of Europe “is solely because they have implemented laws providing the basic requirements of liberty (as already explained) for preserving the rights of the individual in his person, honor and wealth, and of consensus on how to foster the public interest and ward off corruption by giving careful consideration to the prevailing customs, circumstances and the times with various rulings of the type our own shari’a makes allowances for.” It was “For the sake of these and like advantages, kings and ministers endure the original bitterness of being restricted in order to enjoy the authority and civilization which will follow.” Kahry al-Din al-Tunisi, The Surest Path: The Political Treatise of a Nineteenth Century Muslim Statesman, Leon Carl Brown, trans. (Cambridge, Mass.: Harvard University Press, 1967), 175 See also the discussion among Muslim philosophers of the question of whether the human soul is one for all of humanity or individuated for all humans in Lenn E. Goodman, Avicenna, updated edition (Cornell: Cornell University Press, 2006), 127–128. Ibn Rushd (Averroes) argued that we all share in the same soul, whereas Avicenna (Ibn Sīnā) maintained “that the intellectual soul that is subject to immortality is thought or consciousness, and thought must be focused and individuated: focused objectively, individuated subjectively” (Goodman, 128). The debate also took place among Christian thinkers, pitting the “Latin Averroists,” notably Siger of Brabant, against St. Thomas Aquinas over whether there is one “intellective soul” for all of mankind. The Latin Averroists argued that for two individuals to know the same thing, they have to have the same form impressed by the agent intellect into the same material (or possible) intellect; to know the same form, they must share the same material intellect. (See Siger of Brabant, “On the Intellective Soul,” in Medieval Philosophy: From St. Augustine to Nicholas of Cusa, ed. John F. Wippel and Allan B. Wolter, O.F.M. [London: Collier Macmillan Publishers, 1969], 358–65.) The implications for personal responsibility were clear: if you and I have the same soul and you lead a good life and achieve salvation, then I will, too, regardless of what sins I commit. St. Thomas argued that the idea of one soul for all of mankind, a deep form of metaphysical collectivism, was absurd on its face: “If . . . the intellect does not belong to this man in such a way that it is truly one with him, but is united to him only through phantasms or as a mover, the will will not be in this man, but in the separate intellect. And so this man will not be the master of his act, nor will any act of his be praiseworthy or blameworthy. That is to destroy the principles of moral philosophy. Since this is absurd and contrary to human life (for it would not be necessary to take counsel or to make laws), it follows that the intellect is united to us in such a way that it and we constitute what is truly one being.” Thomas Aquinas, On the Unity of the Intellect Against the Averroists (Milwaukee: Marquette University Press, 1968), chap. II, par. 82, p. 57. According to Thomas, the impressed intelligible species is not literally the very form of the thing itself raised to a higher level of intelligibility but rather that by which we know the thing: “It is . . . one thing which is understood both by me and by you. But it is understood by me in one way and by you in another, that is, by another intelligible species. And my understanding is one thing, and yours, another; and my intellect is one thing, and yours another.” Thomas Aquinas, On the Unity of the Intellect Against the Averroists, chap. V, par. 112, p. 70. The issue is canvassed in Herbert Davidson, Alfarabi, Avicenna, and Averroes on Intellect (Oxford: Oxford University Press, 1994).

[10] Classical Chinese writers such as Lao Tzu, Confucius, Mencius, and Su Tung-p’o are sources for much contemporary Chinese libertarian thought. For a treatment of classical themes of liberty and responsibility in a modern context, see Liu Junning, Tao of Liberty: Dialogue in Heaven between Laozi and Kongzi (Potsdam: Friedrich Naumann Foundation, 2014), available for download in PDF at http://www.fnfasia.org/wp-content/uploads/2015/03/Tao-of-Liberty-Dialogue-in-Heaven-between-Laozi-and-Kongzi-e-book.pdf. See also the discussions of “statism” and “non-action” (wu wei) found throughout Kung-chuan Hsiao, A History of Chinese Political Thought, Vol. I: From the Beginning to the Sixth Century A.D. (Princeton: Princeton University Press, 1979), F. W. Mote, trans. For a sympathetic treatment of Su Tung-p’o from a classical liberal perspective, see Lin Yutang, The Gay Genius: The Life and Times of Su Tungpo.

[11] The Mahabharata and other key texts of Indian civilization are suffused with important concepts, such as dharma (virtue, “doing the right thing”) and ahimsa (non-violence). Gurcharan Das’s On the Difficulty of Being Good: On the Subtle Art of Dharma (Oxford: Oxford University Press, 2009) presents ethical problems, with great stress on responsibility, through the stories and lessons of the Mahabharata and Das’s own experience in business. See also his “The Dharma of Capitalism,” preface to Indian edition of Tom G. Palmer, ed., The Morality of Capitalism (New Delhi: Centre for Civil Society, 2011). The Mahabharata story of the lizard who, when about to be crushed by Prince Ruru, turns to him and says “ahimsa paramo dharma”—“nonviolence is the highest dharma”—thus convincing the Prince not to harm him offers a very memorable image by which to visualize libertarian nonviolence.

[12] Colin Morris, The Discovery of the Individual, 1050–1200 (New York: Harper & Row, 1972), 7

[13] “The discovery of the individual was one of the most important cultural developments in the years between 1050 and 1200. It was not confined to any one group of thinkers. Its central features may be found in many different circles: a concern with self-discovery; an interest in the relations between people, and in the role of the individual within society; an assessment of people by their inner intentions rather than by their external acts.” Morris, The Discovery of the Individual, 1050–1200, 158.

[14] See John F. Benson, “Consciousness of Self and Perceptions of Individuality,” in Robert L. Benson and Giles Contable, with Carol D. Lanham, eds., Renaissance and Renewal in the Twelfth Century (Cambridge, Mass.: Harvard University Press, 1982), 263–295.

[15] Innocent IV, “On Decretales, 3.34.8, Quod Super, Commentaria (c. 1250), fol. 429-30,” in The Crisis of Church and State, 1050–1300, ed. Brian Tierney (Toronto: University of Toronto Press, 1988), 153. The primary passage from the book of Matthew cited by Innocent deserves greater attention: “You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’ But I say to you, Love your enemies and pray for those who persecute you, so that you may be sons of your Father who is in heaven; for he makes his sun rise on the evil and on the good, and sends rain on the just and on the unjust. For if you love those who love you, what reward have you? Do not even the tax collectors do the same?” (Matthew 5:43–46, Revised Standard Version). The book of Matthew also contains a statement of a principle found in other cultures and traditions, as well: the Golden Rule. “So whatever you wish that men would do to you, do so to them; for this is the law and the prophets” (Matthew 7:12, Revised Standard Version).

[16] Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Cambridge, Mass.: Harvard University Press, 2014), 63. For a radically different evaluation of Paul’s writings and their impact, see Charles Freeman, The Closing of the Western Mind: The Rise of Faith and the Fall of Reason (New York: Vintage, 2005), esp. 107–127.

[17] Colin Morris notes, “It is at once obvious that the Western view of the value of the individual owes a great deal to Christianity. A sense of individual identity and value is implicit in belief in a God who has called each man by name, who has sought him out as a shepherd seeks his lost sheep. Self-awareness and a serious concern with inner character is encouraged by the conviction that the believer must lay himself open to God, and be remade by the Holy Spirit . . . Ultimately a Christian origin can be found for many of the elements in the European concept of the self.” The Discovery of the Individual, 1050&ndash 1200, 10–11. That passage is followed immediately by “Yet, if we turn to the Fathers and the writers of the New Testament, we find that their concept of personality qualified its stress upon the individual by the inclusion of some very important corporate elements. Jesus Christ was regarded not as another human being, separate from (although better and greater than) the believer. Saint Paul expresses his own experience in a quite different way: ‘I have been crucified with Christ; it is no longer I who live, but Christ who lives in me; and the life I now live in the flesh I live by faith in the Son of God, who loved me and gave himself for me’ (Gal. 2:20). The boundaries have been broken between Christ and Paul. It is not the relationship of two personalities, but the indwelling of one in the other. Since the believer is identified with Christ, he is therefore identified also with all other believers: ‘There is neither Jew nor Greek, there is neither slave nor free, there is neither male nor female; for you are all one in Christ Jesus’ (Gal. 3:28). The way was thus open for the community-language which is so characteristic of the New Testament. The Church is the body of Christ, each member a limb in it. All believers share in the one Spirit, all are stones in the living Temple. This element in early Christian thinking severely modified the strong individualism which we have also seen to be present, but it has received relatively little attention in the Western Church” (11–12). Morris suggests that an almost completely Christian social order, as medieval Europe was, would not stress the corporate element as much as the early church, which was made of up believers situated in a wider order in which they were often subject to terrible and cruel persecution. In any case, Paul’s understanding of the relationship of the believers to each other was analogized with the parts of a single human body.

[18] Siedentop, Inventing the Individual: The Origins of Western Liberalism, 35, 245. Reason is usually considered a universal feature of human beings, but Siedentop associates it instead exclusively with hierarchy, privilege, and inequality. In contrast, he associates experiences of faith, which are not so obviously universal, with equality. For support he turns to an insightful inquiry into the history of Greek and Roman institutions that was published in 1864, The Ancient City, by Numa Denis Fustel de Coulanges (New York: Doubleday Anchor, 1956). Fustel de Coulanges, who also wrote a refutation of the doctrines of primeval German communism on which Karl Marx had drawn (The Origin of Property in Land, trans. Margaret Ashley [London: Swan Sonnenschein & Co., 1891]) and a six-volume History of the Political Institutions of Old France, uncovered the key role of the family in the institutions of the ancient world, and specifically of the family religion, a form of ancestor worship. Siedentop seems, however, to read far more into Fustel de Coulanges than is warranted, even assuming that the role of family religion persisted well into the Christian era. (For a sympathetic criticism of The Ancient City, see Alfred Zimmerman, The Greek Commonwealth: Politics and Economics in Fifth Century Athens (New York: The Modern Library, 1956): “A full account of this patriarchal system is given in Fustel de Coulanges’s La Cité Antique. This well-known book was written in 1864, but the first half of it is still the best general account, not of the City-State in itself but of the lesser loyalties out of which it grew. It may be worthwhile briefly suggesting some of the defects which time has revealed. (1) It is, like many French books, too tidy and logical, it simplifies the old world and its beliefs too much. (2) It tries to deal with Greece and Rome at the same time—an impossible design which survives from the days when people believed in a parent Aryan civilization; hence its generalizations sometimes fall between two stools and fit neither. . . . (3) It greatly exaggerates the influence of the Conservative as opposed to the Radical elements in Greek life. So far as Athens is concerned its story admittedly ends with Cleisthenes (see p. 337, ed. 1906). It is, for instance, a gross exaggeration, or misuse of words, to say, as on p. 269, that ancient man never possessed liberty or even “the idea of it,” 75.

[19] Siedentop, Inventing the Individual: The Origins of Western Liberalism, 77.

[20] Siedentop, Inventing the Individual: The Origins of Western Liberalism, 114.

[21] Siedentop, Inventing the Individual: The Origins of Western Liberalism, 206.

[22] The long history of the persecution of heretics and the emergence of ideas of toleration among European Christians is recounted very ably by Perez Zagorin in his How the Idea of Religious Toleration Came to the West (Princeton: Princeton University Press, 2003). Zagorin rebuts those who claim that it was a decline in religious attachment that accounted for the rise of toleration and concludes that “In the battles over religious toleration that were so bitterly and widely waged in the sixteenth and seventeenth centuries, the idea of toleration was itself very largely inspired by religious values and was fundamentally religious in character” (289). The historical record, however, provides little or no support for Siedentop’s claim that it was about drawing out intuitions from the writings of Paul.

[23] Francis Dvornik provided a careful description of Byzantine theories of church-state relations and their impact on later Eastern European politics in “Byzantine Political Ideas in Kievan Russia,” Dumbarton Oaks Papers, nos. 9 and 10 (Cambridge, Mass.: Harvard University Press, 1956), 73–121 and The Slavs in European History and Civilization (New Brunswick, New Jersey: Rutgers University Press, 1962), 369–76. The Byzantine tradition stressed subordination to power. The hard-won independence of the church from the state, which characterized Latin Christianity, but which receives little attention from Siedentop, reinforced submission to rulers, as the Emperor (later Tsar) controlled the church. As one influential document described the proper attitude recommended by religion among Orthodox believers, “Incline thy head to everybody superior to thee. … Fear the prince with all thy strength. … Learn from him how to fear God. … He who does not fear the earthy lord, how will he fear Him whom he does not see?” Cited in “Byzantine Political Ideas in Kievan Russia,” 91–92. It is understandable how such a tradition would not be very favorable to liberal individualism; in that context, Paul’s writings would be invoked as powerful support for absolutism, rather than for liberal constitutionalism. Christian moral intuitions in Russia seem not to have generated what Siedentop expects of them. The historian Richard Pipes notes, “There is no evidence in medieval Russia of mutual obligations binding prince and his servitor, and, therefore, also nothing resembling legal and moral ‘rights’ of subjects, and little need for law and courts.” Richard Pipes, Russia Under the Old Regime, 2nd ed. (London: Penguin Books, 1995), 51.

[24] Brian Tierney, The Idea of Natural Rights (Atlanta: Scholars Press, 1997), 8. Siedentop also misconstrues the significance of nominalism and even seems to confuse Plato’s metaphysics with Aristotle’s. Ockham was advancing an understanding of the nature of science, for science concerns the establishment of the truth or falsity of propositions, not intuitions of universal forms or essences. According to Ockham, “[W]e must take note that natural science, just as any other science, is about universals and concepts, not about things. The proof for this is as follows: if it were about things, then it would be about universal or particular things. It is not about universal things, for there are no such things, as Aristotle proves in Book VII of the Metaphysics. Nor is it about singular things, as is also shown in the Metaphysics, Book VII, and frequently demonstrated elsewhere. Therefore, it is about concepts.” Ockham on Aristotle’s Physics: A Translation of Ockham’s Brevis Summa Libri Physicorum, trans. Julian Davies, OFM (St. Bonaventure, New York: The Franciscan Institute, 1989), 2. As Armand Maurer put it, “As for sciences of reality, Aristotle showed that they have for their primary objects universals and not individuals, but the universals in question are terms and propositions, not common realities. Indeed, according to Ockham, ‘every science, whether it be a science of reality or rational science [i.e., logic], is concerned only with propositions as with what is known, for propositions alone are known.’ He is not denying that we know individuals; they are the first objects of the intuitive cognition of the senses and intellect. Neither is he denying that science treats of individuals. The point he is making is that universal propositions are the immediate and direct object of scientific knowledge. Science deals with individuals insofar as the terms of propositions stand for them. In a science of reality (scientia realis) the terms of its propositions have personal supposition; that is, they stand for the things they signify, namely, individual realities outside the mind.” Armand A. Maurer, “William of Ockham,” in Jorge J. E. Gracia, ed., Individuation in Scholasticism: The Later Middle Ages and the Counter-Reformation, 1150&ndash1650 (Albany: State University of New York Press, 1994), 373–396, 376.

[25] Annabel S. Brett also provides convincing textual grounds for dismissing the claim that Ockham’s nominalism played a role in his development of the idea of individual rights. See Annabel S. Brett, Liberty, Right, and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997), 49–68.

[26] John F. Benson warns, when “evaluating the role of religion” against “the unwarranted assumption that Christian religion was uniquely capable of fostering the development of consciousness and increased psychological awareness. If by some chance the Jewish Khazars or the Moslem Moors instead of the Catholic Franks had created an empire in early medieval Europe, interest in the examination of the subjective self might have recovered at the same rate, or perhaps even faster. This conclusion is based on the existence of a form of ‘control group,’ the small Jewish communities which shared much of the same cultural, economic, and even political environment as their Christian neighbors, though they differed both through the effects of exile, hostility, and persecution and in a greater devotion to learning, which one of Abelard’s students observed with envy.” John F. Benson, “Consciousness of Self and Perceptions of Individuality,” 291.

[27] Siedentop, Inventing the Individual, 362. Siedentop reveals his rather superficial understanding of contemporary religion when he casually remarks that in the United States “the rapid growth of Christian fundamentalism” is “in part, no doubt, a reaction to the threat of radical Islam.” “Christian fundamentalism” in America has rather older roots than the Islamist attacks of September 11, 2011, and there is little reason to believe that any of that was driven by “the threat of radical Islam,” nor that the threat of violence from violent religious zealots is having significant impact on the religiosity of Americans, much less behind Christian fundamentalism. Like so much in his book, it is a mere assertion.

[28] Walter Ullman, The Individual and Society in the Middle Ages (Baltimore: The Johns Hopkins Press, 1966), 10.

[29] Ullman, The Individual and Society in the Middle Ages, 18–19. As Ullman continues, “It was Paul who used the human body as a model in order to demonstrate the various functions within the unum corpus Christi. This organological or anthropomorphic thesis meant that each part of the human body functioned for the sake of the whole body, not for its own sake. If we translate this into terms of the corporate public body, we are here presented with the theory that the individual did not exist for his own sake, but for the sake of the whole society. This organological thesis was to lead in time to the full-fledged integration theory of the corporate body politic, in which the individual is wholly submerged in society for the sake of the well-being of society itself. This thesis also led without undue effort to the allegory of the head’s directing the other parts of the human body, thus metaphorically expressing the superior function of the caput—be this king or pope—and the inferior position of the subject individual,” 42–43.

[30] There is a Chinese proverb, “The mountain is high and the emperor is far away” [山高皇帝遠], which expresses the basic idea, namely, that distance from the imperial power means that local affairs are run by local people.

[31] Ullman, The Individual and Society in the Middle Ages, 54.

[32] Ullman, The Individual and Society in the Middle Ages, 54.

[33] See Marc Bloch, “European Feudalism,” in Talcott Parsons, Edward Shils, Kaspar D. Naegle, and Jesse R. Pitts, eds., Theories of Society: Foundations of Modern Sociological Thought (New York: The Free Press, 1965), 385–392. Bloch focused on the centrality of reciprocal obligation and accountability, as embodied in Europe’s feudal history, as central to the emergence of modern political institutions: “The clearest legacy of feudalism to modern societies is the emphasis placed upon the notion of political contract. The reciprocity of obligations which united lord and vassal and caused with every grave dereliction by the superior the release of the inferior in the eyes of the law was transferred in the thirteenth century to the state. Practically everywhere, but with particular clearness in England and Aragon, the idea was expressed that the subject was bound to the king only so long as the latter remains a loyal protector. This sentiment counterbalanced the tradition of royal sanctity and finally triumphed over it,” 392. The importance of reciprocal duties is emphasized by Anthony Black: “There were rights and duties on both sides: the lord had rights and duties against the vassal, and the vassal had rights and duties against the lord. It is essential to bear in mind this quite simple legal relationship involving the two individuals, for the contractual nature of feudalism became in course of time the very substratum from which some highly pregnant themes grew. Feudalism operated by forging first strong individual ties which in themselves created, in course of time, equally strong social bonds.” Antony Black, Guilds and Civil Society in European Political Thought from the Twelfth Century to the Present (Ithaca, New York: Cornell University Press, 1984), 63. Sidney Painter claims that the relative independence of the feudal vassals, or nobles, set the model for the liberties to which the other elements of society aspired: “[T]he medieval nobleman enjoyed extremely extensive freedom to act as an individual. The feudal corporation to which he belonged imposed little restraint on him. The church could control him far less than it could other men. Even the state recognized him as especially privileged. Naturally the status of the noble was the envy of the other classes. Essentially the rights and liberties for which the middle and lower classes struggled throughout the seventeenth, eighteenth, and nineteenth centuries were those enjoyed by the nobles of the middle ages. Obviously the conception of individual freedom and the desire to possess it came from many sources and arose in many different legal environments, but the legal and political institutions which secured this freedom in western Europe and America were those forged by the feudal aristocracy. During the period when most men were closely controlled by corporate organizations the nobles retained and nurtured the concept of individual liberty.” Sidney Painter, “Individualism in the Middle Ages,” in Sidney Painter, Feudalism and Liberty: Articles and Addresses, ed. Fred A. Cazel Jr. (Baltimore: The Johns Hopkins University Press, 1961), 259.

[34] The most synoptic and thorough description of the complex legal systems that emerged in Europe and that improved each other through competition is found in Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983). According to Berman, “Perhaps the most distinctive characteristic of the Western legal tradition is the coexistence and competition within the same community of diverse jurisdictions and diverse legal systems. It is this plurality of jurisdictions and legal systems that makes the supremacy of law both necessary and possible. Legal pluralism originated in the differentiation of the ecclesiastical polity from secular polities. The church declared its freedom from secular control, its exclusive jurisdiction in some matters, and its concurrent jurisdiction in other matters. Laymen, though governed generally by secular law, were subject to ecclesiastical law, and to the jurisdiction of ecclesiastical courts, in matters of marriage and family relations, inheritance, spiritual crimes, contract relations where faith was pledged, and a number of other matters as well. Conversely, the clergy, though governed generally by canon law, were subject to secular law, and to the jurisdiction of secular courts, with respect to certain types of crimes, certain types of property disputes, and the like. Secular law itself was divided into various competing types, including royal law, feudal law, manorial law, urban law, and mercantile law. The same person might be subject to the ecclesiastical courts in one type of case, the king’s court in another, his lord’s court in a third, the manorial court in a fourth, a town court in a fifth, a merchants’ court in a sixth. The very complexity of a common legal order containing diverse legal systems contributed to legal sophistication. Which court has jurisdiction? Which law is applicable? How are legal differences to be reconciled? Behind the technical questions lay important political and economic considerations: church versus crown, crown versus town, town versus lord, lord versus merchant, and so on. Law was a way of resolving the political and economic conflicts. Yet law could also serve to exacerbate them. The pluralism of Western law, which has both reflected and reinforced the pluralism of Western political and economic life, has been, or once was, a source of development, or growth—legal growth as well as political and economic growth. It also has been, or once was, a source of freedom. A serf might run to the town court for protection against his master. A vassal might run to the king’s court for protection against his lord. A cleric might run to the ecclesiastical court for protection against the king,” 10.

[35] Henri Pirenne, Medieval Cities: Their Origins and the Growth of Trade (Princeton: Princeton University Press, 1937), 200.

[36] Pirenne, Medieval Cities: Their Origins and the Growth of Trade, 50.

[37] Hans Planitz, Die Deutsche Stadt im Mittelalter: Von der Römerzeit bis zu den ZunftkaÈmpfen (Graz-Köln: Böhlau Verlag, 1954), 117–118. In the “Customs of Newcastle-Upon-Tyne in the Time of Henry I, 1068–1135” we find stated, “If a villein come to reside in the borough, and shall remain as a burgess in the borough for a year and a day, he shall thereafter remain there, unless there was a previous agreement between him and lord for him to remain there for a certain time.” In John H. Mundy and Peter Riesenberg, The Medieval Town (Princeton, New Jersey: D. Van Nostrand, 1958), 138.

[38] Benjamin Constant, “The Liberty of the Ancients Compared with that of the Moderns,” in Constant, Political Writings, ed. Biancamaria Fontana, (Cambridge: Cambridge University Press, 1988), 313. Constant followed that statement with a claim that was far, far too bold: “Hence it follows that an age must come in which commerce replaces war. We have reached this age.” Yet, as Steven Pinker documents in his study of the history and causes of violence, The Better Angels of Our Nature: A History of Violence and Humanity, violence of all sorts, including war, has fallen—dramatically so—since Constant’s time and commerce was a very important part of that process.

[39] “War costs a nation more than its actual expense; it costs besides, all that would have been gained, but for its occurrence.” Jean-Baptiste Say, A Treatise on Political Economy (Philadelphia: Lippincot, Grambo & Co.), Book III, chapter 6, §. 51. Accessed online: http://www.econlib.org/library/Say/sayT39.html#Bk.III,Ch.VI.

[40] As Spinoza wrote of the city that offered them toleration, “The city of Amsterdam reaps the fruit of this freedom in its own great prosperity and in the admiration of all other people. For in this most flourishing state, and most splendid city, men of every nation and religion live together in the greatest harmony, and ask no questions before trusting their goods to a fellow-citizen, save whether he be rich or poor, and whether he generally act honestly, or the reverse. His religion and sect are considered of no importance; for it has no effect before the judges in gaining or losing a cause, and there is no sect so despised that its followers, provided that they harm no one, pay every man his due, and live uprightly, are deprived of the protection of the magisterial authority.” Benedict de Spinoza, A Theologico-Political Treatise, trans. R.H.M. Elwes (New York: Dover Publications, 1951), 264. Merchants were pioneers of religious toleration; mutually beneficial voluntary exchange with others encourages one to put oneself in their shoes, not to mention that burning your customers alive ruled out repeat business. When the Spanish king offered to reorganize the bishoprics of the Netherlands and, in the process, to appoint resident inquisitors: “There was violent opposition to this measure from the magistrates of Antwerp (Antwerp was to be one of the new sees) on the grounds that the inquisition was contrary to the privileges of Brabant and that, more specifically, so many heretics came to Antwerp to trade that its prosperity would be ruined if a resident inquisition were introduced.” Geoffrey Parker, The Dutch Revolt (New York: Penguin Books, 1988), 47. And, of course, Voltaire’s observations of the London Stock Exchange summarized the calculating—and thus rational and tolerant—attitude of businesspeople: “Go into the Exchange in London, that place more venerable than many a court, and you will see representatives of all the nations assembled there for the profit of mankind, There the Jew, the Mahometan, and the Christian deal with one another as if they were of the same religion, and reserve the name of infidel for those who go bankrupt.” Voltaire, “On the Presbyterians,” in “Candide” and Philosophical Letters (New York: Modern Library, 1992), 141.

[41] Ullman, The Individual and Society in the Middle Ages, 56.

[42] “One may date the Papal Revolution from 1075—when Gregory proclaimed papal supremacy over the entire church and ecclesiastical independence from, and superiority over, the secular power—to 1122—when a final compromise was reached between the papal and the imperial authority.” Harold H. Berman, Law and Revolution, The Formation of the Western Legal Tradition, 23.

[43] Richard. H. Helmholz, “Magna Carta and the ius commune,” University of Chicago Law Review, Vol. 66, (Spring 1999), 297–371.

[44] An elegant statement of that thesis is found in Daniel Hannan, Inventing Freedom: How the English Speaking Peoples Made the Modern World (New York: Broadside Books, 2013) In his classic study of Magna Carta, Holt noted that the appeal to tradition that was central to Magna Carta “was also widespread on the continent” and gave examples of similar charters in France and Hungary. J. C. Holt, Magna Carta (Cambridge: Cambridge University Press, 1992), p. 114.

[45] “A. D. 1100. Aug. 5. Charter of Liberties issued by Henry I,” Select Charters and Other Illustrations of English Constitutional History from the Earliest Times to the Reign of Edward the First, arranged and edited by William Stubbs, ninth ed. revised by H. W. C. Davis (1870; Oxford: Clarendon Press, 1960), 116–119. Translated into English as “Charter of Liberties of Henry I. 1100,” in Source Problems in English History, by Albert Beebe White and Wallace Notestein (New York: Harper & Brothers Publishers, 1915), 367–369.

[46] Berman, Law and Revolution: The Formation of the Western Legal Tradition, 419–421.

[47] Berman, Law and Revolution: The Formation of the Western Legal Tradition, 294.

[48] Berman, Law and Revolution: The Formation of the Western Legal Tradition, 425–434.

[49] Berman, Law and Revolution: The Formation of the Western Legal Tradition, 308.

[50] Black, Guilds and Civil Society in European Political Thought from the Twelfth Century to the Present, 65.

[51] As the sociologist Norbert Elias showed, greater social interdependence requires, not greater centralized control of behavior, but greater reliance on self-control: “As the interdependence of people increases with the increasing division of labour, everyone becomes increasingly dependent on everyone else, even those of high social rank on those people who are socially inferior and weaker. The latter become so much the equals of the former that they, the socially superior people, can experience shame-feelings even in the presence of their social inferiors. It is only in this connection that the armour of restraints is fastened to the degree which is gradually taken for granted by people in democratic industrial societies.” Norbert Elias, The Civilizing Process (Oxford: Blackwell Publishing, 2000), 117.

[52] Henry Sumner Maine, Ancient Law (1861; Brunswick, New Jersey: Transaction Publishers, 2003), 170.

[53] Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).

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