Modern Liberty and the Limits of Government

W.W. Norton • 2007 • 217 pages • $24.95

In calling his book Modern Liberty and the Limits of Government, Charles Fried, professor of law at Harvard University and former solicitor general of the United States in the second Reagan administration, was inspired by the early nineteenth-century French classical liberal Benjamin Constant. In 1819 Constant delivered a lecture in Paris called “The Liberty of the Ancients Compared to the Moderns.” Among the ancient Greeks, Constant explained, freedom meant the ability of the free citizens of the city-state to debate and vote on the affairs of their community.

Liberty, in other words, referred to collective decision-making to which all individuals were bound, since through the “democratic” process they had given their consent—regardless of how tyrannical the outcomes might be for their personal lives and fortunes.

Constant contrasted this majoritarian and communal conception of “freedom” with the nineteenth-century classical-liberal ideal of liberty: “It is the right of everyone to express their opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings. It is everyone’s right to associate with other individuals, either to discuss their interests, or to profess the religion which they and their associates prefer, or even simply to occupy their days or hours in a way which is most compatible with their inclinations and whims.” For the moderns, Constant said, liberty consisted of “peaceful pleasures and private independence.” Modern men want “each to enjoy our own rights, each to develop our own faculties as we like best, without harming anyone. . . . Individual liberty, I repeat, is the true modern liberty.” (See my review of Constant’s 1815 book, Principles of Politics Applicable to All Governments, in the June 2004 Freeman.)

Fried wants to restore Constant’s ideal of liberty against the statist trends of our time. Indeed, in his preface he expresses hopes that his book can do for the contemporary world what F. A. Hayek’s Road to Serfdom did more than 60 years ago in helping to stem the tide of government power. Unfortunately, while many parts of his book are insightful, Fried shows that he, too, has been captured by a great deal of the “ancient” notion of liberty.

He defends the idea of self-ownership as the most fundamental basis for individual liberty. He argues that the most intimate aspects of self-ownership are control over our own minds and bodies. What meaning can be given to liberty if the individual is not respected and secure in his right to think, speak, and write? If you don’t own your own mind and have the liberty to express your thoughts free from government control, then at the deepest level freedom does not exist.

Likewise, if you don’t own your own body, then surely you are a slave to whoever claims the right to use and abuse your physical person. One of the most intimate forms of such physical self-ownership, therefore, is the liberty of consenting adults to choose sexual partners and sexual acts. Fried therefore defends both heterosexual and homosexual relationships as a fundamental right of any individual to decide with whom to share such intimacy—even though some people will find another’s choice of partners offensive.

The trouble arises, Fried says, when self-ownership over mind and body is extended to the physical objects around us. Fried understands that without private property, all issues of self-ownership fall to the ground. What meaning is there to freedom of speech if individuals may not have some degree of ownership and control of the resources through which speech may be expressed? He understands that property has been the engine for prosperity and innovation that has raised man up from barbarism. And he emphasizes that such property rights, like the rule of law in general, must be secure and stable if we are to be able to plan for the future and have trust in our dealings with each other.

To secure rights under the law, Fried argues, there must be a government to serve as the arm of enforcement. Thus we have an obligation to part with a portion of our wealth and income to fund the provision of that security. In addition, he insists that it is the duty of government to supply a variety of “public goods,” such as roads, parks, and streets, that may not get funded without taxation because some may try to free-ride on what others contribute.

However, the public-goods argument soon takes Fried down a slippery slope. From roads and streets he extends this rationale for government activity to education, health care, and a variety of other items in the grab bag of the modern welfare state. How does his slide down this slope begin? While wishing to defend Constant’s conception of individual liberty against state compulsion, he cannot escape the rationale for these redistributive schemes.

We may be individuals, but we are born and nurtured in a community of other human beings. Our language, beliefs, ideas, customs, and culture all come from the wider social order to which we belong. Fried contends that we have duties to this wider community without which we would not be who we are. Common decency requires us to not turn a blind eye to the hardships, misfortune, and maltreatment of our fellow men. The state, Fried believes, is the means through which we all participate in and contribute to what we owe to that larger community.

What Fried misses in his argument about the nature and role of government is that the state is not the same thing as society. The state is that agency in society that either is delegated or usurps the legitimate use of violence to enforce its laws. But society is the wider concept that represents the associations individuals form among themselves. It is through these institutions of civil society that free men cooperate for mutual benefit and furtherance of shared values.

The role of government in a truly liberal order is to secure and protect the rights of free persons so they may go about their peaceful business. Government becomes especially dangerous to liberty when it exceeds those limited duties. It by necessity diminishes and finally threatens the existence of liberty when it replaces associations and activities of free persons with its own monopoly control and exercises its regulatory or redistributive power through the threat or use of force.

Fried has bought into the statist premise that coercion must replace consent if enough people don’t act in decent and moral ways toward others. But there is no moral conduct when the individual has no choice in the matter other than to obey those who hold the threat of force against him. Nor can we be sure that the best means have been found to further those goals of “social” concern when the government taxes and distributes portions of people’s incomes rather allowing those individuals the freedom to make their own decisions and commitments.

What Fried and many others are trying to do is devise ways of making freedom compatible with the welfare state. Accept a certain minimum of such “social work” by the government, resign yourself to paying some part of your income to finance them, and then be content with the “liberty” to use what’s left in our pockets. The task, in Fried’s view, is somehow to limit what government does in these areas so it doesn’t become too tyrannical and overbearing.

Thus by a roundabout route, Fried returns to the liberty of the ancients over the “modern” liberty of individuals so brilliantly defended by his hero Constant. In fairness, it must be said that Fried challenges and undermines many of the more recent arguments for greater state control. He often does so in creative and thought-provoking ways.

Nevertheless, his book is more an attempt to reconcile liberty with the welfare state than a strong case for extending liberty by reducing and abolishing the compulsory redistributive political order in which we live.