Liberty Matters

Response to Helena Rosenblatt: Liberalism is the Child of Jurisprudence

I am grateful to my friend Helena Rosenblatt for her bold comment on my essay. Helena and I have debated the semantic history of liberalism. I say the first political meaning of “liberal” emerged in Britain in the 1770s, whereas Helena says it was only later and on the Continent that “liberal” first acquired a political meaning, which the Continent then exported to Britain.
Helena has issues with “not messing with other people’s stuff” as a formulation of what Smith calls commutative justice. I did not mean to suggest that Aron, Constant, Berlin, or Smith used the expression “not messing with other people’s stuff.” That expression is of my own devising.
The old verbalism “abstaining from what is another’s,” with slight variation, is found in (translations of) Grotius, Pufendorf, Thomasius, and others, and then Hume and Smith. The correspondence of that verbalism to “not messing with other people’s stuff” works as follows:
Abstaining from | Not messing with
what | stuff
is another's | other people's
“Not messing with other people’s stuff” works better than the old verbalism. It enables removal of “not” to focus on “messing with”—what counts as messing with? It gives us a word (“stuff”) for all thing covered by commutative justice (the three staples being person, property, and promises due). And “other people’s” neatly prompts: “How was her ownership/right established?” My formulation corresponds exactly to the arc that passed through Grotius, Smith, and Constant.
J.G.A. Pocock (1983, 249) says, “the child of jurisprudence is liberalism.” Helena’s book The Lost History of Liberalism (Rosenblatt 2018) mentions Grotius and Hutcheson each but once, briefly (p. 19, 25), and never jurisprudence nor writers in the natural jurisprudence tradition such as Pufendorf, Thomasius, Burlamaqui, Barbeyrac, Carmichael, and Hume. Had the book been written after learning the wisdom of Pocock’s words, it would have been a different book.
In her comment, Helena quotes Constant, as I did, saying that modern liberty:
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 gowithout permission, and without having to account for their motives or undertakings. It is everyone's right toassociatewith other individuals, either todiscuss 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 or whims. (Constant 1819, boldface added)
“Clearly,” Helena then says, “Constant’s definition of liberty…cannot be summarized as ‘others not messing with one’s stuff.’”
Oh, but it can. It must be summarized in some such way. I have put the verbs in boldface. How would government deny such liberty? By telling the individual: “If you do those verbs in ways that we have forbidden, even though you do not mess with anyone else’s stuff, we will mess with your stuff (notably, your person and property).”
Natural jurisprudence worked out the components of an operating system such that if your neighbor tried that—saying to you: “If you express an opinion I don’t approve of, I will lock you in prison”—your neighbor would be considered an initiator of coercion. The operating system was about suum, the complex of one’s own, and the precept against messing with it. I’m not making this up. Please read Stephen Buckle’s book on Grotius, Pufendorf, Locke, Hutcheson, and Hume (Buckle 1991). Buckle’s overarching point is that Hume flows directly out of that tradition. Hume flowed directly into Smith and “the liberal plan.” Or read Knud Haakonssen (1981, 1996).
Liberal theorists said: If not messing is so important in equal-equal jural relationships, maybe it should be a presumption in superior-inferior jural relationships. If an act is the initiation of coercion in equal-equal, then it is in superior-inferior. There should be a presumption of liberty.
A marvelous idea!
Here is how Smith explains the system of natural liberty: “Every man, as long as he does not violate the laws of justice, is left perfectly free to pursue his own interest his own way.” What does “left perfectly free” mean other than not under a threat of having his stuff messed with? That is how restrictions on individual liberty are enforced, by threatening to mess with the restrictee’s stuff.
Helena writes: “Did Smith ever say that liberty and commutative justice were the same thing?”
I explained that liberty is the flipside of commutative justice. Smith indicates it clearly, for example when he speaks of two interventions and says: “Both laws were evident violations of natural liberty, and therefore unjust” (italics added)—meaning commutatively unjust. Helena errs when she says: “The fact is that there are myriad references to liberty in the Wealth of Nations that have no connection with ‘not messing with’ someone else’s ‘stuff’.” Virtually every liberty in WN refers to some such concept. What else could Smith mean by liberty?
And when Constant says that numerous institutions “in the ancient republics hindered individual liberty” (321), or when he says, “Individual liberty, I repeat, is the true modern liberty” (323), what does he means by “individual liberty”? Constant plainly means governmental powers not doing things that it would be criminal for a neighbor to do, that is to mess with the individual’s stuff. With a grasp of the jurisprudence tradition, one cannot misunderstand what Smith means by liberty and what Constant means by individual liberty, and that Constant’s liberalism flowed directly from the “liberal” policy talk that got started in the 1770s in Britain.
Helena notes that, after I quoted the main part of Constant’s characterization of modern liberty (and quoted above), I did not include the trailing sentence, “Finally, it is everyone’s right to exercise some influence on the administration of the government…” (311). I omitted the sentence because for modern liberty, Constant explains, political participation, though very important and a sacred duty, is nonetheless secondary. In modern times, Constant explains, the political-participation element wanes towards insignificance because: (1) polities are so much larger, so the individual citizen has only a slight chance of affecting a political outcome; (2) citizens have so much else to do in modern commercial society, novels to read, plays to attend, that they –alas—opt not to spend much time with civic affairs; (3) commerce itself never sleeps (unlike the crops in ancient days growing in the fields); (4) citizens today don’t have slaves to do the work while they are off attending political deliberations. To Constant, government not messing with one’s stuff is the essence of modern liberty. Again: “Individual liberty, I repeat, is the true modern liberty” (323).
My essay is about the polysemy of liberty. Helena wonders whether it is a campaign to make liberty monosemous. My essay aims to raise the profile of the classical-liberal meaning. It would be silly to suggest an aim of making libertymonosemous.
Helena ended her commentary by asking why I feel a need to urge classical liberals to stand up for the classical-liberal meaning of liberty. It is because people who tend to favor liberalization in public policy (or the degovernmentalization of social affairs)—that is, classical liberals—do not always have a clear idea of liberty and a clear sense of what kinds of claims to make for it. Also, they might be inhibited, since standing up for the classical-liberal meaning might be stigmatized. But the presumption of liberty is the spine of classical liberalism. Classical liberals fortify that spine by standing up for the classical-liberal meaning of liberty.
New References
Buckle, Stephen. 1991. Natural Law and the Theory of Property: Grotius to Hume. Oxford: Clarendon Press.
Haakonssen, Knud. 1981. The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith. Cambridge: Cambridge University Press.
Haakonssen, Knud. 1996. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge: Cambridge University Press.
Pocock, J.G.A. 1983. Cambridge Paradigms and Scotch Philosophers: A Study of the Relations between the Civic Humanist and the Civil Jurisprudential Interpretation of Eighteenth-century Social Thought. In Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, I. Hont and M. Ignatieff (eds.), 235-52. Cambridge: Cambridge University Press.
Rosenblatt, Helena. 2018. The Lost History of Liberalism: From Ancient Rome to the Twenty-first Century. Princeton: Princeton University Press.