What is it important to know about freedom, liberty and natural rights?

Dear readers, this article summarises the conclusions of a series of recent posts on this blog relating to freedom, liberty and natural rights.

It might help you in reading the article to think of it as an outline of the chapter on freedom in a book about freedom, progress and human flourishing. It would help me if you could provide comments below, or by email, on whether you think the article captures adequately what it is important to know about liberty.

The meaning of freedom, liberty and rights. 

Freedom sounds good, but the meaning of the word depends on context. For example, when people talk about freedom from fear, or freedom from want, they may have something important to say about human flourishing, but it isn’t necessary related to personal freedom or economic freedom, which are aspects of liberty. My focus in this post is on liberty.

Liberty has a more precise meaning than freedom. I adopt Friedrich Hayek’s definition of liberty as “a state in which coercion of some by others is reduced as much as is possible in society”. In the civic republican tradition, liberty is sometimes defined more broadly to encompass political freedoms, including the right to political participation. To avoid confusion, however, I think it best to stick with Hayek’s definition.

Rights refer to things that one is morally or legally entitled to do or have. As with freedom, the precise meaning depends on context and qualifier words. A negative right is a right not to be subjected to an action of another person or group whereas a positive right is an entitlement to have another person or group do something. The Universal Declaration of Human Rights encompasses not only the negative right to liberty and positive legal rights (including political freedom) but also economic and social aspirations that cannot necessarily be met by anything that a person or group might do.   

My focus here is on natural rights, including the rights to life, liberty and the pursuit of happiness - as famously proclaimed in the United States Declaration of Independence. The inclusion of “pursuit of happiness” as a right in the Declaration might appear to be redundant since pursuit of happiness is encompassed in our understanding of liberty. In 18^th century America, however, an inalienable right to liberty could have been interpreted in civic republican terms. At that time, pursuit of happiness was widely perceived as the activity of human flourishing, as perceived by Aristotle. (Further explanation is provided in an earlier post.)

Liberty is worth having.

Anyone who lives in a liberal democracy should ask themselves from time to time what it would be like to live without liberty. What would your life be like if you lived in a country where you didn’t have freedom of religion, where you could be jailed for expressing views not approved of by political leaders, where you could be subject to arbitrary arrest, where your property could be arbitrarily seized by the government, or where your freedom to  move around was restricted? Such countries are still easy to find.

The right to freedom of speech is particularly important because free speech helps to protect liberty more generally. Some restrictions on freedom of speech have long been widely accepted as desirable, for example to discourage incitement to violence. However, recent efforts in some liberal democracies to make it a crime to offend others based on identity characteristics - such as ethnicity, religion or gender - have potential to curtail freedom of speech substantially. Even when people strive to be respectful in the way they present their views, some people with opposing viewpoints are likely to claim to be offended if they can thereby stifle debate on controversial topics.

Norms of liberty make it possible for individuals to flourish in different ways.

As explained by Douglas Rasmussen and Douglas Den Uyl: 

“Individual rights are … needed to solve a problem that is uniquely social, political and legal. … How do we allow for the possibility that individuals might flourish in different ways … without creating inherent moral conflict in … the structure that is provided by the political/legal order? How do we find a political/legal order that will in principle not require that the human flourishing of any person or group be given structural preference over others? How do we protect the possibility that each may flourish while at the same time provide principles that regulate the conduct of all?”  (Norms of Liberty, 2005, p 78).

A discussion of views of other authors who have also advanced metanormative arguments for individual rights was posted on this blog some years ago.

 

Moral intuitions support natural rights.

Natural rights are inherent in human nature. They have traditionally been seen to be endowed by God, but widely-held intuitions about natural rights can also be explained in terms of the evolution of the ethics of respect. Moral intuitions that it is good to respect the lives and autonomy of others provide support for norms of liberty that maximize the opportunities available for all to flourish. As discussed in a recent post, it seems reasonable to suppose that the ethics of respect evolved because of the benefits that voluntary cooperation for mutual benefit brought to individuals and communities.  

Those who seek to deny the existence of natural rights tend to argue that individual rights are bestowed by governments, so it is legitimate for governments to remove them if that serves what they see as the “greater good”. There are times when individual rights do need to be compromised (e.g. via compulsory land acquisition) to prevent a community being held to ransom by an individual, but this should not be done lightly and fair compensation should be provided.

Respect for the rights of others has been advocated as an ideal since ancient times.

In ancient Greece, the poems of Hesiod, which appear to date from the 8^th or 7^th century BCE, urge people to comply with rules of just conduct rather than to seek to benefit via predation. In his poem, Works and Days, Hesiod advises his brother Perses, to “put away all notions of violence” for “fish, and wild animals, and the flying birds” may “feed on each other, since there is no idea of justice among them,” but “to men [Zeus] gave justice,” which is the “best thing they have.”  Hesiod condemns both force and fraud: the grabbing of goods either by “force of hands” or by “cleverness of … tongue.” (Further discussion here.)

Perceptions of natural law have not always supported universal human flourishing.

Aristotle (384-322 BCE) was the great philosopher of individual human flourishing. His emphasis on the natural capacity of humans to use reason to guide themselves and exercise appropriate moderation in their behaviour provides a basis for understanding human flourishing to be an essentially self-directed activity.

Nevertheless, Aristotle argued that it was natural to make slaves of defeated enemies. He viewed the system of conquest and slavery as a natural system governed by internal sources of change. By identifying the whole system as natural he was able to disregard the use of force at the heart of it.

The perception of what was natural of Cicero, the Roman statesman, lawyer and philosopher who lived from 106 BC- 43 BC, was more supportive of liberty. He argued that “nature made us just that we might participate our goods with each other, and supply each others’ wants”.

(Further discussion here and here.)

Reason and spontaneous legal processes both played a part in recognition of natural rights.

Beliefs and values supporting natural rights of individuals to life, property and liberty seem to have travelled from Cicero to the modern world through both the spontaneous evolution of rules and evolution of reasoning about the natural law. Those different transmission processes interacted. There were periods when reasoning about natural law held back recognition of individual rights to participate in mutually beneficial activities e.g. lending and borrowing. Eventually, however, reasoning about natural law reinforced and extended individual rights recognised under common law. (Further discussion here and here).

Rule of law protects natural rights and enables people to live in peace.

From the 12th century onwards, with the advent of centralised monarchies in Europe, homicide came to be viewed as an offence against the crown, rather than a civil matter. That enabled societies to avoid the violence associated with do-it-yourself justice. More effective justice systems penalised plunder, and thereby promoted peacefulness and improved incentives for mutually beneficial exchange.  

Evolution of the rule of law provided greater protection to natural rights by requiring people to refrain from initiating or threatening any forceful interference with other individuals or their property.  (Further discussion here.)

Systems of government preferment are an infringement of natural liberty.

Adam Smith argued that it was an unjust infringement of natural liberty for the powers of government to be used to assist some economic groups at the expense of others. Smith’s ideal of everyone being free to pursue their own interests in their own way is consistent with Francis Hutcheson’s earlier explanation of the right to natural liberty in terms of pursuit of happiness. (See this post).

In The Law, published in 1850, Frédéric Bastiat foresaw the potential for the universal franchise to endanger natural rights. He was concerned about the use of the power of the state by some groups to seize and consume the products of the labour of others. Legislation that seriously endangers natural rights is difficult to reconcile with rules of just conduct that have evolved to foster mutually beneficial interactions. (See discussion here.)

The right political participation should be viewed as a natural right.

Moral intuitions supporting the right to political participation presumably evolved because human flourishing has always required individuals to participate actively with others in decisions relating to provision of collective goods. Such involvement is less active in modern societies in which many collective goods are provided by remote government agencies and citizen involvement usually involves little more than voting.

The exercise of voting rights provides citizens with some protection against tyranny, but increasing numbers of people in the liberal democracies nevertheless feel unhappy about the outcomes of democratic political processes. That unhappiness may stem to an important extent from unrealistic expectations of what political processes can deliver. It seems likely to increase as low productivity growth reduces government revenues and demographic change increases political demands on governments.

Technological advances that enhance opportunities to seek mutual benefit in cooperative enterprises offer hope that people will in future be able to exercise their natural political rights in ways that give them more involvement in decisions that affect them.

(More discussion here and here.)

For liberty to prevail the ‘real constitution’ must be pro-liberty.

It is illusory to think of political institutions as external to society. The rules of the game exist only insofar as they are continually maintained in existence by human agents acting in certain systematic ways. The constitution of a free society is a pattern of interactions in which people give one another incentives to act and keep acting in ways that tend to maintain liberty. It is not the rules per se that gets disputes resolved, but rather the incentive structure that makes the system’s administrators likely to act in accordance with such rules.

Sheldon Richman defines the real constitution as the set of dispositions that influence what most people will accept as legitimate actions by the politicians and bureaucrats who make up the government. He derives support for this concept from Roderick Long’s observation that “government is not some sort of automatic robot standing outside the social order it serves; its existence depends on ongoing cooperation, both from the members of the government and from the populace it governs”.

It follows that for liberty to prevail the real constitution must be pro-liberty. As a corollary, tyranny cannot persist in any jurisdiction when the real constitution is pro-liberty.

Can any of the positive rights listed in the UDHR be considered natural rights?

A statement made last year by Michelle Bachelet, the UN High Commissioner for Human Rights, marking the 70^th anniversary of the Universal Declaration of Human Rights (UDHR) prompted me to take another look at it  In her statement, Ms Bachelet suggested that the UDHR has “withstood the tests of the passing years” and “has passed from being an aspirational treatise into a set of standards that has permeated virtually every area of international law”.

The UDHR is not a document that I look at often. My reason for largely neglecting the document has been the perception that it is aspirational, and involves a large element of wishful thinking. Ms Bachelet’s suggestion to the contrary reminded that Friedrich Hayek had asserted that by proclaiming social and economic aspirations to be rights, the UDHR was playing “an irresponsible game with the concept of ‘right’ which could result only in destroying the respect for it” (Law, Legislation and Liberty, p 105).

After re-reading the UDHR, there are a couple of points I would like to make about it.

First, Hayek was right!

Hayek’s warning about the confusion of the concept of right in the UDHR was appropriate. For example, consider Article 15:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Article 15 seems to tell everyone that the world owes them a living. But who will pay? Nature has different imperatives. Human flourishing depends on what people can do individually and collectively to help themselves and each other. Governments may help by defending the natural rights that enable people to better their own condition and help others. Although they often promise to ensure that everyone has an adequate standard of living, governments can’t themselves generate the wealth needed to keep such promises.

Governments can redistribute wealth, but their redistribution efforts tend to discourage wealth creation. What happens when redistribution is pushed too far is obvious from the recent experience of Venezuela. The policies followed by the Venezuelan government were presumably intended to contribute to the human flourishing aspirations underlying Article 15, but they have had the opposite effect of impoverishing many people in that country. The incoming Venezuelan representative on the UN human rights council would do us all a favour if he or she could acknowledge the consequences of the Venezuelan government’s efforts to comply with Article 15.

The UDHR would have provided a more coherent defence of human rights if its framers had given more attention to the insights of Frédéric Bastiat about natural rights and the role of law. In The Law, published in 1850, Bastiat makes the point that everyone has a natural right to defend their person, their liberty and their property, and asserts that the law should be viewed as “the collective organization of the individual right to lawful defense”:

“When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all”.

Second, some of the positive rights in the UDHR are worth supporting.

I am referring to various legal rights relating to natural justice, or procedural fairness, and the right of political participation in Article 21:

“Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”.

People who live in liberal democracies tend to take that right that for granted, and many are even disillusioned about it, but it is a right that people seek persistently when it is denied to them. Tyrants understand that well; although they often claim to be adored by citizens, they are rarely willing to allow their popularity to be fairly tested in fair elections. The recent protests in Hong Kong show that the right to political participation is keenly sought even when people live under a regime that, for the time being, provides individuals with greater economic freedom than is enjoyed in most liberal democracies.

Friedrich Hayek argued in favour of recognition of such political rights in the following terms:

“Since we are all made to support the organization of government, we have by the principles determining that organization certain rights which are commonly called political rights. The existence of the compulsory organization of government and its rules of organization does create a claim in justice to shares in the services of government, and may even justify a claim for an equal share in determining what government shall do” (LLL, p 102).

Is political participation a natural right?

It seems to me that the right to political participation should be viewed as a natural right for much the same reasons as I have argued that humans have a natural right to exercise the self-direction that is central to their flourishing. It is part of human nature to seek mutual benefit by participating actively with others in decisions relating to provision of collective goods because provision of such goods is, and has always been, necessary to human flourishing. As Aristotle said, “man is by nature a political animal”.

The context in which Aristotle made that observation is worth quoting because what he described seems to an essentially voluntary process of people coming together for mutual benefit:

“When several villages are united in a single complete community, large enough to be nearly or quite self-sufficing, the state comes into existence, originating in the bare needs of life, and continuing in existence for the sake of a good life. And therefore, if the earlier forms of society are natural, so is the state, for it is the end of them, and the nature of a thing is its end. For what each thing is when fully developed, we call its nature, whether we are speaking of a man, a horse, or a family. Besides, the final cause and end of a thing is the best, and to be self-sufficing is the end and the best.

Hence it is evident that the state is a creation of nature, and that man is by nature a political animal” (Politics, Book 1, Part 2).

The political participation of a citizen in a liberal democracy, which usually doesn’t involve much more than voting, has little in common with the participation of citizens in the functioning of the city states that Aristotle wrote about. Perhaps that helps to explain the disillusionment that many currently feel about the exercise of their democratic rights. Responses to surveys suggest that many people want more involvement in decisions that affect them.

Many people are also unhappy about the outcomes of democratic political processes. In my view that unhappiness stems to an important extent from inflated expectations generated by UDHR and other authorities which assert that people have the right to expect politicians to deliver them a standard of living they consider to be adequate. Another important source of disillusionment is the ‘plunder’ that Frédéric Bastiat foresaw as a likely outcome of the universal franchise. Bastiat was referring to the use of the power of the state by some to seize and consume the products of the labour of others. These days economists refer to that as rent seeking and usually consider it to be a major obstacle to productivity growth.

It seems likely in the decades ahead, that low productivity growth will reduce the rate of growth in government revenues in many democratic countries, at the same time as an increase in the proportion of elderly people places increased political demands on governments. Consequently, governments are likely to be forced to reduce their involvement in provision of services that can be supplied either privately, or via voluntary cooperative activity.

Fortunately, as I have previously discussed, technology is developing in ways that are likely to enhance our opportunities to seek mutual benefit in cooperative enterprises.

Conclusions

The right to political participation should be viewed as a natural right which evolved because human flourishing required individuals to participate actively with others in decisions relating to provision of collective goods. Such involvement is less active in modern societies in which many collective goods are provided by remote government agencies.

The positive right to political participation is nevertheless an important right recognised in the UDHR. It differs from social and economic aspirations - that are also claimed to be rights in the UDHR - because it is a right that governments can comply with. The exercise of voting rights provides citizens with some protection against tyranny.

The disillusionment that many people in the liberal democracies feel about the exercise of their democratic rights seems likely to increase as low productivity growth reduces government revenues and demographic change increases political demands on governments. Technological advances that enhance opportunities to seek mutual benefit in cooperative enterprises offer hope that people will in future be able to exercise their natural political rights in ways that give them more involvement in decisions that affect them.

How does liberty promote peacefulness?

People who understand that self-direction is essential to their own flourishing have no difficulty grasping how liberty has potential to promote peacefulness. Such people usually advocate the non-aggression principle, which requires them to refrain from initiating or threatening any forceful interference with other individuals or their property. They are likely to see that principle as an application of the Golden Rule of treating others as you wish to be treated, the Kantian imperative, the ancient virtues of justice, temperance and loving-kindness, a matter of honor and integrity, the ethics of respect, norms of reciprocity, or some combination of the above.

The extent of adherence to the non-aggression principle is a determinant of both liberty and the peacefulness of a society.  A society in which 100% of the population adhered to the principle would be entirely peaceful. A democracy in which 90% of the population adhered to the principle could be expected to be more peaceful than one in which a lower percentage of the population did so, other things being equal.

The proviso is important. One “other thing” that also has an important influence on the peacefulness of outcomes is the way perceived aggressions are dealt with. In particular, outcomes in countries where do-it-yourself (DIY) justice is the norm are likely to be less peaceful than those in countries governed by rule of law. The problem with DIY justice is that it is often perceived to be biased, and hence results in family feuds and further retribution.

John Locke recognised DIY justice as a flaw in his vision of humans being “perfectly free …  subject only to limits set by the law of nature”. He noted that it would be seen to be “unreasonable for men to be judges in their own cases” because:

 “self love will make men partial to themselves and their friends; and on the other side, that ill-nature, passion, and revenge will carry them too far in punishing others; and hence nothing but confusion and disorder will follow: and that therefore God hath certainly appointed government to restrain the partiality and violence of men” (Second Treatise of Government, Chapter 2).

In writing that, John Locke was possibly mindful of the historical experience of DIY justice in England and Europe.  

Historical explanations of the growth of peacefulness

In attempting to explain the long-term decline in homicide rates in Europe, shown in the accompanying graph, Steven Pinker follows the reasoning of Norbert Elias who suggested that the advent of centralised monarchies, replacing a patchwork of baronies and fiefs, played an important role in encouraging people to display greater self-control (a modern word with a similar meaning to the ancient virtue of temperance). In England, King Henry I, who reigned in the early 12^th century, redefined homicide as an offence against the state rather than as a tort. That changed the rules of the game. As Pinker puts it:

“A man’s ticket to fortune was no longer being the baddest knight in the area but making a pilgrimage to the king’s court and currying favour with him and his entourage” (The Better Angels of Our Nature, 2011, p 75).

The advent of centralised monarchies also improved incentives for mutually beneficial trade by penalising plunder. When people are engaged in mutually beneficial trading, they have an added incentive to refrain from murdering their trading partners. Given appropriate incentives, the ancient virtue of prudence helped people to exercise the Christian virtue of loving their neighbours rather than murdering them.

In case anyone is wondering, the thought in the preceding sentence wasn’t borrowed from Steven Pinker. Pinker doesn’t claim that the Christian virtues played a positive role in the civilisation process. He suggests, with some justification, that in the middle ages Christianity was more concerned with saving souls than with the sacredness of life. Nevertheless, at a couple of points in The Better Angels of Our Nature, Pinker acknowledges the importance of the various versions Golden Rule that have been discovered by the world’s major religions.

If you are sceptical about the ability of an autocratic monarchy, a Leviathan, to play a positive role in defending rights and promoting peace, it may help to think of the advantages of stationary bandits replacing roving bandits, as suggested by Mancur Olson. Even if the motives of a stationary bandit are entirely selfish it can still be in his interests to enter into a mutually beneficial partnership with his subjects. In exchange for taxes he may use his power to give them the incentive to attempt to accumulate wealth, for example by recognising property rights and enforcing contracts. There is further explanation here.

In historical terms, monarchies that were prepared to use their coercive powers to defend the rights of citizens were a step in the direction of rule of law – a set of institutions protecting individual rights and ensuring that no-one is above the law.

Steven Pinker notes that a humanitarian revolution occurred in the 17^th and 18^th centuries resulting in a reduction in barbarity of punishments, a greater willingness to allow heretics to go to hell rather than to persecute them to save their souls, and a reduction in the power of kings. Pinker attributes this revolution to enlightenment humanism. I have previously argued that Pinker is broadly correct to present this as a coherent world view in terms of its impact on public opinion, despite the disparate views of leading thinkers.

Other factors which Pinker sees as contributing to the peacefulness of societies include: growth in the power of women; an expansion in the circle of sympathy to encompass people in other communities and other countries; and ‘the escalator of reason’, which involves detaching oneself from a parochial viewpoint. I have discussed those processes previously, so I will not dwell on them here. It is worth noting, however, that the circle of sympathy and escalator of reason also promote freedom via greater recognition of human rights and enabling widespread adoption of emancipative values.

So, has the greater liberty of the western democracies made them uniquely peaceful?

The answer isn’t obvious. Homicide statistics suggest that some countries with autocratic governments are also relatively peaceful. It seems likely, however, that may reflect suppression of violence rather than genuine peacefulness. That view is supported by the explosion of violence that occurred in eastern Europe following the collapse of communism in eastern Europe.

Research by Tapio Lappi-Seppälä and Martti Lehti, using an extensive international data base, suggests that the level of lethal violence is heavily dependent on the rule of law, the extent of corruption, the level of democracy, and social and economic equality. High crime societies are characterised by stronger authoritarian and conservative moral views, more collectivist cultures, and short-term cultural orientations (‘Cross-Comparative Perspectives on Global Homicide Trends’,  Crime and Justice 43(1): 2014).

The relationship between rule of law and homicide rate, as depicted in the graph at the beginning of this post (borrowed from the article by Tapio Lappi-Seppälä and Martti Lehti) is particularly pertinent to the question of how liberty promotes peacefulness. The rule of law index used (the World Bank’s index constructed by Daniel Kauffman, Aart Kraay and Massimo Mastruzzi) captures “perceptions of the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the police and the courts, as well as the likelihood of crime and violence”. I have previously noted that the index covers similar ground to the legal component of an economic freedom index.

Conclusion

Liberty promotes peacefulness because it requires people to refrain from initiating or threatening any forceful interference with other individuals or their property. The rule of law that protects liberty also promotes peacefulness by enabling societies to avoid the violence associated with do-it-yourself justice.