To get a sense of the relationship of individual liberty and government within the concept of progressive liberty, I recommend a book I've just picked up, Charles Fried’s 2007 book, “Modern Liberty: And the Limits of Government.” Fried explains:
“It is generally thought that we must have the state [i.e., government] for enforcement, legislation, and adjudication, and ... [therefore rights must be merely] creatures of the state. But it is entirely plausible to argue that we have the rights whether or not they are enforced, embodied in codes, or officially adjudicated…. Our rights in their broad outlines are the entailments of what we are: free and reasoning persons, capable of a conception of what is good and right…." Liberty, in other words, is pre-political, and nothing any government attempts to do may legitimately deny it to the people to whom it rightfully belongs. It was the purpose of the Declaration of Independence to claim these pre-political rights from the Crown, and of the Constitution to guarantee these rights.
Fried continues, "It is because our rights flow from who and what we are that we may form, re-form, or accept government in order to make our rights more certain and secure. So those who say that our rights depend on or are the creatures of states have it the wrong way around."
In this regard, Fried echoes the following statement from the Declaration of Independence: "Whenever any form of government becomes destructive of these ends [of securing to all the unalienable rights of life, liberty and pursuit of happiness], it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."
Finally, regarding the nature of government, Fried says, “The state is nothing but a web of relations between individuals as individuals, whose choices are coordinated according to what they understand is possible for them and what they may or may not do.... [That is,] if states are the greatest violators of liberty, they are also its greatest enablers and protectors. In any advanced condition of civilization there can be no effective degree of liberty without the state, because there can be no effective degree of liberty without law.”
On this last point, James Madison put it well in Federalist No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Properly constituted with a limited mandate, as in the U.S. Constitution, government can be a force of progressive good while protecting and enforcing individual liberty.
By: Michael Anthony Lawrence
Showing posts sorted by relevance for query charles fried. Sort by date Show all posts
Showing posts sorted by relevance for query charles fried. Sort by date Show all posts
Thursday, March 8, 2007
Thursday, March 15, 2007
Progressive Liberty (#3) - Charles Fried & the Environment
Last week I recommended Charles Fried's 2007 book "Modern Liberty" as providing excellent insight into the nature of Liberty and government (characterizing liberty as pre-political, rather than originating from the state, for example).
Regarding different forms of individual liberty, moreover, he properly recognizes that inherent differences may justify incrementally greater governmental regulation of some rights (e.g., property) than of others (e.g., liberty of the mind and liberty of free choice in sex), because “unlike liberty of the mind and sex, property is not a natural right” (property is based on a constructed rules, and arbitrary ones at that).
Even so, it must be said that under a Progressive Liberty regime Fried goes too far in favor of property rights in suggesting that such rights, based largely on the reliance and stability engendered by a state-enforced property regime, should be allowed to prevail over some governmental restrictions designed to protect endangered species or a remote wilderness.
Fried says that a claim for environmental protection that is "not in the name of any other person, not even persons in generations not yet born[; or that is p]erhaps … made in the name of the endangered species or even nature itself,” is simply inadequate to justify a governmental restriction on the use. To make his point, he equates “[g]etting in a distant landowner’s way to protect the [southwestern] arroyo toad” with prohibitions by “those who dislike the very idea that some people they do not know or see are having a kind of sex they find distasteful” on private sexual activity. The motivation for the former looks like that of the latter, he says: “it is the very idea that a species might be disappearing that distresses those who would limit the landowner’s property rights. Such a motivation offends liberty,” as does keeping “undisturbed [the] wilderness of a place so remote and inaccessible that few may ever see it, like the National Wildlife Refuge.”
This approach disproportionately elevates the value of property stability/reliance and too deeply discounts the common collective good following from a governmental program of conservation and environmental stewardship.
Instructive here is the lesson of the tragedy of the commons, which teaches that a common resource is likely to be squandered when each member of the community receives full benefit (1:1) but pays only a pro-rata cost (say, 1:100 in a community of 100 people) for use of the resource. By analogy, where a property owner receives the full 1:1 benefit of a particular use but pays only a pro-rata cost (again, 1:100) for the destruction of the resource, the resource is likely to be degraded.
This assumes a particular cognizable harm to the commons – a harm Fried is perhaps unwilling to acknowledge, but if the current global warming crisis demonstrates anything, it is that human activities have profound impacts on the long-term health of the environment. For the very survival of the species it is incumbent upon us to take steps to protect our habitat. Science demonstrates that habitat loss can lead, in the extreme, to extinction.
None of this is to say that property owners should not be compensated in some way for the loss of choice, perhaps with tax credits since s/he is disproportionately bearing the cost of the commonweal through the government’s prohibition of the desired use, or through use rights of other property, or the like. Liberty demands as much.
By: Michael Anthony Lawrence
Regarding different forms of individual liberty, moreover, he properly recognizes that inherent differences may justify incrementally greater governmental regulation of some rights (e.g., property) than of others (e.g., liberty of the mind and liberty of free choice in sex), because “unlike liberty of the mind and sex, property is not a natural right” (property is based on a constructed rules, and arbitrary ones at that).
Even so, it must be said that under a Progressive Liberty regime Fried goes too far in favor of property rights in suggesting that such rights, based largely on the reliance and stability engendered by a state-enforced property regime, should be allowed to prevail over some governmental restrictions designed to protect endangered species or a remote wilderness.
Fried says that a claim for environmental protection that is "not in the name of any other person, not even persons in generations not yet born[; or that is p]erhaps … made in the name of the endangered species or even nature itself,” is simply inadequate to justify a governmental restriction on the use. To make his point, he equates “[g]etting in a distant landowner’s way to protect the [southwestern] arroyo toad” with prohibitions by “those who dislike the very idea that some people they do not know or see are having a kind of sex they find distasteful” on private sexual activity. The motivation for the former looks like that of the latter, he says: “it is the very idea that a species might be disappearing that distresses those who would limit the landowner’s property rights. Such a motivation offends liberty,” as does keeping “undisturbed [the] wilderness of a place so remote and inaccessible that few may ever see it, like the National Wildlife Refuge.”
This approach disproportionately elevates the value of property stability/reliance and too deeply discounts the common collective good following from a governmental program of conservation and environmental stewardship.
Instructive here is the lesson of the tragedy of the commons, which teaches that a common resource is likely to be squandered when each member of the community receives full benefit (1:1) but pays only a pro-rata cost (say, 1:100 in a community of 100 people) for use of the resource. By analogy, where a property owner receives the full 1:1 benefit of a particular use but pays only a pro-rata cost (again, 1:100) for the destruction of the resource, the resource is likely to be degraded.
This assumes a particular cognizable harm to the commons – a harm Fried is perhaps unwilling to acknowledge, but if the current global warming crisis demonstrates anything, it is that human activities have profound impacts on the long-term health of the environment. For the very survival of the species it is incumbent upon us to take steps to protect our habitat. Science demonstrates that habitat loss can lead, in the extreme, to extinction.
None of this is to say that property owners should not be compensated in some way for the loss of choice, perhaps with tax credits since s/he is disproportionately bearing the cost of the commonweal through the government’s prohibition of the desired use, or through use rights of other property, or the like. Liberty demands as much.
By: Michael Anthony Lawrence
Sunday, May 13, 2007
Progressive Liberty & Natural Rights - Thomas Paine & "Rights of Man"
In my last entry I commented on Thomas Paine and how his 1776 sensation "Common Sense" gave voice to what historian Bernard Bailyn identified as the most basic goal of the American Revolutionary Era: "[to] free the individual from the oppressive misuse of power, [and] from the tyranny of the state.”
A decade and a half later, Paine's "Rights of Man," published in stages from 1791-94, elaborated on the theme (and along the way helped fuel the French Revolution), by stating the basic principle that “Man did not enter into society to become worse than he was before, nor to have fewer rights than he had before, but to have those rights better secured.”
Explaining the circumstances under which man cedes some of his natural rights to the care of society and government (we may call those natural rights so entrusted as “civil” rights), Paine said:
"The natural rights which are not retained, are all those in which, though the right is perfect in the individual, the power to execute them is defective…."
“[N]atural rights are the foundation of all his civil rights…., [and include] all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others."
"Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection…."
"He therefore deposits this right in the common stock of society, and takes the arm of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.”
"The natural right which he retains[, by contrast,] are all those in which the power to execute it is as perfect in the individual as the right itself….”
For a modern perspective on these progressive liberty ideas, Charles Fried says in his recent book, "Modern Liberty: And the Limits of Government" (a book on which I've blogged here previously):
“It is generally thought that we must have the state for enforcement, legislation, and adjudication, and ... [therefore rights must be merely] creatures of the state. But it is entirely plausible to argue that we have the rights whether or not they are enforced, embodied in codes, or officially adjudicated…. Our rights in their broad outlines are the entailments of what we are: free and reasoning persons, capable of a conception of what is good and right…."
Fried continues,
"It is because our rights flow from who and what we are that we may form, re-form, or accept government in order to make our rights more certain and secure. So those who say that our rights depend on or are the creatures of states have it the wrong way around…. The state is nothing but a web of relations between individuals as individuals, whose choices are coordinated according to what they understand is possible for them and what they may or may not do...."
"[That is,] if states are the greatest violators of liberty, they are also its greatest enablers and protectors. In any advanced condition of civilization there can be no effective degree of liberty without the state, because there can be no effective degree of liberty without law."
Paine's and Fried's descriptions capture well the principles of "progressive liberty" - i.e., recognizing individual liberty's preeminent position while also acknowledging government's indispensable role in protecting that liberty.
These ideas are further developed in my forthcoming Essay entitled "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests" (click here to view abstract or download full essay).
A decade and a half later, Paine's "Rights of Man," published in stages from 1791-94, elaborated on the theme (and along the way helped fuel the French Revolution), by stating the basic principle that “Man did not enter into society to become worse than he was before, nor to have fewer rights than he had before, but to have those rights better secured.”
Explaining the circumstances under which man cedes some of his natural rights to the care of society and government (we may call those natural rights so entrusted as “civil” rights), Paine said:
"The natural rights which are not retained, are all those in which, though the right is perfect in the individual, the power to execute them is defective…."
“[N]atural rights are the foundation of all his civil rights…., [and include] all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others."
"Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection…."
"He therefore deposits this right in the common stock of society, and takes the arm of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.”
"The natural right which he retains[, by contrast,] are all those in which the power to execute it is as perfect in the individual as the right itself….”
For a modern perspective on these progressive liberty ideas, Charles Fried says in his recent book, "Modern Liberty: And the Limits of Government" (a book on which I've blogged here previously):
“It is generally thought that we must have the state for enforcement, legislation, and adjudication, and ... [therefore rights must be merely] creatures of the state. But it is entirely plausible to argue that we have the rights whether or not they are enforced, embodied in codes, or officially adjudicated…. Our rights in their broad outlines are the entailments of what we are: free and reasoning persons, capable of a conception of what is good and right…."
Fried continues,
"It is because our rights flow from who and what we are that we may form, re-form, or accept government in order to make our rights more certain and secure. So those who say that our rights depend on or are the creatures of states have it the wrong way around…. The state is nothing but a web of relations between individuals as individuals, whose choices are coordinated according to what they understand is possible for them and what they may or may not do...."
"[That is,] if states are the greatest violators of liberty, they are also its greatest enablers and protectors. In any advanced condition of civilization there can be no effective degree of liberty without the state, because there can be no effective degree of liberty without law."
Paine's and Fried's descriptions capture well the principles of "progressive liberty" - i.e., recognizing individual liberty's preeminent position while also acknowledging government's indispensable role in protecting that liberty.
These ideas are further developed in my forthcoming Essay entitled "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests" (click here to view abstract or download full essay).
Monday, January 19, 2009
What to Do About Bush/Cheney Abuses of Constitution
In the run-up over the last weeks to the presidential transition, there has been a lot of talk about what to do about the Bush/Cheney administration's eight-year assault on the Constitution. (See, for example, Harvard law professor and former Reagan appointee (solicitor general) Charles Fried, Slate senior editor Dahlia Lithwick, Yale law professor Jack Balkin, Nobel Prize winning economist and New York Times columnist Paul Krugman, among others.)
Some say those who were responsible at the highest levels for authorizing such abuses as torture, incarceration for years without access to lawyers or legal process, warrantless wiretap programs, allowing the Justice Department to become a partisan vehicle for rewarding the administration's supporters and punishing its critics - to name just a few - should be criminally prosecuted. On the other extreme, some say what's done is done, and we need to look forward, so we should do nothing.
Probably the best approach, however, everything considered, is the middle ground: holding a full set of hearings so that we will finally be able to know the full extent of the various abuses and egregious excesses (given his advocacy for the technique in getting people to spill, maybe Dick Cheney should be waterboarded if he continues to resist providing information - what's good for the goose is good for ....); but not going for criminal prosecutions, with all of the delays and legal maneuverings that would entail.
Yes, we want to hold the perpetrators accountable, but the most important thing is to expose all of what went on so that it can be held up to the light of national and international condemnation. Criminal prosecutions would hinder that goal, and could turn into a frustrating legal circus. By contrast, a sort of American version of a Truth and Reconciliation Commission would more easily allow the evidence to come forth since it would not be subject the rigorous procedural and evidentiary requirements of a criminal trial.
In this way these people may be fairly judged - and likely condemned - by the court of history, with their names living on in infamy for betraying the high principles of fairness and justice for which America and its constitutional form of government stands.
Some say those who were responsible at the highest levels for authorizing such abuses as torture, incarceration for years without access to lawyers or legal process, warrantless wiretap programs, allowing the Justice Department to become a partisan vehicle for rewarding the administration's supporters and punishing its critics - to name just a few - should be criminally prosecuted. On the other extreme, some say what's done is done, and we need to look forward, so we should do nothing.
Probably the best approach, however, everything considered, is the middle ground: holding a full set of hearings so that we will finally be able to know the full extent of the various abuses and egregious excesses (given his advocacy for the technique in getting people to spill, maybe Dick Cheney should be waterboarded if he continues to resist providing information - what's good for the goose is good for ....); but not going for criminal prosecutions, with all of the delays and legal maneuverings that would entail.
Yes, we want to hold the perpetrators accountable, but the most important thing is to expose all of what went on so that it can be held up to the light of national and international condemnation. Criminal prosecutions would hinder that goal, and could turn into a frustrating legal circus. By contrast, a sort of American version of a Truth and Reconciliation Commission would more easily allow the evidence to come forth since it would not be subject the rigorous procedural and evidentiary requirements of a criminal trial.
In this way these people may be fairly judged - and likely condemned - by the court of history, with their names living on in infamy for betraying the high principles of fairness and justice for which America and its constitutional form of government stands.
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