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Taking Liberties with the Story of Freedom

It was about fifteen years ago, I believe, that I first became aware that “classical liberalism” was a term that could be used to describe a contemporary movement of ideas. Up to that point, I had been teaching about classical liberalism only as a moment in Anglo-American political and economic thought extending roughly from John Locke and Adam Smith to the early 20th century. After the 1920s it was drowned in the wave of socialism that had been building in Europe since the revolutions of 1848 and that crossed the Atlantic to America in the 1890s. The socialists and their welfare state had taken over Britain after the Second World War. Misleadingly rebranded in America as “liberalism” (“high liberalism” in the lingo of political scientists), the tide was running in its favor in U.S. politics, too, when the Cold War and the Second Red Scare turned Americans against socialism. In response, a new, modernized strain of liberalism arose, later christened “neo-liberalism” by its enemies, led by Friedrich Hayek and Milton Friedman, and dedicated to limited government, free markets, and personal liberty. Over several decades, neo-liberalism established political dominance in the West thanks largely to Margaret Thatcher and Ronald Reagan. 

So when I received an invitation some fifteen years ago from a group of young men at the Harvard Law School to address their Classical Liberal Seminar, I thought they must be a few genial eccentrics, young fogeys with some sort of antiquarian interest in a long-dead tradition. I didn’t realize that they were the advance guard of what became, in the next decade, an important strand of American political opinion. The political philosophy known as classical liberalism now boasts several think-tanks, such as those at the NYU Law School and George Mason University, a number of influential media outlets, ample funding from the Koch Foundation, several politicians (the most prominent was Paul Ryan before his resignation as Speaker of the House), as well as some high-profile public intellectuals like William Kristol, Peter Thiel, Jonah Goldberg, Jordan Peterson, and Bari Weiss—all of whom have been willing at one time or another to wear the label “classical liberal.” 

Part of the appeal of what we might call neo-classical liberalism is the idea that it constitutes the political philosophy par excellence of the West, deeply rooted in a tradition that can be traced back through the American Founding to Renaissance struggles against tyranny, representative parliaments born in the Middle Ages, and ultimately to the Roman republic and Greek democracy. At the same time, its commitment to individual liberty, civil rights, the rule of law and free markets appears to have provided the intellectual oomph behind what looked like, in the late 20th century, an unstoppable rush towards liberal democracy. So it seems not without reason that classical liberals regard their tradition as the finest flower of the Western political tradition. When I was invited to  Harvard Law those many years ago, it was as an expert on Renaissance republicanism: the young men wanted me to polish for them another link in the golden chain of the Western liberal tradition. In the event, I wasn’t able to give them quite what they wanted and spent most of my time trying to explain why the concept of liberty promoted by Italian humanists differed from the kind of freedom espoused by classical liberals.

A Selective History of Liberty

If a similar group with similar desires today were to invite Prof. Annelien de Dijn to their seminar, they would surely be even more disappointed, perhaps even outraged. It is the theme of her new book, Freedom: An Unruly History, that any such genealogies of classical liberalism are factitious and indeed pernicious. Though the volume promotes itself as a long history of liberty from the ancient Greeks to the present, it is in reality a book with a strong thesis: that the “standard liberal narrative” of freedom is completely mistaken. What we in the Anglosphere think of as freedom today—freedom to flourish as individuals with a minimum of interference from the state, protected by civil rights guaranteed under a written constitution—is for her a recent invention of the 19th century. For her, classical liberalism and its ugly stepchild, neo-liberalism—both of which (following Benjamin Constant) she lumps together as variants of “modern liberty”—has its origins in an “anti-democratic backlash,” much of it monarchist in tendency, that followed the American and French Revolutions. Until that time, de Dijn argues, Western concepts of political freedom were dominated by the idea of popular self-government, a concept she labels “ancient liberty.” In the interests of political freedom the ancients promoted equality, including economic equality, to prevent domination by wealthy and powerful individuals. Ancient liberty was incompatible with monarchy and it regarded the preservation of private liberties as insecure, absent popular control of government. There was no real liberty without real democracy. 

Political writers in the Western tradition from at least the fourth century BC recognized that direct democracy could be a threat to individual liberty as well as an enabler of the popular will.

To achieve her goal of depriving classical liberalism of the deep historical roots claimed for it by scholars such as Lord Acton and Isaiah Berlin, de Dijn retells the story of Western liberty as a play in four acts. In the first act, the Greeks create and build a tradition of political liberty around the idea of self-rule—direct participation of all citizens in governing the city-state. The tradition is passed on to the Romans (de Dijn favors Fergus Millar’s emphasis on popular power in the Roman republican constitution) before political liberty is destroyed, in the tragic second act of her drama, under the later Roman empire. Christianity, with its emphasis on interior freedom, delivers the coup-de-grâce. Political freedom for her has no meaningful history in the Middle Ages but is revived in a third, triumphant act by the humanists of the Renaissance, who are inspired anew by the glories of ancient liberty. The revived tradition of ancient political liberty reaches its apogee in the Atlantic revolutions of the late 18th century, which are, for de Dijn, democratic revolutions in the full sense, driven by the desire to transfer political power from kings or a privileged few to the people. 

Then comes the fourth act, another tragic one. The excesses of the French Revolution lead to an anti-democratic reaction. It begins among monarchical thinkers such as the little-known Johann August Eberhard, who makes a distinction between true “civil freedom,” the freedom to do what ones wishes within the constraints of the law, and false “political freedom,” democratic self-government. The latter is a practical impossibility, leading inevitably to popular tyranny, the breakdown of public morality (as illustrated by the Reign of Terror), and a rapid slide into military despotism. 

Eberhard’s praise of civil freedom, maximized under a stable monarchy but threatened by democracy, was taken over by the classical liberals of the early 19th century, led above all by Benjamin Constant. It was Constant who forged (according to de Dijn) an entirely new idea of liberty, called “modern liberty,” more compatible with large commercial republics. De Dijn, herself (one infers) a democratic socialist, characterizes this view as “reactionary” and “counter-revolutionary.” Liberalism muffles the popular voice by filtering it through representative bodies, while securing the property and private enjoyments of the middle and upper classes via a regime of rights, checks and balances, and other constitutional safeguards. In the final two chapters of her book, de Dijn traces the history of “modern liberty” down to the present and describes its evolution into the neoliberal defense of free-market capitalism and constitutional government against welfarism and socialism. In its neo-form, says de Dijn, liberalism is primarily motivated by fear that too much democracy might lead to income redistribution.

Ius Civile and the Liberty of the Ancients

De Dijn is a serious and well-read scholar, and the ambition and range of her book is impressive. I found the two last chapters on “modern liberty” to be rich and informative—de Dijn’s specialty is 18th and 19th century French political thought—and her insistence on the democratic character of the American and French revolutions, though not original, deserves serious consideration by classical liberals inclined to forget just how radical both revolutions were. Nevertheless, her contention that the deep historical roots of classical liberalism is an invented tradition of the 19th century is simply a mistake, and a very large one. In the end it makes the central argument of the book invalid. 

Let me explain what I think has gone wrong. My best guess is that de Dijn was misled, ironically enough, by taking her bearings from Constant and his distinction between ancient and modern liberty. Constant was a man of the Enlightenment who regarded the French revolutionaries’ imitation of ancient freedom as a grievous error, a failure to recognize the realities of modern, large-scale commercial societies. In his famous speech on ancient and modern liberty to the Royal Atheneum of 1819, he presents his own liberalism as the truly modern form of liberty, in contrast with political liberties exercised through popular assemblies in the manner of ancient Greek democrats. 

The aim of the ancients was the sharing of social power among the citizens of the same fatherland; this is what they called liberty. The aim of the moderns is the enjoyment of security in private pleasures; and they call liberty the guarantees accorded by institutions to these pleasures.

Constant’s characterization of “negative liberty” (as Isaiah Berlin called it) as uniquely modern, however, was either a matter of rhetorical positioning or an actual blind spot in his historical knowledge. De Dijn has the same blind spot (though with less excuse), and therefore denies that there can be anything classical about what we have come to call classical liberalism. Any attempts to find its roots in the premodern past she thus sees off with ferocious bursts of special pleading. Or she simply passes over in silence whatever might count as evidence to the contrary.

So what happens in de Dijn’s book to the traditional genealogy of classical liberalism? What about, for instance, Thomas Hobbes’ famous dictum on liberty: “The greatest liberty of subjects dependeth on the silence of the laws”? Didn’t matter: Hobbes’ attempt to redefine liberty “was largely unsuccessful.” What about Montesquieu’s championship of “moderate government,” the salutary British practice (now sadly forgotten) of interfering as little as possible with the lives and fortunes of citizens? Not mentioned. What about the natural rights tradition of the 17th century? Its influence is overrated. What about medieval constitutionalism and the whole tradition of political Aristotelianism from Aquinas to Althusius that argued for legal and institutional limits on monarchy? Not mentioned. What about the popular communes of medieval Italy? Barely mentioned; not important. What about the Magna Carta, the rise of parliaments in Western Europe, the invention of due process in the thirteenth century? Not worth mentioning. What, for heaven’s sake, about the American Constitution of the Founders, the Federalist Papers, and their defense of limited government? Astonishingly, though de Dijn finds room to argue that the Bill of Rights really belongs to the tradition of ancient liberty, she barely mentions the document that it amended. 

Moral freedom—the virtue of freedom that enables us to act in moral ways—and legal freedom—the freedom to do as one wishes within legal limits—are both constitutive of “modern liberty.”

All this is bad enough. What really vitiates de Dijn’s analysis, however, was her decision from the first to concentrate on “political liberty,” the sort of liberty exemplified by ancient Athenian democracy, and to exclude consideration of “moral freedom” and “legal freedom,” as though they played no role in the political understandings of liberty. By so doing she has excluded ex ante the two major traditions that “modern liberty” drew on for intellectual resources. 

Political writers in the Western tradition from at least the fourth century BC recognized that direct democracy could be a threat to individual liberty as well as an enabler of the popular will. Athens’ democratic liberty slid all too easily into license and the reign of ignorant demagogues, leading to military disasters such as the Peloponnesian War and moral disasters such as the judicial murder of Socrates. To limit the dangers of democratic government, fourth-century writers such as Isocrates in his Areopagiticus and Aristotle in his Politics recommended that popular governments be led by meritocratic elites, men of virtue and wisdom, whose souls were guided by a better kind of liberty, moral liberty, achieved through the study of philosophy and good literature. It was only such men, said Cicero in his Stoic Paradoxes, who had true freedom: the power to live as one should want to live. It was this meritocratic tradition, and not the tradition of participatory democracy, that was revived by the humanists of the Italian Renaissance. From the Renaissance it was passed down via elite traditions of classical education to the authors of the U.S. Federal Constitution, where it was translated into meritocratic institutions such as the Senate and the Electoral College (as originally conceived).

The Romans, too, were acutely aware of the dangers that participatory politics posed to the liberties of citizens and especially to their private property. When the tradition of Roman jurisprudence was founded in the second century BC, it developed norms of liberty and equality under the law that were meant to protect citizens and their property from popular agitations such as those led by the Gracchi or dictatorial proscriptions such as those of Sulla. Roman civil law was conceived as a local version of the universal law of nations, which in turn was derived from the law of nature. Its authority therefore outranked the popular will as a source of right (or ius), but could be used as an instrument to restrain it within just limits. Hence the definition of liberty advanced by the jurist Florentius (Digest 1.5.4), “Freedom is an individual’s natural power of doing what one pleases, save insofar as that is ruled out either by coercion or by law.” Florentius’ well-known definition was the basis for the later conception of civil liberty in use from the late Middle Ages down to the 19th century. 

Florentius’ definition built on the conception of liberty famously defended by Cicero, the idol of the Renaissance humanists, who in his treatise On Duties—the civics textbook of Renaissance and early modern Europe—defined the liberty of citizens as “being able to live as you will.” When in the same book he condemned the tyranny of Caesar, it was not for taking away popular sovereignty but for violating Roman law, thus destroying the chief source of Roman freedom. Seeking power over others, taking freedoms guaranteed to them by civil right, was the act of a beast, not a man. Caesar was a tyrant because he violated the ius civile of the Roman people, which made citizens free and equal under law. For Cicero and his innumerable European followers there could be no true freedom without the rule of law. 

Moral freedom—the virtue of freedom that enables us to act in moral ways—and legal freedom—the freedom to do as one wishes within legal limits—are both constitutive of “modern liberty.” They were both theorized by the ancients, and moderns who embrace them as sources of classical liberalism have as much right to call themselves “classical” as the democrats who espouse “political liberty.” It is a pity that de Dijn’s new book prefers to ignore these facts and place “modern liberty” in the dark dossier of reactionary and anti-democratic ideas. True progress in human government (as Benjamin Constant maintained) must allow expression to the popular will, but also restrain it by just laws and wise leadership educated in the finest political traditions of the West. 

Reader Discussion

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on October 05, 2020 at 08:27:39 am

Admirable review. Covers much of the requisite territory and properly frames the book under review succinctly and incisively.

Classical liberalism emphasizes tolerance, free and open inquiry, private property and free markets and individual liberty in general, sundry checks and balances in government and limited government in general (including republican representative forms), the rule of law rather than the rule of man, and natural rights conceptions properly instituted. It does not overly emphasize libertarian motifs.

But in the spirit of Franklin's oft quoted reply, "A republic if you can keep it," our democratic republic is also dependent upon a certain moral seriousness, on the part of the public, the citizenry, and on the part of those holding office and governing and administrating as well. Checks and balances and the like can handle inadequacies in that area to an appreciable degree. But ultimately there are limits and breaking points as well. History ancient and modern is replete and riven with such inadequacies and with such breaking points.

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Michael Bond
on October 05, 2020 at 08:51:10 am

And I don't believe the Koch Foundation, Paul Ryan and Bill Kristol reflect the best of classical liberalism at our current juncture. Even to the contrary in some more specific areas such as globalization and perhaps the administrative state as well.

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Michael Bond
on October 05, 2020 at 09:43:16 am

As one would expect from a singularly 18th-19th Century French political perspective, an absence of learning in the fields of theology and law as uniquely practiced here, while Rousseau, reflecting the sentiment of his Huguenot parents, was reacting there.

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gdp
on October 05, 2020 at 20:05:48 pm

Readers like me appreciate a new book inspiring scholarly outpouring Professor Hankins shares in this essay. As always, my view, biased toward 1787 Americanism rather than Anglo-American tradition motivates questions.

First, why isn’t Albert Einstein (d. 1955) recognized as a political scientist who knew more discovery than Cicero (d. 43 BC) could imagine. Grant Cicero “had true freedom: the power to live as one should want to live [under] the rule of law” and “liberty of citizens as ‘being able to live as you will.’” Einstein suggested the laws of physics and the laws of integrity are the same. Einstein’s only example was that humans don’t lie in order to meet “the demands: ‘Human life shall be preserved’ and ‘Pain and sorrow shall be lessened as much as possible.’” What mysteries are traditional scholars preserving?

Since by the fourth century BC, the Greeks saw problems with democracy, self-rule, Christian egocentrism (see hate in John 15:18-23), and the 1789 French demonstrated the harm of democratic self-government as popular tyranny, why are these concepts still the objects of traditional, scholarly debate? Why can a “democratic socialist” (De Dijn) attack the U.S. Constitution without addressing is provisions? A scholar ought not conflate the ethnic diversity of American patriots declaring war for independence from England to the democratic tyranny in France’s 1789 civil war.
In 1784, there were 13 free and independent states, formerly British colonies. It’s OK to attribute this independence to “the Founders.” However, the Framers created the 1787 U.S. Constitution and 39 of 55 framers were signers. And nothing in the framers’ 1787 Constitution lessens the founders’ claims in the 1776 Declaration of Independence.

After asserting “the Laws of Nature and of Nature's God” entitle “Life, Liberty, and the pursuit of Happiness” (which no government can provide) the 1776 Declaration of Independence concludes:
“We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States . . . . And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” (Emphasis mine.)

The Deist divinity-expressions directly defy English Protestantism. More basically, the expressions were Unitarian vs Trinitarian. In 1778, the confederation of states anticipated defeat and invited France’s aid. With England’s surrender to France and the states, in January, 1784, the states ratified the 1783 Treaty of Paris, which grants each of the 13 states freedom and independence.

From 1789 to 1793, Congress re-established Anglo-American religion by tradition, thereby rebuking the claims of the Declaration and the Constitution: Nature (physics and its progeny), pursuit of integrity, the Supreme Judge of the world, the good People or “We the People of the United States in order to”, the providence of France, the founder’s sacred honor, the signer’s intentions, and the benefits to “ourselves and our Posterity.” Our families are the 2020 “ourselves” and the next generation begins “our Posterity.” Congresspersons continue their tyranny of preserving Anglo-American tradition rather than encouraging development of public discipline and individual integrity as intended by the 1787 Constitution. In 2020, we have experienced fellow-citizens taking the license to harm property and persons in the name of “liberty,” and when my society takes such action I want the independence to walk away and report them.

No person I know would knowingly rebuke all its benefactors. The U.S. Congress is the only entity, other than the Church, I can name who does so. Congress ought to drop ceremonial prayer and pledge and recite in unison the preamble to the U.S. Constitution, each participant thinking of how he or she applies the preamble’s discipline and integrity in their civic, civil, legal, and private ways of living.

It is past time to restore national humility toward the Supreme Justice of the world and civic discipline by We the People of the United States “in order to” practice responsible human independence.

The writers in this forum know enough to make it happen. I hope Professor Hankins will be the first to take an active role.

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Phillip Beaver
on October 06, 2020 at 11:39:24 am

I want to express my appreciation and respect to the owners of this forum for publishing my comments, this essay in particular.

While I am the citizen who knows my civic concerns, the consequences of past work would not be improved without the proprietary thoughts the writers on the forum share. By "proprietary" I mean sufficiently grounded to make a fellow-citizen give them serious consideration and time. Thank you for that, as well.
Phil Beaver

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Phillip Beaver
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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.