I...concentrate...on the other and more knock-down objection commonly levelled against the theory I have been laying out. According to a number of eminent critics, the analysis of the concept of liberty underlying the claim that it is only possible to live freely in a free state is itself misleading and confused. Those who have raised this objection commonly mount their attack in two waves. First they reaffirm the Hobbesian principle that the extent of your individual liberty depends on the extent to which the performance of actions within your powers is or is not physically or legally constrained. As Paley, for example, puts it, 'the degree of actual liberty' will always bear 'a reversed proportion to the number and severity of the restrictions' placed on your ability to pursue your chosen ends. But the neo-roman theorists, according to Paley, are not talking about this situation. They are talking about the extent to which the performance of such actions may or may not be free from the possible danger of being constrained. But this, Paley goes on, is to confuse the idea of liberty with a wholly different value, that of enjoying security for your liberty and the exercise of your rights. So the neo-roman writers 'do not so much describe liberty itself, as the safeguards and preservatives of liberty: for example, a man's being governed by no laws, but those to which he has given his consent, were it practicable, is no otherwise necessary to the enjoyment of civil liberty, than as it affords a probable security against the dictation of laws, imposing arbitrary and superfluous restrictions upon his private will'
The second wave of the attack then follows at once. As soon as this confusion is uncovered, we can see that the basic claim made by the neo-roman theorists to the effect that you can only be free in a free state is simply a mistake. The extent of your freedom as a citizen depends on the extent to which you are left unconstrained by the coercive apparatus of the law from exercising your powers at will. But this means that what matters for civic liberty is not who makes the laws, but simply how many laws are made, and thus how many of your actions are in fact constrained. This in turn shows that there is no necessary connection between the preservation of individual liberty and the maintenance of any particular form of government. As Paley concludes, there is no reason in principle why 'an absolute form of government' might not leave you no less free than the purest democracy'....It seems to me, however, that Paley's line of criticism fails to come to terms with the most basic and distinctive claim that the neo-roman theorists are labouring to make about the concept of civil liberty. The claim is implicit in the analysis I have already given, but it is now time to spell it out.
The neo-roman writers fully accept that the extent of your freedom as a citizen should be measured by the extent to which you are or are not constrained from acting at will in pursuit of your chosen ends. They have no quarrel, that is, with the liberal tenet that, as Jeremy Bentham was later to formulate it, the concept of liberty 'is merely a negative one' in the sense that its presence is always marked by the absence of something, and specifically by the absence of some measure of restraint or constraint. Nor have they any wish to deny that the exercise of force or the coercive threat of it must be listed among the forms of constraint that interfere with individual liberty. Despite what a number of recent commentators have implied, they are far from merely wishing to put forward an alternative account of unfreedom according to which it is held to be the product not of coercion but only of dependence.What, then, divides the neo-roman from the liberal understanding of freedom? What the neoroman writers repudiate avant la lettre is the key assumption of classical liberalism to the effect that force or the coercive threat of it constitute the only forms of constraint that interfere with individual liberty. The neo-roman writers insist, by contrast, that to live in a condition of dependence is in itself a source and a form of constraint. As soon as you recognise that you are living in such a condition, this will serve in itself to constrain you from exercising a number of your civil rights. This is why they insist, pace Paley, that to live in such a condition is to suffer a diminution not merely of security for your liberty but of liberty itself.
The issue, in short, is how to interpret the underlying idea of constraint...If you are a subject of the sultan, you will be less free than a citizen of Lucca, simply because your freedom in Constantinople, however great in extent, will remain wholly dependent on the sultan's goodwill. But this means that in Constantinople you will suffer from a form of constraint unknown even to the humblest citizen of Lucca. You will find yourself constrained in what you can say and do by the reflection that, as Harrington brutally puts it, even the greatest bashaw in Constantinople is merely a tenant of his head, liable to lose it as soon as he speaks or acts in such a way as to cause the sultan offence. The very fact, in other words, that the law and the will of the sultan are one and the same has the effect of limiting your liberty. Whether the commonwealth be monarchical or popular, the freedom is not still the same...
...
By the end of the nineteenth century, Henry Sidgwick felt able to declare in his great summation of classical liberalism that the errors underlying the neoroman theory of liberty are beyond dispute. To speak of individual liberty, Sidgwick first reminds us in his Elements of Politics, is to speak of an absence of external impediments to action, either in the form of 'physical coercion or confinement', or else of coercive threats that inhibit us by 'the fear of painful consequences'. Once this is understood, we can see that to think of the freedom of citizens as possible only within free states is simply to fall into 'the confusion which the common use of the word "Freedom" is apt to cause'. The truth is that individual freedom has no necessary connection with forms of government, since it is perfectly possible for a representative legislature to 'interfere with the free action of individuals more than an absolute monarch With this reiteration of the classical utilitarian case, Sidgwick dearly felt that the neoroman theory had finally been laid to rest.--Quentin Skinner, Liberty before Liberalism, 79-99.
This is the concluding post ((recall here; here; here; here; here) in my series on Skinner's Liberty before Liberalism , and the one in which I disagree with him. One important feature of Skinner's treatment of the debate between the "neoroman theory" and the "liberal," even "classical liberal" response to it is that the main representatives of the latter he discusses, from Paley to Sidgwick, are all utilitarians. And of these, Mill goes entirely unmentioned (except for in Skinner's "preface"). This subtly skews the terms of the debate.
For in Skinner's hands the neoroman litmus test for freedom is the ability to speak one's mind at court by those"devoted to public service by acting as advisers and counsellors to the rulers and governments." (87ff) Since utilitarians often conceive of their own science in terms of such (philanthropic) service -- they model their own activity in terms of social planner or philanthropy -- this is entirely fair. And, indeed, in their public service, in so far as policy-advisors become dependent on the whims of the prince, and, as Machiavelli (recall) already noted, incentivized to flatter the prince and disagree among themselves, the neoromans are right to regard it as a mistake to treat them as paradigmatically free in such an unstable political environment.
Why then do I say that the debate is skewed? First that there is nothing distinctively liberal about these utilitarian responses to the neoromans. By this I do not mean to imply that the utilitarians are hostile to liberalism. I agree with, say, Foucault (recall) that they constitute the epitome of the "radical" tradition within liberalism. But it doesn't mean that in all things utilitarians are constitutive of liberalism or especially liberal in their sensibility. When in Considerations on Representative Government, Chapter 3. Mill, who himself has a tendency toward paternalism, warns against the attractions of "good despotism" he is attacking the fondness for Enlightened dictatorship to be found in (other) utilitarians (and earlier the physiocrats). Again, I do not mean to deny that within otherwise eminently liberal thinkers there is a recurring lapse toward the attractions of the wise legislator who resolves political problems by fiat.
My point is that so-called negative liberty by itself is not especially liberal. For, one thing notably missing in the presentation of the liberal response to the neoroman account of freedom, as presented by Skinner, is the significance of the rule of law.+ The classical liberals granted the neoromans that one was not free under despots. For, example the sultan's mastery "of the life and fortune of any individual" is treated as a danger to and restriction of freedom by Hume. This despite the fact that the sultan was, according to Hume, constrained in his ability to impose taxes.
But informed by Machiavelli on the significance of mechanism design, the classical liberals also claimed that the rule of law was compatible with a variety of constitutional and political formats. What's needed, in addition to the rule of law, is a separation of powers capable of resisting the executive so that impartial and general rule of law is secured. As Hume, who is by no means the greatest friend of liberty among the classical liberals, writes in remarking on the "struggle" between "authority and liberty:"
Notice that in the quoted passage, Hume accepts the neoroman claim that you can only be free in a free state. The problem with the neoroman position for Hume is not that the neoromans confuse freedom with constraints on freedom (and should adopt the Hobbesian, negative conception of freedom). Skinner is entirely right that this line of argument that is ground in the idea that "individual liberty is basically a matter of non-interference" (116, in context this is a criticism of Isaiah Berlin) begs the question against the neoroman account of liberty. Hume does not beg the question in that way.*
Rather, the neoroman theorists call the wrong kind of states free. This needs to be corrected. For Hume, the problem with the neoroman account is that, as (recall Constant) any reader of Rousseau's Social Contract will have recognized, the neoroman theory facilitates what one may call democratic despotism. (This was noted in Berlin's Two Concepts.") And in so far as republican theorists recognize this, and introduce institutional safeguards against it, they move toward the liberal position articulated by Hume (and Montesquieu, etc.), and, indeed, Livy.++
I do not mean to deny that lurking here is an important disagreement over the best form of life. Classical liberals do not sign up for the neoroman idea that devoted public servant is the paradigmatic citizen, although Hume and Smith felt the pull of it. And from a neoroman perspective this is indeed troubling. But the liberal rejoinder is that in their kind of free state, which is compatible with a whole range of constitutional forms (but not despotism/tyranny, etc.), the public servant is no more dependent or unfree on the ruler than any other citizen is. But that's because the liberal espouses the idea when, in a free state (in the corrected sense), the citizen exercises her judgment in order to make meaningful choices, she can express her personal freedom in a diversity of ways in the pursuit of many valuable ends.
+It is notable that 'rule of law' is missing in Berlin's Two Concepts of Liberty. (Cf. "Consequently, it is assumed by these thinkers that the area of men's free action must be limited by law. But equally it is assumed, especially by such libertarians as Locke and Mill in England, and Constant and Tocqueville in France, that there ought to exist a certain minimum area of personal freedom which must on no account be violated.") In his account of the liberal tradition, in Berlin's hands, the law does not constitute freedom, but is a limitation on it. From my perspective this is a mistake, even a blunder (even though there is much that's perceptive (recall) In Two Concepts of Liberty about the risks inherent in analytic philosophy).
++In his treatment of freedom (or liberty), in the Elements of Politics, Sidgwick is close to articulating this very point and puts it in terms of a "well-ordered political society" (46) which he introduces to criticize Hobbes' conception of freedom from Paley's perspective! Sidwick develops the point in terms of what he calls "constitutional liberty." (46) Skinner's presentation of Sidgwick leaves this all aside, and makes him out far more dogmatic than he is. (I do not deny that Sidgwick's defense of what Sidgwick calls the Individualists, is vulnerable to Skinner's critique.) But about that some other time more.
*I also do not mean to deny that Hume himself here may understate the significance of consent by the citizens and the role of their voice (including elections), although he has plenty to say about public opinion and the role of parties (etc.). We may say that many states can be free, but that, as Constant would emphasize, a whole bunch of other institutions and practices/norms are required to make it a liberal state. More modern (less classical) liberals may well emphasize different features as conditions on being a free state (for the evolution of these ideas see Levy's Rationalism, Pluralism, and Freedom.)
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