Introduction: Liberty v. License

1. The Structure of Liberty

Everyone, or nearly so, claims to favor liberty. Yet everyone, even the most "libertarian," also favors constraining people's conduct. One ought not be free to murder, rape, or rob another, for example. Thus nearly everyone carries within them a tension between freedom and constraint.[2] How can this be? Some explain this tension by using the distinction between liberty and license-a distinction commonly made by natural rights theorists. For example, in describing the "state of nature" or world without government, John Locke wrote, "though this be a State of Liberty yet it is not a State of License."[3] By liberty is meant those freedoms which people ought to have. License refers to those freedoms which people ought not to have and thus those freedoms which are properly constrained. But this distinction merely restates the tension, it does not explain or justify it. And it surely does not tell us where to draw the line.

In this book, I will explain that liberty has a structure and this structure implies both freedom and constraint of actions. The best analogy is to a building. I used to regularly eat lunch in the Sears Tower in Chicago. Every day I would see thousands of persons, enough to populate a small town, moving in an apparently chaotic or "disorderly" fashion throughout the building. They were there for countless purposes and were headed for innumerable destinations: shops, restaurants, offices, the observation "skydeck" from which on a clear day they could view four states. Yet the freedom they exercised was structured by the tower itself, by its lobbies, its corridors, its stairways, its escalators, its elevators. Imagine that the tower was invisible and you could simply view the inhabitants, suspended in space. To explain their movements you would have to hypothesize the existence of a tower with floors, walls, elevators, and stairs, in much the same way as the movement of some visible stars leads astronomers to hypothesize the existence of an invisible collapsed "twin" star or "black hole" which is exerting a gravitational influence on the visible star. The structure of the Sears Tower surely constrains the behavior or "freedom" of its occupants. You cannot, for example, take a single elevator directly from the 20th floor to the 60th floor. Instead you need to change elevators on the 34th floor. The skydeck is only accessible to the public via an elevator that originates in the basement. Yet the structure also permits thousands of persons on a daily basis to pursue their disparate purposes for entering the building. Were is not for the structure provided by the tower the occupants on all 100 floors on any given day could probably not fit within the square block of space on which the tower rests. Even if they could all be jammed into that space, they could not accomplish their purposes or, for that matter, any useful ends. Indeed, though it might never have been built, now that it exists the structure is essential to maintaining the very lives of those within. Imagine being able to push a button a make the structure of the building instantly vanish. Thousands of persons would plunge to their deaths.

Like a building, every society has a structure that, by constraining the actions of its members, permits them at the same time to act to accomplish their ends. Without any such structure, chaos would reign and the current population could not be sustained. But not all "social structures" are the same. Like poorly designed buildings, some impose constraints on action that inhibit rather than facilitate the ability of persons to survive or flourish. Others are better able to tailor the nature of these constraints to facilitate their inhabitants' pursuit of happiness.

This book is about the principles which provide the structure of liberty. These principles are clustered under the concepts of justice and the rule of law. Just as the structure of a building solves certain architectural and engineering problems to enable its occupants to pursue their respective purposes, certain principles of justice and the rule of law provide a structure that enables people to pursue happiness by handling the serious and pervasive social problems of knowledge, interest, and power. No society can exist unless it handles these problems to some degree, and the better these problems are handled, the better able are the people who comprise it to pursue happiness, peace, and prosperity.

The structure of this book, then, is straightforward. I will describe in some detail the fundamental problems of knowledge (Part I), interest (Part II), and power (Part III) and how solving these problems requires a liberty that is structured by justice-defined by certain rights I shall specify-and the formal procedures associated with rule of law. The precise contours of the rights and procedures that structure liberty, and which distinguish liberty from license, will evolve as the discussion of these various problems unfolds. Then, in Part IV, I will apply this analysis to certain arguments that have been made against relying on these sorts of rights or in favor of other conceptions of justice that conflict with these rights.

While this book is about how a liberty that is structured by certain rights and procedures is needed to handle the problems of knowledge, interest, and power, it is not about the philosophical nature of these rights. Nor do I attempt to survey all the arguments, philosophical or otherwise that that can be offered on their behalf. Nevertheless, in the balance of this introduction I shall briefly detour into more philosophical terrain so as not to be misunderstood by those who care about such matter. Doing so has the added advantage of putting the method of analysis employed here in historical context, for this method has a long and distinguished pedigree which it would be wrong to ignore.

Still, you need not agree with how I shall characterize these rights to accept my thesis that they are necessary to handle the pervasive social problems of knowledge, interest, and power. For those who care more about why solving these problems makes adherence to certain "principles and laws"[4] necessary for "mankind to be conducted to happiness; or ... enjoy peace and prosperity,"[5] than about the philosophical status of this claim, that account begins at Chapter 2.

[1] Elizur Goodrich, "The principles of Civil Union and Happiness Considered and Recommended," in Ellis Sandoz, (ed.), Political Sermons of the American Founding: 1730-1805 (Indianapolis: Liberty Press, 1991), pp. 914-15.Return

[2] Duncan Kennedy has referred to this as the "fundamental contradiction" of liberalism, although it is not clear how anyone who favors liberty can escape it. See Duncan Kennedy, 'The Structure of Blackstone's Commentaries,' Buffalo Law Review,vol. 28 (1979), p. 211: "[I]ndividual freedom is at the same time dependent on an incompatible with the communcal coercive action that is necessary to achieve it." See also Joseph W. Singer, "The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld," Wisconsin Law Review,vol. 1982 (1982), p.980: "Liberalism is founded upon "the contradiction between ... the principle that individuals may legitimately act in their own interest to increase their wealth, power, and prestige at the expense of others and the principle that they have a duty to look out for others and to refrain from acts that hurt them."Return

[3] John LockeTwo Treatises of Government(1690), ed. Peter Laslett (Cambridge, Mentor, rev.edn. 1963), p.311.Return

[4]Goodrich, "Principles of Civil Union," p. 914.Return

[5]Ibid.Return