Chapter 12 - The Crown Meme: Civil Liberties
Men being, . . . by nature all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent, which is done by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living . . . , in a secure enjoyment of their properties....
The meme of the contemporary libertarian democracy is based on the concept of full freedom for the individuals to act as they please, limited only by the respect for an equal liberty of their fellows, under the aegis of general laws and not according to the dictates of a ruler, malevolent or not. It is difficult to find modern antecedents for that type and degree of individual liberty before the 17th century. In fact, the meme took shape during that century, as a precipitate of the struggle for power in the British Isles. It is true that during the Middle Ages people enjoyed several liberties –in the sense of privileges granted to social classes or to specific people–.323 However, freedom as a general attribute of the population was still unknown. Nevertheless and at least in theory, the Catholic Church had contributed an important basis for the rule of law as understood by democratic States with its doctrine of natural-law, elaborated during the struggle against the growing absolutism of European kings. For centuries, the Church had preached that authorities were not supposed to create laws, but only to discover and declare them, since they were already inscribed by the Creator in the conscience of each and every person. Ironically, England was to be the country who better retained such theological doctrine, widely used by both parties in the 17th century juridical disputes to reciprocally accuse each other of arbitrariness. The conflict between king and parliament motivated –well into the Renaissance– an in-depth analyses of the subject of civil liberties, producing the important documents Petition of Rights (1628), Habeas Corpus Act (1679) and –above all– Bill of Rights (1689).324 These documents recorded the principles that civil liberty could not be infringed nor individual ownership be affected, without the proper processes of law, and that citizens should be protected against illegal inspections or expropriations. Such principles, and others on the same nature, gradually developed and specified by judicial decisions, gave rise to the common law system, grounded on the precedents of judicial rulings, characteristic of the Anglo-American tradition. It is arguable that this system of conflict resolution, founded on juridical debate and jurisprudence, was the key factor in England ability to conjure the danger of the arbitrariness of absolute monarchs which affected other European countries, avoiding political upheavals like the Terror period of the French Revolution.
Other important influences that contributed to the development of civil liberties in the British Isles were from Greek and Roman classics. At the beginning of the Renaissance, Western thinkers entered in contact with the ancients who had known individual freedom and written about it. The first people to enjoy it had been the Athenians, to whom Pericles could remind that their political freedom protected their privacy in such a way that, far from stimulating a zealot's surveillance over each other, they did not feel called upon to criticize their neighbors for doing as they pleased. According to Friedrich A Hayek, the essential characteristic of such liberty was summarized in one word imported to England during the Elizabethan era, since falling into obsolescence: ‘isonomy’. That word –originally Greek– meant “equality of law to all manner of persons.”325 Its origin dated back to Solon’s times, who had granted the people “equal laws for tall and short alike.” The concept seems to be older than that of democracy, since Herodotus mentions it before democracy as “the most beautiful of all names of the political order.” The alternative modern expression “rule of law and not of men” directly derives from Aristotle and was used first in modern times by Thomas Hobbes, defender of absolutism, accusing Aristotle of error for having written that in a well-organized society laws should rule instead of men (Hayek, 1975).
Throughout the 17th century, the influence of Latin writers began to replace that of the Greeks. The famous Law of the Twelve Tables, inspired in those of Solon, had been the grounds for the Roman conception of liberty. The first of them stipulated:
This conception was, in Rome, the basis for the first complete system of private law, developed in a fashion similar to the origins of the common law in the British Isles, that is, through the accumulation of the decisions made by judges. A very different and subsequent system, the “Codex Justinianus,” would serve as the basis for the juridical tradition in the European continent, later extended to Latin American by way of the Napoleonic codes. Fortunately, the spirit of the laws of the free Rome was able to get to Europe through the works of Roman historians and orators, rediscovered during the Renaissance, in particular Tacitus and Cicero. We owe Cicero many of the clearest formulations of “legality in liberty,” such as the defining properties of generality and permanence of the law. Not by chance, this period of Roman life coincided with one of complete economic freedom to which, in great part, Rome owed its prosperity and strength. During the 2nd century, the liberty created by the equal protection of the law began to diminish, progressively being eroded by the Roman emperors’ absolutism.
Much later, and unfortunately, the Justinian Code consecrated –in the 6th century– the retrograde view that the prince was above the law. Such ill-fated influence would nurture the new European monarchies throughout the Renaissance. In England, luckily, it was the thought of the classical pre-Empire Roman authors what prepared the way for a different system. Soon after the death of Elizabeth I, the great fight between king and parliament began, culminating in the Glorious Revolution of 1688. During the period of civil war, an intense and continuous discussion developed. It gradually gave rise to the libertarian ideals that would inspire thereafter the political evolution of England. A culminating moment of that period was the abolition, in 1648, of special courts. Almost at the same time, the first effort to ensure the independence of judges was made. The dominant topic in the controversies of those years was the attempt to prevent arbitrary action on the part of the government. Some of the points most emphasized were the exclusion of punishment when no previous law had established it, the prescription that laws should not have retroactive effects, and the principle that the magistrates' discretionality should be strictly circumscribed by the law.
Little by little, two central political concepts meant to safeguard individual liberty began to emerge: the idea of a constitution (not necessarily written) and the principle of separation of powers. The Declaration by the Parliament sitting in Westminster represented an important attempt, in 1660, to specify these two essential principles. It was declared, first, that nothing was more essential to the freedom of the State than that the people should be ruled by preestablished laws, administered by judges also subject to them. As a counter weight, the warranty of noninterference by parliament in the executive or ordinary administration of the laws was proclaimed. The clear intention of this double declaration –stated in the same ruling– was that of guaranteeing the defense of the people against government arbitrariness.
The ideals of the Glorious Revolution would be spelled out and raised to philosophical level in John Locke’s Second Treatise on Civil Government (1690). They prevailed on the British Isles throughout the entire 18th century. Locke’s work was reinforced by his disciple David Hume, who emphasized in his History of England that the meaning of the kingdom history had consisted of an evolution from a government under the sign of arbitrariness to a government under the sign of the rule of law.
Ironically, the outbreak of the American Revolution took place as a reaction of the American settlers, imbued with the principles of the Glorious Revolution, against a mother country which had ceased to practice them. In fact, after its victory over the king, the British parliament quickly forgot that no government should be arbitrary and that all power should find its limits on the constitutional guarantees protecting civil liberties. In particular, the colonists rebelled against taxes approved by a body in which they were not represented and who had even expressly declared to have unlimited powers. They resisted fully aware of the historical transcendence of their action. As Hayek has emphasized, American settlers had the fortune, notwithstanding their backwardness in many other orders, of counting among their leaders a considerable number of political philosophers: John Adams, James Madison, Alexander Hamilton, Thomas Jefferson, Benjamin Franklin. They were scholars at the level of the most outstanding European ones, knowledgeable in the classical tradition as any of the 17th century English thinkers had been, and with whose ideas they were entirely conversant (Hayek, 1975).
Such being the case, it is clear that, in fact, the American Revolution actually meant the passage of the liberty torch to the New World. From then on, it will fall on the Americans and not on the Europeans, the serious responsibility of the maintenance and ulterior elaboration of the contemporary civil-liberties meme. The settlers’ aims in their conflict with their mother country were totally grounded in the libertarian doctrine elaborated by the British during their civil war. The rights claimed by the settlers were precisely those inherent to them as British subjects. However, on realizing that the British non written constitution, in whose principles they fervently believed, was in fact incapable of sheltering them, they came to the persuasion that it was essential to embrace the principle of a written constitution as the new foundation for the libertarian doctrine. The concept of hierarchy, until then only recognized among different legitimate authority ranks, was amplified to cover also legal precepts, with the rebel written constitution as the ultimate supporting ground for regular laws.
In the 18th century, and even much earlier, divine law or the law of reason was the recognized grounding of legislation. The doctrine of natural law, preached by the Catholic Church, answered to the same spirit. However, the idea of making that higher law explicit and precise, by means of its inscription on a document, was to be introduced in a systematic way for the first time by the American revolutionaries. Just as a judicial decision is only considered valid if it is covered by general laws, parliament dispositions were henceforth only to be considered valid if they conformed to the principles enumerated in the new written constitution. Thus, it was to be ensured that the legislators do not infringe liberties for circumstantial reasons, protecting people in a much better way against the arbitrary use of the powers they themselves have granted to their legislators. In this way, the civil-liberties meme was enriched by a mutation, small in itself –as all mutations are– but of great consequence for the accumulation of design in the political evolution of humankind.
The following thirteen years until the approval of the federal constitution constituted a period of experimentation in constitutionalism, under the domineering maxim that government should be “of laws and not of men.” Declarations of rights proliferated in the different States. The most famous one, in Virginia, was adopted even before the Declaration of Independence of the American Union. Inspired on English and colonial precedents, it was to serve as prototype not just to the remaining States but even for the Declaration of the Rights of Man and of the Citizen of the French Revolution.326 Its main clauses have become universally accepted, among others the prohibition of retroactivity of the law and the rules that ensure the separation of powers. The decision to create those declarations implied a deliberate act on the part of the representatives of the new States, and as such constituted the first case in modern history wherein a nation voluntarily decides the type of government under which it wants to live.
Finally, the independence of the United States was declared on July 4, 1776, by a Continental Congress, a body of representatives from the founding thirteen colonies. This transcendental document, written by Thomas Jefferson and Benjamin Franklin, proclaimed the independence of the thirteen British colonies in America. After recounting their grievances against the British Crown, it declares the colonies as free and independent States. This act represented the culmination of a long process which began as a protest against oppressive restrictions imposed by the mother country, finally turning into a revolutionary war to establish a new nation. In this unique endeavor, the former English settlers not only broke political ties with their mother country but also their cultural ties with the English pragmatist tradition, adopting a basically rationalist posture, the one criticized by Edward Burke regarding the French Revolution.327 Nevertheless, such change of attitude was prudently limited to the constitutional sphere, preserving the common law juridical tradition regarding ordinary laws. This blending of elements from two juridical and philosophic traditions turned out to be the best solution for the prevailing problems and an insurance against future ones. It is a good example, in memetic evolution, of an equivalent phenomenon in the genetic one: the mixing of lineages. It constituted a brilliant enrichment of the civil-liberties meme by the old and wise strategy of accumulation of design.328
The creativity of American revolutionaries did not exhaust itself in the adoption of a written constitution. State plurality, a product of the country’s extended colonization, prompted another political invention of the greatest transcendence to the maintenance and development of civil liberties: federalism. The transfer of some essential powers to a center, while the remaining ones were kept within the individual States, created new effective limits for all governments concerned. Thus emerged a new form of government which Lord Acton would later characterize as the most effective and congenital of all democratic regulations. The federal regime limits and restricts sovereign power by means of its fragmentation and the respective apportioning of very specific rights among different sovereign authorities. It constitutes a unique method for moderating power, not just the majority's but the entire population's. It provides, as well, a base for a second legislative chamber, accruing additional guarantees for the liberty of individuals. The development of this federalist principle produced a community more powerful, more prosperous, more intelligent, and more free than any other which the world had known, according to Acton (1952).
The federal division of powers reduces the power of all who exercise it. Not just because the different magistratures, on the strength of reciprocal jealousy, hinder one another’s control excesses. More important is the fact that certain interventions require the conjoint use of different powers which, being in different hands, often cannot combine to perform them. The clearest example occurs in economic interventions, which can only be effective when the respective authorities are able to oversee the movement of people and merchandise across jurisdictional borders, action rarely possible within a federal system. The result is that the powers of a federal government turn out to be drastically restricted. We denizens of the 21st century may see in this a preview of the benefits which the current globalization processes might have in store for humankind, if it advances to completion and to the degree it would. Here too, certain powers will escape national States, without their being supplanted by international controls, quite difficult to implement in practice, with a net global gain to individual liberties.
The American federal system would endure its greatest crisis, apart from the Civil War halfway into the 19th century, during the period of the great economic depression of the 1930s. During that crisis, Franklin D. Roosevelt, a man of strong character, occupied the United States presidency. Confronted with the need to overcome the depression, he assumed the mistaken position that when a country trusts his ruler, this ruler should be allowed in difficult times to exercise powers beyond constitutional limits. Accordingly, he started to implement emergency measures which contravened the laws of the land. Inevitably, a head-on crash with the Supreme Court, in charge of safekeeping the federal constitution, occurred. When that high tribunal annulled the president’s dispositions one after the other, Roosevelt concluded that his only recourse was to change the Court’s composition, thus proposing before the Congress a legal amendment for the immediate retirement of its oldest members. Surprisingly and happily, the measure was struck down by the Senate, precisely where Roosevelt’s party enjoyed an overwhelming majority. Thus, the president’s prestige suffered a hard blow when he was at the peak of his popularity. The senatorial declaration of principle proclaimed on the occasion, asserted once again the preservation of the constitutional system as incomparably more important than the immediate adoption of no matter what legislation, however beneficial it might seem to be. The Senate emphatically went on record maintaining “the government of law over the government of men.” Never a legislature, concludes Hayek, paid a higher tribute of admiration to a tribunal restricting its own powers. Even more gratifying was the fact that the legislature decision was expressing the feelings of the vast majority of the population.
The statesman and eloquent orator Edmund Burke, champion in the defense of human rights,329 reacted with circumspection in relation to the remarkable events which went on in France. In his work Reflections on the French Revolution, written in the fashion of a letter to an unidentified French gentleman (1790), he expresses himself in the following manner:
I cannot stand forward and give praise or blame to anything which relates to human actions, and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing color and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind....
..... I should, therefore, suspend my congratulations on the new liberty of France until I was informed how it had been combined with government, with public force, with the discipline and obedience of armies, with the collection of an effective and well-distributed revenue, with morality and religion, with the solidity of property, with peace and order, with civil and social manners. All these (in their way) are good things, too, and without them liberty is not a benefit whilst it lasts, and is not likely to continue long....
He then proceeds to present –in contrast with that revolution– his own theory of political and social change, the ordered manner of society improvement exemplified by the model of the English Revolution. According to that model, a violent replacement of institutions is unthinkable. On the contrary, changes are supposed to be done piecemeal and gradually. His explanation reminds me of the analogy used in the 20th century by a member of the Vienna Circle to represent the philosophical criticism of knowledge: it is like a ship which, on high seas, checks and repairs one by one its constituent parts, never interrupting its march.
The House of Lords, for instance, is not morally competent to dissolve the House of Commons, nor even to dissolve itself, nor to abdicate, if it would, its portion in the legislature of the kingdom. Though a king may abdicate for his own person, he cannot abdicate for the monarchy. By as strong, or by a stronger reason, the House of Commons cannot renounce its share of authority. The engagement and pact of society, which generally goes by the name of the constitution, forbids such invasion and such surrender. The constituent parts of a State are obliged to hold their public faith with each other and with all those who derive any serious interest under their engagements, as much as the whole State is bound to keep its faith with separate communities. Otherwise competence and power would soon be confounded and no law be left but the will of a prevailing force....
He then moves on to comment how the succession principle on hereditary monarchy, despite its stability, beneficial to the kingdom, has been broadly applied in cases of dynasty changes. This example serves him to explain how it is not absolutely impossible, in a well-organized society, to reconcile the firmness of rules with occasional deviations in their application. In the extreme cases wherein this leads to making mistakes, they are restricted to the offender party, without the spreading of its effects in general society. To act differently, to believe that the faults on a system can only be corrected through its total reconstruction, as French revolutionaries were attempting to do, is to fall into a vice which Burke does not doubt to describe as metaphysical perversity. He immediately proceeds to compare constitutional continuity with the transmission, in families, of property and life, always carried out gradually and by parts. Thus he draws the outline of the British democracy spirit, in accordance with what Karl Popper would much later call piecemeal engineering, opposed to the total engineering exercised by French revolutionaries and their socialist imitators (Popper, 1957).
There is more. The government does not directly derive from natural rights, as the Declaration of the Rights of Man and of the Citizen seems to assume; it rather constitutes a “contrivance of convenience” providing for concrete human necessities. Thus, in the final analysis, the State constitution and the corresponding distribution of powers, is not something to tinker with levity: it constitutes a delicate matter requiring great care. The science of building a State, or renewing it, is as experimental a discipline as any other empirical science. It is “a matter which requires experience, and even more experience than any person can gain in his whole life, however sagacious and observing he may be.” And he continues:
It is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society, or on building it up again without having models and patterns of approved utility before his eyes.
Even though it is true that natural rights exist –independent from the State–, when they show up in public institutions, they
like rays of light which pierce into a dense medium, are by the laws of nature refracted from their straight line. Indeed, in the gross and complicated mass of human passions and concerns the primitive rights of men undergo such a variety of refractions and reflections that it becomes absurd to talk of them as if they continued in the simplicity of their original direction. The nature of man is intricate; the objects of society are of the greatest possible complexity; and therefore no simple disposition or direction of power can be suitable either to man's nature or to the quality of his affairs.
Unavoidably, Burke’s ideas were employed by the reactionary European nobility to defend their privileges against the French Revolution. Nevertheless, his influence has been great in posterity, as a bastion of a libertarianism grounded on pragmatical imperatives of social life and not on abstract notions which can easily degenerate into their opposite, idolatry of the State, as history abundantly demonstrates.
The ideas of British libertarianism continued being popular beyond the 18th century, in England as well as in the European continent and the United States. Notwithstanding, the specifically French concept of political liberty –abstract and rationalist– began to displace the properly English concept of individual liberty, to such an extent that it became possible to wonder whether Great Britain, which at the beginning had repudiated the French Revolution, had ended captivated by it. No; in balance, Englishmen conserved most of the achievements ascribable to their 17th century Glorious Revolution. However, it is clear that to examine the ulterior development of the civil-liberties meme –as we have done– one has to direct our attention toward the other side of the Atlantic.
We have to make an important exception: John Stuart Mill. On his brilliant treatise On Liberty (1863), he takes up Locke and Hume’s ideas to their most lucid expression. Not by chance, that splendid discourse is appreciated the most, still today, in the United States of America. Therein the assertion is made that the only reason for which an individual or a community is justified in restricting another’s liberty, is self-protection. The well being, physical or moral, of other people is not enough to restrict their freedom. The only part of the individual’s conduct that may be interfered with is that which affects fellow human beings. In what concerns himself, the individual reigns as absolute sovereign. From that it follows his right to liberty of conscience, of thought, of feeling and of speech, practical and speculative, be it of a scientific, moral, or theological nature. The marrow of these thoughts is succinctly expressed on the following paragraph:
The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seem good to themselves, than by compelling each to live as seems good to the rest.
Especially important is his attitude regarding freedom of thought and expression, since it entails a utilitarian element related to the acquisition of knowledge, which creates a philosophical bridge between political liberty and the method of modern science. Let us read it in his own words:
The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
As it may be apparent to the attentive reader, the essential relation between the scientific method meme and this crown meme of civil liberty is exhibit herein in all transparency. Both memes can be viewed as founded upon a common basis, the search for trustworthy knowledge by means of the unrestricted contrasting of all opinions, without any a priori decision over which are acceptable and which are not. This decision should be determined only a posteriori, that is, through the confrontation with experience, in its two indispensable aspects: adequacy with the empirical facts and compatibility with other already validated knowledge obtained the same way. This intimate relation explains the fact that libertarian democracy and scientific method usually prosper and weaken together, and that both memes have spread throughout the world concomitantly. What we do to preserve one, we also do for the preservation of the other, and our neglect regarding one of them in our society will inevitably have repercussions in a poorer acquisition or a total loss of the other’s benefits.
There is a sense in which Mill's moral conceptions are superior to the ethical thought of the utilitarian philosophers of the 17th and 18th centuries. His epistemological grounding of freedom as a contribution to the advancement of knowledge represents a strong argument in defense of minorities dissenting from popular beliefs in a democratic society. It can function as a buttress against possible perverse applications of the utilitarian principle “the greatest happiness to the greatest number of people,” ground of the utilitarian ethics. It constitutes an extremely important anticipation of the contemporary drive to protect minorities all over the world on the much firmer basis of a deontological,330 rather than utilitarian, theory of human rights.
Note 323: One of the most important examples of this is the case of the conflicts between the
English monarch and the feudal lords during the Middle Ages, which resulted in the promulgation of the Magna Carta by King
John in 1215. Therein lies the important disposition that people can only be judged by their peers, basis of the modern
institution of the jury.
Note 324: Document subscribed by the members of the English parliament as the successful culmination of their long conflict with the king.
Note 325: The word was replaced during the 17th century by the expression, still in use today, “equal protection of the law.”
Note 326: Document approved on August 26, 1789 by the National Constituent Assembly, during the French Revolution. A few days before, the night of August 4, its members –priests, noblemen and bourgeoises– had relinquished all their privileges. A few years later, an era of terror and dictatorship was to begin during which the incipient first French Republic would founder, being finally replaced by Napoleon Bonaparte's Empire. The declaration survived as a distinguished piece of the ideal aspirations of humankind.
Note 327: See this chapter, THE FRENCH REVOLUTION AND THE BRITISH CONSERVATIVE LIBERTARIANISM.
Note 328: See Chapter 1, THE ACCUMULATION OF DESIGN.
Note 329: Burke distinguishes himself especially by his combat in favor of a fairer treatment of the habitants of the American colonies and his denunciations against the maltreatment of the population of India by the British companies.
Note 330: Deontological ethics (from Greek deon, meaning 'duty') is the approach to ethics that grounds it on the personal sense of duty, in contraposition to the consequences, good or bad, of the particular action.