Smith broadens his discussion of a rights‐​based theory of freedom with an overview of modern political philosophy.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In my last essay, I discussed two different conceptions of negative freedom. The first, which was defended by Robert Filmer, Thomas Hobbes, and other seventeenth‐​century absolutists, views freedom as inconsistent with restraints of any kind, including laws that prohibit theft, murder, and other rights‐​violating actions. Laws against murder restrain my “freedom” to murder, just as all laws that prohibit the violation of rights restrain my “freedom” to violate those rights. Freedom, properly considered, means the freedom to do whatever I wish, without the coercive interference of others, regardless of what it is I wish to do. All laws necessarily restrict freedom.

In contrast to this idea of freedom stood John Locke’s contention that the purpose of law is to “preserve and enlarge freedom,” not to abolish or diminish it. According to Locke, “where there is no law, there is no freedom.” Freedom denotes a social state‐​of‐​affairs in which individuals enjoy equal and reciprocal rights; it signifies the freedom to exercise one’s rights without coercive interference by others. I am free to the extent that I can use and dispose of that which is properly my own–or “property” in the broad sense, such as moral jurisdiction over my person, labor, and fruits of my labor–as I see fit. (It should be noted that Locke was not the first to defend this notion of equal freedom; far from it. But he is its best known and most influential proponent.)

What are we to make of these different conceptions of freedom, both of which are “negative” in character?

First, let me emphasize that I have no desire to defend one conception of freedom as its only “true” meaning. Word meaning is determined by conventional usage, and it certainly makes sense to say that even in a libertarian society people would not be “free” to steal, rape, murder, etc. My objection concerns those philosophers who claim that only the Filmer/​Hobbes notion is the correct idea of freedom, and that the rights‐​based conception, as defended by John Locke and other classical liberals, illicitly imports a value judgment into what should be a value‐​free definition.

The implication here is that libertarians engage in circular reasoning. They defend freedom as essential to the preservation of individual rights, but they proceed to define “freedom” in terms of those selfsame rights. In Marxian terminology, this is a thoroughly “bourgeois” notion of freedom, a conception that was specifically designed to protect property rights and that excludes, by definition, other notions of freedom, such as various “positive” freedoms.

I had hoped to explain and defend the rights‐​based idea of freedom in this essay, but it quickly became evident that the historical background required to understand this issue is far too complex to cover in one essay. I have therefore adopted a different approach. In this essay and in several to follow (I don’t yet know exactly how long this will take), I will discuss some general points about the development of modern political philosophy. Then, after sufficient background has been provided, I will once again zero in on the purely philosophical aspects of the rights‐​based conception of freedom.

A fundamental theme will recur throughout my essays on “Freedom, Rights, and Political Philosophy,” however far afield some may appear to wander from the issue of rights‐​based freedom. I wish to make it clear that Locke and other liberal individualists did not smuggle the notion of “rights” into their discussions of freedom as a method of reaching a predetermined ideological destination. Rather, the notion of “rights” was inherent in their debates with their political opponents. All sides appealed to rights; indeed, the major political controversy of the seventeenth century, which revolved around the notion of “sovereignty,” was thoroughly infused with rights‐​talk and would have made no sense without it.

I would make an even stronger claim, namely that the very idea of “rights” (in some form) is essential to political philosophy itself. I say this because of the role that the idea of the state has played in political philosophy, especially since the sixteenth century. The nature of the state, its justification, its proper functions–these and similar matters are dominant themes in political philosophy; and to the extent that we discuss the state, we are discussing an institution that claims to exercise coercive power as a matter of right.

It is obvious that the state is a coercive institution, one that deals with people by means of physical force and threats of force. But the state is also a normative institution–one that claims the right to exercise coercion and the right to function as the sole and ultimate arbiter of legitimate force within its territorial jurisdiction.

When, in the seventeenth century, Algernon Sidney differentiated de facto power from de jure power, he was appealing to a distinction with a long provenance in the history of political philosophy. To possess de facto power may be sufficient to compel obedience, according to Sidney; but only de jure power–power exercised as a matter of right–can claim moral legitimacy and thereby create a moral obligation to obey. De jure power, in short, is a matter of justice.

Augustine, writing in the early fifth century, presented a classic formulation of this issue. In a question that would be invoked for many centuries thereafter, Augustine asked: “Remove justice, and what are kingdoms but gangs of criminals on a large scale?” Then, drawing from an example given by Cicero, Augustine continued:

For it was a witty and truthful rejoinder which was given by a captured pirate to Alexander the Great. The king asked the fellow, “What is your idea, in infesting the sea?” And the pirate answered, with uninhibited insolence, “The same as yours, in infesting the earth! But because I do it with a tiny craft, I’m called a pirate: because you have a mighty navy, you’re called an emperor.”

Both the pirate and the prince use coercion to accomplish their goals (e.g., to expropriate the property of other people), and both threaten violent retaliation against those who disobey their commands and decrees. So what is the essential moral difference between the pirate and the prince–where “prince” represents any legitimate political authority? What moral principle or argument can bestow legitimacy on the actions of a prince when those selfsame actions, if undertaken by anyone else, would result in his condemnation as a pirate (or other type of criminal)?

The problem posed here is commonly known as the problem of political obligation. Isaiah Berlin phrased this problem in a refreshingly simple manner: “Why should anyone obey anyone else?” This, according to Berlin, “is perhaps the most fundamental of all political questions.”

Now, to say that we have an obligation to obey a government is merely another way of saying that a government has the right to demand obedience. A “right,” simply put, is an enforceable moral obligation, an obligation that we may be compelled to fulfill. Without this moral element of a right, all princes become nothing more than pirates.

It is impossible even to discuss who may legitimately use coercion and under what conditions without engaging in rights‐​talk, for every such discussion must distinguish between the power to do x and the right to do x. Without this distinction, political philosophy would come to a standstill and find itself unable to do anything other than make the most trivial of claims. This is what I mean when I say that some notion of “rights” is embedded in the very discipline known as political philosophy.

It is no accident that, beginning (roughly) in the late sixteenth century, the doctrine of state sovereignty and the liberal theory of individual rights developed along parallel lines and were applied to the same political problems. It is essential to appreciate this point if we are to understand why John Locke and his seventeenth‐​century contemporaries felt no need to provide rigorous justifications of natural rights. This was unnecessary because the doctrine of state‐​sovereignty, like the doctrine of self‐​sovereignty, depended on a theory of rights. There was no need to argue in detail for a premise that all sides accepted and, indeed, had no choice but to accept.

To claim that the state is sovereign over a given territory is to claim that the state has final authority in matters pertaining to the legitimate use of force within its jurisdiction, and that it has the right to enforce its decisions. These two elements–the right to render final decisions and the right to enforce those decisions–are among the most fundamental characteristics of state sovereignty, These are moral claims, and (as I noted previously) to call them “rights” is to say that they are enforceable moral claims. Hence the liberal theory of individual rights did not emerge as an ad hoc rebuttal to the defenders of state sovereignty and absolutism–as a foreign element, in effect, that was imported into a debate in order to score ideological points. Rather, the major concept in political theory at the time–political sovereignty–elevated rights to a pride of place in political debates. Liberals did not disagree with defenders of state sovereignty on issues such as whether rights can be justified or whether they are “natural” in some sense. Rights were presuppositions not of one side or the other in the sovereignty debate, but of both sides equally.

With the rise and triumph of the modern nation‐​state came the need to justify its claims to sovereign power. Critics of state sovereignty did not question the need for some kind of political power, generally considered. Rather, the state, having used force to triumph over the church, nobility, and other claimants to power, now had to justify its monopolization of power.

As we shall see, the individualist opponents of absolute state‐​sovereignty frequently framed their own theories in terms of self‐​sovereignty. This idea went by various labels. Beginning in the early seventeenth century, the label self‐​proprietorship (or some variant, such as property in one’s person) was fairly common. In the early nineteenth century, Josiah Warren and other radical individualists in America spoke of self‐​sovereignty, an expression that found favor with J.S. Mill and other some other English liberals. Later in that century, the English libertarian Auberon Herbert (a disciple of Herbert Spencer) popularized the term self‐​ownership, an expression that Spencer used repeatedly as well. This term has been accepted by many modern libertarians, thanks largely to its use by Murray Rothbard.

The idea of self‐​sovereignty, by whatever name it was called, meant that all rights ultimately reside in individuals, and that no legitimate government can claim rights that could not be possessed, in theory, by individuals. The notion of self‐​sovereignty became linked to the argument that all legitimate governments must be based on the consent of the governed, and this in turn led to various models of an anarchistic “state of nature” and to explanations (many of them highly implausible) about why individuals would voluntarily delegate some of their rights (or the power to enforce them–there were many variations on this theme) to a government.

We thus see that liberals did not pull their arguments from rights (including their conception of rights‐​based freedom) out of thin air, as if they were fouling a value‐​free debate with value‐​laden concepts. Rights were an integral and indispensable element in the debates over the moral foundation of political obligation and allegiance, a controversy that was anything but value free. In discussing and defending individual rights, Locke and his liberal contemporaries were simply doing political philosophy–just as modern libertarians are simply doing political philosophy when they oppose moral claims based on the supposed rights of government with their own moral claims based on a theory of individual rights.

There is much more to this story, as we shall see.