Courting Lady Liberty

Reviewed by Henry Olsen

Modern Liberty and the Limits of Government
by Charles Fried
W.W. Norton & Company, 2007, 217 pages.

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Fried believes that the distinction between things that are privy to regulation by the community and those that are not must rest on unambiguous pre-political, hence natural, rights; in other words, they comprise a sphere or “bubble” of individual entitlement that no state or community can legitimately encroach upon. He identifies two fundamental rights that meet these criteria: Freedom of thought and freedom of sexual expression, to which he dedicates chapters four and five of his book.

Freedom of thought, or “liberty of the mind,” argues Fried, “is the preeminent freedom, different in kind and importance from all others.” Following the English philosopher John Stuart Mill, Fried perceives this freedom as a basic expression of self-ownership. While the government may restrain physical freedom in order to protect the rights of other people, it cannot do so in regard to one’s individual judgments. This is why, according to Fried, freedom of thought “spells the limits of community and its claims.”

And yet, our minds are not wholly autonomous: They are constantly exposed to and shaped by outside influences. Fried demonstrates this simple truth by returning to the issue of the Quebec language laws:

Our minds are not like computers encased in our skulls and running on machine code waiting to be translated into whatever application is installed and activated…. We think in language…. And whether or not it falters, the intent of the language law quite clearly is to get into our heads, for if thought is unavoidably thought-in-a-language, then whatever translating we may be doing, what comes out is thought in French. That means that our thought as it reaches others is not quite the thought we would have chosen. It is in part dictated by others.

Fried then correctly moves from this observation to note, “If the very language of our thoughts is a resource constructed and shared by others, then even the claim to self-ownership of our minds is undermined.” To circumvent this admission and its ominous implications, Fried falls back on an a priori assumption:

My responsibility for my judgments is unavoidable. If we do not take responsibility for our own judgments, we might as well give up on thought and argument, on trying to convince others and being open to being convinced by others.

This is not unreasonable. In essence, he is saying that belief in the individual’s freedom of the mind is as vital to human existence as the point is to geometry: Take either away, and the essence of what remains is decisively changed. Geometry without points is not geometry; human existence without individual reason and speech is not human.

But this formulation raises another question. Fried has already justified regulation of physical freedom, because it takes place in relation to others, and hence inevitably produces externalities, positive or negative. But are the workings of the mind so different as to be free of externalities? Can we really draw such a sharp distinction between the mental and the physical in this regard?

The difficulty of distinguishing between rights of the mind and rights of the body becomes most apparent when one considers the book’s chapter on sex. Fried argues passionately that sexual behavior ought to be free from regulation because “if the sex is consensual, then the joining of the two personality bubbles is just about as close as you can get to the irreducible heart of self-ownership.” Throughout this chapter, Fried never mentions that sex might have externalities, i.e., that it might have physical and non-physical consequences for others. Obviously, this is a serious oversight. For starters, sex can give rise to deadly diseases such as aids, which in turn create severe public health problems. In the same manner, the number of children produced by sexual relations has enormous social significance: Societies are often forced to address the demographic repercussions of having too few or too many children through collective action.

Now, a modern, wealthy society can address these externalities without regulating sex directly. But if there is an obvious, natural, extra-political right to unregulated sexual behavior, as Fried claims, then such a right ought not to be contingent upon our membership in a modern, wealthy, democratic society. To see this, we need only consider the possible responses of a pre-modern society to these sexual externalities: If half of all children die before the age of majority, is it wholly illegitimate for a society to create a legal regime that encourages marriage and childbearing? If there is little understanding of the process of disease and no modern medicines, is it wholly illegitimate to forbid certain sexual practices?

Now let us consider the non-physical externalities of sex. Fried makes light of these, reducing them to the claim that people are disturbed “at the very idea” that two people, like gays, are having sex of which others disapprove. But is this distaste really different in kind from the type Fried feels at the thought of people suffering in the streets of Calcutta—the suffering he views as legitimate justification for government intervention?

Fried ignores the fact that there are very real non-physical sexual externalities with which modern societies are grappling. There are discernible cultural differences, for example, between societies in which children are raised in stable, two-parent families and those in which children are raised in single-parent households, a difference that is compounded if the household in question has been formed as the result of an illegitimate birth rather than a broken marriage. One can argue about how to deal with these externalities, and surely we can all agree that explicit bans on sexual behavior ought not to be our first line of defense. But any reasonable public response short of that rests on changing the ratio of costs and benefits society bestows upon certain sexual practices through its public subsidy programs, divorce and custody laws, and the like. If sex is legally unassailable, then these laws, too, must be suspect. The fact that they go unmentioned in Fried’s book suggests that, while he is aware of the threat this poses to his argument, he has no real solution to the problem.

The difficulties Fried encounters in attempting to establish a “pre-conventional, deeper-than-political” account of liberty bring us back to the starting point of the discussion. They also remind us, by way of contrast, of Aristotle’s assertion, near the beginning of his book Politics, that man is by nature a political animal. By this, the Greek philosopher meant that a man’s habits and actions are unavoidably shaped by his political environment—his “regime,” as it were—and that, as such, a man has no pre-political claims upon the regime under which he lives. The problem for Fried, and for us, is this: Can we preserve and protect the liberty of the individual without a foundation of pre-political, natural rights?

The answer ultimately depends on whether one thinks that societies can act justly. For Aristotle, justice is an act of prudential reasoning, or the application of the facts at hand to certain principles that suggest certain tendencies, but do not necessarily compel certain outcomes. It is a society’s devotion to and practice of justice that Aristotle uses as the dividing line between legitimate and illegitimate regimes. One can, as modern men do, disagree with Aristotle as to what justice is without disagreeing with his observation of how legitimate societies act, and it is in this vein that a defense of liberty can be established without recourse to a hard theory of natural law.

Now, many modern thinkers believe justice of this sort is impossible, holding instead that all such principles are mere exertions of will and personal belief to which others need hold no allegiance. Like Fried, I am not a metaphysician, so I will not attempt to refute this idea philosophically. In this regard I am more like Samuel Johnson, who, when confronted with the argument of the idealistic philosopher Bishop George Berkeley that matter does not exist, simply kicked a rock and uttered, “I refute it thus.” I think it is clear that societies can act justly because I observe that they do act this way. And with respect to the problem Fried outlines—the problem of defending liberty in the modern society—he inadvertently provides us with the principle of justice upon which such a political defense of liberty can be based.

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