Liberty, Freedom and the Lessons of History

There is a point of view that suggests that the current rhetoric on “freedom and rights” derives from American conceptions of individualism and individual freedoms. This point of view has been articulated by Nicky Hager who expressed a justifiable concern that many of his associates were being swept up and high-jacked by unsavoury elements whose principles and values were antipathic to theirs.

In his discussion however, he made the following observation about the concept of freedom. In suggesting that there is a Trumpian influence through the rhetoric of many of the protesters he observed that US ideas about freedom meant

“freedom of the individual to do what they like and stuff everyone else. In New Zealand, the dominant values are much more about community and caring for each other. Freedom sounds good, but it’s a slogan for deeply conservative and unattractive ideas that deny or avoid the responsibility we have for others.”

Hayden Thorne makes a similar suggestion within the context of the rhetoric about the rights of the individual to refuse vaccines and keep a jobs.  He argues that this is an import from the United States and goes on to suggest that first it corrupts the importance of American constitutional freedoms and shows a serious misunderstanding of our culture and constitutional structure.

To suggest that the concepts of individual rights and freedoms are an import from the United States is incorrect.

Freedom  – or liberty as I prefer to call it – is not a peculiarly American ideal and historically its concepts extend further back in history than the American Revolution.

Perhaps one of the most articulate and eloquent expressions of the nature of liberty (or freedom) came not from America but from the pen of the English philosopher John Stuart Mill in his classic “On Liberty”.

Mill considered that the tyranny of government needed to be controlled by the liberty of citizens.

 There were two ways in which this came about. Citizens had inherent rights and citizens thereby established constitutional checks on the government which, with the consent of the community, represented its interests. These checks imposed conditions on the governing power, thus preventing its absolute exercise.

In some respects this hearkened back to Enlightenment thinking about the nature of Government expressed by Thomas Jefferson (along with John Adams and Ben Franklin) in the Declaration of Independence

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

We can see in that statement the emphasis is on individual rights. The duty of Government is to secure or ensure these rights and then powers of the Government to do so derive from the consent of the governed.

However, although these ideas received their best known expression in the Declaration of Independence they were founded upon the writings and thinking of the English philosopher John Locke and in particular his Second Treatise on Government. Locke identified life, liberty and property as the three fundamental rights and that a Government existed, among other things, to promote public good, and to protect the life, liberty, and property of its people.

Thus we can see a thread running through the argument of liberty as an aspect of individual identity which should be protected by and yet from the Government. If a Government fails to ensure the protection of life liberty and the pursuit of happiness, the consent of the governed may be withdrawn and the Government loses its mandate to govern. But Mill was very clear on the extent of government power as it affected the individual

“That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant … Over himself, over his body and mind, the individual is sovereign.”

This did not arise from a concept of natural rights because Mill based his standard on utilitarian principles and arising from that there were three basic liberties. Mill ranked these in the following order:

1. The freedom of thought and emotion. This includes the freedom to act on such thought, such as the freedom of speech
2. The freedom to pursue tastes (provided they do no harm to others), even if they are deemed “immoral”
3. The freedom to unite so long as the involved members are of age, the involved members are not forced, and no harm is done to others

Mill conceded that in certain situations and circumstances  these freedoms can be overridden but in modern and civilized society there was no basis or justification for their removal.

As has been noted, Mill ranked freedom of thought as the most important basic liberty. Opinions ought never to be suppressed. Indeed he recognized that there may be false beliefs, beliefs that are partly true and those what are wholly true. All of these provide some benefit to the common good. He wrote:

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.

One of the major criticisms of the current “rights” or “freedoms” rhetoric is that it is selfish and self-centred. There are several ripostes to this.

The first is that rights in and of themselves are inherently individualistic. Individuality is by definition the thriving of the human person through higher pleasures as Mill put it. Individuality promotes creativity and diversity and, as a corollary to that, conformity carries with it dangers.

Secondly, the word “selfish” in modern parlance is a term of criticism rather than a term of celebration. The first objective of an individual is to ensure his own survival. Only then can he enjoy the liberties that accompany that survival. “Selfish” is used to describe this but “self-interest” and “self-determination” probably are better encapsulations of these aspects of individual liberty. As opposed to this is altruism.

Altruism is all very well if it is freely assumed as a conscious choice. The problem is that enforced altruism – that it is a moral obligation to live for the sake of others – is a moral obligation that at times is incorporated into law. But there are frequently times when enforced altruism challenges self-interest or requires an individual to accept a lesser enjoyment of life than that they may otherwise achieve by virtue of their own efforts.

In considering, therefore, the nature of liberty, Hager’s comment “freedom of the individual to do what they like and stuff everyone else” – is not only a rather ineloquent albeit incorrect articulation of an aspect of self-interest and self-determination but it is wrong. Hager balances this against what he describes as what he describes as New Zealand values of being more about community and caring for each other. In this way he argues that rights-based rhetoric is inimical to the caring community but it is not. A community is comprised of individuals rather than of a hive-mind.

Each individual enjoys liberty as described by Mill. Within that liberty there is the liberty of choice – the choice to remain aloof from or become involved as John Donne put it “in mankind”. It is my choice to care for my neighbour and to assist my neighbour but not to the detriment of my own existence. Liberty is not for the purpose of selfish indifference which may be the real root of Mr Hager’s complaint.

But liberty ensures that that a person should be left as free to pursue his own interests as long as this does not harm the interests of others. Mill’s system of liberty was intended to bring greater benefit to an individual than physical or emotional coercion. This means that a person may, without fear of sanction, do harm to himself. The only time that a Government should impose a sanction on a person would be for neglecting to fulfill a duty to others (or causing harm to others), not the vice that brought about the neglect.

The difficulty that has arisen lies in the polarization of points of view. For some extraordinary reason those who advocate for liberty are being equated with organisations that have little interest in the true nature of liberty or freedom characterized by Mill or by Enlightenment thought. There is little doubt that some of those organisations are fellow travellers with those who currently advocate for freedom or for liberty but this does not mean that they have high-jacked the theories of liberty nor the practice and reality of liberty.

Rather it seems that certain elements seem to apply a stereotype to those who advocate for freedom that may not be justified and that, like most stereotypes, ignores individual difference and diversity.

This leads me to a few observations on Mr. Thorne’s position. His starting point is that we should learn from history, but he has overlooked the history of the philosophical underpinnings of liberty . That is demonstrated by his assertion that “individual rights dialogue was corrupted by the American right – in particular, the religious right – to protect what it saw as important, at the expense of other groups in society. Debates about abortion and gun control became infected with an emphasis on individual rights.”

I would suggest that the individual rights dialogue referred to by Mr Thorne pre-existed the 1970’s and the rise of the religious right, as I have already demonstrated[1]. That the dialogue started to be used as a justification for elements of various societal debates is neither unusual nor concerning.

Indeed the debate about abortion in the US is between the individual self-determination that a woman has to terminate a pregnancy on the one hand (grounded as Mr Thorne will be aware from his study of Roe v Wade and the cases that preceded it like Griswold v Connecticut not only in individual rights but underpinned by privacy considerations)  and the rights of the unborn child (as an individual) on the other. These tensions are well known and common when the law and differing moral standards collide.

The debate about gun control is grounded upon the various nuanced interpretations of the Second Amendment to the US Constitution and again involves a conflict between rights – one grounded in a constitutional instrument and the other on aspects of individual safety – again a tension between competing interests with which the law is familiar.

I do agree with Mr Thorne that to try and import US Constitutional theory into New Zealand law misunderstands our constitutional arrangements. Unlike the US Constitution and its Amendments, we do not have a “higher law” that can be employed to test the legitimacy of Acts of Parliament. The New Zealand Bill of Rights Act 1990 (BORA)  is more an aspirational piece of legislation than a constitutional one. It argues that in interpreting the law Judges should apply a “Bill of Rights friendly” approach – I know this is a gross oversimplification of the nuances of section 6 BORA and for that I apologise. On the other hand there is a specific provision – section 4 – that prevents a Court from holding that an enactment is invalid because it is inconsistent with the Bill of Rights Act. Thus it is not possible for a New Zealand Court to declare a piece of legislation unconstitutional as the US Supreme Court has been able to do since the early Nineteenth Century.

But that does not mean that the various individual rights of life, liberty and the pursuit of happiness and property have vanished, simply because constitutional arrangements are different. Although BORA may not occupy the supreme position of the US Constitution, it does articulate a number of rights such as freedom of expression (to impart and receive information) in section 14, freedom of movement in section 18, freedom of association in section 17, freedom of peaceable assembly in section 16, freedom of thought, conscience and religion in section 13, the right to refuse to undergo any medical treatment in section 11. These and the other rights contained in BORA (I have cited a brief selection)  are a bottom line. If the Government wishes to enact legislation that is inconsistent with BORA the Attorney-General must advise Parliament – section 7. That advice has rarely prevented inconsistent legislation being enacted but at least the Legislature is put on notice.

Furthermore any existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part – section 28. Thus the rights in BORA are not exclusive.

Another important point about the BORA rights is that they are primarily individual rights and provide a measure against which the acts of the legislature, executive and judiciary may be tested along with the actions of any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law. Thus BORA acts (or should act) as a restraint on Government power which may involve interference with the rights of individuals.

It will be well-known that over the last two years the powers invoked by the Government have infringed upon and have abrogated many of the rights of New Zealand citizens that are contained in the BORA. In fact the exercise of these powers have resulted in a reversal of the principle that everything that is allowed unless it is prohibited to one (during lockdowns) of everything is prohibited unless it is allowed.

It is therefore not unexpected that individuals may feel concerned or upset that their individual rights have been and continue to be infringed, and that they may wish to express themselves and their dissatisfaction. But in doing so they are calling not upon Trumpism or the reinterpretation of rights rhetoric by the American religious right but on a long history of protest against the wielding of arbitrary Government power against individuals that goes back beyond Mill and Locke and indeed as far back as the Glorious Revolution of 1688 and the Petition of Right of 1628.

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[1] I imagine that Mr Thorne is familiar with Rick Perlstein’s tetrology “Before the Storm”, “Nixonland”, “The Invisible Bridge” and “Reaganland”. If he is not I recommend them.

A Century of Crisis?

Simon Wilson has written an interesting article about why he is afraid for New Zealand and the US. In it he revisits a number of themes that are dear to his heart and about which he writes frequently. This first part of a two part journalistic mini-series gathers together those themes under an umbrella of fear and concern that possesses Wilson and his world-view. Yet he holds out hope for the future and Part 2 will make an interesting read.

However there is a section in Part One where Wilson has either overlooked, forgotten or ignored history in developing the rhetoric of his polemic. He says:

THE WORLD has changed. We’re into the third decade of the 21st century and if it wasn’t clear from 9/11 and the GFC, it surely is now: this is the Century of Crisis.

The most recent crisis is Covid 19.

But does the first twenty years of the 21^st Century present us with a more crisis ridden environment than any other. One has only to look back at the twentieth century which saw two global conflicts – World Wars 1 and 2 although Philipp Bobbit in his excellent “The Shield of Achilles” considers the inter-war period to be a pause in what was a continuing conflict. There was a global pandemic – Spanish flu.

There were a number of mini-crises leading up to World War 1 which characterized the last few years of the nineteenth and the first 14 years of the twentieth century. The Fashoda crisis of 1898, The Boer War which began in earnest in 1899 and ran into the next century, the various confrontations in Morocco, the Balkan Wars of 1912 – 1914. And these are only the problems facing Europe. There were rebellions in China, a war between Japan and Russia and finally the assassination in Sarajevo which was the spark that ignited the explosives of world conflict.

After the 1914 – 18 Conflict there were on-going crises – economic in the form of the problems facing Germany and finally the Great Depression – political especially in the form of the rise of fascism and the continuing crises involving Germany with the Occupation of the Rhineland, Aschluss, the Sudeten Crisis and finally the invasion of Poland which started (or revived) international warfare, not to mention the Spanish Civil War.

Following World War II there were a number of crises including the on-going Cold War, the Berlin Crisis of 1948 and 1961, the Soviet invasion of Hungary in 1958 and the suppression of Prague Spring in Czechoslovakia in 1968, the Cuban Missile Crisis of 1963, the Vietnam War, the economic crisis in 1987 – which hit New Zealand worse than many economies, the Asian financial crisis on the 1990’s  – and the Gulf War of 1990 – 91.

So to describe the present century as a Century of Crisis overlooks the historical record.

The reality is that EVERY century has its share of crises. Each poses its own challenges. We are not unique when the historical record is considered.

Perhaps instead of characterizing these first few years as indicative of a Century of Crisis they could be seen as heralds of yet another century of crises. What has happened so far hardly justifies the dignity of capitalisation which suggests a uniqueness that is not present.

History’s Distant Trumpet

I must say that I have been observing the activities of President Trump with a sense of deja vu or, as I have put it in the subject line, some notes of history’s distant trumpet.

 

 

There seem to have been a number of occasions within the various structures of what could be called participatory democracies or limited participatory democracies where there has been a content between the legislative and executive arms of government. I exclude the city states of Classical Greece and the activities of the various tyrants because of the disparity of constitutional arrangements but there are certain parallel between the decline of the Roman Republic and the crisis that faces the American Republic.

 

 

In the Roman example from about 146 BC – 13 BC there was an erosion of constitutional arrangements  where individuals such as Lucius Cornelius Sulla, Gnaeus Pompieus Magnus, Gaius Julius Caesar and Gaius Octavius Thurinus (later Gaius Octavius Caesar and finally Augustus) acting as they considered in the best interests or the Roman Republic, sought to cure the ills that beset it.

 

 

Of course there was a large amount of self interest involved, particularly on the part of Gaius Julius Caesar. Perhaps the only one of those who sought “to make Rome great again” who was acting for the benefit of the Republic was Sulla, but his methods left much to be desired. In addition he was aligned with the “optimates” – the conservative traditionalists of Rome – rather than one of the “populares”. But what happened was a gradual erosion of the participatory aspects of the Roman Constitution and the substitution of an arrogation of power by an individual. This, of course, reached its zenith with Augustus and the ultimate achievement of the Principate and in many respects Augustus was the smartest politician of them all because he maintained that he was not interested in the power that in fact he possessed.

 

 

But gradually over the period in question the democratic institutions and participatory methods of the Senate and the voting arrangements gave way to government by decree by small groups (the Triumviri) or individuals (in the case of Sulla and Gaius Julius Caesar as dictators).

 

 

The biggest difference between what happened to to Roman Republic and today’s US crisis is that all of the powerful individuals (and others such as Gaius Licinius Crassus, Gaius Marius, Marcus Junius Brutus and Gaius Longinius Cassius) managed to raise their own military forces to back them. Gaius Octavius acknowledges this in the first few lines of the res gestae – http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Augustus/Res_Gestae/1*.html

 

 

President Trump doesn’t have the power to raise his own private army and I would hope that if he attempted to use his powers as Commander in Chief to erode the Constitution he would receive a pushback. Even so, the power shift from the people to the President carries with it some of the notes of that distant trumpet. (For further reading see Catherine Steel “The End of the Roman Republic 146 – 44 BC” Ronald Syme “The Roman Revolution”, Tom Holland “Rubicon” and Carson McCullough’s novelisation of the period in her “Masters of Rome” series.

 

 

As a final thought have a look at a bust of Gnaeus Pompeius Magnus. Am I imagining a resemblance to President Trump?

 

 

One of the joys of a summer holiday in New Zealand is the opportunity to really dig into some serious reading. Although it had occurred to me before reading Diarmiad McCullough’s excellent biography of Thomas Cromwell, I was even more struck by the similarities of the governing styles of Henry VIII and President Trump. Like Trump, Henry was pretty merciless with those who displeased him and Cromwell – his arch fixer – was one of those victims. But what is interesting is the way that Henry governed during what Professor Geoffrey Elton called “The Tudor Revolution in Government” – a concept disputed by McCullough.

 

 

Henry was a prolific user of Proclamations as a means of getting things done. A review of the proclamations of his reign reveal rules and regulation addressing most aspects of day to day life in England. My especial interest in Proclamations focussed on those involving the printing press and the dissemination of ideas, but what is important is that although there may have been statutes that set out broad rule, proclamations were the day to day machinery by which those rules were put into effect. As the break with Rome proceeded and Henry began the land grab that ultimately ended with the dissolution of the monasteries (this is a gross simplification of a very complex series of activities) he insisted upon a legal basis for his actions validated by Parliament in the form of legislation.

 

 

Once the legislation was enacted, proclamations attended to the machinery side of the law. Indeed, any doubt about the legal validity of proclamations was dealt with by the Statute of Proclamations (I think it was 1536). Proclamations therefore allowed Henry to legislate by this means as well as with the help of Parliament.

 

 

If you have a look at the way Henry behaved – mercurial, unpredictable, impulsive, dictatorial – one can draw many parallels with the behaviour of Trump. I would not go so far as to say that proclamations were the sixteenth century equivalent of tweets. Perhaps their parallel is the Executive Order so beloved by this President and others before him. Furthermore, Henry and President Trump share an imposing physical presence although I doubt that Henry would favour the long tailed tie preferred by the President.

 

 

I recommend McCullough’s book on Cromwell. That said, it is not an easy afternoon read and is demanding and detailed. I have some familiarity with the events covered which made it a bit easier but that said I found myself reading a chapter at a time and taking an hour or so to digest what I had read. It provides an intellectual and academic backdrop to Hilary Mantell’s novels on Cromwell, the third of which, I understand, is on the way.

 

 

There are many other notes of history’s trumpet which I could advance. None of the parallels above or any others that there may be are on all fours with current events but many of the underlying themes are the same. The Stuarts tried to govern without Parliament and that ended badly for Charles I and to a lesser extent James II.

 

 

I suppose the overall lesson is that politics and democratic institutions are fragile things that carry within them the seeds of their own downfall. I hope that the present crisis in the US resolves itself in favour of the dream of the Framers. I often ask myself what Tom Jefferson or James Madison would think of things today and I imagine that there would be mutterings about the tree of liberty needing a bit of nourishment – need I say more?

 

 

I guess my biggest concern is that somewhere along the line the President may just step over the line and put the Constitution to one side either by completely ignoring Congress, governing by proclamation (Executive Order) or (heaven forbid) ignoring the wish of the people should they go against him in 2020. I don’t think it is impossible that he would ignore the will of the people and interpreting an electoral loss as a victory.