This is our fourth installment in this this series, with the fifth and final post, Part 3, to follow anon. Here are Parts 1(a), 1(b), and 2(a).
Before we proceed with Professor Iyer’s conceptual and political introduction to liberty and liberties in a democracy, I need to get something off my chest: in the U.S. today, millions of Americans demonstrate an impoverished and often implausible knowledge (be it philosophical, political or constitutional) of liberty and liberties (as well as freedom more fundamentally and generally), an ignorance that encompasses democratic constitutionalism, political philosophy and theory, as well as basic morality and ethics. This is evidenced most conspicuously with regard to their beliefs and behavior during the COVID-19 pandemic, when those primarily on the Right believe they have a constitutionally grounded thus a legally protected “right” not to wear a mask to protect themselves and others from getting sick and/or dying (the liberty in question thought to arise from this right). In a future post, we will speak to the topic of “police powers” that are indispensable to explaining why no such liberty exists (as Steve Shiffrin earlier stated, the ‘government has a compelling state interest in requiring its citizens to wear masks in appropriate circumstances’). In Liberal democratic constitutional law, liberties are not absolute, even if they sometimes come close, as with the liberty of conscience or freedom of religion (or, as I would prefer, ‘worldviews’ and ‘lifeworlds’). And Professor Shiffrin also recently reminded us that constitutionally enumerated liberties are invariably “qualified,” and thus not absolute. In the history of political philosophy and politics, even with the most ardent or extreme libertarians, with few exceptions, understood that one’s liberties must be consistent with the liberties of others, and that liberties are limited or end when they interfere with the equal liberty or others or effectively if not predictably deny liberty or liberties to others, most vividly and importantly, when the exercise of one’s liberty directly causes some sort of unreasonable or unacceptable harm or enhances the risk of such harm such as, in our case, severe illness (including the ill effects of ‘post-COVID’) or death. This is but one reason why we rightly speak of the necessity for “equal liberties.”
Raghavan Iyer continues:
“The immediate implications of liberty must be seen in the context of a constellation of factors favorable to the maintenance of a system of liberties. These pertain to a free country, a free society, and a free people in contrast with and enslaved country, and authoritarian society, and a powerless people. Some favorable factors are readily seen and could be easily listed—the existence of a non-political civil service and a non-military police, the former mainly and the latter entirely an instrument of law rather than of policy; checks on delegated legislation and delegated jurisdiction; a considerable area of autonomy for individuals and organizations, with evident exemption from central control or pressure; a tolerance of novelty and a willingness to experiment; intellectual objectivity and a critical spirit; safeguards against conformity, dogmatism, and persecution; adequate avenues for the development of individual talents and capacities; the fearless performance of civic and personal duties; the criticism and correction of existing social institutions, traditions, and conventions; widespread concern for the promotion of tolerance and moderation, plurality, and flexibility in communal life; the general acceptance of rules to regulate competition between individuals and groups, within and between parties and other power-centers; the role of the State in hindering hindrances to the enjoyment of liberties by the weaker sections of society. [….]
Historically, liberties become the foundation of liberty, although liberty is not merely the fortuitous occurrence of liberties. Liberty can only thrive in an atmosphere of creative activity in which there are reasonable restraints on individual judgment so that all moral failures do not become legal crimes, and in which the power of self-determination and freedom of choice are sufficiently cherished for the individual to function as a person and a citizen, not as a mere subject or as a slave except in name. It is not always noticed by libertarians, all too conscious of the bitter struggles that led to formal liberties and their social sanctions, that real liberty, like true democracy, is inimical to any form of intimidation, manipulation, or coercion even to secure the most exalted ends. [….]
In totalitarian countries the Leviathan has almost swallowed up the right of the individual to his own soul, habeas animum, while in democratic countries there has been a growing tendency for the small man, habeas homunculum, to be sacrificed to raison d’état. There is no doubt that democracy is more conducive to liberty than any other system of government yet devised. It provides the necessary link between liberty and equality, though a democratic government is sometimes required by the people at large to promote equality even at the expense of liberty. Bergson assigned to democracy the role of the reconciler between égalité and liberté under the banner of fraternité. Historically, the struggle for liberty, the quest for equality, and the movement toward fraternity have been stressed almost as successive phases in the development of democracy. [….] Ideally, a proper democratic system can be effectively established only in a society of equals in which every citizen has the full liberty to realize his own ends and the moral responsibility to serve the purposes of the community. This being unattainable at present, we must consider the extent of freedom from executive restraint as the test of democratic efficiency and rely on various forms of voluntary association to safeguard liberty in a democracy. We can secure neither democratic ends through undemocratic means nor liberal aims through illiberal methods. If this is understood, it will be easier to see why democratic ends cannot be secured through illiberal means and why liberal aims cannot be achieved by undemocratic methods. Those who postpone or destroy present liberties in the name of future freedom are the friends of neither liberty nor democracy.”
Our fifth and final installment—Part 3—in this series will speak to some of the questionable when not troubling or dated assumptions “underlying the traditional models and modern systems of democracy and liberty.”
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