The Right Relation of Law and Liberty (Part 1)

Satirizing the Whigs of his day, whom he believed to be intent on tearing down the lawful constitution in favour of a license ingeniously disguised as liberty, John Dryden wrote,

Now it is not my concern here to enter into the political disputes of yore. The idea of the relation of law, taken in its particular and also most general sense, and liberty which he conveys, however, is one which I endorse wholeheartedly. I say this because I intend my remarks here to be made by preface to a longer post, or series of posts depending on the constraints on my time, discussing this problem. The angle I intend to take is that of the particular relation of the State to ‘law’ and to ‘liberty’. Here I will propose a concept of the interrelation of law and liberty, which is that law, both as a positive regulation and habitual virtue, is the basic condition for political liberty. In the next post I hope to take up some difficulties posed by Edith Stein in relation to this question in An Investigation Concerning the State.[2]

A people cannot have liberty if they are not governed by law. This stands true for positive law inasmuch as the law of the State at the very least creates norms for individuals to exercise their autonomy without violating another’s autonomy, and, when they do, to penalise such infractions. Liberty, understood as the free exercise of autonomous will, requires the existence of rules enforceable by some external force to the individual to exist with any degree of longevity. To refer to a time before Dryden’s poem, enough Roundheads sought such radical constitution change, they ushered in the confusion of the Interregnum; confusion resulting in a decade of unstable forms of government, resulting in the Restoration. In fact, it was found that the law of the constitution, especially when it provided stable norms fitted to the history and character of the people it governed, allowed for liberty to flourish. All that was needed was a tweak in the relative balance between Crown and Parliament, not a wholesale demolition of the institutional fabric of the State.[3]

Which brings me to the next conceptual level of Dryden’s verses. Obviously, he is not accusing his adversaries of literally wanting to go back to what was then considered to be the pre-political ‘state of nature’. Nevertheless, he seems to indicate that in the repudiation of the established laws and legal customs of the constitution, his adversaries seek to reinvent the State, returning the nation back to that hypothetical state of nature. This is an extreme accusation, but one which makes more sense if understood in the context of the first rebellion plotted by the Duke of Monmouth against his father Charles II against the succession of the Duke of York to the Crown, as the notorious James II. Dryden’s specific application may well be wrong. What he says, though, as a matter of principle contains some truth.

For the State does not in fact exist in abstract but subsists in the people who form it and exercise its authority. That is to say, the abstract notion of the State as distinguished from its officers is a distinction in idea, not in reality where the concept cannot be divided from its ‘humanity’ without making it unreal. If the State then is not bound by a stable constitution, then governance cannot be sustainably performed, and thus law is not enforced in the land. Consequently, there cannot but be a multiplication of collisions between individuals spheres of autonomy which also remain unresolved, like a busy road junction where the traffic lights suddenly malfunction. Nevertheless, this is not as far as the concept goes. For if the State exists simultaneously with and within its officers to the extent that and when they exercise their specifically public authority, it is affected by their personal characters to some degree. It must also be the case that the people governed by the State also affect it by their characters inasmuch as, if it is a popular government, their characters will shape government directly, or if it is a government imposed by force, their characters will affect policy in any case.

So, it seems that the virtues and vices of public officials and the people whom they serve have a direct bearing on the State, if we accept that the State, in fact, subsists in human persons. I think here we have come upon a clue to understand an enigmatic paragraph in Simone Weil’s Pre-War Notebook which says:

“Laws, the only source of liberty. That is why, on the level of primitive religions, everything that is a rule (magic formulas, rites, taboos) represents a great advance”.[4]

Thus, also our points come to a single coherence. That is, individual self-regulation (even in a rudimentary form) by right conduct must provide the groundwork for a properly functioning State because, before the concept of the State even becomes engaged, the persons who form it exist. As forming it, their characters, taken singularly and in their interrelation, shape the State. It is in this context that the law of the constitution is made and operates. Liberty, seen in this context, requires positive law, indeed, but also the law of self-regulation in virtue which ensures stable human relations and provides stability to the State itself, which is nothing other than a specific modality of human relationships whereby public authority is wielded. Law, understood thus, not only secures liberty in the State, but, in its more fundamental sense of virtue, also is the precondition and therefore “source of liberty”.

---

[1] John Dryden, Absalom and Achitophel vv. 51-56 in The Works of John Dryden (Wordsworth Editions 1995) 50

[2] Edith Stein, An Investigation Concerning the State (trans. Marianne Sawicki, ICS Publications 2006)

[3] I use ‘institutional fabric’ with intention, to distinguish it from the ontic fabric of the State – cf. Edith Stein, ibid, 117.

[4] Simone Weil, First and Last Notebooks (trans. Richard Rees, Wipf & Stock 2015) 6