Two Institutional Concepts of Liberty

Isaiah Berlin famously distinguishes between two concepts of liberty—negative liberty as the liberty of non-interference, and positive liberty as the liberty of self-actualization. Though the dichotomy is certainly imperfect, it remains valuable as a stylized contrast between two distinct attitudes toward—if not thick theories of—liberty. Added to this well-known antimony are to other dichotomies: Benjamin Constant’s distinction between the liberty of the ancients—liberty through self-rule—and the liberty of the moderns—liberty through non-interference; and more recently the reformulation of a “neo-Roman” or “Republican” conception of liberty as non-domination, as opposed to the liberal conception of liberty as non-interference.

To these three dichotomies can be added a fourth—less remarked upon in contemporary discussions, but critical in structuring political and philosophical debate throughout the eighteenth and nineteenth centuries (including in an especially explicit debate during the French Revolution): the institutional debate over whether liberty arises from centralized, consolidated power, or from diffuse, corporate cracks between competing sources of authority. Put another way, this debate concerns whether liberty arises from an alliance between the one (king) and the many (people) against the few (aristocracy), or if liberty arises as a product of the antagonism between a powerful aristocracy and relatively weak central authority.

Theorists of Consolidated Liberty include Thomas Hobbes, Jean Jacques Rousseau, David Hume, Adam Smith, and Alexander Hamilton, while theorists of Corporate Liberty include Baron de Montesquieu, Edmund Burke, the Anti-Federalists, Alexis de Tocqueville, and Benjamin Constant.

To the them, liberty can only arise once the ravenous aristocracy is brought to heel by a centralized state. In Adam Smith’s words:

The power of the nobles has always been brought to ruin before a system of liberty has been established, and this indeed must always be the case. For the nobility are the greatest opposers and oppressors of liberty we can imagine.

The hostility toward the few does not only apply to landed aristocracies, however. Further developing this basic pattern of thought, thinkers like Hobbes and Rousseau transform this critique into a philosophical assault against any “partial associations” which threaten the unity and the coherence of the political whole. So, Rousseau explains,

when intrigues and partial associations come into being at the expense of the large association, the will of each of these associations becomes general in relation to its members and particular in relation to the state … there is no longer a general will, and the opinion that dominates is merely a private opinion.

Liberty requires the rule of the general will, and for the general will to succeed all private and partial wills must be suppressed. Liberty arises, in other words, when the state is the people. As Hobbes explains in his famous discussion “Of Persons, Authors, and Things Impersonated” in chapter XVI of Leviathan and illustrates vividly in that text’s frontispiece, political representation dissolves any distinction between the agency of the state and the agency of the individual. In developing this theory of representation, Hobbes and Rousseau apply the critique of aristocracy to all corporate bodies—be they nobles, independent townships, or the church.

Against this view, theorists of Corporate Liberty argue that freedom arises not from an empowered central government, but to the contrary from the cracks that form in a society rich with competing sources of authority. It is the conflict between the few and the one embodied in the mediating institutions of civil society that create liberty for the many. The rule of law arises not as a de jure act of political will from above, but through the de facto limits on centralized power established by overlapping spheres of authority. The Magna Carta, on this view, was a remarkable achievement in the history of liberty that was made possible only by the conflict between barons and a monarchy both jealous of each other’s power.

The first great champion of this view is Montesquieu, who takes such mediating institutions to be the essential distinguishing feature between despotism and civilized monarchy: “If you abolish the prerogatives of the lords, clergy, nobility, and towns in a monarchy, you will soon have a popular state or else a despotic state.”

The great fear of such theorists is that rather than establishing liberty, the alliance between the atomized many and the all-powerful state will create a new kind of despotism more dangerous than anything that has been known before. Rather than quote once more my favorite Tocqueville passages on the new “tutelary” character of democratic despotism, I’ll cite Constant:

How bizarre that those who called themselves ardent friends of freedom have worked relentlessly to destroy the natural basis of patriotism, to replace it with a false passion for an abstract being, for a general idea deprived of everything which strikes the imagination and speaks to memory! How bizarre that to build an edifice, they have begun by crushing and reducing to powder all the materials they needed to use... [Individuals] detached from their native soil, with no contact with the past, living only in a swift-moving present and thrown like atoms on a monotonous plan, take no interest in a fatherland they nowhere perceive and whose totality becomes indifferent to them, because their affection cannot rest on any of its parts.

Following Montesquieu, Tocqueville and Constant further elaborate the defense of corporate liberty by once again broadening the set of institutions that can productively serve to check the incessant centralization of political power. Feudal institutions like the aristocracy and municipal liberties are not the only check against despotism, and indeed in the new inescapable democratic age, radically new institutions must be found to serve this most basic function. It is in this context that we must understand Tocqueville’s careful study of local townships, the jury, voluntary associations, and so much more in Democracy in America. Just as a “new political science is needed for a world altogether new,” so too must new institutions be found in democratic societies to serve as substitutes for the swiftly disappearing sources of feudal, aristocratic power.

I myself lean more toward the side of the corporate theorists, in this debate. It seems to me that the unique character of European history arises precisely from the lack of any proper centralized state in the mold of the “oriental despotisms” that dominate the rest of world history. Liberty, property rights, and the rule of law all seem to have arisen through the cracks created by competition among antagonistic authorities, not by fiat from a singular, all-powerful political authority.

But the debate remains useful today in thinking through contemporary challenges of political development not only in the West, but throughout the world. The new Washington Consensus on the centrality of institutions for economic development demands an explanation of how those institutions emerge in the first place. Do underdeveloped states require a centralized government to smash entrenched interests and oligarchs in order to secure the conditions of economic growth and political emancipation? Or might such centralization breed ever-more corruption and undermine the rule of law, which may arise (surprisingly) only with the support of otherwise apparently extractive oligarchs. I see no clear answer to this dilemma, though it serves as a fine example of how economic history, political theory, and the history of political thought have much to teach one another.