Dr. Samuel Gregg – The Challenge of Ordering Liberty: Constitutionalism and a Free Society

Dr. Samuel Gregg is Director of Research, Acton Institute, U.S.A.
Seminar on 24 November 2004                                                                                                

Introduction

In contemporary Europe, perhaps no subject is as controversial as the idea of a European Constitution and the question of whether it should be ratified by the Union's member states. In one sense, this is nothing new insofar as the precise form, nature, and origins of constitutions has been debated throughout Europe for centuries. One can go back to the famous 12th century investiture controversies that pitted Emperor against Pope. In more recent times, the English Civil Wars culminating in the Glorious Revolution reflected arguments about the precise degree of authority enjoyed by different organs of state and the exact relationship between these bodies. The post-World War periods were marked by attempts, some more successful than others, to deal with such questions. This is not just true of the obvious case of Germany, but also of France, which has had not one, but two constitutions since 1945.

But what is especially interesting about the current discussion about the European Constitution is the relative absence of reflection upon the moral ends that constitutions are supposed to serve. Yes, the constitution does bring together the many treaties and agreements on which the EU is based. No doubt, much of the discussion about ratification will revolve around very specific questions about the implications of particular clauses for member-nations' sovereignty. A discussion, however, of the moral ends that constitutions serve is, I suspect, unlikely.

Discussion of the moral ends of constitutions is, however, surely essential, given that much pre-modern and modern constitutional theory has traditionally been concerned with the question of limiting state power in order to preserve the liberty and integrity of individuals, families, and other non-state associations. The preservation of such liberty is widely regarded not simply as “useful,' but as a morally worthy end. But even within the confines of this consensus, there is another, perhaps more significant debate. It is between those who value liberty because it is a necessary prerequisite for human flourishing in an Aristotelian-Thomistic sense, and those who are wary of associating human autonomy with any idea of the good or the oughts of human choice. This is a vast and complex discussion, but I would like to devote some time this evening to suggesting that a constitution that takes human flourishing—or what I will call “integral liberty' —seriously is more likely to protect human freedom than one that rejects any linkage of liberty with the good. [1]

The State, Freedom, and the Common Good

Over time, the state has assumed a variety of guises. The Greek polis' association with the pre-Christian deities contrasts dramatically with the prevailing liberal-democratic view of government and its connection with the idea of rights. Yet despite these differences, the state's meaning for human freedom is an eternal question. The philosopher Alexis Tocqueville always reminded people that, even after the radical changes wrought in the social order by the French Revolution, the extent of state power remained an essential question.

A significant debt is owed to the decision of many modern liberal thinkers to focus on how to limit state power. Their research has yielded a rich literature on subjects such as the ability of constitutions to protect individual freedom. This overriding concern for autonomy underlies the thought of modern liberal scholars such as Ronald Dworkin and John Rawls . In seeking to limit state power constitutionally, modern liberal theorists have generally avoided making any reference to the good, the truth, or the virtues. Many modern liberals are also wary of those who aspire to use state power to pursue some greater good. There are sound reasons for this. Such aspirations have in the past been justified by reference to the will of the Revolution (Jacobinism), the Volk (Nazism), or the proletariat (Communism). At an even more basic level, Sir Thomas More was surely right to surmise that “unlimited power has a tendency to weaken good minds . . . even in the case of very gifted men.' [2]

What modern liberals have been less willing to consider is that an absence of some reference point beyond choice or preference can open the road to more subtle forms of tyranny. In their concern for liberty, some modern liberals may have actually have placed freedom in danger.

Central to this discussion is a clear grasp of the nature of the common good of the political community. In any one society, it is possible for human beings to pursue human flourishing in literally countless number of ways. For while the virtues may be limited in number, the precise manner in which they are realized can be very different. We also know, however, that it is very difficult for human beings to realize the virtues without some form of association with others. This reflects our condition as social beings whose capacity for self-reliance is limited.

Many forms of associative action are directed to a common basic good, even if the acts themselves are different. A person at church may choose to listen to the priest's sermon in order to deepen his commitment to certain beliefs about the transcendent. But the priest himself has chosen to speak the words because he has devoted much of his life to the same good of religion. Moreover, both listener and speaker are engaging their reason in pursuing this good, and are thereby involved in intrinsically valuable practical reasoning. We thus see that such basic goods are indeed “common' goods because they may be participated in innumerable ways by infinite numbers of persons.

Not all types of associative action have the same good as their end. There are, for example, what Aristotle called relationships of utility. In these cases, two or more people agree to observe certain conditions which in their totality constitute an instrumental common good that enables all people involved to pursue different ends. Two people attending a lecture may, for example, agree to be quiet when the professor is speaking: the first because of his choice to assimilate the knowledge imparted by the lecturer; the second because she is painting a portrait of the lecturer.

While families and intermediate associations establish some of the conditions that facilitate our ability to participate in the basic goods, no one community can promote and protect the conditions that assist all people to achieve human flourishing. No single business, for example, can provide for the widely diverse and reasonable material requirements of any one group of associations or individuals. The situation is further complicated by the fact that in any one cluster of individuals, families, and associations, there will always be disputes concerning the reasonableness of many actions. Thus a need exists for some organization to resolve some such disputes in a formal and authoritative manner.

Law is one means by which such coordination may occur. Law itself is not an expression of the will of any one individual or any one group. It should reflect the reasoned will of a wider community that encapsulates many individuals and associations. This wider grouping may be called a political community. The requirement for such a community becomes more evident as the range of different, sometimes incompatible, possibilities for reasonable choice by individuals and associations continues to expand. It therefore becomes increasingly difficult to reconcile all choices with each other. Decisions thus need to be made concerning the rules that allow different reasonable choices to be reconciled and that address problems arising from unreasonable choices.

In many areas, various procedures evolve to resolve particular problems. By reflecting the supply and demand status of different goods and services, the price mechanism provides people with information they need in order to choose what to purchase. But even here, judgments need to be made concerning what to do when, for example, a person reneges on his promise to pay the agreed-upon price.

When it comes to deciding how to coordinate a multitude of free acts, there are only two ways: unanimity or authority. [3] The agreed voluntary undertakings contained in a contract, for instance, are based upon unanimity insofar as the contracting individuals adhere to the original voluntary agreement. In the case of a breakdown of unanimity, the two individuals either (1) agree to dissolve the contract (unanimity), or (2) they admit the authority of a law demanding completion of agreed undertakings, or (3) they are held to their undertakings by some organization wielding a recognized authority.[4]

The on-going increase of possible choices in most societies decreases the possibility of achieving unanimity on a range of questions. While this may mirror increasing dissension about the proper ends of people, it also reflects an increase in the incompatible but nonetheless reasonable ways of pursuing incompatible but reasonable ends. The subsequent lack of unanimity necessitates:

·  a community invested with authority;

·  the charging of particular institutions (collectively described as the state, which in turn embraces the government and the law) of that community with the responsibility of exercising that authority; and

·  the defining and delimiting of the subsequent powers of these institutions.

As a form of human association, the political community may thus be understood as existing to assist all its members to realize integral liberty. Among other things, it might do so by: interacting with other states; protecting its members from hostile outsiders; or vindicating justice by punishing wrongdoers.

What these activities have in common is that they are all conditions that assist—as distinct from directly cause—people to achieve self-mastery. It is harder, for example, to choose to pursue the good of knowledge in a situation of civil disorder. Likewise, we know that the incentives for us to work will be diminished if there is no guarantee that our earnings will not be arbitrarily taken from us.

These conditions thus constitute a political community's common good. A particular characteristic of this common good is that it is not the all-inclusive end of its members. Rather, it is instrumental inasmuch as it is directed to assisting the integral fulfilment of persons. [5] The political community's common good thus helps not only to define its legitimate authority, but to limit it. For the political community's authority does not derive its power from itself. It always proceeds from the responsibility of state institutions to serve a political community's common good.

Provided that this common good is understood in the terms stated above, modern liberals have less reason to believe that it will become the basis for authoritarian tendencies. For one thing, the state's responsibility for the political community's common good is to help people to make choices for the basic goods—not to force them to do so. Second, the common good, properly understood, does not necessarily require uniformity. It actually creates room for pluralism insofar as it seeks to enable as many people as possible to pursue the virtues in a potentially infinite number of ways. Even disagreement among those charged with determining what the state may do in pursuing the common good, does not imply that the common good is not being served. Argument may actually contribute to the common good precisely because, through political debate, the relevant individuals may be engaging in a serious discussion about the most reasonable means of serving the common good. Such discussion is surely essential if state institutions are to act reasonably.

Towards Constitutional Order

The need for people to make free choices normally means delimiting the power of state institutions to restrict such choices unreasonably. A genuine concern that people realize integral liberty means that the state should only help people in ways that respect their need to be reasonable, to choose, and to act. Thus the way in which state authority functions becomes subject to the conditions that allow all to achieve integral liberty: i.e., the common good.

If state institutions are to serve the common good, they need to do so in a reasonable manner. Hence, a division of responsibility between state organs is required because we know that no one individual can perform all the functions of government. The same concern for the common good also demands establishing the limits on each state organ's coercive powers as well as specification of the appropriate relationships between these institutions. For unless such certainty exists, it becomes more difficult for individuals, families, and intermediate associations to make choices in a reasonably predictable social environment. Concern for the common good thus gives rise to constitutional order.

Historically speaking, constitutionalism's roots may be traced to the Greeks of the fifth and fourth centuries B.C. As an idea, it received powerful systematisation in the Middle Ages (especially in Aquinas' writings), in the internal organization of religious orders, and in Italy and Germany's emerging commercial cities. Some rulers were able to minimize the impact of emerging rules for political order, and thereby exercise a type of absolute rule. But even France's Bourbon kings found that their efforts to create an absolutist political regime were limited by the authority of France's regional parlements.

By the seventeenth and eighteenth centuries, philosophers ranging from John Locke to Jean-Jacques Rousseau were expounding the benefits of specific constitutional arrangements. To minimize the potential misuse of power, Charles de Montesquieu, insisted: “it is necessary from the very nature of things that power should be a check to power.' [6] He thus sought to separate the process of determining “the general will' of the state from the execution of that general will.

Yet no matter how influential these contributions to constitutional theory, careful reflection upon the nature of authority in any political community tells us that some type of constitutional order will always exist, however rudimentary, often in the form of custom and precedent. Even in dictatorships, there is a need to allocate different roles, powers, and responsibilities to different state organs, and to define (however unreasonably) the relationships between them. What distinguishes a dictatorial order from non-dictatorial regimes is that the latter's source of authority is not the will or charisma of a Stalin, Castro, or Pol Pot. Rather, legitimate state authority is derived from its rational character and the perceived responsibility of institutions charged by the political community to act authoritatively in certain ways while simultaneously being forbidden to make decisions about other subjects.

Constitutionalism in this sense reflects an effort to establish a reasonable relationship between those charged with state authority and those who are not. For the idea of constitutional order is not only about limiting the potential for arbitrary power. It is also implicitly rooted in claims that are reasonable: that, for example, the political community's common good requires some separation of powers. The claims of constitutional authority are thus respected by members of the political community, precisely because they are grounded in reason.

The same concern for reasonableness means that once a constitutional order has been established, there is always a strong prima facie case for adhering to constitutional provisions. Constitutional orders involve all members of a given society undertaking prior obligations to act in particular ways, such as abiding by the legitimate decisions of authority even if one disagrees with that decision. This is especially true of constitutional democracies. The delegation of authority to elected representatives means that we must be willing to assume that our representatives will debate matters seriously, and that they have taken into account facts concerning the common good of which we may be unaware, precisely because it is their responsibility to make themselves as aware as possible of such facts.

Adherence to constitutional precepts derived from reasoned reflection upon the common good's requirements is also likely to limit the state authorities' freedom of action. A regime seeking to pursue ends other than the common good has no reason to act consistently according to constitutional processes. The very point of such limitations is the common good's furtherance rather than its usurpation.

The same reasoning suggests that, in certain circumstances, constitutions should provide for the state authorities to act in ways from which they would otherwise abstain. Constitutions do, after all, serve the common good and thus the continued existence of a political community. They do not oblige a political community to permit its own destruction. In a time of crisis, a constitution must be capable of ensuring that its guidelines for order do not prevent the state from acting against illegitimate attempts to subjugate the political community. In extraordinary circumstances, such as a civil insurrection, a general strike, or the outbreak of war, the common good may require that particular constitutional canons are temporarily suspended until the crisis is overcome. The temporary suspension of habeas corpus, for example, may be necessary if a government is to fulfil its responsibility to halt a terrorist bombing campaign. Provisions for such eventualities ought therefore be inscribed into the constitution. This will give the citizenry good reasons to continue to respect state authority during a crisis, while simultaneously reminding state institutions that their emergency powers are ultimately grounded in and limited by their responsibility to advance the common good—the same common good that requires the state to relinquish such emergency powers when the crisis has passed.

Constitutions and Rights

In making these types of determinations, a great deal of political prudentia is necessary. Joseph de Maistre once wrote that a constitution is a solution to the following problem: “Given the population, the mores, the religion, the geographic situation, the political circumstances, the wealth, the good and the bad qualities of a particular nation, to find the laws that suit it.' [7] Centuries beforehand, the Greek philosopher Solon arrived at a similar conclusion. When asked what is the best form of constitution, he replied, “First, tell me, for what people and for what epoch.' [8] In short, though constitutions must meet the demands of reason and serve the common good, some measure of adjustment to certain specific conditions should normally be included as part of one's reasoned deliberation about this good.

A prominent feature of modern constitutional orders is their attention to the protection of what are often called “rights.' The 1789 French Declaration of the Rights of Man and the Citizen proclaims: “Any society in which rights are not securely guaranteed and the separation of powers is not determined, has no constitution.' While the idea of rights enjoys considerable lineage in pre-modern theological, philosophical, and legal thought, its promotion received particular impetus from nineteenth-century liberal intellectuals. Benjamin Constant, for example, emphasized the necessity of rights for protecting individuals from potential state infringements upon liberty. “There is,' he insisted, “a part of human existence which by necessity remains individual and independent, and which is, by right, outside any social competence. At the point where independence and individual existence begin, the jurisdiction of sovereignty ends. If society oversteps this line, it is as guilty as the despot who has, as his only title, his exterminating sword.'  [9]

The recognition of rights in constitutions does appear to have the potential to resolve some of the problems of living in a pluralist society. The religious believer, for example, will regard the right of religious liberty as reflecting and protecting his freedom to fulfil his duties towards God. Nevertheless, the same juridical protection of religious liberty as a right means that the non-believer cannot be forced to worship anyone or anything. Thus the same civil recognition of a right of religious liberty confers upon believer and non-believer alike certain protections from state coercion, regardless of their actual beliefs.

Those, however, who have spoken the language of rights also include people not immediately identifiable as lovers of freedom. They embrace Charles de Gaulle, but also the architect of revolutionary terror, Maximilian Robespierre. This disparity suggests two things. One is that the language of human rights is the most available discourse for universal deliberation about what people are objectively owed in entitlements and protections, many of which require constitutional expression. The second is that the same language is open to being co-opted by tyrannical regimes to serve unreasonable ends.

Further complicating matters is the fact that despite being among the strongest proponents of rights, modern liberal thinkers have not proved very adept at providing coherent explanations of their basis. Robert P. George goes so far as to claim that no secular thinker has provided “any plausible account of where rights comes from or why we should respect others rights.' [10] The legal obligation to respect rights has been formally recognized by most states since the 1948 United Nations Declaration of Human Rights. Yet as one of the members of the Declaration's drafting committee stated at the time, “We are unanimous about these rights on condition that no one asks why.' [11] It seems that the participants decided that agreement on common principles—a common philosophy—was unlikely to be achieved.

Part of the difficulty stems, as the philosopher Elizabeth Anscombe illustrated, from the apparent inability of modern philosophy to provide a moral account of anything insofar as it declines to—and cannot—identify an ultimately authoritative source of moral goodness. [12] One need only think of all the unsuccessful modern attempts to establish a foundation for rights. These include the decree of the King; a majority vote in parliament; or, perhaps most strangely, John Rawls' imaginary social contract that abstract non-existent persons might adopt in an equally imaginary original position. A similar difficulty manifests itself in one of the more famous responses to Rawls' Theory of Justice. The first and fundamental proposition of Robert Nozick's Anarchy, State and Utopia is that “individuals have rights.' But nowhere in the entire text is there any justification or explanation of this claim. Nozick himself states, “it is only a minor comfort to note that we here are following the respectable tradition of Locke, who does not provide anything remotely resembling a satisfactory explanation of the status and basis of the law of nature in his Second Treatise.' [13] Unfortunately when it comes to matters as serious as rights, we cannot simply defer to respectable scholarly tradition.

Like David Hume, Constant sought to provide an explanation for rights by contending that people had those rights that a given society could afford to confer on them. [14] This is a troubling proposition. If rights are understood primarily in terms of whatever has been authorized by the political community, then their coherence and stability becomes questionable. For once we believe that rights have no stronger foundation than the state's exercise of its sovereign powers, then we cannot complain if they are diminished or even abolished by another act of sovereignty on the state's part. In such circumstances, rights could be identified or abolished according to whatever a particular majority in a particular country at a particular time preferred rights to be. The capacity of constitutions to withstand such arbitrariness is not infinite.

How, then, might constitutions allow us to overcome these modern problems of rights, but in a way consistent with a commitment to integral liberty? The key may be to remember that to respect human rights is to respect what man is: an embodied creature with reason and free will, capable of making choices that lead to integral liberty. We also know that if people are to have any possibility of realizing this self-mastery, they require certain things. Once we establish that a certain protection or entitlement is essential for any person if he is to have any possibility of realizing integral liberty, we may speak of this protection or entitlement—this essential condition—as a right.

If this is true, then we can say that imbedding certain—not necessarily all—rights in constitutions is a way of describing basic elements of the common good. Careful examination of the United Nations Declaration of Human Rights demonstrates that this may indeed be the case. [15] Here we find that the idea of rights normally spoken of in two ways:

· “Everyone has the right to . . .'; and

· “Noone shall be . . .'.

We see here that the second phrase specifies the limits on the rights arising from the first. Thus we may say that everyone has a “right to free speech,' but also that “noone shall defame another's reputation.' The right to free speech is thus inalienable, though subject to the duty that we owe to others not to defame their reputation.

There are variations in the way that “noone shall' statements are expressed. Article 9 of the Declaration of Human Rights notes that “Noone shall be subject to arbitrary arrest, detention, or exile.' To arrest a person, then, is not unthinkable. Indeed, a person may be arrested, provided that due process is followed and his other rights are not unduly infringed. Some of those rights may be found in other parts of the Declaration. Article 10, for example, states: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.'

Nonetheless, the same Declaration speaks of certain rights that are apparently not only inalienable but absolute inasmuch as no qualifying phrase is evident. Article 4 states that “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all its forms.' In this case, there is no room for compromise. For such rights reflect the basic goods that are integral to man's very identity. These, we may say, are absolute rights, inasmuch as they reflect a determination of what John Finnis calls “the literally immeasurable value of human personality in each of its basic aspects (the solid core of the notion of human dignity).' [16]

If we examine all the inalienable and absolute rights listed in the Declaration of Human Rights, we see that Finnis makes an important point when he states that they outline aspects of a political community's common good. [17] In short, they describe some of the conditions that must prevail in a political community if all people in that society are to be able to choose freely to participate in the basic goods that lead to integral liberty.

The concept of constitutional rights as essential features of the common good acquires further credence once we recognize how violating a person's rights damages the political community's common good. If, for example, an innocent person's right to life is intentionally violated by another's choice to kill that individual, the common good is undermined. The damage consists of undermining the confidence of others in that society that the safety of their life is relatively guaranteed. Without such a condition, people will be afraid to work or engage in more-than superficial relationships with others. Public order is thus subverted. Such circumstances, in turn, severely hinder our ability to make free choices of a range of reasonable options.

Many modern liberals will have great difficulty accepting this account of rights and their place in constitutions. While most modern liberals speak endlessly of rights, rather fewer are willing to speak of absolute rights, with the notable exception of the alleged “right' to choose to kill unborn children. Even fewer are willing to concede the existence of absolute goods.

Modern liberals need to understand that statements about rights can only be defended in terms of the duties that give rise to them and a coherent explanation of where these duties come from: that is, respect for the basic goods innate to us as humans. Moreover, once more people begin to speak of rights as elements of the political community's common good, they will be in an immeasurably better position to demonstrate that the protection of certain rights by constitutions is reasonable. In this situation, a constitution could not be perceived as simply conferring the legal status of rights upon a particular group's preferences. Rather, to paraphrase Abraham Lincoln, the constitution would simply declare the right so as to help ensure its legal recognition as quickly as possible in a given society's circumstances. [18] The very act of constitutional recognition helps to establish the conditions that assist us to participate in the goods intrinsic to man.

Given the intimate relationship between constitutions, the political common good, and rights, one might conclude that the state bears direct responsibility for protecting all the rights identified by constitutions at the core of the political common good. This assumption is, however, unwarranted and potentially dangerous. By definition, and in accordance with the much-mentioned, but rarely understood principle of subsidiarity, families and intermediate associations precede the state inasmuch as they directly provide most of the conditions that assist people to achieve integral liberty. In that sense, they have the primary responsibility to give to others what they are objectively owed in justice, tempered, one might add, by the quality of mercy.

It may well be that one of the challenges for this forthcoming century will be for us to realise that safeguarding what we call human rights is far too important a task to be entrusted solely to the state, let alone professional human rights activists. Ideas do have consequences, for good or for evil. They are not the mere toys of intellectuals. It follows that if rights become modern Trojan horses that help to turn constitutional orders into what amounts to nothing less than, to paraphrase Clausewitz, war by other means, then we will no one but ourselves to blame. The number of people who suffered and died through the abuse of state-power in the 20th century defies the imagination. Yet we also know that the utopian impulse remains deeply ingrained in the human condition. Free societies have only the most fragile of defences against the desire of some to try and build heaven-on-earth. These protections include such humble institutions as the rule of law, not to mention the ever-evolving but delicate tapestry that we know as the common law. To see these safeguards of human liberty undermined in the name of rights, both real and imagined, would surely be the cruellest paradox of all.

 

FOOTNOTES

1. Some of this paper is drawn from the author's book On Ordered Liberty: A Treatise on the Free Society (Lexington, MA.: Lexington Books, 2003). Many of the concepts, such as “basic goods,' employed throughout this lecture are explained in more detail in On Ordered Liberty.

2. Thomas More, The Complete Works of St. Thomas More, vol.3.2, The Latin Poems, Clarence H. Miller, Leicester Bradner, Charles A. Lynch and Revilo P. Oliver (eds.), (New Haven, CT: Yale University Press, 1984), no.19/pp.90-91.

3. See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp.231-233.

4. See ibid., p.232.

5. Cf. Thomas Aquinas, Summa Contra Gentiles (Notre Dame, Ind.:  University of Notre Dame Press, 1997), III c.80 nn.14, 15.

6. Charles de Montesquieu, The Spirit of the Laws (Cambridge: Cambridge University Press, 1989), II, 4.

7. Joseph de Maistre, Considerations on France (Cambridge: Cambridge University Press, 1994), p.53.

8. Solon, Solonos nomoi, Eberhard Ruschenbusch (ed.) (Wiesbaden: Steiner, 1966).

9. Benjamin Constant, The Political Writings of Benjamin Constant (Cambridge: Cambridge University Press, 1988), pp.177-178.

10. Robert P. George, The Clash of Orthodoxies: Law, Religion and Morality in Crisis (Wilmington, Del.: ISI Books, 2001), p.18.

11. Germain Thils, Droits de l'homme et perspectives chrétiennes (Louvain-la-neuve: Fayard, 1981), p.51.

12. See G.E. Anscombe, “Modern Moral Philosophy,' Philosophy 33, 1958, p.11.

13. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p.9.

14. See Benjamin Constant, Les principes de politique de Benjamin Constant, Etienne Hoffman (ed.), (Geneva: Seuil, 1980), vol.1, pp.60-61.

15. For a fuller outline of this argument and its use of the Declaration of the Human Rights, see Finnis, Natural Law, pp.210-230.

16. Ibid., p.225.

17. Ibid., p.214.

18. See Abraham Lincoln, “Speech at Springfield, Illinois (26 June 1857),' in The Collected Works of Abraham Lincoln, Vol.2, Roy Basler et al. (ed.), (New Brunswick, N.J.: Rutgers University Press, 1953), pp.405-406.

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