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The American Debate and the Invention of Negative Liberty

Yiftah Elazar PhD Candidate The Department of Politics Princeton University elazar@princeton.edu

Prepared for Presentation at the 2010 Annual Meeting of the American Political Science Association Washington, DC

Foundations of Political Theory 2-46 Founding Principles Thursday, September 2, 2010, 4:15PM

Electronic copy available at: http://ssrn.com/abstract=1670523

Yiftah Elazar

The Invention of Negative Liberty

1 Introduction

In the beginning of his famous lecture Two Concepts of Liberty, Isaiah Berlin quotes Heines warning to the French not to underestimate the power of ideas, because philosophical concepts nurtured in the stillness of a professors study could destroy a civilization.1 The concepts nurtured in the stillness of Berlins study may not have destroyed a civilization yet, but they have proven themselves remarkably resilient to attacks. Despite numerous attempts to refine or redefine or dismiss them altogether, they continue to frame the work of political scientists, philosophers, and historians, and this is a testament to the power of ideas, the power of Berlins distinction in particular. This paper is about the history of this distinction, or more precisely, about the invention of the argument that the idea of liberty is negative. The argument first appeared in England, shortly before the American Declaration of Independence. We find it in the work of three utilitarian writers Jeremy Bentham, John Lind, and Richard Hey all of which were involved in the political, jurisprudential, and philosophical debate on the crisis between Britain and its American colonies. 2 In particular, the three had set out to refute the theory of freedom proposed in the controversial defense of the American colonists written by the philosopher, economist, and dissenting minister Richard Price, and entitled Observations on the Nature of Civil Liberty (1776). !
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Isaiah Berlin, Four Essays on Liberty (Oxford; New York: Oxford University Press, 1969), 310. I would like to express my gratitude to the members of the Bentham Project at University College, London, and particularly to Philip Schofield and Michael Quinn, for their gracious hospitality in May 2010, while I was working on the Bentham manuscripts, as well as to Douglas Long, for generously sharing his transcripts of some of the Bentham manuscripts. Longs Douglas G. Long, Bentham on Liberty: Jeremy Bentham's Idea of Liberty in Relation to His Utilitarianism (Toronto: University of Toronto Press, 1977). is still the best study written on Benthams conception of freedom, and it has been extremely helpful in tracking down relevant passages in Benthams early writings.

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Electronic copy available at: http://ssrn.com/abstract=1670523

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The Invention of Negative Liberty

The confrontation between Prices neo-classical conception of liberty and the utilitarian idea of liberty as non-interference during the American debate has received considerable attention in the neo-republican literature.3 In his first essay on the concept of liberty, written in 1984, Quentin Skinner had already described the negative definition of freedom as the formula originally owed to Jeremy Bentham, and more recently made famous by Isaiah Berlin,4 traced it back to Thomas Hobbes, and contrasted it with the Roman or classical or republican way of understanding freedom. In different publications and lectures since then, he has stressed the continuity between Hobbes and Bentham, attributing the decline and fall of the neo-classical theory to what has described as the rise of the neo-Hobbesian analysis of liberty popularised by the classical utilitarians.5 In a recent lecture, devoted to the debate between Bentham and Price, Skinner argued that Bentham disingenuously claimed the Hobbesian definition of freedom as his own.6 Philip Pettit has similarly argued that the triumph of freedom as non-interference was made possible by writers who opposed American Independence and revived the Hobbesian notion of liberty.7 There is no direct evidence that Hobbes influenced the eighteenth century utilitarians Bentham, Lind, and Hey, but their definition of liberty as the absence of !
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Another writer who has been mentioned as defending a similar conception of freedom, and whose work is not discussed in this paper, is William Paley. See William Paley, The Principles of Moral and Political Philosophy (London: Printed for R. Faulder, 1785), 441-8. 4 Quentin Skinner, "The Idea of Negative Liberty: Philosophical and Historical Perspectives," in Philosophy in History: Essays on the Historiography of Philosophy, ed. Jerome B. Schneewind Richard Rorty, and Quentin Skinner (Cambridge: Cambridge University Press, 1984), 194. 5 Quentin Skinner, Liberty before Liberalism (Cambridge; New York: Cambridge University Press, 1998), 96-8. Quentin Skinner, "States and the Freedom of Citizens," in States and Citizens: History, Theory, Prospects, ed. Quentin Skinner and Bo Strth (Cambridge: Cambridge University Press, 2003), 19. 6 Quentin Skinner, Political Liberty: The Enlightenment Debate, The Roy Porter Lecture, given at University College London on May 26, 2010. For a discussion of Paley and Blackstone, see also Skinner, Liberty before Liberalism, 77-82, 97-8. 7 Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford; New York: Oxford University Press, 1997), 41-50.

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The Invention of Negative Liberty

coercion or restraint bears a striking resemblance to his definition of liberty as the absence of external impediments.8 The ideological context is also sufficiently similar, given that both Hobbes and the utilitarians were arguing against what they saw as a dangerous surge of republicanism. And yet, Hobbes was arguing for an absolute monarchy, while the eighteenth century utilitarians shared with Richard Price and most other advocates of the American cause a respect for the British mixed constitution. In contrast to Hobbes, Bentham and Lind, and arguably also Hey, had an idea of civil or political liberty that included some form of security against the arbitrary will of the government, and not merely against the violence of other individuals. In contrast to Hobbes, the eighteenth century utilitarians shared with Price and other advocates of the American cause the idea that protecting the liberty of individuals in society requires a free constitution of government. While acknowledging the similarity between the Hobbesian definition of liberty and the eighteenth century utilitarian definition of liberty, this paper argues for the uniqueness of the latter. The utilitarian invention of negative liberty should be understood in the context of a debate in which neo-Roman assumptions about freedom and government were, to some extent, shared, and the question at the heart of the debate was the question of democratic participation. Like other critics of Price, the utilitarians were opposed to his democratic definitions of free citizenship and free government, and they opposed to them their own variations on the ideals of civil liberty and free government. !
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Thomas Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668, ed. E. M. Curley (Indianapolis: Hackett Pub. Co., 1994), 79. James Crimmins has inquired whether Hobbes influenced Bentham, and found little no support for the existence of such influence, except on one issue a commitment to clarifying the language of political analysis. Crimmins did not look specifically at the question of influence with regard to the definition of freedom. James E. Crimmins, "Bentham and Hobbes: An Issue of Influence," Journal of the History of Ideas 63, no. 4 (2002).

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The Invention of Negative Liberty

The general point they made was the one made by Montesquieu and de Lolme: liberty under the rule of law and free government should not be confused with giving power to the people. The philosophical analyses and arguments developed by Bentham, Lind, and Hey were, however, influenced by their utilitarianism. Section 2 of the paper describes in broad outlines the invention of the negative definition of liberty in the context of the American debate. Sections 3-6 discuss in more details the theories of liberty developed by Bentham, Lind, and Hey. The discussion advances in reverse chronological order of discovery, from Hey to Bentham, in the hope that Benthams elusive ideas of civil liberty and free government will be made easier to understand by recognizing the many similarities between his theory of liberty and those of Lind and Hey.

2 Prices Capital Mistake

The claim that the idea of liberty is negative, and denotes nothing but the absence of coercion, first appeared in print in a letter that John Lind wrote to one of the London newspapers a few months before the Declaration of Independence. Lind, a lawyer and political pamphleteer, was writing a series of pseudonymous and acrimonious letters in reply to Richard Prices Observations on the Nature of Civil Liberty, published in February 1776. While most British commentators on the American controversy believed that the dispute should be resolved by looking at the charters granted to the colonies, the historical precedents, and the laws passed by the Parliament, Prices approach was

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The Invention of Negative Liberty

markedly different: he jettisoned the legal arguments, and chose to inquire how the general principles of Civil Liberty, as well as reason and equity, and the rights of humanity, bear on the controversy.9 His conclusion was that Great Britain had been unjustly and unwisely trying to rob the Americans of that Liberty to which every member of society, and all civil communities, have a natural and inalienable right.10 Prices general principles of Civil Liberty were boldly democratic, and utterly unpalatable to most of his contemporaries. He opened the Observations by analyzing different kinds of liberty physical, moral, religious, and civil and concluded that freedom in general consists in the power of self-government. Focusing next on civil liberty, Price argues that individual citizens can only be free under a free government. Internally, free government means equal representation for all free agents, and the ability of individuals to control the government and make it accountable to them. Externally, it means that a community is not subject to the will or power of another community. Based on these principles, Price argues that subjecting the American colonists to the will of the British Parliament, without allowing them adequate representation, deprives them of their civil liberty, and amounts to an attempt to enslave them.11 Dozens of writers responded to the Observations, creating the single most extensive British pamphlet exchange in response to one writer during the years of the

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Richard Price, "Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America to Which Is Added an Appendix, Containing the State of the National Debt, an Estimate of the Money Drawn from the Public by Taxes, and an Account of the National Income and Expenditure since the Last War," (London: Printed for T. Cadell, 1776), 31-4. 10 Ibid., 1. 11 Ibid., 3-30.

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American crisis.12 Some of the arguments concentrated on Prices idea of liberty in general, arguing that the definition of liberty as self-government is subversive of the authority of government, and inconsistent with the security enjoyed under the rule of law.13 Many arguments attacked his ideas of civil liberty and free government, claiming that his democratic principles are impracticable and dangerous, and would only lead to anarchy and violence.14 In his reply to the critics, Price distinguishes between writers who opposed him without abuse or rancour, and writers who published virulent invectives against him. He mentions John Lind as the ablest of the writers who published virulent invectives. Setting aside Linds offensive comments on Prices character, the fourth of his letters to the The Gazetteer and New Daily Advertiser, written under the pseudonym Attilius, contained a theoretical innovation in the American debate. In this letter, published on March 27, 1776, Lind claims that Price is guilty of a capital mistake in defining liberty as the power of self-government, and offers his own definition instead:

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Thomas Randolph Adams, The American Controversy : A Bibliographical Study of the British Pamphlets About the American Disputes, 1764-1783, 2 vols. (Providence; New York: Brown University Press; Bibliographical Society of America, 1980), 909-34. 13 Adam Ferguson, for example, argued that Prices definition of liberty is inconsistent with the great end of civil government itself, which is to give people security from the effect of crimes and disorders, and to preserve the peace of mankind. According to Ferguson, Civil Liberty is not precisely a power to do what we please, but the security of our rights. Adam Ferguson, "Remarks on a Pamphlet Lately Published by Dr. Price Intitled, Observations on the Nature of Civil Liberty, ... In a Letter from a Gentleman in the Country to a Member of Parliament," (London: printed for T. Cadell, 1776), 3, 7. 14 See, for example, Henry Goodricke, "Observations on Dr. Price's Theory and Principles of Civil Liberty and Government Preceded by a Letter to a Friend, on the Pretensions of the American Colonies, in Respect of Right and Equity," (York: printed by A. Ward, for J. Dodsley, T. Cadell, and R. Baldwin, London; and J. Todd, York, 1776), 96-128. Anonymous, "Civil Liberty Asserted, and the Rights of the Subject Defended, against the Anarchial Principles of the Reverend Dr. Price in Which His Sophistical Reasonings, ... Contained in His Observations on Civil Liberty, &C. Are Exposed and Refuted. In a Letter to a Gentleman in the Country. By a Friend to the Rights of the Constitution," (London: printed for J. Wilkie, 1776), 9-66.

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Liberty, Sir, is nothing positive; the term conveys only a negative idea: it means neither more nor less than the absence of coercion. I use the term coercion, because it comprises constraint and restraint; by the former a man may be compelled to do, by the latter to forbear, certain acts. 15

The next letter, published two days later, opens with an admission that the definition of liberty as the absence of coercion was borrowed from a friend, whose name is not mentioned.16 The friend was the young Jeremy Bentham, Linds intimate friend in those years. In the course of the friendship and intellectual collaboration between them, Bentham had appropriated from Lind the idea of writing a comment on Blackstones Commentaries, and helped Lind in writing two of the prominent pro-British pamphlets in those years, Remarks on the Principal Acts of the Thirteenth Parliament of Great Britain (1775), and Answer to the Declaration of the American Congress (1776).17 Still, when Bentham saw his definition of liberty in the newspaper, and learned of Linds intention to use his definition of right in the following letter, he was alarmed, and immediately sent a letter to Lind, claiming his title to both. It may have been half a year or a year or more, !
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Letter from Attilius to the Gazetteer and New Daily Advertiser, March 27, 1776. Letter from Attilius to the Gazetteer and New Daily Advertiser, March 29, 1776. 17 See Benthams letters to John Lind (5 October, 1774), and to Samuel Bentham (18 May, 1775) in Timothy L. S. Sprigge, ed., The Correspondence of Jeremy Bentham, Volume 1: 1752-76 (London: The Athlone Press, 1968), 204-7, 35. See also his letter to John Bowring from 30 January, 1827, in Jeremy Bentham, The Correspondence of Jeremy Bentham, Volume 12: July 1824 to June 1828, ed. Luke O'Sullivan and Catherine Fuller (Oxford: Clarendon Press, 2006), Luke O'Sullivan and Catherine Fuller, ed., The Correspondence of Jeremy Bentham, Volume 12: July 1824 to June 1828 (Oxford: Clarendon Press, 2006), 288, 92-3, 307. The two pamphlets are John Lind, "Remarks on the Principal Acts of the Thirteenth Parliament of Great Britain. By the Author of Letters Concerning the Present State of Poland. Vol. I. Containing Remarks on the Acts Relating to the Colonies. With a Plan of Reconciliation," (London: printed for T. Payne, 1775). John Lind, "An Answer to the Declaration of the American Congress," (London: printed for T. Cadell; J. Walter; and T. Sewell, 1776).

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he wrote in the letter,18 since I communicated to you a kind of discovery I thought I had made, that the idea of Liberty, imported nothing in it that was positive; that it was merely a negative one. Bentham made clear that he defined liberty at first as the absence of restraint, and the inclusion of the absence of constraint was Linds idea. Bentham, however, reached the same conclusion independently, and suggested the final formulation: liberty means the absence of coercion. In explaining his insistence that Lind would acknowledge his title to the definition, Bentham says: The definition of Liberty is one of the corner stones of my system: and one that I know not how to do without.19 In the following weeks, the lawyer, essayist, and mathematician Richard Hey published his own pamphlet in reply to Price, in which he argued that liberty means the absence of restraint. In a footnote, Hey notes that he read the definition proposed by Attilius in the Gazetteer, but claims to have come up with his own definition prior to that, by examining the common use of the word liberty. He disagrees with the BenthamLind definition, arguing that Constraint is understood to include something more than a mere deprivation of liberty.20 Bentham read Heys pamphlet with no small pleasure and satisfaction, and drafted a long, rambling letter to Lind, originally intended for publication as an appendix to Linds Three Letters to Dr. Price (1776). In the draft, entitled Hey, Bentham !
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Benthams account puts his discovery sometime in 1775, probably in the course of his work on the Comment on the Commentaries. 19 Letter from Bentham to Lind, 27-28 March, 1776, in Fuller, ed., The Correspondence of Jeremy Bentham, Volume 12: July 1824 to June 1828, 310-1. Lind published a more extensive acknowledgment, and confirmed Benthams account of their respective contributions to the definition, when he published the letters in the form of a pamphlet. See John Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," (London: Printed for T. Payne, J. Sewell, and P. Elmsly, 1776), 16-7. 20 Richard Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," (London: printed for T. Cadell; and T. and J. Merrill, in Cambridge, 1776), 9.

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amicably argues the case for the Bentham-Lind formulation against Heys definition of negative liberty.21 This, in broad outlines, is the way in which the negative definition of liberty came into the world. The following sections situate this definition within the broader context of the theory of liberty developed by each of the three thinkers Hey, Lind, and Bentham.

3 Hey on the Perfection of Civil Liberty

Heys Observations on the Nature of Civil Liberty, and the Principles of Government (1776) is possibly the most philosophically oriented and clearly argued reply to Prices Observations. Hey argues for conducting the study of politics in the calm spirit of a Philosopher, and consequently discusses only the principles of civil liberty and government, declining to comment directly on the policies of the British government.22 Following Price, Hey opens his inquiry by trying to determine the meaning of Liberty in general, but like other critics of Price, he feels that the definition of liberty as self-government is arbitrary, and does not correspond to the use of the word in everyday language.23 By looking at a few examples, he infers that the common idea of liberty is merely negative, and is only the absence of restraint. According to Hey, restraint

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UCL CXVIII, 57-68. Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 1-5. 23 See, for example, the section entitled Prejudice from Names Obviated in Goodricke, "Observations on Dr. Price's Theory and Principles of Civil Liberty and Government Preceded by a Letter to a Friend, on the Pretensions of the American Colonies, in Respect of Right and Equity," 78-82.

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extends not merely to physical hindrance to the performance of an action, but also to prohibition by the civil laws, and even to prohibition by the laws of morality.24 Using his negative definition, Hey constructs a brilliant analysis of the concept of liberty, which might be said to anticipate Gerald MacCallums definition of freedom as a triadic relation ranging over agents, preventing conditions, and things to do or to become.25 Hey distinguishes between two methods of analyzing liberty: by looking at the different sorts of restraints, or by looking at the different kinds of actions from which an individual may be restrained. According to the first method of analysis, natural liberty is the absence of restraints imposed by the laws of Nature, civil liberty is the absence of civil restraints, and so on.26 According to the second method, freedom of speech is the absence of restraint on speech, freedom of religion is the absence of restraint in matters of religion, and so on. Toleration, according to Hey, is the absence of Civil Restraints in matters of Religion.27 Building on this powerful analysis, Hey picks apart Prices definitions of physical, moral, religious, and civil liberty, and demonstrates, quite effectively, that they are incongruous and confused.28 One important point that comes up in the discussion, is that Hey objects to the definition of liberty as a power: to have the Principle or Power by which an action is to be performed, is clearly different from the merely not being restrained from doing that action.29 The inference is that lack of the power or capacity to perform an action is not a !
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Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 8. According to MacCallum, freedom is always of an agent or agents, from preventing conditions, to do, not to do, become, or not become something. Gerald C. MacCallum, Jr., "Negative and Positive Freedom," The Philosophical Review 76, no. 3 (1967): 314. 26 Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 10-6. 27 Ibid., 16-8. 28 Ibid., 18-24. 29 Ibid., 19, 41.

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lack of freedom. This was Hobbess position in Chapter 21 of Leviathan: when the impediment of motion is in the constitution of the thing itself, we use not to say it wants the liberty, but the power to move.30 Prices contrasting view incorporates the possession of power into the definition of freedom. Arguably it represents a quadratic, and not a triadic relation, ranging over agents, preventing conditions, things to do or become, and constitutive or enabling conditions. Having analyzed liberty in general, Hey addresses the main topic of the debate with Price: the nature of civil liberty. Heys definition of civil liberty follows the first method of analysis, according to kinds of restraint: civil liberty is the absence of Civil Restraints. This definition of civil liberty is almost identical to Hobbess definition of the liberty of the subject, in Chapter 21 of Leviathan, as an exemption from laws.31 Indeed, Heys negative definition of civil liberty serves him, just as it served Hobbes, to argue against the maximization of civil liberty. According to Hobbes, if we take liberty for an exemption from laws, it is [] absurd for men to demand as they do that liberty by which all other men may be masters of their lives.32 According to Hey,

Civil Liberty [] is greater, as the restraints imposed on us by Civil Laws are fewer. The greatest degree of it would be, to have no Civil Laws at all. This is what no one would wish for; and therefore it may be worth while to consider what has been meant by some writers who, in passing their encomiums on

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Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668, 136. Ibid., 138. 32 Ibid.

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Civil Liberty, appear to have taken it for granted that the greater the Civil Liberty is in any state, the better.33

Moreover, the negative definition of liberty leads Hey to criticize Prices idea of a free state, just as it led Hobbes to censure the republican ideal of the free commonwealth. Hobbes argued that the only liberty that can be properly attributed to a commonwealth is the natural liberty it enjoys in the international realm. As for the liberty of subjects, Whether a commonwealth be monarchical or popular, the freedom is still the same.34 Hey says much the same: the idea of civil liberty is inapplicable to an independent civil community, and the freedom of subjects is not determined by the power of their community to govern itself.35 And yet, Heys idea of freedom under government is quite different from the Hobbesian view. According to Hobbes, the sovereign protects the subject from the danger that other men would become the masters of his life, but the sovereign becomes the absolute master of the subjects life. The liberty of the subject is no guarantee against the absolute power and right of the sovereign to commit iniquity or even to put the subject to death for doing an action permitted by law. The right of the sovereign over the life and death of the subject derives from the social contract, which makes the subject the author of every act that the sovereign does.36 As Hobbes makes clear in The Elements of Law,

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Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 27-8. Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668, 139-40. 35 Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 32-3, 42-3. 36 Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668, 112-3, 38-9. However, just as the sovereign has the right to kill then without injustice, subjects have the liberty to disobey or resist when their lives are at stake. Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668, 143-5.

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subjects are under the absolute dominion of their sovereign just as slaves and contractual servants are under the absolute dominion of their masters.37 Hey, however, rejects consent or contract as the foundation of authority, and prefers to rely on utility. The question then becomes what degree of restraint would be useful to individuals and to society. In order to determine the answer, we would need to know what the primary interests of individuals are. Hey believes that the primary interest of individuals is to be free to pursue their own happiness. Their interest is in civil liberty in the second sense of the term: not liberty from civil restraints, but the General Liberty respecting Civil matters. The laws, however, restrain this general liberty. Therefore, the challenge for legislators is to find the proper Medium of restraint. In general, the guiding principle for legislators should be: To avoid, as much as possible, multiplying restraints upon the subject. This principle leads to the point of Perfection in Civil Liberty.38 Unlike Hobbes, then, Hey endorses an ideal of civil liberty in perfection that aspires to minimize the oppressive intervention of the state in the individuals life. Moreover, Hey believes that the freedom from excessive interference by the state should be guaranteed by the constitution. His praise for civil liberty and the right to it is summed up in the following excerpt:

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See Thomas Hobbes, The Elements of Law Natural and Politic, ed. J. C. A. Gaskin (Oxford: Oxford University Press, 1999).. I am following the argument of Philip Pettit that despite the shift in semantics, Hobbess ontology of liberty is similar in The Elements and in Leviathan. See Philip Pettit, Freedom in Hobbess Ontology and Semantics: A Comment on Quentin Skinner. 38 Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 38-9, 46-51, 53-5.

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And that Civil Liberty which has been the subject of so many panegyrics (and very deservedly), seems to have been, Some degree or state of General Liberty respecting Civil matters, either the best possible state of it or not far from the best on the one side or the other; --- or more frequently, the Right to such Liberty, considered as given and secured by the Civil Laws.39 This is indeed a blessing highly valuable. The warmest enthusiast in the cause of Liberty may indulge himself here, in his encomiums, without much danger of extravagance: --- to contend for this blessing with bravery and perseverance, to study the improvement of the civil Constitution with this in view, --- these works mark the true Hero and the genuine Patriot.40

Heys ideal of civil liberty and civil government consists, then, in a secure constitutional framework that protects individual rights against other individuals, and minimizes the interference of government in private life. The question remains what exactly are the protections that Hey envisions against undue interference by the government. On this point, he is less than clear. On one hand, Lind defends the doctrine of the omnipotence of the legislature. He argues that even if in principle, the voice of the people is superior to the voice of the legislature, in practice, the voice of the people cannot be had, and should be regarded as an absolute chimera. Therefore, to all practical purposes, the power of the legislature is unlimited.41 !
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Hey may be deriving his idea of the constitutional right to civil liberty in perfection from Montesquieus discussion of free government. He inquires what Montesquieu meant by speaking of free government, and concludes that he referred to the right of citizens, secured by the constitution, to enjoy their civil liberty. Ibid., 33-5. 40 Ibid., 39. 41 Ibid., 51-2.

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On the other hand, Hey says that in extreme cases of oppression, all rules and laws cease; violence alone has place. Unlike Hobbes, he recognizes the concept of tyranny, and says that it applies when general liberty is too small, and falls short of the best degree. He defines slavery as excessive subjection, and writes that an individual is a Slave to his Prince, when his actions depend more upon the will of his prince than the purposes of Civil Society require.42 Hey does not explicitly endorse a right of revolution, but he seems to imply that tyranny and political slavery would naturally lead to revolution. Overall, Hey makes strategic use of his definition of liberty as the absence of restraint in order to achieve what he sees as the proper balance between liberty and authority. Considering civil liberty in one sense, which contrasts it with the restraints imposed by the law, he develops an argument against the demand of Price and the colonists to maximize civil liberty. To maximize civil liberty, according to Hey, would lead, by definition, to a state of anarchy, which would leave peaceful citizens prey to licentious citizens. Considering civil liberty in its other sense, as liberty in civil matters, Hey endorses the ideal of a minimalist state that protects individuals in the pursuit of their interests and imposes no further restrictions on them. The legislature of this state is omnipotent in theory, but in practice, the threat of revolt against excessive restraint marks the limits of power, however vague those might be.

4 Lind on Free Government

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Ibid., 23, 40, 52.

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Unlike Hey, Lind was a ruthless pamphleteer with no philosophical pretensions, but he understood that the key to Prices argument in favor of the Americans lies in his theory of liberty: this is the corner-stone of the whole building, he writes, if this be removed all is destroyed.43 Consequently, he begins, like Hey, by analyzing liberty in general, and moves on to discuss civil liberty and the principles of government.44 In his discussion of liberty in general, Lind observes that Price understands the concept of liberty as both positive and negative: it is both the possession of the power of self-government, and the absence of any foreign cause operating to restrain it.45 In Linds view, however, Price is wrong to think that self-government should be understood as a positive idea:

With respect to any particular act, when you say a man is free, that he enjoys the power of Self-direction or Self-government, what is it you mean? Clearly no more than this; that no other agent whatever has, or means to exercise the power of constraining him to do, or to forbear that act. What then is Liberty? Clearly nothing more nor less than the ABSENCE OF COERCION.46

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Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 5. From here on, the paper refers to the pamphlet, which is more easily accessible. 44 The pamphlet is divided into three parts, roughly corresponding to the structure of Prices Observations: Letter I: Of the Nature of Liberty in general, Letter II: of Civil Liberty, and the Principles of Government, and Letter III: Of the Claims made by Great Britain on her Colonies, and the Measures used to enforce them. I discuss only the first two parts. 45 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 14-6. 46 Ibid., 16.

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Having borrowed Benthams definition of negative liberty, Lind utilizes it for his main line of attack, which is directed against Prices claim that every member of society has a natural and inalienable right to liberty.47 First, Lind argues that there can be no natural right to liberty, because there is no such thing as natural rights. To ground his claim, he relies on Benthams definition of right, which he paraphrases as follows: where no law is, there is no right.48 Right is a legal term, explains Lind, and a right can only be acquired by the declaration of the legislator. Antecedently to law, a person may be free, but he cannot have the right to freedom.49 Secondly, Lind argues that even if there is a natural right to liberty, it cannot be unalienable: It must, to a degree at least, be alienated in a State of Society, if by Society you mean, as it appears that you do mean, a state of government. Such a state implies Laws. All laws are coercive.50 Linds argument turns out to be similar in form to the standard argument against Prices general idea of liberty, the argument that it is incompatible with government, which requires the sacrifice of natural liberty. In Linds words, To be free from coercion is a privilege which belongs not more to man, than to !
47

Price, "Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America to Which Is Added an Appendix, Containing the State of the National Debt, an Estimate of the Money Drawn from the Public by Taxes, and an Account of the National Income and Expenditure since the Last War," 1. 48 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 21. In the pamphlet, Lind attributes this quote to Benthams Fragment on Government (1776), but the Fragment does not contain such a phrase. Linds Remarks, however, to which Bentham contributed, contains an argument against Lockes natural right to property, which says, in Benthams characteristic style: Whence arises this right? From the command of the law. It is the law which says to you, the proprietor, take this thing, use it, enjoy it. It is the law, which says to every other man, do not take it, do not use it, do not enjoy it. Lind, "Remarks on the Principal Acts of the Thirteenth Parliament of Great Britain. By the Author of Letters Concerning the Present State of Poland. Vol. I. Containing Remarks on the Acts Relating to the Colonies. With a Plan of Reconciliation," 55-6. 49 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 21-2. 50 Ibid., 24.

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the lion that ranges in the wilds of Africa, or the monkey that skips about in the forests of India.51 In moving on to discuss civil liberty, Lind raises several objections against Prices democratic conception of free government,52 before coming to present his own conception. A free government, according to Lind, offers to its subjects both civil or political liberty and civil or political security. Both are, in fact, forms of security against the violation of individual rights, but they are derived from different sources and directed against different types of threat. Civil liberty, according to Lind, means a partial absence of coercion enjoyed by subjects against other subjects. It is created by law, and is bestowed on one subject, or number of subjects, upon whom the law does not operate, against all other subjects upon whom the law does operate.53 Lind is aware that civil liberty is usually thought to include an absence of coercion by the government, as well as by other subjects. He refuses, however, to include protection from the government in his definition of civil liberty, for two reasons. First, since law establishes civil liberty, and law, according to Lind, is the expression of will, he thinks that the governors, whose will is expressed by the law, cannot give liberty against themselves. Second, from the history of ancient Rome, and his own experience while living in Poland,54 Linds infers that checking the power of government weakens it and leads to anarchy, leaving the subjects with political security against their government, !
51 52

Ibid., 27. Ibid., 35-67. 53 Ibid., 67, 87. 54 See John Lind, "Letters Concerning the Present State of Poland Together with the Manifesto of the Courts of Vienna, Petersburgh, and Berlin. And the Letters Patent of the King of Prussia," (London: printed for T. Payne, 1773).

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but depriving them of their civil liberty. 55 For these reasons, Lind endorses the doctrine that the legislature of a free country is omnipotent.56 In his Additional Observations, Price criticized Lind for circumscribing the bounds of civil liberty, and limiting it only to liberty against other subjects:

Civil Liberty, he insists, is nothing positive. It is, an Absence. The absence of coercion [] Not from civil governors, (they are OMNIPOTENT, and there can be no liberty against them.) But from such little despots and plunderers as common pick-pockets, thieves, house-breakers, &c.57

Indeed, Lind circumscribed the bounds of civil liberty to include only the absence of coercion by other subjects, in order to contradict the argument that the government was violating the civil liberty of the American colonists. We would be wrong to infer, however, that Linds sovereign is similar to the Hobbesian sovereign, offering no security against its own power. What distinguishes a free state from a despotic one, and a free government from an unfree one, according to Lind, is the political security enjoyed by the subject. The security, however, does not consist in freedom from interference. It lies in an institutional structure guaranteeing that government interference should track the interests of the subject: !
55

Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 69-71, 96. 56 Ibid., 71-2. 57 Richard Price, "Additional Observations on the Nature and Value of Civil Liberty and the War with America: Also Observations on Schemes for Raising Money by Public Loans; an Historical Deduction and Analysis of the National Debt; and a Brief Account of the Debts and Resources of France," (London: printed for T. Cadell, 1777), xv.

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This security arises not from any limitation of the supreme power, but from such a distribution of the several parts of it, as shall best insure the greatest happiness of the greatest number. If this distinction could be so made, as to render the interests of the governors and governed perfectly

undistinguishable; this end would be completely obtained, and the subject would enjoy perfect political security.58

The distribution of power in the state provides the subjects with security in two ways. First, while the legislature as a whole may be omnipotent and unlimited in its power, each one of its constituent parts King, Lords, and Commons may have certain limits and may be restrained by Law. The law affords the subject means of legal resistance to the crown by appealing to the judiciary.59 Second, and most importantly, governors share their interests with the governed. To be more precise, interests are shared between the governed and one class of governors, the members of the House of Commons, who are elected for a limited time, and then re-incorporated into the common mass of the people. The institution of election and re-corporation guarantees that members of this elected class of governors enact laws that would, sooner or later, apply to themselves as well. In addition, while the people have no direct means of controlling their elected representatives, those are dependent on the affections of the people and disposed not to abuse their power.60 !
58

Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 72-3. 59 Ibid., 72-4, 95. 60 Ibid., 89-93. See also Lind, "Remarks on the Principal Acts of the Thirteenth Parliament of Great Britain. By the Author of Letters Concerning the Present State of Poland. Vol. I. Containing Remarks on the Acts Relating to the Colonies. With a Plan of Reconciliation," 71-5. Lind is well aware of the argument that the

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In the pamphlet, Lind refers liberally to Benthams Fragment on Government (1776), but his footnotes also mention Montesquieus De lEsprit des loix (1748), and Jean-Louis de Lolmes Constitution de l'Angleterre (1771).61 The latters account of free government, and its distinction from republican government,62 seem to have influenced Lind in particular, leading him to characterize it as the best defence perhaps that was ever written of a limited monarchy against the madness of republican principles.63 Lind and Hey pursue a similar goal Lind more explicitly, and Hey more implicitly: enforcing the authority of the British Parliament to legislate for all of its subjects, and undermining the American justification for resistance. They both start by defining liberty in largely similar terms. Their theories of liberty under government, however, differ from each other considerably. Hey attempts to neutralize the cry against the violation of civil liberty by following in Hobbess footsteps: he defines civil liberty as the absence of restraint imposed by the law, and argues that some restriction of civil liberty is always necessary and beneficial. Unlike Hobbes, however, he wants to preserve the ideas of tyranny and political slavery when the restraints imposed by the law become excessive. His idea of civil liberty in perfection consists in finding the best constitutional !
Americans have separate interests than the British members of the House of Commons. He replies that Americans, merchants trading with the colonies, and many more indirectly connected to the trade with America, sit in the House of Commons, and have sufficient knowledge of the condition of the colonists. Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 121-5. Lind, "Remarks on the Principal Acts of the Thirteenth Parliament of Great Britain. By the Author of Letters Concerning the Present State of Poland. Vol. I. Containing Remarks on the Acts Relating to the Colonies. With a Plan of Reconciliation," 75-8. 61 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 67, 72-5, 77, 84, 92, 95. 62 See, in particular, Book II in Jean Louis De Lolme, The Constitution of England; or, an Ancient Account of the English Government, ed. David Lieberman (Indianapolis, IN: Liberty Fund, 2007). 63 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 84.

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means for maximizing the general freedom of the subject and minimizing interference by the state. Linds idea of liberty under government corresponds more closely to the conventional wisdom of British jurisprudence and political thought at the time of the American Revolution: pre-political liberty, understood as independence or absence of restraint, is traded for civil liberty. However, in order to neutralize the claim that Parliament is trampling on the rights of the American colonists, he limits the definition of civil liberty to include only the absence of interference by other subjects. The subjects security against the government is derived from another source: the distribution of powers, and the sharing of interests between the governed and their representatives in government.

5 Bentham on the Liberty of Robinson Crusoe

In one of his numerous manuscripts, probably written in the 1790s, Bentham wrote a short critique of the ideas of self-government and equal representation. This was before his final conversion to political radicalism and embracement of democracy.64 Next to his comments, he added an intriguing note, which he subsequently crossed out: Dr Price with his self-government made me an anti-American.65 The statement is no doubt hyperbolic and imprecise. Benthams sentiments were pro-British and anti-American well before Price published his Observations in February !
64

See J. R. Dinwiddy, "Bentham's Transition to Political Radicalism, 1809-10," The Journal of the History of Ideas 35 (1975). Philip Schofield, Utility & Democracy: The Political Thought of Jeremy Bentham (Oxford Oxford University Press, 2006), 78-83. 65 UCL CLXX, 175.

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1776. Early in 1775, Bentham was already working with Lind on his pro-government pamphlet Remarks on the Principal Acts of the 13th Parliament of Great Britain. In an autobiographical letter to his literary executor, John Bowring, Bentham makes clear that he sided with the British government: by the badness of the arguments used on behalf of the Americans on that side of the water as well as on this, my judgment [] was ranked on the government-side.66 Price, then, did not make Bentham into an anti-American, but the note on Price and self-government attests to the fact that in Benthams mind, Price represented everything that he found objectionable in the American case. Benthams recurring complaint against the Americans and their supporters is summed up in his letter to Bowring: The whole of the case was founded on the assumption of natural rights claimed without the slightest evidence for their existence, and supported by vague and declamatory generalities.67 To be more precise, the Americans have built a case for resistance on the basis of natural and inalienable rights, which seemed to Bentham to be subversive of all government. In his Fragment on Government (1776), Bentham expresses his hope that the decision to resist a disputed law or to submit to it would be taken on the rational basis of utility, and not on the basis of an ambiguous and sophistical discourse of rights, which stimulates and inflames the passions.68 !
66 67

Fuller, ed., The Correspondence of Jeremy Bentham, Volume 12: July 1824 to June 1828, 293. Ibid. 68 Jeremy Bentham, The Comment on the Commentaties and a Fragment on Government, ed. J. H. Burns and H. L. A. Hart (Oxford: Clarendon Press, 1977), 482-4, 91-2. See also the preface to the second edition, pp. 521-2, where Bentham says of the American controversy: With me it was a matter of calculation: pains and pleasures, the elements of it. No party had argued the question, or taken it up, on that ground [] The battle was fought by assertion. Right was the weapon employed on both sides. As Paula Rudan has persuasively argued, Benthams Fragment on Government, published on 18 April, 1776, can be read as Benthams contribution to the American controversy a comment on the constitutional nature of the colonial relationship, and on the theory of sovereignty and political obligation. See Paula Rudan,

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When the American Declaration of Independence was adopted in July 1776, its language incensed Bentham. In his Short Review of the Declaration, incorporated into Linds Answer to the Declaration of the American Congress (1776), Bentham accuses the Americans of attempting to establish a theory of government absurd and visionary, based on maxims subversive of every actual or imaginable kind of Government.69 He complains that by adding liberty and happiness to the list of inalienable rights, the Americans have out done the utmost extravagance of all former fanatics.70 Clearly, Bentham sees Prices Observations in this context, as a fanatical and inflammatory assertion of a right to liberty defined and defended in a manner subversive of all civil government. In the letter to Lind he drafted in response to Heys pamphlet, Bentham says:

Tis from a particular construction put upon the word liberty and a few others that the popular divine whom you combat with so much force has inferred the impropriety of waging the war against America: with a degree of justice equal to that with which as it seems to you he might have inferred the propriety of a war of the governed of every other country that is or has been

!
Appropriating the Future: Jeremy Bentham on the American Revolution (unpublished). Paula Rudan, Dalla Constituzione Al Governo. Jeremy Bentham e le Americhe (PhD dissertation, University of Bologna, 2007). 69 See Short Review of the Declaration, in Lind, "An Answer to the Declaration of the American Congress," 119. Benthams letter to Lind containing his contribution to the pamphlet has survived, but it is missing the first sheet, in which these phrases presumably appeared. Thus, I am quoting them from the edited version of the text published by Lind. 70 Sprigge, ed., The Correspondence of Jeremy Bentham, Volume 1: 1752-76.

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upon their governors. It is from /by/ a different construction that you support the propriety of the war in question.71 A sober and accurate apprehension of the import of these fundamental words is a true key to Jurisprudence /the recesses of legal and moral science/, and the only effectual antidote against the fascinations of political enthusiasm.72

Bentham believes it to be of the utmost importance to provide a conceptual analysis that would serve as an antidote to political enthusiasm. But how can the negative definition of liberty serve as an antidote? We have seen that Lind effectively utilizes the definition to argue against the natural and inalienable right to liberty. Bentham was, no doubt, sympathetic to this argument. But he seems to have emphasized another implication of the definition: it serves as an antidote to what we might call the problem of the reification of liberty, the making of it into something concrete, which subsequently becomes the object of desire. The problem of reification is alluded to in the draft of the letter on Hey, where Bentham notes that the word liberty may be a substantive, but it is not the name of a substance. It is merely a metaphor or a fiction:

We speak of it as being abridged, that is made shorter; of its being invaded, broken in upon, as if it had a piece cut out of it: of its being violated, as if violence had been done it by a bruise. It is manifest that it is only by means

!
71 72

UCL LXIX, 60. UCL LXIX, 62.

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of a fiction that Liberty is any thing that can be the subject of these or any other operations.73

The reification problem is most clearly presented in Benthams only published defense of his definition, which can be found in two letters he sent to the newspaper under the pseudonym Hermes.74 The letters were written in reply to a commentator calling himself Ignoramus, who, despite a professed aversion to Prices utopian theory and detestable principles, expressed dissatisfaction with Linds definition of liberty. Ignoramus argued that the idea of liberty is antecedent to the idea of coercion, and consists in the positive power to act or forbear.75 In his reply, Bentham first pours his wrath on Price,76 and then proceeds to argue for the negative definition. To support his case, he asks Ignoramus to imagine himself as Robinson Crusoe, alone on his island. You are now with reference to all mankind, he says, at perfect liberty [] Why? Because there is nobody to coerce you. Bentham next proceeds to describe how the creative power assumed by language, especially where the imagination which sets it to work is prompted and enlivened by the affections, leads us to reify the idea of liberty: !
73 74

Ibid. The existence of the letters has been mentioned by the editors of Benthams correspondence and by Paula Rudan, but I am unfamiliar with any previous discussion of them. 75 Letter from Ignoramus to the Gazetteer and New Daily Advertiser, July 13, 1776. 76 Bentham expresses his opinion that a performance so worthless as Prices Observations deserves a less equivocal note of censure than utopian. His own assessment of Prices work is as follows: Of the whole book, theory, principles, and all of it taken together, laid open and exposed as I have seen it, by the masterly writer we are speaking of, I should say, that it was every where either, inconsistent or unintelligible; not written to be understood; not worthy to be detested; a hash of nonsense and contradictions, seasoned by spleen, tossed up for quick consumption, doomed to precipitate decay, and suited only to the vitiated palate of a party. Letter from Hermes to the Gazetteer and New Daily Advertiser, July 26, 1776.

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Liberty for instance coming in this way to be represented as something that can be enjoyed, is, by a continuation of the process, turned as it were into a reality [] It becomes the object of love and rapturous elogium to impassioned politicians. It is a treasure, in short a jewel [] It is sacred, unalienable, inestimable.77

The reference to impassioned politicians and to the unalienable nature of liberty clearly indicates that Bentham has the political enthusiasm of Price and the American colonists in mind. Their mistake, it would seem, is that they let their passions control enliven their imagination and create a glorified image of liberty as a treasure to be had. Benthams antidote consists in analyzing the concept of liberty and re-emphasizing its intangible nature. In his reply to Ignoramus, Bentham does that by asking his interlocutor to imagine that a savage lands on the island, and turns Robinson Crusoe into his slave, commanding him to do things, and punishing him if he fails to comply. Crusoes liberty, with respect to all the things he is constrained to do, is gone. The savage represents coercion, and without the savage, Crusoe is at perfect liberty. Therefore, the idea of coercion is a positive idea, and the idea of liberty is a negative idea the idea of the absence of the savage, or the absence of coercion. Finally, Bentham discusses the suggestion made by Ignoramus that liberty is a power to act or to forbear. Liberty, in truth, is not a any thing, he replies. In !
77

Letter from Hermes to the Gazetteer and New Daily Advertiser, August 1, 1776.

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particular, it is not a species of power. The confusion and impropriety of speaking of liberty as power, according to Bentham, has been ably exposed by Richard Hey in his ingenious performance.78 Benthams critique of liberty as power helps to solve a puzzle pointed out by Skinner:79 how could Bentham claim to have discovered the negative definition of liberty, given that his great nemesis, William Blackstone, defined liberty in seemingly negative terms? According to Blackstone, natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature.80 But Benthams letter to Ignoramus makes clear that he objects to defining liberty as a power of acting.81 His discovery consists in realizing that liberty is not a power, as Blackstone claimed, but only the empty space created by the absence of coercion. In his definition of liberty, Bentham is much closer to Hobbes than to Blackstone, and the real challenge for anyone wishing to vindicate Benthams originality, would be to explain how his definition is different than the Hobbesian absence of external impediments.82 The letter to Ignoramus offers one possible solution: Hobbes saw liberty as the property of any moving body free from impediments, like the water, whilst it is kept in by banks or vessels;83 Bentham defines liberty as the absence of coercion, and coercion can only exist between persons. The first man that ever was, he says in the letter, could not, with respect to other men, have been otherwise than free; since for a !
78 79

Ibid. Quentin Skinner, Political Liberty: The Enlightenment Debate, The Roy Porter Lecture, given at University College London on May 26, 2010. 80 William Blackstone, Commentaries on the Laws of England, 4 vols. (Chicago: University of Chicago Press, 1979), Vol. 1, 121 81 Setting aside, of course, the fact that Bentham thought the law of nature to be illusory. 82 Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668, 79. 83 Ibid., 136.

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time there was no man to coerce him.84 Benthams liberty always refers to the personal or legal relations between people; it is an interpersonal relation.

6 Bentham on Liberty, Law, and Free Government

On a manuscript sheet probably written in 1776, Bentham made a short list of points he wanted to make in reply to different authors. Next to Locke, for instance, he wrote: Every corporal injury not an invasion of property. Next to Price he wrote: Liberty not the Child of Law. Security not destroyd by unlimited Supremacy.85 In this section, I would like to examine Benthams idea of the relation between liberty and law in the early manuscripts, around the time of the American Revolution. Benthams early manuscripts both elaborate and qualify his statement that liberty is not the Child of Law. For example, under the heading Liberty defined, Bentham writes:

Liberty then is neither more nor less than the absence of coercion. This is the genuine, original and proper sense of the word liberty. The idea of it is an idea purely negative. It is not anything that is produced by positive Law. It exists without Law, and not by means of Law. It is not producible at all by Law, but in the case where its opposite coercion has been produced [by Law] before.86 !
84 85

Letter from Hermes to the Gazetteer and New Daily Advertiser, August 1, 1776. UCL LXIX, 43. This manuscript is entitled Key. Parerga Critica. 86 Ibid., 44.

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Liberty in the genuine, original, and proper sense of the word, is not produced by positive law. It is the empty space existing where the law does not operate. As Hobbes says, it is the silence of the law.87 It is the natural [] pristine liberty,88 As Bentham calls it elsewhere, that Robinson Crusoe enjoys. Bentham thinks it imperative not to confuse this original sense of liberty with security. The next paragraph, which carries the heading Liberty used improperly for Security, states: That which under the name of Liberty is so much magnified, as the invaluable the unrivalled work of Law, is not Liberty but Security. According to Bentham, the confusion between liberty and security is of most exemplarily pernicious consequence.89 The difference between the two concepts is explained in the following terms: Liberty subsists by the restraints not being imposed upon ourselves: Security is produced by restraints being imposed on others.90 If security is produced by the restraints imposed on others, liberty can exist without security: Robinson Crusoe may be free without the security of restraints being imposed on anyone else, simply because there is no one else on his island that could coerce him. But despite Benthams insistence on the original sense of liberty, it seems that most of us are not Robinson Crusoes, and we often owe our liberty to the restraint imposed on others. Bentham recognizes that if I am restrained in order to secure your liberty, then it is true that the liberty which you possess you are indebted for to the Law, that, in other words, this Liberty of yours is the work of Law. Here, then, is another !
87 88

Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668, 143. Ibid., 107, 249. 89 UCL LXIX, 44. 90 Ibid., 46.

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sense of freedom: Liberty that is produced by Law, or put differently, Liberty by Security.91 According to Bentham,

Liberty without security is that which is possessed in perfection by Hottentots and Patagonians. Liberty by security is that, the perfection of which is the pride of Englishmen.92

The contrast made here between the wild, insecure liberty of savages and barbarians, and the civil, secure liberty of Europeans, was a popular one in early modern political thought. We can find it, for example, in Locke or in Montesquieu. It demonstrates Benthams idea of liberty to be less innovative than he made it out to be, and not because he was following in Hobbess footsteps, but rather because he was reproducing the familiar contrast between natural or uncivilized freedom and freedom under law and government. Where Benthams theory of liberty diverged from most others is in his insistence that the idea of natural or original liberty is purely negative, and contains no constitutive or enabling conditions. He insisted that even liberty under the law is purely negative, though caused by positive law, because the law operates on the free person only indirectly, through its coercion of others.93 Eventually, Bentham incorporates liberty under the law, which he occasionally refers to as political liberty, into the concept of security, which Bentham understands to be a broader concept, comprising not only a security from coercion, but also a security !
91 92

Ibid., 55-6. Ibid., 55. 93 Ibid., 55-6.

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from other types of harm that others may cause to the individual. As Bentham says in his 1780 manuscripts on the Civil Code, liberty is a branch of security of personal security.94 In books 11 and 12 of De lEsprit des Loix, Montesquieu has distinguished between political liberty with relation to the constitution and political liberty with relation to the subject. Benthams view of the former can be seen as a combination of Heys ideal of civil liberty in perfection and Linds ideal of political security. Like Hey, Bentham believes that the more Laws the less Liberty. In his early manuscripts he says: Nothing can be more erroneous than the notion that liberty is in general favoured by the multiplicity of the Laws: when spoken of them in the Lump.95 Like Hey, he speaks of political liberty in perfection as the proper medium between liberty and coercion:

A Man might be said to possess political liberty in perfection if the Laws & institutions of the society he lived in were such as subjected him to no other coercion than the good of the society required him to be subjected to.96

Bentham distinguishes political liberty in perfection from political liberty entire, which is the maximization of liberty in society, the state a person would have been in if he were not subjected to any coercion whatever by the Laws or institutions of !
94 95

UCL C, 167. UCL LXIX, 148, 574. 96 Ibid., 211.

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any society whatever.97 Clearly, Bentham believes this to be an undesirable state of anarchy. Benthams preparatory note for an argument against Price, quoted in the beginning of this section, Security not destroyd by unlimited Supremacy,98 refers to his belief that political security consists not in the sovereignty of the people and the limitation of the power of government to make laws, but rather in a system of checks on the powers of government. Political security is derived from constitutional laws that provide for the security of the governed.99 In A Fragment on Government, Bentham, like Lind, says that the difference between free and despotic government turns on the distribution of power, and on the sharing of interests between the governed and their elected governors, but he adds to that the duty of government to publicize the reasons for its actions, the liberty of the press, and on the liberty of association for the purpose of opposing the government.100 Bentham is ambivalent about the term free government, for two reasons. First, because it is a metonymy: When the condition of the people is free, or rather secure [] improperly by a Metonymy the Government is said to be free. Second, and more importantly, he thinks that free government is being widely and improperly used to refer to popular government. Like de Lolme, Bentham tries to establish the distinction

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97

Ibid. On political liberty in perfection and political liberty entire see Long, Bentham on Liberty: Jeremy Bentham's Idea of Liberty in Relation to His Utilitarianism, 76-7. 98 UCL LXIX, 43. This manuscript is entitled Key. Parerga Critica. 99 Ibid., 148, 574. 100 Bentham, The Comment on the Commentaties and a Fragment on Government, 484-5.

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between free government, whose constitution provides security to the government, and republican government. 101 Benthams recurring worry that the language of liberty would be used for republican ends applies not only to the term free government, but also to the term political liberty, and particularly to the term constitutional liberty. In the manuscripts on the Civil Code, Bentham defines political liberty in a way surprisingly reminiscent of Prices definition of civil liberty:

Liberty in a political sense is sometimes used / employed / with a view to constitutional law, and sometimes with a view to international law. In the first case it is the absence of all government other than democratical [] In the other case it is the absence of dependence on the government of a foreign nation. I am deprived of constitutional liberty in as far as the government of the state /under which I live/ deviates from one in which every act of government is exercised by an assembly into which every member of the community / individual in the country / without exception, male and female, adult, and minor, sane and insane, convicts and unconvicted, has a vote.102

Benthams definition of political liberty in the international sense as the absence of dependence on the government of a foreign nation is sufficiently close to Prices definition of it as the power of a Civil Society or State to govern itself by its own !
101 102

UCL LXIX, 158, 668. UCL C, 168.

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discretion [] without being subject to any foreign discretion.103 His definition of political liberty in the constitutional sense as the absence of all government other than democratical is Prices claim that In every state every man is his own Legislator,104 though Price did not take it as far as including women, minors, the insane and convicts. The latter is reminiscent of the attempt made by many critics of Price to caricature his position by suggesting that women and children would be included amongst the voters, or as Lind quipped: Every woman too is her own legislatrix.105 In the manuscripts on the Civil Code, Bentham wonders whether personal liberty is necessarily connected to political liberty, and decides that experience proves otherwise. He concludes that the disturbing uses of the term liberty should lead us to use it as little as possible:

Liberty therefore not being more fit than other words in some of the instances in which it has been used, and not so fit in others, the less the use that is made of it the better. I would not use the word liberty in my conversation when I could get another that would answer the purpose, than I would brandy in my diet, if my physician did not order me: both cloud the understanding and inflame the passions.106

!
103

Price, "Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America to Which Is Added an Appendix, Containing the State of the National Debt, an Estimate of the Money Drawn from the Public by Taxes, and an Account of the National Income and Expenditure since the Last War," 3. Bentham would not accept Prices use of the term power. 104 Ibid., 6. 105 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 40. 106 UCL C, 170.

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Yiftah Elazar

The Invention of Negative Liberty

By 1789, however, when he comments on the French Revolution, Bentham recognizes constitutional liberty with the dependence of the governors upon the will of the body of the people. He writes that the efficient cause of constitutional liberty or of good government, which is but another name for the same thing, is not the division of power among the different classes of men intrusted with it, but the dependence, immediate or mediate, of all of them on the body of the people. At the same time, he still sees the British Constitution as the most perfect Constitution that ever was or can be, a view which in later years he would come to radically revise. 107

7 Conclusion

During the years of the American controversy, we see Bentham struggling with the terms liberty, political liberty, and free government, because he is haunted by their misuse by radicals like Price, who, in Benthams view, were out to destroy the British constitution. His negative definition of liberty was meant to deflate the republican ideal of political liberty as the power of the people, while his ideal of security incorporated into it the Whig concern with securing the rights of individuals under the penal, civil, and constitutional law. Despite the differences between them, the theories of liberty proposed by Lind and Hey generally share similar goals and concerns. In his attack on Price, John Lind says: Oft have I wished that the rage of the Goths and Vandals had spared all the buildings and vases of the ancients: most freely in !
107

Jeremy Bentham, Rights, Representation, and Reform: Nonsense Upon Stilts and Other Writings on the French Revolution, ed. Catherine Pease-Watkin Philip Schofield, and Cyprian Blamires, The Collected Work of Jeremy Bentham (Oxford: Clarendon Press, 2002), 405-18.

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Yiftah Elazar

The Invention of Negative Liberty

return would I have pardoned the destruction of all their books of philosophy and politics. What bothers Lind in the ancient books of philosophy and politics is the portrayal of democracy as a practicable form of government.108 Neither Lind nor Bentham nor Hey truly questioned the neo-roman ideas of liberty under the law and of free government. While recognizing the power of these ideas, they tried to incorporate them into a new framework of thought about law and government, which could serve to defend the British constitution.

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108

Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America," 48-9. Lind correctly observes that the equal freedom of citizens in Athens and Sparta was made possible by the enslavement of most of the population, just as the freedom of Americans in the South was made possible by their enslavement of Africans. Ibid., 45-7.

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