Modern Liberty: And the Limits of Government (Issues of Our Time) [Kindle Edition]

In this book, Harvard professor and former Solicitor General (Reagan-era) Charles Fried mounts an elegant defense of "modern" liberty. "Modern" liberty, in Fried's lexicon indicates the freedom associated with natural rights tradition of the English/Scottish Enlightenment, and is to be contrasted with the "ancient" liberty of Rousseau and Sparta. While ancient liberty was about political participation, the essence of Fried's modern liberty is the absence of coercion.

This is an idiosyncratic book for a contemporary conservative thinker, since the ancient/modern dichotomy is today primarily shop talk among Straussians, who seem to come down against "modern" liberty. But then, Fried is not really a conservative, he is a consistent and principled libertarian. Like J.S. Mill or Kant, he is clearly in love with the modern age and he has no time for tradition, status, or organic hierarchies.

"Modern Liberty" is an easy read, but it is dense with ideas. Fried never mentions names but it is clear that, beneath the surface, he is engaged in point-by-point debate with the entire pantheon of modern political philosophy. He takes on Rawls and Walzer and Cohen, but you don't need to know these names to enjoy the book. (Most thrillingly for me, he utterly demolishes the "capabilities" theory of freedom, advanced by Amartya Sen.) He knows all of these arguments by heart and engages them vigorously.

There are no strawmen here. Fried's entire theory is built upon the value of individual rationality, and his argument fully engages the rationality of his interlocutors. He does not belittle or insult anyone's ideas. He presents their arguments in good faith and in the best light possible, and then demonstrates what is wrong in them.

This is a brief but serious book, intended for a popular audience. Libertarians will find a goldmine of intellectual ammunition here, but this book would also make a great text for a beginner's course in political philosophy (especially when used in contrast with something like Sen's "Development as Freedom").

I found this to be a very interesting book even though I increasingly found myself out of sympathy with the author's argument from about halfway through this extended examination of what Liberty might mean in Modern times. Charles Fried is noted as a conservative and did serve in the Reagan administration as solicitor general and on the Massachusetts Supreme Court. However, as I read the book, he seemed more like a pre-Reagan era although his appeal to and admiration fro Justice Stephen Breyer's notion of "active liberty" gives me pause. Even so, this is a book very much worth reading if you would like to experience an extended philosophical argument. We get so little of it anymore that it is quite pleasant to read someone who cares to put energy into thinking rather than appealing to emotion and manipulation to win arguments.

Mr. Fried begins with a brief examination of the notions of what comprised liberty through the course of human history. He notes that in ancient times liberty referred to the city state being free from subjugation by a neighbor whether or not the individual lived under a tyranny within the walls of their city. This is contrasted to the personal aspects of liberty we expect and experience today. The author then considers the competitors to liberty and the implications they imply to the limitation of liberty as a good. Obviously, I cannot recount everything here. When Fried is discussing the individual and contrasting these arguments with other notions, he is quite compelling.

However, about halfway through the book he considers some arguments from those who deny that there is any such thing as pre-tax income, who raise issues about what property rights could be, who reject the idea of natural rights as ridiculous because they have to be defined, who offer ideas about different color money and restrictions of what it can be used for, and even about the possibility and impossibility of real free speech. After considering the notion of a state that imposes taxes (since we need some entity to define what our "rights" are - he says), the book from that point forward - prestodigereedoo - we are compelled to accept the existence of the modern and centralized superstate as the only possible form of government. No appeal to history (this is a short book, after all), or consideration of other models of government. Nor do we get a comparison of the weak Federal government models that Jefferson and Hamilton fought over and the shift to the centralized overpowering Federal Government of FDR (that began with Lincoln). Nor is there any consideration of how governments might naturally arise between small groups of people in an isolated area.

Fried wants a state that would force, for example the Old Order Amish to educate their children according to his lights of what is acceptable. He is willing to trust the state to decide for children what the acceptable level of information is so they can make up their own minds about life rather than what their parents decide is best for life here on earth. He points to the court rulings on Jehovah's Witnesses and blood transfusions and Christian Scientists and medical care for children. After all, the parents signed up for these beliefs, but their children did not.

I have some questions, wouldn't the education the state provides be enlisting those children to someone's belief system? What makes that necessarily better than the parent's system? Sure, it will likely fit a view of the principles of the modern world better than the eighth grade agrarian education of their parents, but who should decide? When does liberty involve being a possession of the state? Would this be something Washington, Jefferson, Hamilton, or Franklin would recognize as liberty? I don't. Frankly, I have real problems with the courts stepping into the families of Jehovah's Witnesses or Christian Scientists no matter how much I disagree with them. When we hear the new Speaker, Nancy Pelosi, say that the 110th Congress would be "all about the children" you begin to see that the slope took decades to slide downhill, but it slid nevertheless.

I just don't understand how the assumption of the centralized state with an all powerful judiciary has to be assumed once one leaves the realm of the individual living alone on an island. What about a small community of folks forming their own community by their own agreement? Why does everything have to be "defined" by the state and done TO the citizens. We elect representatives to represent us NOT to rule us.

His discussion brought to my mind the last speech from the UN propaganda sci-fi film "The Day the Earth Stood Still" when Klaatu reproaches us for being barbarians and urges upon us to make this superpower centralized authority to destroy us if we get out of line. He says:

"There must be security for all -- or no one is secure... This does not mean giving up any freedom except the freedom to act irresponsibly. Your ancestors knew this when they made laws to govern themselves -- and hired policemen to enforce them.

We of the other planets have long accepted this principle. We have an organization for the mutual protection of all planets -- and for the complete elimination of aggression. A sort of United Nations on the Planetary level... The test of any such higher authority, of course, is the police force that supports it. For our policemen, we created a race of robots. Their function is to patrol the planets -- in space ships like this one -- and preserve the peace. In matters of aggression we have given them absolute power over us.

At the first sign of violence they act automatically against the aggressor. And the penalty for provoking their action is too terrible to risk."

Did you catch the notion of not giving up any freedoms, except to act irresponsibly? Who decides what that is? Why should THEY have that right? What if THEY act irresponsibly? What if Gort decides the only correct thing is to take over and run things more directly? This is the problem with centralized government and why we have only gone part way down the European path to social democracy (and some of us think we out to rethink how far we have already gone).

Anyway, Fried writes well, but his legally trained mind loves words almost too much. On page 98 he writes, "We think in language. Language, some language or other, is not only the form but the substance of our thought." This cannot be correct. We all know that we look for words to express thoughts that we already have. Musicians think in music, artists think in color, shape, and form, and athletes think in movement and task. There are many other things people do that they do before they form words. We certainly use words to communicate with one another, we use words and writing to remember, and one might even use words to engage in a kind of deep dialogue within our mind. However, as important as language is, it is not primary in our thinking. It comes later.

The other thing that comes across is the kind of elite clubishness of the arguments included. They are all from professors at elite universities that want to "prove" such things as property not existing without the state designating what is and is not property. Among others he asks what happens to the can of tomato juice you own, but pour into the ocean? Do you still own the juice? Do you own the ocean? This is like the old argument about a ship that you sail all your life and over time replace every part of the ship. Is it still the same ship? I mean, c'mon. This kind of thing would seem ridiculous to ordinary people (because it is) and can only appeal to people who have way too much government pension and tenure supported time on their hands.

Still, I recommend the book for the sheer pleasure of reading at least an attempt at an extended argument and for sharpening your own thoughts about what liberty can mean in our world.

So states (p.66) Charles Fried in "Modern Liberty and the Limits of Government." He presents his case for the validity of this premise in a gentlemanly manner but displays a somewhat loose and circuitous form of argumentation. Fried actually begins by accentuating "modern liberty" as "individual liberty made normative" and by distinguishing it from the "the liberty of the ancients" which dealt with self-rule by states, not individuals. He then relates three situations of individual liberty overstepped: 1) The language police in Quebec, 2) lock-in universal health care, also in Quebec, and 3) Vermont small-town heritage vs. Wal-Mart.

Having established a tentative platform of his own viewpoint on liberty, Fried engages other scholarly opinions on the limits of liberty and governmental interference in individuals' lives. Liam Murphy and Thomas Nagel, the authors of "The Myth of Ownership: Taxes and Justice" provide some of those. They concern themselves with distributive justice and, according to Fried, insist that pretax ownership is nonexistent. They allow for "'individuals...retain[ing] a certain degree of sovereignty over themselves,'" (including "the right to speak one's mind" and "a minimal form of economic freedom") but government is seen as the seat of most authority and their focus is on striving for forms of economic equality or at least equivalency rather than liberty. Fried presents their contentions without irony or mockery -- most welcome -- but he may confuse readers by not clearly and on-the-spot elucidating where he and this pair philosophically diverge. He does note tellingly on p. 112: "[With the New Deal], government was set free intellectually and politically to remake society on whatever terms the public could be persuaded it wanted." Could be persuaded. By government. Two pages later he comments, "So if all there is to liberty of the mind is the liberty of the ancients, the liberty to refect on, discuss, and choose one's government, it is too little." Fried wants liberty in all avenues of life.

Although Fried clearly believes in the legitimacy of government as a necessary means for organizing humanity on a scale beyond that of individual and family, he considers the individual to be the prime seat of determination. He edges beyond the generally acknowledged definition of liberty -- freedom from undue restraint -- to claim, "Liberty is self-ownership." (p.180). He finds objectionable any action (from individual or collective body) that infringes on someone's freedom. So, when he returns to his Quebec and Vermont cases, he rejects the premise that the majority (the voters, the government) is entitled to impose language, health care, and shopping limitations on all within the civic borders. He states that just as the U.S. Constitution directs that "nor shall private property be taken for public use, without compensation," those who dissent from a decision being implemented should be compensated when they absolutely cannot be accomodated: "[W] e owe each other a debt of common humanity and we also owe the cost of public goods." In his three cases, Fried offers non-legistlative means for obtaining the ends desired. For example, Vermont's downtowns can be maintained even if Wal-Marts dot the peripheries by taxing everyone to subsidize the small store owners; that way, the downtowns remain open and yet Vermonters can go to Wal-Mart and spend their disposable income on cheaper products if they wish.

Fried has a point. Current society relies too often on sweeping legislative or regulatory edicts to address concerns that might be alleviated by methods that don't trod of individual's liberty. Although...what is really different about a tax on the population vs. a ban on Wal-Mart? Won't there be irate taxpayers whose liberty is being assaulted by having to pay another tax? Still, the idea is to better locate the true causes of a perceived problem, not merely to slap on an ill-fitting band-aid and declare, "All better."

Nevertheless, Fried's focus on liberty as really the fundamental concern of human beings invites dispute. He may think of liberty as an immutable and primary motivator, but most people would likely not agree, at least not entirely. Liberty is a value. When a person is starving, liberty makes way, if necessary, for the more pressing requirement of nourishment. When a person's child is threatened by someone with a gun, that person throws liberty to the wind *in extremis* if the gunman orders him to become a captive. Etc. Furthermore, each person balances a number of values. Fried considers beauty, the good, pleasure, religious morals and secular ethics liberty's less worthy competitors, but not everyone shares this value system. So, liberty in the hubbub of the real world may be thought of as one in a stack of values cards that each individual shuffles as he sees fit. And although Fried believes that in the name of liberty each individual should be able to live with things around them that they don't support, the fact is that many if not most human beings are not made that way. If a community doesn't want a Wal-Mart (or two) gobbling up large tracts of land on its outskirts, why shouldn't it refuse the megastore a business permit via municipal or county civic processes? Quite simply, liberty includes a tacit agreement that its exercise is subject to review of circumstances and applicability. Sometimes, the liberty of one will be bent out of shape because to do otherwise would impinge on the liberty of many. Liberty itself isn't disposable by any stretch of the imagination, but the choices of life prevent it always being wholly available to every person.

"Modern Liberty and the Limits of Government" serves to spark discussion of inate vs. granted rights, public/political policy, social agendas, and the best solutions to the dilemmas raised in all of these arenas. Fried isn't altogether persuasive in his arguments, but he, as he intends, opens a learned door to further debate and definition. Recommended.