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8/13/2019 Art. Y. Elazar - Negative Liberty
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8/13/2019 Art. Y. Elazar - Negative Liberty
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Yiftah Elazar The Invention of Negative Liberty
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1 Introduction
In the beginning of his famous lecture “Two Concepts of Liberty,” Isaiah Berlin
quotes Heine’s warning to the French not to underestimate the power of ideas, because
“philosophical concepts nurtured in the stillness of a professor’s study could destroy a
civilization.” 1 The concepts nurtured in the stillness of Berlin’s 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 Berlin’s 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).
1 Isaiah Berlin, Four Essays on Liberty (Oxford; New York: Oxford University Press, 1969), 310.2 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 histranscripts of some of the Bentham manuscripts. Long’s Douglas G. Long, Bentham on Liberty: Jeremy
Bentham's Idea of Liberty in Relation to His Utilitarianism (Toronto: University of Toronto Press, 1977). isstill the best study written on Bentham’s conception of freedom, and it has been extremely helpful intracking down relevant passages in Bentham’s early writings.
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The confrontation between Price’s “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
3 Another writer who has been mentioned as defending a similar conception of freedom, and whose work isnot 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 RichardRorty, 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 Stråth (Cambridge: Cambridge University Press, 2003), 19.6 Quentin Skinner, “Political Liberty: The Enlightenment Debate,” The Roy Porter Lecture, given atUniversity 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: OxfordUniversity Press, 1997), 41-50.
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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.
8 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 influencedBentham, and found little no support for the existence of such influence, except on one issue – acommitment to clarifying the language of political analysis. Crimmins did not look specifically at thequestion 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 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 Bentham’s 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 Price’s “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 Price’s 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, Price’s approach was
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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
Price’s “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
9 Richard Price, "Observations on the Nature of Civil Liberty, the Principles of Government, and the Justiceand Policy of the War with America to Which Is Added an Appendix, Containing the State of the NationalDebt, an Estimate of the Money Drawn from the Public by Taxes, and an Account of the National Incomeand 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 Price’s 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 Lind’s offensive comments on Price’s 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:
12 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 Price’s definition of liberty “is inconsistent with the great endof 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 whatwe 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 theCountry 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 Libertyand Government Preceded by a Letter to a Friend, on the Pretensions of the American Colonies, in Respectof Right and Equity," (York: printed by A. Ward, for J. Dodsley, T. Cadell, and R. Baldwin, London; andJ. Todd, York, 1776), 96-128. Anonymous, "Civil Liberty Asserted, and the Rights of the SubjectDefended, 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 aGentleman 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, Lind’s 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 Blackstone’s
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 Lind’s 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,”
15 Letter from “Attilius” to the Gazetteer and New Daily Advertiser , March 27, 1776.16 Letter from “Attilius” to the Gazetteer and New Daily Advertiser , March 29, 1776.17 See Bentham’s 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: TheAthlone Press, 1968), 204-7, 35. See also his letter to John Bowring from 30 January, 1827, in JeremyBentham, The Correspondence of Jeremy Bentham, Volume 12: July 1824 to June 1828 , ed. LukeO'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: ClarendonPress, 2006), 288, 92-3, 307. The two pamphlets are John Lind, "Remarks on the Principal Acts of theThirteenth 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 Lind’s 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 Bentham-
Lind definition, arguing that “Constraint is understood to include something more than a
mere deprivation of liberty.” 20
Bentham read Hey’s pamphlet “with no small pleasure and satisfaction,” and
drafted a long, rambling letter to Lind, originally intended for publication as an appendix
to Lind’s Three Letters to Dr. Price (1776). In the draft, entitled “Hey,” Bentham
18 Bentham’s 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 Bentham’s account of their respective contributions to the definition, when he published theletters in the form of a pamphlet. See John Lind, "Three Letters to Dr. Price, Containing Remarks on HisObservations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy ofthe 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 Hey’s 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
Hey’s Observations on the Nature of Civil Liberty, and the Principles of
Government (1776) is possibly the most philosophically oriented and clearly argued reply
to Price’s 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
21 UCL CXVIII, 57-68.22 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 onDr. Price's Theory and Principles of Civil Liberty and Government Preceded by a Letter to a Friend, on thePretensions 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 MacCallum’s 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 Price’s
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
24 Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 8.25 According to MacCallum, freedom is always of an agent or agents, from preventing conditions, to do, notto 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 Hobbes’s 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 Price’s 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. Hey’s 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 Hobbes’s definition of
the liberty of the subject, in Chapter 21 of Leviathan , as “an exemption from laws.” 31
Indeed, Hey’s 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
30 Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668 , 136.31 Ibid., 138.32 Ibid.
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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 individual’s 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:
37 See Thomas Hobbes, The Elements of Law Natural and Politic , ed. J. C. A. Gaskin (Oxford: OxfordUniversity Press, 1999).. I am following the argument of Philip Pettit that despite the shift in semantics,Hobbes’s ontology of liberty is similar in The Elements and in Leviathan . See Philip Pettit, “Freedom inHobbes’s 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
Hey’s 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
39 Hey may be deriving his idea of the constitutional right to civil liberty in perfection from Montesquieu’sdiscussion of free government. He inquires what Montesquieu meant by speaking of free government, andconcludes 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
42 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 Price’s 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 Lind’s
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
43 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 hereon, 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 Price’s Observations :“Letter I: “Of the Nature of Liberty in general,” “Letter II: of Civil Liberty, and the Principles ofGovernment,” and “Letter III: Of the Claims made by Great Britain on her Colonies, and the Measures usedto 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 CivilLiberty, 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 Bentham’s definition of negative liberty, Lind utilizes it for his
main line of attack, which is directed against Price’s 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 Bentham’s 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 Lind’s argument turns out to be similar in form to the
standard argument against Price’s general idea of liberty, the argument that it is
incompatible with government, which requires the sacrifice of natural liberty. In Lind’s
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 andPolicy of the War with America to Which Is Added an Appendix, Containing the State of the NationalDebt, an Estimate of the Money Drawn from the Public by Taxes, and an Account of the National Incomeand Expenditure since the Last War," 1.48 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 21. In the
pamphlet, Lind attributes this quote to Bentham’s Fragment on Government (1776), but the Fragment does
not contain such a phrase. Lind’s Remarks , however, to which Bentham contributed, contains an argumentagainst Locke’s natural right to property, which says, in Bentham’s characteristic style: “Whence arises thisright? 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 LettersConcerning 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 CivilLiberty, 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 Price’s
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 Ibid., 27.52 Ibid., 35-67.53 Ibid., 67, 87.54 See John Lind, "Letters Concerning the Present State of Poland Together with the Manifesto of theCourts 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 Lind’s 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 CivilLiberty, 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 withAmerica: Also Observations on Schemes for Raising Money by Public Loans; an Historical Deduction andAnalysis 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 CivilLiberty, 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 ActsRelating 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 Bentham’s Fragment on Government
(1776), but his footnotes also mention Montesquieu’s De l’Esprit des loix (1748), and
Jean-Louis de Lolme’s Constitution de l'Angleterre (1771). 61 The latter’s 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 Hobbes’s 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 thatAmericans, merchants trading with the colonies, and many more indirectly connected to the trade withAmerica, 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 Concerningthe Present State of Poland. Vol. I. Containing Remarks on the Acts Relating to the Colonies. With a Planof Reconciliation," 75-8.61 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, 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 Accountof 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 CivilLiberty, 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.
Lind’s 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 subject’s
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 1790’s, 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. Bentham’s 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 Historyof 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 Bentham’s mind, Price
represented everything that he found objectionable in the American case.
Bentham’s 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 Fuller, ed., The Correspondence of Jeremy Bentham, Volume 12: July 1824 to June 1828 , 293.67 Ibid.
68 Jeremy Bentham, The Comment on the Commentaties and a Fragment on Government , ed. J. H. Burnsand 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, Bentham’s Fragment on Government , published on 18 April, 1776, can be read asBentham’s contribution to the American controversy – a comment on the constitutional nature of thecolonial 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
Lind’s 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 Price’s 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 Hey’s 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 AmericanCongress," 119. Bentham’s letter to Lind containing his contribution to the pamphlet has survived, but it ismissing the first sheet, in which these phrases presumably appeared. Thus, I am quoting them from theedited 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 it’s being invaded,
broken in upon, as if it had a piece cut out of it: of it’s being violated, as if
violence had been done it by a bruise. It is manifest that it is only by means
71 UCL LXIX, 60.72 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 Bentham’s 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 Price’s “utopian”
theory and “detestable” principles, expressed dissatisfaction with Lind’s 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 Ibid.74 The existence of the letters has been mentioned by the editors of Bentham’s 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 Price’s Observations deserves a lessequivocal note of censure than “utopian.” His own assessment of Price’s 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 themasterly writer we are speaking of, I should say, that it was every where either, inconsistent orunintelligible; not written to be understood; not worthy to be detested; a hash of nonsense andcontradictions, seasoned by spleen, tossed up for quick consumption, doomed to precipitate decay, andsuited 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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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
Bentham’s 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 Bentham’s 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 Bentham’s 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 Ibid.79 Quentin Skinner, “Political Liberty: The Enlightenment Debate,” The Roy Porter Lecture, given atUniversity College London on May 26, 2010.80 William Blackstone, Commentaries on the Laws of England , 4 vols. (Chicago: University of ChicagoPress, 1979), Vol. 1, 12181 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 Bentham’s 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 destroy’d by unlimited Supremacy.” 85 In this
section, I would like to examine Bentham’s idea of the relation between liberty and law
in the early manuscripts, around the time of the American Revolution.
Bentham’s 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 it’s opposite coercion has been produced [by Law]
before.86
84 Letter from “Hermes” to the Gazetteer and New Daily Advertiser , August 1, 1776.85 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 Bentham’s 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 Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668 , 143.88 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 Bentham’s idea of liberty to be less innovative than he made it out to be,
and not because he was following in Hobbes’s footsteps, but rather because he was
reproducing the familiar contrast between natural or uncivilized freedom and freedom
under law and government. Where Bentham’s 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 Ibid., 55-6.92 Ibid., 55.93 Ibid., 55-6.
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any society whatever.” 97 Clearly, Bentham believes this to be an undesirable state of
anarchy.
Bentham’s preparatory note for an argument against Price, quoted in the
beginning of this section, “Security not destroy’d 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
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
Bentham’s 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
Price’s 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
Bentham’s definition of political liberty in the international sense as “the absence
of dependence on the government of a foreign nation” is sufficiently close to Price’s
definition of it as “the power of a Civil Society or State to govern itself by its own
101 UCL LXIX, 158, §668.102 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 Price’s 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 andPolicy of the War with America to Which Is Added an Appendix, Containing the State of the NationalDebt, an Estimate of the Money Drawn from the Public by Taxes, and an Account of the National Incomeand Expenditure since the Last War," 3. Bentham would not accept Price’s use of the term “power.”104 Ibid., 6.105 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 40.106 UCL C, 170.
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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 Bentham’s 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 CollectedWork of Jeremy Bentham (Oxford: Clarendon Press, 2002), 405-18.
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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.
108 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 48-9. Lindcorrectly observes that the equal freedom of citizens in Athens and Sparta was made possible by the
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