Posts Tagged ‘Isaiah Berlin’

The controversial jurisprudence of Ronald Dworkin

February 16, 2013

Ronald Dworkin is revered by many legal scholars and denigrated by many others, primarily because of his left-of-center political philosophy. Two examples from prominent critics identify the nature of this divide:

“Judge Richard A. Posner, who sits on the federal appeals court in Chicago, wrote in a 2001 study of public intellectuals that Professor Dworkin’s popular writings were slippery, partisan and predictable. ‘Dworkin’s dominant bent as a public intellectual is to polemicize in favor of of a standard menu of left-liberal policies.’” Adam Liptek, ‘Ronald Dworkin, Scholar of the Law, Is Dead at 81, New York Times, February 14, 2013

“His critics said that Professor Dworkin’s approach was a smoke screen. Dworkin writes with great complexity but, in the end, always discovers that the moral philosophy appropriate to the Constitution produces the results that a liberal moral relativist prefers.” Robert H. Bork, the onetime Supreme Court nominee wrote in 1997 in ‘The Tempting of America’. ibid.,

No doubt such sophistry was inevitable, given Ronald Dworkin’s education at Harvard and Oxford, two of the most left-leaning repositories of Anglo-Saxon jurisprudence in the Western world. However, the polemics must not be allowed to detract from the high quality of Ronald Dworkin’s scholarship.

Within the lefr-leaning establishment, especially that located at Harvard and Yale, Ronald Dworkin repeatedly took the better side, arguing for the importance of individual rights, free speech and the integrity of the law, against Marxist-led proponents of critical legal studies – such as Harvard’s Duncan Kennedy – who attepted to tear down the common law as a class-based instrument of false consciousness.

Dworkin’s arguments on First Amendment values played an influential role in preventing the anti-speech feminism of Catharine McKinnon from dominating the American progressive movement. Dworkin warned appropriately against the temptation – bpth from the left and from the right – to abdicate questions of jurisprudence to crude majoritarianism (a temptation that Barack Obama curently seeks to exploit). Dworkin consistently stressed that the law is not simply an extension of politics by another means. Hence the title of his book, ‘Law’s Empire’.

Whewre Dworkin comes something of a cropper, in my judgment, is in his treatment of the complex interconnection between liberty and rights. In this area, Dworkin never completely understood – or less charitably chose publicly not to acknowledge – the clear distinction between negative and positive freedom outlined by his brilliant Oxford colleague, Sir Isaiah Berlin.

In a nutshell, Berlin promoted the concwpt of negative freedom – whereby any individual should be protected against coercion by any other individual or organization of individuals – over the concewpt of positive freedom – freedom from poverty, freedom from disease, etc. – arguing that pursuit of such latter freedoms invariably ends up in coercing some individuals by others.

In essence, negative freedom protects the inalienable right of any individual to his life and to his liberty and the imprescriptible right of any individual to his property, be it human or physical in nature.

Drorkin would have none of that. Most particularly, he had no time for economic freedoms, arguing instead that a just society would not allow individuals to benefit from the arbitrary luck of such natural talents as intelligence and talent, or the advantage of some chance acquisition. Such endowments are morally arbitrary and ought not to affect the distribution of resources in society.

Dworkin’s theory of inequality, in this sense, can be defined as luck-egalitarianism. In my judgment, anyone crazy enough to enforce such a jurisprudence would impose economic retardation and extensive coercion upon the people. Fortunately for those of us who, by good fortune, inherited Anglo-Saxon jurisprudence, Ronald Dworkin did not seriously attempt to force this view upon his fellow-men.

Indeed, Ronald Dworkin did not even impose this jurisprudence upon himself. He took full advantage of his privileged education at Harvard and Oxford further to hone God-given talents, and to live justifiably well on the good fortune showered upon him by a beneficient nature. And by so doing, he delighted us all with his erudition and high-quality scholarship.

Sweet Liberty: Lost in Bruce Bartlett’s Translation

April 12, 2010

“The freedom which consists in being one’s own master, and the freedom which consists in not being prevented from choosing as I do by other men, may, on the face of it, seem concepts at no great logical distance from each other – no more than negative and positive ways of saying the same thing.  Yet the ‘positive’ and ‘negative’ notions of freedom historically developed in divergent directions, not always by logically reputable steps, until, in the end, they came into direct conflict with each other.” Isaiah Berlin, Four Essays on Liberty, 1969

It is always difficult to respond to a column that is permeated with confusion and incoherence, the product of a mind that lacks analytical precision and clarity. Such is the case with Bruce Bartlett’s April 9, 2010 Forbes.com stream of consciousness entitled: Has America Really Become Economically Unfree?  Because Bartlett’s confusion is dangerous for liberty, correctly defined, I return to a topic that I have already addressed in my column dated December 29, 2009.

Bartlett’s confusion stems from his inability to distinguish between negative and positive freedom as defined by Isaiah Berlin in his famous 1969 statement reproduced above. 

The correct definition of liberty or freedom is negative freedom, the condition of men in which coercion of some by others is reduced as much as possible.  Liberty, or freedom, describes the absence of a particular obstacle – coercion by other men.  The presence of liberty, or freedom, does not guarantee man wealth, good health, good looks, happiness, or indeed any circumstance in life except freedom from coercion. Liberty, or freedom is not universally valued by men, but for the man devoted to liberty or freedom, there is nothing that makes it important. And he has no reason for his devotion. The reality that complete liberty, or freedom, is unattainable, because it is the nature of man that the strong will always attempt to dominate the weak, whether through government or through private associations, does not imply that it should not be prized above all else.

The direct enemy of negative freedom is positive freedom, which derives from the desire by man to be his own master, to be independent of external forces of whatever kind, to be rich where he is poor, to be handsome where he is ugly, to be healthy where he is sick, to be happy where he is miserable, all by invading the negative freedom of others, by coercing them to his will, by divesting them of their properties for his own advancement and the supposed advancement of others in society.

In essence, the difference between negative and positive freedom is encapsulated in the difference between the classical liberal doctrine of limited government, private property, individual liberty and the rule of law, on the one side  and  the progressive socialist doctrine of unlimited government, communal property, the  regulatory state,  and  rule by any vote majority, on the other side.  Because the United States teeters on the dividing line between these two doctrines at this time, Bartlett’s attempt to fuse the two into a single murky philosophy must be confronted in the clearest possible way.

Bartlett acknowledges in his column that Government intervention is taking some toll of liberty in the United States.  Concern about such losses, however, is exaggerated by libertarians and conservatives:

“we tend to underappreciate the ways in which technology frees us.  The blessings of things like cellphones, PDAs and the Internet compensate for an enormous amount of waste and inefficiency elsewhere in society and the economy.  To the extent that technology boosts productivity, it makes the burden of government more bearable.” (Bartlett, Forbes.com)

Translated: “Give me digital television and a DVD recorder in my prison cell, and I am free.”

“Another thing we tend to forget is the great benefit of the wealth that almost all Americans have today.  Not many years ago, people had to spend an enormous percentage of their waking hours simply acquiring and preparing food. Now, even among poor households, obtaining adequate food is a minor concern.” (Bartlett, Forbes.com)

Translation:  “Just push my three squares a day through the slit in my prison door and I am free.”

“At the same time, advanced health care and nutrition, not to mention Social Security and Medicare, have vastly increased freedom in old age.” (Bartlett, Forbes.com)

Translation: “Nurse me from the cradle to the grave in my warm prison cell, and I am free.”

In a lengthy column, Bartlett cites example after example of positive freedoms, provided by an ever-expanding, coercive state, as counter-balances to the curtailment of negative freedom. He never remotely recognizes the fundamental difference between the two concepts.  Mr. Bartlett,  positive freedoms are not freedoms at all in the true sense of the term. They are redistributive transfers that  require the coercive power of the state, and that significantly diminish the liberty, or freedom, of mankind.

On Liberty

December 29, 2009

For the most part, my columns so far have focused on economic issues, notably the forces that encourage or discourage growth in per capita income in the United States.  I must confess that the wealth of  a nation has always been a secondary consideration (albeit an important secondary consideration) in the focus of my own writings and thoughts. Far more important, for me, is the promotion and protection of individual liberty.  So I am devoting this column to a brief discussion on liberty.

What is liberty?  This is a very important question because, in my judgment, many individuals  (I would say perhaps a majority of economists)  allow themselves to be confused between two competing notions, only one of which is correct.

The correct definition of ‘liberty’ or ‘freedom’ (I use the terms synonymously) is ‘the condition of men in which coercion of some by others is reduced as much as possible in society’  or ‘ independence of the arbitrary will of another’ (Friedrich von Hayek, The Constituion of Liberty 1960).  This oldest meaning of liberty, is sometimes described as its ‘vulgar’ meaning.  However, given the confusion that clever philosophers have caused by their attempts to improve upon it, I prefer to stand by this description.  In this definition, liberty is sometimes criticized  as an entirely negative concept; but this criticism is misplaced:

“It is often objected that our concept of liberty is merely negative.  This is true in the sense that peace is also a negative concept or that security or quiet or the absence of any particular impediment or evil is negative.  It is to this class of concepts that liberty belongs: it describes the absence of a particular obstacle – coercion by other men.  It becomes positive only through what we make of it.  It does not assure us of any particular opportunities, but leaves it to us to decide what use we shall make of the circumstances in which we find ourselves”  (Hayek, 1960).

Negative freedom, so defined, is entirely distinct from the concept of positive freedom which commonly, but erroneously is placed beside it in unsophisticated discussions of freedom.  The positive sense of the word freedom derives from the wish on the part of the individual to be his own master, to be independent of external forces of whatever kind.  As  Isaiah Berlin, concluded, positive freedom is the greatest enemy of negative freedom:

“The freedom which consists in being one’s own master, and the freedom which consists in not being prevented from choosing as I do by other men, may, on the face of it, seem concepts at no great logical distance from each other – no more than negative and positive ways of saying the same thing.  Yet the ‘positive’ and ‘negative’ notions of freedom historically developed in divergent directions, not always by logically reputable steps, until, in the end, they came into direct conflict with each other” (Berlin Four Essays on Liberty 1969).

In essence, negative freedom is the concept that defines classical liberal thinking. Positive freedom is the concept that defines the  bastard philosophy of ‘liberalism’ as currently practised in the United States, a philosophy that  has become a favored weapon of  liberal fascism or even of despotism.

Why would one pursue the objective of liberty or freedom, correctly defined?  There are several possible answers to that question, but let me focus on just two. The first reason, the one that primarily motivates my thoughts, is that liberty requires no justification at all:

“For the man devoted to liberty, there is nothing which makes liberty important.  And he has no reason for his devotion.” (R. Rhees,  Without Answers)

Most economists (including Charles Rowley to some secondary degree) however, if they do  have positive feelings for liberty, are motivated by utilitarian or Aristotelean notions that liberty leads to human flourishing:

“He who lets the world, or his portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation.  He who chooses to plan for himself employs all his faculties.  He must use observation to see, reasoning and judgment to foresee, activity to gain materials for decision, discrimination to decide and, when he has decided, firmness and self-control to hold to his deliberate decision…. It is possible that he might be guided on some good path, and kept out of harm’s way, without any of these things.  But what will be his comparative worth as a human being?  It really is of importance, not only what men do, but also what manner of men they are that do it” (John Stuart Mill, On Liberty 1859)

On that splendid note, I draw this column to a close.  Because, from time to time, I shall write about liberty in these columns, I think that it is essential to let my readers know just how I define the term.

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