The American Spectator

Templeton Essay

The Limits of Liberty

By Roger Scruton from the December 2008-January 2009 issue

(Page 2 of 2)

Nevertheless, liberty of opinion still exists in Western societies, and although I have done my academic career no good by writing the above paragraph, The American Spectator will not suffer from publishing it. To what do we owe this great achievement? The test case, as Seamus Hasson showed in the first essay in the series (TAS, February 2008), is religion. Religious opinions are unlike scientific opinions or even political opinions, in that they are expressions of existential commitment. Religious believers identify their deepest interests, their community, their sense of life's purpose, through their faith, and react to those who question it with suspicion and distrust, if not downright hostility. How then can a society be constituted, so as to permit the peaceful coexistence of rival religions, and to protect people who live by one faith from the intolerance of those who live by another? As Hasson argued, the American Founders took the bold step of addressing this problem in the Constitution, introducing the "no establishment" clause in order to ensure that the state would remain neutral in religious disputes, standing above them and maintaining in the face of them the equal right of every citizen to the opinions that are his.

As Hasson reminds us, the purpose was not to repress religion or to exclude it from the affairs of state. On the contrary, the purpose was to permit religion, and to allow people of faith the right to practice and express their beliefs without hindrance from those who do not share them and without hindrance from the state. Once again, however, the defender of liberty comes up against the advocate of license. Religion is one of the most important vehicles for the passing on of social order, moral values, and spiritual capital. Religious people are by nature hostile to license, strive to control their sexual lives, and are usually first in the exercise of those conservative virtues that get up the liberal nose. They are eager to teach children the norms of restraint and decency; they are in favor of discipline and respect and on the whole support the adult against the adolescent in all matters where the two conflict. Hence the advocates of self-expression and moral anarchy would like to marginalize religious people, and to remove their influence from the public space of our culture. To this end they have reinterpreted the "no establishment" clause not as permitting religion but as forbidding it. Religion, they argue, is excluded from every office, activity, or social arena governed (however indirectly) by the state--so there cannot be prayers or Bible classes in public schools, there cannot be any acknowledgement of God, the Ten Commandments, or the ascendancy of the Christian religion in any legal or political institution, and those who receive state support for their charitable work among the poor and the broken-hearted cannot use the Bible as their guide. Never has a more effective means been discovered, of cutting off a whole people from its inheritance of moral and spiritual capital than this one, whereby the constitution devised to permit religious beliefs is used as an instrument for suppressing them.

THIS RETURNS ME TO Rémi Brague's discussion of the Judeo-Christian inheritance. As Brague points out, the Judeo-Christian tradition has portrayed God as standing in a free relation to his creatures. He has not sought to compel our love--for love is not love when forced. He has sought to reach an agreement, a covenant, that will govern not only our relations with Him but our relations with each other. That seems to imply a contrast with the Islamic vision. Islam means submission, and though this submission should be freely undertaken, it cannot be freely escaped. Hence it is easy to interpret the Quran as forbidding us to question, or even to interpret, the direct commands of God. Those who cite the holy book in justification of oppressive customs such as forced marriage, female circumcision, the stoning of adulterers, and the sequestration of women do so with no sense of blasphemy. They may have mistaken the letter of the text, but they are confident in its spirit. In their eyes the God of the Quran is an angry old man with a beard, a kind of super-mullah, as fierce and humorless as his spokesmen here below.

That this is a travesty of Islam goes without saying. But it is a travesty with a large and popular following, rooted in a long-standing way of reading the Quranic verses. And it contrasts with a central strand of the Christian tradition, to which we owe what is perhaps the most important guarantee of liberty in the modern world, which is the rise of a secular jurisdiction. The privatization of religious law was clearly a part of Jesus's mission, and one of the reasons why he aroused such hostility from the Jewish religious authorities. His striking pronouncement in the story of the tribute money, that we should render unto Caesar what is Caesar's and unto God what is God's, has served as authority down the centuries for the view that, in public matters, it is human and not divine government that should be obeyed. This idea gained credibility through St. Paul's letters, influenced as they were by Roman law and by the knowledge that the early Church enjoyed the protection of a developed system of law. This law did not claim religious authority and was tolerant of all gods who did not openly confront it with intransigent demands. Even if religious edicts crept back into European jurisdictions after the triumph of Christianity, the Roman vision of sovereignty as exercised through secular law survived into modern times. It served as the foundation of national (in other words territorial) jurisdictions, and shaped legal systems in which religious diversity is not merely permitted but openly tolerated, as being no concern of the secular state.

This kind of secular jurisdiction has found its home in the nation-state, and--as Jeremy Rabkin points out, in the last essay in the series (TAS, November 2008)--the nation-state has been the greatest guarantor of freedom in the modern world, precisely because it establishes a territorial, rather than a religious, jurisdiction. It is this that enables the nation-state to treat citizenship, rather than creed, as the criterion of membership, and that enables it to adjudicate conflicts between people of different faiths. Once again, however, we find a growing conflict between conservative and liberal over the role of the nation-state and its claims to allegiance. Conservatives have, on the whole, accepted nationality as a sphere of local duties and loyalties, defining an inheritance and a community that has a right to pass on its values from generation to generation. The nation may indeed be the best that we now have, by way of a society linking the dead to the unborn, in the manner extolled by Burke. And for this very reason it arouses the hostility of liberals, who are constantly searching for a place outside loyalty and obedience, from which all human claims can be judged. Hence, in the conflicts of our times, while conservatives leap to the defense of the nation and its interests, wishing to maintain its integrity and to enforce its law, liberals advocate transnational initiatives, international courts, and doctrines of universal rights, all of which, they believe, should stand in judgment over the nation and hold it to account.

OUT OF THIS HAS ARISEN yet another conflict between liberty and license. The liberal position tends to found itself on the idea of human rights, and to espouse international jurisdiction, as upholding human rights against the governments of nation-states. Conservatives, witnessing the behavior of the U.S. Supreme Court, have become suspicious of the "rights" idea. When something is a fundamental right under the Constitution, then it becomes an absolute claim in the hands of the individual, and one that cannot be limited or compromised by public interest. It needs only one person successfully to argue that some particular piece of pornography falls under the protected category of free speech, for the entire mass of offensive material to be thenceforth protected absolutely, lifted above the world of legal and political compromise, and given a protection that no normal and worthy human interest could ever hope for. Hence "rights" talk is as useful in the cause of license as it is in the cause of liberty.

Rights, as the liberal American jurist Ronald Dworkin puts it, are trumps. If my interest is something I want, while yours is something you have a right to, then, in any conflict, it is you whom the law will protect, not me, even if my interest is more fundamental to my well-being than yours is to your well-being, and even if a compromise solution would be for the common good. Rights are rescued from the political process, and become non-negotiable possessions of those who can claim them. They give the courts precedence over the legislature, and allow unelected judges to undo the most elaborately thought-through and profoundly needed legislation, in order to protect the interests of the individual, however unimportant his interests might be. Rights therefore constitute a serious danger to the political process, as well as an absolute necessity if that process is to be founded in consent. Hence we should be meticulous in defining them, and show a true awareness of what is at stake. This awareness, needless to say, is vanishing from the political culture of our age, as more and more people scramble to define as rights, those interests that they wish to safeguard forever from invasion.

 This is particularly so when it comes to international courts, which do not have to bear the cost of their decisions, and don't have to reconcile the rights they grant with the many interests that conflict with them. Hence international courts provide a perfect forum for people who wish to advance their own interests without concern for the conflicting interests of others. Here is a simple example: The careful attempt to reconcile conflicting interests on an overcrowded island has led the English Parliament to pass complex and sensitive planning laws that control building in the countryside, and forbid people to reside where they choose. But the European Court of Human Rights has determined that ethnic "travelers" (i.e., gypsies) have a right to their "traditional life style," which involves putting their trailers wherever they settle. This right trumps the interests of English residents, even when the travelers are not British citizens. The result has been massive conflict in the English countryside, leading to murder and arson. In a similar way international courts have defended the "rights" of terrorists against the laws designed to suppress them, the "rights" of migrants against the laws that limit their number, the "rights" of Muslims to defy dress codes established by law in order to prevent social fragmentation. And so on.

Look at the growing list of rights defined and upheld by the UN and the various international bodies, and you will see the way in which agendas have taken over from liberties in defining the rights of the individual. The UN Commission on Human Rights is currently policing the world for signs of "Islamophobia," supposedly an offense against human rights of which the U.S. and its allies are principally guilty. The European Court is policing the legislatures of Europe for signs of "discrimination," forcing all parliaments to close down institutions that discriminate on grounds of "sexual orientation," so that Catholic adoption agencies can no longer function within the law. As the two examples show, the liberal agenda is no more likely to be advanced than the opposite agenda of the Islamists, but in both cases the principal casualty is liberty.

WHERE DOES THIS LEAVE THE advocate of liberty in the world today? Looking back over our series of essays, we can perhaps draw a few tentative conclusions. First, we must recognize that liberty is not the same thing as equality, and that those who call themselves liberals are far more interested in equalizing than in liberating their fellows. Secondly, the pursuit of liberty often disguises a hostility to established moral norms. When Adam Smith made freedom central to his vision of the modern economy, he was clear that freedom and morality are two sides of a coin. A free society is a community of free beings, bound by the laws of sympathy and by the obligations of family love. It is not a society of people released from all moral constraint--for that is precisely the opposite of a society. Without moral constraint there can be no cooperation, no family commitment, no long-term prospects, no hope of economic, let alone social, order. And interestingly, as we have seen, the advocates of equality and the advocates of license tend to be one and the same. Morality, they believe, is none of our business: the state is in charge.

Finally, we should recognize that this habit of calling upon the state, to take charge of matters that were once the concern of individual initiative and private charity, is the surest sign that the inner liberty shown in responsible choice is disappearing from our society. Its disappearance is both the cause of liberal policies and the natural effect of them. People are less and less inclined to take responsibility for their lives, to commit themselves to others or to social networks, to engage in charitable work, or to solve by free initiative what they can summon the state to take charge of instead. And by invoking the state in this way, they prepare the way for a loss of political liberty. The state comes with an agenda: it is less interested in freeing people than in equalizing them, less interested in upholding responsible choice than in extending its relief to the irresponsible. In the growth and the operation of the modern state, therefore, we see the way in which the two kinds of freedom--self-ownership and responsible choice--grow and decline together. And we see what the cause of the true conservative must be: liberty, in both senses of the word.

Letter to the Editor