Liberty, Law, and the Peril of Arbitrary Power

As the dust settles in the aftermath of the cataclysmic assault on the US Capitol on January 6, many are seeking to make sense of how we got to this point. We didn’t get here overnight, obviously; the fact that the phrase “DC riots” could refer to at least two major events this past year is evidence enough of that. The growing unrest that has boiled over in numerous acts of protest, civil disobedience, and violence, has many roots. I have written elsewhere of how these events betray a loss of faith in the ability of our institutions to deliver justice; but they also betray, just as fundamentally, the sense of an assault on our freedom. In fact, these two are inseparable, since without the stability provided by an acknowledged rule of law, the sense of freedom disintegrates.

For those on the Right, this sense of unfreedom is inseparable from broader cultural developments. Faced with a state of what Matthew Crawford has called a “permanent revolution in social norms” from the wokeness warriors on the Left, many conservative Americans have experienced a profound attack on their freedom from a movement that claims to be a campaign for freedom on behalf of oppressed groups. A long list of unwritten (and constantly rewritten) rules of political correctness has been added to the laws by which we have been accustomed to regulate our freedom. At the same time, the decades-long assault of individual-rights discourse and cosmopolitan globalism has eaten away at the very idea that we could be “a people,” that our laws could ever represent an exercise in self-government, because that requires the concept of a single corporate self, a shared identity. That, we have been told, is no longer possible. No wonder we feel unfree.

More recent developments betray the same paralyzing, suffocating effects of arbitrary rule. The intense backlash here in America to many COVID restrictions can be best understood in this light. True, in most cases the public health measures have stood up in courts as appropriate exercises of established legal powers. But since some of these powers have not been exercised in over a century, Americans could be forgiven for seeing them as the arbitrary acts of an unaccountable power. Hypocrisy in the face of BLM protests and selective enforcement of gathering restrictions further enhanced this sense of arbitrariness and unfreedom. Mask-wearing might seem a silly occasion to invoke the vow, “Live free or die,” but the urge to resist the first hint of tyranny is baked deep into the American psyche. Still, the refusal of a part to obey the laws of the whole, our forefathers would admonish us, is not freedom either. If the haphazard and arbitrary application of law undermines freedom, the wholesale assault on the authority of law, such as we saw last week, risks destroying it altogether.

To understand the connection between freedom, law, and arbitrariness, we must return to our eighteenth-century roots.

Writing in his 1748 masterpiece The Spirit of Laws, Montesquieu declared that “political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security.” Liberty, in other words, is a state of mind.

Far from endorsing a thoroughly subjectivist account of liberty, however, Montesquieu just one page earlier offers a different definition of liberty, this one thoroughly concrete and matter-of-fact: “liberty is the right to do everything that the laws permit.” Wait, the reader thinks, but that would mean that “political liberty in no way consists in doing what one wants. . . . if one citizen could do what they [the laws] forbid, he would no longer have liberty.” Sure enough, Montesquieu goes there, turning our ideas of liberty squarely on their heads. We are apt to imagine that our liberty begins where the coercive command of law ends; such coercive authority may be necessary, but it is a necessary evil, and liberty consists in freedom from law, freedom to do what we want. But no. For this greatest of early modern political philosophers, it sounds as if we are free only when we obey the law. Is this not a recipe for tyranny? And how can we reconcile these two conceptions of liberty?

The concept of liberty or freedom (I will use the words interchangeably) is surprisingly elusive, given how frequently we invoke it and how fervently we depend on it. For some, especially today, it has an essentially negative meaning: a freedom from some kind of constraint, coercion, or interference. For others, it has a more positive sense, as a freedom to achieve certain ends, or realize one’s agency. Sometimes it is conceived of in relation to external threats, like other people; sometimes, in relation to internal threats, like passions or delusions. It can name primarily the liberty of individuals, or the liberty of communities and states vis-à-vis other communities. Sitting somewhere near the nexus of all these meanings, however, is a concept of liberty that dominated the eighteenth century, but that we often ignore now at our peril. Like all concepts of freedom, this one is best understood in terms of the unfreedom it shuns: in this case, the unfreedom of arbitrary power.

Once alerted to the importance of this fear of the “arbitrary,” we start to notice it all over eighteenth-century political writings, including the debates surrounding the American Founding. Consider one of the classic early statements of the colonists’ cause, James Otis’s The Rights of the British Colonies Asserted and Proved (1763). In it, he enumerates six fundamental rights for which the colonists contend, all of which in some way revolve around this concept, but two of which name it specifically:

3dly. No legislative, supreme or subordinate, has a right to make itself arbitrary.

4thly. The supreme legislative cannot justly assume a power of ruling by extempore arbitrary decrees, but is bound to dispense justice by known settled rules, and by duly authorized independant judges.

An arbitrary power is a power of mere will. It is, as it were, mere power or absolute power in the most precise sense of the term: power unconstrained and unbound. Indeed, it was a concept derived from theology, and the famous medieval disputes about God’s potentia absoluta (the theoretical power of his unlimited will) and his potentia ordinata (the actual ordained power of his will as he had determined and declared it). And just as God’s ordained power could be described in terms of law (the “eternal law” of scholastic theory), so the opposite of human arbitrary power was the rule of law, “a government of laws rather than men,” as John Adams—following Aristotle, Livy, and Harrington—declares in his attack on the arbitrary power of Parliament (in the Novanglus of 1774).

This, then, was the first point to be made about freedom from arbitrary power: it was the freedom to be governed, and to live “by known settled rules,” whether these took the shape of immemorial customs or formally promulgated laws. Indeed, when one reads the Declaration of Independence, one is struck to find that its most recurrent complaint is that Britain has interfered with the colonists’ ability to pass laws.

Here we begin to understand the connection between the enigmatic definitions of Montesquieu. Freedom is not ultimately an external state of affairs, as important as that may be; the prisoner who cowers in his cell with no idea that the door is unlocked and the guards asleep does not experience freedom, whereas the prisoner who is cheerfully reconciled to his present confinement in full confidence of his impending vindication may well feel quite free. And precisely because freedom is above all a psychological condition, it depends on stability, or, in Montesquieu’s words, “an opinion of security.” Freedom this moment that may be gone the next is not experienced as freedom. Thus the critical importance of the rule of law: only by means of law, of “known settled rules,” can we have confidence about the field of action available to us, and our power to act within it.

Freedom in this view requires a certain durability; contra Hobbes, life under a benevolent despot cannot be freedom whether or not he is actively coercing us. The mundane example of the “horrible boss” drives home the psychological insight here: anyone subject to the whims of a moody and mercurial employer will tend to censor himself even when his boss does not censor him. He will guard his steps and words, he will acquire habits of flattery rather than truth-telling. He will work just hard enough, but not too hard. So, too, the people under a despot: liberty of spirit will wither, even where liberty of action may outwardly persist.

Of course, an important corollary follows from this denunciation of arbitrary power: the necessity of government by consent. Whereas it was enough for a perfect and immutable God to limit his power by his own reason and declaration, that simply won’t do for fallible and inconstant men. An earthly ruler who pledges his word to govern according to certain laws is surely better than one who openly indulges his fickle fancies, but his people will still live in uncertainty and insecurity. Emperor Nero, after all, was reputed a good and just ruler for his first five years on the throne. Genuinely lawful rule, with the stability that brings liberty, must be accountable rule, accountable to individuals or institutions beyond those making and executing the laws—accountable, ultimately, to the whole people. To be free is to be one’s own ruler, and to be a free people is to rule and be ruled by laws that reflect the people’s consent.

It is easy to hear the frequent early modern trumpeting of “the consent of the governed” and to imagine in it something like the modern idol of consent. Freedom in this view, contra Montesquieu, “consists in doing what one wants.” Law is made compatible with freedom simply because the law first gets every citizen’s permission before limiting him or her in some way. But of course, this conception is hard to square with the fiction of representation and the authority of majority rule: quite clearly, many citizens are often constrained without and even against their consent. Indeed, this conception of freedom ironically reproduces precisely the tyranny that the early English republicans associated with King Charles I’s exercise of the royal veto. If the will of any one individual can thwart the will of law, the freedom that depends on the rule of law is undermined. As Quentin Skinner summarizes, “To live under such a constitution is to live subject to the perpetual danger that the body politic will be moved to act by a will other than that of the nation as represented in parliament.”

A constitution constantly subject to the veto of individual rights claims would compromise freedom in two ways. First, the liberty of the people to act in their corporate capacity (people as the singular noun it used to be, not the plural that we are apt to default to) is lost, since they cannot move forward, and cannot pursue any common good, until each and every person is on board. Second, the liberty of each individual would evaporate inasmuch as liberty depends on “the opinion that each one has of his security,” and this security depends on knowing from day to day what the law will and will not be. Law, of course, must change as human society changes, but they should change no faster; otherwise, a paralyzing air of uncertainty takes hold.

The past four years have been characterized by such a paralyzing air of uncertainty due to the growing sense that neither side of the political spectrum is that interested in settled law—the Left seems happy to overturn every tradition and institution as a symbol of concealed oppression, while Donald Trump has turned unpredictability into his signature style of governing. The so-called “Trump Derangement Syndrome” (which looks rather less deranged, it should be admitted, after last week’s events) is in part a response to this erraticism. No, Trump is not a tyrannical mastermind like Hitler; but he is almost more terrifying in the sheer unpredictability of his whims.

However, as the early modern republican tradition observed, the most unsettling feature of an arbitrary ruler is his ability to inspire slavish conduct in those around him, even without overt coercion. As Thomas More wrote in Utopia, the courtiers of an arbitrary ruler find themselves “obliged to endorse whatever is said by those who enjoy the greatest favour with the prince, no matter how absurd their saying may be, and find themselves obliged at the same time to play the part of parasites, devoting themselves to pleasing such favourites by means of flattery.”

Many have experienced bewilderment about how senior leadership of a once great political party have proven so utterly incapable of exercising their own judgment and staying their own course, to the point of participating in a half-baked constitutional coup to help keep their tormentor in power. But neither More nor Milton nor Adams would have been surprised. Such are the habits of unfreedom into which arbitrary rule perverts us, that we scarcely know any longer what it means to live as free men. It is high time for all lovers of liberty to remember, in the words of the Founding Father James Wilson, that “law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge. . . . Indeed, neither of them can be known, because neither of them can exist, without the other.”