A Third Concept of Liberty

Professor Quentin Skinner delivered the Isaiah Berlin Inaugural Lecture at the university on 21 November 2001. The title of Skinner's lecture is "A Third Concept of Liberty." This title alludes to Berlin's famous essay, in which he set out the two concepts of positive and negative liberty. In the edited abstract of this lecture, Skinner outlines the long history of a third concept of liberty; a concept that has consistently been neglected because it holds that liberty is constrained not merely by actual interference, but by the mere fact of living in a state of dependence on the will and arbitrary power of others.

When Berlin first presents his view of negative liberty, he rightly notes [and writes] that "this is what the classical English political philosophers" meant by "liberty[1]." Berlin specifically refers to Hobbes's definition of a free man in Leviathan: "A free man is he that in those things which by his strength and wit he is able to do is not hindered to do what he has a will to." But what Berlin overlooks is the deeply polemical nature of Hobbes's analysis. When Hobbes, in language very close to Berlin's, declares that our liberty is nothing more than "the absence of external impediments" to the exercise of our powers, he is at the same time trying to discredit and supersede a rival and sharply contrasting understanding of negative liberty that had dominated English public debate in the early decades of the seventeenth century. That understanding appears to Hobbes as bewildering as it is dangerous. What prompts Hobbes to engage in this sustained argument is his perception of the need to react against those he calls "democratical gentlemen[2]." These were the people who sought to develop their own different theory, thereby promoting the ideal of establishing Parliament against the King and legitimizing the execution of Charles I.

The view of these critics focused on the royal prerogative, which caused individuals to find themselves confined to a life dependent on the King's power, and consequently, they had to rely and depend on the goodwill[3] of the ruler for the continuation and survival of their rights and liberties. In other words, the critics' central claim is that liberty is constrained not only by actual or threatened interference, but even by the mere fact that our lives depend on the goodwill of others. These writers do not merely suggest that the possibility of arbitrary intervention renders our liberty insecure and vulnerable. They claim that the very existence of an arbitrary power[4] that has the capacity to intervene in our activities—without any necessity to consider our interests—is in itself sufficient to undermine and limit our liberty. The knowledge that we are able to act or refrain from acting freely only because of another person's will deciding not to stop us is what reduces us to the condition of slavery.

The initial inspirations for such a perspective germinate from certain texts of medieval common law[5]; especially from the works of figures such as Bracton[6] and Littleton[7]. These are the very authorities to whom Sir Edward Coke[8] and his followers appealed in the early days of the Stuart Parliament[9], citing them with the utmost respect, and thus they attained a degree of authority they had never possessed before, nor ever lost thereafter. Henry de Bracton[10], in On the Laws and Customs of England[11], written in 1260, distinguishes in his first chapter between free persons and slaves, subsequently defining a slave as someone who "lives in complete subjection under the dominion of another." In the fifteenth-century treatise of Sir Thomas Littleton[12], a set of distinctions is drawn among freemen, villeins, and slaves. In Littleton's definition, a slave is one whose lack of freedom is such that not only his property—as we see in the case of a villein—but even his person is subject to power and falls within the framework of another individual's power and interests.

The most striking feature of these definitions (although common lawyers have done their utmost to ignore this fact) is that their phrasing is entirely indebted to the analyses of liberty and slavery found at the beginning of the Digest[13] of Roman law. It is here that we first encounter the statement that, according to "the fundamental division made concerning the law of persons[14], all men and women are either free or slave." A formal definition of slavery is then provided: "Slavery is an institution of the law of nations[15] by which a person, contrary to nature, is subjected to the dominion of another."

This view of slavery becomes the basis for defining individual liberty. Every person within a civil relationship can be either a free person or a slave, can be a citizen or a free subject[16] who is in no way under the dominion of another (that is, they act according to their own will). But it is only the person possessing jurisdiction[17] who can act solely by their own personal right[18]. It can also be traced that the weakening of a free subject's position stems from the fact that they do not possess their own special jurisdiction, but instead fall within the jurisdiction of a lord. That is, the subject is under the power and dominion of another's will.

Although the distinctions mentioned are certainly epitomized in the Justinianic Code[19], for generations before that time these discussions had been the common currency of Roman political theory; discussions that were specifically propagated under the leadership of constitutional historians, such as Sallust[20], Livy[21], and Tacitus[22]. Thus, it is a unique datum[23] that shows such a distinction existed in the generations before the conflict between the monarchy and Parliament, in the early seventeenth century, while these works were being translated into English for the first time. Henry Savile's[24] translations of Tacitus's Histories[25] and Agricola[26] appeared in 1591 and were continued by Richard Grenewey's[27] translation of the "Annals[28]" and "Germania[29]" by 1598. Two years later, Philemon Holland[30] published his work, which included all the remarkable portions of Livy's[31] history, in a large folio format. Until in 1608, Thomas Heywood[32] published his translation of two works by Sallust[33].

If you examine the views of any of these sources of thought, as Livy emphasizes, you will know that while you possess your own liberty, you are not subject to the power of another individual. For example, when Livy describes the surrender of the Collatini[34] to the Roman people, he emphasizes that they had the right to make such a decision, because they did so by their own power and authority and consequently "freely put their own wish and will into effect." (According to Holland's translation of 1600) Such a perspective appears with greater clarity in the subsequent pages of Livy's work; where he discusses the attempts of the Greek cities to revive their relationship with Rome, one of the Greek spokesmen, in order to arrange such negotiations, presupposes the possession of the right of "true liberty" and begins to speak, stating that in such conditions every person "is able to stand alone and, without reliance on the will and desire of others, stand by his own belief."

It was on the basis of such an understanding of political liberty that, in the first decades of the seventeenth century, some speakers in Parliament arrayed themselves to criticize the monarchy. We first encounter the formulation of such assumptions when their originators are defending a specific number of liberties; liberties that are encroached upon by rulers through the special prerogatives of the monarchy. One aspect of such struggles, which was widely discussed in a period and laid the cornerstone of the traditional "Whig" interpretation, was the igniting of the English Civil War in 1642. The government was constantly, even more so than during the "Petition of Right" movement of 1628, accused of forcibly interfering in a number of fundamental rights and liberties of individuals. Charles I was accused of compelling and forcing people to pay levies, and of imprisoning and even executing them without stating any cause. The occurrence of such actions presented a clear picture of the violation of rights and liberties. For (according to the literature of the Petition[35]), instead of observing the laws and granting tax relief to the lands, they were harassing a large number of people.

As the democratic nobles made clear, what troubles the royalists most is their perspective on rights, which are justified for them on the basis of a particular understanding of the royal prerogative. To safeguard our fundamental liberties, which are so easily imperiled, we must declare that rulers lack the legal authority to exercise such powers and possess only limited discretion and privileges. It was the critics' astuteness that immediately spurred them to create their own “Bracton,” as well as their own “Livy” and “Tacitus” (in the sense of domesticating the spirit of these three thinkers' arguments). They shrewdly replied that to accept that we hold our rights and liberties precisely is to accept that we live under the dominion of the king's will. But to accept that we are living under such a condition is to accept that we pass our days not as free citizens but as slaves. The mere awareness of the royal prerogative's existence is what weakens our freedom and reduces us to servitude.

The exploration of this theme was one of the principal preoccupations of the classical writers I have enumerated. We encounter it above all in the Roman historians, who focused, so to speak, on the transition from the constitutional liberty of the republic to the slavery of the prince. If we turn to Sallust, and beyond him to Tacitus, we will find them offering an agonistic analysis of the psychological effect of the slide into a subject state possessing arbitrary power. It was such analyses, each of which in turn exerted a formative influence on the democratic nobles, who continued to fight against Charles I and thereby established the first, and to date only, English republic.

As the classical writers emphasized, two contrasting paths lie before us. According to the first path, you are constrained by the knowledge that you pass your days in dependence on the goodwill of the prince. In this situation, you will know that there are things you are not free to speak of or to do. As both Sallust and Tacitus stress, you must also ensure that you avoid uttering or doing anything that might be interpreted by the ruler as an ambitious or reproachful act. Sallust draws attention to the need for such prudential considerations in a passage of his work[36] that the seventeenth-century English republican writers were fascinated by citing. In Heywood's 1608 translation, “Absolute kings envy the wise more than the wicked, for such virtuous men diminish their capacity for respect, and that means danger…”. The moral of this passage is that if you are a person of extraordinary talent or virtue and live under the monarchy of such a prince, you have no choice but to conceal your qualities as much as possible from sight and view. Otherwise, as Savile puts it in his translation of Tacitus's description of Nero's reign[37], you will most likely find that such qualities can “be the means of guiding you to certain destruction.” What worries Sallust and Tacitus even more is the long-term psychological effect of this self-restraint. When a nation is perpetually forbidden from exercising its superior talents and virtues, these qualities atrophy, and the people gradually sink into the abject condition of lethargy and inertia. Tacitus draws a moral when speaking of the Germanic tribe[38] of the Tencteri[39] and the failure of their uprising against Rome. As expressed in Savile's translation, “when the tyrants silenced their mouths, [the people] forgot their courage and virtue[40].”

But another path that leads you to consider yourself, by virtue of awareness of life under absolute power, as fettered and constrained is that you will lack the freedom necessary to refuse to say or do certain things. When you face an absolute ruler, and you must offer counsel or advice, you will find yourself bound to endorse whatever he says and bound to support the policies he has chosen to pursue. Tacitus, in the Annals[41], when describing the behavior of the political classes under the power of Tiberius[42], advances this predicament in an emotional and impassioned manner; his contemptuous and despairing tone is best conveyed in Greenway's 1598 translation:

"But that age was so tainted and corrupted by the foul flattery, that not only the chief men of the state, for the safegard of their credit, but all the Consuls by constraint led a base and servile life. The which necessity grew especially of the forwardnesse of such as were Pretors and Senators of small power[43]. For they called for matters more and more disgracefull and base. It is written that when Tiberius[44] went out of the Curia[45], he was wont to speake in Greeke. O men prepared for bondage! seeing he, though lesse subject to those things which bereaved men of their liberty, shunned so base and servile a necessitie; he gave over by little and little those unseemly flatteries, and contented himselfe with his sensuall lusts."

As Tacitus made clear, the senators were not under the pressure of direct threat and the use of force; the mere awareness of dependence on the monarchy is sufficient to compel individuals to do whatever they feel is expected of them.

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[1] Freedom

[2] Democratical Gentleman

[3] goodwill

[4] arbitrary

[5] Common-Law

[6] Bracton

[7] Littleton

[8] Sir Edward Coke

[9] Stuart

[10] Henry de Bracton

[11] de legibus et consuetudinibus angliae

[12] Sir Tomas Littleton

[13] Digest

[14] Law of Persons

[15] Ius gentium

[16] This refers to an individual who falls within the legal jurisdiction and sovereignty of another and lacks an independent sphere for free action. But in practice, he behaves entirely according to his own inclination and will. For example, he is a slave whose master has set him free. In this state, he remains a subject, and in fact acts freely. Thus, in the phrase "free subject," subject is the essential attribute of the individual, and free is the accidental attribute.

[17] Sui iuris

[18] To better understand this phrase, one must note that the difference between a slave and a free person fundamentally lies in the presence or absence of a sphere of jurisdiction. A slave does not possess a jurisdictional sphere of their own and is merely subject to the jurisdictional sphere of another person.

[19] Justinian’s Codex

[20] Sallust

[21] Livy

[22] Tasitus

[23] fact

[24] Henry Savile

[25] Tacitus

[26] Agricola

[27] Richard Greneway

[28] Annals

[29] Germania

[30] Philemon Holand

[31] Levy

[32] Tomas Heywood

[33] "Bellum Catilinae" and " Bellum Iugurthinum"

[34] Collatines

[35] Petition

[36] Referring to the book "Bellum Catilinae"

[37] Nero

[38] German tribe

[39] Tencteri

[40] vertue

[41] Annals

[42] Tiberius

[43] Pedary Senators: These were individuals who attended the Senate and spoke, but did not have the right to vote during decision-making.

[44] Tiberius

[45] Curia

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PDF file of the article "A Third Concept of Liberty" in English

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Article Title: A Third Concept of Liberty

Author: Quentin Skinner

Translator: Eshaq Soltani

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