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Table of Contents

1. Formulation of the Idea of Civil Liberty; its Dependence on a Coercive Sovereign Power.—2. Special Senses sometimes attached to the Term Liberty.—3. Organic Theory of the State.—4. Criticism.—5. Elaborate Analogies of Spencer, Schäffle, etc.; the Personality of the State.—6. Criticism.

1. Formulation of the Idea of Civil Liberty; its Dependence on a Coercive Sovereign Power. The formulation of the theory of the sovereignty of the state does not exhaust the consideration of the relations existing between the state and the individual. The present chapter is to be devoted to the further elucidation of the position of the individual under organized political control, and to the nature and scope of individual liberty. At first sight, the ideas of state sovereignty and individual liberty appear in sharp contrast. When we say that the state is legally supreme, that there is no limit to its lawful power, and that the individual can have no lawful rights as against its authority, we seem to have denied the existence of individual liberty. A closer examination of the meaning to be attached to the terms involved will serve to dissipate this view. It will appear that sovereignty and liberty, far from being contradictory, are correlative terms, and that no legal conception of individual liberty is possible without the assumption of a sovereign power.

Let us begin by observing that such terms as "liberty," "freedom," and "free" are used in a variety of senses, and with great latitude of connotation. "To Bacon and to King James," writes Professor Ritchie, "a 'free' monarchy meant an absolute monarchy, so that a 'free' monarchy is incompatible with what we call 'free' government. The 'liberties' of corporations, classes, or individuals mean their special privileges, and thus involve considerable interference with 'liberties' of the non-privileged. 'Freedom of contract' may result in the practical bondage of one of the parties to the other. A 'free' church may allow less 'liberty' of thought than churches which are not liberated from the state."[53] To the difficulties suggested by these special instances must be added the fact that the term liberty is used also as a vague generality to stand for something evidently desirable, and yet so simple in its nature as to need no further definition. It is freely assumed that every one ought to have complete liberty, and that every violation of liberty is an injustice, without the need being felt of any special inquiry into the meaning of liberty itself. To reduce the term to a definite and exact signification will serve at once to destroy the mythical and impossible idea of individual freedom, in the light of which the coercive power of the state seems unjustifiable. Such an idea appears in extreme form in the assumption, already referred to, of a "natural liberty," enjoyed by man independently of, and antecedent to, the existence of the state, and of which the institution of the state constitutes an abridgment. "What a man loses by the social contract," said Rousseau, "is his natural liberty and an unlimited right to anything that tempts him which he can obtain."[54] Of a similar character is the confused ideal of liberty which lies at the basis of anarchism, or the negation of the right of coercion.

On examination it will appear that such a conception of liberty is impossible, except it be for one person omnipotent in power. The claim that a person in the enjoyment of natural liberty would have an unlimited right to anything he might desire, would carry with it the consequence that a great number of persons might have an unlimited right to the same thing. It is difficult to attach any meaning to the words "liberty" and "right" that will make such a proposition anything but absurd. Indeed, the statement is clearly self-contradictory and inconsistent. "Liberty in its absolute sense," says Lieber,[55] "means the faculty of willing and the power of doing what has been willed, without influence from any other source, or from without.... In this absolute meaning there is but one free being, because there is but one being whose will is absolutely independent of any influence but that which he wills himself, and whose power is adequate to his absolute will,—who is almighty." It is clear, then, that a liberty of this absolute and unrestrained character is an impossibility for every individual at the same time. It can exist neither by the agency nor by the absence of the state. The utmost freedom of action that each and every individual can enjoy upon like terms at the same time is to be completely unrestrained in his actions in so far as they do not interfere with the like freedom of his fellows. This conception of liberty, though limited, is entirely self-consistent. The liberty of one is not a contravention of the liberty of another. Such is the interpretation of liberty found in the famous Declaration of the Rights of Man, adopted in France in 1789: "Liberty consists in the power to do everything that does not injure another." Herbert Spencer expresses the same idea in what he calls the "formula of justice:" "Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man."

As thus conceived, liberty is not inconsistent with the exercise of coercive power. On the contrary, since the freedom from interference can only be enjoyed by the forcible prevention of interference, liberty is seen to be dependent upon the existence of authority. It is the state which guarantees this immunity to its citizens, whose "rights" are thus brought into legal existence by being clothed with the "sanction" or compelling force of the power of the state. The apparent paradox between a sovereign authority and a free citizen is thus explained. No freedom, except for a single being, can be absolute and complete. Such freedom as can be enjoyed by all must from its nature imply a compulsory restriction on the action of each. It is the office of the state to effect this restriction, and in so doing to bring liberty into being. It is usual to attach to this conception of individual freedom effected by the existence of a coercive state the term "civil liberty."

A further point of great importance is to be noted in connection with the present topic. It is true that liberty as thus defined is only possible for the individual by the action of the state. It does not follow, however, that it is the duty of the state to find the ideal of its action in the maintenance of individual liberty; that is to say, to confine its operating to enforcing non-interference, and to extend its coercive power no further than is necessary to prevent the citizens from interfering with one another. Writers of various schools, and especially the individualists of the earlier nineteenth century, have held this to be the sole duty of government. The conception of liberty seemed to them to imply that no infringement of the principle could be justified. But the question naturally arises whether the state may not be warranted in exercising a positive as well as a negative coercion over its subjects. May it not with reason interfere with and curtail the liberty of a citizen, provided that the general good or his own advantage is thereby furthered? The full treatment of this question will belong to our discussion of the proper province of government. All that need be noted in the mean time is that, whether the state is called upon to maintain the liberty of the individual, or whether it is held advisable that the state should interfere with his actions in a positive form, the existence of liberty is not logically incompatible with the existence of the state, and can hardly be thought of as existing apart from it.

2. Special Senses sometimes attached to the Term Liberty. The word liberty, in addition to the vague general use which we have discarded and the definite conception of civil liberty which we have adopted, has also been used in political writings in other special senses.[56] It is often used to designate a condition of national independence. When we refer to the present liberty of the Greeks, or the desire for liberty on the part of the Poles, it is evidently in this sense that the word is used. It is perhaps convenient to use the expression "national liberty" to indicate freedom of this kind.

In the next place, there is a use of "liberty" which refers neither to freedom from interference nor to national autonomy. When we say that the United States, France, and Great Britain enjoy the advantages of a free government, we mean thereby a government which is chosen by, and which is responsible to, the general body of the people. Liberty in this sense, or constitutional liberty, as it may be called, means popular government definitely established. Historically speaking, we often use the term constitutional liberty to refer to instances where not all the people, but only a minority of them, exercised the power of controlling the government. In England previous to the great reform and extension of the franchise in 1832, the power of government was vested in the hands of a small minority of the whole nation. Since, however, the body of the people followed in the main the political lead thus given, and looked to the minority in question (the voting class) to protect them from possible tyranny of the crown, we may speak of this state of things as constitutional liberty. Strictly, however, the term ought only to be used of a government in which the people rule. For if the name be applied to a system in which the government is responsible only to a minority of the nation, it implies an unwarrantable disregard of the political status of the majority.

Professor Burgess,[57] followed by other American writers, sees fit to use the term civil liberty in a sense different from that explained above. Burgess claims that most European writers have unduly confused the idea of the state with that of the government; the state ought to mean that fundamental organization of the community by whose authority the government is created, and the power of the government limited. The government should mean only the ordinary mechanism of administration.[58] It is in this sense conceivable that the state may set a limit to the action of the government as against the individual, and grant to the latter certain privileges or immunities with which the government may not interfere. These immunities constitute the domain of civil liberty. In the United States, according to this view, the organization of the state is found in the body that makes and amends the Constitution. By the authority of this body it is forbidden to the ordinary government of the country (President, Congress, etc.) to interfere with the religion or the free speech of the individual; the government may not impose an export duty, may not make a law impairing the obligation of contracts, or confer a title of nobility.[59] The civil liberty of the individual is therefore defined by Burgess to mean all those rights thus granted to the individual by the constitution-making power. Were all governments of the same form as that of the United States this application of the term civil liberty would be felicitous and useful. But as applied to the governments of England, France, Italy, and many other countries a difficulty occurs. In England the Parliament (king, lords, and commons) is supreme. It is therefore (according to this interpretation) the state. It is also the government, ordinary and regular. It is hence not possible that it can forbid anything to itself by its own authority, or guarantee the individual the possession of rights which it cannot legally set aside. The conclusion is obvious. There is no civil liberty in the constitutional law in Great Britain. To assert this is properly equivalent to asserting that there can be no civil liberty at all under the British government. "I pass over the subject of civil liberty in the constitution of England and France for the simple and entirely convincing reason that there is none in either."[60] This being so, it may well be doubted whether the term is appropriately used in the significance thus attached to it. A definition according to which the citizens of Hayti enjoy a wide measure of civil liberty, while those of Great Britain and its colonies possess none at all, becomes a little absurd.

3. Organic Theory of the State. The question of liberty and sovereignty as hitherto discussed has been purely one of legal relations. It forms, however, only a part of the wider question of the general relation of the individual to the state, or to society at large. The view that is to be taken of the position in which the individual stands towards the state is of the highest importance, for on it will depend our decision as to the proper province of the action of government. In what has been said in the present chapter and in connection with the statement and criticism of the doctrine of the social contract, reference has been made to two conflicting points of view. In the one instance the individual is looked upon as a separate self-contained unit who joins with his fellows for the formation of civil society in a purely mechanical fashion. The state from this point of view becomes merely a numerical aggregate. It is not justified in interfering with the individual further than to prevent his interference with any one else. Such a theory of social relations is often spoken of as an arithmetical, mechanical, or monadistic theory of society.[61] We have already seen fit in dealing with the social contract to reject such a view of the relative status of the individual and the state.

As opposed to this we have at the other end of the scale what has already been referred to as the "organic theory of society," or of the state. This theory, either entire or in partial form, occupies a large place in the economic, political, and social philosophy of our time, and merits, therefore, a careful examination. Whatever be the earlier origins[62] to which it may be traced, it assumed a great prominence at the hands of various German writers of the middle of the nineteenth century, who advanced it in opposition to the more mechanical view of society held by the dominant individualist school in economics and political philosophy. The central idea of the theory is to endeavor to set aside the contrast between the individual and the state by amalgamating them into one. It discards all such ideas as mutual contract, reciprocal service, infrangible immunities, etc. It views the state and the individual as part and parcel of the same thing, both of them being included in what may be called the social organism. As is the relation of the hand to the body, or the leaf to the tree, so is the relation of man to society. He exists in it, and it in him. As it is impossible to consider that the hand has a separate existence from that of the body, so is it impossible to divorce the individual from society. The antithesis, therefore, between the single citizen and the collective state rests upon a false basis, and implies a view of society that is contrary to fact.

4. Criticism. In criticising this theory it is first necessary to know to what extent the statement that society is an organism is intended to be true. Some writers have advanced it merely as an analogy designed to elucidate by a striking comparison the nature of social organization. The continuity and gradual evolution of the state, the insensible gradations by which it develops in efficiency and complexity, are compared to the growth of a plant or animal. The different departments, councils, officials, etc., which are found in a modern administration, present in their specialized functions and adapted capabilities an analogy with the special organs of a living structure. The single individual, without whom the state cannot exist, and whose activities presuppose the existence of the state, suggests the germ cell which forms the basis of a living organism. Viewed in this light, the organic theory has met with a very wide acceptance, especially by the modern German school of writers on the social sciences. It is indeed difficult to quarrel with this or any other contention as long as it remains merely in the form of analogy. When we say that society is like an organism we are expressing an opinion of a very indefinite character. The point of the statement will depend on the amount of the likeness. In one sense every man is like every other; in another sense each man has a different appearance. To say, therefore, that there are certain things about society which suggest an organism, is to say what is hardly open to refutation. The real point of controversy comes in when we consider how far our opinions on social and political problems are to be affected by this view. Is it to be looked on merely as an interesting and ingenious comparison, or are we to see in it a profound truth in the light of which the actual solution of social difficulties is to be sought?[63]

It may perhaps be reasonably claimed that the importance attached to this view by many sociological writers is altogether exaggerated. It is hard to see in what way it offers a practical programme or line of direction in dealing with applied politics. The individualistic theory, dictating the abstinence of the state from all positive interference, had at least the merit of indicating a recognizable course of conduct. The utilitarian theory, propounding the greatest good of the greatest number as the goal of social effort, offers also an objective point theoretically distinct, however much its special applications might in practice be open to dispute. But the organic theory, in telling us that we and our institutions grow and are not made, hardly offers a practical guide to political conduct. It is impossible that we can sit politically passive and watch ourselves grow, and it is inconceivable that the theory ought to be interpreted to obstruct all deliberate volitional effort, and to substitute for it a self-contemplating passivity. To regard the organic theory of society as offering a definite solution of any social problem seems erroneous. The true purpose that it has served has been in helping to destroy the once prevalent conception that individual liberty must à priori be a good thing, and needs not to be considered on its merits.

5. Elaborate Analogies of Spencer, Schäffle, etc.; the Personality of the State. By some authorities the organic theory has been supported not as a useful analogy, but as a literal truth. To establish this fact they have analyzed in great detail the industrial and political structure of society, and shown that it conforms to the general organic type, and is therefore literally and actually an organism. Of such analysis, that offered by Herbert Spencer is the most familiar. Spencer,[64] it is true, does not entirely identify the social organism with the living organism. Society, he says, is an organism, but "it is not comparable to any particular type of individual organism, animal or vegetable." The analogy that he institutes, however, is carried into such detail as to stop little short of identification. The first point of resemblance is found in the fact that societies, like living bodies, begin as germs (small wandering hordes of people), and increase continually in mass and in complexity of structure. In both cases this increase in mass is effected either by simple multiplication of the units or by union of groups. Thus the organic integration of plants of the lowest order, which increase into a larger form by "clustering" into one, is compared to the amalgamation of primitive tribes. Multiplication and fusion of units may, in both animal and social growths, proceed simultaneously. The progressive complexity of structure is shown in the development of society, as in the development of plants and animals, by constant differentiation of special organs for the performance of special functions. In a rudimentary animal organism the same apparatus acts in an imperfect way as stomach and mouth, or as stomach and skin. Gradually each of these separate organs is evolved and restricted to its own function. An original spinal axis of an elementary character becomes separated into its vertebrated parts, the head differentiated from the backbone, and the brain from the skull. So in society, separate classes—kings, priests, medicine men—are differentiated from the original mass, and assigned to their peculiar activities. The division of labor in the society, as in the animal, makes it a living whole. The industrial division of occupation among weavers, iron-workers, food-growers, etc., corresponds to the independent functions of stomach, heart, and lungs. The original structures are found, on examination, to closely resemble the bodily structures. Spencer speaks of a manufacturing district as "secreting" certain goods; a seaport town "discharges and absorbs" them, performing a duty like that of the pores of the skin. Society has its "sustaining system," or parts devoted to alimentation. These are the great productive industries,—the agricultural areas, the "iron-secreting" districts, etc. There is also the distributing system,—the roads, railroads, and canals, which serve as the blood-vessels of the social body. The press, the telegraph, telephone, etc., serve as stimuli, by which the nerve centres are moved to action. Finally, there is in society, as in the living organism, the regulating system,—"nervo-motor" in the one, "governmental-military" in the other. These are evolved by the struggle for survival against the rapacity of other organisms. "The successive improvement of the organs of sense and motion have indirectly resulted from the antagonisms and competition of organisms with one another." The wars between societies originate governmental structures, and are causes of all such improvements in these structures as increase the efficiency of corporate action against environing societies. The special application of this last comparison lies in the argument advanced by Spencer that the governmental organ, like every other, should confine itself to the particular functions for which it has been evolved,—protection and defense,—and should abstain from wider action in the field of positive beneficence.

As already said, Spencer does not completely identify the social organism with the living plant or animal. The chief difference is found in the fact that while the parts of an animal form a concrete whole, society is "discrete;" in other words, "while the living units composing the one are bound together in close contact, the living units composing the other are free and not in contact, and are more or less widely dispersed." Hence the political or social body is sensitive only in its units, whereas the animal organism has a "sensorium" in which its sentient existence is centred. Even this distinction Spencer is unwilling to unduly emphasize. The units of society, though not in physical contact, affect one another through the influence of language spoken or written; there is thus a psychological continuity where physical coherence is lacking.

A still more complete presentation of the social organism is offered by the late Albert Schäffle, the distinguished Austrian statesman and economist, in his "Structure and Life of the Social Body." Here the comparison of social with animal forms is carried to an extreme point, stopping little short of complete identification, though the author professes to be mindful of the differences existing between the two, and avoids the explicit use of the term organic. Schäffle speaks of the "morphology" and the "physiology" of society, the "social limbs of technique," etc. If the whole of his vast work is to be viewed as an analogy, it reaches the point where such elaborate comparison ceases to be either of interest or profit. Others of the modern Continental writers—for instance, Gumplowitz, the Polish publicist, in his "Sociological Idea of the State" (1892)—flatly and absolutely hold that the organic nature of the state is to be considered not as an illustration but as a literal fact. Of a still more extreme character is the contention of several of the German theorists that the state is a person. The claim that the state, or, if one will, the government, is a person in a purely legal sense of the term is what no one will deny. The government being an owner of property, a collector of taxes, a borrower of money, etc., can undoubtedly be clothed with an abstract personality. But the writers in question—Gierke, for example, in his "Fundamental Concepts of Public Law"—go beyond this. With them the personality of the state is not abstract but actual; out of the "social side" of each individual composing the state is compounded a new person, a totality of purpose which is the true constituent element of personality. Bluntschli even determines the sex, maintaining that the state is male and the church female.[65]

6. Criticism. This extreme theory of the personality of the state it is hardly necessary to criticise. It belongs to that class of abstractions which may mean much to the nation that originates them, but which seem to dissolve in passing through the prism of Anglo-Saxon literalism. The general organic theory merits, however, a special treatment.[66] Interesting as is the parallel between the collective aspect of humanity and the life of a single organic unit, the differences between the two appear on impartial examination so great that the analogy cannot be looked on as a true guide to social policy, or a true expression of man's relations to his environment. The difference that Spencer masks under the cognate terms "concrete" and "discrete," is in reality of a fundamental character. In neither the physical nor the metaphysical sense of the terms is it true that the individual is literally a part of society. The existence of each human being is a fact apart. The "existence" of society is only an abstraction. Society has no single brain, no "social sensorium;" it has no single physical life. This distinction is therefore more than a mere divergence of special qualities. It is essential and absolute,—it is the difference between "black" and "white," and between "yes" and "no." Even if we accept the analogy as only an analogy, it does not follow that it is always a proper guide for our social conduct. Too great an amalgamation of the individual and the state is as dangerous an ideal as a too great emancipation of the individual will. Individual variation, individual "unlikeness," and, in a sense, individual isolation of effort is as necessary for the welfare of mankind as collective activity and mutual support. The organic theory of society, deprived of its ingenious biological setting, presents only one phase of the truth, erring in one direction as much as extreme individualism has erred in the other.