Saturday, 19 November 2011

John Locke, Second Treatise of Civil Government, Chapters 7, 8 and 11

The English philosopher John Locke (1632-1704) is sometimes known as "the Father of Liberalism".  His writings on constitutional governance have proved immensely influential both in Britain and in the United States.

Where-ever therefore any number of men are so united into one society, as to quit every one his executive power of the law of nature, and to resign it to the public, there and there only is a political, or civil society. And this is done, where-ever any number of men, in the state of nature, enter into society to make one people, one body politic, under one supreme government; or else when any one joins himself to, and incorporates with any government already made: for hereby he authorizes the society, or which is all one, the legislative thereof, to make laws for him, as the public good of the society shall require; to the execution whereof, his own assistance (as to his own decrees) is due. And this puts men out of a state of nature into that of a commonwealth, by setting up a judge on earth, with authority to determine all the controversies, and redress the injuries that may happen to any member of the commonwealth; which judge is the legislative, or magistrates appointed by it. And where-ever there are any number of men, however associated, that have no such decisive power to appeal to, there they are still in the state of nature.

Hence it is evident, that absolute monarchy, which by some men is counted the only government in the world, is indeed inconsistent with civil society, and so can be no form of civil-government at all: for the end of civil society, being to avoid, and remedy those inconveniencies of the state of nature, which necessarily follow from every man's being judge in his own case, by setting up a known authority, to which every one of that society may appeal upon any injury received, or controversy that may arise, and which every one of the society ought to obey; where-ever any persons are, who have not such an authority to appeal to, for the decision of any difference between them, there those persons are still in the state of nature; and so is every absolute prince, in respect of those who are under his dominion.

For he being supposed to have all, both legislative and executive power in himself alone, there is no judge to be found, no appeal lies open to any one, who may fairly, and indifferently, and with authority decide, and from whose decision relief and redress may be expected of any injury or inconviency, that may be suffered from the prince, or by his order: so that such a man, however intitled, Czar, or Grand Seignior, or how you please, is as much in the state of nature, with all under his dominion, as he is with the rest of mankind: for where-ever any two men are, who have no standing rule, and common judge to appeal to on earth, for the determination of controversies of right betwixt them, there they are still in the state of nature, and under all the inconveniencies of it, with only this woful difference to the subject, or rather slave of an absolute prince: that whereas, in the ordinary state of nature, he has a liberty to judge of his right, and according to the best of his power, to maintain it; now, whenever his property is invaded by the will and order of his monarch, he has not only no appeal, as those in society ought to have, but as if he were degraded from the common state of rational creatures, is denied a liberty to judge of, or to defend his right; and so is exposed to all the misery and inconveniencies, that a man can fear from one, who being in the unrestrained state of nature, is yet corrupted with flattery, and armed with power.

For he that thinks absolute power purifies men's blood, and corrects the baseness of human nature, need read but the history of this, or any other age, to be convinced of the contrary. He that would have been insolent and injurious in the woods of America, would not probably be much better in a throne; where perhaps learning and religion shall be found out to justify all that he shall do to his subjects, and the sword presently silence all those that dare question it: for what the protection of absolute monarchy is, what kind of fathers of their countries it makes princes to be and to what a degree of happiness and security it carries civil society, where this sort of government is grown to perfection, he that will look into the late relation of Ceylon, may easily see.

In absolute monarchies indeed, as well as other governments of the world, the subjects have an appeal to the law, and judges to decide any controversies, and restrain any violence that may happen betwixt the subjects themselves, one amongst another. This every one thinks necessary, and believes he deserves to be thought a declared enemy to society and mankind, who should go about to take it away. But whether this be from a true love of mankind and society, and such a charity as we owe all one to another, there is reason to doubt: for this is no more than what every man, who loves his own power, profit, or greatness, may and naturally must do, keep those animals from hurting, or destroying one another, who labour and drudge only for his pleasure and advantage; and so are taken care of, not out of any love the master has for them, but love of himself, and the profit they bring him: for if it be asked, what security, what fence is there, in such a state, against the violence and oppression of this absolute ruler? the very question can scarce be borne. They are ready to tell you, that it deserves death only to ask after safety. Betwixt subject and subject, they will grant, there must be measures, laws and judges, for their mutual peace and security: but as for the ruler, he ought to be absolute, and is above all such circumstances; because he has power to do more hurt and wrong, it is right when he does it. To ask how you may be guarded from harm, or injury, on that side where the strongest hand is to do it, is presently the voice of faction and rebellion: as if when men quitting the state of nature entered into society, they agreed that all of them but one, should be under the restraint of laws, but that he should still retain all the liberty of the state of nature, increased with power, and made licentious by impunity. This is to think, that men are so foolish, that they take care to avoid what mischiefs may be done them by pole-cats, or foxes; but are content, nay, think it safety, to be devoured by lions.

But whatever flatterers may talk to amuse people's understandings, it hinders not men from feeling; and when they perceive, that any man, in what station soever, is out of the bounds of the civil society which they are of, and that they have no appeal on earth against any harm, they may receive from him, they are apt to think themselves in the state of nature, in respect of him whom they find to be so; and to take care, as soon as they can, to have that safety and security in civil society, for which it was first instituted, and for which only they entered into it. And therefore, though perhaps at first, (as shall be shewed more at large hereafter in the following part of this discourse) some one good and excellent man having got a pre-eminency amongst the rest, had this deference paid to his goodness and virtue, as to a kind of natural authority, that the chief rule, with arbitration of their differences, by a tacit consent devolved into his hands, without any other caution, but the assurance they had of his uprightness and wisdom; yet when time, giving authority, and (as some men would persuade us) sacredness of customs, which the negligent, and unforeseeing innocence of the first ages began, had brought in successors of another stamp, the people finding their properties not secure under the government, as then it was, (whereas government has no other end but the preservation of property) could never be safe nor at rest, nor think themselves in civil society, till the legislature was placed in collective bodies of men, call them senate, parliament, or what you please. By which means every single person became subject, equally with other the meanest men, to those laws, which he himself, as part of the legislative, had established; nor could any one, by his own authority; avoid the force of the law, when once made; nor by any pretence of superiority plead exemption, thereby to license his own, or the miscarriages of any of his dependents. No man in civil society can be exempted from the laws of it: for if any man may do what he thinks fit, and there be no appeal on earth, for redress or security against any harm he shall do; I ask, whether he be not perfectly still in the state of nature, and so can be no part or member of that civil society; unless any one will say, the state of nature and civil society are one and the same thing, which I have never yet found any one so great a patron of anarchy as to affirm.


Man being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.

For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority: for that which acts any community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be concluded by the majority. And therefore we see, that in assemblies, impowered to act by positive laws, where no number is set by that positive law which impowers them, the act of the majority passes for the act of the whole, and of course determines, as having, by the law of nature and reason, the power of the whole.

And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation, to every one of that society, to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact, if he be left free, and under no other ties than he was in before in the state of nature. For what appearance would there be of any compact? what new engagement if he were no farther tied by any decrees of the society, than he himself thought fit, and did actually consent to? This would be still as great a liberty, as he himself had before his compact, or any one else in the state of nature hath, who may submit himself, and consent to any acts of it if he thinks fit.

For if the consent of the majority shall not, in reason, be received as the act of the whole, and conclude every individual; nothing but the consent of every individual can make any thing to be the act of the whole: but such a consent is next to impossible ever to be had, if we consider the infirmities of health, and avocations of business, which in a number, though much less than that of a commonwealth, will necessarily keep many away from the public assembly. To which if we add the variety of opinions, and contrariety of interests, which unavoidably happen in all collections of men, the coming into society upon such terms would be only like Cato's coming into the theatre, only to go out again. Such a constitution as this would make the mighty Leviathan of a shorter duration, than the feeblest creatures, and not let it outlast the day it was born in: which cannot be supposed, till we can think, that rational creatures should desire and constitute societies only to be dissolved: for where the majority cannot conclude the rest, there they cannot act as one body, and consequently will be immediately dissolved again.

Whosoever therefore out of a state of nature unite into a community, must be understood to give up all the power, necessary to the ends for which they unite into society, to the majority of the community, unless they expresly agreed in any number greater than the majority. And this is done by barely agreeing to unite into one political society, which is all the compact that is, or needs be, between the individuals, that enter into, or make up a commonwealth. And thus that, which begins and actually constitutes any political society, is nothing but the consent of any number of freemen capable of a majority to unite and incorporate into such a society. And this is that, and that only, which did, or could give beginning to any lawful government in the world.


Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every commonwealth; yet:

First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions, must, as well as their own and other men's actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.

Secondly, The legislative, or supreme authority, cannot assume to its self a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges: for the law of nature being unwritten, and so no where to be found but in the minds of men, they who through passion or interest shall miscite, or misapply it, cannot so easily be convinced of their mistake where there is no established judge: and so it serves not, as it ought, to determine the rights, and hence the properties of those that live under it, especially where every one is judge, interpreter, and executioner of it too, and that in his own case: and he that has right on his side, having ordinarily but his own single strength, hath not force enough to defend himself from injuries, or to punish delinquents. To avoid these inconveniences, which disorder men's propperties in the state of nature, men unite into societies, that they may have the united strength of the whole society to secure and defend their properties, and may have standing rules to bound it, by which every one may know what is his. To this end it is that men give up all their natural power to the society which they enter into, and the community put the legislative power into such hands as they think fit, with this trust, that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty, as it was in the state of nature.

Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of nature for, and tie themselves up under, were it not to preserve their lives, liberties and fortunes, and by stated rules of right and property to secure their peace and quiet. It cannot be supposed that they should intend, had they a power so to do, to give to any one, or more, an absolute arbitrary power over their persons and estates, and put a force into the magistrate's hand to execute his unlimited will arbitrarily upon them. This were to put themselves into a worse condition than the state of nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it, whether invaded by a single man, or many in combination. Whereas by supposing they have given up themselves to the absolute arbitrary power and will of a legislator, they have disarmed themselves, and armed him, to make a prey of them when he pleases; he being in a much worse condition, who is exposed to the arbitrary power of one man, who has the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men; no body being secure, that his will, who has such a command, is better than that of other men, though his force be 100,000 times stronger. And therefore, whatever form the commonwealth is under, the ruling power ought to govern by declared and received laws, and not by extemporary dictates and undetermined resolutions: for then mankind will be in a far worse condition than in the state of nature, if they shall have armed one, or a few men with the joint power of a multitude, to force them to obey at pleasure the exorbitant and unlimited decrees of their sudden thoughts, or unrestrained, and till that moment unknown wills, without having any measures set down which may guide and justify their actions: for all the power the government has, being only for the good of the society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws; that both the people may know their duty, and be safe and secure within the limits of the law; and the rulers too kept within their bounds, and not be tempted, by the power they have in their hands, to employ it to such purposes, and by such measures, as they would not have known, and own not willingly.

Thursday, 10 November 2011

Hayek, Why I am Not a Conservative (1960)

Friedrich Hayek (1899-1992) was an Austrian economist who became the leading exponent of economic liberalism in the second half of the 20th century.   His economic theories were adopted by right-wing political parties in Europe and America, but he rejected the "conservative" label for reasons that he explained in this essay.

However reactionary in politics such figures as Coleridge, Bonald, De Maistre, Justus Möser, or Donoso Cortès may have been, they did show an understanding of the meaning of spontaneously grown institutions such as language, law, morals, and conventions that anticipated modern scientific approaches and from which the liberals might have profited. But the admiration of the conservatives for free growth generally applies only to the past. They typically lack the courage to welcome the same undesigned change from which new tools of human endeavors will emerge.

This brings me to the first point on which the conservative and the liberal dispositions differ radically. As has often been acknowledged by conservative writers, one of the fundamental traits of the conservative attitude is a fear of change, a timid distrust of the new as such, while the liberal position is based on courage and confidence, on a preparedness to let change run its course even if we cannot predict where it will lead. There would not be much to object to if the conservatives merely disliked too rapid change in institutions and public policy; here the case for caution and slow process is indeed strong. But the conservatives are inclined to use the powers of government to prevent change or to limit its rate to whatever appeals to the more timid mind. In looking forward, they lack the faith in the spontaneous forces of adjustment which makes the liberal accept changes without apprehension, even though he does not know how the necessary adaptations will be brought about. It is, indeed, part of the liberal attitude to assume that, especially in the economic field, the self-regulating forces of the market will somehow bring about the required adjustments to new conditions, although no one can foretell how they will do this in a particular instance. There is perhaps no single factor contributing so much to people's frequent reluctance to let the market work as their inability to conceive how some necessary balance, between demand and supply, between exports and imports, or the like, will be brought about without deliberate control. The conservative feels safe and content only if he is assured that some higher wisdom watches and supervises change, only if he knows that some authority is charged with keeping the change "orderly."

This fear of trusting uncontrolled social forces is closely related to two other characteristics of conservatism: its fondness for authority and its lack of understanding of economic forces. Since it distrusts both abstract theories and general principles, it neither understands those spontaneous forces on which a policy of freedom relies nor possesses a basis for formulating principles of policy. Order appears to the conservative as the result of the continuous attention of authority, which, for this purpose, must be allowed to do what is required by the particular circumstances and not be tied to rigid rule. A commitment to principles presupposes an understanding of the general forces by which the efforts of society are co-ordinated, but it is such a theory of society and especially of the economic mechanism that conservatism conspicuously lacks. So unproductive has conservatism been in producing a general conception of how a social order is maintained that its modern votaries, in trying to construct a theoretical foundation, invariably find themselves appealing almost exclusively to authors who regarded themselves as liberal. Macaulay, Tocqueville, Lord Acton, and Lecky certainly considered themselves liberals, and with justice; and even Edmund Burke remained an Old Whig to the end and would have shuddered at the thought of being regarded as a Tory.

Let me return, however, to the main point, which is the characteristic complacency of the conservative toward the action of established authority and his prime concern that this authority be not weakened rather than that its power be kept within bounds. This is difficult to reconcile with the preservation of liberty. In general, it can probably be said that the conservative does not object to coercion or arbitrary power so long as it is used for what he regards as the right purposes. He believes that if government is in the hands of decent men, it ought not to be too much restricted by rigid rules. Since he is essentially opportunist and lacks principles, his main hope must be that the wise and the good will rule - not merely by example, as we all must wish, but by authority given to them and enforced by them. Like the socialist, he is less concerned with the problem of how the powers of government should be limited than with that of who wields them; and, like the socialist, he regards himself as entitled to force the value he holds on other people. When I say that the conservative lacks principles, I do not mean to suggest that he lacks moral conviction. The typical conservative is indeed usually a man of very strong moral convictions. What I mean is that he has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions. It is the recognition of such principles that permits the coexistence of different sets of values that makes it possible to build a peaceful society with a minimum of force. The acceptance of such principles means that we agree to tolerate much that we dislike. There are many values of the conservative which appeal to me more than those of the socialists; yet for a liberal the importance he personally attaches to specific goals is no sufficient justification for forcing others to serve them.... To live and work successfully with others requires more than faithfulness to one's concrete aims. It requires an intellectual commitment to a type of order in which, even on issues which to one are fundamental, others are allowed to pursue different ends.

It is for this reason that to the liberal neither moral nor religious ideals are proper objects of coercion, while both conservatives and socialists recognize no such limits. I sometimes feel that the most conspicuous attribute of liberalism that distinguishes it as much from conservatism as from socialism is the view that moral beliefs concerning matters of conduct which do not directly interfere with the protected sphere of other persons do not justify coercion....

...There is one respect, however, in which there is justification for saying that the liberal occupies a position midway between the socialist and the conservative: he is as far from the crude rationalism of the socialist, who wants to reconstruct all social institutions according to a pattern prescribed by his individual reason, as from the mysticism to which the conservative so frequently has to resort. What I have described as the liberal position shares with conservatism a distrust of reason to the extent that the liberal is very much aware that we do not know all the answers and that he is not sure that the answers he has are certainly the rights ones or even that we can find all the answers. He also does not disdain to seek assistance from whatever non-rational institutions or habits have proved their worth. The liberal differs from the conservative in his willingness to face this ignorance and to admit how little we know, without claiming the authority of supernatural forces of knowledge where his reason fails him. It has to be admitted that in some respects the liberal is fundamentally a skeptic - but it seems to require a certain degree of diffidence to let others seek their happiness in their own fashion and to adhere consistently to that tolerance which is an essential characteristic of liberalism.

There is no reason why this need mean an absence of religious belief on the part of the liberal. Unlike the rationalism of the French Revolution, true liberalism has no quarrel with religion, and I can only deplore the militant and essentially illiberal antireligionism which animated so much of nineteenth-century Continental liberalism. That this is not essential to liberalism is clearly shown by its English ancestors, the Old Whigs, who, if anything, were much too closely allied with a particular religious belief. What distinguishes the liberal from the conservative here is that, however profound his own spiritual beliefs, he will never regard himself as entitled to impose them on others and that for him the spiritual and the temporal are different spheres which ought not to be confused.

Blackstone's Commentaries, Book I, Chapter 1

Sir William Blackstone (1723-1780) was the leading English jurist of the 18th century.  Though he was a Tory, he greatly influenced the tradition of American liberal constitutionalism.

The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at this creation, when he endued him with the faculty of free-will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrified to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence.

Justice Barak in the Supreme Court of Israel

Justice Aharon Barak, the President of the Supreme Court of Israel from 1995 to 2006, delivered a notable judgment, from which the following extracts are taken, in the 1999 case of Public Committee against Torture in Israel v Israel.  The case concerned coercive methods of interrogation used by the Israeli security services.

This decision opens with a description of the difficult reality in which Israel finds herself security wise. We shall conclude this judgment by re-addressing that harsh reality. We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. This having been said, there are those who argue that Israel’s security problems are too numerous, thereby requiring the authorization to use physical means. If it will nonetheless be decided that it is appropriate for Israel, in light of its security difficulties to sanction physical means in interrogations (and the scope of these means which deviate from the ordinary investigation rules), this is an issue that must be decided by the legislative branch which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed. The pointed debate must occur there. It is there that the required legislation may be passed, provided, of course, that a law infringing upon a suspect’s liberty "befitting the values of the State of Israel," is enacted for a proper purpose, and to an extent no greater than is required. (Article 8 to the Basic Law: Human Dignity and Liberty).

Deciding these applications weighed heavy on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. Its problems are known to us and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. Our apprehension is that this decision will hamper the ability to properly deal with terrorists and terrorism, disturbs us. We are, however, judges. Our bretheren require us to act according to the law. This is equally the standard that we set for ourselves. When we sit to judge, we are being judged. Therefore, we must act according to our purest conscience when we decide the law....

The Commission of Inquiry pointed to the "difficult dilemma between the imperative need to safeguard the State of Israel’s very existence and the lives of its citizens, and preserving its character- that of a country subject to the Rule of Law and holding basic moral values".... The Commission rejected an approach suggesting that the actions of security services in the context of fighting terrorism, shall take place in the recesses of the law. The Commission equally rejected the "ways of the hypocrites, who remind us of their adherence to the Rule of Law, while ignoring (being willfully blind) to what is being done in practice".... The Commission elected to follow a third route, "the way of Truth and the Rule of Law".... In so doing, the Commission of Inquiry outlined the dilemma faced by Israel in a manner both transparent and open to inspection by Israeli society.

Tuesday, 8 November 2011

Montesquieu, De l'esprit des lois, Chapters 2 and 11

It would perhaps be going too far to describe the French writer Charles de Secondat, Baron de Montesquieu (1689-1755) as a liberal, but his writings exerted enormous influence on the tradition of liberal constitutionalism.  He particularly admired the British constitution and its division of state power into executive, legislative and judicial branches.

Of the Republican Government, and the Laws in relation to Democracy. When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy.

In a democracy, the people are in some respects the sovereign, and in others the subject.

There can be no exercise of sovereignty but by their suffrages, which are their own will; now the sovereign's will is the sovereign himself. The laws therefore which establish the right of suffrage are fundamental to this government. And indeed it is as important to regulate in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he ought to govern....

The people, in whom the supreme power resides, ought to have the management of everything within their reach: that which exceeds their abilities must be conducted by their ministers.

But they cannot properly be said to have their ministers, without the power of nominating them: it is, therefore, a fundamental maxim in this government, that the people should choose their ministers - that is, their magistrates.

They have occasion, as well as monarchs, and even more so, to be directed by a council or senate. But to have a proper confidence in these, they should have the choosing of the members; whether the election be made by themselves, as at Athens, or by some magistrate deputed for that purpose, as on certain occasions was customary at Rome.

The people are extremely well qualified for choosing those whom they are to entrust with part of their authority. They have only to be determined by things to which they cannot be strangers, and by facts that are obvious to sense. They can tell when a person has fought many battles, and been crowned with success; they are, therefore, capable of electing a general. They can tell when a judge is assiduous in his office, gives general satisfaction, and has never been charged with bribery: this is sufficient for choosing a praetor. They are struck with the magnificence or riches of a fellow-citizen; no more is requisite for electing an edile. These are facts of which they can have better information in a public forum than a monarch in his palace. But are they capable of conducting an intricate affair, of seizing and improving the opportunity and critical moment of action? No; this surpasses their abilities....

As most citizens have sufficient ability to choose, though unqualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of conducting the administration themselves....

The law which determines the manner of giving suffrage is likewise fundamental in a democracy. It is a question of some importance whether the suffrages ought to be public or secret. Cicero observes that the laws which rendered them secret towards the close of the republic were the cause of its decline. But as this is differently practised in different republics, I shall offer here my thoughts concerning this subject.

The people's suffrages ought doubtless to be public and this should be considered as a fundamental law of democracy. The lower class ought to be directed by those of higher rank, and restrained within bounds by the gravity of eminent personages. Hence, by rendering the suffrages secret in the Roman republic, all was lost; it was no longer possible to direct a populace that sought its own destruction. But when the body of the nobles are to vote in an aristocracy or in a democracy the senate as the business is then only to prevent intrigues, the suffrages cannot be too secret....

It is likewise a fundamental law in democracies, that the people should have the sole power to enact laws. And yet there are a thousand occasions on which it is necessary the senate should have the power of decreeing; nay, it is frequently proper to make some trial of a law before it is established. The constitutions of Rome and Athens were excellent. The decrees of the senate had the force of laws for the space of a year, but did not become perpetual till they were ratified by the consent of the people.


As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves.

The inhabitants of a particular town are much better acquainted with its wants and interests than with those of other places; and are better judges of the capacity of their neighbours than of that of the rest of their countrymen. The members, therefore, of the legislature should not be chosen from the general body of the nation; but it is proper that in every considerable place a representative should be elected by the inhabitants.

The great advantage of representatives is, their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.

It is not at all necessary that the representatives who have received a general instruction from their constituents should wait to be directed on each particular affair, as is practised in the diets of Germany. True it is that by this way of proceeding the speeches of the deputies might with greater propriety be called the voice of the nation; but, on the other hand, this would occasion infinite delays; would give each deputy a power of controlling the assembly; and, on the most urgent and pressing occasions, the wheels of government might be stopped by the caprice of a single person....

All the inhabitants of the several districts ought to have a right of voting at the election of a representative, except such as are in so mean a situation as to be deemed to have no will of their own....

In such a state there are always persons distinguished by their birth, riches, or honours: but were they to be confounded with the common people, and to have only the weight of a single vote like the rest, the common liberty would be their slavery, and they would have no interest in supporting it, as most of the popular resolutions would be against them. The share they have, therefore, in the legislature ought to be proportioned to their other advantages in the state; which happens only when they form a body that has a right to check the licentiousness of the people, as the people have a right to oppose any encroachment of theirs.

The legislative power is therefore committed to the body of the nobles, and to that which represents the people, each having their assemblies and deliberations apart, each their separate views and interests.

John F. Kennedy on Church and State (1960)

This was the famous speech, delivered on 12 September 1960, in which the Democratic presidential candidate John F. Kennedy explained why his Catholic faith was compatible with his holding public office in a secular constitutional democracy.

While the so-called religious issue is necessarily and properly the chief topic here tonight, I want to emphasize from the outset that we have far more critical issues to face in the 1960 election: the spread of Communist influence, until it now festers 90 miles off the coast of Florida; the humiliating treatment of our president and vice president by those who no longer respect our power; the hungry children I saw in West Virginia; the old people who cannot pay their doctor bills; the families forced to give up their farms; an America with too many slums, with too few schools, and too late to the moon and outer space.

These are the real issues which should decide this campaign. And they are not religious issues — for war and hunger and ignorance and despair know no religious barriers.

But because I am a Catholic, and no Catholic has ever been elected president, the real issues in this campaign have been obscured — perhaps deliberately, in some quarters less responsible than this. So it is apparently necessary for me to state once again not what kind of church I believe in — for that should be important only to me — but what kind of America I believe in.

I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all.

For while this year it may be a Catholic against whom the finger of suspicion is pointed, in other years it has been, and may someday be again, a Jew — or a Quaker or a Unitarian or a Baptist. It was Virginia's harassment of Baptist preachers, for example, that helped lead to Jefferson's statute of religious freedom. Today I may be the victim, but tomorrow it may be you — until the whole fabric of our harmonious society is ripped at a time of great national peril.

Finally, I believe in an America where religious intolerance will someday end; where all men and all churches are treated as equal; where every man has the same right to attend or not attend the church of his choice; where there is no Catholic vote, no anti-Catholic vote, no bloc voting of any kind; and where Catholics, Protestants and Jews, at both the lay and pastoral level, will refrain from those attitudes of disdain and division which have so often marred their works in the past, and promote instead the American ideal of brotherhood.

That is the kind of America in which I believe. And it represents the kind of presidency in which I believe — a great office that must neither be humbled by making it the instrument of any one religious group, nor tarnished by arbitrarily withholding its occupancy from the members of any one religious group. I believe in a president whose religious views are his own private affair, neither imposed by him upon the nation, or imposed by the nation upon him as a condition to holding that office.

I would not look with favor upon a president working to subvert the First Amendment's guarantees of religious liberty. Nor would our system of checks and balances permit him to do so. And neither do I look with favor upon those who would work to subvert Article VI of the Constitution by requiring a religious test — even by indirection — for it. If they disagree with that safeguard, they should be out openly working to repeal it.

I want a chief executive whose public acts are responsible to all groups and obligated to none; who can attend any ceremony, service or dinner his office may appropriately require of him; and whose fulfillment of his presidential oath is not limited or conditioned by any religious oath, ritual or obligation.

This is the kind of America I believe in, and this is the kind I fought for in the South Pacific, and the kind my brother died for in Europe. No one suggested then that we may have a "divided loyalty," that we did "not believe in liberty," or that we belonged to a disloyal group that threatened the "freedoms for which our forefathers died."

And in fact, this is the kind of America for which our forefathers died, when they fled here to escape religious test oaths that denied office to members of less favored churches; when they fought for the Constitution, the Bill of Rights and the Virginia Statute of Religious Freedom; and when they fought at the shrine I visited today, the Alamo. For side by side with Bowie and Crockett died McCafferty and Bailey and Carey. But no one knows whether they were Catholic or not, for there was no religious test at the Alamo.

I ask you tonight to follow in that tradition, to judge me on the basis of my record of 14 years in Congress, on my declared stands against an ambassador to the Vatican, against unconstitutional aid to parochial schools, and against any boycott of the public schools (which I have attended myself) — instead of judging me on the basis of these pamphlets and publications we all have seen that carefully select quotations out of context from the statements of Catholic church leaders, usually in other countries, frequently in other centuries, and always omitting, of course, the statement of the American Bishops in 1948, which strongly endorsed church-state separation, and which more nearly reflects the views of almost every American Catholic.

I do not consider these other quotations binding upon my public acts. Why should you? But let me say, with respect to other countries, that I am wholly opposed to the state being used by any religious group, Catholic or Protestant, to compel, prohibit, or persecute the free exercise of any other religion. And I hope that you and I condemn with equal fervor those nations which deny their presidency to Protestants, and those which deny it to Catholics. And rather than cite the misdeeds of those who differ, I would cite the record of the Catholic Church in such nations as Ireland and France, and the independence of such statesmen as Adenauer and De Gaulle.

But let me stress again that these are my views. For contrary to common newspaper usage, I am not the Catholic candidate for president. I am the Democratic Party's candidate for president, who happens also to be a Catholic. I do not speak for my church on public matters, and the church does not speak for me.

Whatever issue may come before me as president — on birth control, divorce, censorship, gambling or any other subject — I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come — and I do not concede any conflict to be even remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.

But I do not intend to apologize for these views to my critics of either Catholic or Protestant faith, nor do I intend to disavow either my views or my church in order to win this election.

If I should lose on the real issues, I shall return to my seat in the Senate, satisfied that I had tried my best and was fairly judged. But if this election is decided on the basis that 40 million Americans lost their chance of being president on the day they were baptized, then it is the whole nation that will be the loser — in the eyes of Catholics and non-Catholics around the world, in the eyes of history, and in the eyes of our own people.

But if, on the other hand, I should win the election, then I shall devote every effort of mind and spirit to fulfilling the oath of the presidency — practically identical, I might add, to the oath I have taken for 14 years in the Congress. For without reservation, I can "solemnly swear that I will faithfully execute the office of president of the United States, and will to the best of my ability preserve, protect, and defend the Constitution, so help me God".

Lloyd George on the House of Lords (1909)

David Lloyd George (1863-1945) was one of Britain's greatest Liberal statesman.  While Chancellor of the Exchequer, he introduced a strongly redistributive finance bill (known as the "People's Budget") which ended up provoking a major confrontation with the House of Lords.  This is a speech which Lloyd George made in Newcastle on 9 October 1909, in the course of the controversy.

Well, now, we are going to send the Bill up, all the taxes or none. What will the Lords do? I tell you frankly it is a matter which concerns them far more than it concerns us. The more irresponsible and feather-headed amongst them want to throw it out. But what will the rest do? It will depend on the weather. There are some who are not fair-weather sailors, and they will go on. But poor Lord Lansdowne with his creaking old ship and his mutinous crew, there he is, he has got to sail through the narrows with one eye on the weather-glass and the other on the forecastle.

But it does not depend on him. It will depend, in the first place, probably on the reports from the country. The most important gentleman in the business is not Lord Lansdowne with all his adroit management of the House of Lords, not even Mr. Balfour with his invaluable services to his party. The real sailing master is Sir Alexander Acland-Hood, the chief Whip of the Tory party; and the Ancient Mariner is engaged at the present moment in trying to decide whether it is safe to shoot the albatross. He will probably not decide until too late. But still this is the great Constitutional party, and if there is one thing more than another better established about the British Constitution it is this, that the Commons, and the Commons alone, have the complete control of supply and ways and means; and what our fathers established through centuries of struggle and of strife even of bloodshed we are not going to be traitors to.

Who talks about altering and meddling with the Constitution? The Constitutional party, the great Constitutional party. As long as the Constitution gave rank and possession and power to the Lords it was not to be interfered with. As long as it secured even their sports from intrusion and made interference with them a crime; as long as the Constitution enforced royalties and ground rents and fees and premiums and fines, and all the black retinue of exaction; as long as it showered writs and summonses and injunctions and distresses and warrants to enforce them, then the Constitution was inviolate. It was sacred. It was something that was put in the same category as religion, that no man should with rude hands touch, something that the chivalry of the nation ought to range itself in defence of. But the moment the Constitution looks round; the moment the Constitution begins to discover that there are millions of people outside park gates who need attention, then the Constitution is to be torn to pieces.

Let them realise what they are doing. They are forcing a revolution, and they will get it. The Lords may decree a revolution, but the people will direct it. If they begin, issues will be raised that they little dream of. Questions will be asked which are now whispered in humble voices, and answers will be demanded then with authority. The question will be asked whether five hundred men, ordinary men chosen accidentally from among the unemployed, should override the judgment the deliberate judgment of millions of people who are engaged in the industry which makes the wealth of the country.

That is one question. Another will be, Who ordained that a few should have the land of Britain as a perquisite? Who made ten thousand people owners of the soil, and the rest of us trespassers in the land of our birth? Who is it who is responsible for the scheme of things whereby one man is engaged through life in grinding labour to win a bare and precarious subsistence for himself, and when, at the end of his days, he claims at the hands of the community he served a poor pension of eightpence a day, he can only get it through a revolution, and another man who does not toil receives every hour of the day, every hour of the night, whilst he slumbers, more than his poor neighbour receives in a whole year of toil? Where did the table of that law come from? Whose finger inscribed it? These are the questions that will be asked. The answers are charged with peril for the order of things the Peers represent; but they are fraught with rare and refreshing fruit for the parched lips of the multitude who have been treading the dusty road along which the people have marched through the dark ages which are now merging into the light.

Lord Hoffmann on detention without trial (2005)

In the wake of the September 11 terrorist atrocities in 2001, the British Parliament enacted legislation allowing a government minister to imprison foreign terrorist suspects indefinitely and without trial.  They were permitted to be released if they agreed to return to their home countries, where they would risk being tortured.  Litigation ensued, and the case of A v Secretary of State for the Home Department [2005] 2 AC 68 eventually reached the House of Lords, then the highest court in the UK.  What follows is the judgment delivered by the senior judge Lord Hoffmann.

This is one of the most important cases which the House has had to decide in recent years. It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention. The power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom.

At present, the power cannot be exercised against citizens of this country. First, it applies only to foreigners whom the Home Secretary would otherwise be able to deport. But the power to deport foreigners is extremely wide. Secondly, it requires that the Home Secretary should reasonably suspect the foreigners of a variety of activities or attitudes in connection with terrorism, including supporting a group influenced from abroad whom the Home Secretary suspects of being concerned in terrorism. If the finger of suspicion has pointed and the suspect is detained, his detention must be reviewed by the Special Immigration Appeals Commission. They can decide that there were no reasonable grounds for the Home Secretary's suspicion. But the suspect is not entitled to be told the grounds upon which he has been suspected. So he may not find it easy to explain that the suspicion is groundless. In any case, suspicion of being a supporter is one thing and proof of wrongdoing is another. Someone who has never committed any offence and has no intention of doing anything wrong may be reasonably suspected of being a supporter on the basis of some heated remarks overheard in a pub. The question in this case is whether the United Kingdom should be a country in which the police can come to such a person's house and take him away to be detained indefinitely without trial.

The technical issue in this appeal is whether such a power can be justified on the ground that there exists a "war or other public emergency threatening the life of the nation" within the meaning of article 15 of the European Convention on Human Rights. But I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.

The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history....

What is meant by "threatening the life of the nation"? The "nation" is a social organism, living in its territory (in this case, the United Kingdom) under its own form of government and subject to a system of laws which expresses its own political and moral values. When one speaks of a threat to the "life" of the nation, the word life is being used in a metaphorical sense. The life of the nation is not coterminous with the lives of its people. The nation, its institutions and values, endure through generations. In many important respects, England is the same nation as it was at the time of the first Elizabeth or the Glorious Revolution. The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed to the United Kingdom by Nazi Germany in the Second World War. This country, more than any other in the world, has an unbroken history of living for centuries under institutions and in accordance with values which show a recognisable continuity....

The Home Secretary has adduced evidence, both open and secret, to show the existence of a threat of serious terrorist outrages. The Attorney General did not invite us to examine the secret evidence, but despite the widespread scepticism which has attached to intelligence assessments since the fiasco over Iraqi weapons of mass destruction, I am willing to accept that credible evidence of such plots exist. The events of 11 September 2001 in New York and Washington and 11 March 2003 in Madrid make it entirely likely that the threat of similar atrocities in the United Kingdom is a real one.

But the question is whether such a threat is a threat to the life of the nation. The Attorney General's submissions and the judgment of the Special Immigration Appeals Commission treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation. But in my opinion this shows a misunderstanding of what is meant by "threatening the life of the nation". Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:
"Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours"
This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

For these reasons I think that the Special Immigration Appeals Commission made an error of law and that the appeal ought to be allowed. Others of your Lordships who are also in favour of allowing the appeal would do so, not because there is no emergency threatening the life of the nation, but on the ground that a power of detention confined to foreigners is irrational and discriminatory. I would prefer not to express a view on this point. I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

Monday, 7 November 2011

John Stuart Mill, On Liberty (1859)

On Liberty by John Stuart Mill (1806-1873) is one of the founding texts of modern liberalism.  In the extracts below, Mill first sets out his general thesis - that the government and society should only restrict individual freedom in order to prevent harm from being done to others - and then goes on, in discussing the legitimacy of freedom of expression, to explain the difficulty involved in claiming that any given system of belief, even one which represents the conventional wisdom, is undeniably true.

There is, in fact, no recognized principle by which the propriety or impropriety of government interference is customarily tested. People decide according to their personal preferences. Some, whenever they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business; while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interests amenable to governmental control. And men range themselves on one or the other side in any particular case, according to this general direction of their sentiments; or according to the degree of interest which they feel in the particular thing which it is proposed that the government should do; or according to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they consistently adhere, as to what things are fit to be done by a government. And it seems to me that, in consequence of this absence of rule or principle, one side is at present as often wrong as the other; the interference of government is, with about equal frequency, improperly invoked and improperly condemned.

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury. For the same reason, we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage.... Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion.... But as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in the direct form or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others.


In order more fully to illustrate the mischief of denying a hearing to opinions because we, in our own judgment, have condemned them, it will be desirable to fix down the discussion to a concrete case; and I choose, by preference, the cases which are least favourable to me - in which the argument against freedom of opinion, both on the score of truth and on that of utility, is considered the strongest. Let the opinions impugned be the belief in a God and in a future state, or any of the commonly received doctrines of morality. To fight the battle on such ground, gives a great advantage to an unfair antagonist; since he will be sure to say (and many who have no desire to be unfair will say it internally), Are these the doctrines which you do not deem sufficiently certain to be taken under the protection of law? Is the belief in a God one of the opinions, to feel sure of which, you hold to be assuming infallibility? But I must be permitted to observe, that it is not the feeling sure of a doctrine (be it what it may) which I call an assumption of infallibility. It is the undertaking to decide that question for others, without allowing them to hear what can be said on the contrary side. And I denounce and reprobate this pretension not the less, if put forth on the side of my most solemn convictions. However positive any one's persuasion may be, not only of the falsity, but of the pernicious consequences--not only of the pernicious consequences, but (to adopt expressions which I altogether condemn) the immorality and impiety of an opinion; yet if, in pursuance of that private judgment, though backed by the public judgment of his country or his contemporaries, he prevents the opinion from being heard in its defence, he assumes infallibility. And so far from the assumption being less objectionable or less dangerous because the opinion is called immoral or impious, this is the case of all others in which it is most fatal. These are exactly the occasions on which the men of one generation commit those dreadful mistakes which excite the astonishment and horror of posterity. It is among such that we find the instances memorable in history, when the arm of the law has been employed to root out the best men and the noblest doctrines; with deplorable success as to the men, though some of the doctrines have survived to be (as if in mockery) invoked, in defence of similar conduct towards those who dissent from them, or from their received interpretation.

Mankind can hardly be too often reminded, that there was once a man named Socrates, between whom and the legal authorities and public opinion of his time, there took place a memorable collision. Born in an age and country abounding in individual greatness, this man has been handed down to us by those who best knew both him and the age, as the most virtuous man in it; while we know him as the head and prototype of all subsequent teachers of virtue, the source equally of the lofty inspiration of Plato and the judicious utilitarianism of Aristotle, "i maestri di color che sanno," the two headsprings of ethical as of all other philosophy. This acknowledged master of all the eminent thinkers who have since lived - whose fame, still growing after more than two thousand years, all but outweighs the whole remainder of the names which make his native city illustrious - was put to death by his countrymen, after a judicial conviction, for impiety and immorality. Impiety, in denying the gods recognized by the State; indeed his accuser asserted (see the "Apologia") that he believed in no gods at all. Immorality, in being, by his doctrines and instructions, a "corrupter of youth." Of these charges the tribunal, there is every ground for believing, honestly found him guilty, and condemned the man who probably of all then born had deserved best of mankind, to be put to death as a criminal.

To pass from this to the only other instance of judicial iniquity, the mention of which, after the condemnation of Socrates, would not be an anti-climax: the event which took place on Calvary rather more than eighteen hundred years ago. The man who left on the memory of those who witnessed his life and conversation, such an impression of his moral grandeur, that eighteen subsequent centuries have done homage to him as the Almighty in person, was ignominiously put to death, as what? As a blasphemer. Men did not merely mistake their benefactor; they mistook him for the exact contrary of what he was, and treated him as that prodigy of impiety, which they themselves are now held to be, for their treatment of him. The feelings with which mankind now regard these lamentable transactions, especially the latter of the two, render them extremely unjust in their judgment of the unhappy actors. These were, to all appearance, not bad men - not worse than men most commonly are, but rather the contrary; men who possessed in a full, or somewhat more than a full measure, the religious, moral, and patriotic feelings of their time and people: the very kind of men who, in all times, our own included, have every chance of passing through life blameless and respected. The high-priest who rent his garments when the words were pronounced, which, according to all the ideas of his country, constituted the blackest guilt, was in all probability quite as sincere in his horror and indignation, as the generality of respectable and pious men now are in the religious and moral sentiments they profess; and most of those who now shudder at his conduct, if they had lived in his time and been born Jews, would have acted precisely as he did. Orthodox Christians who are tempted to think that those who stoned to death the first martyrs must have been worse men than they themselves are, ought to remember that one of those persecutors was Saint Paul.

Let us add one more example, the most striking of all, if the impressiveness of an error is measured by the wisdom and virtue of him who falls into it. If ever any one, possessed of power, had grounds for thinking himself the best and most enlightened among his contemporaries, it was the Emperor Marcus Aurelius. Absolute monarch of the whole civilized world, he preserved through life not only the most unblemished justice, but what was less to be expected from his Stoical breeding, the tenderest heart. The few failings which are attributed to him, were all on the side of indulgence: while his writings, the highest ethical product of the ancient mind, differ scarcely perceptibly, if they differ at all, from the most characteristic teachings of Christ. This man, a better Christian in all but the dogmatic sense of the word, than almost any of the ostensibly Christian sovereigns who have since reigned, persecuted Christianity. Placed at the summit of all the previous attainments of humanity, with an open, unfettered intellect, and a character which led him of himself to embody in his moral writings the Christian ideal, he yet failed to see that Christianity was to be a good and not an evil to the world, with his duties to which he was so deeply penetrated. Existing society he knew to be in a deplorable state. But such as it was, he saw or thought he saw, that it was held together and prevented from being worse, by belief and reverence of the received divinities. As a ruler of mankind, he deemed it his duty not to suffer society to fall in pieces; and saw not how, if its existing ties were removed, any others could be formed which could again knit it together. The new religion openly aimed at dissolving these ties: unless, therefore, it was his duty to adopt that religion, it seemed to be his duty to put it down. Inasmuch then as the theology of Christianity did not appear to him true or of divine origin; inasmuch as this strange history of a crucified God was not credible to him, and a system which purported to rest entirely upon a foundation to him so wholly unbelievable, could not be foreseen by him to be that renovating agency which, after all abatements, it has in fact proved to be; the gentlest and most amiable of philosophers and rulers, under a solemn sense of duty, authorized the persecution of Christianity. To my mind this is one of the most tragical facts in all history. It is a bitter thought, how different a thing the Christianity of the world might have been, if the Christian faith had been adopted as the religion of the empire under the auspices of Marcus Aurelius instead of those of Constantine. But it would be equally unjust to him and false to truth, to deny, that no one plea which can be urged for punishing anti-Christian teaching, was wanting to Marcus Aurelius for punishing, as he did, the propagation of Christianity. No Christian more firmly believes that Atheism is false, and tends to the dissolution of society, than Marcus Aurelius believed the same things of Christianity; he who, of all men then living, might have been thought the most capable of appreciating it. Unless any one who approves of punishment for the promulgation of opinions, flatters himself that he is a wiser and better man than Marcus Aurelius - more deeply versed in the wisdom of his time, more elevated in his intellect above it - more earnest in his search for truth, or more single-minded in his devotion to it when found; - let him abstain from that assumption of the joint infallibility of himself and the multitude, which the great Antoninus made with so unfortunate a result.

Thomas Babington Macaulay on the course of history (1831)

Thomas Babington Macaulay (1758-1837) is best remembered today for his History of England, which is written from a classical Whig perspective.  This is an extract from a speech which he made in the House of Commons on 16 December 1831 in favour of the Great Reform Bill, which was passing through Parliament at that time.

I well know that history, when we look at it in small portions, may be so construed as to mean anything, that it may be interpreted in as many ways as a Delphic oracle. "The French Revolution," says one expositor, "was the effect of concession." "Not so," cries another: "The French Revolution was produced by the obstinacy of an arbitrary government." "If the French nobles," says the first, "had refused to sit with the Third Estate, they would never have been driven from their country." "They would never have been driven from their country," answers the other, "if they had agreed to the reforms proposed by M. Turgot." These controversies can never be brought to any decisive test, or to any satisfactory conclusion. But, as I believe that history, when we look at it in small fragments, proves anything, or nothing, so I believe that it is full of useful and precious instruction when we contemplate it in large portions, when we take in, at one view, the whole lifetime of great societies. I believe that it is possible to obtain some insight into the law which regulates the growth of communities, and some knowledge of the effects which that growth produces. The history of England, in particular, is the history of a government constantly giving way, sometimes peaceably, sometimes after a violent struggle, but constantly giving way before a nation which has been constantly advancing. The forest laws, the laws of villenage, the oppressive power of the Roman Catholic Church, the power, scarcely less oppressive, which, during some time after the Reformation, was exercised by the Protestant Establishment, the prerogatives of the Crown, the censorship of the Press, successively yielded. The abuses of the representative system are now yielding to the same irresistible force. It was impossible for the Stuarts, and it would have been impossible for them if they had possessed all the energy of Richelieu, and all the craft of Mazarin, to govern England as England had been governed by the Tudors. It was impossible for the princes of the House of Hanover to govern England as England had been governed by the Stuarts. And so it is impossible that England should be any longer governed as it was governed under the four first princes of the House of Hanover. I say impossible. I believe that over the great changes of the moral world we possess as little power as over the great changes of the physical world. We can no more prevent time from changing the distribution of property and of intelligence, we can no more prevent property and intelligence from aspiring to political power, than we can change the courses of the seasons and of the tides. In peace or in tumult, by means of old institutions, where those institutions are flexible, over the ruins of old institutions, where those institutions oppose an unbending resistance, the great march of society proceeds, and must proceed. The feeble efforts of individuals to bear back are lost and swept away in the mighty rush with which the species goes onward. Those who appear to lead the movement are, in fact, only whirled along before it; those who attempt to resist it, are beaten down and crushed beneath it.

It is because rulers do not pay sufficient attention to the stages of this great movement, because they underrate its force, because they are ignorant of its law, that so many violent and fearful revolutions have changed the face of society. We have heard it said a hundred times during these discussions, we have heard it said repeatedly in the course of this very debate, that the people of England are more free than ever they were, that the Government is more democratic than ever it was; and this is urged as an argument against Reform. I admit the fact; but I deny the inference. It is a principle never to be forgotten, in discussions like this, that it is not by absolute, but by relative misgovernment that nations are roused to madness. It is not sufficient to look merely at the form of government. We must look also to the state of the public mind. The worst tyrant that ever had his neck wrung in modern Europe might have passed for a paragon of clemency in Persia or Morocco. Our Indian subjects submit patiently to a monopoly of salt. We tried a stamp duty, a duty so light as to be scarcely perceptible, on the fierce breed of the old Puritans; and we lost an empire. The Government of Louis the Sixteenth was certainly a much better and milder Government than that of Louis the Fourteenth; yet Louis the Fourteenth was admired, and even loved, by his people. Louis the Sixteenth died on the scaffold. Why? Because, though the Government had made many steps in the career of improvement, it had not advanced so rapidly as the nation. Look at our own history. The liberties of the people were at least as much respected by Charles the First as by Henry the Eighth, by James the Second as by Edward the Sixth. But did this save the crown of James the Second? Did this save the head of Charles the First? Every person who knows the history of our civil dissensions knows that all those arguments which are now employed by the opponents of the Reform Bill might have been employed, and were actually employed, by the unfortunate Stuarts. The reasoning of Charles, and of all his apologists, runs thus:—"What new grievance does the nation suffer? What has the King done more than what Henry did? more than what Elizabeth did? Did the people ever enjoy more freedom than at present? Did they ever enjoy so much freedom?" But what would a wise and honest counsellor, if Charles had been so happy as to possess such a counsellor, have replied to arguments like these? He would have said, "Sir, I acknowledge that the people were never more free than under your government. I acknowledge that those who talk of restoring the old Constitution of England use an improper expression. I acknowledge that there has been a constant improvement during those very years during which many persons imagine that there has been a constant deterioration. But, though there has been no change in the government for the worse, there has been a change in the public mind which produces exactly the same effect which would be produced by a change in the government for the worse. Perhaps this change in the public mind is to be regretted. But no matter; you cannot reverse it. You cannot undo all that eighty eventful years have done. You cannot transform the Englishmen of 1640 into the Englishmen of 1560. It may be that the simple loyalty of our fathers was preferable to that inquiring, censuring, resisting spirit which is now abroad. It may be that the times when men paid their benevolences cheerfully were better times than these, when a gentleman goes before the Exchequer Chamber to resist an assessment of twenty shillings. And so it may be that infancy is a happier time than manhood, and manhood than old age. But God has decreed that old age shall succeed to manhood, and manhood to infancy. Even so have societies their law of growth. As their strength becomes greater, as their experience becomes more extensive, you can no longer confine them within the swaddling bands, or lull them in the cradles, or amuse them with the rattles, or terrify them with the bugbears of their infancy. I do not say that they are better or happier than they were; but this I say, that they are different from what they were, that you cannot again make them what they were, and that you cannot safely treat them as if they continued to be what they were." This was the advice which a wise and honest Minister would have given to Charles the First. These were the principles on which that unhappy prince should have acted. But no. He would govern, I do not say ill, I do not say tyrannically; I only say this; he would govern the men of the seventeenth century as if they had been the men of the sixteenth century; and therefore it was, that all his talents and all his virtues did not save him from unpopularity, from civil war, from a prison, from a bar, from a scaffold. These things are written for our instruction. Another great intellectual revolution has taken place; our lot has been cast on a time analogous, in many respects, to the time which immediately preceded the meeting of the Long Parliament. There is a change in society. There must be a corresponding change in the government. We are not, we cannot, in the nature of things, be, what our fathers were. We are no more like the men of the American war, or the men of the gagging bills, than the men who cried "privilege" round the coach of Charles the First were like the men who changed their religion once a year at the bidding of Henry the Eighth. That there is such a change, I can no more doubt than I can doubt that we have more power looms, more steam engines, more gas lights, than our ancestors. That there is such a change, the Minister will surely find who shall attempt to fit the yoke of Mr Pitt to the necks of the Englishmen of the nineteenth century. What then can you do to bring back those times when the constitution of this House was an object of veneration to the people? Even as much as Strafford and Laud could do to bring back the days of the Tudors; as much as Bonner and Gardiner could do to bring back the days of Hildebrand; as much as Villele and Polignac could do to bring back the days of Louis the Fourteenth. You may make the change tedious; you may make it violent; you may—God in his mercy forbid!—you may make it bloody; but avert it you cannot. Agitations of the public mind, so deep and so long continued as those which we have witnessed, do not end in nothing. In peace or in convulsion, by the law, or in spite of the law, through the Parliament, or over the Parliament, Reform must be carried. Therefore be content to guide that movement which you cannot stop. Fling wide the gates to that force which else will enter through the breach. Then will it still be, as it has hitherto been, the peculiar glory of our Constitution that, though not exempt from the decay which is wrought by the vicissitudes of fortune, and the lapse of time, in all the proudest works of human power and wisdom, it yet contains within it the means of self-reparation. Then will England add to her manifold titles of glory this, the noblest and the purest of all; that every blessing which other nations have been forced to seek, and have too often sought in vain, by means of violent and bloody revolutions, she will have attained by a peaceful and a lawful Reform.

Voltaire on tolerance (1764)

An extract from the French writer and satirist Voltaire's Dictionnaire Philosophique.

It is clear that the individual who persecutes a man, his brother, because he is not of the same opinion, is a monster. That admits of no difficulty. But the government! but the magistrates! but the princes! how do they treat those who have another worship than theirs? If they are powerful strangers, it is certain that a prince will make an alliance with them. Franois I., very Christian, will unite with Mussulmans against Charles V., very Catholic. Francois I. will give money to the Lutherans of Germany to support them in their revolt against the emperor; but, in accordance with custom, he will start by having Lutherans burned at home. For political reasons he pays them in Saxony; for political reasons he burns them in Paris. But what will happen? Persecutions make proselytes? Soon France will be full of new Protestants. At first they will let themselves be hanged, later they in their turn will hang. There will be civil wars, then will come the St. Bartholomew; and this corner of the world will be worse than all that the ancients and moderns have ever told of hell.

Madmen, who have never been able to give worship to the God who made you! Miscreants, whom the example of the Noachides, the learned Chinese, the Parsees and all the sages, has never been able to lead! Monsters, who need superstitions as crows' gizzards need carrion! you have been told it already, and there is nothing else to tell you - if you have two religions in your countries, they will cut each other's throat; if you have thirty religions, they will dwell in peace. Look at the great Turk, he governs Guebres, Banians, Creek Christians, Nestorians, Romans. The first who tried to stir up tumult would be impaled; and everyone is tranquil.

Of all religions, the Christian is without doubt the one which should inspire tolerance most, although up to now the Christians have been the most intolerant of all men. The Christian Church was divided in its cradle, and was divided even in the persecutions which under the first emperors it sometimes endured. Often the martyr was regarded as an apostate by his brethren, and the Carpocratian Christian expired beneath the sword of the Roman executioners, excommunicated by the Ebionite Christian, the which Ebionite was anathema to the Sabellian.

This horrible discord, which has lasted for so many centuries, is a very striking lesson that we should pardon each other's errors; discord is the great ill of mankind; and tolerance is the only remedy for it.

There is nobody who is not in agreement with this truth, whether he meditates soberly in his study, or peaceably examines the truth with his friends. Why then do the same men who admit in private indulgence, kindness, justice, rise in public with so much fury against these virtues? Why? it is that their own interest is their god, and that they sacrifice everything to this monster that they worship....

...[T]oday when so many sects make a balance of power, what course to take with them? Every sect, as one knows, is a ground of error; there are no sects of geometers, algebraists, arithmeticians, because all the propositions of geometry, algebra and arithmetic are true. In every other science one may be deceived. What Thomist or Scotist theologian would dare say seriously that he is sure of his case?

If it were permitted to reason consistently in religious matters, it is clear that we all ought to become Jews, because Jesus Christ our Saviour was born a Jew, lived a Jew, died a Jew, and that he said expressly that he was accomplishing, that he was fulfilling the Jewish religion. But it is clearer still that we ought to be tolerant of one another, because we are all weak, inconsistent, liable to fickleness and error. Shall a reed laid low in the mud by the wind say to a fellow reed fallen in the opposite direction : "Crawl as I crawl, wretch, or I shall petition that you be torn up by the roots and burned?"

Lord Atkin's judgment in Liversidge v Anderson (1941)

This is a dissenting judgment delivered in the House of Lords in litigation over the British government's emergency wartime legislation adopted in 1939 (Liversidge v Anderson [1941] UKHL 1).  The plaintiff was seeking to challenge the Home Secretary's decision to intern him without trial.  The majority of the Law Lords held that the courts could not review the Home Secretary's decision.

I view with apprehension the attitude of judges who on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive. Their function is to give words their natural meaning, not perhaps in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850, 5 Ex. 378), cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman (1941, 3 All E.R., at p. 55), "in a case in which the liberty of the subject is concerned, we "cannot go beyond the natural construction of the Statute." In this country amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of Kings Bench in the time of Charles I.

I protest, even if I do it alone, against a strained construction put upon words with the effect of giving an uncontrolled power of imprisonment to the Minister. To recapitulate. The words have only one meaning: they are used with that meaning in statements of the common law and in statutes; they have never been used in the sense now imputed to them: they are used in the defence regulations in the natural meaning: and when it is intended to express the meaning now imputed to them, different and apt words are used in the defence regulations generally and in this regulation in particular. Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.

I know of only one authority which might justify the suggested method of construction. "When I use a word," Humpty Dumpty said in rather a scornful tone," it means just what I choose it to mean, neither more nor less." "The question is," said Alice, "whether you can make words mean different things." "The question is," said Humpty Dumpty, "which is to be master - that's all." (Looking Glass, c. vi.) After all this long discussion the question is whether the words "If a man has" can mean "If a man thinks he has." I am of opinion that they cannot, and that the case should be decided accordingly.

The American Declaration of Independence (1776)

Some extracts from one of the foremost English-language documents of the Enlightenment, as adopted by the 13 American colonies on 4 July 1776.

When in the Course of human events it becomes necessary for one people to dissolve the political bonds which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States....

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.