The State and Freedom—Are Classical Liberals Anarchists?

At a time when the state is acting as a pandemic fighter and thus as a guarantor of public health, classical liberals are left feeling uncomfortable. This is because the expansion of state power in the wake of pandemic measures, especially in its ability to restrict the exercise of fundamental freedoms, is worrisome from a liberal perspective. This unease is now expressed in a particularly strong way in the run-up to the vote on the COVID-19 law in Switzerland.

Classical liberalism was never “anarchist” by nature and therefore never simply advocated individual freedom alone. For it did not hold that this freedom was of itself or by itself a political good.

While many liberals are concerned and therefore argue for an end to such measures as soon as possible, others—more radically—argue that these policies already by their nature violate the principles of liberalism and have always been illegitimate because they restrict individual freedom. Whether one can derive a voting recommendation of any kind from the rejection of this rather “anarchistic” position is an open question. I confine myself to considerations of principle.

Security, Peace, and Justice—In the Service of Freedom

Classical liberalism was never “anarchist” by nature and therefore never simply advocated individual freedom alone. For it did not hold that this freedom was of itself or by itself a political good. Rather, according to the classical liberal position, the state not only had to protect the freedom of the individual, but also, in the interest of freedom, to provide for public safety, peace, and justice (in the sense of an equality of rights). While individual freedom results from the nature of the human person and is simply “there,” but can also be violated and suppressed, freedom as the freedom of everyone within the whole group of citizens living together in a community is never “simply there”; it must be legally created, guaranteed, and secured. And the “common good” of liberal, democratic states consists precisely in this, in the political-legal institutions that make it possible to secure freedom.

This corresponds to an older conception of the common good, which can be found, for example, in Thomas Aquinas. He speaks of the “bonum commune iustitiae et pacis” —the “common good of justice and peace.” Likewise, as Ernst-Wolfgang Böckenförde put it, the state is not an order of truth and virtue, but an order of peace and justice. Only in this way can the state also be an order of freedom. And it is precisely on this basis that the competences of a liberal state can be justified.

From Hobbes via Locke and Montesquieu to Mises and Hayek

The issue is first found in modern form in Thomas Hobbes. But he solved the problem wrongly, namely at the expense of freedom. Hobbes failed to reflect on the institutional conditions of securing liberty; for him, security and peace had absolute priority; guaranteeing them simply permitted the “sovereign”—the state—to do everything. Even if, according to Hobbes, this serves the purpose of allowing citizens to freely pursue their business and enjoy the fruits of their labor, it remains a highly dangerous one-sidedness.

John Locke had a better solution, one in favor of liberty. He thus became the founding father of modern political liberalism. But here, too, there are gaps. For Locke, with his political philosophy, became an advocate of the absolute sovereignty of Parliament—at least, he was read that way in England. Thus, at times in the early 19th century, Parliament could even decree the suspension of the right of habeas corpus—no arrest without a judicial mandate—that is, it could suspend the basis of all civil liberties. In the United States, on the other hand, according to Martin Kriele, Locke was read through the lens of Montesquieu and thus became the theorist of the separation of powers and legal security and, to that extent, of liberal liberties. But for Montesquieu in particular, security is a condition of freedom, it increases freedom, and there is thus no freedom without that security that the laws make possible in the first place.

An order of peace, security, and justice (equality of rights) secures this absence of coercion, and insofar as it secures it, it also guarantees, indeed increases, the freedom of the individual.

This is precisely why twentieth century liberal thinkers like F.A. Hayek argue in a classical-liberal way. For they see that political freedom cannot be based on itself. For Hayek, freedom is the absence of external coercion. An order of peace, security, and justice (equality of rights) secures this absence of coercion, and insofar as it secures it, it also guarantees, indeed increases, the freedom of the individual. Ludwig von Mises also speaks out against any anarchist interpretation of liberalism: The state, he writes, is not merely a “necessary evil,” but a good, precisely insofar as it secures the conditions for freedom. Mises regarded anarchism as the very greatest and most dangerous political aberration—it was, in his eyes, even more dangerous than socialism.

Institutional Guarantees for Freedom—Including Economic Freedom

Peace and security are not ends in themselves; they are in the service of the free development of the individual and of freely chosen forms of cooperation between individuals. The most basic form of such social cooperation is the market. There is, however, besides the statist, leftist liberalism, also an anarchist version, which, coming from the United States, is currently stirring mightily. It sees political and economic freedom as self-securing principles. According to all historical experience, however, this is an illusion—and liberals like Hayek and Mises have argued clearly against it. Freedom, including economic freedom, requires institutional guarantees secured by a state monopoly of legitimate violence—even if this is dangerous, open to abuse, and must therefore be put in check by constitutional controls, liberty rights, and the separation of powers.

State coercion always requires justification; individual freedom does not.

State coercion always requires justification; individual freedom does not. For sure, it is to be justified morally because freedom can be abused. Not everything that is done out of freedom is already good just because it originates from freedom. Therefore, all free action is subject to ethical scrutiny and standards. In the political-legal sphere, however, individual freedom neither requires justification nor can it fall under ethical norms. Politically, it becomes (also ethically) illegitimate only when it begins to restrict or even negate the equal freedom of others—then it violates the “common good of security and peace.” In this respect, a liberal state is a legally ordered coexistence of equal freedoms (in Kant’s sense). Accordingly, the political-legal order and the morality of personal conduct are different levels that must not be mixed.

In the economic sphere, too—from a liberal point of view—state measures can only be justified insofar as they secure and increase freedom, i.e., by enabling a free-market economy and free competition—even if liberals do not always agree on when free market economy and free competition really exist and how far a state regulatory system must intervene. In particular, the gradual inflationary destruction of our money, driven by political pressure, and indeed the increasing dependence of central banks’ monetary policy on fiscal policy objectives, along with the need to save states from over-indebtedness, leads many liberals today to the false conclusion that the state is fundamentally harmful. It is precisely this problem that makes contemporary intellectual descendants of Mises and Hayek vulnerable to anarchist thinking.

Pandemic Control—A Classic Task of the State

The liberal relapse into anarchism—i.e., the dream of a pure private law society without a state monopoly on the use of force—can then suddenly become fashionable. This is also evident in the rejection of state measures to combat pandemics. But from a liberal point of view, such measures are a classic task of the state. Ultimately, it is a matter of safeguarding public security and thus the common good. The goal is not the well-being of the individual, but the protection of the order in which free citizens live together. Pandemic containment policy is not illiberal paternalism, but a policy of safeguarding the functioning of fundamental institutions of freedom and social cooperation, including the market-economy. Only in this way can it be justified from a liberal perspective.

Corresponding measures must, of course, comply with the principle of proportionality, be appropriate to the situation, and be as decentralized or subsidiary as possible. And here we are left with many doubts. However, from a liberal point of view, temporary restrictions on fundamental freedoms or impediments to their exercise can never be regarded as fundamentally illegitimate; that is, unless one allows oneself to be infected by the ideological virus of anarchism, i.e., by an ultimately apolitical cult of “pure” individual freedom and a corresponding hostility to the state—a hostility saturated with moral pathos. However, because the political-legal and individual-ethical levels are inadmissibly mixed, this can hardly be justified in a liberal way.

 

This article was first published with minor abridgements under the title “Freiheit allein ist noch kein Gut” (“Freedom Alone Is Not a Good”) in the Neue Zürcher Zeitung, November 9, 2021, p. 31.  Online in nzz.ch

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