Quentin Skinner - Keynote Speech "On so-called “republican” liberty and rights"

thank you very warmly oreo for these extremely generous words of introduction and may i also warmly thank the organizers of the conference for their very generous introduction to me to start us all off so when i speak as i do in the title of this lecture of so-called republican liberty i'm obviously implying a criticism of this specific theory of freedom and how it's come to be described especially as it's become a research program in the last 20 years you might well object however that all of us surely know by now what we mean we talk about the republican theory of freedom so what does it matter if that is in some way a misnomer well i certainly take myself to be talking to a highly expert audience this morning and i certainly assume that all of us do agree on what we mean by the republican theory of liberty we are referring i take it to the view that what it means to be in possession of liberty is not to be subject to and hence dependent upon the power and hence the arbitrary will of anyone else so liberty is a relationship of wills however i do want to say that it's a misnomer to call that a specifically republican theory of liberty and i also want to say that that mistake does matter for reasons of a philosophical as well as an historical kind and so that's what i'm now going to try briefly to show but i don't want to exaggerate so let me begin by making it clear what i'm not saying i'm not denying that the definition of freedom i've just offered was accepted it was indeed universally accepted by leading contributors to the european tradition of republican political thought that's the view of freedom you already find articulated by the roman moralists and historians writing at the time of the crisis of the roman republic and its superstition by the principal historians such as salis and libby moralists such as cicero and seneca libby in particular begins his history of rome by tracing the shift from hereditary rule by monarchs to rule by elected consuls whose mandate was just for a year and was created by an ultimately sovereign body of the people and he describes that constitution as a kidatas libera a free state in which everyone is able to live equally at liberty because they do not live subject to anyone else's will they live subject to laws which they have prescribed to themselves that's also the view you encounter of course in italian or national discussions of this classical roman story and perhaps most influentially it's the view of libertar underlying machiavelli's discovery on libby first published in 1531 machiavelli speaks in his opening chapter of how some cities have the bona fortuna to be created by warm and elivory free men rather than by men depending on who depend on others so there the liberty of free persons is explicitly defined by contrast with the condition of living subject to the mere arbitrio of a ruler arbitrary power in the manner of a slave now nor am i denying that it was largely out of those classical and relational sources that the later tradition of republican anti-monarchism in europe emerged this is the tradition of course it flowed spectacularly in france after the revolution of 89 but i want to say that similar strands of republican thinking had already played a comparable role in the abolition of monarchy in 17th century britain and i should add you that if there's a bias in my use of sources in this lecture it is that i'm inclined to lay my emphasis on this earlier tradition as it developed in britain and later in north america so i'm thinking here especially of such writers as much more nederm john milton james harrington alton on sydney and the writings of the so-called commonwealth men in great britain and in north america finally i do not in the least deny that this tradition of thought made a distinctive contribution to the articulation of what is now called the republican view of liberty let me just make two points here one is that republicans take a distinctively strong view about the relationship between liberty and the upholding of a particular form of government and i've already cited machiavelli as expressing it and the slogan is derived from liberty you can live as a free person only in a free state that's to say in which the will of the body politic is the will of the members of that body if you are subject to anyone else's will you live as a slave but i also want to say second thought that the republican writers show a special interest this is very important in the tradition in the psychological dimension of the distinction between living in liberty and living as a slave they're concerned that is not just with the legal question of what it means to be a slave but with the psychological question of what it means to realize that you are a slave i mean of course they're writing in a slave society in which many people are born as slaves so for a time would be a slave without knowing it but what does it mean to come to know that you are a slave and the answer is given by the republican writers drawing especially here of course on tacitus and seneca is that slavery and freedom are deeply formative of character a free person can be expected to have a distinctive presentation um indeed in in french and in english the word frank used to mean free this person will be frank they will be confident they will be independent of judgment they will look you in the eye that is the liber honor by contrast the the dreadful but inescapable thought is slavery cannot fail to make you slavish how could it be otherwise seneca particularly underlining this being a slave means you're wholly at the mercy of the power of someone else but that means you're going to do everything that you can to keep out of trouble so one of the horrors of servitude is that it cannot fail to make you serve so in short there's an undoubtedly significant contribution to the so-called republican analysis of liberty that comes from specifically republican sources of course nevertheless i still want to say that the current discussion of the so-called republican theory got off to an unfortunate start when so much emphasis was laid on that particular tradition of thinking about freedom the result i would say has been some questionable history and also some questionable philosophy so let me turn to try to make that point a word first about questionable history one influential error can be traced back to a major work that greatly contributed to the nude interest in so-called republican liberty i mean john pocock's masterpiece the machiavellian moment uh pilcock argues as i'm sure you remember that when renaissance writers claimed to be there's no freedom in the absence of self-government they were embracing what he describes as an aristotelian vision of political liberty more exactly he takes them to be embracing what he sees as hannah ahrens near aristotelian view namely that freedom consists in contributing to self-government and so in poco as in our end of course it's said to be because the arena of public service is the one in which you can attain the highest development of your talents and so most fully and freely yourself so that's what charles taylor following isaiah berlin has called positive liberty although of course taylor wishes to endorse it whereas berlin wishes to denounce it however as many scholars have by now objected to pocock machiavelli's view of political participation is purely instrumental as he points out in the discovery if you are unable to participate at least by representation in the business of government then there will be no sense in which the law reflects your will but if it doesn't reflect your will it must reflect somebody else's will you are nevertheless commanded to obey it but machiavelli has defined the condition of slavery as in that way depending on the will of someone else so here's the point it is as a causal condition of avoiding servitude that machiavelli calls for active participation in government it's not in the least it's nothing to do with perfecting yourself in an aristotelian way there's one piece of questionable history um a second confusion i think that's resulted from concentrating on the republican tradition has been that while republicans of course treat liberty as a relationship of wills that's the whole point liberty is a relationship of wills they've never been able to agree about the concept of the will um this this is not exactly a confusion but there are two strands here some what to say for example machiavelli that to have the capacity for free action is to be able to act as you choose but in the anglophone tradition that is very strongly questioned um by the tradition which insists i'm thinking here obviously of john milton or james harrington that there should be a distinction made between liberty and license so as these writers want to express it if you are interesting phrase a slave to the passions then you never act freely because your actions are expressions of license not liberty it's only liberty if the passions are controlled by reason well of course hobbs was the man who sought to dismiss that distinction by tracing all motivations to the passion but kantian republicanism reinstated the distinction and so confusion about what you might want to ask is the authentically republican understanding of the will has been the result actually i don't think either of those two confusions has done anything much to harm the understanding of the history of liberty but the same cannot be said of the third point i promised to try to bring out it's this it is true that those who wrote in the heyday of republican liberty in early modern europe thought of liberty as absence of dependence on the will of others but what i don't think has been sufficiently stressed is that in that area in that era everyone thought of liberty in those terms i would say that way of thinking about civil liberty was not merely hegemonic it was universal in european legal and political philosophy until it became challenged in the latter part of the 17th century so let me turn to this story and let me first say a word about the challenge when and why it arose the challenge to so-called republican liberty arose within the tradition of natural jurisprudence among those who wish to contest the legal and scholastic defense of popular sovereignty the pioneering statement of that defense had been the work of the great italian um jurist atso in his debate with lothar major 12th century set piece about um imperium who holds imperium is it the ruler is it the people and atso's view that it is the people eventually became known as the monarch the king fighting view of sovereignty so among defenders of absolutism in the lothal tradition the main polemical task was obviously that of overturning the central monarchymark claim that if you live subject to absolute power you live as a slave now that task the defenders of absolutism eventually accomplished by way of arguing that the monarchymark writers confuse the state of being secure in the possession of liberty with the possession of liberty if the anti-monaco writers say someone has power to restrain you at will then your liberty is certainly not secure but so long as they're not exercising that power then you remain free to act as you choose so for them liberty is not defined as absence of subjection but simply as absence of interference that's the view adam rated by gracious strongly affirmed by hobbes developed by puffendorf and then by his numerous followers monomarky hanekias and so on through the 18th century and indeed in anglophone thinking that argument entered the mainstream with a whole generation of theories in the imperial at the time of the imperial crisis including john lind richard haye jeremy benson and many others all of whom wish to say look we've confused freedom with security for freedom freedom is just non-interference before that development however i do not find a single legal or political theorist in my reading who ever doubted the alternative view that liberty is not being subject to the will of another but here's the point the vast majority of those who wrote in these terms were not republicans not republicans at all so to put it crudely the question we're left with is well where did most people get that idea from well the answer is that not from republican sources well now you might say okay that that sounds an interesting historical point but why does that matter for us now well i think it does matter for us philosophically and if i now turn to what i think was the central tradition in which the so-called republican theory of liberty was formulated and developed i hope you'll see why so that is now the task in this second half of my lecture the body of texts which i want to turn i've come to feel were probably the most influential that medieval and early modern europe inherited from antiquity in the field of legal and political philosophy i mean the codex of roman law as assembled under the emperor justinian and the codex is specifically a body of private law and as at the start of the major section known as the digest of roman law we're told that the law encompasses persons actions and things but the most important of these categories i'm now approaching the digest i mean obviously translating is persons because for them all law is made so the digest begins with a section entitled day status homonym you've got to start there concerning the status of hominase of course homo in latin meaning man or woman what we would say is persons now that analysis of what it means to be a free person proved massively influential it's taken up by the glossators in continental europe beginning with the debate between atso and lothar um and of course at so taking the the monarch view as i said and then the same account of the law of persons is taken up in the 13th century into common law the crucial text there being bracktons massive treatise on the laws of england copper 1240 which establishes english common law and of course thereby establishes much law in north america too now if you read either ato or his followers or if you read either brackton or his followers on the law of persons what you find is the whole lot of them are simply quoting the digest word for word so what i'm now wanting to talk to you about in talking about the digest is how the distinction between free and unfree persons entered the entire legal tradition of early modern europe so let me turn as briefly as i can to the section of the digest entitled day status right here the juris guys is immediately cited for the dictum i quote that the principle division in the law of persons is that all persons are either liberty free persons or they are servi slaves so if you wish to understand what it means to be a free person what you need to understand is what it means to be a slave and here the jurists make two crucial points my own view is that if recent writers on so-called republican liberty had attended to what the law says at this point quite a lot of confusion could have been avoided okay the first claim here i'm quoting the digest again slavery is an institution by which contrary to nature notice that contra nutar of natura someone is dominio alieno subikita now dominium is the crucial term here i don't know of any definition of that word in latin but it had two meanings as dictionaries like to say or rather we would want to say it was used in two distinct ways either to refer to property dominion or else to power dominion now here you're being told that to be a slave is to be a quote again subject to the dominion of someone else subject to the dominion so dominion here can only mean power and if they're just two basic forms of personhood free persons and slaves it follows that what it means to be a free person is not to be subject to the power and hence the mere will of anyone else okay there's the analysis let me make two points about it notice that this analysis is not presented from the point of view of the dominus who present who represent who who possesses dominion the perspective is that of the liber hommer the free person who is not in subjection in the juristic tradition they never talk about non-domination i think they would have found that a confused idea they always speak about absence of subjection as far as i can see it was phillip pettit who first asked the talk i was asked to talk instead about something he called non-domination now philip's contribution to current debates about these issues has in my view been matchless but i think there are good reasons for following that for not following that particular neologism of his okay note two that the analysis in the digest is not confined to the negative vocabulary we've become accustomed to use in speaking about liberty the very first point the roman jurists make about free persons is that because they are by definition not subject to the will of anyone else they are capable i quote again factory liebet of doing whatever they want that is the freedom of the free person the freedom of the free person consists in doing what you want unless as the law adds you are prevented from doing what you want which can happen in two ways either by law or by illegal force by contrast the servitude of slaves is said to consist in the fact that they never act according to their own will that's to say their autonomous will whenever they act their actions have the character of permissions that's what you've got to understand about slavery this permission doesn't have to be expressed it could be silent but this is the permission of those at whose mercy they live because these persons possess at all times the power to stop them from acting should they choose to exercise it so whenever the slave act um it is not by the exercise of their autonomous will but by the australian by the exercise of their will and the permission silently expressed of the will of the master so there's what i'm calling the first of the two central claims made by the jurist which uh later republican theorists largely adopt but then in the next section of the digest a second claim is added about the freedom of persons that republicans usually do not take up although it's very important the law goes on to say that although slaves are persons subject to the will of somebody else not everyone who is subject to the will of somebody else is a slave converse does not hold this is where the jurists introduce the category of being or not being suey eures that's to say capable of acting in your own right and they say well a lot of people although they're not slaves are not sue euros and great the example they give of course it's a big joke in the law is children because the latin word for children is liberty but they are not fully free because they're not so euris they are under the power of apparently now when this category is taken up into common law it's greatly expanded among those now is said to be not to eures are not just children but also wards lords of court also women especially wives and anyone judged to be legally incapable in fact into the category of not fully free for the majority of humankind but if these people are not free persons but are also not slaves hmm there must be something further that distinguishes free persons from slaves as well as not being subject to the will of others so what is it well the answer is obvious and the jurists add it in their opening discussion of servitude a slave they say is not just a person subject to power of slaves we can also say i quote the digest once more in dominium nostrum ready gunter they are persons who have been reduced to being our dominion and here grammatically dominion can only mean property they've been reduced to being someone's property so the definition of slavery is emerges from the roman law texts is it to be a slave is to be wholly subject to the power and hence the arbitrary will of someone else in virtue of being in their ownership okay that's as quick as i can be in giving an outline of the juridical way of thinking about civil liberty and i want to draw this talk to an end by making three comments on it the first will be historical the other two are more philosophical in character first the historical point as i've said the tripartite distinction drawn by jurists between being free being a slave and not being fully through a uris is one that republicanism doesn't particularly occupy itself with they tend to operate between just the binary distinction being a free person or being a slave but here's my point we really must not follow the republicans here um as began to be pointed out when the debate about slavery became vociferous in the course of the enlightenment that's to say that anyone who is subject to the will of another is a slave and but that is to inflate the category of slavery to a morally outrageous degree and that's a point of the greatest importance to and to abolitionists at the time because this happened during the imperial crisis uh great britain and its colonies in america in the 1770s the original grievance voiced by the colonists as you know in 1765 was that they were being taxed without representation in the british parliament and hence without their consent so they say the demand for taxes is being made in the form of an exercise of arbitrary power but that means that we are slaves but even at the time that argument caused outrage uh i quote one of the leading early abolitionists dean tucker of bristol here are people who own slaves claiming to be said can they not see that the difference is that a slave unlike george washington is not merely subject to someone else but is in that condition in consequence of being their property the colonists may have a case tucker says but it's not that they are slaves okay now i end with my two more philosophical comments the first is that it would have been very good if those who'd led the revival of discussions about the so-called republican theory of liberty in the 1980s and 1990s had made it clear which they failed to do that as the jurists had always insisted the core idea is being a free person that's what the law wants you to understand what being free is all about is being a free person if we had really held onto that thought it would have neutralized an objection to the so-called republican theory that keeps being raised it never seems to go away and here is the alleged difficulty according to republicans freedom can be defined as non-domination simplicator so you have to say i mean here i quote philip's original formulation in his 1997 book acts of interference may condition but do not take away liberty well that's unfortunate because it lets people say and they keep saying it i mean for example i quote a recent article by professor talis you cannot say that interference is never sufficient for a loss of freedom as he goes on um this is his example i haitian to say it seems an obvious deprimation of my freedom if someone restricts my movements without my consent for example by handcuffing me while i am lying asleep okay the outcome of that line of criticism has been of course as you know the suggestion that for a satisfactory account of freedom you're going to have to put together the concept of domination um and the more familiar analysis of freedom's absence of interference and somehow combine them now that's a project that even so major theorist of republican liberty as frank lovett has felt obliged to devote a lot of time to but what i want to say is that i think that philip pettit's original formulation which he has since amended it's important to say and that of his critics both go astray and that the right solution is in the juris you have to see that the fundamental question is what does it mean to be a free person and as we've seen it means being able to act according to your autonomous will in virtue of not being subject to the will of anyone else so you have to distinguish between restrictions which have taken away your standing as a free person from restrictions which although they limit freedom of action leave your standing as a free person untouched now a free person who suffers some active physical interference obviously forfeits some liberty of action but that does nothing to take away their status as a free person by contrast a free person subject to the will of anyone else as we've seen wholly loses their freedom of action altogether they never act freely and what the defender of republican liberty has to say at this point is look what matters is your status as a free person compared with that interferences with individual actions that's really vanishingly small significance what freedom is is a relationship of wills and what that also means is that it is the name of a status freedom is the name of a status it's not a predicate of actions and the status which it names is the free person not subject to arbitrary will okay my other and this is my concluding philosophical comment uh is i think a further way in which you it's been unfortunate that the current critique of theories of freedom as non-interference has been formulated in republican rather than juridical terms now this is a complex point i want to make just make it as simple as possible both the juridical and the republican traditions of thinking about liberty connect freedom with rights but in recent discussion the emphasis has tended to be placed on the republican rather than the jurisdictional understanding of what it means to speak of a right now why is that unfortunate not just because it's unhistorical although it is and that's always unfortunate but because it's a case for saying and elena haldanus has been recently making this case really impressively that as republicans we may have left ourselves with the wrong theory of rights by attending to the republican instead of the juristic tradition so let me just end by trying to make good that claim the first point that needs to be made is that many republican theories of liberty of course operate without a concept of rights at all i mean i'm going to set aside that point in a moment but that's very important this is true of all the classical theories i don't think you find the notion of a subjective right in classical moral philosophy at all and it's certainly true of their renaissance admirers there i feel on strong ground i mean a writer like ricciardini or machiavelli operates entirely without the concept of a right right it's present in the italian language at the time they never use the term they just don't talk like that of course that gave rise at a certain point in recent discussions to the view that the republican contrition is hostile to the discourse of rights but anyone who studied 17th century republicanism such as christopher ammel for example have had no difficulty in showing that that's by no means true of that period of course republicans talk about rights um and indeed if we now turn to the great anglophone figures john milton or algernon sydney or indeed john locke they all speak not just the rights but of natural rights rights of nature and that stress on natural rights remains central to the english republican tradition right through the 18th century which might be said to culminate in richard price's tracks on civil liberty in the 1770s as well of course as having animated the american revolution of the same years as price explains i quote we are all endowed by god with certain rights or liberties of action that we would equally possess in our natural condition outside civil association so these rights are universal they are said to be inalienable and they are susceptible of providing a moral evaluation of political associations which are enjoined to uphold these rights on pain of losing their legitimacy so they must be treated as inviolable liberties um this is what has come in current parlance to be called human rights rights of nature rights of humankind so um as that suggests within certainly anglophone philosophy it would be fair to say that that analysis has remained the dominant way of thinking about civil and political rights your rights are viewed that is as possessions that you would hold outside the confines of any particular political association and they take the form here's the key point of universal moral demands they can be made by everyone upon everyone else but the point i want to stress is that this is not in the least the understanding of rights that you find in the juridical tradition of thinking about republican liberty once the law of persons as articulated in the digest was taken up originally as i've said via bracton into the anglophone tradition of common law in which law is defined as reasonable custom a completely different view of rights begins to emerge they are seen not as natural moral properties but as bodies of custom and precedent that have grown up over time within specific political associations and have survived because of their social utility so they're enshrined in law not because they are god-given properties but because these arrangements have been tested by time and that has disclosed their enduring social usefulness now that for example is the view of the british constitution you find in the writings of sir edward cook in the 17th century and of course edmund burke a century later these rights are not denied as being um ones that would cause you to forfeit your status as a free person if you lost them but they're not rights of nature they're not natural rights they're what these writers like to call and cook um i think kindness phrase fundamental rights i find that vocabulary first introduced indeed as far as i can see with great suddenness into the english language by the parliamentary opposition to the british monarchy just before the outbreak of the civil wars in 1642 you find the complaint that fundamental rights are being undermined by the crown by its exercises of arbitrary power in the petition of rights which was drafted by sir edward cook the objection already voiced in the petition is executive action is leaving the people subject to the mere will of the crime but to be subject to the mere will of anyone is to live as a slave so underlying that complaint you can already hear the litany that was explicitly voiced in the british bill of rights of 1689 which remains statutory in my country to this day as the bill declares there are some rights established by custom are so fundamental that they must be placed beyond the power of government to challenge and of course courts are there to insist on that as they had to do in 2019 this is beyond the power of mere government to challenge these rights because they are fundamental they're beyond legislation and according to the bill there are three such fundamental rights the right to life and hence self-defense the right to personal liberty that is habeas corpus and the right to hold and dispose of property including crucially property in your own person now those are fundamental rights and so fundamental liberties of action but they're never called natural rights nor are they in the bill of rights and in burke of course the very idea of natural rights is subjected to denunciation the whole point is this view of rights is that they are a social construct not a natural construct they are encapsulations of what one specific political association has recognized as essential to the fulfillment of their basic purposes so the status of being a free person on that account is the old english idea of the freedom it is equated with the capacity to exercise freedom of choice without possibility of interference in relation to those fundamental rights okay you might say that's just an historical point um but i would say that in the history of moral and political philosophy there's no such thing as just an historical point the history of moral and political philosophy is full of paths not taken concepts set aside we always need to ask ourselves if they're being set aside for good reasons that's to say for the solidly good reasons and not just for ideologically sufficient ones and whether it might not better suit our moral purposes to use those abandoned concepts than the ones we currently employ well that of course was the thought that underlay the current revival of the republican conception of liberty and as i say i strongly agree with professor haldenius that we also need to ask ourselves if we might not do well to reconsider the understanding of rights that originally accompanied that view of liberty so the question is should we adopt a view of republican liberty which is juridical through and through that's the question i want to leave you with thank you all very much

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Length: 38min 35sec (2315 seconds)

Published: Tue Jun 15 2021