(359) Riley’s Liberty

Descriptive concept: liberty = doing what one is able to do in relation to feasible acts and omissions; no inherent normative claim. $1651$ .
Normative significance requires a theory of rights and duties; Hobbes provides a descriptive baseline but rejects a robust normative civil liberty for individuals against the sovereign: the sovereign’s power is absolute and indivisible. $1651$ , $1994$ .
Liberty can coexist with coercive state power when individuals merely do what they wish under the threat of punishment; fear of punishment shapes future liberty.
Under despotism, liberty in Hobbes’ sense can still exist if the despot does not physically prevent an individual from doing what they wish.
Key text: Hobbes, Leviathan ( $1651$ ). Quote: “A free man, is he, that in those things, which by his strength and wit he is able to do, is not hindered to do what he has a will to?”

Civil liberty = a normative set of rights and duties within a code of justice that governs a society.
Interest theory of rights (Wesley Hohfeld-inspired): rights are moral/legal claims on society to protect vital interests; include correlative duties.
Rights may be complex entitlements (claims, privileges, powers, immunities).
Locke’s contract framework: civil liberty must harmonize with natural rights; government enacts laws to clarify concrete meaning of basic rights; consent of the governed is central.
Civil liberty requires obedience to a code of justice; equality of liberty is a core ideal in many theories (Locke, Mill, Berlin, Rawls).
Competing theories exist (Mill’s utilitarianism, Berlin’s value pluralism, Rawls’ liberalism), but they share that civil liberty = rights/duties under a just code.

Hobbes, Leviathan ( $1651$ ) – descriptive liberty; sovereign power and obedience under social contract.
Locke, Second Treatise of Government ( $1690$ ) – civil liberty linked to natural rights; consent; government to secure basic rights.
Berlin, “Negative and Positive Liberty” (1969) – famous but contested distinction; value pluralism and rights/duties; checks on power.
Mill, On Liberty (1859); Utilitarianism (1861) – security as vital interest; absolute liberty for self-regarding conduct for mature individuals; social/political liberty via constitutional democracy.
Pettit (1997) and Skinner (1998) – neo-Roman/non-domination critique; republic ideas of freedom from domination.

Rights (Hohfeldian framework):
- Claim rights: duties on others to protect vital interests.
- Liberty rights (privileges): permissions to act, given no duty to refrain.
- Power rights: abilities to create/exercise/alter rights.
- Immunity rights: protect existing claims; others cannot alter them.
Civil liberty = rights and duties plus the legal/moral framework that enforces them.
Descriptive vs normative liberty: Hobbesian descriptivity requires a normative theory of rights/duties to be meaningful.

Berlin’s influential distinction:
- Negative liberty: freedom from coercive interference in a domain of conduct.
- Positive liberty: freedom to be one’s own master; self-government; a voice in laws.
Berlin’s critique: misreads Hobbes if taken as pure negative liberty; in practice, liberty often combines both aspects.
Berlin’s pluralism: multiple, sometimes incommensurable values; liberty is valuable for enabling choice among values, but not a universal solution to all conflicts.
Box 2.1 takeaway: Hobbesian descriptive concept remains valid; conflicts among liberty concepts arise from value pluralism, not different descriptive senses.

Civil liberty depends on social/political status; equal citizens enjoy full civil liberty in a given society; hierarchies may create graded freedom or slavery.
Political power must be legitimate: lawful, non-arbitrary, and consent-based. Despotism is a violation of genuine political power.
Checks and balances: constitutional frameworks prevent concentration of power; democracy is a powerful but non-basic form of government.
Neo-Roman idea (non-domination): mere presence of power can violate liberty even if not actively exercised.
Locke, Madison, Mill, Berlin: civil liberty rests on basic rights secured by a system of rules, not on sheer democratic outcomes alone.

Mill’s view: security (the sense of protection of vital interests) is central to civil/political liberty.
Mature individuals have a basic right to absolute liberty in the self-regarding sphere (conduct that directly/primarily affects only oneself, with consent or voluntary participation of others).
Self-regarding vs other-regarding conduct:
- Self-regarding: no direct, immediate impact on others without consent; society may require justification to intervene if consent is not genuine.
- Other-regarding: actions directly/immediately affect others’ personal circumstances; society may regulate to prevent harm without consent.
Harm definition (Mill’s framework): harms/benefits are perceptible changes in personal circumstances, not mere feelings; consent determines the permissible reach of social regulation.
Society’s role: scrutiny of genuine consent (e.g., preventing coercion, misinformation, exploitation); paternalistic interventions permissible for preventing self-harm when consent is not genuine; but self-harm may be tolerated if consent is genuine.
Mill on self-regarding liberty: mature individuals have a right to absolute self-regarding liberty; government authority is legitimate only to prevent non-consensual harms.
Laissez-faire with exceptions: social regulation may be limited to cases where net social benefits justify intervention.

Mill’s individuality: essential to human development; liberty enables learning from consequences and self-improvement.
Individuality requires capacity to form competent judgments and to act according to personal judgement and desires.
The presence of genuine self-regarding liberty is a foundation for individuality and personal growth.

Hobbes’ descriptive liberty remains a valid baseline; normative value requires rights/duties frameworks.
Civil liberty = set of rights/duties within a just code; basic rights are sacred in many theories.
Negative vs positive liberty: Berlin’s distinction highlights value pluralism; liberties are not simply separable descriptive categories.
Civil liberty and political liberty: legitimate political power arises from consent; checks and balances prevent despotism; non-domination ideas complement classical liberalism.
Mill’s security concept unites civil/political liberty with a strong protection for self-regarding liberty; mature individuals have absolute self-regarding liberty, subject to genuine consent; society may regulate social conduct for net benefit, but not revoke absolute self-regarding liberty.
Individuality depends on liberty to form and act on one’s own judgments, supporting personal development and autonomy.

Civil libertarians should embrace Mill’s case for a constitutional democracy that protects basic rights and enables absolute self-regarding liberty for mature individuals.
Social regulation may be justified to prevent non-consensual harms and to promote security, but it should respect the boundary of self-regarding liberty and allow laissez-faire in many social domains where benefits exceed harms.