Art. Y. Elazar - Negative Liberty

8/13/2019 Art. Y. Elazar - Negative Liberty

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2/38Electronic copy available at: http://ssrn.com/abstract=1670523

Yiftah Elazar The Invention of Negative Liberty

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1 Introduction

In the beginning of his famous lecture “Two Concepts of Liberty,” Isaiah Berlin

quotes Heine’s warning to the French not to underestimate the power of ideas, because

“philosophical concepts nurtured in the stillness of a professor’s study could destroy a

civilization.” 1 The concepts nurtured in the stillness of Berlin’s study may not have

destroyed a civilization yet, but they have proven themselves remarkably resilient to

attacks. Despite numerous attempts to refine or redefine or dismiss them altogether, they

continue to frame the work of political scientists, philosophers, and historians, and this is

a testament to the power of ideas, the power of Berlin’s distinction in particular.

This paper is about the history of this distinction, or more precisely, about the

invention of the argument that the idea of liberty is “negative.” The argument first

appeared in England, shortly before the American Declaration of Independence. We find

it in the work of three utilitarian writers – Jeremy Bentham, John Lind, and Richard Hey

– all of which were involved in the political, jurisprudential, and philosophical debate on

the crisis between Britain and its American colonies. 2 In particular, the three had set out

to refute the theory of freedom proposed in the controversial defense of the American

colonists written by the philosopher, economist, and dissenting minister Richard Price,

and entitled Observations on the Nature of Civil Liberty (1776).

1 Isaiah Berlin, Four Essays on Liberty (Oxford; New York: Oxford University Press, 1969), 310.2 I would like to express my gratitude to the members of the Bentham Project at University College,London, and particularly to Philip Schofield and Michael Quinn, for their gracious hospitality in May 2010,while I was working on the Bentham manuscripts, as well as to Douglas Long, for generously sharing histranscripts of some of the Bentham manuscripts. Long’s Douglas G. Long, Bentham on Liberty: Jeremy

Bentham's Idea of Liberty in Relation to His Utilitarianism (Toronto: University of Toronto Press, 1977). isstill the best study written on Bentham’s conception of freedom, and it has been extremely helpful intracking down relevant passages in Bentham’s early writings.


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The confrontation between Price’s “neo-classical” conception of liberty and the

utilitarian idea of liberty as non-interference during the American debate has received

considerable attention in the neo-republican literature. 3 In his first essay on the concept of

liberty, written in 1984, Quentin Skinner had already described the negative definition of

freedom as “the formula originally owed to Jeremy Bentham, and more recently made

famous by Isaiah Berlin,” 4 traced it back to Thomas Hobbes, and contrasted it with the

Roman or classical or republican way of understanding freedom. In different publications

and lectures since then, he has stressed the continuity between Hobbes and Bentham,

attributing the “decline and fall” of the neo-classical theory to what has described as the

rise of “the neo-Hobbesian analysis of liberty popularised by the classical utilitarians.” 5

In a recent lecture, devoted to the debate between Bentham and Price, Skinner argued that

Bentham disingenuously claimed the Hobbesian definition of freedom as his own. 6 Philip

Pettit has similarly argued that the “triumph of freedom as non-interference” was made

possible by writers who opposed American Independence and revived the Hobbesian

notion of liberty. 7

There is no direct evidence that Hobbes influenced the eighteenth century

utilitarians Bentham, Lind, and Hey, but their definition of liberty as the absence of

3 Another writer who has been mentioned as defending a similar conception of freedom, and whose work isnot discussed in this paper, is William Paley. See William Paley, The Principles of Moral and Political

Philosophy (London: Printed for R. Faulder, 1785), 441-8.4 Quentin Skinner, "The Idea of Negative Liberty: Philosophical and Historical Perspectives," in

Philosophy in History: Essays on the Historiography of Philosophy , ed. Jerome B. Schneewind RichardRorty, and Quentin Skinner (Cambridge: Cambridge University Press, 1984), 194.5 Quentin Skinner, Liberty before Liberalism (Cambridge; New York: Cambridge University Press, 1998),96-8. Quentin Skinner, "States and the Freedom of Citizens," in States and Citizens: History, Theory,

Prospects , ed. Quentin Skinner and Bo Stråth (Cambridge: Cambridge University Press, 2003), 19.6 Quentin Skinner, “Political Liberty: The Enlightenment Debate,” The Roy Porter Lecture, given atUniversity College London on May 26, 2010. For a discussion of Paley and Blackstone, see also Skinner,

Liberty before Liberalism , 77-82, 97-8.7 Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford; New York: OxfordUniversity Press, 1997), 41-50.


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coercion or restraint bears a striking resemblance to his definition of liberty as “the

absence of external impediments.” 8 The ideological context is also sufficiently similar,

given that both Hobbes and the utilitarians were arguing against what they saw as a

dangerous surge of republicanism.

And yet, Hobbes was arguing for an absolute monarchy, while the eighteenth

century utilitarians shared with Richard Price and most other advocates of the American

cause a respect for the British mixed constitution. In contrast to Hobbes, Bentham and

Lind, and arguably also Hey, had an idea of civil or political liberty that included some

form of security against the arbitrary will of the government, and not merely against the

violence of other individuals. In contrast to Hobbes, the eighteenth century utilitarians

shared with Price and other advocates of the American cause the idea that protecting the

liberty of individuals in society requires a free constitution of government.

While acknowledging the similarity between the Hobbesian definition of liberty

and the eighteenth century utilitarian definition of liberty, this paper argues for the

uniqueness of the latter. The utilitarian invention of negative liberty should be understood

in the context of a debate in which neo-Roman assumptions about freedom and

government were, to some extent, shared, and the question at the heart of the debate was

the question of democratic participation. Like other critics of Price, the utilitarians were

opposed to his democratic definitions of free citizenship and free government, and they

opposed to them their own variations on the ideals of civil liberty and free government.

8 Thomas Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668 , ed. E. M. Curley(Indianapolis: Hackett Pub. Co., 1994), 79. James Crimmins has inquired whether Hobbes influencedBentham, and found little no support for the existence of such influence, except on one issue – acommitment to clarifying the language of political analysis. Crimmins did not look specifically at thequestion of influence with regard to the definition of freedom. James E. Crimmins, "Bentham and Hobbes:An Issue of Influence," Journal of the History of Ideas 63, no. 4 (2002).


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The general point they made was the one made by Montesquieu and de Lolme: liberty

under the rule of law and free government should not be confused with giving power to

the people. The philosophical analyses and arguments developed by Bentham, Lind, and

Hey were, however, influenced by their utilitarianism.

Section 2 of the paper describes in broad outlines the invention of the negative

definition of liberty in the context of the American debate. Sections 3-6 discuss in more

details the theories of liberty developed by Bentham, Lind, and Hey. The discussion

advances in reverse chronological order of discovery, from Hey to Bentham, in the hope

that Bentham’s elusive ideas of civil liberty and free government will be made easier to

understand by recognizing the many similarities between his theory of liberty and those

of Lind and Hey.

2 Price’s “Capital Mistake”

The claim that the idea of liberty is negative, and denotes nothing but the absence

of coercion, first appeared in print in a letter that John Lind wrote to one of the London

newspapers a few months before the Declaration of Independence. Lind, a lawyer and

political pamphleteer, was writing a series of pseudonymous and acrimonious letters in

reply to Richard Price’s Observations on the Nature of Civil Liberty, published in

February 1776.

While most British commentators on the American controversy believed that the

dispute should be resolved by looking at the charters granted to the colonies, the

historical precedents, and the laws passed by the Parliament, Price’s approach was


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markedly different: he jettisoned the legal arguments, and chose to inquire how “the

general principles of Civil Liberty,” as well as “reason and equity, and the rights of

humanity,” bear on the controversy. 9 His conclusion was that Great Britain had been

unjustly and unwisely trying to rob the Americans “of that Liberty to which every

member of society, and all civil communities, have a natural and inalienable right.” 10

Price’s “general principles of Civil Liberty” were boldly democratic, and utterly

unpalatable to most of his contemporaries. He opened the Observations by analyzing

different kinds of liberty – physical, moral, religious, and civil – and concluded that

freedom in general consists in the power of self-government. Focusing next on civil

liberty, Price argues that individual citizens can only be free under a free government.

Internally, free government means equal representation for all free agents, and the ability

of individuals to control the government and make it accountable to them. Externally, it

means that a community is not subject to the will or power of another community. Based

on these principles, Price argues that subjecting the American colonists to the will of the

British Parliament, without allowing them adequate representation, deprives them of their

civil liberty, and amounts to an attempt to enslave them. 11

Dozens of writers responded to the Observations , creating the single most

extensive British pamphlet exchange in response to one writer during the years of the

9 Richard Price, "Observations on the Nature of Civil Liberty, the Principles of Government, and the Justiceand Policy of the War with America to Which Is Added an Appendix, Containing the State of the NationalDebt, an Estimate of the Money Drawn from the Public by Taxes, and an Account of the National Incomeand Expenditure since the Last War," (London: Printed for T. Cadell, 1776), 31-4.10 Ibid., 1.11 Ibid., 3-30.


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American crisis. 12 Some of the arguments concentrated on Price’s idea of liberty in

general, arguing that the definition of liberty as self-government is subversive of the

authority of government, and inconsistent with the security enjoyed under the rule of

law. 13 Many arguments attacked his ideas of civil liberty and free government, claiming

that his democratic principles are impracticable and dangerous, and would only lead to

anarchy and violence. 14 In his reply to the critics, Price distinguishes between writers

who opposed him “without abuse or rancour,” and writers who published “virulent

invectives” against him. He mentions John Lind as the ablest of the writers who

published virulent invectives.

Setting aside Lind’s offensive comments on Price’s character, the fourth of his

letters to the The Gazetteer and New Daily Advertiser , written under the pseudonym

“Attilius,” contained a theoretical innovation in the American debate. In this letter,

published on March 27, 1776, Lind claims that Price is “guilty of a capital mistake” in

defining liberty as the power of self-government, and offers his own definition instead:

12 Thomas Randolph Adams, The American Controversy : A Bibliographical Study of the British Pamphlets About the American Disputes, 1764-1783 , 2 vols. (Providence; New York: Brown University Press;Bibliographical Society of America, 1980), 909-34.13 Adam Ferguson, for example, argued that Price’s definition of liberty “is inconsistent with the great endof civil government itself, which is to give people security from the effect of crimes and disorders, and to

preserve the peace of mankind.” According to Ferguson, “Civil Liberty is not precisely a power to do whatwe please, but the security of our rights.” Adam Ferguson, "Remarks on a Pamphlet Lately Published by

Dr. Price Intitled, Observations on the Nature of Civil Liberty, ... In a Letter from a Gentleman in theCountry to a Member of Parliament," (London: printed for T. Cadell, 1776), 3, 7.14 See, for example, Henry Goodricke, "Observations on Dr. Price's Theory and Principles of Civil Libertyand Government Preceded by a Letter to a Friend, on the Pretensions of the American Colonies, in Respectof Right and Equity," (York: printed by A. Ward, for J. Dodsley, T. Cadell, and R. Baldwin, London; andJ. Todd, York, 1776), 96-128. Anonymous, "Civil Liberty Asserted, and the Rights of the SubjectDefended, against the Anarchial Principles of the Reverend Dr. Price in Which His Sophistical Reasonings,... Contained in His Observations on Civil Liberty, &C. Are Exposed and Refuted. In a Letter to aGentleman in the Country. By a Friend to the Rights of the Constitution," (London: printed for J. Wilkie,1776), 9-66.


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Liberty, Sir, is nothing positive; the term conveys only a negative idea: it

means neither more nor less than the absence of coercion . I use the term

coercion, because it comprises constraint and restraint ; by the former a man may

be compelled to do, by the latter to forbear , certain acts. 15

The next letter, published two days later, opens with an admission that the

definition of liberty as the absence of coercion was borrowed from a friend, whose name

is not mentioned. 16 The friend was the young Jeremy Bentham, Lind’s intimate friend in

those years.

In the course of the friendship and intellectual collaboration between them,

Bentham had appropriated from Lind the idea of writing a comment on Blackstone’s

Commentaries , and helped Lind in writing two of the prominent pro-British pamphlets in

those years, Remarks on the Principal Acts of the Thirteenth Parliament of Great Britain

(1775), and Answer to the Declaration of the American Congress (1776). 17 Still, when

Bentham saw his definition of liberty in the newspaper, and learned of Lind’s intention to

use his definition of right in the following letter, he was alarmed, and immediately sent a

letter to Lind, claiming his title to both. “It may have been half a year or a year or more,”

15 Letter from “Attilius” to the Gazetteer and New Daily Advertiser , March 27, 1776.16 Letter from “Attilius” to the Gazetteer and New Daily Advertiser , March 29, 1776.17 See Bentham’s letters to John Lind (5 October, 1774), and to Samuel Bentham (18 May, 1775) in

Timothy L. S. Sprigge, ed., The Correspondence of Jeremy Bentham, Volume 1: 1752-76 (London: TheAthlone Press, 1968), 204-7, 35. See also his letter to John Bowring from 30 January, 1827, in JeremyBentham, The Correspondence of Jeremy Bentham, Volume 12: July 1824 to June 1828 , ed. LukeO'Sullivan and Catherine Fuller (Oxford: Clarendon Press, 2006), Luke O'Sullivan and Catherine Fuller,ed., The Correspondence of Jeremy Bentham, Volume 12: July 1824 to June 1828 (Oxford: ClarendonPress, 2006), 288, 92-3, 307. The two pamphlets are John Lind, "Remarks on the Principal Acts of theThirteenth Parliament of Great Britain. By the Author of Letters Concerning the Present State of Poland.Vol. I. Containing Remarks on the Acts Relating to the Colonies. With a Plan of Reconciliation," (London:

printed for T. Payne, 1775). John Lind, "An Answer to the Declaration of the American Congress,"(London: printed for T. Cadell; J. Walter; and T. Sewell, 1776).


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he wrote in the letter, 18 “since I communicated to you a kind of discovery I thought I had

made, that the idea of Liberty, imported nothing in it that was positive; that it was merely

a negative one.” Bentham made clear that he defined liberty at first as “the absence of

restraint,” and the inclusion of the absence of constraint was Lind’s idea. Bentham,

however, reached the same conclusion independently, and suggested the final

formulation: liberty means the absence of coercion. In explaining his insistence that Lind

would acknowledge his title to the definition, Bentham says: “The definition of Liberty is

one of the corner stones of my system: and one that I know not how to do without.” 19

In the following weeks, the lawyer, essayist, and mathematician Richard Hey

published his own pamphlet in reply to Price, in which he argued that liberty means “the

absence of restraint.” In a footnote, Hey notes that he read the definition proposed by

Attilius in the Gazetteer , but claims to have come up with his own definition prior to that,

by examining the common use of the word “liberty.” He disagrees with the Bentham-

Lind definition, arguing that “Constraint is understood to include something more than a

mere deprivation of liberty.” 20

Bentham read Hey’s pamphlet “with no small pleasure and satisfaction,” and

drafted a long, rambling letter to Lind, originally intended for publication as an appendix

to Lind’s Three Letters to Dr. Price (1776). In the draft, entitled “Hey,” Bentham

18 Bentham’s account puts his “discovery” sometime in 1775, probably in the course of his work on the

Comment on the Commentaries .19 Letter from Bentham to Lind, 27-28 March, 1776, in Fuller, ed., The Correspondence of Jeremy

Bentham, Volume 12: July 1824 to June 1828 , 310-1. Lind published a more extensive acknowledgment,and confirmed Bentham’s account of their respective contributions to the definition, when he published theletters in the form of a pamphlet. See John Lind, "Three Letters to Dr. Price, Containing Remarks on HisObservations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy ofthe War with America," (London: Printed for T. Payne, J. Sewell, and P. Elmsly, 1776), 16-7.20 Richard Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government,"(London: printed for T. Cadell; and T. and J. Merrill, in Cambridge, 1776), 9.


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amicably argues the case for the Bentham-Lind formulation against Hey’s definition of

negative liberty. 21

This, in broad outlines, is the way in which the negative definition of liberty came

into the world. The following sections situate this definition within the broader context of

the theory of liberty developed by each of the three thinkers – Hey, Lind, and Bentham.

3 Hey on the Perfection of Civil Liberty

Hey’s Observations on the Nature of Civil Liberty, and the Principles of

Government (1776) is possibly the most philosophically oriented and clearly argued reply

to Price’s Observations . Hey argues for conducting the study of politics “in the calm

spirit of a Philosopher,” and consequently discusses only the principles of civil liberty

and government, declining to comment directly on the policies of the British

government. 22

Following Price, Hey opens his inquiry by trying to determine the meaning of

“Liberty in general,” but like other critics of Price, he feels that the definition of liberty as

self-government is arbitrary, and does not correspond to the use of the word in everyday

language. 23 By looking at a few examples, he infers that “the common idea of liberty is

merely negative, and is only the absence of restraint .” According to Hey, restraint

21 UCL CXVIII, 57-68.22 Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 1-5.23 See, for example, the section entitled “Prejudice from Names Obviated” in Goodricke, "Observations onDr. Price's Theory and Principles of Civil Liberty and Government Preceded by a Letter to a Friend, on thePretensions of the American Colonies, in Respect of Right and Equity," 78-82.


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extends not merely to physical hindrance to the performance of an action, but also to

prohibition by the civil laws, and even to prohibition by the laws of morality. 24

Using his negative definition, Hey constructs a brilliant analysis of the concept of

liberty, which might be said to anticipate Gerald MacCallum’s definition of freedom as a

triadic relation ranging over agents, preventing conditions, and things to do or to

become. 25 Hey distinguishes between two methods of analyzing liberty: by looking at the

different sorts of restraints, or by looking at the different kinds of actions from which an

individual may be restrained. According to the first method of analysis, natural liberty is

“the absence of restraints imposed by the laws of Nature,” civil liberty is the absence of

civil restraints, and so on. 26 According to the second method, freedom of speech is the

absence of restraint on speech, freedom of religion is the absence of restraint in matters of

religion, and so on. Toleration, according to Hey, is “the absence of Civil Restraints in

matters of Religion .”27 Building on this powerful analysis, Hey picks apart Price’s

definitions of physical, moral, religious, and civil liberty, and demonstrates, quite

effectively, that they are incongruous and confused. 28

One important point that comes up in the discussion, is that Hey objects to the

definition of liberty as a power: “to have the Principle or Power by which an action is to

be performed, is clearly different from the merely not being restrained from doing that

action.” 29 The inference is that lack of the power or capacity to perform an action is not a

24 Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 8.25 According to MacCallum, freedom is always of an agent or agents, from preventing conditions, to do, notto do, become, or not become something. Gerald C. MacCallum, Jr., "Negative and Positive Freedom," The

Philosophical Review 76, no. 3 (1967): 314.26 Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 10-6.27 Ibid., 16-8.28 Ibid., 18-24.29 Ibid., 19, 41.


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lack of freedom. This was Hobbes’s position in Chapter 21 of Leviathan : “when the

impediment of motion is in the constitution of the thing itself, we use not to say it wants

the liberty, but the power to move.” 30 Price’s contrasting view incorporates the

possession of power into the definition of freedom. Arguably it represents a quadratic,

and not a triadic relation, ranging over agents, preventing conditions, things to do or

become, and constitutive or enabling conditions.

Having analyzed liberty in general, Hey addresses the main topic of the debate

with Price: the nature of civil liberty. Hey’s definition of civil liberty follows the first

method of analysis, according to kinds of restraint: civil liberty is “the absence of Civil

Restraints .” This definition of civil liberty is almost identical to Hobbes’s definition of

the liberty of the subject, in Chapter 21 of Leviathan , as “an exemption from laws.” 31

Indeed, Hey’s negative definition of civil liberty serves him, just as it served

Hobbes, to argue against the maximization of civil liberty. According to Hobbes, “if we

take liberty for an exemption from laws, it is […] absurd for men to demand as they do

that liberty by which all other men may be masters of their lives.” 32 According to Hey,

Civil Liberty […] is greater , as the restraints imposed on us by Civil Laws are

fewer. The greatest degree of it would be, to have no Civil Laws at all. This is

what no one would wish for; and therefore it may be worth while to consider

what has been meant by some writers who, in passing their encomiums on

30 Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668 , 136.31 Ibid., 138.32 Ibid.


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subjects are under the absolute dominion of their sovereign just as slaves and contractual

servants are under the absolute dominion of their masters. 37

Hey, however, rejects consent or contract as the foundation of authority, and

prefers to rely on utility. The question then becomes what degree of restraint would be

useful to individuals and to society. In order to determine the answer, we would need to

know what the primary interests of individuals are. Hey believes that the primary interest

of individuals is to be free to pursue their own happiness. Their interest is in civil liberty

in the second sense of the term: not liberty from civil restraints, but the “ General Liberty

respecting Civil matters .” The laws, however, restrain this general liberty. Therefore, the

challenge for legislators is to find “the proper Medium” of restraint. In general, the

guiding principle for legislators should be: “To avoid, as much as possible, multiplying

restraints upon the subject. This principle leads to the point of Perfection in Civil

Liberty.” 38

Unlike Hobbes, then, Hey endorses an ideal of civil liberty in perfection that

aspires to minimize the oppressive intervention of the state in the individual’s life.

Moreover, Hey believes that the freedom from excessive interference by the state should

be guaranteed by the constitution. His praise for civil liberty and the right to it is summed

up in the following excerpt:

37 See Thomas Hobbes, The Elements of Law Natural and Politic , ed. J. C. A. Gaskin (Oxford: OxfordUniversity Press, 1999).. I am following the argument of Philip Pettit that despite the shift in semantics,Hobbes’s ontology of liberty is similar in The Elements and in Leviathan . See Philip Pettit, “Freedom inHobbes’s Ontology and Semantics: A Comment on Quentin Skinner.”38 Hey, "Observations on the Nature of Civil Liberty, and the Principles of Government," 38-9, 46-51, 53-5.


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And that Civil Liberty which has been the subject of so many panegyrics (and

very deservedly), seems to have been, Some degree or state of General Liberty

respecting Civil matters , either the best possible state of it or not far from the

best on the one side or the other; --- or more frequently, the Right to such

Liberty, considered as given and secured by the Civil Laws .39

This is indeed a blessing highly valuable. The warmest enthusiast in the cause

of Liberty may indulge himself here, in his encomiums, without much danger

of extravagance: --- to contend for this blessing with bravery and

perseverance, to study the improvement of the civil Constitution with this in

view, --- these works mark the true Hero and the genuine Patriot. 40

Hey’s ideal of civil liberty and civil government consists, then, in a secure

constitutional framework that protects individual rights against other individuals, and

minimizes the interference of government in private life. The question remains what

exactly are the protections that Hey envisions against undue interference by the

government. On this point, he is less than clear. On one hand, Lind defends the doctrine

of the omnipotence of the legislature. He argues that even if in principle, the voice of the

people is superior to the voice of the legislature, in practice, the voice of the people

“cannot be had,” and should be regarded as “an absolute chimera.” Therefore, to all

practical purposes, the power of the legislature is unlimited.41

39 Hey may be deriving his idea of the constitutional right to civil liberty in perfection from Montesquieu’sdiscussion of free government. He inquires what Montesquieu meant by speaking of free government, andconcludes that he referred to the right of citizens, secured by the constitution, to enjoy their civil liberty.Ibid., 33-5.40 Ibid., 39.41 Ibid., 51-2.


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On the other hand, Hey says that in extreme cases of oppression, “all rules and

laws cease; violence alone has place.” Unlike Hobbes, he recognizes the concept of

tyranny, and says that it applies when general liberty “is too small, and falls short of the

best degree.” He defines slavery as excessive subjection, and writes that an individual “is

a Slave to his Prince, when his actions depend more upon the will of his prince than the

purposes of Civil Society require.” 42 Hey does not explicitly endorse a right of

revolution, but he seems to imply that tyranny and political slavery would naturally lead

to revolution.

Overall, Hey makes strategic use of his definition of liberty as the absence of

restraint in order to achieve what he sees as the proper balance between liberty and

authority. Considering civil liberty in one sense, which contrasts it with the restraints

imposed by the law, he develops an argument against the demand of Price and the

colonists to maximize civil liberty. To maximize civil liberty, according to Hey, would

lead, by definition, to a state of anarchy, which would leave peaceful citizens prey to

licentious citizens. Considering civil liberty in its other sense, as liberty in civil matters,

Hey endorses the ideal of a minimalist state that protects individuals in the pursuit of

their interests and imposes no further restrictions on them. The legislature of this state is

omnipotent in theory, but in practice, the threat of revolt against excessive restraint marks

the limits of power, however vague those might be.

4 Lind on Free Government

42 Ibid., 23, 40, 52.


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Unlike Hey, Lind was a ruthless pamphleteer with no philosophical pretensions,

but he understood that the key to Price’s argument in favor of the Americans lies in his

theory of liberty: “this is the corner-stone of the whole building,” he writes, “if this be

removed all is destroyed.” 43 Consequently, he begins, like Hey, by analyzing liberty in

general, and moves on to discuss civil liberty and the principles of government. 44

In his discussion of liberty in general, Lind observes that Price understands the

concept of liberty as both positive and negative: it is both the possession of the power of

self-government, and the absence of any foreign cause operating to restrain it. 45 In Lind’s

view, however, Price is wrong to think that self-government should be understood as a

positive idea:

With respect to any particular act, when you say a man is free , that he enjoys

the power of Self-direction or Self-government , what is it you mean? Clearly no

more than this; that no other agent whatever has, or means to exercise the

power of constraining him to do, or to forbear that act. What then is Liberty?

Clearly nothing more nor less than the ABSENCE OF COERCION .”46

43 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil

Liberty, the Principles of Government, and the Justice and Policy of the War with America," 5. From hereon, the paper refers to the pamphlet, which is more easily accessible.44 The pamphlet is divided into three parts, roughly corresponding to the structure of Price’s Observations :“Letter I: “Of the Nature of Liberty in general,” “Letter II: of Civil Liberty, and the Principles ofGovernment,” and “Letter III: Of the Claims made by Great Britain on her Colonies, and the Measures usedto enforce them.” I discuss only the first two parts.45 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 14-6.46 Ibid., 16.


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Having borrowed Bentham’s definition of negative liberty, Lind utilizes it for his

main line of attack, which is directed against Price’s claim that every member of society

has “a natural and inalienable right” to liberty. 47 First, Lind argues that there can be no

natural right to liberty, because there is no such thing as natural rights. To ground his

claim, he relies on Bentham’s definition of right, which he paraphrases as follows:

“where no law is, there is no right .”48 Right is a legal term, explains Lind, and a right can

only be acquired by “the declaration of the legislator.” Antecedently to law, a person may

be free, but “he cannot have the right to freedom.” 49

Secondly, Lind argues that even if there is a natural right to liberty, it cannot be

unalienable: “It must, to a degree at least, be alienated in a State of Society, if by Society

you mean, as it appears that you do mean, a state of government. Such a state implies

Laws. All laws are coercive.” 50 Lind’s argument turns out to be similar in form to the

standard argument against Price’s general idea of liberty, the argument that it is

incompatible with government, which requires the sacrifice of natural liberty. In Lind’s

words, “To be free from coercion is a privilege which belongs not more to man, than to

47 Price, "Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice andPolicy of the War with America to Which Is Added an Appendix, Containing the State of the NationalDebt, an Estimate of the Money Drawn from the Public by Taxes, and an Account of the National Incomeand Expenditure since the Last War," 1.48 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 21. In the

pamphlet, Lind attributes this quote to Bentham’s Fragment on Government (1776), but the Fragment does

not contain such a phrase. Lind’s Remarks , however, to which Bentham contributed, contains an argumentagainst Locke’s natural right to property, which says, in Bentham’s characteristic style: “Whence arises thisright? From the command of the law. It is the law which says to you, the proprietor, take this thing, use it,enjoy it. It is the law, which says to every other man, do not take it, do not use it, do not enjoy it.” Lind,"Remarks on the Principal Acts of the Thirteenth Parliament of Great Britain. By the Author of LettersConcerning the Present State of Poland. Vol. I. Containing Remarks on the Acts Relating to the Colonies.With a Plan of Reconciliation," 55-6.49 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 21-2.50 Ibid., 24.


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the lion that ranges in the wilds of Africa, or the monkey that skips about in the forests of

India.” 51

In moving on to discuss civil liberty, Lind raises several objections against Price’s

democratic conception of free government, 52 before coming to present his own

conception. A free government, according to Lind, offers to its subjects both civil or

political liberty and civil or political security. Both are, in fact, forms of security against

the violation of individual rights, but they are derived from different sources and directed

against different types of threat.

Civil liberty, according to Lind, means “a partial absence of coercion” enjoyed by

subjects against other subjects. It is “created by law, and is bestowed on one subject, or

number of subjects, upon whom the law does not operate, against all other subjects upon

whom the law does operate.” 53

Lind is aware that civil liberty is usually thought to include an absence of

coercion by the government, as well as by other subjects. He refuses, however, to include

protection from the government in his definition of civil liberty, for two reasons. First,

since law establishes civil liberty, and law, according to Lind, is “the expression of will,”

he thinks that the governors, whose will is expressed by the law, cannot give liberty

against themselves. Second, from the history of ancient Rome, and his own experience

while living in Poland, 54 Linds infers that checking the power of government weakens it

and leads to anarchy, leaving the subjects with political security against their government,

51 Ibid., 27.52 Ibid., 35-67.53 Ibid., 67, 87.54 See John Lind, "Letters Concerning the Present State of Poland Together with the Manifesto of theCourts of Vienna, Petersburgh, and Berlin. And the Letters Patent of the King of Prussia," (London:

printed for T. Payne, 1773).


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but depriving them of their civil liberty. 55 For these reasons, Lind endorses the doctrine

that “the legislature of a free country is omnipotent.” 56

In his Additional Observations , Price criticized Lind for circumscribing the

bounds of civil liberty, and limiting it only to liberty against other subjects:

Civil Liberty, he insists, is nothing positive. It is, an Absence . The absence of

coercion[…] – Not from civil governors, (they are OMNIPOTENT , and there

can be no liberty against them.) – But from such little despots and plunderers

as common pick-pockets, thieves, house-breakers, &c.57

Indeed, Lind circumscribed the bounds of civil liberty to include only the absence

of coercion by other subjects, in order to contradict the argument that the government

was violating the civil liberty of the American colonists. We would be wrong to infer,

however, that Lind’s sovereign is similar to the Hobbesian sovereign, offering no security

against its own power. What distinguishes a free state from a despotic one, and a free

government from an unfree one, according to Lind, is the political security enjoyed by the

subject. The security, however, does not consist in freedom from interference. It lies in an

institutional structure guaranteeing that government interference should track the interests

of the subject:

55 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 69-71, 96.56 Ibid., 71-2.57 Richard Price, "Additional Observations on the Nature and Value of Civil Liberty and the War withAmerica: Also Observations on Schemes for Raising Money by Public Loans; an Historical Deduction andAnalysis of the National Debt; and a Brief Account of the Debts and Resources of France," (London:

printed for T. Cadell, 1777), xv.


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This security arises not from any limitation of the supreme power, but from

such a distribution of the several parts of it, as shall best insure the greatest

happiness of the greatest number. If this distinction could be so made, as to

render the interests of the governors and governed perfectly

undistinguishable; this end would be completely obtained, and the subject

would enjoy perfect political security.”58

The distribution of power in the state provides the subjects with security in two

ways. First, while the legislature as a whole may be omnipotent and unlimited in its

power, each one of its constituent parts – King, Lords, and Commons – “may have

certain limits” and “may be restrained by Law.” The law affords the subject means of

“legal resistance” to the crown by appealing to the judiciary. 59

Second, and most importantly, governors share their interests with the governed.

To be more precise, interests are shared between the governed and “one class of

governors,” the members of the House of Commons, who are elected for a limited time,

and then “re-incorporated into the common mass of the people.” The institution of

election and re-corporation guarantees that members of this “elected class of governors”

enact laws that would, sooner or later, apply to themselves as well. In addition, while the

people have no direct means of controlling their elected representatives, those are

dependent on the affections of the people and disposed not to abuse their power.60

58 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 72-3.59 Ibid., 72-4, 95.60 Ibid., 89-93. See also Lind, "Remarks on the Principal Acts of the Thirteenth Parliament of Great Britain.By the Author of Letters Concerning the Present State of Poland. Vol. I. Containing Remarks on the ActsRelating to the Colonies. With a Plan of Reconciliation," 71-5. Lind is well aware of the argument that the


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In the pamphlet, Lind refers liberally to Bentham’s Fragment on Government

(1776), but his footnotes also mention Montesquieu’s De l’Esprit des loix (1748), and

Jean-Louis de Lolme’s Constitution de l'Angleterre (1771). 61 The latter’s account of free

government, and its distinction from republican government, 62 seem to have influenced

Lind in particular, leading him to characterize it as “the best defence perhaps that was

ever written of a limited monarchy against the madness of republican principles.” 63

Lind and Hey pursue a similar goal – Lind more explicitly, and Hey more

implicitly: enforcing the authority of the British Parliament to legislate for all of its

subjects, and undermining the American justification for resistance. They both start by

defining liberty in largely similar terms. Their theories of liberty under government,

however, differ from each other considerably. Hey attempts to neutralize the cry against

the violation of civil liberty by following in Hobbes’s footsteps: he defines civil liberty as

the absence of restraint imposed by the law, and argues that some restriction of civil

liberty is always necessary and beneficial. Unlike Hobbes, however, he wants to preserve

the ideas of tyranny and political slavery when the restraints imposed by the law become

excessive. His idea of civil liberty in perfection consists in finding the best constitutional

Americans have separate interests than the British members of the House of Commons. He replies thatAmericans, merchants trading with the colonies, and many more indirectly connected to the trade withAmerica, sit in the House of Commons, and have sufficient knowledge of the condition of the colonists.Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of Civil Liberty,the Principles of Government, and the Justice and Policy of the War with America," 121-5. Lind, "Remarks

on the Principal Acts of the Thirteenth Parliament of Great Britain. By the Author of Letters Concerningthe Present State of Poland. Vol. I. Containing Remarks on the Acts Relating to the Colonies. With a Planof Reconciliation," 75-8.61 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 67, 72-5, 77,84, 92, 95.62 See, in particular, Book II in Jean Louis De Lolme, The Constitution of England; or, an Ancient Accountof the English Government , ed. David Lieberman (Indianapolis, IN: Liberty Fund, 2007).63 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 84.


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means for maximizing the general freedom of the subject and minimizing interference by

the state.

Lind’s idea of liberty under government corresponds more closely to the

conventional wisdom of British jurisprudence and political thought at the time of the

American Revolution: pre-political liberty, understood as independence or absence of

restraint, is traded for civil liberty. However, in order to neutralize the claim that

Parliament is trampling on the rights of the American colonists, he limits the definition of

civil liberty to include only the absence of interference by other subjects. The subject’s

security against the government is derived from another source: the distribution of

powers, and the sharing of interests between the governed and their representatives in

government.

5 Bentham on the Liberty of Robinson Crusoe

In one of his numerous manuscripts, probably written in the 1790’s, Bentham

wrote a short critique of the ideas of self-government and equal representation. This was

before his final conversion to political radicalism and embracement of democracy. 64 Next

to his comments, he added an intriguing note, which he subsequently crossed out: “Dr

Price with his self-government made me an anti-American.” 65

The statement is no doubt hyperbolic and imprecise. Bentham’s sentiments were

pro-British and anti-American well before Price published his Observations in February

64 See J. R. Dinwiddy, "Bentham's Transition to Political Radicalism, 1809-10," The Journal of the Historyof Ideas 35 (1975). Philip Schofield, Utility & Democracy: The Political Thought of Jeremy Bentham (Oxford Oxford University Press, 2006), 78-83.65 UCL CLXX, 175.


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1776. Early in 1775, Bentham was already working with Lind on his pro-government

pamphlet Remarks on the Principal Acts of the 13th Parliament of Great Britain . In an

autobiographical letter to his literary executor, John Bowring, Bentham makes clear that

he sided with the British government: “by the badness of the arguments used on behalf of

the Americans on that side of the water as well as on this, my judgment […] was ranked

on the government-side.” 66 Price, then, did not make Bentham into an anti-American, but

the note on Price and self-government attests to the fact that in Bentham’s mind, Price

represented everything that he found objectionable in the American case.

Bentham’s recurring complaint against the Americans and their supporters is

summed up in his letter to Bowring: “The whole of the case was founded on the

assumption of natural rights – claimed without the slightest evidence for their existence,

and supported by vague and declamatory generalities.” 67 To be more precise, the

Americans have built a case for resistance on the basis of natural and inalienable rights,

which seemed to Bentham to be subversive of all government. In his Fragment on

Government (1776), Bentham expresses his hope that the decision to resist a disputed law

or to submit to it would be taken on the rational basis of utility, and not on the basis of an

“ambiguous and sophistical discourse” of rights, which “stimulates and inflames the

passions.” 68

66 Fuller, ed., The Correspondence of Jeremy Bentham, Volume 12: July 1824 to June 1828 , 293.67 Ibid.

68 Jeremy Bentham, The Comment on the Commentaties and a Fragment on Government , ed. J. H. Burnsand H. L. A. Hart (Oxford: Clarendon Press, 1977), 482-4, 91-2. See also the preface to the second edition,

pp. 521-2, where Bentham says of the American controversy: “With me it was a matter of calculation: pains and pleasures, the elements of it. No party had argued the question, or taken it up, on that ground […]The battle was fought by assertion. Right was the weapon employed on both sides.” As Paula Rudan has

persuasively argued, Bentham’s Fragment on Government , published on 18 April, 1776, can be read asBentham’s contribution to the American controversy – a comment on the constitutional nature of thecolonial relationship, and on the theory of sovereignty and political obligation. See Paula Rudan,


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When the American Declaration of Independence was adopted in July 1776, its

language incensed Bentham. In his “Short Review of the Declaration,” incorporated into

Lind’s Answer to the Declaration of the American Congress (1776), Bentham accuses the

Americans of attempting to establish a theory of government “absurd and visionary,“

based on maxims “subversive of every actual or imaginable kind of Government.” 69 He

complains that by adding liberty and happiness to the list of inalienable rights, the

Americans “have out done the utmost extravagance of all former fanatics.” 70

Clearly, Bentham sees Price’s Observations in this context, as a fanatical and

inflammatory assertion of a right to liberty defined and defended in a manner subversive

of all civil government. In the letter to Lind he drafted in response to Hey’s pamphlet,

Bentham says:

‘Tis from a particular construction put upon the word liberty and a few

others that the popular divine whom you combat with so much force has

inferred the impropriety of waging the war against America: with a degree of

justice equal to that with which as it seems to you he might have inferred the

propriety of a war of the governed of every other country that is or has been

“Appropriating the Future: Jeremy Bentham on the American Revolution” (unpublished). Paula Rudan, Dalla Constituzione Al Governo. Jeremy Bentham e le Americhe (PhD dissertation, University of Bologna,2007).69 See “Short Review of the Declaration,” in Lind, "An Answer to the Declaration of the AmericanCongress," 119. Bentham’s letter to Lind containing his contribution to the pamphlet has survived, but it ismissing the first sheet, in which these phrases presumably appeared. Thus, I am quoting them from theedited version of the text published by Lind.70 Sprigge, ed., The Correspondence of Jeremy Bentham, Volume 1: 1752-76 .


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upon their governors. It is from /by/ a different construction that you

support the propriety of the war in question. 71

A sober and accurate apprehension of the import of these fundamental

words is a true key to Jurisprudence /the recesses of legal and moral

science/, and the only effectual antidote against the fascinations of political

enthusiasm.72

Bentham believes it to be of the utmost importance to provide a conceptual

analysis that would serve as an antidote to political enthusiasm. But how can the negative

definition of liberty serve as an antidote? We have seen that Lind effectively utilizes the

definition to argue against the natural and inalienable right to liberty. Bentham was, no

doubt, sympathetic to this argument. But he seems to have emphasized another

implication of the definition: it serves as an antidote to what we might call the problem of

the reification of liberty, the making of it into something concrete, which subsequently

becomes the object of desire. The problem of reification is alluded to in the draft of the

letter on Hey, where Bentham notes that the word “liberty” may be a substantive, but it is

not the name of a substance. It is merely a metaphor or a fiction:

We speak of it as being abridged, that is made shorter; of it’s being invaded,

broken in upon, as if it had a piece cut out of it: of it’s being violated, as if

violence had been done it by a bruise. It is manifest that it is only by means

71 UCL LXIX, 60.72 UCL LXIX, 62.


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of a fiction that Liberty is any thing that can be the subject of these or any

other operations. 73

The reification problem is most clearly presented in Bentham’s only published

defense of his definition, which can be found in two letters he sent to the newspaper

under the pseudonym “Hermes.” 74 The letters were written in reply to a commentator

calling himself “Ignoramus,” who, despite a professed aversion to Price’s “utopian”

theory and “detestable” principles, expressed dissatisfaction with Lind’s definition of

liberty. Ignoramus argued that the idea of liberty is antecedent to the idea of coercion,

and consists in the positive power to act or forbear. 75

In his reply, Bentham first pours his wrath on Price, 76 and then proceeds to argue

for the negative definition. To support his case, he asks Ignoramus to imagine himself as

Robinson Crusoe, alone on his island. “You are now with reference to all mankind,” he

says, “at perfect liberty […] Why? Because there is nobody to coerce you.” Bentham

next proceeds to describe how “the creative power assumed by language, especially

where the imagination which sets it to work is prompted and enlivened by the affections,”

leads us to reify the idea of liberty:

73 Ibid.74 The existence of the letters has been mentioned by the editors of Bentham’s correspondence and by Paula

Rudan, but I am unfamiliar with any previous discussion of them.75 Letter from “Ignoramus” to the Gazetteer and New Daily Advertiser , July 13, 1776.76 Bentham expresses his opinion that “a performance so worthless” as Price’s Observations deserves a lessequivocal note of censure than “utopian.” His own assessment of Price’s work is as follows: “Of the whole

book, theory, principles, and all of it taken together, laid open and exposed as I have seen it, by themasterly writer we are speaking of, I should say, that it was every where either, inconsistent orunintelligible; not written to be understood; not worthy to be detested; a hash of nonsense andcontradictions, seasoned by spleen, tossed up for quick consumption, doomed to precipitate decay, andsuited only to the vitiated palate of a party.” Letter from “Hermes” to the Gazetteer and New Daily

Advertiser , July 26, 1776.


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particular, it is not a species of power .” The “confusion and impropriety” of speaking of

liberty as power, according to Bentham, has been “ably exposed” by Richard Hey in his

“ingenious performance.” 78

Bentham’s critique of liberty as power helps to solve a puzzle pointed out by

Skinner: 79 how could Bentham claim to have discovered the negative definition of

liberty, given that his great nemesis, William Blackstone, defined liberty in seemingly

negative terms? According to Blackstone, “natural liberty consists properly in a power of

acting as one thinks fit, without any restraint or control, unless by the law of nature.” 80

But Bentham’s letter to Ignoramus makes clear that he objects to defining liberty as “a

power of acting.” 81 His “discovery” consists in realizing that liberty is not a power, as

Blackstone claimed, but only the empty space created by the absence of coercion.

In his definition of liberty, Bentham is much closer to Hobbes than to Blackstone,

and the real challenge for anyone wishing to vindicate Bentham’s originality, would be to

explain how his definition is different than the Hobbesian “absence of external

impediments.” 82 The letter to Ignoramus offers one possible solution: Hobbes saw liberty

as the property of any moving body free from impediments, like “the water, whilst it is

kept in by banks or vessels;” 83 Bentham defines liberty as the absence of coercion, and

coercion can only exist between persons. “The first man that ever was,” he says in the

letter, “could not, with respect to other men, have been otherwise than free ; since for a

78 Ibid.79 Quentin Skinner, “Political Liberty: The Enlightenment Debate,” The Roy Porter Lecture, given atUniversity College London on May 26, 2010.80 William Blackstone, Commentaries on the Laws of England , 4 vols. (Chicago: University of ChicagoPress, 1979), Vol. 1, 12181 Setting aside, of course, the fact that Bentham thought the law of nature to be illusory.82 Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668 , 79.83 Ibid., 136.


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time there was no man to coerce him.” 84 Bentham’s liberty always refers to the personal

or legal relations between people; it is an interpersonal relation.

6 Bentham on Liberty, Law, and Free Government

On a manuscript sheet probably written in 1776, Bentham made a short list of

points he wanted to make in reply to different authors. Next to Locke, for instance, he

wrote: “Every corporal injury not an invasion of property.” Next to Price he wrote:

“Liberty not the Child of Law. Security not destroy’d by unlimited Supremacy.” 85 In this

section, I would like to examine Bentham’s idea of the relation between liberty and law

in the early manuscripts, around the time of the American Revolution.

Bentham’s early manuscripts both elaborate and qualify his statement that liberty

is “not the Child of Law.” For example, under the heading “ Liberty defined,” Bentham

writes:

Liberty then is neither more nor less than the absence of coercion. This is the

genuine, original and proper sense of the word liberty. The idea of it is an

idea purely negative. It is not anything that is produced by positive Law. It

exists without Law, and not by means of Law. It is not producible at all by

Law, but in the case where it’s opposite coercion has been produced [by Law]

before.86

84 Letter from “Hermes” to the Gazetteer and New Daily Advertiser , August 1, 1776.85 UCL LXIX, 43. This manuscript is entitled “Key. Parerga Critica.”86 Ibid., 44.


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Liberty in the “genuine, original, and proper sense of the word,” is not produced

by positive law. It is the empty space existing where the law does not operate. As Hobbes

says, it is “the silence of the law.” 87 It is the “natural […] pristine liberty,” 88 As Bentham

calls it elsewhere, that Robinson Crusoe enjoys.

Bentham thinks it imperative not to confuse this original sense of liberty with

security. The next paragraph, which carries the heading “Liberty used improperly for

Security,” states: “That which under the name of Liberty is so much magnified, as the

invaluable the unrivalled work of Law, is not Liberty but Security .” According to

Bentham, the confusion between liberty and security is of “most exemplarily pernicious

consequence.” 89 The difference between the two concepts is explained in the following

terms: “Liberty subsists by the restraints not being imposed upon ourselves: Security is

produced by restraints being imposed on others.” 90 If security is produced by the

restraints imposed on others, liberty can exist without security: Robinson Crusoe may be

free without the security of restraints being imposed on anyone else, simply because there

is no one else on his island that could coerce him.

But despite Bentham’s insistence on the original sense of liberty, it seems that

most of us are not Robinson Crusoes, and we often owe our liberty to the restraint

imposed on others. Bentham recognizes that if I am restrained in order to secure your

liberty, then “it is true that the liberty which you possess you are indebted for to the Law,

that, in other words, this Liberty of yours is the work of Law.” Here, then, is another

87 Hobbes, Leviathan: With Selected Variants from the Latin Edition of 1668 , 143.88 Ibid., 107, §249.89 UCL LXIX, 44.90 Ibid., 46.


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sense of freedom: “Liberty that is produced by Law,” or put differently, “Liberty by

Security.” 91 According to Bentham,

Liberty without security is that which is possessed in perfection by Hottentots

and Patagonians. Liberty by security is that, the perfection of which is the

pride of Englishmen. 92

The contrast made here between the wild, insecure liberty of savages and

barbarians, and the civil, secure liberty of Europeans, was a popular one in early modern

political thought. We can find it, for example, in Locke or in Montesquieu. It

demonstrates Bentham’s idea of liberty to be less innovative than he made it out to be,

and not because he was following in Hobbes’s footsteps, but rather because he was

reproducing the familiar contrast between natural or uncivilized freedom and freedom

under law and government. Where Bentham’s theory of liberty diverged from most

others is in his insistence that the idea of natural or original liberty is purely negative, and

contains no constitutive or enabling conditions. He insisted that even liberty under the

law is purely negative, though caused by positive law, because the law operates on the

free person only indirectly, through its coercion of others. 93

Eventually, Bentham incorporates liberty under the law, which he occasionally

refers to as “political liberty,” into the concept of security, which Bentham understands to

be a broader concept, comprising not only a security from coercion, but also a security

91 Ibid., 55-6.92 Ibid., 55.93 Ibid., 55-6.


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any society whatever.” 97 Clearly, Bentham believes this to be an undesirable state of

anarchy.

Bentham’s preparatory note for an argument against Price, quoted in the

beginning of this section, “Security not destroy’d by unlimited Supremacy,” 98 refers to

his belief that political security consists not in the sovereignty of the people and the

limitation of the power of government to make laws, but rather in a system of checks on

the powers of government. Political security is derived from constitutional laws that

provide for the security of the governed. 99 In A Fragment on Government , Bentham, like

Lind, says that the difference between free and despotic government turns on the

distribution of power, and on the sharing of interests between the governed and their

elected governors, but he adds to that the duty of government to publicize the reasons for

its actions, the liberty of the press, and on the liberty of association for the purpose of

opposing the government. 100

Bentham is ambivalent about the term “free government,” for two reasons. First,

because it is a metonymy: When “the condition of the people is free, or rather secure […]

improperly by a Metonymy the Government is said to be free.” Second, and more

importantly, he thinks that “free government” is being widely and improperly used to

refer to popular government. Like de Lolme, Bentham tries to establish the distinction

97 Ibid. On political liberty in perfection and political liberty entire see Long, Bentham on Liberty: Jeremy Bentham's Idea of Liberty in Relation to His Utilitarianism , 76-7.98 UCL LXIX, 43. This manuscript is entitled “Key. Parerga Critica.”99 Ibid., 148, §574.100 Bentham, The Comment on the Commentaties and a Fragment on Government , 484-5.


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between free government, whose constitution provides security to the government, and

republican government. 101

Bentham’s recurring worry that the language of liberty would be used for

republican ends applies not only to the term “free government,” but also to the term

“political liberty,” and particularly to the term “constitutional liberty.” In the manuscripts

on the Civil Code, Bentham defines political liberty in a way surprisingly reminiscent of

Price’s definition of civil liberty:

Liberty in a political sense is sometimes used / employed / with a view to

constitutional law, and sometimes with a view to international law. In the

first case it is the absence of all government other than democratical […] In

the other case it is the absence of dependence on the government of a

foreign nation.

I am deprived of constitutional liberty in as far as the government of the

state /under which I live/ deviates from one in which every act of

government is exercised by an assembly into which every member of the

community / individual in the country / without exception, male and female,

adult, and minor, sane and insane, convicts and unconvicted, has a vote. 102

Bentham’s definition of political liberty in the international sense as “the absence

of dependence on the government of a foreign nation” is sufficiently close to Price’s

definition of it as “the power of a Civil Society or State to govern itself by its own

101 UCL LXIX, 158, §668.102 UCL C, 168.


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discretion […] without being subject to any foreign discretion.” 103 His definition of

political liberty in the constitutional sense as “the absence of all government other than

democratical” is Price’s claim that “In every state every man is his own Legislator,” 104

though Price did not take it as far as including women, minors, the insane and convicts.

The latter is reminiscent of the attempt made by many critics of Price to caricature his

position by suggesting that women and children would be included amongst the voters, or

as Lind quipped: “Every woman too is her own legislatrix.” 105

In the manuscripts on the Civil Code, Bentham wonders whether personal liberty

is necessarily connected to political liberty, and decides that experience proves otherwise.

He concludes that the disturbing uses of the term “liberty” should lead us to use it as little

as possible:

Liberty therefore not being more fit than other words in some of the

instances in which it has been used, and not so fit in others, the less the use

that is made of it the better. I would not use the word liberty in my

conversation when I could get another that would answer the purpose, than I

would brandy in my diet, if my physician did not order me: both cloud the

understanding and inflame the passions. 106

103 Price, "Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice andPolicy of the War with America to Which Is Added an Appendix, Containing the State of the NationalDebt, an Estimate of the Money Drawn from the Public by Taxes, and an Account of the National Incomeand Expenditure since the Last War," 3. Bentham would not accept Price’s use of the term “power.”104 Ibid., 6.105 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 40.106 UCL C, 170.


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By 1789, however, when he comments on the French Revolution, Bentham

recognizes constitutional liberty with the dependence of the governors upon “the will of

the body of the people.” He writes that “the efficient cause of constitutional liberty or of

good government, which is but another name for the same thing, is not the division of

power among the different classes of men intrusted with it, but the dependence,

immediate or mediate, of all of them on the body of the people.” At the same time, he

still sees the British Constitution as “the most perfect Constitution that ever was or can

be,” a view which in later years he would come to radically revise. 107

7 Conclusion

During the years of the American controversy, we see Bentham struggling with

the terms “liberty,” “political liberty,” and “free government,” because he is haunted by

their misuse by radicals like Price, who, in Bentham’s view, were out to destroy the

British constitution. His negative definition of liberty was meant to deflate the republican

ideal of political liberty as the power of the people, while his ideal of security

incorporated into it the Whig concern with securing the rights of individuals under the

penal, civil, and constitutional law. Despite the differences between them, the theories of

liberty proposed by Lind and Hey generally share similar goals and concerns.

In his attack on Price, John Lind says: “Oft have I wished that the rage of the

Goths and Vandals had spared all the buildings and vases of the ancients: most freely in

107 Jeremy Bentham, Rights, Representation, and Reform: Nonsense Upon Stilts and Other Writings on the French Revolution , ed. Catherine Pease-Watkin Philip Schofield, and Cyprian Blamires, The CollectedWork of Jeremy Bentham (Oxford: Clarendon Press, 2002), 405-18.


38/38


return would I have pardoned the destruction of all their books of philosophy and

politics.” What bothers Lind in the ancient books of philosophy and politics is the

portrayal of democracy as a practicable form of government. 108 Neither Lind nor

Bentham nor Hey truly questioned the neo-roman ideas of liberty under the law and of

free government. While recognizing the power of these ideas, they tried to incorporate

them into a new framework of thought about law and government, which could serve to

defend the British constitution.

108 Lind, "Three Letters to Dr. Price, Containing Remarks on His Observations on the Nature of CivilLiberty, the Principles of Government, and the Justice and Policy of the War with America," 48-9. Lindcorrectly observes that the equal freedom of citizens in Athens and Sparta was made possible by the

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Art. Y. Elazar - Negative Liberty