In a democratic society, laws are more like promises between equal partners than like commands from superiors to subordinates. Laws contain an element of reciprocity, in which the citizen and the state in some sense agree to act in certain ways.46 But the Permission Society, in which rights are only privileges conferred by the government, regards people as subjects to be alternately commanded and rewarded. The citizens of the Permission Society must treat their superiors with subservient meekness, begging and praising their rulers in hopes of being given favors. A free society, by contrast, encourages and depends upon a proud sense of self-reliance in the people. Thomas Jefferson emphasized this in his 1774 pamphlet, A Summary View of the Rights of British America, when he refused to apologize for the candid words he used when addressing King George III. The “freedom of language and sentiment” in which he expressed himself, said Jefferson, “becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate.” To “flatter” the king would “ill beseem those who are asserting the rights of human nature.... [K]ings are the servants, not the proprietors of the people.”47
Is There a Right to Liberty?
Bentham claimed, and his positivist admirers still believe, that the rejection of natural rights represents a modern, scientific attitude. Those who believe in the theory of natural law, said Oliver Wendell Holmes, “seem to me to be in [a] naïve state of mind,”48 and his contemporary, law professor John Chipman Gray, called the idea of natural law an “exploded superstition.”49 But in fact, it was they who represented a regression to the ancient idea of the divine right of kings.50 By embracing the fallacy of the Devil’s proof – assuming that people are not free unless the all-powerful government says they are – they and their modern followers actually embraced a form of ultraconservatism, harkening back to the ancient mystique of royal absolutism. To them, laws are arbitrary pronouncements by the powerful – essentially a form of magic that citizens must believe in, on pain of punishment – instead of rational principles based on human nature. They were saboteurs, not iconoclasts.
A more curious example of contemporary rejection of the presumption of liberty is the influential philosopher Ronald Dworkin. Although he was no admirer of Bentham, Dworkin advanced a more sophisticated argument against the proposition that people are naturally entitled to liberty, and the problems with that argument reveals some of the essential flaws in the Permission Society generally.
Dworkin set out in his 1977 book, Taking Rights Seriously, to defend the idea of individual rights against positivist criticisms. But although he believed that people have rights the government must respect, he nevertheless argued that there is no right to liberty – there are only specific rights to particular liberties that are parceled out by the government. People have a right to try to persuade the government to give them these freedoms but no general right to lead their own lives as they choose. Later, apparently recognizing that this was not much improvement over positivism’s scorn for rights, Dworkin bizarrely reversed course and embraced the proposition that people do have a basic right to freedom.
Dworkin began by arguing that the crucial political question is not how to protect individual autonomy but “what inequalities in goods, opportunities and liberties are to be permitted” in society.51 This starting point immediately biased his argument, because it implicitly assumes that inequality is something that is or is not “permitted” – that is, that inequality only exists because the government allows it and that government should instead find ways to eliminate inequality by redistributing “goods, opportunities, and liberties.”
But inequality is not unjust if it is not the consequence of any wrongful act. To borrow an old example, imagine a world in which everyone has equal wealth. If some people freely choose to pay for tickets to see a famous basketball player demonstrate his superior skills, the ball player will amass millions of dollars, and the fans who paid for tickets will each have less money than they had before. But the resulting inequality is not unjust, because nobody has been injured.52 For the government to seize the basketball player’s earnings and redistribute them because inequality is not “permitted” really would be unjust. It would mean confiscating his fairly acquired wealth – essentially taking away his unique basketball skills without payment. As James Madison put it, people have “different and unequal faculties,” which enable them to earn “different degrees and kinds of property,” but although this will result in inequalities, “[t]he protection of these faculties” is the “first object of government.”53
Dworkin rejected this. He believed that “differences in talent” are “morally irrelevant.”54 In his view, justice did not consist of protecting people’s rights to the things they earn by employing their different talents and skills, or the things they inherit, such as their bodies. Instead, it consists of finding a proper “distribution” of the “goods, opportunities, and liberties” that are found in society. Where did these goods, opportunities, and liberties come from? Dworkin ignored this question and focused solely on questions of distribution – on slicing up the cake equally, so to speak, while disregarding the rights of the baker.55
Dworkin was wrong to equate justice with distribution.56 Actual justice occurs when people are allowed to keep what belongs to them or are compensated for having their things wrongfully taken away. Courts do justice by “making people whole” – by remedying injuries people have suffered – not by shaping society through the redistribution of goods, opportunities, or liberties. That is why judges normally do not ask how things should be divided up but instead look for evidence about who stole what, or who broke what, or whether the accused had some excuse for doing what he did. Society is not distributing goods or liberties to the victim of a robbery when she has her stolen property returned, or to an injured worker who receives compensation for a job-related injury, or to a slave who is liberated. Rather, justice has been done in these cases because the people whose property or rights were wrongly taken away are now having them restored.
Of course, what Dworkin had in mind was not that sort of justice but a different kind of justice – “social justice” – by which the government allocates property and freedom according to some preconceived formula. Yet calling this “justice” perverts the concept and corrupts the idea of rights. Because it holds that people’s talents and inheritances are “morally irrelevant,” the only way this theory can justify the ownership of “goods, opportunities, and liberties” is to hold that society has distributed these things in accordance with some recipe. But this takes an enormous stride toward authoritarian government. As philosopher Wallace Matson observed, the essential difference between free and unfree societies “is that in the latter, a person’s rank, etc., are assigned by bureaucrats, whereas in the former nobody makes such assignments – the individual decides what sort of life he wants to lead, and then pursues it.” Instead of “showing that it is a good idea to have a system of assignments at all,” writes Matson, Dworkin simply assumed this and devoted his energy to figuring out the formula bureaucrats should use when making distributions. But the real question is not between this or that method of distributing things, but between a controlled society, in which people have privileges distributed to them, and a free society, in which people’s inherent freedom is respected – or, in Matson’s words, “between that condition in which the economic decisions of individuals have their natural effect, on the one hand, and an artificially structured economy on the other.”57 The assumption that society must be artificially structured quietly transforms the free society into the Permission Society.
Dworkin seemed not to have recognized this. He wrote in Taking Rights Seriously that the principle of equality in a democracy lets government “constrain liberty only on certain very limited types of justification.”58 But if rights are