Liberty, Constitutionalism and the Rule of Law

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1 Liberty, Constitutionalism and the Rule of Law Presented at the Friedrich Naumann Foundation forum, 15 July 2010, 7pm, Manila, Philippines Tom G. Palmer Senior Fellow, Cato Institute VP for International Programs, Atlas Economic Research Foundation

This I regard as history ユs highest function, to let no worthy action be uncommemo-

2 History s s Highest Function My purpose is not to relate at length every motion, but only such as were conspicuous for excellence or notorious for infamy. This I regard as history ユs highest function, to let no worthy action be uncommemo- rated, and to hold out the reprobation of posterity as a terror to evil words and deeds. Tacitus, The Annals (3.65)

3 Propitious Conditions for the Emergence of Liberty A. A Theory of Higher Law, viz. that law is not merely an expression of human will: Jerusalem Athens B. An Appreciation that Law Can Be Discovered, Discovered, as well as Made

4 Law and Freedom [T]he end of law is not to abolish or restrain, but to preserve and enlarge Freedom: where there is no Law, there is no Freedom. For Liberty is to be free from restraint and violence from others which cannot be, where there is no Law: But Freedom is not, as we are told, A Liberty for every Man to do what he lists: (For who could be free, when every other Man s Humour might domineer over him?) But a Liberty to dispose, and order, as he lists, his Persons, Actions, Possessions, and his whole Property, within the Allowance of those Laws under which he is; and therein not to be subject to the arbitrary Will of another, but freely follow his own. John Locke, Second Treatise of Government, Chap. VI, 57

5 The Problem of Attaining Liberty is Finding How to Limit Power Offsetting Powers Must Be Sought and Organized We Start the Story in Ancient Sumeria,, Proceed to Judea, and then to Europe and Beyond

6 Epic of Gilgamesh 2,800 2,500 B.C.E. Powerful, superb, knowledgeable and expert, Gilgamesh would not leave the young girls alone, the daughters of warriors, the brides of young men. The gods often heard their complaints.

7 Enkidu Comes Forth to Challenge Powerful Gilgamesh And for Godlike Gilgamesh an equal match was found. Enkidu blocked his access at the door of the father-in in-law s house, He would not allow Gilgamesh to enter.

Reforms of Urukagina of Lagash ca. 2378-2371 2371 B.C.E.

8 Reforms of Urukagina of Lagash ca B.C.E. Urukagina established the freedom of the citizens of Lagash; ; he freed the markets, eliminated the taxes, and respected the property of all, rich and poor alike.

9 The People of Israel Demand a King...and Are Warned... This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots. --I I Samuel 8

10 Rise of Greek Civilization Ca. 500 B.C.E. Athens reaches a high level of wealth and personal freedom through trade...

11 Persian Invasions of Greece First Invasion under Darius and Battle of Marathon, 490 B.C.E. Second Invasion under Xerxes and Battle of Thermopylae, 480 B.C.E.

to show himself the rightful lord and owner of his own

12 War Between Sparta and Athens Each one of our citizens, in all the manifold aspects of life, is able to show himself the rightful lord and owner of his own person B.C.E. Pericles,, Funeral Oration, 430 B.C.E.

13 Rise of the Roman Republic ca B.C.E., Monarchy overthrown and Republic established Ca. 367 B.C.E., reforms instituted to diminish hereditary privilege 326 B.C.E. debt slavery eliminated for plebians

14 The Republic is Destroyed: Suicide of Cato the Younger, Last Free and Independent Man in Rome 46 B.C.E., after his defeat by Julius Caesar at the Battle of Thapsus,, Cato commits suicide and becomes an inspiration to defenders of republicanism

15 Murder of Marcus Tullius Cicero 43 B.C.E., Cicero is murdered, his head and his hands cut off and displayed in the Forum, and a pin pushed through his tongue

16 Cicero s s Legacy to the World We are all constrained by one and the same law of nature; and if that is true, then we are certainly forbidden by the law of nature from acting violently against another person. De Officiis,, III,

17 Gregorian Reformation Freedom of the Church Separates Church 1073 The German monk Hildebrand becomes Pope Gregory VII Gregory Issues Dictates of the Pope 1077 Emperor Henry IV asks forgiveness at Canossa from State

18 Growth of Medieval Communes Independent Cities Stadtluft macht frei, nach Ablaufe von Jahr und Tag. City air makes you free, after the lapse of a year and a day.

19 Growth of Civil Society Latin Civitas gives us civil, civil, as in a mode of behavior German Burg gives us Hamburg, Pittsburgh, Hillsborough, bourgeois (thanks to the French), and the House of Burgesses

20 Written Charters of Privileges and Immunities Magna Carta (1215): No free man shall be taken, imprisoned, or disseized, outlawed, banished, or in any way destroyed, nor will We proceed against him or prosecute him, except by the lawful judgment of his peers or by the law of the land. Golden Bull of Hungary (1222): included the right of resistance (ius( resistendi)

Dominium and the Emergence of the Modern Doctrine of Individual Rights I maintain, therefore, that dominium, possession, and jurisdiction can belong to

21 Dominium and the Emergence of the Modern Doctrine of Individual Rights I maintain, therefore, that dominium, possession, and jurisdiction can belong to infidels licitly and without sin, for these things were made not only for the faithful, but for every rational creature as has been said. Innocent IV, ca. 1250

Rights Are Grounded in Recognition of our Dominium (Latin) or Autonomy (Greek) Ownership [dominium] is used to refer to the human will or freedom in intself.

22 Rights Are Grounded in Recognition of our Dominium (Latin) or Autonomy (Greek) Ownership [dominium] is used to refer to the human will or freedom in intself... For it is through these that we are capable of certain acts and their opposites. It is for this reason too that man alone among the animals is said to have ownership or control of his acts; this control belongs to him by nature, it is not acquired through an act of will or choice. Defensor Pacis, Marsilius of Padua, 1324

23 Respect for Individual Rights is the Foundation of Justice The proper matter of justice consists of those things that belong to our interaction with other men... a man is said to be just because he respects the rights of others. --Thomas Aquinas, Summa Theologica, II a, II ae, Q. 58

24 Rights Recognized as Valid for All "Inasmuch as he is a person, every Indian has free will, and, consequently, is the master of his actions"; "By natural law, every man has the right to his own life and to physical and mental integrity." Francisco de Vitoria, Humans

25 Movement to Abolish Slavery Among our Indians... there are important kingdoms, large numbers of people who live settled lives in a society, great cities, kings, judges and laws, persons who engage in commerce, buying, selling, lending, and the other contracts of the law of nations... Bartolomé de las Casas,,

26 The Dutch Revolt Against the Spanish and Establish a Free Republic, with Toleration, Free Trade, and Low Taxes The maintenance of the right by the little provinces of Holland and Zealand in the sixteenth, by Holland and England united in the seventeenth, and by the United States of America in the eighteenth centuries, forms but a single chapter in the great volume of human fate; for the so-called revolutions of Holland, England, and America, are all links of one chain. John Lathrop Motley, The Rise of the Dutch Republic, 1855

27 The English Put Law Above King If the king were without a bridle, that is, the law, they ought to put a bridle upon him. When an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void. Sir Edward Coke,

28 The Levellers: : the First Consistent The Levellers demanded religious freedom, elimination of arbitrary power, protection of property, free trade, trial by jury, equal rights for all... Libertarians

29 Levellers in the Army refused to Levellers captured and executed in the churchyard of Burford; ; in the church, scratched on the baptismal font, can be read, Anthony Sedley,, Prisoner, 1649 invade Ireland

30 John Locke and the Radical Whigs Carry Out Much of the Leveller Programme Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. John Locke,

The Great Turgot,, 1727-1781 1781 Eliminated or cut many taxes;

enforced monopolies; advised the Americans to reduce to the smallest

31 The Great Turgot,, Eliminated or cut many taxes; abolished forced labor, restrictions on trade, and government enforced monopolies; advised the Americans to reduce to the smallest number the kinds of affairs of which the government of each state should take charge.

32 American Colonists Declare Independence and Articulate a Universal Claim for Liberty We hold these truths to be self- evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.

33 The Successful Libertarian Struggle Against Slavery The contest was now ended; the chain was severed; God and right stood vindicated. I was A FREEMAN, and the voice of peace and joy thrilled my heart. Frederick Douglass, 1817?

The Universal Principle of Liberty: It Must Be Enjoyed By All Educate your children, educate yourselves, in the love for the freedom of others, for only in this way will your

34 The Universal Principle of Liberty: It Must Be Enjoyed By All Educate your children, educate yourselves, in the love for the freedom of others, for only in this way will your own freedom not be a gratuitous gift from fate. You will be aware of its worth and will have the courage to defend it. Joaquim Nabuco,, Brazilian Abolitionist, Diplomat, Historian

35 Liberals Struggled for Free Trade and International Peace

But Liberalism Began to Decline and Was Replaced by the Collectivist Ideologies of Nationalism, Imperialism, Socialism, Fascism Nationalism in the sense of national greed has supplanted Liberalism.

36 But Liberalism Began to Decline and Was Replaced by the Collectivist Ideologies of Nationalism, Imperialism, Socialism, Fascism Nationalism in the sense of national greed has supplanted Liberalism. It is an old foe under a new name.the old fallacy of divine right has once more asserted its ruinous power, and before it is again repudiated there must be international struggles on a terrific scale. The Eclipse of Liberalism, E.L.Godkin,, Editor, The Nation, August 9, 1900

37 The Result Was the Rise of 20th Century Tyranny and Murder on an Astonishing Scale

National Socialist tyranny A Monument to the

38 The Struggle Against Fascism, National Socialism, and Bolshevism Great Courage Was Needed to Oppose Collectivist Tyranny Hans and Sophie Scholl, executed for their opposition to National Socialist tyranny A Monument to the slaves killed in the Vorkuta Uprising of 1953 Andrey Sakharov

39 Liberalism Was Revitalized -- in Thought and in Practice

40 Some Contemporary Heroes of Freedom

41 Many of the Heroes of Liberty Are Already Well Known... But not all...

42 Some of the Present and Future Heroes of Freedom.. May Be In This Room

Epic of Gilgamesh 2,800 2,500 B.C.E.

Epic of Gilgamesh 2,800 2,500 B.C.E. Powerful, superb, knowledgeable and expert, Gilgamesh would not leave the young girls alone, the daughters of warriors, the brides of young men. The gods often heard