Democracy, Liberty

Sun Mar 27 07:03:22 PDT 2011

Prof. Seller's typology is helpful, but I think it elevates liberty perhaps too much at the expense of other values such as equality (though he does in fact do the slight of hand of putting equality within liberty in his phrase "equal citizenship").  

I think liberty is a term like law the the more tightly you try to grasp it, the more it slips through your fingers, like holding water in your hand -- make a fist and it all leaks away.

Liberty can be considered the right to be left alone to pursue your own course, subject to the proper limits placed by society (through convention or law).  Liberty is a democracy in the legal regime is concerned with constraints on the government in favor of the individual (or in the U.S., in favor of the individual and corporations).  Liberty, at least in the U.S., is not at all concerned with substantive equality, but rather only with limits on what the government can impose on the person.  For a long time liberty meant the right to own slaves.  At least liberty for some.  This is the extreme example of liberty and equality at odds.

The shape of democracy in South Africa is founded upon equality and reconciliation -- not on liberty in the same way the U.S. democracy is.  This leads to some significant differences.  

Democracy as used in popular political rhetoric, especially with respect to the potential revolutions occurring in the Arab world (potential still -- not consolidated yet -- it could still turn into the sort of revolution in Jean Genet's "The Balcony" --revolution in name only (kinda like Russia right now)), refers to an ill-defined amalgam of popular sovereignty through the vote, some forms of participatory liberty, and depending on the speaker -- laissez faire capitalism. 

I think the tendency to place any of these sorts of ideas in a chronological order of necessity or make any a precondition of the other is misguided and ahistorical.  As Prof. Sellers points out, one could have an illiberal democracy -- voter participation and selection without liberty (as limits on government control of personal autonomy); or one could have an autocratic regime with lots of liberty to speak and pursue economic objectives or religious freedom or whatever; or one could have a system with a heavy dose of capitalism without democracy or individual civil and political liberty.  

The U.S. emphasis on the individual autonomy aspect of liberty may or may not be the best one generally, and may or may not be the best one even for the U.S.  But it is certainly not the only viable model for organization of a democratic state that respects liberty in very meaningful ways.

Steve

On Mar 27, 2011, at 9:35 AM, Mortimer Sellers wrote:

> This the the fundamental question of constitutional government: what is liberty?
> 
> Liberty (in its original and most useful sense) is equal citizenship in pursuit of justice and the common good.
> 
> Democracy (in its original and most obvious sense) is majority rule.
> 
> So liberty is actually morally prior to democracy in the American and other constitutional democracies.  Liberty requires democracy, but democracy does not require liberty -- illiberal democracies are possible, very dangerous, and a real risk in the Middle East.  
> 
> I think that this may be what Friedman was getting at.
> 
> On Sun, Mar 27, 2011 at 5:17 AM, Robert Sheridan <rs at robertsheridan.com> wrote:
> http://tinyurl.com/484453w
> 
> Succcinct quote pulled from Tom Friedman's NYT column today, link above, on the lid coming off the pot in the middle East, his analogy, emphasis added:
> 
> "Democracy requires 3 things:  citizens — that is, people who see themselves as part of an undifferentiated national community where anyone can be ruler or ruled. 
> 
> It requires self-determination — that is, voting. 
> 
> And it requires what Michael Mandelbaum, author of “Democracy’s Good Name,” calls “liberty.”
> 
> “While voting determines who governs,” he explained, “liberty determines what governments can and cannot do. 
> 
> Liberty encompasses all the rules and limits that govern politics, justice, economics and religion.”
> 
> And building liberty is really hard."
> 
> 
> I kinda liked that, especially Mandelbaum's definition of 'liberty,' which we disguise by calling it 'substantive due process".  It can take us all year to get that across, we hope.  
> 
> I think it was Patrick Henry who said it best:  
> 
> "Give me substantive due process or give me death!"  
> 
> Then they strangled him...
> 
> rs
> 
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> 
> -- 
> M.N.S. Sellers
> Regents Professor
> University System of Maryland
> 
> Visiting Professor
> Georgetown University Law Center
> 600 New Jersey Avenue, N.W.
> Washington, D.C. 20001
> tel.: 202-662-4032
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-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/

"A life directed chiefly toward the fulfillment of personal desires sooner or later always leads to bitter disappointment."

Albert Einstein

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