I shall be using the term “practice” in this book to mean an invention by human beings of a way of interacting whose elements depend on the agreement of the participants. Games such as football are examples of a practice. While there are, of course, physical features of the world including human beings that make the game possible, the rules that constitute the game, and hence the game itself, exist only insofar as some human beings agree to interact in accordance with them. Money is a human invention, and its use as a store of value and a medium of exchange constitutes a human practice in the same way. It can serve these functions only if human beings agree to attach that sort of value to certain things such as pieces of metal, bits of paper, cowrie shells and so on. Political constitutions such as the rule in the UK that a valid law requires the consent of both Houses of Parliament and the monarch are also examples of human practices. The facts in the world created by such practices are sometimes called social or institutional facts. They do not exist in the way the solar system exists. The facts about the solar system and such things exist independently of human beings and their beliefs. They are natural facts. Social or institutional facts exist only because of human beings’ inventive social schemes. They are, nevertheless, facts about the world.
When I say that practices exist only through the agreement of the participants, I do not mean that they come about only as a result of something like a formal contract to establish the rules of interaction or the meanings to be accorded to certain things and relations. Generally, they emerge through much more informal and unstable processes and only acquire a fairly determinate and durable form over time. In such a development, formal agreements may have their place. But they are not necessary elements in a practice.
Liberal practices are practices in this sense. They are inventions of a collection of human beings who agree to interact on the basis of certain rules. These rules may exist solely as the idea of some philosopher as to the ideal set of rules for a society of human beings to adopt. But insofar as an actual society adopts or develops them over time as the basis of its members’ interactions, they exist as social facts constituting a liberal society.
While the next few chapters are devoted to a description of them, we need an initial identification of what is supposed to be liberal about them. The liberal character of these practices is standardly identified in terms of individual freedom, as in free speech or freedom of expression, freedom of association, free movement, economic freedom, sexual freedom. Liberal societies are supposed to enjoy these freedoms while illiberal societies do not. But it is fairly obvious that the distinction between liberal and illiberal societies cannot consist in the former having unrestricted freedom in these spheres and the latter having absolutely no freedom at all. The distinction must be one of degree rather than being a matter of black and white. Consider free speech. Liberal societies restrict speech in some respects. For example, they all have libel and slander laws. They all deem it illegal to incite people to commit criminal acts. Speech that constitutes an invasion of privacy, or endangers public safety, order or national security may be restricted.
It is equally obvious that no society prohibits its members from expressing themselves altogether. What these considerations suggest is that there are some fundamental interests of persons in respect both of their character as separate individuals and as members of a political collectivity that justify restricting speech in any society whether liberal or illiberal, but that illiberal societies interpret fundamental interests justifying constraints on speech in a more extensive way than liberal societies. This is how I will proceed in the following chapters on the substantive liberal practices. I shall begin with the standard constraints on individual freedom in each sphere to be found in liberal societies, and then establish the points at which illiberal and liberal societies part company with regard to what they restrict. However, in the case of the first chapter on the rule of law, the procedure will be slightly different. This is because the rule of law is essentially about the constraint on the exercise of arbitrary power by one individual over others and thus exists to protect to some degree the liberty of the subject. By requiring people in their interactions to follow rules, the laws enable individuals to pursue their interests without fear of arbitrary invasions by others. So, from the perspective of the rule of law, all law promotes individual liberty to some degree.
The above remarks indicate that the liberal or illiberal character of a society is a matter of degree. The degree can be charted over three dimensions: the number of people who enjoy the liberal freedoms; the number of spheres of life covered by them; and the extent of freedom in each sphere. Thus, with regard to the first, some categories of people may be excluded from liberal rights, such as women in all early liberal societies and racial or ethnic groups in some others (e.g. the United States, Australia, South Africa). The standard justification given for such exclusions is the incapacity of the members of the category to benefit from the freedoms by running their own lives. They are regarded as essentially dependent personalities who need to be governed by others. With regard to the second dimension, some societies may establish a high degree of economic freedom but have strict limits on free speech and association (contemporary China enjoys a considerable degree of economic freedom but very little freedom of speech). Others may have little freedom in any sphere except the sexual, and yet others much freedom in every sphere except the sexual. As for the third dimension, the extent of freedom in any sphere may vary from society to society. Thus, in many contemporary western societies, so-called hate speech is a criminal offence (e.g. the UK, France, Germany, Denmark, Canada and many others) as is holocaust denial (the denial that Nazi Germany murdered approximately 6 million Jews is illegal in most European countries and Israel but not the UK). But such constraints on free speech are largely absent in the United States. Even more obviously the extent of individuals’ economic freedom may be anything from practically non-existent in North Korea to very high in Singapore.
I have been talking about freedom and constraint as they apply to the laws of a society. But another distinction is that between the coercion that is exercised through the laws and what John Stuart Mill called the moral coercion of public opinion. In his famous liberal essay “On Liberty” (2015; first published 1859) Mill was particularly concerned with the way in which public opinion could stifle freedoms that the law permitted by penalizing people, not through the courts but through social and economic ostracism. He sought to develop liberal principles that public opinion, and not just the laws, should follow. This issue is very much alive today in debates about political correctness and the denial of platforms to speakers deemed to have obnoxious views. I will discuss it in the chapter on free speech.
In the following chapters describing the liberal practices, I shall be concerned primarily with the idea of a fully liberal society – that is to say with a society that promotes and protects the greatest degree of individual freedom for all its members compatible with its viability and prosperity as an independent state. The reader should remember, however, that liberalism is a matter of degree, and that the adoption of some elements of paternalist, and hence illiberal, attitudes and policies in a society’s arrangements does not mean necessarily that the end of civilization is nigh.
Liberal practices and ideas, especially in matters of religious belief and economic activity, first emerged in North Western Europe in the course of the 17th and 18th centuries, in particular in the economically dynamic states of the Netherlands and later England. The success of these practices in promoting peace and prosperity in these countries, and their effective transplantation to the United States, encouraged other European states to liberalize in the 19th and 20th centuries. This process of European liberalization was radically challenged, after the disasters and destruction of WWI, by the rise of the communist and fascist states. The defeat of the fascists in WWII and the collapse of the Soviet Union in the late 1980s led to an extraordinary outburst of liberal euphoria in which liberal thinkers came to believe that liberalism had now achieved a more or less permanent world-wide ideological hegemony. This belief rapidly turned out to be illusory, and the liberal-democracies once again face substantial challenges from authoritarian states of varying character, such as the managed democracies of Putin’s Russia and his many followers, the scarcely believable communist capitalism of China and the medieval but oil-rich Islamic theocracies.
The rule of law consists first and foremost in the development of constraints on the exercise of arbitrary power by one individual over others. Interactions between individuals, including and especially interactions between the more and the less powerful, must take place within the requirements of general rules laid down beforehand and accessible to all. A so-called rule which names particular individuals – such as one that says that John Smith is to be apprehended and executed – is not a general rule but a decree by a person on whose say so alone John Smith is to be done in. The rule of law bans such exercises of arbitrary power whether by private individuals or by state officials. In this sense, the rule of law is to be contrasted with the rule of men (or women). Individuals can only be apprehended by state officials or private citizens if they are reasonably suspected of violating a properly constituted law and must then be brought before a court and charged with the crime in accordance with fair procedures.
The great advantage of the rule of law is obviously enough that it gives protection to everyone for the enjoyment of the rights that are bestowed on her by the laws from invasion by more powerful persons. In this sense, individuals are enabled by the rule of law to do as they please within their rights. The rule of law necessarily protects whatever liberties the law accords them. You would think, then, that every regime, however illiberal, would aspire to promote and defend the rule of law in its domain. For the rule of law gives its members security and liberty (in the above sense) and would, thus, constitute necessary, if not sufficient, conditions for its members’ prosperity.
One problem with this supposition is that the laws that the rule of law upholds may be very bad laws from the point of view of the interests of some of those subject to them. They may leave some people with very few rights and make them dependent to a shameful degree (from a liberal point of view) on the good will of their “lords”. Thus, laws enforcing serfdom or patriarchy will not secure for the serf or for women the benefits I attributed to the rule of law – namely the security and liberty that enables a person to run her own life without being subject to the arbitrary will of another.1
In this sense, the rule of law will not be of much benefit to people subject to it unless they possess a degree of property and liberty that gives them a certain independence. Thus, the rule of law will serve the feudal lord and the patriarch very well but not so well those over whom he rules. Nevertheless, having few rights and a large degree of dependence is better than having no rights and total dependence. So, the enforcement of the rule of law would give even the subjected some protection from oppression.
Another major problem is that the rule of law is directed at the restriction of the power of governments as much, if not more, than the power of private individuals. Indeed, governments have potentially vastly more power than private individuals, and this power could be, and often is, exercised arbitrarily to the detriment of their subjects. In the pre-modern age in which monarchical government predominated, monarchs tended to claim that their right to rule derived from God and that, as guardians of the law, they could not be subject to the law. Their sovereign legislative, executive and judicial power was necessarily an absolute power, so they could not be held to account for its exercise. Thus, while monarchs for the most part supported the rule of law for their subjects, they were not at all keen that their own exercise of power should be subject to law.
The story of the struggle in England to make governmental power accountable contains a number of well-known and acclaimed landmarks. In the first instance, there is the signing of the Magna Carta in 1215 by King John and a party of rebel barons. While this charter includes many provisions having to do with the substantive rights of the barons of little relevance today, one clause forbids the King to imprison anyone indefinitely without trial and another binds the King to follow due process in his courts and not to allow the justice provided to be for sale. Both these are fundamental principles of the rule of law. They may not have been closely adhered to by subsequent royal governments, but they remained as something to be appealed to by Englishmen concerned with their rights. Restriction of the power of the King to levy new taxes and imprison disaffected subjects through special courts, such as the infamous Court of Star Chamber, was a major issue in the English Civil War. The Stuart Kings (James I, Charles I 1603–49) used this court to suppress opposition to their policies. Its sessions were secret, allowed no appeal, and punishment was swift and severe. The court was abolished by act of Parliament in 1641. The victory of Parliament over Charles I in the 1640s, repeated over James II in 1685, led to the consolidation of these principles in a series of acts of Parliament. First, the Habeas Corpus Act of 1679: this required that a person arrested and imprisoned had, after a short period, to be presented in a court of law, charged with a crime and tried through due process. The Bill of Rights of 1689 forbade the monarch to interfere with due legal process. In particular, the monarch could not create new courts of law or act as a judge of law. Furthermore, the monarch could not levy new taxes without the consent of Parliament and could not maintain an army in peacetime without its consent. Other provisions further protected the rights of members of parliament against arbitrary executive power. The Act of Settlement of 1701, which settled the succession to the English crown in the German Protestant descendants of the Stuarts, also affirmed its significance for us – the principle of an independent judiciary. Judges were given a secure tenure, being removable only by parliament which at the same time undertook to follow a convention not to discuss particular judicial decisions.
Principles of this kind were adopted by the newly independent Americans in their Bill of Rights of 1789 and followed in the laws of the independent states of the British Commonwealth. They have been elaborated and affirmed in some sections of the UN sponsored International Covenant on Civil and Political Rights, which came into force as part of international law in 1976 and has been ratified by a large majority of states. The relevant sections assert that no one shall be subjected to arbitrary arrest and imprisonment, that anyone arrested shall be informed of the charges against him, that he shall be brought promptly before a judge and entitled to a trial within a reasonable time or be released (article 9); that anyone brought to trial is entitled to a fair and public hearing by a competent, independent and impartial judge established by law and that he is to be presumed innocent until proved guilty, to have adequate time and facilities to prepare his defence and to communicate with legal counsel, to be tried in his presence and defend himself in person or through legal assistance, to examine witnesses against him and to obtain the presence of witnesses on his behalf, not to be compelled to testify against himself or to confess guilt (article 14); nobody shall be held guilty of any offence which did not constitute an offence at the time the act was committed nor suffer a heavier penalty than the one applicable at the time (article 15).2
All these are admirable principles of the rule of law, and with most states endorsing them you would have thought that the ru...