Lenn E Goodman. Judaism. Volume 52, Issue 1/2. Winter 2003.
There are two great strands in the idea of liberty, positive and negative, as they are called. They tug against one another but also intertwine and support one another vitally. Both are Biblically and classically rooted, although their embeddedness in ancient codes and ethical constructs does not silhouette and isolate them as sharply and starkly as do the colder air and secular light of modernity. Negative liberty is freedom from interference. Positive liberty is freedom to grow and prosper, to find fulfillment, a role and place, recognition and effectiveness-a hand and a name, as Isaiah puts it (56:5).
Negative liberty is prescribed, but not expounded or even expanded to its full extent, in the Biblical commandment: “Proclaim liberty throughout the land, to all the inhabitants thereof” (Leviticus 25:10). We cannot expect a full Biblical explication of the material content of that liberty, for two reasons: The first reason is that the Mosaic Torah is a constitution, a masthead of law and ethics. It is noted for its level of detail and particularity, but its most circumstantial prescriptions are typically offered and, more crucially, taken as paradigms for wider ranges of legislation, such as we find in the Talmud and the Codes, and for ethical elaboration such as we find in the Rabbinic and philosophical ethicists like Bahya, Halevi, and Maimonides. The second reason is that negative liberty, by its nature, rests on the judgment and discretion of those who are made free. To define its content too closely would be to take back with one hand what has just been given with the other.
Yet the Biblical demand for liberty goes far beyond the minimal one that no one remain forever in bondage (Exodus 21:2). Literal emancipation is complemented by the rule that no one who is inured to the life of a servant should be simply cast out against his will (Exodus 21:5). And the whole complex of Biblical laws on this subject is counterbalanced by safeguards against debt slavery: the prohibition of interest bearing loans to Israelites (Deuteronomy 23:20-21; Exodus 22:24); the cancellation of debts in the seventh year (Deuteronomy 15:1-2); the landlessness of priests (Numbers 18:20-24), lest a landed priesthood dispossess the poor, as had occurred within historic memory in Egypt (see Genesis 47:26); and the return of all land to its ancestral owners after fifty years (Leviticus 25:8-18), giving families a fresh start and blocking the emergence of a large permanently landless class. Here negative liberty rests on positive. The sheer liberty of emancipation is sustained by an entitlement to property that mutes the free if savage play of the market arena and lifts the weight of mortmain from the subjects of the Law. Property rights will not take precedence to human existential rights. The Torah announces its intentions clearly when it declines capital punishment for property crimes. But the theme runs all the way down through the Law.
The interdependence of negative and positive liberties is vividly imaged in the Biblical vignettes of every man under his own vine and fig tree. In First Kings (5:5), Solomon’s reign is typified by this image: “He had peace on all the marches round about. All the days of Solomon, Judah and Israel dwelt secure, from Dan to Beer Sheva, every man under his own vine and fig tree.” Secure homesteads mean freedom from political interference and the comfort and enjoyment of a modest but independent sustenance. King Solomon’s alliances are seen here not as threats to the pristine Mosaic ethos but as props to the peace. That peace in turn creates prosperity and sustains individual independence.
In Micah this pleasant image of the past becomes a vision for the future: Once God has judged among the nations, “they shall beat their swords into plowshares and their spears into pruning hooks. Nation shall not lift up sword against nation, neither shall they learn war any more. But they shall sit undisturbed, every man under his own vine and fig tree” (Micah 4:4). Zechariah adds a codicil, lest the vignette be misconstrued as a paean to isolation: “I will remove that land’s guilt in a single day, saith the Lord. On that day, saith the Lord, everyone will invite his neighbor under his vine and fig tree” (Zechariah 3:10). Economic self-reliance and moral independence still support one another. As in Kings, civil security and international peace sustain prosperity and moral self-sufficiency. But there is no endorsement of what the Rabbis called the ethos of Sodom (middat Sedom), the notion that ‘What’s mine is mine and what’s thine is thine’ (Avot 5.10). Independence does not undercut fellowship but fosters it.
Yet the ideals of positive and negative liberty have not always gone hand in hand. We have clear, but separate, spokesmen of positive and negative liberty in Marx in the nineteenth century and his biographer, Isaiah Berlin, in the twentieth. Marxians warn against the social alienation of Mandevillian economics: Private vice is not always public virtue. The invisible hand of market justice would as soon expropriate as sustain the weak and the poor. Bourgeois liberties, as the classic Marxian warning goes, are a feeble reed to the dispossessed. The poor may have the same right as the richest man in France to sleep under the bridges of Paris. But winter nights along the Seine are not so welcoming as Mediterranean days under a vine or fig tree, with a modest farmhouse at one’s back. When wages drop below subsistence and masters no longer need support the old, the halt, the very young, and the weak among their servants, the invisible hand will starve those whom charity or pity fails to sustain. Civil rights, so it is urged, will help them not at all. Hunger and necessity will teach those who labor to call themselves by a new name and bite the hand that fails to feed them.
A new liberty will arise, so the monitory promise goes, not in any freedom from constraints too subtle for the hungry to perceive, but in class consciousness. A new identity will impart new meanings to the old idea of liberty. Autonomy will no longer mean undisrupted freedom for the individual but group self-discovery in the ranks of the proletariat. The new freedom will be effectual precisely because it sheds the old ideals of individualism and personal dignity and mounts an effective threat against the classes that have hidden their exploitations behind the puffery of self-serving ideals.
In his inaugural lecture in 1958, when such collectivist arguments were still widely credited, and even more widely trusted, Berlin traced the horrors they engendered to a tiny flaw in the logic of the argument. In objectifying autonomy, the advocates of positive liberty allowed others to judge for me what my interest demands, where my freedom truly lies, how my identity is most authentically fulfilled. Misprision of the idea of autonomy allows others to decide for me who I am and who I must aspire to be:
The real self may be conceived as something wider than the individual (as the term is normally understood), as a social “whole” of which the individual is an element or aspect: a tribe, a race, a church, a state, the great society of the living and the dead and the yet unborn. This entity is then identified as being the “true” self which, by imposing its collective, or “organic,” single will upon its recalcitrant “member,” achieves its own and, therefore, their “higher” freedom . . . we recognize that it is possible and at times justifiable to coerce men in the name of some goal (let us say, justice or public health) which they would, if they were more enlightened, themselves pursue, but do not, because they are blind or ignorant or corrupt. This renders it easy for me to conceive of myself as coercing others for their own sake, in their, not my interest.
This argument goes further:
What at most this entails is that they would not resist me if they were rational, and wise as I, and understood their interests as I do. But I may go on to claim a good deal more than this. I may declare that they are actually aiming at what in their benighted state they consciously resist, because there exists within them an occult entity-their latent rational will, or their “true” purpose-and that this entity, although it is belied by all that they overtly feel and do and say, is their “real” self, of which the poor empirical self in space and time may know nothing or little; and that this inner spirit is the only self that deserves to have its wishes taken into account. Once I take this view, I am in a position to ignore the actual wishes of men or societies, to bully, oppress, torture them in the name, and on behalf of their “real” selves, in the secure knowledge that whatever is the true goal of man (happiness, fulfillment of duty, wisdom, a just society, self-fulfillment) must be identical with his freedom-the free choice of his “true,” albeit submerged and inarticulate self.
The Church, State, Party, tribe, race, nation, gender, firm, union, interest group-all acquire a say, a determinative, constitutive say, in deciding who I am. Not that they can’t be right-at least some of them-in whole or in part or in combination. But none of these can judge my case with my own eyes. Usurping my role in defining my identity and interest, they deny me even the language in which to claim that identity and experiment with that interest. just as anarchy results when each of us judges his own case (Judges 17:6,18:1,19:1), tyranny results when someone else decides for us who we are and what our true liberty demands.
Not that we infallibly judge our own interests. Liberty can, after all, be misused, or misspent. But it seems strange, to alienate our self-determination in the name of autonomy. Isn’t it a paradox that a liberty, positive liberty, now tagged, by a persuasive definition, as “true liberty,” and the only liberty worthy of the name, should demand so much of us by way of duty and should conflict so sharply as it does at times with what we naively understood as liberty in our unenlightened state, before our consciousness was raised. As Berlin puts it, “It is one thing to say that I know what is good for X, while he himself does not; and even to ignore his wishes for its-and his-sake; and a very different one to say that he has eo ipso chosen it, not indeed consciously, not as he seems in everyday life, but in his role as a rational self which his empirical self may not know.”
Charles Taylor, defending positive liberty, notes that Berlin’s arguments against “this monstrous impersonation,” as Berlin calls it, lying “at the heart of all political theories of self-realization” target only the most extreme cases. But the worth of positive liberties is readily granted. As Berlin remarked nearly forty years after his original address:
Negative liberty is basic; positive liberty is also basic. They are both perfectly good forms of liberty which we all pursue. I am not at all against positive liberty, properly conceived. But … positive liberty was politically perverted far more than negative liberty. Negative liberty led to laissez-faire, the sufferings of children in coal mines. But positive liberty became total despotism, the crushing of all ideas, the crushing of life and thought. But I agree, I ought to have made it clearer that positive liberty is as noble and basic an ideal as negative liberty.
Berlin’s ire was goaded by the atrocities of Stalinism, and his critical conscience was pricked by the bad faith of the many apologists who urged that one has to break eggs to make omelets. Such mild, culinary euphemisms muffled and camouflaged the enforced famines and the murders of millions. Two facts remain vividly clear: that individuals are not always the best judges of their own fulfillment, personal, communal, or social; and that no agency can faithfully promise to do better.
In pursuit of the Jewish idea of justice, I would like here to follow the judaic commitments first to positive, then to negative liberty, as laid out, in the Torah, the Mosaic Pentateuch. I will then explore the options for reintegrating these two interdependent themes.
Hostile and indifferent commentators often characterize judaism in general and the Mosaic code in particular as a command system without further goals or higher reasons. The same characterization is widely embraced by legalists and positivists among the adherents of the Law, who reason that there can be no higher obligation than obedience to the dicta of the one true God; or, more severely, that obedience must be not only its own reward but its own rationale. I have said enough elsewhere to discredit such notions. They ignore, for example, the explicit dicta of the biblical law, which promise a good life of holiness, purity, and justice as the constitutive consequences of life in accordance with the Torah’s precepts. Theistic legal positivists, moreover, as Maimonides writes (Guide III 31), seem almost alarmed at the notion that God (as well as human beings) might be rational, effectual, and well disposed toward the human good. Theologically, we can say that the positivist notions of the revealed law systematically ignore the Biblical nexus between the idea of God and that of the good.
That nexus is constructed in three ways:
First, as I argued in God of Abraham, the idea of the divine is integrated when monotheism purges evil and violence from the idea of divinity and comes to understand holiness not sheerly by way of the frisson of the extraordinary, as some mere tremendum, but as transcendent goodness, beauty, and justice. The resultant conceptual revolution fuses the ideas of goodness and justice with the idea of divinity. That in turn demands and fosters an integrated legal and moral system. Thus the idea of uniform laws, and its corollaries as to human equality—like the ideas of a coherent and intelligible cosmos, and of a universal history—spring from the pyrotechnic core of the monotheistic idea.
Second, the idea of creation sets God in a relation of paternity and sponsorship to nature. God sees that being is good and treats life as a gift. Nature is to be cared for, valued and respected in its protean variety and vitality. Fruitfulness is a blessing and an obligation. The cosmos is a dwelling not a waste (Isaiah 45:18). The universal scheme of justice, accordingly, will be life-affirming and protective, extending to God’s creatures the love manifested in their creation and sustenance. Universal positive deserts are thus the core of monotheistic ethics. They are the reflex of the world’s contingency, its dependence on God’s creative act and grace.
Thirdly, since moral obligation belongs to persons, and since personhood is manifest in the human case (and, so far as we presently know, only in the human case), the imperatives of morals and society, for us, must rest on an understanding of human nature and a commitment to its nurturance and flourishing. The law, then, must aim at the cultivation of our human nature-not its mortification, subjection, denial, or frustration. If monotheism teaches that tragedy is not the law of nature, even more so does it teach that tragedy is not the law of life. Mechanists may find in evolution a warrant for exploitative emulousness, but monotheism finds in the same biological fact a history of struggle and triumph, symbiosis, hardship, and creative emergence, whose imperatives are empathy, celebration, intellectual wonderment, and moral regard.
Biblical law, as Maimonides showed, is thematic. It pursues three ends, all aiming at the human good. They are, proceeding from the most minimal but exigent to the most elevated and elevating: (1) the ordering of human society to provide for civil security, to strengthen and enhance our social and economic interactions, and to promote our material welfare; (2) the reform of human character, by the institution of behaviors that foster accommodation and soften human irascibility (among other weaknesses); and (3) the enlightenment of human understanding by the use of myths, symbols, and doctrines emblematic of the truths that open us to the highest reaches of human contemplativie fulfillment, allowing us to approach, asymptotically, an ever more perfect understanding-and thus, in the measure of our capacity, to realize our inner affinity to God’s perfection.
All of these goods have intrinsic worth, but all three are instrumental as well. Adequate food, good health, longevity, and even recreation of the spirit, a nice home and a comely spouse, apart from their intrinsic value, are precious because they promote intellectual fulfillment. If all Israel claim a share in the world to come, and if the basis of that claim is a life in accordance with the Law, then the provision of material benefits, as a matter of public law, serves the highest ends of that law. Civil order is the seed bed for the cultivation of human character, and good character is needed in the human quest for spiritual/ intellectual refinement. But that refinement in turn fosters good character and aids in the reform and regulation of the social institutions that promote human welfare and wellbeing.
The state, then, is no mere night watchman. Nor can its charge be limited to that of a referee, settling disputes or regulating free markets. Beyond such minimal functions (and indeed necessary to their proper discharge) there is a public obligation to assure that the markets, for example, effectively and efficiently provide the goods and services that are the raison d’etre of market liberties-and an obligation as well to assure that the weak, the ill, the socially isolated and disadvantaged are protected from the devastating effects of want when those goods and services are not broadly enough shared. Spinoza is a true child of the Torah, then, when he writes:
Human beings are won over by generosity, especially those who lack the means of putting together the necessities of their survival. But to help everyone in need lies far beyond the powers or the profit of private men. Their resources are far from equal to the task, nor is an individual capable of forming a bond of friendship with everyone. So the care of the indigent falls upon society as a whole, and it is the advantage of the community at large that it regards.
When the Torah affords freemen and even slaves one day of rest in seven, remits debts in the seventh year (Deuteronomy 14:1-2), and reserves what grows then as the portion of the poor (Exodus 23:10-11, Leviticus 25:1-7), or forbids interest on loans to fellow Israelites, it looks to the positive liberty of the people as a whole, seeking a shared wellbeing and preserving the people in life and comfort, for which they will spontaneously voice thanks, seeing their good life and its law as their nation’s way of walking with God (cf. Deuteronomy 8:10).
Positive liberty trumps even military exigency, when a bridegroom is spared from service, to rejoice his bride (Deuteronomy 24:5), or when one who has built a house, planted a vineyard, or betrothed a woman is exempted (Deuteronomy 20:5-7). Human fulfillment overrides demands that others, who have enjoyed these blessings, will the more gladly shoulder. There is a substitution of judgment here, as there is in the Rabbinic barring of self-incrimination (Sanhedrin 96). But the orienting theme throughout the Mosaic canon is life and its blessings, the affirmation of personhood. The scales tip, as in the opening verses of Genesis, toward light over darkness, being over nothingness. What is supplied is no specification of another’s inchoate desires but a presumption in favor of the life principle that underlies all desire-as when English law permits self-defense or allows the accused to stand mute.
Like any law, the Mosaic Torah encodes its priorities. Judgments are made, preferences presumed. American tax law presumes a desire to minimize tax liabilities. The Torah presumes that few conscripts will declare themselves fainthearted (Deuteronomy 20:8). But it also leaves little ground for resentment toward those who are spared the risk of a doubly tragic and ironic death before they have fulfilled their manhood, or even consummated simple economic goals. The need for men at arms is not that great. An ethos is laid down by this ordering of priorities; and that ethos, besides the protection from warfare of some of the tender and precious young, is an object of the law. That judgments have been made in the individual’s behalf is the hallmark of positive liberty. Bridegrooms are not urged to decline this year’s exemption, and brides are not urged to waive their marital rights. Military service is not deemed worth the sacrifice. And the ethos that protects such private joys is not a wholly private concern but a vital object of public policy.
A community where automobile traffic stops for pedestrians can allow right turns on a red light. A community where passersby help even their enemies right and reload a fallen burden (Exodus 23:4-5), where roofs have safety railings (Deuteronomy 22:8), where adults rise up before a hoary head (Leviticus 19:32), where parents are honored and covetousness is controlled (Exodus 20:12, 14) will have a different tone from a community where such standards are not observed. It will also have a different crime rate, divergent patterns of morality, a different standard and notion of what counts as political realism.
Ritual, myth, and symbolism are among the devices that the Mosaic law uses to guide the human ethos. Negative liberties are, of course, affected, partly because a kindly and humane ethos enhances the freedom of action and the latitude of choice and movement for all who are touched by it. But the laws that seek to improve and guide human character in a social setting do not merely affirm or protect rights, they lay down positive obligations. The Sabbath, paradigmatically, does not merely permit but requires cessation of labor; and, even at its most minimal, it demands positive actions for its observance.
The aim of the Sabbath as an institution far exceeds the work stoppage at its core: There is a symbolic commemoration embedded in the act, an allusion to the Exodus from Egypt and to the larger cosmic drama of God’s creative act. Further themes are implicit: the community of those who keep the Sabbath rest, all on the same day and in the same manner, the equal dignity of all persons in their entitlement and need to rest, the preciousness of the spiritual refreshment that the cessation brings, and the implicit affirmation of a worth in humanity that goes beyond market or functional utilities-but not beyond the worth of human life, or even the suffering of animals.
By restricting activities on the Sabbath, the Law constrains our negative liberties. Sabbath rest, Biblically, is enforced. Actions, overt symbols, rituals and a tissue of ancillary beliefs, are enlisted in behalf of what the rabbis (evoking the image of smelted silver) call the refinement of character-and, beyond that, in the service of ideas that can, if taken seriously, bring us closer to Perfection. But the moral, spiritual and intellectual objectives, the higher values that the law intends cannot be imposed or enforced. Indeed, for Socratic reasons, they cannot even be imparted by precept. The Mosaic legislation rests on the recognition that indoctrination is not appropriation. The moral, spiritual, and intellectual intentions of the law-what might be called its meaning or its message-can be taught only be indirection. This the Sabbath ritual and its symbolisms and myths do, most effectively. But the teaching, the edification, the spiritual experience, as befits a liberal code, are embraced only as the individuals under the law grasp its symbolism.
Positive liberty in the Mosaic scheme, as Maimonides shows, does extend to the promotion of specific ideas, beliefs, and values-the value of study, contemplation, reflection on life itself and on the Law. At the core of the ideas meant to be learned in this way: the idea of God’s creation of nature, and of nature’s value, as God’s gift and a worthy recipient of divine grace and bounty. Scripture relates a history, of the world’s origins, of humankind’s creation, of Israel’s birth as a nation and as bearers of a divine mission. The particulars of this history are not singled out as objects of overbearing faith, but the messages implicit in the narrative are of critical import, since they become a medium through which values are transmitted. It matters, for the Torah’s ethos, that woman is not of alien flesh to man, not an alien being or an object, but a “helpmeet,” a counterpart, to be acknowledged as “bone of my bones and flesh of my flesh” (Genesis 2:23), the worthy recipient of a man’s primal loyalty, even ahead of his parents (Genesis 2:24). The method by which ideas are imparted here is critical. For myth can do what dogma cannot: lead the heart to understanding.
Intellect cannot be forced and character cannot be molded. Thus the deep voluntarism of the Biblical command: “Thou shall love the Lord thy God with all thy heart, with all thy soul, and with all thy might” (Deuteronomy 6:5). The obligation is deeply personal, real only to the extent that it is appropriated-in ways that no one can do for another. Love of God may be thought of as self-surrender. Rabbinically it is called acceptance of the yoke of divine sovereignty (qabbalat ol malkhut shamayim) But that can only be a personal act; and, in surrendering my will to God’s, I am taking God’s will as my own-not giving up autonomy, but construing my own will and identity through what I conceive as most perfect and divine, and therefore most worthy of choice.
We can be drawn to the love of God by the idea of holiness and perfection, by reflection on God’s bounty in the creation and sustenance of nature, by the beauty of nature or the preciousness of its human moment. But we cannot be made to love God by anyone, not even by ourselves, since the love of God is not an act of will but an insight. And the God that we will worship must not be a being alien to our highest ideals of the good. Indeed, our ideas of God are the measure of our idea of the good. Yet, compelling as the idea of God is-and it is surely the most compelling universal idea on the stage of history-we can be repelled from the love of God, for example, by the linkage of names and notions of God with hideous or repressive practices, ideas, and beliefs.
It is because ideas convey their cogency only within the quiet courtyards of the mind that the Torah does not include dogmas among its many institutions. Negative liberty begins, as John Stuart Mill plainly saw, with the liberty of the mind. It extends, as the Stoics recognized, to the acts of the will specifically, our appropriation as our own, or rejection as alien and indigestible, of values, actions, tactics or strategies, life plans, or courses of self-development. Such choices can be shared. They can be familial or communal, as when an ethos, history, or way of life is articulated in ideas and words, manners, customs, folkways, myths, idioms, categories of discourse.
Even here, where determinists seem most determined to pitch their standard, what is most striking is not the uniformity that is often the artifact of an outsider’s perceptions of the exotic (typifying the extreme because it is exotic, and grouping phenomena that look alike because they are foreign) but the protean diversity-and thus liberty-with which the same rites are practiced, the same language spoken, categories applied, myths retold. Symbols are the materials, not the channels of discourse. They can intend anything, or nothing.
Biblically, there are normative intentions for the critical symbols, but the appropriation of those intentions remains, as it must be, an act of choice and self-definition. Here is the heart of negative liberty as Biblically construed. When rabbinic law builds a formal structure of obligations from the Biblical mitzvot, it sharply differentiates aggadah, narrative lore, from halakha, prescriptive practice. Conformity is expected in matters of practice, even by those who hold a minority view. But the Biblical view itself is sacrosanct-even as radically alien a view as the claim that the creation of the world was a tragic accident and that things would have been better had the creation never taken place.
The positive institution that grows out of this intellectual liberty is critical inquiry-an informal institution, in the nature of the case. Moses is the model: “On several occasions,” as Ze’ev has pointed out, “Moses is described as having criticized the word of God, and instead of being punished, to have been followed by God.” Thus Moses was said to have criticized the idea that God should visit the sins of the fathers upon their offspring (Exodus 34:7, Numbers 14:18), arguing that communal accountability was at variance with individual moral responsibility (Deuteronomy 24:16). God’s response, according to the Midrash, was that Moses had become his teacher. Clearly, that was not always the case. But the Midrash vividly captures the dialectical structure of the Rabbinic legislative experience and the constructive potential of what I have called “chimneying” between the data of revelatory tradition and the dicta of independent and communal reasoning and experience.
The Biblical idea that human thinking can make demands even of God is as old as Abraham’s brief in behalf of the Cities of the Plain. It is not peripheral but central to Mosaic religious experience and thought. Thus Maimonides tells us that Moses, at the burning bush, sought argument from God, to validate his experience and authenticate his mission-and rightly so, Maimonides insists (Guide I 63). The demand for critical thinking, we note, is even graver for one who is not a Moses confronting God face to face, but the recipient of a tradition, claiming authority, whether divine or human, historical or exigent.
Negative liberty, as modeled in the Mosaic code, is not confined to intellectual freedom. It extends to the liberty of debtors to bar creditors from their homes. Indeed, the biblical law is that debtors may not be dunned for repayment (Exodus 22:24). Rabbinically this is taken to forbid not only seizing the debtor’s land or person to force repayment, but even embarrassing him. Indeed, a creditor who knows that his debtor is hard pressed may not even hint at a request for repayment, although debtors, for their part, are obliged to make repayment as their means allows and not put off their creditors with delaying tactics.
Negative liberty, once again, includes the stringent laws of evidence in criminal cases, which protect the rights of the accused. It includes protections of privacy like the presumption that a woman raped outside the town cried out for help (Deuteronomy 22;25). And, paramount among the protections of privacy, it includes the laws restricting sexual access by close kin (Leviticus 18). These establish negative liberties. But, like all negative liberties, they are valued because they allow the exercise of positive self-governance and self-direction and are intimately connected with concrete and particular goods, whether tangible or intangible.
John Rawls has figured the tensions between positive and negative liberties by way of a notion of lexical priorities. Positive liberties here become material goods, and negative liberties become matters of Kantian principle, which no rational person would willingly exchange for any such mere mess of pottage. But the lexical primacy Rawls presents is an ideal, and so is his rational chooser. For the chooser who exemplifies rational choice in Rawls’s argument is carefully protected from all material constraints in the way of ignorance and coercion and (somewhat inconsistently) hedged about as well by a veil of ignorance that allows the assignment of no value system and indeed not even an ontology to the model chooser, other than the core assumptions and desires that Rawls thinks to be so transparent as to be neutral: The model chooser wants goods, but has no particular attitudes about risk or honor, for example, and is presumed to be both able and eager to maximize those goods that are sought by keeping future choices maximally open. Given enough constraints on the idea of rationality, Rawls’s two basic rules-the lexical priority of (negative) liberty to material goods and the equalization of material goodsexcept in the interest of the least advantaged, follow trivially from his premise. But many individuals and some whole societies have chosen inequality for the chance of occasional greatness. And liberties, not being all of apiece, are often bartered and nibbled away for health, or wealth, or security.
What we need for real life, life beyond the veil of ignorance, is not a principle that assures us that truly rational men would never opt for inequality, on principle-as if to say that Aristotle was not a truly rational man because he defended the institution of slavery, at a risk to all, himself included, in the interest of leisure for a few and fulfillment for still fewer-or that truly rational women would never choose close scrutiny of their shoes (a patent violation of the customary rights of privacy) in exchange for a somewhat imperfect promise of heightened security in air travel. That settles nothing. What we need is a way of integrating positive with negative liberties, and that is not done by any mere formula. It needs a system, a culture in fact. For integrating values is one of the things that cultures do. The beginning of that integration, however, comes in the recognition that neither sort of liberty is worth much without the other.
Positive liberties without negative rights are idle. Negative liberties without positive rights are ineffectual. Morally, we need the reminder that liberties misspent are wasted. But that by itself does not make social policy. We need the liberal warnings as well, against usurpation of the ideals of autonomy and self-development by any agency-religious or secular, proletarian or commercial. What we need to recognize is that we cannot dispense with liberties of either sort. The government that does not protect both kinds of liberty is not fully doing its job.
Reintegrating Positive and Negative Liberties
Property, as Hayek saw, is a keystone of personal and civic liberty. Property rights cannot be violated without degrading civil rights, as Marx and Engels acknowledge. The telling story of Ahab’s expropriation of the vineyard of Naboth recognizes the same point. But the argument runs in two directions. Personal possessions are a vehicle of personal expression, a medium for the exercise of personal choices, a repository of the emblems of personal identity, and a means of individual and familial sustenance. To amerce the property of farmers or shopkeepers, to restrict the employment of workers, to restrain trade beyond what is called for by the common interest in safety, health, environmental integrity, and free trade itself, is to restrict civil rights. For our freedoms are invested in our latitude of social movement and are exercised, critically, by economic means.
Property and other material rights, for their part, are preserved and protected by civil rights. Our vote gives us recourse and renders public authorities accountable when public resources are expended or placed at risk. The free flow of information makes us aware when the public purse-or the commons-has been touched, and to what ends. The right of free assembly and petition for redress of grievances, or to run for office, or to join together in labor unions, credit leagues, clubs, cooperatives, and parties puts the cords of power in our hands or in our reach and enables us to guard or even direct the public activity that sets the stage and provides the milieu for our private efforts, in the economic sphere and in general. Hume thought it was self-evident that human beings would place their lives at the disposal of a hereditary monarch. But the Athenians, reliant on a citizen army, did not think so, and neither do we.
Both positive and negative liberties rest on economic foundations for their realization. Humane fulfillment requires education, rich and varied opportunities for cultural expression and experience. Positive liberties include the right to adequate health care, the right to an education that will allow intellectual development to the full extent of one’s potential. It includes such baseline or safety net rights as freedom from hunger, abject want, homelessness, and isolation. Hence the obligation to feed the hungry and clothe the naked and the linking of that obligation with the further command to free those who are held captive, not only by formally instituted slavery but by penury and injustice, as God Himself is heard to explain through the clear voice of Isaiah:
Is this the sort of fasting that I choose, a day of self-inflicted suffering, when men bow down their heads like rushes and spreadout sackcloth and ashes? Is that what you call a fast, a day to please the Lord? No. The fast I prefer is to loose the bonds of iniquity, unlash the yoke, let the downtrodden go free, and break every yoke, to distribute your bread to the hungry and take home the homeless poor; to clothe the naked when you see them, and not make yourself invisible to your own flesh and blood” (Isaiah 58:5-7; cf. Proverbs 25:21).
Rousseau, crying crocodile tears, titillates the sensibilities of his elegant audience, while teasing the pain of his less affluent readers, by telling them that oppression of the sort that he knew so well is inevitable and insuperable. The very moment a garden plot was enclosed, and law or right, force, or appeal to principle, were used to protect it from thieves of the two legged kind, man was inextricably enslaved: Law “which gave new fetters to the weak and new power to the rich irretrievably destroyed natural liberty, fixed forever the laws of property and inequality; changed artful usurpation into an irrevocable right; and for the benefit of a few ambitious individuals subjected the rest of mankind to perpetual labor, servitude, and misery.”
Rousseau’s tragic vision arises in a society that has no sabbaths, sabbaticals, or jubilee years, no free access to fruits and crops by passersby, no remission of loans or revulsion for debt slavery, no restriction on the taking of essentials of clothing or tools of production as collateral in pawn, no equation of charity with justice, or of equity with a modest sufficiency of land or goods, no existential right of personhood but only the proportioning of social influence to economic power and of that power itself to a legally entrenched authority that is oblivious to the Biblical demand (Deuteronomy 1:17) that faces not be recognized in justice. But, instructed in the Mosaic principles of human dignity, a Bahya will not succumb to such assumptions and can wonder out loud why a worker should be obsequious and flattering to his employer. Such subservience, by demeaning one’s own subjecthood, far from representing genuine humility, is a breach of the piety due to God, in which human dignity is invested.
Against the image of the noble savage, who “lives within himself Rousseau juxtaposes the image of a decadent society, violently at odds with the law of nature. For “it is evidently against the law of nature that children should command old men, and fools lead the wise, and that a handful should gorge themselves with superfluities, while the starving masses lack the barest necessities of life.” Indeed it is. We can understand why such conditions are violations of natural law and natural right when we consider that merits are vested in persons by virtue of their subjecthood, and in all beings by virtue of their claims.
No human should be homeless or hungry, naked or in terror. Indeed, none should be ignorant, diseased, or abandoned. How do we fund the remediation of such conditions without violating the integrity of the social fabric, invading the identity of the industrious or more fortunate, undermining the springs of individual initiative, creativity, and effort? The answer is threefold. I have sketched it in terms of the need to overcome three myths: The myth of the invisible hand, which flatters entrepreneurs with the notion that private vice is public virtue and denies the necessity of a safety net to sustain those whom fortune and the markets fail to sustain; the myth of the ever-normal pot, which flatters the needy with the hope that others will always be available to meet their needs-but ignores all questions about sustaining the resources requisite to that end; and the myth of the stone soup, which flatters regulators with the illusion that their own activities have no material costs and need contribute no material benefit to a society beyond the elitist benefit of prescribing the contributions of others.
But here I’d like to sketch out in somewhat more positive and more spiritual or intellectual terms the basis on which the funding of our (dare we call it prophetic) vision depends. It depends on the ethos, on the engagement and integration of individuals, and on the social dynamic:
On the ethos, as God’s words to Isaiah and through him to his immediate audience and posterity clearly announce when they command us not to make ourselves invisible to our own flesh and blood. Individualism and individuality are not enhanced but made pixilated, irritable, sterile, and caustic when they do not extend themselves through a bond of identification with the other, and, critically, with the stranger, who is, after all, flesh of our flesh, a fellow human, a fellow sufferer, capable of pleasure and joy, pain and thought, choice and hurt, growth and understanding, like ourselves.
On the engagement and integration of individuals, because the helpless need not always be helpless. They can often be empowered to contribute immensely to the social fabric that sustains them. Maimonides argues, with the Neoplatonic idea of emanation very much in mind, that the highest charity comes to life in enabling another to become self-sufficient. An outcome of that self- sufficiency, even as it is achieved, is the creation of a powerful economic engine that will empower and sustain others in turn.
A society rigidly divided, as Rousseau envisions, between luxuriant haves and desperate have nots can rarely overcome that division without the sort of desperate revolution that devours both its parents and its children. But an integrated society, where the other is recognized as one’s own flesh, where the poor are empowered and capitalized-and where they, for their part, can see a role and a path toward self-improvement-can lift itself by its bootstraps and raise the standard of living and the quality of life for all its members.
That is where the dynamic of social advance plays a powerful role. For economic growth and technological progress make possible the distribution of food, healthcare, education, and information on a scale not envisioned by a Rousseau, but clearly glimpsed by the ancient prophets, who promised an end to hunger and want, ignorance, and death itself, as a result of justice and mutual regard among human beings.