Positive Liberty and Legal Guarantees

We often equate freedom with an absence of constraints, impediments, or interference. For instance, you have free speech when no one stops you from speaking your mind. Philosophers call this idea of liberty negative liberty.

Marxists have complained that negative liberties, by themselves, are worth little. Negative liberty, Marxists say, is the freedom to be poor, to be unemployed, and to sleep under bridges. Liberty is valuable only if people have the financial and social means to exercise it. Alternatively, some Marxists see liberty as the effective power, capacity, or ability to do what one wills. We can call this conception of liberty positive liberty. For example, a bird has the positive liberty to fly, but human beings do not. (As I mentioned in a previous post, commonsense English speakers think of liberty both in positive and negative terms. Some people pound the table and insist only negative liberty is liberty, and I’ll respond to this claim, and the thin arguments meant to support it, later this week.) 

Many laypeople and philosophers who lack training in the social sciences conclude that to guarantee people will be free in the positive sense, citizens need legal guarantees that they will be supplied with adequate resources.

I believe both negative liberty and positive liberty, so defined, are morally important. It matters that people are not subject to continued wrongful interference, from each other or from the state. It also matters that people have the effective means to exercise their wills, to do as they please (provided they do not violate other citizens’ rights), and to lead their conceptions of the good life.

Negative liberty matters in part because, historically, protecting negative liberties has been the most important and effective way of promoting positive liberty. Due to economic, cultural, and scientific growth, a typical citizen of a Western nation today enjoys far more positive liberty than a medieval king. This growth did not occur because a government declared or legally guaranteed that it would occur. It occurred because Western countries adopted a good set of background institutions, among the most important being the rule of law. The rule of law provides a framework that encourages experimentation and entrepreneurship. Societies that protect property rights tend to achieve prosperity; societies that do not always fail. Cultures of tolerance and openness to change lead to more prosperity than do closed, intolerant cultures. Overall, societies succeed in promoting positive liberty when they create institutional frameworks–such as open and competitive markets­–where the best shot individuals have at leading good lives is to live and work in ways that are good for their neighbors, partners, and customers, too. These institutions don’t guarantee progress, but nothing does, so guarantees are beside the point. This is one of the main theses of my book with David Schmidtz.

Saying that positive liberty is a valuable species of the genus liberty tells us nothing about what the government should do. Settling on a definition of liberty cannot settle a government’s proper role as protector or promoter of particular liberties.

One reason that settling on a definition of liberty doesn’t tell us what government should do is that even if X is a valuable species of liberty, it might not be something that other people owe me. Unlike certain billionaires, I lack the (positive) liberty to fly to outer space. I’d love to do some space tourism. But even though the rest of you could pony up $10 million or so to get me on a Russian rocket, I don’t have any legitimate grounds for complaint when you choose not to do so.

Another reason why settling on a definition of liberty doesn’t tell us what government should do is that it’s often an empirical question whether government can be effective at promoting liberty so defined. We must instead examine historical, sociological, and economic evidence to see what actually happens when people rely on any institution, including a government, to play a given role.

Do we want government to issue legal guarantees that we will all enjoy positive liberty? It depends on what happens when government issues guarantees. There is a difference between guaranteeing as rendering inevitable (as when an economist says quadrupling the minimum wage would guarantee rising unemployment) versus guaranteeing as expressing a firm intention or issuing a legal declaration. Clearly, guaranteeing something in the latter sense is no real guarantee.

For instance, imagine a world haunted by an evil demon. In this world, whenever a government provides a legal guarantee that citizens will achieve some goal, the demon intervenes and prevents the goal from being achieved. In this imaginary world, if you wanted to achieve goals, you wouldn’t want government to issue legal guarantees. You’d have to find some other way of achieving those goals.

Now, we don’t live in a world haunted by evil demons. But there are things in our world that function much like my imaginary demon. Plenty of factors in this world can and do disrupt, corrupt, or pervert legal guarantees. Legal guarantees are good only when they work. If we give government the power to promote some valuable end, there’s no guarantee that those in power will be able to exercise it competently, and thus succeed in promoting that end. There’s also no guarantee that the people in government will use that power for the intended end, rather than for some private purposes of their own.

I once heard some law students say, “This goal of social justice is so important that even if we need something like a KGB to achieve it, so be it. We’ll just have to make sure the right people run the KGB.” But there is no such thing as making sure that the right people run the KGB. People who gravitate toward KGB jobs do so for reasons of their own. Philosophers don’t get to stipulate that their reasons are noble. The same goes for any other institution.*

Despite the lack of guarantees, history may well reveal that respecting negative liberties has a long, successful, non-accidental track record of making for better lives. In any case, we won’t settle any debate about what negative liberty does for people by conceptual analysis alone. We need to investigate what happens to people when negative liberties are reasonably secure, and what happens when they are not. 

Note: If you're a trained economist or political scientist, you might think my argument here is pretty obvious. Nevertheless, many laypeople, and my fellow philosophers frequently make the mistake I diagnose here. One man's "duh!" is another man's "Hmmm…"

*Unless you are doing “ideal theory”, in which case yes, you can stipulate that people have noble goals. But then you need to make sure that just because a set of institutions works well under “ideal” conditions, you don’t assume that they will work at all under realistic conditions.


Published on:
Author: Jason Brennan
  • A. Young Libertarian

    If I understand this correctly, I think it’s really great.

    Is it fair to sum your argument like this:

    Both positive and negative liberty should be important for the libertarian. Using what we know of economics, political science and history, we can recognize that by securing ‘negative liberty’ we give rise the conditions that will allow a flourishing positive liberty.

  • Should the government invent and enforce patent rights and trademark rights?

  • There is no effective infringement on the negative liberty of Somalians to bear arms and to commit piracy. Is this a problem? If it is, who should solve it?

  • I think it is an issue of providing as many negative liberties as possible, and carefully using the ability to promote positive liberties. With positive liberties, a society can get to believe they are owed all kinds of “rights.” Look at Greece right now, where people are protesting because they insist on maintaining the right of full government retirement at age 50! Yet to continue in this vein is bankrupting the nation. While a positive liberty in small amounts, welfare of such a level harms both the character and stability of a nation.

    I do agree with the concerns of how do we know we are implementing a system with “good KGB” or a philosopher king. Just look at our current TSA system. Does anyone really think that the naked scans and gropes are really protecting us better than focused profiling would?

    Great analysis of the issue. It will be interesting to discover how far we can go into positive liberty without becoming libertine about it.

  • Jason Brennan


    I don’t have any practical proposals for dealing with Somali pirates. (I also don’t know whether government should invent and enforce patent rights.) But you do raise a conceptual issue that I’d like to comment on.

    Since I’m willing to use “liberty” is a broad way, I’m willing to say the following:
    1. I have the right (understood as a negative liberty) to life.
    2. As a result of 1, everyone has less liberty in one important sense–they are not at liberty to kill me. Since the government protects my right to life, other people lose the negative liberty to kill me (they can expect interference if they try to kill me).

    A woman’s right not be be raped impedes the rapist’s liberty to rape. One liberty comes at the expense of another.

    Some people find this way of talking bizarre, but I don’t. I think the difference is that some negative liberties are good and owed to people as a matter of justice, whereas other liberties are bad and forbidden as a matter of justice. So the rapist’s liberty to rape is bad, while the woman’s liberty not to be raped is good, etc.

    When talking about negative liberty, I don’t start with the assumption that liberty is good.

    I start with the broad idea that negative liberty is the absence of interference. Some kinds of interference are good, and some are not. Interfering with would be rapists is a good thing because it limits their (bad) liberty on behalf of women’s (good) liberty.

  • “Many laypeople and philosophers who lack training in the social sciences conclude that to guarantee people will be free in the positive sense, citizens need legal guarantees that they will be supplied with adequate resources.”

    This is a very important point. Many welfare liberals seem to believe that the government’s decreeing some desired result is equivalent to its achieving it.

    The fallacy becomes evident when we take a comparative approach and ask: given an end, what are the best means to achieve it? A good tactic for libertarians is to always bring the conversation back to discussing means and ends.

  • Dan Kervick

    As a bit of an outsider to this conversation, I have to ask where exactly is the “libertarianism” in all of this discussion of liberty. So far, the discussion has raised questions about various kinds of liberty, and whether they are or are not good things.

    The thing is, lots of non-libertarians can agree about either the instrumental or non-instrumental goodness of a broad class of liberties, and yet reach very different conclusions about public policy and the constitution of government, because they regard liberties as only one kind of good among many that have to be sought.

    As a social democrat, I am very happy when the discussion is confined to a broadly consequentialist considerations about the means to the production or preservation of various goods – including liberties. Because then it just comes down to a tractable combination of empirical and theoretical arguments about whether and to what extent various kinds of markets, operating under various conditions of regulation or absence of regulation, produce the goods we want, and in what quantities and distributions.

  • Jason,

    So, justice and liberty could conflict, and need to be balanced against each other?

    To the usual libertarian “taxation is theft” (perhaps except for defence purposes), the answer then could be that the demands of justice may interfere with the abrogation of liberty that is taxation?


  • When the state provides resources to the poor, granting them the positive liberty to eat and have a roof over their heads, this has the side effect of preserving some liberty for the rich. How so?

    Imagine the state provided no help to the poor. How long do you think it would be before the poor came after the rich with torches and pitchforks? And they wouldn’t be dissuaded with assurances that the free market is doing for them the best that can be expected.

    Sure, the rich would hire security guards, and live behind walls, and travel in armored limos. And some already do. That’s a nicely-gilded cage, but it’s still a cage–a restriction of liberty. And at some point, it becomes a greater restriction of liberty than just paying some taxes to support poverty-alleviation programs.

    If the richest want to be seen as something other than the fattest prey, then they have a stake in funding a government that protects them. And funding a minimally decent life for the poor is probably more efficient protection than the alternatives.

  • All one has to do is to cop on. fianna fail told its voters that jobs were guranteed in a particular section of our socitey, yet god jesus or allah never gave us that one. If they did in ireland who would believe them, only the highest paid state workers in the world. Bertie ahem will never cough up his phlegm or pensionsssssss to right his wrongs. So while businesses that were great in ireland for 50 years fall to other peoples borrowing the biggest criers are still the state WORKERS 

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