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Liberty by the Law: Person, State, and Boundaries of Enforcement by Daria Fedotova

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Liberty by the Law: Person, State, and Boundaries of Enforcement

While leftists focus on equality, the Right often talks about freedom. It can be an elusive concept, depending mainly on the individual’s worldview. Moreover, it has to be reconciled with the traditionally conservative idea of law and order, which is not as hard as it may seem. Liberty is impossible without these values; it is not a privilege to be demanded or some intrinsic feature of mankind, but a result of a complex, delicate, and mutually respectful relationship between a person and a state, the ultimate wielder of force.

Western political philosophy focuses on inherent features of man, and so Europeans were able to build a system which recognises and respects them. It is arguably the best system in the world, which is evidenced by the success of the countries that adopted it. It safeguards everything we value, and we should do everything to preserve it.

But success only proves that Western system is efficient and desirable, not that it is based on objective truth. There is no such thing as an intrinsic right of man. There is no right that exists without it being recognised by all parties involved and without force to back it up. It is, in other words, a fiction that people may or may not choose to treat as real. Human rights as proclaimed by the West are of little solace to a Chinese political prisoner or to an Afghan woman. Moreover, even our own lockdown restrictions were questionable at best in that regard.

It is good for us to understand liberty as an intrinsic right and construct our laws accordingly—this illusion has given us a priceless advantage. But it can only exist if supported by cultural heritage, strong economy and armed forces, never on its own.

Western culture is unique in its understanding of individualism, the greatest gift of the ancient Greeks and the cornerstone of personal freedom. There is a remarkable quote by Rudyard Kipling (sometimes falsely attributed to Nietzsche, probably due to the similar ideas that he expressed in his works):

The individual has always had to struggle to keep from being overwhelmed by the tribe. To be your own man is hard business. If you try it, you will be lonely often, and sometimes frightened. But no price is too high to pay for the privilege of owning yourself.

The word “owning” is not used at random. If there are any rights that are understood intuitively, ones truly natural, those are the rights of property. It is something that unites a child who claims a toy, a family that buys a house, and a billionaire who reviews his assets. In western legal systems, principal property rights include possession, control, exclusion, and disposition, as well as the right to income derived from one’s property. In other words, the owner can use it in any way he sees fit, alter it, give it away, or destroy it, as long as his actions do not cause harm to the property of another. Human life is a property too, and it belongs to the person in question.

Every man owns his time, his thoughts, and, yes, his body. The latter has long been a controversial point for many conservatives, though COVID-19 mandatory measures shifted their opinions on the matter somewhat towards bodily autonomy. However, one’s views must be consistent, and one’s principles must be clear. Governments do not own their citizens; communities do not own their members; families do not own their loved ones. People choose to build connections, and so they should in order to live a fulfilling life—but the decisions they make are always theirs, both right and wrong. Each of us chooses how to act and lives with the consequences of these actions. It may well be that one will bring upon himself ruin and misery; He may suffer and cause distress to those who care about him. But the risk of perpetual mistakes is the price of freedom. 

Since we all live among others, the scope of our actions is limited by the boundaries marking our neighbour’s property. The nature of these limitations is defined by the purpose of society: security and cooperation. It is easier for us to protect against the world’s many dangers and magnify our efficiency by working together, but it can only be possible if this organisation is not subverted from the inside. Thus, every set of laws known to us, from the Code of Hammurabi to modern criminal legislation, prohibits stealing and assaults. This common sense is often reinforced by morality and religion, the best survival strategy that has allowed the human race to grow and prosper. As societies became more complicated, so did their laws, but their core, their raison d’être, remained unchanged. The difference between the West and other cultures is that the former places a special emphasis on protecting the interests of individuals rather than groups. Cooperation is, therefore, an option, not a duty—with a few exceptions, reasonably imposed by governments.

States wield the centralised power necessary to protect their citizens and ensure freedom within the legal framework. Interaction between the two rests upon a simple premise: the state must protect its people and their property, while citizens have to provide it with the resources necessary to do so. Neither side should demand anything more than that; concerns outside of these must be left to choice. A man can be forced to pay taxes and respect the courts, but not to be kind, honest, and patriotic. The state, in turn, has to provide security and settle disputes; the rest is a matter of general agreement and goodwill.

There is, of course, much more to the relationship between a people and their country. It is supposed to give them a sense of belonging, evoke their pride and affection, and inspire courage. Leaders should serve as role models, advise the nation, and work to preserve its heritage while gently incorporating new discoveries into its fabric. However, the blunt and simplistic description above helps answer one particular question: when is it acceptable to use force?

The efficient application of violence is the primary reason for the state’s existence. It is also the last resort, a countermeasure against the violence of other parties, be it criminals within or enemies without. Given that, a lawmaker should be careful not to infringe upon the property of an individual unless the property of another or of the state itself is in danger. It should also be remembered that whatever an individual does to himself through his own free will, whether by his own hand or through an agreement with someone else, is his own business. 

A common argument against this approach is that by allowing one to harm himself freely, the state facilitates unnecessary suffering of those close to him and causes moral degradation of his community. It is indeed so. However, this problem should be examined further. 

Friends and relatives are united by mutual affection, and if this is not enough to stop an individual from making a harmful choice, then there are problems deeper than law enforcement can—or should—solve. As for morality, nothing is better suited to illustrate the definition of a slippery slope than policing human vices. We are not happy about the Twitter mob pressuring governments to deny freedom of speech. They, in turn, do not accept traditional norms around marriage and sexuality. Who is to decide which side gets to enforce its views upon everyone else? Is it to be left to a popular vote? Are we ready to entrust easily swayed strangers with something as integral to our personality as our moral code? A monarch may be wise or foolish. An aristocratic government may be just or corrupt. But democratic votes are sure to follow irrational passions that are at least as likely to destroy freedom as they are to protect it.

If liberty is understood as a right, there must be corresponding duties. First, every man must defend his right by upholding the rule of law to the best of his ability and providing the state with the resources it needs to protect him. Second, he must bear responsibility for every free choice he makes and be prepared to face the consequences on his own. Nothing more can be demanded.

Some conservatives criticise individualism for its selfishness, its destructive effect on communities, and the loneliness it causes. But those are not, in fact, inherent features. Those are options one may choose, and it does not seem fair to deny that option to him. An individual may also be noble and generous, loyal and brave, loving and full of aspirations. And while he cannot be forced into happiness, he can be persuaded to pick a fulfilling path rather than an empty one.

Individualism and personal freedoms are treasures of the Western world. They are the basis of dignity, creativity, endeavour, and enterprise. Without them, our civilisation would not have achieved the incredible heights we can now be proud of. They also are, and always will be, our best defence against an invasion of collectivism.

Daria Fedotova is a lawyer and writer based in Ukraine.