FREE SPEECH SYMPOSIUM

FREEDOM AND LIBERAL

CIVILISATION
Without freedom of speech, would Facebook have been invented?

ife as a human being is not possible without

freedom to breathe, to eat, to move,
to speak, to cohabit. The lack of these
freedoms spells death. Human flourishing,
though, is not possible without further freedom
the freedom to choose, to disagree, to create, and
to trade. These are the cornerstones of modern
liberal civilisation.
The freedoms that we take for granted today
were unknown for most of the natural history of
the human race. Its seeds were sown in the Age of
Enlightenment in the seventeenth and eighteenth
centuries. In our tribal past, before the advantage
of trade was known, our ancestors denied the
right of other tribes to exist. In their struggle
for survival they killed outsiders and plundered
their resources.
Immanuel Kant wrote that freedom is the alone
unoriginated birthright of man, and belongs to
him by force of his humanity. Kants argument
for freedom as a birthright is founded on his
metaphysics of morality, which is unrelated to the
real world. In the real world, there are no birthrights,
only rights that are hard won and stoutly defended.
So my own arguments for freedom, like those of
David Hume, Adam Smith, Jeremy Bentham,
J. S. Mill, and F. A. Hayek, are not metaphysical
but empirical and practical. In other words, they
are consequentialist arguments.
The empirical case for freedom is that freedom
made our civilisation possible. This is the civilisation
that has rescued billions of people from poverty and
made life on earth easier than our ancestors could
possibly have imagined.

three attributes distinguish the present liberal

civilisation from those of the past. The first feature
is openness. In liberal democratic systems, every
individual enjoys abstract legal equality. Society
is not divided by birth or by force into men
and women, masters and slaves, patricians and
plebeians, aristocrats and commoners, high caste
and low caste. Material equality is unachievable,
but in liberal civilisation persons have the legal
capacity and practical opportunities to overcome
social and economic barriers through their own
endeavours. There is not one past civilisation in
which large sections of the population were not
legally enslaved. The great cities and monuments of
the ancient civilisations were built with slave labour.
This was true even of the much admired Athenian
democracy and the Roman Republic; true even of
pre-revolution Europe and America. Even free men
and women were divided by social hierarchy and
restraints of trade.
The second distinguishing mark of liberal
civilisation is what the economist Deepak Lai
called Promethean growth. Past civilisations
achieved extensive growth partly through conquest.
Extensive growth, as economists understand it, is
the increase of output by increasing
input. Promethean growth is
intensive. Typically it represents
increased output from existing or
lower input. Agriculture provides
a classic illustration. In traditional
agriculture, food production was
increased by cultivating more land.

Civilisations Past and Present

Suri Ratnapala is emeritus professor of law at the

Modern civilisation would not have been possible

without the achievements of the past. However,

University of Queensland.

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When all cultivable land is tilled, there is no capacity

for further output. This model of growth persuaded
George Malthus to predict in 1798 that population
growth will eventually outpace agricultural growth
and lead to human catastrophe. It did not happen
because agriculture by achieving intensive growth
outpaced population.
The third feature of our civilisation is the
compassion we show for those members of society
less fortunate than ourselves. It is not that human
nature has changed but that our wealth has increased
to the point that we can show concern not only to
our near and dear but also to strangers that we have
never met.

It was a sin in Galileos time to question

the belief that the Earth was the center of
the universe.
Freedom and the Growth
and Use of Knowledge
Civilisation is built on knowledge. There are two
kinds of knowledge particularly important to our
civilisation. One kind is scientific knowledge, by
which I mean knowledge of how the world works
and how to do things. The other is knowledge
peculiar to time and place no single mind or
authority can command.
As Karl Popper demonstrated, scientific
knowledge grows not by beliefs in essences but by
bold conjectures and rigorous attempts at refutation.
He wrote in Conjectures and Refutations: The Growth
o f Scientific Knowledge (1963):
Within this rationalist tradition science
is valued, admittedly, for its practical
achievements; but it is even more highly
valued for its informative content, and for
its ability to free our minds from old beliefs,
old prejudices, and old certainties, and to
offer us in their stead new conjectures and
daring hypotheses. Science is valued for its
liberalizing influence as one of the greatest
of the forces that make for human freedom.
Conversely, science is impossible without human
freedom. Copernicus, Galileo, Newton, and Darwin

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advanced science in defiance of authority and public

opinion. Galileo paid a heavy price for his views.
It was a sin in Galileos time to question the belief
that the Earth was the center of the universe. If the
censors prevailed, there would be no long-distance
telephone calls, no radio, no TV, not to mention
spacecraft, electronic commerce, and social media
such as Facebook and Twitter. There would also not
be the technology that has saved millions of people
from death by disease and starvation. Today we are
told that the science concerning anthropogenic
climate change is settled. Science by definition
is never settled. In Australia, where research is
almost wholly funded by government, projects that
question the so-called settled science, the economics
or the law concerning climate policy, are starved of
resources. I cannot help imagining Galileo stirring
in his grave.
Today we are also told that we must not offend
believers by criticising their religion, even when the
religion claims to be the one right way to organise
society and the behaviour of its members. A religion
is a theory about the good life, the kind of social
order that we all ought to have. Criticism of this
theory will almost certainly offend the faithful just
as the theories of Galileo, Copernicus, Newton,
and Darwin offended some Christians in the past.
Today, in the liberal democratic world, there is no
censorship of offensive speech except in Australia.
There is another kind of knowledge indispensable
to liberal civilisation. It is knowledge that is
dispersed among millions of persons which no
government or economic planner can command.
It is the knowledge peculiar to time and place, of
individual preferences and of the value that persons
attach to things. As F. A. Hayek explained in his
classic essay The Use of Knowledge in Society,
the harnessing of this knowledge is the principal
problem that a rational economic order must solve.
The problem draws different responses. The
pretence of knowledge is one response. Government
claims to know what citizens, need, want, prefer,
and value. Therefore it can rationally allocate
burdens and benefits to make everyone happy. In
other words, the problem can be mathematically
solved by a central planner who is assumed to know
the needs, wants, and circumstances of everyone.
Alternatively, and this is the more plausible premise,

SURI RATNAPALA

it is claimed that the government knows what is

good for everyone so that individual preferences
are irrelevant. This approach has been tried and
tested with dismal results in communist and hybrid
socialist countries. Collective happiness (if there is
such a thing) turned to collective misery.
The other approach is what Adam Smith
revealed in An Inquiry into the Nature and Causes
o f the Wealth o f Nations. Let the planning be done
by each individual in the pursuit of their own ends.
Allow them to use the information that they alone
possess to improve their lives through voluntary
exchange. Prices will be fixed and resources directed
not by a central planner but by the daily choices
of individuals. It is this system of exchange that
created the wealth that we now take for granted.
This system was impossible without freedom the
freedom to choose, to express, to trade, and to hold
property. As Hayek wrote in The Constitution o f
Liberty, the case for individual freedom rests chiefly
on the recognition of the inevitable and universal
ignorance of all of us concerning a great many of
the factors on which the achievement of our ends
and welfare depend.
Freedom and Rights
It is a common mistake to think that the more
rights we have, the more freedom we enjoy. Rights
are important not for their own sake but because
they are indispensable to our freedom to live as we
choose. Some rights are essential to secure freedom
such as the right not to be murdered or robbed or
imprisoned without just cause or to be deprived of
property without consent. There are some other
rights that can be created only at serious cost to
freedom. We owe to the American jurist Wesley
Newcomb Hohfeld, the clearest explanation of the
legal relation between liberty and right.*
Freedom-. There are two kinds of freedom that
a human being can enjoy. One kind is physical
liberty, the capacity to live and to act subject only
to the laws of nature. The other kind is the liberty
from coercion by the state or any person without
just cause. Unlike Robinson Crusoe in Daniel

Defoes novel, most of us live in a social world

where unrestricted enjoyment of physical freedom
by one person can harm the physical freedom of
others. This is why societies have rules concerning
right and wrong conduct. These rules operate by
creating duties on persons and correlative rights in
others. As Hohfeld pointed out, a person has a right
because someone else has a duty that correlates to it.
Two kinds o f rights: There are two kinds of rights:
rights derived from rules of conduct and rights to
benefits created by legislation. The first kind has
ancient roots. They are based on customary rules
of conduct that grew insensibly out of experience
and became the common law of the land. These are
the rules that made social life possible. As Hayek
pointed out, they are general, end-independent,
and impersonal. In our society we know them as the
laws of crime, tort, and contract. Some of these rules
of conduct have been legislatively supplemented or
modified to suit the changing world. There have
been many salutary reforms in the field of private
law and criminal law. Rights that flow from this
kind of legislation enacting general rules of conduct
bear the same character as the rights under common
law. Unfortunately, from time to time, misguided
legislative changes to general laws seriously erode
common law freedoms on which our civilisation has
grown. Section 18C of the Racial Discrimination
Act, which outlaws acts that offend groups of
people, is a startling instance.

It is a common mistake to think that the

more rights we have, the more freedom
we enjoy.
We also have certain common law rights against
the government, such as the most fundamental of
rules that our rights cannot be restricted without
the authority of law, that law can be created only
with the consent of our representatives, or that we
must not be punished except by conviction after failtrial. Today, we take these rights for granted. They
form the structure of our social order. We do not

* Hohfeld, W. N. "Some fundam ental legal conceptions as applied in judicial reasoning." Yale Law Journal, 23:16 (1913),
28-59.

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notice them very often because most people most of

the time instinctively respect and observe the rules
that give rise to them. If they didnt, we will not
have society but anarchy or tyranny.
The perennial problem is that rights dependent
on common law or custom are ever susceptible
to destruction by rulers when they stand in the
way of their ambitions. In liberal democracies,
these tendencies have been held in check by
formal and informal constitutional devices,
representative democracy, and a culturel of political
restraint. Australia has maintained an enviable
reputation for respecting these rights without a
national bill of rights although there is persistent
debate on whether they ought to receive greater
constitutional protection.

Rights to specific benefits can only be

granted by government at the expense
of rights derived from general laws that
safeguard liberty.
The second kind, the rights to specific benefits,
can only be created by deliberate legislative acts.
General rules of conduct cannot assure specific
material outcomes. Contract law does not guarantee
that the parties will always profit from a contract.
Criminal law protects life, liberty, and property
but what you make of your life and assets depends
on your own choices, actions, and circumstances.
In contrast, legislation can make direct transfers
or rearrange economic relations between parties.
Parliament may directly create benefits by creating
tax exemptions, subsidies to industry, or pensions
of various sorts. It can, through tribunals, fix wages
and modify private contracts. The Commonwealth
Parliament has compulsorily acquired private houses
without just compensation and given them to other
persons (Pye v Renshaw [1951] 84 CLR 382).
Legislation can impose price and quality controls
and in countless other ways make allocations and
deprivations.

** The Economist, January 31-February 6. 2015.

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It is also not hard to see that rights to specific

benefits can only be granted by government at
the expense of rights derived from general laws
that safeguard liberty. State regulation of wages
and prices, for example, limits the common law
freedom of contract. Laws that over-regulate
property use without just compensation for loss of
value and livelihood depart from the general law
of real property and more importantly offend the
common law presumption against takings without
offering just compensation. (The Commonwealth
Constitution prohibits uncompensated takings
by the federal government but not by the states.)
Affirmative action programs designed to benefit
particular groups may discriminate against the
poor members of other groups. The burdens of tax
exemptions and subsidies for particular groups are
borne by other groups. It is reported by The Economist
that in the U.S. four times as much money goes to
the wealthiest 20 percent of Americans in mortgage
interest deductions than is spent on housing for the
poorest fifth."
The True and False Arguments
for Limiting Freedom
The true argument for limiting freedom is that
absolute freedom is impossible. If we have freedom
to drive on the streets in any way we wish, no
one will be free to drive. This kind of limitation
is inherent in the idea of freedom in society. The
law of negligence by limiting my freedom to act
irresponsibly enhances the freedom of all.
The false argument for limiting freedom goes
like this. Legal freedom is valueless to a person
who lacks the means to partake of it. Therefore
we can only grant freedom to them by providing
material resources. The only way to assure everyone
the wherewithal for enjoying freedom is by the
coercive redistribution of wealth. This requires
government imposed limits on individual freedom.
The system will produce winners and losers
but collective happiness, whatever that means,
will increase.

SURI RATNAPALA

History has consistently falsified this theory.

The system has failed wherever it has been trialled.
The limits on freedom designed for distributive
ends are different from the inherent limits of
freedom derived from the general rules of justice.
They are arbitrary impositions based on the pretence
of knowledge.
There are countless lawful aspirations that are
beyond the reach of most individuals. A person
can hardly complain about the inability to enjoy
the finer things in life. But what about the most
basic resources that allow a person to live in safety
and dignity? If a person does not have the means
to buy food, shelter, and other necessities of life,
that persons liberty though legally intact may be
practically hollow. How does liberal civilisation
address this challenge? By reaffirming its own
principles.
The greatest human catastrophes tend to happen
in countries where people are unfree. India has
coped with natural disasters much better than
Africa. India is not rich by Western standards.
Its democracy is imperfect and its governments
are ponderous. Yet India has certain priceless
assets that the African nations lacked. India has
parliamentary democracy and a legal system that
by and large secures individual freedom. The
Indian Constitution also has established a common
market within which goods can move (however
laboriously) to places where they are most in

need. It was not always so. The Bengal Famine

of 1770 cost the lives of 10 million peasants. The
country at the time was governed by the British
East India Company which was responsible only
to its shareholders. Its pursuit of profits through
predatory taxation of crops and the monopolisation
of the grain trade contributed heavily to the onset
of the famine.

The material conditions necessary to

enjoy freedom grow with freedom itself.

My concluding point is that the material

conditions necessary to enjoy freedom grow with
freedom itself. Freedom creates its own means
of enjoyment. Two respected annual surveys of
economic freedom show a persistent correlation
between freedom and prosperity: the Index of
Economic Freedom published by the Heritage
Foundation and the Economic Freedom of the
World report published by the Fraser Institute.
Even in the most affluent societies, there are persons
who need material assistance because of factors
such as age, disability, or other personal misfortune.
However, a societys capacity to provide a generalised
safety net is enhanced not by limiting freedom but
by its enlargement.

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