Fried: The boundaries of the self, the impositions of society

As a 4-year-old boy in 1939, Charles Fried escaped with his family from Czechoslovakia in advance of the Nazi invasion. It was his first lesson in the meaning of liberty.

Fried is now Beneficial Professor of Law at Harvard, where he has taught since 1961. The study of law has given Fried the occasion to investigate further where the boundaries of the self end and where the impositions of society and the state begin.

In a new book, published in November, Fried goes beyond John Stuart Mill’s 1859 treatise “On Liberty” to look at the subject through the lens of the 21st century. “Modern Liberty and the Limits of Government” is part of the “Issues of Our Time” series edited by Henry Louis Gates Jr., W.E.B. Du Bois Professor of the Humanities at Harvard.

Fried, aiming for accessibility, avoids adding to the intricacies of the legal definitions of personal liberty. He said he likes what a friend called the slender volume: “a book not for lawyers or academics but for human beings.”

“Modern Liberty” has met with dissent from the right because it acknowledges the social good that has arisen from some post-New Deal government programs. (Some conservative critics have called Fried “a faint-hearted” libertarian.)

The book has also drawn fire from the left. Fried’s notion of the “rock-bottom, indigestible fact of each person’s lonely individuality” sometimes conflicts with the socially attractive mechanisms of state-sponsored goodness.

“The greatest enemy of liberty has always been some vision of the good,” he writes. Pol Pot offered a rural idyll, he said, at the expense of slaughter. Hitler offered the dream of a racially pure state, at the same cost.

But to illustrate challenges to modern liberty, Fried does not turn to murderous regimes driven by “a good so surpassing that others must be bent to its pursuit.” Nor does he study the deficits of liberty in modern Iran or China or Cuba.

Instead, Fried poses “three gentle challenges” to liberty, based on real-life facts. They are not examples of social brutality, but impositions that in “modern, prosperous, democratic societies … offend against liberty.”

One is the 1977 Quebec Charter of the French Language, a law that required French to be the language of the province – and that also engendered a language police.

Another is Quebec’s version of Health Canada. In the interests of preserving equality, it flatly prohibits going outside the provincial system for supplementary medical services. (“Of all the ideals that compete with liberty,” writes Fried, “none is as powerful or as attractive as equality.”)

A third “gentle challenge” to liberty is a government-sponsored attempt to ban Wal-Mart and other big-box retailers from Vermont, based on aesthetics and assumptions about small-town economies. (In 2004, the National Trust for Historic Preservation put the whole state of Vermont on its list of most endangered historic places.)

Fried, his book, and his three examples all underwent gentle challenges during a Nov. 30 discussion sponsored by the Humanities Center at Harvard. A capacity crowd of 100 in the Barker Center’s Thompson Room listened as the Harvard law professor – a onetime U.S. solicitor general in the Reagan administration – summarized his book. Afterwards, four discussants offered their views, and a scattering of audience members confronted Fried with questions.

Liberty in the modern age is grounded in the beliefs, judgments, and choices that define the self – “that are ineluctably ours” – Fried told the audience.

From that sense of self-ownership, the book proceeds to the freedom of the mind; to the self-possession of our bodies (one chapter is titled “Sex”); and to the liberty of work, and ownership of what by working we create or appropriate.

In his presentation, Fried expressed a wish “to acknowledge, and even celebrate” the modern democratic state and the good it has done in making lives more humane and productive. “Only a crank,” he said of such a government, “would repudiate it.”

But Fried is offended by what has, or may, come next: the idea that the state has final sway over the individual too. The postmodernist challenge to liberty, he said, “is that liberty, like everything else, is socially constructed.”

Fried insisted that liberty is more than merely what’s left over after the modern state “has gotten through regulating our economic, intellectual, and affective lives.”

The “integrity and boldness” of Fried’s arguments, and the book’s “ringing maxims,” impressed discussant Philip Fisher, Harvard College Professor and Felice Crowl Reid Professor of English and American Literature.

And Fried’s stance on sex and liberty, he said, “is a humane, wise argument” that has relevance in today’s wars over the place of the state in matters of intimacy.

But a book that leaves out the depredations of Pol Pot and concentrates on Wal-Mart and other examples of “gentle” offenses to liberty perhaps “creates a missing middle ground in the argument,” said Fisher. There are more direct challenges to modern liberty, he said.

The examples Fried chose might have been better, agreed panel moderator and Acting Dean for the Humanities Diana Sorensen, James F. Rothenberg Professor of Romance Languages and Literatures and of Comparative Literature.

“The clarity of the argument,” she told Fried, “comes at the expense of the language of the examples.”

Robert Post, David Boles Professor of Law at Yale and this year a visiting professor at Harvard Law School, said that Fried had made “a beautiful book.” But the author mistakenly paints the state as “the main enemy,” said Post – “the ultimate repository of violence and coercion,” even if the results are as mild as a Wal-Mart in Vermont.

Instead, Post said that liberty and individuality depend on social controls, not state controls. Fried’s “nightmares” of state-mandated vistas in Vermont will be avoided, said Post, “so long as we keep some distinction between civil society and the state.”

Richard Tuck, Frank G. Thomson Professor of Government, called Fried’s latest work “a remarkably unlawyer-like book, a very passionate and personal work.”

But it includes “no clear account of the limits of the private sphere,” he said – the point at which the state has to draw back.

It’s not unreasonable, he said, that liberty of the individual may be restricted by the desires of the many. Put aside the example of a Wal-Mart in Vermont, said Tuck. Why not a glue factory in Harvard Square?

“Liberty,” said Tuck, “is not a free-floating value.”

Post summed up the evening – both its breadth and its lack of firm conclusions. “One writes a book like this to start a conversation,” he said, “like the one we’re having here.”