Judge Learned Hand and Liberalism

Judge Learned Hand and Liberalism

“Judge Learned Hand” reads like a Zen koan or something, but he was in fact an American judge, who has been “quoted more often by legal scholars and by the Supreme Court of the United States than any other lower-court judge“. Yes, that is (most of) his real name – the full version is Billings Learned Hand.

His Wikipedia page (linked above) makes for fascinating reading, but if you leave this post wanting to know more about his thinking, I’d encourage you to read Jerome Frank’s 1957 article titled Some reflections on Judge Learned Hand (pdf).

The aspect of his thinking that I want to briefly discuss here is about what liberalism meant to him, and what it means to me. In 1944, Hand gave a speech titled “The Spirit of Liberty” to a gathering of around 1.5 million people in Central Park, NY, many of them newly-naturalised citizens.

You can – and indeed should – read the full speech. The portion of it I want to address goes as follows:

What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.

The first point to highlight is his emphasis on personal responsibility. Of course we need the law and things like constitutions to protect our liberty, and that liberty withers when the rule of law fails, or when the powerful or politically-connected get special treatment.

But the liberalism that I aspire to practice and to promote is about more than just freedom from coercion or harm by others – it’s also about enabling the conditions by which everyone has the best chance of flourishing on their own terms.

That isn’t a controversial definition, but I emphasise the latter clause because there is much we can do that isn’t necessarily (or routinely) in the domain of law at all. We can treat people with more or less respect. We can be less or more empathetic, or charitable in our interactions. We can choose endless sniping and negativity on Twitter, or we can try to understand that differences of opinion don’t always require that you try to humiliate your opponent, or demonstrate your superior virtue.

In summary, there are character traits which promote communication and community, and while you’re of course free to not be part of any community, the one I’m talking about is the community of reason, where more people are likely to join – and perhaps end up converging on common sense – if it’s less of a battleground and more of a conversation.

The second point I want to highlight is his explicit reminder that strengthening liberty is a collective action problem of sorts, and that a self-absorbed libertarianattitude can threaten our (collective) progress towards that goal.

We are not born equal – at least not in the sense of having equal access to the resources needed to flourish on our own terms. Unless we actively interfere with the prevailing balances of various powers, we’ll remain that way.

Asking everyone to pull themselves up by their bootstraps will reliably lead to some having more freedom than others, and the “some” that have less are always going to include the same people – namely whomever it is that has been the victim of historical prejudice, for example people who are not men, and/or who are not white.

Another interesting aspect of his point that “freedom to do as one likes” can lead to liberty’s overthrow is how strongly it echoes Karl Popper’s “paradox of tolerance”. Popper argued that if we tolerate absolutely anything, society’s ability to be tolerant will eventually be stripped away by the intolerant.

For example, tolerating fascist tendencies in a leader or governing party could eventually lead to them banning all news organisations that publish “dissident” views, or forcing internet service providers to report on who visits which news sources. As Popper says, “in order to maintain a tolerant society, the society must be intolerant of intolerance”.

The paradox comes from Popper’s 1945 book, The Open Society and its Enemies, while Learned Hand gave his speech in 1944. I haven’t been able to establish whether they knew each other or not, but it’s interesting to wonder if they did, or if they had a common network of some sort. Popper is widely credited with this idea, but it might well be that Hand was ahead of him in expressing it.

But more to the point, and in conclusion: these are both people who had witnessed fascism first-hand, and had seen what a genuine and systemic absence of freedom looks like, in Nazi Germany for one, but also in places like Russia and Spain.

I worry that there are too few people around today, especially in positions of leadership or political influence, who still remember the lessons Hand and Popper had painfully learned.

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