… is from pages 107-108 of the 2000 Liberty Fund edition of Frederic William Maitland’s 1875 dissertation at Trinity College, Cambridge, A Historical Sketch of Liberty and Equality (original emphasis):
But if we construe liberty into simpler terms, if liberty means absence of restraint, how shall we say that the citizen who is always out-voted in the National Assembly is more free than the subject of an absolute monarch? We are not asking whether democracy be good or bad, but simply whether it be a free government…. [“To live as one chooses”*] is at first sight a fair description of perfect freedom. But to live as the majority wishes, seems to imply that unless we all agree, some of us must be under restraint, must be without liberty.
The enthusiast for collective action will object with the observation that if Jones is free to live as he chooses without restraint, then Jones’s choices and actions will prevent Smith and Williams from enjoying the same freedom. As Maitland – one of the greatest historians of the common law ever to write – would note, this formulation of liberty is not meant to describe liberty for a single individual but for all individuals. Each of us should be free to choose as long as our freedom of choice does not violate the right of other individuals each to enjoy the same scope of freedom of choice.
That there are some difficult specific cases – for example: Does my legitimate ownership of a plot of land give me the right to erect a structure that blocks your view of the nearby shoreline? – is no reason to treat this formulation of the free-to-choose principle as unworkable or unrealistic. The vast majority of human interactions have no difficulty about them. I can be free to exercise my preference for vanilla ice cream over chocolate without interfering in any way with your freedom to exercise a different preference. Your freedom to offer your services as a faith healer (and people’s freedom to choose to patronize you) does not interfere with my freedom to offer my services as a scientifically trained physician (and people’s freedom to choose to patronize me). My freedom to buy lumber grown in, and automobiles assembled in, America does not interfere with your freedom to buy lumber grown in Canada and automobiles assembled in Japan. My freedom to inject heroin into my veins does not interfere with your freedom to not do so.
Similarly, the fact that some goods are “public” (especially if we take the existence, size, and functions of a polity as given and fixed) – and, hence, the reality that choices about these goods cannot be made individually – does not imply that choices about the vast majority of goods (which are not “public”) cannot or ought not be made individually. It’s true, for example, that this year’s budget for the police department of the town of Burgville cannot be one figure for Jones, a different figure for Smith, and yet a third figure for Williams. And it’s also true that, given this fact, some method of collective decision-making involving all the adult citizens of Burgville is desirable (with the specific method likely being majority rule). But the fact that in such situations majoritarian democracy is the best means of making decisions does not imply that making all or more decisions “democratically” is desirable. Jones, Smith, and Williams each might sensibly agree to abide by the results of a majoritarian election to decide on the size of this year’s police-department budget for Burgville, but the superiority of democracy for deciding on matters involving public goods does not mean that democracy is desirable for deciding on matters not involving public goods. There is, for example, no good reason for Jones, Smith, and Williams to have any say in what each other does peacefully in his or her bedroom and in his or her boardroom.
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* In the original text Maitland renders this quotation in Greek; the translation – “To live as one chooses” – appears in a footnote to the Greek quotation.
