A Quentin Skinner Approach to Liberty 1

According to the essential philosopher and historian Quentin Skinner the concept of liberty, long before it was reframed in modern liberal discourse, was grounded in Roman legal theory and elaborated in medieval and early modern jurisprudence. Drawing on his insights it seems much is gained were we to return to an older conception of liberty than the one currently domianting poltical discourse in America and elsewhere.

In the Roman Digest of Justinian, the foundational legal compilation of late antiquity, persons were classified according to their legal status, as liberi (free), servi (slaves), or in a dependent condition (non sui iuris, literally “not of one’s own law” or not legally self-governing). Liberty was defined not as the absence of interference, but as a status: the condition of not being subject to the arbitrary will or dominium of another. Dominium referred both to the power of ownership over property and to political subjection. A slave was not merely someone whose actions were constrained, but someone who was the property of another, wholly incorporated into the master’s will.

The Roman jurists captured this in stark terms: Servitus est constitutio iuris gentium qua quis dominio alieno subicitur contra naturam, “Slavery is an institution of the law of nations by which someone is subjected to another’s control, against nature.” A liber homo, or free person, was defined not by what they could do, but by what they were not: they were not owned, not dominated, not subordinated to another’s arbitrary will. Even individuals who were not formally enslaved but still under another’s legal authority, such as wives under manus (a form of marital authority), children under potestas (paternal power), or wards under guardianship, were not considered fully free because they were not sui iuris: they lacked independent legal personhood. Freedom, then, was a moral and legal condition, a form of recognition, not simply a lack of obstruction.

This Roman idea of liberty passed into both civil and common law traditions. In 12th-century Bologna, legal scholars like Azo of Bologna reinterpreted Justinian’s texts to argue that sovereignty ultimately resided with the people, not with kings. This republican thread, further developed by the so-called Monarchomachs, early modern theorists who resisted absolutist monarchs, saw liberty as non-subjection: a condition of not being under another’s arbitrary rule. This was not yet a modern democratic ideal, but it was a powerful juridical principle: no one should be in the condition of a slave, either politically or legally.

This tradition of liberty as status was increasingly displaced in the early modern period by natural law theorists who defended absolute monarchy. Thinkers such as Thomas Hobbes, Samuel Pufendorf, and Hugo Grotius redefined liberty as the absence of interference, rather than the absence of subjection. In their view, one could be entirely subject to a sovereign and still be free, so long as the sovereign did not interfere in one’s private life. Hobbes’s version was the most extreme: liberty was merely the absence of physical obstruction. Grotius and Pufendorf softened this position slightly, but still treated liberty as compatible with lawful subjection, so long as any interference was predictable or legally codified.

This reframing had far-reaching effects. It made it possible to speak of freedom while tolerating or even endorsing domination, as long as it occurred within legal bounds. This conceptual shift was not limited to defenders of monarchy. It was later taken up by utilitarians like Jeremy Bentham and legal apologists such as John Lind, who used it to justify British imperial authority over the American colonies. By equating liberty with non-interference, one could defend systems of hierarchy and subordination, provided the rulers did not overtly coerce their subjects.

American revolutionaries drew on both traditions, sometimes invoking popular sovereignty and liberty as non-subjection, and at other times appealing to the newer idea of freedom as non-interference. This created deep ambiguity. In the 1770s, colonial elites—many of whom were enslavers, claimed that British taxation without consent made them “slaves.” But as the English cleric Dean Tucker observed, this was a grotesque misuse of language. Men like George Washington were not slaves, they were not owned. They retained property (including slaves), agency, and legal standing. By conflating the legal status of slavery with the experience of interference, this rhetoric allowed privileged colonists to appropriate the moral weight of a condition they continued to impose on others.

In recent years, modern republican theorists such as Philip Pettit have tried to recover the older tradition by distinguishing between freedom as non-domination and freedom as non-interference. Yet some critics argue that Pettit’s language can obscure more than it clarifies. Roman jurists and early modern legal thinkers did not speak of “non-domination”; they spoke of status libertatis, a legal and moral standing as a free person. Freedom was not a matter of unimpeded choice, but of legal independence and mutual recognition. A person handcuffed while asleep is not free, even if they are unaware of the restraint. What matters is not whether interference occurs, but whether one is under the power of another.

This distinction is crucial for how we understand civil liberty today. In American political and legal culture, the dominant view of liberty has followed the Hobbesian-Pufendorfian line: freedom as freedom from interference. This notion has been highly effective for those seeking to dismantle public institutions, regulatory protections, and civil rights. If liberty means simply the absence of state action, then any government intervention, even democratically authorized and aimed at protecting the vulnerable, can be cast as a threat to freedom.

We see this in recent U.S. Supreme Court decisions. In Dobbs v. Jackson Women’s Health Organization, the Court overturned Roe v. Wade and returned abortion regulation to the states, reasoning that the Constitution contains no explicit right to reproductive autonomy. But in doing so, the Court ignored the status of women as legal agents in control of their own bodies. It implicitly endorsed a vision of freedom that allows subjection, as long as it occurs within a lawful framework.

A related trend appears in the weakening of administrative law. In cases like Loper Bright Enterprises v. Raimondo, the Court has moved to overturn the Chevron doctrine, a principle established in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council. That doctrine required courts to defer to reasonable interpretations of ambiguous statutes made by administrative agencies. The rollback of Chevron deference is often justified as a defense of individual liberty against unelected bureaucrats. But this framing masks a deeper shift: by reducing the power of public institutions to regulate corporate and environmental behavior, it leaves citizens more exposed to the unaccountable power of private actors. Liberty is invoked to protect not the people, but capital.

This vision of freedom, as non-interference by the state, has become a central weapon in the American Right’s assault on public institutions. Whether under the guise of “parental rights” in education, “religious freedom” as a license for discrimination, or opposition to environmental regulations, the claim is always the same: liberty means not being touched by the government. But this view ignores a more ancient and substantial idea, that liberty is a status, upheld by law, embedded in institutions, and rooted in mutual civic recognition. When public authority retreats, private domination expands.

Seen in this light, the older, largely forgotten tradition of liberty as non-subjection becomes ever more urgent. To recover this idea is not to reject government, but to reimagine freedom as shared membership in a political order where no one is at the mercy of another’s arbitrary will. It is to return to the Roman and early modern understanding of freedom as a condition of juridical equality, a status grounded not in metaphysical abstractions or natural law claims, but in culture, legal precedent, and historically shaped political institutions. It is this tradition that offers the richest resources for a democratic defense of freedom in the present.