The United States of America has a reputation as a beacon of freedom and diversity from the colonial period of its history. From the beginning, however, Americans' freedoms were tied to a mixture of religious and ethnic affiliations that privileged some inhabitants of North America over others. Although European ideas of liberty set the tone for what was possible, those liberties looked somewhat different in colonial North America, where indigenous and African peoples and cultures also had some influence. The result was greater freedom for some and unprecedented slavery and dispossession for others, making colonial America a society of greater diversity—for better and for worse—than Europe.
America's indigenous traditions of immigration and freedom created the context that made European colonization possible. Since time immemorial, the original inhabitants of the Americas were accustomed to dealing with strangers. They forged alliances and exchange networks, accepted political refugees, and permitted people in need of land and protection to settle in territories that they controlled but could share. No North American society was cut off from the world or completely autonomous. Thus, there was no question about establishing ties with the newcomers arriving from Europe. Initially arriving in small numbers, bearing valuable items to trade, and offering added protection from enemies, these Europeans could, it seemed, strengthen indigenous communities. They were granted rights to use certain stretches of land, much in the way that other Native American peoples in need would have been, especially in eighteenth-century Pennsylvania. However, Europeans, and all they brought with them—disease, beliefs regarding private property, ever more immigrants, and, occasionally, ruthless violence—undermined indigenous liberty. When Native Americans contested this, wars erupted—wars they could not win. Those who were able to avoid living as slaves or virtual servants of the Europeans (as some did) were driven from their homes.
Occasionally, a colonial ruler who wanted to preserve peace, like William Penn, would strive to respect the rights of indigenous Americans. However, given that both indigenous and European ideas of liberty rested on access to land and its resources, it was difficult for both Europeans and Native Americans to be free in the same territory at the same time without some sort of neutral arbiter. On the eve of the American Revolution, it seemed as if the British government might be able to play that role. After all, British Americans also looked to the monarchy to guarantee their liberties. American independence ended that option. Thereafter, America's original inhabitants had no one to mediate between them and the people who gained so much from exploiting them. Nor did the Africans brought as slaves to work what had once been their land.
For Africans, as with Native Americans, liberty was inseparable from one's family ties. Kinship (whether actual or fictive) gave an individual the rights and protection necessary to be able to live in freedom. To be captured by enemies and separated from one's kin put a person in tremendous danger. Although some captives could be adopted into other societies and treated more or less as equals, most were reduced to a condition of slavery and had little influence over their destiny. Even before they arrived in North America, Africans brought to the New World as slaves had already been separated from their home communities within Africa. Without kin, they had to forge new relationships with complete strangers—and everyone, including most fellow Africans they encountered, was a stranger—if they were to improve their lot at all. Escape was very difficult, and no community of fugitive slaves lasted for long. Unlike Native Americans, who could find a degree of freedom by moving away from the frontier, Africans had to struggle for what liberty they could from within the British society whose prosperity often depended on their forced labor.
Europeans, particularly those with wealth enough to own land or slaves, possessed the greatest freedoms in early America. The French, Spanish, and Dutch established colonies on land that would eventually become part of the United States. Each brought a distinct approach to liberty. For the French and Spanish, who came from societies where peasants still did most of the work of farming, liberty lay in the avoidance of agricultural labor. Aristocrats, who owned the land and profited from the peasants' toil, stood at the top with the most freedom. Merchants and artisans, who lived and worked in cities free of feudal obligations, came next. In North America, the French fur traders who preferred to spend their lives bartering among Native Americans rather than farming in French Canada echoed this view of freedom. Missionaries attempting to convert those same peoples could be seen as another variant of this tradition of liberty, one unknown to the Protestant British. In every colony, Europeans lived in a range of circumstances, from poor indentured servants to wealthy merchants and plantation owners.
Religion was inseparable from the experience of liberty in the European empires. The French and Spanish empires were officially Roman Catholic and did all within their power to convert or expel those who would not conform. The Dutch, on the other hand, had a different approach, befitting their condition as a small, newly independent, but economically dynamic nation. Though only Reformed Protestants enjoyed the full benefits of Dutch citizenship, they displayed an unusual openness to talented foreign immigrants, like Iberian Jews, while they relegated native-born Roman Catholics to second-class status. It was through their ties to Amsterdam, Dutch Brazil, and the Dutch Caribbean that Jews first staked a claim to live and work in North America.
The English colonies played the definitive role in early America's experience of liberty. As immigrants from Scotland, Germany, France, Scandinavia, and elsewhere became incorporated into the Anglo-American world, they staked a claim to liberty through British culture and institutions. The heritage on which the British Empire rested was complicated, however, encompassing a great deal of political conflict (two revolutions in the seventeenth century alone) and religious diversity. The British colonies in North America were home to the Puritans of New England, the Quakers of Pennsylvania, and the Roman Catholics of Maryland, as well as to Anglicans, members of the Church of England. Living in America offered an excellent chance to claim the rights and liberties of Englishmen, even when it seemed like those liberties were imperiled back in Europe. Indeed, the desire to preserve those liberties from the threat of a new British government prompted colonists to fight for independence in 1776.
Liberty in eighteenth-century Britain was associated with the national representational body of Parliament and the Protestant religion, which had been declared the official faith of England in the sixteenth century. In the seventeenth century, a long cycle of constitutional crises, civil wars, and revolution drove home what by the eighteenth century was a commonplace ethos for many Englishmen: liberty depended on Protestantism, property ownership, and a monarchy mixed with representative government. Conversely, Catholicism and absolute monarchy, as existed in Spain and France, brought tyranny and a loss of liberty.
Liberty thus began in America with a peculiar mix of religious, ethnic, political, economic, and legal associations, all of them based on denying civil, religious, and economic liberty to others. Among the free, European-descended, Protestant colonists who enjoyed the most liberty, only men with property—who were deemed eligible to vote and hold public office—gained the full benefits. The liberties of women, children, and men without property depended on their connections to propertied men, whether as relatives, patrons, or employers. As most British colonists understood history, English liberties had been secured only after a long, hard fight, and these liberties were under constant threat—from Roman Catholics, the French, or the greed and corruption that, they thought, inevitably arose when those in government grew too powerful. Liberty, they believed, was limited. The idea that everyone could enjoy similar liberties did not cross their mind; they worried instead about the possibility that everyone in America could be a slave or servant to someone else.
In many ways, the story of American liberty is about how people of different religious and ethnic origins gradually acquired rights that had been associated only with Protestant English men of property. Despite their original association with a particular national, ethnic, and religious group, English liberties proved fairly flexible in America. Americans lived in a society with more chances to attain the ideal of liberty associated with owning property—particularly a farm of one's own—than was possible in England, where property ownership was increasingly restricted to a small elite. Colonies like Pennsylvania granted far more religious freedom than existed in England. The colonial charters granted by the British monarchy protected these liberties, and, in fact, Pennsylvania celebrated the anniversary of these constitutional freedoms guaranteed by the English crown when it the commissioned the liberty bell.
The early American belief in the limited nature of liberty helps us to understand why it was so difficult for those who had it to extend it to others. Americans lived in a world full of slavery—the ultimate opposite of freedom—an institution that had not been present in England for hundreds of years. And yet, the colonial history of America, tied very early to the promotion of slavery, convinced many colonists that the ability to hold non-European people (mostly African, but also Native American) as slaves was a fundamental English liberty. Some even returned to England with their slaves, and expected English laws to protect their property in people as they did in the colonies. Free colonists were surrounded by people—servants and slaves—who either lacked liberty or, as in the case of Native Americans, were rapidly losing it. This paradox helps explain the reluctance of colonial Americans to allow others, like more recent German immigrants, to share the same liberties they enjoyed. In many ways, their prosperity depended on those peoples' lack of liberty and property. All could try for freedom in colonial America, but not all had equal access to it.
America's history of liberty is inseparable from its history of immigration and colonization dating back to the first Native American treaties. Unfortunately, the liberty Europeans claimed in America was accompanied by slavery and reduced liberties for many others. The possibility of liberty for some was always accompanied by a struggle for freedom for many others.
Evan Haefeli is Associate Professor of History at Columbia University, where he researches and teaches on Native American history, colonial American history, and the history of religious tolerance.
Ridgway K. Foley, Jr., is an attorney associated with the firm of Souther, Spaulding, Kinsey, Williamson & Schwabe and practices law in Portland, Oregon.This article is scheduled for publication in the November 1971 issue of The Willamette Law Journal and is printed here with the express permission of WillametteUniversity, Salem, Oregon.
Contemporary Western society places high value upon two ideals: individual liberty’ and the rule of law. Cursory examination of these concepts seemingly reveals the clear instance of inevitably warring propositions. The current milieu of high rebellion versus "law and order," of do-your-own-thing versus the sanctity of the traditional,² bringing into conflict personal action and public authority, does little to disabuse the notion. If law is defined as restraint on human action and liberty as the absence of restraint, the concepts are inimical and conciliation impossible. This article proposes briefly to scrutinize individual freedom and the rule of law, to determine if the working definitions are accurate, and to decide if overgeneralization has obscured the whole truth of partially valid tenets.
On the first blush, it may appear singular for a law review to consider the general quantity and quality of the law. Such considerations should have been long ago made and laid to rest. It is much more exciting to consider what the law can do to and for man, with or without his consent. Eradication of poverty, improvement of the environment, and assurance of economic equality for all men ring a more responsive chord in the breast of the sympathetic lawyer than cold, jurisprudential analysis.
The existence of past analysis does not mean that the present reiteration and refinement of essential ideas is unrewarding; we may need a gentle reminder of the past, and demonstration of its applicability to the dynamic present. It is the use of law for laudable goals at the possible expense of human freedom which commands re-examination. After all, most men agree that clean air, good housing, and a commodious job are desirable goals. The inquiry is not of goals, but of the means to secure the goals; the end pre-exists in the means.3 If the rule of law can destroy human action, such a fact should be trumpeted to all concerned; before man surrenders his freedom for an end, he may want to know (1) if the suggested action will achieve the end sought and, if so, (2) if the end is worth the price.
Definitions of Liberty and Law
The first step toward understanding and analysis is the development of working definitions of the concepts to be studied.
(1) Elements of liberty
A meaningful concept of liberty presupposes a living, purposive, choosing human being.4 An inanimate object may be described as being in a "free state" and yet it would be singular to characterize it as possessing liberty in the sense that a man is free. A man, however, imprisoned in Salem, cannot be in Paris or Rome or, indeed, in any place but his cell, so he is properly described as unfree or restrained.
The prisoner example indicates a second prerequisite for liberty: the human actor must have a meaningful range of alternatives. The choice between remaining in prison or being shot while attempting to escape presents little real choice at all, but it remains a choice. It becomes viable if conditions in prison deteriorate to the progressively intolerable. However, freedom does not presuppose an infinite variety of choices.5 One may live in London, or Paris, or Rome, but he cannot be present in all three places at the same instant, nor can he be on Saturn or Uranus (at this stage of space travel). Despite these limitations, an individual can be described as free. Man may be free despite his finity; one is not denuded of liberty merely because he cannot think like Albert Einstein, leap over buildings like Superman, or play basketball like Bill Russell.6
A third essential element of individual freedom is a relationship to at least one other human being. A person is meaningfully free only where his choice of alternatives is unrestricted by deliberate human interference, notwithstanding his subservience to physical or biological limitations. Robinson Crusoe, alone on his island, is neither free nor restrained. Only when he encounters natives on his rustic shore will the question of freedom arise, because only then is there possibility of deliberate human interference with individual actions.
Fourth, some element of internal and external restraint adheres in the very definition of liberty;7 it is ineffective to equate liberty solely with the absence of restraint because such a definition could also apply to a state of lack of freedom. Robinson Crusoe could be subject to no deliberate human intervention when he subdued the inhabitants of his world and became absolute monarch, but he could not be styled free if he were subject to uncontrollable fits of passion or impulsive action which he could not restrain. Thus, the internal aspect of restraint, be it denoted self-control, morality, or conscience, is implied in the very definition of liberty.8
Some thinkers have also recognized that unlimited power of human action without external restraint could result in license, anarchy, and civil chaos. In such a society, the "inferior" persons would have only the freedom of action permitted by their more powerful neighbors; the "superior" beings might virtually enslave their less fortunate fellows, but they, too, would be unfree to the extent that they were forced to devote their time to coercive, as opposed to creative, endeavors. To the extent that the predator must dissipate his creative powers in use of force upon others, he, too, is restrained, although his re-restraint is self-imposed and by his own choice.
Berlin’s analysis separates liberty into "positive" and "negative" aspects; negative liberty is concerned with the inquiry, "In what area is man left free to do what he wishes without interference by other men, singly or in the collective?"9 Implicit in this question concerning liberty is the premise that some restraint on human action exists compatibly with freedom. To the extent that this area of noninterference is contracted, the individual is coerced and unfree, but the very concept of an area of noninterference presupposes some limitation.
The external restraint implicit in liberty is a recognition of freedom of action as an equal right of all purposive beings in society.¹º The necessary implication is that liberty is not the total absence of restraint. The quest is for the permissible limits of restraint. In the words of Bastiat, liberty is "the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so… [and] the restricting of the law only to its rational sphere of organizing the right of the individual to lawful self-defense….”¹¹ Thus, the workable ideal of liberty is a range of individual choice unhampered by deliberate human interference except insofar as intervention is necessary to assure equal liberty to all individuals.
Liberty has meaning because man possesses the power to choose, that is, the ability to observe, measure, test, evaluate, and select from alternatives.12 But this does not mean that choice is meaningless unless liberty is also measured in terms of power to accomplish ends." The freedom to do something does not imply success; it includes freedom to try and fail. Freedom to undertake a venture may well be of profound importance to the individual sans success in the ultimate endeavor. Hayek has wisely observed" that the concept of liberty cannot be restricted to areas where we know the result will be "good" because that is not necessarily freedom; freedom is required to attend to the unpredictable and unknown, and is desirable because the favorable results will far outstrip the unfavorable. The libertarian¹5 is not utopian; he only asserts that liberty is the best condition for the realization of the multiple goals sought by purposive individuals. He would not impose his choice upon others; he merely asks that others not interfere with his voluntary choice.
Individual freedom is the lack of formal or informal external restraints imposed by one man or group of men upon another, save for the collective coercion aimed at preventing individuals from acting forcibly or fraudulently against their neighbors. It is the absence of human impediment to the voluntary action of fellow human beings. The permissible limitation on free choice is the recognition of an equal ambit of choice to all other men.
(2) The elements of law
I do not propose here to isolate and analyze the phenomena denoted "law." For the purposes of this article, it is sufficient to identify several classes of law, well accepted as such in the contemporary United States, and to limit our analysis accordingly. This in no way pretends that the proffered classification is exclusive.
In general, law is a method of control of human behavior, ordinarily accomplished by policies, rules, orders, decisions, and regulations, operative within a given territorial unit; its ultimate authority resides in the monopoly of coercion possessed by the state.16 Coercion as an essential element of the legal system cannot be understated, even where compliance with law may be secured either by mere threat of force or by subtle forms of coercion.
The law is coercive insofar as it delimits the range of alternatives otherwise open to the individual actor, whether the results of noncompliance are penal sanctions in the traditional sense, or the foreclosing of legal processes for redress to the noncomplying individual. As indicated in the discussion of external restraints inherent in the definition of liberty, freedom not only presupposes a system of law but also could not survive in the absence of law.¹7 However, an equally valid proposition is that liberty may be destroyed by the misuse of law.10 Throughout the remainder of this article, by example and analysis, the interrelationship of law and liberty and the application of these two propositions will be explored.
Law and the Ambush of Liberty
Analysis of the relationship between law and liberty is complicated by the fact that laws which operate in society under the guise of liberty may, in fact, be inimical to the freedom ideal. All law actually premised upon such masquerading concepts may obstruct individual liberty, but the possibility of erosion of the concept is so likely that it is necessary to unmask some of the most common interlopers.
(1) Strange bedfellows: Liberty, Equality, and Fraternity
When liberty is properly defined as the absence of human interference with the actions of a purposive individual except to the extent required to assure like liberty to all other individuals in society, liberty and equality become singularly discordant companions. Liberty has long survived the graveyard of dogma because the libertarian accepts man as he finds him, an extraordinarily complex, volitional being, capable of creation or destruction, searching for multiple goals;19 equality is curiously incompatible with both liberty and the nature of man, because the egalitarian refuses to accept man as he finds him. The egalitarian all too often bottoms his view on the premise that mankind is essentially brutish and incompetent, incapable of betterment and undeserving of salvation, although the same thinker may posit that man acting in the collective somehow achieves great creative powers.²º
Liberty is both a desirable and achievable goal; equality is neither, unless equality means "equality before the law," equal treatment of saint and sinner found in the same posture or circumstance.
This confusion of concepts is partially caused by the association of the word "equality" with the American and French revolutions of the eighteenth century, traditionally associated with the search for freedom. A literal application of the egalitarian concept may be utilized to level society by fitting men of varying potentialities to a Procrustean bed measured to the least fit. Those possessed of the least measurable potential might be made happier by this process, but the result would not be freedom. Equality is consonant with liberty only in a limited sense; the equality comprehended by the Declaration of Independence and the libertarian tradition was equality of birth, without vested privileges provided by the state, and equality before the law, an equal liberty to utilize one’s faculties and potential to his own ends, to succeed or fail, to determine his own destiny without special favor of discrimination.²¹
Fraternity possesses a subtler but very real possibility of shrouding liberty. Berlin has clearly indicated that the cries of oppressed classes and nationalities for "liberty" often obscures their real desire, that of recognition by other men of one’s own human worth.22 This search for status may lead to the worst kind of demagoguery and oppression, since the individual sacrifices his liberty for the realization of group status, and in return receives recognition by the group. It is not the motive to be recognized by one’s fellow man which is wrong, for this is a very real human desire. Rather, it is the sacrifice of voluntary action in the name of liberty which results in illiberal acts committed in the name of liberty which is wrong; the submission of the individual to the group renders him less human by his escape from moral responsibility for his acts, placing responsibility and choice in the hands of the will of the group, which normally means the will of the loudest or the most violent. The fallacy lies in the fact that fraternity consonant with true liberty cannot be enforced — it must be voluntary.23
(2) Liberty and self-government: Berlin’s positive liberty
Another concept masquerading as liberty is the natural desire to be self-governing, or "democracy." Berlin has analyzed the problem of liberty as confusing the question of "to what extent shall I be free in my actions from the deliberate intervention of others?" with the inquiry, "To the extent that I am to be coerced by others, who should coerce me?"24 Cohen has taken issue with this analysis, terming it "academic, inflated and obscure."25 He argues that Berlin confuses the positive-negative liberty distinction with a distinction between individual liberty and public authority, and that the traditional libertarian thought was identified not only with a search for "negative" liberty, but also with the development of self-government.26
Despite these criticisms, there is a distinction between the form of the state and the area of noninterference.27 Democracy can be as subvertive of liberty as autocracy; 51 per cent of the electorate could vote to plunder and pillage the remaining 49 per cent; a progressive income tax obviously limits the freedom of those in the higher brackets for the alleged benefit of the majority who reside in the lower brackets. On the other hand, it is possible to hypothesize an absolute monarch who governs solely within a strictly limited sphere of state action, preventing fraud and violence, and providing for the settlement of private disputes.
Once this basic distinction is recognized, Cohen’s criticism is rendered less vital. To acknowledge the distinction between liberty and self-government, and to admit the possibility of perversion of democracy into mob rule of might-makes-right, is entirely distinct from contending that self-government is undesirable or less favorable than another governmental system. Certainly libertarian tradition has consistently concluded that self-government not only fulfills the basic human desire to be master of oneself, but also provides the most likely form by which to secure the condition of liberty.
But, Berlin asserts a salient proposition that the desire to be master of one’s own self can degenerate into the worst kind of totalitarianism.28 The demented idealist glorification of the state influenced two vicious forms of state barbarianism in this century, national socialism and communism. Yet this very idealism commenced with the premise of a natural desire to master one’s own destiny; it was perverted when it became hopelessly confused with the belief that the ends of each man, rationally measured, would always coincide with those of every other man. Therefore, the general will represented the "rational choice" of each member of society, although a given individual member might be blind to his "real self" and therefore his choice would have to be made for him by a master more rational than he. 29
This is, of course, the same tired argument of all tyrants, that the state must do for man what he cannot do for himself. Since the state is a coercive, not a creative, force, there is nothing it can do, except use force, that man, singly or in voluntary association, cannot do for himself. It may, however, do things a volitional individual would not do;³º reveals an on a somewhat lesser, but no less pernicious, plane, the Fabianism sweeping the West31 today proceeds upon the same illogic, idolizing the expert and the planner who know better than the citizenry what the latter "wants" done in a given situation. The libertarian recognizes the vital truth that not only are the ends of man in potential conflict3²º but also that individual voluntary action is the only method by which one’s destiny can be completely and morally determined, even if the determination so chosen might appear "irrational" to an observer.33 To be free is to be allowed to make one’s own mistakes deprive individuals of their property (taxes) and enter into an uneconomic project — it is likely that this is the rational analysis of federal space exploration. See how private action can solve, and has solved, many problems which are posited as "necessary state action" in Wooldridge, op. cit., 20.
(3) Liberty and security
Security, occasionally mislabeled "liberty," is a common end sought by man. Security might be said to be the barter of freedom in order to satisfy a desire to avoid choice, agreeing to acquiesce in the choice of another. Although liberty inherently posits individual choice for oneself, it does not prevent the choice for "security" in all instances. Security is inimicable to liberty where one not only chooses not to choose, but his choice, ordinarily in the collective with other similarly situated, operates by some sanction to force that choice upon another unwilling individual.³4 Man commonly desires to plan for his retirement or old age; it is not a perversion of liberty to choose to enter a voluntary arrangement whereby a private insurer plans a retirement program for consideration. However, where 51 per cent of the voters choose a state-enforced program binding all present and future citizens, it is clear that the quest for security has resulted in a deprivation to the liberty of the unwilling who wish no program at all, or, more likely, wish to plan for the future in accordance with their unique situation.
An amazing example of confusion of terms in high places is the illogical shift in the infamous "four freedoms" speech.35 Coupled with the two accepted adjunct freedoms, expression and religion, are two interlopers, freedom from want and freedom from fear. More amazing still is the fact that these false freedoms have wormed their way into accepted political programs without criticism, accepted as respectable as though they could be achieved in fact. "Freedom from want and fear" may represent basic human desires but to call them freedom is foolish.36
(4) Enforced orthodoxy
Again, liberty may be confused with a system of enforced orthodoxy, sometimes signified the "consensus" fallacy, which provides for such a limited range of choice that the individual is not really free at all. Sunday laws are a common example of this concept, where religious freedom means freedom to be religious in the manner recognized by the community. Compulsory franchise laws, existent in both Eastern and Western nations, provide another example where a citizen must vote, although he may have a real, not a perfunctory, choice between candidates who may represent diverse positions. Freedom must include freedom to abstain or it cannot be freedom; to claim that the Soviet hegemony has free elections is a mockery. The most obvious example appears in the enforced othodoxy of conscription, now under some semblance of attack in the halls of Congress.37 The concept of a conscript fighting for freedom could be humorous if the milieu were not so deadly serious. The cause of freedom has suffered much in making the world safe for democracy.
(5) The question is: Freedom for whom?
Liberty achieves its true station when it is equally applicable to each individual in society;38 this is implicit in the definition of liberty as the absence of human interference with individual actions except as is necessary to insure equal freedom for all. Yet, an "unequal liberty" may parade under the mask of liberty; this interloper may partake of some attributes of liberty, but only for a limited group of persons. For example, a slave society might be found where the ideal of liberty existed for the ruling class alone; to the extent of slavery enforced by coercion, that society is restrained, not free. In fact, the ruling class is itself less free, albeit by deliberate choice, in two senses:
(a)it must allocate part of its resources to the continuation of slavery, instead of releasing these forces for creative endeavor, and
(b) to the extent that the enslaved class does not operate to its creative potential because of the oppression, the rulers suffer the loss of that potential out flowing of productivity.
When examining a restrictive norm allegedly enacted or adduced to advance freedom, a relevant inquiry is "freedom for whom?" If the law extends privileges to one group at the expense of others, and is not founded upon the legitimate state function of preventing fraud and violence and providing for the adjudication of private disputes, then it does not achieve liberty. 39
In our legitimate concern over the mistreatment of colored persons for two centuries, we now fail to see that the liberty of the employer is restricted when he is forced to hire a Negro applicant against his will, and the liberty of a storekeeper is limited when he is forced to serve those he does not wish to serve at his lunch counter. An entirely different inquiry is presented when white persons, singly or collectively, with or without authority of law, coerce colored persons and prevent them from voting, breach the doors of their church and harass their peaceful meeting, or fail to provide an equal administration of justice for persons of all races by excluding qualified Negroes from the venire.
(6) The divisibility fallacy
Statist philosophy often obscures the essential fact that liberty is indivisible. Failure to educe this element tends to lead the less sophisticated apologist for unwarranted state intervention to justify governmental extension on the grounds that "human rights take precedence over property rights." So stated, the proposition is clearly unsound and a negation, because of the identity of subject and object. "Property" possesses no rights, any more than air, or dogs, or cinnamon possess rights; rights inhere only in individual, volitional beings. Property rights are human rights.4º Thus, the contention really means that the liberty of some persons must be curtailed and in some mystical way the liberty of other persons will be expanded.
What those propounding this argument truly mean is that certain aspects of liberty should be restricted while others remain unmolested (for the time being), but emotive words are utilized to secrete the true justification. Thus, while the United States currently witnesses a growing recognition and sanction of the constitutionally specified freedoms of speech, press, association, and religion, an over-all diminution of liberty occurs. 41
The clearest present deprivation of liberty is to be found in the market place where state intervention has whittled down the individual’s choice of alternatives. Because of the artificial human rights-property-rights distinction, there has been acceptance of the tenet that freedoms of association, speech, press, and religion can somehow survive without economic freedom. This is preposterous: as the market becomes more controlled, these adjunct freedoms lose strength. Freedom of the press means little where the state controls the supply of newsprint; freedom of speech and association are fine unless the state owns all the available meeting places; freedom of religion can be destroyed if land and building materials for the construction of structures of worship belong to the state, since the state affixes conditions of use to that which it owns or controls. The rights of freedom of speech, press, association, and religion are all dependent upon economic freedom because, to be effective, they must utilize the product of the market, and where the state controls production and distribution, it controls ultimate use. Market control is not price control or rent control — it is people contro1.42
Liberty: Encouraged or Destroyed by Law
To ascertain the relationship between liberty and the various functions which law performs as a device for securing social order, it is desirable to separate several obvious types of laws and examine their peculiar relationship to liberty, noting how each class of law can either encourage or destroy individual freedom. 43
(1) Criminal duty-imposing rules
Criminal law provides for the redress of harm done to individuals when the harm is such that its existence threatens the very structure of society and all persons situate therein. Criminal laws are absolutely necessary to the existence of liberty because their function is to protect the individual, by deterrence and penalty, from infringements on individual liberty by those who would trespass upon the equal freedoms of others. if nothing else is achieved by the state, it should at least isolate those who would forcibly and fraudulently deprive their neighbors of life, liberty, or property. It is difficult to imagine a system where liberty could flourish without institutions to prevent individual or collective force and fraud against one’s neighbors. Criminal laws restrict liberty to the extent that they inhibit the individual from his free choice. Thus, this limitation of liberty is necessary and desirable for liberty to survive.
It may seem curious to assert that criminal law, customarily so devoted to the equal protection of individual life, liberty, and property from the transgressions of others, could be perverted into a destroyer of freedom. However, a legal system which fostered plunder of property by making individual resistance thereto unlawful certainly would restrict liberty. Freedom is unduly inhibited where the criminal laws utilize and sanction that which is proper human action, not interfering with the equal liberty of all, such as Sunday laws, usury laws, consensual crimes between adults not in the public view, and minimum wage laws."
(2) Civil duty-imposing laws
The law performs another essential function by providing institutions for civil recovery of individual restraints on human action, commonly denoted the "administration of justice." Conduct restricted may or may not also be criminal. For example, P’s freedom is obstructed when D negligently strikes him with an automobile, to the extent that P’s life may be shortened, his freedom of movement hampered by a broken leg, or his property taken for the payment of medical bills. Therefore, D’s freedom of action is justly restricted to the limit of taking some of his property at P’s instance to compensate P for his loss; D’s freedom of action is restricted but only by the consequences of his volitional act. There is no proper penalty for negligence; a restriction of liberty is valid only where D is at fault and that fault causes the deprivation of another’s freedom." If, however, D intentionally struck P, he might be both civilly and criminally liable; not only would D restrict P’s freedom of choice and action but also he would constitute a danger to society as a whole.
Civil-duty laws destroy liberty where liability is imposed upon D without any fault, or without any causal connection between his actions and P’s injuries. Thus, laws providing for status or absolute liability," justified only on the basis of the "deep-pocket" doctrine, or the theory of "enterprise liability," represent legally sanctioned deprivations of liberty, as does the trend toward state-enforced insurance and compensation schemes. Where an individual is mulcted for results not of his making, where he is not "at fault," his liberty is unfairly restricted and the society falls short of the ideal of freedom. Where the individual is made to pay for the consequences of acts volitionally done (his fault), the lessening of liberty is justified.
(3) Laws channeling or conferring powers
Rules providing procedures by which the individual can achieve the results of his voluntary and consensual associations with other persons may augment the ideal of liberty. Law in the early United States, by the development of many of these rules, fostered the nineteenth century outburst of creative energy.47 Even a frontier society required a law providing for the recordation of land titles," and norms for enforcing individual agreements voluntarily reached, as well as rules for the adjudication of private disputes.
Power-conferring rules restrict liberty when they deny enforcement procedures for individual action not following prescribed procedures; they do not prevent voluntary individual resolution of problems by other means if enforcement is not required. There is no prohibition of a sale of Blackacre by oral agreement between B and S, if both parties carry out their bargain — it is only when one party reneges that the statute of frauds prevents enforcement. Again, the law-conferring powers will not penalize B for failure to record title to Blackacre, and if no other claimants appear, B’s title is secure. The power-conferring rules destroy liberty only when they are used to restrict human endeavor, to allocate market resources, or to promote favoritism.
Curiously, many writers have considered the nineteenth century United States as a laissez-faire economy where freedom was given free rein, and the government performed only the functions of a night watchman. Proceeding from this naive premise, they draw the equally absurd conclusion that law must positively restrict individual freedom in order to prevent real or imagined evils flowing from the "libertarian experiment."
First, nineteenth century America clearly enjoyed less restriction on human action than any earlier society in history; however, the claim that the limitations were only those of a policeman preventing malum in se crimes ignores historical fact. Writing at mid-century, Bastiat indicated two particular areas of restraint, slavery and protective tariffs.5º To these can be added, by way of nonexhaustive example, the internal improvement schemes of Henry Clay; the fostering of public education; the grant of monopoly power to private groups in the "public interest"; national control of finance; licensing and regulation of navigation and improvement of harbors; and direct or indirect encouragement of transportation; not to mention state tinkering with money, coinage, and banking in relation to the finance powers.51 Moreover, the argument falsely focuses only upon the Federal government, which, admittedly, was more concerned with the problems of federalism prior to the Civil War. One cannot overlook state and local restrictive activities, including commercial regulation, licensing, subsidies, and monopoly grants under an ex‑pending concept of the police power. 52
Second, the "Golden Age"53 argument assumes that individual liberty was responsible for "abuses" of the nineteenth century, proceeding from the untenable tacit assumption that liberty was meant to be a panacea leading to utopia. The libertarian contention is only that voluntarism is the best system for a fallible but improvable mankind.
Likewise, the conclusion that liberty caused abuse is untenable; empirically, most "abuses" were conditioned by law, not liberty, and flow from failure to properly provide sanctions against trespass on liberties or unwarranted interdiction of human freedom, directly or by delegation to private groups.
Third, the argument overlooks the positive function performed by the law in the nineteenth century; for example, the Federal judiciary under the Interstate Commerce Clause prevented the erection of internal barriers to free trade by mercantilist states at the behest of favored local businesses, and the states followed a liberal policy of granting charters to associations and providing a remedy for failure of subscribers to a capital pooling venture to carry on their voluntarily entered bargains."
(4) Adjudicative laws
The development of individual freedom requires a body of law relating to the administration and settlement of private disputes. Without adjudicative rules, there would be great difficulty in effecting the rules imposing civil or criminal duties, or conferring powers, since there would be no organized institution of enforcement. Common examples of adjudicative rules are regulations relating to the qualifications, selection, and tenure of a judge, conciliation commission or arbitrator, rules of evidence and procedure for guiding the presentation of the dispute and enforcing the official determination. 55
Adjudicative rules restrict individual liberty by narrowing the choice of alternatives in the choice of court, judge, procedure, and evidence, and excluding the choice of self-help, but they are justified on the ground of making choice meaningful. Absent the central administration of justice, civil chaos would reign. However, the ideal of liberty is perverted when adjudicative rules are used to discriminate against some persons seeking legal redress or where the law is used to unduly restrict liberty. For example, where colored people are customarily excluded from the venire, liberty is imperiled. Likewise, where the legal system no longer requires proof of fault or causation for civil recovery, but only that the defendant possess a deeper pocket, and upon such proof authorizes and enforces recovery, the law is misused and reduces the defendant’s freedom.
(5) Laws for making laws
Closely related to adjudicative rules are the law-making laws; adjudicative rules make law in the sense of the law of the case and in the sense of precedent; lawmaking laws provide procedures and qualifications for the passage of general laws, limitations on law-making powers, and grants of law-making powers. Common examples of law-making laws are those setting forth qualifications and tenure of public officials; local initiative, referendum and recall; home rule; rules of procedure within legislative, executive, or administrative bodies; rules of court; and the procedural apparatus for publicizing laws.
Law-making laws also include rules against potential laws and the abuse of law-making power by providing a line beyond which there is no law-making power extant. For example, constitutional prohibitions against taking property for public use without just compensation, impairing the obligation of contracts, and the whole gamut of provisions in the Bill of Rights contain absolute restrictions to protect the individual from collective interference.
Additional norms within the category of law-making laws are rules prescribing the proper functions of the state; here the greatest destruction of individual freedom has occurred. Where restrictions against state interference with individual liberty are perverted by legislative fiat or judicial interpretation, so as to permit the state to become a producer in the market, as occurred in the development of the Tennessee Valley Authority or Social Security Programs, individual liberty suffers as a consequence.56
The Value of Liberty and the Role of Law
To this point I have proceeded upon the major premise that a maximum ideal of individual liberty is desirable and the proper role of the law is to foster and protect that ideal. Some reasons for this premise follow:
(1) Only under conditions of individual liberty can man be a truly responsible moral agent.57 Choice presupposes responsibility and fosters it ; if a man is unable to choose because of restraint he is, to that extent, dehumanized. The choice not to choose at all but to pass that choice to a nonresponsible collective is a choice per se and the burden for the consequences of the allocation by the collective must rest, in last analysis, upon the ultimate choice-maker, the individual who refused or refrained from choosing. (2) Only with the conditions of maximum liberty can man’s creative nature have full sway in the solution of his problems; liberty is a singular concept, having no fixed ends in itself, and presupposing that ends are open and only ,the individual can best choose for himself.58 (3) With maximum liberty and the concurrent release of individual creative power, man will produce the greatest abundance of material, as well as spiritual, wealth possible.59
In summary, then, what is individual freedom and what is the proper function of law? Liberty is the absence of human intervention with the endeavors of an individual to utilize his life, liberty, and property (and all adjunct rights flowing there from) as he sees fit and for the ends he desires, limited only by the equal liberty of all other individuals in society. To accomplish this ideal of liberty, law must be restricted to its proper role ; prevention of use of force and fraud against any individual or group by any individual or group60 or by the state, except where necessary to prevent the actor from invading the equal freedom of another ; provision of processes and institutions for adjudication and enforced settlement of private disputes ; and, provision of reasonable channeling procedures through which private individuals may utilize their voluntarily chosen ends.
The Rule of Law
The end of the law is, not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others; which cannot be where there is no law; and is not, as we are told, a liberty for every man to do what he lists (For who could be free when every other man’s humor might domineer over him?) But a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be the subject of the arbitrary will of another, but freely follow I his own.
JOHN LOCKE, Second Treatise
1 I use the terms "liberty" and "freedom" interchangeably in this article. Berlin suggests that there have been over 200 recorded definitions of liberty, Isaiah Berlin, Two Concepts of Liberty (Oxford University Press, 1958) 6; I do not intend to catalog or examine all these definitions. Rather, this article is concerned with the search for a precise, valid definition of liberty, one which reveals and corrects the current deterioration of the concept. Berlin, id 16, does not believe such a deterioration is taking place, but see, contra, Lon L. Fuller, "Freedom — A Suggested Analysis" 68 Harv. L. Rev. 1305 (1955).
See for a different analysis, Glanville Williams, "The Concept of Legal Liberty," Essays in Legal Philosophy (University of California Press, 1968, Summers ed.), 121-145.
2 What the existent generation presently sanctifies as traditional and sacred may not normally represent the great value judgments and normative concepts of the past. Today’s nominal conservative may well mimic the radical of 30 years ago. Witness the acceptance, by all but the strict libertarian or voluntarist, of social security, union monopolies, and the Federal Reserve System.
3 Leonard Read amplifies and refines this truth orginally enunciated by Ralph Waldo Emerson. See, e.g., Leonard E. Read, Let Freedom Reign (The Foundation for Economic Education, Inc., Irvington-on-Hudson, New York, 1969), 78 et seq.
4 See Fuller, op. cit., at 1306-1307, for comments upon how the "scientific method" t
Ridgway K. Foley Jr.
Ridgway K. Foley Jr. is a litigation lawyer who is passionate about individual and economic freedom, and has authored numerous scholarly articles on related subjects.