I
A number of legal conceptions contribute to the pop-
ular notion of freedom. The ordinary man generally
associates freedom with the positive idea of liberty to
do or not to do something, but to a lawyer such liberty
would signify the absence of a duty to refrain from
the act or omission in question. Free speech, for exam-
ple, implies that one is under no duty to keep silent.
But freedom means much more than this, and a second
idea familiar to both laymen and lawyers is that of
a person's immunity from the power of another. Thus,
a freeman, as opposed to a slave, is one who is not
under someone else's dominion. Yet a third meaning
which the word “freedom” implies in law is capacity
to perform legal transactions, for example, to vote or
make a will; but since this aspect of the idea is not
as important as the other two and is in fact consequen-
tial on them, it does not merit separate discussion.
Convenient though it is to distinguish between these
component ideas of freedom, it must be remembered
that they have been interwoven throughout history.
This may be why people so often fail to realize that
“freedom from” power and “freedom to” assert oneself
are not two aspects of one issue, but two separate
issues. To gratify a desire for freedom from power does
not imply freedom to gratify every desire, otherwise
deliverance from the evil of untrammelled power will
inevitably end in the evil of untrammelled liberty, and
vice versa. There is a point beyond which liberty of
action is harmful and needs restraining. For instance,
if everyone were free to drive as he pleased on the
road the result would be chaos. So, too, in countless
other ways one's freedom to do what one will has to
be checked in the interest of others; and if restraint
is not forthcoming spontaneously it has to be com-
pelled. More troublesome is the question, which the
law has sometimes to solve, of how far one should be
free to surrender one's freedom or to degrade oneself;
and to this there can be no general answer. It may
be gathered from all this that freedom in law cannot
be isolated from social and moral issues, and we
glimpse here the lesson that liberty of action at law
can, in the main, be allowed with safety only where
there is restraint bred from a spontaneous sense of
obligation. The corollary of this would appear to be
that a society which relaxes legal restraints without
a corresponding measure of individual self-discipline
is rushing, like the Gadarene swine, to destruction.
It is clear, then, that a balance has to be found
between authority and the individual as reflected in
the measure of immunities and liberties accorded to
the latter. To guard against the misuse of law, whether
in the form of abuse of power or of liberty, men have
appealed through the ages to principles of justice and
morality and even to some higher law, such as Natural
Law. These ideas, however, are so broad as to accom-
modate divergent interpretations with the result that
the history of freedom in law becomes the story of
how certain concepts of law and philosophy have been
used to satisfy the paramount need of each age.
