LEGAL CONCEPT OF FREEDOM
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.
II
Jewish Law contributed powerfully to the ideal of
freedom. The enslavement of the Israelites under the
Egyptians led them to found a society in which
Pharaohs had no place and in which individuals owed
allegiance only to God, thereby obviating the need to
depend on any human institution. But their assertion
of independence went further, for even the rulership
of God had to rest on voluntary acceptance, which
is alleged to have occurred in the Covenant with
Abraham (Genesis 15:18), and to have been renewed
with Isaac and Jacob. This arrangement also set a
pattern for the benevolent use of power by the ruler.
The later appointment of Saul as king in 1037 B.C.
amounted to a rejection of God's rulership, but the
king's own position still rested on a contract with his
people. The partnership between God and Man in the
latter's development towards holiness led to an em-
phasis on discipline and corresponding restraint on
liberties of action. At the same time, be it noted, these
ideas must be considered in the light of the social
structures of the age, for slavery was recognized, and
equality did not obtain between men and women.
Throughout the Greek era the background was one
of precarious social stability, which tended to empha-
size moderation and preservation of the status quo.
Solon, it is true, sought to limit power by means of
the idea that men should have a say in selecting those
to whom they have to submit—the idea of democracy;
but both Plato and Aristotle stressed the need for
restraint in action. The former argued that the re-
straints imposed by society are necessary to develop
virtue in those who possess this capacity. Not all men
are so endowed, for they differ in this respect just as
they differ in physique. Aristotle, for his part, con-
demned democracies in which people acknowledge no
restraints. But it is not enough merely to have laws;
they must be just laws, that is, laws which enable
virtuous people to achieve as far as possible in the light
of their reason the fullness of their nature in society.
A just law favors liberty, and freedom and good gov-
ernment go together. To educate is to develop the
subject in virtue, so it becomes a prime task of the
state to be the school of the citizen. On the other hand,
slaves should accept their lot, since some people are
slaves by nature. Indeed, it is the very service of wise
and virtuous masters that brings out the best in their
slaves; and masters should of course treat slaves with
kindness.
The achievements of the Romans were practical
rather than theoretical. That great repository of Roman
Law, the corpus Juris Civilis, contains passages which
would support absolute authority (e.g., Digest 1.3.31)
as well as the authority of law (e.g., Codex 1.14.4). It
was left to Cicero, who was not strictly a lawyer, to
strike off the ringing statement, “We are slaves of the
law that we may be free” (
Pro Cluentio 53.146). But
he added that there were limits to the use of law. “True
law,” he said, “is right reason in agreement with na-
ture” and from it there can be no dispensation either
by the Senate or the people (
De republica III, xxii).
This doctrine of Man's nature as the “true” source of
law had much influence later. Roman Law recognized
slavery throughout, and there were also grades of free
men who in varying degrees were less privileged than
cives, or citizens. Although it was admitted that slavery
was contrary to Natural Law, it continued because it
suited the economic order. The movement towards
freedom is discernible in three ways. (1) In A.D. 212
citizenship was conferred on free men throughout the
Empire; (2) increasing restrictions were imposed on the
powers of masters over slaves; and (3) there was a
preference for freedom rather than slavery in the in-
terpretation of rules concerning a person's status.
Even early Christian philosophy did not condemn
slavery, or for that matter condemn authoritarian gov-
ernment. The equality of souls in Heaven did not call
for social disruption in order to achieve equality of
bodies on earth. So it was that Saint Paul urged a
fugitive slave to return to his master (Epistle to
Philemon). Saint Augustine, however, sought to explain
slavery as a form of collective retribution for original
sin. All in all the early Christian concept of freedom
was far removed from that of the Jews; it was, in effect,
freedom to enter into the bondage of God.
After the Dark Ages, which followed the Roman era,
the establishment of order required a power structure,
not liberty; the power of monarchs, of the feudal no-
bility and, from the eleventh century onwards, of the
Church. The economic order was the feudal system
under which a person was bound to render service to
the overlord whose land he held. The trends of the
age consolidated power in the sovereign who, on the
one hand, sought to entrench his position and, on the
other, was looked up to by his subjects in their struggle
for freedom from the power of the feudal nobility.
Legal theory was adapted to these ends. Niccolò
Machiavelli in his Discourses characterized republics
as superior to princedoms and as requiring high moral
quality in citizens. People who lack this must be
governed by tyrants, and in his Prince he proceeded
to analyze and advocate absolute monarchy. Thomas
Hobbes in his Leviathan turned to Natural Law. Men,
he said, in a state of nature were so unprincipled that
the life of Man was “solitary, poore, nasty, brutish and
short.” This ended when all people yielded their rights
to a sovereign, who in return for absolute subservience
guaranteed order and a measure of freedom for all.
The sovereign's external independence and internal
omnipotence posed two serious threats. Under the guise
of the “sovereignty of states” the unbridled pursuit of
selfish policies soon reduced Europe to a barbarous
condition which culminated in the Thirty Years War.
Little wonder that voices, notably that of Hugo
Grotius, began to be heard urging restraint. A body
of duties, known as “International Law,” was evolved
in the hope of limiting the liberty of action of states.
But duties lacking enforceability, which is the case with
International Law, are of little avail, and today, when
the weapons of war are assuming increasingly mon-
strous proportions, the continued insistence on the
sovereignty of states foreshadows a very bleak future
indeed. In the municipal sphere the individual, who
had trusted so fondly to his sovereign to be a bulwark
against feudal oppression, soon found that he had ex-
changed one tyrant for another. Accordingly, John
Locke was moved to argue that when men in a state
of nature entered into the primeval contract with the
sovereign, they surrendered to him only the right to
preserve order. Personal rights to “life, liberty and
estate” could never be surrendered since they were
inalienable, and a sovereign who tries to infringe them
may be overthrown. Locke thus became the philoso-
pher of the revolution of 1688 in England by which
the supremacy of the royal prerogative power was
replaced by that of the Crown in Parliament, and his
theory also furnished the main arguments in the
classic case of Somersett ([1772], 20 State Trials, 1) in
which English Law set its face against slavery for
all time.
In France events took a more drastic turn. Jean
Jacques Rousseau imagined a social contract whereby
sovereignty was surrendered to society as a whole. This
dispensed with the need for a personal sovereign, and
within a few years of his death the French Revolution
put the theory to sinister effect. Once again the pattern
of development was repeated: deliverance from the
evil of untrammelled monarchical power led to the
evil of untrammelled liberty of popular action, which
in turn led to the power of Napoleon.
The problem of protecting the individual was not
to be solved merely by giving him immunity from the
power of the monarch, for power was thereby only
transferred to the faceless institution called “govern-
ment.” Protection against this had to come from an
independent judiciary, that is, one which holds itself
free to weigh governmental interests against individual
interests according to yardsticks of its own. Now, there
is always a measure of interpretative discretion left to
a judge in the application of any rule, and even with
enacted laws a judge can, if he wants, adopt an inter-
pretation favoring the individual. Chief Justice Coke's
assertion in 1612 to King James I that the king was
under God and the Law, was of the profoundest sig-
nificance, for it made the people's ultimate protection
from power rest on the craftsmanship of the law of
which the judges are the exponents, and thereby estab-
lished one of the proudest traditions of Anglo-American
Law.
Where there is a constitution guarded by the courts
their protective function is more pronounced. Baron
de Montesquieu, in his Spirit of Laws (De l'esprit des
lois, 1748), believed the secret of freedom to lie in
vesting the legislative, executive, and judicial powers
of government in separate bodies. Under the Consti-
tution of the United States, which embodies this idea,
the Supreme Court has frequently declared Acts of
Congress to be void for infringing fundamental rights.
Yet another way in which the courts might help is by
refusing to uphold the exercise of legislative power
which, though not unconstitutional, is nevertheless
immoral. Discriminatory racial laws are an example.
Until now, courts have generally not concerned them-
selves with the morality of laws, but it is possible to
find a basis for at least some judicial control. Nearly
every revolution or constitutional settlement takes
place as a reaction against an abuse, and the moral
objectives behind the new power distribution are
built-in limitations on its future exercise. To argue that,
no matter what the circumstances of its origin, power
somehow becomes absolute, is an illogical assumption
and one which has had the sorriest consequences.
Whether courts will adopt this line of approach re-
mains to be seen.
III
The problem of preventing the abuse of liberty is
graver than that of safeguarding people from the abuse
of power, and is far from being solved. It has been
pointed out that it would be unwise to relax legal
restrictions until people are disciplined to behave with
restraint without compulsion. Where is the line to be
drawn? John Stuart Mill in his tract On Liberty (1859)
drew it at harm to others; that is, he would use law
only to forbid activities likely to disrupt any and every
sort of society. Beyond this, he said, the law has no
business to invade privacy. An objection to this is that
no sharp distinction can be drawn between “public”
and “private” activities. Human behavior is a “seamless
web” and in numberless ways what one does in private
can have repercussions outside oneself, and vice versa.
That is why a British judge, Lord Devlin, argued, in
effect, that law may be used even in the sphere of
private activities whenever these are capable of
undermining the institutions which from the fabric of
the particular society (The Enforcement of Morals,
1959; 1965). Thus, the monogamous marriage has be
come an institution of Christian countries and has given
rise to certain precepts of moral behavior. Lord Devlin
would not place immoral activities, even though they
may be conducted in private, outside the reach of the
law if by their very nature they threaten the institution
which is the foundation of the accepted morality. The
danger in this argument is that a blind desire to uphold
institutions can so easily shade off into an abuse of
power.
It may also be contended that the state has an inter-
est in the moral self-discipline of its subjects. However
true and desirable this may be, it is important that
convincing reasons be given. As long as religion pro-
vides the basis for self-discipline, the law may hold
back; but when that influence starts to decline, mere
legal compulsion without alternative support, so far
from preserving a sense of moral duty, will only appear
to perpetuate taboos against which intelligent people
are bound to rebel. This does not mean that legal
restraints should be relaxed, for to do so at the very
time when the hitherto accepted basis of self-discipline
is being eroded is like cutting oneself adrift on a peril-
ous tide.
The prerequisite of freedom in the 1960's and early
1970's, then, is the instilling of a new sense of disci-
pline. It poses a problem to which no answer is yet
in sight, and as long as this is so, the history of freedom
as reflected in law must remain an unfinished story.
BIBLIOGRAPHY
For extracts from the Greek, Roman, medieval, and a few
of the more modern authorities mentioned, see Masters of
Political Thought, eds. E. McC. Sait and W. T. Jones, 3 vols.
(London and New York, 1963). The controversy between
the followers of J. S. Mill and Lord Devlin is fully dealt
with by Basil Mitchell, Law, Morality and Religion in a
Secular Society (London and New York, 1967); also Patrick
Devlin, “The Enforcement of Morals,” British Academy
Lecture (London and New York, 1959); idem, The Enforce-
ment of Morals (London and New York, 1965); this includes
additional essays. See also E. S. Corwin, Liberty against
Government (Baton Rouge, La., 1948); D. V. Cowen, The
Foundations of Freedom... (Cape Town, 1961), Part II;
A. T. Denning, Freedom under the Law (London, 1949); H.
Street, Freedom, the Individual and the Law (1954; London,
1963; New Orleans, 1964); C. Wirszubski, Libertas as a
Political Idea at Rome (Cambridge and New York, 1950).
For a technical legal analysis of liberty, see G. L. Williams,
“The Concept of Legal Liberty,” Columbia Law Review,
56 (1956), 1121.
R. W. M. DIAS
[See also Authority;
Democracy; Equality;
Free Will; Law,
Natural; Social Contract.]
