Freedom, Law, and Rights: Traditional American Thought and Practice – Chapter One

Meaning of Freedom

• Freedom in the traditional American sense = ability to think or act in the absence of coercion; i.e., every decision is made voluntarily.
• Concise aphorism (Confucius): “WHEN WORDS LOSE THEIR MEANING, PEOPLE LOSE THEIR FREEDOM.”
• Freedom-as-non-coercion is sometimes called “negative freedom” (freedom-from interference) rather than “positive freedom” (freedom-to obtain particular goods).

Coercion: Definition & Analysis

• Coercion = deliberate attempt to force another person to act or think as the coercer wants, overriding the victim’s free will.
  • Forms: force, intimidation, threats.
  • Key diagnostic question: Is the person’s choice truly voluntary? If not, coercion is present.
• Understanding coercion is the necessary first step for identifying any violation of freedom.

Securing Freedom: The Need for Law

• Classic Locke maxim: “Where there is no law, there is no freedom …” (John Locke, 1632-1704).
• To preserve liberty we must minimize arbitrary coercion emanating from two sources:
  • Private persons (e.g., thieves, fraudsters).
  • Government authorities (e.g., tyrannical decrees, abuse of office).
• Western political tradition’s chief solution = Rule of Law—a framework of general rules that restrains both private and public power.

Private Law vs. Public Law

• Private Law
  • Governs relations between and among private persons.
  • Aim: prevent or remedy rights-violations committed by private parties.
  • Examples: tort law, contract law, property law.
• Public Law
  • Governs relations between individuals and the state.
  • Aim: restrain governmental power, delineate official procedures & limits.
  • U.S. exemplars: the Constitution, Bill of Rights.

Attributes of a True Law

• A true law = general standing rule of just conduct possessing:
  • Generality – applies to classes of persons/acts, not singled-out individuals.
  • Universality – binding on all, including rulers and ruled alike.
  • Certainty (Prospectivity & Clarity) – publicly known in advance; citizens can foresee legal consequences.
• Laws typically regulate means, not the ends people must pursue.
• Thus, law structures freedom instead of dictating personal goals.

Distinguishing Law, Command, and Legislation

• Command (the polar opposite of law):
  • Dictates a concrete end and often the specific means.
  • Example: “Deliver ten bushels of wheat to the magistrate by sunrise.”
• Legislation:
  • Defined by its source—an official legislative body (Congress, state legislature).
  • Can take the form of true law or the form of commands/other directives.
  • Key insight: Not everything passed by a legislature is automatically a true law.
• Founders’ slogan “a government of laws, not of men” = government ruled by general standing rules, not by ad-hoc commands tailored to rulers’ whims.

Illustrative Examples of True Law

• Moral/legal maxims like “Thou shalt not kill” and “Thou shalt not steal.”
  • They do not require particular ends; they merely prohibit unjust means (murder, theft) while leaving individuals free to set their own life-plans.
  • In practice: One may seek wealth, but may not achieve it by stealing.

How Law Uses “Good Coercion” to Block “Bad Coercion”

• Every law carries a coercive sanction (fine, imprisonment, damages, etc.).
• Example scenario:
  1. Potential robber points gun & demands wallet ("bad coercion").
  2. Criminal law threatens prison for such behavior ("good coercion").
  3. The would-be robber now faces an updated choice-set: (a) desist or (b) risk punishment—both options he dislikes compared to unopposed robbery.
  4. By coercing the coercer, law reduces assaults on peaceful citizens’ freedom.
• Insight: Freedom is preserved not by eliminating all coercion but by substituting rule-bound, impartial coercion for arbitrary, predatory coercion.

Historical Rarity of Freedom-Under-Law

• Negative freedom safeguarded by true law has been exceptionally rare throughout human history.
• Most societies have lacked institutions aimed at limiting either private violence or governmental overreach.
• The American constitutional experiment thus represents a notable, fragile exception.

Philosophical & Practical Implications

• Language integrity (Confucius) is vital: if the word “freedom” is redefined to mean its opposite, genuine liberty erodes.
• Vigilance required: expanding “legislation” that functions as commands risks transforming a government of laws into a government of men.
• Ethical foundation: Rule of Law embodies equal dignity—no person (ruler or citizen) gets a privileged moral exemption.
• Practical upshot: Citizens must distinguish between true laws that secure freedom and mere commands that may undermine it.