Why Freedom Is a Legal Concept

The king will have a copy of the law written for him . . . It will remain with him and he will read it all his life . . . to observe faithfully all the words of the law. –Deuteronomy 17:18-19

You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your fellow countrymen fairly. –Leviticus 19:15

You shall have one law for the non-Israelite who lives permanently with you (in your land) and the native-born in the land (the Israelite). –Leviticus 24:22

More than 50 years ago, Bruno Leoni, in Freedom and the Law, argued that freedom is not only an economic or a political concept, but also, and probably above all, a legal concept, as it necessarily involves a whole complex of legal consequences. The intention of this essay is to provide an overview of the idea of the rule of law, its bearing on freedom, and some vexing complications involved with that idea.

Freedom can be understood various ways—for example, in a traditional sense of conveying restoration of a previous condition before a burden, such forced labor or slavery, was imposed. This sense we express by our use of the phrase “to liberate (from).” Restoration of a previous condition seems to be the meaning of those two ancient Mesopotamian terms, the Sumerian amargi and the Akkadian andurāru, which scholars often translate as “freedom.” The concept may also be understood in the predominately modern sense of conveying a capacity to initiate a new and different activity chosen by the individual. However freedom is understood, the problem arises as to what should be the limits of its exercise so that the action of one individual does not infringe upon the possessions of, and the actions chosen by, another individual or group of individuals, especially when the latter has a much different understanding of how life is to be lived.

This problem calls out for rules that should govern our actions. What must then be addressed is the character of those rules, above all when facing the fact that, although morality is a necessary and defining feature of human reason, moral disagreement is pervasive. Thus, the task is posed of discovering a legal framework where one has latitude of action to pursue one’s goals while not overly constraining another’s pursuit of his or her goals. To paraphrase the words of Spinoza’s preface to his Tractatus Theologico-Politicus (1670): If men were able to exercise complete control over all their circumstances, or if continuous good fortune were always their lot such that there was stability of wants and desires with neither scarcity nor disagreement, there would be no need for law.

Since this condition will likely never exist, the problem becomes, how are disputes to be settled—what Larry Alexander and Frederick Schauer have called the “settlement function of the law”—so that the fundamental disposition of the human heart to be free is not undermined while allowing humans to live among one another even when there exists acute, moral disagreement?

The answer to this question, well known to readers of Law and Liberty, is the rule of law and not of men, as the latter cannot avoid arbitrariness. The actions of the individual, especially when they possess power over the lives of other individuals, must be constrained by law that is certain and stable. As Lon Fuller emphasized in The Morality of the Law (1964), when actions are governed by known, intelligible rules, a framework of reciprocity of expectations exists. The individual is expected to obey the law, and he or she expects others to do the same. And the prerogative of government is constrained by the expectation that it obeys the same law.

Law is not the only basis for reciprocity of expectations; it may not even be the most important one. It is, however, necessary for reciprocity among impersonal relations. If known rules or laws are ignored and violated by arbitrary, ad hoc decision, for example, as may be the case with presidential orders or directives, social stability arising from mutual expectation is threatened. The legal consequences of actions then become unpredictable, and not only that; they also cannot avoid being discriminatory. The actor (for example, the president and the administrative agencies of the executive branch of government) promotes a particular outcome unanticipated by, and unfavorable to, another—and coercively so, when the actor has power over the other person. This is one reason that freedom requires the rule of law and not of men.

Given that there are sometimes unavoidably acute moral disagreements over how life should be lived, in order for the rule of law to give a basis for individuals and groups of individuals to live with one another, law must aspire to be neutral among substantive moral claims, even if that goal is never fully realized. After all, discriminatory coercion may arise not only in the undesirable case of the rule of men rather than law, but also when the government passes law. This happens in cases where, in a representative democracy, the majority, in the passing of law, justifies that law by appealing to its understanding of morality, buttressed by reason always believed to be compellingly beyond dispute, as opposed to the morality of the minority. Thus the rule of law ought to mean that the law is limited by a formalism that provides certainty, predictability, and stability.

Such a formal limitation in no way denies the rule of law’s moral foundation, for it assumes that peaceful settlement of disputes, through known and stable rules, is preferred to violence. In this assumption lies the significance of the description of the first law promulgated in the Bible: the prohibition of wanton murder, with specified punishment, as described in the covenant with Noah in Genesis 9:6. It is taken for granted here, also, that individuals are capable of being held responsible for their actions. And the reciprocity of expectations entails the morality of keeping one’s word. Fuller was therefore justified to recognize that this formalism, characteristic of the rule of law, has its own “internal morality,” what he called “a natural law concerned with procedures and institutional arrangements (for example, an independent judiciary)” that is distinct from the natural law of substantive ends.

This formal, internal morality of the rule of law rejects discriminatory coercion, as it is also characterized, at least as an ideal, by equality before the law, applied generally to all citizens. As an ideal embodying this equality and generality, this aspect of the rule of law stands opposed to such concepts as “social justice,” which in fact cloak the discriminatory coercion of the law (and which require robbing Peter to pay Paul or, as has increasingly been the case, compelling Peter to become Paul). The objection to the pursuit of social justice through law is not merely the continually shifting meaning of what it refers to; it is above all that pursuing social justice leads to violation of what should be the limited domain of the law by discriminatorily imposing substantive moral claims upon those who do make and would not make those claims.

The rule of law rests, in other words, upon an understanding that it should not only be formal but also that the reach of the law should be limited, precisely so that law may provide a framework for individuals, with moral disagreements, to live peacefully with one another while choosing how to live their lives. The understanding that the reach of the law should be limited indicates, as F.A. Hayek and many others have observed, that the rule of law is a necessary but not a sufficient condition of a society of free individuals and groups of individuals.

The idea of the rule of law is hence not one of mere legality. It is that, but it is also something more.

There must also be present a shared understanding, consensus or public opinion, of the limits of what is properly within the the reach of the government and what is outside that reach. In our legal tradition, one (but not the only) important way that the government’s reach into the lives of its citizens has been limited has been recognition of the inviolability of private property and relations attendant upon that recognition—for example, contractual relations, freely entered into, as when an individual or a group of individuals—a corporation—is free to deploy its property as it sees fit, within a realm of activity and association separate from the government, a realm often referred to as civil society.

One of the more sustained examinations of this subject is Hayek’s National Bank of Egypt lectures of 1955, The Political Ideal of the Rule of Law. In these lectures, Hayek identified a complex of doctrines that seem to me to be expressions of what Fuller described at greater length in The Morality of the Law as the internal morality of the law, or, as this can also be expressed, the natural law of procedure and institutional relations. The first of these doctrines is that there be equality before the law; that is, the laws must be the same for all citizens, including those who wield power, as implied in the first epigraph, from Deuteronomy, that begins this essay.

In what is known as the tradition of common law, there is a long history of this formal criterion of equality before the law, as can be seen in Darcy v. Allen (1603) and The Petition of Grievances of 1610. It was likely implied earlier in Henry de Bracton’s oft-quoted observation that above the king is the university of the realm, such that the sovereign is not the author of the law but the guardian of the law, certainly subject to the law.

Related to equality before the law is the generality of the law: that the law must afford equal protection for all by being applicable to all, whether rich or poor. And this idea is embodied in my epigraphs from Leviticus.

The third doctrine is the certainty of the law, where the law is known—that is, promulgated, intelligible, and relatively stable over time. The certainty of the law provides knowledge of that latitude or sphere of activities within which the individual may pursue his or her goals with confidence that they are free to do so—a certainty afforded by those rules that specify the boundaries of that latitude or sphere, in other words where the individual may be constrained from acting freely (for example, causing physical harm or committing fraud). The idea of the rule of law implies that if human action is governed by rules, then the individual is able to anticipate what other individuals, the courts, and the state will do, at least to the extent that the rule of law is not compromised by executive discretion.

As one can see from the three Biblical epigraphs, these formal characteristics of the rule of law  —equality, generality, and certainty—or at least adumbrations of them, are to be found in antiquity, even before their appearance in the history of ancient Greece and Rome as described by Hayek. Various early expressions of this procedural natural law are well known in the history of law.

There is for example procedural due process, which is what Edward Coke, mistakenly I think, restricted the term lex terrae to mean in the Magna Carta. Principles such as “no retrospective legislation” (nullum crimen, nulla poena sine lege), and keeping one’s word or honoring one’s contractual obligations (pacta sunt servanda), are found in Roman, canon, and rabbinic law. Over time there arose, attendant to this procedural formalism, institutional arrangements that were further conducive to the rule of law: specifically an independent judiciary, and thus judicial review; and a recognition that the power to make laws should be distinct from the power to enforce them (separation of powers).

So much for our (admittedly condensed) overview of the idea of the rule of law. It is obviously an idea whose realization has faced, and continues to face, numerous difficulties, and that is our next subject.

One threat to the rule of law, analyzed at some length by Hayek, arose from the administrative demands of the increasingly comprehensive activities of the modern state. The danger here to the stability and certainty of the rule of law is that administrative agencies might make their own laws, and especially so when they will do so in response to ad hoc decisions of the executive. The danger is all the more acute given the complexity of the tasks undertaken by what Roscoe Pound, in the Ideal Element in Law (1958), characterized as the “service state”: where the distinction between state and civil society is minimized by the government’s asserting a common purpose, or what it perceives at any particular time to be the public welfare—above all, where it is thought that the responsibility of the government is to address what are defined at that time to be urgent social problems.

The threat here to the rule of law is that the actions of the administrative agencies risk being above or beyond the law. There can arise an administrative lawlessness that, for example, too frequently recurs to executive prerogative—what we today know as the executive order that the President may issue, the overuse of which subverts the rule of law in various ways. Such overuse raises the possibility that 1) executive orders, through the actions of the administrative agencies, may not conform to declared law; and 2) the law is no longer constant and stable. One no longer understands what the law requires because of ad hoc executive orders.

Consider what had been only a possibility but is now our reality: the executive orders of one President are rescinded by the next President, thereby making a mockery of the certainty of the law. Given the development of the modern state and the complexity of its responsibilities, the obvious response to this threat posed by administrative lawlessness to the rule of law is for administrative actions to be subject to the review of the courts. However, the question we must then ask is, which courts? Given the complexity of administrative matters, must those courts be specialized—must there be a court corresponding to a particular task or particular tasks under the umbrella of administration? If so, how independent from the executive and the particular administrative agency will such a court or courts be?

There are what appear to be other, and even more formidable, obstacles to realizing the rule of law that were not analyzed by Hayek. Beyond the proliferation of administrative agencies of the modern state, there is also a problem related to the procedural formalism of the rule of law. Earlier, it was observed that even when there is law, in contrast to ad hoc command, the rule of law may still be compromised when those activities and property of both the individual and the corporation that tradition placed outside the reach of the law are legislated to fall within its reach. However, legislation itself may pose a different kind of problem.

As Leoni observed, even though legislation provides certainty to what the law is, people cannot be certain that the legislation of today will be in force even the very next day because of new legislation. As a result, people are prevented not only from freely deciding what to do, but also from foreseeing the legal effects of their daily behavior. In this case that corresponds too well to our own experience, while the law—written and promulgated through legislation—may be both known and general, it is also subject to ever-changing circumstances, and especially the increasing demands of an overly activist service state.

The problem here is that legislation may undermine and increasingly has undermined the long-run certainty of the law. Thus, the consequences of the rule of law in providing stability of expectations have changed. Indeed, the very meaning of the rule of law has changed, and perhaps unavoidably so, as the expectation of the certainty of the law, arising from its constancy over time, recedes. In other words, despite legislation’s exhibiting the formal criteria of (short-term) certainty and generality, it may still be arbitrary—that is, not the arbitrariness of command but temporally arbitrary. And this temporal arbitrariness can be as offensive as the more overt kind.  As an illustration, let us imagine someone pleading with a doctor to prolong artificially the life of that person’s parent or grandparent simply because the person’s inheritance may significantly differ depending upon whether death occurs on December 31 or January 1, because new legislation has drawn that distinction for consequences of the transfer of property.

There is yet another problem for the realization of the rule of law that I consider to be the most vexing of all. Near the end of The Political Ideal of the Rule of Law, Hayek writes:

if our aim is to assist the formation of a spontaneous order and to restrict the use of coercion as much as possible, our main task must be to adjust our rules, so as to make the spontaneous forces of society work as beneficially as possible.

Leaving aside here the ambiguities of Hayek’s use of “beneficially,” we readily follow him in recognizing those rules as the criteria of the rule of law: generality, equality, and certainty. Even though we agree with Hayek and many other writers on the rule of law such as Leoni and Fuller, there remains the question of whether or not the rule of law’s generality and equality are made possible by restricting, if not eliminating, freedom, and by hampering the formation of certain spontaneous orders, as paradoxical as that possibility might at first glance seem.

Historically, the generality of the law and equality before the law became ascendant as legal principles in European history beginning in the 17th century. This happened, however, through the sweeping away of multiple systems of the law—the overturning, for example, of the legal pluralism introduced circa 1075 by the reforms of Pope Gregory VII, which explicitly established the coexistence of Church or canon law with state law.[1] So, one wonders if, in fact, some of our understanding of the rule of law, as described and defended so well by Hayek, rests upon the existence of a centralized state that has over time increasingly succeeded in establishing the generality of the law and equality before the law throughout its territorial jurisdiction, but at the expense of the special laws of different associations.

To put this vexing problem before us as succinctly as possible: Do the generality of the law and equality before the law require only one law of the land? Leoni seemed to think so in that he, in contrast to Hayek, was not sanguine about the existence of two different judicial orders, one to settle disputes between ordinary citizens and the other to settle disputes dealing with administrative agencies. While the latter—judicial review of administrative action by administrative courts—is obviously preferable to the lawlessness of having administrative agencies responsible only to the executive (or to themselves), is this really equality before the law?

This question raises a much broader concern, one that was ignored by Hayek but acknowledged by Fuller. Once again, if the doctrines of the generality of the law and equality before the law rest upon one uniform law of the land, how are we to evaluate multiple legal systems to be found within the same population? To formulate the question differently: must all law be lex terrae?

Clearly, the problem surfaces with federalism, where not only is there federal law coexisting with state law, but the citizens of the United States are subject to different laws depending upon in which state they reside. I do not wish my observation of the complications to the generality of the law and equality before the law posed by the existence of multiple systems of law—in this case, by federalism—to be misunderstood. The principle of federalism can rightly be defended on the basis of self-rule and separation of powers. My point is simply that the existence of multiple systems of law, arising from what Hayek characterized as the spontaneous forces of society, complicates the rule of law.

If one takes seriously, as one should, the aim of assisting the formation of spontaneous orders and also that of restricting the use of coercion as much as possible, the complications posed by multiple systems of law to the rule of law become more, not less, acute. If the freedom to associate voluntarily is to be respected, then doing so should mean that those associations will be conducted according to the participants’ own rules and regulations, that is, their own laws, at least to the extent that these associations of individuals are autonomous.

It is an elementary mistake to consider law as being only that which is enacted by the state. Looking at it that way runs counter to how a free people, at least a people with associational freedom, lives. But if so, then those who are members of different associations will conduct their affairs under a different set of laws than will those who are not members of that association. What then of the generality and equality of the law? Hayek ignored this problem.

The problem posed by multiple systems of law can be seen in the Supreme Court decision in Reynolds v. United States (1879), where the federal government outlawed the religiously sanctioned bigamy of the Mormons in the then-territory of Utah.[2] Numerous other examples of the complications posed by associational freedom could be adduced—for example, a university’s deciding that federal affirmative action law should not apply to the criteria it uses (special law) in appointing faculty (criteria such as excellence in teaching and research).[3] In other words, associational freedom implies a legal pluralism with distinct jurisdictions, where the state is but one among a number of associations. As Frederic Maitland argued more than a century ago in his essays “Trust and Corporation” and “Moral Personality and Legal Personality,” a legal pluralism of a vigorous associational freedom would not require that the validity of any and all “special law” be dependent upon that state’s approval.

Needless to say, legal pluralism would necessarily bring with it pronounced frictions between the various corporate bodies. Perhaps such frictions could be alleviated by a long tradition of dealing with them. Likely, some kind of constitutional basic law of the land would be necessary. That basic law would have to specify:

  • certain rights common to all citizens, irrespective of the association in which they are members and under whose special laws they live—for example, a right of exit without overly burdensome consequences, inviolability of private property, honoring one’s contractual obligations not only within the association but with individuals from other associations, and the prohibition of murder (thus application of the death penalty for apostasy under sharia law would be forbidden); and
  • the relations between various associations or corporate bodies.

Many complications would have to be dealt with, but they are already upon us. The legal significance of the 2014 case of Hobby Lobby Stores, Inc. v. Burwell and the 2016 case of Little Sisters of the Poor Home for the Aged v. Burwell is missed if these cases are understood as only expressions of the contours of the religious liberty specified by the First Amendment. More striking for our purposes is that they pose the problem of legal pluralism.

At this point, we must take a step back to obtain a broader view of the sociological or anthropological consequences of law: specifically, the relation between law and culture; that is, the bearing of law on the recognition of being related. It is likely that the stable existence of a legally pluralistic society and a properly limited state can only be possible on the basis of a significant degree of cultural consensus, so that the frictions between various corporate bodies would not aggravate instability. Even so, other difficult problems arise: Is that consensus predicated upon a law of the land, uniformly applied throughout the jurisdiction of a national state? Or can that consensus, a national culture, coexist with legal pluralism? Or does legal pluralism eventually lead to a pronounced balkanization of society?

There thus appear to be theoretical and practical problems with the rule of law. Nonetheless, there should be no doubt that the rule of law is necessary for freedom. Recognizing that necessity does not mean that there aren’t a number of problems and paradoxes that richly deserve further inquiry, to try to fill in what has merely been sketched out here.

[1] See Harold J. Berman, Law and Revolution I & II (Harvard University Press, 1983/2003).

[2] For a recent discussion of the case, see Richard A. Epstein, The Classical Liberal Constitution (Harvard University Press, 2014), pp. 463-65.

[3] See the 1979 Jefferson Lecture of Edward Shils, “Render unto Caesar . . . Government, Society, and the Universities in Their Reciprocal Rights and Duties,” reprinted in The Calling of Education (University of Chicago Press, 1997), pp. 177-233.