Individual Liberty and the Rule of Law; R. Foley, Jr.

If law is defined as restraint on hu man action and liberty as the abI 1 I use the terms "liberty" and "freedom" interchangeably in this article. Ber lin 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 defini tions. Rather, this article is concerned with the search for a precise, valid defini tion of liberty, one which reveals and cor rects 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 RIDGWAY K. FOLEY, JR. (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. I Ridgway K. Foley, Jr., is an attorney associ ated with the firm of Souther, Spaulding, Kin sey, Williamson & Schwabe and practices law in Portland, Oregon.

This article is scheduled for publication in the November 1971 issue of The WilIamette Law Journal and is printed here with the ex press permission of Willamette University, Salem, Oregon. 2 What the existent generation pres ently 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. 357 358 THE FREEMAN June sence of restraint, the concepts are inimical and conciliation impos sible. This article proposes briefly to scrutinize individual freedom and the rule of law, to determine if the working definitions are accu rate, and to decide if overgeneral ization has obscured the whole truth of partially valid tenets.

On the first blush, it may appear singular for a law review to con sider the general quantity and quality of the law. Such considera tions 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. Eradica tion 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 re iteration and refinement of essen tial ideas is unrewarding; we may need a gentle reminder of the past, and demonstration of its applica bility to the dynamic present. It is the use of law for laudable goals at the possible expense of human freedom which commands re-ex amination. After all, most men agree that clean air, good housing, and a commodious job are desir able 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 de stroy human action, such a tact should be trumpeted to all con cerned; before man surrenders his freedom for an end, he may want to know (1) if the suggested ac tion 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 under standing and analysis is the devel opment 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 inani mate 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, how ever, imprisoned in Salem, cannot be in Paris or Rome or, indeed, in any place but his cell, so he is prop erly described as unfree or re strained. 3 Leonard Read amplifies and refines this truth orginally enunciated by Ralph Waldo Emerson. See, e.g., Leonard E. Read, Let Freedom Reign (The Founda tion for Economic Education, Inc., Irving ton-on-Hudson, New York, 1969), 78 et seq. 4 See Fuller, Ope cit., at 1306-1307, for comments upon how the "scientific meth od" trend encourages thinkers to "play down" purpose.

1971 INDIVIDUAL LIBERTY AND THE RULE OF LAW 359 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 attempt ing to escape presents little real choice at all, but it remains a choice. It becomes viable if condi tions in prison deteriorate to the progressively intolerable. How ever, 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 in stant, 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 lib erty merely because he cannot think like Albert Einstein, leap over buildings like Superman, or play basketball like Bill Russel1.6 5 See Berlin, op. cit., 7, and Fuller, id 1309-1310. Careful analysis of this re quirement destroys the naive "economic slavery" argument. But see Marshall Co hen, "Berlin and the Liberal Tradition,"

10 Phil. Quar. 216,225 (1960). 6 Thus, the specious argument concern ing maximization of human freedom by rendering all men "equal" is bared. Man can be free, meaningfully free, and not possess the identical natural attributes and choices of his fellows. Those who would fit all men in a Procrustean bed not only perform a disservice to those stretched and squashed, but also mock the meaning of freedom by using law in A third essential element of in dividual 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 bio logical limitations. Robinson Cru soe, 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 in terference with individual actions.

Fourth, some element of intern al 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 subj ect to no deliberate human interven tion when he subdued the inhabi tants of his world and became ab solute 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 conthe name of freedom to perform restrain ing acrobatics. 7 See J. Ebbinghaus, "The Law of Hu manity and the Limits of State Power," 3 Phil. Quar. 14, 15 (1953).

360 THE FREEMAN June science, is implied in the very defi ni tion of liberty. 8 Some thinkers have also recog nized that unlimited power of hu man action without external re straint could result in license, an archy, 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 lib erty into "positive" and "negative" aspects; negative liberty is con cerned with the inquiry, "In what area is man left free to do what he 8 See Edmund A. Opitz, "Defining Free dom," THE FREEMAN, Vol. 12, No.9 (Sep tember 1962), 3, 5: "Rather than freedom being the mere absence of restraint we begin to see that freedom is indeed the acknowledgment of certain kinds of re straints - or constraints. Inwardly a man is free when he is self-determined and self-controlling. Outwardly, a man is free in society ... when the limitations he accepts for his own actions are no greater than needed to meet the requirement that every other individual have like liberty."

wishes without interference by other men, singly or in the collec tive ?"9 Implicit in this question concerning liberty is the premise that some restraint on human ac tion exists compatibly with free dom. To the extent that this area of noninterference is contracted, the individual is coerced and un free, but the very concept of an area of noninterference presup poses some limitation. The external restraint implicit in liberty is a recognition of free dom of action as an equal right of all purposive beings in society.tO The necessary implication is that liberty is not the total absence of restraint. The quest is for the per missible 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 re stricting of the law only to its ra tional sphere of organizing the right of the individual to lawful self-defense. . . ."11 Thus, the 9 See generally, Berlin, op. cit., 6.

10 See Fuller, op. cit., at 1322. Both Berlin, id' 8, and Fuller, at 1310-1313, criticize Mill for believing all forms of social order were undesirable; I wonder if that is the correct interpretation. Ful ler claims that some order is necessary to make choice meaningful, but query, the relevancy of his examples. 11 Frederic Bastiat, The Law (Dean Russell Translation, The Foundation for 1971 INDIVIDUAL LIBERTY AND THE RULE OF LAW 361 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 meaning less unless liberty is also measured in terms of power to accomplish ends. 13 The freedom to do some thing does not imply success; it in cludes freedom to try and fail.

Freedom to undertake a venture may well be of profound impor tance to the individual sans suc cess in the ultimate endeavor. Hayek has wisely observed I4 that Economic Education, Inc., 1950), 51. See, also, p. 6. The Law also appears in Fred eric Bastiat, Selected Essays on Political Economy (D. Van Nostrand Company, Inc., Princeton, New Jersey, 1964),51-96. 12 W. E. Sprague, "What Is 'Freedom'?" THE FREEMAN, Vol. 12, No. 1 (January 1962), 38, 44; see also John C. Sparks, "Freedom to Decide," THE FREEMAN, Vol. 12, No. 10 (October 1962), 38. Berlin, Ope cit., 15, Note 1, indicates some of the many variables to be considered in measuring the amount of freedom a human being possesses in a given situation. 13 This would seem to be the suggestion in Oscar and Mary Handlin, The Dimen sions of Liberty (Harv. U. Press, 1961), 11,18. 14 F. A. Hayek, "A Case for Freedom" THE FREEMAN, Vol. 10, No. 10 (October 1960), 32, 34. See generally Professor the concept of liberty cannot be re stricted 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 favor able results will far outstrip the unfavorable. The libertarian 15 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 vol untary choice. Individual freedom is the lack of formal or informal external re straints 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 th#eir neighbors. It is the absence of human impediment to the vol untary action of fellow human be ings. The permissible limitation on free choice is the recognition of Hayek's monumental work, The Constitu tion of Liberty (University of Chicago Press, 1960). 15 This term is utilized to avoid a con fusion of labels fostered by the statist prostitution of the nineteenth century concept "liberal"; "Libertarian" or "Vol untarist" includes Mill (in his earlier years), Constant, De Tocqueville, Bastiat, the neoclassical economists, members of the Austrian free market school of eco nomics, and persons in like tradition.

362 THE FREEMAN June 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 de noted "law." For the purposes of this article, it is sufficient to iden tify several classes of law, well ac cepted as such in the contempo rary 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, ordi narily accomplished by policies, rules, orders, decisions, and regu lations, operative within a given territorial unit; its ultimate au thority resides in the monopoly of coercion possessed by the state. 16 Coercion as an essential element of the legal system cannot be un derstated, even where compliance with law may be secured either by mere threat of force or by subtle forms of coercion. 16 The ongoing jurisprudential anal ysis of the concept of law cannot be ig nored or treated lightly. Although sub ject to criticism and disagreement, the work of H. L. A. Hart stands tall among his fellows; his influence must be acknowledged. See, generally, Hart, H.

L. A., The Concept of Law (Oxford at the Clarendon Press, 1961), passim. See also Ronald M. Dworkin, "Is Law a Sys tem of Rules?" Essays in Legal Philos ophy (University of California Press, 1968 [Summers ed.]) , 25-60. The law is coercive insofar as it delimits the range of alternatives otherwise open to the individual actor, whether the results of non compliance are penal sanctions in the traditional sense, or the fore closing of legal processes for re dress to the noncomplying indi vid ual. 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.18 Throughout the remainder of this article, by ex ample and analysis, the interrela tionship of law and liberty and the application of these two proposi tions will be explored.

Law and the Ambush of Liberty Analysis of the relationship be tween law and liberty is compli cated 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 actu ally premised upon such masquer ading concepts may obstruct in dividual liberty, but the possibil ity of erosion of the concept is so likely that it is necessary to un17 See Fuller, Ope cit., 1314, Berlin, Ope cit.,5. 18 Bastiat, Frederic, The Law, Ope cit., 11.

1971 INDIVIDUAL LIBERTY AND THE RULE OF LAW 363 mask some of the most common interlopers. (1) Strange bedfellows: Liberty, Equality, and Fraternity When liberty is properly defined as the absence of human interfer ence with the actions of a pur posive individual except to the ex tent required to assure like liberty to all other individuals in society, liberty and equality become singu larly discordant companions. Lib erty has long survived the grave yard of dogma because the liber tarian accepts man as he finds him, an extraordinarily complex, voli tional being, capable of creation or destruction, searching for muitiple goals; 19 equality is curiously in compatible 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 es sentially brutish and incompetent, incapable of betterment and unde serving of salvation, although the same thinker may posit that man acting in the collective somehow achieves great creative powers. 20 19 See Wendell J. Brown, "What Lib erty Is," 47 ABA J 290, 291 (1961).

20 Witness the modern egalitarian lib eral. He gives lip service to the concept that all men are created (or must be made) equal, yet he distrusts man and his capacity to choose; he would fore close choice or impose his choice upon Liberty is both a desirable and achievable goal; equality is nei ther, unless equality means "equal ity before the law," equal treat ment 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, tradiother men. His goal seems to be to seize control of governmental apparatus and choose for an unwilling multitude that which they "need" or "should choose," apparently if they understood the prob lem as well as the egalitarian liberal thinks he does. (Yet these same demented members of the mass apparently have enough native intelligence to elect our liberals to office.) Apparently it is right to help your fellow man; apparently also, to the liberal, free individuals do not as sist their unfortunate brothers; there fore, the liberal 'takes charge and makes the choice (who and how much to help) and a swelling welfare system is nurtured and sanctioned by law.

Again, the liberal cannot accept the possibility that free individuals could carry the mail safely, quickly, and more efficiently than a public service, and thus a governmental mail system lives on at an amazing cost and grinding inefficiency. For examples of "governmental" func tions which could and have been per formed more adequately by private in dividuals, see the interesting little book recently published, William C. Wooldridge, Uncle Sam, The Monopoly Man (Arling ton House, New Rochelle, New York, 1970). For two views of the American liberal in his element, see M. Stanton Evans, The Liberal Establishment (The Devin-Adair Company, New York, 1965) and William F. Buckley, Jr., Up From Liberalism (Hillman Periodicals, Inc., New York, 1961).

364 THE FREEMAN June tionally 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 free dom. 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 facul ties 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 shroud ing liberty. Berlin has clearly in dicated that the cries of oppressed classes and nationalities for "lib erty" often obscures their real de sire, 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 individ21 An excellent article dealing with the true nature of equality is to be found in R. Carter Pittman, "Equality Versus Lib erty: The Eternal Conflict," 46 ABA J.

873 (1960). 22 Berlin, Ope cit., 39-47. ual 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 responsi bility for his acts, placing re sponsibility· 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 lib erty cannot be enforced - it must be voluntary.23 (2) Liberty and self-government: Berlin's positive libe1'ty 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 ques tion of "to what extent shall I be free in my actions from the delib erate intervention of others 1" with the inquiry, "To the extent that I am to be coerced by others, who should coerce me 1"24 Cohen has taken issue with this analysis, 23 Bastiat, OPt cit., 25. 24 Berlin, OPt cit., 6-19 generally.

1971 INDIVIDUAL LIBERTY AND THE RULE OF LAW 365 terming it "academic, inflated and obscure."25 He argues that Berlin confuses the positive-negative lib erty distinction with a distinction between individual liberty and public authority, and that the tra ditional libertarian thought was identified not only with a search for "negative" liberty, but also with the development of self-gov ernment. 26 Despite these criticisms, there is a distinction between the form of the state and the area of nonin terference. 27 Democracy can be as subvertive of liberty as autocracy; 51 per cent of the electorate could vote to plunder and pillage the re25 Cohen, Ope cit., 216. 26 Cohen, id generally, especially 217. Of course these are not the only argu ments advanced against Berlin's thesis in this well-written article. For example, at page 222, Cohe~ claims that economic tyranny parades as a negative liberty concept, and that people have a drive to be "free" from this oppression; it is ob vious that Cohen has fallen into the eco nomic slavery fallacy here.

27 Of course, there is nothing new in what Berlin says; Bastiat, writing in 1848, stated, Ope cit., 16: "In fact, if laws are restricted to pro tecting all persons, all liberties, and all properties; and if law were nothing more than the organized combination of the individual's right to self-defense; if law were the obstacle, the check, the punisher of all oppression and plunderis it likely that the citizens would then argue much about the extent of the franchise?" See also Berlin's contentions, Ope cit., on the confusion between liberty and sov ereignty, pp. 47-52. maining 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 ab solute monarch who governs solely within a strictly limited sphere of state action, preventing fraud and violence, and providing for the set tlement of private disputes.

Once this basic distinction is recognized, Cohen's criticism is rendered less vital. To acknowl edge the distinction between lib erty and self-government, and to admit the possibility of perversion of democracy into mob rule of might-makes-right, is entirely dis tinct from contending that self government is undesirable or less favorable than another govern mental system. Certainly libertar ian tradition has consistently con cluded that self-government not only fulfills the basic human de sire 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 de generate into the worst kind of totalitarianism. 28 The demented 28 Id 16-19, 25-29. Again Bastiat was over a century ahead of Berlin on recog nizing the dangers presented by Rous366 THE FREEMAN June idealist glorification of the state influenced two vicious forms of state barbarianism in this century, national socialism and commu nism. Yet this very idealism com menced with the premise of a nat ural 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 ev ery other man. Therefore, the gen eral will represented the "rational choice" of each member of society, although a given individual mem ber 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 ;30 this reveals anseau's philosophy; compare Berlin, ibid.

48-49, with Bastiat, Ope cit. 44-46; see also Pittman, Ope cit., generally. 29 Berlin, id 29-39, especially p. 39, showing how liberty and authority tend to become identical. 30 For example, under the specious ar gument that "men cannot do this for themselves" the state may coercively deother evil, since an individual rec ognizes less responsibility for the consequences of a choice where his personal choice is one step removed from the effecting cause. On a somewhat lesser, but no less pernicious, plane, the Fabian ism sweeping the West 31 today proceeds upon the same illogic, idolizing the expert and the plan ner who know better than the cit izenry what the latter "wants" done in a given situation. The lib ertarian recognizes the vital truth that not only are the ends of man in potential conflict32 but also that individual voluntary action is the only 'method by which one's des tiny can be completely and morally determined, even if the determina tion so chosen might appear "ir rational" to an observer. 33 To be free is to be allowed to make one's own mistakes.

prive individuals of their property (tax es) 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, Ope cit., 20. 31 Exemplified, for instance, in the works of John Kenneth Galbraith. 32 See Berlin, Ope cit., especially 52-57. 33 Note, I do not say "disinterested" observer. Quite often we neglect analysis of the interest of those persons who want to do something "for" us, those who pose as unbiased and disinterested experts. Their real interest is often anathema to the cause of voluntarism.

1971 INDIVIDUAL LIBERTY AND THE RULE OF LAW 367 (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 in herently posits individual choice for oneself, it does not prevent the choice for "security" in all in stances. Security is inimicable to liberty where one not only chooses not to choose, but his choice, or dinarily in the collective with other similarly situated, operates by some sanction to force that choice upon another unwilling in dividua1.34 Man commonly desires to plan for his retirement or old age; it is not a perversion of lib erty to choose to enter a voluntary arrangement whereby a private in surer 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 34 Mr. Sollitt concisely describes the situation: "We invented a fascinating new parlor game in which we all stand in a circle, each with his hand in the next person's pocket, all seeking to get richer thereby." Kenneth W. Sollitt, "Four Foundations of Freedom," VIII Essays on Liberty, 176, 181 (The Foun dation for Economic Education, Inc., Irv ington-on-Hudson, New York, 1961).

wish no program at all, or, more likely, wish to plan for the future in accordance with their unique situation. An amazing example of confu sion 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 pro grams without criticism, accepted as respectable as though they could be achieved in fact. "Freedom from want and fear" may repre sent basic human desires but to call them freedom is foolish. 36 (4) Enforced orthodoxy Again, liberty may be confused with a system of enforced ortho35 See Frederick A. Manchester, "The Tricky Four Freedoms," VII Essays on Liberty (The Foundation for Economic Education, Inc., Irvington-on-Hudson, New York, 1960), 272.

36 Unless man earnestly desires the bottled-baby routine of a brave new world, I seriously question whether "free dom from fear and freedom from want" are possible. "Fear" is a singularly in ternal matter which cannot be cured by state-sanctioned bread and circuses; and, as I studied economics, that whole en deavor was based upon the major premise that man's wants are insatiable and that the supply of goods is limited, so it would seem that "want" cannot be satisfied by autocratic or bureaucratic fiat.

368 THE FREEMAN June doxy, sometimes signified the "con sensus" fallacy, which provides for such a limited range of choice that the individual is not really free at all. Sunday laws are a common ex ample of this concept, where re ligious freedom means freedom to be religious in the manner recog nized by the community. Compul sory 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 con scription, now under some sem blance of attack in the halls of Congress. 37 The concept of a con script 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 democ racy.

37 While the "conservative" libertarian has long recognized the diminution of freedom inherent in the Universal Mili tary Training Act (see Candidate Gold water's recommendations for an all volunteer army in the 1964 presidential campaign), it is only recently that the idea has found favor with the liberal politicians and media. Now that the con cept is popular, many rush for a seat on the bandwagon. (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 lib erty as the absence of human in terference with individual actions except as is necessary to insure equal freedom for all. Yet, an "un equal liberty" may parade under the mask of liberty; this inter loper may partake of some attri butes of liberty, but only for a lim ited group of persons. For ex ample, 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 re strained, not free. In fact, the rul ing 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 crea tive potential because of the op pression, the rulers suffer the loss of that potential outflowing of pro ductivity. When examining a restrictive norm allegedly enacted or adduced to advance freedom, a relevant in38 But what of the defective, aged, and insane who must be incarcerated "for their own good"?

1971 INDIVIDUAL LIBERTY AND THE RULE OF LAW 369 quiry is "freedom for whom?" If the law extends privileges to one group at the expense of others, and is not founded upon the legiti mate state function of preventing fra ud 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 per sons 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 with out authority of law, coerce col ored persons and prevent them from voting, breach the doors of their church and harrass their peaceful meeting, or fail to pro vide an equal administration of justice for persons of all races by excluding qualified Negroes from the venire.

39 It would seem that some of the prob lems pres en ted may be reduced to the question of advisability of prior re straint, that is, whether a restrictive law ought not to be enacted because if that la~ is not passed there is a possibility of abuse of freedom. I think Hayek's argument, op. cit., would sufficiently an swer this contention. (6) The divisibility fallacy Statist philosophy often ob scures the essential fact that lib erty 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. 40 Thus, the con tention really means that the lib erty of some persons must be cur tailed and in some mystical way the liberty of other persons will be expanded.

What those propounding this argument truly mean is that cer tain aspects of liberty should be restricted while others remain un molested (for the time being), but emotive words are utilized to se crete the true justification. Thus, while the United States currently witnesses a growing recognition and sanction of the constitutional ly specified freedoms of speech, press, association, and religion, an 40 See William Tolisches, "Private Property and Freedom," THE FREEMAN, Vol. 11, No.2 (February 1961), 46.

370 THE FREEMAN June over-all diminution of liberty oc curs. 41 The clearest present deprivation of liberty is to be found in the market place where state interven tion has whittled down the indi vidual's choice of alternatives. Be cause of the artificial human rights-property -rights distincti on, 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 con trolled, these adj unct 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; free dom 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 free dom because, to be effective, they must utilize the product of the market, and where the state con41 Dean Russell, "Freedom Follows the Free Market," X Esso,ys on Liberty (The Foundation for Economic Educa tion, Inc., Irvington-on-Hudson, New York, 1963), 198, 200-201. troIs 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 ob vious types of laws and examine their peculiar relationship to lib erty, 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 individ uals when the harm is such that its existence threatens the very structure of society and all per42 See, generally, Russell, id, and also his article, "Basis of Liberty," THE FREE MAN, Vol. 12, No, 7 (July 1962), 9, See also, Sparks; op, cit, 44, There is a cur rent argument advanced that desirable characteristics can blossom in a severely restricted society which restrains indi vidual liberty; this contention is sup posed to obviate the contention that lib erty is necessary for the morality and productivity of man. It seems clear, how ever, that creation in the restrictive so ciety is not caused by state intervention but in spite of it.

43 Bastiat, op. cit., 8-9, attributed the destruction of liberty to greed or to false philan thropy.

1971 INDIVIDUAL LIBERTY AND THE RULE OF LAW 371 sons situate therein. Criminal laws are absolutely necessary to the ex istence of liberty because their function is to protect the individ ual, by deterrence and penalty, from infringements on individual liberty by those who would tres pass upon the equal freedoms of others. If nothing else is achieved by the state, it should at least iso late those who would forcibly and fraudulently deprive their neigh bors of life, liberty, or property. It is difficult to imagine a system where liberty could flourish with out institutions to prevent indi vidual 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 prop erty from the transgressions of others, could be perverted into a destroyer of freedom. However, a legal system which fostered plun der of property by making individ ual resistance thereto unlawful certainly would restrict liberty.

Freedom is unduly inhibited where the criminal laws utilize and sanc tion that which is proper human action, not interfering with the equal liberty of all, such as Sun day laws, usury laws, consensual crimes between adults not in the public view, and minimum wage laws. 44 (2) Civil duty-imposing laws The law performs another es sential function by providing in stitutions for civil recovery of individual restraints on human ac tion, commonly denoted the "ad ministration of justice." Conduct restricted mayor may not also be criminal. For example, P's free dom is obstructed when D negli gently strikes him with an auto mobile, 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. There fore, D's freedom of action is justly restricted to the limit of 44 Ayn Rand's epic, Atlas Shrugged (Random House, New York, 1957), graphically described a system where the criminal laws were perverted to destroy liberty.

Usury laws may be civil or criminal; in either milieu, they are untenable restric tions on voluntary action. Why should I be limited by the state in the amount I can charge for the use of my money? It is my property, after all; if the borrower doesn't want to pay the price, he can (1) go elsewhere, or (2) refuse to borrow. He need not deal with me. The recent eco nomic upheaval in the United States has aptly demonstrated the superciliousness of usury laws. The recent prime rate high point exceeded the allowable maximum rate of interest in some jurisdictions.

372 THE FREEMAN June taking some of his property at P's instance to compensate P for his loss; D's freedom of action is re stricted but only by the conse quences of his volitional act. There is no proper penalty for negligence; a restriction of lib erty is valid only where D is at fault and that fault causes the deprivation of another's freedom. 45 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 con stitute 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 ac tions and P's injuries. Thus, laws providing for status or absolute liabilitY,46 justified only on the basis of the "deep-pocket" doc trine, or the theory of "enterprise liability," represent legally sanc tioned deprivations of liberty, as does the trend toward state-en forced insurance and compensation 45 See, concerning the doctrine of fault in tort law, Foley, Ridgway K., Jr., "The Doctrine of Fault; The Foundation of Ex Delicto Jurisprudence," 36 Ins. Counsel J.

338-346 (1969). 46 See, concerning the development of the absolute liability of seaworthiness in maritime law, Foley, Ridgway K., Jr., "A Survey of the Maritime Doctrine of Sea worthiness," 46 Or. L. Rev., 369-421 (1967). schemes. Where an individual is mulcted for results not of his mak ing, 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 conse quences of acts volitionally done (his fault), the lessening of liberty is justified. (3) Laws channeling or confer ring 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,48 and norms for enforcing individ ual agreements voluntarily reached, as well as rules for the adjudication of private disputes.

Power-conferring rules restrict liberty when they deny enforce ment procedures for individual ac47 See, Handlin, op. cit., c. IV; see, also, an excellent little book, James Will ard Hurst, Law and the Conditions of Freedom in the 19th Century United States CD. of Wis. Press, 1956). 48 But query, could not this be achieved privately, without state intervention ex cept to sanction the agreements and de cide disputes?

1971 INDIVIDUAL LIBERTY AND THE RULE OF LAW 373 tion not following prescribed pro cedures; they do not prevent vol untary individual resolution of problems by other means if en forcement is not required. There is no prohibition of a sale of Blackacre by oral agreement be tween Band S, if both parties carry out their bargain - it is only when one party reneges that the statute of frauds prevents enforce ment. Again, the law-conferring powers will not penalize B for fail ure to record title to Blackacre, and if no other claimants appear, B's title is secure. The power-con ferring rules destroy liberty only when they are used to restrict hu man endeavor, to 'allocate market resources, or to promote favorit ism. Curiously, many writers have considered the nineteenth century United States as a laissez-faire economy where freedom was given free rein, and the government per formed 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."49 First, nineteenth century Amer ica clearly enjoyed less restriction 49 This seems to be a common argu ment justifying the modern welfare state.

on human action than any earlier society in history; however, the claim that the limitations were only those of a policeman prevent ing malum in se crimes ignores historical fact. Writing at mid century, Bastiat indicated two particular areas of restraint, slav ery and protective tariffs. 50 To these can be added, by way of nonexhaustive example, the in ternal improvement schemes of Henry Clay; the fostering of pub lic education; the grant of monop oly power to private groups in the "public interest"; national control of finance; licensing and regula tion of navigation and improve ment of harbors; and direct or indirect encouragement of trans portation; not to mention state tinkering with money, coinage, and banking in relation to the finance powers. 51 Moreover, the argument falsely focuses only up on 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 ex50 Bastiat, op. cit., 19.

51 For a discussion of many areas of governmental action in the nineteenth century, see Hurst, op. cit., generally, and especially 6-9, 41, and 51-53. See also, Handlin, op. cit., generally.

374 THE FREEMAN June panding concept of the police power. 52 Second, the "Golden Age"53 ar gument assumes that individual liberty was responsible for "abuses" of the nineteenth cen tury, proceeding from the un tenable tacit assumption that lib erty was meant to be a panacea leading to utopia. The libertarian contention is only that volunta rism is the best system for a fal lible but improvable mankind. 52 It is too often forgotten that state governments in the United States gen erally possess a residuum of power and their Constitutions merely carve out a minimum area of noninterference, while the Federal Constitution, in theory, strictly limits the exercise of national power by the concept of delegated pow ers. It is submitted that a residuum of power ought to vest in the individual, not in the state or local government, in order to secure the ideal of freedom. To fail to see this is to fall into the traditionalist trap of Henry George and Albert Jay Nock, who apparently believed that if the government were close to the people it would not likely abuse its powers; not only does this confuse Berlin's positive and negative liberty, but also it betrays a lack of perception of the real world.

53 Berlin, among others, has treated individual liberty as a recent develop ment, primarily limited to the North American Continent and Northern Eu rope, beginning with the late eighteenth century. Yet, certain salient aspects of individual liberty are present in some an cient cultures in the East, and certainly it is unwise to overlook the Sarcenic de velopment; see Henry Grady Weaver, The Mainspring of Human Progress (The Foundation for Economic Educa tion, Inc., Irvington-on-Hudson, New York, 1953). Likewise, the conclusion that lib erty 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 inter diction of human freedom, direct ly or by delegation to private groups. Third, the argument overlooks the positive function performed by the law in the nineteenth· cen tury; 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 busi nesses, 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 ou their voluntarily entered bargains. 54 (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 effect ing the rules imposing civil or criminal duties, or conferring powers, since there would be no 54 See Hurst, op. cit., and Handlin, op. cit., generally.

1971 INDIVIDUAL LIBERTY AND THE RULE OF LAW 375 organized institution of enforce ment. Common examples of ajudi cative rules are regulations relat ing to the. qualifications, selection, and tenure of a judge, conciliation commmission or arbitrator, rules of evidence and procedure for guiding the presentation of the dispute and enforcing the official determination. 55 Adjudicative rules restrict indi vidual 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 dis criminate against some persons seeking legal redress or where the law is used to unduly restrict lib erty. For example, where colored people are customarily excluded from the venire, liberty is im periled. Likewise, where the legal system no longer requires proof of fault or causation for civil re covery, but only that the defend55 Id, generally. The "lawless" nine teenth century certainly produced some marked improvement in this category of law, for example, the Field Code, which attempted to limit the common-law tech nicalities and assure that all persons could quickly bring their disputes before an official tribunal.

ant possess a deeper pocket, and upon such proof authorizes and enforces recovery, the law is mis used and reduces the defendant's freedom. (5) Laws for making laws Closely related to adjudicative rules are the lawmaking laws; adjudicative rules make law in the sense of the law of the case and in the sense of precedent; law making laws provide procedures and qualifications for the passage of general laws, limitations on lawmaking powers, and grants of lawmaking powers. Common ex amples of lawmaking 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 appa ratus for publicizing laws. Lawmaking laws also include rules against potential laws and the abuse of lawmaking power by providing a line beyond which there is no lawmaking power extant. For example, constitu tional 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 indi376 THE FREEMAN June vidual from collective interference.

Additional norms within the category of lawmaking laws are rules prescribing the proper func tions of the state; here the great est destruction of individual free dom has occurred. Where restric tions against state interference with individual liberty are per verted by legislative fiat or judicial interpretation, so as to permit the state to become a producer in the market, as occurred in the devel opment of the Tennessee Valley Authority or Social Security Pro grams, 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 lib56 To belabor the obvious, when one is compelled to participate in a bankrupt state insurance scheme, his freedom is lessened; he loses property to the state and he effectively loses his choice to plan his own future. Again, when the state co-opts the pow erproducing and distribution system in an area, the individual no longer has a choice of suppliers if he wishes to use electricity, nor does he have the oppor tunity of entering the business in compe tition with the state. And, he must pay over part of his property, through taxa tion, to support the system and pay through subsidy for the current used by his neighbors.

Of course, the examples suggested are but two of many intrusions into the mar ket by an expanding state. erty 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 mati 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 nonre sponsible collective is a choice per se and the burden for the conse quences of the allocation by the collective must rest, in last analy sis, upon the ultimate choice maker,. the individual who refused or refrained from choosing. (2) Only with the conditions of maxi mum liberty can man's creative nature have full sway in the solu tion 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 lib57 See, Sollitt, op. cit.; Clarence B. Car son, "Individual Liberty in the Crucible of History: 6. A Rebirth of Liberty," THE FREEMAN, Vol. 12, No. 10 (October 19~2), 3; Sprague, op. cit.; Dean Russell. "What Freedom Means," THE FREEMAN, Vol. 11, No. 12 (December 1961),18.

58 See Sylvester Petro, "Freedom and the Nature of Man," THE FREEMAN, Vol. 11, No.9 (September 1961), 9; Brown, op. cit.; Hayek, op. cit.; Russell, "Basis of Liberty," op. cit. See also, Hurst, op.

1971 INDIVIDU AL LIBERTY AND THE RULE OF LAW 377 erty and the concurrent release of individual creative power, man will produce the greatest abun dance of material, as well as spir itual, wealth possible. 59 In summary, then, what is indi vidual freedom and what is the proper function of law? Liberty is the absence of human interven tion with the endeavors of an in dividual to utilize his life, liberty, cit., 5-6 where he recognizes this as a major premise of the nineteenth century political thought. For further elucidation, see generally, Leonard E. Read, The Com ing Aristocracy (The Foundation for Eco nomic Education, Inc., Irvington-on-Hud'son, New York, 1969); Leonard E. Read, Talking to Myself (The Foundation for Economic Education, Inc., Irvington-on Hudson, New York, 1970). No man is able to understand the vari ables and influences present in the deci sion-making milieu facing any other hu man being; only the actor is capable of a reasoned choice. This is not to say that it will always be the "best" or the "right"

choice when viewed by a third-party ob server. It is to say, however, that it is the best and right choice for the actor, cer tainly superior to the judgment of any other man or collective at that time. And even if the choice were not the best, it would still be desirable to allow the actor to chose, because (1) it is his destiny at stake, and (2) no group or collective is better positioned to make the choice. As Nock wrote: "The practical reason for freedom, then, is that freedom seems to be the only condition under which any kind of substantial moral fibre can be developed," Cogitations from Albert Jay Nock (The Nockian Society, Irvington on-Hudson, New York, 1970, Thorton ed.) 63. 59 Id, Note 57. and property (and all adj unct rights flowing therefrom) as he sees fit and for the ends he de sires, 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 insti tutions for adjudication and en forced settlement of private dis putes; and, provision of reasona ble channeling procedures through which private individuals may utilize their voluntarily chosen ends. , 60 Spatial limitations prohibit an ex amination of the relation between law, liberty, and the association. As Fuller points out, op. cit. 1316-1322, the prob lems of freedom occur in all multiple hu man relationships. There is a trend away from considering the problem of freedom in "Man v. State" terms, and in consider ing the relationship the group or the association bears to the situation. For some varying viewpoints on this situa tion, see Fuller, op. cit. 1316 if.; Clarence B. Carson, "Individual Liberty in the Crucible of History: 3. Circumstances Hostile to Liberty," THE FREEMAN, Vol.

12, No.7 (July, 1962), 11; Handlin, op. cit., c V and VI; Cohen, op. cit., particu larly 221-225. See also, Louis B. Schwartz, "Institutional Size and Indi vidual Liberty: Authoritarian Aspects of Bigness," 55 NW. L. Rev. 4 (1960); and 378 THE FREEMAN June Bayless Manning, "Corporate Power and Individual Freedom: Some General Anal ysis and Particular Reservations," 55 NW. L. Rev. 38 (1960). Unfortunately, too many analysts are not adept at careful study in this area and fail to comprehend important dis tinctions. For example, Fuller seems to say that the solution is to provide indi vidual freedom within the association and associational freedom within the so ciety, and Schwartz seems to lump all forms of organization into a single pot; but what these and similar thinkers overlook is the concept of voluntarism. There is a distinction of magnitude be tween associating by mutual consent and choosing to submit to agreed terms and consequences, and an association which is compelled by the sanction of loss of an essential choice. Thus, much of the bigness in society has been fostered by unwarranted and unwise governmental interference into the affairs of man; the government-inspired monopoly (rail roads, utility) becomes large and powerThe Rule of Law ful much more so than if these associa tions lacked state backing and favor; to combat this growth, the state itself looms larger. No libertarian objects to volun tary association in any group, union, church, club, or society, so long as both the membership and the individual mem bers have rights to voluntary withdrawal and so long as society is not a criminal conspirator, such as the Mafia or the Ku-Klux-Klan, bent on doing violence to the rights and properties of others; what we do object to is government favoritism and intervention and involuntary associ ation; a common example of lack of as sociational freedom is the forcing of one to become a member of a labor union. A person can hardly contend that the Ore gon lawyer is free when he is compelled to belong to, and support, the integrated Oregon State Bar, particularly when that association takes moral and political stands with which the dissenting mem bers disagree. See the interesting strug gle posed, and the questionable solution in Lathrop v. Donahue, 367 U.S. 820 (1961).

IDEAS ON LIBERTY THE END of the law is, not to abolish or restrain, but to pre serve 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 humour 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 subj ect of the arbitrary will of another, but freely follow his own. JOH N LOCKE, Second Treatise A REVIEWER'S NOTEBOOK JOHN CHAMBERLAIN THE RED DECADE THERE ARE affinities between the nineteen thirties and the nineteen sixties. There are also some sig nificant differences. Nobody has, as yet, done a searching compara tive essay on the two benighted epochs, but in default of the omis sion the republication of Eugene Lyon's study of the thirties, The Red Decade (Arlington House, $8.95), after being out of print for thirty years, offers the best possible perch from which to view the disastrous period that is just behind us.