Publication Date

Spring 2017

Document Type

Article

Abstract

Freedom is overlooked as a legal and social concept, with few attempts to define it. Lon Fuller articulated the critical question about freedom: “How can the freedom of human beings be affected or advanced by social arrangement, that is by laws, customs, institutions, or other forms of social order that can be changed or preserved by purposive human actions?” Freedom needs to be defined in the context of this question — as an ideal to be advanced by our social institutions, laws, and customs. The article first begins with a framework for freedom established by Lon Fuller in a neglected article which emphasized "freedom to" rather than "freedom from." The article then posits that freedom is a certain kind of relationship that exists between individuals and their kin, tribe, religious society, city, state, sovereign, or other body politic under conditions in which (1) such body is subject to the rule of law with real checks on power such that legal standards be general, promulgated, clear, prospective, consistent, satisfiable, stable and applied; (2) there exists democratic and representative government at all pertinent levels of community in which the individual is engaged and by which arrangements the individual's actions may from time to time be legitimately directed; (3) fundamental human rights are not only expressed in the constitution and law, but operate as trumps on the will of the majority or sovereign; and(4) the general welfare or social justice is sufficiently observed that the exercise of fundamental rights and privileges is meaningful, but such rights and privileges are not suppressed by attempts to serve general welfare or social justice. Each of these four “modalities” is explored in turn. The article also applies concepts of law as social planning from Yale Professor Scott Shapiro's new book, Legality, to affirm the role of government to enhance choice and individual freedom. In its truest sense, freedom is similar to citizenship, with both attendant rights and obligations.

Publication Title

Pace Law Review

Volume

37

Issue

2

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