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Introduction:-

In 1941, F. D. Roosevelt said something that was to spur on the American soldier in his fighting efforts. Roosevelt held out that they would receive the complete support of those at home; and, upon their return to America, better times were in store for all.

"In the future days we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression. The second is freedom of every person to worship God in his own way. The third is freedom from want. The fourth is freedom from fear."2

"To talk about the Rights of Man and the Four Freedoms in connection with India is merely a cruel joke."3

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1 - What is freedom?

One might go beyond the realm of reality and visualize or imagine that freedom is a state whereby one is free from the control of fate or of necessity. For the less fanciful: freedom might be conceived as an exemption or release from slavery or imprisonment. But freedom is more than that: it is personal: it is an exemption or release from "arbitrary, despotic, or autocratic control," as the OED has put it. It is "the power of self-determination attributed to the will": it is independence: it is the state of being able to act without hindrance or restraint: it is liberty of action.

Holmes described it as the "right of strict social discrimination of all things and persons, [and it] is one of the most precious privileges." And, Locke: "... in our being able to act, or not to act, according as we shall choose, or will."5 And, Lord Acton: "By liberty I mean assurance that every man shall be protected in doing what he believes to be his duty against the influence of authority and majorities, custom and opinion."6

It is not likely that anyone of us has had a cup of it this morning; nor, is it likely, that anyone of us has a special stash of it under a floor board. Freedom is not a physical thing, its not to be directly sensed. It's a concept: it's a mental construct; it's a, --- Well, its a -- a state of affairs, -- that's what freedom is. Should you find yourself, in a damp dungeon with only two exits, -- the one covered with bars and which looks out over a moat many feet down, and the other covered by a great door bolted from the outside (and maybe, just for good measure, a great brute of a man with a machine gun stationed just outside) -- you will quickly conclude that you are beset by a sad state of affairs. Equally as well, but likely even considerably more so, you would have the same reaction if somebody had a gun pointed at your head, -- in which event, you have arrived at a very sad state of affairs, indeed. In these two illustrations one might say that there exists a state of freedom (a state which cannot be described in absolute terms), which, practically speaking, is non-existent. There does not exist for a human, nor will it ever happen, unless you believe in heaven, that a perfect state of affairs will come about for any of us. Freedom normally comes to each of us but it can only exist in degrees; it is essential, I argue, to life itself; and it is most certainly expungable, especially if your adversary comes equipped with prisons and guns.

I would like to make it as plain as I can, that while freedom is not a measurable physical thing (and, thus, it cannot be measured by any objective standard): it does exist for all humans up to the very point of his or her death; and, I repeat myself, only does so by degrees. One might be restricted a little and get on with life quite well; indeed, a little general restriction, paradoxically, is necessary so that the most amount of freedom can be had by all (and there you have the raison d'etre for government). There is a point, however, at which a limitation of freedom will effect our well-being, and if freedom be taken away, then the person effected will, in time, die. Freedom, for this reason, is, as I will further elaborate, fundamental to life, to one's existence; it can be, in a way, likened to the air we breath, there is normally no joy in the act or in the experience, but its absence will bring about misery and eventual death. To the extent we have freedom we have the ability to proceed in life to make the necessary decisions in life which suit our individual purposes. Freedom is the general state of affairs in which we exist; it allows a person to take action, which, whether calculated or not,7 is personally tailored and designed to suit the goals and objectives which the individual actor has set for himself, or herself. The ultimate goal (entirely predictable) for all sane and healthy individuals (the great mass of us) is to advance, on the medium term, the interests of themselves and/or the members of their particular family.

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2 - The Nature of Freedom:-

"The root of all well-ordered social action is a sentiment of justice, which at once insists on personal freedom and is solicitous for the like freedom of others; and there at present exists but a very inadequate amount of this sentiment." (Herbert Spencer.)

The principal difficulty is that freedom is a concept, not a percept; we cannot point to freedom or stick out our hand and feel it.9

Next let us turn to David Hume: "By liberty then we can only mean a power of acting or not acting, according to the determinations of the will; this is, if we choose to remain at rest, we may; if we choose to move, we also may."10

And now to John Stuart Mill: "The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it."11

Note that we refer to the individual's possession of that precious right of freedom: I say individual. Freedom is a relative concept and can only be possessed by the individual: it cannot be possessed like a parcel of land, in common, by a group of people. An individual, a particular individual, either has freedom, or not. It was that great French legal thinker Frédéric Bastiat who put his finger on this concept: "It is not the union of all liberties - liberty of conscience, of education, of association, of the press, of travel, of labor, of trade? In short, is not liberty the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so?"12

Thus; liberty be a state of being, where an individual is sovereign and answerable only to himself; where each is free to put at stake: his own life, his own well-being, his own time and his own property; where each, at all times, lives and acts as he wants within society at his own cost or to his own benefit, as the case may be; subject only and always to the restriction that an individual cannot proceed to act if that act clashes with or is in violation of the liberty of another.

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3 - The Necessity of Freedom:-

"Liberty is not a means to a higher political end. It is itself the highest political end."
- Lord Acton.

"It seems to me that this is theoretically right, for whatever the question under discussion - whether religious, philosophical, political, or economic; whether it concerns prosperity, morality, equality, right, justice, progress, responsibility, cooperation, property, labor, trade, capital, wages, taxes, population, finance, or government - at whatever point on the scientific horizon I begin my researches, I invariably reach this one conclusion: The solution to the problems of human relationships is to be found in liberty. ... all hope rests upon the free and voluntary actions of persons within the limits of right ..." (Bastiat.)

"He must have a master; but the master may be Nature or may be a fellow man. When he is under the impersonal coercion of Nature, we say that he is free; and when he is under the personal coercion of some one above him, we call him, according to the degree of his dependence, a slave, a serf, or a vassal." (Spencer.)13

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4 - The Two Everlasting Empires: Necessity & Free Will:-

"Everywhere the human soul stands between a hemisphere of light and another of darkness; on the confines of the two everlasting empires, necessity and free will." (Thomas Carlyle.)

Freedom is the choice given, fundamentally, to act or not to act; but, in any event, one is bound to accept the consequences of his free choice. One has but little choice to go forth and to find food and seek shelter. The attending work and tribulation is not an encroachment on that person's freedom. The work and tribulation may be lessened, by a considerable amount, if people voluntarily collect themselves together into classes, usually as dictated by the laws of the natural economy.14

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5 - Freedom's Condition for Existence:-

One of the lessons which the Durants left us was that "the freedom of individuals in society requires some regulation of conduct, the first condition of freedom is its limitation; make it absolute and it dies in chaos."15 We cannot have the freedom of each, flounder on the unlimited freedom of all. Professor Friedrich A. Hayek:

"The question then is how to secure the greatest possible freedom for all. This can be secured by uniformly restricting the freedom of all by abstract rules that preclude arbitrary or discriminatory coercion by or of other people, that prevent any from invading the free sphere of any other. In short, common concrete ends are replaced by common abstract rules. Government is needed only to enforce these abstract rules, and thereby to protect the individual against coercion, or invasion of his free sphere, by others. Whereas enforced obedience to common concrete ends is tantamount to slavery, obedience to common abstract rules (however burdensome they may still feel) provides scope for the most extraordinary freedom and diversity. Although it is sometimes supposed that such diversity brings chaos threatening the relative order that we also associate with civilisation, it turns out that greater diversity brings greater order. ..."16

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6 - Criminal Law:-
And, so, we come to the subject of criminal law. Criminal laws are to be limited in number, though open ended; certain; and only in negative form, such as not to kill, not to steal, not to commit assault, etc. Criminal law is to be defined in a careful manner in keeping with the wishes of the people and passed by more than a simple majority, and, always, within the confines of constitutional law. It is left to the citizens to set for themselves, through the workings of the common law, laws which will regulate civil proceedings (civil law: citizen/citizen -- versus -- criminal law: citizen/state).

More simply, as Bertrand Russell put it, criminal laws are "a method of enabling men to live together in a community in spite of the possibility that their desires may conflict." We each are free agents existing side by side, and through our family commitments and commercial contacts, -- whether conscious of it, or not -- we mutually support one another. In a civilized society we function because we recognise invisable boundaries, within which boundaries individuals exist and operate. The boundaries are determined by both private and public law.

And, so it is, we must have law; but, in Benthan's declaration, "every law is evil, for every law is an infraction of liberty." So, while law might be necessary: it can be our undoing. As Lord Chesterfield was to observe to his fellows:

"One of the greatest Blessings we enjoy, one of the greatest Blessings a People, my Lords, can enjoy, is Liberty; but every Good in this Life has its alloy of Evil; Licentiousness is the Alloy of Liberty; it is an Ebullition, an Excrescence; -- it is a Speck upon the Eye of the Political Body, which I can never touch but with a gentle, -- with a trembling Hand lest I destroy the Body, lest I injure the Eye upon which it is apt to appear. ... There is such a Connection between Licentiousness and Liberty, that it is not easy to correct the one, without dangerously wounding the other."

To allow people to compete (within the confines of the criminal law) for all that they might need or want in this world: will mean, the preservation of freedom for everyone. When people compete on the basis of their own personal skills and family connections, then they will be promoting a society in which most people will be able to carry on feeling satisfied that they, as least, fit in; or, where not, possess the feeling that they have the right to act, freely, again within the bounds of criminal law, strictly defined, -- so, as to effect change with the view to bringing some improvement to their lives. To proceed otherwise, to play favourites,19 will lead to most everyone feeling like misfits, and, what is more destructive, left with a feeling there is nothing that they, as individuals, can do about it. So, the question might be: do we wish to see a society where most everyone fits in (some better than others); or, a society that is crippled, top to bottom, with people who think they were really cut out for something better, but see no means by which they might effect change, short of latching on to one or more of the demagogues that drift around in great numbers among us.

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7 - Freedom and the Law:-

"Freedom consists in a people's being governed by laws made with their own consent." [Swift: Drapier's Letters (1725).]

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8 - The Destruction of Freedom:-

"A child will weep a bramble's smart,
"A maid to see her sparrow part,
"A stribling for a woman's heart:
"But woo awaits a country, when
"She sees the tears of bearded men.
- Scott: Marmion.

"Here, then, is the summation of the matter. We had thought, the decent people in all countries, that government by the people under democracy, and with it equal liberty for all, were things definitely achieved. We were forgetting the long struggle and the heroic sacrifice that gave them to the world. Bygone tyrannies and cruelties were forgotton in the nearer perspective of lesser things. Hence came a kind of inertia - a little slumber, a little sleep, a little folding of the hands to sleep - and thereby a creeping paralysis that made us almost let freedom slip from our hands."21 (The Canadian humorist, Stephen Leacock.)

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1 Peter Landry is a lawyer in private practice in the City of Dartmouth. He invites correspondence on the topic and may be contacted at P.O. Box 1200, Dartmouth, Nova Scotia, B2Y 4B8, or at peteblu@blupete.com.

2 N.Y. Times 7 Jan. 4/7.

3 Themes & Variations (New York: Harper, 1st Ed., 1950) at p. 246.

4 See Richard Church's Voyage Home, iii. 35 (1964) .

5 Human Understanding (1690).

6 "History of Freedom."

7 Normal people in normal circumstances act through passion and tradition, more than through rational thought; thus it is very important when addressing social issues that the role of tradition, culture and family must be very carefully considered.

8 Freedom and the Law (Indianapolis: Liberty Press, 3rd Ed., 1991) at p. 28.

9 A Concept, according to the OED, is a thought, or an idea: "The product of the faculty of conception .... concepts are merely the results, rendered permanent by language, of a previous process of comparison ... a concept is a general representation of a whole class of things." This definition of concept is to be compared with the word, percept, which, on my understanding, are the mental bits or parts (percepts) which cannot be conceived by the brain but from which the brain forms a concept, or a thought or an idea which may or may not invoke, through a further mental process, the body's muscles to take action. A percept is to be distinguished from the action. As one of the editors of the OED observed, it was William James who sometimes used the word percept to refer to "the content of consciousness during perception." Technically, then, a percept is a particular pathway that leads from the senses of the being, such as the sense of sight, where, "the visual image formed on the retina by light rays entering the eye is transformed into a visual percept, on the basis of which appropriate commands to the muscles are issued." And, further; "each physical stimulus, after interpretation by the mental processes, will result in a percept."

10 "Of Liberty and Necessity," Human Understanding.

11 On Liberty, 1859.

12 The Law, 1850.

13 See A Plea for Liberty (New York: Appleton, 1891) at p. 6.

14 The demarcation of classes of people, -- groups within society, groups with differing ranks and privileges -- may be lines determined by birth (certainly that was the case in earlier ages); or by wealth; or by force; or by those employed or not employed by government. As for economics: while the complex, the social structure, is large and can be made to appear complicated by the incalculable actions of all the self-directed individuals working within it; the economy is run, nonetheless, by a rather simple set of laws. I say, parenthetically, that the subject of economics, unfortunately, has been made out to be complicated by people, who claim to be in the know. These economists, these prognosticators with their pointed hats and crystal balls, have been employed, by politicians, so to justified the free spending ways of big government.

15 The Lessons of History (New York: Simon & Schuster, 1968).

16 The Fatal Conceit, The Errors of Socialism (University of Chicago Press, Vol. I, 1989) at pp. 63-4.

17 See Spencer, op. cit., p. 24.

18 Our Heritage of Liberty (London: Bodley Head, 1942) at p. 41.

19 For a concrete example, let me turn you to a piece of federal legislation, Employment Equity Act. Section 4 of that act, so I read, requires employment policies of those with federal contracts of over $100,000 to be based on race, sex, ancestry, appearance or disability, the numbers depending on the percentage of the traits in the population. Under such a regime, we can be sure, from the lowly filing clerk to the supreme court judge, the best will not be had, and those chosen can never assert with pride to themselves or others that they got to their position on their "own merits"; pride of position is at least tarnished. Worse, yet, those massive numbers not chosen will be unhappy with their "achieved" level and frustrated with the feeling that they cannot personally advance themselves.

20 Olmstead v. United States (1928), 277 U.S. 438, 479.

21 Our Heritage of Liberty, op. cit. at p. 74.