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MORE LAWS, LESS FREEDOM

There’s nothing implausible about the thought that laws, other kinds of rules too, are the enemy of freedom. And that thought is powerfully seductive. But—surprise!—it’s a mistake. Laws and other rules can expand our freedom.

Published onMay 26, 2020
MORE LAWS, LESS FREEDOM

“Every law is an evil, for every law is an infraction of liberty,” declared utilitarian philosopher Jeremy Bentham in 1802.1 He wasn’t the first to embrace that view. In 1651, Thomas Hobbes urged that “liberties depend on the silence of the law. In cases where the sovereign has prescribed no rule, there the subject hath the liberty to do, or forbear, according to his own discretion.”2 I don’t suggest that Hobbes invented the view; figuring out who came first is a fool’s errand. But it’s been embraced by plenty of thoughtful people for a long time.

Governments are in the business of passing laws. Indeed, governments are volcanos constantly erupting with new laws. So it’s tempting to think that governments are in the business of depriving people of liberty. If you care about liberty—and who doesn’t?—it’s tempting to think that we need to keep government small. With characteristic zeal, Thoreau ratcheted up the stakes. “I heartily accept the motto, ‘That government is best which governs least’; and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe—‘That government is best which governs not at all’; and when men are prepared for it, that will be the kind of government which they will have.”3 I doubt that Ronald Reagan meant to flirt with anarchism, but here’s a lesson he hoped to impart in his farewell address. Recalling his entry into American politics in the 1960s, Reagan said, “through more and more rules and regulations and confiscatory taxes, the Government was taking more of our freedom.” “There's a clear cause and effect here that is as neat and predictable as a law of physics: as government expands, liberty contracts.”4

Often, Reagan would indict more laws and more taxes in rapid succession, even in single sentences like the one I just quoted, as if they were the same thing, or repugnant in the same way. So it’s not obvious whether his saying “government expands” refers to more laws, more taxes, or both. Sometimes he zeroed in ominously on taxes. In the 1964 speech that made him a political star, Reagan warned, “No nation has survived the tax burden that reached one-third of its national income.”5 That looks like a simple factual error: Taxes in Western European nations have been higher than that for many years. The taxman gobbles up over 40% in some of those countries, but they’re still chugging along.6 (Tempted to respond that they must be on the verge of collapse? More later. Patience, please. And no, it’s not responsive to protest that they’re not chugging, that their economies are sputtering or stalling. Reagan’s claim wasn’t that high taxes hurt the economy. It was that they destroy nations.) But again, I’m not pursuing factual errors here. Nor am I pursuing policy questions, so I’ve got nothing to say about how high or low taxes should be. I want only to focus on bad arguments, and here I’m going to treat Reagan as cautioning against laws, not taxes.

All kinds of rules, not just laws, invite Reagan’s lesson. Picture a lecherous teenager glowering at the Ten Commandments. “Thou shalt not covet thy neighbor’s wife.” “But I like coveting my neighbor’s wife,” he fumes. “Thou shalt not commit adultery.” “Even worse,” he groans. If he makes it as far as Leviticus, he’ll find more bad news. No eating shellfish: Lacking scales and fins, “they shall be an abomination unto you.”7 “Damn,” he mutters, “there goes my favorite Thai shrimp dish.” Thou shalt not sounds like the very form of an infraction of liberty. All these tempting prospects, sternly forbidden.

Make the lawgiver less formidable and the same lesson beckons. Poor responsible Beezus marched Ramona to the library with the copy of Big Steve the Steam Shovel that Ramona had gleefully trashed. “‘I’m a bad girl,’” Ramona announced, “smiling winningly at the librarian.” The librarian asked her what she’d done. “‘I wrote in a book,’ said Ramona, not the least bit ashamed. ‘I wrote in purple crayon, and it will never, ever erase. Never, never, never.’” The librarian examined the book. “‘Since every page in the book was damaged and the library can no longer use it, I’ll have to ask you to pay for the whole book. I’m sorry, but this is the rule.’” No writing in library books, says the rule, and there’s a sanction attached. Author Beverly Cleary works her usual mischievous magic: Ramona is ecstatic to learn that after Beezus pays the fine, she gets to keep the book.8 Still, Bentham and the others would grasp the exchange immediately. Ramona might like writing in library books, but the library’s rule takes that option away. If she does it anyway, she gets punished. (Well, she doesn’t pay the fine. More mischief. But life isn’t usually so delightful.)

There’s nothing implausible about the thought that laws, other kinds of rules too, are the enemy of freedom. And that thought is powerfully seductive: I could go on rattling off examples, and so could you. But—surprise!—it’s a mistake. Laws and other rules can expand our freedom. If we had fewer rules, we wouldn’t necessarily be more free. In fact, if we had no rules, we’d definitely be much less free. How so?

Let’s begin with recipes. You want to bake a devil’s food cake, but you don’t know how. So you consult a cookbook, you round up the ingredients, you follow the directions, and hey presto! you have a delectable cake. The recipe is just a series of instructions or rules. There’s room for flexibility. You don’t have cake flour, so you use all-purpose flour and try not to mix the batter too much. Or, thinking about the next time you’ll use the recipe, you write in the margin, “cut the sugar by 1/3 cup.” Still, if you don’t know how to make a devil’s food cake, you need some rules. And following the rules lets you do something you couldn’t otherwise do. It opens up an otherwise unavailable option.

Maybe you’re a terrific improvisational cook, like those wizards on TV cooking programs confronted with implausible ingredients and told to whip up something delicious in half an hour. You don’t need recipes, though I’d bet your improvisational skills depend on years of mastering recipes and their general structures. No one walks into a kitchen the first time, shuns the cookbooks, and produces even a barely edible devil’s food cake. Regardless, recipes—rules for cooking—tell you how to prepare dishes. They give you more options. It would be bizarre to complain that the recipe is invading your liberty, that you want to throw Tabasco sauce, hard-boiled eggs, and pasta into a frypan and produce a devil’s food cake, but the stupid cookbook is forbidding you.

So the rules of cooking tell you how to bake a scrumptious cake. The possibility of that cake was always there, we might say, just waiting to be discovered, given the basic chemical facts about ingredients and heat. But rules can magically generate new possibilities that wouldn’t exist without the rules. Philosophers call these constitutive rules.

Take shooting a three-pointer in basketball. You can’t do that without the rules of basketball. A startlingly large number of rules matter here, but let’s take the most `obvious ones. The rules have to stipulate the court’s dimensions, where the baskets go, where the three-point line is painted, and that the ball has to go through the basket—from the top down. If there were no rules of basketball, there’d be no such thing as scoring three points. Yes, once upon a time someone mounted a basket and threw a ball through it. He could have made up his own rules, and maybe he decided how to score three points before there was basketball. But it’s nutty to think that the rules of basketball were discovered. Better to say that they were invented.

Constitutive rules generate new options in one setting after another. The rules of grammar let you communicate nuanced meanings to other language-speakers. You need to follow those rules. You also need to adopt conventional vocabulary. Even the codes that friends, gang members, and spies use depend on accepting that vocabulary. Does mastering grammar strike you as nauseating? You don’t need to know how to diagram a sentence or to be confident about the difference between a conjunction and a preposition (shudder). Unless you’re studying a foreign language and your teacher has loopy ideas, you don’t pick up languages that way. But when you’re learning a language, as a toddler or a student, you are learning rules. Not the official rules in textbooks, but the ones governing everyday usage, the ones that give “Emma and Sam took Jack to the park” crystal clear meaning and make “to Jack park the Sam Emma and took” odd if not opaque, something a beat poet might say. You might long to be free of the rules of grammar. But if you decide to string words together however you like, you won’t even sound like a beat poet. You’ll sound like a computer randomly spitting out gibberish. In escaping from the rules of grammar, you’ll forfeit your ability to communicate. You’ll be less free. Likewise with vocabulary: You can creatively tweak a word here or there, but if you decide on a wholly idiosyncratic vocabulary, no one will have any idea what you’re saying.

Plenty of laws work the same way. The laws that tell you how to write a will make it possible to perform another magic trick—to dispose of your property after you die. Those laws stipulate a series of steps: Have two witnesses sign, preserve a copy of the document, and so on. If you dutifully follow those steps, you’ll have written a legally binding will, just as if you stand outside the three-point line during play and sink a basket, you’ll have scored three points.

Couldn’t you dispose of your property after your death without writing a will? Maybe. You could write down a series of wishes. You could even call them instructions. But your descendants might not follow them. You’d lose the possibility of legal enforcement. The law lets you name your estate’s executor, the person in charge of distributing your property in accordance with the will. You choose that person partly because you trust her, but if she decides to depart from the terms of the will, your beneficiaries can sue to have the will’s actual terms enforced. Government coercion constrains the “freedom” of the executor—her ability to do things she has no right to do—but safeguards your freedom, your ability to choose what happens to your property and make that choice binding.

Like other kinds of rules, then, laws can tell you how to do things and can actually conjure up new possibilities out of thin air. Even thou shalt not rules have their place here. Imagine a world with no rules, no laws, none of those thou shalt not formulations that distressed our teenager. (Hobbes and some other political theorists would refer to this world as the state of nature.) Plunk yourself down in that world. Now imagine a list of every single thing you can do. Right, it’s an awfully long list—no, it’s a wonderfully long list. The list represents your options. What a lot of freedom! But now the thou shalt not police show up. They begin striking options from the list. Maybe there are good reasons to strike some options. Maybe no one should be allowed to murder someone else: Thou shalt not kill. The police dutifully cross off the bit on your list about killing others. But every time the police cross out something on your list, you’re less free, because you don’t have as many options as you did before. So it looks like Bentham and the rest are exactly right in thinking that laws deprive people of freedom, even if we shouldn’t adopt the insinuation that that must be regrettable.

But the list has a surprising property. Sometimes, when you cross out something on the list, new possibilities suddenly appear. If the police grab your list and cross off “get drunk every day,” “eat lots of junk food,” and “spend your day staring at screens,” suddenly your list includes “being fit and healthy,” “happily running ten miles,” and “living longer.” And when we cross out some entries on everyone’s list, we gain dramatic new possibilities.

Here’s an activity you might take for granted, though not everyone everywhere can: walking outside at a regular pace in a straight line. You might do it without even thinking about it. But it makes you a sitting duck for any sniper. Picture how you’d walk if you knew that others might be interested in shooting you. You’d dart around, stagger your direction, hurl yourself to the ground behind a brick wall or a shrub. Your ability to saunter at that regular pace in a straight line depends on your confidence that others won’t shoot. If you’ve had the luxury of not even contemplating these grim prospects, you’re lucky. And that luck isn’t individual or idiosyncratic. It’s social and political. In some places—inner cities and war zones are the obvious instances—people can’t be confident about walking around. If you’re a woman, you might have to make sure you’re not out alone on the streets after dark.

So we cross out killing, maiming, and mugging on everyone’s list. Let’s imagine that everyone automatically complies: If something’s not on your list, you just plain can’t do it. Now your list, and everyone else’s, suddenly includes a host of new possibilities. Not just the dryly amusing one of walking in a straight line, but also walking after dark, walking in what were dangerous neighborhoods, and sleeping in the park with your wallet or your purse.

By ruling out some options, we make others possible. So the realm of options has a complex structure. It’s profoundly false that every law, even every thou shalt not law, is an infraction of liberty. Take some options off the table and new ones become available. So we face tradeoffs. Depending on the range and significance of the options involved, it may be a clear winner to rule some option out of bounds. It may be a clear loser. It may be controversial. Still, the idea that a rule or law necessarily lessens liberty is wrong.

Both constitutive rules and thou shalt not rules shape many activities. Take driving. Some rules tell you how to do things. If you turn on your left blinker, you’ll be informing other drivers that you intend to turn left or change lanes. That’s a bit of automotive vocabulary and grammar, however obvious it seems. Without it, a flashing light on the left rear of your car could mean anything or nothing. And then there are rules forbidding things. Do not cross the double yellow line. Prohibitions in our vehicular codes stretch on for many pages. And let’s not leave out government mandates about safety devices—airbags and the like—on cars. No matter whether you think of those as the government requiring car manufacturers to take steps or forbidding them from marketing cars without taking those steps.

If you’ve been ticketed, you might chafe at the invasion of your freedom. But again, notice how zany it would be to complain that the rules deprive you of freedom. Try this: There are roads and there are cars, but we abolish the rules of driving and everyone develops amnesia about them. You need to drive twenty miles. So you pull out. Yikes! What about that oncoming driver? Why is he in the same lane you’re using? (But wait: How did you decide those painted lines represent lanes?) Simple self-preservation might get one or the other of you to move out of the way or stop. But now there’s a car zipping down the sidewalk. Well, why shouldn’t there be? Someone else, irritated by traffic noise, has left some boulders in the middle of the street.

You might well decide you can’t safely drive twenty miles. Back in the real world, with all the rules, driving is dangerous. In 2018 in the U.S., 36,750 people died in car crashes.9 That’s no cause for celebration and there were far more injuries. But that year Americans drove a total of over 3.2 trillion miles.10 Only the extensive rules of driving and car manufacturing make it possible to have the level of safety we do. By having a vocabulary and grammar to convey meaning, by forbidding lots of options, we make it possible to hurtle around in ton-and-a-half steel crates without dying. You can denounce the thicket of laws all you like: Particular laws might well be misguided. But don’t fall for the fantasy that without any laws, you’d be free. You’d lose the ability to drive safely. Hitting the open road, an enduring image of American freedom, doesn’t escape the rules. It depends on them. Or again: You stick a piece of plastic into a gas pump and now you can fill your tank. That depends on technological sorcery. But it also depends on the hugely complicated law of payment systems.

Or take gun control. We could freely buy and sell any and every weapon you imagine: pistols, AK-47s, howitzers, nuclear bombs, you name it. We could allow anyone and everyone – children, violent felons, the mentally ill – to possess whatever weapons they liked. Last I checked, no one thought those were great ideas. Everyone understands that if we rule out some kinds of weapons, or possession by some kinds of people, we can enjoy more security. You can go about your business with less fear of murder and carnage. But that means it’s unhelpful to denounce gun control as an invasion of freedom. It also expands freedom. Once you see through the distortions of our furious public debate, you realize it’s all a question of which controls are sensible and why.

Or take social distancing. (I write these words in the enervating middle of May 2020.) The government can require people to shelter in place, to wear masks when they’re out, to stay six feet away from others, and so on. Yes, all such measures deprive people of freedom. But taking away those options opens up other options that wouldn’t otherwise be available. It makes it possible to greatly lower your risk of catching a virus that could kill you. As the now dourly familiar internet quip goes, the slogan wasn’t supposed to be Give Me Liberty and Give Me Death!

Or take one last example. You don’t get a free market without a host of laws and rules. We could bicker about what a natural right to private property means, but it had better not mean what you’d have in the absence of laws. In his usual melodramatic way, eighteenth-century political theorist Jean-Jacques Rousseau denounced the vicious effects of private property. His state of nature was happy enough, but the rot set in. “The first man,” he wrote, “who, having enclosed a piece of ground, to whom it occurred to say this is mine, and found people sufficiently simple to believe him, was the true founder of civil society.” If only others had acted against this “impostor,” they could have saved us from wars, murders, crimes, and horrors. Now you can say that Rousseau must be wrong, that private property is a big winner. Fine by me. But I want to press a different question. Without an already existing institution of private property, how could the claim this is mine be even vaguely intelligible? No wonder Rousseau immediately added that the idea of property depended not just on “many prior ideas” but all kinds of social developments.11

If you want a market, you need property law, contract law, bankruptcy law, and more. These bodies of law, too, are hugely complicated, shot through with rules. Some legal rules tell you how to accomplish things or even create options that would be inconceivable without rules. Legal rules define the complicated bundle of rights we call property. They tell you how to buy and sell, how to convey a right to some piece of property, how to agree that you will work in a particular workplace and the employer will pay you a wage, maybe provide health insurance, and so on. Corporate law makes it possible to create entities with remarkable powers: limited liability, immortality, and more. Other rules forbid some actions and so open up the possibility of other actions. For instance, we have to decide what sorts of goods may be bought and sold. Allegedly, we no longer buy and sell people. Eliminating that option would mean you can be secure that you won’t be kidnapped and sold into slavery. No wonder countless women trafficked as sex slaves would love the option to actually be eliminated. If the government takes millions of acres off the market, we can hike and camp in relatively pristine national parks.

Once you have a market, plenty of laws work the same way. When the government forbids the use of certain toxins in the workplace, for instance, workers gain the ability to take a job without worrying it will give them cancer. There are still carcinogens in the workplace, just as there are still fatal car crashes. But workplaces are much less dangerous than they were, and we owe that to law and regulation. Antidiscrimination laws prohibit employers from counting it against you that you’re black, that you’re a woman, and so on. That ban provides opportunities for all kinds of qualified workers who otherwise wouldn’t be considered.

Here’s Reagan again, this time from a 1988 wish list to Congress: “Our experience with deregulation over the past seven years has demonstrated the superiority of industry inspired by private initiative rather than controlled by Federal regulations. Accordingly, I am instructing my Administration to take all possible measures to provide individual Americans with the greatest possible range of economic opportunities, and I invite the Congress to join me in further deregulating our economy and in promoting free trade among free nations.”12 We’ve all heard the mantra about job-killing regulations throttling the free market. If it means that some regulations are pointless or perverse or too cumbersome to be worth it, fair enough. If it means that the very idea of regulation is a threat to the market, well, that’s crazy talk. If it means that regulation is the enemy of economic opportunity, that’s crazy talk, too.

Recall Bentham: “Every law is an infraction of liberty.” But like recipes, laws can tell us how to do things. Like the rules of basketball, they can even create options. And by forbidding some actions, they can make others possible. It’s “as neat and predictable as a law of physics,” maintained Reagan; “as government expands, liberty contracts.” Nope. That’s a politically lethal mistake.

Comments
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R. Kevin Hill: Though the larger point is sound (that it’s not the fact of law but the nature of the laws that should be at issue), I’ve never liked HLA Hart’s attempt to substitute the “recipe” analogy for the “king’s threat” model for the simple reason that the contract law of formation is not really a recipe at all, though it can have the same guiding effect as a recipe. It’s a set of criteria for when to find someone in breach, thus opening up the possibility of enforcement against the breacher. It’s only a recipe in the sense that one could describe a threat as a recipe for surviving a kidnapper. That’s enabling positive options too, insofar as you can do all sorts of other things if your kidnapper doesn’t kill you. No doubt law is necessary, but let’s not tune out its smell entirely: it’s the smell of blood and powder.