Friday, February 17, 2012

Liberty, Part XXXI

Thomas Cooley:

“The comprehensive word is liberty; and by this is meant, not merely freedom to move about unrestrained, but such liberty of conduct, choice, and action as the law gives and protects. Liberty is sometimes classified as natural liberty, civil liberty, and political liberty. The first term is commonly employed in a somewhat vague and indeterminate sense. One man will perhaps understand by it a liberty to enjoy all those rights which are usually regarded as fundamental, and which all governments should concede to all their subjects; but as it would be necessary to agree what these are, and the agreement could only be expressed in the form of law, the natural liberty, so far as the law could take notice of it, would be found at last to resolve itself into such liberty as the government of every civilized people would be expected by law to define and protect. Another by natural liberty may understand that freedom from restraint which exists before any government has imposed its limitations. But as without government only a savage state could exist, and any liberty would be only that of the wild beast, in which every man would have an equal right to take or hold whatever his agility, courage, strength, or cunning could secure, but no available right to more, it is obvious that a natural liberty of the sort would be inconsistent with any valuable right whatever. A right in any valuable sense can only be that which the law secures to its possessor, by requiring others to respect it, and to abstain from its violation. Rights, then, are the offspring of law; they are born of legal restraints; by these restraints every man may be protected in their enjoyment within the prescribed limits; without them possessions must be obtained and defended by cunning or force.”

I do not think that Cooley was entirely right about this -- the actual freedom of a person may extend to whatever he can get away with, but that is not to say that every person does not have an equal right in his freedom, bounded by the just rights of others, which are themselves bounded in the same way -- but he is right to point out that liberty extends to more than simply freedom of movement.

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