7 - Liberty

Summary

INTRODUCTION

Autonomy is a particular kind of liberty – the freedom to live under laws one wants to live under given that living under laws one must. The argument, from Rousseau to Kelsen, has been that because to live together we must live under laws, this is the only kind of freedom possible. Liberty cannot mean freedom in the state of nature. Legal order enables actions that are not feasible in the state of nature: In the latter each individual is exposed to aggression or exploitation by others, so that no one is free from interference. Freedom is possible only in society, not outside of it.

But necessity does not freedom make. Rousseau's promises notwithstanding – that we would be as free “as before” – counterfactual comparisons are irrelevant. Any legal order is a form of oppression. Even if we were to agree unanimously to a particular order, it does not mean that each individual enjoys being subject to it. A legal order is but cooperation imposed by a threat of force. An order imposed by a majority is even more onerous, because it is just one way of imposing cooperation among several possible.

Moreover, some legal orders are more onerous than others. Even if we must live under a system of laws, not all aspects of our lives must be regulated. As Condorcet (1986 [1787]: 206) observed, “There are two distinct parts in all legislation: deciding which objects can be legitimately legislated, deciding what the laws should be.”