A free society demands a government of laws

The American Declaration of Independence demanded, using the idiom of the time, “A government of laws and not of men”. This concept is absolutely fundamental to a free society. There have to be restrictions on people’s freedom, but these must consist in rules, made in advance and accessible, telling people what they may not do. There must not be people having the power, in their discretion, to decide what people may or may not do in particular cases.

Nobody can be perfectly free. We are limited by physical and material constraints, and we are limited by rules, but practical freedom is to be in a position where one knows what the constraints are, and within them, plots one’s own course. It is like someone sailing a boat, that has a chart showing the rocks and shoals, and taking account of the chart, steers as he chooses.

Written and accessible laws are like the shoals on the chart, but discretionary authority, if exercised consistently and effectively removes the plotting of the course from the individual to the authorities. The individual is no longer in the position of the pilot of a boat plotting his own course; he is like the pilot of an aircraft under the orders of an air traffic controller. The course is plotted by the controller, not the pilot.

In the real world, however, discretionary authority is hardly ever exercised like this. Governments have neither the resources nor the knowledge to run people’s lives in detail however much they may want to. In most real cases, discretionary authority makes erratic and arbitrary raids, more like exceptional bad weather, which can disrupt the best laid plans.

Discretionary authority is bad for freedom: it takes away people’s sense of autonomy, but it is worse for efficiency. To the extent that it is effective, it puts out of use the ability, initiative and special knowledge of everybody in society except a handful of officials. An effectively centrally planned economy, if such a thing were possible, would use the intelligence of only a tiny minority of the population, whereas a free society uses it all. The more usual, inefficient and sporadic discretionary authority simply increases uncertainty in the world, inhibiting initiative and making people cautious and demotivated. This is probably the most important single factor that explains the superior economic efficiency of free societies.

A free society does not mean one where everybody can do whatever they like, free of consequences. Such a thing is neither possible nor desirable. Many consequences are not imposed by people, but are in the nature of things (e.g. if you drink cyanide, you will die). One can be free to do a thing and take the consequences, but one cannot be free to do it and not take them.

Then if, even subject to this exception, everybody was free to do as they liked, those who in particular situations were stronger could injure those who were weaker, and so make them less free. If everybody is to be as free as possible, freedom cannot include the right to injure others. Apart from that, there are situations where, if there were no rules, people would get in each other’s way to an intolerable extent. If we did not all drive on the same side of the road, the busier roads would simply choke and come to a standstill.

Freedom is necessarily limited, but the principle that distinguishes a free society from an unfree one is that in a free society every person belongs to him or herself. In an unfree society people belong to some other entity – the king, the nation, the “people” – all of which mean, in reality, the government. In a free society, everything is allowed which is not expressly forbidden in advance. In an unfree society, in principle, nothing is allowed. Before you can do something, you have to receive an order, or at least receive permission.

The clearest example of an unfree society, which is the model that most people who advocate such societies have in mind, is an army. “Theirs not to reason why. Theirs but to do or die.” The working of a free society is best illustrated by traffic rules. There is a rule of the road, there are speed limits, one-way streets, stop streets and traffic lights; but in all this elaborate system of constraints, nobody is telling the individual drivers what their destinations should be. All these millions of drivers are going about their own business and the sole purpose of the rules is, or at least is meant to be, to enable them to do so as safely and effectively as possible. Such is a free society.

Author: The Late Michael O'Dowd was Chairman of the Free Market Foundation from 1978 to 2005. This article may be republished without prior consent but with acknowledgement to the author.

FMF Article of the Week/ 4 November 2003 - FMF Policy Bulletin/ 22 December 2009