What is Meant by Freedom?

In 1955, in a neglected article in the Harvard Law Review entitled Freedom—A Suggested Analysis, Lon L. Fuller provided a framework for the basic definition of freedom. More importantly, he tendered a question about the conditions of a free society: “How can the freedom of human beings be affected or advanced by social arrangements, that is, by laws, customs, institutions, or other forms of social order that can be changed or preserved by purposive human actions?” This is the critical question this Article addresses through constructing a comprehensive definition by first, considering etymology and then establishing the various modalities in which freedom operates. These modalities include the space defined by the rule of law and various antithetical non-rule-of-law states, the role of democracy and representative government in disparate levels of society, the importance of rights as trumps on power, and the challenges posed by social justice. Finally, Fuller’s question raises the issue of “laws, customs, institutions [and] other forms of social order,” all of which luminaries such as John Stuart Mill saw as unfortunate, but necessary, evils when considering freedom.

Rather than necessary evils, this article will consider the productive role ascribed to law and institutions by Scott Shapiro, who views law as a form of social planning that effectuates choices, thus enhancing freedom.