Freedom, Legality, and the Rule of Law
Washington University Jurisprudence Review
There are numerous interactions between the rule of law and the concept of freedom. We can see this by looking at Fuller’s eight principles of legality, the positive and negative theories of liberty, coercive and empowering laws, and the formal and substantive rules of law. Adherence to the rules of formal legality promotes freedom by creating stability and predictability in the law, on which the people can then rely to plan their behaviors around the law—this is freedom under the law. Coercive laws can actually promote negative liberty by pulling people out of a Hobbesian state of nature, and then thereafter can be seen to decrease negative liberty by restricting the behaviors that a person can perform without receiving a sanction. Empowering laws promote negative freedom by creating new legal abilities, which the people can perform. The law can enhance positive freedom when it prohibits negative behaviors and promotes positive behaviors. Finally, the content of the law can be used to either promote or suppress individual freedom.
John A. Bruegger,
Freedom, Legality, and the Rule of Law,
9 Wash. U. Jur. Rev. 081
Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol9/iss1/7