Mr. Scott on Freedom and Unfreedom
| Author | J. H. Burns |
| Published date | 01 February 1957 |
| Date | 01 February 1957 |
| DOI | http://doi.org/10.1111/j.1467-9248.1957.tb00862.x |
| Subject Matter | Article |
MR.
SCOTT
ON FREEDOM AND UNFREEDOM’
J.
H.
BURNS
University
of
A berdeen
MR.
K.
1.
SCOTT’S
robust reminder that ‘Licence is one kind of liberty’
(p.
182)
deserves
the gratitude of all who have suffered from sophistries about ‘true liberty’, ‘real freedom’,
and the like. But there are points where his own analysis seems open to criticism. The first
of these is the special status he appears to confer
on
legal obligations and legal sanctions.
Mr. Scott argues
(a)
that previous engagements of
a
legally binding character render
us
unfree to act in contravention of these engagements; and
(b)
that positive laws backed by
punitive sanctions render
us
unfree to perform the actions from which they are intended to
deter
us.
Both propositions may be accepted, but
an
important difference between the two
cases should be signalized.
(a)
Here, taking Mr. Scott’s illustration of an option over goods
granted and paid for, the law’s effect is, strictly, to make contrary action
impossible.
We
cannot
sell the goods to a third party, not because we are physically prevented from going
through the actions of handing over the goods and receiving the cash, nor because we are
deterred from doing
so
by fear of punishment, but simply because the law will not recognize
such a transaction as a valid sale-and the
sale
of goods is a matter which depends on legal
regulation. There are many other cases where the law renders this or that impossible by
refusing to recognize its validity: the law of marriage would provide numerous examples.
(b)
Here, as Mr. Scott says, where the force
of
Iaw derives from penal sanctions, it
is
deterrence not prevention that limits our freedom. It is submitted, therefore, that in
analysing the relation between law and freedom it is useful to employ terms suggested by
Felix
E.
Oppenheim:
“‘A
makes
B
unfree to do x” means that
A
makes
it impossible
for
B
ro
do
x
or A would
punish
B
if
B
did
x’,
A and B standing for individuals or groups.2
None
of
this, however (Mr..Scott argues), applies to non-legal moral obligations such
as the obligation to keep voluntary promises. The argument here seems to presuppose
an
exhaustive twofold classification of obligations into legal and moral obligations. But this
supposition is false. Granting Mr. Scott’s contention that strictly moral obligations do not
render
us
unfree, there remains
a
wide area of non-legal obligation in which we aFe certainly
unfree
in
a sense at least
analogous
to that in which positive law makes
us
unfree. Parallels
to the cases where the
law
makes actions impossible by denying their validity may not be
obvious in this non-legal area. Perhaps, however, they exist in the realm of sport:
I
am not
free to get a batsman out with a no-ball in the same sense
as
1
am not free to sell a third
party goods over which
I
have granted an option; and in any society with an elaborate and
rigid code of etiquette, instances could be found of behaviour made impossible because
society would not ‘recognize’ it. More important, however, are cases corresponding to those
where the law employs penal sanctions, cases in which we are deterred from an action by
the sanctions of opinion, reputation, social ostracism, &c. It is apposite to recall here Mill’s
argument in the essay
On
Liberty
that there are cases where a man who performs an action
‘hurtful to others
.
.
.
without going to the length of violating any of their constituted
rights .
.
. may
.
.
. be justly punished by opinion, though not by law’.3
An
habitual promise-
’
K.
J.
Scott, ‘Liberty, Licence, and Not Being Free’,
Political
Sfiddies,
vol. iv,
No.
2,
June
1956,
pp.
176-85.
Felix
E.
Oppenheim, ‘Interpersonal Freedom and Freedom of Action’,
American
Political Science Review,
vol.
xlix,
No.
2,
June
1955,
pp.
353-63.
Cf. especially p.
354.
J.
S.
Mill,
Utilitarianism, Liberty,
nnd
Representari\le Go~~ernmen~,
Everyman’s Library
edn., p.
132.
G
5540.5.1
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