PLANNING FOR FREEDOM1

AuthorW. Friedmann
DOIhttp://doi.org/10.1111/j.1468-2230.1961.tb02171.x
Publication Date01 March 1961
THE
MODERN
LAW
REVIEW
Volume
24
March
1961
No.
2
PLANNING
FOR
FREEDOM
How to reconcile freedom and planning in contemporary demo-
cratic societies is one of the basic problems
of
our
time.
Enthusiastically
or
reluctantly-depending upon political and
social beliefs-all but a small hard core of last ditch resisters, led
by Professor Hayek, have conceded that a high degree of planning
is the inevitable concomitant of industrialised and urbanised
societies. Indeed,
it.
may well .be argued
*
that the Kantian
definition of law as
the aggregate of the conditions under which
the arbitrary will of one individual may be combined with that of
another under a general inclusive law of freedom
opens the way
for law as an instrument of planning designed to ensure the protec-
tion of individual freedom from encroachment by others.
The problem that has occupied some jurists, economists and
political philosophers in recent years is at what point the line is to
be drawn, how far planning by the central authority of the state
can go without injuring vital freedoms, without leading to a con-
centration of unchecked power that is bound to end in dictatorship.
A large part of this discussion has centred around the problems of
the limits of administrative discretion.s
To
this wider problem of the reconciliation between planning
and freedom under the rule of law Dean Rostow’s important book
does not address itself. Only one, rather cursory, chapter on
‘‘
The
Goals of Legal Action in Controlling the Economy
deals with
the function
of
law as an instrument
of
social change. Dean
Rostow is concerned with a more limited, specific, and in part
1
Planning
for
Freedom, the Public Law
of
American Capitalism,
by
Eugene
V.
Rostow, New Haven, Yale University Press, 1959; London, Oxford
University Press, 1960.
2
Contrary
to
the implication in Dean Rostow’e book, at p. 365.
For
opposing views
on
this problem Bee
on
the
one
side Hayek, The Road to
Serfdom (1943), Chap.
7,
and The Constitution
of
Liberty
(1960),
p.
205
et
seq.,
or
Keeton, The Passing
of
Parliament (1962);
on
the other side Jenqings,
The Law and the Constitution, Chaps.
VI,
VnI;
Friedmann, Law in a
Changing Society (1959), Chaps. 11-13, 16; Jones, “The Rule
of
Law
and
the Welfare State,” 58 Col.L.Rev. 149 (1958).
209
VOL.
24
8

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