Separating Law and Liberty

Abstract How is law related to liberty? For republicans, a just law constitutes people’s liberty. Another prominent view is that while the law is not necessary for freedom, legal constraints do not make individuals unfree when they protect their moral rights. In this paper, I reject these views and defend a purely negative conception of liberty according to which the law necessarily makes individuals unfree. I show how this means legal constraints deny individuals something valuable. But importantly, these constraints can still have a beneficial effect on negative freedom overall. By enabling us to consider how much freedom and unfreedom a constraint causes, this conception of freedom provides a better basis for evaluating legal constraints than do the two rival conceptions. It is therefore by taking the law to necessarily make people unfree in some respects that we can meaningfully evaluate different legal arrangements in terms of their effect on freedom.