top of page

Is the Law the chief threat to our Freedom, or its best guarantor?

Updated: Oct 25, 2023

In order to answer the question, key terms to this question need to be defined. In specific, I like to define the "Law" as not only a system of rules that contains sanctions that are enforced against those who disobey the law but also includes the government agencies (i.e., the federal government and the supreme court) standing behind and giving validity to the law. Secondly, the idea of "our Freedom" needs to be viewed in two dimensions: freedom as an individual and freedom as a collective society. When discussing whether the law is protecting or threatening "our Freedom", we need to carefully balance the two conflicting freedoms. Viewing from a grander scale, I would like to argue that Law is the best (or optimal) guarantor of our freedom.

The first major argument that is made in favour of Law as the best guarantor is that it acts as checks and balance for not only individuals' irrational behaviour but also prevent the government from infringing our personal liberties. In terms of irrational behaviour, it is demonstrated in the US Constitution – where the founding fathers have grounded this cornerstone of the nation against the "tyranny of the majority". In other words, they were fearful that the majority would trample on the minority's rights. James Madison once declared a similar opinion in the Federalist Paper 51: "It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure." Hence, the US Constitution is being construed in a way that the Amendments are unable to be changed unless two-thirds of both houses or two-thirds of state legislatures had proposed an amendment and then three-fourths of the states have ratified the amendments. While on the other hand, in the prevention of the government's infringement on individuals' liberties, the Court system is established in many nations to keep the government in check. Although the powers of the Court vary, they all broadly have the jurisdiction to review legal questions that arise in their respective territory. Taking the US Court system as an example, the judges on the bench will be able to scrutinize allegations raised by claimants when their rights that are enshrined in the constitution are being violated. In addition, the court system has functioned in a way that you will be able to appeal the court's decision up to a certain extent. For the US, the highest court of appeal is the US Supreme Court; for countries within the EU, they can appeal to the European Court of Justice. Hence, the court system provides multiple routes for citizens to appeal when the government allows or establishes regulations that violate the freedom of citizens. Many times, we will also see the Court endorses progressivism of the fundamental rights in the Constitution that protects the freedom of the people – for instance, Brown v Board of Education, Wade v Rode, etc. From these cases, it is observed that civil rights activists turn to the court system to correct the mistakes of legislation. Therefore, it is popularly argued that the Law is a great way to ensure that our Freedom is being best protected in a society with conflicting interests.

Taking another step back, the establishment of the Law is an integral part of our modern society. Laws serve as a norm of conduct for citizens and act as explicit guidance of acceptable behaviour. The way that the law has developed can be pithily summarized by the six steps proposed by Max Weber: spontaneous emergence of norms within groups, irrational adjudication to judge-made law, the emergence of legislation, the arrival of lawyers, tension between formal and substantive rationalisation, and law concerning social and economic concerns. Only by establishing the robust law, can we ensure that we have a relatively clear standard to follow, know when we can raise our concerns, and protect our freedom. We can also draw from experiences in our daily lives to conclude the impact of the Law: we can always rely on the Law to uphold our freedom.

However, some would argue that the Law may be prone to exploitation and limitation of people's freedom. Although ideally speaking "No one is above the Law", in real life, the people in power or of high calibre (i.e., these minorities) will have a greater influence on the law than the majority. For instance, many members of the Parliament may have similar demographic characteristics and are prone to disregard or unable to comprehend the way of people that are different from them. Therefore, they may have the capability of trampling many rights of those in the society. Or even, when a country is under dictatorship, the Law will be subject to tyranny and a dangerous weapon that severely limits people's freedom. For instance, in North Korea, criticism of the government is greatly curtailed, and making such statements can lead to arrest or forced into one of North Korea's "re-education camps". But it is also worthy to look at the root cause of this abuse – it was because of the dictator and his supporters behind him. Law is a means which helps the dictator to find a supposedly higher authority to back his actions. Although the Law does not share as much blame as the dictator, we do see that Law has its limitation when the whole government is being dominated by one party/man.

I would also like to highlight the inherent ambiguity of "our Freedom" which requires us to decide which freedom is more significant and should be upheld. As explained earlier, our Freedom can be seen as either collective or individual. Examples of collective freedom can be national security and public interest, while individual freedom can be freedom of speech and expression, private life, etc. There have been numerous cases when it is alleged that individual freedom is being infringed in the name of protecting the public interest. One factor to consider is the circumstance that the nation was in when the case arose. Especially during wartime, the government wields huge power to protect the citizens. An example is Korematsu v United States (1944), which was a case on whether the President and Congress went beyond their war powers by implementing exclusions and restricting the rights of Japanese descent. Putting aside the discussion of whether this case is "right", the public interest is being prioritized during the war periods. Therefore, the idea of "our Freedom" is quite a subjective term that depends on whether you stand in supporting of protecting the public interest or personal freedom.

In conclusion, the Law has been – up to now – the most effective measure in protecting "our Freedom". Although it does have its limitation, under the framework of most nations, it is unlikely that one party's interest can completely dominate the whole nation. Therefore, the Law is the chief protector of our Freedom.


bottom of page