Freedom and the Law. Bruno Leoni
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Regardless of its technical implications, the word “freedom” entered very early into the ordinary languages of Western countries. This implied sooner or later a disconnection of the word itself from several technical terms belonging to the legal or to the political language of these countries. Finally, in the past hundred years the word “freedom” seems to have begun to float unanchored (as a contemporary author might say). Semantic changes have been introduced at will by a number of different people in different places. Many new meanings have been proposed by philosophers that are at variance with the meanings already accepted in the ordinary languages of the West. Shrewd people have tried to exploit the favorable connotations of this word in order to persuade others to change their corresponding ways of behaving into new and even contrary ones. Confusions arose whose number and gravity have increased as the various uses of the word “freedom” in philosophy, economics, politics, morality, and so on, have become more numerous and serious.
The very word free, to take a trivial example, in its use in ordinary English, may or may not correspond to the French word libre or to the Italian libero. Of course, the Italians and the French attach to this word several meanings that correspond to the English and the American ones, such as when it is said that the American Negro became “free”—that is, was no longer in bondage—after the Civil War. However, neither the French nor the Italians ever use libre or libero in the same way as the English and the Americans use “free” to mean, for instance, that something is gratuitous.
It has become usual, especially in modern times, to speak of freedom as one of the basic principles of good political systems. The meaning of “freedom” as it is used to define or simply to name that principle is not at all the same in the ordinary language of each country. When, for instance, Colonel Nasser or the Algerian fellagha speak today of their “freedoms” or of the “freedom” of their countries, they are referring only, or also, to something that is completely different from what the Founding Fathers meant in the Declaration of Independence and in the first ten amendments to the American Constitution. Not all Americans are inclined to recognize this fact. I cannot agree with writers like Chester Bowles, who apparently maintains in his recent book, New Dimensions of Peace (London, 1956), that there is little or no difference in this respect between the political attitude of the English settlers in the American colonies of the British Crown and that of such people as the Africans, the Indians, or the Chinese, who are now praising “freedom” in their respective countries.
The English and American political systems have been imitated to a certain extent, and are imitated still in many respects, by all the peoples of the world. European nations have contrived some very good-looking imitations of these systems, and this is also due to the fact that their history and their civilization were somewhat similar to those of the English-speaking peoples. Many European countries, imitated now in their turn by their former colonies all over the world, have introduced into their political systems something similar to the English Parliament or to the American Constitution and thus flatter themselves that they have political “freedom” of the kind presently enjoyed by the English or the Americans or which these countries once enjoyed in the past. Unfortunately, even in countries which have, as Italy does, for example, the oldest European civilization, “freedom” as a political principle means something different from what it would mean if it were actually connected, as it is in both England and the United States, with the institution of habeas corpus or with the first ten amendments to the American Constitution. The rules may seem to be almost the same, but they do not work in the same way. Neither the citizens nor the officials interpret them as the English or the Americans do, the resulting practice being rather different in many respects.
I can find no better example of what I mean here than the fact that in England and the United States criminal cases must be settled“and are actually settled—by “a speedy and public trial” (as called for in the Sixth Amendment to the American Constitution). In other countries, including Italy, notwithstanding laws such as certain special articles (e.g., 272) of the Italian Codice di Procedura Penale that contain several provisions relating to persons suspected of a crime and kept in prison awaiting trial, a man who has been held to answer for a crime may stay in prison for as much as one or two years. When at last he is found guilty and condemned, he perhaps must be set free immediately since he has already spent in prison all the time of his sentence. Of course, if he is proved not guilty, no one can restore to him the years lost in jail. One is sometimes told that in Italy the judges are not sufficiently numerous and that the organization of the trials probably is not so efficient as it could be, but public opinion is obviously not alert or active enough to denounce these defects of the judiciary system, which do not appear so clearly incompatible with the principle of political freedom as they would to public opinion in England or the United States.
“Freedom,” then, as a term designating a general political principle, may have only apparently similar meanings for different political systems. It must be pointed out also that this word may have different meanings and different implications at different times in the history of the same legal system, and, what is even more striking, it may have different meanings at the same time in the same system under different circumstances and for different people.
An example of the first case is provided by the history of military conscription in the Anglo-Saxon countries. Until comparatively recent times, military conscription, at least in time of peace, was considered both by the English and by the American people as incompatible with political freedom. On the other hand, Continental Europeans such as the French or the Germans (or the Italians since the second half of the nineteenth century) considered it almost self-evident that they had to accept military conscription as a necessary feature of their political systems without even wondering whether the latter could still therefore be called “free.” My father—who was Italian—used to tell me that when he went to England for the first time in 1912, he asked his English friends why they had no military conscription, confronted as they were with the fact that Germany had become a redoubtable military power. He always received the same proud reply: “Because we are a free people.” If my father could visit the English or the Americans again, the man in the street would not say to him that because there is military conscription these countries are no longer “free.” The meaning of political freedom in these nations has simply changed in the meantime. Because of these changes, connections which were taken for granted before are now lost, and contradictions appear which are strange enough to the technicians, but which other people accept unconsciously or even willingly as natural ingredients of their political or economic system.
Unprecedented legal powers conferred upon trade unions both in the United States and in the United Kingdom today are a good example of what I mean by “contradictions” in this respect. In the language employed by the Chief Justice of Northern Ireland, Lord MacDermott, in his recent Hamlin Lectures (1957), the Trade Disputes Act of 1906 “put trade unionism in the same privileged position which the British Crown enjoyed until ten years ago in respect to wrongful acts committed in its behalf.” This law accorded protection to a series of acts committed in pursuance of an agreement or combination by two or more people in contemplation or furtherance of a trade dispute which had been