On Liberty, License, Law, Self-Control and Principle
By Ken K. Gourdin
I’m intrigued by a phrase found in a patriotic anthem that is popular in the United States as we celebrate American independenceth: “America, The Beautiful,” by Katharine Lee Bates. At the end of the second stanza, Bates writes, “Confirm thy soul in self-control, thy liberty in law.”1 The notion of self-control is not a popular one in American society today, and “liberty” increasingly has come to be associated (in the minds of many) with the libertine notion that “anything goes.” I write to express a counterpoint to this notion.
For the sake of clarity, I wish to take up, first, the second of the two clauses in Bates’ phrase, “[Confirm] ‘thy liberty in law.’” In an attempt to discover what Bates meant, we will discuss the various meanings of liberty found in the dictionary, and will discuss how each definition might be “confirm[ed] in law.” Then, I wish to take up the second clause in Bates’ phrase, “Confirm thy soul in self-control,” and to discuss how one’s soul is “confirmed,” not only by law, but also by “self control.”
II. Confirm “Thy Liberty in Law”; “Liberty” Defined
I find the definitions of the word “liberty” at Dictionary.com to be revealing. Let’s consider these definitions in turn. The first says, “Freedom from arbitrary or despotic government or control.”2 Upon reading that definition, my next question regarding the first definition of liberty was, “Why would someone want to be free of government or control which is arbitrary or despotic?” The same source defines the word “arbitrary” as, “subject to individual will or judgment without restriction; contingent solely upon one’s discretion: an arbitrary decision.”3 I read that definition of “arbitrary” as, not supported by any underlying, consistent rule, reason, or principle. I would certainly want any person who (or entity which) makes decisions affecting me to be governed by underlying rules, reasons, or principles which are consistent. I would want to be treated identically (insofar as possible) to anyone else similarly situated.
Continuing our discussion of the first definition of “liberty,” we turn now to the definition of the second descriptor used in that definition, the word “despotic”: The same source defines “despot” as, “A king or other ruler with absolute, unlimited power; an autocrat.”4 This definition calls to mind Lord Acton’s famous dictum that, “Power corrupts, and absolute power corrupts absolutely.”5 While a full discussion of the distribution of the various powers of government in the United States Constitution is beyond the scope of this writing, it does seem certain that the founders had in mind, inter alia, Lord Acton’s dictum as they deliberated how to organize the government so that each of its branches would check and balance the powers of the others (and would, in turn, each have their powers checked and balanced by the others). Certainly, liberty is protected in large part by paying adequate attention to the concern that no one arm of government become too powerful.
The second definition of the word “liberty” is, “Freedom from external or foreign rule; independence.”6 While the United States as a whole has not been subjected to the threat of foreign domination since World War II, perhaps the principle embodied in this definition has broader application than a threat by one nation against another. Federalism, the concept that power is shared among a national government and government on a more local level (by a state, a county, and a city, for example) lies at the heart of this definition. It has at its heart the notion that, while national problems and concerns might best be resolved by a national government (national defense being one example), by contrast, local problems and concerns are better addressed by a local government. The further removed a proposed solution is from the locus of a problem or concern (we might call such a remote solution “foreign rule”), the less likely it is that those implementing such a solution will be accountable to the people they are trying to help. Conversely, the closer those who implement a solution are to the people whom the problem or issue directly affects, the more likely it is that the former will be accountable to the latter (we might call such a solution “local rule”). Local rule has a long and proud history in our Republic.
The first part of the third definition of “liberty” is, “Freedom from control, interference, obligation, restriction, hampering conditions, etc.”7 The more self-control one exercises (by, for example, refusing to yield to one’s baser instincts and impulses, and by exercising the discipline necessary to become a reasonably well-adjusted, contributing member of society), the less likely it is that it will become necessary for societal institutions such as families, schools, courts, and penal institutions to exercise control over him or her. Further, the law imposes certain obligations on people who live under it. While I am free to pursue my own goals, interests, vocations, avocations, and so on, I have an obligation to do so in a manner which does not bring harm to others. If I fail in this obligation, the law imposes various penalties upon me—either criminal penalties, when I violate society’s laws, or civil penalties, when, by failing to exercise reasonable care, my conduct harms others.
The second part of the third definition of “liberty” is, “Power or right of doing, thinking, speaking, etc., according to choice.”8 It is these freedoms which the First Amendment in the Bill of Rights in the United States Constitution seeks to protect: freedom of speech, freedom of the press, freedom of assembly, freedom to petition the government for redress of grievances, freedom of worship, and so on. Surely, there is a reason why the Constitution’s framers chose to put the First Amendment first, and why these freedoms are the first freedoms listed in that preeminent place. It is our very freedom to speak, to write, and peaceably to assemble (even for purposes of protest) which provide protection from the dangers of arbitrariness, of despotism, of absolute power, and so on. It is these freedoms, by and large, which people focus on when celebrating such occasions as American Independence Day, the ratification of the United States Constitution, and so on. These freedoms surely are important, and it is not my purpose in any way to dismiss or to diminish their importance. But as we’ve seen in examining the various definitions of “liberty” which are applicable to our discussion, the concept of liberty embraces a broader ambit than what is embodied in the First Amendment alone.
III. “Confirm Thy Soul in Self-Control”: How Living By Law “Confirms One’s Soul” in Liberty, While Living By Principle “Confirms One’s Soul in Self-Control”
Often, we think of law as limiting liberty. After all, the law does place restrictions on what a person can do. Certainly, the necessity of any law, whether merely proposed or already enacted, is colored by one’s conception of what freedom is. At a minimum, as we have already discussed, I owe you a duty to avoid acting in ways which harm you, and both the civil and the criminal law set the boundaries (at least at a minimum) of those actions. If I choose to obey the law, you are protected from whatever harm the law is intended to prevent; conversely, if I violate the law, I am subjected to the penalty that the law prescribes due to the harm I have caused. By analogy, perhaps we could compare the law to a kite string. One day when the winds were perfect for just such a pastime, a father took his son out to fly a kite. The father explained how, if the son ran just right into the wind and let out the string, the kite would soar to heights the son could not have imagined. The son followed these instructions, and sure enough, the kite was soon high aloft in the air.
Continuing our “law-as-kite-string” analogy, as the son watched, thrilled, as the kite ascended higher and higher into the air on a strong wind, a thought occurred to him: “Hey, Dad,” he said, “let’s cut the string and let that kite just soar!” It was then that the boy’s dad realized that this was a teaching moment. “Son,” he said, “If we did that, the kite would fall to the ground. It’s only because we hold onto it with the string, against the wind which is pushing it in the opposite direction, that it is able to fly so high.” The law is like that kite string. While people of good conscience and good will may debate the necessity and appropriateness of any given law, it is largely because you choose to obey the law that I retain my freedoms, and because I choose to obey the law that you retain your freedoms.
Now let’s apply the “law-as-kite-string” analogy to our discussion. It is important to realize that there’s more to liberty than mere license. Liberty is power: as Peter Parker’s Uncle Ben reminds him in the 2002 Movie Spiderman, “With great power comes great responsibility.”9 One would hope that where great liberty has been attained, one feels a sense of civic virtue—one feels the greatest responsibility to exercise that liberty (for example) by voting, by becoming involved in issues and causes about which one is passionate, by apprising one’s representatives of one’s stances on those issues and causes, and so on. But while liberty is the freedom to think and to do as one wishes, and to say what one wishes, and to participate in government so long as he does not harm others, license (with which liberty often is confused), as I use the term, is a different matter entirely. While laws are the string which enables the kite to soar as the string holds it down against the wind’s resistance, license, carried to its utmost extreme, would be the equivalent of cutting the string intending for the kite to soar even higher, but watching it (free from the wind’s resistance) plummet to the ground instead.
Laws (the string) are similar to the rules which govern lawyers. They prescribe—and proscribe—only minimum standards of conduct. They dictate the minimum that must be done (or the minimum that must be avoided) in the situations they were enacted to govern. Only as the string to which the kite is attached is held down (law) against the wind’s resistance (license) is the kite permitted to soar. But law alone, while indispensable to preserving liberty, is not enough. One must also be governed by principle. Religious leader and former lawyer D. Todd Christofferson put it this way in discussing the difference between liberty and license in a 2001 address to a group of lawyers:
The great benefit of a life founded on principle is that it permits self-direction and self-government. The law that governs one’s conduct is within; external rules [and laws] are secondary or supplementary. This affords maximum liberty in professional life and in life generally—not maximum license, but maximum liberty. When principles guide choices, few rules are needed. Principles can move from one situation to another providing a paradigm that focuses the facts and points a proper course. Rules [and laws] alone are not up to that task. We can never conceive and draft enough rules to cover all events and circumstances, and, even if we could, who could ever read and remember them all?10
In summary, the broadest possible definition of liberty—doing as one wishes—is antithetical to ensuring a peaceful, ordered society. Society places various caveats on that liberty to ensure that while I reasonably do as I wish, I do not, in the process, injure you or prevent you from reasonably doing as you wish. However, since there’s no way for the law to anticipate beforehand all of the ways in which one human being may harm another, obeying the law, while necessary at a minimum to ensure an ordered, peaceful society, is not, by itself, enough. While a law may be sufficient in one set of circumstances, it might be entirely inadequate in another set of circumstances. Thus, while obeying the law will ensure appropriate conduct to a minimal degree, living according to principle is the superior course, since principle is adaptable and applicable to a much wider variety of circumstances. Indeed, Bates might say that while living according to law confirms one’s soul in liberty, living according to principle confirms one’s soul in self control.
1 Katharine Lee Bates (1893) “America, The Beautiful,” accessed on line at http://www.usa-flag-site.org/song-lyrics/america.shtml on July 6, 2013.
2 Dictionary.com, s.v. “liberty,” definition 1, accessed July 6, 2013.
3 Id., s.v. “arbitrary.”
4 Id., s.v. “despot.”
5 Lord Acton (n.d.), Brainyquote.com, accessed on line July 6, 2013 at the following address, http://www.brainyquote.com/quotes/quotes/l/lordacton109401.html
6 Dictionary.com, s.v. “liberty,” definition 2, accessed July 6, 2013.
7 Id., definition 3, accessed July 6, 2013.
9 Stan Lee and Steve Ditko (Marvel comic book), David Koepp (screenplay) (2002) Spider-Man, Marvel Enterprises, distributed by Columbia Pictures.
10 D. Todd Christofferson (Spring, 2001), “Confirm Thy Soul in Self-Control,” Clark Memorandum, Provo, Utah: J. Reuben Clark Law School 6, accessed on line on July 6, 2013 at http://www.jrcls.org/publications/clark_memo/issues/cmS01.pdf