JOHN BRUEGGER’S NOTION OF FREEDOM AND THE RULE OF LAW

BY

ANYIAM, MAGNUS OTUOSORO

(MATRIC NO: DI/737)

BEING AN ESSAY SUBMITTED TO THEDEPARTMENT OF

PHILOSOPHY, DOMINICANINSTITUTE SAMONDA, IBADAN, IN

AFFILIATION WITH THE UNIVERSITY OF IBADAN, IN PARTIAL

FULFILMENT OF THE REQUIREMENTS FOR THEAWARD OF A

BACHELOR OF ARTS (B.A.) DEGREE IN PHILOSOPHY

SAMONDA, IBADAN

MAY, 2020

i

CERTIFICATION

I certify that the Essay titled: JOHN BRUEGGER’S NOTION OF FREEDOM

AND THE RULE OF LAW submitted to the Department of Philosophy, Dominican

Institute, Ibadan, for the award of Bachelor of Arts Degree in Philosophy by the

University of Ibadan, is an original research carried out by Anyiam Magnus

Otuosoro DI/737

-------------------------- ---------------------------------

Date Supervisor/Moderator

Dr. Victoria Openif’Oluwa Akoleowo

Lecturer, Dominican Institute,

Samonda, Ibadan.

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APPROVAL

THIS LONG ESSAY HAS BEEN APPROVED FOR THE DEPARTMENT OF

PHILOSOPHY, DOMINICAN INSTITUTE

BY

________________________ ______________

DR. VICTORIA OPENIF’OLUWA AKOLEOWO DATE

(HEAD OF DEPARTMENT OF PHILOSOPHY)

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DEDICATION

This Essay is dedicated to my dearly beloved parents, Late Mr. Michael

Anyiam and Mrs. Felista Anyiam, who nurtured and provided for my academic

career.

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ACKNOWLEDGEMENT

My special gratitude goes to the Almighty God, who created me and gifted me

with the ability and inspiration to write this essay. Truly, without His help, I would

not have recorded success in all my research works. I thank Mama Maria and all the

Saints of God, especially, St Thomas Aquinas for their intercession and guidance in

all my endeavours.

I also thank my mother, Mr. Felista Anyiam and my siblings, Mr Chinedu

Daniel Anyiam, Mr Okwuchukwu Sixtus Anyiam, Mrs Ngozi Egbuogu, Mrs

Onyekachi Nwachukwu and Miss Maureen Anyiam, and all my extended family

members, for their encouragement, prayers and love.

Special thanks to my beloved moderator, Dr. Victoria Openif’Oluwa

Akoleowo, for her motherly care and her intellectual, psychological, and moral

encouragement during the course of writing this essay. Thanks to Bro. Anthony

Akpan, who corrected and proofread my essay, despite his tight schedule and school

program. In the same way, I appreciate my Spiritual Director, Rev. Fr. Dr. Anthony

Okwum SSJ, whose advice and support helped me pull through the difficult times I

encountered while writing this essay.

I extend my warm gratitude to my Prior, Rev. Fr. Dr. Nathaniel Eshikena, OP.,

and my Students’ Master, Rev. Fr. Christopher Nnamani, OP., and my Director of

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Studies, Rev. Fr. Patrick Akunne, OP., and all my lecturers, especially Rev. Fr. Dr.

Damian Ilodigwe, for their guidance and tutelage through my years in philosophy.

A hearty appreciation to Mr James Ibeneto and Mr Bede Ibeneto for

encouraging and trusting me. Your love is pushing me further in my intellectual

pursuit.

Lastly, I thank all Dominican Brothers, well-wishers and friends for their

assistance and care.

THANK YOU EVERYONE that has in one way or the other contributed to

the success of my philosophy program and this essay, may God bless, keep and

reward you all. Amen.

ANYIAM, Magnus Otuosorochi

MAY, 2020.

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Table of Contents

Certification .................................................................................................................... i

Approval ........................................................................................................................ ii

Dedication .................................................................................................................... iii

Acknowledgement ........................................................................................................ iv

Table of Contents .......................................................................................................... vi

Abstract ...................................................................................................................... viii

GENERAL INTRODUCTION ...................................................................................... 1

Statement of the Problem ........................................................................................... 2

Methodology of the Research .................................................................................... 3

CHAPTER ONE: IS FREEDOM A MYTH OR REALITY? ....................................... 4

1.0 Introduction ......................................................................................................... 4

1.1. Defining Freedom ........................................................................................... 5

1.2. The Different Notions of Freedom .................................................................. 6

1.2.1. Plato ......................................................................................................... 7

1.2.2. Aristotle.................................................................................................... 8

1.2.3. Thomas Aquinas ...................................................................................... 9

1.2.4. John Locke ............................................................................................. 10

1.2.5. Jean-Jacques Rousseau .......................................................................... 12

1.2.6. John Rawls ............................................................................................. 14

1.3. Theories of Freedom ..................................................................................... 16

1.3.1. Negative Freedom .................................................................................. 16

1.3.2. Positive Freedom ................................................................................... 18

1.4. Freedom and Rationality ............................................................................... 19

1.5. Freedom and the Common Good .................................................................. 20

1.6. Conclusion ..................................................................................................... 21

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2.0 Introduction ....................................................................................................... 22

2.1 What is Law? .................................................................................................... 23

2.2 Types of Law and their Proponents............................................................... 24

2.2.1 Natural Law ........................................................................................... 25

2.2.2 Legal Positivism..................................................................................... 29

2.3 The Rule of Law ............................................................................................... 32

2.4 Restriction to Rule of Law ................................................................................ 34

2.5 Conclusion ........................................................................................................ 36

CHAPTER THREE: THE INTERACTION BETWEEN FREEDOM AND RULE OF

LAW ............................................................................................................................ 37

3.0 Introduction ....................................................................................................... 37

3.1 Theories on Interaction between Freedom and the Rule of Law ...................... 38

3.1.1 Republican Freedom Theory ..................................................................... 38

3.1.2 Negative Liberty/Freedom Theory ............................................................ 40

3.2 Freedom and the Rule of Law ........................................................................... 40

3.2.1 Infringement of Freedom on Rule of Law ................................................. 40

3.2.2 Infringement of Rule of Law on Freedom ................................................. 42

3.3 The Self and the Rule of Law ........................................................................... 44

3.4 Compatibility of Freedom and Rule of law ...................................................... 46

3.5 John Bruegger’s Position on Freedom and Rule of Law .................................. 48

3.6 Conclusion ........................................................................................................ 53

CHAPTER FOUR: EVALUATION............................................................................ 54

4.0 Introduction ....................................................................................................... 54

4.1 Critical Appraisal of John Bruegger’s Position ................................................ 54

4.3. General Evaluation............................................................................................ 59

4.4. Conclusion ........................................................................................................ 65

GENERAL CONCLUSION ........................................................................................ 66

BIBLIOGRAPHY ........................................................................................................ 68

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ABSTRACT

Humans continue to abandon laws as they prefer absolute freedom. Whereas, a

strict adherence to the spirit of law views man’s freedom as a myth. Bruegger

establishes the interaction between law and freedom, more especially when there is

the rule of law. Additionally, Lon Fuller also offers some theoretical outlook on the

numerous interactions between the rule of law and freedom. Owing to the multiplicity

of notions of law and freedom, it is difficult to reach a consensus on the manner of

these interactions. Some hold unto a more negative concept of freedom, which

infringes on the law. While a more acceptable view of freedom is looking at it as a

positive liberty. Thus, we have undertaken to look into the concept of freedom and the

rule of law, their interactions and compatibility as viewed by John Bruegger.

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GENERAL INTRODUCTION

Freedom, being a well-known concept in philosophy and other fields of study,

is closely related to other concepts in different fields. Freedom is defined as “the

ability of an agent to act or not to act according to her dictates (willingness,

commands) and/or preferences (desires, drives)”;1 being able to act, without

compulsion or coercion, according to one’s will, or one being the cause of her action

without being influenced by something intrinsic and extrinsic.2 Freedom is always

contrasted with determinism; the puzzle here hinges on whether humans are free to do

whatever they deem right, or whether they are constrained or determined by external

events beyond their control. Some scholarly positions have argued in favour of the

existence of freedom, others argue against; and some others maintain a middle stance

between these two. In this essay we shall argue on the position that freedom exists,

like our primary interlocutor, John Bruegger, does.3

In order to regulate behaviours to avoid arbitrariness, the idea of law comes

into existence. Generally, “law[s] may be defined as a rule of human conduct,

imposed upon and enforced among the members of a given state.”4 Also, law[s] can

be defined as a set or sets of rules, promulgated for observance, and enforceable by

the courts, which also regulate the government of the state and the relationship

1 Peter A. Angeles, “Freedom”, Dictionary of Philosophy (New York: Barnes & Noble Books, 1981),

p. 106. 2 Cf. Peter A Angeles, “Freedom” Dictionary of Philosophy, p. 106 3 Cf. John A. Bruegger, “Freedom, Legality, and the Rule of Law.” Washington University

Jurisprudence Review, Vol 9, no. 1, (2016), pp. 51-54.

http://openscholarship.wustl.edu/law_jurisprudence/vol9/iss1/7. 4 Padfield, Law Made Simple, 5th Edition (London: A. Howard & Wyndham Company, 1978), p. 1.

http://openscholarship.wustl.edu/law_jurisprudence/vol9/iss1/7

2

between one citizen and the other.5 For Plato, law is a reasoned thought which is

decreed in the state for common good. Thomas Aquinas views law as an order of

reason for the common good, promulgated by whoever is charged with the care of the

community. Baron De Montesquieu in his theory takes the law as the necessary

relations arising from the nature of things.”6 Fredrick Hayek argues that laws must be

objective to guarantee freedom. For Lon Fuller, laws must promote common good and

curb cruelty. Furthermore, there is a distinction between the theories of natural law

and legal positivism. While natural law theory posits that law conforms to morality

and is weighed by its merit; legal positivism holds the opposing view.

In the same way, the ability of the enacted laws to govern and regulate

everyone is known as “The Rule of Law”. Many factors are put in place to ensure the

rule of law. Amongst other factors, for there to be the rule of law, laws must meet

certain requirements; there must be separation of powers; and the laws must be

reasonable targeted at the common good. However, even when a law meets these

conditions, it is still confronted with other restrictions, one of which is the existence

of freedom in human beings.

Statement of the Problem

Having identified the fact that the exercise of human freedom might interfere

with upholding the Rule of Law, scholars have raised questions on the best way to

balance freedom and the rule of law. This essay therefore sets out to examine some of

5 Cf. Sarah Carter, Introduction to Law. URL: http://www.kent.ac.uk/lawlinks. 6 Baron De Montesquieu, The Spirit of the Law, vol. 1. Translated by Thomas Nugent, p. 1.

http://www.kent.ac.uk/lawlinks

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these questions including: to what extent are the citizens of a state free, if the laws of

the given state bind? Also, what is the effect of maximization of ones’ freedom, if the

freedom of others is affected? And to what extent can laws control arbitrariness and

domination, especially against the weak?

Aim and Objective of the Study

This essay particularly discusses Bruegger’s notion of freedom and the rule of

law, and their interactions.

Methodology of the Research

In this essay, we expose John Bruegger’s notion of Freedom and the Rule of

Law. The primary text for this research is John Bruegger’s work titled: Freedom,

Legality, and the Rule of Law. However, for better exposition and explanation of the

targeted topic, we make reference to other works. Consequently, this essay is divided

into four chapters. Chapter one treats the topic of freedom by containing a general

definition of freedom, the different notions of freedom, the theories of freedom, and

the interaction freedom has with rationality and common good. The second chapter

discusses the definition of law, the two theories of law and their proponents, the rule

of law and restrictions to the rule of law. The third chapter treats the relationship

between freedom and the rule of law, their different ways of inter-infringement, their

compatibility and John Buegger’s position on freedom and the rule of law. The fourth

chapter presents a critical appraisal of John Bruegger’s position and an overall

evaluation of the preceding chapters.

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CHAPTER ONE: IS FREEDOM A MYTH OR REALITY?

1.0 Introduction

Life is one of the things human beings have in common with other living things

on earth. All living things on earth share sensation and the inclination to respond to

their respective appetites as common traits. However, human beings distinguish their

selves from other animals at the level of cognition, intelligence, possession of will and

freedom.7 Hence, the question of freedom comes to mind: Are human beings free in

all these, or are they controlled by some kind of forces, both intrinsic and extrinsic?

In answering to these questions that border on the existence of freedom, some

people assert that human freedom exists, while others answer in the negative. For the

latter, human freedom is an illusion. Every human action for them is explained in

terms of cause and effect. This position is known as determinism. Basically,

determinism refers to the view that events are caused by efficient causes. Hence,

human beings are not free, because they are controlled by an efficient cause, either

intrinsic or extrinsic.8 In contrast to this deterministic position, some scholars have

written in support of the existence of freedom. This work contains some of the

definitions of freedom by different authors. Essentially, this work, in presenting

different positions and aspects of freedom, asserts the existence of human freedom.

7 Cf. Battista Mondin, Philosophical Anthropology (Bangalore: Theological Publication in India,

1985), p. 101. 8 Cf. John Hosper, An Introduction Philosophical Analysis (London: Routledge and Kegan Paul, 1967),

p. 322.

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1.1. Defining Freedom

Freedom has been defined variously as “the ability of an agent to act or not to

act according to her dictates (willingness, commands) and/or preferences (desires,

drives)”;9 being able to act, without compulsion or coercion, according to one’s will,

or one being the cause of her action without being influenced by something intrinsic

and extrinsic.10 Additionally, freedom in its political sense is understood as a

relationship that is free from oppression and coercion, where no one violates the right

of the other. D. D. Raphael notes that even though the concept of freedom is related to

the will and to choice, when it is used in political discourses, it implies the freedom to

carry out what one has chosen to do.11

These various definitions arise as a result of the practical aspect of freedom as

a concept applicable in human relationships or specific conditions of social life.

Hence, freedom overtime has been understood by many people and viewed in

different ways. These notions of human freedom have become more controversial

with the emphasis on western individualism and liberalism. So, the question of the

level of human freedom comes into the picture.12

In its simplest definition, freedom is the absence of coercion or constraint

imposed by another person. And, a human person is free if she can choose her own

9 Peter A Angeles, “Freedom”, Dictionary of Philosophy (New York: Barnes & Noble Books, 1981), p.

106. 10 Cf. Peter A Angeles, “Freedom” Dictionary of Philosophy, p. 106 11 Cf. D. D. Raphael, Problems of Political Philosophy (London: Macmillan Education Ltd, 1976), 115. 12 Cf. John A. Bruegger, “Freedom, Legality, and the Rule of Law.” Washington University

Jurisprudence Review, Vol 9, No. 1 (2016), pp. 81-82.

http://openscholarship.wustl.edu/law_jurisprudence/vol9/iss1/7.

http://openscholarship.wustl.edu/law_jurisprudence/vol9/iss1/7

6

conduct or action between alternatives available to her without being compelled to, or

prevented from doing so by the will of another person, the state or any other

authority.13 This simplicity, however, leaves more questions unanswered than

answered. Does it follow that the extent of freedom is dependent on the number of

available alternatives, so that the more alternatives there are, the freer a person is?

Whatever be the number of available alternatives, is a person free if the particular

alternative chosen is excluded and coerced?14

Answers to these questions indicate that the extent of freedom is dependent on

the range of available alternatives. In a general sense, freedom is the liberty to choose

whatever, and make decisions without compulsion; for the opportunity to make a

decision is one of the best ways to protect people from suffering.15

1.2. The Different Notions of Freedom

Almost every human being has in her mind what she perceives to be her

concept of freedom. The individual is happier and fulfilled when she is able to

maximize these measures. In the same way, almost all the authors in philosophy and

human psychology have written extensively on freedom. Different scholars have

presented freedom in different ways. We can group them into those who affirm only a

circumstantial freedom of self-realization, those who affirm only an acquired freedom

13 Cf. P. H. Partridge, “Freedom”, ed. Paul Edwards, The Encyclopaedia of Philosophy, Vol. 3,

(London: Collier Macmillan Publishers, 1967), p. 222. 14 Cf. P. H. Partridge, “Freedom”, ed. Paul Edwards, The Encyclopaedia of Philosophy, p. 223. 15 Cf. Gillian Butler and Tony Hope, Managing your Mind: The Mental Fitness (New York: Oxford

University Press, 1995), p. 387.

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of self-perfection, and those who affirm both positions.16 This next section will,

therefore, present the definitions of freedom made by philosophers over the ages.

1.2.1. Plato

Plato sees freedom as not merely being able to act according to one's will, but

being governed or determined by reason informed by the knowledge of the ideal

good. In other words, freedom is being obedient to reason and not being submissive to

one’s passions, involuntary and ignorant action. Lack of freedom for Plato is the lack

of the knowledge of good and submitting to evil. Thus, anyone who lacks freedom in

this sense should be pitied because the person is a slave to evil.17

Platonic freedom is not freedom in the loose sense, as Morgens Herman Hansen

points out, freedom is occasionally described in Plato’s dialogues as self-government,

in the sense of self-control. Human beings, being caught up in a struggle between

rationality and the wish to fulfill their desires, become slaves to their desires when

uncontrolled by rationality. Conversely, they are totally free when they are controlled

by their rationality.18 This idea of freedom is that which stems from our ability to do

something, as seen in recent scholars like John Bruegger and Isaac Berlin. From this,

Plato posits that reason is the main determinant of human freedom in the daily

interpersonal interactions, and the adherence to the laws.

16 Cf. Mortimer J. Adler, The Idea of Freedom (New York: Doubleday and Company, Inc., 1958), pp.

313-314. 17 Cf. Peter A Angeles, “Freedom” Dictionary of Philosophy, p. 106 18 Cf. Morgens Herman Hansen, “Democratic Freedom and the Concept of Freedom in Plato and

Aristotle”, Greek, Roman and Byzantine Studies, Vol. 50 (2010), pp. 7-8.

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1.2.2. Aristotle

Freedom is from the Greek word eleutheria, which means to be free. In book 6

of Aristotle’s Politics, eleutheria is defined as the basic value of democracy which is

subdivided into two: “the opportunity to be ruled and to rule in turn and the

opportunity to live as one likes, an opportunity of which the slave was deprived.”19

According to Gregory R Johnson, “Aristotle shares Plato’s conception of

philosophical life as the pursuit of wisdom.”20 Aristotle also sees the government as

the bulwark of individual freedom. For him, a free human is not just a person who

lives in a free society. A free human is a person with certain traits that allow her to

govern herself responsibly and achieve happiness. This quest for happiness is, for

Aristotle, inherent in human-Socrates is of the same opinion. Hence, education and

enlightenment of the mind are helpful towards success. It frees us from ignorance,

folly, irrationality and helps us to actualize ourselves.21

Aristotle believes that freedom from the internal compulsion of the passions of

the body which enslave us is nobler than freedom from external compulsion. In the

Politics, Aristotle is protective of negative freedom, as shown in his defence of

private families, private properties and private enterprises from Plato’s

19 Morgens Herman Hansen, “Democratic Freedom and the Concept of Freedom in Plato and

Aristotle”, Greek, Roman and Byzantine Studies, pp. 10-11. 20 Gregory R. Johnson, “The First Founding Father: Aristotle on Freedom and Popular Government”,

Democracy, Vol. 5, No. 6, (2001), p. 30 21 Cf. Gregory R. Johnson, “The First Founding Father: Aristotle on Freedom and Popular

Government”, Democracy, pp. 36-37.

9

communitarianism in the Republic.22 Aristotle is keen on developing a society where

the poor do not plunder the rich and the rich do not enslave the poor. He criticizes

democratic freedom, which infringes upon private freedom, and emphasizes on the

private liberty which maintains the freedom of populace. For him, wars and empires

are the highest enemies of liberty.23

1.2.3. Thomas Aquinas

Vernon J. Bourke while commenting on Thomas Aquinas, states that Aquinas in

his Summa Theologiae, “admits that divine knowledge is opposed to the exercise of

human freedom.”24 Aquinas further states that God as the first universal cause is the

determinant of the order of things. Therefore, human freedom is not absolute, because

human freedom is liberium arbitrium (freedom to choose among alternatives)

determined by God.25 In addition, God makes human beings capable of choosing well

or ill. So, human action is within the scope of freedom granted by God, and the

particular freedom to choose between these scopes is determined by the person.26

However, human action is never in competition with God’s plan.27

22 Cf. Aristotle. Politics, Bk 2, No. 2-5, trans. Benjamin Jowett. (Kitchener: Batoche Books, 1999), p.

89. 23 Cf. Gregory R. Johnson, “The First Founding Father: Aristotle on Freedom and Popular

Government”, Democracy, pp. 37- 38. 24 Vernon J. Bourke, “Thomas Aquinas”, ed. Paul Edwards, The Encyclopaedia of Philosophy, Vol. 8,

(1967 Edition), p. 111. 25 Cf. Tobias Hoffmann and Cyrille Michon, “Aquinas on Free Will and Intellectual Determinism”,

Philosophers’ Imprint, Vol. 17, No. 10, (2017), p. 1. 26 Cf. Vernon J. Bourke, “Thomas Aquinas”, ed. Paul Edwards, The Encyclopaedia of Philosophy, p.

111. 27 Harm J. M. J. Goris, Free Creatures of an Eternal God: Thomas Aquinas on God’s infallible

foreknowledge and Irresistible Will (Leuven: Peeters Publishing: 1996), p. 299.

10

Aquinas states that freedom is for those who wisely obey the law than fear it.

Humans who are wise in Aquinas’ view are free and not subject to the law as a

coerced is a subject to the coercer.28 Mortimer Adler commenting on Aquinas’ view

on freedom avers that two things are required to ensure freedom under the civil

government in as much as obedience to its laws is concerned. One is that the

government be for the common good and that the enacted law directs the subjects to

their proper interest. The other is a continuous adherence to the law which gives those

who are ruled by another (for common) freedom under such rule.

1.2.4. John Locke

John Locke notes that: “the natural liberty of man is to be free from any superior

power on earth, and not to be under the will or legislative power of man, but to have

only the law of nature for his rule.”29 In his theory of freedom, Locke believes that the

state of nature was a state of perfect freedom and equality and adherence to the law of

nature alone. This is found in the second chapter of his Two Treatises of Government.

He notes that “We must consider what estate men are naturally in, and that is, a state

of perfect freedom and were free to order their actions, and dispose their possessions

as they think fit, within the bounds of the law of Nature, without asking leave or

depending on the will of other man.”30

28 Cf. Thomas Aquinas, Summa Theologiae, Part I-II, q. 96, a. 1. 29 John Locke, Two Treaties of Government (London: W. Sharpe and Son, 1823), p. 114. 30 John Locke, Two Treaties of Government, p. 106.

11

In this state of nature, everyone possessed freedom. When humans decided to

enter into a social contract, another aspect of freedom played out, that is the formation

of civil society. And this is the freedom of consent. Locke avers that even in civil

society, everyone is free, independent and equal; it is only by consent that anyone can

be subjected to any political power. Nonetheless, the submission to a political power

does not amount to a total loss of liberty, for in the civil society, humans are still free,

though different from absolute freedom as in the state of nature. Thus, he makes it

clear that: “the liberty of man in society, is to be under no other legislative power, but

that established by the consent in the commonwealth.”31 It then follows that freedom

in the political society is freedom from absolute arbitrary power which is linked to the

preservation of life.

At the same time, Locke defines freedom as both personal and social in

accordance with the rules defined by the representative government in which

sovereignty resides in the people whose elected representatives express the people’s

wills in the laws of the land.32 The people freely give up their freedom in order to

enjoy greater freedom which is social orientation. They are free to return to the former

state of nature if the legislative (general will) acts contrary to the trust reposed on

31 John Locke, Two Treaties of Government, p. 22 32 Cf. Kerstetter, William Edward, “John Locke's conception of freedom,” Boston University Library,

Date Issued, 1943, https://hdl.handle.net/2144/7217. Accessed on 10/10/2019.

https://hdl.handle.net/2144/7217

12

them.33 Rulers become tyrants and betray the trust reposed on them when they follow

their will and not the law.34

1.2.5. Jean-Jacques Rousseau

In Rousseau’s state of nature, humans enjoyed great and undisturbed freedom

for two reasons: firstly, humans were physically free from boundaries; they were not

bound by any domineering structure or state instituted by another. Secondly, they

were free from all psychological and spiritual compulsion caused by artificial or

instituted modern society. This later reason given by Rousseau portrays modern

human persons as being under slavery- self-imposed slavery; and this could be

evidenced by the different societal exploitation, domination, depression, and

oppositions.35 For Rousseau, humans were totally free. Even their desires were

generic and simple without being tyrannical to them. For instance, sexual urge never

created any bond or attachment; rather any person can satisfy any other person’s

urge.36

This peace, humans enjoyed, dwindled with the increase in population. Thus,

they lost this freedom because the craving for personal possession and creating of

personal boundaries crept in. Consequently, they created a civil society with the

33 Cf. John Locke, Two Treaties of Government, p. 169. 34 Cf. Richard Ashcraft, “Locke’s Political Philosophy”, ed.Vere Chappell, The Cambridge Companion

to Locke (Cambridge: Cambridge University Press, 1994), p. 228. 35 Cf. Jean-Jacques Rousseau, A Discourse Upon the Origin and the Foundation of the Inequality

among Mankind, trans. G. D. H. Cole. http://faculty.wiu.edu/M-Cole/Rousseau.pdf. Accessed on

16/10/2019. 36 Jean-Jacques Rousseau, The Social Contract and the First and Second Discourses, ed. Susan Dunn

(New Haven: Yale University Press, 2002), p. 14.

http://faculty.wiu.edu/M-Cole/Rousseau.pdf

13

family as its primitive form. The strife for personal ownership of properties gradually

led to the accumulation of wealth, which gave rise to struggle, quarrel, fight and

domination of some people by others. Human beings who were once free saw their

selves in chains.37

Returning to the natural state is impossible; hence, civil society was the only

available remedy to this lack of freedom. The civil society is contracted by unanimous

submission of every member to the sovereign. Therefore, the submission of one to the

sovereign is, in fact, submission to oneself. It is by extension, a pledge to submit to

their directives, and self-obedience. This newly contracted association is meant to

defend and protect the lives and goods of all members, and also to unite them and

guarantee their freedom.38 Rousseau calls the contracted association “the general

will”. This general will prescribes law for all in the society; it always works for the

good of everyone. Therefore, the will of everyone in the society of Rousseau needs to

fall in line with the general will. Consequently, the only way to freedom in

Rousseau’s civil society is through a total conformity to the general will.

Simply put, Rousseau posits that the deviation from the general will is a

refusal of freedom. In order to curb such, Rousseau states that anyone who refuses to

be free, by not submitting to the general will, will be compelled and forced by others

37 Cf. Joseph Omoregbe, A Simplified History of Western Philosophy (Lagos: Joja Educational

Research and Publishers Limited, 1991), pp. 52-54. 38 Cf. Joseph Omoregbe, A Simplified History of Western Philosophy, p. 54.

14

to obey it.39 This sounds contradictory, “how can ‘the others’ be subject to a common

law and responsible to others for compliance and yet obey only oneself?”40 This, as

contradictory as it may sound, portrays Rousseau’s position as that which tries to

make freedom and moral responsibility possible.41

1.2.6. John Rawls

John Rawls’ political philosophy is contained in his work titled A Theory of

Liberty. In the work, Rawls notes that his theory is familiar to that of Locke,

Rousseau, and Kant.42 At the heart of his political philosophy is the claim that people

can reason from universal principles, and therefore possess the capacity to judge

things impartially. The position on freedom is contained in what he calls the original

position. “The design of the original position thus models the ideas of freedom,

equality, and fairness.”43 The original position is possible through what he calls “veil

of ignorance”. The veil of ignorance brings the person to the original position. Each

citizen at this imaginary original position possesses a representative, and all of these

representatives come to a consensus on the principles of justice that would guide the

39 Cf. Joseph Omoregbe, A Simplified History of Western Philosophy, p. 54. 40 Piper L. Bringhurst and Gerald Gaus, “Positive Freedom and the General will”, The Oxford

Handbook of Freedom, ed. David Schmidtz and Carmene E. Pavel, (New York: Oxford University

Press, 2018), pp. 40-59. 41 Piper L. Bringhurst and Gerald Gaus, “Positive Freedom and the General will”, The Oxford

Handbook of Freedom, ed. David Schmidtz and Carmene E. Pavel, pp. 40-59. 42 Cf. John Rawls, A Theory of Justice (Cambridge: The Beknap Press of Harvard University, 1971), p.

207. 43 Wenar Leif, “John Rawls”, The Stanford Encyclopaedia of Philosophy (Spring 2017 Edition),

Edward N. Zalta (Ed.) URL= http://plato.stanford.edu/archives/spr2017/entries/rawls/

http://plato.stanford.edu/archives/spr2017/entries/rawls/

15

citizens they represent.44 The particular situation of the citizens, and even themselves

is unknown to the representatives, because if this knowledge of the particulars is

allowed, “then the outcome will be biased by arbitrary contingencies.”45 The aim is to

arrive at a just state when the terms of cooperation will free and equal citizens under

fair conditions. Thus, Rawls sates:

It is assumed, then, that the parties do not know certain kinds of particular facts. First of

all, no one knows his place in the society, his class position or social status; nor does he

know his fortune in the distribution of natural assets and abilities, his intelligence and

strength, and the like… the parties must not know the contingencies that set them in

opposition. They must choose principles the consequences of which they are prepared to

live with whatever generation they turn out to belong.46

This guarantees the enactment of laws that will ensure freedom and not a subjective

promulgation of laws which puts some at the mercy and subjugation of others. This

for Rawls means that as members of the same political society, we owe one another

the rights and duties of Justice.47 Furthermore, in the political philosophy of Rawls,

humans are rational because they belong, each one to a particular society; therefore,

they cannot choose not to be members of any society. Rawls does not talk about the

state of nature in his social contract; rather his theory of original position is presented

as an alternative to the state of nature. This original position is appropriate to ensure

justice and freedom.

44 Cf. Wenar Leif, “John Rawls”, The Stanford Encyclopaedia of Philosophy (Spring 2017 Edition),

Edward N. Zalta (Ed.) URL= http://plato.stanford.edu/archives/spr2017/entries/rawls/ 45 John Rawls, A Theory of Justice, p. 220. 46 John Rawls, A Theory of Justice, p. 217. 47 Cf. Freeman Samuel,, “Original Position”, The Stanford Encyclopaedia of Philosophy (Winter 2016

Edition), Edward N. Zalta (Ed.) URL= http://plato.stanford.edu/archives/win2016/entries/original

position/

http://plato.stanford.edu/archives/spr2017/entries/rawls/http://plato.stanford.edu/archives/win2016/entries/original%20position/http://plato.stanford.edu/archives/win2016/entries/original%20position/

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1.3. Theories of Freedom

Two notions of freedom/liberty can be identified in contemporary scholarship.

They are negative and positive freedom.48 For John Bruegger, “negative freedom is an

individual’s personal realm of freedom by what is not present, namely, the coercion or

interference by another person”.49 Isaiah Berlin states, “I am normally said to be free

to the degree to which no man or body of men interferes with my activity”.50 In this

sense, Berlin and other writers believe that freedom is the absence of coercion.51

Positive liberty, on the other hand, is better understood by Matthew Kramer’s position

thus:

Instead of consisting in opportunities, it consists in the performance of certain courses of

conduct or the attainment of certain objectives or the purification of one’s motivations

and outlook. Being presented with various opportunities is not sufficient for positive

freedom; in addition, a person must take advantage of some of those opportunities in

certain ways. Whereas negative liberty is a matter of unpreventedness, positive liberty is

a matter of accomplishments.52

We shall state the two theories of freedom and how they relate.

1.3.1. Negative Freedom

Jeremy Bentham and John Stuart Mill are the main proponents of this position.

This position opines that a person is free in the absence of coercion. Negative freedom

is a freedom by what is not present. It is extrinsic because I am free to the extent that

nobody or rule interferes with my activity. The term coercion is used because

48 Cf. Isaiah Berlin, “Two Concepts of Liberty”, ed. Isaiah Berlin, Four Essays on Liberty (England:

Oxford University Press, 1969), pp. 118-172. 49 John Stuart Mill, On Liberty (London: John W. Parker and Son, West Strand, 1859), p. 1. 50 Isaiah Berlin, “Two Concepts of Liberty”, ed. Isaiah Berlin, Four Essays on Liberty, pp. 118-172. 51 Cf. P. H. Partridge, “Freedom”, Paul Edwards (ed.), The Encyclopaedia of Philosophy, p. 222. 52 Matthew Kramer, “Objectivity and The Rule of Law”, Alabama Law Review, vol. 61, no. 4 (2007),

p. 830.

17

coercion is a deliberate interference to another human being within the area he or she

can act, it is not an inability.53 If I want to go to a cinema and I am blocked by traffic

on the way, the proponents of this theory will argue that I am not free. The more my

activity is not interfered with, the wider my freedom. Berlin notes that if the scope of

this area of non-interference is widened, it will in time lead to human interfering in

other’s non-interference territory while exploring their non-interference areas. This

will lead to a chaotic state where human minimum needs will not be satisfied, which

will result in the suppression of the weak by the strong. The only way to ensure the

balancing of this interplay of interference is to ensure that there exist certain

minimum areas of personal freedom which must on no account be violated.54

Mill in his work, On Liberty, posits that liberty is meant to protect against the

tyranny of the political rulers. This is attained by recognition of certain immunities,

called rights and the establishment of constitutional checks.55 These measures

increase negative freedom. Negative freedom can also be tampered with by the

tyranny of the majority. What has been promulgated as law by the majority in the

society will be an infringement to a dissenting minority.56 Perhaps, the promulgated

laws may be a spectrum of personal opinions, but going by the principles of

utilitarianism, they bind. However, no society is free if it does not respect the

following liberty: liberty of conscience, thought-feeling, opinion and sentiments on

53 Cf. Isaiah Berlin, “Two Concepts of Liberty”, Four Essays on Liberty, pp. 118-172. 54 Cf. Isaiah Berlin, “Two Concepts of Liberty”, Four Essays on Liberty, pp. 118-172. 55 Cf. John Stuart Mill, On Liberty, p. 1. 56 Cf. John Stuart Mill, On Liberty, p. 1.

18

practical, speculative, scientific, moral and theological subjects; liberty of tastes and

pursuits, plan of life even if it does not make sense to others; and the liberty to

willingly unite with others. These should be permissible in as much as it does not

harm others.57

Multiplication of laws that prohibit inordinate conduct that affects others

stifles negative liberty because people are coerced into detracting from some actions

that are forms of exercising their freedom. In the same way, it increases positive

freedom because some of the actions that hinder others from living their daily lives

freely are curtailed. For instance, the traffic laws that prohibit packing in some parts

of the roads ensure that people are able to have a free movement and maximize their

positive freedom.

1.3.2. Positive Freedom

Freedom in the positive sense is the choosing for oneself and acting on one’s

initiative based on one’s ability to act.58 The idea of positive freedom can be

contradictory; because the maximization of someone’s positive freedom can decrease

another’s. For instance, it is well known that in the society, some people may enjoy

control over means of production, educational system, media of communication to the

extent that the choices they make affect the choices their fellow citizens make. In that

case, the less privileged citizens are often exploited and denied the power to attain and

explore the alternatives they wish to. This decreases the level of positive freedom.

57 Cf. John Stuart Mill, On Liberty, p. 4. 58 Cf. P. H. Partridge, “Freedom”, ed. Paul Edwards, The Encyclopaedia of Philosophy, p. 223.

19

Thus, freedom in this aspect is the freedom from coercion by those in control of the

aforementioned means; not freedom to perform according to one’s ability.59

1.4. Freedom and Rationality

The perfect freedom that comes with tranquility and assurance is that which

comes from the reasoning capability of the human person; because human beings as

prime creatures are endowed with rationality. This natural ability in humans to reason

is inherent in them, irrespective of human making use of it or not. But, to gain

freedom and enjoy this distinctive nature of humans, they have to act according to this

endowment. That is why Plato sees freedom as not merely being able to act according

to one's will, but being governed or determined by reason informed by the knowledge

of the ideal good. In other words, freedom is being obedient to reason and not being

submissive to the passion, involuntary and ignorant action. Lack of freedom for Plato

is the lack of the knowledge of good and submitting to evil. Thus, anyone who lacks

freedom in this sense should be pitied because the person is a slave to evil.60 In the

same way, Aristotle links morality to living in accordance with reason. And it is

through human rational living that they can act in line with general principles. This, in

turn, ensures human happiness.

More so, the nature of the act of freedom in human beings requires that it be

deliberate and voluntary and note coerced; especially positive freedom. The only way

59 Cf. P. H. Partridge, “Freedom”, ed. Paul Edwards, The Encyclopaedia of Philosophy, p. 224. 60 Cf. Peter A Angeles, “Freedom” Dictionary of Philosophy, p. 106

20

the human person can act precisely is by being rational and uniting the will to the

action performed. This is very clear when looking at moral acts.

1.5. Freedom and the Common Good

The extent of freedom in a particular society is considered alongside

individual and social interests.61 Positive freedom, which refers to the ability of a

person to do what he is naturally capable of doing is not contrary to the dictates of the

common good (the collective interest of the population as a body). Although Bertrand

Russell sees freedom as the absence of obstacles to the satisfaction of desires, it is not

conceived by scholars as the absence of obstacles to the satisfaction of any desire;

what has been commonly agreed to the definition of freedom is the absence of

obstacles to the exercise and satisfaction of specific interests which are accepted as

possessing especial moral and social significance.62

The above notion of freedom is in contrast to some authors’ views. For

instance, Thomas Hobbes’ state of nature views humans as free to order their actions

in all respect. Being prior to the state of the contract, Hobbes notes this state as

chaotic because everybody is vulnerable; even the strongest can be killed in his or her

sleep. Consequently, humans came together and formed a state of contract which

gives Leviathan the power to enforce social rules to curb the chaos of brutality of

humans.63 The work of the Leviathan in Hobbes social contract is somewhat similar to

61 Cf. P. H. Partridge, “Freedom”, Paul Edwards (ed.), The Encyclopaedia of Philosophy, p. 223. 62 Cf. P. H. Partridge, “Freedom”, Paul Edwards (ed.), The Encyclopaedia of Philosophy, p. 223. 63Cf. Thomas Hobbes, Leviathan, p. 11.

21

Locke’s social contract where the contract aims at freeing human in order to preserve

lives, freedom, and property of all; though it differs in the sense that the contract of

Locke is not in between the ruler and the ruled.64 The inexistence of social contract

leads individuals into maximizing their freedom by all means. Consequently, if this

absolute quest for freedom is not checkmated, it hampers common good and the

interest of all.

1.6. Conclusion

Our discussion on the different theories of freedom evidences the reality of

freedom. Consequently, freedom has overtime been discussed by so many authors.

And freedom has been defined as the ability to act without coercion. This chapter

presented the notions of freedom according to authors like Jean-Jacques Rousseau,

John Rawls, Thomas Aquinas, and John Locke. Also, we discussed the two theories

of freedom as noted by John Bruegger: positive freedom and negative freedom.

Positive freedom is the freedom that is contained in the ability of one to act according

to his or her capacity, while negative freedom is the freedom from and coercion or

freedom from an extrinsic compulsion. Also, we discussed the interaction between

freedom and rationality and the common good. Basically, freedom in every society is

judged based on the level it maximizes the individual and social interests. Thus, we

can say that being free is not contrary to promotion of common good.

64Cf. James Gordon Clapp, “Locke, John”, ed. Paul Edwards, The Encyclopaedia of Philosophy, p. 223.

22

CHAPTER TWO: LAW AND THE RULE OF LAW

2.0 Introduction

One might wonder and question the necessity of having sets of laws. The

popular and most acceptable reason for the promulgation of laws stems from the

psychology of human nature. Human beings are political animals; hence, they need

certain social-political structures and organization to ensure the protection of lives,

properties and self-realization. Owing to this fact, enactment of laws is the best tool to

curb the problem of the organization of society.65 Sometimes, these laws are seen as a

hindrance to freedom, hence, humans thwart them to yield to self-interest. In order to

curb this propensity, these laws are promulgated alongside their punishments (in case

of a violation).66 The enforcement of these laws and their punishment guarantee social

control and harmony.

For any given law to bind in a given society, it must be superior to and

override the desire/will of every citizen; otherwise, the law may not carry force;

therefore, the idea of rule of law comes in. Without the rule of law, a state is

unpredictable and unsafe as in the Hobbesian state of nature. But, the predominance

of law over everyone curbs arbitral usurpation of power and partial interpretation of

the laws. Therefore, this chapter is going to treat the term law and the concept of the

rule of law. We shall start with the definition of law, the types of law and other

65 Cf. Norman E. Bowie and Robert L. Simon, The Individual and the Political Order: An Introduction

to Social and Political Philosophy (New Jersey: Prentice-Hall, Inc., 1986), p. 172. 66 Cf. J. H. Price, Comparative Government (London: Hutchinson & Co., 2nd ed., 1975), p. 145.

23

aspects of the law. Within this discourse, we will expose the different notions of law

by different authors. Secondly, we are going to discuss the concept of the rule of law

and the factors that restrict it.

2.1 What is Law?

The term law is used in various ways. Specifically, there are laws governing

the universe, and those governing the state/society. For instance, we have different

laws in physics, such as the law of thermodynamics; and we also have the law of

science, the law of mathematics, etc.; but the law we refer to here is the law of the

state. And when we refer to the law of the state, we use it in a unique way. Hence, law

may be defined as “a rule of human conduct, imposed upon and enforced among the

members of a given state.”67 Also, law[s] can be defined as a set or sets of rules,

promulgated for observance, and enforceable by the courts, which also regulate the

government of the state and the relationship between one citizen and the other.68

According to The Oxford Dictionary of Philosophy, “In normative terms, a

law is a system of rules that justifies the demand for conformity.”69 This means that

laws bind the people who are bound by a common interest. Invariably, for better

compliance, these rules that form laws are promulgated to better fit into the system of

the people under this umbrella. In other words, the enactment of laws must stem from

the common good and human reason in order to better fit and benefit the citizens.

67 Padfield, Law Made Simple, 5th Edition (London: A. Howard & Wyndham Company, 1978), p. 1. 68 Cf. Sarah Carter, Introduction to Law. URL: http://www.kent.ac.uk/lawlinks. 69 The Oxford Dictionary of Philosophy (1996 Edition) Simon Blackburn, “Law, Philosophy.”

http://www.kent.ac.uk/lawlinks

24

Laws according to Baron de Montesquieu “are the necessary relations arising

from the nature of things.”70 By this, Montesquieu means that everything has its laws-

humans and their laws, the beasts and theirs and so on. The laws are the relations

between different beings and between beings of the same kind. For these laws to be

understood and for them to interact without tension, we should recognize that they

should be adapted to a variety of different factors. Hence, laws should be adapted to

the people they are made for and to the nature and principles of the government, even

to the biological, social and psychological factors.

2.2 Types of Law and their Proponents

There are two theories under which the concept of law is discussed, namely:

natural law and legal positivism. For the natural law theory, a law is that which directs

an action aright through its conformity to the rule of reason- following the law of

nature; and conforms to morality. The latter conformity with morality is known as the

Overlap thesis which connotes a necessary relation between the concept of law and

morality. Essentially, natural law theorists argue in support of overlap thesis by

asserting that the concept of law is incomplete without a full reference to morality.

Legal positivists however, define law as a set of principles that are determined by

a sovereign and obeyed irrespective of its merit.71 They argue in opposition to overlap

70 Baron De Montesquieu, The Spirit of the Law, Vol. 1, trans. Thomas Nugent (New York: Hafner

Publishing Company, 1949), p. 1. 71 Cf. Leslie Green and Thomas Adams, “Legal Positivism”, The Stanford Encyclopedia of Philosophy

(Winter 2019 Edition), Edward N. Zalta (ed.), URL=

https://plato.stanford.edu/archives/win2019/entries/legal-positivism

https://plato.stanford.edu/archives/win2019/entries/legal-positivism

25

thesis that there is no necessary connection between law and morality. Our discussion

will be on these two theories and their proponents.

2.2.1 Natural Law

According to Jerrey Gaela Esperanza, natural law is “the decree of the divine

will, discernible by nature and indicating what is and what is not in conformity with

rational nature, and for this very reason commanding or prohibiting.”72 It is inherent

in human beings to act according to the dictates of natural laws following their

reasoning abilities. These laws are not manmade, rather, they are like the manual of

natural things. John Finnis defines natural law as “a set of basic practical principles

which indicates the basic forms of human flourishing as goods to be pursued and

realized, and which are in one way or another used by everyone who considers what

to do, however unsound his conclusions.”73 Also, Finnis sees natural law as that

which determines the reasonableness and the unreasonableness of acts.74 Most of the

laws we have stem from natural law because natural law is a natural prescription of

how we are to conduct our lives. Therefore, any action that violates the prescriptions

of natural law is inappropriate for natural proceedings; and can attract some natural

repercussions.

72 Jerrey Gaela Esperanza, “John Locke and the Natural Law: Yesterday and Today, a Critical

Analysis”, Cuardernos de Filosofia, Vol. 16, No. 1, (2006), p. 28 73 John Finnis, Natural Law and Natural Rights, Second Edition (New York: Oxford University Press,

2011), p. 23. 74 Cf. John Finnis, Natural Law and Natural Rights, Second Edition, p. 23

26

2.2.1.1 Thomas Aquinas

Thomas Aquinas defines law as a rule and measure of acts, of which man is

induced to act or is restrained from acting. For Aquinas, a law is an order of reason

for the common good and promulgated by whoever is charged with the care of the

community. He further divided laws into eternal law, natural law, human law, and

divine law. Aquinas defines eternal law as “the type of divine Wisdom, as directing

all actions and movements.”75 It is called eternal because divine wisdom/reason is

eternal. And since divine reason is eternal, the law is eternal. Divine law is the law

made by God and is given to man through revelation. Natural law is the participation

of the rational creatures in the eternal law.76 Human law is the law made by humans in

any situation in accordance with natural law. Also, divine, natural and human laws

depend on the eternal law. Nonetheless, the different types of laws are not opposed to

each other; rather, a pure synthesis between all tends to perfection. Furthermore, for

Aquinas, the law has a connection with other factors of life.

In order to answer the question of the importance and the usage of law,

Aquinas addresses the political issues of his time by making a connection between

law and the common good. For him, the main motive of the promulgation of laws is to

bring just society, where the common good is pursued to the detriment of individual

advantages.77 Aquinas posits that for a law to be valid, it must be issued by a body

75 Thomas Aquinas, Summa Theologiae. I-II, q. 93, a. 1. 76 Cf. Thomas Aquinas, Summa Theologiae. I-II, q. 91, a. 2. 77 Cf. Thomas Aquinas, Summa Theologica, I-II, q. 90, a. 2.

27

that holds law-making authority within the community, it must promote morality, it

must be geared towards the promotion of common good and it must be promulgated;

and indeed Aquinas’ concept of law meets these criteria.78 Therefore, law, as seen by

Aquinas, is the order of reason for the common good, and proper, natural adherence to

law results from a virtuously formed character that emanates from the soul.

2.2.1.2 Lon L. Fuller

Lon L. Fuller does not directly argue that laws must conform morality. Rather,

he points out eight principles to be used in judging the authenticity of a law. These

principles are in line with the characteristics of morality. Also, he disagrees with the

legal positivists position that laws could be impeccably promulgated and still be

unjust. Fuller further maintains that he is reluctant in referring to general and public

norms as unjust. He thought that bad things happen in the dark to oppose the sunlight

of legality and that even in the most perverted regimes, there is certain hesitancy in

writing intolerances, inhumanities and cruelties into law.79

However, Fuller also acknowledged that the link between legality and justice

is controversial, as a result of that, any law that is promulgated outside the criteria of

legality, deprived such sets of rules its status as law.80 Hence, for Fuller, the existence

of law is social, but social customary rules are not enough. Consequently, as

aforementioned, he proposed eight principles by which every law is judged. Fuller’s

78 Cf. Thomas Aquinas, Summa Theologica, 1-11 q. 90, a. 4. 79 Cf. L. Fuller, “Positivism and Fidelity to Law: A Reply to Hart”, Harvard Law Review, Vol. 4, No.

71, (1958), pp. 636–637. 80 Cf. L. Fuller, “Positivism and Fidelity to Law: A Reply to Hart”, Harvard Law Review, p. 660.

28

eight principles are: the laws must be general, they must be publicly known, they must

be prospective and not retroactive, they must be comprehensive, they must not be

contradictory, they must be possible, they must be stable, and they must be enforced

as written.81 Nevertheless, even if the laws do not preside overall life situations, the

propelling factor for the enactment of laws should be fairness and respect for persons.

More so, these principles guarantee the rule of law. However, Fuller highlights the

importance of these eight principles by positing that, if moral properties are identified

with law, and it is enacted by a higher authority, without conforming to these eight

principles, such a law cannot guide behaviour. Nonetheless, this does not mean that he

sidelines the importance of moral properties in laws, rather, morality and his eight

principles are connected.

2.2.1.3 Ronald Dworkin

Ronald Dworkin’s position counters the legal positivists’ position. For him,

there cannot be anything like the existence of law without recourse to its merits. He

defines law as the set of considerations a court of a given society is justified to apply

whether the considerations are determined by any source. He also posits that in order

to determine the law of a given society, there ought to be a moral and political

argument. For laws conform to morality and to the interpretation of its legal practices

81 Cf. John A. Bruegger, “Freedom, Legality, and the Rule of Law.” Washington University

Jurisprudence Review, pp. 85-110.

29

that determined whether they are just or not.82 Notably, he staunchly advocates for the

overlap thesis.

Furthermore, Dworkin identifies two criteria for determining correctness and

incorrectness in judgment, the social-fact (“legal materials”) dimension and moral

standard dimensions. A law that has a morally sounder interpretation will be legally

correct, in as much as it fits into social-fact sources enough. The moral standard

which Dworkin sees as capable of objectivity and truth is the source of law. Although,

it conforms to the social-fact standard when applying to a particular society.83

2.2.2 Legal Positivism

Legal positivism holds that the content of law and its existence depends on

social facts and not on its own merits or moral value. Hence, law does not depend on

morality for its justification. John Austin buttresses this by positing that “the existence

of law is one thing; its merit and demerit another. Whether it be or be not is one

inquiry; whether it be or be not conformable to an assumed standard, is a different

inquiry.”84 However, legal positivism does not in any way say that the law’s merits

are unimportant, peripheral, or unintelligent to the philosophy of law. Rather, it says

that merits or the morality do not determine the existence of a legal system. To put it

82 Cf. Leslie Green and Thomas Adams, “Legal Positivism”, The Stanford Encyclopedia of Philosophy

(Winter 2019 Edition), Edward N. Zalta (ed.), URL

https://plato.stanford.edu/archives/win2019/entries/legal-positivism/ 83 Cf. John Finnis, “Natural Law Theories”, The Stanford Encyclopedia of Philosophy (Winter 2019

Edition), Edward N. Zalta (ed.), URL -https://plato.stanford.edu/archives/win2016/entries/natural-law-

theories/ 84 John Austin, Austin: The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble (Cambridge:

Cambridge University Press, 1995), p. 157.

https://plato.stanford.edu/archives/win2019/entries/legal-positivism/https://plato.stanford.edu/archives/win2016/entries/natural-law-theories/https://plato.stanford.edu/archives/win2016/entries/natural-law-theories/

30

differently, the existence of the legal system of a society depends on the presence of

certain structures of governance, and not on the extent it conforms to morality, justice,

democracy or the rule of law.85 Simply put, legal positivists see a law as what has

been posited, irrespective of its merit or demerit.

2.2.2.1 Jeremy Bentham

Jeremy Bentham defines law as “essentially a command issued by a sovereign

to his subordinates, or by a superior to his inferior who owe him allegiance.”86 The

source of law for Bentham is a sovereign (a person or group of persons possessing

power) who commands and backs his command with sanctions to coerce and force

compliance. Sometimes, this command does not come from the sovereign himself, but

from the subject. But, for this command to be obeyed, it has to be authorized and

empowered by the sovereign,87 and also flow from people’s disposition to obey.

It is important to note that Bentham holds that morality is about the greatest

happiness for a greater number; with each individual counting for one. On this note,

he divides law into two: civil law and penal law, and both follow the utilitarian

principles that target the good of everyone (at least the majority). Civil law helps in

achieving economic security, national prosperity, subsistence, happiness and equality;

and the greatest achievement of civil law is happiness. Thus, he states that “the greater

85 Cf. Leslie Green and Thomas Adams, “Legal Positivism”, The Stanford Encyclopedia of Philosophy

(Winter 2019 Edition), Edward N. Zalta (ed.), URL -

https://plato.stanford.edu/archives/win2019/entries/legal-positivism/. 86 S. O. Eboh, Human Rights and Democratisation in Africa (Enugu: Snaap Press Ltd., 2003), p. 94. 87 Cf. S. O. Eboh, Human Rights and Democratisation in Africa, p. 94.

https://plato.stanford.edu/archives/win2019/entries/legal-positivism/

31

is the sum of social happiness: and especially that of happiness which depends upon

the laws.”88 Citing the instance of post-feudal Europe, he further argues that, civil law

based on utility principle ensures equality in the distribution of goods. In the same

manner, the principles of utility curbs the tendency of a society falling as a slave into

the hands of monopolies.89 The above purpose is realized by the threat of punishment

civil law contains.90

2.2.2.2 John Austin

John Austin defines law as a command from the sovereign backed by sanction.

Making this clearer, he defines law as “a command which obliges a person or persons

to a course of conduct.”91 The purpose of sanction according to Austin is to command

obedience by threat of punishment for any miscreant; without this threat, a command

cannot be classified as a law. Similarly, this law can be commanded by the sovereign

or by a party subject to the sovereign in the state. Likewise, his approach to law can

be classified in two ways: analytic and positivistic. It is analytic because Austin

delved into the clarification of concepts. It is positivistic because he avers that law is

established incongruous to morality.92 Again, Austin makes a distinction between

‘written’ and ‘unwritten’ laws, as well as between ‘promulgated’ and

‘unpromulgated’ laws. A written law or promulgated law is that which is authored by

88 Jeremy Bentham, Theory of Legislation. Tansl. Richard Hildreth, Vol. 1 (Bristol: Thoemmes

Continuum, 2004), p. 96. 89 Cf. Jeremy Bentham, Theory of Legislation. Tansl. Richard Hildreth, Vol. 1, p. 123. 90 Cf. John Bowring, The Works of Jeremy Bentham, Vol. 3 (Edinburgh: William Tait, 1838), p. 203. 91 John Austin, Austin: The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble, p. 18. 92 Cf. Brian Bix, “John Austin”, The Stanford Encyclopedia of Philosophy (Summer 2018 Edition),

Edward N. Zalta (ed.), URL -https://plato.stanford.edu/archives/sum2018/entries/austin-justin/.

https://plato.stanford.edu/archives/sum2018/entries/austin-justin/

32

the sovereign; whereas, unwritten or unpromulgated law is that which stems from the

subordinates.93

In a more elaborate note, Austin divides law into four categories: the divine

laws: that is the law made by God to His human creatures; positive laws: the laws that

form the appropriate matter that pertains to jurisprudence; positive morality: rules of

positive moral laws or positive morality; and metaphoric or figurative laws.94 In all

these categories, Austin distinguishes positive law as the essential law. Others relate

to it by resemblance and analogy. Nonetheless, all the categories of law possessing

sanction, are used for enforcing obedience and compliance. 95

2.3 The Rule of Law

The phrase “Rule of Law” is the supremacy and predominance of law as

distinguished from a mere arbitrariness which is not a law of determining or disposing

of the right of individuals. In the idea of the rule of law, the law is seen as the

mechanism by which the government performs its duties in society. In other words,

the government organizes and commands the affairs of the society according to some

pre-destined public rules as opposed to unfettered discretion. For there to be the rule

of law, laws must meet certain requirements so that the individual is enabled to obey

them. Additionally, Matthew Kramer defines The Rule of Law as “the set of

conditions that obtain whenever any legal system exists and operates,” and he has

93 Cf. John Austin, Austin: The Province of Jurisprudence Determined, Wilfrid E. Rumble (ed.), p. viii. 94 Cf. John Austin, Austin: The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble, pp. 1-8. 95 Cf. John Austin, Austin: The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble, pp. 1-8.

33

concluded that “[E]specially in any sizable society, the rule of law is indispensable for

the preservation of public order and the coordination of people’s activities and the

securing of individuals’ liberties”96 One of the requirements is generality; the law

must refer to everyone and not a few. Another thing is the fostering of separation of

power.

Hence, as in a democratic system of government, it is the fundamental

principle of the constitution which ensures that there is a separation of powers to

ensure power check and discouragement of dictatorship. There is a great need for the

powers to be separated because if the power is concentrated on a single body of the

government, there is bound to be an abuse of power and arbitrariness, which is

tyrannical in all ramifications. Joseph Raz is of the position that there must be an

independent judiciary, fair and open hearings, and judicial review of legislative and

administrative actions. It follows that as legislature makes laws, the judiciary

interprets and administrative implements.97 From this, we can say that the

enforcement of the term ‘the rule of law’, is actually the act of given law the power of

supremacy, which when lacking, puts the laws under some privileged individuals.

This will, in turn, lead to tyranny, rebellion, oppression and anarchy.98

96 Matthew H. Kramer, The Quality of Freedom (2003), p.102, quoted in John A. Bruegger, “Freedom,

Legality, and the Rule of Law.” Washington University Jurisprudence Review, p. 82. 97 Cf. John A. Bruegger, “Freedom, Legality, and the Rule of Law.” Washington University

Jurisprudence Review, pp. 88. 98 Cf. Christine Sypnowich, “Law and Ideology”, The Stanford Encyclopedia of Philosophy (Summer

2019 Edition), Edward N. Zalta (ed.), URL= https://plato.stanford.edu/archives/sum2019/entries/law-

ideology/.

https://plato.stanford.edu/archives/sum2019/entries/law-ideology/https://plato.stanford.edu/archives/sum2019/entries/law-ideology/

34

The rule of law not only guarantees the legal obligation of the entire citizens

but also ensures the legal obligation of the government itself. Without this, the rights

of the citizens cannot be protected, and this will result in tyranny on the part of the

government.99 So, we cannot overemphasize the need for the rule of law in every

system; the reason being that, whenever we discuss the nature of sovereignty, a

concept which must take into consideration is the rule of law. Since the goal of law as

we know, is the attainment of justice, it follows then that the rule of law is the means

for this attainment, and for the attainment of order and freedom.

Accordingly, Aquinas reminds us that law is the ordinance of reason which

does not spring from the caprices of any individual but made for the common good.

Thus, the law has a binding force for everyone in the society, both ruled and the ruler;

so as to be able to fulfill the purpose for which it is made, that is, for the common

good. This means that the citizens have to evaluate all their actions by the use of

reason, which is the principle of all matters of action. Aquinas goes on to say that the

law is sovereign to everyone; its coercive power is vested in the whole people or in

some public persons, to whom it belongs to inflict penalties.100

2.4 Restriction to Rule of Law

The discussion on the rule of law will somehow be inconclusive if we do not

mention some of the things that restrict the rule of law. The idea of the rule of law is

that the law should stand above every person and agency regardless of wealth, social

99 Cf. J. H. Price, Comparative Government, p. 28. 100 Cf. Thomas Aquinas, Summa Theologica, I-II, q. 90, a. 3, reply to Objection 2.

35

status, or power. But, there are situations where some individuals and agencies have

proven to be higher than the law.101 In such a state, the rule of law is restricted. An

example of this is a monarchical regime and dictatorship. In the same line, the rule of

law could also be restricted when laws are subjectively promulgated to fit into a

private scheme. While on the other hand, laws should be made in consonant with

common good which takes into cognizance: firstly, what is “averagely” acceptable by

everyone; secondly, the particular period in question; and the possibility of

compliance to the law. Otherwise, it will be difficult for such laws to bind.

There are also some other factors that restrict the rule of law. Any condition

contrary to Fuller’s eight principles is a hindrance to the rule of law. Following these

principles, the laws must be general, lest they become selective and result in division;

they must be publicly known, otherwise, people will not know what to do and what

not to do; they must be prospective and not retroactive because laws are supposed to

be prospective; they must be comprehensive, for those whom the laws govern to know

the laws that govern them; they must not be contradictory, to avoid confusion in

interpretation and application; they must be possible; they must be stable so that the

citizens can plan their lives; and lastly, they must be enforced as written, and not

101 Cf. Jeremy Waldron, "The Rule of Law", The Stanford Encyclopedia of Philosophy (Fall 2016

Edition), Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/fall2016/entries/rule-of-

law/.

https://plato.stanford.edu/archives/fall2016/entries/rule-of-law/https://plato.stanford.edu/archives/fall2016/entries/rule-of-law/

36

subjectively interpreted.102 These factors and many others when not considered, can

hinder to the rule of law.

2.5 Conclusion

Any state that is not ruled by approved laws is always unpredictable and

unsafe. Adherence to the directions of the promulgated laws guarantees stability and

freedom. The only way to achieve this is to make sure that the laws are superior to

every Segun and Obi. Also, the avoidance of subjective promulgation and

interpretation of laws is very important in this regard. In this chapter, we discussed the

issue of law and the rule of laws. We started by defining law as “as a rule of human

conduct, imposed upon and enforced among the members of a given state.”103 After

which we presented the two types of law and the positions of their corresponding

proponents. Furthermore, we discussed the concept of rule of law, which means the

superiority of the law over every citizen and agency. Finally, we highlighted some of

the factors that hinder the rule of law.

102 Cf. John A. Bruegger, “Freedom, Legality, and the Rule of Law.” Washington University

Jurisprudence Review, pp. 85-110. 103 Padfield, Law Made Simple, p. 1.

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CHAPTER THREE: THE INTERACTION BETWEEN FREEDOM AND

RULE OF LAW

3.0 Introduction

In chapter one, we noted that freedom is being able to act, without compulsion or

coercion, according to one’s will. Simply put, freedom is said to exist when one is the

cause of his or her action without being influenced by something extrinsic.104 Also,

we defined the rule of law as the supremacy of law as distinguished from mere

arbitrariness with regards to the rights of individuals. It follows that, for there to be

the rule of law, the law must be the mechanism by which the government performs its

duties in society. In other words, the government organizes and commands the affairs

of the society according to pre-determined public rules as opposed to unfettered

discretion.

If freedom is defined as the absence of constraint or coercion, and the law is

defined as “a rule of human conduct, imposed upon and enforced among the members

of a given state,”105 it then means that law, as a constraint on human will, conflicts

with freedom. This implies that the exercise of one’s freedom, must in one way or the

other interact with the rule of law in the society. When this interaction happens, there

is bound to be an overlap; it is either freedom is overemphasized, and the rule of law

undermined, or the rule of law infringes/limits on human freedom. Where the rule of

law limits/infringes on human freedom, there is an identified need for enforcing these

104 Cf. Peter A Angeles, “Freedom” Dictionary of Philosophy, p. 106 105 Padfield, Law Made Simple, p. 1.

38

laws, as humans always strive to actualize absolute freedom. Conversely, all laws

must have a means of enforcement, and most of the means of their enforcements are

backed by sanction and punishment.106

In this chapter, our focus will be on the interactions between freedom and the rule

of law. We will present the tensions that arise from this interaction; the interplay

between self and the rule of law; the compatibility of freedom and the rule of law and

then John Bruegger’s position on this interaction.

3.1 Theories on Interaction between Freedom and the Rule of Law

In reference to the interaction between freedom and the rule of law, there are two

positions that are involved in this discuss: republican freedom theory and negative

liberty theory.

3.1.1 Republican Freedom Theory

The proponents of this position generally see freedom as total independence

from the arbitrary power. Formerly, this freedom is not gotten by the consideration on

whether a leader is a good person or not, rather, it is gotten by being independent of

arbitrary power. This independence is realized by rendering an arbitrary power less

powerful, (by curbing her arbitrariness) and exterminating her subjects’ dependency

on her. Notwithstanding this fact, some interference of the law on the freedom of the

citizen is necessary and positive, if the state interferes in the lives of the citizen for

their own good. This interference comes in the form of rules that are commonly-

106 Cf. John A. Bruegger, “Freedom, Legality, and the Rule of Law.” Washington University

Jurisprudence Review, pp. 87.

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known and non-arbitral.107 In this case, the rule of law is when these rules refer to

everyone in the given society equally. Hence, freedom is often infringed/limited on by

the rule of law, because there will be no room for individual choices.

Most republican liberty theorists agree that some level of interference is

necessary, though it may at a particular point in time restrict freedom, it also leads to

greater freedom and balance. For instance, laws against murder restrict the whimsical

freedom of someone who ordinarily feels she is to kill another person in order to

enhance her freedom. Fortunately, this law also leads to the freedom of all, because

people can go about their lives without the fear of death. So, this interference, while

curbing arbitrariness does not undermine freedom but conditions it to better suit

everyone. While arguing on this, the republican liberty theorists also concur to the

fact that when interference goes arbitrary, it leads to domination. Domination only

occurs when one person (or a group of persons) has the power to use the law to

arbitrarily interfere in the life and freedom of another person or group.108 This is

usually the case when the interfering party has the capacity to interfere and dominate

the interfered on a contrary basis and against its choices. This domination basically

causes the problem of uncertainty and subjugation of the choices of the victim.109

107 Cf. Frank Lovett, “Republicanism”, The Stanford Encyclopedia of Philosophy (Summer 2018

Edition), Edward N. Zalta (ed.), URL -

https://plato.stanford.edu/archives/sum2018/entries/republicanism/. 108 Cf. John Bruegger, “Republican Freedom: Three Problems” The Journal Jurisprudence, vol. 11,

(October 2011), p. 572. 109 Cf. John Bruegger, “Republican Freedom: Three Problems” The Journal Jurisprudence, vol. 11,

(October 2011), p. 572.

https://plato.stanford.edu/archives/sum2018/entries/republicanism/

40

3.1.2 Negative Liberty/Freedom Theory

For the negative liberty theorists, interference is a per se violation of liberty

and freedom.110 They define freedom “as the absence of constraints or non-restriction

of options and opportunities for action.”111 This position strongly holds that negative

freedom is the absence of any kind of interference. In addition, interference under this

theory is not only from the state. Human freedom can be interfered with by biological

incapacitation or poverty. In fact, when one lives in a state of poverty, she is limited

in her choices and cannot be seen as free.112

3.2 Freedom and the Rule of Law

For John Stuart Mill, the state through laws can interfere with an individual’s

freedom, if it directly or indirectly affects the freedom of another in society. So, in

this sense, freedom is limited. This is seen in his comment that “liberty of the

individual must be thus far limited; he must not make himself a nuisance to other

people.”113

3.2.1 Infringement of Freedom on Rule of Law

The tension between freedom and the rule of law has intensified with the

inception of civil society. One of the main causes of this tension is the feeling of

110 Cf. John Bruegger, “Republican Freedom: Three Problems” The Journal Jurisprudence, vol. 11,

(October 2011), p. 571. 111 A. Bernard, “The 21st Caribbean Woman’s Question: What is the Meaning of Freedom?”, Journal of

Eastern Caribbean Studies. Vol. 1, No. 1, (2008), p. 8. 112 Cf. Hassan Hassani, Two Concepts of Negative Freedom, (July 2018) URL=

https://.www.researchgate.net/publication/326395670 Accessed 22/02/2020. 113 John Stuart Mill, On Liberty, p. 5.

https://.www.researchgate.net/publication/326395670

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absolute freedom possessed by the government. Obviously, it is easier to deal with

some of the abnormal behaviours of the citizens who cross the line while exercising

their negative and positive freedom. But, it is rather difficult when the government

officials carry out their actions with the mindset that they have the absolute freedom

to weigh power.114 This is captured in Matthew Kramer’s word that: “at any given

time, the continuation of the rule of law as such—throughout some legal system, or in

any particular context within a system—is dependent on the inclinations of legal–

governmental officials.”115

Following this, it means that when government officials are whimsical in the

administration of office the result is always arbitrariness and boycotting of the rule of

law through the abandonment of power check and separation of powers. But when

th