The Value of Legal Freedom

Abstract

Thus far we have been focusing mainly on conceptual and methodological questions: how should the notion of legal freedom be defined, how should it be measured, what is the relation between rights and game theory, etc. The first part of this monograph showed that a legal reductionist account of legal systems can be helpful in answering explanatory questions regarding the existence of legal systems. Another objective of this study is, perhaps somewhat paradoxically because legal reductionism was defended as an even more positivistic approach than legal positivism, to show that such an approach is useful for questions pertaining to the value of particular legal arrangements. In this final chapter I shall take up the issue of the possible value of legal freedom, in particular the possible value of increasing the legal freedom of individuals. First, I develop a taxonomy of the possible forms of value freedom may have. This taxonomy is based on two dimensions: the distinction between freedom’s specific or non-specific value, on the one hand, and the distinction between the instrumental or intrinsic value of freedom, on the other. I then address the question of what can be said about the possible value of increasing the freedom of individuals. Since the protection and maximisation of legal freedom can be seen to be an important liberal ideal, the question concerns the possible value of liberal legal systems.