...My argument here is that, while the rule of law is an essential public good, the actual number and extent of laws also are important factors in determining whether there will be liberty—and, indeed, the rule of law itself. In effect, too much law undermines not just freedom but also certainty, which is necessary for the rule of law. As the realm of “law” expands, it crowds out human liberty, including the freedom provided by law, understood as properly promulgated rules that can be understood and followed by the governed. Moreover, as too much law undermines freedom and its own proper character, it also tears apart the very fabric of the community in which we must live our lives.
...There is no precise, mathematical calculus by which to determine when a definite line between “free” and “unfree” regimes has been crossed. But at some point on the spectrum—between a society without law and one in which all aspects of life are subject to statutory regulation—society becomes recognizably unfree. Too little law may leave us at the mercy of the strong and ruthless. Too much law eventually eliminates that “sphere of autonomy” that classical liberals refer to as the heart of liberty. I prefer to term this space a zone of prudence, because we remain under a duty (and natural impulse, when it is not diverted by sin or other bad incentives) to act in accordance with the broad but fundamental norms of natural law (for example, the Golden Rule). But the point is that the absence of formal law leaves an area within which we may interact with one another and with the associations in which we lead most of our lives. In this zone we may act according to rules and customs worked out with our fellows, consistent with our understanding of our own circumstances, needs, duties, and desires.
...A regime that reduces social relations and our duties to one another to a set of laws and legal principles reduces this zone of prudence, potentially to the vanishing point. One may consider, here, recent outcries over wedding cakes and photographs. In several cases, those who bake or take photographs for a living have been penalized by the government for their religiously based decision not to participate in same-sex marriage ceremonies. Whether one sees such refusal as rude, hurtful, or an understandable desire to live one’s professional life in accordance with one’s deepest beliefs, the increasing fact of legal sanctions for decisions regarding interpersonal relations clearly narrows the zone within which one may act according to one’s own conscience. These bakers and photographers have been “legally” made unfree in a very important sense, in that they are being forced to act in a way forbidden by their own moral judgment as they seek to choose for whom they should work. That the unfreedom is imposed and enforced via legal process makes it no less an important reduction of liberty....
The Law and Justice Room
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Originally Posted by Chris
