The Principle of Freedom and Equality

• Author: Elena Comşa
• Pages: 259-266

Elena Comşa. Lecturer, Ph.D. candidate, Law Faculty, “Nicolae Titulescu”, Bucharest (e-mail: elena_comsa@yahoo.com).

Page 259

Introduction

“The discussion on principles¹²³ – initiated in Athens in the 4^th century B.C. and still ongoing today, 25 centuries later – is actually a discussion on the essence of the law, on its fundaments”⁴.

Any law principle crystallizes social values, defined as “criteria for valuing, standards, milestones”; they are social because they represent in “the human life fundamental principles of choice”⁵. These values are not strictly juridical. They can be juridical, political, moral, religious, esthetic, philosophical, etc.

Values set axiological dimensions for any positive right. Juridical values (equality, freedom, justice) ground juridical rules, they are transposed in law norms; once they become consecrated values are protected, promoted by such. Non-juridical values (good, truth) become or juridical nature and are then protected in the same manner.

Gh. Mihai draws attention on the fact that “people live together, they do not co-exist”⁶; they “collaborate”, “get to consensus”, they “cooperate”. Law involves otherness; whilst coexistence isPage 260 possible for flocks, hordes, and anthills, living together is translated by “awareness of values”. Each free man has the possibility of choice; however “we are similar by the values we receive, yet different by our valorizing, because any value is particularly valorized by action”.⁷

The present pursuit in researching the principles of freedom and equality aims to both an incursion in time and the deciphering of the juridical, and also philosophic and moral connotations afferent to such a vast area as that of law principles.

Literature Review

The specialized literature comprises opinions according to which the changes in the contemporary society have brought too much freedom, to much private independence to individuals; this is translated in more restless in life, as the individual is permanently asking himself “where, how far can and should he go”.⁸ It is the opinion of the distinguished professor Gheorghe Mihai that this aspects claim for a larger need for the law.

In another view, “the concrete law is not viable but for values and such values are always typically expressed in the enunciation of a law system’s principles.”⁹ Nonetheless, juridical axiology is not about researching only juridical values; it also aims to “give reason for the other social values”. Thus, principles represent the area in which law meets philosophy, moral, politics and the other social domains.

This is the reason why in drawing up this paper the guidelines have been followed set forth by professors Nicolae Popa, Ion Dogaru, Gh. Dănişor and D.C. Dănişor as expressed in “Filosofia dreptului. Marile curente” (The Philosophy of Law. Great Currents): “When it comes to law, and not only, it is necessary each time to start with the Greek and Roman antiquity, because that is where the source of the entire European development lays. Even if nowadays society is no longer similar to the one back then, if the institutions governing us are radically different, somewhere in depth, on the level of grounding principles, the universally valid ideas can be found which continue to rule us in the present”¹⁰.

Not least, we have attempted to grasp the manner in which in his encyclopedia “Teoria generala a dreptului”(General Law Theory) professor Mircea Djuvara defined freedom as “a default postulate in any law matter”, such that “law without freedom is a contradiction, a meaningless enunciation”¹¹.

In respect with the principle of equality, “rather regarded as a principle law than a law principle”, the referral paper has been that of Simina Elena Tănăsescu – “Principiul egalităţii în dreptul românesc” (Equality Principle in the Romanian Law).

Principle of Freedom

Although an analytical¹² description is intended of these principles, freedom and equality seem so interconnected in terms of their content and significance, as we consider that byPage 261 undertaking them separately we would diminish their profound understanding and also their impact.

Reflections have always been made on freedom. Regardless if approached as an ideal to be achieved or as a fulfilled reality, freedom transcends law. One can speak of freedom in moral, in art or in relation with the divinity; yet such exceed the theme undertaken hereby.

Nonetheless, entirely understanding freedom as human essence cannot be achieved but for a strictly juridical perspective. Although “freedom is the grounds for law. Without freedom we couldn’t understand that it is about law; we face a simple relation of forces which does not make object to law”¹³, in the specialized literature it is underlined that law regards freedom upon a restrictive manner: freedom-relation. Law only refers to the person-in-law; it restricts, sometimes hindering, the freedom of the “citizen” by considering other people’s freedoms; the finality of law is a social one: optimizing the relations between individuals by coordinating their freedoms and instating by this the juridical order.

Law is not concerned with the individual as a distinctive entity, considered himself; it is not about researching his human self, about improving man, but the structure, the order and therefore, it does not reveal authentic freedom. “The logic is turned over of finalities: instead of improving the individual and therefore, as a consequence, his moral progress, which makes him accept more and more the others’ freedom, improving the order, when viewing freedom from a juridical standpoint, we aim to improve order, and only as a consequence of this increased improvement in the logical coherence of the structure, the individual gets to be more protected”¹⁴.

Given the aspects above, the concept of freedom is to be described both from a philosophical view and from a juridical one.

Philosophic literature has always attempted to find answers regarding authentic freedom.

Plato believed that freedom could be obtained only by education; it is only this way that man would get away from appearances and would free himself by truth; the essence of freedom resides in revealing the truth by education.

For Aristotle also the most important was the improving nature of the human being. Freedom had to be searched by means of contemplation (theoria), and intuitive knowledge was regarded as the one able to raise man from his actual stage (praxis). Practice had to be subordinated to theory; intuitive wisdom was the one researching principles; by action (praxis) man would be able to get higher towards principles, could he “reach” freedom¹⁵.

Pufendorf considered that if man consented to the establishment of society he understood that by such he wouldn’t become lower, but he would gain increased freedom. For Montesquieu, freedom in a state is ensured by fundamental laws, however in relation to the citizen, and a decisive role is played by morals, habits¹⁶.

Rousseau considered that in the nature stage people had lived isolated from one another, yet being free and equal. The shift from the nature stage to the civil society represented a fall of the individual. He understood however to cease his natural freedom and “the unlimited right of obtaining everything that drew him and what he could touch” in order to obtain in return another type of freedom – civil freedom. This freedom as understood need represented the grounds of law in Rousseau’s opinion, because “the excessive impulse of wishing represents slavery, whilst obeying a law which you have established for yourself means freedom”¹⁷.

Page 262

Thus, at the basis of the social contract Rousseau put the free will of individuals. “Social pact establishes such equality between citizens that everyone subject to the same conditions and will enjoy the same rights”¹⁸. This is a consequence of the equivalence in renderings: if a citizen ceases to the whole a part of his natural freedom, then every body will enjoy the same treatment from the society.

The finality of the social contract is mainly juridical security. By the social pact, freedom and equality as natural rights are maintained and moreover guaranteed, and citizens’...