..freedom consists in the search for loopholes

A democratic assembly tends to understand legislation as a command addressed to the people. This accords, no doubt, with our common talk about “obeying the law”. We talk of laws “forbidding” certain kinds of conduct and “encouraging” others. Sometimes, indeed, laws are thought to be a signaling system, entities that “send a message.” Strictly speaking, however, these ways of thinking constitute a simpleminded misunderstanding of the rule of law. A command means an imperative addressed directly from a commander to an addressee, and the point of the command is extinguished with that situation or with that type of situation. A master of slaves commands his slaves. An employer can command an employee, within the limits of an agreed relationship of employment. ..

A law is something quite different. It is a hypothetical imperative, specifying a form of conduct that attracts certain sanctions should any particular instance of the conduct be defined as an offense by a court. The law does not “forbid” murder; it simply specifies a variety of penalties for a vriety of different kinds of killing. This view of law provides the formal sense in which living under law is what we in the West understand as freedom, and the point is thus very far from being a piece of legal pedantry. The creativity of Western societies in part results from pursuing one’s interests by finding lines of conduct that do not incur the sanctions of law. From a hostile point of view, freedom consists in the search for “loopholes”.

– Kenneth Minogue, The Servile Mind (2010)

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