“Two Concepts of Liberty” by Isaiah Berlin and the Freedom of Will in Civil Law

V. O.  Savchenko

doi:10.32631/v.2025.2.06

V. O. Savchenko V. N. Karazin Kharkiv National University https://orcid.org/0000-0001-7104-3559

DOI: https://doi.org/10.32631/v.2025.2.06

Keywords: two concepts of liberty, positive freedom, negative freedom, free will, autonomy of will, legal capacity, civil law, theory of private law, philosophy of law, expression of will.

Abstract

This research undertakes a comparative analysis of Isaiah Berlin’s influential philosophical framework of negative and positive liberty and the legal-theoretical concept of “Freedom of Will in Civil Law”. The primary aim is to elucidate the intricate relationship between these abstract ideals of liberty and their concrete manifestations within contemporary private law. The study is devoted to how the concept of free will, understood as a legally recognized capacity to act, is qualified and challenged by socio-political realities, which Berlin seeks to analyze in his concepts. The methodology involves a critical analysis of Berlin’s “Two Concepts of Liberty” and Savchenko’s monograph, a comparison of their main provisions, and an examination of their application to fundamental areas of private law, such as contract, tort, and property law. The relevance of this topic stems from the foundational role of liberty and free will in legal doctrines governing individual autonomy, consent, and responsibility. The scientific novelty lies in the direct comparative analysis of Berlin’s philosophical constructs with the specific legal framework of freedom of will, particularly within the Ukrainian civil law context, and the exploration of this interplay’s implications for understanding power dynamics, fairness, and the limitations of legal capacity in private law. The main results indicate that “freedom of will” requires conditions akin to both Berlin’s negative (non-interference) and positive (self-mastery) liberty for its meaningful realisation, and that Berlin’s framework offers critical tools for assessing the substantive reality of legally granted freedoms. This research has practical significance for legal scholars, practitioners, and policymakers grappling with issues of consent, unconscionability, and legal capacity, offering a nuanced understanding of how philosophical concepts of liberty inform and challenge legal practice. The conclusions emphasise the necessity of a multi-faceted approach to freedom in law, one that recognises the legal capacity for will, protects against interference, and cautiously promotes conditions for genuine autonomous decision-making, while acknowledging the critical perspectives that challenge and refine these concepts.

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Author Biography

V. O. Savchenko, V. N. Karazin Kharkiv National University

Candidate of Law, Associate Professor.

Department of Civil Law Disciplines (associate professor).

References

Berlin, I. (2002). Two concepts of liberty. In H. Hardy (Ed.), Liberty (p. 166–217). Oxford University Press. https://doi.org/10.1093/019924989x.003.0004.

Hiruta, K. (2014). The meaning and value of freedom: Berlin contra Arendt. The European Legacy, 19(7), 854–868. https://doi.org/10.1080/10848770.2014.965520.

Garvey, J. H. (2016). Two aspects of liberty. Notre Dame Law Review, 91(4), 1287–1300.

Savchenko, V. O. (2024). Freedom of will in civil law. LTD “Ukrlohos Hrup”. https://doi.org/10.36074/Savchenko-monograph.2024.

Njoya, W. (2024, April 27). Freedom of contract and property rights. Mises Institute. https://mises.org/mises-wire/freedom-contract-and-property-rights.

Zamir, E., & Ayres, I. (2019). Mandatory rules. Texas Law Review, 19(12). https://doi.org/10.2139/ssrn.3420179.

Bridwell, P. (2003). The philosophical dimensions of the doctrine of unconscionability. The University of Chicago Law Review, 70(4), 1513–1531. https://doi.org/10.2307/1600579.

Meixner, J. B. (2014). Applications of neuroscience in criminal law: Legal and methodological issues. Current Neurology and Neuroscience Reports, 15(2). https://doi.org/10.1007/s11910-014-0513-1.

Robinette, C. J. (2006). Torts rationales, pluralism, and Isaiah Berlin. George Mason Law Review, 14, 329–362.

Pilon, R. (2017). Property Rights and the Constitution. In Cato handbook for policymakers (pp. 173–191). Cato Institute. https://www.cato.org/cato-handbook-policymakers/cato-handbook-policy-makers-8th-edition-2017/property-rights-constitution.

MacCallum, G. C. (1967). Negative and positive freedom. The Philosophical Review, 76(3), 312–334. https://doi.org/10.2307/2183622.

Doyle, S. T. (2020). A defence against attacks on negative liberty. Journal of Libertarian Studies, 24(2), 317–322.

Crowder, G. (2024). Isaiah Berlin and feminism: Liberty and value pluralism. Society, 61, 275–288. https://doi.org/10.1007/s12115-024-00984-8.

Skinner, Q. (2002). A Third Concept of Liberty. Proceedings of the British Academy, 121, 237–268.

Grant, J. (2006). Determinism, neuroscience and responsibility. International Journal of Law in Context, 2(3), 221–231. https://doi.org/10.1017/s1744552306003028.

Illes, J., & Sahakian, B. J. (Eds.). (2011). Oxford Handbook of Neuroethics. Oxford University Press. https://doi.org/10.1093/oxfordhb/9780199570706.001.0001.