By Akanksha Dutta, SLS Pune
Editor’s Note: Where concepts of ‘liberty’ present different concepts relating to freedoms, ‘law’ works on the same levels, but in a bid to maintain peace, security, and stability in society, seeks to control or limit that liberty. One would say that the two ideas are antithetical to each other. However, upon a closer, much detailed look at the philosophical backgrounds of the concepts, one realizes that they are not so much antithetical, but supportive of each other.
LAW AND LIBERTY – ANTITHETICAL TO ONE ANOTHER?
Law and Liberty have been known to be associated with each other. Whether it is the law that provides liberty or it takes away the same is the question that is often pondered upon. The discussion below is one such attempt to analyse and discuss the various aspects to the relationship between Law and Liberty and whether they are antithetical to each other or not.
There is debate between ‘Liberty from the law’ that implies that a feature inherent to law is that it constrains liberty. ‘Liberty by the law’ implies instead that liberty is secured through law; a feature inherent to law is that it protects, or at least is capable of protecting liberty as long as it satisfies certain conditions.
Law, simply put is a set of rules and regulations that govern the conduct of people in a society. It is for the well-being and betterment of all those who are a part of it. It is such a vast concept that there have been a number of attempts to define it and describe its nature. Some of the theories that attempt to do this are:-
- Natural Theory of Law.
- Analytical Theory of Law.
- Historical Theory of Law.
- Sociological Theory of Law.
- Marxian Theory of Law.
- Kelsen’s Theory of Pure Law.
- Natural Theory of Law–
Natural law theory is a philosophical and legal belief that all humans are governed by basic innate laws, or laws of nature, which are separate and distinct from laws which are legislated. Legislated laws are sometimes referred to as “positive laws” in the framework of natural law theory, to make a clear distinction between natural and social laws.
Natural law theory has heavily influenced the laws and governments of many nations, including England and the United States, and it is also reflected in publications like the Universal Declaration of Human Rights. The origins of natural law theory lie in Ancient Greece. Many Greek philosophers discussed and codified the concept of natural law, and it played an important role in the Greek government.
Later philosophers such as St. Thomas Aquinas, Thomas Hobbes, and John Locke built on the work of the Greeks in natural law theory treatises of their own. The theory proposed that legal systems have a function—to secure justice. Grossly unjust laws were not really laws at all, but a perversion of law or mere violence. As St. Augustine put it, lex injustia non est lex.
Aquinas’s way of stating this point was: “positive law has as its purpose the common good of the community. Any positive law which conflicts/is inconsistent with either natural law or divine law is not really law at all. Hence, not only is there no moral obligation to obey it, but there is no legal obligation to obey it, either.” Augustine, Aquinas, and Martin Luther King were supporters of this view.
- Analytical Theory of Law–
John Austin is held to be the founder of this theory and school of law, also known as the Imperative theory. Its basic premise was that law is a command given by a superior to an inferior and enforced by material sanctions. Austin defined law as “rule laid down for an intelligent being by an intelligent being having power over him”.
It emphasizes that the sovereign is a determinate superior, what the sovereign commands are law, and disobedience of such commands is accompanied by punishment. Law is the expression of the absolute and unitary sovereignty of the State. It also holds that force or sanctions are an essential element of law, that which cannot be enforced is not law. Sanction in the form of some evil is inflicted in case of neglect to obey the law. To be a law, the sovereign command should be a general command. If the command requires only a specified act or forbearance, it is not a law but a particular command.
- Historical Theory of Law –
The historical school is based on the writings and teaching of Gustav Hugo and especially Friedrich Carl von Savigny. The basic premise of the German Historical School is that law is not to be regarded as an arbitrary grouping of regulations laid down by some authority. Rather, those regulations are to be seen as the expression of the convictions of the people, in the same manner as language, customs and practices are expressions of the people.
The law is grounded in a form of popular consciousness called the Volksgeist. Laws can stem from regulations by the authorities, but more commonly they evolve in an organic manner over time without interference from the authorities. The ever-changing practical needs of the people play a very important role in this continual organic development. In the development of a legal system, is it the professional duty of lawyers – in the sense of the division of labor in society – to base their academic work on the law on ascertaining the will of the people. In this way, lawyers embody the popular will.
- Sociological Theory of Law–
The main proponent of this theory was Roscoe Pound. He emphasized the importance of social relationships in the development of law and vice versa. His best-known theory consists of conceptualising law as social engineering.
According to Pound, a lawmaker acts as a social engineer by attempting to solve problems in society using law as a tool. It stated that Law is an instrument of social control, backed by the authority of the state, and the ends towards which it is directed and the methods for achieving these ends may be enlarged and improved through a consciously deliberate effort. The sanction of law lies in social ends which law is designed to serve.
- Marxian Theory of Law–
Marx stood together with other social “scientists” in their absolute rejection of the concept of natural law that had guided and inspired the founders of modern-democratic constitutionalism in the United States. Marx’s ideas about the law were expressed mainly in the Communist Manifesto, which he published in collaboration with his friend Friedrich Engels in 1848.
In that paper, Marx contends that “law, morality, religion, are so many bourgeois prejudices, behind which lurk in ambush just as many bourgeois interests.” Then he goes on to criticize the whole tradition of government under the rule of law as nothing more than a mere expression of “bourgeois” aspirations. Since the idea of law was interpreted by Marx as invariably an instrument of class domination, he argued that the coming of a classless society implied that all laws would have to disappear.
Lawlessness is elevated by Marxism to represent the final stage of communism—which according to Marx necessarily predates “a period in which the state can be nothing but the revolutionary dictatorship of the proletariat”.
- Kelsen’s Pure Theory of Law–
Hans Kelsen’s “pure theory of law” reflects early 20th-century skepticism about natural law and sociology, to both of which Kelsen opposed his claimed purity of method—i.e., a method free from contamination by values of any sort.
He asserted, first, that legal theory was properly a science in the sense of an uncommitted, value-free, methodical concern with a determined object of knowledge.
Second, he argued, legal theory must be isolated from psychological, sociological, and ethical matters.
Third, purity of method permits the analyst to see that every legal system is, in essence, a hierarchy of norms in which every proposition is dependent for its validity on another proposition.
The justification for describing any particular rule as law thus depends on whether there is some other proposition standing behind it, imparting to it the quality of law. This regression is continued until the Grundnorm, or “basic norm,” is arrived at.
The basic norm derives its validity from the fact that it has been accepted by some sufficient minimum number of people in the community. The constitution of modern democracies is the closest concept to the Grundnorm described by Kelsen.
Now, the other major concept to be dealt with is Liberty. It comes from the Latin root word “liber” meaning freedom. It is the absence of constraints and not merely the absence of restraints. As with Law, Liberty too has been perceived to be different by different philosophers and political scientists. A layman may perceive Liberty to be the freedom to do anything he/she pleases.
Mill an Individualist treated Liberty as something completely immune from all restraints in the “self-regarding” sphere of human activity. It was a very selfish and unrealistic conceptualisation of liberty. While the view of collectivists and idealists was that liberty lies in the obedience to the laws of the state.
T.H. Green describes it as a power to do or enjoy something that is worth doing or enjoying in common with others. Many thinkers class liberty as negative and positive liberty. The idea of distinguishing between a negative and a positive sense of the term ‘liberty’ goes back at least to Kant and was examined and defended in depth by Isaiah Berlin in the 1950s and ’60s. Discussions about positive and negative liberty normally take place within the context of political and social philosophy.[i]
- Positive Liberty-
Positive liberty is the possession of the power and resources to fulfil one’s own potential. A concept of positive liberty may also include freedom from internal constraints. It seems to require the presence of something (i.e. of control, self-mastery, self-determination or self-realization). In Berlin’s words we use the positive concept in attempting to answer the question “What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?”
- Negative Liberty-
Negative liberty is freedom from interference by other people. Negative liberty is primarily concerned with the possession of sociological agency. It is the freedom from external restraint. In Berlin’s words, we use the negative concept of liberty in attempting to answer the question “What is the area within which the subject — a person or group of persons — is or should be left to do or be what he is able to do or be, without interference by other persons?”
Karl Marx had a unique view on Liberty; to him there can be no real freedom unless the system of capitalism was replaced by a socialist one. He does not merely take liberty as synonymous with the end of exploitation of man; he also integrates it with the glorious human values possible only in the stateless era of social development.
The extreme views of the Idealists, Individualists and Marxists led to a more neutral view that authority and law are an accompaniment of gregariousness of man. So long as man is social, he needs to subject himself to regulation. It is true that laws impose restraint and therefore infringe liberty but these are rules of convenience to promote right living. To compel obedience to them is a justifiable limitation of freedom.
LAW AND LIBERTY
Some individuals are of the opinion that liberty is the ability to do whatever they want. They also think that Law is what restricts one’s exercise if liberty. The two are not at odds with one other; rather, they complement one another. True liberty only comes as a result of established law, and the only established law that exists is the law established by the one and only Law-giver. But in reality, it is the law that guarantees freedom and liberty to individuals.
The Indian Constitution provides to its citizen Liberty through Article 21, and a varied types of freedoms including speech and expression, movement, assembly, profession etc. via Article 19. The constitution of the United States of America in a series of Amendments provided to its citizens freedom of press, speech, association, assemble etc.
Thus in most constitutional democracies and monarchies, freedoms and liberties are guaranteed in the constitution. The judiciary is the watchdog of these constitutions and applies the law to protect and liberty of the people. This liberty is a combination of positive and negative liberty; it not only lets the individual develop and fulfil their potential but also protects them from the interference of external agents.
The relationship between them can be studied in the context of a particular form of government. If in a dictatorial form of government law is the command of the dictator and does not reflect the public opinion, in a democratic system it is an essential condition for the full enjoyment of individual liberty. Since the days of the Sophists to the exponents of Laissez Faire theory, enactment of the law was treated as a curtailment over individual liberty. The anarchists pleaded for the abolition of the state for the sake of complete freedom of the individual. Thus, the relationship between law and liberty is dependent on the political system in which they operate.
Where there are no laws to protect or provide freedom and liberty, violations of the same take place. Where the law and law makers do not support liberty then its existence gets endangered. Take the example of the Tiananmen Square Massacre of 1989 in China, on June 4th, a non-violent peaceful popular student led the demonstration in Tiananmen Square regarding the corrupt government, poor economic conditions and freedom of the press.
This protest was brutally crushed by the political leaders with the help of their army; the army had opened fire on protestors, used Armoured Personnel Carriers to run over tents and rammed buses. The death toll was never ascertained reports varied from close to 1000 civilians quoted by Amnesty International to 4000 leaked by defectors from the army. Thus in a country where the liberty to assemble and protest was not guaranteed by the Law, such massive violations occurred.
On the other hand, In the Ramlila Maidan Incident[ii] in India, the Supreme Court of India, held the authorities liable for assaulting a sleeping crowd of protestors, who along with Baba Ramdev, a yoga guru had assembled at Ramlila Maidan in New Delhi for a yoga camp and protest the increasing corruption in governance. Thus it is true that law supports liberty, and does not necessarily harm it.
The landmark judgement of Maneka Gandhi v. Union of India[iii] in 1977 the new Government sought to impound Maneka’s passport against which she went to court and won a landmark decision on personal liberty. In the case, the court found that “Democracy is based essentially on free debate and open discussion, for that, is the only corrective of government action in a democratic setup.” Thus the Indian Legal system provided liberty to its citizens as per the provisions of the constitution.
In the international scenario, a landmark judgement under the European Convention on Human Rights was Assanidzé v. Georgia, [iv]where Tenguiz Assanidzé, mayor of Batumi and member of the Ajarian Supreme Council, was kept in detention for over three years after his acquittal by the Supreme Court of Georgia. The Court found that the applicant had undergone arbitrary detention contrary to Articles 5 (right to liberty and security) and 6 (right to a fair trial); for the first time, it asked a state to ensure the applicant’s speedy release. Here again it was the law that upheld liberty of a citizen of Europe.
In a number of cases in the United States of America, courts in various states of the nation upheld the liberty of individuals by removing the barriers to same-sex marriages in their respective states. Goodridge v. Dept. of Public Health[v] was a landmark state appellate court case dealing with same-sex marriage in Massachusetts. The November 18, 2003, the decision was the first by a U.S. state’s highest court to find that same-sex couples had the right to marry.
Hollingsworth v. Perry[vi] is a United States Supreme Court decision that held that in line with prior precedent, the official sponsors of Proposition 8, a California ballot initiative prohibiting same-sex marriage, did not have Article III standing to appeal an adverse federal court ruling when the state refused to do so. It also held (at district court rather than Supreme Court) that the attempt to forbid recognition of same-sex marriage in California by way of an amendment to the State Constitution after it had been previously permitted, had been unconstitutional.
And again in United States v. Windsor[vii] is a landmark case in which the United States Supreme Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, by Section 3 of the Defence of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment.
Some philosophers like John Locke opine that law creates a condition, a congenial atmosphere for the enjoyment of liberty. But the contrary view is held by a galaxy philosophers and eminent scholars like Hobbes, Spencer, and Prof. A.V. Dicey etc. To Prof. A.V. Dicey “the more there is one the less there is the other”. Anarchist philosophers like Proudhon, Goodnow, Bacunm, Kropotkin etc. have gone to the extent of propounding for the abolition of state in order to attain greater freedom.[viii]
Sometimes the laws are the upholder of individual liberty as the enactment of labour laws provides adequate wages to the workers, fixing a working hour, guarantee pensionary benefits and compensation in the event of an accident to the workers. Thus, such type of laws safeguards the workers interests against the evil designs of the selfish employer. But all laws are not the conditions for liberty.
A law made by a dictator in complete disregard of the public opinion is only contradictory to liberty. Therefore, in certain political systems law and liberty are contradictory and antithetical. It can be concluded that absolute freedom is no freedom as it is a licence. Liberty is only a restricted freedom and this restriction is a reasonable restriction imposed by law alone.
Thus, liberty is less than the absolute freedom to exercise one’s will. It cannot be denied that law indeed has restricted liberty on occasion, especially when the exercise of one’s individual Liberty somehow violates other rights of the public or harms the state.
The restrictions on Liberty and freedoms are given all through the Indian Constitution, the freedoms in Article 19 have restrictions albeit reasonable upended to them. It is time and again reiterated by courts that freedoms and liberty cannot be unrestricted, just as an uncontrolled horse will cause damage to things in its path, in the same way, unrestricted rights will be more harmful than helpful.
This is the rationale, the principle of balancing that is behind laws restricting liberty. Thus laws against defamation that restrict the freedom of speech and expression are to protect other’s right to reputation, restrictions against assembly in areas where curfew is imposed is to maintain security and order, restriction on movement into certain areas in the North-eastern states of India are to protect the interests of the tribal communities. Laski pointed out, “to permit such compulsion is to invade liberty but it is not to destroy the end that liberty seeks to serve. Liberty is not an end but a means to make a creative social life possible in which every citizen can find full and free expression of his or her creative impulses and develop, thereby, his or her best self.”
On this regard J.S. Mill gives his view that laws of the state are always an infringement on the ‘individuality’ of man. The state should not have more than the power to restrict an individual except to guarantee the freedom of other citizens. A ‘drunk’ citizen should not be restrained while a ‘drunk’ policeman on duty should be.
So long as an act of individual docs not interfere with another’s liberty, it must not be restrained by law.
In an article, it was so said that ‘Liberty from the law’ and ‘liberty by the law’ could be construed as expressing a difference between liberalism and republicanism. To be fair to these traditions of thought, however, they are both so diverse that such a simple distinction is less than informative. Within the republican tradition, there are at least two strands of thought regarding liberty in political society.
According to Quentin Skinner, the significant difference between liberalism and republicanism is that in the republican view the liberty of an individual person cannot be assessed independently of the liberty of the community of which the citizen is a part (1984 p. 213). Skinner also claims (along with Philip Pettit, 1989 and 1993) that republican liberty is negative in the familiar sense of the word. If a free community is a community that governs itself – through its own citizens – and if the liberty of the individual citizen is dependent on this, then the liberty of the citizen will require political participation. Liberty as participation is traditionally conceived as positive.[ix]
Thus liberty cannot be termed to be antithetical to the law as more often than not it is the law that provides liberty and any restrictions imposed on it are to protect the greater public and state. Thus a state where there is no law to control or provide liberty will become akin to Hobbes state of nature where life is brutish, people violently competing for rights and resources and no security.
Thus, the real relationship between law and liberty lies in the reconciliation of the two opposite views. Liberty without law will degenerate into a licence and law without liberty is oppressive in nature and protects only the interests of the law-giver. Law creates a helpful condition, a congenial atmosphere where an individual gets the opportunity for better development of his inner potentiality. Where law ends, tyranny begins and without a disciplined life, liberty has no meaning. Finally in the words of Thomas Jefferson-
“Rightful liberty is unobstructed action, according to our will, within limits drawn around us by the equal rights of others.”
Formatted on February 21st, 2019.
[i] Positive and Negative Liberty, Available At: http://plato.stanford.edu/entries/liberty-positive-negative/ Last Accessed at: 12/8/2013
[ii] Ramlila Maidan Incident, In Re v. Home Ministry and Others, (2012) 5 SCC 1
[iii] Maneka Gandhi v. Union of India, 1978 AIR 597
[iv] Assanidzé v. Georgia [GC], no. 71503/01, § 202 (European Court of Human Rights)
[v] Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)
[vi] Hollingsworth v. Perry 570 U.S. ___ (2013) (Docket No.12-144) (Supreme Court of United States)
[vii] United States v. Windsor 570 U.S. ___ (2013) (Docket No. 12-307) (Supreme Court of United States)
[viii] Relation Between Liberty And Authority and also between Liberty and Law, Available at: http://www.preservearticles.com/201106248515/relation-between-liberty-and-authority-and-also-between-liberty-and-law.html Last accessed on 13/8/2013
[ix] Halldenius Lena, Liberty and Law-Institutional Circumstances of Freedom, Redescriptions-Yearbook of Political Thought and Conceptual History Vol. 11,(2007)