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Law and Liberty

I have never thought, for my part, that man’s freedom consists in his being able to do whatever he wills, but that he should not, by any human power, be forced to do what is against his will.

Jean-Jacques Rousseau

On 26th January 1950, the world’s longest written Constitution came into effect. India was ‘liberated‘ from the British Raj. Years of independence struggle bore its fruit in the form of an independent India. The Constitution embodies the beliefs and idealisms of India. These ideas are very clearly listed in the Preamble of the Indian Constitution.

Accordingly, the preamble secures liberty for all its citizens. We are familiar with the concept of law to the extent that we understand that it is a set of enforceable rules. But where does the concept of liberty stand, and what does it represent in a Rule of Law? Liberty in the context of our Constitution embodies and establishes liberty of thought, expression, belief, faith, and worship. Meaning of ‘liberty’ changes with time, society, and point of view. This article shall try and unravel these meanings and establish a relation between liberty and law.

Understanding Liberty

Liberty can be viewed from numerous points of view; it has that versatility attached to it. The point of discussion now is concerning the law and what does liberty stand for. The term has been used for centuries to define a breakthrough of a human being from chains that held him back. These chains have since centuries changed their definition to suit the needs of the society. In the dark ages, these chains of myth and superstitions were broken to achieve scientific liberation. Mankind achieved scientific liberty. Similarly, we are witnessing liberation from the constructs of gender and acceptance of LGBTQ+ communities.  

The point is that liberty is equated to attaining freedom, equality, sovereignty, and other such ideas but it is so much more than these. It is the feeling that humans have developed; that is associated with the liberty that has instigated humans to reclaim their freedom and fight for their rights. So is liberty just a feeling? No, it is again more than just a feeling.

Religious Liberty

The concept of liberty can be seen throughout our Constitution in the form of Article 15, Article 16, Article 14, and most importantly Article 25. These articles emphasize the fact that religion is ‘not‘ a ground for discrimination and India is a religiously free country i.e. a liberal country in allowing for anyone to profess any religion they want. The religious institutions we see nowadays enjoy the constitutional right to function and propagate their esteemed religion. This is the liberty that is guaranteed by our Constitution i.e. liberty of religion, faith, and worship.

Liberty of Thought and Expression

While liberty associated with spirituality and faith is untouched by law and policymakers (the intent being to separate State and religion to an extent), the liberty that is associated with thought and expression is not free from such intrusions. Article 19 of the Indian Constitution holds for most of the situation while granting freedom of speech and expression. But the right to dissent in India in recent times has faced criticism. The provisions and the powers that are given to legislators to curb or regulate the freedom of speech effectively limit the liberty at which a person can express their dissent.

Civil, Political & Natural Liberty

Apart from the expressly mentioned notion of liberty in our Constitution, certain other notions of liberty exist and in a discourse about liberty, they are hard to be not mentioned.

Natural Liberty

One such notion is of Natural liberty. Natural liberty is defined by the most basic human rights in existence. These are so basic and absolute that they form human rights as we know it. These notions believe that these liberties were given to us by God upon the creation of mankind and subsequently represent our free will. Right to breathe, Right to eat, Right to live, etc. are examples of these liberties.

Civil Liberty

Civil Liberty is the idea or notion of securing rights or ‘blessings‘ that are generally guaranteed or given by law when mankind is said to leave their natural state or habitat and tries to socialize and live in a society, because ‘man is a social animal’. These natural liberties are restricted by law and moulded or shaped for the benefits of society. This is the liberty given to mankind through instruments such as Constitution, Acts, Rules, etc. Article 19 of the Indian Constitution, for example, provides us with freedom of speech and expression and other such rights but these rights are regulated by the State in the interests of the society.

Political Liberty

Political Liberty could be regarded as a guardian that keeps our federal and democratic structures in place. Political liberties for decades have now allowed for multiple political parties with multiple political ideologies to co-exist democratically. To understand the importance, we could take the example of our independence struggle with the British. The struggle was important for not just civil liberty, but equally or more important to gain political liberty in our motherland. More often than not, political liberty is the standout notion which is utilized for most revolutions.

Monarchy and dictatorship form of Governments did not embody the kind of political liberty we see today. It would be correct to assume that if political liberty reflects the kind of Government in the State, civil liberties would reflect the very nature of that Government. Hence, a democratic Government in a democratic State will potentially allow its citizens to have more rights and a true sense of freedom as opposed to monarchy and dictatorship.

What is Law?

The understanding of Law is again perspective based and depends on the discourse. But the common consensus among people would be that it is a set of rules that govern or regulate a society. Due to the very nature of what law is and what it does, a common definition agreed upon by everyone would be difficult to come by.  

Under a Government led by noble ideas and humble motives, laws would appear to be a supportive set of instructions on what to do. Law would be the ladder to success for governing a State and maintaining peace and prosperity. But on any given day, these laws can be misused; they would represent the oppressive and heinous governance of a State on its subject and convey what not to do. In much simpler terms, laws can be positive and negative in nature, dependent on by whom and how it is used.

Representation of Society

Law represents society. For a bystander or a tourist, a country is only as good as its laws. In the modern context, the visa laws of a country can easily affect a major part of the country dependent on tourism while labour and commercial laws can set a country apart from its peers in terms of workforce immigration. In ancient times, the representation of cruel leadership was the laws passed by such leadership.

This representation more or less also tends to imply the state of ‘liberty’ in a society. To achieve liberty, rule of law is established. While it is arguable that liberty can exist without law in society, a society without laws to enforce liberty would be chaotic, to say the least. This chaos and anarchy have helped shape the idea of liberty and law in our modern society.

Is the Law necessary to enforce Liberty?

Charles Miltner in his paper ‘The paradox of Law and Liberty‘ states that ‘There is no denying the fact that law is a yoke and a burden‘. Accordingly, it has been argued that the burden and restrictions placed on a citizen of a State to ensure they get their ‘liberties‘ are too great. There is a constant insistence of the State to pay taxes, be a responsible citizen, and to follow law and order among other things; it is thought-provoking that the expectations from a citizen are greater than expectations from a Government. While several laws are made for governing citizens of a State, political leaders have turned to such laws to ‘rule’ over citizens. If we connect it to the above-mentioned concepts of positive law and negative law, it is the use under a circumstance that decides whether a law is good or not.  

Although misuse of laws certainly does happen, without a spec of doubt it can be said that in a society law helps maintain tranquillity. While the State does interfere with liberties, if no laws were present, there would no concept of equality or liberty either. It is the law that enforces such concepts. It is safe to say that criticism for law and State taking away liberties is not a criticism but a reflection of a situation where laws do not exist and absolute power is exercised by the State. This situation holds for monarchies and dictatorships but not for democracies. The concept of liberty again can exist in a free State and not a State confined and ridden with cruel laws.

Liberty through Law

Liberty as a word originated from the Latin word ‘liber’ which means ‘free‘. As a concept, liberty means liberation, and this liberation is achieved through enactment and enforcement of the law. It was mentioned above that liberty or civil liberty that exists today is not absolute and has the interference of the State. This interference is prompted by law. It is easy to understand that certain restrictions imposed upon a human in society are not to restrict but to allow for the smooth functioning of the society. In truth, the law allows for the negation of implications arising out of absolute liberty.

No Law, No Liberty

Bentham, a renowned philosopher and jurist, has stated that in a world where there is no law, there can be no security, and there can be no guarantee of liberty. John Locke, another renowned jurist has stated that ‘where there is no law, there is no freedom.’ In essence, this is true to an extent but not all laws give a guarantee or safety by ensuring liberty. Cruel and regressive laws often work oppositely. They snatch the liberties given to mankind instead of enforcing them.

Enforcing Liberty

One such effective way to ensure liberties are safeguarded is through the Doctrine of Separation of Powers. The Doctrine of Separation of Powers is well known and is a part of the basic structure of our constitution. This Doctrine merely states that there shall be a separation of powers among the three pillars of our democracy, namely the legislature, the executive and the judiciary which shall perform their functions within their spheres. This allows for the judiciary to safeguard the liberty enshrined in the Indian Constitution without any interference from the other two pillars.

Law is arguably a means to an end, and such an important means to an end should not be left for an individual to decide and implement. Laws are for the society and not for the satisfaction of a single individual; this is the reason why legislators, on a common consensus, make laws that affect the liberty in a society. While the judiciary is the de jure guardian of liberty, legislators are the ad hoc guardians who need to exercise their powers in good faith.

Conclusion

The 30th US President Calvin Coolidge in a speech very beautifully quoted that ‘Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundations of righteousness.’ This perhaps describes the kind of relationship law and liberty has. A righteous law would safeguard liberty while a preposterous law would just be oppressive.

We need to realize that the two separate concepts are now no longer separate. These two concepts are one. They are the two halves of the same concept. They need to co-exist for ‘civilisation’ to exist. Without any such peaceful co-existence, we would be looking at anarchy and chaos in the society.


Editor’s Note
The concepts of ‘law’ and ‘liberty’ are such that cannot be defined easily. These are dynamic concepts which keep on varying as per the needs of the society. This article tries to explain the concept of law and liberty and their interrelation as well. The article also explains the various kinds of liberty that are enshrined in the Constitution of India. The author has also tried to analyse the law as a means to achieve liberty and has given various examples in order to substantiate the same. The author has concluded by saying that a realization of the fact that law and liberty are two interrelated concepts is necessary for the peaceful existence of a civilisation.

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