Liberty and Law:
Liberty is the condition precedent to fulfillment of man’s personality. It is the spontaneous expression of man’s individuality and fulfillment.
Liberty therefore implies free choice—a choice to live the life according to one’s own free will. Laws on the other hand place a restraint upon man’s freedom. They flow from the state and are backed by sovereignty and its physical force. The breach of law result in physical penalties. Apparently, therefore, there seems to be a contradiction between law and liberty.
Views of the Individualists:
This view is also supported by individualists particularly J.S. Mill. According to him, 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. More the laws; less the liberty. According to William Godwin, ‘Law is an institution of most pernicious tendency.” Every law is a direct encroachment on individual liberty.
Views of the Idealists:
On the other hand is the view of collectivists and idealists who believe that liberty lies in the obedience to the laws of the state. The individual should ask the state ‘my station’ ‘my duties,’ and nothing else. He should simply perform the duties.
The state is the judge both of social welfare and individual welfare. The state is the ‘ethical substance’ having a will and purpose of its own, higher than those of the individuals. It represents the ‘social consciousness’ or ‘social mind’ and hence its laws are perfect, moral and aim at social good.
Individual, therefore, must obey these laws. According to this school, there is nothing beyond the state and nothing outside it. Laws thus create one final unity, and sovereignty of the state. There is no antithesis between liberty and law. In fact, fulfillment of man’s moral personality can be possible only in obedience to the will of the State expressed in laws.
The Middle view:
Both these views are historically and scientifically wrong. 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.
To order citizens to abide by traffic rules does not frustrate the creative impulse of man and rather adds to man’s convenience and makes social living possible. As Laski points 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.”
There arc many laws that do not in any way infringe liberty of man. For example, when the state by law organizes sanitary services, preventive campaigns against contagious diseases, or builds a dam or runs railways or generates electricity or organizes old age and unemployment pensions it neither restrains a man nor punishes him.
The maintenance of social utility services instead of limiting the choices of man increases such choice and thereby adds to liberty.
Further, liberty is not merely negative. It is also positive. It means that liberty must enable a person to develop his personality. It can be possible only if there are positive opportunities. Thus liberty implies rights like right to work, education, speech and expression etc.
Without these political, economic and social rights, liberty will be meaningless. Thus the laws that create and maintain these rights do not infringe the liberty but make liberty become operative and effective.
On the other hand the idealist view that liberty lies in obedience to law is not without flaws. State is neither a moral person with its individual will or purpose nor a moral or ethical concept. Its purpose can be only welfare of the community that includes welfare of man.
The contents of this welfare must be defined by the society itself. Thus the laws of the state can neither be final nor moral. They can be moral only to the extent to which they serve the social purpose. The judge of the adequacy or morality of law is the individual. The citizens must participate in the formulation of laws and should have the right to criticize them.
As Laski says, “If I have the sense that the orders issued arc beyond my scrutiny, or criticism, I shall be in a vital sense, unfree.” Liberty, therefore, does not lie in mere obedience to laws. Restraint must not frustrate my life of spiritual enrichment.
“Liberty is nothing if it is not the organized and conscious power to resist in the last resort.” As Maclver points out “We find it not in the surrender but in the fulfillment of personality, not in an imposed order but in one which is responsive to the inmost nature of every man.”
Thus neither liberty nor law are antithetic nor synonymous. In fact liberty is the end of law and law is the condition precedent of liberty. Without law and authority, there shall prevail anarchy and license and not liberty. Law as a mere power without a purpose would lead to tyranny. Law has to ensure an enduring social order. Liberty is the end of law. But to judge whether law has realized this end or not is not the state but the individual.
Points to Remember
Liberty and Law:
Laws are an essential guarantee of liberty. No one can deny the truth of Locke’s assertion that where there is no law, there can be no freedom.
Law should emanate from the individual’s rational self. According to Laski, laws must be built on the experience of those to whom they relate.
Laws which are not made by common consent and are imposed by an authority which the people do not recognize will be regarded by the people as an unjustified encroachment upon their liberty.