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Law and Liberty: An Analysis

The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. Law is the set of rules and regulations which guides the society, it is important for the society in order to maintain equality and sustain equity. The role of law is also to maintain peace and a society free of chaos. A law has to be the guideline that is accepted by the society or there would be conflicts among people having different opinions and different social groups.

Law plays an important part in bringing about a positive change in the society which is focused on the integration of the society. This change is the result of the modernization of the society as a social change was the need of the hour. The history is a proof of the fact that whenever the society needs to change a way of its working, law is the answer. From the abolition of sati system to child marriage and untouchability all the positive changes have been possible because of law.

Liberty is the state of being free within society from oppressive restrictions imposed by authority on one's way of life, behaviour, or political views. It is one of the most important fundamental rights of a man which effects the freedom of his individuality. Liberty is required in a society to create a sense of freedom among the people to put up their thoughts and this establishes a level of intellectual, spiritual and economic thinking that helps in the development of a state.

Laws are made to protect individual’s liberty from the despotic powers.[1] In the Indian Constitution Liberty is mentioned in the preamble stating that the Constitution of India will secure the liberty of thought, expression, belief, faith and worship of the people of India. A society can foster a higher level of personal transcendence when individual liberties are protected and guaranteed. When dissenting opinions and dissenting lifestyles are not just tolerated but encouraged, a society can lay the groundwork for a rich ferment of spiritual conceptualization and expressions that can result in a higher level of spiritual exploration, philosophical adventures, and personal transcendence.

Liberty: Core of A Law

The lawmakers while making a law always have to keep in mind the liberty which every individual of this republic possesses. The laws and the duties of a citizen should never come in conflict with the liberty of an individual. In the modern system of state, the idea of liberal state has come up which has a responsibility to hold up the natural liberty of an individual in legal and political terms which encompasses the absence of restrictions and intrusions from any power.

The relational nature of law forces the State, meant as a body, to recognize the legal existence of other subjects, even though the latter are in a position of subjection. Otherwise, the State would lose its legal character. It is clear that this pattern is affected by a deep contradiction between the personality of the State, which is conceived as unity of willingness, and the concept of State as a legal order whose legal essence is grounded on the political community.[2]

There is no liberty where judicial power is not separated from both legislative and executive power. If judicial and legislative powers are not separated, power over the life and liberty of citizens would be arbitrary, because the judge would also be a legislator. If it were not separated from executive power, the judge would have the strength of an oppressor.-Montesquieu

The real relationship between law and liberty lies in the reconciliation of the opposite views. Liberty without law will degenerate into a licence. Law without liberty is only oppressive in nature and protects the interests of the law-giver. Law creates a helpful condition, a congenial atmosphere where an individual gets the opportunity for the fuller development of his inner potentiality. Where law ends, tyranny begins and without a disciplined life liberty has no meaning.[3]

Law without liberty will not bring order but anarchy. Liberty is the main component of a law both have to complement each other if a law has to affect the society in a positive way. Law is the protector of liberty as it punishes those persons who transgress laws. Sometimes the laws are the upholder of individual liberty as the enactment of labour laws provide 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.[4]

The analysis of law and liberty can be best made in light of the type of the government. In a democratic type of government, the laws made will have the liberties of the citizens on the top priority because the citizens are the one who has elected them to make laws and govern them. In an anarchical or dictatorial form of government the law made is the command of the dictator which will not reflect the public opinion so the liberty of a man would never a consideration for law-making.

According to Hobbes law is a negative term which restricts a man to enjoy his liberty but Bentham had the same idea but he stressed upon the fact that laws are important for maintaining order and making good laws which was a means to a good government. But Bentham held that the nature of law was restriction and he held it as a pain to a human.

Mill was aware, however, that laws might be a serious limitation of individual liberty. In his book On Liberty, then, one of his main objectives was to isolate and defend a region of human liberty where one would be free from moral censure and from the penalties of the law-a goal that, he argued, was consistent and, in fact, based on-Bentham's greatest happiness principle. According to Mill, law also is justified by this principle of utility, specifically, by its necessity for security and for the maintenance of conditions for good life, such as one's liberty. But even though law may be necessary and is to be preferred over anarchy, one must not forget that it is an evil and is inherently undesirable. Even in such writings as the Chapters on Socialism, Mill did not see human happiness as being significantly enhanced through widespread use of the positive law.

Law: Hindrance Or Catalyst To Liberty

Laws are rules and guidelines which means a man has to abide by them to live in a society without infringing other’s natural rights and this is a hindrance to the liberty of that man. Liberty is the freedom of a person to say and express anything which he has in his mind but laws prevent them in certain cases giving reasons for the restrictions. Lawmakers have made laws in good faith for the welfare of the state and smooth working of the state machinery.

Laws prevent men to make choices because some of the choices are kept out of bounds and the threat of penalty is in itself against the essence of liberty. Bentham introduced the concept of utilitarianism which explained the hedonistic nature of a man. A man tends to perform actions keeping in mind the consequence and the result of which should be increase in pleasure and decrease in pain. Bentham in his book Anarchical Fallacies wrote, as against the coercion applicable by individual to individual, no liberty can be given to one man but in proportion as it is taken from another, all coercive laws, and in particular all laws creative of liberty, are, as far as they go, abrogative of liberty.

The deprivation of one’s liberty is due to the interference of any nature. Absolute liberty requires complete absence of laws. But the complete absence of law gives rise chaos and the absolute liberty is negative liberty. Laws need to prevent disorder in the state for which the individuals have to surrender certain liberties keeping in mind the welfare of the society and the state.

India follows a system of separation of powers between the three wings- Executive, Legislature and Judiciary. The three wings are on an equal footing and none is superior or inferior to the other. They are independent and each wing is expected not to interfere in the working of the other wing. However, recent years have witnessed judicial activism in which judiciary has transgressed its boundaries and interfered with the working of legislature as well as the executive.

There are several instances to support this view. For example, in the case of Vishakha v. State of Rajasthan, Supreme Court has given guidelines for the prevention of sexual harassment of women at workplace as there was no existing law in this regard.

These guidelines were to be followed throughout the country until the Legislature came up with suitable legislation.

Thus, judiciary went beyond its boundaries.[5] In the case the Honourable Supreme Court of India held-
In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by this Court under Article 141 of the Constitution.[6]

Judicial interference is a necessary evil which every state has to have to keep in check the actions individuals which may sometimes be against the societal norms or considered as an act against the state. Judiciary has to step in because sometimes the legislatures and the executives are not able perform their duties, to maintain the order judiciary’s interference is necessary.

The Supreme Court observed in the Golak Nath case- The constitution creates Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them[7]

The idea of negative liberty, as absence of interference, is set against the idea of positive liberty, according to a dialectic contraposition between liberty from and liberty of. This antithesis can be synthesized in the logical difference between the absence of restrictions to individual actions and decisions (negative liberty) and the individual claim to be owner of oneself destiny (positive liberty).[8]

There is a big conceptual distance between the social rights and traditional liberties of the Liberal State. Social rights are not a claim for a legal empty space. On the contrary, they consist of a request for action by public authorities, which is aimed at ensuring the reality of those same chances in life guaranteed by civil liberties.[9]

On a theory of liberty as non-interference, such as Bentham adopted and popularized, it is inevitable that law will detract from the liberty of citizens; it will interfere with them in coercing them to do or not to do certain things, in imposing levies and taxes, and in applying sanctions to offenders. Benefits it creates by these means may compensate for the fact that it itself represents a form of interference but they cannot cancel it out. On a theory of liberty as non-domination, however, there is a possibility that law may not assume this hostile profile.

Law may help to secure for people the sort of protection that establishes them as free persons or citizens. And in doing this it may not detract from their freedom of choice. It will interfere and restrict people’s freedom of choice, of course-most dramatically in the case of imprisonment. But it may do this without imposing an alien will; it may restrict choice on a controlled and non-arbitrary basis, and may not represent a form of domination.[10]

Individuals in a state is entitled to make choices where these choices presuppose responsibility and fosters it; if a man is unable to choose because of any restraint he is in, to that extent, dehumanized. The choice not to choose at all but to pass that choice to an irre­sponsible collective public is a choice, per se, and the burden for the conse­quences of the allocation by the collective must rest, upon the ultimate choice-maker, the individual who refused or refrained from choosing.[11]

In the contemporary world liberty is important for individuals but this freedom is subjective, i.e., freedom of a person has no limits which means he can do anything he wants and these actions maybe negative for the society. Here comes the role of law, the restrictions which are reasonable and justified to bring in liberty in positive form which is more important for the state than absolute liberty.

Liberty is protected by law in three ways. First of all, law provides congenial atmosphere for the smooth running of civilized life in society. Law punishes the criminals and defends the rights of the individuals. Secondly, laws guarantee the enjoyment of individual rights and duties and protect them. The state punishes the individual who causes harm to others and hinders the path of others. Thirdly, constitution is the custodian of liberty. It is only the constitution that confines the authority of the state and protects the fundamental rights of the people.[12]


  1. Queiroz, R. Individual liberty and the importance of the concept of the people. Palgrave Communications, Article number: 99 (2018).
  2. Law, Liberties, and their Relationships: The Development of a Controversial Issue from the U.S. Bill of Rights to the EU Charter of Fundamental Rights, Edmondo Mostacci, published in 2015.
  3. Rohini Dasgupta, Notes on the Relation of Liberty with Law, Preserve Articles.
  4. Ibid.
  6. Vishaka & Ors. v. State of Rajasthan & Ors. AIR 1997 SC 3011.
  7. L. C. Golak Nath & Ors. v. State of Punjab & Anr., AIR 1967 SC 1643.
  8. Isaiah Berlin, Two Concepts of Liberty (1958).
  9. Edmondo Mostacci, Law, Liberties, and their Relationships: The Development of a Controversial Issue from the U.S. Bill of Rights to the EU Charter of Fundamental Rights.
  10. LAW AND LIBERTY, Philip Pettit.
  11. Ridgway K. Foley Jr., INDIVIDUAL LIBERTY AND THE RULE OF LAW, Foundation for Economic Education.
  12. Relationship between Liberty, Sovereignty (Authority) and Law,

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