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. 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.
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.
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.
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: 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. 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.
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-
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
The idea of negative liberty, as absence of interference, is set against the
idea of positive liberty, according to a dialectic contraposition between
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).
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.
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.
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.
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 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.
- Queiroz, R. Individual liberty and the importance of the concept of the
people. Palgrave Communications, Article number: 99 (2018).
- 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.
- Rohini Dasgupta, Notes on the Relation of Liberty with Law, Preserve
- Abhinav Mishra, LAW AND LIBERTY: A TUG OF WAR, INDIAN JOURNAL OF LAW &
LIBERTY VOLUME 1 ISSUE 1 (2015).
- Vishaka & Ors. v. State of Rajasthan & Ors. AIR 1997 SC 3011.
- L. C. Golak Nath & Ors. v. State of Punjab & Anr., AIR 1967 SC 1643.
- Isaiah Berlin, Two Concepts of Liberty (1958).
- 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.
- LAW AND LIBERTY, Philip Pettit.
- Ridgway K. Foley Jr., INDIVIDUAL LIBERTY AND THE RULE OF LAW, Foundation
for Economic Education.
- Relationship between Liberty, Sovereignty (Authority) and Law, http://www.politicalsciencenotes.com/articles/relationship-between-liberty-sovereignty-authority-and-law/