Pages

Thursday, June 26, 2014

Liberty Versus Freedom: A Differential Approach


Introduction

At the outset, let it be clear that the sole aim of the author in this post is to provide an understanding of ‘liberty’ and ‘freedom’. Do not be misguided by the title of the post. The author has no intention of diving freedom and liberty into two water-tight compartments. The author is only trying to present the difference between liberty and freedom as has been mentioned in various law dictionaries and judgments. Whether in fact such difference exists or not is a question left open to the readers.

Let us start by understanding the definition of Liberty.

Black’s Law Dictionary defines ‘Liberty’ as:

1. Freedom from arbitrary or undue external restraint.
2. A right, privilege, or immunity enjoyed by prescription or by grant; the absence of a legal duty imposed on a person.

In Meyer v. Nebraska[1], the court said that:

“Liberty denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God, according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Glanville Williams said that “the sphere my legal liberty is that sphere of activity within which the law is content to leave me alone”.

Positive Liberty and Negative Liberty

Negative liberty is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting — or the fact of acting — in such a way as to take control of one's life and realize one's fundamental purposes[2].

Let us now talk a bit about ‘Freedom’. Black’s Law Dictionary defines Freedom as the state of being free or liberated.

There are various characterizations of freedom such as Freedom of Assembly, Freedom of Association, Freedom of Choice, Freedom of Contract, Freedom of Expression, Freedom of Information, Freedom of Speech, Freedom of the Press etc.

Freedom has also been defined as relationship free of oppression and coercion or the absence of disabling conditions for an individual and the fulfilment of enabling conditions.

Freedom and Liberty under Article 19 and Article 21

In the Constitution of India, Right to Freedom has been guaranteed under Article 19 and Right to Life and Liberty has been guaranteed under Article 21. These Fundamental Rights along with the others are also known as Negative Rights. Negative because these rights cast a negative duty upon the state not to infringe or violate these rights.

It is interesting to note that Article 19 contains enumerated rights. It is a different matter that a lot of other rights have been read into Right to Freedom by our Courts. Nevertheless, the Article 19 contains a list of six rights[3] only. On the other hand, there is no such enumeration under Article 21. The wordings of article 21 are as broad as possible.

Article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

Neither freedom nor liberty has been defined under Article 19 and Article 21. However, freedom derives it color from the subsequent words used with it such as ‘of speech and expression’, ‘practice any profession or trade’, ‘move freely’ etc. Thus, by applying the legal maxim, Ejusdem Generis, the general word ‘freedom’ under article 19 derives its texture from the particular words used with it whereas under article 21, there are no such particular words used. The only particular word used is ‘personal’ before liberty. Thus, anything that could be covered under ‘personal liberty’ would form the subject-matter of Article 21.

Also, personal liberty refers to the liberty that is available with an individual. Article 21 cannot be invoked to grant liberty to fictitious persons such as a company or an association. On the other hand, freedom to form associations and unions connotes that article 19 protects the existence of some fictitious persons such as associations and unions.

Our Constitution did not differentiate between freedom and liberty on a jurisprudential basis. These rights usually go hand in hand. The courts do not hesitate to read article 21 with article 19. Thus in the Indian context, the difference between ‘freedom’ and ‘liberty’ is quite slim. Even otherwise, liberty and freedom are often referred to as two sides of the same coin and sometimes used interchangeably as well.

In the end, I would like to quote Morris R. Cohen who rightly believed that:

“The word liberty has become a symbol around which have clung some of the most generous human emotions. We have been brought up to thrill with admiration at the men who say, Give me liberty or give me death. But the philosopher asks whether all those who are devoted to liberty mean the same thing. Does liberty or freedom, for instance, involve free trade? Does it involve freedom to preach race hatred or the overthrow of all that we regard as sacred? Many who believe in liberty characterize the freedom which they are not willing to grant, as license, and they do it so often that one may be inclined to think that what we really need is less liberty and more license. Moreover, there is a confusion between the absence of legal restraint and the presence of real freedom as positive power to do what we want. The legal freedom to earn a million dollars is not worth a cent to one who has no real opportunity. It is fashionable to assert that men want freedom above all other things, but a strong case may be made out for the direct contrary. Absolute freedom is just what people do not want.




[1] 262 U.S. 390, 399.
[2] http://plato.stanford.edu/entries/liberty-positive-negative/
[3] Freedom of Speech and Expression, Right to Assemble Peacefully and without Arms, Right to form Associations or Unions, Right to move freely throughout the territory of India, Right to reside and settle in any part of India, Right to practice any profession or trade.

No comments:

Post a Comment