recent findings of the relationship between the rule of law, freedom, and economic development for purposes of applying the foregoing discussion to developing. This Article examines this complex relationship between law and liberty. The nature of the relationship depends on how one conceives of law and the rule of law. I disagree with the idea that freedom is obedience to the laws of nature. to be an eternal law binding him all the time, where is the difference between him and .
Second, he argued, legal theory must be isolated from psychological, sociological, and ethical matters. Third, purity of method permits the analyst to see that every legal system is in essence a hierarchy of norms in which every proposition is dependent for its validity on another proposition.
The justification for describing any particular rule as law thus depends on whether there is some other proposition standing behind it, imparting to it the quality of law. The basic norm derives its validity from the fact that it has been accepted by some sufficient minimum number of people in the community.
The constitution of modern democracies is the closest concept to the Grundnorm described by Kelsen. It is the absence of constraints and not merely the absence of restraints. As with Law, Liberty too has been perceived to be different by different philosophers and political scientists. It was a very selfish and unrealistic conceptualisation of liberty. While the view of collectivists and idealists was that liberty lies in the obedience to the laws of the state.
Green describes it as a power to do or enjoy something that is worth doing or enjoying in common with others. Many thinkers class liberty as negative and positive liberty.
Discussions about positive and negative liberty normally take place within the context of political and social philosophy. A concept of positive liberty may also include freedom from internal constraints. It seems to require the presence of something i. Negative liberty is primarily concerned with the possession of sociological agency. It is the freedom from external restraint. He does not merely take liberty as synonymous with the end of exploitation of man; he also integrates it with the glorious human values possible only in the stateless era of social development.
The extreme views of the Idealists, Individualists and Marxists led to a more neutral view that 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. The two are not at odds with one other; rather, they complement one another. True liberty only comes as a result of established law, and the only established law that exists is the law established by the one and only Law-giver.
But in reality, it is law that guarantees freedom and liberty to individuals. The Indian Constitution provides to its citizen Liberty through Article 21, and a varied types of freedoms including speech and expression, movement, assembly, profession etc. The constitution of the United States of America in a series of Amendments provided to its citizens freedom of press, speech, association, assemble etc.
Thus in most constitutional democracies and monarchies freedoms and liberties are guaranteed in the constitution. The judiciary is the watchdog of these constitutions and applies the law to protect and liberty of the people.
This liberty is a combination of positive and negative liberty; it not only lets the individual develop and fulfil their potential but also protects them from interference of external agents. The relationship between them can be studied in the context of a particular form of government. If in a dictatorial form of government law is the command of the dictator and does not reflect the public opinion, in a democratic system it is an essential condition for the full enjoyment of individual liberty.
Since the days of the Sophists to the exponents of Laissez Faire theory, enactment of law was treated as a curtailment over individual liberty. The anarchists pleaded for the abolition of the state for the sake of complete freedom of the individual. Thus, the relationship between law and liberty is dependent on the political system in which they operate.
Where there are no laws to protect or provide freedom and liberty, violations of the same take place. Where the law and law makers do not support liberty then its existence gets endangered. Take the example of the Tiananmen Square Massacre of in China, on June 4th, a non-violent peaceful popular student led demonstration in Tiananmen Square regarding the corrupt government, poor economic conditions and freedom of press. This protest was brutally crushed by the political leaders with the help of their army; the army had opened fire on protestors, used Armoured Personnel Carriers to run over tents and rammed buses.
The death toll was never ascertained reports varied from close to civilians quoted by Amnesty International to leaked by defectors from the army. Thus in a country where the liberty to assemble and protest was not guaranteed by the Law, such massive violations occurred. On the other hand, In the Ramlila Maidan Incident [ii] in India, the Supreme Court of India, held the authorities liable for assaulting a sleeping crowd of protestors, who along with Baba Ramdev, a yoga guru had assembled at Ramlila Maidan in New Delhi for a yoga camp and protest the increasing corruption in governance.
Thus it is true that law supports liberty, and does not necessarily harm it. The landmark judgement of Maneka Gandhi v.
Law and Liberty
Here again it was the law that upheld liberty of a citizen of Europe. In a number of cases in the United States of America, courts in various states of the nation upheld the liberty of individuals by removing the barriers to same-sex marriages in their respective states. The November 18,decision was the first by a U. Perry [vi] is a United States Supreme Court decision that held that in line with prior precedent, the official sponsors of Proposition 8, a California ballot initiative prohibiting same-sex marriage, did not have Article III standing to appeal an adverse federal court ruling when the state refused to do so.
It also held at district court rather than Supreme Court that the attempt to forbid recognition of same-sex marriage in California by way of an amendment to the State Constitution after it had been previously permitted, had been unconstitutional. And again in United States v. Some philosophers like John Locke opine that law creates a condition, a congenial atmosphere for the enjoyment of liberty. But the contrary view is held by a galaxy philosophers and eminent scholars like Hobbes, Spencer, and Prof.
Anarchist philosophers like Proudhon, Goodnow, Bacunm, Kropotkin etc.
If there is to be an eternal law binding him all the time, where is the difference between him and a blade of grass? We do not believe in that abstract idea of law. We say that it is freedom that we are to seek, and that that freedom is God. It is the same happiness as in everything else; but when man seeks it in something which is finite, he gets only a spark of it.
The thief when he steals gets the same happiness as the man who finds it in God; but the thief gets only a little spark with a mass of misery.
The real happiness is God.
Love is God, freedom is God; and everything that is bondage is not God. Man has freedom already, but he will have to discover it. He has it, but every moment forgets it. That discovering, consciously or unconsciously, is the whole life of every one. But the difference between the sage and the ignorant man is that one does it consciously and the other unconsciously. Every one is struggling for freedom — from the atom to the star.
The ignorant man is satisfied if he can get freedom within a certain limit — if he can get rid of the bondage of hunger or of being thirsty. But that sage feels that there is a stronger bondage which has to be thrown off. He would not consider the freedom of the Red Indian as freedom at all. According to our philosophers, freedom is the goal. Knowledge cannot be the goal, because knowledge is a compound. It is a compound of power and freedom, and it is freedom alone that is desirable.
That is what men struggle after. Simply the possession of power would not be knowledge. For instance, a scientist can send an electric shock to a distance of some miles; but nature can send it to an unlimited distance.
Why do we not build statues to nature then? It is not law that we want but ability to break law. We want to be outlaws. If you are bound by laws, you will be a lump of clay. Whether you are beyond law or not is not the question; but the thought that we are beyond law — upon that is based the whole history of humanity. For instance, a man lives in a forest, and never has had any education or knowledge.
He sees a stone falling down — a natural phenomenon happening — and he thinks it is freedom.
He thinks it has a soul, and the central idea in that is freedom. But as soon as he knows that it must fall, he calls it nature — dead, mechanical action. I may or may not go into the street.
In that is my glory as a man. If I am sure that I must go there, I give myself up and become a machine. Nature with its infinite power is only a machine; freedom alone constitutes sentient life.
The Vedanta says that the idea of the man in the forest is the right one; his glimpse is right, but the explanation is wrong. He holds to this nature as freedom and not as governed by law. Only after all this human experience we will come back to think the same, but in a more philosophical sense. For instance, I want to go out into the street. I get the impulse of my will, and then I stop; and in the time that intervenes between the will and going into the street, I am working uniformly.
Uniformity of action is what we call law. This uniformity of my actions, I find, is broken into very short periods, and so I do not call my actions under law. I work through freedom.
I walk for five minutes; but before those five minutes of walking, which are uniform, there was the action of the will, which gave the impulse to walk. Therefore man says he is free, because all his actions can be cut up into small periods; and although there is sameness in the small periods, beyond the period there is not the same sameness. In this perception of non-uniformity is the idea of freedom. In nature we see only very large periods of uniformity; but the beginning and end must be free impulses.
The impulse of freedom was given just at the beginning, and that has rolled on; but this, compared with our periods, is much longer.
Law and freedom
We find by analysis on philosophic grounds that we are not free. But there will remain this factor, this consciousness that I am free. What we have to explain is, how that comes. We will find that we have these two impulsions in us. Our reason tells us that all our actions are caused, and at the same time, with every impulse we are asserting our freedom. The solution of the Vedanta is that there is freedom inside — that the soul is really free — but that that soul's actions are percolating through body and mind, which are not free.
As soon as we react, we become slaves. A man blames me, and I immediately react in the form of anger. A little vibration which he created made me a slave.