Thomas Hobbes: Freedom and the Law - Essay Example

Thomas Hobbes: Freedom and the Law Module Module Number: Academic Year: Seminar Essay Question: Definition of Freedom; whether thelaw restricts freedom Student Name/ Number: Freedom and the Law Freedom refers to the liberty of the person with concern for others. Freedom begins with a doctrine of self-control. In a liberal society, all individuals have uniform legal ownership of themselves and property. As such, freedom is a concept of equal political autonomy. A liberal society is one where there is equal enjoyment of fundamental freedoms and in which every citizen has maximum legal rights. Owing to the essence of political equality in freedom, liberty can only rationally encompass as much rights under the law as in keeping with the rights of others. This paper examines whether Thomas Hobbes’ philosophy of freedom is well taken care of under current laws. Hobbes posited that human beings are free when their actions are not under the limitation from any other party. In a liberal world, for example, Hobbes would argue that one’s enjoyment of freedom does not encompass the right to subject another person to slavery1. In addition, freedom falls short of the legal right to hit people where there is no need for self-defence. Essentially, a free individual has the wide latitude under the law to engage in whatever he or she so wishes provided that those activities do not offensively hurt or force other individuals against their own freedoms. Freedom apparently cannot encompass the legitimate right to infringe other peoples liberty because that would not only be unfair but illogical2. As Hobbes has indicated, freedom does encompass the legal right to defend oneself from offenders who try to harm or thrust their own will upon the liberal person. In some way, freedom might be real in political lenses, but socially unfavourable, for an individual to enjoy legal protection to inflict aggressive harm on other people if nobody enjoyed the freedom to not be harmed in such manner. It is the ensuing complications as to the enjoyment of freedoms that the law sets in to guarantee the maximum level of liberties which an individual should enjoy in an environment where coexistence is imperative3. In light of this, as Hobbes has said, laws do not necessarily limit freedoms; rather, they enforce a sense of self-control among the citizenry in order to ensure that every person enjoys the maximum freedom possible without behaving in a manner that would be detrimental to others4. In the United Kingdom, The Human Rights Act (HRA) 1998 is the main body of law which seeks to provide maximum freedoms to the UK citizens. The statute also seeks to safeguard the legal interests of all stakeholders in the society. The HRA envisages Hobbes’ fundamental freedoms including freedoms of expression, belief, thought and religion, and association. In addition to European Union Directives, and Common Law, UK’s and EU citizens are guaranteed adequate freedoms. Basically, the EU Directives 2004/38/EC allowing freedom of movement seeks to guarantee UK citizens the fundamental liberties. The following part of the paper examines how freedom of speech, freedom religion and belief, and freedom of association and assembly are affected by law5. According to Article 10 of HRA, freedom of speech entitles every person to their own opinions and curtails the government power in this respect. Expression of free speech can be achieved by publishing books, articles or leaflets; airing of messages on television and radio or online environment; or by creating pieces of art. In light of freedom of expression, journalists and other media personalities have the right to express their thoughts and inform the public about what is going on in their environment6. By virtue of free speech, the media can criticize the government without fear of reprisal and help in building stronger democratic institutions. Nonetheless, by imposing ‘restrictions’ in the airing of such information, the law seeks to create a sense of responsibility in reporting and preserve the private lives of those in question from abuse7. In light of this, mature democracies only ‘limit’ individual citizens’ rights to free speech when they have proof that their response is backed by law, and is important and ‘reasonable.’ Some of the conditions that may warrant such state actions include: safeguarding national security, sovereignty and public security; preventing chaos or crime; safeguarding morals and health or the freedoms and image of those involved8. As Hobbes has said, such acts are also reasonable where there is need to prevent confidential information from reaching the public or where there is need retain the influence, image and neutrality of the courts9. In addition, Hobbes argues it may be lawful to protect the freedom of others if one’s enjoyment of free speech turns out to be causing “internal pains” to others, cultivating racial and or religious hate. However, restricting this freedom requires that the relevant state agency to prove that the limitation of this freedom is ‘proportionate’ and the best option possible to the prevailing conditions. This fundamental freedom has caught the attention of the courts. In the case of Observer and The Guardian v United Kingdom [1991] ECHR 49, the defendants, newspaper firms published some book extracts from “Spy Catcher” by Peter Wright, which contained claims that MI5 had carried out illegal operations. The government’s pleas to restrict the freedom of expression on the issue through a court injunction succeeded pending the determination of a violation of confidence case. Subsequently the serialization of the book continued elsewhere and then in the United Kingdom. The Guardian argued that the injunction restricted its freedom of expression as captured under Article 10 of HRA. And in its response, the European Court of Human Rights (ECtHR) held that despite the injunction being legal, as it sought to protect national security, the publication of the book voided the reason for continuing to limit the dissemination of the information under the ban. As Hobbes has said, the court decision has since served to expand media freedom in the country. The Human Rights Act under Article 9 safeguards individual freedoms to develop and have one’s own unique thoughts, beliefs and join whichever religion one is willing to10. The freedom of religion encompasses the right to alter one’s religion, thoughts or beliefs whenever an individual may like. The enjoyment of the freedom involves the ability to implement the beliefs. For example, government agencies cannot hinder religious practice in whichever way they may like without adequate reasons to prove their case. As Hobbes would argue, this freedom safeguards a number of spiritual beliefs including atheism, veganism, agnosticism and pacifism11. In enforcing this fundamental freedom over perceived logical restrictions, the ECtHR has established that an individual cannot be coerced to subscribe to beliefs associated with a certain religious philosophy. This implies, for example, that the government should observe reasonable care when creating oaths that people must swear on when they are taking certain offices. A duty to swear on religious materials such as the Quran or Bible would be in violation of freedom of religion, especially for those who do not subscribe to Islam and Christianity. In light of this, Hobbes argues that public agencies are under the obligation to create ‘impartial’ oaths that have no connotations of religion, belief or thoughts, which may cause internal pains among non-believers. In light of these freedoms, Hobbes says the presence of some restrictions on the issue when it comes to the application of the law only serves bring sanity in the enjoyment of the rights and not to curtail the fundamental freedoms. In a number of situations, public agencies may limit citizen’s rights when the situation can only be proportionate to safeguarding public health, civil order or morals and the freedoms of other members of the society. To emphasize the enjoyment of this freedom, Hobbes argues that a ‘proportionate’ government intervention to a problematic situation that places others in a disadvantaged position can only be justified when restoring sanity is more than necessary. In addition, this freedom has an unusual importance under the HRA because it applies in every aspect and setting of the society. As Hobbes has indicated, Section 13 of the statute requires the courts, tribunals or juries charged with the responsibility of deliberating on cases, which may tamper with the maximum enjoyment of this right by an individual or a religious body, to show utmost concern to the fundamental right. In light of this, various examples of case law have worked to expand the enjoyment of this right by the citizenry. In the case of R (Begum) v Governors of Denbigh High School [2006] UKHL 15, a young, Muslim female student was barred from attending classes because she was objected to putting on the “shalwar kameeze” uniform recommended by the school in favour of a simpler jilbab. The plaintiff argued that the school restrictions violated her freedoms under Article 9 to express her religion. In its decision, the House of Lords established that the school did not breach her right to freedom to religious manifestation because she had the option to join other learning facilities in her neighbourhood with no restrictions on the wearing of the jilbab. In addition, the court established that the school demonstrated its willingness to respond to the religious beliefs and manifestation of the Muslim community by creating a simpler universal policy. In these situations, the court argued that it would be unfair to interfere in the running of the learning centre, since the school was in a better position to handle the issue. In another case of Arrowsmith v. United Kingdom [1978] 19 DR 5, the claimant alleged a breach of her freedom of belief as enshrined under Article 9. She was a pacifist whose attempt to urge security agents not to deploy in Northern Ireland became the core issue in the case12. Whilst the claimant could show her inclination to pacifism, she lacked adequate evidence to substantiate that her handing out of leaflets to soldiers dissuading them from going to Northern Ireland constituted a lawful practice of her beliefs. In its decision, the court noted that that Article 9 of the ECHR took care of the claimant’s beliefs and the claimant’s beliefs, but her act of issuing leaflets was not part of the religious practice13. Instead, the acts were motivated by her political objections to the government policy of deploying soldiers in the region. The ruling meant that the circumstances surrounding the behaviour of the applicant were not exceptional and she did not have the wide latitude in law to disseminate the leaflets14. Therefore, the distribution of the leaflets failed the religious manifestation test as indicated under Article 9. In light of this, it is thinkable that if Pacifism had included the dissemination of leaflets in its practice, the claimant would have been allowed to enjoy the freedom of belief, but because her actions were influenced by other factors other than religious belief, she lost the case. Yet, in protecting beliefs as Hobbes has envisioned, the recent case of Grainger Plc. & others v Nicholson [2010] concerning unfair dismissal claims was based on whether Mr Nicholson’s ecologist perceptions and belief in global warming constituted a belief under the Employment Equality (Religion or Belief) Regulations 2003.  In delivering the ruling, the Employment Appeal Tribunal (EAT) set the tests for a valid belief as follows: the view may be exclusive to, but must be sincerely held by the advocate; the view must be more serious than a mere opinion; the view must be based on a serious aspect of humanity and behaviour; the view must draw some parallels to religious belief in terms of cogency, seriousness, consistency and significance, and; it must attract high level of respect in a democracy, be in keeping with human dignity and the basic rights of all people in the society15. In its ruling that the plaintiff’s freedoms of belief had been illegally curtailed by the employer, the EAT welcomed also the court’s protection of political and scientific beliefs under the 2003 statute (now under the Equality Act 2010).  As Hobbes had indicated, the tribunal reasoned that whereas voicing support for a political movement might not constitute political belief, a belief in a certain political ideology would. As such if Creationism in Christianity constituted belief, then the scientific Darwinism also should. Article 11 of HRA provides every citizen with the freedom to hold meetings, protests and demonstrations as a group. The law then sets in to control such behaviour in a manner that is aimed at protecting the interest of others from the potential of violence in a group and not in a restrictive way16. As posited by Hobbes, under the statutory provision, an individual has the right to establish and enlist in a workers’ union, a political movement or party or any other organization. In spite of these freedoms, nobody is allowed by law to coerce an individual to join a demonstration, workers’ union, political organization or related associations17. Nonetheless, as Hobbes has indicated, the law ensures maximum enjoyment of these rights in a fair manner by guaranteeing some kind of universality in the process18. Occasionally, government may lawfully seek to limit individual citizen’s freedom of assembly and association when such imitations are extremely necessary to safeguard national security, prevent lawlessness and crime, and protect public health and morals or others from being disadvantaged by the enjoyment of the rights19. In the case of Richardson & Anor v Director of Public Prosecutions [2014] UKSC 8, the defendants were accused of abusing their freedom of association and assembly by attempting to disrupt the operations of a retailer in Covent Garden which deals in goods made in an Israeli-controlled region in Palestine. The two were charged with aggravated encroachment under section 68 of the Criminal Justice and Public Order Act 1994 after being arrested while staging protests in the outlet. The statutory provision criminalizes trespass on a piece of land that is lawfully inhabited and used. The defendants claimed that the shop owners were engaging in criminal acts of facilitating the relocation of Israeli nationals to the West Bank. They also claimed that the shop’s labelling of the goods produced in the facility as made in Israel was illegal since the region was occupied in violation of Article 49 of Fourth Geneva Convention 1949. But in its ruling, the Court affirmed Hobbes’ concept of maximum freedom by holding that the retailer’s business activities were too remote from the alleged criminal activities to warrant the accused’s claimed freedoms20. Conclusion Freedom generally involves the liberty to have control of one’s body and beliefs. The law provides for the maximum enjoyment of rights and freedoms as long as such activities do not interfere in the affairs or lives of others. In light of this, the law seeks to protect national interest and other vulnerable groups from harm that would be visited on them by those who may want to ‘exceed’ their acceptable level of enjoyment of freedom. Apart from protecting national security, public safety and health, crime, order and morals the law does not restrict freedom. 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