Do Laws Increase or Diminish Our Freedom - Essay Example

Do Laws increase or diminish our freedom? Introduction: laws are an integral part of our society. It is important to have a set of laws and for everymember of the society to follow them. The legal system in a country provides a framework for individuals to achieve their goals. However there has always been a sense of dissatisfaction towards the legal system because it is considered by many that Laws limit a man’s activities by imposing certain restrictions on him. This essay shall try to answer the question as to whether Laws diminish our freedom or increase it. Every government supports and enforces a code of morality and that is the reason for its very existence. Enforcement of laws includes imposing a series of penalties upon those that disobey the law. The penalties usually deprive the citizen of his wealth, his liberty or his life. The severity of the punishment depends on the crime committed. According to accepted norms of humanity and justice only people who commit acts of evil should be punished and so anyone who awards similar punishment to those who are innocent or with some other vested interest in mind finds himself in conflict with law. (Andersen, 1995) The diversity and conflicts of interests among men makes it very difficult to pass a set of laws that will be accepted by everybody. There is also a possibility that a man can change his interests over a period of time. However the only need that remains constant is a man’s need for freedom. Even though individual goals may be different, the desire to have the freedom to achieve a goal can be seen in every human being. There are four elements to a person’s freedom-life, liberty, property and knowledge. ‘As long as a government restricts itself to the function of protecting the elements of freedom and as long as it apportions the taxes and other essential duties equitably, no one can justly complain about its duties’ (Andersen, 1995) history has taught mankind that the violation of another person’s rights should not go unpunished as it can deprive him of his freedom. The relationship between freedom and law is perceived in two different ways. ‘The free market liberal regards freedom as a natural fact- perhaps definitive of the human nature- that the law protects and, where possible, enables those positioned to take advantage of their freedom. In contrast, the social-welfare liberal treats freedom as itself one among many legal constructions that enable humanity to flourish, but just as long as freedom extends to everyone equally’. (Stone, 2007) There can never be an agreement on the number of freedoms that an individual must possess as it differs from person to person, but they can be grouped under the name of ‘civil liberties’. Civil liberty refers to the relationship that an individual has with the government of the country where they live. ‘the concept defines those areas of behaviour in relation to which the state has no right to interfere with a citizen’s freedom or can do so on the basis of very strong justification’ (Stone, 2007). Many concepts in ‘civil liberty’ are similar to that of ‘human rights’. How much restrictions can be placed on civil liberty and on what grounds is a cause for much debate however civil liberty can be restricted on grounds of national security, protection of morality and for protecting the rights of other individuals. Governments may wish to maintain secrecy of operation in the name of national security. Religious groups may protest against sexually explicit movies or books that offend religious sentiments on the grounds or protection of morality. Individuals of the society can also fight for their rights to privacy or defamation. It must be observed that even in the above examples; it can be seem how the excuses of national security, protection of morality and individual rights in a way intrude upon other liberties. For instance when the government refuses to give out details about its operation it denies the public the right to information. When a religious group does not allow screening of a movie it denies the creator of the movie the freedom of expression. ‘The prime civil libertarian argument against restriction tends to be that the answer to bad speech should be good speech; suppression of speech does not in the end lead to a healthy society’ (Stone, 2007) Another area where public freedom is curtailed is in the event of a law and order issue. The day to day operation of the police department includes tasks that prevent and detect crime. The question here is ‘to what extent can a state justifiably limit the freedoms of an individual, not convicted of an offence, in the interest of furthering these objectives? When can they search a person or her property without her consent?’ It is understood that some level of limitation of personal freedom is acceptable under such circumstances. Despite this the police are allowed to go that far provided they have ‘reasonable suspicion’ or ‘reasonable cause’ for a search or an arrest. (Stone, 2007) The United States has the Bill of Rights that is suppose to protect the rights of the American citizen and establishes the liberties that the government cannot violate. In 1886 in the case of Boyd vs. United States, the judge had referred to the Fourth and Fifth Amendments in the US Bill of Rights “breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation…. (of those Amendments)’. (Findlaw.com, n.d) The 1961 case of Mapp vs. Ohio resulted in a landmark judgement. The police in their search for a bomb suspect made a forced entry into the home of Dolly Mapp at Cleveland and arrested her for the possession of obscene materials. After she was convicted by the state Dolly appealed to the US Supreme Court that under the Fourth amendment her rights had been violated. As a result the court reversed her conviction and ruled that the evidence was inadmissible as it had been obtained by violating the fourth amendment which does not allow unreasonable searches and seizures. (Justia.com, n.d) Even though it was accepted by the judge that this might let some criminals go free, the more important requirement was to make the police follow the laws. The court had ruled that ‘nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence’ (Cohen, 2009) In the United Kingdom, the police are required to use strong statutory powers and exclusion is considered only if there is a deliberate misuse of power. There is no Bill of Rights here like what is found in the United States; instead the constitution of the United Kingdom which is composed of the jurisdictions for England and Wales, Scotland and Northern Ireland is a set of court decisions, statutes and parliamentary conventions. The Magna Carta merely mentions the relationship between the king and the church and the barons. However there is one clause in the Magna Carta that states that ‘no free man shall be seized or imprisoned, or stripped of any of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we (the crown) proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.’ This clause does have a resemblance to the modern concept of civil liberty. But since there was no specific bill of rights, courts had a difficult time ruling in favour of civil liberties and had to interpret the laws in such a way that they could safeguard the individual’s freedom. However the human rights act passed in 1998 by the House of Lords which came into force in October 2000 has made sure that legislation against civil liberty can be challenged in a way that was not possible under the constitution of the United Kingdom. (Stone, 2007) The events of September 11 and the paranoia on the part of security agencies that followed have posed challenges to civil liberty. The technological developments of the 21st century have also been creating issues. It is easy to invade one’s privacy using technology like the internet and close circuit television. Anonymity is very difficult to achieve primarily because it is easy to track a person and find out his whereabouts by monitoring phone calls, tracing credit card payments etc. The attacks on the world trade centre and the London bombings have increased the importance for national security issues. Governments now argue that individual liberty has to be sacrificed for the greater good. Before 9/11 the Foreign Intelligence Surveillance Act (FISA) regulated the process of information collection and surveillance in the US. After the attacks the Bush administration decided that a NSA program would be launched that would operate outside the regulations of the FISA and conduct surveillance and collect information. There were a lot of debates and ‘much of the discussion remains stuck on whether or not the NSA program violates the law, and the prospect of partisan fighting threatens hope of acquiring a genuine understanding of what surveillance is necessary for national security and acceptable to Americans’ (Keiber, n.d)) The provisions of the US patriot Act that was passed in October 2001, also created concern among citizens. The Act strengthened the government’s capability to fight terrorism. Wire tapping of people suspected to have links with terrorists, arrest of suspects without filing charges, detention of suspects was allowed under the act. Even the conversations among the suspect and his attorney could be wiretapped. In short the US government had the authority to incarcerate anyone if it was a suspect without even divulging the reasons for suspicion. (Civil Liberties, 2005) Various thinkers and philosophers have propounded their theories about law and its influence on freedom. John Locke in his Second Treatise of Government has opined that ‘ no person can lay claim to a natural privilege of sovereignty which supposedly entitles him or her to rule others without their consent, neither can a government lay claim to special rights that no individual could possess’. ‘According to the English philosopher T.H Green as citizens one of our main intentions must be to attain freedom but he opines that freedom is not merely being able to do what one wants. ‘We do not mean merely freedom from restraint or compulsion. We do not mean a freedom that can be enjoyed by one man or one set of men at the cost of a loss of freedom to others’ (Machan, 2008). Edmund burke opines that ‘liberty is that state of things in which liberty is secured by the equality of restraint’. ‘Restraint’ in this case could refer to the legal system. Immanuel Kant defined freedom as ‘independence from the constraint of another’s will’ but also opined that an individual’s freedom must be ‘compatible with the freedom of everyone else in accordance with a universal law’. According to Herbert Spencer, ‘every man has freedom to do all he wills, provided he infringes not the equal freedom of any other man. The freedom of each must be bounded by the similar freedom of all’ (Smith, 2008) Conclusion: it is a fact that a person’s freedom is as valuable to him as his existence itself. Only with his freedom can he attain the goals that he sets for himself. Legal systems were established in order to safeguard an individual’s freedom. Adherence to law must not be seen as freedom being curtailed. Instead it must be understood that the law has been established to act as invisible armour that protects every citizen. By not allowing a person to steal, the law is curtailing his freedom, but on the other hand it is also ensuring that another person’s assets are being safeguarded. However due to terrorist threats and the paranoia surrounding people belonging to certain communities, governments sometimes bend the law and under the pretext of national security, commit acts of questionable legality with respect to an individual’s liberty. It is up to the elected representatives of a country to make sure that such legislations are not passed and to reinforce the belief that a citizen has in the constitution of a country. References: Andersen, Verlan H, The moral basis of a free society,1995, Sunrise Publishing, http://www.ldsfreedomportal.net/moralbasis.pdf, Viewed 23 April 2010 Civil Liberties." Encyclopedia of United States National Security. 2005. SAGE Publications. Viewed 25 April 2010 Cohen, Adam, Is the Supreme Court about to kill off the exclusionary rule, New York Times http://www.nytimes.com/2009/02/16/opinion/16mon4.html?_r=1 Viewed 23 April 2010 FindLaw.com, US Supreme Court (Mapp v. Ohio) ,http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=367&invol=643, viewed 24 April 2010. Fuller, Steve William. "Positivism and Legal Science." Encyclopedia of Law & Society: American and Global Perspectives. 2007. SAGE Publications. .Viewed 24 April 210. Justia.com, Mapp V. Ohio, 367 U. S. 643 (1961), http://supreme.justia.com/us/367/643/case.html viewed 25 April 2010. Keiber, Jason, National Security and Civil Liberties, Center for strategic and international studies, http://csis.org/files/media/csis/pubs/060210_sr_v2n3.pdf, Viewed 24 April 2010. Machan, Tibor. "Positive Liberty." The Encyclopedia of Libertarianism. 2008. SAGE Publications. Viewed 25 April 2010 Smith, George H. "Equality." The Encyclopedia of Libertarianism. 2008. SAGE Publications. 25 Apr. 2010. . Stone, Richard. "Civil Liberties." Encyclopedia of Law & Society: American and Global Perspectives. 2007. SAGE Publications. 25 Apr. 2010. . Read More