NAME: NGCEBO SIZWE MAMBA

ROLL NO:2182112
SECTION: B
SUBJECT: Jurisprudence
CODE: LW2016
TOPIC: The Concept of Liberty: A Jurisprudential
Analysis
PRESENTED TO: Mitul Dutta
Introduction
The word Liberty originates from the Latin word libre when translated to English it
means to be free. The view of liberty has been viewed differently by jurists and
linguists, this is due to the trouble in finding a definition that will is how each thinker
has chosen to define the word. John Stuart Mill’s, for example, had a negative view
and defined liberty as “the absence of restraints at least in the ‘self-regarding sphere’
of human activity”1. On the other end there is the positive view of Harold J. Laski as
he said, “By liberty, I mean the eager maintenance of that atmosphere in which men
have the opportunity to be their best selves.” The black law dictionary defines liberty
as “Freedom; exemption from extraneous control.
The power of the will, in its moral freedom, to follow the dictates of its unrestricted
choice, and to direct the external acts of the individual without restraint, coercion, or
control from other persons”. Depending on the source of the definition and reasoning
used to define liberty it has a relative definition depending on how one views the role
the sovereign plays in governing and enforcing the law. This article is not concerned
about finding a single correct definition but looks a looking into different jurists’ ideas
on liberty and the significance of these ideas in laws globally.

History
The idea of liberty was first seen by the Greeks with the idea that being free meant
that you had no master and being independent. This brought the idea of “doing what
one likes”. As Aristotle put it "This, then, is one note of liberty which all democrats
affirm to be the principle of their state. Another is that a man should live as he likes.
This, they say, is the privilege of a freeman, since, on the other hand, not living as a
man likes is the mark of a slave. This is why liberty is often associated with freedom,
but freedom and liberty are different for a man to have the freedom he must first
have the liberty of that freedom.
This is the second characteristic of democracy, whence has arisen the claim of men
to be ruled by none, if possible, or, if this is impossible, to rule and be ruled in turns;
and so it contributes to the freedom based upon equality 2. In the Greek Empire, only
free men enjoyed liberties the same was seen in the Roman era where nobles
enjoyed liberties while the common man was often left without. In some civilizations
that were often made of different people from different races, beliefs, and origins
coming together the idea of equal privileges for all was practiced one of them being

1
Williams, L. (no date) John Stuart Mill. Available at:
https://www.mtsu.edu/first-amendment/article/1258/john-stuart-mill (Accessed: March 28, 2023).

2
Library services reading lists (no date) Royal Holloway University of London. Available at:
https://rhul.rl.talis.com/lists/32FE7557-7222-4AB0-9274-693E458A6239/bibliography (Accessed:
March 28, 2023).
Persian Empire. In Persia, it is believed all palaces were built by paid workers back
when slavery had not been a popular source of labor.

Nature of Liberty

Liberty does not imply complete freedom from all constraints. It means that an
individual cannot do things that are unreasonable or harmful to society. Liberty
indicates the presence of such favorable conditions as are necessary for an
individual to enjoy his rights and develop his personality. The freedom to do anything
is defined as liberty, but that act or thing must be considered by the state. It is Liberty
that provides enormous opportunities for all to exercise their rights. Law is regarded
as necessary for maintaining the conditions required for the enjoyment of
liberty3. Liberty was prioritized just after the right to life. Man exists with nature and
as such can move freely as a part of his right to life and pursuit of happiness this is
viewed as having liberty, any action taken by the man toward fulfilling themselves
that is freely made by them. From the last sentence that liberty is free and cannot be
bestowed upon you due to the natural tendency for humans to react a certain way to
their environment they should be allowed to do so without being restricted by the
state or other people. Liberty can be used by anyone in any way and does not mean
just because someone has the liberty to do something they are forced to do it, they
can simply choose to and have the right to if such liberty is practiced within the
scope of the law.
As different schools define liberty in law, the definitions and approaches to defining
libel will differ. Although this may be so, liberty has the same idea of letting a man act
how he wants and the state responds that the state safeguards these liberties.

Natural law concept

Natural liberty implies unrestricted freedom to do whatever one desires, the absence
of all restraints. According to Hobbes "it is the absolute right of a man in the state of
all nature to all things including right to kill another man", therefore liberty of this kind
has based on the principle of “might is right”. In this interpretation of liberty, the law
does not grant us any liberty but rather restricts our existing natural liberties so that
the State can function more effectively.

3
Law and liberty: An analysis (no date) Legal Service India - Law, Lawyers and Legal Resources.
Available at: https://www.legalserviceindia.com/legal/article-1555-law-and-liberty-an-analysis.html
(Accessed: March 28, 2023).
However, in today's world, natural liberty cannot be considered or accepted by
society, or we can say that there is no true freedom in nature. Anarchy can result
from unrestricted freedom, which means that natural liberty can lead to the rule of
muscle power. Thus natural liberty only existed in the state of nature and it came to
an end after the establishment of civil society.

Thinkers of natural law

Hobbes
Hobbes’s theory is under the notion that all men give up their power over themselves
to a ruler who will then rule them (the social contract theory). Under this theory,
liberty is said to be in the hands of the people and the government is simply a body
to make sure that there is fairness and peace in society. This theory is regarded to
be natural law due to the thinker giving people an individualistic identity, believing
that all people have a nature that must be kept safe by a body that is ruling them.
The sovereign, in this case, is given unlimited power to rule over the people and
when the people are being ruled in the right manner they will choose to be under that
leader’s rule because their liberties are protected.
Aristotle
This natural law thinker held that liberty is the basis of every democratic society. This
is because liberties are enjoyed by men according to their opinions. Here Aristotle
states that liberty is established when there is an initial complaint with one principle
“For all to rule they must be in turn be ruled”. This principle means that for the state
to function, it must get the opinions of the people and tailor the law to make sure that
most men’s liberties in society are met. The government will make sure that these
liberties are safeguarded and are not abused by themselves or any of the people.
The jurist in his idea looks at liberty and states that liberty is imperative to society.
This also states that; a man has the right to do as he pleases and not being able to
do so is a brand of slavery to that man. These liberties in Aristotle’s idea are said to
apply positively.
Thomas Aquinas (The father of natural law )
This thinker once said, “by all nature, all men are equal but not by in other
endowments”. The idea of this law is that men as mentioned. Here Thomas is stating
that the most basic and entitled thing a man has in nature is his liberty before
anything else he could, every man has his liberty and that liberty must be protected
by the state. It is worth mentioning that this philosopher was a Christian and with that
said, Thomas believed that those who have different liberties from those pointed out
in the bible should be regarded as immoral, therefor some liberties go against a man
even though they may not hurt another. With the Christian faith in mind, he believed
that God gives man liberty, not the state.
Analysis of natural law view
In natural law, all liberties start from within a man, labeling this desire to have
liberties as being his nature or coming from a higher being. The state will either
monitor these already existing factors and make sure that they are not infringed upon
so everyone can enjoy them. These views from the natural law school do not
consider the state as being the ruler but a mediator to make sure that all people
follow a certain way of life reducing the fear of injury from another without any
protection from the state.

Positive law thinker on liberty

Positive law
Positive law is based on the belief that the law is not connected to any outer entity
but is a way that people experience the reality of the legal system itself. Therefore
due to the experience of the sovereign so does the law of the land that must be
followed based on the reasoning of the sovereign.
John Austin
John Austin is rooted in the belief of the law being a command given by a sovereign
backed by sanctions. In this context, we get that the people have liberties but these
liberties are what the authorities give. This gives society one understanding of what
the law is and gives those in authority the to restructure the system based on what
works rather than what the people desire.
Benthem
Bentham states that liberty is not deprived of the government and the law, he further
states that such things limit the law instead of reinforcing it 4. Bentham’s theory of
utility uses the “pleasure and pain” concept to define it, when put into the context of
defining liberty from the theory of utility we see liberty as anything the majority of the
society deprives utility of. This is not based on any understanding but simply on the
fact that liberty is depriving a benefit for the majority of society.

Types of liberties
Civil Liberty
Civil liberty is one that society follows and that each individual enjoys, it is a liberty
one enjoys in a civil society. It has some restrictions based on laws and rules, and
people can only enjoy it under those conditions. Civil liberties are not unrestricted. It
is imposed by the state as opposed to natural liberty. According to Gentle “Civil
liberty consists of the rights which the state creates and protects for its subjects”.

4
Jstor Home, , https://www.jstor.org/ (last visited Mar 27, 2023).
Personal freedom, which means the existence of conditions in which individuals can
act as they please without arbitrary or illegal control, is included in civil liberty. The
government must recognize and protect civil liberties as they can easily abuse them.
Civil liberties can be captured in the form of rights, such as the right to freedom, the
right to education, and other rights that ensure that the State provides and maintains
the protection of these rights and that the State itself does not violate these rights.

Civil liberty can be said to have two features:

(a) Civil liberties are guaranteed by the state
For the enjoyment of civil liberty, the state will guarantee these liberties and
the state the necessary conditions needed to enjoy these liberties. The state
will also make sure it does not violate these liberties by holding itself
accountable.
(b) Protection of rights and freedom is covered under civil liberty
Civil liberties serve to prevent or restrict the infringement of peoples' rights. It
lawfully defends people's fundamental rights. Essentially, civil liberty refers to
government practices that upheld citizens' rights.

Political Liberty
Liberty and the public's right to participate freely in politics are related is what is
termed political liberty. People are entitled to freedoms such as the right to vote, the
right to run for office, the right to oppose and criticize the government, and the right
to change the government through legal channels. It continued by stating that any
information on a specific entity would be looked into by current policies before any
appropriate action was taken.
Political liberties, or the freedom to engage in political life and state affairs, are
founded on an individual's political rights. It essentially identifies with democracy and
transforms the state into one. Without political freedoms, neither the state nor the
person can be democratic or have unrestricted civil rights. Political liberty must meet
two requirements to exist: education and a free press.
Individual liberty
Everyone is given fundamental rights, which they are free to exercise whenever they
choose, but there are some limitations to preventing illegal activities. Enjoying one's
opportunities and ambitions while not limiting the freedom of others is what is meant
by individual liberty. Individual freedom encompasses the right to personal liberty,
freedom of speech, freedom of conscience, freedom of residence, and freedom to
choose any religion.
Economic Liberty
Economic freedom is related to those who are struggling economically, such as
those who are primarily from lower socioeconomic groups and experience hunger,
starvation, and unemployment. A person can only be said to live in economic liberty
if he or she has access to three fundamental needs: food, housing, and clothing.
Political and economic freedom are intertwined because, in the absence of the
former, the latter loses all meaning. It involves the rights to labor, fair pay, and to
financial stability in the old life.
Other liberties and responsibilities
There are other liberties such as national, religious, and moral. Liberties are
reserved to protect people’s interests and people often have to watch over their
liberty and protect them if the state violates them further have the responsibility to
practice their liberty as guided by the law or in a way that will not violate existing
laws. When this violation happens liberties are struck down and necessary
punishment is taken that could curtail the liberties of a wrongdoer accordingly
Conclusion
In conclusion to the analysis liberty has no fixed definition and what is liberty will
change as time goes on. In the middle ages when kings used to rule liberty was
whatever the king said was law, as the church became popular with the people law
was whatever the church gave as law in the name of God, people then desire
independence from the king’s rule and church institutions. Throughout World War II
the fundamentals of making good laws to safeguard liberties were questioned and up
till this point the law has taken many shapes to better give the appropriate definition
of liberty.
This is why jurists have to constantly discuss what is liberty and the elements that
make it possible. To better strengthen the law to handle people of each generation
as their aspects of the law change, so will the need to feel entitled to certain
privileges.

Bibliography
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