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  • Writer's pictureWilliam Tyler

'Not so easily shall the lights of freedom die'

On Liberty and Freedom: In three parts

Part 1 On Liberty by John Stuart Mill

The starting point for any such discussion is often John Stuart Mill's essay 'On Liberty', first published in 1859.

Today, perhaps unsurprisingly, the essay receives as much criticism as praise. After all it was written within the context of Mid Victorian society and cannot therefore be expected to escape that historical context.

Mill is concerned that an individual's views can be threatened by what he calls 'the tyranny of the majority'. 'If all mankind minus one, were of one opinion, and only one person were of contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind'.

Elsewhere in the essay Mill writes, 'That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant ....Over himself, over his body and mind, the individual is sovereign.' That is perhaps the key phrase of all, 'the individual is sovereign'.

Mill is much exercised against conformity which he perceives as limiting creativity.

His emphasis on the individual goes as far as saying that the individual can do harm to him/herself (he uses that lovely Victorian word 'vice') even if he/she acts against their own best interests - as long as it does no harm to others. On such an argument the Government today would be justified in taking action against those refusing vaccines.

In brief, Mill argues, 'The maxims are, first, that the individual is not accountable to society for his actions, in so far as these concern the interests of no person but himself.........for such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishment'. And so the argument continues to this day, what are the limits that a democracy should place on an individual? And, who should place those limits?

Part 2 On Freedom and Liberty and the distinction between the two

To attempt to gain further insight into this fundamental question of democracy it may be useful to consider the two words, freedom and liberty, which are so often used interchangeably. Yet in reality they are not as synonymous as most think.

Freedom comes from Anglo-Saxon whereas Liberty comes from Norman-French. Freedom is classically defined as 'the quality or state of being free' (ie a total absence of restraint or limits). Liberty, on the other hand, is defined as 'release from former restraint or compulsion' (for example, the prisoner being freed from confinement and regaining his/her liberty). They thus come to the concept of freedom/liberty from different directions. This difference of direction underlines the distinction between English and Continental European approaches to democracy. The English see themselves as free, and bristle at Government attempts to limit that freedom (the current debate over vaccine passports being a classic example as well as the proposed legislation concerning protests), whereas Europeans see liberty as having thrown off the yoke of restraint (for example with the overthrow of The Bourbons in France at the time of The Revolution or The Fall of Communism in Eastern Europe ). Put another way, freedom is an innate right for each individual whereas liberty is given or taken from above.

This distinction between the origins of freedom and liberty lies at the base of Britain's difficulties over EU membership, with moves towards further integration and federalism conflicting with British ideas of freedom, or, in this political/constitutional context, 'sovereignty'.

An academic quotation highlighting the difference between the two words by Orlando Patterson in 'Freedom: Freedom in the Making of Western Culture':-

'Freedom differs from liberty as control differs from discipline. Liberty, like discipline, is linked to institutions and political parties, whether liberal or libertarian; freedom is not. Although freedom can work for or against institutions, it is not bound to them - it travels through unofficial networks. To have liberty is to be liberated from something; to be free is to be self-determining, autonomous.'

Freedom to me is an inherent part of what it is to be English - it is, in the modern phrase, built into our DNA. But how each of us defines freedom in practice, or rather what limits we might accept to our freedom, is very much an individual decision; hence our division over Brexit.

Part 3 Some historical bases of English views of Freedom

'The poorest he that is in England', said Col Thomas Rainsborough, the revolutionary Leveller of the 1640s, 'hath a right to live as the greatest he'.

A traditional 17th century rhyme relating to the loss of common land by enclosure reads,

'The law locks up the man or woman

Who steals the goose from the common

But leaves the greater villain loose

Who steals the common from the goose'

The subsequent post 1215 interpretation of Magna Carta, both here and in The States, emphasises individual freedom regardless of social status,

Clause 29: 'No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or Free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of The Land. We shall sell to no man, we will not defy or defer to any man either Justice or Right.'

This idea of freedom bound up in the very nature of the land of England was the essence of Lord Mansfield's judgment on slavery in the 18th century, 'The air of England is too pure for a slave to breathe, and so everyone who breathes it becomes free. Everyone who comes to this island is entitled to the protection of English law, whatever oppression he may have suffered and whatever be the colour of his skin'.

Today, whether many people are aware of it or not the issues around freedom and its limits have moved centre stage -

Issues of academic freedom

Issues of free speech

Issues of freedom of movement

Issues of freedom of belief

Issues of freedom of assembly

These are not just questions for law students, or lawyers, but questions for each one of us.

So the debate hovers around what limits to freedoms are acceptable and who should place those limits, as I stated at the end of Part 1. However, there is a further question today and that is, in the famous Latin phrase, 'Quis custodiet ipsos custodes', ie who guards the guardians themselves. Who monitors the Government, The Home Office, the Police etc ?

The quotation at the top of this short piece, namely 'Not so easily shall the lights of freedom die' is not some message from the streets in 2021, but rather part of a speech delivered by Winston Churchill on 16th June 1941. But freedom will only thrive if enough of us are prepared to engage with this vital and continuing debate. 'Freedom', said Albert Einstein,' only possible by constantly struggling for it'.

'On Liberty' by John Stuart Mill is available in many editions.

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