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What are the limitations on our personal liberty? Are all of them justified?
Liberty can be interpreted as meaning the freedom to do something without restrictions. The principal interpretations of liberty are ‘negative liberty’, which can be understood as freedom from restrictions; ‘positive liberty’, which can be understood as freedom to do things; and the view that there is such a small difference between these two interpretations that a distinction is unwarranted, as the ability to do something necessarily involves a lack of restrictions.
The differences between the two interpretations regard the way in which people wish to treat liberty. Those who view liberty in the ‘negative’ sense generally feel that the role of law should be as limited as possible, whereas those who view it in the ‘positive’ sense generally feel that laws are needed so as to help people to achieve their full potential liberty. The interpretation taken by recent British governments has mostly been the latter, though some governments have considered the former in some situations.
In this essay I will consider two areas of liberty: that of an individual’s liberty in the private domain and that of an individual’s liberty in the public domain. I will assess whether particular British (although sometimes not Scottish) and European laws that limit personal liberty are justified, and will assess other things that affect personal liberty, such as economic circumstances. The areas of law that I will focus to examine existing laws that regulate liberty in the public domain are roaming laws and drug/drink driving laws.
The areas that I will focus on to examine existing laws that regulate liberty in the private realm are drug laws and SM laws, focusing on comparisons between those states in which drug use is severely punished and those in which it is not, the 1990 police operation ‘Operation Spanner’ and the 2008 ban on possession of extreme pornography. It should be assumed that the tool that I will use to judge the justifiability of certain laws will be J. S. Mill’s ‘harm principle’, which states that an individual should have total personal liberty in those areas of their lives that may directly harm only themselves.
Operation Spanner was a 1990 police operation following the chance finding by the Greater Manchester Police Service of a video depicting SM acts. It led to the conviction of sixteen men under the 1861 Offences against the Person Act. These men received prison sentences of up to four and a half years for partaking in the fully consensual SM activity, even though Section 86 of the Act names ‘consent’ as a suitable defence, on the grounds that the acts were too extreme to not necessitate conviction, regardless of consent. The convictions were upheld by the UK Court of Appeal and Law Lords and the European Court of Human Rights, by the last on the account that the conviction was ‘necessary in a democratic society’1. The justification that Lord Jauncey gave for voting for the convictions was that ‘unless the circumstances fall within one of the well known exceptions such as organised sporting contests or games, parental chastisement or reasonable surgery … the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer.’ This presents the problem of subjectivity in the interpretation of law.
Although law actually dictates that any actual or grievous bodily harm caused is subject to conviction, as long as it fulfils the highly subjective criteria of being more than ‘transient or trifling’, Lord Jauncey clearly condemned a minority in a situation in which he would have let off someone partaking in a more popular act (to use his example, a person playing sport), or a situation where both parties are not consenting (parental chastisement, a situation in which written law is just as subjective). Also, an interesting fact is that although the European Court of Human Rights ruled that there was no reason to suggest that the conviction of the men was homophobic, in similar cases involving heterosexual couples that have taken place, the judge has ruled that what took place within the confines of a consensual, private relationship is no business of the court.
This is clearly a case where, although the written law dictates that consensual acts are lawful, in reality convictions can take place depending upon the subjective values of the judge, jury and Lords. This can be seen as leading to a dangerous ‘tyranny of the majority’, in which the law is dictated simply by what those who have the power to judge are comfortable with personally. A slightly more objective law covering similar ground was passed in the 2008 Criminal Justice and Immigration Act. The law makes ‘extreme pornography’ illegal, and one of the categories described in the Act for what ‘extreme pornography’ is is ‘an act which results in or is likely to result in serious injury to a person’s anus, breasts or genitals’. This can be seen as a direct result of the Spanner case and presents a clear message that a consensual act can be deemed ‘harmful’.
Drug law is an area of U.K. law where consent is not seen as suitable defence in any situation, although the law is not the same in all E.U. countries. Spain, Portugal, Italy and the Netherlands have all adopted forms of decriminalisation, and all countries to varying extents have adopted rehabilitation-based drug policies. In Portugal drug use amongst school children has declined notably since decriminalisation and ‘the number of new H.I.V. cases caused by using dirty needles to inject heroin, cocaine and other illegal substances plummeted from nearly 1,400 in 2000 to 400 in 2006’2. The overall number of deaths caused by overdoses ‘dropped from around 400 to 290 annually’3.
Overall drug use in Portugal has dropped, against a background of rising use in European states where illegal drug use is criminalised. In the U.K. almost 3000 people died in 2002 from drug overdoses4, making the Portuguese statistics proportionally brilliant. With this as a background, the U.K. governments have continued to impose unlimited fines and prison sentences of up to seven years for those in possession of Class A drugs, a tactic that non-dependant on your political ideology, from a utilitarian or consequentialist perspective is clearly not working. When we take the liberty of drug users into the equation, by J. S. Mill’s harm principle, criminalisation is not justifiable, and the Portuguese model of rehabilitation is extremely credible as the liberty of those who are addicted to drugs is as important a consideration as the liberty of those who enjoy using drugs.
However, if we are to use Mill’s harm principle to judge where restrictions on liberty may rightly fall, drug use must be limited in certain situations. He used the example of a drunken police officer to illustrate this point. When a police officer is at home and his actions will not harm others, he should be able to drink alcohol. However this cannot be extended to when he is at work and he needs a ‘clear mind’ in order to judge situations in which other people rely on him. This can also be extended to people driving whilst intoxicated. Therefore according to the harm principle drug and drink driving laws are justified.
The Scottish Land Reform Act of 2003 grants universal access to all land in Scotland as long as the land is used responsibly, taking away the right of landowners to have fully ‘private’ property. Along with this reform and the English and Welsh Countryside and Rights of Way Act, the responsibilities of those using the land were extended. ‘Reckless’ use of land is punishable under law and in extreme circumstances intentional damage can result in imprisonment. This means that the liberties of the public and the landowners are taken into account, as the responsible use of the land includes ‘respecting the interests of other people’, including the landowners on whose land you are roaming.
An example of a case that shows the ‘common sense’ approach taken to the law is that of a landowner who put up barriers to restrict the access of horse riders as he believed that they would damage the tracks. He was issued a notice saying he was to remove the barriers but when it was brought to court it was clear that horses would have damaged the track and that this would have restricted the liberties of walkers who wished to use the track. This can be seen as an example of a law that appears to restrict some people’s liberties but in fact creates a fair balance between the liberties of both otherwise conflicting parties.
It seems, then, that there are many limitations placed on our personal liberty by law, some of which are justifiable under Mill’s ‘harm principle’ and some of which are not. It must also be taken into consideration that there are further limitations upon people’s liberty that are seemingly outside of the realm of law. People’s different economic circumstances mean that they have different abilities to access their positive liberties; however it is arguably possible for political organisation and laws to work in such a way that these restrictions are limited, and indeed in some ways this is the case within the U.K. In conclusion, there are many restrictions upon our personal liberties, far more of course than those detailed in this essay, some of which are justified and some of which are not.
* 1 The following text is taken from the European Court of Human Rights in the case of Laskey, Jaggard and Brown v. The United Kingdom, article 8 of the Convention: ‘Common ground before Court: criminal proceedings against applicants constituted “interference by a public authority” with right to respect for private life, carried out “in accordance with the law” and in pursuance of legitimate aim (“protection of health or morals”). Only issue: whether interference “necessary in a democratic society”.
* (…) P.T.O.
* State unquestionably entitled to regulate through criminal law the infliction of physical harm (…)
* Court not persuaded that applicants’ behaviour belonged to private morality and was excluded from State’s intervention (…)
* No evidence to support allegation of authorities’ bias against homosexuals
* Accordingly, reasons given by national authorities for interference are relevant and sufficient.
* (…) interference not disproportionate.
* National authorities entitled to consider interference “necessary in a democratic society” for protection of health.
* Conclusion: no violation (unanimously).’