In 1948, United Nations General Assembly adopted a document Universal Declaration of Human Rights (UDHR). It was drafted by representatives who came from different cultures & had legal expertise. This states fundamental human rights which all individuals as citizens of the world should be entitled to[endnoteRef:1]. Saudi Arabia abstained voting the document because of article 16 & 18. [1: Https://www.un.org]
The preamble of the document proclaims itself the foundation of freedom[endnoteRef:2], to give each man freedom of speech[endnoteRef:3]. Article 3 states about liberty. Article 18 says that individuals are free to change their faith. Article 5 proclaims that no one shall be put to inhuman & cruel punishment. Article 19 sates about freedom of opinion & expression. One is free to express his opinion & ideas freely. Article 25.2 while sating about the protection of children recognizes illegitimate children so indirectly recognizing sexual relationship without marriage. Though the document states that all these articles are universal but they are not entirely compatible to Islam. [2: Ibid] [3: Ibid.]
The UDHR states itself as the foundation of freedom. The concept of freedom it presumes is purely western concept which is historically evolved. We can trace it back to Locke, Mill, Paine.
John Locke’s conception of natural rights & freedom
The natural rights theory can be traced back to Italian scholastic philosopher, St Thomas Aquinas in thirteenth century. For him the world is governed by ‘God-given natural law’[endnoteRef:4]. Men can discover them through reason to apply them in political & social spheres of life. [4: Pg.112]
All those modern political theories that emerged after 16th century when propounds natural law presupposes this medieval theory[endnoteRef:5]. Thomas Hobbes (1588-16791) is the first in line who propounds natural rights theory. Men in the state of nature were given unlimited freedom[endnoteRef:6] which they surrendered to a sovereign through a covenant to protect them in return. This is how civil society started. [5: Pg.113] [6: Ibid]
John Locke (1632-1704) also expounds natural right theory. In the state of nature men were entitled to certain rights. Each individual had the natural right to life, liberty & property. For him the fountainhead of liberty is theological. Being God given rights they are objective, rational, universal, moral and unwritten; attached with them is a moral obligation that as everyone is free & equal, so everyone is bound to respect the same to others. These rights are moral because they tell us how ought we behave. As everyone is free, independent & equal so they have right to survive & act freely. Liberty is subject to reason because through it natural rights are comprehended. This rational discernment demands to devise a framework wherein liberty could be exercised & flourished because natural rights are unwritten codes which make them vulnerable to manipulation by some power mongers. To avoid this misinterpretation, people formed a civil govt. through social contract which was a trust by all individuals to secure their natural rights. This is how a civil govt. was formed with a limited & predefined end - only to safeguard liberty of individuals. If a state fails to fulfill this purpose it can be overthrown even by revolution. Legislature is only formed for the protection of freedom. Liberty here is a negative concept which ensures absence of interference either by govt. or by any other person. Liberty is an end in itself. This freedom can only be enjoyed under constitution, under which it becomes civil right. Locke rules out paternalism of any kind. State can only restrict a person to establish same freedom to others. Society may intervene to protect a person’s interests like security, safety & private property. These moral natural laws are the criterion which secure individual freedom on one hand, and specify when and why state could intervene in a person’s freedom.
In his Letter on Toleration (1689), he’s trying to assert religious tolerance. By rejecting divine rights of kings, he rejects that sovereign is representative of God. The state was formed for completely political purpose so he separates politics from religion. He justifies his notion of liberty on theological grounds but on practical plane it becomes unorthodox
JOHN STUART MILL’S NOTION OF FREEDOM
His notion of liberty is based on the “idea of man” & “utility principle”. Man, as individual is autonomous so can make free choices, can control his life and situations, is melioristic, progressive & fallible being, learns through experiments and diversity of ideas because he doesn’t have infallible knowledge of Truth. Liberty is an absence of coercion, he agrees with Locke, but moves a step forward & connects it with person’s development & of society subsequently. He explicitly specifies acts which can’t be encroached either by state or public opinion. Liberty though is not a sacred right but is an indispensable means to achieve some higher goods. Govt can only intervene to secure liberty. One’s area of negative liberty can only be encroached ‘to prevent harm to others’ (Harm principle). He makes distinction between two types of acts: self-regarding & other regarding. The former are those actions which cannot harm anyone else except the doer. These actions can’t be interfered because curtailing them is an invasion on freedom of both individual & society; they are three namely: freedom of thought, freedom of tastes & pursuits. Other regarding action as the name implies may inflict direct or perceptible harm or objective injury to other, so can be controlled by law. Harm principle is the basis on which one’s personal freedom could be obstructed. He differentiates ham from offence. Self-regarding action may offend someone but it’s only subjective, that is the way people may react to an action which isn’t hurting their interests, so can’t come under legal jurisdiction. Mill’s harm principal and the distinction of actions based on them is vague. Some actions don’t inflict physical harm but they have negative influence on others. Such as wrestling, boxing (both agents have consent on hurting each other) and smoking, etc.; they may put indirect adverse effect on the people around the doer. According to Freud’s psychoanalytic theory, unconscious mind influences the behavior of a person. Self-regarding actions are not in complete isolation that they won’t affect others. Absolute freedom of expression may cause moral debates in society like blasphemy, pornography, masochism, sadism, etc. Lord Devlin criticizes it by saying that society is not mere collection of individuals, it has shared values, tradition and is erected on moral consensus. So, an action if challenges moral values of society is harmful to society (Williams(ed), 1981)
This liberty through freedom of thought & expression would help an individual to elevate. Absolute freedom of expression is necessary for discovering truth & knowledge. False opinion can’t be curbed on the ground that they are false, they may be mingled with truth; through free debate & discussion, truth would strain out from false opinion. Freedom of conscience and expression is necessary not only to reach to truth but to keep the truth alive, because in absence of debate the truth would become a dead dogma. The end of society is to be discovered which can only become possible with negative freedom. He emphasizes on tolerance and open mindedness towards new & unconventional ideas. Freedom is an indispensable means to reach some other goals. Through free choice & independent judgment one develops his moral, intellectual & aesthetic being. Those actions are morally right which ensures long term happiness of individuals as well as of society. This freedom through self-regarding actions ensure long term happiness as it assists one to grow. Any action which affects the interests of others is harmful for the freedom of others so can be controlled, such as property rights; but these aren’t natural rights but have their justification in utilitarianism (long term interests of men as progressive being). (Q.Tutorjones, 2008)
For him liberty is necessary for the growth of individual but it’s not collectivist social freedom. Liberty is individualistic. Individual is prior to society. The task of govt. is to protect the freedom of individual. Limits on freedom is necessary to secure freedom for everyone.