• PGCL Moot Court Society

The Demanding Notions of Justice and Freedom

Updated: Dec 13, 2020

- Amit Padwal

“If it is wished to protect the accused against punishment, it can be done at once, and with perfect efficacy, by not allowing any investigation.”

-J. Bentham

There is no society that is not confronted with problem of criminality. Consequently, as long as people exist, society will and so will crime persist until humanity meets its end. Therefore, it will only be utopian to estimate the possibility of totally abolishing crime. In its sheer adversity, it is best to face the fact that criminal law is essential in a society for maintaining law and order. The question of efficacy of the criminal justice system and protection of rights of the people are interrelated and need constant scrutiny. Criminal law is indeed a reflection of social consciousness and faithful mirror of a given civilization, reflecting the fundamental values on which it rests. Hence, to say Criminal law is not concerned with the right to life and personal freedom would be erroneous. It is the concept of justice that places restrictions on these rights to make an effort to achieve the ultimate goal of a crime-free society.

In the classic case of R v Dudley and Stephans[1], 4 sailors were stranded in a lifeboat with limited resources after their vessel had gone down due to a storm. In absence of fresh water, the cabin boy drank sea water and his health deteriorated. For around 15 days after their resources were exhausted, they didn’t eat or drink anything. In such circumstances, the captain decided to kill the cabin boy for the rest of them to survive. They were rescued a on the 24th day and were put on trial upon returning to England for murder of the cabin boy. The strongest argument for the defence was of necessity, in order to save three, one had to be killed and eaten, otherwise all four would’ve likely died. Parker, weakened and ill, was the logical candidate, since he would soon have died anyway. A utilitarian would say that even considering the lives saved and happiness of the survivors and their family, allowing such a killing might have bad consequences for society as a whole by weakening the norm against murder. Although a libertarian would suggest, even if, all things considered, isn’t it wrong to use a human being in this way—exploiting his vulnerability, taking his life without his consent— even if doing so benefits others?

A similar question arises in contemporary debates about whether torture/detention is ever justified in the interrogation of suspected criminals. Consider this scenario: Imagine that you are the head of the local police branch in your country. You detain a terrorist suspect who you believe has information about a nuclear device set to go off in Mumbai later the same day. As the clock ticks down, he refuses to admit to being a terrorist or to divulge the bomb’s location. Would it be right to detain/torture him until he tells you where the bomb is and how to disarm it? (Maybe he doesn’t Have a part in the act, it’s just a presumption, then?). On utilitarian grounds, one might argue that it’s morally justified to inflict intense pain on one person if doing so will prevent death and suffering on a massive scale. Some people reject torture/detention on principle. They believe that it violates human rights and fails to respect the intrinsic dignity of human beings. Their case does not depend on utilitarian considerations. They argue that human rights and human dignity lies beyond utility. However, the above scenario can be misleading as it purports to prove that numbers count, so that if enough lives are at stake we should be willing to override our rights.

Liberty, in contrast, is the eager maintenance of that atmosphere in which men have the opportunity to own themselves. The idea of self-ownership, consistently applied, has implications that only an ardent libertarian can love- a minimal state that rules out most measures to ease inequality. However, unrestrained freedom will result in conflict of interests and destroy peace as no man stands alone; he lives in the company of others. If you believe in universal human rights, you are probably not a utilitarian. If all human beings are worthy of respect, regardless of who they are or where they live, then it’s wrong to treat them as mere instruments of collective happiness. You might defend human rights on the ground that respecting them will maximize utility in the long run. In that case, however, your reason for respecting rights is not to respect the person who holds them but to make things better for everyone.

Immanuel Kant, an 18th Century German philosopher, in “Groundwork for the metaphysics of morals”[2] has rejected the utilitarian approach to justice. Although he connects justice and morality to freedom, his conception of freedom is different. His idea of freedom is more demanding than the freedom of choice we exercise. What we commonly think of as market freedom or consumer choice is not true freedom, because it simply involves satisfying desires we haven’t chosen in the first place. He claims “When we, like animals, seek pleasure or the avoidance of pain, we aren’t really acting freely, we act as slaves of our appetites and desires. Why? Because whenever we are seeking to satisfy our desires, everything we do is for the sake of some end given outside us. I go this way to assuage my hunger, that way to slake my thirst.” Suppose I’m trying to decide what flavour of ice cream to order: Should I go for chocolate, vanilla, or blueberry? I may think of myself as exercising freedom of choice, but what I’m really doing is trying to figure out which flavour will best satisfy my preferences. After all, I didn’t choose my desire for chocolate rather than vanilla, I just have it. I act out of obedience, not freedom. To act freely, according to Kant, is to act autonomously. And to act autonomously is to act according to a law I give myself—not according to the dictates of nature or social convention or urges which he considers as acting ‘heteronomously’.

Now, if to act freely is to act autonomously, to act according to the law I give myself, wouldn’t there be different moral laws? If the categorical imperative (universal law) is the product of my will, isn’t it likely that different people will come up with different categorical imperatives? Kant replies, when we will the moral law, we don’t choose as you and me, particular persons that we are, but as rational beings, as participants in what Kant calls “pure practical reason.” Hence, it’s a mistake to think that the moral law is up to us as individuals. Of course, if we reason from our particular interests, desires, and ends, we may be led to any number of principles. But these are not moral principles, only prudential ones. Insofar as we exercise pure practical reason, we abstract from our particular interests. This means that everyone who exercises pure practical reason will reach the same conclusion. “Thus, a free will and a will under moral laws are one and the same.” Kant argues that every person is worthy of respect, not because we own ourselves but because we are rational beings, capable of reason; we are also autonomous beings, capable of acting and choosing freely. Our capacity for reason is bound up with our capacity for freedom. It is this idea of reason, due to which we have entered into a hypothetical social contract that generates this principle of rights, but it has undoubted practical reality, as it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of the whole nation.[3] Therefore, the united will of the nation will want a law to protect its freedom first although in a case where a criminal is on the loose or any apparent threat is foreseen, the ‘collective will’ is more likely to choose its safety over liberty of a particular individual.

There is always a constant swinging of the pendulum between liberty and welfare. Enlarging corpus of rules in favour of protection of the rights of the accused in the criminal justice system are growing burden on the police. The fact that human rights of the accused are to be respected is not questionable. At the same time, the existing legal regime is to be suitably amended, to curb the criminal elements in the interest of the well-being of the society. Society has to reverse the common law notion of criminal justice that “it is better that a hundred of the guilty should escape than that one innocent person should perish.” The security of innocence may be complete without favouring the impunity of crime. Keeping aside ‘the collective will’ for a moment, how many of you and your peers would choose Cure over Precaution? Remedy over Safeguard? Anarchy over Law?

Amit is a third year student at Pravin Gandhi College of Law, Mumbai.


[1] R v Dudley and Stephans, (1884) 14 QBD 273. [2] Groundwork for the Metaphysics of Morals (1785), Immanuel Kant, Translated by Thomas Kingsmill Abbott. [3] Justice: What's the Right Thing to Do? (2008), Michael J. Sandel.

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