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Definition
and Scope
Since freedom can apply to competing or even conflicting interests,
it tends to defy the idea of a comprehensive definition, which is
precisely why there is no clear definition for freedom. There are,
of course, many attempts by writers and commentators to define freedom,
yet they are all open to some level of uncertainty and doubt. Freedom
for whom? Freedom from what? And freedom to do what? To the mystic,
freedom has often meant the release from egoity and dependence on
the material world. The philosopher and theologian would extend
the debate to encompass the relationship between God and man, and
the extent to which a person can be deemed free. What meaning, if
any, can the word ‘freedom’ have in that context?
For the lawyer and the judge, freedom operates within the limits
of the law. I shall presently give a definition of freedom from
a legal perspective, but bear in mind that it is only an attempt
to define a certain aspect of this concept without any claim to
comprehensiveness. It should be noted at the outset that the basic
notion of freedom, in an objective sense, is common to all legal
systems, traditions and cultures. Whether one talks of freedom in
western law, Chinese law, or Islamic law, this must essentially
mean ‘the ability of the individual to say or do what he or
she wishes, or to avoid doing so, without violating the right of
others, or the limits that are set by the law’. Although I
have quoted this definition from an Islamic source, its basic message
is nevertheless universal. Liberty has elsewhere been defined as
‘the extent to which the individual can determine his own
destiny and act as he wishes, unconstrained by others.’ Freedom
of expression means ‘the absence of restraints upon the ability
of individuals or groups to communicate their ideas to others, subject
to the understanding that they do not in turn coerce others into
paying attention or that they do not invade other rights essential
to the dignity of the individual’.
Freedom of expression includes freedom of the press and the liberty
to communicate ideas in all forms including books, pictures, signs
and other means of communication. The purpose may be to inform,
to persuade, to convince others, to reveal the truth or to clarify
and eliminate doubt. The last two definitions that I have quoted
above are from western sources, and yet, the concepts that they
convey are universal. We may also note in this connection, Montgomery-Watt’s
brief comparison of the Muslim concept of freedom with that of its
western counterpart, in which he has high-lighted some of the differences
between them but concluded that ‘despite such points, however,
it seems likely that there is a combination of ideas somewhere in
Islamic thought, which performs much the same function as the concept
of freedom does in the west.’ Thus, the basic notion of freedom
and of freedom of expression would appear to strike a common note
in all legal traditions, including that of Islam. However, the scope
and character of freedom of expression under the Shari’ah
differs widely from other laws in respect of detail, especially
with reference to the limits that are imposed by the Shari’ah
and the values that are to be upheld. If I were to characterise
the rules of the Shari’ah on freedom of expression,
I would be inclined to say that, unlike modern legal discourses
on the subject, the Shari’ah does not convey a great
deal of awareness about state authority and the political interests
of its agencies and institutions. To that extent, the Shari’ah
is egalitarian and substantive in the sense that attention is paid
to actual values rather than to institutional interests or the dictates
of the status quo and power politics. But, being a religious law,
the Shari’ah is only expected to be emphatic about
moral and religious values, which might mean imposing restrictions
on freedom of expression in areas where this might come into conflict
with the principles of Islam. This can, perhaps, be clearly seen
in reference to the Shari’ah rules pertaining to
blasphemy, heresy and disbelief, where the dominant concern is to
defend the dogma and belief-structure of Islam, even at the expense
of imposing restrictions on what may, under western law, be seen
as personal matters which fall outside the concern of the law. The
rules of the Shari’ah pertaining to the rights of
citizens to criticise the government are, on the other hand, indicative
of latitude. By comparison to some of the over-regulated areas of
modem law in relation to such matters as sedition and criticism
of government authorities, Shari’ah rules encourage
flexibility and tolerance. Moral advice and encouragement also pervade
the bulk of Shari’ah rules on freedom of expression;
the legal rules therein are often less elaborate compared to the
teachings and recommendations that aim at developing the individual’s
personality and character. |
