There is another way of thinking about liberty

We need to think more deeply about liberty, and about deprivation of liberty in particular.

The Supreme Court is, in fact, doing that at this very moment, in the case of a man with severe physical and learning difficulties, who is intensively supervised by care staff, cannot leave his home unescorted and, because he ingests continence pads and their contents, is often subjected to an intrusive 'finger-sweep' of his mouth (P v Cheshire West and Chester Council and another, UKSC 2012/0068).

The court's decision in that case will be received with great interest, because, practitioners and commentators seem to agree, deprivation of liberty has become a confused and deeply confusing concept.

Where there is deprivation of liberty, of course, statutory protection - the Deprivation of Liberty Safeguards (DoLS) - will often apply. We ignore the DoLS at our peril.

Imagine Mr White, who lives in a registered care home:

1) He cannot leave the home, '¨the doors of which are locked at all times.

2) Alternatively, he is never prevented from leaving. '¨The staff of the home would only ever do what is in his '¨best interests.

I shall return to Mr White shortly.

Negative concept

Nowadays, we think of liberty as the absence of interference. As Jeremy Bentham put it, "the concept of liberty is merely a negative one in the sense that its presence is always marked by the absence of something" (1776, Letter to John Lind).

The European Court of Human Rights has said much the same; that liberty "is individual liberty in the classic sense - that is physical liberty of the person" (Engel v The Netherlands (No 1) [1976] 1 EHRR 647). That is also the view of the domestic courts and it has even found its way into our understanding of the DoLS (A Local Authority v A, B, C, D & E [2010] EWHC 978 (Fam); Ministry of Justice, 2008, DoLS Code of Practice, paragraph 2.6).

But there is another way of thinking about liberty.

In ancient, 'republican' Rome, a person was considered free if he was not dominated by someone else. That view came down to us via Machiavelli, Francis Bacon and John Locke. Its chief modern proponent is Philip Pettit.

Thomas Hobbes was among the first to criticise the republican view. He argued that non-domination is not enough; that liberty consists in non-interference and is absent only where actual constraint is used. That is where our modern view comes from.

One person might not actually interfere with another, and for Hobbesians, that would mean that the other was not deprived of liberty. They would say that Mr White is deprived of liberty in the first scenario but not the second.

For republicans, however, non-interference is not enough. They say that the mere potential for domination will suffice to deprive someone of liberty; that Mr White is deprived of liberty in the second scenario as well.

Definition resolved

This view would, of course, resolve the problem of defining 'deprivation of liberty'. We wouldn't need to think so hard about the constraints actually imposed; they would be only as relevant as the constraints that might be imposed.

Republicans also say, however, that an intervention will not constitute domination in the first place unless it is 'arbitrary'. That is very important, for no interference can be arbitrary that is governed by law. So, while either scenario might involve interference, the availability of the DoLS - formal legal safeguards - would mean that in neither was Mr White dominated or, therefore, deprived of liberty.

The republican view of liberty has survived into our age and seems to have something intriguing to say. It entails that more people would be eligible for the DoLS, but that no one subject to interference who might be eligible for those safeguards could be said to '¨be deprived of liberty. A problem left for us by Thomas Hobbes would thus be transformed '¨by the wisdom of the ancient world. SJ