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HomeSTUDENT JOURNALISTAre Law and Freedom Compatible in Social Life? - Student Journalist

Are Law and Freedom Compatible in Social Life? – Student Journalist

Total Journal by JH

The law we are abided by in social life is basically two kinds: i) civil law and ii) moral law. Thus, we have to demonstrate whether our freedom is compatible with both of these law. I plan to bring in master philosophers of political science and ethics from early and late modern Western Europe and ancient China to thoroughly discuss our topic. It is my argument that law and freedom are compatible in social life because both civil and natural law is 1) necessary for freedom and 2) have sufficient grounds for our genuinely willful obedience.

To begin with, Thomas Hobbes developed a theoretical scenario of the state of nature (“humans living in a world with no social organizations, and hence neither political body nor civil law exists”) to rationally account for the need of a political authority. It is not hard to imagine that we would be under an almost perpetual threat of losing our lives and possessions, and no man can be absolutely safe since no matter what the man relies on, whether it be brutal strength, wisdom, or luck, there cannot be a man who cannot be defeated. Even if we do not lack any resources for living, we make preemptive strikes since we worry about the greed in others; some would exert violence simply for the sake of pleasure or glory which are insatiable desires. Thus, all of us would be waging the war of all against all to protect ourselves due to our self-preservation instinct.

            Though Hobbes considers us to be free by natural right to take everything there is as much as we want in the state of nature, I disagree in that such freedom is no different from not having any freedom at all. It is doubtful that we would willingly remain in such environment in which we could be murdered or robbed any minute. We may be free to do anything we want, but we are terribly subjected to harm and fear, which I believe would haunt us more than any law there is. We are not free from the chaos that entails lawlessness or anarchy. Surely, what Hobbes hypothesizes to be the state of nature is extreme in its bleakness* compared to how Locke and Rousseau sees <I would be mentioning Locke and Rousseau’s view of state of nature later in the essay>, but it is reasonable enough to suggest that it would be our best interest to escape from such a state and establish peace. In other words, our state of nature necessitate some kind of law.

What Hobbes proposes as a way of obtaining peace is for every man to enter into a contract with every man to stop waging war against one another. Such contract curtails our freedom to do anything we want, but it is reciprocally accepted as long as others do the same. Putting details aside, the main problem remaining is how to punish those who breach the contract as it is the returning to wartime that concerns us most. In regards to this, Hobbes calls for a need of a governing body with absolute power to enforce this contract upon every man. The difference from traditional monarchy is that it is not founded on divine right, but on a rational need of the people who transfer their natural right to the designated person or party to act on their behalf, as a commonwealth (= the multitude united into one; the will of the one is the will of all).

            Nonetheless, this commonwealth that is called the “sovereign (= governor)” by the clause of contract cannot be overthrown conditionally as we have already transferred our private sovereignty (= the right to govern ourselves) and become subjects. This means that the sovereign is the “third party” that oversees social contract among man. Thus, we cannot revoke our contract even if we disagree with the sovereign’s policies. We are no longer subjects only when the sovereign is unable to protect us such as military defeat in a war between nations. In addition, the power of the sovereign cannot be decentralized as it would result in i) the weakening of the sovereign when it should be there to secure us from harm and ii) the instability of peace if counter-power is tolerated as there could be conflict between powers within a nation. Such sovereign with absolute power is indeed as Hobbes describes, a Leviathan (“a fearful sea monster appearing in the book of Jobs in the Old Testament”).

The only natural right we retain is to act in advantage for our self-preservation, that is, to avoid death, injuries, and imprisonment. To be specific, we have legitimate right to self-defense when assaulted. We can disobey when sovereign orders us to kill other man. We do not have to confess our crimes.

Hobbes’ model of social contract is problematic for our purpose though since apparently we are not free in such a society. We have exchanged our freedom to willfully obey for security. We may be free from savage threats, but we are still subject to fear as Hobbes’ sovereign rules by fear. We do not say that we are willfully obeying the rules when we are obeying because we are scared of the enforcer of rules. For example, we would not say a student who runs errands for the bully in class is free.

On top of that, in a world that uses fear as a deterrent power to maintain peace, civil law and freedom can never be compatible. This is because according to Hobbes’ view of our state of nature, “the war of every man against every man” could develop into “the war of every nation against every nation” (and perhaps into “the war of every planet against every planet”). Then, we would have to designate a sovereign that rules above all nations. Such cycle would repeat endlessly and we would forever be subject to the rule by fear.

Therefore, it follows that there is a need of a natural moral law that we are obliged to obey and serves as the basis of civil law to establish not only security but also liberty. In other words, there should be grounds for us to obey the law not because of fear towards the law enforcer but because we by our will believe it is the right thing to do. To illustrate, let us bring in John Locke’s view of our state of nature in which we try to live by our reason that entails moral duty. We are naturally obliged to respect our own and other’s right to life, possession, and freedom. We are naturally equal and independent <If we are naturally equal, how should we distribute resources fairly? Locked ingeniously claims a “private property” right that is entitled to us in proportion to our “labor,” which is much fair than claiming possession by force>. But, since no man is perfect in obeying moral duty, the state of nature is not perfect as well. Thus it is still reasonable for man to form a political society (though the reason is less desperate than the case of Hobbes).

Through Locke, the problem of our subjection to fear due to the sovereign’s absolute power is dealt with using three solutions: i) the curtailing of natural right justified only through consent and strict necessity, ii) the decentralization of power, and iii) right of revolution. The first mean by our voluntary authorization of the commonwealth to “make” and “enforce (= to punish infringement)” civil laws. The second mean by the division between the “legislative (= maker of civil laws; Parliament)” and “executive (enforcer of civil laws)” powers, so that the potential abuse of law by one party would be constantly in check. The third mean by our right to impeach the Parliament when found not keeping what is entrusted by us. This is possible because Locke’s transfer of our private sovereignty to the commonwealth is not to a third party, and so the contract is revocable and revisable. In other words, we can sign a new contract with a new Parliament as the legislative power it holds is a fiduciary power consigned by the people.

Locke’s model of social contract is still problematic for our purpose because the consent we implicitly give to limit our natural right is to the will of the majority. Surely, if the civil laws that is at issue has clear moral law behind it (e.g. punishment of theft or murder), then we are obeying to what is naturally right. But there are controversial civil laws (e.g. laws on homosexual marriage, abortion, percentage of tax used for welfare) that we cannot easily draw an answer as to what is naturally right. In such cases, we would be obeying not to moral law but to the majority’s will. Thus, we are not free in that we are actually subjected to another’s will when we are on the minority’s side. For example, we would not say a student who went to the beach for class fieldtrip is free when he wanted to go to the mountains even if he had consented to the larger number of votes.

The problem of obeying another’s will, the arbitrary will (= servitude) is dealt by Jean-Jacque Rousseau by the so-called general will <volonté générale>. For Rousseau, a contract is an equal exchange, and so the one-sided transfer of private sovereignty that relinquishes our freedom is flawed as the receiving party then is not obliged to assume any duty towards us anymore (i.e. to keep what is promised). To fix this flaw, we have to exchange our freedom for another kind of freedom. To make this possible, Rousseau proposes a societal community in which each of us hold sovereignty on all others. This way what we lay down as a private person in a society is compensated as a member of society, and so we are not obeying the arbitrary will but to the general will which in principle is my will. Though Rousseau envisions his model of social contract to be practically possible only for small-sized communities (as “direct democracy”), it is sufficient for our purpose to demonstrate that civil law and our freedom is compatible in social life.

However, the discussion is not over as we seem to have taken granted that we willingly obey moral law by putting forth that there is natural moral law. Surely, if we give credit to the above demonstration, then the parts of moral law that underlies as the foundation of civil law can be freely obeyed (i.e. because we freely obey civil law). But, clearly there are leftover parts of moral law that is not encompassed by civil law yet binds us in social life.

To elaborate, let us bring in C.S. Lewis’ talk* <In the Book I. Right and Wrong as a Clue to the Meaning of the Universe of Mere Christianity, C.S. Lewis talks about morality before any religious or theological presumptions. I find his way of reasoning very clear in conveying to a wider audience>. on the quarrels we see in routine. We almost always get to see people quarreling in a way of appealing to a standard of behavior that they expect the other to already know of. For example, “That is my seat, I arrived there earlier,” “I treated you last time, so treat me this time,” “Leave me alone, I’m not doing anyone any harm,” “It’s not that I didn’t save him but couldn’t because I might have died too,” “How would you feel if someone did the same to you,” etc. As you can see, the contexts in which such dialogues come and go would probably not put the speakers into prison (unless they become too emotional and cause violence of some sort).

What is intriguing is that we appeal to such standard in small and big settings while we make excuses for disobedience on our side. It must be noted that when we make excuses, we rarely totally deny the legitimacy of such standard. We convince either that we have somehow not went against it or that our case is an exception. From this, two points are clear: 1) we have this shared standard that we cannot really get rid of in our minds and 2) we have hard time willfully obeying it. By the first point, it seems that there is natural moral law. By the second point, it seems that there is no natural moral law, or even if there is, we can never freely obey as it does not match our nature.

The problem is how compatible is the moral law with human nature. To be on the same page, the moral law we assume in social life generally upholds the value of being “unselfish” (/benevolent/fair) over “selfish” (/greedy/unfair). It is our task, then, to figure out whether human nature is selfish or not. To solve this task, let us bring in Mencius and Xunzi <These are two of the most influential thinkers in China during the warring states period when unparalleled political chaos between states had put the morality of human nature into question> along with Rousseau and Hobbes to the table.

On one side of the coin, Rousseau’s state of nature is in stark contrast to that of Hobbes’ in that he views human nature to have been corrupted by civilization, especially by the notion of private property. Prior to us having a notion of which is mine and yours, we would have willingly shared what we had with others by our nature to care for others.

Rousseau’s view is supported by Mencius as he contends “the inherent goodness of human nature” <性善说>. Mencius describes that we all have the “unbearable mind” to wish to help when someone is in trouble. This unbearable mind is conceptualized as four sprouts (i.e. metaphor from agriculture that refers to the beginning stage of our mind) – benevolence, righteousness, wisdom, and propriety <四端 恻隐之心,羞恶之心,是非之心,辞让之心>. In response to the thrust that “courtesy (social norm of morality)” <> would not have been necessary if we were innately good, Mencius admits the need of moral education to grow our four sprouts, but this would be fruitless if we did not have the sprouts from the start.

On the other side of the coin, Xunzi supports Hobbes’ view as he contends “the inherent evil of human nature” <性恶说>. Though Hobbes do not view human nature as evil, but they are in agreement that we are driven by “self-interest” <>. For Xunzi, the unbearable mind to help others in trouble is either herd instinct (i.e. we help because it is for the preservation of the society/herd that we belong to) or social convention (i.e. a product of posterior education).

As the reduction of our morality into herd instinct and social convention is a popularly accepted argument, I would bring in Lewis for counterbalance. On herd instinct, Lewis admits that our desire to save someone in trouble is herd instinct. But, a clear line is drawn between i) feeling a desire to help (= instinct) and ii) feeling we ought to help whether we want it or not. To elaborate, when we hear someone crying for help, we feel two desires: a desire to help (herd instinct) and a desire to keep out of trouble (self-preservation instinct), but we would notice within us a third thing that tells us to obey the desire to help and suppress the desire to keep out. Note that the judge between two instincts cannot be one of them.

On social convention, Lewis points that we cannot mistake everything we learn through education as social convention. For example, though we learn the multiplication table, we do not say that the mathematics is a human invention. Thus, it is a matter of which category the moral law should be classified to. In response to the thrust that moral law is in fact human invention due to the different moral values in different time and place, Lewis defends that such differences to not amount to a total difference <Lewis creates a chart of difference in moral teachings among ancient Egyptians, Babylonians, Hindu, Chinese, Greeks and Romans in the appendix of The Abolition of Man>. For example, it only differs as to what kind of people we should be unselfish to; selfishness has never been totally admired over unselfishness.

Hitherto, it seems that it is satisfactory to say that human nature is not completely in accordance with moral law, but not completely immoral as well. David Hume is representative in rejecting the deadlock of “human nature as inherently selfish vs. inherently unselfish.” For Hume, we are greedy (selfish) AND generous (unselfish). But, our generosity is aroused more by those we hold dear and less by those who we despise or are indifferent to. Thus, Hume claims that it is through our passion (sentimental response to a given action) that we can be truly motivated to act.

            Hume’s view seems to be unsatisfactory for our purpose, however. Though Hume explains that we can distinguish the “pleasure/displeasure we feel as the receiver of an action that is beneficial/detrimental to us” and the “pleasure/displeasure we feel as moral approval/disapproval” by putting us into the shoes of a spectator, and thereby use moral impulse to setoff immoral impulse, it is still subjected to favoritism. If arousing our moral impulse is harder, or perhaps more painful, for strangers than for our kin, then we would hardly be freely obeying the moral law whenever disrupted by passion as in social life we ought to be fair. For example, even if I am the president of my company, I ought to willingly treat the employee who is my son and the employee who is a stranger equally. Relying on our control of our moral impulse seems to be unreliable.

To proceed further, there are subtle or complicated situations in which we cannot clearly identify what our sentimental response to the situation is. For example, when you are called to a funeral of a pious Christian family, you would sometimes see that the family members express that though death is sad for a moment it actually should be celebrated as their deceased member is now with God, and they can one day meet in Heaven.   This was the case of my family, and I have seen that visitors were perplexed as to they could not describe what their sentiments are, and do not have any idea on what is the right response they should have for us. In such a case, we cannot confuse our “calm” moral impulse with our reason because we cannot even identify our moral impulse in the situation. This showcases that our passion is subjected to extern situations and is not the sign of our true self (i.e. what we truly want to do).

            Therefore, our unbearable mind (Mencius), the third thing that judges between instincts (Lewis), and other signs of human nature that testifies to our compatibility with moral law come as neither our invention, nor instinct, nor passion, but the so-called Reason. Compared to our invention, instinct, and passion, Reason is stable and so it is what we can rely on as to judge what we truly want to do. Thus, for us to freely obey moral law, we should demonstrate if by Reason we can willfully obey moral law.

            What we mean by Reason freely obeying moral law can be none other than obeying moral law purely for the sake of obeying moral law. This is the renowned categorical imperative by Immanuel Kant. If we were to obey moral law for other ends (e.g. helping in expectation of reward or gratitude) besides the moral law itself, we would be again subjected to external causes as we do when we obey due to our instinct or passion.

            The lock remaining than is whether we can willfully follow the categorical imperative. The key argument that Kant introduces is to match the law that we prescribe to ourselves (= maxim) with the categorical imperative that we can know through Reason. Kant’s thrust is that we would be willfully following a law if it is none other than ourselves that have chosen to abide by that law (= autonomie). In other words, we are autonomous, that is, moral law and freedom can be compatible when we take the categorical imperative as our maxim.

Last but not least, Kant’s logic may be sufficient for a philosophical contemplation, but it is difficult in practical application. Therefore, I would like to end our discussion by proposing through Lewis’ metaphor that there is necessity to obey moral law in social life just as to obey civil law. Say each of us are a ship on the ocean, and we are sailing to a destination. The map we use and the destination we are heading have to be in common in order to avoid any lost ships or collisions. This map is our Reason. By necessity, we would be willfully abiding to rules that prevent us from intentionally colliding or assaulting other ships. These rules would be the civil law. But, there is also one more kind of rule that we must abide and it is necessary, that is, the rule to be seaworthy by constantly checking our engine to see if we ourselves are “okay.” For without this rule, we may end up breaking down here and there, catching fire and smoke, which in worst case would make us collide into other ships and potentially ruin the whole fleet, the society. This rule is the moral law. Then, it follows that we ourselves need to be “healthy (i.e. obeying moral law)” as a private person in a society.

In conclusion, the voyage to demonstrate whether law and freedom can be compatible in social life has bypassed the following flow:

[1] Law in social life defined as civil law and moral law;

[2] Hobbes’ view of our state of nature that necessitates social contract;

[3] My view that we are not free in the state of nature because we subjected to threat of our life and fear; social contract resolves the problem of threat of our life;

[3] Locke’s model of social contract resolves the problem of fear of the sovereign by rights of revolutions;

[4] Rousseau’s model of social contract resolves the problem of arbitrary will by general will;

[5] My analysis that [2] ~ [4] demonstrates the need and possible willful obey of civil law;

[6] My view that we assume moral law in social life even for situations that civil law does not encompass (Lewis);

[7] Human nature is inherently selfish (morality as herd instinct and social convention) vs. unselfish;

[8] Hume’s view that human nature is both greedy and generous, but affected by passion;

[9] My view that moral law is does not come from human invention, instinct, nor passion;

[10] My view that moral law comes from our Reason;

[11] Kant’s view that we can freely obey moral law by taking categorical imperative as our maxim (autonomie);

[12] My view that moral law is necessary for freedom in social life just as civil law is (Lewis).

Bibliography

Hobbes, Thomas. Leviathan. Hackett Pub Co., 1994.

Locke, John, Second Treatise of Government. Hackett Pub Co., 1980.

Rousseau, Jean-Jacques, On the Social Contract. Hackett Pub Co., 1987.

Hume, David, Moral Philosophy. Hackett Pub Co., 2006

Kant, Immanuel, Grounding for the Metaphysics of Morals. Hackett Pub Co., 1993.

Lewis, C.S. Mere Christianity. William Collins, 2017.

Mencius, and W. A. C. H. Dobson. Mencius. University of Toronto Press, 1963.

Xunzi. Xunzi. Foreign Language Press, 1999.

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