25. marraskuuta 2009

Does law constitute a condition for, or an obstacle against, liberty?

In some ways law is the opposite of liberty. Increasing the power of laws will impose more restrictions on the liberties of people, therefore reducing their overall liberty. One cannot have ultimate liberty with laws. However in other ways, law enables liberty.

The best way to answer the question of law being or not being an obstacle against liberty is to observe and theorize about the societies that implement different views on the matter. This will give the question more realistic context and will also help to determine whether or not the proposed ideas are actually viable or beneficial.

First of all, lets take a look at the extremes. A state of anarchy, such as after a revolution, will guarantee liberty only for the short duration at its beginning. After that, a party or person will always assume power and begin imposing restrictions on liberty. We can see proof of this by observing coups in modern history. There, often a group drives the people to demand an increased amount of liberty from the leaders of the state. Most often their demands are refused or the changes too slow which leads to a revolution to remove the restrictions, which it does for a short while. However afterwards a group or person will rise to power to fill the vacant leader spot and will often impose new and possibly even harsher laws, which will in term reduce liberty. Therefore, a complete lack of laws means an unstable society in which liberty will find hard to survive.

The other extreme is totalitarianism. As with anarchy, radically authoritarian societies such as dictatorships have a tendency to fall before long. Usually they argue that one needs strict restrictions to guarantee the possibility of liberty. And yet if such an extreme amount of restrictions are imposed, liberties are also reduced directly and in larger amounts. In theory the restrictions would guarantee perfect stability and protection for liberty and yet in practice they leave very little liberty to protect. And in the end, stability is not guaranteed. The people naturally refuse to have their freedom limited too much and will get the laws to be relieved. We can conclude from this that a very large amount of laws and restrictions are not practical and do not allow a stable amount of liberty. The true answer can only lie between the extremes.

First, lets observe authoritarian societies along with more centralized and conservative democracies. In these societies laws are strict and actively enforced. Sometimes even the people themselves are more conservative and strict, loosely enforcing further restrictions by peer pressure - “unwritten laws”. An advantage of such a society is that liberty has better protection. Well-enforced laws guarantee that it is hard for people to take advantage of or harm other people. It also makes it hard for a group of people to act as vigilantes or repress people for different views or origin.

On the other hand, a focus on laws makes a society more rigid and progress slower. Although this has the advantage of making the society more stable and less reactionary it also means that the society has a tendency to stagnate and be left behind in civil rights compared to more liberal societies. Stagnation in term leads to dissent among the people, who crave to achieve what other societies have already. This will in term actually reduce the stability of the society and will eventually lead to revolution and uncertainty, after which liberty is not guaranteed. This has happened in recent history, such as in both the Russian Empire and the Soviet Union and in Republican China. All these nations fell due to stagnation. The times after it were not mostly good for liberty. For the Russian Empire and Republican China, civil war and repressive regimes followed.

History shows that the value an authoritarian society has for liberty is dependant on the quality of the laws and the existence of an efficient and uncorrupted government. A poor, corrupt or bureaucratic government will quickly harm the liberty of the people. An inefficient law system or excess bureaucracy will restrict liberty more than enable it. In general, an authoritarian government is good for the people and good for liberty only if the government is idealistic, motivated and most importantly, stable. Authoritarian societies that have succeeded well in this however are sometimes an excellent place for liberty to prosper. Great empires, such as the Roman Empire in ancient history and the British Empire in more recent, while both authoritarian, were both liberal for their times.

Most modern nations while no longer authoritarian are still focused on law and agree with the claim that law guarantees liberty. Even societies, which could be considered liberal or progressive, are reluctant to reduce the power of law. In some areas, such as economy the trend is even progressing against excess liberty, away from the free market that dominated during the early 20^th century. These societies are also often relatively liberal. For example the US and most European countries, while focusing on strict laws in some areas, are progressive and liberal in other areas, such as civil rights.

The opposite of a law-based society is a libertarian society, a society that argues that strict laws are not required to guarantee liberty. Instead, they claim that a society is able to manage itself. They refuse the notion of conceding some freedoms in exchange for better protection. The advantage of this kind of society is that the society directly has more liberty – more rights more freedom. People are not restricted and are allowed to do much of that which they cannot do in a law-based society. A libertarian society would likely be more progressive when it comes to civil rights than a law-based society

Yet libertarianism has some major disadvantages. Due to the lack of truly libertarian societies in history, it is to be questioned if a society is able to regulate itself like the libertarians propose. Like it was with anarchy an excess amount of liberty will mean a collapse. The economical principle based on libertarianism – the free market has showed itself to be ineffective and vulnerable and also less effective when it comes to implementing environmental reforms or support social welfare. Also, the free market largely caused the Great Depression. Libertarian societies also have a larger weakness to radicals and extremists who are given more room to maneuver and undermine the nation and its stability.

As both views have a significant number of advantages and disadvantages, it is likely that it is not right for a society to be either strictly libertarian or strictly focused on laws. The best answer might be a combination of both, putting together the advantages and canceling out the disadvantages. Many modern societies are such a combination. Often societies are more libertarian or – liberal – when it comes to civil rights for example.

Indeed, if we were to combine the better parts of the two societies, we should take a libertarian view on civil rights. Any kind of discriminatory restrictions should be first to go, for obvious reasons. Freedom of speech and religion should be next. However, some moderate laws restricting “rights” should be left in place, with the purpose of indirectly protecting liberty. Privacy laws should remain, increasing privacy in personal affairs unless the info is invaluable for anonymous research or a police investigation. Gun laws should restrict the access of guns to the mentally unstable and children, while permitting conditional access to sane adults.

On the other hand we should take the authoritarian and centralized view on economy. History has shown that the free market cannot manage on itself. This leads to believe that government control and laws are required. At the price of restricting the liberty of the economical system, a state can guarantee a more stable economy, adherence of environmental laws and benefit to society.

We should also take a slightly law focused view on governing the nation. The perfect form of government to support liberty would be a centralized democracy, which avoids bureaucracy and stagnation as well as an excess amount of freedom so as to avoid anarchy.

To permit the existence of liberty in a society, laws must exist, but not in excess. Extremes should be avoided at all costs. There are advantages for liberty in both libertarian and law focused societies, but also major disadvantages. The greatest amount of liberty can be achieved by comparing aspects of both libertarian and law focused societies. More laws should be enforced in economy and government, while civil rights should be treated liberally. Moderation is key. Only through laws can liberty exist while excess laws will be obstacles against it.