25. marraskuuta 2009

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

The word law, by definition, is very binding as it binds people to a set of rules which, if broken, result in a punishment. But on the other hand, the vast majority of people believe that laws are a positive thing and that they are free even though they are binded by laws. So it’s very hard to judge whether law is a condition for liberty or a hindrance against it, as law seems to have aspects from both sides of the argument.

If law didn’t exist, everyone would be free to do whatever they want, and that’s liberty at its very core. Having no restraints or fears of punishment would give us the chance to act truly freely, because deciding not to steal from another person for the reason that you fear you will get caught and sentenced to prison is not a free choice. Your judgement was clearly affected by an outside threat, and therefore you couldn’t weight each option’s “natural consequences” so to speak, the consequences the act itself would cause, for example the harm caused to the victim and the monetary gain you would receive. The term natural state, which has been used by many philosophers to reason why organized society must or mustn’t exist, can be applied here. In natural state, where no laws or such exist, people can make absolutely free choices. Every choice should be compared to what it would be in natural state, to define if it was a free choice. Whenever you decide something which includes the fact that it’s illegal, you aren’t making a free choice as the fact and the consequences of it being illegal influence your judgement. That can be proven by comparing it to a choice made in natural state as making that choice would not have you thinking about any laws or prison time at all. So law basically denies us the chance to make a free decision in fields it governs, because we can’t escape law and its punishments because we are binded by them, whether we want it or not.

There is a problem here, however, which we face with this kind of thinking. Liberty by no means is only the chance to do whatever you want, it’s also the chance of getting to decide what happens to you by yourself. So if someone decides to steal from you, you clearly don’t have the liberty to decide whether you allow him to do that or not, he steals from you anyway.  Therefore we can say that law helps us to maintain our liberty by restraining other people from hurting us, stealing from us etc.

But, that seems to be a paradox. Law helps us to maintain our liberty by taking away other people’s liberties.

It seems that laws were created with a sort of evaluation criteria in mind. For example, you don’t have the liberty to punch anyone so that everyone will have the liberty of bodily integrity. While it seems fine and reasonable, the fact that it restrains our liberty cannot be passed over.

Philosophers have categorized liberties into two different categories, positive and negative liberties. Negative liberties are those which require other people not to violate our liberties, for example the freedom of speech or the freedom to not being denied the chance for education. Positive liberties includes liberties which require some actual doing, it’s not enough that you have the chance to go to school if you want to, you must also actually be able to go to school, which means that for example money or place of residence cannot be an obstacle to do that. But these liberties only include the liberties that the popular opinion accepts. For example, the freedom of starting a bar fight or the freedom to lie is not included in either of these categories. They have been left out for understandable reasons, as these liberties would violate many negative liberties. This is the view that most people share with philosophers, they believe in either negative or positive liberties, or both. So it seems that law doesn’t violate liberties after all, as it always includes most negative liberties and some or most positive liberties. This is based on the laws of most western countires, the ones considered to allow most freedom, because if laws deny many negative and positive liberties they are clearly an obstacle against liberty.

But why isn’t the freedom of starting a bar fight a real liberty? It’s harmful or it steps on other peoples liberties are the most common answers.

But both answers are unmaintainable. First of all, why can’t a liberty be harmful? If I don’t have a freedom to do something, then I don’t have that liberty. Just by saying that it’s harmful can’t deny it being a liberty. Eating is harmful if its done in too large amounts, as are many other things which are considered as liberties.

The second argument can be contradicted by simply saying that why should we go there where the fence is lowest? Why couldn’t liberties step on other people’s liberties only because it makes it harder to decide which liberties are more valuable, there’s no definition that they couldn’t do that. It’s just that most liberties that do that have been declared somehow void.

So it seems that law clearly denies us of some liberties, but on the other hand helps us maintain other liberties. It therefore is somewhat of an obstacle against liberty, but would it be any better if laws didn’t exist? The true question that should be asked instead of is law an obstacle against liberty, is that do we really want to be free? As stated above, the freedom of starting a bar fight and other such liberties are actual liberties which are being restrained by laws. But restraining our liberty by law is not to be considered a bad thing, as most of us would be happier with the freedom of bodily integrity than the freedom of hitting someone.

Restraining some liberties is a necessity to maintain other, more valuable liberties.