25. marraskuuta 2009

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

There are several approaches that can be considered in trying to answer this topic question. Two radical views will be considered in this essay and put against each other to define if law is a condition for, or an obstacle against liberty.

To start with, one needs to define what is meant by liberty. According to anarchy liberty gives people absolute freedom to do whatever they like, and is thus defined as absolute liberty. This notion clearly considers laws as being an obstacle against liberty. Many may think that liberty for everyone would cause absolute folly or madness and thus result in the destruction of societal structure, which upholds civilisation. The original concept behind the notion of anarchy is not so black and white, and does not favour madness or destruction. It is quite the opposite to the term of anarchy that is commonly used in modern language, which stands almost as a symbol for the words ”chaos”, ”outlaw”, and “violence”. The underlying though behind the original notion of anarchy is that if laws were to be abolished, then people themselves would use common sense to come to terms with each other. This would involve agreeing on certain rules, which for example would keep everyone out of harm’s way, provide enough food for everyone, etc. It can be argued that these rules are nonetheless laws to govern others, they only form themselves under a different, maybe more friendly name. Again this point would be a false generalisation of the term law. The difference between ”laws” and ”rules” are that laws are decisions that are made by some form of government, while rules would not be imposed by anyone, but should come out of the peoples’ own free will to communicate with each other and live in harmony. The laws that governments impose cannot, according to liberalism, take into consideration everyone’s opinions and needs. There are usually a few people that are selected to represent the majority of society, and this system does not guarantee wellbeing to people living under it, neither does it let the individual choose whether or not they want to be part of that society.  Anarchy seeks more to build different communities of people than societies. Participating in these communities is up to each and every individual, but the rules of the communities are established through mutual agreement. Free communication, and action through one’s own free will, as well as common rules that everyone in the considered society agrees on, is what anarchy classifies as liberty. For this anarchical freedom law seems to be by all means an obstacle that is stopping society from attaining absolute liberty.

 The opposing notion for absolute liberty is liberalism. Liberalism also emphasises liberty of the individual, as indicated in its name, but takes a different approach to defining what it is. According to liberalism anarchy has a flaw: it fails to consider different types of mentalities. What is meant by this is that society is divided into different types of individuals. An unknown fraction of these individuals tend to be naturally constructive while the others are naturally destructive. If society contained only the constructive individuals, anarchy would work, but since this is not the case the notion of anarchy is considered through liberal thinking to be rather naive. The destructive individuals could not only abuse their anarchical freedom to create chaos but also exploit others while not controlled by the government, which could potentially result in many people having much less freedom, if under the influence of other constraints, than if under the constraints and laws of a government. The starting point for liberalism is thus to create a type of government or society that provides the maximum amount of liberty to each of its individuals. The only laws this kind of government should have are ones that prevent the individuals from limiting others’ freedom as well as harming others. John Stuart Mill addresses the problem, and tries to create a valid set of rules that matches utilitarian needs with his work On Liberty. He claims that political power should only be justified in order stop harm being done to others. Plainly put, exploiting others is also considered as harm as well as any other form of limiting an individual’s freedom. According to liberalism absolute liberty of a “destructive” individual would result in less liberty of another individual in the same society. To maximise liberty for each individual laws have to be imposed which enable everyone to have an equal share of liberty, and not any equal share but the maximum amount of equal liberty. For liberalism, law thus constitutes a condition for attaining liberty.

Liberalism seems almost like an extension of the original notion behind anarchy. It aims at more realistic version of liberty and provides a theoretical concept of how it can be divided equally. Liberal ethics names anarchy and despotism as the main enemy to any community, and thus seeks to provide an alternative.  This kind of liberty is one where people are allowed to have possessions and are mostly responsible for their own fate, although the same unchangeable law governs all of them. Liberal democracy seeks to elaborate on liberalism itself and make it even more “realistic”. It takes into consideration that changes may be wanted and needed by the majority of people and thus gives them a chance to vote.

Law seems to be something needed in order to govern society, but political power as such can be executed in so many different ways that it needs to be defined.  Laws controlled through absolute power seem to be an obstacle for liberty in every case except liberalism itself, in which the laws should prevent abuse of themselves. For society itself to be free the laws that are brought about have to partially reflect the opinion of the majority, this seems a necessity in order to attain freedom. Anarchical freedom seems to rely on a simple concept of human nature which is somewhat naive. This freedom could easily be abused if put into practice, and would thus only provide the intended absolute freedom for everyone, to a minority of individuals. This kind of society on the other hand would reflect Darwin’s survival of the fittest, which is nothing close to a liberal society. This essay concludes with the argument that law constitutes a condition for liberty, in which liberty is considered freedom of everyone to act upon their full potential without limiting the freedom of others or harming others in any way. Though this sort of law does not exist, many examples of laws that enable more freedom of the individual than otherwise would be, do exist. Laws against dictatorial power in most democratic countries and feminine rights are mere examples of these.