Most believe that law restricts freedom. But the earliest system of rule, authoritarianism, granted no freedom. Law evolved to increase individual freedom by defining restrictions on tyrants, and later, defined individual rights that cannot be taken away.

Law is not to Restrict, but to Expand Freedom
Law is not to Restrict, but to Expand Freedom

Contents

Forward

TheMetaphysics we know, being the definition of the elements of thoughts themselves, dictates the limit of our own thought. That which we cannot conceive, we cannot think. Before the thought was first made, there could be no thought of it. For each genius in history, who transfers from the intellect to our common mind some new paradigm, there is a million after saying how obvious that idea was. Yet before that genius, the millions did not even find that same idea incomprehensible, nor even unimaginable—For to all those before, that same idea was completely inconceivable. From the origins of civilization to the current day, a series of great thinkers have twisted the path of the future hither and thither, until now we look back and consider their choices of inferior culture; when in fact, their minds still offer much we can learn about our current existence, which too often we assume could be no better than our intuition directs.

To understand the thoughts of others, we need to put aside the thoughts we have acquired ourselves through our own experience, and instead, imagine the world as the experience it is to them. For our colleagues of current time, at least we have some ideas to share of the world as it is now. But to understand the thoughts of those in the past, the effort is far greater. Most of that which seems obvious to us now was once inconceivable to anybody at all.

In the far, far distant past, before the origins of all logical reason had even been defined, the world was full of mystery and haphazard danger. As invisible and incomprehensible forces caused lightning to fall, and storms to ravage the land, and droughts to kill the growing food, the intelligent person might reasonably presume the invisible hand of some supernatural being at work, intent on shaping our lives. Yet even so, for each of those ideas, thinkers in our far distant past construed other explanations, each of which, in the three thousand years since, have shaped all our thought in ways we do not normally consider. Current political thought derives from their theories, handed down in between the confusions as to the workings of reality now modeled and predicted by science. It is to those earlier ideas we first need to turn, to set the stage for all that follows, separating out their wheat from their chaff. Before doing so, this preface presents some simple groundwork on the principle subject of political philosophy, which is, the nature of freedom itself.

What is Freedom?

From a philosophical perspective, it is correct to start with asking if freedom itself exists at all, before examining how much of it an individual should possess. Those who never studied philosophy believe they have freedom automatically, which is then taken away. If you ask why, they will say it's obvious. Just as for equality, they will say anything different from their own idea is wrong. Philosophers call such inferencesnaïve, because they are assumed true with neither search, nor skepticism, nor empirical verification of both qualification and contradiction.

Naïve notions can still be useful as the basis of research. For example, in developmental psychology the naïve concept of freedom created thetabula rasa model of cognitive development (Piaget, 1977), which has been very productive. First postulated byLocke (1691, 2:1), this model holds that we are born with no knowledge even of what is part of our own body and mind, and what is not. But while thetabula rasa model can help us understand how babies learn, such naïve concepts rapidly run into challenges (as has thetabula rasa model itself, most popularly byPinker, 1994). With reference to freedom for example, perhaps the apparentfreedom of will that we experience is an illusion, and in fact, we are no more than robots:

Machines will be capable, within twenty years, of doing any work a man can do.
-The Shape of Automation for Men and Management, H.A. Simon (New York, 1965)

Merely believing that freedom exists automatically cannot resolve whether the experience of freedom is no more than the product of our own ignorance. As some scientists believe machines are capable of completely replicating human behavior, they are continuing in attempts to do so (for example,Libet, 2004), ignoring the problem of whether the resulting machine itself then has consciousness--which it could with equal unprovability, asPutnam (1964) explained, and Nagel later expounded to perfection in "What is it like to be a bat?" (1974). the topic remains one of hot contention as computers continue to advance, rather ignoring the fact that politics is driven by experience of freedom, even if it does happen to be an illusion.

Moreover, from a philosophical perspective, it is not possible to answer the question as to whether we ultimately have free will in absolute terms. More importantly, questions concerning thesignificance of free will are only ultimately resolved via religion, or to some, denial of religion's meaningfulness. Political philosophy therefore segues out of the free-will debate by viewing religions as sets of beliefs which generate value systems. Theistic and atheistic sets of beliefs each lead to different value systems. The consequences are important in political philosophy, rather than the truth of the beliefs themselves; an approach now fashionably calledValue Pluralism (e.g.,Berlin, 1997). But if you must argue that politics and law should be based on our being no more than machines instead, please see the discussion on Dawkins, in this site's section on atheism.

Despots and Communism

Political theories in philosophy define authority for those who govern the freedom of others. But even in political theory, freedom has rarely been thought of something we have automatically, which is then taken away. This is because the most basic system of government istotalitarianism, where only the ruler decides what freedoms others have. In the absence of any political theory, totalitarianism becomes the default state, wherein subjects have no freedom at all except those the despot grants.

Schmitt (1927) is considered the first to define totalitarianism in the unequivocally modern terms of dialectical materialism:

The development can be traced from the absolute state of the 18th century, via the neutral (noninterventionalist) state of the 19th, to the total state of the 20th. Democracy must do away with all the typical distinctions and depoliticalizations characteristic of the liberal 19th century, also with those corresponding to the 19th-century antithesis and divisions pertaining to the state-society (= political against social contracts), namely the following, among numerous other thoroughly polemical and thereby again political antithesis:

Religion is antithetical to politics
Culture is antithetical to politics
Economics is antithetical to politics
Law is antithetical to politics
Science is antithetical to politics

-The Concept of the Political, Carl Schmitt (Berlin, 1927)

Totalitarianism is thus not only the starting tribal state, but a state to which a society can revert by removing all freedom granted by political processes.

Therefore, philosophers almost universally think thatfreedom is a state accrued through personal and sociopolitical effort, rather than naturally existent by necessity. In the West, this view has a very long history. It at least dates to one of Socrates' greatest allies, writing on the horrible tragedy of the Trojan war:

"No one is ever truly free; we are all slaves,
whether it be to wealth, or to fortune, or to the law,
or to other people restraining us from acting according to our will."
- Euripides,Hecuba (Athens, 424 BCE)

Ever since, philosophy has struggled to define what degree of freedom rulers should grant to their subjects, by defining limits on a ruler's power. History has found that a ruler who governs without consideration of the needs of those in his control are violently deposed. Rulers therefore ask philosophers, "what are the limits of my authority?" In a way, this rather turns the paradigm of individual freedom upside down, by posing the question,what must government do to avoid insurgency and revolution? Because it is the government which employs the service of political philosophy to such an end, the discipline usually considers the individual as necessarily controlled, and it is governments which really believe they should be truly free, but somehow discover there are limits imposed on the liberty of authority. As such, political philosophy mostly regards the justifications for revolution, such as by Rousseau, as rhetoric or propaganda, rather than rational thought. Instead, such outcomes are regarded by most thinkers as breakdown of reason and order, whicheveryone should strive to avoid.

Some people believe equality should be enforced, so that for example, when people die, their wealth is taken away and redistributed equally. Such systems ofcommunism have been tried before, including by Engels, Lenin, Stalin, and Mao. It has been found, much as Aristotle said, that the theories in practice are far worse than the results of democracy, although they are of benefit when the large, equalizedproletariat class is so poor, few can even read. In practical implementations of communism, it makes no difference how hard the proletariat work. All people are either lazy or deceptive about their wealth. Even worse, the people who are in charge of the redistribution become despots, often killing off people who threaten their power, or persecuting liberties they dislike. Often communist authority persecutes those who disagree with its directives. As such, the communist government becomes just as evil as the capitalistbourgeoisie that it is meant to supplant. There is no way to depose their corrupted leaders without revolution, unless one takes over who disagrees with the system and does away with it. So the question returns to the issue of creating a way to protect the liberty of the subjects, for which communism has not had any effective answer. Nonetheless, writers abound with new repetitions of theories about enforced equality. Here, we focus instead on the premise that some system of law is needed to ensure people have freedom, including freedom of mind. Communist regimes cannot provide that, thus, as noted, the Marxist theories of socialist evolution tend to be unstable.

Church and State

Due to the longstanding debate on freedom of will, some rulers turn to religious authority, and some to the denial of religious authority. That defines the primary and fundamental division, between the theistic and the secular views (in the West, as established by Augustine.

  • In thetheistic views, we are created by, and ultimately subject to the will of, one God, many Gods, or other supernatural entities. Observation of the nature of the world which such Beings are believed to have created and control therefore leads to the formation of divine or spiritual rules, over which even a totalitarian ruler could have no control. Often these are divine omens observed as otherwise random events, interpreted by a spiritual leader, or in the case of some beliefs, by a formal guide (such as the book ofI Ch'ing in Taoism). Sometimes these observations are given rational interpretations, which then are discussed as theology, or religious philosophy. Examples here discussed include Buddhism, Augustine, Aquinas, and Tsongkhapa. Also, as I explain, Aristotle and Locke use theistic premises to establish secular ideas.
  • By contrast, thesecular approach defines rules by reason and logic. The principles of internal coherency and avoidance of fallacy produced by rational systems can apply to theology and religious philosophy too, and sometimes are even defined symbolically in formal logic, which is defines abstractions of conception in the purest form. Ultimately it might be impossible to separate beliefs entirely from the rational in all cases. But through understanding the domain of mind, philosophers can define systems of thought which are consistent and extensible. Mathematics and Science are two disciplines which systematic thought directly produces. Similarly rational systems, such as democracy and socialism, are also products of secular political philosophy. Examples here discussed include those of Socrates, Confucianism, the Huang-Lao, Neoconfucianism, Cicero, Justinian, Grotius, Hobbes, utilitarianism, Marx, Engels, Lenin, Mao, Rand and Nozick.

In both religious and secular systems, the source of authority is split. The ruler no longer has absolute control, and some other social entity defines the limits of that rule. In Western religious societies, it is usually called 'the church' or 'ecclesiastical authority,' although of course older cultures also have temples, priests, and various kinds of shamans. On the secular side, the rules are defined by a state, typically as laws by some kind of legal protocol or court. Over time, both systems of authority have merged in many societies, leading to division between church and state authority.

Within any system of government, philosophy's goal is to resolve and define the source of authority, and how the rules of church and state are applicable, in any particular circumstance. That is, the philosopher is the ultimate arbiter as to what authority the ruler has, and what controls the ruler may reasonably apply on those who are governed within the society's system of church and state authority.

As noted in the section on Jefferson, the USA is in the unique position of providing freedom of religion in its social contract, while the social contract itself is based on a theistic premise. No single issue has caused more confusion, even for politicians as senior as the Secretary of State. Here is Ms. Albright demonstrating that she does not understand the USA's social contract.

Does Madeleine Albright Understand the USA's Social Contract?
Does Madeleine Albright Understand the USA's Social Contract?

Albright's statement is delightfully ambiguous, but it does appear to imply she would rather God not be the premise of our social contract. But there are others who are definitely wrong. In fact, even politicians who used to be attorneys do not understand this distinction. Here is Richard Santorum, who wishes schools to teach the theory of intelligent design:

Ex-Attorney Senator Santorum is Totally Incognisant of USA's Social Contract
Ex-Attorney Senator Santorum is Totally Incognisant of USA's Social Contract

If Santorum had said that the schools should be able to teach all theological ideas objectively, he might have had a point. However, as he wants the church to have 'influence and involvement,' he is violating the social contract that Jefferson defined, and which has been held up in Supreme Court a number of times. As too many corrupt the intent of the division, the Supreme Court does have to insist on actions that are somewhat to the detriment of education.

Rules, Rights, and Natural Law

Our first experiences of authority are denial of permission. In our childhood, we are told, "do not do that." So our first experience of authority is restrictive. If thetabula rasa model of cognitive development is correct, it would explain why most have a naïve view of freedom, that we possess liberty automatically, which is then taken away. Early systems of religious authority also use this naïve model, by presenting, for example, the 10 Commandments: one is free to do anything, but "thou shalt not kill," and "thou shalt worship no other God," and so on. Over time, more and more rules are accrued until they contradict each other: In fact, even the 10 Commandments themselves created many such paradoxes. For example, if a ruler forces subjects to believe in another God, and there is no way to stop that without killing the ruler, then may the subjects kill the ruler or not? With the existence of the possibility to kill at all, in fact, a nation without more formally structured laws can even simply end with widespread and indiscriminate massacres, in an attempt to create a perfectly obedient society (such as happened with the Khmer Rouge in Cambodia).

The Khmer Rouge Killed 1.7 million intellectuals and minority groups, 21% of the population.
The Khmer Rouge Killed 1.7 million intellectuals and minority groups, 21% of the population.

These paradoxes and problem led to a different approach. Rather than restrictive rules, some guides are defined as to which rule might or might not apply.These rights, in turn, endow leaders with authority to enforce common law. Just as ideas of political freedom are naïve, ideas about the derivation of this authority are naïve too. How did Western philosophers go about defining a better way to define rules?

Philosophers first needed to definewhat authority can control a government's authority. If there is no appeal a to higher authority, of some form, then there is no justification for their constraint on government authority. This led to a quest for the definition of anatural law: some kind of way that the world in which we live defines that which law should be, in a way that is not dependent on the opinions of the philosophers themselves, but which can be understood to be in some universal to all people.

From such natural law, the next step in more complex formulations of ways to limiting governmental power is to definenatural rights. From one perspective, rights restrict the application of rules to those which do not contravene basic necessities for the governed to survive. But instead, one can turn the system entirely upside down, and from this opposing perspective, rights actually define what the rules should be. That is,we start with no defined freedom at all and then add rights which not only themselves define that which we are permitted to be and do, but moreover, can define the rules and restrictions. Some philosophers argue that asocial contract is an exchange of people's rights for the authority to govern. This approach eventually led to the marvelous definition of natural rights as they are in the United States' Declaration of Independence.

Already, many will consider my statements with some justifiable doubt, considering the broad brush with which the history of political philosophy is painted to the current day. Here then I start by returning to the very beginning of civilization, before even the idea of law itself existed. While passing through, from that to the current day, the full extent of the dialectics between rules and restrictions, from secular or religious origins, or some combination thereof together, have now produced the current ideas of law; from the study of which, one may learn how much ignorance and misunderstanding still prevails concerning the real nature of laws, rights, and their provisions in current political systems.

Defining Terms:

There are three definitions ofnatural law:

  • Thetheological definition of natural law is a product of divine justice, from which some political philosophies derive principles for thehuman law used to judge specific actions in courts (most often calledcommon law).
  • Theclassical definition of natural law is the necessary restrictions and requirements on our actions necessary for people to exist in harmony, due to the nature of our communal existence. Cicero defined natural law to include necessary duties and obligations to society to act for the greater good. Even though Cicero is rarely considered the original source of theLaws of Nature in the Declaration of Independence, his conception was the foundation of that idea forLocke andJefferson:
  • Thesocial contract is the combination of natural law and natural rights. In systems with a social contract:
    • Natural law is the restriction on liberty, as derived from the social contract.
    • Natural rights, if defined, are the entitlements of all citizens, as produced by the social contract.

The ambiguity of the term 'natural law' has thus caused much confusion. In political systems with a social contract, I only use natural law in the third way.