April Freeman Banner 2014

ARTICLE

Beyond the Law

SEPTEMBER 01, 1969

An editorial reprinted by permission from the July 24, ¹968 issue of MANAS, a journal of independent inquiry published in Los Angeles.

These are days in which the once vigorous confidence of men in the principles of the secular society is wearing thin. The "liberty" so ardently proclaimed by the eight­eenth-century philosophers has be­come a limp banner miscellaneous­ly stained by partisan spokesmen. Its purposes are so narrowly con­ventionalized that about all that remains of its splendor is a rhetor­ical ring. The ideal of fraternity, while still cherished by many men, exercises no noticeable restraint on the application of technological skills to military slaughter. and the unquiet desperation of urban riots and student protests gives voice to denunciations of the in­equality in ordered social relation­ships.

What has gone wrong? No man of humane intelligence is ready to abandon the great conceptions by which the secular society was shaped. The ideals of liberty, equality, and fraternity still rule in all thinking about social ethics, but now we praise and declare them in a mood of despair instead of high expectation. The social systems constructed to embody these principles have turned against them in so many devious ways that the best efforts of men to serve them often lead to new falsifications. Have we made some mistake so deep lying that it uni­versalizes its disorder in what­ever we do? Can we identify that mistake without permitting our analysis to degrade into some form of hackneyed political criticism? This will be difficult to do in an age when thought can attract no wide attention unless it is politi­cally partisan.

Now it may be right here, in this insistence on political appli­cation, that our basic trouble lies. For the passion for law-making and political system-building results, sooner or later, in the estab­lishment of certain popular fictions about man and his life in society. These fictions are held to be so­cially necessary, and therefore pragmatically true. Quite possibly these fictions, and not the ideals of the secular society, are what is breaking down.

Take for example the founda­tion secular principle of the sep­aration of church and state. The virtues of this separation are self-evident. From any impartial point of view the defenders of separa­tion are unmistakably right in their contentions. How do we know they are right? They are right because the historical record of theocracy can be shown to be filled with intolerable tyrannies. No argument.

But it does not follow from this empirical support of secular­ism and separation of church and state that religious thought has no importance or will not continue. Practical secularists know this, of course. They simply argue for freedom of religion, contending that religious activity should never lead to sectarian control in public affairs.

Practical difficulties remain. Moral philosophy and religious teachings overlap. Political sys­tems claim a moral ground. The very ideas of liberty, equality, and fraternity spring from ethical inspiration. Even atheism, as Paul Tillich pointed out, has a religious aspect, and the United States Su­preme Court, in a recent decision affecting conscientious objectors, declared that free-thinking phil­osophical convictions must be re­garded as having the same stand­ing before the law as "religious training and belief." Meanwhile, dozens of writers have drawn at­tention to the parallels between authoritarian political states and the rule of theocratic empires in the past.

Secular Solutions Fail

What then does the secular state attempt? In practice, it endeavors to prevent the religious acquisi­tion of political power or coercive authority, and to foster, as well as it can, a generalized morality which derives its authority from reason and its sanctions from non-theological rules.

In itself, this arrangement may be said to be "ideal," so far as lawmakers are concerned. But the question which must be asked is whether the assumption that es­sential human problems can all be settled by law is a creeping de­lusion that comes to dominate the thinking of secular lawmakers. The obsessive concern with ideol­ogy and the insistence on political action as the only important means for improving the human condition are evidence of one of the fictions we spoke about earlier—the assumption that final human good can be defined in political terms. Any definition concerned with final good requires the postu­lates of religion or of religious philosophy. So, from this assump­tion by secularists, schism is built into the secular society.

The Role of the State

What, actually, is the secular state? It is an ordering social in­stitution which declares its neu­trality on all questions not di­rectly concerned with the public safety and the general welfare. It will not interfere with the lives and opinions of men, save in be­half of these practical ends. Many of the principles of the secular state are found in a passage in John Stuart Mill’s essay on Lib­erty. He wrote:

The object of this essay is to as­sert one very simple principle, as entitled to govern absolutely the dealings of society with the individ­ual in the way of compulsion or control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted individually or collective­ly in interfering with the liberty of action of any of their number is self-protection; that the only pur­pose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He can­not be rightfully compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others to do so would be wise or even right. These are good reasons for remonstrating with him, or rea­soning with him, or persuading him, or entreating him, but not for com­pelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some­one else. The only part of the con­duct of any one for which he is amenable to society is that which concerns others. In the part which merely concerns himself his inde­pendence is of right, absolute. Over himself, over his own mind and body, the individual is sovereign.

This is a view which, by reason of its crucial moral derivation, we dare not give up, but it is also a view, by reason of many practical failures, we are now obliged to look at very closely—or, rather, from a stance different from the one which gives it emotional but uncritical support. It is easy to assent to Mill’s principles on in­tuitive grounds; why, then, do they work so poorly?

Minimizing the Error

In a world inhabited by imper­fect men, some failure, no doubt, is inevitable. The question is, would less failure become possible if we reformulated the problem?

For example, the context of the discussion is the political issue of the state’s right to coerce. Mr. Mill would limit that right. What is the intent of social control? The securing of behavior that is socially tolerable or acceptable. What is the principle of limit to control? The intuitively given im­portance of individual liberty.

Now liberty is really an incom­mensurable value which always has its wings clipped by definition. If we actually knew all that lib­erty or freedom implies for hu­man beings we would be so wise that we would have no social prob­lems at all. Politics, however, as we say, is a practical matter, so, for the purposes of social arrange­ments, we give a pragmatic, work­ing meaning to liberty and make our laws.

But the transcendental content of freedom is neither contained nor exhausted by such political limitations and securities. There are other ways of considering its meaning.

The role of the State, practically speaking, is control. At best it is traffic-management and channel­ing. But there are other institu­tions—schools, for example—whose role is almost opposite. Schools are intended to liberate human beings—that is, unfold their capacities in ways that will enable them to taste the possibil­ities of freedom more extensively. Schools also teach the disciplines of mutuality, of cooperation and sharing. A human being, enlarged and matured by education, has more freedom than an ignorant man because he is able to avail himself of many more potential­ities of action, much wider ranges of choice in the exercise of his powers.

Precision Without Coercion

In education, there is also a principle of necessary order, but it is not coercive. For the student, discovery of the use of limits gives precision to his knowledge. So, in the context of education, the im­port of the question of freedom versus order is radically changed. Managing the subtle balances be­tween these two principles is the essential process of growing into maturity, and education is the collaborative art which helps in­dividuals to learn this manage­ment for themselves, so that they eventually become independently good at it—which is to be free.

Coercion plays absolutely no part in education; it appears only when there is some perversion or breakdown in the process of edu­cation. This hardly needs argu­ment.

The natural teacher never im­poses arbitrary limits on his stu­dents. A reasonable limit gains personal adoption by the students. The teacher may intimate the ne­cessity of limits, but he does not impose them. Any course of study will require some boundaries, in order to achieve a focus, but edu­cation does not begin until the student sees the function of the boundaries and begins to decide for himself when to stay within them and when to go beyond them. An arbitrary limit accepted by the student would not give him a gen­uine form to work in—but only a pseudo-form, a context of indoc­trination. Some day, if he has spirit and intelligence, he will abandon that form as a barrier to his growth.

All this is elementary. We know it from our intuitions about hu­man growth and our experience in education and in human relations. But putting this knowledge to work in teaching involves endless delicacies, gentle encouragement, patience, and severe regulation of one’s bursting eagerness to help people along.

All this is elementary, absolutely certain in respect to human devel­opment, yet it has nothing to do with coercion, nothing to do with politics, nothing to do with well-considered organization for oppos­ing or controlling tyranny. But it has everything to do with what we call the good society. Unless these educational realities form the foundation of social life in individual relationships, there can­not be a good society. This, too, is elementary.

The Primary Sources of Goodness

Here, then, is the focal trouble with John Stuart Mill’s essay on Liberty. It ignores the primary sources of goodness in human life and concentrates on the secondary considerations of political forms. Most of modern thought similarly concentrates on secondary consid­erations. And that is why the "ideal" political forms, logically described and brilliantly defended, produce so many terrible dilem­mas. Our exhaustive deliberations concerning these forms neglect the all-important fact that every po­litical system—good, bad, indif­ferent—floats in a sea of primary human relations which coercion can never order or get at, except smotheringly and destructively. Political thinking by-passes the very springs of all the primary good in human life. Then, when we experience so much pain from political failure, we conclude that we must remedy our politics with a better system, when the fact is that our real difficulties are not political at all. The trouble orig­inates in our lack of attention to the uncoercive disciplines.

It is difficult to obtain agree­ment for this view because there is so much pain generated by poli­tics. But to accept political diag­noses for the pain is to accept a static, depressed estimate of all men. It is to reject the idea of human progress, as distinguished from the external forms of social or political progress. Today, at last, we may be in a position to recognize this mistake, simply be­cause recent history has proved how little we really know about the meaning of progress.

Freedom and Order?

It is of course a cliché of do-nothing passivity to claim that ed­ucation is the alternative to polit­ical activism. But a basic com­plaint of all political critics of modern society is that our educa­tion is no good, either. And it is certainly a fact that modern West­ern education has been the chief agency for creating faith in the fiction that politics will solve all our problems. Only an education independent of ideological fictions can serve our need.

But the need for social controls is real, isn’t it? Of course. In political dialogue, you do not ar­gue this question unless you are an anarchist. The crucial point, however, is that the problem of coercive control is always allowed to absorb our energies too soon. And when this happens in edu­cation, it is always fatal. The teacher who jumps to control of his students, interrupting tenta­tive efforts of their own at self-limitation, becomes an anti-human force, a destroyer of education. He is abolishing or limiting free­dom when he doesn’t need to. You could say of such a teacher that he has been infected by the polit­ical approach to life, obsessed by the last-ditch necessities of coer­cion. He may not know any better. But he makes the invasions of political control more and more likely, and perhaps "necessary," with every interference with the self-discovery and self-control of his students. Every act of arbi­trary control in education is a self-fulfilling prophecy of human defeat, generating the necessities of future coercion.

The problem of freedom and order can never be settled at the level where the cause of true hu­man freedom is already lost—the political level. The more you try to establish freedom at that level, the more you fence it in. And the more it is fenced in, the bitterer the disputes of political rivals with one another. How else can things go, when you discuss freedom only in terms of controlling it by coercion?

Critique of Mill by James Fitzjames Stephen

It is interesting to look at a long-neglected criticism of Mr. Mill by one of his contemporaries. We have for review James Fitz­james Stephen’s Liberty, Equality, Fraternity, first published in 1874 and now reissued, with R. J. White as editor, by the Cambridge Uni­versity Press (1967, $7.50). Ac­cording to the jacket:

Stephen’s work is written as a systematic denunciation of John Stuart Mill’s political thought. It is thus of great importance in the his­tory of Utilitarianism, and also as the most forthright and systematic of the Victorian attacks on Democ­racy. Against Mill’s hopes for an educated populace, Stephen insists on the prime need for coercion. He denounces Mill’s concept of Liberty as destructive of the social order and denies that the concept of jus­tice has any necessary connection with the ideal of social equality.

This introduction is enough to make you wonder if Stephen is worth reading at all. But the fact is that his arguments are brilliant, and even persuasive, since he at­tacks Mill with all the realities of social experience which contra­dict the fiction that social control through secular political power issufficient to solve human problems. In one place Stephen says:

I believe it to be simply impossible that legislation should be really neutral as to any religion which is professed by any large number of the persons legislated for. He that is not for such a religion is against it. Real neutrality is possible only with regard to forms of religion which are not professed at all by the subjects of legislation, or which are professed by so few of them that their opinions can be regarded as unimportant by the rest. English legislation in England is neutral as to Mahommedanism and Brahman­ism. English legislation in India proceeds on the assumption that both are false. If it did not, it would have to be founded on the Koran or the Institutes of Manu. If this is so, it is practically certain that coercion will be exercised in favour of some religious opinions and against others, and the question whether such coercion is good or bad will depend upon the view of religion which is taken by different people.

A little later Mr. Stephen con­siders what the secular authority must say to a religion claiming divine authority for its teachings:

Your creed is, no doubt, divine, and you are the agents of God for the purpose of teaching it, but lib­erty of opinion is also more or less divine, and the civil ruler has his own rights and duties as well as the successors of the Apostles. But, con­venient as this is, it is a mere com­promise. The theory is untrue, and no one really believes more than that half of it which suits him. If spir­itual means that which relates to thought and feeling, every act of life is spiritual, for in every act there is a mental element which gives it its moral character. If tem­poral means outward and visible, then every act is temporal, for every thought and feeling tends toward and is embodied in action. In fact every human action is both temporal and spiritual. The attempt to dis­tinguish between temporal and spir­itual, between Church and State, is like the attempt to distinguish be­tween substance and form. Formless matter or unsubstantial form are expressions which have no meaning, and in the same way things tem­poral and things spiritual presup­pose and run into each other at every point. Human life is one and indivisible, and is or ought to be regulated by one set of principles and not by a multitude.

What a pity this was not said by Mr. Mill instead of Mr. Stephen! If Mill had said it, it would have been a solid brief for the cultivation of those pre-polit­ical virtues on which all good politics must depend—for the evolution by individuals of those self-regulated forms of free action which solve the problem of con­tent and form, of freedom and order, before its contradictions and failures reach the morally blind jurisdiction of the body pol­itic. For that unity of being, that balance between spirit and matter, cannot really be achieved at the political level except by the coer­cion and control of the thoughtless majority by the wise minority in which Mr. Stephen believes. In short, we cannot ever use in free­dom, fraternity and equality the truth Mr. Stephen declares, with­out taking it out of his hands as a legislator.

For he is, after all, determined to coerce. As he says:

The real difference between Mr. Mill’s doctrine and mine is this. We agree that the minority are wise and the majority foolish, but Mr. Mill denies that the wise minority are ever justified in coercing the foolish majority for their own good, whereas I affirm that under circum­stances they may be justified in doing so.

And, alas, Mr. Stephen has the evidence of immoral and unprin­cipled history on his side. What­ever the political ideals declared, minorities do work their way to partisan control, and the only val­ue a constitution and the rule of a secular state can show for their claims is in serving as a not too efficient brake on this tendency.

Mr. Mill is really defending an educational principle, but at the political level. No coercion is a rule in teaching. But he presses this principle into service in an area of life where coercion gets all its working definitions—where, in­evitably, his principle withers and dies. That principle can grow strong only in the circumstances of unqualified hospitality to free­dom; and it will grow strong, also, only under deliberate, individual self-development by human beings. A people in whom the discipline of freedom is strong enough can overcome the rule of coercion, but only by not needing it. This is not an ideological consideration.

Mr. Stephen, in turn, is really misapplying the philosophic con­tent of "whole-man" education, bending its radical and unbreak­able unities into an argument to defend coercion at the political level. This is an abuse of reason.

Neither in theory nor in prac­tice can either view succeed.

Lawmakers will of course go on making laws, and anarchists will of course go on opposing them, while the failure of exist­ing laws will continue to create demands for greater legislative severity. There is no way to pre­vent these monotonies of history. What can be done, however, by those who understand such diffi­culties, is to give all their efforts to the resolution of dilemmas of freedom and order within the unity of individual human beings, knowing full well that when these dilemmas extrapolate to politics, there can never be anything more than bumbling, faulty, expedient, and finally very cruel ways of meeting the problems they create. The fiction that politics can deal with these problems is doubtless the greatest delusion of our age.

This is not to suggest that the making of good laws has no im­portance. But it seems obvious that wise laws can be made only by men intelligent enough to see that no people on earth can be legislated to either individual or collective salvation; that laws can­not direct the creative potential­ities of human life; that coercion dare not intrude upon the becom­ing of good men, which is a proc­ess entirely separate from the con­trol and prevention of bad be­havior.

There is hardly a humanist jurisprudence, although there can be humanist influence on juris­prudence. The issue turns, quite simply, on faith in man, on under­standing how he grows and be­comes better and wiser, and on recognizing the transcendent im­portance of giving growth a high­er priority than control. 

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September 1969

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