For Law Plain and Simple

We hold it to be a fundamental position, that the people have understanding enough to know their interest, and to take care of it. The legitimate object of all governments and laws, therefore, is, to protect men from the force or fraud of others, and not to protect them against themselves. This the law cannot do; and, wherever it assumes this sort of guardianship over men, it degrades and corrupts them without rendering service. How many laws would be expunged from our code, if the doctrine now advanced were more regarded?

George Hay - Speech Delivered in the Legislature of Virginia in the Session of 1816-17

Three and a half centuries ago a party of pamphleteers appeared in England. These "supporters and defenders of liberty and propriety," known to history as the Levellers, stood against the "grandees" and "arbitrarians" of their day by calling for equality under the law and intelligibility in the law. "Yee know," they wrote in A Remonstrance of Many Thousand Citizens (1646), "the Lawes of this Nation are unworthy a Free-People, and deserve from first to last, to be considered, and seriously debated, and reduced to an agreement with common equity, and right reason, which ought to be the Forme and Life of every Government." They dreamt "that all the laws might be reduced to a smaller number to be comprised in one volume in the English tongue, that every free commoner might understand his own proceedings."

Law drowns in its own flood. More than a century later, another bold pamphleteer, Thomas Paine, called for a periodic review of the "whole mass of laws" in order "to bring this misshapen monster into form, and to prevent its lapsing again into a wilderness state." Thomas Jefferson drafted a bill for such a general revision of the laws of Virginia within a few days of his assuming legislative office in 1776, a revision that took two and a half years. Later when President, in 1802, Jefferson targeted the acts of government, writing: "[W]e might hope to see the finances of the Union as clear and intelligible as a merchant's book, so that every member of Congress, and every man of any mind in the Union, should be able to comprehend them, to investigate abuses and consequently control them." Paine advocated sunsetting old laws and acts after a fixed period making ongoing Congressional revision necessary: "If it was made an article in the Constitution, that all laws and acts should cease of themselves in thirty years, and have no legal force beyond that time, it would prevent their becoming too numerous and voluminous, and serve them within view in a compact compass. Such as were proper to be continued, would be enacted again, and those which were not, would go into oblivion."

Let's reunite law and liberty. "A great idea from the beginning has been working in the minds of this people, and it broke forth with peculiar energy in our Revolution," wrote William Ellery Channing. "This is the idea of human rights. In our Revolution liberty was our watchword... Liberty was always regarded as each man's right, imposing on every other man a moral obligation to abstain from doing it violence. Liberty and law were always united in our minds."

The Solonian Journal shall endeavor to further the cause of such a reunion of law and liberty, humbly recognizing that, in the words of Channing, "Legislation has its limits. It is a power to be wielded against a few evils only. It acts by physical force, and all the higher improvements of human beings come from truth and love. Government does little more than place society in a condition which favors the action of higher powers than its own."

An earlier version of this article appeared in The Minnesota Libertarian January 1995. I added the last paragraph in November 1995. I added the first sentence of the second paragraph in September 2007.

Update (Nov 26, 2007): After reading James Buchanan's book on classical liberalism and, more particularly, on the ethics of liberalism, I should like to emphasize how much more effective a revitalization of the "ethics of liberalism" would be than a mere taming of the wilderness of laws, as necessary and daunting as the latter task may be.

On the Sovereignty of the People

Here is an excerpt from the full translation of Benjamin Constant's essay On the Sovereignty of the People. Laws are meant to secure people's rights, not to infringe upon them. Constant's writing elucidates this first principle, what it means to have a Constitution that is in sync with our Declaration. The Ninth Amendment is to ensure this at the federal level, the Fourteenth at the state level.

When you establish that the sovereignty of the people is unlimited, you create and leave to chance in human society a degree of power too large for itself and which is an evil no matter into which hands it is placed. Entrust it to one, to several, to all, you will equally find it an evil. You will lay the blame on the depositaries of this power, and depending on the circumstances, by turns you will accuse monarchy, aristocracy, democracy, mixed government, and the representative system. You will be wrong; it is the degree of force and not the depositaries of this force which must be charged. It is the weapon and not the arm you must deal with severely. There are maces too heavy for the hands of man.

The error of those who, in good faith with their love of liberty, have accorded to the sovereignty of the people a power without limits comes from the way in which their ideas in politics were formed. They have seen in history a small number of men, or even just one, in possession of an immense power which was doing much evil; but their wrath was directed against the possessors of the power and not the power itself. Instead of destroying it, they have thought but to move it. It was a scourge; they considered it a prize. They bestowed it upon the whole society. It inevitably passed from there to the majority, from the majority into the hands of a few men, and often into one hand alone; it has done just as much evil as before; and the examples, the objections, the arguments, and the facts against all political institutions have been repeated.

In a society founded upon the sovereignty of the people, it is certain that it becomes no one individual, no one class, to subject the rest to one's particular will; but it is false that the whole society possesses over its members a sovereignty without limits.

The universality of citizens is the sovereign, in this sense that no individual, no fraction, no partial association can arrogate to themselves sovereignty if it has not been delegated to them. But it does not follow from this that the universality of citizens, or those vested by them with sovereignty, may dispose sovereignly of the existence of individuals. To the contrary, there is a part of human existence which, of necessity, stays individual and independent, and which is of right outside of all social purview. Sovereignty exists only in a limited and relative way. Where individual independence and existence begin, the jurisdiction of this sovereignty stops. If society steps over this line, it becomes as guilty as the despot who has no qualification other than his exterminating blade; society may not go beyond its purview without proving to be a usurper, the majority, without proving to be a faction. The consent of the majority by no means suffices in all cases to legitimate acts; there exist some things which cannot be sanctioned; when any sort of authority commits such acts, it matters little from which source it emanates and it matters little whether it is called an individual or nation; it could be the entire nation minus the citizen it oppresses, and it would not be more legitimate for it. . . .

The citizens possess individual rights independent of all social or political authority, and every authority which violates these rights becomes illegitimate. The rights of the citizens are individual liberty, religious liberty, liberty of opinion, in which is included its publicity, the enjoyment of property, guarantee against all that is arbitrary. No authority may infringe upon these rights without tearing up its own title.

Benjamin Constant (1815)

On the Sovereignty of the People.
Translated by Casey Bowman (1996)
Solonian Reprints, No. 2, pp. 2-4.

Original French

Introductory Remarks

Here are a few opening words from William Ellery Channing (1841),

Another important step is, a better comprehension by communities that government is at best a rude machinery which can accomplish but very limited good, and which, when strained to accomplish what individuals should do for themselves, is sure to be perverted by selfishness to narrow purposes, or to defeat through ignorance its own ends. Man is too ignorant to govern much, to form vast plans for states and empires. Human policy has almost always been in conflict with the great laws of social well-being; and the less we rely on it the better. The less of power, given to man over man, the better. I speak, of course, of physical, political force. There is a power which cannot be accumulated to excess,—I mean moral power, that of truth and virtue, the royalty of wisdom and love, of magnanimity and true religion. This is the guardian of all right. It makes those whom it acts on free. It is mightiest when most gentle. In the progress of society this is more and more to supersede the coarse workings of government. Force is to fall before it.

It must not be inferred from these remarks, that I am an enemy to all restraint. Restraint in some form or other is an essential law of our nature, a necessary discipline, running through life, and not to be escaped by any art or violence. Where can we go, and not meet it? The powers of nature are, all of them, limits to human power. A never-ceasing force of gravity chains us to the earth. Mountains, rocks, precipices, and seas forbid our advances. If we come to society, restraints multiply on us. Our neighbor's rights limit our own. His property is forbidden ground. Usage restricts our free action, fixes our manners, and the language we must speak, and the modes of pursuing our ends. Business is a restraint, setting us wearisome tasks, and driving us through the same mechanical routine day after day. Duty is a restraint, imposing curbs on passion, enjoining one course and forbidding another, with stern voice, with uncompromising authority. Study is a restraint, compelling us, if we would learn any thing, to concentrate the forces of thought, and to bridle the caprices of fancy. All law, divine or human, is, as the name imports, restraint. No one feels more than I do the need of this element of human life. He who would fly from it must live in perpetual conflict with nature, society, and himself.

But all this does not prove that liberty, free action, is not an infinite good, and that we should seek and guard it with sleepless jealousy. For if we look at the various restraints of which I have spoken, we shall see that liberty is the end and purpose of all. Nature's powers around us hem us in, only to rouse a free power within us. It acts that we should react. Burdens press on us, that the soul's elastic force should come forth. Bounds are set, that we should clear them. The weight, which gravitation fastens to our limbs, incites us to borrow speed from winds and steam, and we fly where we seemed doomed to creep. The sea, which first stopped us, becomes the path to a new hemisphere. The sharp necessities of life, cold, hunger, pain, which chain man to toil, wake up his faculties, and fit him for wider action. Duty restrains the passions, only that the nobler faculties and affections may have freer play, may ascend to God, and embrace all his works. Parents impose restraint, that the child may learn to go alone, may outgrow authority. Government is ordained, that the rights and freedom of each and all may be inviolate. In study thought is confined, that it may penetrate the depths of truth, may seize on the great laws of nature, and take a bolder range. Thus freedom, ever-expanding action, is the end of all just restraint. Restraint, without this end, is a slavish yoke. How often has it broken the young spirit, tamed the heart and the intellect, and made social life a standing pool. We were made for free action.

Channing, William E. (1841)

Introductory Remarks. Solonian Reprints, No. 1
pp. 9-10.

First words

Reason and conscience, the powers by which we discern the true and the right, are immortal as their Author. Oppressed for ages, they yet live. Like the central fires of the earth, they can heave up mountains.
      - William Ellery Channing (1836)

Six or seven years ago I wrote a friend of mine,

My own point of view is that I have a conscience that is akin to a commandment tablet. This conscience is the product of natural evolution. Like sight, it is imperfect and varies from individual to individual. Some may be blind; others may be a bit near-sighted. This conscience serves as one component of my power to criticize. (In this I find kinship in the writings of the Common Sense philosophers of the Scottish Enlightenment, particularly Thomas Reid.)

To put this into the context of Evolutionary Epistemology, I have been drawn in the past decade to pancritical rationalism, the position of the late W. W. Bartley, III, (whom I had a chance to work for, but declined, before I knew better). The idea is "everything is open to criticism."^[1] Or in the words of Gerald Radnitzky: "The central regulative principle of critical rationalism is the principle prohibiting the immunization of scientific theories against falsification.... Bartley generalized [this] methodological principle ... into the principle of pancritical rationalism: the principle prohibiting dogmatization of any position. We logically need not—in order to avoid an infinite regress—dogmatize anything, not even this regulative principle."^[2] Moreover, Bartley's understanding of criticism goes beyond the falsifiability of Popper to include other criteria such as inelegance and lack of parsimony. My own understanding of criticism includes conscientiousness as another criterion.

A telling sign is one's tolerance of criticism. Authoritarian types purvey nonsense beyond criticism as an act of domination. Contrast this with an approach that not only tolerates criticism, but actively seeks it out, together with the creativity that feeds it with variety.

Three centuries ago Andrzej Wiszowaty wrote the earliest inklings I've found of a popperian approach,

Si quelqu'un dit qu'une chose paroist quelquefois douteuse à l'esprit, et dans un parfait équilibre, et qu'ainsi on ne peut se déterminer. Je répond qu'il faut alors que l'esprit compare les argumens de part et d'autre, pour voir s'ils ne l'emportent point en quelque chose; et qu'alors il faut donner la preference à ce qui paroist le plus vrai; mais que quand les raîsons de douter sont égales, il ne faut point juger comme d'une chose certaine. Il faut de plus remarquer, qu'encore qu'il soit quelquesfois difficile de déterminer ce qui est absolument veritable, il n'est pas neanmoins également difficile de reconnoître en appliquant la Raison saine, ce qui est absolument faux, absurd, et impossible.

      - Andrzej Wiszowaty (1684)^[3]

The last sentence translates,

Moreover, note, even though it may be difficult to determine what is absolutely true, nonetheless it's not difficult to recognize, by applying sound reason, what is absolutely false, absurd, and impossible.^[4]

With these words, I hope to set a proper tone for what follows in The Solonian Journal. Admittedly it's a bit like "calibrating water clocks with sundials."^[5] I love that phrase. I just had to use it.


Notes

1. ↑W. W. Bartley, III (1987) A Refutation of the Alleged Refutation of Comprehensively Critical Rationalism. In: Radnitzky, Gerald, and W. W. Bartley, III, eds. (1987) Evolutionary Epistemology, Rationality, and the Sociology of Knowledge, p. 318.


2. ↑Gerard Radnitsky (1987) In Defense of Self-Applicable Critical Rationalism. In: Radnitsky and Bartley, (1987) Evolutionary Epistemology, Rationality, and the Sociology of Knowledge, p. 303.


3. ↑Andrzej Wiszowaty (1684) La Religion Naturelle ou l'Empire de la Raison dans les Controverses. Translated to French by: Charles Le Cène. In: Andreas Wissowatius - Religio Rationalis, p. 94.


4. ↑Translated from French to English: Casey Bowman (2007)


5. ↑Daniel J. Boorstin (1985) The Discoverers, p. 31.


6. ↓Karl R. Popper (1970) On the Theory of the Objective Mind. In: Karl R. Popper (1979) Objective Knowledge: An Evolutionary Approach (revised edition), pp. 154-155.

Update (Sep 8, 2007): Today I chanced upon a video that conveys the spirit of critical rationalism. I found it through Salahudin, a writer for In the Name of Towelie!, who adds a critique of his own, thereby exhibiting a spirit of pancritical rationalism. How about that? A real world example!!

Salahudin writes,

While I agree with the author that “respect my beliefs” is often times used as a way to cover yourself from rational criticism - thereby you remain ignorant - but at the same time, isn’t respect a virtue?

I would respond to this question by saying that there are respectful ways of criticizing and disrespectful ways of criticizing. One set of criteria I find useful is that described by Patricia Evans in her books on verbal abuse. The key is to avoid claiming you know how someone else feels and what their experiences have been. Ask them. Don't tell them.

Consider the 3 worlds of Popper,

[T]here are three worlds: the first is the physical world or the world of physical states; the second is the mental world or the world of mental states; and the third is the world of intelligibles, or of ideas in the objective sense; it is the world of possible objects of thought; the world of theories in themselves, and their logical relations; of arguments in themselves; and of problem situations in themselves.

... The three worlds are so related that the first two can interact, and that the last two can interact. Thus the second world, the world of subjective or personal experiences, interacts with each of the other two worlds. The first world and the third world cannot interact, save through the intervention of the second world, the world of subjective or personal experiences.^[6]

Respect the human being. Go wild on objective knowledge, which is the content of Popper's World 3, a world that needs to be fully liberated, to my mind.

Here's the video (from Bitbutter)