Wednesday, 17 September 2014

Liberty of Law

Subtitled: Enlarging Individual Freedom
Non-fiction ~ article/essay
Published in Aberdeen Press and Journal¹, 16th January 1928
1,185 words
(First read 17/09/2014)

This is the second of two EFB articles I've dug up which bear the legend 'Copyright of the Freedom Association' ~ the other is Governments Who Dig Their Own Graves (1930).  In this one Benson talks about how human laws, though on the surface they appear to restrict our lives, are in fact designed to ensure that we can go about our business freely ~ without, for example, the fear of being murdered by our neighbours because we allow our vile filthy nasty dogs to bark incessantly all day while I'm trying to concentrate².  He also talks about 'another vast set of ordinances [that are] not legally binding on him', namely religious or moral law ... this is where it gets a bit hazy.  He finishes off by apparently saying that while human law has its uses, it is only by following moral/religious³ law that civilization can hope to advance.

¹ And ~ most likely ~ elsewhere.  This is just where I happened to find it.
² Oops, wandering off the point a bit here.
³ He actually calls it 'the Christian code' but of course I'm far too PC to mention that.

The article is reproduced below.  As far as I'm aware, this is the first time in 96 years that it's appeared before a potentially worldwide readership, in full and free of charge.

Liberty of Law by E. F. Benson
It is only the very inefficient and pretentious writer who habitually uses paradox in order to convey what he has to say, and on the whole the more largely he deals in paradox, the less, so we usually find, he has to tell us, for most truths can be stated very simply. Nothing, moreover, is so exasperating to the reader as paradoxical periods: such an author is like a man who insists on doing conjuring tricks, when all that we ask of him is normal and rational behaviour; he palms the matches when you want a light, and pretends to produce them from his neighbour's nose; he appears, with patter and fumblings, to take an egg out of the coal scuttle, and finds the evening paper much crumpled in the sugar-basin. He delights in puzzling us on the one hand, and in showing us how it is done on the other, and we only hope that when he has at last left the room, he will not subsequently emerge from the piano.

Making for Freedom

Occasionally, however, the truth seems at first sight to be genuinely paradoxical; it is impossible to state it otherwise than by an apparent contradiction in terms, and thus I claim the reader's indulgence for the proposition that the laws of civilised nations generally, which on the surface look like an encompassing palisade of prohibitions, devised to limit our liberty of action in every direction, are really a highly elaborate system framed to increase and extend it.
The law against stealing, for instance, though it curtails a thief's freedom of action, is designed to enable us all to enjoy and use our possessions without the fear of having them snatched from us, and this is the root-reason why stealing is illegal. Similarly the law against murder was not framed primarily in order to break the necks of murderers, but to enable the community in general (who are more numerous than murderers), to go about their business without being seriously afraid of being stabbed in the back; and certain laws against transgressions of the moral code afford other protection for the young and defenceless. In all such cases, law, which appears to limit the liberty of each individual to do what he likes, in reality ensures the liberty of a far larger body of persons, and thus makes for freedom and not for fettering.

Prevention of Bullying

There is not, probably a single ordinance in the whole body of the law of civilised nations which is not based on this principle: law which at first seems to be designed to bully us is in reality a careful and comprehensive code devised to prevent our being bullied. For this reason every individual is assumed to have a complete knowledge of the laws of this country, and if he transgresses any one of them, no plea of his that he was ignorant of its existence is held to be a valid excuse. If by his action he was directly or indirectly injuring somebody else, he ought to have known that he was breaking some law, though he was not aware that there was such a law.
Though it is open to the cynically-minded to say that this complete acquaintance with the law is a good deal to expect of the layman, when the experts, counsel and judges alike, so often rage furiously together in their administration of it, and so constantly instruct the jury who are supposed to know all about it, the basic principle of all law is clear enough.

As You Please

Laws are not arbitrary. They were not invented, like the rules that govern Rugby football or the moves of the pieces on the chess-board, in order to render a game an agreeable mental or physical pastime, and their intricacies, the interpretation of which sets highly-trained intellects at loggerheads and renders the course of justice so slow and expensive a process, are due to the aims of successive generations of legislators to afford the community the utmost possible security and freedom. Provided that a man does not injure another individual or the community at large, as he is held to do if he commits suicide (thus robbing the State of a citizen), the law jealously guards his right to do exactly what he pleases. He is not bound nor even expected to advance anybody's interest but his own, except in times of common peril. Law only requires of him that he should not injure others.

Liberty in Obedience

But even in the most materialistic age every man, down to the most selfish and vicious, is conscious intermittently of another vast set of ordinances which are not inscribed in any statute-book that is legally binding on him. He has (occasionally) impulses of kindness and generosity which he feels he must obey, and which, if transgressed, will bring their own penalties of internal uneasiness; in fact, he punishes himself. These form the code of religious or moral law, and though any individual is free to repudiate it, he finds, as a matter of fact, that for his own sake, though he considers himself wholly independent, he prefers to obey it.
More oddly yet, and more paradoxically, he observes that the more constantly that he obeys this code, the greater grows his liberty. Provided that he acts in accordance with it, he gains, too, an essential immunity from the authority of human legislation, for when once he makes friends with the principle that underlies this other code, he not only does not want to secure advantages for himself at the cost of others but the idea of injuring others becomes highly repugnant to him. He perceives, moreover, that what he thought was a vast volume of strait-laced ascetic ordinances concern him no longer, and that if he has the welfare of others at heart, he can do exactly what he chooses. If he loves, in fact, as St Augustine says, he has entire liberty of action.

Clearing the Weeds

We find therefore that human law, which consists entirely of prohibitions, and the Christian code, which consists of one injunction, are both based on the same principle, namely that of securing and enlarging individual freedom. In neither case does the law fetter, and the limitations imposed by the first are, so to speak, the negative side of the one injunction of the second. But, however perfectly and universally observed, these prohibitions will never bring us a definite step nearer to the realisation of Utopia, for the prevention of crime cannot do more than weed the ground where the seed of progress is to be sown. No doubt the ground must be cleared of such weeds, but the second code with its one injunction automatically does that, for no weed will live in ground that has been turned up by the harrow of love.
Judging from the general experience of the human race, and the sorry results of its civilisations, no other instrument will serve the purpose; human law with its penalties and retributions may check the growth of weeds, but will never extirpate them.

Reproduced from the Aberdeen Press and Journal, 16/01/1928

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