Can Law and Liberty Be Wedded?
By Lyman Abbott
The notion that a complex and extended government is inconsistent with freedom grows out of the notion that freedom is exemption from law; that liberty and independence are synonymous. But freedom and independence are not synonymous, and freedom is not exemption from law. Leonard Bacon, in his “Pilgrim Hymn,” thus describes the cargo the Pilgrims brought with them:— Laws, freedom, truth and faith in God,
Came with these exiles o’er the waves.
Laws! Freedom! Can these live in the same ship? Can these flourish in the same community? What do we mean by law? Austin, the famous writer on English law, has defined law as the edict of a superior who has the power to enforce his will by penalty, a power which confers on him his authority, and creates in the subject a duty or obligation of obedience. It is true that power to enforce law is necessary to law; but more is necessary; the possession of power does not of itself confer authority or create duty. Authority is rightful or just power, and something more than the mere possession of power is necessary to give the possessor a right to command or create in the subject a duty of obedience. If the law is an unjust law, disobedience may become duty. [For instance, a law enforced by the State to observe Sunday. That would, to those who would subscribe to it, cause disobedience to the divine law, which cannot fail, even to a tittle.—Ed.] King Darius had power to enforce by decree his command, but the plain duty of Daniel was to disobey. The Italian bandit has power to command his prisoners, but he has no just authority over them. If law is simply an edict issued by one who has power to enforce obedience by penalty, then law and liberty are inconsistent. The Puritans in their revolt against the Stuarts no less than the French in their revolt against the Bourbons refused such submission. But the Puritans were not a lawless folk; they put an unaccustomed emphasis on the sacredness of law. I venture to offer my own definition of law, without, however, claiming for it any originality. It is Hebraic in its origin, although it is not formally stated, as far as I can recall, in Hebrew literature. But it underlies the conception of law embodied in the Old Testament Scriptures. A striking illustration of it is afforded by the Nineteenth Psalm, which many Biblical scholars regard as two different psalms put together by some editor; but in my judgment the psalm is by one poet, who saw what modern thinkers have often failed to see, that law is essentially the same in the physical and in the spiritual world. “The heavens declare the glory of God; and the firmament showeth His handiwork.” That is the operation of law in the physical universe. Not less is it true that “the law of the Lord is perfect, restoring the soul; the testimony of the Lord is sure, making wise the simple.” That is the operation of law in the spiritual realm. Law is the nature of the thing of which it is predicated. By “the law of gravitation” we mean that it is the nature of material objects to attract each other in a certain definite ratio. By “the laws of health” we mean that the nature of the body is such that if one takes certain food, drink, air, baths, exercise, he will enjoy good health; if he does not, he will have disease. By “the moral law” we mean that the social organism is such that if we respect each other’s right to person, property, the family, reputation, the community will be prosperous; if we do not, it will be unprosperous. The scientist does not make the law of gravitation; he finds it. The physician does not make the laws of health; he discovers them. Moses did not make the ten commandments; he communicated them. If this be true, if law is the nature of things, the nature of man, the nature of society, the nature of the universe, the nature of God, there is no such thing as freedom407from law. To escape from law it would be necessary to escape from the universe; to escape from God, to escape from ourselves. Liberty and lawlessness are not synonymous. Liberty is not escape from law. Liberty is voluntary obedience to self-enforced law. It is the understanding of law, obedience to law, the use of law. A man is not free to jump off the roof of a house and fly like a bird. If he attempts it, he will find himself on the ground with a broken leg and not free to walk on the earth. He is free to fly when he understands the laws of aerial navigation and flies in obedience to them. Man is not free to eat and drink as much as his gluttonous desires prompt. If he attempts to do so, he presently finds that he is not free to digest what he has eaten, and must make up for the one day’s feast by several days of fasting. Liberty does not mean that the chauffeur may drive his automobile at thirty miles an hour through the crowded streets of a city, for then the pedestrian has not liberty to cross the street. Liberty does not mean that the labour union may determine the conditions of work for non-union men, for then the independent labourer is denied liberty to work. Liberty does not mean that life insurance directors may invest their funds as they please, for then the bereaved widow has no liberty to get her money when her husband leaves her in poverty. Only that community is free which recognises the sanctity of law—law written in the very nature of human society because in the nature of the men and women who constitute society—and honestly and intelligently endeavours to conform its life to that inherent, immutable, eternal law. Law is written in the very constitution of the universe. Nothing is just law which is not so written. The power of a lawgiver does not make law just, whether that lawgiver be one or many—an aristocracy or a democracy. The consent of the governed does not make it just. Conformity to the nature of life—material and psychical, individual and social—alone makes law just.408 To discard law, put it aside, live as though it were not, accept it only as far as it accords with our own whims or inclinations, is anarchism. To submit to it only because there is lodged in the lawgiver power to inflict a penalty on the disobedient is submission to despotism. To recognise its sanctity, to see its value, to understand its purpose, to use it for the common welfare, is liberty. For law is the nature of the thing concerning which it is predicated; and liberty is voluntary obedience to self-recognised and self-enforced law. A man’s relation to law may be either one of three relations: he may disregard law; he may submit to law; he may use law. A boy grows up at home where his health is not cared for; where he eats what he likes, exercises as he likes, sleeps when he likes; in short, is physically lawless. He is taken seriously ill. The doctor finds that he has undermined his constitution, and tells him that if he does not reform his life—eat, sleep, and exercise according to law—he has not long to live. The boy reluctantly abandons his imagined freedom and submits to the laws of health. He comes into the second relation to the law, the relation of submission. His health improves and becomes measurably normal. He goes to college and desires to join the boating crew. The trainer says to him, If you wish to join the crew, you must accept the conditions of the crew. He tells the boy what he must eat and what he must not eat; what he may drink and what he must not drink; when he must go to bed and what exercise he must take. The boy, ambitious to get on the crew, accepts these directions loyally and even gladly. He is now not merely submitting to the laws of health, he is using the laws of health in order to equip himself for the position to which his ambition calls him. Disregard of law is suicide, obedience to law is health, use of law is power. A community which disregards the four fundamental rights of man—the rights of person, of property, of the family, and of reputation—lives in anarchy and perpetual turmoil; the end thereof is social death. A community of individuals who yield obedience to these laws just in so far as they must and no farther, may have a certain measure of social health, may at least be preserved from social death. But no community is strong, no community is on the highway to a great and common prosperity, which does not recognise in these laws the conditions of well-being, which does not by its united action promote the health and life of its members, the social purity of its members, the material prosperity of its members, and the reputation and honour of its members. Only such a community is a strong, self-governing community; only such a community is truly free.—The Outlook.