Beyond the Law

564 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 uni versalizes its disorder in what ever 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 politi cally partisan. Now it may be right here, in this insistence on political appli cation, that our basic trouble lies. For the passion for lawmaking and political system-bUilding re1969 BEYOND THE LAW 565 suIts, sooner or later, in the estab lishment of certain popular fictions about man and his life in society.

These fictions are held to he so cially 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 founda tion secular principle of the sep aration of church and state. The virtues of this separation are self evident. From any impartial point of view the defenders of separa tion 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 secular ism and separation of church and state that religious thought has no importance or will nt>t 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 sys tems 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 Su preme Court, in a recent decision affecting conscientious objectors, declared that free-thinking phil osophical convictions must be re garded as having the same stand ing before the law as "religious training and belief." Meanwhile, dozens of writers have drawn at tention 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 acquisi tion 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 es sential human problems can all be settled by law is a creeping de lusion that comes to dominate the thinking of secular lawmakers. The obsessive concern with ideol ogy and the insistence on political action as the only important means for improving the human condi566 THE FREEMAN September tion 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 postu lates of religion or of religious philosophy. So, from this assump tion 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 in stitution which declares its neu trality on all questions not di rectly concerned with the public safety and the general welfare. It will not interfere with the lives and opinions of men, save in be half of these practical ends. Many of the principles of the secular state are found in a passage in John Stuart Mill's essay on Lib erty. He wrote: The obj ect of this essay is to as sert one very simple principle, as entitled to govern absolutely the dealings of society with the individ ual 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 collective ly 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 can not 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 rea soning with him, or persuading him, or entreating him, but not for com pelling 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 some one else. The only part of the con duct of anyone for which he is amenable to society is that which concerns others. In the part which merely concerns himself his inde pendence 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 tc look at very closely - or, rather: from a stance different from thE one which gives it emotional hui uncritical support. It is easy t< assent to Mill's principles on in· tuitive grounds; why, then, d< they work so poorly?

1969 BEYOND THE LAW 567 Minimizing the Error In a world inhabited by imper fect 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 im portance of individual liberty. Now liberty is really an incom mensurable value which always has its wings clipped by definition. If we actually knew all that lib erty or freedom implies for hu man beings we would be so wise that we would have no social prob lems at all. Politics, however, as we say, is a practical matter, so, for the purposes of social arrange nlents, we give a pragmatic, work ing 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 channel ing. 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 possibil ities 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 potential ities 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 im port of the question of freedom versus order is radically changed.

Managing the subtle balances be tween these two principles is the essential process of growing into maturity, and education is the collaborative art which helps in dividuals to learn this manage ment 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 568 THE FREEMAN September breakdown in the process of edu cation. This hardly needs argu ment. The natural teacher never im poses arbitrary limits on his stu dents. A reasonable limit gains personal adoption by the students. The teacher may intimate the ne cessity of limits, but he does not impose them. Any course of study will require some boundaries, in order to achieve a focus, butedu cation 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 gen uine form to work in - but only a pseudo-form, a context of indoc trination. 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 hu man 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 devel opment, yet it has nothing to do with coercion, nothing to do with politics, nothing to do with well considered organization for oppos ing 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 can not be a good society. This, too, is elementary.

The Primary Sources 01 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 consid erations. And that is why the "ideal" political forms, logically described and brilliantly defended, produce so many terrible dilem mas. Our exhaustive deliberations concerning these forms neglect the all-important fact that every po litical system - good, bad, indif ferent - 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 1969 BEYOND THE LAW 569 is that our real difficulties are not political at all. The trouble orig inates in our lack of attention to the uncoercive disciplines.

It is difficult to obtain agree ment for this view because there is so much pain generated by poli tics. But to accept political diag noses for the pain is to accept a static, depressed estimate, of all men. It is to rej ect 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 be cause recent history has proved how little we really know about the meaning of progress. Freedom and Order? It is of course a cliche of do nothing passivity to claim that ed ucation is the alternative to polit ical activism. But a basic com plaint of all political critics of modern society is that our educa tion is no good, either. And it is certainly a fact that modern West ern 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 ar gue 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 edu cation, it is always fatal. The teacher who jumps to control of his students, interrupting tenta tive efforts of their own at self limitation, becomes an anti-human force, a destroyer of education. He is abolishing or limiting free dom when· he doesn't need to. You could say of such a teacher that he has been infected by the polit ical approach to life, obsessed by the last-ditch necessities of coer cion. 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 arbi trary 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 hu man 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 free570 THE FREEMAN September I dom only in terms of controlling it by coercion? Critique of Mill by James fitz;ames Stephen It is interesting to look at a long-neglected criticism of Mr. Mill by one of his contemporaries. We have for review James Fitz james Stephen's Liberty, Equality, Fraternity, first published in 1874 and now reissued, with R. J. White as editor, by the Cambridge Uni versity Press (1967, $7.50). Ac cording to the jacket: Stephen's work is written as a systema tic den uncia tion of John Stuart Mill's political thought. It is thus of great importance in the his tory of Utilitarianism, and also as the most forthright and systematic of the Victorian attacks on Democ racy. 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 jus tice 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 at tacks Mill with all the realities of social experience which contra dict the fiction that social control through secular political power is sufficient 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 Brahman ism. 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.