Law as a source of authority

Law as a source of authority: To those for whom law is a simple command, legal by virtue of the source from Which it comes, it is not likely that such complexities as these will be popular. We are urging that law is, in truth, not the will of the State, but that from which the will of the State derives whatever moral authority it may possess. That is, admittedly, the abandonment of simplicity.

It assumes that the rationale of obedience is in all the intricate facts of social organization and in no one  group of facts. It denies at once the sovereignty of the State, and that more subtle doctrine by which the State is at once the master and the servant of law by willing to limit itself to certain tested rules of conduct.

It insists that what is important in law is not the fact of command but the end at which that command aims and the way it achieves the end. It sees society, not as a pyramid in which the State sits crowned upon the summit, but as a system of co-operating interests through which, and in which, the individual finds his scheme of values. It argues that each individual scheme so found gives to the law whatever of moral rightness it contains.

Law, that is to say, is made valid by my experience of it, and not by the fact that it is presented to me as law. Such experience, indeed, is rarely separate in kind (though it is always unique in degree) because it is shared with others in the effort to make an impact upon society.

It appears as an interest which seeks the objectivity of realization. It strives to suffuse the law with its sense of need. It judges the law by what it recognizes therein of that sense as , satisfied. It therefore demands a system of social conditions in which the end capable of being achieved is both worthy of achievement and relevant to itself. Therein appears the importance of the idea of rights. For these make the path of law a road which leads to the fulfillment of desire and those who seek fulfillment are entitled to consider their needs equal in significance to the needs of others.

Law then emerges as the evaluation of the interests by the interweaving of interests. It is a function of the whole social structure and not of some given aspect of it. Its power is determined by the degree to which it aids what that whole social structure reports as its desires.

From the conception of law as the evaluation of interests we reach the most fruitful view available of the place of the individual in society. We can admit that some interests are so personal to a man’s self that they can gain fulfillment only in isolation. We can thereby avoid the falsity of that philosophy which sees each man as meaningless save as a part of some social whole.

We can admit, further, that interests may be incompatible and that even where harmony is possible the effort of adjustment is long and subtle. All the co-ordination achieved represents some sacrifice and it is important to realize that the judgment of whether the sacrifice achieved is worth its cost can be made by individuals alone.

Their judgment, doubtless, will be different because their relations are never identical. The perspective is made through the shifting kaleidoscope of innumerable personalities. The rightness of that judgment will depend upon the care and knowledge with which men seek to make an integration of their wants with those of others.

The judgment will never be complete or perfect because it is part of a process rooted in the past and stretching out towards an unknown horizon. The synthesis each man achieves creates, of course, a system of habits, and these, as they seek articulation with the habits of others, are bound to cause stress and pain.

It is necessary, accordingly to minimize the conflict which ensues as interests Jostle one another in the struggle for survival. No adjustment effected is ever worth while save as it is reported ah adequate by the largest number of minds in influenced by its results.

That adequacy, of course, does not mean something merely personal or selfish. It means that whatever the individual judges as of value is recorded as valuable in the push of events. It means that his sense of right is that alone which validates for him the meaning of social organization, and that there is no other way of securing validation from him.

I deny, therefore, that submission of ever a moral obligation unless, as an act, it carries with it the individual conviction of rightness which makes it moral. No jus est quad jussum est from a State will ever do more than compel upon a plane outside the held of ethics unless it carries with it a satisfying moral appeal. We cannot be certain that it will. We can only hope that decisions prepared for acceptance will be scrutinized with responsibility and with a due regard for what they totally imply.

Any other view has little relevance to the facts about us. Any other view is seeking to invest coercive authority with ethical content on grounds which analysis shows to be simply the fact of the power to coerce. That power may hew its way to success, but it does not, by the fact of victory, become a moral agent. We argue, rather, that our rules of conduct are justified only as what they are in working induces our allegiance to them. No such result can be known until those affected report that they accept the rules precisely on that ground. And those affected will not be in a position so to report until they have the power to make themselves respected.

They can do so only when they win their due place in the negotiations which precede decision. That place can be assigned them if we conceive it as won, not by force, but by a give and take in which the unequal pressure of interests is mitigated by our knowledge of what, as property, for instance, ensures disharmony. It does not mean that we must take each man, as in the Bentham view, to be the best judge of his own interests but it does involve, I think, our willingness to recognize that each man’s sense of his own interests is a fact we may not disregard.

We have, therefore, to allow m his personality full access to the organs which register our ultimate decisions. We have to maximize the responsiveness of those organs to the will he seeks to express. Our main effort must be to discipline his mind to the expression of his wants and to make possible such an enrichment of that mind that the satisfaction of those wants-achieves a good something more than purely personal.

We shall, of course, succeed but partially, for it is difficult in the pressure and scale of modern , administration to have more than a partial glimpse of his need. Obviously, therefore, the more firmly we can make his sense of need available for us, the more likely are we to make possible for him the full realization of his powers. And nothing else can justify the process of government.

Two other remarks maybe made. It follows from what has been said that men are entitled to disobey a State which . ceases to secure their self-realization. Rebellion, therefore, is, as T. H. Green insisted, a contingent duty on the part of the citizen. To many this has seemed a doctrine of anarchy, A and they have therefore sought to avoid its implications either by arguing that I cannot realize myself save through the State, or, as with Green himself, that I ought not to resist unless at least a considerable body of persons share my view and are willing to act with me. Neither of these views is, I think, well founded.

The only State to which I owe allegiance is the State in which I discover moral adequacy and if a given State fails to satisfy that condition. I must, to be consistent with my own moral nature, attempt experiment. It is, of course, true that I can only realize myself in the ideal State but we are not entitled to assume that any given state is seeking to achieve the ideal save as it proves that assumption by its use of power.

Green’s view is a wiser one  but what he urges is rather the higher expediency than a rigorous logic. Most action of this kind is inevitably minority actions. Most minority action will fail unless it enlists upon its side at least the inertia of the multitude. Our first duty is to be true to our conscience, and we are the more likely to press the State into the service of right the more we fulfill that duty. We may have to pay the penalty.

We may find ourselves involved in an effort far vaster than we intended to provoke. But unless we do that which it lies in us to do, our citizenship is nullified just at the moment where it becomes an urgent thing. We act, always, at our peril but the peril involved in obedience may in the end be greater than the penalty of rebellion.

It has been said, also, that the individual for whose best self the State exists has little to contribute that we are entitled to regard as significant. What he is and does leaves little impress upon the record of mankind. To adjust the temper of social effort to average men is to crown mediocrity as king.

Rather we must recognize that quality is the possession of a few, and we must equate function with the possession of that quality. For, otherwise, we deny differences of value in activity, and, in particular, we fail to value things not easily apprehended, like art and science, save as they minister to measurable utilitarian advantage.

To build upon the rule of number is to sacrifice all that gives to the best of life the peculiar virtue for which it searches. What, rather, we require is to limit the possession of power to the few who are fit to exert it. These, by their inherent worth, would act as the trustees of mankind.

Ever since Plato drew the first great pattern of an aristocracy that ideal has proved attractive.Yet, on examination, its virtues are less self-evident than a cursory glance would surmise. It is the record of all history that no class of men can retain over a period sufficient moral integrity to direct the lives of others. Sooner or later they pervert those lives to their own ends.

And even if, in a rapid survey, the majority of men seem indistinguishable from their fellows, to themselves the fact of distinction is of the first importance. They cannot achieve happiness vicariously. They must know it with their own minds and their own hearts. They must themselves make their own lives, because it is in the art of creation that they can best hope to realize whatever there is in them of fineness and nobility. Nor have we the means at our disposal to measure the qualities we should wish to find in  those who rule us before they appear in the Opportunity we provide for their emergence. They confine themselves to no given class or race.

We recognize them as they prove themselves and by offering them the largest room for proof we ensure their richest provision. So regarded, men may strive to make themselves the masters of the event because they have the chance to meet the challenge of life. The world outside them may remain mysterious, but within them is the call to penetrate the mystery. It is a call not less to sacrifice than to fulfillment.

Or, rather, it is a call to fulfillment through sacrifice. It is the demand that we treasure things of the spirit that we suffuse pedestrian habit with creative purpose that we quarrel not over the petty differences of possession, but over the great issues of the mind. It will require all the imagination and thought at our disposal if we are to meet the challenge like free men. It is the most difficult and arduous of adventures. Yet, as Spinoza said, all things excellent are as difficult as they are rare. We can reach the summit in the end if we but seek the courage to go forward.

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