Continued from Why Law (1/2):
1. Freedom as Method and the Social Space
On my smart-phone, I have noted:
Freedom as method is the ongoing endeavour to corroborate the hypothesis that by working out a consistent notion of the public we are able to comprehend more fully the consequences of our actions than by following ideas invoked in ad-hoc fashion.
I am not sure, whether the analogy is a good one, but perhaps we should think of an astronomical object whose large mass causes curvature in space -- by which I mean to suggest that extra human effort that allows us
- to trace from an element immediately known to us
- its hidden consequences as they play out in the vaster system to which it belongs.
I have further noted on my smart-phone:
Freedom as method is the attitude whereby we construe the community as an order systematically connected by costs and benefits (or other interrelated effects).
Certain types of individual or isolated action bring about changes in the distribution of costs and benefits in the community, thereby causing curvature, as it were, to the social space.
2. Law and the Social Space
Man being a social animal, characteristics of the human community (on which each of us depends) are always significant objects of personal and cultural self-perception. This being-together, interacting and constantly-affecting-one-another is like an elemental condition, like wind, rain, and climatic states that impose themselves upon us and challenge us to react to them. In that way, the idea of the public is ever present in the life of mankind. In other words, we are permanently facing puzzling questions such as:
What is the public, how should it be defined, how ought we to organise it? What sorts of relationships between the public and its members are admissible, desirable and deserve to be enforced?
Is it possible for us to relate to one another in such a way as to improve common objectives - in other words: is there a common weal? How is the common weal to be achieved? Do we have to deal with different groups and individuals differently to achieve the common weal? Or are there circumstances such that we have to require all members of the community to be dealt with equally?
It is the function of law to come up with enforceable answers to these questions.
3. Fundamental Elements of Modern, Freedom-regarding Law
Ancient law comprises in large measure social norms dictated by custom, religion, tribal and kinship mythology, and other belief systems supported more by tradition than by rational investigation.
Modern law embraces methods of rational corroboration. It becomes freedom-regarding law when larger sections of the population are ensured the right to rational corroboration -- the poor farmer proving the king wrong, and winning the case against the authorities.
What makes modern, freedom-regarding law possible are three ingredients:
(1) a theory of the relationship between the individual and the public,
(2) the widening of the concept of the public, to include the entire adult population, and
(3) the introduction into law of the basic heuristic of modern science - the critical method - an open-ended subjection of legal propositions to the method of hypothesis-testing.
This latter approach implies the possibility of rational contestation of law, its finding and alteration by approximation, i.e. by piecemeal probing and change.