Law and Human Autonomy: A Question in the Past and Present

-- By JianingLiu - 13 Dec 2015

The function of law is generally being viewed as manifesting the powers, rights and obligations of different parties in social life. In other words, just as the market allocates and distributes economic benefits, law serves as a most powerful tool in allocating and distributing legal benefits. However, different cultures have vastly different views concerning the purpose of law. In Western civilization, law is ultimately a tool for preserving human autonomy. While in the East such as the ancient China, law is designed to facilitate absolute rule over its people.

Two underlying distinctions are present between these two sets of understanding toward the purpose of law. Firstly, the difference lies in the political structure and the source of the binding power of law. In the West, the political structure is such as the ruling power flows from the bottom to the top. People is born to be free and autonomous. Government is only formed out of the social contract to serve the public good and hence its power orients from the designation of people. The binding power of law comes from the “general will” embodied in the social contract. In ancient China, however, political power flows from the top to the bottom. The emperor was believed to be “the son of the god” with his ruling power endowed by god. The binding power of law derives from the supreme power of the emperor and the emperor’s power derives from the divine power of god.

The second distinction lies in whether the ruling power is limited or not, and this is certainly connected with the difference in political structure. In the West, there is strict boundaries to governmental power. As the 9th English Prime Minister William Pitt have put it, “the poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter.” Yet the power of the ancient China’s emperor was supreme and unlimited. In the Book of Songs, a Chinese traditional classic, there is a sentence saying “all the land under heaven belongs to the King and all the people on this land serves the King”. The sentence has become a precise and symbolic depiction of ancient China political ecology.

What is the role of law in preserving and defending human autonomy? Law serves as a social tool, but it can serve different purposes and will not automatically further human autonomy by its very presence. Politics and power relations really make a difference here. A precondition under which law can further human autonomy is a society with a bottom-to-top, people-to-government sort of political structure. And what’s next? Generally, human autonomy can only be hampered by public power exerted by the state. This is because private actors cannot interfere with other individuals’ autonomy or enslave others without violating the law, but the state are legally permitted and justified to intervene and even deprive a person’s autonomy by violence if necessary. Therefore, law can be well-designed to protect human autonomy if the power of state is well limited to the extent that it can only be used to serve rather than oppress the people. To limit state power, law can divide and allocate the power within separate divisions so that the legislative, administrative and judicial branches can check and balance each other; moreover, it can clearly manifest the boundaries of a certain kind of power to preclude it from entering the domain of civil autonomy, an outstanding example of which would be the First Amendment providing that “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”.

It seems to be the end of question—law will be able to further human autonomy if being effected in a democratic political system and well-designed to limit state power—yet it is not. With the arrival of post-industrial society and the dawning of Internet Era, human autonomy is increasingly facing unprecedented threaten of being eroded and diminished. Unlike in the past when the only potential threat to human autonomy being essentially the state power, the picture has dramatically changed now: a countless number of software applications and devices are gathering and analyzing pieces of information that we willing give out; businesses are analyzing our behavioral patterns and exerting influence over our decision-making; and non-human intelligence of computers is increasing every day when most people have no idea of what is happening.

In the time we are now living in, law itself can do little in preserving and defending human autonomy anymore because people are not forced, but are giving up their autonomy, privacy and independence either willingly or unconsciously. The law must incorporate into itself educational and technological methods in order to cope with this challenge. Laws can be designed to approve and encourage the widespread education of knowledge concerning computers and software so that people could understand the real picture better; laws can be effected to promote free software so that everybody can learn what is behind the software, improve it, distribute it freely, and protect herself from being spied and controlled; laws can also be enacted to allocate more resources into the scientific research of computer intelligence so that people can gain more understanding of the machines that are becoming more powerful and self-reliant.

The Era of industrialization has disturbed the peace of human mind, but this Era is putting at stake our autonomy and dignity as human beings. These newly but rapidly arising issues are calling for prompt, adamant actions by combined political, legal, and social methods as an updated answer to the old question of law and human autonomy.

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