The recent implementation of the National Security Law 2020 in HKSAR has attracted widespread concerns, notably from Mr Antony Blinken and some European figures. For those who wish to properly assess the soundness of the liberal paradigm behind these concerns, it is essential to examine the wider jurisprudential context. This article examines that context under three headings: 1) The institutional and ethical logic of freedom; 2) What kind of constitutional paradigms can be congruent with that logic; and 3) The need to transform “liberal imperialism” to an ethicalist multilateralism for promoting mutual progress between all communities, in this increasingly crowded world.
I. The logic of freedom creation: Freedom emerges from orders, not chaos, and orders are sustained by joint duties, not amoral individual desires
Freedoms and other valuable things are created by orders, not chaos. Orders are constituted by institutions (notably legal institutions), sustained by joint duties, and optimised by critical rationality. Humans are ontologically surrounded by ever-rising chaos. Therefore, humans should place their duties to create orders ahead of satisfying their desires to consume freedoms.
Orders are disrupted by unrestrained desires, by violence, and more so by “peaceful” misconceptions such as “since my aims are ‘noble’, anything goes”. No citizen is “more equal than others” merely because he thinks that he is seeking “justice”, or that his cause is more “worthy” than others. Such self-indulgent misconceptions are prone to corrupt the individual, and corrode the cooperative core of real civilizations.
Creation of freedom is distinct from desire for freedom
“To desire for something” and “the supply of that something” are distinct problems. Our biological desires to eat bread do not create bread, and bread must be manufactured through objective human efforts. Our desires to enjoy freedom do not create freedom, and freedom must be manufactured through building legal orders. Just as nature supplies us with no bread, nature surrounds us with chaos, not freedom. We have an inborn duty to create, or “manufacture” freedom ahead of our inborn “right” to consume freedom. In a like vein, “ought to be free” and “how to be free” are distinct problems. Humans ought to make themselves free through rational efforts is uncontroversial. The real issue is how to produce maximum consumable freedom from chaos within objective constraints. Freedom does not simply come from “removing impediments to our desires”.
The common law as an example reflecting the logic of freedom-production: through duties, not desires
If each citizen abides by the ethical norm: “I must obey traffic signals for the benefit of all before I enjoy my desire to drive freely in town”, then a traffic order will emerge, giving rise to freedom of movement for everyone. If everyone (including myself) abides by traffic signs, everyone can reasonably expect that he or she can travel from location A to location B in, say, about 30 minutes and in relative safety. That is my, and other road users’, freedom of movement. Freedom of movement does not arise from everyone insisting on his desire (or “inborn right”) to drive “freely”. That will result in traffic accidents and congestions everywhere, in chaos not freedom. The “freedom space” created by traffic order is sustained as long as everyone continues to fulfil his duties in abiding by traffic regulations and signs.
The salient features of this logic of freedom-creation are:
1) Freedom comes from orders. Orders are constituted by institutions, sustained by our joint duties, and optimised by critical rationality. Freedoms (or “freedom spaces”) are created primarily by legal orders. Legal orders, and therefore freedoms, are sustained as long as everyone equally obeys the law. Every citizen is entitled to a fair share, but not more than a fair share, in such created freedoms.
2) The more such specific legal orders can compatibly exist, the more freedom spaces can be created. Most legal orders, such as traffic order, public order, economic order, academic order, and hygiene order, can exist compatibly. But human rights are not easily compatible between right holders, or with public duty to maintain public order or hygiene, and whether there is an effective balancing mechanism would be crucial to whether these rights are realizable.
3) Each specific order should be optimizedto maximize freedoms. Take the traffic order as an example: there is an objective, threshold level of traffic lights in a given situation which would maximize traffic flow. But once beyond that threshold, any arbitrary decrease or increase of traffic lights will not increase freedom of movement. If, say, the number of traffic lights is reduced by half, the speed of our travel will not be doubled, but probably reduced.
4)Specific orders can be combined to form composite orders for achieving complex tasks. These specific, compatible orders can be combined to form composite orders to enable complex tasks to be completed. The pursue of academic advancement is made possible by, e.g., the existence of economic order (that parents can earn enough to pay the tuition fees); public order (that students are relatively safe from harms by crimes), and academic order (that schools and universities can provide competent and impartial teachers, and fair standards of assessment). Other relevant composite orders are needed to make possible business ventures, family relationships, and cross border cooperation, and so on.
5)Small duties can be pooled to create huge freedom space. Legal orders are maintained by citizens fulfilling their parts of duty to abide by the law. A small “duty” to obey the law is far from trivial. It is this joining of small duties which creates a common order of huge freedoms. The process is analogous to the “logic of insurance business” in reverse: it is in everyone’s interests if each can contribute a small sum to create a large pool of fund, so that anyone who happened to suffer a loss can be compensated.
The temptation of the misconceived Hobbesian free lunch: that “freedom is the absence of external restraints or impediments to desires”.
True freedom is constituted by duty- based institutional framework, and must be exercised with responsibility. This “duty- based freedom” is to be contrasted with the misconceived “desire – based freedom”: that of equating freedom with maximizing our subjective, amoral desires. Thomas Hobbes was among the first to propose such a “negative” definition of freedom: “freedom consists in the absence of external restraints or impediments, in ‘the silence of the law’” (Arblaster, p166, 137).
This Hobbesian misconception was endorsed by Isaiah Berlin as desirable “negative freedom”, as distinct from undesirable “positive freedom”, which he regards as prone to be totalitarian, and dangerous. Professor Karl Popper disagrees with Berlin. In a reply to Berlin (dated 5 March 1989) on the issue of whether Salman Rushdie had misused his freedom in publishing his controversial novel, Popper holds that freedom must be duty-based. He writes (“Popper After the Open Society” Routledge, 2008, p. 204):
“…I do believe that every freedom involves duties: to use your freedom responsibly. Those who don’t may kill the freedom. Every freedom can be misused. And our ancestors in this struggle – so Voltaire, Kant, Mill – believed that we will be civilized enough to live up to this almost obvious demand.”
In an earlier letter (dated 17 Feb 1959), Popper rejected Berlin’s distinction between desirable “negative freedom”, and undesirable “positive freedom”:
“My second point is your picture of positive freedom. It is a marvellous elaboration of the idea of being one's own master. But is there not a very different and very simple idea of positive freedom which may be complementary to negative freedom, and which does not need to clash with it? I mean, very simply, the idea to spend one's own life as well as one can; experimenting, trying to realize in one's own way, and with full respect to others (and their different valuations) what one values most? And may not the search for truth – sapere aude – be part of a positive idea of self –liberation? What have you against sapere aude? No doubt, the idea that anybody is wise, is dangerous and repugnant. But why should sapere aude be interpreted as authoritarian? It is, I feel, anti-authoritarian. When Socrates said, in the Apology, that the search for truth through critical discussion was a way of life (in fact, the best way of life he knew of) – was there anything objectionable in this?” (In “Popper After the Open Society”, p. 200)
Ronald Dworkin, in Chapter 12 of his “Taking Rights Seriously”, also criticizes “negative freedom”, in that unrestrained desires (“liberty as license”), being amoral, may well lead to harmful, or undesirable liberties:
“…I have in mind the traditional definition of liberty as the absence of constraints placed by a government upon what a man might do if he wants to. Isaiah Berlin, in the most famous modern essay on liberty, put the matter this way: ‘The sense of freedom, in which I use this term, entails not simply the absence of frustration but the absence of obstacles to possible choices and activities – absence of obstructions on roads along which a man can decide to walk.’
This conception of liberty as license is neutral amongst the various activities a man might pursue, the various roads he might wish to walk. It diminishes a man’s liberty when we prevent him from talking or making love as he wishes, but it also diminishes his liberty when we prevent him from murdering or defaming others.
These latter constraints may be justifiable, but only because they are compromises necessary to protect the liberty or security of others, and not because they do not, in themselves, infringe the independent value of liberty. Bentham said that any law whatsoever is an ‘infraction’ of liberty, and though some such infractions might be necessary, it is obscurantist to pretend that they are not infractions after all. In this neutral, all embracing sense of liberty as license, liberty and equality are plainly in competition. Laws are needed to protect equality, and laws are inevitably compromises of liberty.” (p. 267)
John Locke regards “law of nature” as providing a higher regulative order, and freedom comes from uncoerced following of this “law”. To treat freedom as derivable from some “law of nature” may be convenient but can no longer be satisfactory to many modern minds. Freedom can only be situationally optimized. To think that “freedom is maximized if restrictions are removed” is a fundamental misunderstanding which has misled, and is still misleading, countless men, women, and youngsters into the wrong path.
II If freedoms are created through institutional orders and sustained by duties (duty-based freedom), not from removal of impediments to individual desires (desire-based freedom), which mode of constitution is conducive to this logic of freedom- creation?
Among the competing modes of constitution, or constitutional paradigms, are the desire-based (amoral) and the duty -based (moral) variations
(1) Liberalism, or liberal individualism, emphasises the primacy of the individual worth, as reflected by his amoral, functional desires.
(2) Its converse, collectivism, emphasises the primacy of the collective (or collective desires), and of each person’s duty towards some sublimed collectivity, as the necessary condition for realizing individual worth.
(3) But liberalism and collectivism are not the only alternatives to each other. We can feel our individuality and our “collectivity”. We can feel these functional qualities because we exist above, or more than, either of them, that we ontologically exist as “interpersons”. In between the two opposing perceptions is this, often overlooked third perception: our ontological “interpersonality” or the paradigm of “interpersonalism” or “ethicalism”.
The answer may become obvious to many: the interpersonality /ethicalist paradigm is congruent with the logic of freedom creation, but the liberal view, i.e., the desire-view of freedom, is not.
The crisis of liberalism: It is amoral, desire – based, and not conducive to order formation
Modern liberalism purports to realise each separate person as a free, autonomous, and dignified human being. This is purportedly achieved through (1) asserting each person’s desires as primary values, (2) equating (mistakenly) the unimpeded satisfaction of individual desires with individual “freedom”; and (3) creating constitutional institutions which purport to maximize, and serve individual desires. Certain worrying facts must not be ignored:
(1) Liberalism is premised on the individual. As Hobbes has demonstrated, every individual is primarily composed of subjective desires, and liberalism is primarily desire – based. Individual desires are amoral, and liberalism, or “liberal egoism”, is also amoral. Each individual’s desires provide him with his own standards for judging between right and wrong, true and false, good and evil, and even real and unreal. As individual desires are amoral and egoistic, and tend to be immoral, these standards are likewise amoral, and tend to be immoral. It would be miraculous for these egoistic, amoral individuals to form common orders, if not for the binding effects of the duty-based common law, or some strong moral conventions, or some universalised religious faith (such as the teaching: “Love your neighbour as yourself”).
(2) Liberal egoism is closely associated with deeply disruptive tendencies, that of misconceiving desires as freedoms; tainting rational methodology with irrationalism, and confining human interactions between subjective desires in a zero – sum context, making real progress for common humanity difficult. Liberal egoism also tends to legitimise greed, and the self- perception of supremacy. These disruptive tendencies generate imbalances between desires and satisfaction, more than the institutions can cope.
(3) Imbalances have to be dissipated, externally and internally. They are dissipated externally through imperialistic expansions, as professor Alan Ryan has noted: “Liberalism is intrinsically imperialist”. Such imperialist expansions are to capture and take control of foreign resources, markets, and labour. Imperialist expansions are usually implemented by brute force. But, as the renowned historian Ferguson has highlighted, imperialism could be coupled with a process of institutional, cultural, and spiritual transplant and assimilation. The imbalances are also dissipated internally, often as institutionalised inequalities and racial discriminations.
Amoral desires often imply diversities and vigour. But their egoistic tendencies are not conducive to the creation of common institutional orders. They tend to limit the public functions of constitutional institutions, and render them dysfunctional. Liberal egoism is prone to deepen social divisiveness, or polarisation, reduce personal safety and freedom, and ferment civilisation crisis. Liberal institutions such as democracy and human rights, insofar as they are based upon individual desires, or designed to serve such egoistic desires, are unlikely to be self-sustainable.
The unfruitful antagonism between liberalism and collectivism: they can be functional variations as much as they are opposing values
After World War II, a bipartite contrast of “liberalism/individualism – collectivism” became prominent. The liberal camp tends to assert desire – based freedoms as universal value, and as fundamental to social and historical processes. The collectivist camp, on the other hand, tends to interpret human existence from the deeper, macro historical contexts, that historical realities determine our social and individual realities.
In this antagonism, desire – based liberalism is regarded by many as the triumphant paradigm which ought to dominate constitutional evolutions. But these two “camps” may be more closely intertwined than their apparent opposition tends to suggest. Depending on the nature of the problem situations, the liberal camp may need to resort to policies with “collectivist” components (such as austerity measures following a financial turmoil, a devastating tsunami, or in response to an ongoing terrorist threat), and the collectivist camp can comfortably produce “individualist” policies (such as the “export” of tourists in tandem with economic advancements). This functional transformability between the two camps is often concealed by a basic conceptual confusion which exaggerates the “value opposition” between them. Professor Karl Popper notes that the simple dichotomy of “individualism” versus “collectivism” is misleading. He proposes this table (p. 64):
(a)Individualism (as opposed to) (a’) Collectivism
(b)Egoism (as opposed to) (b’) Altruism
He emphasises that “(a) can be combined with (b), and form an egoistic individualism, or it may be combined with (b’) to form an altruistic individualism. And in the same way, (a’) may be combined with (b) and form an egoistic collectivism, and it may be combined with (b’) and form an altruistic collectivism.” (p. 66) The moral or immoral nature is determined not by individualism (a) or collectivism (a’) alone, but by how they are combined with, or qualified by (b) or (b’). That is, egoistic individualism and egoistic collectivism are immoral, but altruistic individualism and altruistic collectivism are moral.
Thus the perception which “looks upon the State, upon organised political power, as an evil – a necessary evil…” (p.63) on the one hand, and Plato’s collectivism on the other, “that the individual should always serve the interest of the whole group, or the collective…”, “You yourself are created for the sake of whole, and not the whole for the sake of you” (p. 65) are both incomplete. Many can easily accept that we ought to adopt the combination of altruistic individualism. It would also follow that altruistic collectivism can be desirable, but that egoistic individualism should be rejected.
A paradigm shift from ambivalent individual desires, to the overlooked paradigm of existential duties, which reflect our core interpersonality
As a gun is amoral and ambivalent (it can function to protect or to kill), it should be controlled by someone who can use it morally. If liberalism is amoral and ambivalent, a shift from this liberal ambivalence to our ethical existence is needed. Ethical existence (or ethicalism) is attained through internalising unconditional duties towards each other, and ahead of individual rights. It has two limbs:
(1) Ontologically, we exist only because of others, and we must exist for others. Each human is a bridge for realising fellow human beings (including himself/herself) as ends.
(2) Humans as a whole are surrounded by infinite, ever- rising adversities and we must place our duty to tackle them, cooperatively, ahead of satisfying our individual desires.
That we exist as bridges (i.e., as means), and that we put duties before rights, or desires, is practised daily by all parents, countless duty-conscious soldiers and public officers, upright professionals, and ordinary citizens who are ready to fulfil their duties to assist others in small or macro situations. This ethical existence does not make life “burdensome”. It reflects our normal, ontological reality: or call it our “interpersonality”. It is interpersonality which can project individualist functions or collectivist functions to tackle situational problems, and fundamentally expand our realms of freedom.
Duties build orders. It is our duties which provide sustained moral forces to constitutional institutions to transform chaos into institutional orders, and to enhance co-existence. Ethicalism keeps us critically alert of the ever-rising threats in the ever-changing reality. It also compels honesty and sincerity which regulate us towards tackling real existence and to avoid indulging in self – deceiving fantasies. It demands from us unending critical self-reflection to purge our misguided egoistic “commitments”, often deceptively mislabelled as “justice” or “noble causes”. “Interpersonality” merges our individual fate and realities into new existence, a unique cosmic process which transforms the voidness, anxieties, fears, and aggression that compose the destructive side of human desires.
III The need to transform liberal imperialism to ethicalist multilateralism
Liberal concepts are ailing, and not yet universal
Each community faces unique threats, i.e., chaos, presented by its unique historical context. It is the constitutional responsibility of, and a moral task for, each community to define its own existence, to critically perceive the nature of the chaotic threats, their causes, and decide the best way to tackle them, in harmony with other communities. The historical conditions of each community are as varied as individuals encountered in daily lives – some strong and some weak, some injured and some healthy, some poor and some well-off. The well-off may find whisky (or for that matter, Coca-Cola) the best drink in the world, but it can hardly help the poor, the injured, or the weak. It is often counterproductive and irresponsible for one community to force one “universal drink” on all other communities. History reveals unending diversities which yet defy any universal solution, or “panacea”.
If a community adopts an unrealistic constitutional perception, its chance of survival is reduced, and which may adversely impact on other communities interacting with it. Misjudgments in such constitutional perception are more prone to rise if some tempting, “progressive” concepts are adopted by a community in ignorance of its historical constraints. The Weimar constitution of 1919, which focused on building a progressive democratic Germany in the aftermath of World War I, has resulted in weak and unstable governance in a turbulent time when decisive decision-making was much needed. The constitutional institutions and elites could not cope with the harsh impact of the Versailles peace treaty and of the Great Depression. This constitutional failure has facilitated the rise of Nazism, and bred immense human sufferings.
After World War II, western powers are eager to prevent recurrence of the Nazi atrocities. They do so by asserting the concepts of “liberty”, “democracy”, “human rights”, and “justice” etc., as universal. But it is often overlooked that, embedded in some dark corners of these great concepts is the ingredient of amoral egoism (or liberal egoism) which has triggered centuries of colonialism, racism, bloodshed, and recently, social polarisation and retaliatory extremism. If this potent ingredient of supremist brutality is not purged, the attempt to achieve common humanity through imposing these concepts may decay into a new episode of “illiberal imperialism”, causing harm to both the imposing and the imposed communities.
An ethicalist multilateralism is needed to promote harmony and mutual progress between communities
The best way to defend these great concepts is not through dogmatic assertion, or defensive ring-fencing, but to embark on a critical, sincere, and thorough dissection of their inherent defects, sanitise their amoral egoism, and transform them into real civilization values. In the meantime, these concepts can provide no reliable or consistent standards for judging, e.g., whether another jurisdiction’s Homeland Security measures, or National Security Law, are appropriate. Each community has to work out its constitutional orientation, and to optimise its functional capabilities, taking into account foreign experiences of success, and of failure, as it sees fit.
It has been shown that all freedoms and rights are institutionally-based and ethically sustained. This institutional framework does not exist naturally. It is created and improved over time, and is a fragile piece of public good which must be strengthened and defended. Thus the assertion “Political participation and freedom of expression should not be crimes” (Mr Blinken, Secretary of State for the United States, Twitter on 1 March 2021) is at best a half-truth. These acts may be proper exercise of civil rights when the institutional framework which generates them is not disrupted but respected. But they can be rightly treated as criminal acts when their aim is to destroy that fundamental framework which generates – imperfectly though it may be – freedoms and rights for all citizens. The community has the right to find out, through fair criminal process, whether some groups of people have indeed aimed to destroy that valuable piece of public good and if so, to see that they are prevented, and punished.
Veteran politicians, and academics, should not overlook the institutional and ethical basis of freedoms, and should no longer be mesmerised by the powerful but harmful confusion, that of equating freedom with maximizing our subjective, amoral desires. It is timely to transform liberal imperialism to an ethicalist multilateralism to promote harmony and mutual progress between communities, on these perceptions of our true “State of Nature”: 1) We exist only because other humans have acted as means, and we must exist as means for all humans. 2) Humans as a whole are surrounded by infinite, ever- rising adversities and we must place our duty to tackle them, cooperatively, ahead of satisfying our individual desires.
The writer is a Senior Counsel who joined the Hong Kong Legal Department (the Department of Justice after mid-1997) as a public prosecutor in the mid 80s, and stayed in public service for over 20 years. He took silk in 2008, entered private practice in 2012, and acted as sometime deputy High Court judge at the Hong Kong Judiciary. He maintains a deep interest in classical Chinese philosophy and Popperian critical rationalism. He has complied books on the philosophy of science and on legal topics, and given jurisprudential lectures at various tertiary institutions.
The views don't necessarily reflect those of China Daily.