As a preamble to the following dive into philosophical ethics occasioned by the commentary on the Tao Te Ching, Chapter 50, at Ralston Creek Review, I’d like to make a few comments about death, and the one in ten who lives a life not focused on death.
There are a couple of forms of death which come to mind. First and most obvious is the death of the body in the cycle of Creation which seems to have an effect upon the manner in which the nine in ten live their lives. We all know people who are in bondage to their past or future, gripped in the present by the pains of what happened in the past, or enslaved by fears of what might happen in the future.
A good argument can be made that all forms of desperate seeking through intense effort to transcend or circumvent the natural principles of creation, particularly the fact of bodily death, is rooted in fear – and that all strife is merely the result of a personal perspective which creates a fearful reflection of that inevitable fact.
And so the second form of death, the ego-based fear of “self” death, comes to mind. The individual, separated self desires to be alive to its own needs. It cannot afford to look honestly at Creation and understand its own humble location there. Granted, each of us is unique in our own way, but we are not, as the ego would have us believe, special in the sense of being apart from, or above, the facts of life and death or indeed any other basic principle of Creation.
When we fear death of the body or the ego we can not live in the present. We live as slaves to the past and the future. The sage of the Tao Te Ching observes that this is common, and to live here and now, without fear of death, is uncommon.
Death is not to be feared, either by the body or the ego. A constant watchful eye over the ego is a good thing. It’s good to make sure it does not consider itself precious and special and above others in any manner which results in behavior and actions which are rooted in fear and not in alignment with a life lived with harmony and acceptance of things as they are, really – that is, living a life in the spirit of wu wei.
Enough said on that subject for now. On to the response to Louis’ comments on TTC Chapter 50 at Ralston Creek Review, regarding law. I’d suggest reading it before reading what follows.
You’re the expert here, with a lifelong practice of law to draw upon. Plus, I know you are a moral and ethical person of good character, and as such have a refreshing knowledge of the ethical bases of law which I suspect is rare in your profession. So I’ll come at your two questions from my own perspective.
I would tend to agree with Han Fei Tzu in that rules appear as a condition of existence in the dualistic realm of human perception. The polarity we create with individual mind generates plus and minus, good and evil, right and wrong – all of which are by definition a subset of the Tao.
The question becomes, then, a matter of identifying the underlying basic first causes upon which the subsets of deontological and consequentialist principles, and indeed all branches of normative ethical philosophies and all other ethical philosophies, are conditioned upon.
In the Tao there are no distinctions. It is what it is. So the distinctions of law must arise in a place where the things which the law addresses – intent, action, and result – are also present. This is the place where rules enter. In the Tao there is no place for death or laws or any other distinctions of dualistic perception. So to answer your first question it seems to me that the sage, beholding the Tao and aware of the nature of its manifestations in the human mind and experience, has a place within where death and rules do not enter, and simultaneously a place where they do.
Which also begins to answer your second question. Is the inherent power in the Tao virtuous? Yes and no. Is the essence of humanity virtue? Yes and no. Is the essence of humanity to be found in the act of being within the context of the laws which give rise to Virtue and Te? It depends on which laws we are talking about, and how virtue is defined.
Ain’t dualism great? And yet if, being engaged as we are in a dualistic experience, we accept a perspective of simultaneity rather than strive to get personal control of our experience by pursuing rigid answers and insisting that only one side of every “either this or that, but not both” perception is true, then we find a place of peace.
If we are talking about the basic laws or principles of creation – which is comprised of the One and its essential Te/Virtue which gave rise to the Two and Three and the 10,000 things, and which exists whether or not human perception is present – then I think we’re getting somewhere.
If we are talking about human perception of those basic laws/principles of creation – then I think we’re getting somewhere schizoid, because we’re starting at the place where individual identity coexists with universal identity. This is the place where the law enters, and ego enters, and where both gain the ability to go right or wrong as definitions are formed, depending upon what perspective point human perception is standing on, and seeing from.
The laws of civil and religious society and any other body which regulates or guides belief or behavior does so, hopefully, with an eye upon the “higher law” of Creation, of the One.
Ego, individual identity, will be self-interested if it chooses to be and will create laws which benefit it in practical ways. Yet separate egos exist, and often their personal desires are in conflict with others.
Ego too often chooses self delusion when looking at objective Creation from the subjective viewpoint and legalizes its own local perceptions, replacing the higher law with local law. Sometimes there’s enough higher law in there that the light shines through, and you get, for instance, a religion that guides its members to know truth rather than instruct them to know the local perceptions and interpretations of others regarding truth. Sometimes, not so much.
A body of laws can hold the potential to weigh blindly rather than judge with one eye open and a hand upon one side of the scales. It is to be hoped that the highest intent of human law is to be in accord with the higher law of Creation when it comes to weigh intent, action and consequences in the realm of the 10,000 things.
What is higher law, what is true virtue, and when and where does it enter into the human experience? I think it’s the “the root of the root,” and bears looking at here.
I would imagine that in your experience, Louis, you’ve had to meet more than once those situations in which administration of the law seems not to serve justice – the definition of which is in itself a full day’s chaw – so much as it serves its own principles.
Laws, through ongoing evolutions which at their very necessary best serve to refine the formulary there can become so superfine that one might wish for certain conclusions of the legal authority to be characterized as particular rather than general, that is to say, unique to an extremely narrow range of conditions. One of the quandaries local law faces over and over again in its constant self-refinement are those instances when local law does not conform to higher law and an adjustment is necessary.
The issue to determine then is whether local law prevails and is applicable – or whether it is indeed local, and limited, and needs to acknowledge its own limits and refer back to first principles, that is, those which are universally present in Creation.
I realize that that is basically what the ongoing evolution of law is supposed to do. But one would prefer that rather than over-refine the law into an arcane, complex body of information, and then give precedence to it, there was instead a certain and simple set of first principles given precedence which would always be brought to bear before the arguments of finer points within the law. And of course there is.
From this viewpoint I would say that certain stated understandings of the individual ego of the higher law could reflect the essence of higher law and so constitute a foundational basis for “local law,” be it a civil or religious or other sort of human-inspired matrix of local definitions which establishes a local code of conduct.
I would say a local reflection of higher law would go something like this: “We acknowledge that human beings are endowed in their essence by Creation with certain universal conditions present there, among them life, liberty (choice, and freedom to choose to act outside the boundaries of local laws and conditions when they are not in accord with higher law), and the pursuit of happiness (i.e., security, safety, sustenance, harmony, peace.)
A merely local, egocentric law would be just that: “Don’t eat pork because it will kill you since we don’t know how to attenuate the effects of trichinosis and erysipelas and other hog ills, and if you do we’ll ostracize or stone you.”
My point here is that if you want higher law to be the source and go-to reference for lower law then it is best to keep both eyes open to the One and remain blind to the local ego.
Of course then ego asks who among us is able to do so, and answers its own question: “No one.”
The response of Creation is the opposite: “Every one.”
And so we come full circle to the place where local law enters, because many choose to ignore what they know in favor of what they desire.
The concept of a jury, for example, acknowledges Creation’s response that every one of us is able to know the truth and so anyone is able to judge with wisdom and an eye upon truth. Yet at the same time the composition of a jury acknowledges the fact that not all will do so. The best imperfect solution employed to date is a group consensus and the hope that truth will find its way forward out of the conflict therein between ego and higher law, and that in the selection of twelve persons a consensus would arrive which was good and true.
Indeed it seems there are a number of checks to ego in the law in order to balance the dualistic human nature. A judge oversees the jury and the litigants and their representatives, and may supersede the resultant judgment based on – theoretically, at least – a superior knowledge of the law, its intent, and its applicability to the case at hand. And the judgments of judges are subject to review by a chain of higher courts, all of which constitute an opportunity for the “higher law” to be reflected in the laws of humanity.
It is a system which in its complexity has created many opportunities for the intent of the law to go off the tracks and has proven demonstrably imperfect many times. Yet it is the result of the best efforts of good and great minds of many generations to create an equitable and just definition of what behaviors are acceptable and which are not in human social interaction.
Always the dualistic is present. Sophocles observed that when a person takes a position which the law favors then the advocating argument is best based on the letter of the law; but when the law is opposed to the advocate then the best argument is the one which points out the insufficiency of the local law when it is held up to the nature of universal law. He says the advocate does well to “urge that the principles of equity are permanent and changeless, and that the universal law does not change either, for it is the law of nature, whereas written laws often do change.”
Aquinas, Montesquieu and Locke also observe that there is a standard of equity and justice present in nature and Creation, the “will of God,” which is a higher law by which local law is to be based upon and subject to. Rousseau and Kant added to the body of those thoughts with regard to the relationship between the individual and government.
Thomas Hobbes, on the other hand, asserted that civil law is the product of reason, and that reason is the product of nature, and that therefore established civil law is the highest law. He says “nothing the sovereign representative can do to a subject, on what pretence whatsoever, can properly be called injustice, or injury.”
Hobbes’ argument is a good example for me of an ego-based insistence of supremacy, produced in the confines of local perception in the rational mind, which is perfectly understandable when one considers the limits which are present there.
Hobbes began at the same point others did, examining the “social contract” which is established between the individual and government and defined by law. Rousseau and Locke looked at the same primary reference point, the social contract, and yet their judgments constituted a powerful counterpoint to certain conclusions arrived at by Hobbes.
Hobbes’ assertion that an individual more or less automatically gives up their right to act freely when a government exists which is enforcing a social contract is logical and understandable in a local context, but runs counter to the sensibilities of, for example, the American Revolution. Hobbes certainly brooks no room for civil disobedience such as that practiced by Martin Luther King, Thoreau, Ghandi, and the many who have insisted on the reconstitution of local law on the basis that it does not reflect higher law. Those persons chose to be actively disobedient to laws based in a consciousness which they regarded as being in conflict with natural, higher law. In the actions of these persons it is evident that a consciousness of higher law was present in their human conscience, and that thing which we identify as “conscience” is in fact the thing within us which connects us to the Tao, Creation, and the principles of equity and justice present in the very essence of our human experience.
So I’d say that the unknowable Tao, giving rise to the One and Two and Three, and the 10,000 things of Creation, is the seat of true, higher law. And in the trinity of Creator and Creation and Created Ones there is a bridge connecting all to each, sometimes characterized as The Holy Spirit, or Conscience, or the “still, quiet voice within,” which is the agency through which we can, if we so choose, know higher law and refer to it when we seek answers to baffling questions of legality. It is never enough to be in touch with only the letter of the law. It is necessary to be in touch with the inherent morality which proceeds out of the first cause, and the intent there, and the Virtue there, which is the essence of the Tao and all that flows from it.