Based on this write-up, should a Head of State at all times be immune from all forms of a lawsuit?

CHAPTER VIII

POLITICAL LAW: REFORM, REVOLUTION,

AND RESISTANCE THE NEO-CLASSICAL

PHILOSOPHERS

All men are born equal, naked, without bonds.

God did not create man to be a slave;

Nor did he endow him with intelligence to have him hoodwinked,

Or adorn him with reason to have him deceived by others.

Jose Rizal, Letter to the Young Women of Malolos

Countries today have a constitution, and with it, a bill of rights for its citizens. Not long ago,

states were not organized with charters for freedoms and duties. The term "right" is a modern

concept, brought about by libertarian revolutions and inspired by reformist philosophers who

believed in a government by consent, such as John Locke for the American Founding Fathers

and Jean Jacques Rousseau for the French philosophes.

The theories about social contract were to replace the divine rights theory that justified the

absolutism of monarchies from the signing of the Magna Carta by King John of England, to the Glorious Revolution in England, to the French Revolution, to the American Revolution, to the Philippine Propaganda Movement of ilustrados who were inspired by the writings of the Enlightenment philosophers.

The Malolos Constitution and the 1935 Philippine Constitution adopted many provisions of

the American Bill of Rights and its liberal philosophy. Our national hero, Jose Rizal, was an avid

reader of Voltaire's critique of the French monarchy and of the privileges of the Catholic

Church, as exposed in the person of "Pilosopo Tasyo" in Rizal's novel Noli Me Tangere.

Social Contract theorists do not explain the origin of society through the divine rights of kings

or through the Biblical account of salvation history. They believe that the fundamentals of

society were brought about by conventions and agreements, tacit or explicit, also called as the

"social contract."

Before the social contract, there were only the natural rights of man (a take-off from natural

law for Locke), or the natural state of man, which Hobbes depicted to be nasty and barbaric, and

Rousseau impressed as pristine like a Garden of Eden. In any case, the modern State, civil

society, and civil rights were born after the social contract. Laws, including a Constitution,

written or unwritten, are expressions of this contract.

I. MACHIAVELLI: THE BREACH AND THE PRACTICE

OF POLITICS

In all governments, there must of necessity be both the law and the sword; laws without arms

would give us not liberty, but licentiousness; and arms without laws, would produce not

subjection, but slavery. The law, therefore, should be unto the sword what the handle is to the

hatchet; it should direct the stroke and temper the force.

Charles Caleb Colton, Lacon

In chess, the knights, the queen, the bishops, and the pawns can all make or break a king. The

same with politics, according to Niccol di Bernardo dei Machiavelli, the classic power pundit.

The moves of a politician's right-hand men, spouse, clergy, and people can spell checkmate. This

is true, even in the game of Philippine politics.

Machiavelli's The Prince was written for rulers in the making in a very unstable society.

Some, like Rousseau, say that it was deliberately written on how not to rule, because following

Machiavelli's tips will inevitably lead to dictatorship and revolution.

Machiavelli was the son of an Italian lawyer and was appointed diplomat, administrator, and

chancellor of the Florentine Republic in 15th-century Italy. After he was imprisoned and tortured

by the Medici regime, he wanted a rebellion that would restore the Republican state, supposedly

giving cause for provocation by fanning tyrannical abuses in The Prince. With this caveat in

mind, provided below are Machiavelli's tips on how to rule, given the non-ideal conditions of

decadence and disintegration.

First, if the ruler cannot be good always, he must at least pretend. The people look at leaders as

models of virtue, and this is where the art of deception comes in. "Thus, it is well to seem

merciful, faithful, humane, sincere, religious, and also to be so," Machiavelli said. "But you must

have a mind so disposed that when it is needful to be otherwise, you may be able to change to the

opposite qualities."

Second, there are two ways of fighting: one by law, another by force. The first is to man, the

latter is to brutes. When dealing with brutes, the former will not work. Use the second.

Third, the leader should himself shower the favors but should delegate the punishments. This

is called the "black knight" principle. A leader, to be beloved, must himself give the merits, but

should leave it to the executioner to do the chastiser's job.

Fourth, it is good to be both loved and feared. But if the leader has to choose, better be feared

than loved, but not be hated. Machiavelli said that nothing is stable in politics and everyone can

be a rival. So relations of friendships and love are no assurance. These only increase feelings of

indebtedness. On the other hand, when one is able to instill fear, others will follow without the

leader giving anything in return. Nevertheless, one should not be hated to the point that arouses

rebellions.

Machiavelli advised: "Men have less scruple offending one who makes himself loved than one

who makes himself feared; for love is held by a chain of obligations which, men being selfish, is

broken whenever it serves their purpose; but fear is maintained by a dread of punishment which

never fails."

Fifth, punishments should be done all at once so that seldom felt will be less remembered. But

boons should be granted apiece that they may linger. Punishments must be swift for a "shock and

awe" effect, but this should not be the order of the day lest people get desensitized or harbor

disgust. Cruelty, if only once in a while, will sustain fear but not hatred. Privileges, meanwhile,

must be given in proportions so that they may be better appreciated and craved. "For injuries

should be done all together, so that being less tasted, they will give less offense. Benefits should

be granted little by little, so that they may be better enjoyed," Machiavelli suggested.

Sixth, a ruler must be shrewd and swift to match the inconsistency of the people and the

political environment. Machiavelli portrayed men as "ungrateful, fickle, false, coward, and

covetous." The ruler must be flexible enough to adapt to social trends.

Finally, the end justifies the means. If the ruler succeeds, the people are his. If he fails, they

turn against him. Commentators explain that Machiavelli was not really justifying evil here, only

the necessary lesser evil. In fact, Machiavelli was lamented the moral degeneration of Italy as

compared to the civic virtues of the ancient Romans. The means Machiavelli referred to were the

cunning ways of the Prince, which he justified to bring about the end of an ideal Republic.

The end Machiavelli envisioned comes out in his thesis, The Discourse on the First 10 Books

of Titus Livy. In The Discourse, the hero is not a despot but the people of Ancient Rome.

Machiavelli wanted a Roman Republican government, which, on the contrary, censors tyranny

and promotes self-government and liberty. Given the ideal conditions, a republican government

can be installed. For "popular governments are still superior to those of princes," Machiavelli

said, and "in glory and in goodness the people are far better." He indicated this even in The

Prince, where rulers put into power by the populace make more stable government than those

raised by the elite nobility.

Machiavelli pointed that although a ruler can take advantage of religion, the contrary would

also be true: he would be at a loss without it. Machiavelli was papal adviser to Popes Leo X and

Clement VII and died receiving the sacraments. Religion is useful, he said, "in animating the

people, in keeping men good, and in shaming the wicked."

Machiavelli advised the ruler not to take the women and property of his subjects even in The

Prince. If he is "to slay one's fellow, betray one's friends, act without faith, without pity, without

religion," he may win power but not glory. But with virtue, one is "praised and admired even by

one's enemies."

The Christian standard of behavior is a means to securing peace. If rulers are true to Christian

principles, the states would be more united and happier. What Machiavelli did not like was

Christianity's emphasis on humility, lowliness, and resignation, which enervated statesmen to

become soft, lacking in ambition, disarmed, and resigned from worldly manners. Like Nietzsche

after him, Machiavelli blamed the emphasis on the after-life for the fall of Rome.

In the end, one can say that Machiavelli only wanted empowered leaders who could bring

terror to the crooked, order, and rights to the people, as well as to clear the way for a strong and

virtuous Republic.

II. HOBBES ON SOVEREIGN IMMUNITY

The law should be the point at which savagery ended because civilization stood in its path.

Ariana Franklin, Mistress of the Art of Death

It was Thomas Hobbes who argued in the Leviathan that life was originally "poor, nasty,

brutish, and short," in a primitive state of war of every man against every man. Everyone was concerned only with his self-interest, just like in the wild. Might makes right.

Hobbes lived in Reformation England torn by religious wars and family feuds, which explains

this worldview. "Fear and I were born twins," he once quipped. Hobbes' student, Charles II, was

restored to the British throne in 1660 and Hobbes wanted to justify the persecutions of the

monarchy.

Hobbes' The Leviathan

Hobbes' perspective pierces into an ugly reality that holds true even today, in the way we

constantly guard against each other, even from our own families. We place our valuables under

lock and key, we close our rooms always, we seal our doors and windows, we install hidden

cameras, we raise high gates and fences, and we chain dogs in our yard. Why this continuous

mistrust and suspicion of the other remain even in our own household?

For Hobbes, it is because we humans are in constant fear of theft, invasion, violence, and

death. If left to ourselves, men would live without security other than their own strength; to use

their own power as they would. In our original state, there was no industry, arts and letters, or

concept of property. Due to scarcity of goods and individual vulnerability, everything was up for

grabs and everyone can subdue anyone.

Eventually, men made alliances, decided to act collectively, and agreed to call into law

enforcers as people wanted to keep themselves safe and peaceful. Instead of taking the law into

their hands, people surrendered their original freedom to the rule of their rulers. Each individual

must already be contented with so much liberty as he would allow other men against himself.

Hobbes said: "For he that renounces or passes away his right gives not to any other man a

right which he had not before...but only stands out his way, that he may enjoy his own original right without hindrance from him and from another."

Justifying Authoritarianism

The mutual transferring of natural right to the Sovereign is the social contract. Our rulers will

need such force and threat to be followed and feared by those who resist society's covenant.

Either we have a licentious and lawless society with everyone pursuing his self-interest, or we

put our stakes to a monarch or a dictator to keep everything in perfect order. Either there is a

chaos of wills or the will of one sovereign as our law. Society is like an organization where it

will be more efficient to entrust the decision-making and enforcement to a powerful chief

executive officer. Only governments with indivisible power could prevent the disintegration of

society.

The Sovereign will either be an individual or a group of individuals. He holds power from the

people, the "commonwealth," not for his own good, but to maximize the interest of all. This

structure runs the risk of abuse but for Hobbes, the injustices of a ruler are better than the

injustices under the state of nature. Better the abuses of one than the abuses of every one against

every one. In recompense to the rights that the people will abandon, Hobbes said, "men will be

compelled equally to the performance of their covenants, by the terror of some punishment."

Once the people hand their sovereignty to their rulers by putting them into power, part of the

terms is to follow their rules. From this original consent, the people cannot retract.

In modern times, the Sovereign is no longer identified with a monarch but the State itself. The

doctrine of the State's immunity from suit, as provided in Article XVI, Section 3 of the 1987

Constitution, stemmed from this view that the Sovereign is absolute and that there can be no

legal right as against the authority that makes the law on which the right depends.

III. THOMAS MORE ON REPUBLICANISM AND THE

FAMILY AS THE BASIC UNITY OF SOCIETY

What can you do to promote world peace? Go home and love your family.

Mother Teresa, 1979 Nobel Peace Prize recipient

Sir Thomas More, the English Chancellor of King Henry VIII, while also believing in the

corrupt "fallen" nature of man, arrived at a different conclusion from Hobbes. Precisely because

man is corruptible, it will be too risky to put all sovereignty into one man's power in perpetuity.

More was among the first to propose, in an age of supreme monarchs, that the Sovereign must be

elected by the people so that the electorate can check and terminate their rulers' regime for

abuses.

In his writings and correspondences, More believed in Republicanism even at the time when

he was still a favorite of Henry VIII and before he was sentenced for refusing to acknowledge the

king as head of the Church of England in order to allow his divorce from his wife, Queen

Catherine. More disapproved Henry VIII's divorce, especially since the real ground was

Catherine's failure to give birth to a male heir.

The Familial State

In A Treatise on the Passion, More said that because of the human tendency to err, human

beings have a special need for government. The first government in the natural society is the family, where as free beings, we are ordered to love and care for others. It is in the family where

we learn the virtues to be exercised in a larger civil society.

In his Utopia, a large family is the basic unit of society. The young children help in the

housework, while the elderly educate the children. The whole island of Utopia itself is run like a

single family.

To prevent idlers, family time is structured. Because of the importance of the family, there are

strict regulations to prepare men and women to marriage and sexual fidelity. Those who cause

the dissolution of the family by giving ground to divorce can be investigated and forbidden to

remarry as a punishment. Divorce is allowed for adultery and sexual perversions but the guilty

party cannot remarry.

More believed in relative divorce which we call in the Philippines as "legal separation," but

not absolute divorce that allows remarriage, especially for the guilty party. In the Philippines,

though, absolute divorce with remarriage is not allowed even for the innocent party. But More,

the Catholic patron saint of lawyers, appeared to make a distinction in Book II of Utopia: "There

was the more reason for this regulation among them (the Utopians), because they are the only

people of those parts who allow not polygamy or divorce, except in case of adultery or

insufferable perverseness. In these cases, the senate dissolveth the marriage, and granteth the

injured leave to marry again; but the guilty are made infamous and never allowed the privilege of

a second marriage."

Further into his Latin Poems, More argued that a good ruler would be like a father to his

children, rather than a master to his subjects. This recalls the Roman standard of "pater familias"

or due care of a good father of the family. As a father, More was affectionate to his son and three

daughters and was concerned of their welfare whenever he was away for business. He believed

in the equal education of the sexes. In his poem "Twelve Properties or Conditions of the Lover,"

More outlined the devotion that comes from public service like a person in love.

For More, the Sovereign must consider the people as part of his own body. The ruler must be a

watchdog and a guardian ready for service, not a tyrant or a wolf ravaging his own flock. Since

no one is perfect, no one can be invested with unqualified and absolute authority, whether by

inheritance, election, or divine right. Everyone needs advice.

More suggested a government like the Roman Republican Senate, where the people could

consent on bestowing and withdrawing sovereignty, and leaders could involve themselves into a

free discussion on matters of the State. In Epigram 121, More wrote that "any man who has

command of many men owes his authority to those whom he commands: he ought to have

command not one instant longer than his subjects wish."

The Rule of Law

More observed that while a king is usually mild during his first year in power, his unlimited

power eventually makes him vulnerable to pride and dismissive of others' good opinions. Over

time, his selfishness will wear the people out. In Richard III, More wrote that "unlimited power

has a tendency to weaken good minds, even in the case of gifted men."

Given that the people may have no choice on their current form of government, in Utopia,

More advised: "What you cannot turn to the good, you must at least make as little bad as you

can." To correct even an absolutist government, there must be the rule of law. Law is a criterion

of justice and the substantial shield of freedom.

While human laws are from traditions of men, they are relatively the work of prudent citizens

concerned for the common good. Although no law is perfect, lawlessness would make people

rush into every kind of crime. Laws must be respected then. If faced with unjust laws, More, like

Socrates before him, showed respectful resistance by accepting his verdict of death for treason.

His last words were: "I am the King's good servant, but God's first."

To prevent the abuse of law-making, there must be few laws but more conventions and

regulations. In A Dialogue Concerning Heresies, More argued that apart from human law, there

is a natural law written in the human heart that anyone can know by reason. One can ignore this

law of conscience only for a limited time because violating one's conscience will eventually

cause grief. Man is free to follow God according to his conscience but it is also his duty to have

an "educated conscience" the virtuous training to seek what is good even if this will entail

labor and pain.

Although More was a staunch Catholic statesman, he did not want a State religion. He

believed in the separation of the Church and State, but not the absence of conscience or morality

in politics. The deistic notion of "natural religion," where the citizens have at least the basic

belief in God and the immortality of the soul as discovered by reason and conscience, will suffice

in a Utopian state.

Today, many constitutions, including those of the U.S. and the Philippines, while endorsing

the separation of Church and State, acknowledge the Supreme Being and the moral principles of

truth, justice, and freedom in their constitutional preambles. Auguste Comte, in his Course on

Positive Philosophy, agreed that "the true social unit is the family" where "the principle of

subordination and mutual cooperation is exemplified." Families become tribes and tribes become

nations. To attack the family is a symptom of social chaos.

The Republican Party in the United States, also known as the Grand Old Party (G.O.P.)

dominated by conservative Evangelicals and Catholics, continues More's advocacies for a

representative government, the rule of law, the belief in a higher moral law, and family values at

the heart of a good government. An Oscar-winning film, A Man for All Seasons (1966), presents

the colorful life and trial of More. A statue of the saint graces the chapel of the Jesuit-run Ateneo

de Manila University-College of Law, where a law fraternity, the Fraternal Order of Utopia, was

named after More's classic.

IV. UNLOCKING INALIENABLE RIGHTS

The law is the organization of the natural right of lawful defense. It is the substitution of a

common force for individual forces. And this common force is to do only what the individual

forces have a natural and lawful right to do: to protect persons, liberties, and properties; to

maintain the right of each, and to cause justice to reign over us all.

Frederic Bastiat, The Law

While Hobbes emphasized the irrational in man, Locke stressed that man has reason and

conscience, which makes him a self-determining free individual. Locke was influenced by the

struggles of his Puritan parents, who escaped the religious persecution in England. His mother

died while he was still an infant, while his father died as a captain in the Parliamentary Army

when Locke was still young. Locke's liberal philosophy inspired Thomas Jefferson and the

American revolutionaries.

In his Second Treatise on Government (the companion book of District Attorney John Reid in Disney's The Lone Ranger). Locke said that in the beginning, people lived in "a state of peace,

goodwill, mutual assistance, and preservation," and enjoyed natural rights to protect their own

life, limb, and property. Man is by nature sociable and the social contract was made to further the

common welfare, especially for others who may not be able to defend themselves. Civil

government must be created not because the natural state is a state of war, as told by Hobbes, but

for greater convenience. It will be contrary to man's interest to make enemies of other people and

to create a state of war. In fact, men need each other and there is no benefit in offending and

harming others since one will also receive harm in return.

The rights that would not otherwise exist without the promulgation of laws brought about by

the social contract are called "civil rights," such as the right to a trial. Civil rights should protect

and supplement "natural rights" through written laws. Civil society is needed to put up with the

inconveniences of the state of nature and for mutual preservation of lives, liberties, and estates.

These rights are natural to mankind and cannot be given away.

The American Declaration of Independence provides that it is "self-evident that all men are

created equal" and "endowed by their creator" with "unalienable rights" to "life, liberty, and the

pursuit of happiness." This echoed Locke's conception of the natural law: "Reason, which is that

law (of nature), teaches all mankind who will consult it that being all equal and independent, no

one ought to harm another in his life, liberty or possessions."

For Locke, there are universal natural laws not because human beings have innate ideas or

knowledge of these since the human mind is actually a blank canvas ("tabula rasa"). Rather,

human beings happen to share the same experiences that are rationalized into universal

principles.

The People's Trust

The social contract is a pact between free men for the public good. Law's hold must therefore

be limited to public affairs, and beyond this, people should be free to be themselves. When a

sovereign goes against the public good and natural rights, he betrays the people's trust and the

people have the right to disobey and revolt.

But although the trust is revocable, the social contract is not. The sovereign is simply replaced

but the communal and civil laws that preserve social order remain. Locke, hence, defended the

Glorious Revolution, also known as the Bloodless Revolution, which overthrew King James II of

England.

To obtain a balance of power, Locke, like Baron de Montesquieu, proposed that the

legislative, executive, and federative powers must be separated in a "tripartite system"

(Montesquieu proposed the Judicial, rather than the Federative, as the third branch of

government) so that no government body could be all-powerful. It is undesirable that the person

who makes laws should be the same person to decide on executing them as private interest may

factor in. Locke also espoused the separation of Church and State so that people may be free to

associate for other-worldly matters and follow their individual conscience.

Locke opted for a parliamentary form of government, majority rule, and popular

representation since sovereignty ultimately resides with the people. The express consent of the

governed must be obtained under a social contract because it is the people who know what is best

for themselves.

Sovereign power cannot be transferred to those whom the people did not entrust this power.

This became known as the "doctrine of non-delegation." Locke explained: "The Legislative

cannot transfer the power of making laws to any other hands. For it being but a delegated power

from the people, they, who have it, cannot pass it over to others." He continued, "and when the

people have said, 'We will submit to rules, and be governed by laws made by such men,' and in

such forms, nobody else can say other men shall make laws for them."

V. ROUSING MAN TO BE FREE

"Then I am to take it that Monsieur Tarzan would prefer to go naked into the jungle, armed

only with a jackknife, to kill the king of beasts," laughed the other good naturedly, but with the

merest touch of sarcasm in his tone.

"And a piece of rope," added Tarzan.

Edgar Rice Burroughs, Tarzan of the Apes

Like Locke, Rousseau conceived man to be originally good and free in his idea of the "noble

savage." It finds application in the doctrine of "presumption of innocence" that puts the burden

on society to prove the guilt of an accused.

Rousseau sought to reform society and is most famous for saying in his The Social Contract

that "man was born free but everywhere he is in chains." By this he meant that man is

fundamentally good, but society can bind and condemn people in unjust ways, yet society itself

can make man free again.

Contrary to Hobbes, it is society that initially corrupts and induces man to lose his childhood

innocence and to be savage, selfish, and unhappy. Under the natural state, our only concern is

self-preservation and reproduction. Upon living in a society, we want public esteem and

reputation, and with these come vanity and contempt, shame and envy, decency and public

morality, boasting and deceit, avarice and ambition. To make a public spectacle, punishments

have to be made severe unlike when dealt with as a personal injury. With joint labor and

production of many, work has become indispensable, not an independent intercourse. To be

better off from the rest, property and power have to be accumulated, and with these come war

and the vindication of property. The more "civilized" a society is, the more destructive wars it

will engage in.

Rousseau lived in the Romantic Age that was fed up with over-rationalizations and

scientifism, and emphasized instead the value of emotions, instincts, and going "back to nature,"

like in the fictional character of Tarzan. It is said that Rousseau's fixation on primitive childlike

virtues developed out of his infatuation with his boyhood governess, Mademoiselle Lamberciele.

Even so, Rousseau's theories on the man-in-the wild rhyme with anthropological studies on

primitive tribal ethics, even in Philippine indigenous communities.

Rousseau believed that the natural instincts of a child are good but are eventually repressed by

society's artificial constructions, leading to alienation, falsehood, and hypocrisy. Civilization can

corrupt a person and destroy his spontaneity and creative energy. In his Emile, Rousseau

proposed that a child be educated to cultivate, not repress, his self-expression through sympathy

and love in a familial rather than in a school environment, similar to home-schooling. Morality

must develop from natural impulses of empathy. More than an education of the intellect, there

should be an education of the senses.

The General Will

In Rousseau's Social Contract, each individual is considered part of the whole society, the

collective body. It is a moral body where citizens share in the sovereign power. People join

society not to abdicate their natural liberty but for improvement and sophistication. The social

contract is there to enhance man's freedom and this is realized through democratic institutions

that allow every citizen to vote on every major decision, and where a subject of the law is also a lawgiver.

Rousseau was writing with his small city-state of Geneva in mind, where direct voting could

be realized. Part of the freedom that a citizen surrenders is to obey the preference of the majority once his vote is defeated.

The social contract creates a new corporate entity endowed with a "general will" as an

outcome of a democratic process. The general will should come from all to apply to all. It is

important that legislators and citizens have shared values and identity of interest. The people,

meanwhile, must be informed and publicly spirited. In a spirit of fraternity, duties are selfimposed through deliberation and election.

The general will is not the will of all or the will of the majority, but the common interest

expressed through laws. Since laws were made with the participation of the people, these are

binding to everyone. Those who are unaware or who resist the general will may thus be

compelled to act accordingly, and be "forced to be free." For freedom is the opportunity to do

what is right, including obedience to authority as assented by one's citizenship or membership to

a society.

VI. THE "MILL" OF HAPPINESS AND LIBERTY

Every law is an infraction of liberty.

Jeremy Bentham, lawyer, Father of Modern Utilitarianism

John Stuart Mill, member of the English Parliament, wrote in On Liberty that "the only

purpose for which power can be rightly exercised over any member of a civilized community,

against his will, is to prevent harm to others." This became known as the "Harm Principle." Man

is free to pursue his happiness as long as he does not harm others. He may harm himself in the

process but not others. When he does harm others, this is the only time that law may intervene.

Otherwise, "over himself, over his body and mind, the individual is sovereign."

Mill was a radical and a genius in his days. At age three, he was taught Greek. By eight, he

was reading philosophy, geometry, Latin, algebra, and physics. At fourteen, he was doing

chemistry, zoology, and logic. At twenty, he had a nervous breakdown for too much study. Mill

became the second husband of the feminist Harriet Taylor Mill and grandfather of the Nobellaureate, mathematician-philosopher Bertrand Russell.

Freedom of Action and Thought

Mill said that a person "cannot rightfully be compelled to do or forbear because it will be

better for him to do so, because it will make him happier, because, in the opinions of others, to

do so would be wise or even right. These are good reasons for remonstrating with him, or

reasoning with him, or persuading him, or entreating him, but not for compelling him or visiting

him with any evil in case he does otherwise." The contrary is involuntary servitude.

The exceptions are when a person still needs the care or guardianship of others, and if the

person does not realize what he is about to do, like in preventing a person from crossing an

unsafe bridge that he thought is safe. A person may not also be allowed to sell himself as a slave

or to abdicate, waive, or resign his freedom. One is not free not to be free.

Freedom of action must be distinguished from freedom of thought. Whereas one's actions can

be interfered with if a person becomes a nuisance to others, he is free to believe at his own cost

whatever he wants to believe.

In the chapter "Of Liberty of Thought and Discussion," Mill argued for a free press, saying

that "all silencing of discussion is an assumption of infallibility." To refuse hearing an opinion is

to assume absolute certainty of one's own.

If the other's opinion is actually right, people are deprived of the opportunity of exchanging

error for truth. If the opinion in writing is wrong, the people lose the clearer perception of the

truth by its collision with error. If it is part of the truth, the people lose the remainder of the truth.

Man is capable of rectifying mistakes by discussion and experience. If a subject matter has not

been fully discussed, no matter how true it is, "it will be held as a dead dogma, not a living

truth." In a cauldron of ideas, each idea must be constantly tested against other ideas.

Freedom of thought loses its immunity from the law under circumstances when the form of

expression has become "a positive instigation to a mischievous act." Mill cited as example the

incitement of a mob to do harm to others.

Utilitarianism

Utilitarianism is the philosophy of pursuing pleasure and avoiding pain, for "the greatest

happiness of the greatest number." However, Mill's version of utilitarianism, unlike Jeremy

Bentham before him, considers the kind or quality of pleasure and not just its quantity or

intensity.

In Utilitarianism, Mill explained that the pleasures of a swine are not the happiness of a man.

Humans are not supposed to be like lower animals subject to sensual indulgence, but must pursue

a happiness that satisfies the intellect. Utility must be grounded on permanent and progressive

interests and virtues of man. He proposed the application of the golden rule of Jesus of Nazareth,

which would raise the overall level of happiness.

By "right" means something that society has an obligation to protect under a general utility. In

terms of quantity, the law must prefer what gives happiness to the most; and in terms of quality,

the satisfaction of man's higher faculties is preferable.

According to Mill, "men lose their high aspirations as they lose their intellectual tastes,

because they have not time and opportunity for indulging them; and they addict themselves to

inferior pleasures, not because they deliberately prefer them, but because they are either the only

ones to which they have access or the only ones which they are any longer capable of enjoying."

Law should ensure the greatest good for all concerned. Temporary pain is tolerable if this will

produce more genuine pleasure in the long run. What makes the majority happy, however, must

respect what may please the minority since they also have a right to be happy. The essence of the

law is to punish those who break this right since it is fundamental for man to seek his own

happiness. The interest of all makes an equal claim for the consideration of all. The function of

law is to legislate for liberty.

Although society may actively promote, encourage, or give incentives to certain activities that

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will increase the general happiness index, it must not prohibit those that do no real harm or

which harm only those who consent to the activity. A diversified society may not always

guarantee everybody's version of happiness but it must at least allow its pursuit. It is the person

who knows what is best for himself. If society will allow him to live in a way that makes him

fulfilled, it might enable him to achieve his potential, to discover new ways of doing things, and

to leave his mark in the world.

Being Useful

Mill claimed that once an obligation is assigned to a person, such as being a family man, a

soldier, a government official, or a debtor, he can be punished for a "breach of duty." Mill

defined duty "as a thing which may be exacted from a person, as one exacts a debt." Without this

exact and clear imperative duty, however, society must bear with any "constructive injury" that a

person may happenstance create in exercising his liberties, in favor of the greater good of human

freedom.

A "perfect obligation" is one with a correlative right that can be demanded by others. An

"imperfect obligation" has no corresponding right but a mere beneficence or generosity that one

is not bound to practice. Once perfect, moral, and legal obligations have been satisfied, one must

be free to pursue one's choice of pleasures.

Today, civil society groups continue Mill's advocacy for "the right to be let alone," including

individualist choice, free speech, religious, racial, and political tolerance, privacy rights,

reproductive rights, and personal space. State interference should be minimal and infrequent. The

appeal to private pursuit of happiness has progressively stricken down laws that restrain private

morality and "victimless crimes" (i.e. crimes that do no harm or harm only the participants

themselves) such as consensual sexual activities like fornication, which for Mill, must be

tolerated.

VII. CIVIL DISOBEDIENCE AS A DUTY

Do you hear the people sing? Singing a song of angry men? It is the music of a people who

will not be slaves again! When the beating of your heart echoes the beating of the drums, there is

a life about to start when tomorrow comes!

"Do you Hear the People Sing?" from the musical Les Miserables

The Philippines had experienced two peaceful "People Power" revolutions. In both cases, the

succeeding administration had been recognized to be legitimate by the Court under the 1987

Constitution, according to the principle of "civilian supremacy," where sovereignty resides in the

people and all government authority emanates from them (Art. II, Sec. 1).

The tradition of non-violent revolutions and resistance movements, from Mohandas Gandhi to

Martin Luther King Jr. to Leo Tolstoy, draws their inspiration from Henry David Thoreau, who

advocated civil disobedience not only as a right but as a duty to pro-actively change an

oppressive system.

The feminist Emma Goldman called Thoreau as "the greatest American anarchist," although

Thoreau himself did not advocate anarchism or the absence of government but "better

government." He taught that government is at best "expedient" although not necessary, and thus,

people could resist and survive its absence, especially a bad government. Thoreau explained that he aspired for a better government not "no government," but no government would be better than

bad government. He believed more in self-governance than political governance, and that the

government should take steps to recognize the individual's right to govern his own affairs.

Thoreau asked in his On the Duty to Civil Disobedience: "Must the citizen, even for a moment

or in the least degree, resign his conscience to the legislator? Why has every man a conscience

then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate

respect for the law, so much as for the right." For Thoreau, it is conscience before conformity.

Thoreau compared those who submissively follow the law to automatons and machines, who

march to the order of the ruler the way soldiers, privates, jailers, and "powder-monkeys" do.

Militarization is an example of passive, unthinking obedience to the law. Thoreau was critical of

the army who cannot exercise moral judgment of their own. For him, real progress comes from

the people, not from the government. The best thing governments can do is to let people flourish.

When Revolution is Right (and Ripe)

When does a revolution become a right? Thoreau said it is "the right to refuse allegiance to,

and to resist, the government, when its tyranny or its inefficiency are great and unendurable." For

instance, when "oppression and robbery are organized," when there is slavery, and when the

"country is unjustly overrun and conquered by a foreign army."

The rule of expediency of government no longer applies when "a people, as well as the

individual, must do justice, cost what it may." Blood may flow even from a non-violent

rebellion, but Thoreau said that blood is already flowing when the conscience is wounded.

Thoreau did not suggest rushing to revolution or resignation from office for each or any

wrong, but one has to consider the consequence of resistance and whether the law is clearly

unjust. He advised, thus: "You may consider whether the remedy will not be worse than the evil,

but if it is of such nature that it requires you to be the agent of injustice to another, then I say,

break the law. Let your life be a counter-friction to the machine. What I have to do is to see, at

any rate, that I do not lend myself to the wrong which I condemn."

The electoral system will be useless especially if resistance comes from a minority. To cast

their votes will not have an effect, and will be like leaving their right to mercy or chance. Rather,

the minority must put all their weight to resistance such as non-payment of taxes to cut their

support for the government. Thoreau himself spent a night in jail for refusing to pay poll taxes

because of his opposition to the Mexican-American War and slavery.

Mahatma Gandhi later followed Thoreau's way of civil disobedience or satyagraha, by

encouraging India not to pay salt taxes to the British government and that they make salt of their

own. Although Thoreau was aware of Christ's directive to pay taxes and to "render unto Ceasar

what is Caesar's and to God's what is God's," the problem, he noted, is that unwise men do not

know which is which, and do not wish to know.

To successfully resist the government, the individual must make himself self-sufficient and

less dependent on government provisions. The person must be able to live independently, make a

new start, and discover his natural goodness. To be able to maintain this activist lifestyle,

Thoreau rejected materialism and lived modestly.

For Thoreau, real progress is the succession of governments from absolute to limited

monarchy, then from limited monarchy to democracy, then from democracy to organizing the

rights of every man from which the State derives its authority. Until this moment arrives, resistance and revolutions will continue.

In the next chapter, we will discuss a revolution that swept monarchies, religions, and world

superpowers under the banner of the hammer and sickle.