Natural law

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Thomas Aquinas, a Catholic philosopher of the Middle Ages, revived and developed the concept of natural law from ancient Greek philosophy.

Natural law (Latin: ius naturale, lex naturalis) is a philosophy asserting that certain rights are inherent by virtue of human nature, endowed by nature—traditionally by God or a transcendent source—and that these can be understood universally through human reason. As determined by nature, the law of nature is implied to be objective and universal; it exists independently of human understanding, and of the positive law of a given state, political order, legislature or society at large.

Historically, natural law refers to the use of reason to analyze human nature to deduce binding rules of moral behavior from nature's or God's creation of reality and mankind. The concept of natural law was documented in ancient Greek philosophy, including Aristotle, and was referred to in Roman philosophy by Cicero. References to natural law are also found in the Old and New Testaments of the Bible, later expounded upon in the Middle Ages by Christian philosophers such as Albert the Great and Thomas Aquinas. The School of Salamanca made notable contributions during the Renaissance. Modern natural law theories were greatly developed in the Age of Enlightenment, combining inspiration from Roman law with philosophies like social contract theory. Key proponents were Alberico Gentili, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, Matthew Hale, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, Emmerich de Vattel, Cesare Beccaria and Francesco Mario Pagano. It was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government—and thus legal rights—in the form of classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy of all such establishments.

Contemporarily, the concept of natural law is closely related to the concept of natural rights. Indeed, many philosophers, jurists and scholars use natural law synonymously with natural rights (Latin: ius naturale), or natural justice. while others distinguish between natural law and natural right.

Because of the intersection between natural law and natural rights, natural law has been cited as a component in the United States Declaration of Independence, and claimed by natural law proponents thus to be incorporated into its constitution, as well as in the French Declaration of the Rights of Man and of the Citizen (1789).

History

The use of natural law, in its various incarnations, has varied widely throughout history. There are a number of theories of natural law, that differ from each other with respect to the role that morality plays in determining the authority of legal norms. This article deals with its usages separately rather than attempt to unify them into a single theory.

Plato

Although Plato did not have an explicit theory of natural law (he rarely used the phrase 'natural law' except in Gorgias 484 and Timaeus 83e), his concept of nature, according to John Wild, contains some of the elements found in many natural law theories. According to Plato, we live in an orderly universe. The basis of this orderly universe or nature are the forms, most fundamentally the Form of the Good, which Plato describes as "the brightest region of Being". The Form of the Good is the cause of all things, and when it is seen it leads a person to act wisely. In the Symposium, the Good is closely identified with the Beautiful. In the Symposium, Plato describes how the experience of the Beautiful by Socrates enabled him to resist the temptations of wealth and sex. In the Republic, the ideal community is "a city which would be established in accordance with nature".

Aristotle

Plato (left) and Aristotle (right), a detail of The School of Athens, a fresco by Raphael.

Greek philosophy emphasized the distinction between "nature" (physis, φúσις) on the one hand and "law", "custom", or "convention" (nomos, νóμος) on the other. What the law commanded would be expected to vary from place to place, but what was "by nature" should be the same everywhere. A "law of nature" would therefore have the flavor more of a paradox than something that obviously existed. Against the conventionalism that the distinction between nature and custom could engender, Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law.

Aristotle's association with natural law may be due to the interpretation given to his works by Thomas Aquinas. But whether Aquinas correctly read Aristotle is in dispute. According to some, Aquinas conflates natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics). According to this interpretation, Aquinas's influence was such as to affect a number of early translations of these passages in an unfortunate manner, though more recent translations render those more literally. Aristotle notes that natural justice is a species of political justice, specifically the scheme of distributive and corrective justice that would be established under the best political community; were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all.

The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. Specifically, he quotes Sophocles and Empedocles:

Universal law is the law of Nature. For there really is, as every one to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other. It is this that Sophocles' Antigone clearly means when she says that the burial of Polyneices was a just act in spite of the prohibition: she means that it was just by nature:

"Not of to-day or yesterday it is,

But lives eternal: none can date its birth."

And so Empedocles, when he bids us kill no living creature, he is saying that to do this is not just for some people, while unjust for others:

"Nay, but, an all-embracing law, through the realms of the sky

Unbroken it stretcheth, and over the earth's immensity."

Some critics believe that the context of this remark suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city was averse to the case being made, not that there actually was such a law; Moreover, they claim that Aristotle considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong. Aristotle's paternity of natural law tradition is consequently disputed.

Stoic natural law

The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics. The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world. Whereas the "higher" law that Aristotle suggested one could appeal to was emphatically natural, in contradistinction to being the result of divine positive legislation, the Stoic natural law was indifferent to either the natural or divine source of the law: the Stoics asserted the existence of a rational and purposeful order to the universe (a divine or eternal law), and the means by which a rational being lived in accordance with this order was the natural law, which inspired actions that accorded with virtue.

As the English historian A. J. Carlyle (1861–1943) notes:

There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca ... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature." Charles H. McIlwain likewise observes that "the idea of the equality of men is the most profound contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it.

Natural law first appeared among the stoics who believed that God is everywhere and in everyone (see classical pantheism). According to this belief, within humans there is a "divine spark" which helps them to live in accordance with nature. The stoics felt that there was a way in which the universe had been designed, and that natural law helped us to harmonise with this.

Cicero

Marcus Tullius Cicero

Cicero wrote in his De Legibus that both justice and law originate from what nature has given to humanity, from what the human mind embraces, from the function of humanity, and from what serves to unite humanity. For Cicero, natural law obliges us to contribute to the general good of the larger society. The purpose of positive laws is to provide for "the safety of citizens, the preservation of states, and the tranquility and happiness of human life." In this view, "wicked and unjust statutes" are "anything but 'laws,'" because "in the very definition of the term 'law' there inheres the idea and principle of choosing what is just and true." Law, for Cicero, "ought to be a reformer of vice and an incentive to virtue." Cicero expressed the view that "the virtues which we ought to cultivate, always tend to our own happiness, and that the best means of promoting them consists in living with men in that perfect union and charity which are cemented by mutual benefits."

In De Re Publica, he writes:

There is indeed a law, right reason, which is in accordance with nature ; existing in all, unchangeable, eternal. Commanding us to do what is right, forbidding us to do what is wrong. It has dominion over good men, but possesses no influence over bad ones. No other law can be substituted for it, no part of it can be taken away, nor can it be abrogated altogether. Neither the people or the senate can absolve from it. It is not one thing at Rome, and another thing at Athens : one thing to-day, and another thing to-morrow ; but it is eternal and immutable for all nations and for all time.

Cicero influenced the discussion of natural law for many centuries to come, up through the era of the American Revolution. The jurisprudence of the Roman Empire was rooted in Cicero, who held "an extraordinary grip ... upon the imagination of posterity" as "the medium for the propagation of those ideas which informed the law and institutions of the empire." Cicero's conception of natural law "found its way to later centuries notably through the writings of Saint Isidore of Seville and the Decretum of Gratian." Thomas Aquinas, in his summary of medieval natural law, quoted Cicero's statement that "nature" and "custom" were the sources of a society's laws.

The Renaissance Italian historian Leonardo Bruni praised Cicero as the person "who carried philosophy from Greece to Italy, and nourished it with the golden river of his eloquence." The legal culture of Elizabethan England, exemplified by Sir Edward Coke, was "steeped in Ciceronian rhetoric." The Scottish moral philosopher Francis Hutcheson, as a student at Glasgow, "was attracted most by Cicero, for whom he always professed the greatest admiration." More generally in eighteenth-century Great Britain, Cicero's name was a household word among educated people. Likewise, "in the admiration of early Americans Cicero took pride of place as orator, political theorist, stylist, and moralist."

The British polemicist Thomas Gordon "incorporated Cicero into the radical ideological tradition that travelled from the mother country to the colonies in the course of the eighteenth century and decisively shaped early American political culture." Cicero's description of the immutable, eternal, and universal natural law was quoted by Burlamaqui and later by the American revolutionary legal scholar James Wilson. Cicero became John Adams's "foremost model of public service, republican virtue, and forensic eloquence." Adams wrote of Cicero that "as all the ages of the world have not produced a greater statesman and philosopher united in the same character, his authority should have great weight." Thomas Jefferson "first encountered Cicero as a schoolboy while learning Latin, and continued to read his letters and discourses throughout his life. He admired him as a patriot, valued his opinions as a moral philosopher, and there is little doubt that he looked upon Cicero's life, with his love of study and aristocratic country life, as a model for his own." Jefferson described Cicero as "the father of eloquence and philosophy."

Christianity

Those who see biblical support for the doctrine of natural law often point to Abraham's interrogation of God on behalf of the iniquitous city of Sodom. Abraham even dares to tell the Most High that his plan to destroy the city (Genesis 18:25) would violate God’s own justice: "Can the judge of the whole earth not himself do justice?" This almost Socratic reply became for later writers the beginnings of natural rights theory. In this respect, natural law as described in the interaction between Abraham and God predates the later Greek exposition of it by Plato, Socrates and Aristotle. The New Testament carries a further exposition on the Abrahamic dialogue and links to the later Greek exposition on the subject, when Paul's Epistle to the Romans states: "For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the meanwhile accusing or else excusing one another. The intellectual historian A. J. Carlyle has commented on this passage, "There can be little doubt that St Paul's words imply some conception analogous to the 'natural law' in Cicero, a law written in men's hearts, recognized by man's reason, a law distinct from the positive law of any State, or from what St Paul recognized as the revealed law of God. It is in this sense that St Paul's words are taken by the Fathers of the fourth and fifth centuries like St Hilary of Poitiers, St Ambrose, and St Augustine, and there seems no reason to doubt the correctness of their interpretation."

Because of its origins in the Old Testament, early Church Fathers, especially those in the West, saw natural law as part of the natural foundation of Christianity. The most notable among these was Augustine of Hippo, who equated natural law with humanity's prelapsarian state; as such, a life according to unbroken human nature was no longer possible and persons needed instead to seek healing and salvation through the divine law and grace of Jesus Christ.

In the twelfth century, Gratian equated the natural law with divine law. Albertus Magnus would address the subject a century later, and his pupil, St. Thomas Aquinas, in his Summa Theologica I-II qq. 90–106, restored Natural Law to its independent state, asserting natural law as the rational creature's participation in the eternal law. Yet, since human reason could not fully comprehend the Eternal law, it needed to be supplemented by revealed Divine law. Meanwhile, Aquinas taught that all human or positive laws were to be judged by their conformity to the natural law. An unjust law is not a law, in the full sense of the word. It retains merely the 'appearance' of law insofar as it is duly constituted and enforced in the same way a just law is, but is itself a 'perversion of law.' At this point, the natural law was not only used to pass judgment on the moral worth of various laws, but also to determine what those laws meant in the first place. This principle laid the seed for possible societal tension with reference to tyrants.

The natural law was inherently teleological, however, it is most assuredly not deontological. For Christians, natural law is how human beings manifest the divine image in their life. This mimicry of God's own life is impossible to accomplish except by means of the power of grace. Thus, whereas deontological systems merely require certain duties be performed, Christianity explicitly states that no one can, in fact, perform any duties if grace is lacking. For Christians, natural law flows not from divine commands, but from the fact that humanity is made in God's image, humanity is empowered by God's grace. Living the natural law is how humanity displays the gifts of life and grace, the gifts of all that is good. Consequences are in God's hands, consequences are generally not within human control, thus in natural law, actions are judged by three things: (1) the person's intent, (2) the circumstances of the act and (3) the nature of the act. The apparent good or evil consequence resulting from the moral act is not relevant to the act itself. The specific content of the natural law is therefore determined by how each person's acts mirror God's internal life of love. Insofar as one lives the natural law, temporal satisfaction may or may not be attained, but salvation will be attained. The state, in being bound by the natural law, is conceived as an institution whose purpose is to assist in bringing its subjects to true happiness. True happiness derives from living in harmony with the mind of God as an image of the living God.

In the 16th century, the School of Salamanca (Francisco Suárez, Francisco de Vitoria, etc.) further developed a philosophy of natural law.

After the Protestant Reformation, some Protestant denominations maintained parts of the Catholic concept of natural law. The English theologian Richard Hooker from the Church of England adapted Thomistic notions of natural law to Anglicanism five principles: to live, to learn, to reproduce, to worship God, and to live in an ordered society.

English jurisprudence

Heinrich A. Rommen remarked upon "the tenacity with which the spirit of the English common law retained the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks especially to the influence of Henry de Bracton (d. 1268) and Sir John Fortescue (d. cir. 1476)." Bracton's translator notes that Bracton "was a trained jurist with the principles and distinctions of Roman jurisprudence firmly in mind"; but Bracton adapted such principles to English purposes rather than copying slavishly. In particular, Bracton turned the imperial Roman maxim that "the will of the prince is law" on its head, insisting that the king is under the law. The legal historian Charles F. Mullett has noted Bracton's "ethical definition of law, his recognition of justice, and finally his devotion to natural rights." Bracton considered justice to be the "fountain-head" from which "all rights arise." For his definition of justice, Bracton quoted the twelfth-century Italian jurist Azo: "'Justice is the constant and unfailing will to give to each his right.'" Bracton's work was the second legal treatise studied by the young apprentice lawyer Thomas Jefferson.

Fortescue stressed "the supreme importance of the law of God and of nature" in works that "profoundly influenced the course of legal development in the following centuries." The legal scholar Ellis Sandoz has noted that "the historically ancient and the ontologically higher law—eternal, divine, natural—are woven together to compose a single harmonious texture in Fortescue's account of English law." As the legal historian Norman Doe explains: "Fortescue follows the general pattern set by Aquinas. The objective of every legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of law (also found in Accursius and Bracton), after all, was 'a sacred sanction commanding what is virtuous [honesta] and forbidding the contrary.'" Fortescue cited the great Italian Leonardo Bruni for his statement that "virtue alone produces happiness."

Christopher St. Germain's Doctor and Student was a classic of English jurisprudence, and it was thoroughly annotated by Thomas Jefferson. St. Germain informs his readers that English lawyers generally don't use the phrase "law of nature", but rather use "reason" as the preferred synonym. Norman Doe notes that St. Germain's view "is essentially Thomist," quoting Thomas Aquinas's definition of law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated".

Sir Edward Coke was the preeminent jurist of his time. Coke's preeminence extended across the ocean: "For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason." Coke defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits contrary things". For Coke, human nature determined the purpose of law; and law was superior to any one person's reason or will. Coke's discussion of natural law appears in his report of Calvin's Case (1608): "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support these findings, the assembled judges (as reported by Coke, who was one of them) cited as authorities Aristotle, Cicero, and the Apostle Paul; as well as Bracton, Fortescue, and St. Germain.

After Coke, the most famous common law jurist of the seventeenth century is Sir Matthew Hale. Hale wrote a treatise on natural law that circulated among English lawyers in the eighteenth century and survives in three manuscript copies. This natural-law treatise has been published as Of the Law of Nature (2015). Hale's definition of the natural law reads: "It is the Law of Almighty God given by him to Man with his Nature discovering the morall good and moral evill of Moral Actions, commanding the former, and forbidding the latter by the secret voice or dictate of his implanted nature, his reason, and his concience." He viewed natural law as antecedent, preparatory, and subsequent to civil government, and stated that human law "cannot forbid what the Law of Nature injoins, nor Command what the Law of Nature prohibits." He cited as authorities Plato, Aristotle, Cicero, Seneca, Epictetus, and the Apostle Paul. He was critical of Hobbes's reduction of natural law to self-preservation and Hobbes's account of the state of nature, but drew positively on Hugo Grotius's De jure belli ac pacis, Francisco Suárez's Tractatus de legibus ac deo legislatore, and John Selden's De jure naturali et gentium juxta disciplinam Ebraeorum.

As early as the thirteenth century, it was held that "the law of nature...is the ground of all laws" and by the Chancellor and Judges that "it is required by the law of nature that every person, before he can be punish'd, ought to be present; and if absent by contumacy, he ought to be summoned and make default". Further, in 1824, we find it held that "proceedings in our Courts are founded upon the law of England, and that law is again founded upon the law of nature and the revealed law of God. If the right sought to be enforced is inconsistent with either of these, the English municipal courts cannot recognize it."

American jurisprudence

The U.S. Declaration of Independence states that it has become necessary for the people of the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them". Some early American lawyers and judges perceived natural law as too tenuous, amorphous, and evanescent a legal basis for grounding concrete rights and governmental limitations. Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements. Robert Lowry Clinton argues that the U.S. Constitution rests on a common law foundation and the common law, in turn, rests on a classical natural law foundation.

Hobbes

Thomas Hobbes

By the 17th century, the medieval teleological view came under intense criticism from some quarters. Thomas Hobbes instead founded a contractarian theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. Natural law, therefore, was discovered by considering humankind's natural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate source of law now comes from the sovereign, and the sovereign's decisions need not be grounded in morality, legal positivism is born. Jeremy Bentham's modifications on legal positivism further developed the theory.

As used by Thomas Hobbes in his treatises Leviathan and De Cive, natural law is "a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved."

According to Hobbes, there are nineteen Laws. The first two are expounded in chapter XIV of Leviathan ("of the first and second natural laws; and of contracts"); the others in chapter XV ("of other laws of nature").

• The first law of nature is that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war.
• The second law of nature is that a man be willing, when others are so too, as far forth, as for peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself.
• The third law is that men perform their covenants made. In this law of nature consisteth the fountain and original of justice... when a covenant is made, then to break it is unjust and the definition of injustice is no other than the not performance of covenant. And whatsoever is not unjust is just.
• The fourth law is that a man which receiveth benefit from another of mere grace, endeavour that he which giveth it, have no reasonable cause to repent him of his good will. Breach of this law is called ingratitude.
• The fifth law is complaisance: that every man strive to accommodate himself to the rest. The observers of this law may be called sociable; the contrary, stubborn, insociable, forward, intractable.
• The sixth law is that upon caution of the future time, a man ought to pardon the offences past of them that repenting, desire it.
• The seventh law is that in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow.
• The eighth law is that no man by deed, word, countenance, or gesture, declare hatred or contempt of another. The breach of which law is commonly called contumely.
• The ninth law is that every man acknowledge another for his equal by nature. The breach of this precept is pride.
• The tenth law is that at the entrance into the conditions of peace, no man require to reserve to himself any right, which he is not content should be reserved to every one of the rest. The breach of this precept is arrogance, and observers of the precept are called modest.
• The eleventh law is that if a man be trusted to judge between man and man, that he deal equally between them.
• The twelfth law is that such things as cannot be divided, be enjoyed in common, if it can be; and if the quantity of the thing permit, without stint; otherwise proportionably to the number of them that have right.
• The thirteenth law is the entire right, or else...the first possession (in the case of alternating use), of a thing that can neither be divided nor enjoyed in common should be determined by lottery.
• The fourteenth law is that those things which cannot be enjoyed in common, nor divided, ought to be adjudged to the first possessor; and in some cases to the first born, as acquired by lot.
• The fifteenth law is that all men that mediate peace be allowed safe conduct.
• The sixteenth law is that they that are at controversie, submit their Right to the judgement of an Arbitrator.
• The seventeenth law is that no man is a fit Arbitrator in his own cause.
• The eighteenth law is that no man should serve as a judge in a case if greater profit, or honour, or pleasure apparently ariseth [for him] out of the victory of one party, than of the other.
• The nineteenth law is that in a disagreement of fact, the judge should not give more weight to the testimony of one party than another, and absent other evidence, should give credit to the testimony of other witnesses.

Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal tradition, disregarding the traditional association of virtue with happiness, and likewise re-defining "law" to remove any notion of the promotion of the common good. Hobbes has no use for Aristotle's association of nature with human perfection, inverting Aristotle's use of the word "nature." Hobbes posits a primitive, unconnected state of nature in which men, having a "natural proclivity...to hurt each other" also have "a Right to every thing, even to one anothers body"; and "nothing can be Unjust" in this "warre of every man against every man" in which human life is "solitary, poore, nasty, brutish, and short." Rejecting Cicero's view that people join in society primarily through "a certain social spirit which nature has implanted in man," Hobbes declares that men join in society simply for the purpose of "getting themselves out from that miserable condition of Warre, which is necessarily consequent...to the naturall Passions of men, when there is no visible Power to keep them in awe." As part of his campaign against the classical idea of natural human sociability, Hobbes inverts that fundamental natural legal maxim, the Golden Rule. Hobbes's version is "Do not that to another, which thou wouldst not have done to thy selfe."

Cumberland's rebuttal of Hobbes

The English cleric Richard Cumberland wrote a lengthy and influential attack on Hobbes's depiction of individual self-interest as the essential feature of human motivation. Historian Knud Haakonssen has noted that in the eighteenth century, Cumberland was commonly placed alongside Alberico Gentili, Hugo Grotius and Samuel Pufendorf "in the triumvirate of seventeenth-century founders of the 'modern' school of natural law." The eighteenth-century philosophers Shaftesbury and Hutcheson "were obviously inspired in part by Cumberland." Historian Jon Parkin likewise describes Cumberland's work as "one of the most important works of ethical and political theory of the seventeenth century." Parkin observes that much of Cumberland's material "is derived from Roman Stoicism, particularly from the work of Cicero, as "Cumberland deliberately cast his engagement with Hobbes in the mould of Cicero's debate between the Stoics, who believed that nature could provide an objective morality, and Epicureans, who argued that morality was human, conventional and self-interested." In doing so, Cumberland de-emphasized the overlay of Christian dogma (in particular, the doctrine of "original sin" and the corresponding presumption that humans are incapable of "perfecting" themselves without divine intervention) that had accreted to natural law in the Middle Ages.

By way of contrast to Hobbes's multiplicity of laws, Cumberland states in the very first sentence of his Treatise of the Laws of Nature that "all the Laws of Nature are reduc'd to that one, of Benevolence toward all Rationals." He later clarifies: "By the name Rationals I beg leave to understand, as well God as Man; and I do it upon the Authority of Cicero." Cumberland argues that the mature development ("perfection") of human nature involves the individual human willing and acting for the common good. For Cumberland, human interdependence precludes Hobbes's natural right of each individual to wage war against all the rest for personal survival. However, Haakonssen warns against reading Cumberland as a proponent of "enlightened self-interest." Rather, the "proper moral love of humanity" is "a disinterested love of God through love of humanity in ourselves as well as others." Cumberland concludes that actions "principally conducive to our Happiness" are those that promote "the Honour and Glory of God" and also "Charity and Justice towards men." Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit of our own Happiness." He cites "reason" as the authority for his conclusion that happiness consists in "the most extensive Benevolence," but he also mentions as "Essential Ingredients of Happiness" the "Benevolent Affections," meaning "Love and Benevolence towards others," as well as "that Joy, which arises from their Happiness."

Liberal natural law

Dr Alberico Gentili, the founder of the science of international law.

Liberal natural law grew out of the medieval Christian natural law theories and out of Hobbes' revision of natural law, sometimes in an uneasy balance of the two.

Sir Alberico Gentili and Hugo Grotius based their philosophies of international law on natural law. In particular, his writings on freedom of the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology. However, German church-historians Ernst Wolf and M. Elze disagreed and claimed that Grotius' concept of natural law did have a theological basis. In Grotius' view, the Old Testament contained moral precepts (e.g. the Decalogue) which Christ confirmed and therefore were still valid. Moreover, they were useful in explaining the content of natural law. Both biblical revelation and natural law originated in God and could therefore not contradict each other.

In a similar way, Samuel Pufendorf gave natural law a theological foundation and applied it to his concepts of government and international law.

John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. There is considerable debate about whether his conception of natural law was more akin to that of Aquinas (filtered through Richard Hooker) or Hobbes' radical reinterpretation, though the effect of Locke's understanding is usually phrased in terms of a revision of Hobbes upon Hobbesian contractarian grounds. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.

While Locke spoke in the language of natural law, the content of this law was by and large protective of natural rights, and it was this language that later liberal thinkers preferred. Political philosopher Jeremy Waldron has pointed out that Locke's political thought was based on "a particular set of Protestant Christian assumptions." To Locke, the content of natural law was identical with biblical ethics as laid down especially in the Decalogue, Christ's teaching and exemplary life, and St. Paul's admonitions. Locke derived the concept of basic human equality, including the equality of the sexes ("Adam and Eve"), from Genesis 1, 26–28, the starting-point of the theological doctrine of Imago Dei.^[106] One of the consequences is that as all humans are created equally free, governments need the consent of the governed. Thomas Jefferson, arguably echoing Locke, appealed to unalienable rights in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The Lockean idea that governments need the consent of the governed was also fundamental to the Declaration of Independence, as the American Revolutionaries used it as justification for their separation from the British crown.

The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception of natural law in the liberal tradition. Libertarian theorist Murray Rothbard argues that "the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus." Ludwig von Mises states that he relaid the general sociological and economic foundations of the liberal doctrine upon utilitarianism, rather than natural law, but R. A. Gonce argues that "the reality of the argument constituting his system overwhelms his denial." Murray Rothbard, however, says that Gonce makes a lot of errors and distortions in the analysis of Mises's works, including making confusions about the term which Mises uses to refer to scientific laws, "laws of nature", saying it characterizes Mises as a natural law philosopher. David Gordon notes, "When most people speak of natural law, what they have in mind is the contention that morality can be derived from human nature. If human beings are rational animals of such-and-such a sort, then the moral virtues are...(filling in the blanks is the difficult part)."

Economist and philosopher F. A. Hayek said that, originally, "the term 'natural' was used to describe an orderliness or regularity that was not the product of deliberate human will. Together with 'organism' it was one of the two terms generally understood to refer to the spontaneously grown in contrast to the invented or designed. Its use in this sense had been inherited from the stoic philosophy, had been revived in the twelfth century, and it was finally under its flag that the late Spanish Schoolmen developed the foundations of the genesis and functioning of spontaneously formed social institutions." The idea that 'natural' was "the product of designing reason" is a product of a seventeenth century rationalist reinterpretation of the law of nature. Luis Molina, for example, when referred to the 'natural' price, explained that it is "so called because 'it results from the thing itself without regard to laws and decrees, but is dependent on many circumstances which alter it, such as the sentiments of men, their estimation of different uses, often even in consequence of whims and pleasures". And even John Locke, when talking about the foundations of natural law and explaining what he thought when citing "reason", said: "By reason, however, I do not think is meant here that faculty of the understanding which forms traint of thought and deduces proofs, but certain definite principles of action from which spring all virtues and whatever is necessary for the proper moulding of morals."

This anti-rationalist approach to human affairs, for Hayek, was the same which guided Scottish enlightenment thinkers, such as Adam Smith, David Hume and Adam Ferguson, to make their case for liberty. For them, no one can have the knowledge necessary to plan society, and this "natural" or "spontaneous" order of society shows how it can efficiently "plan" bottom-up. Also, the idea that law is just a product of deliberate design, denied by natural law and linked to legal positivism, can easily generate totalitarianism: "If law is wholly the product of deliberate design, whatever the designer decrees to be law is just by definition and unjust law becomes a contradiction in terms. The will of the duly authorized legislator is then wholly unfettered and guided solely by his concrete interests". This idea is wrong because law cannot be just a product of "reason": "no system of articulated law can be applied except within a framework of generally recognized but often unarticulated rules of justice".

However, a secular critique of the natural law doctrine was stated by Pierre Charron in his De la sagesse (1601): "The sign of a natural law must be the universal respect in which it is held, for if there was anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is strange and (in the opinion of many) unnatural that is not approved in many countries, and authorized by their customs."

Islamic natural law

Abū Rayhān al-Bīrūnī, an Islamic scholar and polymath scientist, understood natural law as the survival of the fittest. He argued that the antagonism between human beings can only be overcome through a divine law, which he believed to have been sent through prophets. This is also the position of the Ashari school, the largest school of Sunni theology. Averroes (Ibn Rushd), in his treatise on Justice and Jihad and his commentary on Plato's Republic, writes that the human mind can know of the unlawfulness of killing and stealing and thus of the five maqasid or higher intents of the Islamic sharia or to protect religion, life, property, offspring, and reason. The concept of natural law entered the mainstream of Western culture through his Aristotelian commentaries, influencing the subsequent Averroist movement and the writings of Thomas Aquinas.

The Maturidi school, the second largest school of Sunni theology, posits the existence of a form of natural law. Abu Mansur al-Maturidi stated that the human mind could know of the existence of God and the major forms of 'good' and 'evil' without the help of revelation. Al-Maturidi gives the example of stealing, which is known to be evil by reason alone due to people's working hard for their property. Killing, fornication, and drinking alcohol were all 'evils' the human mind could know of according to al-Maturidi. The concept of Istislah in Islamic law bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas. However, whereas natural law deems good what is self-evidently good, according as it tends towards the fulfilment of the person, istislah calls good whatever is connected to one of five "basic goods". Al-Ghazali abstracted these "basic goods" from the legal precepts in the Qur'an and Sunnah: they are religion, life, reason, lineage and property. Some add also "honour". Ibn Qayyim Al-Jawziyya also posited that human reason could discern between 'great sins' and good deeds.

Brehon law

Early Irish law, An Senchus Mor (The Great Tradition) mentions in a number of places recht aicned or natural law. This is a concept predating European legal theory, and reflects a type of law that is universal and may be determined by reason and observation of natural action. Neil McLeod identifies concepts that law must accord with: fír (truth) and dliged (right or entitlement). These two terms occur frequently, though Irish law never strictly defines them. Similarly, the term córus (law in accordance with proper order) occurs in some places, and even in the titles of certain texts. These were two very real concepts to the jurists and the value of a given judgment with respect to them was apparently ascertainable. McLeod has also suggested that most of the specific laws mentioned have passed the test of time and thus their truth has been confirmed, while other provisions are justified in other ways because they are younger and have not been tested over time The laws were written in the oldest dialect of the Irish language, called Bérla Féini [Bairla-faina], which even at the time was so difficult that persons about to become brehons had to be specially instructed in it, the length of time from beginning to becoming a learned Brehon was usually 20 years. Although under the law any third person could fulfill the duty if both parties agreed, and both were sane. It has been included in an Ethno-Celtic breakaway subculture, as it has religious undertones and freedom of religious expression allows it to once again be used as a valid system in Western Europe.

Catholic natural law jurisprudence

Albertus Magnus, O.P. (c. 1200–1280).

Thomas Aquinas (1225–1274).

The Catholic Church holds the view of natural law introduced by Albertus Magnus and elaborated by Thomas Aquinas, particularly in his Summa Theologiae, and often as filtered through the School of Salamanca. This view is also shared by some Protestants, and was delineated by Anglican writer C. S. Lewis in his works Mere Christianity and The Abolition of Man.
 
The Catholic Church understands human beings to consist of body and mind, the physical and the non-physical (or soul perhaps), and that the two are inextricably linked. Humans are capable of discerning the difference between good and evil because they have a conscience. There are many manifestations of the good that we can pursue. Some, like procreation, are common to other animals, while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings.

To know what is right, one must use one's reason and apply it to Thomas Aquinas' precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be sought, evil avoided." St. Thomas explains that:

there belongs to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles. As to those general principles, the natural law, in the abstract, can nowise be blotted out from men's hearts. But it is blotted out in the case of a particular action, insofar as reason is hindered from applying the general principle to a particular point of practice, on account of concupiscence or some other passion, as stated above (77, 2). But as to the other, i.e., the secondary precepts, the natural law can be blotted out from the human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states (Rm. i), were not esteemed sinful.

However, while the primary and immediate precepts cannot be "blotted out", the secondary precepts can be. Therefore, for a deontological ethical theory they are open to a surprisingly large amount of interpretation and flexibility. Any rule that helps humanity to live up to the primary or subsidiary precepts can be a secondary precept, for example:

• Drunkenness is wrong because it injures one's health, and worse, destroys one's ability to reason, which is fundamental to humans as rational animals (i.e., does not support self-preservation).
• Theft is wrong because it destroys social relations, and humans are by nature social animals (i.e., does not support the subsidiary precept of living in society).

Natural moral law is concerned with both exterior and interior acts, also known as action and motive. Simply doing the right thing is not enough; to be truly moral one's motive must be right as well. For example, helping an old lady across the road (good exterior act) to impress someone (bad interior act) is wrong. However, good intentions don't always lead to good actions. The motive must coincide with the cardinal or theological virtues. Cardinal virtues are acquired through reason applied to nature; they are:

1. Prudence
2. Justice
3. Temperance
4. Fortitude

The theological virtues are:

1. Faith
2. Hope
3. Charity

According to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example, consider a person who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to their lack of self-control and desire for pleasure, despite their good intentions, they will find themself swaying from the moral path.

Contemporary jurisprudence

In jurisprudence, natural law can refer to the several doctrines:

• That just laws are immanent in nature; that is, they can be "discovered" or "found" but not "created" by such things as a bill of rights;
• That they can emerge by the natural process of resolving conflicts, as embodied by the evolutionary process of the common law; or
• That the meaning of law is such that its content cannot be determined except by reference to moral principles. These meanings can either oppose or complement each other, although they share the common trait that they rely on inherence as opposed to design in finding just laws.

Whereas legal positivism would say that a law can be unjust without it being any less a law, a natural law jurisprudence would say that there is something legally deficient about an unjust norm. Legal interpretivism, famously defended in the English-speaking world by Ronald Dworkin, claims to have a position different from both natural law and positivism.

Besides utilitarianism and Kantianism, natural law jurisprudence has in common with virtue ethics that it is a live option for a first principles ethics theory in analytic philosophy.

The concept of natural law was very important in the development of the English common law. In the struggles between Parliament and the monarch, Parliament often made reference to the Fundamental Laws of England, which were at times said to embody natural law principles since time immemorial and set limits on the power of the monarchy. According to William Blackstone, however, natural law might be useful in determining the content of the common law and in deciding cases of equity, but was not itself identical with the laws of England. Nonetheless, the implication of natural law in the common law tradition has meant that the great opponents of natural law and advocates of legal positivism, like Jeremy Bentham, have also been staunch critics of the common law.

Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism). The most prominent contemporary natural law jurist, Australian John Finnis, is based in Oxford, but there are also Americans Germain Grisez, Robert P. George, and Canadian Joseph Boyle and Brazilian Emídio Brasileiro. All have tried to construct a new version of natural law. The 19th-century anarchist and legal theorist, Lysander Spooner, was also a figure in the expression of modern natural law.

"New Natural Law" as it is sometimes called, originated with Grisez. It focuses on "basic human goods", such as human life, knowledge, and aesthetic experience, which are self-evidently and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another.

The tensions between the natural law and the positive law have played, and continue to play a key role in the development of international law.

Other (philosophy)

From Wikipedia, the free encyclopedia

The founder of phenomenology, Edmund Husserl, identified the Other as one of the conceptual bases of intersubjectivity, of the relations among people.

In phenomenology, the terms the Other and the Constitutive Other identify the other human being, in their differences from the Self, as being a cumulative, constituting factor in the self-image of a person; as their acknowledgement of being real; hence, the Other is dissimilar to and the opposite of the Self, of Us, and of the Same. The Constitutive Other is the relation between the personality (essential nature) and the person (body) of a human being; it is the relation of essential and superficial characteristics of personal identity that corresponds to the relationship between opposite but correlative characteristics of the Self, because the difference is inner-difference, within the Self.

The condition and quality of Otherness, the characteristics of the Other, is the state of being different from and alien to the social identity of a person and to the identity of the Self. In the discourse of philosophy, the term Otherness identifies and refers to the characteristics of Who? and What? of the Other, which are distinct and separate from the Symbolic order of things; from the Real (the authentic and unchangeable); from the æsthetic (art, beauty, taste); from political philosophy; from social norms and social identity; and from the Self. Therefore, the condition of Otherness is a person's non-conformity to and with the social norms of society; and Otherness is the condition of disenfranchisement (political exclusion), effected either by the State or by the social institutions (e.g. the professions) invested with the corresponding socio-political power. Therefore, the imposition of Otherness alienates the labelled person from the centre of society, and places him or her at the margins of society, for being the Other.

The term Othering describes the reductive action of labelling a person as someone who belongs to a subordinate social category defined as the Other. The practice of Othering is the exclusion of persons who do not fit the norm of the social group, which is a version of the Self. Likewise, in the field of human geography, the action term to Other identifies and excludes a person from the social group, placing him or her at the margins of society, where the social norms do not apply to and for the person labelled as the Other.

History

Philosophy

The idealist philosopher G. W. F. Hegel introduced the concept of the Other as constituent part of human preoccupation with the Self.

 

The ethical philosopher Emmanuel Lévinas associated the concept of the Other with the ethical systems proposed in scripture and tradition.

The concept of the Self requires the existence of the Other as the counterpart entity required for defining the Self; in the late 18th century, Georg Wilhelm Friedrich Hegel (1770–1831) introduced the concept of the Other as a constituent part of self-consciousness (preoccupation with the Self), which complements the propositions about self-awareness (capacity for introspection) proffered by Johann Gottlieb Fichte (1762–1814).

Edmund Husserl (1859–1938) applied the concept of the Other as a basis for intersubjectivity, the psychological relations among people. In Cartesian Meditations: An Introduction to Phenomenology (1931), Husserl said that the Other is constituted as an alter ego, as an other self. As such, the Other person posed and was an epistemological problem—of being only a perception of the consciousness of the Self.

In Being and Nothingness: An Essay on Phenomenological Ontology (1943), Jean-Paul Sartre (1905–1980) applied the dialectic of intersubjectivity to describe how the world is altered by the appearance of the Other, of how the world then appears to be oriented to the Other person, and not to the Self. The Other appears as a psychological phenomenon in the course of a person's life, and not as a radical threat to the existence of the Self. In that mode, in The Second Sex (1949), Simone de Beauvoir (1908–1986) applied the concept of Otherness to Hegel's dialectic of the "Lord and Bondsman" (Herrschaft und Knechtschaft) and found it to be like the dialectic of the Man–Woman relationship, thus a true explanation for society's treatment and mistreatment of women.

Psychology

The psychoanalyst Jacques Lacan (1901–1981) and the ethical philosopher Emmanuel Lévinas (1906–1995) established the contemporary definitions, usages, and applications of the Other, as the radical counterpart of the Self. Lacan associated the Other with language and with the symbolic order of things. Lévinas associated the Other with the ethical metaphysics of scripture and tradition; the ethical proposition is that the Other is superior and prior to the Self.

In the event, Lévinas re-formulated the face-to-face encounter (wherein a person is responsible to the Other person) to include the propositions of Jacques Derrida (1930–2004) about the impossibility of the Other (person) being an entirely metaphysical pure-presence. That the Other could be an entity of pure Otherness (of alterity) personified in a representation created and depicted with language that identifies, describes, and classifies. The conceptual re-formulation of the nature of the Other also included Lévinas's analysis of the distinction between "the saying and the said"; nonetheless, the nature of the Other retained the priority of ethics over metaphysics.

In the psychology of the mind (e.g. R. D. Laing), the Other identifies and refers to the unconscious mind, to silence, to insanity, and to language ("to what is referred and to what is unsaid"). Nonetheless, in such psychologic and analytic usages, there might arise a tendency to relativism if the Other person (as a being of pure, abstract alterity) leads to ignoring the commonality of truth. Likewise, problems arise from unethical usages of the terms The Other, Otherness, and Othering to reinforce ontological divisions of reality: of being, of becoming, and of existence.

Ethics

In Totality and Infinity: An Essay on Exteriority (1961), Emmanuel Lévinas said that previous philosophy had reduced the Other person to an object of consciousness, by not preserving its absolute alterity—the innate condition of otherness, by which the Other radically transcends the Self and the totality of the human network into which the Other is being placed. As a challenge to self-assurance, the existence of the Other is a matter of ethics, because the ethical priority of the Other equals the primacy of ethics over ontology in real life.

From that perspective, Lévinas described the nature of the Other as "insomnia and wakefulness"; an ecstasy (an exteriority) towards the Other that forever remains beyond any attempt at fully capturing the Other, whose Otherness is infinite; even in the murder of an Other, their Otherness remains uncontrolled and not negated. The infinity of the Other allowed Lévinas to derive other aspects of philosophy and science as secondary to that ethic; thus:

The others that obsess me in the Other do not affect me as examples of the same genus united with my neighbor, by resemblance or common nature, individuations of the human race, or chips off the old block ... The others concern me from the first. Here, fraternity precedes the commonness of a genus. My relationship with the Other as neighbor gives meaning to my relations with all the others.

— Otherwise than Being or Beyond Essence (1974), p. 159.

Critical theory

Derrida proposed that the absolute alterity of the Other is compromised because the Other is other than the Self and the group. That logical problem has especially negative consequences in the realm of human geography when the Other person is denied ethical priority in geopolitical discourse. Hence, the use of the language of Otherness in the anthropological discourse about Western encounters with non–Western cultures preserves the dominantor–dominated discourse of hegemony, just as misrepresenting the feminine as Other reasserts male privilege as primary in social discourse.

In The Colonial Present: Afghanistan, Palestine and Iraq (2004), the geographer Derek Gregory said that the responses of U.S. President George W. Bush (2001–2009) to the terrorist attacks on 11 September 2001 reinforced philosophic divisions of connotation and denotation that perpetuated the negative representation of the non-Western Other, when he rhetorically asked the U.S. populace Why do they hate us? as political prelude to the War on Terror.

President Bush's rhetorical question led the U.S. populace to make an artificial, Us-and-Them division in the relations between the U.S. and the countries and cultures of the Middle East, which artifice is a basic factor of the perpetual war on terrorism, and is a step away from eradicating the imaginary representations of the Self and the Other created with the Orientalist geographies produced by Oriental Studies; about which the cultural critic Edward Saïd said that:

To build a conceptual framework around a notion of Us-versus-Them is, in effect, to pretend that the principal consideration is epistemological and natural—our civilization is known and accepted, theirs is different and strange—whereas, in fact, the framework separating us from them is belligerent, constructed, and situational.

— The Colonial Present: Afghanistan, Palestine and Iraq (2004), p. 24.

Imperialism and colonialism

The contemporary, world system of post-colonial, nation-states (with interdependent politics and economies) was preceded by the European imperial system of colonies (settler and economic) in which "the creation and maintenance of an unequal economic, cultural, and territorial relationship, usually between states, and often in the form of an empire, [was] based on domination and subordination." In the imperialist world system, political and economic affairs were fragmented, and the discrete empires "provided for most of their own needs ... [and disseminated] their influence solely through conquest [empire] or the threat of conquest [hegemony]."

Orientalism

The imperial conquest of "non-white" countries was intellectually justified with the fetishization of the Eastern world, which was effected with cultural generalizations that divided the peoples of the world into the artificial, binary relationship of "The Eastern World and The Western World", the dichotomy which identified, designated, and subordinated the peoples of the Orient as the Other—as the non–European Self. The process of fetishization of people and things is a function of Orientalism, which the colonialist ideologue realises with three actions: (i) Homogenization (all Oriental peoples are the same folk); (ii) Feminization (Oriental people are the lessers in the East–West binary relationship); and (iii) Essentialization (a people reduced to the artificial essence of universal, innate characteristics); thus, the praxis of Othering reduced to cultural inferiority the people, places, and things of the Eastern world, which then justified colonialism by establishing the West as the superior standard of culture.

Race

Scientific racism of the Other: In the late-19th century, H. Strickland Constable justified anti-Irish racism among white people by claiming similarity between the cranial features of "the Irish-Iberian" man (left) and "the Negro" man (right), as proof that each man is racially inferior to the Anglo-Teutonic man (centre) possessed of the cranial ideal.

The practice of Othering was the prevalent cultural perspective of the European imperial powers, which was supported by the fabrications of scientific racism, such as the pseudo-intellectual belief that the size of the cranium of the non–European Other was indicative of the inferior intelligence of the coloured peoples designated as the non-white Other.

In 1951, the United Nations officially declared that the differences among the races were insignificant in relation to the anthropological sameness among the peoples who are the human race. Despite the facts, in the U.S., the artificial distinctions against the Other remain, especially in government forms that ask a U.S. citizen to identify and place him or herself into a racial category, as in the questionnaires of the census bureau. In practice of Othering, immigrants and refugees are seen as "illegal immigrants" (from overseas) and "illegal aliens" (from Mexico). In the U.S however, an "illegal immigrant" is someone who does an act that is not legal, which is to march on a foreign land uninvited and through trickery. 

The subaltern native

Maintaining an empire requires the cultural subordination of the Other into the subaltern native (the colonized people), which facilitates the exploitation of their labour, of their lands, and of the natural resources of their country as a colony of the motherland. To realise those ends, the process of Othering culturally justifies the domination and subordination of the native people, by placing them (as the Other) at the social periphery of the geopolitical enterprise that is colonial imperialism. The colonizer creates the Other with a false dichotomy of "native weakness" (social and political, cultural and economic) against the "colonial strength" of imperial power, which can be resolved only with the noblesse oblige of racialism—the "moral responsibility" that psychologically authorizes the colonialist Self to unilaterally assume a civilizing mission to educate, convert, and culturally assimilate the Other into the empire.

In the praxis of colonialism, the native populace constitute the Other whom the colonizers mean to dominate in order to civilise and save them in the course of exploiting the natural and human resources of the natives' homeland. As such, a colony is a way to dominate and dispose of two groups of people (colonists and colonised) who can be used to define the Other. The practice of Othering establishes the unequal relationship between the native people and the colonizers, who believe themselves essentially superior to the natives whom they reduced to inhuman inferiority, as "the Other". The dehumanisation of colonialism—the colonist "Self" against the colonised "Other"—is maintained with the false binary-relations of social class and race, of sex and gender, and of nation and religion. The proper, profitable functioning of a colony features continual protection of such cultural demarcations, which establish and enforce the socio-economic binary relation between "civilized man" (the colonist) and "savage man" (the colonial subaltern).

Sex and gender

The existential philosopher Simone de Beauvoir applied the concept of The Other to the man–woman binary relation, in critical of the dominator–dominated relation, which historically characterised sexual inequality.

The existential philosopher Simone de Beauvoir applied Hegel's conception of "the Other" (as a constituent part of self-consciousness) to describe a male-dominated culture that represents Woman as the sexual Other in relation to Man. In the cultural context of the Man–Woman binary relation, the sexual Other is a minority, the least-favoured social group, usually the women of the community, because "a man represents both the positive and the neutral, as indicated by the common use of [the word] Man to designate human beings in general; whereas [the word] Woman represents only the negative, defined by limiting criteria, without reciprocity" from the first sex, from Man.

In 1957, Betty Friedan substantiated the ordinate–subordinate nature of the Man–Woman sexual relation as social identity. When queried about their post-graduate lives, the majority of women interviewed, at a university-class reunion, used binary gender language, and referred to and identified themselves as their roles (wife, mother, manager) in the private sphere. They did not identify their own achievements (career, job, business) in the public sphere of life. Unawares, the women had conventionally automatically identified themselves as the social Other. Although the nature of the social Other is influenced by the society's social constructs (social class, sex, gender), as a human organisation, society holds the power (social and political) to formally change the social relation between the male-defined Self and Woman, the non-male Other.

The feminist philosopher Cheshire Calhoun deconstructed the concept of "the Other" as the female-half of the binary-gender relation of the "Man and Woman" concept. Deconstruction of the word Woman—from subordinate in the "Man and Woman" relation—conceptually reconstructed the female Other as the Woman who exists independently of male definition (rationalisation); independent of the patriarchy who formally realise female subordination with binary-gender usages of the word Woman.

In "Feminism is Humanism. So Why the Debate?" (2012), Prof. Sarojini Sahoo said that despite equality with men, women possess a discrete identity that is independent of the male definition of woman.

In the essay "Feminism is Humanism. So Why the Debate?" (2012), the academic Sarojini Sahoo, agrees with De Beauvoir's proposition that women can be free of social subordination by "thinking, taking action, working, creating, on the same terms as men; instead of seeking to disparage them, she declares herself their equal." Yet counters De Beauvoir that despite having the same human-being status as men, women have a unique sexual identity different from men. In feminist definition, Women are the Other (but not the Hegelian Other) and are not existentially defined by the demands of Man. Women are the social Other who unknowingly accept subjugation as part of subjectivity. Whilst the identity of woman is constitutionally different from the identity of man, as human beings, men and women are equal. Hence, the harm of Othering arises from the asymmetric nature of sex and gender roles, which arises accidentally and "passively" from natural and unavoidable intersubjectivity.

The social-exclusion function of Othering a person or a social group from society, for being different from the norm (of the Self), is understood in the socio-economic functions of gender (a social construct) and sex (biological reality). In a society where heterosexuality is the social norm, "the Other" refers to and identifies the same-sex orientation, lesbians (women who love women) and gays (men who love men), people identified as "deviant" from the binary socio-sexual norm. Negative usages of "the Other" are applied to the lesbian and gay, bisexual, and transgender (LGBT) communities to diminish their social status and political power by social Othering to the margins of society. To neutralise Othering, LGBT communities queer a city, create social spaces, that use the city's spatial and temporal plans to allow the LGBT community free expression of social identity (i.e. a gay-pride parade); as such, queering is a political means for the sexual Other to establish their reality as part of the urban body politic.

Knowledge

Representations

Regarding the production of knowledge about the Other, Michel Foucault and the Frankfurt School identified the process of Othering as everything to do with the creation and maintenance of imaginary representations—"knowledge of the Other"—in service to geopolitical power and domination. The representations of the Other (metaphoric, metonymic, anthropomorphic) are manifestations of the Western cultural attitudes inherent to the European historiographies of the non–European peoples labelled as "the Other". Using analytical discourses (academic and commercial, geopolitical and military) the dominant ideology of the colonialist culture explains the Eastern world to the Western world, using the binary relationship of the European Self confronting the non–European Other from overseas.

In the 19th-century historiographies of the Orient as a place, European Orientalists studied only what they argued was the high culture—the languages and literatures, the arts and philologies—of the Middle East as a cultural region, rather than as a geopolitical place inhabited by different peoples and societies.^[32] About such cultural misrepresentation, Saïd said that "the Orient that appears in Orientalism, then, is a system of representations framed by a whole set of forces that brought the Orient into Western learning, Western consciousness, and later, Western empire. If this definition of Orientalism seems more political than not, that is simply because I think Orientalism was, itself, a product of certain political forces and activities. Orientalism is a school of interpretation whose material happens to be the Orient, its civilisations, peoples, and localities. Its objective discoveries—the work of innumerable devoted scholars who edited texts and translated them, codified grammars, wrote dictionaries, reconstructed dead epochs, produced positivistically verifiable learning—are and always have been conditioned by the fact that its truths, like any truths delivered by language, are embodied in language, and, what is the truth of language?, Nietzsche once said, but":

A mobile army of metaphors, metonyms, and anthropomorphisms—in short, a sum of human relations, which have been enhanced, transposed, and embellished poetically and rhetorically, and which, after long use, seem firm, canonical, and obligatory to a people: truths are illusions about which one has forgotten that this is what they are.

— Orientalism (1978) pp. 202–203.

Saïd concludes that Nietzsche's perspective might be too nihilistic, but that it draws attention to the fact that, in so far as "the Orient" occurred in the existential awareness of the Western world, the Orient was a word that later accrued to it a wide field of meanings, associations, and connotations, which did not refer to the real Eastern world, but to the field of study surrounding "the Orient" as a word.

The Academy

In the Eastern world, the field of Occidentalism, the investigation programme and academic curriculum of and about the essence of The West—i.e. geographic Europe as a culturally homogenous place—did not exist as a counterpart to Orientalism. Moreover, in the Orientalist practices of historical negationism, the writing of distorted history about the places and peoples of "The East" continue in the postmodern era, especially in contemporary journalism; e.g. in the Third World, political parties practice intra-national Othering with fabricated "facts", such as threat-reports about non-existent threats (political, social, military) that are meant to aggravate the character faults of the opponent political parties, which usually are composed of people from the social and ethnic groups identified and designated as the Other in that society.

The process of Othering a person or a social group, by means of an ideal ethnocentricity (belief that one's ethnic group is the superior group), and the cultural tendency to evaluate and assign meaning to Other ethnicities, which are negatively measured against the ideal standard of the Self—is realised through mundane methods of investigation, such as cartography.


Historically, the drawing of maps emphasised and bolstered specific lands and the associated national-identities, the natural resources and cultures of the native inhabitants. In early cartography, the distortion (proportionate, proximate, and commercial) of actual places and true distances established the Western cartographer's homeland as the centre of the mapamundi; thus British cartographers centred Britain in their maps, and drew the British islands proportionally larger than the true geography might allow. In contemporary cartography, polar-perspective maps of the northern hemisphere, drawn by American cartographers, distort real geographic spatial relations (distance, size, mass) of and between the U.S. and Russia, to emphasise American superiority (military, cultural, geopolitical) and the inferiority of the Russian Other.

Practical perspectives

In Key Concepts in Political Geography (2009), Alison Mountz proposed concrete definitions of the Other as a philosophic concept and term within the field of phenomenology; when used as a noun, the Other identifies and refers to a person and to a group of persons; when used as a verb, the Other identifies and refers to a category and a label for persons and things.

Post-colonial scholarship demonstrated that, in pursuit of empire, "the colonizing powers narrated an 'Other' whom they set out to save, dominate, control, [and] civilize ... [in order to] extract resources through colonization" of the homeland of the people labelled as the Other. As facilitated by Orientalist representations of the non–Western Other, colonisation—the economic exploitation of a people and their land—is misrepresented as being for the material, spiritual, and cultural benefit of the colonised peoples.

Counter to the post-colonial perspective of the Other as part of a Dominator–Dominated binary relationship, post-modern philosophy presents the Other and Otherness as phenomenological and ontological progress for Man and society. Public knowledge of the social identity of peoples classified as "Outsiders" is de facto acknowledgement of their being real, and so they are part of the body politic, especially in the cities. As such, "the post-modern city is a geographical celebration of difference that moves sites once conceived of as 'marginal' to the [social] centre of discussion and analysis" of the human relations between the Outsiders and the Establishment.