In contrary to the natural law, the empirical law system regards the law and adjudication is social constructed and political. There is no ‘pure’ theory of law. Law is made up of institutional facts like other orders and rules. Law is the product of people’s thinking, bargaining, and acting in society (Hart, 2012). Furthermore, law is defined as the ‘institutional normative order’. The differentiation of right from wrong, demands the basic binary of the opposition on which law is founded. For example, crimes are the species of wrongs, which merit the state to impose the punishment. In the long run civil society gains the ground to extend the peaceful interaction among different communities and the function of social justice there could be achieve.
(MacCormick, 2007)
The reproductive right has been developed as subset of human rights at the United Nation's 1968 International Conference on Human Rights within the trend of liberalism which identified the idea of ‘equal right’ (female/male dimension) among various fields. This study would aim to trace the literature on the concept of pro-choice regarding abortion. The outline of social feminism will be reviewed to depict the reproductive right, the core concept of abortion. How the reproductive right is applied to justify in the feminist birth control movement and how it related to civil liberty will be illustrated in this section. The origin of civil liberty in the context of Utilitarian, especially the J. S. Mill will be introduced. The concept of rational choice
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which claimed to fit the collective decision in political policy will be examined in the last part of the essay.
The work of John Lock Two Treaties of Government insisted that individual has an inherent right to liberty. Sir William Blackstone said ‘The liberty of the press is ….essential to the nature of a free state’ in the commentaries on the Law of England (1760).. The tension between the state and individual remained tight. State has its secular goals and position, but religion has its particular views of social life, political life. Religious freedom, including on faith, speech, prayer and the position on ‘life’
and ‘abortion’ become a controversy issue. The term ‘religion’ has its reference to its one’s views on his /her creator, and to the obligations they imposed or reverence for their beings and characters (Heyman, 2008)
In Areopagitica: A Speech for the Liberty on Unlicensed Printing (1644), John Milton argued that for freedom of conscience and of the press by appealing to reason the truth. Milton called the personal ‘truth’ as ‘our richest Merchandise’. He said that
‘Give me the liberty to know and to argue freely according to conscience, above all liberties.’ Milton even described individual lifestyle as ‘experiments’ which may
‘proved practically’ for one, but ‘failed’ to others. (Gaus, 2003)
Instead of ‘liberty of the Will’, which meant the moral doctrine in Kantian, J. S.
Mill (1806-1873) defined liberty as ‘civil’ or ‘social’ dimension, referring the nature and limits of the power which can be legitimately exercised by society over the individual. ‘The struggle between Liberty and Authority is the most conspicuous feature in the portions of history …By Liberty, was meant protection against the tyranny of the political rulers.’ (Mill, 1869:1) Civil liberty is the weapon to go against the external oppressive power.
The individual need the protection but the nation did not need to be protected against its own will. Mill emphasized that the rulers must be responsible to its governing. What the core concept or the first principle of the liberty Mill attempt to assert is the ruler cannot have an absolute authority on individual in the way of compulsion and control or the physical force in the form of legal penalties. The citizen has the basic right of self-protection.
Moreover, Mill articulated that the will of the people may manifest the most numerous or the most active part of the people. Now we know it as “majority” or
“public opinion”. Mill also noticed that people those who succeed in making themselves as majority may desire to oppress a part of their number and precautious of other abused powers. However, Mill still concerned how to make fitting adjustment
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between individual and social control. Though he acknowledged the ‘decision’ or the
‘standard of judgment’ mixed with the similarity of following some prejudices or superstitions, including the envy, jealousy, fear, or arrogance: ‘their legitimate or il-legitimate self-interest’, he reasoned that even the ’class interest’ and ‘sentiment’
which might generate the moral feelings still toward the selfishness.
In this regards, Mill criticized that the British Church though had broken the yoke of Universal Church when the conflict was over; it reduced its hope to regain the ground of charity. Individual liberty needs to seek its minority to protect its well-beings. The role of law or opinion interpreted as the main thing which has practically determined the rulers laid down for general observance, under the penalties of law or opinion. Mill mentioned such notes linked with ‘the last generation of European liberalism’ the ‘the political thinker of the Continent’ which may implied Rousseau (1712-1778).
In the end of the Chapter One Mill expressed his concept of liberty in his precise words, Mill introduced his concept of liberty contained several parts. Firstly, ‘It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on subjects, practical or speculative, scientific, moral, or theological.’ The liberty of expressing and publishing opinion is included.
The principle of liberty mainly requires ‘not harm others’ and ‘tastes and pursuits; of framing the plan of our life to suit our own character; of doing as people like. And people should know the consequences which their behavior may follow. With the principle of not doing harm to others and people need to avoid their foolish conducts.
Mill articulated the philosophy of ‘liberty of the press’ which identified as human
‘fallibility’ since to fault is natural. For Mill the liber of the press and opinion are the most important absolute liberty which needs to be fully protected. He criticized the law of England, on the subject of the press, ‘is as servile to this day as it was in the time of the Tudors.’ He ideally presumed that ‘everyone well knows himself to be fallible’ and mocked of Roman Catholic Church though he took the condemnation of Socrates as the example that he misused of the time and subject. Socrates was accused crime of the condemnation of impiety, in denying the gods but not from Roman Catholic Church. The part of blasphemer for Socrates was his teachings contradict to the rulers of Greek. Mill interpreted ‘diversity is not an evil, but a good.’ He said that ‘mankind is much more capable than at present of recognizing all sides of the truth…applicable to men’s mode of actions, not less than to their opinion.’ He thinks that human being has arrived at the maturity of his faculties to use and interpret
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experience in his own way and to find out how to understand what part of his recorded experience is applicable to his own circumstances and character. ‘The human faculties of perceptions, judgment, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice.’ (Mill,1869:74) In Mill’s idea, if a person acts only because of the custom, it is not making a choice.
He criticized if a person had no exercised what he desired he would have no knowledge what was best for him.
For Mill a person choosing his plan of life is the way to construct his own real world, not only imitating others where his opinion lies on. People has many choices need to make, for example, what kind of house to build, what corn to plan, what machine to buy, and even what prayer to say all need to practice the ability of making choice. Mill linked the ‘Pagan self-assertion’ or ‘Christian self-denial’ with ‘Greek self-development’ and interpreted as ‘self-government’. He asserted when a person practice his own it is the practice of his existence, the fullness of his life. That is also to keep his faculties of action and enjoyment in his best order.
Mill criticized the public opinion in his time was what ‘peculiarly calculated to make it intolerant of any marked demonstration of individuality.’ The intellectual have no ‘taste and wishes strong enough to incline them to do something unusual’, they seemed ‘accustomed to look down upon.’ In a town there seemed no energy to produce any outlet except business. (Mill, 1869: 85) He quoted the remarks of Tocqueville that ‘how much more the Frenchman of the present resembles one another’.
Mill led the criticism in line with asking the problem if there is ‘limit’ to the authority of society over individual. There is no higher direction inside the society to judgment the individual, even the law system. In general, no matter how foolish the action is, there exists no judgment from above. He said that ‘If society lets any considerable number of its members grow up mere children, incapable of being acted on by rational consideration of distant motives; society has itself to blame education.’
Any exposed disagreeable opinion need to be accepted, no institute needs to play the role of moral police. Any imperfection of law could not organize the powerful police system to go against their voices.