‘Keep your eyes on the stars, and your feet on the ground.’ Theodore Roosevelt
The universal value of human beings comes not by way of what is given to it by the social construction of an age, nor is it a social fact in that it is given by the language of one to another, no, the universal value of the human being comes by way of existing. Being human, existing in time, derives a value of its own that is independent of any circumstance.
That any person exists is an empirical fact, by observation of what is perceived in awareness before language is attached. Thought or consciousness, or our awareness exists prior to language – this is perceived in child development, and learning, and is attained also through meditative states, habitual or automatic, and reflex responses.
Without our words, the real exists independent of mind. Before humans existed, the earth was. Our condition of birth that is our material being, is an example of a state that has an objective reality before we have the language to describe it – we learn the language of what it means to be human in relation to our experience.
Social facts, the truth or reality about the events of our experience correspond with what happens in time independent of our interpretation of their meaning or explanation. The difference between social facts and an empirical fact is that the latter is objectively true, verifiable and often repeatable.
Social facts as subjects and objects of our experience present a moment of appearance to mind and depend upon subjectivity, location [which could be argued to be a subset of subjectivity], memory, and language.
An empirical fact becomes social by way of language. Language is a social agreement or contract; a word is a sign that represents a subject or object that exists in reality or in imagination. Language is the collective agreement to which we subscribe that holds our perceived reality together in a cooperative way. Language enables us to be known uniquely yet held together as one. For example, we say ‘grass is green’ not because grass ‘is’ green, but because this is what we have been taught green and grass look like as signs or representations of that which is within our experience, and overtime we have agreed it cooperatively. ‘Grass is green’ has therefore became a social norm and universally accepted as truth, yet, how we experience the representation of the colour green in our minds will not be the same between peoples – however without being ‘the other’ the subjective experience of an individual mind is impossible, we each occupy a unique point in space-time, which is why we have developed empathy, a tool of the mind and body for the purpose of flourishing relationships. However, being of the same species, human [homo sapiens], and being subject to similar circumstances and having the same needs, we can experience and agree collectively through language such similarity that these become points of connection between us. It is also possible to have representations of another’s experience in different ways, for example because a person is colour-blind, we can use comparative techniques that open up and make visible to us what their experience of the colour green might be like.
Meanings or explanations are constructed, and is something we can share, but are not social facts in themselves, with agreement however, meanings or explanations become social contracts, things held in a public sphere of visibility that often-become norms, and habits of thought – realised and unrealised to individuals.
The value of material existence is a matter of social contract and the development of individual meaning given to it. Value judgements are subject to location, culture, language, subjective experience and memory. The value of the objects of our experience – all that exists as separate to our understanding; planets, moons, tables, chairs, stones, buildings – these value judgements are constructed by our individual and collective relationship to them. A table has a value according to its utility. Diamond has value according to its rarity on earth however, carbon is a common element in the universe, and it is hypothesised to rain diamonds on Uranus and Neptune – if we became a multi-planet species mining asteroids or other planets, this value judgement could change – it is according to our circumstance, and pattern recognition.
Social facts as a construction of language, in requiring agreement, are then dependent upon cooperation and practice. Empirical facts as things existing independent of the action or the cooperation of others are not nullified by way of language, only made communicable. In becoming a social fact/agreement through usage overtime does not erase its empirical nature or lessen the fact in any way. The correspondence between object and its agreement is a relation that becomes truth in itself. If the sign [word] is representative of a truth, then there has to be a relation. There is no truth without relation.
Causes within our understanding exist as links in a chain of events happening in time. Causes in time are systems working together in a moment, not isolated binary relations – this is an error in our level of attention as a function of language, as language is linear, systems are not. Asymmetry in causal relations have direction. So ‘time’ is an asymmetrical relationship, both sides of now, past and future are not equivalent. Though echoes exist in the past, the present moment is all those pasts colliding and breaking out a new future into the next. Humans can ‘shape’ that future by imagination and work, therefore the future is contained in all pasts and in the present.
A word having an etymology worked out overtime is the ‘face’ presented to us that conceals its background, its hidden history is not apparent without investigation. For example, woman is derived from the amalgamation of words meaning female and human being. At no point in history has the relation between the word woman and its representation in reality not referred to the empirical fact of being an adult female human being, though the value judgement of the word has been subject to variation. Should the meaning of a word not correspond with what is empirically true, or socially true then this would be the definition of a lie, a falsehood.
The empirical method as a way of determining knowledge must determine the nature of a thing, particularly if someone seeks in law to change a utility or purpose through social witness to a concept or fact.
A common example of social phenomena, as things that depend on their existence on the thoughts or actions of people, is using paper for money. This demonstrates the point that the value or meaning of money is determined by human thought and actions, because if humans were to disappear, the social construct that is the monetary system would disappear though the paper itself might persist in the environment. The obvious problem with this is that the nature of the paper is what makes it suitable for such use as something to be exchanged between people for goods and services, other materials could be used, and in the digital age none, yet other materials were not chosen for being less practical or suitable for such a purpose, therefore it is the design of a thing which makes it suitable for its use or purpose even if this happens to be the result of human thought, or through natural means such as evolution.
It follows then that what relates to life exists independent of mind, and was the result of many processes working together, abiotic and biotic processes and circumstances that had nothing to do with human thought.
If someone wished to construct an argument in law to claim a social fact that was not empirically true be established as truth, for example if a male chooses to alter his outward appearance to correspond with the appearance of being female, in body or in social stereotype, or archetype or both of what it means to live as a woman [female human being] within a culture, he would be making a false claim of being a female human being. The relation is broken by an incongruence between objective matter and subjective mind.
A claim that an event in itself is a precedent that overrides language, meaning, empirical evidence, and historical context, which in effect means the event is no longer acting in accordance with what is real – real as that which would be true if their perception or belief of it changed – therefore a social fact that does not align with empirical evidence has as such become a work of imagination, a fiction. The social fact in this case which mirrors empirical fact would be that as biological sex is immutable, the male has created a new ‘in-group’ as a subset of being male.
The condition or nature of a person born is not a something chosen by any party; mother, father or child, therefore all are said to have ‘no power’ or a legal disability in this respect. It follows then that the category male or female can be considered ‘unalienable,’ not transferable and self-evident. To be either male or female at birth is therefore not a legal claim, as a body would remain in the same nature independent of the thoughts about it.
Reproduction is one of the fundamental life processes shared with all creatures, and is necessary for the continuation of a species. As humans do not reproduce by cloning, sexual reproduction is the privilege of male and female, it is not a right that binds us in duty to be either male or female, it is a birth right – a condition of being that has the potential and actual ability to procreate. Someone who forsakes their birth right, has in essence given up said privilege, and further with medical intervention given up the ability also to procreate.
As human beings are sculptors of our environment, that is we can move, create and have an effect upon the world and each other, each of us is a cause and a harbour of effects. Therefore, Kant’s categorical imperative; the universalizability principle states, “act only in accordance with that maxim through which you can at the same time will that it become a universal law.”
Lawmakers and lawyers therefore ought to ask the question; that if everyone were to do the same or have a particular right, then what would be the future for humanity, or in this case female bodies? If the answer results in the potential for harm to be done, or that any rule in law would prejudice the liberty of all female bodies, then it should not be a law. Reproduction is a necessary feature of all animals for without it there would be no life. Any medical intervention that removes a person’s reproductive capability is in essence for cosmetic purposes alone, as these do not change the sex of an individual.
The laws of nature belong to a higher court than the laws of mankind made solely for himself, for nature is a system beyond that which is wholly under our control, our being in time belongs first to what we have by way of being born, it is our universal needs by birth that make us equal in our humanity.
We are stewards for a while, we can create and shape our place within this nature that is the world in which we live upon an earth within a vast universe. As the will of humanity can move with or against this order according to nature, human will must have a direction and purpose to which it is directed overtime.
As a social fact can determine the reality to which we adhere, we must examine the nature of what it means to be social, and that is for an individual to belong to a collective, that this society to which he or she belongs must have an inherent order for such a society to survive and thrive. This in essence is the purpose of law – to enable us to live and work together for the mutual benefit of the collective flourishing whilst having the freedom to self-determination within it.
This then derives the primary concern of law which therefore must be the avoidance of harm. ‘As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it.’ John Stuart Mill, ‘On Liberty’. If the organisation of society toward its own flourishing was impeded by an individual’s desire, why would a social fact or event determine that a harm be true or acceptable? If we can agree the principle of harm as being contrary to the continuation of life and its benefit, then this determines a moral choice – that an individual or society would choose that which leads to life and its continuation rather than death, or a culture oriented towards its own demise. Therefore, social fact must be directed toward a common good in order to be just in itself.
Our freedom exists within us – within that place of solitude found in the consciousness of all humankind, the place where life happens to our own perception and no other, therefore, it is a natural right that comes under Natural Law. A natural right is such that it exists by the fact of existence in itself, and therefore can be considered ‘unalienable,’ not transferable and self-evident. This means it is the place that we alone are held accountable for our responses, to the changes and chances of the life we are given by birth.
‘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 American Declaration of Independence.
To be lawless removes all freedom, to say persons can act in any way without bounds is to bind all peoples. Therefore, as social creatures who do not live alone on this ‘Pale Blue Dot,’ (Carl Sagan) called earth – we have a great need for cooperation through effective altruism, or love. Love, as all things working together with and for each other, protects the freedom of another – so that for the individual [who is free in his being], an intention/act must have a direction toward the end which respects the freedom of the other. In this way liberty exists as both an end and a mode, that is in the self and the other, the individual and collective.
‘So act that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.’ (Kant 1785: 429).
If a person has a natural right, then this binds the other in duty to uphold said right. A moral duty, however, is obtained through consent, for it is chosen. A person who consents to evil has broken the relationship of this duty and right, whereas a person who chooses the good, such as upholding the freedom of another fulfils his moral duty and upholds another’s right.
This consent is through language, as well as act. Natural law and empirical evidence work together, therefore legal positivism cannot exclude morality or natural law – for they work together for the good of society, and as Benjamin Disraeli said, “Justice is truth in action.”