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Life, law and the world

While I was preparing to give a talk about law, I did a little reading on the philosophy of law. One thing that struck me was what might be called the “external” point of view taken in current thought on the subject.

Here’s a quote from Blackstone:

This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

Blackstone here is looking at the law not as an outsider but but from within, as a participant in a world the order of which depended on law. In other words, he is looking at the law as a human being. For him, law was a particular type of obligation, one that’s enforced by a political society and derives at least some of its binding quality from that feature. “What is the law” meant something like “what enforceable norms bind us as members of a particular political society.” As such, the law was part of the general system of binding norms, and there was no place outside that system from which it could be viewed and analyzed. That’s what it meant to say it was based on the law of God.

Today the philosopher doesn’t look at law from a standpoint within the human world. He studies it the way a natural scientist might study a pattern of behavior displayed by some species of insect. Hence legal positivism. That way of approaching the matter is of course consistent with the liberal and modernist view of man as basically an ego with no essential qualities or connections to anything outside itself.

I also note in the linked article the bizarre treatment of what the article refers to as “legal moralism,” defined as

the view that the law can legitimately be used to prohibit behaviors that conflict with society’s collective moral judgments even when those behaviors do not result in physical or psychological harm to others.

The thought seems to be that a society’s “collective moral judgments” have nothing to do with the society’s functioning. Any relevance they might have can be reduced to possible direct physical or psychological harm to others resulting from violating them. The article observes that some people have claimed (apparently without sufficient ground) that they might be necessary for the society’s existence, but apart from that there seems to be no basis for treating such things as relevant to the law.

Does the author of the piece think that collective moral judgments are simply odd psychological phenomena? How does he suppose they arise and get credit? Why does he think people find them so important? Is everybody except the author and his friends simply irrational? Sometimes I think that professionalized thought is necessarily professionalized ignorance. In order to be defined and organized clearly enough for professional standards to apply so much has to be left out that what’s left over isn’t worth bothering with.

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Jim, if I understand you correctly, we can agree that the law must have some moral force as well as coercive force in the minds of citizens. Without a general understanding that laws are (or should be) a reflection of the Good as it underlies society, the laws become no more than barriers in a game. In that case, those who see the laws as standing in the way of realizing their desires have only to devise ways of getting over, under, or around them.

But it is dangerous to use laws to enforce “society’s collective moral judgments.” Collective moral judgments are inevitable (even people who pride themselves on being “nonjudgmental” make a moral judgment that others who discriminate between the better and the worse are miscreants), and society’s collective morality is often right, but not invariably: it can include elements of ignorance and prejudice as well. Unpopular groups have been persecuted, wars have been fought because of a culture’s collective moral judgments.

The law should be limited in its sphere of operation to regulating acts that are capable of causing physical or financial harm (not psychological harm — there we get into the realm of “hate speech,” thought crimes, and legislation designed to punish anyone who “offends” a member of a certified victim group).

That is not to say society has no right to express its moral judgments. Standards, customs, traditions, codes of conduct — all of these can be expressed through approval and disapproval, in the strongest terms if necessary. But not through legal coercion, which is a relatively inefficient way of transmitting social norms.

It is true, unfortunately, that the system of unwritten but powerful standards that traditionally supported good behavior has taken quite a beating in contemporary life. How many times have you heard someone caught out in crooked dealings protest, “I didn’t do anything that was illegal,” as though anything not illegal is ethically right. And the almost invariable reaction to charges that much of popular culture has become coarse and degrading is to invoke the First Amendment (the assumption being that anything that doesn’t violate the Constitution, a document that was written primarily to limit the government’s powers, is therefore okay).

Calling for stricter laws or banning what we find distasteful on the grounds that the law is the carrier wave for moral force is still a mistake. Not only is it opening the door to abuse when law is asked to enforce public morality, but it is useless unless society once again learns to promote moral fiber in its citizens through the unwritten guidance of good norms and values. Laws are not the word of God. They are the word of man, and we do well not to confuse the two.

The standard of “regulating acts that are capable of causing physical or financial harm” doesn’t seem sufficient. Suppose Bob:

  • Puts up a billboard on his land facing a highway when the law says he can’t.
  • Counterfeits enough money to live on, doing it so well that the counterfeits are never caught.
  • Sets up a cat-torturing studio, where sadists will find everything they need for hours of amusement.
  • Cultivates (and acts on) a taste for pedophilia, but not involving physical brutality.

I don’t see how he’s harmed anyone physically or financially. Who’s the physical or financial victim? Still, it doesn’t seem his conduct should be beyond reach of legal regulation.

The general point though is that accepted views on what’s right and wrong mostly have to do with accepted understandings of how things work, especially in social life. In other words, they mostly have to do with social functioning. Why can’t the law protect and promote social functioning with regard to something other than property? Is the public good with which government is concerned just a matter of money?

Laws against adultery and fornication, for example, once helped protect marriage as the uniquely legitimate setting for sexual relations. Laws against public indecency etc. helped maintain the idea of sex as something special and uniquely loaded with meanings that had to be respected. If those principles were accepted as fundamental to social and personal well-being, and that kind of legal regulation was ancient and widespread, then what’s the problem?

I think the usual objections are

  • The stuff that’s been regulated is really OK so the regulations are bad.
  • Whether that’s so or not, mistakes can be made and sometimes are made, so why risk it?
  • Where will it all lead? Suppose someone thinks that abolishing the idea of “marriage as the uniquely legitimate situation for sexual relations” and “sex as something special and uniquely loaded with meanings that had to be respected” is really the thing that’s fundamental to social and personal well-being. Then won’t we get anti-discrimination and “hate speech” laws instead of laws against fornication and obscenity?

I don’t know where the objections get you. Property and bodily security aren’t the only things important for how human society works so I don’t see how government can be limited to those things. I don’t think it ever will be. The limitation doesn’t make sense to people and they won’t follow it.

If people misunderstand the public good they’ll make bad laws. If they’re catastrophically wrong the laws are likely to be catastrophically bad. I don’t know how to prevent that. There is no abstract principle that can prevent bad political things from happening regardless of how the people who hold political power understand the workings of society and the public good. Good government requires prudence, caution, moderation and knowledge of human life. There’s really no substitute.

It seems to me that the demand that all “morals” legislation be abolished on principle is more likely to expand than limit government. It means the authority of non-state institutions like the family and traditional morality generally is no longer taken seriously, which means the state ends up doing more. And it unsettles traditional commonsensical understandings of what things are and how things should be, without which I think limitations on state power can’t be effective.

Rem tene, verba sequentur.

Rem tene, verba sequentur.

I’ve been meditating a bit on Augustine’s saying “what are realms without justice, but bands of robbers” and examining how much modern society fits into the schema. Obviously, a pirate fleet, like any organization needs a certain kind of law as an organizing principle, to keep from breaking up and to effectively pursue its goals(plunder). However, for the pirates such law is entirely instrumental.

It seems to me that almost all US laws today are justified in legal theory, as among the pirates, because of their instrumental use. “If it harms no one, do what you will” is certainly such a legal philosophy, keeping peace along the whole gamut of the citizenry to better break the peace of outsiders and/or to keep the world safe from moralistic sectarians—that is, everybody else—for profit. Welfare legislation, I believe, is justified to keep the poor from rioting or going commie or criminal, and judging from the popular justification Bumper Sticker “If you don’t pay for schools, you’ll pay for more jails” education is established to channel the youth into productive aspirations not obviously damaging to society as a whole, and not so much for concern for the student himself. Even such laws apparently established because the thing is wrong in itself, like hate crime or sexual harrassment prohibitions, are often more about preventing distress in society and business than the defense of a true good.

Am I much off here?

Mr Darby’s entry could have been written by John Stuart Mill (an excellent presentation of the premises of classical liberalism, something quite different from modern liberalism which has all but abandoned the fundamental precepts of classical liberalism), while Mr Kalb’s entry could have been written by A Scalia (and in fact was written by Scalia in his dissent in Lawrence v Texas, the Supreme Ct decision overthrowing the Texas statute that prohibited sodomy).

Modern legal positivism (which is the prevailing view at the moment)—with its utilitarianism, vacuous notions of “liberty,” its presumptions of neutrality and fairness—is the inevitable consequence of a liberal zeitgeist. If one is a liberal, what other alternatives are there?

Jim Kalb’s comment of 3:22 pm in the comments thread touches on subject matter similar to that in Mark Richardson’s recent discussion over at Oz Conservative, in this log entry and
this one—it’s not about law-making, but it seems the right-liberal participants in a discussion at Jason Soon’s blog, Catallaxy, cannot grasp what’s morally wrong with female college students resorting to prostitution in order to earn money for college. Mark notes, in discussing the right-liberal position:

“Prostitutes, it seems, meet all the requirements of good right-liberal citizens. They don’t make government bigger by depending on welfare but ‘responsibly’ earn their own money. And they exercise a ‘pragmatic’ individual choice in entering their field of work.

“And this is all an intelligent right-liberal has to say on the issue. He is indifferent even to ‘pragmatic’ questions of the real-world effects of prostitution on women, let alone the issue of moral integrity in the realm of sex and love.

“This is an example, I think, of how liberalism, even in its right-wing forms, cannot adequately comprehend the nature of man. To someone not sharing this ideology the liberal approach to moral issues seems curiously artificial and stunted.”
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Long live Flanders!

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Hi Jim wanna babble something on it?
once in a while praise the state of religion in this country and around the world from a liberal religious perspective.

Friday, July 01, 2005

Dennis Prager’s recent column on why the natural world including other animals have no intrinsic value purports to tell the Judeo-Christian view of things but in fact such a view has little to do with either the monotheism of the bible or the western religious tradition. According to Prager, “Nature has been created for man’s use; and on its own, without man, it has no meaning.” This sounds like a pernicious form of humanism.

Why? Because it locates value soley within the mind of humans, as if there was no relationship determined by the environment. If I like ice cream it’s not simply me imposing this on the food, it’s because there are particular ingredients such as chocolate that is agreeable. If it was made of sludge it’d be awful and no amount of imposition by my mind could change this. There are elements in the valued and the valuer, which make up value.

Also Prager looks to human beings and our valuations to determine the importance of others, using human utility as the standard. Monotheism looks to God to determine the importance of any one thing not human likes or dislikes. Augustine’s example is that of a spider. Humans find little use for such a creature, many kinds of spiders are poisonous and at best they are a nuisance for us.

But the spider’s ultimate value is not determined by human likes or dislikes. Rather the spider’s value is in relation to God and God’s aims in the world including the whole complex eco-system of which the spider plays it’s part. That is God is concerned with the good of the whole and sometimes that may or may not be agreeable to humans. But monotheism pushes us to think of the whole to move beyond our likings to a greater vision of the good.

But Prager would have us forgo this believing that the cosmos was created for human beings. But that’s an odd reading of Genesis where God declares the creation good well before humans were created. And in Romans 8:21-22, Paul writes of the salvation story as including the whole universe, not just humans. And the evolutionary account precludes such a human centric reading of our standing in the cosmos.

I highlight this piece because it’s important to not confuse right wing politics with orthodoxy. In an effort to move us away from environmentalism Prager has opted for forms of argumentation which give no evidence of monotheism and every evidence of a form of humanism that treats humans as the standard and the be all of creation. If there’s any purpose in religion it’s to stop such hubris, to remind us of something greater than ourselves.