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.