The Ethical Basis of Law

Great Debates
1

What is the function of law? My assumption would be that it “greases the skids” to enable human beings to live together with minimal conflict, and to provide a means for peacefully resolving the conflicts that do arise. Melin or others may have more thoughtful understandings of this.

On what do we found our laws? In another thread ( http://boards.straightdope.com/ubb/Forum7/HTML/001348.html ) Adam, responding to Libertarian, had this to say:

Well? Should they? In a mixed society, can the Christian majority impose their ethic on the minorities? If God exists and expects moral behavior, should they not try to?

As I have noted elsewhere, a right-wind pseudo-educational group whose philosophy undergirds Gary Bauer and several of the leaders of the religious right has a website at http://www.chalcedon.edu/creed.html

I find their views about as threatening to America as we know it as anything I can imagine.

Your opinions on what we ought to base our laws on are solicited. While libertarian viewpoints are pertinent, I would like very much if the thread does not get hijacked into another debate of libertarianism, but simply reflects that political philosophy as one of the views to be taken into account in forging an American consensus. Thanks.

2

Polycarp wrote:

Polycarp, I think your analogy is dead-on accurate. (It also provides a convenient explanation as to why we lawyers seem so oily: we are the grease in the machine of society!)

3

Polycarp wrote:

y simplest response is that all laws should be based, ultimately, on the Golden Rule. I think most laws fit into this category, but laws which presume to govern private behavior do not, and are therefore not appropriate in my view (so long as the private behavior in question causes no harm to others). (I find myself in rare agreement with Lib on that issue!)

4

And here I thought lawyers were the grist for the mill. :wink:

Poly:
It seems clear to me that if you are certain that your morality is the only correct way to live then you should use whatever means do not conflict with that morality to spread your view to others. It is the certainty, of course, that leaves potential for conflict. I personally am perpetually aware of human fallibility. Even when I am “certain” that I know the answer, I must acknowledge that I have made mistakes in the past and might be mistaken again. poof no more certainty. To me, people who speak of absolute certainty on issues of morality are at least mildly self-delusional and potentially dangerous. That is the view demanded by my own internal consistency. I am certain that theirs differs.

example: I am a strong supporter of a woman’s right to have a safe abortion. To me, the question of when a fetus becomes a human being is frought with uncertainty and ambiguity. However, if I were certain that a fertilized egg was a human being in a rea land meaningful sense, I would oppose abortion just as passionately.

The best lack all conviction
The worst are full of passionate intensity.
*

5

Poly,

My understanding is that law itself has no ethical or rational nature at all. This is not as bad as it sounds, however.

The problem is that we live in a society that is composed of people with radically different premises, and we are descended from a power system that viewed the mass of people as slaves of the King.

Law originated as the instructions of the King to his subjects. Morally speaking, the King’s authority derived directly from God, and his power was absolute. A wise king attended to the welfare of his subjects, but he was under no moral obligation to do so.

People, however, aren’t robots. Although morally the King’s power was absolute, it practice it was not. If the populace felt oppressed, they wouldn’t cooperate as efficiently, and the King might be deposed or the country invaded.

After a while, various laws intended to mollify the populace, as well as customary practices never specifically mandated by the King came to be regarded as fixed by tradition, and the King altered them at his own peril.

From around the time of the Magna Carta (1215) until the American Revolution, the moral situation became a little more complicated. The nobility, the middle class, and to some extent the peasantry conceived that they had rights of their own, which the King was bound to respect. But, on the whole the basis of law was the King’s God-given authority to use his subjects for his own benefit.

To its credit, the Royalty/Nobility/Commonality model proved itself tough and fit in the natural selection of human institutions, surviving millennia of conflict.

The US Constitution introduced a radical concept not seen since Ancient Greece: That the government derived not from God but from the natural rights of a free people. The people did not exist for the benefit of the government, rather the government existed for the benefit of the people.

Many of the compromises, and the limitations placed on the federal government in the Constitution derived, however, not from concern that the federal government might abridge the rights of the people, but from the concern that the federal government might abridge the rights of state governments. It was not until the 14th Amendment (1868) that the US Constitution was even held to restrict the powers of the State governments.

The Constitution notwithstanding, the tradition that the government held the duty and power to not only facilitate the social behavior but to direct such behavior persists to this day.

Thus there are two primary moral imperatives under which the law and its officers act: The duty to enable social behavior by providing a method for individuals to resolve disputes, and the power to direct social behavior for purposes presumably only visible to the elected elite.

It is interesting to note that legal philosophy itself notes that the laws of a particulat government do not constitute the highest legal authority. Under various precedent set by the post-WWII Nuremburg trials, it is unlawful for an individual to follow the laws of his government when those laws compel him to perform actions which constitute “crimes against humanity.”

Thoreau and Ghandi have demonstrated very persuasively that it is a moral action to refuse to comply (under certain limitations) with an unjust law.

One can of course, in the United States at least, petition and speak out to change or repeal an existing law without that action in and of itself being considered immoral.

Thus I come around to my original assertion: Laws themselves have no intrinsic ethical or moral value. At best, they are expressions of underlying moral values. Often, they are merely compromises for people to resolve disputes in a consistent manner. Sometimes they are expressions of the governments power to direct society, for good or for ill.

You break at a law, naturally, at your own peril. People do actually get arrested, tried, and imprisoned for doing so. However, breaking a law in and of itself does not necessarily imply you are acting immorally or unethical; in fact, in some cases, the only moral action is to break the law.

6

I think the concept of Law is the same as the concept of Rules for a game. They provide a context in which the objective can be attained by the players. There’s no point in playing a game with an objective but no rules; how could you win? Even less point to playing a game with no objective. There’s so many opinions about what the Law should be because there are so many different objectives, so many games being played. For Libertarian’s objective, “non-coercion”, only one law is necessary. For a theocrat, whose objective might be that everyone be saved (in his interpretation of what that means), then laws would reflect what he thinks is “God’s law”. For a communist, whose objective might be that everyone have the same things, a lot of laws are necessary to bring that about. Maybe we should decide what game we are playing before we decide what would be good rules.

7

I hope I’ll be forgiven a LBMB-style “bump” this once, since neither Lib. nor Adam have responded. and I think this is a significant question to resolve.

Thanks to Spoke, Spiritus, Single Dad, and Gilligan for their responses. I was particularly intrigued by SingleDad’s historical review that concluded with the logic behind civil disobedience.

A couple of minor nits, SingleDad: At least in England and a few other countries, the monarch did not have slaves, but subjects. The distinction is important. The feudal social mode is a bit strange to modern eyes, but it closely resembles the interior operation of a business, in which you must obey the lawful instructions of a superior, with the man at the top having nearly unlimited policy-making power, but with a hierarchy-based responsibility going both ways. If the subjects owed the king their allegiance and their obedience, he owed them honest judging, fair treatment, and noblesse oblige.

Your analysis of constitutional law was good for a quick shot. But the 14th Amendment was only the earliest targeting of protecting civil rights from the states; state powers were restricted by court decisions well before that. (Cf. McCulloch v. Maryland, for example) The “natural rights” argument, by the way, was around in European intellectual circles well before the Revolution. We were the first country to write it into law.

I think Gilligan has it on target: before we can say what laws are good and what bad, we need to agree on a common basis for judgment. That was a large part of why I started this thread. And there seems to be some common ground that, insofar as there is a basis, it revolves around personal freedom and fair equivalence, a more generalized Golden Rule concept…I should do nothing towards you which, if you did it, I would not like done towards me.

However, as both Spiritus and Gilligan point out, that is not quite the philosophy from which the conservative Christian operates.

Nor is he alone in believing he knows what is best for society; there is a strong liberal bias towards legislating “for the common good” with the net result a reduced freedom. For a classic example, consider the mandatory seatbelt laws. I would not argue that lives have not been saved by these laws. But even their most vehement proponents would have to admit that they do impede on a very minor right of sorts.

I feel that discovering exactly why people feel that laws should be passed or not passed is highly significant to understanding their values and consequently to protecting the values that I cherish.

8

Poly

Are you saying that I am welcome to participate in the discussion? Expressing my own views, I mean? Please clarify.

9

There are two theories behind criminal punishment: retribution and social utility. Each has its flaws.

Retribution is based on the idea that, because of their criminal acts, criminals deserve to be punished. Drawback: retribution doesn’t consider whether the punishment will produce any future benefit to society. Why jail the battered wife who defensively killed her spouse when she is no threat to the general public?

Social utility/utilitarianism is based on the idea that criminals should be punished when it is in the public interest to do so. Dangerous criminals should be removed from society because society will be safer and happier. Drawback: this theory allows for the possibility of punishing those who may not be blameworthy just to serve the public good. Los Angeles would certainly be happier if it had been spared the riot in the wake of the Rodney King decision, but holding the officers liable merely to prevent a riot wouldn’t have been just.

US law today is a blend of social utility and blameworthiness. If you want to know more about retribution and “desert” of punishment, read Immanuel Kant. If you want to know more about Utilitarianism, read John Stuart Mill.

10

Lib, I brought this whole topic up because of the disagreement you and I were having with Adam (and to a lesser extent Flinx) on the subject of why they advocated certain laws. You are certainly welcome to post! I have no right to restrain that in the first place; only the Administrators could do so. And you are certainly not in violation of any TOS simpy for posting your views.

My stricture against libertarianism was simply to prevent this thread from becoming hijacked into a debate on the pros and cons of libertarianism, as others have – for which I do not necessarily fault you as a person; if someone argues against an idea I hold dear, I would certainly argue in its favor! I asked only that if one (you, Satan, Edlyn, or anybody else) feels that the libertarian philosophy of law is the appropriate one, they say so, but not allow themselves to get into an argument over whether libertarianism is “right” that totally hijacks the thread. Which I think was a fair request. :slight_smile:

11

Poly, I’m sorry, but I still don’t understand. I am asking you to clarify plainly, so that I don’t step on any cyber-toes, under what conditions you wish me, whom you mention in your opening post, to participate. Are you saying that I may not respond to arguments against me? For arguments that typically take the form, “You’re wrong, Lib,” I may not answer, “No, I am right.”? Or for arguments that take the form, “Why do you think that, Lib,” then I may not answer, "I think that because of [this or that particular libertarian ethic]?

I am already walking a tightrope here simply so that I may be permitted to post. That is why I am fearful to express my view in your thread without your tacit permission, unambiguous and clear. As you know, it hardly even matters that the terms under which I must post are spelled out already in plain language (I am supposed to open new threads when I have a libertarian view on mundane debates). But even that option, the only option given to me, has now irritated a whole new set of people.

I am hearing complaints about starting so many new threads, when starting new threads was exactly what I was advised to do. To keep the peace!

So please understand, Poly. I just need very clear rules. I hope you can see why I am gunshy. I’m not whining. I don’t feel persecuted. I am simply trying to be a good libertarian and obey the rules.

12

Oh, my. We do have a serious communication problem. I hope you have seen my responses (and RT’s) to your strongly-worded post in “Situation Ethics…” by the time you read this.

First, nobody but the Administrators has any right to bar you from posting, and they are loath to do it for anything short of totally disruptive behavior. Michael Masterson’s pseudo-sex life was (barely) within bounds, so Libertarianism is certainly well within it.

Gaudere was, IMHO, attempting to work out a feasible solution to a recurring problem. That problem was not that you were posting from a libertarian viewpoint but that your worldview (quite understandably) saw many (most?) issues with a libertarian gloss to the question, and Manny Peoples who did not see the applicability of the libertarian viewpoint to the topic they were interested in were getting irked at your posts which incorporated that viewpoint. It was not that your posts were unwelcome; it was simply that the applicability of libertarianism to, say, the propriety of sales of Girl Scout cookies, was getting a bit “old hat” to posters who did not espouse libertarian views. I hope you will not take that as a slam, but as an attempt at insight, because I can see how you could feel persecuted by what has happened, and I certainly do not want you to feel that way.

When I set up my original post, I realized that I was asking a question regarding the philosophical underpinnings of government. I realized therefore that with you and Satan present, the question of whether any law should be passed would certainly be examined from a libertarian view, as well as Adam’s moralistic (for lack of a more accurate word) one, the statist liberal views of some, the statist conservative views of others, the usual unthinking semitrollery, and so on. Since there had been extensive discussion of the appropriateness of Libertarianism as a political philosophy on other threads, I asked, as a courtesy to my basic question staying reasonably on course, that all posters refrain from debating the merits and demerits of libertarianism as a hijack of the thread. This was not directed specifically at you. It was an attempt to get the full gamut of what people think our public laws should be based on, including the libertarian philosophy. I very much wanted, and want, your views expressed here. I simply did not want the next 25 posts after you expressed them being devoted to why Libertarianism will not work, oh, yes, it will, “society” should leave peaceful honest people alone, Lib, we’re tired of hearing that, and so on, which I’m sure bothers you at least as much as it does everyone else. If I have offended you in asking this, I’m sorry. I tried to make the distinction between the honest profession of your views and the extended repetitive debate on them that seems to always ensue. May we have peace on this?

13

Poly

Of course. I apologize for my knee-jerk recoil.

Libertarianly speaking, any law that contradicts a context of peace and honesty is an unethical law. Okhamly speaking, therefore, there need be only one law, applying equally to all people, whether in or out of government, that law being “every citizen shall be guaranteed freedom from coercion and fraud”, coercion being the initation of force where there was no force before, and fraud being misrepresentation for the purpose of initiating an economic praxis.

The arbitration of this single law is sufficient to develop a context of meaningful freedom. Meaningful freedom means freedom from the coercion and fraud of other people so that you are free to pursue your own happiness in your own way. You are also free to fail to ever find what you pursue. Because all others have the same freedom you have, freedom from coercion and fraud, there is the de facto effect that your freedom ends where mine begins.

Because you are defined by what you have authority over, including yourself and all your rightful property, your rights themselves have a context, the context of your property, i.e., the context of all that over which you have natural (or God given) authority. These would include your life, which God or nature gave you, as well as all that which you have acquired peacefully and honestly yourself, i.e., your property, throughout your life.

Therefore, your rights are given by God or nature, depending on which you believe gave you your life.

The purpose of law, libertarianly speaking, is to secure rights. Therefore, any law that would abridge your rights is unethical and illegitimate. Whether any law is derived democratically or derived by totalitarian fiat is in and of itself irrelevant. What is relevant, ethically, is whether the law secures your rights to your property.

A free market is merely a set of volitional and voluntary decisions to act or not act (praxes, as explained by Ludwig von Mises). Such a market is, as Nobel laureate F. A. Hayek explained, the only context in which a real nominal value of goods and services can be established, and is the only context in which the most natural order (what he called a spontaneous order) may evolve. Like language, it evolves naturally, with no one in charge, and by natural selection, people apply it to their lives. (There can be an excellent argument made that Hayek’s Theory of Spontaneous Order, from the 1970s, directly led to the downfall of Sovietism in the 1980s, since it basically proved that socialism cannot work, since it has no way to set nominal prices. It also influenced Chinese “experimentation” with a freeer market.)

The true gestalt of a society, the Austrians contend, can only be realized in a context of freedom — the libertarian kind of freedom, which is not freedom to do something, but is freedom from something, namely, coercion and fraud.

Because it is best both for the evolution of society, and for the happiness each individual, and because it is the only economic context in which real prices can be set, the Principle of Noncoercion is the most natural, and therefore the most ethical, law.

14

Hmm. It occurs to me that someone might protest that that which is most natural is not necessarily that which is most ethical.

Please understand that by “natural”, I meant most in line with either God or nature’s gift of free will. There is no more natural a context, in that sense, for free will than freedom. And if God made man a free moral agent, or else if nature gives man a singular identity or consciousness separate from other men, then there is no more ethical a context for a law than freedom either.

That way, you are free to follow whatever you believe is the law of God, so long as what you believe is the law of God does not give you license to abridge the free will of others. You are not licensed to do what God Himself refuses to do. Nor are you licensed to do what nature forbids. When you make decisions on behalf of others who are peaceful and honest, or when you restrict or compel them by law, you are strictly contravening both the law of God and the law of nature.

15

Thanks Poly, for the clarification and corrections. We high-school dropouts have to get our education where we can.

I was using “slaves” in the practical sense. When there is no legal limitation on the orders one can give, even to the death of the subject, that seems close enough to slavery to me. Even in the Roman Empire, “slaves” had recognized legal rights. But that’s not the thrust of my point.

My point is that there is both a moral, utilitarian and historical context in which we must view legality.

The libertarian position on the use of coercion is certainly clear. It’s my understanding that libertarian’s recognize only a moral basis for the use of coercion.

Personally, I do favor a utilitarian interpretation as well, not in the area of “punishment” but rather in the enforcement of social obligations. Libertarians, of course, will disagree with me. I can offer as the only real justification that we have a society that enforces social obligations and it seems to be surviving. There has never been a surviving libertarian society.

The use of law to give expression to those who find coercion of others an emotional outlet seems to me destined to be abandoned as we evolve. But that’s just a guess.

He’s the sort to stand on a hilltop in a thunderstorm wearing wet copper armor, shouting ‘All Gods are Bastards!’

16

SingleDad

Utilitarianly speaking, is there any essential difference between what you perceive as your obligation to society and what you perceive as your obligation to government?

Here is an example of what I mean:

Suppose Mr. Smith, a multimillionare, is assayed by his government to owe society $1,000,000. May he distribute his money himself, say $50,000 for his neighbor’s hospitalization, $100,000 for his nephew’s school, and so on? Or must he hand over his money to government for redistribution? If the latter, what percentage is ethical for government to keep to itself for operational, payroll, and other expenses?

And when he has paid his government, is his obligation to society retired, or is more required of him?

17

In our democracy, I and most other taxpayers are obliged to turn over a part of our income for the elected government to spend.

Whether this is a good idea or not, I think, comes down to the values one holds.

Sigh… Sounds like it’s time for another go-round on libertarian fundamentals. I shall attempt to rise to the occasion.

He’s the sort to stand on a hilltop in a thunderstorm wearing wet copper armor, shouting ‘All Gods are Bastards!’

18

SingleDad

Huh-uh. Not this time. No way, Jose.

I asked you a question, not about libertarianism, but about utilitarianism, the ethic that you said you favor. I’m not going to let you even make the claim that I am talking about libertarianism. I already had my say on that with my earlier post above.

This happens far too frequently around here. Someone like you (or RT or Gaudere or whoever) throws up their hands whenever I question their post, pulling out this red herring that all I ever want to talk about is libertarianism, often times when I have never even mentioned it. I start new threads now whenever I want to do that. You can see above that I made sure that Poly wanted my libertarian opinion before I posted it. And though Poly seems to have abandoned the thread now, I remain simply to examine other views. Not mine.

So, please answer the questions. They were not about libertarianism. They were about utilitarianism. They were direct and simple.

19

Poly?

20

Lib: Sorry I was not sufficiently clear.

The government represents the citizens in the implementation of utilitarian activities.

The millionaire, by tradition and law, has an right equal to mine to govern the allocation of the money: he can cast one vote for a representative.