Monday, December 10, 2007


There is an old debate as to whether law is "created" or "discovered". I think this is because the word "law" is used to mean two very different things: what I will call "abstract law", which is basically people's general sense as to what is and is not acceptable moral behavior, and what I will call "codified law", which is a set of enumerated rules saying what is allowed or forbidden.

The fact that something like abstract law exists can be inferred from the observed fact that people will generally exhibit some sort of orderly behavior even when there is nothing like a law enforcement officer present and, barring extreme actions, there is no risk one's actions will be reported to a law enforcement officer. That codified legislation does not always reflect abstract law can be inferred from the observation that in some situations people in general will modify their behavior when a law enforcement officer is present. For example, if almost everyone slows down at the sight of a police car on a certain stretch of road, that is strong evidence that the posted speed limit is lower than what most people would consider a safe and acceptable speed.

The reason it can be useful to have codified law is that in general there isn't anything like unanimous agreement as to what abstract law is. Abstract law should not arbitrarily favor certain persons over others, and it should prohibit behavior which is on the whole harmful while allowing that which beneficial or neutral, but these criteria are not sufficient for determining what abstract law is, even before we consider the problems of human uncertainly and error. There is a great deal of "wiggle room" within which codified law can be consistent with abstract law. If this is the case, people will generally believe one ought to obey the law simply because it is the law. But if codified law is not in good accord with abstract law, particularly if it is created or changed to arbitrarily favor persons, it loses all moral force and will not be obeyed voluntarily. The key point is, one's moral compulsion is to obey abstract law, but what is enforced is generally codified law.

The "law is discovered" argument was fundamentally flawed because it assumed that what they called law existed independent of human minds and was unambiguous, unchanging, and universal. But the "law is created" argument is much worse, because it considers all law to be good provided that it is enacted via the approved legislative process. This has led to the belief that not only is it acceptable to use the political process to try to gain special privileges for one's group, but that fundamentally that is what the political process is for.

The idea that there exists such a thing as law apart from arbitrary human will is the cornerstone of Western Civilization, and perhaps all civilization. But this abstract law does not come from God (and religious scripture tends to be a poor guide to it), and cannot be discerned by reason alone. There probably isn't anything close to a 100% reliable process for discovering what it is at a given time and place. But when codified law is routinely violated by multitudes without shame or guilt, that likely indicates a problem with the codified law.

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