Much of the past few days has been spent ruminating on some of the questions and challenges raised in response to my post regarding morality in legislation. The more I think about it, the more convinced I am that we cannot talk about whether moral legislation is an appropriate exercise of governmental authority until we have first answered several other questions.
In an attempt to explore these other questions, I am hereby announcing a series of posts asking and discussing these questions. I'm afraid there's no way to tackle all of these issues in one big post, and in fact I think that was much of the problem with my earlier post - I was working off of a different philosophical background and set of assumptions than most people, and so they raised responses which required going back to a deeper question, taking us off track of the main issue in that post. Anyways, this series of posts will try to narrow the focus of each. Moreover, there's just way too much to cover. There are entire courses devoted to exploring these questions, so even breaking it down into a series of posts might be biting off more than I can chew. Still, I'd like to give it a try.
Though I'm not completely sure how each question will be framed when I address it, I see these four questions as of primary importance. First, what is law? Second, what is the relationship between law and reason? Third, what is morality, and what is it's relationship to morality? And finally, what is the relationship between morality and law?
I'm strongly encouraging everyone to throw their thoughts into the discussion. Even if it's just a "hmm, that's interesting." And since we're trying to build a coherent philosophy here, people should point out any errors they perceive in my thinking. After all, one little mistake at the beginning can lead to a whole lot of problems at the end. So please, join in the conversation. From this first post, to the last one.
Tonight I'll start with the first question: what is law?
On Wednesday, in my Canon Law class, my professor asked us whether or not "bad law is law at all?" The class then voted. A few of us (myself included) said bad law was not law. The majority of the class said bad law was still law. After tallying up the votes, the professor informed us that we had all fallen into his trap. "How can you answer this question when you don't know what is meant by 'law'?"
He pointed out that the word law has had all sorts of different meanings. Law can be a reference to the regulations enforced by a state. It can a reference to all the regulations that a state has. Law can be rules of conduct established through custom, agreement, or authority. Law can be written or unwritten. It can guide public policy or personal conduct.
Before we can discuss what the proper role of law is, (as I attempted in the morality conversation), we need to come to some sort of understanding, if not consensus, on what we mean when we speak of law.
And this conversation isn't simply picking one definition and arguing that concept is what law "is". After all, each of those different concepts are certainly their own thing which does exist. The problem is in language - that we've only got one word to cover all those different concepts. As my professor pointed out, modern discourse often falls into this problem. Instead of exploring the various concepts reflected in a single word, people take sides and fight over which concept is the right meaning of that word.
So I want to take this opportunity to do a couple of things. First, I want to make it clear that I recognize and understand those other definitions of law. Second, I want to suggest that a common theme binds the definitions of law: the idea of control. In my mind an essential characteristic of law is that it must have the power to control people's actions.
Now this too can take many shapes and forms - law can control people through fear, through inducement, through coercion, through reward, through education, etc. And law can be selective in the actions it controls. It can control public action and the action of individuals in public. It can control private action, and the action of individuals in private. It can control moral actions, and non-moral actions. There's all sorts of actions that law can control. This gives rise to the question of what actions law should control. But I think there is little dispute that law - of one type or another - can control all sorts of actions.
So now I think we have some concept of what law is. And though it might begin to get us into the next question (what is the relationship between law and reason?), I want to re-ask the question that my professor asked:
Is bad law law at all?
In class I simply said, "No."
Now, I have to answer, "At least in some sense it is. Bad law can be promulgated by a community. Some people will follow it, even if they disagree with it (see for example judges in Nazi Germany). It has the power to control, at least in some sense. "
"But in another sense, it might not be law. Because it is promulgated on the basis of false ideas, and will therefore run into conflict with laws promulgated on superior ideas, at which point the bad law will falter (for example, the American revolution, rejecting the bad law of England's unjust rule). There will always be people who reject bad law, who will not accept it's authority. People will always work to change bad law. In this sense, it does not have the power to control, and therefore is not law."
Now just to get people thinking, I'll let you know that I would, based on ideas that will be discussed in the following posts of this series, argue that people should reject the authority of bad law. But that's a topic for next time. At least for now we have some idea - if not clarity - as regards the meaning of law. Law is many things. In following posts, I hope to convince people to embrace a wider concept of law. For now though, let's just ponder the vagueness of the concept itself.
I fought the law and the law won