Thursday, February 16, 2006

Reason, Law, and Morality #1

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

10 comments:

the marvelous patric said...

here's a question about the concept of "law" i have for you. is it inherent in the concept of what law is that it can be broken, or is it inherent that it cannot be broken? meaning, we can break the laws given to us by our legislatures and what not, but what about things like the laws of physics? if you are defining law, i would be interested in your take on why we call the rules and theories in science "laws", which are obviously not ment to be broken, and usually can't. understand my question?

Mike said...

Woohoo! I'm getting in early on this one.

My first point is along the same lines I think Patric was getting at. I disagree that law has the power to control people's actions. Law attempts to guide people's actions, certainly, but it cannot control them. Though perhaps our disagreement here is similarly definition-based, as in what you mean by "control". In a sense, you're right -- for example, a person who wishes to smoke marijuana may choose not to, based on the potential punishment law has in store; or, conversely, he may choose to do so, and hope that he will not face legal consequences.

Which brings us to the subject of bad law: I completely agree with you that people should reject the authority of bad law. The problem is, what is bad law? I consider the illegalization of marijuana to be bad law; however, I would venture to guess you would disagree. Again, we run into trouble based on differing perspectives and philosophies. But as you said, that's a question for another time.

To get back to the original point: granted I'm not a law student, and perhaps I should leave the arguing up to those who actually know what they are talking about, but I would modify your definition of "law" in the following way: when you say "it must have the power to control people's actions", I would instead say that it seeks the power to control people's actions, usually via threat of punishment but also by appeal to reason. Whether or not it succeeds in achieving said power is up to the enforcers.

Jeff said...

I agree with Mike that law has no inherent power, and are just attempts to guide actions. But even so, all attempts to guide people's actions can't be considered "law." I can decree that everyone should hop around on one foot every third Friday - there, I just did - but chances are that after you read this, you'll still two-foot it away from the computer. I can't make laws.

Matt, you raised an interesting point when you said this: "There will always be people who reject bad law, who will not accept its authority" (emphasis mine). Law implies some sort of authority - only those with authority over others can make law. Furthermore, people must accept law for it to be effective. Members of society must, by and large, accept the authority of the lawmaker and the law, and allow their actions to be guided by the law.

Which raises the interesting question: can entities other than governments make law? God, for example? How about society - can the idea that we're not supposed to wear pants on our heads really be considered "law"? Let us then draw a distinction between civil law (the laws of government), societal law, and celestial law (the laws of God).

If laws are authoritative attempts to affect action (alliteratively), all three must be considered forms of law. It seems to me that civil law is what we're really concerned with here.

Civil law is imposed upon a society by the government. But it must be accepted by the society at large, since governments are themselves a part of the society. Thus, bad law ceases to become law when the greater society rejects it and discourages its enforcement, thus making it impossible for the government to hold on to its enforcement.

Or something.

Mighty Eskimo said...

Long time reader, first time commentator...

First, what a great discussion!

A couple of questions in my head are begging to be raised: First, what differentiates a law from a rule? (in other words, schools have rules that must be followed under the penalty of punishment in the form of suspension or detention, but I get the sense that the smarties in this discussion would disagree on some ground or another)Secondly, what happens when a law is perceived to be a "bad law" to one person and they are caught by the authorities? (to use the model previously brought up, the weed smoker who disagrees with the law but who is tossed in jail for hitting the pipe)My understanding has it that "bad laws" in our country may be thrown out when seen as bad (by the majority, right?); what, then, of the laws where sides are split almost evenly down the middle?

Matthew B. Novak said...

Mike - I like your modification. I think you're right to point out that different laws have varying degress of success in controlling people's actions. I would say that law, in the fullest sense, is able to actually control people's actions, primarily through reason. And we'll get into that more next time. But certainly there are other senses of "law" in which it is completely unsuccessful in shaping people's actions. And other senses in which law is moderately succesful, etc.

You're also right that people will disagree over what constitutes "bad law". Different people coming from different ideological and philosophical backgrounds will disagree over the content of specific laws. A stark example is the content of the laws which were promulgated in Nazi Germany, which were obviously based on a very particular ideological background, (an ideology that is fortunately rejected by most people).

I also want to point out that law uses all sorts of tools in seeking to control people's actions. Coercement and threat of punishment are big. But money is used (think federal government telling South Dakota they wouldn't get highway funds unless they changed the drinking age to 21, or tax deductions for certain expendetures). And so is education - we teach our children certain values and ideologies. Law mandates certain tests to be given, and such. They also use reason, and the media, and propoganda, etc. So there are lots of ways in which law seeks to control us. Law touches all these aspects of our lives, and so tries shape the way those aspects affect us, and thereby shape who we are.

Jeff - If I read your first point right, are you saying that in order for something to be law it also has to be followed? I think this is a good point too. That law itself has no inherent power, and that people have to be willing to submit to law (whether because they agree with it or because they don't find the reward of disobedience outweighs the risk of punishment).

You ask a great question: "can entities other than governments make law?" I'd have to say yes. I mean, even a contract can be considered binding law, even though it only regulates the parties to the contract. That's non-governmental, but still law. I'd agree with you that in some sense or another, these are all law. And probably in another sense each thing is not law. That's sort of the rub of an open-ended term such as "law".

But I don't know that there's such a clear distinction as you are trying to draw between the three. I'd say the line blurs quite a bit. And I'm going to try to show, in the following posts, that all types of law are connected through reason. So regardless if the law is civil, societal, or moral, there should be some overriding (and persuasive) force behind it.

Moreover, in these posts, it's not just civil law that I'm concerned with - I want to deal with law in the sense that it controls (or attempts to control) people's actions. And as you point out, that'll include civil, societal, celestial, moral, or other types of law. So let's not segregate the types of law, because that might keep us from really understanding the way people interact with the law.

Matthew B. Novak said...

Quinn -

(As in Quinn from SJU? You're in Washington now?)

Thanks for jumping in. The more the merrier.

Let me try to say something - though it'll be far from definitive - on your questions. (If anyone else wants to take these up, please, be my guest).

First, I'd say that I don't know if law is differentiated from rules, at least not law in the general open-ended sense it's being used here. Maybe in the more traditional conceptions of law (i.e. promulgated by a government, applicable to all of society, etc.) there's a difference, and it's probably highlighted in those examples. I also think rules might be a bit more arbitrary. When I hear the word "rules" I think of sports, which have rules drawn up to play by, so that everyone can have a fair competition, know exactly what's going on, etc. I mean, baseball has a rule that the bases are 90 feet apart, but that distance could have been bigger or smaller. All that's important is that the bases are the same distance for both teams, not that they're at 90 feet. I'd say traffic "laws" are often mislabled because in this sense some of them are "rules" - i.e. driving on the right or left doesn't matter, so long as everyone does it the same. (There are of course traffic laws too, such as "don't drive drunk" which aren't so arbitrary). Does that distinction make sense? So just because something is called a "law" or a "rule" doesn't really define what it actually is - you need to look to the content.

Second, when law is percieved to be bad by a person they have a couple of choices. If they don't think it's a big deal, they can just live with it. If they think it's a big deal they can either try to change it (through democratic process, the courts, etc.), or they can ignore it and disobey. That might lead to punishment (think pot smoker) or it might lead to eventual change (think MLK). Either way, they have to personally weigh the risk of enforcement against them and the reward of disobedience. Laws split evenly down the middle are an interesting problem because they present a wide number of people disagreeing with the law, each of whom has to make the individual decisions regarding risk and reward. So while MLK found civil disobedience to be the proper choice, others who disagreed with jim crow laws chose differently. And for something like abortion, where it is legal, and there's no risk of punishment, people who disagree are left to the political processes to try to change the law, or public discourse to try to convince other individuals.

Does that answer your questions? Again, thanks for joining in. Please stick around!

Aaron said...

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law, or outside of it, in the vaguer sanctions of conscience.

Wendell Holmes, Oliver Jr. "The Path of the Law," Harvard Law Review 10 (1897) p. 459

Lady said...

they can ignore it and disobey. That might lead to punishment (think pot smoker) or it might lead to eventual change (think MLK).
That is not a very good comparisions. MLK used civil disobedience to change the laws and show the world they were unjust. he was willing to go to jail for breaking the law which showed his respect for the law and the idea of justness and that change can occur
a pot smoker is trying to circumvent the law and will do everything in their power to stay out of jail and avoid all authority. they do not care for or respect the government and laws would have no impression on them.

Also i do not agree when you say that bad law is not law. I think it is. If there was not bad law we would not grow as a society and a people. You used the revolution as an example. those weren't bad laws, they were orders from a king. in fact in england at the time the people there, the peasants, were having a worse time with the king and his taxes than the people in america. And some laws that i see as bad (i.e. capital punishment and abortion) other people see as fine and perfectly exceptable. I would never agree with either of those two things but i know people who think those laws are great.
yes, there have been bad laws throughout history, a lot of them. But at the time, they were not seen as bad laws. slavery was in america until the civil war, our presidents had slaves and it was not a bad law. Then, as society advanced and the law was distorted, it became bad law. But without it, we would not be the same society as we are today. Bad laws help us grow and are just as valid as good law.

In fact, if you say that bad laws are not laws you take them out of the equation for what role morality plays in society and government. If you take out bad laws you will not be able to use them later to back up your reasoning. If you say that society should dictate morality in it's laws you cannot use bad laws being changed as an example of how the government has through its history, because you do not recognize them as laws in the first place.
well i don't know if this makes any sense or if it's coherrent but those are my thoughts. please don't tear me apart to much friends, i am only 16 after all... (but really if you have to tear it apart go nuts, i can take it)

emnovak said...

pretty sure i know the song...buddy holly. i think. i know that's not the comments you're expecting from me matt, but that's all i got right now. although maybe soon i'll have more...i'm in a social and political philosophy class right now, you'd think i'd have something. oh well.

Jeff said...

Interestingly enough, emnovak, you're Mary Tyler Moore. Ah well, I don't care about that.

I thought it might be interesting to consider this: are laws and morals mutually exclusive? That is, if a "moral" is imposed upon someone by force, does it lose its "right vs. wrong" quality and cease to become a moral? (I suppose a better phrasing would be this: is choice an essential component of morality, and does the presence of force implied by civil law preclude such choices?)