Ok, back to that series of posts I started long ago.
The question for today is: What is the relationship between reason and law?
Before we begin, we should probably think back to what we worked through last time. The comments were tremendously helpful in sorting through what exactly "law" is. Keep in mind that the general consensus seems to be that law is something which controls, or at least attempts to control, people's actions. 'Control' is used in a very loose sense, because different people react differently to laws, and people can always choose to break the law (they'll just face consequences if caught). Ultimately, to be effective, a law must have the power to convince/motivate/bind people to certain actions.
Last time, we looked at the question of "bad" law. This time, to start the inquiry, I want to consider good law. The initial question I pose is: what makes a good law "good"?
In my mind, for a law to be good, it must have persuasive power. In my mind "persuasive" is different from "coercive". That is, if law is to be good law, people must want to follow it, or, even if they don't want to follow it, deep down they recognize that the law is correct. For example, a prohibition against murder is generally the type of thing that people want to submit their will to, because they know the good that such a law can secure for them. And, even when they get so angry that they might otherwise kill, they accede that the law is correct in it's prohibition, and therefore oblige, even though they might not want to. Furthermore, since our desires can change from moment to moment, it is the correctness of the law which is the most essential aspect.
The next step in this inquiry is to consider what people want, or what makes them think something is correct. If we're gonna have good law, we need to know what motivates people to decision and action. I suppose there are several things which can motivate people: Emotions (I was moved from love to propose to my wife), urges (I'm hungry so I'll get something to eat), and reason (I know that if I buy stamps I'll be able to pay my bills, which will enable me to keep my phone working, ergo, I'll buy stamps).
Of all of these things which motivate people to action, only one is primary. That one is reason. The reason reason is primary is because it helps us control our desires and move towards correct action. For example, say I have $3.90. Now say I have the option to buy one of 3 things which costs $3.90 - a flower for my wife, a sandwich, and a book of 10 stamps. Which should I purchase? Well emotions might tell me to buy the flower, and my urges may tell me to buy the sandwich (my urges may also tell me to buy the flower...), but my reason will make it clear to me that the best - the correct - purchase is the stamps. My reason will let me know that if I don't pay my bills I won't have my phone, and without stamps, I can't pay my bills, therefore I need to spend the $3.90 on stamps. The other things might be nice, and if I had more money perhaps I'd have reason to purchase them too. But reason dictates that I eat the food in my fridge and not spend more money, and instead of treating my wife to a lovely flower, I should probably spend the money on necessities. It is reason which leads us to this conclusion.
Yes, other things motivate us, but as the above example demonstrates, reason is the prime motivator. It is reason that sorts through our motivations and determines what we most desire, and it is reason which informs us of which decisions are correct. If law is to be good law, it must conform to reason. A law which agrees with peoples' reason is a law that will be followed, and a law which contravenes reason is a law which will be broken. (I should note here too that one of the great things about law is that it often informs people of what reason says, such that people don't have to come to the conclusion on their own, but rather can elect lawmakers whom they trust to reason through problems on their behalf).
Now, to throw a clinker into the equation, there are different levels of reason. The way I see it, reason breaks down 4 ways.
First off, there's perfect reason. Perfect reason is reason which is unbreakable. This is sort of like math, or syllogisms, or the laws of science. 2+2=4. Period. That's flawless reason. Or if A=B and B=C, then A=C. Or if you drop an object from a height it will fall towards Earth. Those are all objects of perfect reason, and can be considered laws because they motivate people. For example, people, in the fact of mathematical reason, are motivated to declare the truth of an equation. The correctness of these laws is experience through reason, And what's key about them is that they are unchanging and based on what is essentially truth. So the best "laws" are laws which are unchanging, and based on immutable truths. Are there any human "laws" based on such truth? It's hard to say. I don't think I can imagine a single law for which there isn't some exception to the rule (i.e. even killing can be excepted to when it is a necessary product of self-defense). I guess if you split hairs finely enough you could probably come up with some perfect laws based solely on reason. But that would be hard to do. The closest example would probably be a prohibition on killing except in cases of self defense, which is rationally derived from the concept that life is needed for all other goods to exist. Basically though, perfect law - especially in human, governmental terms, - is rare.
The second type of reason is good reason. Good reason is more or less reason which falls short of perfect, but about as close as we can practically get. Good reason leads to good laws. An example of good reason leading to good laws can be seen in a differentiating between the types of homicide (first degree, manslaughter, etc.). Start with a couple of correct principles: 1. Life is needed for all other goods to exist (from which is derived "thou shalt not kill"), and 2. People cannot be held accountable for what they cannot control (from which we derive various levels of intent). Working from these ideas it's not hard to get to a law which distinguishes first degree murder (in which intent and malice are key ingredients) from manslaughter (no intent to kill, but still liable because controlled the action which caused the death). This is a well-reasoned law. It works from a principled viewpoint, and then comes up with a legal regime which reflects those principles. Ideally human laws reflect good reason.
The third type of reason is weak reason. Weak reason usually happens when the conclusion does not connect to the principles, or when certain principles are ignored/forgotten about. Perhaps a good example of "weak reason" can be seen in some of the historical bad laws that our country has had. For example, prohibition, which was a completely ineffective law. Why was it ineffective? Largely because it was the product of weak reasoning. More or less the argument for prohibition started with a fairly solid (and uncontroversial) premise: The loss of self-control is a bad thing. Then, considering that alcohol can cause the loss of self-control, prohibitionists argued that alcohol should be banned all-together. Of course, the problem is that there is no perfect correlation between alcohol and the loss of self-control. People drink every day without getting drunk, and so this law was the product of poor reasoning. Prohibition was based on a faulty syllogism. If A (alcohol) = B (loss of control) and only B, then banning alcohol might make sense. But if A= either B or C (people still have self control), then banning alcohol doesn't make sense, because there is no necessary implication that people will lose self control. The reality of the situation was the second equation, but prohibitionists were taking the action recommended by the first equation. That faulty reasoning led to a bad law, and they over-restricted the consumption of alcohol because of it.
Now, the difference between Reason Type 2 (good reason) and Reason Type 3 (weak reason) is really one of gradation. And this can really be seen in the fact that when laws are proposed or enacted legislators give reasons for those laws. We all know that sometimes those reasons are great reasons, sometimes they're good, sometimes they're mediocre, sometimes they're bad, and sometimes they're awful. So in determining whether a law is a good law or a bad law, basically you just look to the reasons behind it. Good law will be based on correct reasoning, and will therefore be persuasive. Mediocre laws will be based on some good reasoning, but with something to be said against it, and may or may not be persuasive. Bad law will be based on weak reasoning, and will be unpersuasive.
Maybe this all seems obvious, but I think it's pretty important to consider. After all, we don't just want laws that reflect our emotive desires or our urges, but rather we want well-reasoned laws. We should demand of our legislators that they construct laws that are principled and therefore persuasive. Our laws shouldn't be constructed because they serve a constituency, but rather should be constructed because they are the product of reason, (and, if they are the product of good reasoning, they won't overlook any constituency).
The final kind of laws are laws which contradict reason. For example, a law which says 2+2 = 5. No one could accept that because our reason tells us it's false. Another great example of a law contradicting reason is slavery. Our reason tells us that all people have the same moral worth - we're all created equally. Yet a law like slavery denies that principled view. Instead of being based on reason, slavery was based on emotion (i.e. fear and hate) and urges (i.e. laziness, desire for wealth and control).
With this idea we return to the question of last time - is bad law law at all? Well, if the law is so bad that it contradicts reason, then arguably no, it's not law, because it is completely unpersuasive. Perhaps our emotions and urges would persuade us to accept a bad law, but that would be shameful. Reason is, and should be, the prime motivator. It should lead us to reject laws which contradict reason. And if we are completely unpersuaded by a law, then the law doesn't really accomplish what it sets out to do, and maybe in that sense isn't law at all.
Anyways, to close, I'd just sum up by saying that any type of law must rely on some reason. The best laws are ones which work from a principled view. The reasons which stand behind the best laws are reasons which our minds will understand as correct. And if the reasons behind the law are correct, then that law will be persuasive. Not because there is force in the law, but because there is force in reason. The law tries to motivate people to certain actions, but the prime motivator is reason itself. If a law contradicts reason, then it isn't really law. And if a law is constructed of perfect reason, then that law is unbreakable (like laws of nature). The better the reason behind a law, the effective that law will be. Why? Because reason controls our actions and motivates us to behave a certain way.
In that sense, reason is law.
Give me one reason to stay here, and I'll turn right back around