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Logic & First Principles, 20: What is law?


A good first step to understanding the ongoing failure of our civilisation is to contrast the common, positive law view of law summarised by Wikipedia (as a handy point of reference):

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as “the Science of Justice” and “the Art of Justice”. Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions . . .

. . . with Cicero’s summary of received classical views in de Legibus, c. 50 BC:

“Law (say they) is the highest reason, implanted in nature, which prescribes those things which ought to be done, and forbids the contrary.” . . . . They therefore conceive that the voice of conscience is a law, that moral prudence is a law, whose operation is to urge us to good actions, and restrain us from evil ones. They think, too, that the Greek name for law (NOMOS), which is derived from NEMO, to distribute, implies the very nature of the thing, that is, to give every man his due. [–> this implies a definition of justice as the due balance of rights, freedoms and responsibilities] For my part, I imagine that the moral essence of law is better expressed by its Latin name, (lex), which conveys the idea of selection or discrimination. According to the Greeks, therefore, the name of law implies an equitable distribution of goods: according to the Romans, an equitable discrimination between good and evil.
The true definition of law should, however, include both these characteristics. And this being granted as an almost self–evident proposition, the origin of justice is to be sought in the divine law of eternal and immutable morality. This indeed is the true energy of nature, the very soul and essence of wisdom, the test of virtue and vice.

Obviously, we cannot tell truth by the calendar or clock, but by what is sound. The first of these approaches is largely about an exercise in state power, justice is almost a footnote, a disputable matter of definition. The latter, we can summarise as highest reason regarding duty and justice (i.e. the due balance of rights, freedoms and responsibilities) for the individual and the community. Where, the first known lawful duties of the rational, responsible individual are to truth, right reason, prudence, sound conscience, fairness and justice.

That is, the civil peace of justice must be central, not the raw exercise of rule making power. Thus, we see how law and primary, generally known duties of moral character are inextricably intertwined, tracing to our morally governed nature. Where also, due force is that which defends the civil peace of justice with proportionate means, enforcing what is lawful. Legitimate power is protective and regulated by rational and responsible principles of justice, it is not primary.

Why is such a distinction important?

Simple: unless sound reasoning i/l/o responsible, rational duty to justice is central (and so also the due balance of rights, freedoms and responsibilities), we are establishing a system of power imposition under colour of law. That is, law becomes whatever some centre of power finds it advantageous and convenient to impose and back by force. This then reduces law to precisely what Plato warned against in describing the radical materialists of his day in The Laws, Bk X c. 360 BC:

[The materialistic sophists hold] that the principles of justice have no existence at all in nature, but that mankind are always disputing about them and altering them; and that the alterations which are made by art and by law have no basis in nature, but are of authority for the moment and at the time at which they are made.
These, my friends, are the sayings of wise men, poets and prose writers, which find a way into the minds of youth. They are told by them that the highest right is might . . . . these philosophers inviting them to lead a true life according to nature, that is, to live in real dominion over others . . .

For, if the root of nature is an arbitrary, evolving material process, there is no basis for ought, save power. The door to nihilism lies open.

The famous second paragraph of the 1776 US Declaration of Independence brings the matter to a focus:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Here, we see that law is traced to the Just Creator, the source of reality who has made man as a rational, responsible, morally governed creature. One who holds “unalienable Rights,” binding moral claims to be respected due to one’s inherent dignity and status as a human being made in God’s image. As a social creature who thrives best in community (and, community founded on sound family), that leads to the need for rules of justice and good order, thus government. The just powers of government are circumscribed by general consent informed by the in-built laws of our evident nature. Where, patently, this is not “right-wing, Christofascist, theocratic tyranny” — let us lay that needless, slanderous strawman to rest.

In that context, prudence acts to address government gone sufficiently bad that resists remonstrance and calls for reformation:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

In short, there comes a point where governments for cause lose their legitimacy: they are not merely incompetent but have become enemies of the civil peace of justice through abuse and usurpation. At that point, acting through existing or emerging representatives, the people have a collective right to replace government that has gone bad. This is of course a main function of the general election, a peaceful means of replacement.

This then allows us to refocus our understanding of law, that it is indeed a system of rules that are enforced and backed by sanctions. However, such must reflect also, the prime directive of justice, thus the innate law of our morally governed nature. Law that starts with duties to truth, right reason, prudence, sound conscience, fairness/justice etc. Absent such integral safeguards, power and will to power acting under colour of law will pervert justice and reduce citizens to serfs.

(And one obvious case is that it is no duty of the state to impose that evolutionary materialistic scientism is the de facto established ideology and religion-substitute, able to use force to block any challenge, including in institutions of science and those of education. Truth and right reason backed by the prudence that recognises how often scientific schools of thought change, would urge restraint. Dover et al, are failures of just law. Similarly, the acts under colour of law that have enabled the ongoing holocaust of our living posterity in the womb are manifestly lawless. The state’s powers are not the final judges of justice, they are accountable before the bar of truth, right reason and the right.)

To restore our civilisation to soundness, we have to soundly reform our understanding of law. A tough challenge, given the dominance of evolutionary materialistic scientism, and one has the impression that time is beginning to run out: Mene, mene, tekel, parsin. END

PS: I should pause to draw out a few notes on the implications of moral government of our inner life and linked behaviour. For, undeniably, we know that we have duties to the truth, right reason, prudence, good and sound conscience, fairness and justice.

If one would deny or dismiss this, let him or her ponder why s/he urges us to correct our errors of thought. In short, demonstrably undeniable.

From this, we see that insofar as law is rational and responsible (again hard to deny) it cannot be severed from the moral domain. In short the notion that we cannot legislate morality is fallacious. It is better to say that absent a critical mass of support, laws on the books are unenforceable.

We must then address the IS-OUGHT gap, in a post-Hume world, where only at the root of reality can such be bridged, on pain of ungrounded ought. That is, reasoning IS, thus IS, then poof-magic, OUGHT. Oughtness must be at the root of reality or else it is nowhere (other than as a grand delusion).

We thus need to hold that the root of reality is such that it inherently is good and thus grounds ought as reflecting that ultimate goodness. From this, law in seeking to support and defend the civil peace of justice must recognise such a root of reality or it will fail, opening the door to nihilism and the chaos of might and manipulation make ‘right,’ ‘truth,’ rights,’ ‘knowledge,’ ‘logic [i.e. right reason],’ ‘justice,’ and law etc. Which absurdity, should sound ever so familiar today.

The bill to be filled is a world source capable of grounding ought through being essentially good. After centuries of debate, there is precisely one serious candidate, the God of ethical theism. That is, the inherently good and utterly wise God, a necessary and maximaly great being. One, who is worthy of our loyalty and of our reasonable and responsible service by doing the good that accords with our evident nature.

You need not agree with this, but only to face the challenge that you too need to provide an adequate alternative that does not fall into ungrounded ought and/or grand delusion: _____________ Such is far harder to do than one may at first imagine.

PPS: Similarly, we may refresh our minds on how we may now freely set out to frame how that natural moral law may be drawn out, by using a first principles approach.

Let me promote some thoughts from 97 below, on |drawing out a framework for natural law, which on this focus is both more personal and more encompassing than statutory codes, judicial rulings, administrative regulations with force of law, contracts etc. Yes, it is a rational, self-evident principles based vision of law as shaping lives, families and civilisations that is regrettably now largely unfamiliar in a world that has now been reshaped by secularist forces and linked legal positivism, In effect, the forgotten vision of law.

It is worth the while to pause, and to remind ourselves of how that Bible-thumping theocratic Christofascist fundy [–> Pagan Stoic] Cicero summarised the received view, c. 50 BC; namely, how law is:

“highest reason, implanted in nature, which prescribes those things which ought to be done, and forbids the contrary.” . . . .[such that] the voice of conscience is a law, that moral prudence is a law, whose operation is to urge us to good actions, and restrain us from evil ones . . . . the origin of justice is to be sought in the divine law of eternal and immutable morality. This indeed is the true energy of nature, the very soul and essence of wisdom, the test of virtue and vice. “

This of course directly ties to how, undeniably, our responsible rational freedom is under the moral government (thus the law) of inherently known duty to truth, to right reason, to sound conscience, to prudence, to fairness, charity/benevolence and justice, etc. This then allows us to elaborate a worldviews level framework for law that then frames an agenda for rebuilding a sound culture. As in|, for instance:

1] The first self evident moral truth is that we are inescapably under the government of ought.

(This is manifest in even an objector’s implication in the questions, challenges and arguments that s/he would advance, that we are in the wrong and there is something to be avoided about that. That is, even the objector inadvertently implies that we OUGHT to do, think, aim for and say the right. Not even the hyperskeptical objector can escape this truth. Patent absurdity on attempted denial.)

2] Second self evident truth, we discern that some things are right and others are wrong by a compass-sense we term conscience which guides our thought. (Again, objectors depend on a sense of guilt/ urgency to be right not wrong on our part to give their points persuasive force. See what would be undermined should conscience be deadened or dismissed universally? Sawing off the branch on which we all must sit.)

3] Third, were this sense of conscience and linked sense that we can make responsibly free, rational decisions to be a delusion, we would at once descend into a status of grand delusion in which there is no good ground for confidence in our self-understanding. (That is, we look at an infinite regress of Plato’s cave worlds: once such a principle of grand global delusion is injected, there is no firewall so the perception of level one delusion is subject to the same issue, and this level two perception too, ad infinitum; landing in patent absurdity.)

4] Fourth, we are objectively under obligation of OUGHT. That is, despite any particular person’s (or group’s or august council’s or majority’s) wishes or claims to the contrary, such obligation credibly holds to moral certainty. That is, it would be irresponsible, foolish and unwise for us to act and try to live otherwise.

5] Fifth, this cumulative framework of moral government under OUGHT is the basis for the manifest core principles of the natural moral law under which we find ourselves obligated to the right the good, the true etc. Where also, patently, we struggle to live up to what we acknowledge or imply we ought to do.

6] Sixth, this means we live in a world in which being under core, generally understood principles of natural moral law is coherent and factually adequate, thus calling for a world-understanding in which OUGHT is properly grounded at root level. (Thus worldviews that can soundly meet this test are the only truly viable ones. If a worldview does not have in it a world-root level IS that can simultaneously ground OUGHT — so that IS and OUGHT are inextricably fused at that level, it fails decisively.)

7] Seventh, in light of the above, even the weakest and most voiceless of us thus has a natural right to life, liberty, the pursuit of fulfillment of one’s sense of what s/he ought to be (“happiness”). This includes the young child, the unborn and more. (We see here the concept that rights are binding moral expectations of others to provide respect in regards to us because of our inherent status as human beings, members of the community of valuable neighbours. Where also who is my neighbour was forever answered by the parable of the Good Samaritan. Likewise, there can be no right to demand of or compel my neighbour that s/he upholds me and enables me in the wrong — including under false colour of law through lawfare; usurping the sword of justice to impose a ruthless policy agenda in fundamental breach of that civil peace which must ever pivot on manifest justice. To justly claim a right, one must first be in the right.)

8] Eighth, like unto the seventh, such may only be circumscribed or limited for good cause. Such as, reciprocal obligation to cherish and not harm neighbour of equal, equally valuable nature in community and in the wider world of the common brotherhood of humanity.

9] Ninth, this is the context in which it becomes self evidently wrong, wicked and evil to kidnap, sexually torture and murder a young child or the like as concrete cases in point that show that might and/or manipulation do not make ‘right,’ ‘truth,’ ‘worth,’ ‘justice,’ ‘fairness,’ ‘law’ etc. That is, anything that expresses or implies the nihilist’s credo is morally absurd.

(Thus, we see here our sense of justice for the weak, inarticulate and defenseless; starkly manifest in the difference between luring and catching a fish to become lunch and luring and despoiling then destroying a child. Such a child has not the wit nor words to plead his case, nor the strength to defeat his attacker nor yet the speed to outrun him. Where, that some take pity on the fish and will go out of their way to eat only vegetables is itself further eloquent testimony on the point. [Notice, there is no “people for the ethical treatment of fruit, root starches, grains and vegetables” movement.]

10] Tenth, this entails that in civil society with government, justice is a principal task of legitimate government. In short, nihilistic will to power untempered by the primacy of justice is its own refutation in any type of state. Where, justice is the due balance of rights, freedoms and responsibilities. (In Aristotle’s terms as cited by Hooker: “because we would take no harm, we must therefore do none; That since we would not be in any thing extremely dealt with, we must ourselves avoid all extremity in our dealings; That from all violence and wrong we are utterly to abstain, with such-like .”) Thus also,

11] Eleventh, that government is and ought to be subject to audit, reformation and if necessary replacement should it fail sufficiently badly and incorrigibly.

(NB: This is a requisite of accountability for justice, and the suggestion or implication of some views across time, that government can reasonably be unaccountable to the governed, is its own refutation, reflecting — again — nihilistic will to power; which is automatically absurd. This truth involves the issue that finite, fallible, morally struggling men acting as civil authorities in the face of changing times and situations as well as in the face of the tendency of power to corrupt, need to be open to remonstrance and reformation — or if they become resistant to reasonable appeal, there must be effective means of replacement. Hence, the principle that the general election is an insitutionalised regular solemn assembly of the people for audit and reform or if needs be replacement of government gone bad. But this is by no means an endorsement of the notion that a manipulated mob bent on a march of folly has a right to do as it pleases.)

12] Twelfth, the attempt to deny or dismiss such a general framework of moral governance invariably lands in shipwreck of incoherence and absurdity. As, has been seen in outline. But that does not mean that the attempt is not going to be made, so there is a mutual obligation of frank and fair correction and restraint of evil.