(Thesis)
Law, as a social construct (Civil Law), exists exclusively for the purpose of mitigating the detrimental impact of the negative characteristics (traits) that are intrinsic to all human beings. These traits derive from fear and manifest in hatred, greed, envy and all of the potential negative emotions. These in turn lead to behaviors which are invariably detrimental to the beneficial and prosperous functioning of a community or society.
From the earliest recorded records of human history we see a repeating pattern where-in both secular and spiritual leadership have struggled with the problems which arise from the negative aspects of human nature. In every example a code of law has been created which seeks to overcome these impacts and stabilize the community in order to maintain cohesion, promote well being and engender prosperity.
If there is to be even a hope of efficacy for a code of law it must derive from a principle or set of principles that are universal to all persons. Given that we are talking about all possible action and interaction in the human world it should be clear that we are talking about Ethics. From this one hopes that it is obvious that [Civil] Law is merely codified ethics empowered by the authority of formal government and that the purpose of government is to establish and enforce [Civil] Law in order to maintain a civil society.
Arguments regarding forms of government that have arisen out of this process and their failings are of only secondary concern here. Such debates can only detract from the central argument regarding the nature and purpose of law.
(Testing the proposition)
Regardless of the form of government, this Theory of Law will stand up under rigorous logical analysis. In every case: Monarchy, Oligarchy, Theocracy, Democracy, Republic or any of the known government forms a grounding principle can be found: Might makes Right, He who has the Gold makes the Rules, Divine Word, The Greater Good, the Ends Justify the Means...ad nauseum. All of these euphemisms are ethical principles. However the underlying ethical theories are not good ones. This is precisely why so many of these systems of government and law have failed repeatedly.
Monarchy and Dictatorship appeal to ‘the Divine Right of Kings’ or ‘Might makes Right’, however they still adhere to the Theory of Law as I have proposed. The purpose for governments existence and the system of Law that they impose are to maintain a functioning society. Sadly only the elite truly benefit and eventually such systems always collapse in chaos and violence.
Theocracy clearly appeals to Divine Word and one need only look at the chaotic state of affairs in the Middle East today to know how well that works.
Oligarchy and Socialism draw upon ‘He who has the gold’ and ‘the Greater Good’ depending on who is in power at a given time. These two systems of government usually co-mingle these two systems of ethics in their legal systems which invariably leads to a massively complex and chaotic system of law.
Rome was the original Republic based in Oligarchy but later transformed into Monarchy. The historical record speaks for itself. The republic blended ‘he who has the gold’ with ‘might makes right’ as a grounding ethical basis. Although it could be argued that it began with Theocratic roots that adopted some of greek democracy and evolved into the republic.
The ancient Greeks discovered that pure Democracy (one voice one vote) inevitably fails when population exceeds a certain small size. Once a population exceeds the size threshold it becomes impossible for every ‘citizen’ to be well informed enough to make a wise voting decision on every voting issue.
In all of these cases the same basic process happens. Persons in the position of leadership (power) have to create laws that seek to maintain the cohesion and prosperity of the community. The question is from where do such laws originate?
Here again the ancient Greeks give us the answer, Ethics. In particular we can look to Socrates, Plato and Aristotle and see that the principles of Good/Evil (bad) and Right/Wrong form the foundation for a code of conduct. Plato in particular demonstrates this for us in his work The Republic which explores in great detail the role of ethics in governance. Most particularly this work shows the importance of the concept of Goodness or The Good in establishing the rule of law and how aspects of human nature make Civil Law and governance a necessary thing.
If we accept Plato’s arguments which show the relationship between ethics and law and government then my argument is made for me. [Civil] Law is merely codified ethics empowered by the authority of formalized government and it is the purpose of government to establish and enforce [Civil] Law in order to maintain a civil society. To the present day The Republic is required reading in nearly all serious collegiate studies in ethics and political science.
On the assumption that we do accept this Theory of Law it must now be asked why such a system has failed repeatedly throughout history? Here again the historical record provides us with an answer. Over and over we have attempted to use the wrong ethical principles as the basis for Law.
(Where does this take us?)
As I noted earlier, in order for a system of law to be truly efficacious it must be rooted in a principle or principles that are universal to all. This means that the founding principle(s) must be exactly the same for everyone and have absolutely no susceptibility to interpretation. Unfortunately this has not been the case up to the present moment.
We have seen how the very abstract concepts of The Good and Right/Wrong have repeatedly been used as the founding basis for Law. The very nature of these ideals, being abstract, makes them entirely subject to interpretation depending on circumstances and personal point of view. That is to say that something which is generally taken to be a good thing can in some circumstances be a bad one. Take water for an example. All human beings need water to survive (our universal principle) so having a sufficient supply of water is a good thing, however there are circumstances in which too much water leads to death thus making it something bad. A very simplistic example but it does clearly make the point.
The reason this is problematic is that when we use an abstract idea as a foundational principle (the basis for a Theory), the ability to interpret that idea in different ways invariably renders the entire system based upon the principle subject to interpretation and manipulation. This creates ‘loopholes’ through which the very traits our system of Law is meant to mitigate are able to and through manipulation do manifest in social behavior (including both political and economic action). From this a cycle of ever more complex laws must be created to try and ‘close the gaps’ however because of the fundamental flaw in the system this can never work.
A moderate study of history will reveal that this process has repeatedly given rise to social discord and conflict that has resulted in the demise of nations and societies. The current state of social/political affairs in the United States and numerous other nations today all give easily observable examples of the consequences of this process.
(How do we break the cycle?)
The answer to this question is amazingly simple. Stop using abstract concepts as the basis of Law and instead base the system on definitive and objective Ethical principles. Fortunately for us (here in the USA) this is already legally established by the U.S. Declaration of Independence.
The single most important principle in America is the Inalienability of Rights. This one ideal is the very reason we fought a revolution with Great Britain and became a sovereign nation.
“We hold these truths to be self evident, that all men* are created equal and that they are endowed by their creator with certain unalienable rights”. The legal status of this document has been affirmed several times by our Supreme Court. Furthermore the stipulation of equality means that if one person (member of the society) has something as a right then all persons (members of the society) have it. And such possession is equally balanced, no one gets more of the right or less. It also tells us that if one person is denied something as a right then everyone must be subject to the same denial...no special rights. This is a Categorical Imperative and that, boys and girls, is a purely definitive and objective ethical principle. Unfortunately we have never followed the path this sets for us which is the reason things are the way they are in our society today.
- An appropriate modern reading would say, “...all persons are created equal…”.
There is obviously a great deal more that needs to be said and discussed regarding this about how We the People can make this happen. However that would exceed the scope of a single post. I have written the full argument and implementation strategy in a short book titled Function and Dysfunction in America, available on the Amazon publishing site.
Commentary is invited and welcomed.
Blessed Be
So, what you're saying is that if you are going to use ethics as your basis for law, you really should specify a specific theory of ethics?
Exactly, or at least a single ethical principle. The gist of the argument is that Law must derive from an ethical principle (not a moral one). Here in the U.S. we keep trying to establish ethics through Law (legislation) but that is putting the cart before the horse. The point of origin for Law needs to be an ethical principle or theory and it needs to be established in a manner that cannot be overwritten by legislation, such as being included in a constitution.
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