|Laws are all around us, and as a
society we continue to make more and more of them. And we take them for granted and argue
about the merits of this or that law, but we rarely try to contemplate the inner nature of
law, itself. In order to do this lets start with this view of law, and then look at
the daily world of laws and law makers where it becomes applied in various ways.
Law in this higher sense is similar to what the classic philosophers called transcendentals, that is, those properties that were coextensive with being, itself, like truth and goodness. Law is a certain aspect of the very nature of things. From this perspective, law could be understood as the demand things make on us by their very being, or it is our recognition that we ought to behave in a certain way because things are the way they are. In short, what we are demands that we act in a certain way to realize our potential. Law flows from the very nature of things. It is our recognition that because things are the way they are we should act in a certain way.
Lets try to make this more concrete. We have, for example, laws about the abuse of children so that our society will step in if they are not treated properly. But these laws suppose we know how our children should be treated. Lawmakers did not sit down and decide what this treatment should be, and it was their job to decide what was appropriate. Rather, there was an implicit and often unconscious recognition on their part and ours that we as human beings must behave towards our children in a certain ways. These standards of behavior flow from our natures as human beings, and more particularly from what our children are like with their definite physical and psychological needs for food and shelter and affection, and so forth. Our laws dont decide whether these needs exist or not, but rather recognize them and set up laws which are like certain minimum safeguards of our obligation to treat our children in a certain way. But the law in the highest sense that we are talking about here flows from the very nature of our children and what they need in order to grow and mature as good human beings.
Law in this sense, as I have said, is written into our very being, or better, it is an aspect of our being, itself. We recognize what to do because we recognize who and what we are. This recognition is not primarily and first of all a conscious and reflective matter as if we as a community had to have a meeting to decide what to do. Rather, we know this fundamental kind of law by conscience and common sense and by being brought up by responsible people, especially our parents. And we obey this kind of law not because someone has turned it into a written law, but because we recognize we ought to act in this way. We try to be patient and understanding with our children when they come to us, not because there is a law somewhere written about it, but because we know it is the right thing to do.
What is the relationship between this kind of interior law and the many laws that surround us? The interior law that flows from our being is primary, and the laws we make should reflect it and foster it, and this interplay of the universal law of our being and the laws that we write can take different forms.
Some laws, for example, are created because of the random nature of events, events that escape our ability to predict. We put up stop signs and traffic lights because in this way we can regulate the random flow of vehicles. There is no intrinsic reason why we must stop at a red light. It is a regulatory law to help us sort out these random events and keep the community safe, and as such it serves a good purpose.
Other laws arise from our imperfection. We tell our young children what to do because they have not yet reached the point of knowing what to do themselves. We create a code of criminal laws because we want to make it clear as a society that there are certain minimum standards of behavior that must be obeyed if our society is to function. But it is not the law that makes the crime, but rather the law that makes the crime visible. Theft is wrong whether there is a law on the books or not about it because it goes against the nature of living in community.
Lets look at the interplay of this interior law that flows from our being and these external kinds of laws. We sometimes act as if we can legislate our way to goodness, that is, keep on multiplying laws until we have covered every facet of our existence. This will never work because the fundamental purpose of these external laws is to foster the inner spirit of law, not to replace it. External laws cant replace the spirit of the law, or the inner nature of law, any more than words can replace things, themselves. We dont make good parents by making prospective parents read the laws about child abuse.
Law makers can sometimes be carried away with their job. They are so busy crafting new laws and setting up the apparatus by which they can be administrated that they dont reflect enough on the inner nature of law, itself, that these external laws are meant to serve. Then we move towards a legalism where we become unduly focused on the letter of the law and lose sight of its spirit. Laws are not meant to replace our intelligence or volition, but stimulate them to a higher and better level of functioning. Laws by their very nature, like the words they are formulated in, are, at best, partial and fragmentary. They admit of adjustments and demand interpretations, and the ultimate norm of their interpretation is the very nature of things, themselves. We are not aiming at a society of non-thieves, but a community of honest people. The heart of legalism is to put laws ahead of people and bend them to the laws, and finally allow the laws to destroy the very values they were meant to serve. Further, laws have to be brought into relationship not only with the universal aspect of law, itself, but with individual circumstances. The written law can never be mechanically applied to all situations for people differ both in their temperaments and the circumstances in which they live.
Lets imagine that the religious community to which I belong has a rule that I should say a certain prayer every day. This law in part reflects the universal nature of things. It flows from our very nature as creatures of God to whom we ought to respond in prayer. The law makers have decided that this particular prayer that they are prescribing is a suitable fulfillment of this universal principle, and they set it down as a rule to be observed. In a spirit of obedience I follow the rule, and derive profit from it, but one day I find that I am consistently having difficulties in saying this prayer. Now I need to continue to pray as an expression of my relationship to God, but do I need to continue to say this particular prayer, or can I substitute some other spiritual exercise?
Lets look at another example of the same sort. My children need to be educated. This is an obligation that flows from the very nature of things, and cannot be avoided. Society in one fashion or another realizes this, and sets up a system of mandatory schooling. But am I obliged to send my children to these schools? Do I even need to send my child to any school at all? In one fashion or another I need to see to my childs education, but just how I do this can depend on my own inclinations and circumstances. I can, for example, decide to educate my child myself.
Or lets take the case of mandatory prison sentences for various crimes like drug possession. We craft a law because we are upset about what drugs are doing to our society, but in the creation of the law we set down how the possession of various quantities of drugs will lead inexorably to a certain length of time in prison. But the external law can never cover all the individual circumstances, and we end up putting in prison people who should not be there.
In one case in California, a 35-year-old man was on trial for stealing a $300 bicycle from a garage, but he had two prior convictions for burglary, one at age 19, and one at 21 or so. Under the state three strike law he faced mandatory life in prison. Two of the jurors of the trial, realizing that the punishment did not fit the crime refused to certify the two previous convictions so that the three strike rule could be applied. They were excused from the jury and replaced with two alternatives who allowed this process to go forward. Did these first two jurors act correctly? Jurors are often left with the impression, indeed, are often informed by the judge, that their sole concern is with the guilt and innocence of the person on trial, and what happens after their decision is none of their concern. Yet, can we really abstract ourselves from the whole picture? Jurors are rarely informed that they have the power to nullify the letter of the law and follow their consciences. They can, for example, come to the conclusion that the punishment does not fit the crime, and modify it, or set the person free. Some view this power with alarm and consider it a threat to the judicial system, but it actually is a reflection of the deeper and wider view of law that we are discussing here.
There are no simple answers to these concrete situations which involve the interplay of the inner nature of law, the laws as they are actually written, and the concrete circumstances in which people find themselves. But we cannot neglect any of these elements without harm to our society.
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