The Functions of Law
What is the purpose of law? What are its functions? In this document, we explore the purpose and two principle functions of law: order and justice.
Law & Order
Nature is endowed with her own order and matter must obey the laws of physics. Order exists at every level of reality. We too must live by rules and laws which provide us with order in the personal, social and political levels of life.
At any given time when we human beings interact with one another, such rules are in effect. The most prevalent of these are the social rules. These rules prescribe, to varying degrees, how communication takes place and what can be communicated, how things are done, and what things can be done. These rules vary according to the roles we play and the particular situation at hand.
While some of these rules are explicitly taught, most of them are not. They are either implicitly absorbed from the existing culture or intrinsic to the human being.
For example, I know to pat a friend on the shoulder, but not on the butt. This is pretty universal, except among football players. And I also know not to go ahead and pat a stranger without his explicit and voluntary permission.- Something which the TSA needs to learn.
And when I meet someone, I know to shake their hand. I might smile to indicate friendliness, or frown to indicate vexation. We observe these and other much more subtle social rules regularly, such as the frequency and manner of glances in a conversation, and other body language and social cues.
These often unspoken and not officially written rules suffice for many, if not most interactions in everyday life. They are base rules which establish an order that facilitate human interaction. Without such rules, interacting with others would be significantly more difficult, and maybe even dangerous. In such a situation, we’d have to agree upon explicit social rules then and there, but without even knowing how to approach each other.
In fact, when these rules differ, there is often misunderstanding. For example, differences in gestures, acceptable personal space, use of humor, tactile contact, loudness of voice and idioms can lead to such misconstruction, even if the language being spoken is the same.
What may be meant to convey friendliness, such as a hand shake or a joke, may even end up being interpreted as a lack of respect or even a threat. This may happen when there is a difference of culture, for instance, though there are obviously many reasons why two or more people may not share the same basic social rules.
For example, for many latin cultures, a more intimate embrace or even a kiss on the cheek is appropriate between friends and even people whom you might have just met. In American culture, this is often inappropriate and may be considered disrespectful.
But even when there is a perfect understanding of these important social rules, they will only get you so far. Any interaction which calls for greater co-ordination or complexity in action begins to require explicit rules. For example, a children’s game of hopscotch involves several explicit rules, without with the game could not reach that level of complexity. The same is the case with a game of baseball or cards. And the same is true for driving a car in traffic. When the level of complexity or co-ordination increases in the interaction, explicit rules are necessary. This applies to all human endeavors.
If I were to start a musical band- let’s call it the “FALFA Fanatics”- then I’d need to explicitly agree on a time to meet with the other band members to plan and practice and we’d need to agree on what precisely to do, how to do it and when to do it.
And, of course, every home has explicit rules. Who takes care of the groceries, when dinner is at and generally what is acceptable behavior at home and other such matters are a mixture of both implicit and explicit rules. The rules for a nudist household may well be different than that of the non-nudist household.
So, we can sum all this up like this: “Explicit rules provide the order necessary for complex and co-ordinated human activities.”
Clearly, we can see here the need for explicit rules. Laws, in a sense, are rules with some type of legal force behind them. And its plain to see that many laws exist primarily to provide legitimate order in society. We already indirectly mentioned one example: traffic laws. Without them, street traffic becomes a nightmare and untenable. I have personally experienced the chaos of out of order traffic lights in a city which does not seem to know the explicit rule of treating turned off traffic lights as four-way stops. It is not for the faint of heart.
Some may take a negative view of law prescribing any particular order, because they see it as an order imposed upon them. But as we can see, order is simply necessary for many situations. And therefore some order must be decided by some group of people so that society can function.
I don’t view normal traffic laws as an imposition, but rather as something created so that traffic can function and people can get from point A to point B. In other words, these laws give me a means to do something that would otherwise be impractical or impossible without them.
It is true that I didn’t decided on these laws and that it was probably a relatively small group of people who did, but that in itself doesn’t make them unfair or unjust or even particularly imposing. Although the order is arbitrary, the principle behind that order is not.
The principled reason for why there are legal consequences when I violate these laws, is because such a violation has potentially serious consequences, including the severe injury and even death of others. Other reasons, such as funding the city treasury, are morally problematic and an abuse of law.
Though we need order, we don’t want order for the wrong reasons, as that eventually leads to the unnecessary prescription of order where law has no need or moral right to prescribe it. We don’t need explicit rules or laws for situations were implicit social rules or voluntary rules are sufficient. We don’t need or want laws telling us when dinner time or bed time is, for instance, or what we must eat. The purpose of rules and laws are not to order human activity simply for the sake of ordering it, nor to order what is already rightfully ordered, but to make human activity possible and practical where it would not be otherwise.
Beyond this is overstepping the purpose and bounds of law. Authorities have no right to tell us what we must eat for dinner, though a family certainly has the sovereignty to make household rules about their particular eating habits. The order is present, but it need not always be prescribed by law.
So rules and laws are necessary for the sake of having order, which allows us to do more things. In fact, proper rules and laws provide us a freedom unavailable without them. There would be no hopscotch, no baseball, no Internet and no way to navigate through city traffic without them.
Aristotle said that “Law is order, and good law is good order.”
As it happens, when we learn to make and regularly follow our own personal rules, according to objective truth and properly ordered desires, we experience greater freedom to accomplish our goals and be the men and women we want to be. This is called discipline. And properly ordered, it leads to virtue, which can lead us to possess the sainthood we should aspire to. Contrary to popular portrayal, saints are indeed much more fun. That said, we should not be the servants of order, but rather order should serve us.
Generally, this order is arbitrary, though. The rules of hopscotch are arbitrary and can be changed. In fact, there are several variations of the game, each with their own particular rules. The same is true with traffic laws and patterns. The goal of having order is to be able to do things we otherwise couldn’t do without it, so the particular rules don’t matter as much as long as they serve this purpose. There is nothing intrinsically wrong about using a different set of rules.
And so such order can be morally neutral. For example, imagine if we decided to change the rules of baseball so that it had four bases, and hitting a home run would entail running all four bases, in addition to performing a cartwheel on the very last base, while yelling “Yahoo! Yahoo! I’m here!” This would not be any more or less morally good than the current rules of baseball, though it might annoy many baseball fans.
On the other hand, if the batter were allowed to run after members of the opposing team and violently hit them over the head with his bat, that would obviously be morally wrong, because it runs counter to the universal moral principles.
Similarly, it is not intrinsically wrong to change or even disregard rules. Often my friends and I would bend, break and simply change the rules of playing pool at a moment’s whim for the sake of our own enjoyment. I think its quite clear that there is nothing morally wrong with this, although it would irritate a serious player to no end.
What I mean to say by all this is that rules that are there for the sake of order don’t necessarily have a moral value, that is, they are morally neutral in themselves, unless they conflict with moral principles. As such, many rules may be beneficial, but they are not morally necessary. There is no moral need to have rules for baseball, nor is there any moral need for baseball to exist, although I’ve probably lost both my pool-playing and baseball fans by now.
Laws are similar, in that they can be morally neutral in this manner for the same reasons, however they also bear the property of legal force and are not as voluntary, and this gives them additional moral dimensions that other, voluntary rules do not have. The question arises, if breaking rules is not intrinsically wrong, is breaking laws intrinsically wrong? This we will explore in a later episode.
But right now, let’s consider how morality, rather than simply order, also drives the creation of rules and laws.
Order is not Enough
It’s not enough to simply have order. Human beings also have an innate desire for fairness and justice. In fact, some studies suggest that we are naturally wired to desire fairness, so that fairness is actually a basic natural need for human beings- on par with food and shelter.
Otherwise, an orderly dictatorship might be a very desirable state. But obviously, for most of us, it’s not. That said, sometimes people desire so much for order that they are willing to forgo justice and disregard their inalienable rights. Often this unjust order is officially justified under the label of “security”, whether we are talking about the security of having the basics in life, or of being protected from a hostile force.
Terrorism functions under this principle of dis-order. Terrorism works not so much because it physically kills people, because the proportion of people it kills is often small, but because it causes great disorder and thus fear. The very possibility of being killed in a terrorist attack is frightful, and many people are willing to give up completely disproportionate amounts of liberty to minimize or eliminate that threat, even though they are much more at risk from dying from a car accident or a natural cause than from a terrorist attack.
It is not simply the fear of dying (which, incidentally, is an event we can only postpone for so long, but cannot avoid in any case. The probability that you and I will die, dear listener, is 100%, security or not.). But it is not merely the fear of dying, but the fear of disorder- not knowing when or where they will hit next, not knowing what will come. This uncertainty, this disorder can be very stressful, and is an effective tool for both governments and terrorists to demoralize and manipulate people.
In his work “Cato the Elder: on old age”, philosopher Cicero says, “After death the sensation is either pleasant or there is none at all. But this should be thought on from our youth up, so that we may be indifferent to death, and without this thought no one can be in a tranquil state of mind. For it is certain that we must die, and, for aught we know, this very day. Therefore, since death threatens every hour, how can he who fears it have any steadfastness of soul?”
This is a better way to live and I would only suggest that pleasantness is not necessarily guaranteed, which is an additional incentive to stand for truth, goodness and beauty in our lives here and now.
Cicero says that “The first duty of a man is the seeking after and the investigation of truth.”
But disorder frightens many into not seeking these good. Many Russians clamored for the order of of the old Soviet Union after its collapse. And yet the founding fathers of the United States preferred a much less ordered state of war and an uncertain future than the increasing “order” of King George III and the British government. In a properly-ordered human being, the desire for justice is greater than the desire for order.
Moral people are willing to put the order of their lives at risk in order to seek justice. The founders disregarded the laws, and indeed the very government, because of their lack of justice, and thus their lack of legitimacy. Justice trumps order. It was Thomas Jefferson who said: “Timid men prefer the calm of despotism to the tempestuous sea of Liberty.”
Law & Justice
So far, we’ve discussed how order is a primary function of rules and laws. But that the order itself doesn’t matter much, and is rather arbitrary, as long as it serves its purpose, like directing traffic, or allowing us to play games.
But if fairness and justice, or in another word, morality, is another primary function of rules and laws, then is it similarly arbitrary? In other words, does this mean that morality is merely relative and arbitrary to the particular society or situation in question?
Rather than fall into the ultimately self-defeating notion that morality is relative, we should distinguish properly between a principle and its application. In this case, between a moral principle and that of its practical application in a rule or law.
Let’s take anabolic steroid use as an example. It is perfectly legal to take them for legitimate medical purposes. And yet, it is against the rules to use steroids in baseball. Clearly these rules are different, and yet they both uphold the same moral principles.
Taking steroids in baseball is against the rules because it this is not fair competition, and ultimately makes steroid use a de-facto requirement for players, and without such rules, players may well be forced to take on increasingly more dangerous and artificial means of enhancing their performance. So here we see a moral principle of fairness in effect.
In the case of medical steroid use, this simply allows patients a means of treating their medical conditions, also upholding a certain moral principle of fairness or justice for patients.
Of course, by default all things are legal, and laws typically make things illegal, not legal, so we might take this only as a hypothetical example. Typically, when we talk about “legalizing” something, it is because it is already illegal, and we are either talking overturning a current law, or passing a law that makes something legal within some constraints which are wider than that of the current law.
In any case, I think the point is clear that two different and even superficially contradictory rules or laws can in fact uphold the same objective, non-contradictory moral principles.
Some people disagree on what those principles are. For example, some people believe passionately and firmly that “same-sex marriage” is a basic human right that should be upheld for everyone. On the other hand, many people believe just as passionately and firmly that this is against the moral law, not merely on the authority of the Holy Bible, but on the principles of natural law.
We’ve talked about natural before. A brief dictionary definition is “a body of unchanging moral principles regarded as a basis for all human conduct.”
So while we might disagree on them, these principles of moral and natural law are objective, not relative. They are not based on feelings, particular texts, nor the whims and fads of society. Morality is as objective as physics, and it is sometimes as difficult to discern.
Catechism 1958: “The natural law is immutable and permanent throughout the variations of history; it subsists under the flux of ideas and customs and supports their progress. The rules that express it remain substantially valid. Even when it is rejected in its very principles, it cannot be destroyed or removed from the heart of man. It always rises again in the life of individuals and societies”
Though discernment may sometimes be difficult, we do have this desire for morality, and normally have a decent intuition about what is moral and what is not, at least about the basic things. It’s no surprise then, that murder and rape are globally decried, even though the particular laws of each country differ in specifics and penalties.
Catechism 1957: “Application of the natural law varies greatly; it can demand reflection that takes account of various conditions of life according to places, times, and circumstances. Nevertheless, in the diversity of cultures, the natural law remains as a rule that binds men among themselves and imposes on them, beyond the inevitable differences, common principles.”
Clearly moral principles are one of the primary functions of many rules and laws. Most who support “same-sex marriage” do so on moral grounds. And most opposed to same-sex marriage do so on moral grounds. Those who support the right to abortion do so on moral grounds, while those who oppose the right to abortion do so on moral grounds as well.
And so it disturbing and surprising to hear Supreme court Justice Elena Kagan say that, and I quote: “Whenever a lawyer makes a moral observation in a case such as this, for me, the red flag of discrimination goes up.” She was hearing a case on same-sex marriage.
And yet, her stance on discrimination is ultimately a moral one, whether she observes this or not. Maybe she had something else in mind. Nevertheless, to try to divorce morality from law is to try to divorce it from reality, or strip away at least half of its reason for being.
Catechism 1959: “The natural law, the Creator’s very good work, provides the solid foundation on which man can build the structure of moral rules to guide his choices. It also provides the indispensable moral foundation for building the human community. Finally, it provides the necessary basis for the civil law with which it is connected, whether by a reflection that draws conclusions from its principles, or by additions of a positive and juridical nature.”
While there are some people with other agendas, generally speaking, people on both sides of an issue are responding to a desire for justice and believe to hold the correct interpretations of the moral principles involved. To come to a proper and correct interpretation of the moral principles, we should turn towards natural law and logic, rather than simply basing our decisions on our emotions, which are easily manipulated and can lead us to wrong conclusions without further contemplation.