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

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