What is the purpose of law?

By Jeremy Daggett on in Finding My Political Philosophy. Permalink.

(If you have not, please read my first post, Legal Positivism.)

There are, of course, many great books and articles on this topic. I can only hope in such a short space to give a brief answer that will hopefully spark your interest and compel you to further research.   I have written briefly on this before, and I do not mind plagiarizing myself.

NB: This piece intends to answer and is limited to the question posed. While the specific question of a limiting principle is very important and a necessary component to the discussion as a whole, it will not be addressed here.

Is the Purpose of Laws to Make Men Good?

In order to answer the question of whether laws are intended to make men good, it may be helpful first to ask a few questions that should give us a clearer understanding of what we are asking.  This will not only help us give a correct answer to the question, but an answer that has the ring of a common sense truth.  We will first ask what is meant by the terms law and good.  Having ascertained and understood these concepts, we will be in a position to attempt an answer to the question.  Finally, we will discuss this topic as it relates specifically the United States of America.

Law and the Good

What is a Law?

A brief perusal of dictionary definitions[1] of law tells us that most people would consider law to be something that is a rule of conduct given by some kind of authority.  It also would lead us to believe that laws are based on custom or quite arbitrary.  If it were the case that laws are in fact arbitrary, we could quite easily answer the main question in the negative and move on to something more interesting.  If based on the additional source of custom, we could briefly answer that, absolutely speaking, laws do not make men good and qualify that by saying that it could be quite possible, and maybe even probable, that some laws do help men become good (depending on what is meant by good).

So it seems that legal positivism is the doctrine of the day.  Something is legal because the “book of the law” says so (or at least does not forbid it) and illegal because the same book says so.  One consults this book to find out whether she can make a tax-exempt donation to a certain kind of institution, or whether it is alright for her to hire a doctor to abort her baby.  But this certainly smacks against a common sense, intuitive understanding of law.  We know that murder and stealing are wrong long before we are aware of a law that confirms that deep knowledge.[2]  Yet the definitions of law described do not take into account this fact.[3]  Again, the main question is meaningless if this kind of legal positivism rules the day.  But let us turn to what Thomas Aquinas has to say about law and see how his definition avoids these errors and helps us answer if laws make men good.

Aquinas defined law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”[4]  We see immediately that a law is never an arbitrary thing, or even only that which is merely custom.  For even a custom may be contrary to reason or be in opposition to the common good in which case it does not have the right to be called a law, even if promulgated by the due authority.  Thomas explains that human law is never to be in opposition to the Natural Law and if it is, it no law at all, but a “perversion of law.”[5]

This understanding of law is attractive because it seems to cohere with how we naturally understand law.  We chafe against laws/rules applied to us that seem to be arbitrary or are only for the advantage of the law/rule-maker.  We also naturally see as repugnant laws which command evil actions.  This simple and common sense definition of law gives us part of the necessary framework to answer the main question.

What is the Good?

Aristotle understood the good in terms of the highest good.  The highest good is desirable for its own sake, it is not desirable for some other good, and all other goods are desirable for the sake of the highest good. In the Ethics, Aristotle says that happiness is that end sought above all other goods and for which all other goods is itself sought.[6]  Later he explains that happiness is not found in bodily pleasures as such, but in virtuous activities.[7]  Therefore, by acting virtuous we may live life well and thus be happy, because virtue is what makes a man good.[8]

Now we must investigate briefly how it is that something is made good and in what ways it can be said to be good.  Something can be said to be good if it performs its task well.  Thus an eye that sees well is said to be a good eye, or we say that the man who sees well has good eyesight.  But this kind of good is merely functional.  What about moral good? Aristotle has said that virtue is a state of character which causes a man to do his work well.  Moral virtue is that which curbs excess and defect in passions or actions which would frustrate the attainment of happiness.[9]  A man who is virtuous is said to be a good man because he acts in such a way that he is able avoid the extremes of excess and defect.  But he does not become virtuous naturally; he must work at this “art” in order to do it well.  Further, he must be directed in the way of virtuous activity.  Aristotle argues that laws must be made in order to direct men and dispose them to the good.  But he further states that laws are necessary to help curb vicious behavior through the threat of punishment so that even if some who are not good men will not do what is virtuous, they may refrain from what is vicious for fear of punishment.

Do Laws Make Men Good?

We are now prepared to answer the initial question.  If a law is an ordinance of reason given by him who has charge over the citizens (thus directing the actions of men), and every law which is truly law is in accordance with the Natural Law which directs men to the good, it must be said that the effect of every law is to make men good.  Now this may be said in more than one way.  For not every law is directly concerned with the absolute good; that is, attaining happiness.  As was stated, obedience to some laws which proscribe certain behavior do not cause a man to be virtuous but only avoid vice through either threat of punishment or because the man is already good and would avoid said vice anyway.  Yet, laws proscribing certain vices absolutely will have an educational effect upon the people.  It will be seen that certain vices are deplorable and their opposite virtues, while not necessarily commanded, are commendable.  In this way, even a proscriptive law can indirectly dispose a man to virtue and in that way “make” him virtuous.  But, as Aquinas points out, laws that are conducive to good behavior can be said to make men good in a more direct way since it directly disposes men to virtue through habit.[10]

Aquinas also tackles the question of laws that are bad or given for the private good of the ruler, as in the case of a tyrant.  These laws do not make the citizens good simply, but only as it regards the particular regime to which the citizen belongs.  This is because the virtue of the one who is ruled is to be subject to the laws of the ruler.  Therefore, when the citizen obeys the commands (laws) of the ruler, even a tyrannical ruler, he is good with respect to that particular regime.  This applies even when a law is a bad law, and truly no law at all (because not an ordinance of reason) since “every law aims at being obeyed”, and obedience is a virtuous act.[11]
It seems that we may answer the question in the following way: Every law makes men good because laws are ordained to the perfection of man, being in accord with reason and Natural Law.

Is the Purpose of Law in America to Make Men Good?

Obviously we can answer this qualified question in the same way absolutely.  If every law makes men good, and America promulgates law, then American law makes men good.  But the answer must be revised if it is understood as asking whether lawmakers in America intend to perfect the people in the giving of law.  Is that what we do in America?  Has that ever been our way?

George Will has tackled this question of the purpose of law in America.  In his insightful book, Statecraft as Soulcraft, Will attempts to refute Justice Felix Frankfurter’s understanding of the purpose of law; that it is only “concerned with external behavior and not with the inner life of man.”[12]  But Will recognizes that the political philosophy that is the machine of how we do politics in America was born of the anti-Traditional philosophies of thinkers such as Machiavelli and Hobbes.

[With Hobbes,] political philosophy took its bearing not from the ends men ought to seek and which a few can approach, but rather from the beginnings that all men share—from the strongest, most elemental desires and passions.  Liberalism came quickly to the “social contract” metaphor, because it locates the origins of government in an agreement between rational, self-interested but pre-civic persons.  They are motivated to associate neither by neighborliness (affection) nor political allegiance (shared public philosophy) but only by anxiety about their physical safety and the security of their property.[13]

We see here how the passions have become the starting point.  The good is now pleasure and as long as your pleasure does not interfere with my pleasure, all is well.  There is no need to subdue our appetites or reform them unless doing so is useful for obtaining “physical safety and the security of property.”  Furthermore, the notion of social contract follows from a denial of human nature and the Natural Law as it had been commonly understood by the ancient and medieval Christian philosophers (and pre-Christians like Plato and Aristotle).

Under that schema, man had a nature which was imprinted with “directions” or an “owner’s manual”, as it were, that served as a compass guiding men in their actions, leading them to natural perfection.  Thus we could speak of the grave sin of murder as being contrary to the Natural Law.  Plato, for example, condemns extra-marital sex and homosexual acts as violations of the Natural Law in his Laws.[14]  However, in the new schema, there was a dramatic shift that placed a premium on the useful and the practical.  Acts are neither morally licit nor illicit intrinsically, but only with reference to the unity and continuance of the state and the aforementioned preservation of self and property.  Such acts may be outlawed if they would be perceived as causing harm to others.  But it may be that perceptions and opinions change and the previously banned behavior becomes acceptable in a qualified manner, if not absolutely.  Thus we see that laws are not ordained to the perfection of the citizen.  They are not even ordinances of Reason; that is, in accordance with the rational nature of man.  Laws are merely unfortunate, but necessary restraints on man’s “natural” freedoms.  But here natural has as its referent the appetitive, or passional, part of man.

George Will finds that this view is severely individualistic and finally destroys all sense of a common good.  “When people are taught by philosophy (and the social climate) that they need not govern their actions by calculation of public good, they will come to blame all social shortcomings on the agency of collective considerations, the government, and will absolve themselves.”[15]  This seems to follow necessarily from the implicit (at least among the general populace, but explicitly with the philosophers of Modernity) denial of human nature and a definite and vociferous denial of the Natural Law.  A recovery of the traditional understanding of the purpose of law could go far in preventing what Will predicts as the inevitable destruction of a nation which builds its house on the premise of Modernity.[16]

Conclusion

It seems that while the subjective intention of American lawmakers in promulgating laws is not to make men good, but to facilitate utilitarian progress and protect certain rights, we must understand that the failure of political leaders to grasp this most important part of their vocation[17] does not render impotent the principle argued for in this essay.  The very failure to grasp this has led to many “laws” that are not laws at all but affronts to true law; for instance, the legality of abortion and pornography.  Lawmakers must come to understand the purpose of law if they are to be good legislators.  Any progress to be made in this battle to recover the purpose of law would require arguing for a proper notion of the common good.  There has been such a conceptual gulf fixed between the individual and the community, that to speak of the common good in some circles is to subscribe to a socialist agenda.  But that is for another essay!

 



[1] These can be found at http://dictionary.reference.com/browse/law which lists several definitions from several dictionaries.

[2] See What We Can’t Not Know by J. Budziszewski for a more complete discussion of this in a Natural Law context.

[3] I submit this is because they have all subscribed to a radically voluntarist and nominalist epistemology and metaphysics.  The radical real separation of the will and the intellect, coupled with the exaltation of the will over the intellect and the denial of universals altogether, and thus natures, logically leaves us in the position of accepting legal positivism.  There can be no natural law, as traditionally understood, and thus no truly rational and moral basis for laws.  We are left with some sort of pragmatic social contract or, even worse, a tyrannical rule of the mighty who make laws for their own private good which (usually) stifles the common good.  In this scheme, murder isn’t intrinsically evil, it is inconvenient and counter to the order required for the progress of the community.

[4] St. Thomas Aquinas, Summa Theologica (hereafter, ST), I-II, Q. 90, Art. 4.

[5] ST, I-II, Q. 95, Art. 2. Cf., I-II, Q. 92, Art 1 and Q. 97, Art. 3

[6] Aristotle, Nicomachean Ethics, i, 2, 7.

[7] Ibid., x, 6

[8] Ibid., ii, 5, 6

[9] Ibid., ii, 6; x, 9.  This is, of course, extremely cursory and leaves out much that can be said regarding Aristotle’s development of this doctrine.

[10] ST, I-II, Q. 92, Art. 1.

[11] Ibid.

[12] Justice Felix Frankfurter, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) 655, quoted in George Will, Statecraft as Soulcraft (New York: Simon and Schuster, 1983), p. 20.

[13] Will, Statecraft as Soulcraft, 29-30.

[14] Plato, Laws, Bk. 1.

“I think that the pleasure is to be deemed natural which arises out of the intercourse between men and women; but that the intercourse of men with men, or of women with women, is contrary to nature, and that the bold attempt was originally due to unbridled lust. The Cretans are always accused of having invented the story of Ganymede and Zeus because they wanted to justify themselves in the enjoyment of unnatural pleasures by the practice of the god whom they believe to have been their lawgiver. Leaving the story, we may observe that any speculation about laws turns almost entirely on pleasure and pain, both in states and in individuals: these are two fountains which nature lets flow, and he who draws from them where and when, and as much as he ought, is happy; and this holds of men and animals—of individuals as well as states; and he who indulges in them ignorantly and at the wrong time, is the reverse of happy.”

Later, in Book 8, he writes,

“No one shall venture to touch any person of the freeborn or noble class except his wedded wife, or sow the unconsecrated and bastard seed among harlots, or in barren and unnatural lusts; or at least we may abolish altogether the connection of men with men; and as to women, if any man has to do with any but those who come into his house duly married by sacred rites, whether they be bought or acquired in any other way, and he offends publicly in the face of all mankind, we shall be right in enacting that he be deprived of civic honors and privileges, and be deemed to be, as he truly is, a stranger. Let this law, then, whether it is one, or ought rather to be called two, be laid down respecting love in general, and the intercourse of the sexes which arises out of the desires, whether rightly or wrongly indulged.”

[15] Will, 45.

[16] Will, 46.

[17] That is, the perfection of the citizens.


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