Everybody has an opinion on the ways laws are and the way laws should be. But it seems as if most opinions, left & right, are based more on political affiliations, biases, and preferences than on an understanding of what law truly is. Most messages about public policy from our politicians seem to be rife with what constituents desire to hear, and most discourse among the people seems to revolve around that which is most pragmatic.
But if the average person were asked what law is and what its first principles are, I fear most would want for a good answer. If someone were to ask not only what law is, but what good law is at its core (or if there is even such a thing as bad law) I fear even more would fail to adequately describe what law should be.
But how would we know if it were true that people don’t truly understand the nature of law? Suppose there were a country much like our own in which the people were the final authority in that they chose their most important leaders from among themselves and had the opportunity to vote on much of their local public policy. In such a nation, it is unthinkable that the people who carry so much authority over the law would not understand the nature of law itself. Without an understanding of the first principles of law to guide them, we would expect that they would be absorbed into a confused frenzy over public policy. We should expect that the leaders chosen from among them would have little regard for, or understanding of, the law. And it would almost necessarily be the case that such a people would forget the prudence and necessity of laws that had been set in place at a time when the first principles of law were understood.
If the reader believes that such a description bears no similarity to the current state of the United States, then by all means stop reading this post and please take an honest look at the world around you. But if you, like the author, are troubled by the current wasteland that is American politics and you seek a better understanding of law, then I invite you to read and consider this humble attempt at an outline of what law actually is.
I should first say that I as a 21 year old college student have no business claiming to be an authority on the first principles of law. But I have been privileged to acquaint myself with many who are, and I stand on the shoulders of giants as I (hopefully not inadequately) describe what I have learned from them. I encourage the reader to delve into authors such as Aristotle, Cicero, Aquinas, Suarez, and Blackstone (among others) for themselves, but if that is not feasible then I offer this post as a modest summary.
Law is, according to Sir William Blackstone, a rule of action. All things act according to laws. Objects in the sciences will abide by certain rules when objects interact with each other in a certain way or when one chemical interacts with another.
Suarez claims that this scientific law is analogous to human law, but law as we speak of it requires a rational willing subject. Being rational things, humans will always act according to that which will make them happy. Aristotle goes into great detail in his Nicomachean Ethics on this subject. This is not the kind of happiness obtained only by pleasure. It is the deepest kind of satisfaction and fulfillment that one can possibly obtain.
Christians might object at this point by saying that our greatest purpose is to serve God even at the cost of death (which doesn’t seem like a very happy thing). But Christians would not do this if it were not for the promise of the greatest happiness one can imagine in a life with God in heaven for eternity. Christians would hardly devote themselves to God if God sought nothing more than human suffering and an eternity of torment. Therefore, the proper Christian view ought to be that we as rational beings will do all things (even things that are painful or selfless) for a greater happiness that comes when we live according to God’s will.
This pursuit of happiness is what composes natural law (a term which has been given many meanings by many authors) according to which humans as rational agents operate. It is simply inescapable much as the laws of nature are inescapable for water when it reaches its freezing point and ceases to be a liquid.
But Suarez draws a distinction between such laws and law as we mean to speak of it here. Law fully defined by Suarez is a common, just, and stable precept sufficiently promulgated. In other words law is handed from a superior to its subjects which requires rational agents that can obey such a thing. Furthermore it must be sufficiently be made known to the subjects.
If we are to speak of a good law we must look to the good of that subject of the law. It is good for humans to do that which will lead them to happiness, and because God is a necessarily good being He commands only that which is good according to our rational nature. Therefore, the law is binding and handed down as it has been decreed by a superior. Removing God from the equation while keeping all other things equal does not necessarily change that which is morally good for humans as our nature does not change (and accordingly that which is good for us does not change), but it would remove any bindingness from that which is morally good.
Since we as rational beings are always aimed at that which will bring us happiness, it is theoretically possible that we could live a morally perfect life through a perfect exercise of reason. But I do not think a single sane person exists who would claim that they always act according to perfect reason. All too often, our reason is clouded through passions and desires that are opposed to our true good. This is what Christians would call a sin nature, and it is common to all of humanity.
Therefore, God has handed down that which is morally good through divine inspiration in Scripture (naturally many religions contend that they have the true Scripture, and that is a subject for another day). Since God commands that which is good and promulgates it in Scripture, that basis of divine law is formed.
Philosophers have long noted that humans do not live in isolation. They are inclined to form societies, and these societies are advantageous for the fulfillment and happiness of the individuals (otherwise individuals would not form them). We will call laws pertaining to societies civil law. Those who govern society must create laws promoting happiness and hedging against evils in a society which would allow one man’s pursuit of happiness to be obstructed by another – the antithesis of the very purpose of society.
Based on these considerations there is an important point to be understood: true law is revealed or discovered but never made. That which is good for mankind remains constant even if the details change. Patent law and speed limits may not have been relevant to Hammurabi and his subjects in the ancient world but at a fundamental level concerns such as protecting one’s property (including intellectual property) or discouraging public reckless behavior which endangers others are things that will always be relevant to human happiness in society.
We may also observe that there are essentially three spheres of authority that have to do with law. We observe the individual who has (and must have as a God-given right) the autonomy to pursue happiness, the church which observes and enforces the divine law, and the civil government which has authority over the individual in relation to society.
We should note that a person must choose to submit to the church and divine law before the church has authority over them. A Jew does not have authority over a Christian insofar as he may prohibit a Christian from eating bacon, or a Christian may not tell a Muslim that they are free to eat bacon. Each person must choose to which religion they will adhere (theistic or not) as one of the most basic choices in their pursuit of happiness. Just as God allows man to choose to follow Him, man must be free to choose which God he will serve. Therefore, no law can rightfully force a man to behave according to strictly religious law.
Different from religious law which people are free to adhere to or abstain from, people naturally partake in society and can hardly escape it even if they desire to. Therefore, society is naturally concerned with law insofar as it pertains to the individual in relation to the rest of society (as well as society in how it pertains to the individual). Laws for society should only be for the good of society as long as the good of that society contributes to the good of the individuals which compose it.
Naturally, there are a few more things we may deduce from these considerations. The first is that there can be no bad law because any law which does not lead to the happiness of the individual has nothing to do with that fundamental principle overarching human action which is the pursuit of happiness from which all law for what is good is derived. Therefore, a bad law has no bindingness as it is fully opposed to that which is good and accordingly commanded by God since God commands all things which are good and forbids all things that are not. A despotic authority may try to enforce corrupt decrees through coercion, but such things are not truly law and should never be followed.
Additionally, the church should never interfere in matters of the civil government and vice versa, but one’s religious views will inevitably affect what one perceives human goods (things which lead to happiness) to be. Therefore, separation of church and state should not be understood as preventing religious ideas from relevance in the public square as civil government requires an understanding of human good which is shaped through religious (theistic or not) beliefs. Rather, separation of church and state should be understood as a prohibition of religious and civil institutions from dominating one another in such a way that interferes with the proper functioning of either institution towards their ultimate purpose which is the good of humanity.
Conversely, a religious institution pursuing ends that cause civil evils or vice versa is fundamentally opposed to human happiness, therefore a society cannot tolerate bad religious laws, a church cannot tolerate bad civil laws, and an individual cannot tolerate either since bad laws are not laws to begin with as a person is only bound to do that which is good. To use extreme examples, no civil government could permit a religion to act according to a doctrine that every Sunday the congregation should go burn and loot local businesses as a protest to worldly materialism since such a doctrine would clearly violate the happiness of the society around that congregation. In the same way, no church could ever tolerate a law forbidding any and all meetings due to higher traffic flow on Sunday mornings.
Finally, it should be noted that any law or set of laws which is rooted in the preservation of happiness according to the fundamental, unchangeable nature of humanity cannot become outdated. So long as murder, theft, or despotic tyranny lead to human unhappiness, laws prohibiting such things will never become antiquated
My hope is that this survey of the first principles of law has been helpful, and that it may serve as a common ground for all discourse on public policy. If we as a country can agree upon these first principles of law, then we can move forward with clarity and prudence.
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