Monday, October 12, 2009

Philosophy: The Role of Law

I have desired for some time to write up a summary of my basic conception of the role of law, and intend to lay it out in this post1. This conception is, essentially, that law functions to create an environment that allows for the flourishing of human life2. Note that this is distinct from creating the flourishing of human life, which I take it to be impossible for law to do.

I come to this conclusion first from the position that the aim of human life is not mere survival but flourishing3 and that part of this flourishing is to be a morally good person. Thus, the life of a murderer would be one that falls short of what it is to be a flourishing human.

Further, I understand that law (and the power that enforces it) cannot make a person good. Essentially, a person is good only in so far as the impetus for their action is an internal (good) motive. Thus, a man who walks around wanting to murder everyone in sight, but is prevented from doing so only by the power of an external force, cannot be said in any real sense to be good. Given a situation in which the law is strong enough in its force that people become mere automata acting rightly only through power of law’s command, no one would have the freedom to actually become good. Thus, no one could fully flourish.

In contrast to this, I also take it that absent any governing law there is no room for individuals to be moral. Survival itself becomes the only reasonable end for any individual because being a good person in such an environment could only lead to death. Thus, those who aimed for a flourishing life and thus behaved morally would die (in terms of that society, cease to exist) and those who aimed for survival would act immorally and thus not flourish.

Given these two understandings, a general rubric presents itself for how law should function. Essentially, law should only exist in such a degree as to create the bare minimum environment necessary for individuals to aim at the flourishing life and still survive. Laws are thus to be the bare moral scaffold of a flourishing human life. Anything more than this restricts the freedom of individuals to achieve the real moral goodness necessary for the best in human life, and anything less would not allow for them to even aim for this4.

1. This is an outline and not necessarily a full argument. You can naturally question me on any of the points I make, but arguing each of the points is outside of the scope of this post.

2. I get this term from the neo-Aristotelian ethics of one of my current professors, but it expresses an idea I have had for some time now.

3. This can be conceived of either religiously, and I would obviously take the religious position that the flourishing of human life is dependent on being what a human is meant to be, which is to be the Image of God. It does not necessarily have to be conceived of religiously, however.

4. I think this presents a very strong argument for the need of more localized government. Just how much law is necessary for moral flourishing is dependent on the needs of a given community, and this can only be determined by those with direct access and understanding of that community. A body of the size of the entire United States, for example, ceases to be a community, but becomes rather a beast driven by forces of sociological momentum stoppable only by totalitarian measures. 


  1. I think (and that's a big if here) I understand what you are saying. This kind of stuff usually goes over my head or I need a starship run by Patrick Stewart to dumb it down for me. . .

    In reference both to paragraph 3 and footnote 4, what about war? Someone who is just 'following orders' and kills (which, in war, at least for the winning side, is considered legal in certain regards) does that basic 'scaffold' thus breakdown in its purpose? Because at that point the person is following law (under a regime's instructions) but maybe not moral law.

    Does that make sense or am I way off?

  2. War is a tricky subject, and is admittedly one I haven't fully integrated into my philosophy regarding the role of law. I have inclinations towards pacifism, but I also understand that we don't live in a paradise and that war may therefor become necessary. So yes, your question makes sense, but it is something I would have to think about more.