We didn't do much today, but I did get my first assignment. I have to write a two page essay answering the questions, "What is the law?" Needless to say I got very excited. Anyone who knows me knows these kinds of question are things I love spending hours debating.
After class I went straight into the Law Library (which is awesome and makes me feel like a real scholar) and started my essay. The finished product appears below. I would love any comments, and if you see any typos or misspelled words I missed please let me know.
'What is the Law?'
The law is a thing about which everyone has an opinion, but no one quite knows what it is. The popular refrain is, “there ought to be a law.” Yet, if you ask someone to define the purpose and nature of the law the most common answer you will get is a blank stare. People are eager to appeal to this strange and mysterious outside force, but have a very limited understanding of its purpose. What people want is for this outside force to look after what they see as their interests, often at the expense of others.
Aristotle said, “Man perfected by society is the best of all animals; he is the most terrible of all when he lives without law, and without justice.” One wonders if, getting a good look at our litigious society, Aristotle might want to revise his statement. More over, what if he had seen some of the uses the law has been put to in the 20th century: the Nuremberg Laws, Jim Crow, and Apartheid are only the worst of the tragedies inflicted in the name of the law.
It might be argued that it was for cases such as these that Aristotle added justice, in addition to the law, to his requirements. Yet, how shall we measure justice? Is it to be defined by those with the greatest amount of power, so that wealth and might are the prerequisite? Is it to be defined by majority vote, so that a tyrannical majority may have its way with the minority? The concept of justice must be understood if law is to be understood, but it can not be understood outside the context of law.
The law is man’s attempt to fight without fighting. You see something similar when you watch competition in other animal species. When fighting a rival of the same species, for food or the right to mate, there is often a great deal of violence and one of the contestants inevitably looses, but there is rarely any permanent damage to either party. Rams may but heads, but they do not break necks. This is because it is evolutionarily disadvantageous to engage in competition what will permanently damage your ability to live and reproduce. If you were to engage in such extreme forms of competition there is the distinct possibility that any victory achieved may be Pyrrhic.
You can see the same thing with humans. Over our long history we have found that settling disputes with blood feuds and violence is prohibitively expensive. An individual may triumph for a day, but there is no guarantee of long term security. Therefore, humanity appealed something outside of itself in-order to determine what is right and who, in a dispute, should be victorious. This thing aids in restraining our baser instincts. Furthermore, it creates a level of security for both the winners and the losers which could not exist in a contest of strength.
This quickly leads to the problem of how to make the individual parties accept the rulings of this outside force. The quickest and simplest answer is to arm this force, here-forward called the law, with sufficient force so as to compel compliance. This will be quickly found to be insufficient, though the law does need force behind it. If the law must use force to enforce all of its decisions, it must be stronger than all parties, that dislike its rulings and will not willingly abide by them, combined. If we rely solely on force, we will quickly use unsustainable levels of resources defending the law and still be left open to the problem that necessitated the creation of the law in the first place, namely the possibility of contests being won and lost by the strength of arms.
Our goal therefore becomes to make the law just so that it will have the greatest possible currency among the people. In so doing we fulfill Aristotle’s second requirement, which is justice. In this we begin to see Justice's shadow: a system which treats all equally and provides sufficient protections, so that no one can dispute the fairness of the law. William Roper asked Sir Thomas More, in ‘A Man for All Seasons, “So, now you give the Devil the benefit of law?” To which he responded:
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down... do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
The justice of the law demands that we give our enemies the same protections that we would want for ourselves, not for their sake but for ours.
We therefore return to where we began: attempting to join mankind with law and justice in-order to make him the best of all animals, by putting him in a civil society. To do this, we must have a law whose ethos is justice. The law, therefore, is our search for a comprehensive set of rules which can govern man’s relation to man; whose justice is so perfect that these laws command the assent of all men.
Here's a picture of the Law Library!
