Posted by: theoptimisticconservative | July 17, 2010

Reclaiming the Meaning of Law

MadisonConservative at Hot Air and Pajamas’ Zombie have each put down a stake in the abortion debate this week, and one of the most important things their posts highlight (unintentionally, I think) is how different our understanding has become, over time, of what it means to deal with something through the method of law.

Zombie starts out praising the moral consistency of Sharron Angle’s position on abortion, which is that it’s always wrong, even in the case of rape or incest.  If abortion is murder, then nothing can make it not-murder, in a moral sense. (Even the extremely rare case of the baby being a threat to the mother’s life would also, presumably, be covered by this principle.)  Life is life, and a baby in the womb is, by definition, innocent life.  The position of many Americans that abortion should be prohibited except in the case of rape or incest is, in Zombie’s formulation, “full of crap.”

MadisonConservative, struck by Zombie’s argument, admits to having once held that “cookie-cutter,” full-of-crap view himself.  His ultimate thesis, however, is that “pro-choice” is a term that has been hijacked:  it really means “pro-abortion,” in terms of actual political positions today, and it needs to be reclaimed for those who favor overturning Roe v. Wade and sending the whole issue back to the states.  (Something I agree with, incidentally.)  Some states may permit abortion, and presumably others may prohibit it; but the point about the expression “pro-choice” is that it should refer to a political perspective held by voting citizens in a contest they decide, rather than signifying an a priori principle – like Roe v. Wade’s appeal to a “privacy” right – that is actually anti-choice, in that it preempts the citizens’ political prerogatives altogether.

Of the two energetic and interesting posts, I think MadisonConservative’s gets closer to treating abortion as an issue of law, in the classical Western sense.  But it starts out accepting Zombie’s premise that it is inconsistent for a citizen to consider abortion absolutely wrong, and yet be willing to live with exceptions in law.  That concept is at the heart of our modern problems with an overweening state and a disadvantaged citizen, and it bears calling out.

One of the West’s signature achievements, embodied most successfully in the framing of the U.S. Constitution, is the premise that law is a pragmatic tool for governance, but it is not a set of rituals or expressions of belief that have a transformative power for the citizenry.  The Western idea asserts that law should have moral motivation – we shouldn’t write it with evil intent – but that it is not expected to transform outcomes in human society to the specifications of a moral code.

The reason it’s not expected to is that law is a human system, administered by humans, and therefore is inherently limited and subject to error.  One of the chief limitations of law is that it cannot make us good.  A corresponding limitation of law is that it is a blunt and negative tool:  it can punish, deter, and bribe us, but it cannot inspire or console us.  Law is enforceable only as a lowest-common-denominator statement of public intent:  a set of thou-shalt-nots, with a few material thou-shalts thrown in (e.g., thou shalt be insured if thou wishest to drive).  It cannot be enforced – it cannot produce the desired result – as a tool of moral self-improvement or community enhancement; when we try to use it that way, we fail.

Law is, again, a tool, not an embodiment of moral aspirations.  In this Western, classical liberal concept, its most important practical characteristic is being executable.  Law isn’t used to proclaim what we believe, what we wish, or what we’re annoyed by; it’s used to produce order and regularity in community life, through processes that can be replicably administered over and over again.

When we want to discourage murder, we don’t write a law that says “Murder is bad” or “We hate murder” or even “Thou shalt not murder.”  We write a law that defines murder for the purposes of law, and sets punishments for those found guilty of it.  We hope the threat of punishment will deter murder, but we also understand that it sometimes won’t, which is why we prepare in advance to punish it.  We go into the process of law knowing that what we hate, hope to discourage, and want to prevent is likely to happen anyway, but that administering our system of law is the imperfect best we can do to minimize its occurrence.

That has been the understanding of law that has made the Judeo-Christian West uniquely hospitable to liberty.  Since the late 19th century, however, modern philosophical movements – of which Marxism has been the granddaddy, in the realms of politics and economics – have reverted to the historically common practice of treating law as a means of implementing various secular “Kingdoms of God” on earth.  For those movements, law is precisely a method of proclaiming an aspirational morality; it’s just that in their modern case, the aspirational morality derives from collectivist ideology.

One of the most fundamental ideas of Western classical liberalism is that the state’s central government can’t pretend to adjudicate, as if for the ages, all the questions of right and wrong that arise in the consciences of men.  This is why America’s Framers were so careful to place checks on the incorrigible tendency of a central government to take on that heroic project.  But collectivist movements see it the opposite way.  As far as they’re concerned, central governments that are out crusading with laundry lists of hortatory moral law are doing exactly what central governments exist for.

Americans have largely lost sight of how deeply collectivist and anti-libertarian it is to talk about public issues as if writing detailed laws – laws intended to coerce everyone to a single solution – is the only way to address them.  And that brings me back to Zombie’s discussion of Sharron Angle and abortion.  I suspect that Angle’s morally consistent position doesn’t mean that she wants to rewrite the law – either in Nevada or at the federal level – to punish a 13-year-old who has an abortion after being raped by her father.  I’m not just pulling this out of my hat, either; Angle’s words quoted here suggest as much (and suggest, indeed, that she might not even insist that the 13-year-old carry her child to term).

It’s one thing to state what you believe about the morality of abortion.  It’s another to formulate what laws you either think are best for your community, or at least would be willing to live with.  And these latter are the terms in which we have to talk about this as a political issue.  What matters to the prospects of our laws is translating moral positions through the methods of law.  To be meaningful – to qualify as the foundation for the “rule of law” – law must first of all be executable in a practical sense.  Proclaiming that abortion is wrong in all cases is not an outline of executable law, any more than proclaiming murder to be wrong will produce a concrete result unless you define acts of murder, hire police, elect yourself a district attorney, set up a jury system and some courts, build a prison, and decide whether you want to incarcerate or execute.

We need to be clear in our minds that in her discussions of abortion, Sharron Angle has not, as far as I can tell, enunciated a specific position on executable law.  That doesn’t mean she doesn’t have one.  But it does mean that her moral position on abortion isn’t the equivalent of one.  Stating what your moral beliefs are isn’t the same thing as outlining the laws you’d like to see adopted and enforced.

Americans used to be raised to understand that.  John Adams’ famous statement – “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other” – is a profound reflection of that concept:  something unique to the Western classical-liberal idea of law.  Law has its inherent methods and limitations, and is in its proper place when it is a servant of a moral people, not their master – and certainly not their moral measuring stick.

We need to get back to that understanding, and away from the collectivist mindset we too often adopt today about law’s meaning in community or national life.  We should not expect more of human law than it can deliver, or talk about it as if all our moral positions must be perfectly reflected in it, lest we be hypocrites.  Those who understand that law will inherently be an imperfect translation of the moral precept – e.g., that unborn life is sacred – are not being inconsistent, they are being classical Western liberals in their understanding of law.

Cross-posted at Hot Air.

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Responses

  1. Speaking in generalities; pro-life advocates fundamental premise is that ‘personhood’ occurs prior to birth. That it’s a baby not simply a fetus because it’s a person prior to birth.

    Pro-‘choice’ advocates premise is that personhood occurs at birth. That, prior to birth, it’s a fetus not a baby because being born, the act of separating from the mother, starts personhood.

    Neither side can scientifically disprove the premise(s) of the other.

    Since science is currently mute on when personhood provably starts, pro-life advocates are reduced to supportive rationales for their premises based in religion or personal opinion.

    Neither religious rationales nor personal opinion are sufficient to impose laws upon others, who do not share pro-life’s premises, which lack supportive empirical evidence.

    Thus until science can settle the disagreement, abortion must be left up to the individual woman’s conscience, otherwise laws compel unconstitutional restrictions upon the individual’s liberty and pursuit of happiness in their life.

  2. “Personhood” is a moral and cultural category–science has nothing to do with it. Assuming we can construct legal categories based on scientific definitions of personhood or anything else would destroy the entire notion of the rule of law defended in this post. If the Supreme Court can overturn state laws because they are unsupported by “empirical evidence,” then the Supreme Court has become the arbiter of “scientific proof.” If only “empirical evidence” can justify “imposing laws upon others” then there will be no laws because in the area of human life we can never meet a rigorous scientific standard of certainty. The people of a particular community can be sure enough that abortion is killing to forbid or limit it.

    • Your ‘personhood’ is an existential reality, which exists outside of any moral or cultural category I, you or anyone else might assign it. I think, therefore I am.

      That distinction exists quite apart from any social identification.

      Thus science can’t avoid interest in a fundamental aspect of reality.

      Please enlighten us as to how science identifying when personhood begins would ” destroy the entire notion of the rule of law”…

      Constitutionally SCOTUS can only legally overturn laws which violate the Constitution, in all else it is entirely helpless.

      A “rigorous scientific standard of certainty” is, in many matters not so difficult to meet; for instance, you may not murder another or take without consent, the lawful property of another.

      The ability of the majority to impose its will does not equate to the constitutional right to do so, regardless of public sentiment. The majority of people in a community may be “sure” that abortion is killing but without science confirming their view, they are relying solely upon intuition and religious belief. And intuition and religious belief, no matter how sincerely held, are based in personal opinion.

      On the issue of free speech, the English philosopher John Stuart Mill stated,
      “If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.”

      As long as science remains mute, the same principle applies to abortion. You, nor whatever majority may apply, may not constitutionally impose its personal opinions upon others. And if you do ‘vote’ to do so, then you are supporting the rule of the mob over the rule of law and have taken upon yourself the role of arbiter of what constitutes sufficient ‘proof’.

      “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” Thomas Jefferson

      “I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.” Thomas Jefferson

  3. Optimist, I think it’s great when you do these discussions on law and classical Western liberalism. Most of us don’t have a good background in Western liberalism. It took me a long time to realize that some of the positions of my church(Roman Catholic) could and would if followed to their extreme obliterate the very safe guards that the U.S. Constitution set up to insure a rule of law that would allow always the free speech of any religious body. Keep up the education for the rest of us.

  4. There is no thinking or experience outside of moral and cultural categories–language is a cultural category.

    There is no scientific certainty regarding murder and theft–there may be scientific certainty regarding life and death, or the physical location of an object, but not the meaning of a particular death or who controls that object. Law is also a cultural category.

    If Constitutionally SCOTUS can only overturn laws that violate the Constitution, what does science have to do with it at all, since the Constitution says nothing about the role of science in law and policy making? Nor does the Constitution say that law can’t be based on intuition, personal opinion or religious belief.

    The danger is that if personhood is decided by science, then in practice it will be decided by scientists, who will then become our rulers, and the Constitution will become irrelevant.

    The Constitution clearly doesn’t protect the right to an abortion, otherwise someone would have noticed that prior to 1973.

    • 2+2=4 is a concept/thought and even experience (2 apples + 2 apples in the hand) that exists quite outside any moral or cultural category, does it not?

      I’d challenge you to find one scientist who’d disagree that the scientific evidence (eye witnesses, a perpetrator who willingly surrendered and a voluntary confession) doesn’t fully support the charge of murder in the case of Mark David Chapman “who murdered former Beatle John Lennon on December 8, 1980. He committed the murder as John Lennon and his wife Yoko Ono were outside their apartment in New York City. Chapman shot Lennon four times in the back, outside the Dakota apartment building. He remained at the scene until arrested by police, and pleaded guilty to the crime. He was sentenced to a prison term of 20 years to life and remains incarcerated at Attica State Prison in New York”

      “If Constitutionally SCOTUS can only overturn laws that violate the Constitution, what does science have to do with it at all, since the Constitution says nothing about the role of science in law and policy making?”

      Science may offer evidence in support of and thus moral justification for laws. Scientific evidence would not be the sole determinant in determining the constitutionality of a particular law but it might indeed play a role in determining the justification or lack thereof of a law.

      “Nor does the Constitution say that law can’t be based on intuition, personal opinion or religious belief.”

      No, it does not, which in no way absolves the majority from refraining from imposing laws upon others based solely upon personal opinion. Especially when significant numbers of their fellow citizens disagree and when those laws impact significantly upon other’s pursuit of happiness.

      “The danger is that if personhood is decided by science, then in practice it will be decided by scientists, who will then become our rulers, and the Constitution will become irrelevant.”

      Firstly, science won’t ‘decide’ when personhood begins, which would be an opinion. Science may someday identify when personhood begins, which to be scientifically valid would have to be provable beyond doubt.

      Secondly, never fear ;-) pencil pushers and button sorters, (Heinlein’s characterization of most scientists) will never possess the testosterone to impose their will for very long.

      I quite agree that the Constitution confers no ‘right’ to abortion and personally abhor the practice. I simply cannot agree that my personal opinion is a just basis for imposing that opinion upon another.

      • Through culturally constructed means, like science and mathematics, I do agree that we can discover truths that transcend culture, but the disagreement between us here is that you seem to identify “personhood” and “murder” with physical attributes and acts while I see them as evaluations placed upon those attributes and acts. Scientists can distinguish the human from other species, but “personhood” is a concept assigning worth to the individual, and that can only be done within cultures. Scientists could determine that the bullets left Chapman’s gun at such and such a speed and entered Lennon’s body, causing physical changes in that body which can be ascertained very precisely, but we call in murder as part of the system of distinctions we make between justified and unjustified killing, between different degrees of responsibility in killing, etc. A scientist can only minimally help us distinguish between manslaughter and murder–ultimately, that distinction depends upon our judgment regarding intent and context.

        We seem to agree that the public is free to take science into account but also, if I follow you, they are free to weigh the findings of science in accord with their own judgments–as, indeed, how could they not? You now refer more, I think, to the wisdom of the majority pursuing certain kinds of laws that arouse substantial resentment in minorities, than to the right of majorities to pass laws based on personal opinion, faith, and so on. I think we agree, to a great extent, here as well: certainly, laws forbidding abortion should work to achieve consensus beyond the 51% needed to pass them, should very seriously consider generous exemptions for rape, incest, and the health of the mother, and those supporting such laws would help their cause by providing alternatives (like adoption, or religious communities which help single and unwed mothers) to abortion for desperate women who find themselves with unplanned pregnancies they are ill-prepared to support. And we should all be ready to recognize and engage the views of citizens who disagree with us.

  5. “it really means “pro-abortion,” in terms of actual political positions today, and it needs to be reclaimed for those who favor overturning Roe v. Wade and sending the whole issue back to the states. (Something I agree with, incidentally.)”

    I fully support this position too. Those who are pro-life might see the issue going back to the states as a means to an end. I see it as an end in and of itself. The pro-choice crowd would go apoplectic. I would take it a step further and even keep the legislatures out of the decision making process and let a state ballot question decide what to do with the abortion issue. I feel the same way for other “social” issues such as gay marriage. Get the state out of the citizenry’s life as much as possible. That’s the libertarian in me.

    There’s an added benefit though that putting social issues to the ballot box would have. It would put the political left in an untenable position. It would strip the left of some of the “hot button” issues that the left uses to further their (perhaps unintentionally) insidious political agenda. It would also pit them against the rest of the country when they scream bloody murder about how these “rights” that have been stripped away.

    A win-win of you ask me. If only we can get there.

  6. Taking away from the Left the power to use the courts to impose their political imperatives against the will of a majority of Americans would be a giant step forward, regardless of where the abortion debate ends up.

    Another giant step would be taking on the delegation of power to administrative agencies that is central to so much contemporary legislation. I’m not sure what it is, but I think there is a Constitutional argument to be made here as well: Congress should write laws that the Executive Branch enforces; Congress shouldn’t be able to write laws that establish agencies that will decide what the laws mean. They’re not really “laws,” in that case, are they? To use the example from the post, you have to write a law defining murder; you can’t write a law delegating to some bureaucracy the power to decide when one person has murdered another.

  7. “Congress shouldn’t be able to write laws that establish agencies that will decide what the laws mean. ”

    Very good point adam.

    • It’s ultimately nonsense.
      No executive can act without attempting to understand the reasons for actions and no law can be written broadly enough to effectively remove the necessity for interpretation .

      • Either there are laws or there aren’t. If there are, we can distinguish between law and enforcement, and insist both upon faithful enforcement and upon laws that can be interpreted in recognizable ways by good faith enforcers. For example: murder (one definition of first degree) is killing in the committing of some other felony. (As opposed to manslaughter, second degree, etc). If there is no law, then we are just giving people power to do what they want to other people (agency A will be in charge of punishing people involved in any way in the death of others). That’s ultimately Carl Schmitt’s theory. It’s an interesting one, but not the one the U.S Constitution presupposes.

      • Non-responsive, adam. My point was that a body of laws can never be enforced without interpretive thought from those entrusted with enforcement.
        Standards, expectations, and insistence are good but not determinative. They’re applied after the fact.

        (Unimportantly, that’s not the definition of murder one that was taught in my day).

      • My point was there needs to be a definition, I didn’t check the law books. More important, I’m not sure what would count as “responsive” here. Are there more and less faithful interpretations? If not, what are they interpretations of? Is it possible for two people to agree on something and then, down the road, agree on what they have agreed on? Or, more importantly, agree to the arbitration of a third party? If so, then we could identify “what they have agreed on (or to)”; if not, agreements would be impossible–if what we agreed upon is completely up to our completely individual interpretations, what would have been the point of the agreement? So, again, laws should be spelled out, rather than establishing agencies that will govern a particular area of human existence. To put it another way, there will always be interpretation but laws should be written so as to limit the sphere of interpretation (of the enforcers and judges) as much as possible, and to keep interpretation as much within consensual terms as possible. That was the original claim, and how the necessity for interpretation undermines it is still not clear. A law which spells out what fraud is so that 99% of people involved in business know what to do and what not to do is likely to be a good law, and if it has flaws (say it interferes too much with the market, or makes it too hard to prosecute actual cases of fraud) we would probably have some idea how to fix it; a law that says that the new Agency Against Manipulation of Prices and Information in Exchange will have the power to arrest or fine anyone who trades “unjustly” will be a very bad law. If this distinction makes sense to you, perhaps we could continue the conversation.

  8. We also need to be clear about who is extremist on abortion politics. Those who would oppose any regulation of abortion are the extremists. How do you justify opposition to late term abortion, or opposition to government funded abortion, when constitutional rights that are actually written in the constitution are subject to reasonable time, place and manner restrictions? How can anyone say you can regulate speech about political candidates — when the guarantee of freedom of speech is found in so many words in the First Amendment — and not be able to regulate one’s ability to suck the brains out of an eight month old fetus? Always remember that the right to abort one’s baby is not stated in the constitution. It is derived from the right to privacy, which is itself nowhere stated in the constitution.

    For the liberals, the strength of a constitutional right varies inversely with the specificity by which it is stated in the constitution.

  9. “Either there are laws or there aren’t. If there are, we can distinguish between law and enforcement, and insist both upon faithful enforcement and upon laws that can be interpreted in recognizable ways by good faith enforcers. For example: murder (one definition of first degree) is killing in the committing of some other felony. (As opposed to manslaughter, second degree, etc). If there is no law, then we are just giving people power to do what they want to other people (agency A will be in charge of punishing people involved in any way in the death of others). That’s ultimately Carl Schmitt’s theory. It’s an interesting one, but not the one the U.S Constitution presupposes.”

    That is much of the point I’m driving toward, adam — and why I went out of my way to outline what it looks like to make and enforce actual “law,” as opposed to proclaiming vaguely what we dislike and then appointing agents to “do something” about it.

    The “rule of law” concept took centuries for Western civilization to develop and regularize. It’s not an old-fashioned, outdated practice, it’s a remarkable achievement. It recognizes that there will always be individual discretion exercised in human-administered law, but it seeks to intentionally balance that with a very few boundaries that are unbreachable, and a slightly larger set that can only be breached with unusual and concerted effort.

    It explicitly disavows recourse, in its specific situational application, to inductive “revelation” from religious or ideological sources. There is no such thing, in quintessential Western law, as “people’s justice” or Party prerogative, wherein the appointed keepers of the quasi-religious canon of community morality are given arbitrary authority based on ideological insights.

    Nor, as you point out, do non-judicial regulators get to effectively make up the rules that govern our economic — and political — lives as they go along.

    There are things law can’t adjust for us, and perhaps the crowning achievement of Western law has been recognizing that. There is a marvelously telling example of the difference between the narrow rule of law refined in the West, over the centuries, and the theocratic Law given to Moses outlined in the Torah/Pentateuch: an example that illustrates a lot. The passage of the Law is found in Numbers 5, in which Moses discusses the test administered by a priest for a wife suspected of infidelity.

    The Law of Moses is a very clear and executable law, but as the passage on testing a wife for infidelity indicates, its ultimate reliance was on divine revelation for matters otherwise not empirically provable. The priest, as described in verses 16-28, was to perform a ritual in which the wife in question was required to drink “bitter water,” and her body’s reaction to it would prove or disprove her fidelity.

    Law that does not posit divine revelation — law like that of the modern West — recognizes the LIMITS of its scope in situations like this. We don’t pretend today to be able to discern unprovable truth about each other in situations like this. What we do, rather, is tacitly recognize the limitations of our capacities in that regard, and propose to regulate and punish each other as little as consistent with public order when it comes to these matters.

    As the John Adams quote indicates, this doesn’t mean that we don’t prize marital fidelity. In fact, at the time he wrote, I think every one of the American states had laws on its books about marital infidelity. But that was emphatically not for the purpose adduced in the Mosaic Law, which was to keep the people of Israel holy and set apart. The US, in its federal charter of unity, did not envision anything like that as a NATIONAL political project. It was very much integral to the ancient Israelites’ existence as a nation that they followed a very detailed moral law; but in the newly-formed United States, there was no reference whatsoever to social-moral law as part of our national constitution.

    The West had come to see law differently by 1789. Moral law was increasingly the province of local authorities — in the US, states, counties, and municipalities — because it was a matter of public order and therefore under the purview of “police powers.” It was considered less and less part of a nation’s role — in its existence as a “nation” — to embody a set of specific social-moral ideals. That “moral nation” concept, which has been prevalent over most of the earth for most of history, had been gradually adjusted to the American model of a “moral and religious people” and a limited law.

    So “moral and religious” are not eliminated; indeed, they are relied on: but it’s not the state’s law that is supposed to bring them about. This is a view of law that says it has no standing to ooze outside its explicit charter and start ordering us around in the interest of some ill-defined “higher purpose.” Purposes higher than what we have explicitly conferred on it are specifically denied to law, in the concept America’s Founders used to draft the Constitution.

    The scourge of slavery posed the greatest test to this conception of law in America; and I tend to be on the side of those who think minimal law, always keeping competing political forces in a balanced tension, essentially failed to correct the slavery problem through its own methods.

    But that said, it’s equally important to recognize that nothing was corrected by a bureaucratic, regulation-oriented big-government approach either. It took literal force of arms to adjust this existential threat to the Union. To my mind, that’s emblematic of the limitations of law in the face of patterns of evil in the human heart. We didn’t fail to get rid of slavery at the ballot box because we had “small government”; we failed because neither law nor regulation can change hearts on that scale.

  10. The only thing I’ll add is that what is at stake here is equality, in the sense of everyone respecting the rights of others and playing by the same rules of the game. To accept that we play by the same rules means accepting that there are umpires; accepting that there are umpires means counting on those umpires to apply the rules in such a manner that the spectators wouldn’t suspect them of being on one side or the other; and this, in turn, presupposes spectators who want to watch a fair game. Take away any element of this structure–too many spectators who want the fix to be in; too many umpires who prefer one side to another more than they love the rules; too many players willing to collude with the corrupted umpires and play to the spectators who prefer the fix–and the thing falls apart. Arguments to the effect that since laws always need to be interpreted we can’t really know what they are are aimed at corroding the rules of the game. (After all, there’s so much unfairness going in–some teams have more money or talent, or got off to an early lead–don’t we need to bend the scales back in the opposite direction?) Such arguments come from those who want a fix.

    I also agree that in many ways it does all go back to slavery–remarkable that that one flaw in the founding should prove so difficult to eradicate once and for all. But one reason for hope, I suppose, is that no individual, treated unjustly, really believes that the law that should address that injustice is just the history of its interpretations–the person treated or accused unjustly spontaneously believes in the reality of the law, and in its moral foundations.


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