Law has its Limits

Americans overwhelmingly respect the law.  You might not believe that if your opinion is based on the evening news, but it is true.  The vast majority are law-abiding people who believe that good law is the foundation of a good society.  And they are correct.  The law keeps us safe.  The law keeps us free.  No one should be above the law.  The law sets forth operating principles for our society.

The founders of the United States rebelled against a king whom they believed was violating their rights.  They justified the rebellion in legal terms, and presented a legal argument to the world.  They appealed not only to the legal precedents of their mother nation, but also to a higher concept commonly known as “natural law” (see the writings of Rousseau).  The Declaration of Independence is referring to natural rights when it states that everyone has been “endowed by their creator with certain inalienable rights.” 

When independence was accomplished, the Founders codified the most basic legal rights in a “Bill of Rights.”  When Americans moved into the wilderness and built new towns and states and local societies, they affirmed or created laws to preserve liberties.  When they did business locally or far away, they depended on the fair application of law to conduct their business successfully. 

Surprisingly, Americans have a reputation in the world for taking the law into their own hands.  This may be because we are descended from generations of pioneers.  On the early frontier, where little or no law enforcement capabilities were established, Americans had to take care of their own legal problems.  Far from being scofflaws as some believe, this experience engendered in the American people a sense of responsibility for upholding the law, even in the absence of normal authorities.

Our record is certainly not pure.  Some Americans appealed to the law to justify the existence of slavery.  Other Americans recognized the hypocrisy of that position.  They appealed to a higher law and forced an end to that unjust institution.

In recent years we have liberated nations from tyrants who abused their own people and threatened their neighbors.  Invariably as soon as the conflict begins to subside, we begin to teach them the concept and practice of the rule of law.  

I affirm and applaud our respect for law, which is the foundation of any just society.  A legal structure created our government (the Constitution).  A body of law exists to ensure the functionality of our society (criminal law).  Another body of law exists to ensure public accord and prosperity (civil law).

Yet, despite our admirable history and all our good intentions, law has become a problem in the United States of America. 

The root of the problem is failure to comprehend the paradoxical relationship between law and liberty.  With the exception of a few anarchists who can never seem to work together anyway, all Americans seem to realize that too little rule of law will result in chaos, a state of perpetual mayhem and insecurity in which might makes right, the strong oppress, and individual rights do not exist.  What most of us fail to realize is that the opposite condition, too much law, is also detrimental to freedom.  When laws begin to perpetuate every aspect of life, we find our freedom strangled by regulations which determine our daily behavior, limit our options, and make us prisoners in a system that cares little for our individual needs or desires.

We misunderstand the role of law in our lives, which is to enhance freedom rather than to prohibit benign behaviors or describe how we must live our lives.

We misunderstand the scope of law, which should be a framework to set limits rather than a prescriptive schematic detailing our life experience.  

We misunderstand the extent to which law is able to control our society.  The power of the law, and its ability to influence, are limited by all the factors which influence human behavior.  (See the story of King Canute, who ordered the tide not to rise.)

We fail to grasp that law, which is necessary for a secure, just, and prosperous society, is not sufficient in the absence of virtue, wisdom, and courage to create that society.

We misunderstand the intent of law, which is to protect liberty and diversity rather than to create compliance and conformity, which is to resolve conflicts of opinion but not to eliminate differences.

We mistakenly conclude that since legal decisions tend to be all on one side (for the plaintiff), or all on the other (for the defendant), that all of life must be black-and-white, right-or-wrong, all this way or all that way.  Real life is not like that, and when we operate in accordance with the mistaken belief that everything must be either good or evil, we set the stage for irreconcilable conflict and endless dysfunction.

Because we misunderstand the law, we try to fix all the problems of our society by means of the law.  We create a law to address every situation.  We fail to realize that continually adding new layers of law and regulation is not only unnecessary but counterproductive.  We lack the wisdom to understand that some problems cannot be solved by appeal to law.  Can we pass a law to make everyone love one another and live in peace?  It's been tried, and it has never worked.  In the end, we make so many laws that we stifle our own freedom.

The law, separate from a human context, is no more valid than a computer code or a set of directions for assembling a bicycle.  Human wisdom and compassion are necessary to prevent the law from becoming an instrument of oppression, or a tyrant in its own right. 

 

How can we restore the law to its rightful role in our society, as the strong social and cultural support for liberty that it should be?  First, we must realize that we are in control of our own destiny.  We have intelligence if we choose to engage it.  We have the ability to modify or cancel laws that have been misapplied or wrongly created. 

Many sincere people in recent history have argued that individuals do not have the right to oppose or violate laws with which they disagree.  In truth, the social contract demands that all members of a society comply with the law or face sanctions.  To make the law subject to individual approval is to make the law completely ineffectual.  By the same logic though, individual laws must sometimes be examined to see whether they are having the proper effect, creating the social environment that was intended.  After all, law does not exist for its own sake.  It exists for the sake of the society, and the people.  If the society and the people reject a law, it will be rejected.

Similarly, individuals have the moral (if not the legal) right to reject a regulation when it conflicts with a higher law.  When an immoral regulation is in effect, people of good faith have not only a moral right but a moral obligation to oppose it.  (See the writings of Thoreau for more about this.)

Sometimes the law may have stood in the way of liberty and justice, instead of supporting those two goals to which our free society aspires.  If so, we can prevent that from continuing to happen, if we have the wisdom and courage to act.

Sometimes we have to let go of precedent, let go of technicalities, let go of entrenched ideas which may not be conducive to the wellbeing of the people, and revisit that elusive quality we call “common sense.”  Sometimes we may have to realize that not every situation has a hero and a villain, a winner and a loser.  Maybe we shouldn’t make laws to force winners and losers when in reality (with thanks to Dave Mason), “there’s only you and me and we just disagree.”

A few final thoughts... 

• Law is not important in and of itself.  Law is important because of the morality it defines (if you are an idealist) or the results it produces (if you are a pragmatist).
• The Rule of Law is necessary if we are to have a safe, just, and prosperous society. 
• Without virtue, wisdom, and courage, law does little good, and can actually be twisted into an instrument of oppression.
• The people define and create the law.  The law will be only as effective, authoritative, and just as the people who create and uphold it. 

To bring this to a close for now, I present a quotation to inspire thought.  As usual, Thomas Jefferson said it best:

“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.”

Gryphem

[Note: This post was origninally presented with the title, 'The Law and Common Sense (Part 1).'  As the narrative developed, it became less about judgment than about unrealized limitations and implications.  Thus the title change.  What had been planned as Part 2 is distinct and will be presented as a separate post.  - G]