Law is something most people suppose must be written, either by man, by god, or by some governing body. I would like to show that it is impossible for law to be constructed by any person or body of people. When I say law, here, I mean rules that should justly govern human conduct.
A law is something that a person has amoral obligation to obey. It is distinguished from a mere rule by the moral aspect which is carried by the law, but not necessarily by a rule. A rule can be imposed for the purpose of achieving a desired end, but not necessarily an end which is necessarily morally good. At a party, for example guests may be required to come wearing certain kinds of clothing in order to achieve the end of a desired aesthetic theme at the party. In a game rules are imposed in order to make the game interesting, challenging and fair. There may be no moral aspect to these rules, but they do serve a purpose.
Law, on the other hand, serves a purpose which is not merely desired by some particular person, but its violation will necessarily result in a undesirable and potentially tragic state of affairs for some person, the end to which a law is aimed is one that is greater than just a coincidental or capricious desire. A rule can be said to be directed to an end that is deemed by some person or group of people to be good. A law is directed to an end that is, in fact, good.
It could be said that this idea of what is, in fact, good is ineffable or, perhaps, illusory. It may be the case that it isn’t possible outline or fully describe what is the good, but, on a practical level, when we need to know whether or not a particular thing is good or not, we usually have little trouble,although there certainly are the difficult exceptions. And when an act is evil, we rarely have trouble recognizing it as such,especially when the act is performed on us.
Legislation has been justified by enough philosophers by its supposed necessity. It has been asserted that, without it, lawlessness would prevail and all would suffer as a result. This is where I will part with the common wisdom, because the common wisdom, here, is tragically flawed. If it is the case that, in the absence of legislation, people cannot do what is right, then the first piece of legislation could never be right. If the first piece of legislation is right, then it must not be the case that, in the absence of legislation, people should be expected to do wrong.
How can just legislation come about unless people, by and large, understand and favor justice? Who can write just legislation? Anyone? Everyone? Certain wise ones? If it is only certain wise people who are capable of writing just legislation,how can we be sure that those people do, in fact, write it? By a vote? But is it everyone who can recognize who these certain wise people are? If so, then why suppose that everyone is not wise enough to write the legislation themselves? Are we to believe that only certain wise ones among us are qualified to write legislation and that they will necessarily emerge and write it for us, or that we are all qualified to select the proper legislators, yet unqualified to write it ourselves? If we are qualified to write our own legislation,then what need is there for it to be written?
The fact is that any adult who is of sound mind, that is to say mature, not ill, and capable of experiencing empathy, is capable of recognizing justice and injustice when it is seen. We all know this, and we act on the knowledge. We appeal to the counsel of friends when we are involved in a dispute;we appoint juries, as a matter of practice, as the ultimate decision makers when we need to know if crime has been committed. We know injustice when we see it, and we know right form wrong. What are we doing, then, when we write legislation? Are we making law? If the law is something that ought to be enforced, then it can’t be something that we can make. For that to be possible it would need to be the case that it is possible for us to bring about moral obligation by fiat. Moral obligation, however, seems to be something we recognize,not something we can create on a whim. Surely we can all imagine legislation that does not create a moral obligation. Does legislation requiring strangers to apprehend a suspected slave impose some moral obligation on those strangers? Law, if the concept of law is to have any meaning, cannot be the same as legislation. Legislation has more in common with a rule then with a law.
So natural law is the ever present moral imperative which compels one to honor the sovereignty that all other people enjoy over their own person and property. Natural law is known by all rational adults. There’s no need to discuss it’s source here. We can leave that to other philosophers. What we do need to know is that it is real. No rational adult would deny that it is wrong to murder another person, or to rob another person. To do so would be to betray one’s own psychopathy. No rational adult would deny that it is wrong to take something, by force or by stealth from another person. Even something so subtle as to take another person’s place in a line is understood by all rational adults, in every culture, to be wrong. To do these things is not a mere failure.Murder, theft, robbery, rape, torture, fraud, these things are understood as violations of what we know to be law. Laws against these things no more need to be written than laws requiring us to breathe and eat need to be written. Law must be enforced. But the idea that it must be written is as absurd as the idea that we must be told not to sleep in fire.
Since law is understood by all, what is legislation? Why do some people propose to write rules, and call them law? Do they suppose that people can’t perceive law? Why then,should they suppose that they can? Is it that they find natural law insufficient? Once we consider the fact that, among the first legislation to be written for any society involve a requirement to give money to the ones who write the legislation, we should suppose that they must find natural law insufficient. Is there some natural moral principal that would require every one or most people in a society to routinely give some portion of their earnings to one person, or one group of people? Surly not.
Since natural law is sufficient for maintaining peace and order in any society, the purpose of legislation must be to enforce, as if they were law, the rules, or desires of one person or group. Since such rules are not law, there is no good reason to believe that those rules will always be in accord with law. If they were always to be in accord with law, there would be no need for them. Since the authors of legislation seek to establish the legitimacy of legislation in the good, the right, that is, real law they must know that real law, that is, natural law is sufficient to establish the legitimacy of legislation, they must also understand that natural law is sufficient to establish the legitimacy of anything that is good. And so, they must understand that all legislation is superfluous. Yet they persist with it.
They must also know that to enforce something other than law as law must confuse and confound what law in fact is. Yet they persist with legislation.
If law is enforced, order and peace will abound. If something other than law is enforced, something other than order and peace will abound. It must be the case, then, that those who enforce something other than law prefer that something other than order and peace abound. The fact that enforcing something other than law serves to confuse and confound what law is must be a convenient fact for anyone who seeks to advance something other than order and peace.