31 May 2011

Lawyers, Morality, & Law

Recently, I asked a number of fellow layers a simple question: is the law a reflection of morality or merely a way to organize society? Every single one, from those who are pragmatic, non-philosophical types to those whom I perceive to be deeper thinking, more theologically oriented answered that the law is there to organize society.

That's more than a little disturbing. Law which orders society, but which is divorced from morality is dangerous. A society can be perfectly ordered and extremely well run and do terrible things. Imagine a United States wherein anyone who has not been employed, in a taxable job, for 6 months out of a year is put on probation and if they are not employed for 6 months out of the next year they are executed. It would have several salutary effects. The would be far fewer people on the dole. There would be a strong incentive for people to be productive. Additionally, since people would have a strong incentive to not work under the table, a large portion of the underground economy would surface and be taxed. And all it would take is to kill those among the 13.7 currently unemployed in the U.S. who can't find and keep a job.

I understand the impetus behind the lawyers' thinking. We see the flaws in the legal system day after day after day. Day in and day out, it is difficult seeing morality through imperfect statutes, enforced by less than perfect officers, manipulated by lawyers, and interpreted by flawed judges. It is so much easier to put one's head down and say they are just rules, nothing more and nothing less. The very fact that we see the flaws in the trees leads us to deny that there is a forest.

And yet the forest exists.

1 comment:

Matthew Kensky said...

Mr. Lammers:

You do a good a good job of explaining why law divorced from morality is not good. But I reject your question as presenting a false choice. It's definitely not a "simple question".

IMO, I would go so far as to say that nearly all laws organize society, while (mostly) being rooted in morality. Laws tend to require, encourage, discourage, or prohibit certain behavior- this orders and organizes society.

At the same time, most laws reflect some morality (though the question of what is moral is not a simple one). We'd agree that thou shall not murder and thou shall not steal are clearly rooted in morality. Is making sure you have a valid license a moral issue? Perhaps- in the Bible, Romans 13 says that one should obey the government. Do seat belt laws reflect morality? Not so much it seems, other than one should respect the laws.

Finally, the fact that you prosecute laws that are both malum in se, as well as laws that are malum prohibitum, shows that the law serves both purposes (ordering & reflecting morals).

You say it's disturbing the answer given by fellow lawyers, when you asked your "simple question" (is law a reflection of morality, or merely a way to organize society). Go back and ask them "should the law be divorced from morality?", and I have faith your fellow lawyers will give a better answer.

Thanks for an interesting blog.

-Matthew Kensky
Fairfax, VA