Tagged: law

Review of Philosophy of Law and Jurisprudence (Part of The Great Ideas Program [Itself a guided reading of The Great Books of the Western World]) by Mortimer J. Adler and Peter Wolff

“When your old-ass parent is like, ‘I don’t know how to send an iMessage,’ and you’re just like, ‘Give me the fucking phone and let me handle it.’ Sadly, that’s what we have to do with our government; our parents don’t know how to use a fucking democracy, so we have to.” – David Hogg, Survivor of Marjory Stoneman Douglas schooting

Thank you, young man. I want to thank you for two reasons. First, thank you for delighting me. Second, thank you for saving me time.

Regarding delight: ask anyone who knows me and they’ll tell you that I love analogies. (Maybe you will understand me better if I write, “I ♥ analogies.” #celebrateilliteracy #icantreedorrite.) I love them because they somehow make communication crystal clear.

Regarding time: because you used an analogy, I do not have to ask clarifying questions to get at the heart of what you want to say. In other words, you have made my duty simpler. So, again, thank you for saving me time.

The analogy you provided is perfectly coherent, and undeniably clear. But do not think for a moment that through it you have demonstrated that you know up from down. I’ll grant that you are an expert at pressing “send”. Against my instincts, I’ll even grant that you are an expert at using a democracy. I will not, however, grant that you can see the truth.

The truth is that democracy is not something that is used, it is something that is built. More clearly, democracy is not the hammer, it is the house.

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Philosophy of Law and JurisprudenceThe preface to Philosophy of Law and Jurisprudence includes two true accounts of people stranded at sea after shipwrecks. Inevitably decisions must be made as to who should get to live at least a little bit longer. And, yes, cannibalism is sometimes the best option.

Against this backdrop, the authors present Western Civilization’s history of thought about the “law”. The book isn’t very long at all. Though, I will admit that to the likes of David Hogg and friends, compared to 140 characters, the work may seem unending. To old-ass parents, however, the ability to coherently, if not comprehensively, paint the broad-strokes of the past 2500 years’ discussion of Western thought as related to the law seems a pretty incomparable feat.

Beginning with Aeschylus, we are presented with the law as found in the infamous Greek tragedies as captured in fictions surrounding the Trojan War. In short, revenge is shown for what it is–unending. The only solution to the eternal problem is given in the institution of the court, the law.

Plato, in turn, takes the law and states that it has the purpose of promoting virtue, through persuasion and coercion.

Aristotle answers the new question which arises from Plato’s idea, which is, “What is this thing that men should be persuaded and coerced to be?” In short, after delineating natural law (killing is bad) from man-made law (speeding is bad), Aristotle offers that the man-made law must be for the common good and be properly made.

The Old and New Testaments are treated next, under the question, “Why is there any need for divine law?”

We next return to Aristotle and Plutarch, to include Solon, and see outlined the three functions of the law. The law must be made, enforced, and applied. Here we see the makings of our own three branches of government, the legislative, executive, and judicial.

Aquinas seems to be one of the first to notice that up until his time none of his predecessors really even didactically defined the term in question, that being, the law.

  • Plato, for example gets close but misses when he writes, “…there is one among these cords which every man ought to grasp and never let go, but to pull with it against all the rest; and this is the sacred and golden cord of reason, called by us the common law of the State.”
  • Aristotle, for his part, says, “law has compulsive power, while it is at the same time a rule proceeding from a sort of practical wisdom and reason.”
  • The emperor Justinian wrote, “Whatsoever pleases the sovereign has the force of the law.”

Finally, we read Aquinas’ definition, being, “[law] is nothing other than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”

Aquinas is also the author from which we find the complicated but enlightening idea that an unjust law is an impossibility, instead it is merely a counterfeit law.

Hobbes is the man responsible for creating the notion that the commonwealth, the group, should be thought of as a new being–which he calls the Leviathan. In his system, there are essentially three commands/points. First, right to life is the only inalienable right. Second, to achieve life, one must give up all rights and liberties (with the assumption that all others follow suit) and third, men must perform the covenants that they make. The tricky part of Hobbes is that there is no law without the Leviathan. And the Leviathan cannot be against itself. Put another way, for Hobbes it is irrelevant that I think a law unreasonable.

Shakespeare’s Merchant of Venice receives the next chapter’s attention because of the covenant involving one character’s willingness to underwrite his debt with “a pound of flesh.” In other words, Shakespeare brings out that mindless obedience to covenants may not be best.

Montesquieu takes up the law with the phrase, “the Spirit of Laws,” as he promotes the notion Shakespeare observed, that is that there does not seem to be one hard and fast law. Specifically he advocates that the particular and distinct circumstances–especially the climate wherein the particular culture (or Leviathan if you will) exists–must be taken into account as the law is created, enforced, and applied.

Rousseau adds to the discussion by providing the sound reasoning that the law sets men free. Rousseau is also one of the first to argue that the law, as it sets us free, is primarily concerned with protection of property as property is the freedom most easily taken away.

Kant, while approaching the law from the perspective opposite Montesquieu (science), picks up the property notion and explains that to even say that we have a right to property requires a second person. And therein he defends the importance of property ownership as a measure of the law.

Next we view the American Constitution through the eyes of its inadequate predecessor, the Articles of Confederation. This will always be a worthy exercise.

Hegel then exposes the significance of understanding there is most assuredly a difference between the history of laws and the philosophy of law. He wrote, “A particular law may be shown to be wholly grounded in and consistent with the circumstances and existing legally established institutions, and yet it may be wrong and irrational in its essential character.” He is also responsible for spreading the notion that the philosophical task (in this case, answering either, “What is the law?” or “What is right?”) has not begun until the ideas are actualized.

Finally, the book ends with discussion of Dostoevsky’s The Brothers Karamazov. This is due to the final courtroom melodrama which is about as morally difficult as anything yet written and demonstrates that the question, “What is the law?” has not yet been conclusively answered.

Despite our current predicament, this little history lesson may be enough to demonstrate that the American system was very well thought out–not by grieving, angry teenagers but by parents who could tell the difference between hammer and house.

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But you already knew that, Mr. Hogg, didn’t you?

Not On Star Wars

Vanity Fair‘s current over-Thor-in-a-flattering-red-t-shirt’s-right-shoulder headline, “Can a man of God end a 21st-century SLAVE TRADE?”* caught my attention while checking out of the grocery store today. I haven’t bought a magazine in forever, and yet after just putzing around watching a bit of Butch Cassidy and the Sundance Kid last night, I confess that I do not have the fortitude to quit reading cold turkey. (Sidebar: I’d never seen that movie, but it seems to me that besides J.K. Rowling owing her success to her J.R.R. Tolkien ripoff name, she also wasn’t very creative after all with Lord Voldemort. Lord Baltimore. Lord Voldemort. Just sayin’. End Sidebar.)

When I was in the Air Force, because of both the protect-the-weak aspect of the work and the worldwide deployment, in my last few years there was recurring training on human trafficking. We were to be vigilant on duty and off duty–if you get my drift. Aren’t euphemisms great? Instead of sex-slave, we say human trafficking. Wouldn’t want to offend the P.C. gods. Anyhow, sex-slaves are one thing, but two years into my re-indoctrination into the civilian world, I found myself teaching remedial math at a local inner-city (read: black and Hispanic) high school. Out of the blue I gathered that something fishy is going on. On the bulletin board outside my classroom hung all these student projects that were calling for the end of slavery. “WTF?!” was all I could not say out loud. Thirteen year old kids who couldn’t fill out a multiplication table were being encouraged to affirm that not enough was being done to end slavery? I was speechless. Add to this that students wrote sentences that were allowed to make it to the wall like, “This took me back 150 years.”

In any case, I just finished up learning about the origins of Friars and Monks and the like, so when I opened up the magazine and saw that the “man of God” was a Friar who photographed well, I began to read. Then the it was my turn, so I let my training take over and made the command decision to add the magazine to my cart. My question, “What the hell is going on with slavery? I thought that that abomination was eradicated once and for all from the planet. Am I really that out of touch?”

I think I mentioned previously that one concept that we discussed last semester was formal curriculum versus hidden curriculum. Churches are notorious for lacking due diligence to match these two up, and if Friar Xavier Plassat can be trusted, Brazil is guilty of the same charge. Slavery (formal) is illegal, yes. But “conditions analogous to slavery” (hidden) are still present.

Mom, Dad: don’t worry. I haven’t purchased a plane ticket.

Here’s my problem with the word slavery being thrown around today. It’s sensational nature precedes and overpowers it’s descriptive nature. That’s my judgement. America is so sensitive and guilty over its unconscionable past that, me as evidence, using the word slavery sells magazines (and online ads…). And social programs. And makes young white teachers sleep easy at night because they find themselves standing nobly amidst an atrocity, much like Lincoln and the Blue. I shamefully admit that “slavery” interests me more than “human trafficking.” But it’s an abuse of a journalist’s responsibility just the same.

For any cranky readers, please calm down and realize that I haven’t opined one way or another on the reported situation in Brazil. I will now. It’s horrific. The horror is not the conditions (though they are horrible) but that money has such an effect on people that impoverished, uneducated men and women hop on buses that are taking them who knows where, for who knows how long, and that other calculating men and women send out those buses to be able to “improve” their standard of living.

My take? I work in the heart of downtown Denver. The homeless are unmissable. One day I got a call that video security noticed a person laying outside the back door and he/she looked unresponsive. I made my way to the back door and opened it, hoping for the best. I saw matted grey hair and a lot of layers of black clothing. I said, “Excuse me, sir. But I think you are going to have to move from this spot.” His head turned, and she said, barked rather, “Of course, I have to fucking move.” (For a more accurate account of her demeanor, think back to the Princess Bride “Booooooo” scene.)

I do not possess the mental capacity to discern all the nuances of that exchange. What does it matter what I think about slavery in Brazil? I think Brazilians need to stop slavery. I’m not the one turning a blind eye to it. Are you? How about you? Are you turning a blind eye to slavery?

That homeless woman though? Some dad, some mom, some brother, some sister, some child, someone was the first to turn a blind eye on her. It surely wasn’t me. And least that’s what I tell myself so I can sleep at night.

*Langewiesche, William. “Slaves Without Chains.” Vanity Fair Holiday 2015/2016: 94+.