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November 21, 2004
Law's Educational Purpose; The Source of Value
What is the purpose of law? To make people behave well. Under Holmes's "Bad Man" theory in "The Path of the Law", laws are for the men who will not do good without the threat of punishment. That, however, neglects other purposes of laws which are important if secondary. One is the "expressive" purpose-- that expressing that something is wrong is satisfing to the public. Related to that is the educational purpose of law. Even the good man does not know everything, and the law teaches him.
Psalm 119 says
97 MEM. O how love I thy law! it is my meditation all the
day.
98 Thou through thy commandments hast made me wiser than
mine enemies: for they are ever with me.
99 I have more understanding than all my teachers: for thy
testimonies are my meditation.
...
104 Through thy precepts I get understanding: therefore I
hate every false way.
But for the law to achieve this purpose, it must be a trustworthy guide. We must trust the lawgiver to be willing to learn from the law. God's law is trustworthy. If nothing else, it tells me what God wants, and that is important in itself. Human law is less reliable. If I see a law saying that it is illegal to perform haircuts without a license, I do not conclude that unlicensed haircuts are immoral, or even unsafe, because I think the legislature is wiser than I am. Rather, I conclude that either the legislature has been fooled, or they have been bribed by the barbers to restrict entry.
The Bible is a comfort to Christians because it is a reliable source of law. It still has many difficulties-- notably, knowing what law in the Old Testament is still applicable after the Resurrection-- but Christians at least have a basis for right and wrong beyond what their culture teaches them. Traditionalists are less grounded, but they at least can find grounding in the axiom that their tradition is reliable. Liberals, despite the confidence they commonly show, are more at sea. They cannot retreat to their culture, since it is a recent and ever-changing one. They are at risk trying to appeal to logical principles grounded in a few generally accepted axioms too, since they often profess a relativism which rules out logic. But that, I think, is what they commonly try to do anyway. John Stuart Mill is an example. He tried to ground morality on the rule of not hurting others, and that is common today too. But the rule turns out to be empty, since anything to which anybody objects hurts them and since it is by no means self-evident that we shouldn't hurt other people (think of the hurt caused by winning a contest with others, or by starting a new business in competition with them).
Posted by erasmuse at November 21, 2004 10:01 PM
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