Saturday, January 08, 2005

What is the Law?

Most of my recent blog posts have focused on the nature of my religious beliefs and the relation of those beliefs to a wide variety of topics, including ethics, human sexuality, and science. By virtue of this post, I intend to effect a transition away from a focus on religious topics and towards a focus on the law. To this end, I intend to disambiguate various concepts that are referred to as law, laws or the law and concomitantly offer an operational definition of what the law is in this post that will form the foundation for a wide variety of posts on seemingly unrelated topics. This transition seems quite natural to me because I see a close alignment between topics that are commonly perceived to be the province of religion, such as ethics, and topics that fit under the conceptual rubric known as the law.

In its most commonly-used and general sense, the law is an institution that defines and governs human affairs -- i.e., a collection of laws that comprises a particular legal system. To distinguish between this concept of the law and other concepts that are referred to as law, laws or the law, I sometimes refer to the institution of the law as "law qua law." In the context of a particular culture or society, laws may take many forms. The most common and easily recognized laws are the ones that are established, codified, and enforced by secular state authorities -- i.e., man-made legislation. These man-made laws can be distinguished from purportedly divine law, such as Halakha (Jewish law) and Sharia (Islamic law), and from natural law, which is purported to be inherent in the natural order.

Both man-made laws and divine laws can be distinguished from physical laws, i.e., scientific generalizations based on empirical observations that most scientists would agree upon as valid assertions about natural phenomena. In turn, physical laws can be distinguished from popular adages that are frequently referred to as "laws," -- e.g., Murphy's law. In the final analysis, any principle or rule can be and often is referred to as a law or the law, and a number of idiomatic references equate "the law" with any type of authority or force that imposes its will on others, and closely related to the institution known as the law (i.e., "law qua law") are the institutions of politics and government.

There is a great deal of overlap between the institutions of the law, politics, and government. The law is the most vague and general of the three, as set forth in greater detail above, whereas government is the most specific, typically referring to a formal system of laws (i.e., law qua law) with well-defined units and processes. Somewhere in the middle is politics, which can and often does refer to any sort of social relations involving authority or power, but is perceived by many people to be more or less contiguous with the formal institutions of government. At the same time, politics can and often does refer to a wholly personal take on issues of law and government and/or a viewpoint held by a discrete and insular group of people as to what the law is and/or what the law should be.

Even within the limited context of a particular legal system or tradition, the law has many different sources and many different interpretations. To this end, the primary question to be answered by the law is who has jurisdiction over a particular territory, a particular person, a particular subject matter, or a particular dispute. Assuming that the question of jurisdiction can be decided, a party who has jurisdiction is presumably entitled to make the law (i.e., pass legislation), administer the law, enforce the law, choose between conflicts of law, apply the law, interpret the law, and/or adjudicate particular disputes. Depending on the context and degree of success that one has in challenging assertions of jurisdiction by a particular authority, one can assume a wide variety of socially defined roles, ranging from litigant, reformer, and martyr to criminal, traitor, and revolutionary.

I often hear it said that in the United States we live in a "nation of laws" and/or that we live under the "rule of law." More correctly, we are supposed to live in a nation of laws, but in reality we live in a nation of police, prosecutors, judges, and politicians who pretty much do what they want, the rule of law be damned. Traditionally, the rule of law was supposed to be a limit on the exercise of power by the state and state actors. Moreover, at its core, the concept of the rule of law is based on the notion that the law should be fair and just, which is why most people should feel obliged to obey the law even when they disagree with it. Upon closer inspection, however, such noble concepts as judicial restraint, due process, and the duty of a prosecutor "to seek the truth and see that justice is done" are routinely circumvented by state actors with a personal agenda and/or a vested interest in maintaining the status quo, making it relatively easy for most people to rationalize a general disregard for any law with which they disagree.

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