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25. Social Practice / D. Justice / 2. The Law / a. Legal system

[the system used by a government to enforce laws]

17 ideas
The better known the law, the more criminals there are [Laozi (Lao Tzu)]
     Full Idea: The better known the laws and edicts, the more thieves and robbers there are.
     From: Laozi (Lao Tzu) (Daodejing (Tao Te Ching) [c.530 BCE], II.LVII.132)
     A reaction: Nice. I link this with my favourite moral maxim from Democritus (Idea 519). The idea is that continual emphasis on what you should not do fills the mind with evil possibilities. Moral perfection must start by taking goodness for granted.
Will I stand up against the law, simply because I have been unjustly judged? [Socrates]
     Full Idea: Do I intend to destroy the laws, because the state wronged me by passing a faulty judgement at my trial?
     From: Socrates (reports of last days [c.399 BCE]), quoted by Plato - Crito 50c
Man is the worst of all animals when divorced from law and justice [Aristotle]
     Full Idea: Man is the worst of all animals when divorced from law and justice.
     From: Aristotle (Politics [c.332 BCE], 1253a31)
     A reaction: Sounds true, but it is extraordinary that the virtues of mankind only emerge when we are artificially contrained. Rousseau disagreed with this.
If it is easy to change the laws, that makes them weaker [Aristotle]
     Full Idea: Easy change from established laws to new laws means weakening the power of the law.
     From: Aristotle (Politics [c.332 BCE], 1269a23)
     A reaction: This is a reasonable justification for sometimes insisting on the letter of the law, even though some degree of injustice results.
Laws that match people's habits are more effective than mere written rules [Aristotle]
     Full Idea: Laws that are in accord with habits have more control and deal with things that have more control than do written laws.
     From: Aristotle (Politics [c.332 BCE], 1287b05)
     A reaction: This is the problem of bringing the law into disrepute, by insisting on behaviour that goes against the grain. But there are laws, such as those against racism, which are designed to break bad habits.
The aim of law is not restraint, but to make freedom possible [Locke]
     Full Idea: The end of law is not to abolish or restrain, but to preserve and enlarge freedom, for where there is no law there is no freedom.
     From: John Locke (Second Treatise of Government [1690], 057)
     A reaction: This fits both the liberal and the communitarian view of the matter. Talk of 'freedom' is commonplace in England by this date, where it is hardly mention 60 years earler. John Lilburne almost single-handedly brought this about.
The state ensures liberty, so civil law separates citizens, and binds them to the state [Rousseau]
     Full Idea: The relationship of members to each other should be as small as possible, and as large as possible to the entire body. ...Only the force of the state brings about the liberty of its members. From this relationship civil laws arise.
     From: Jean-Jacques Rousseau (The Social Contract (tr Cress) [1762], II.12)
     A reaction: I'm guessing that these laws could be said mainly to prescribe both our rights and our duties. His four types of law are political, civil, criminal, and customary.
Laws that are well thought out, or laws that are easy to understand? [Nietzsche]
     Full Idea: Lawyers argue whether that law which is most thoroughly thought out, or that which is easiest to understand, should prevail in a people.
     From: Friedrich Nietzsche (Human, All Too Human [1878], 459)
     A reaction: Our system of speed limits is radically simplified, to save money on road signs, and facilitate enforcement. But then its inflexibility brings it into disrepute.
Positive law needs secondary 'rules of recognition' for their correct application [Hart,HLA, by Zimmermann,J]
     Full Idea: Hart says we have secondary legal 'rules of recognition', by which primary positive law is recognised and applied in a regulated manner.
     From: report of H.L.A. Hart (The Concept of Law [1961]) by Jens Zimmermann - Hermeneutics: a very short introduction 6 'Rules'
     A reaction: The example of the authority of a particular court is given.
The principle of legality requires crimes to be precisely defined in advance of any action [Hart,HLA]
     Full Idea: The principle of legality requires criminal offences to be as precisely defined as possible, so that it can be known with reasonable certainty beforehand what acts are criminal and what are not.
     From: H.L.A. Hart (Law,Liberty and Morality [1963], I 'Conspiracy')
     A reaction: Hart is discussing a breach of this, where moral judgements are used to condemn something which was not obviously illegal. Families and schools don't have such precise rules, but it seems needed in a vast and pluralistic society.
Some private moral issues are no concern of the law [Hart,HLA]
     Full Idea: An official report [of 1957] on homosexuality declared that 'there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business'.
     From: H.L.A. Hart (Law,Liberty and Morality [1963], I 'Conspiracy')
     A reaction: We might wonder whether these issues are actually moral, if the law is not interested in them. Are they just a matter of taste? The law doesn't enforce a preference for Mozart over Salieri.
Do morals influence law? Is morality an aspect of law? Can law be morally criticised? [Hart,HLA]
     Full Idea: Four questions: 1) Has the development of law been influenced by morals? 2) Must reference to morality enter into an adequate definition of law or legal system? 3) Is law open to moral criticism? 4) Does immorality justify legal punishment?
     From: H.L.A. Hart (Law,Liberty and Morality [1963], I 'Enforcement')
     A reaction: [compressed] Three nice questions, which are his agenda for the book. It is obvious that immoral laws can be created, and that laws can be criticised for being too concerned with morality, so there is no clear general answer to these dilemmas.
Is the enforcement of morality morally justifiable? [Hart,HLA]
     Full Idea: The question about morality and the law is also a question of morality - of whether the enforcement of morality is morally justified.
     From: H.L.A. Hart (Law,Liberty and Morality [1963], I 'Positive')
     A reaction: This is a very nice meta-moral question. What moral standards are used to justify the enforcement of moral standards? Presumably there should be no contradiction between the levels, to brutally enforce softness, or softly recommend brutality?
Modern law still suppresses practices seen as immoral, and yet harmless [Hart,HLA]
     Full Idea: English and American law still [in1963] contain rules which suppress practices condemned as immoral by positive morality though they involve nothing that would be ordinarily thought of as harm to other persons.
     From: H.L.A. Hart (Law,Liberty and Morality [1963], II 'Use')
     A reaction: He says most of the examples of this concern sexual practices. In the UK we have moved away from such laws, but many states of the USA still maintain them (or are reintroducing them, in 2023).
There should be separate legislative, executive and judicial institutions [Grayling]
     Full Idea: The obvious solution is where the legislative, executive and judicial powers are exercised by different institutions, distinguished by function. The executive is answerable to the legislative, and the judicial is controlled by neither.
     From: A.C. Grayling (The Good State [2020], 3)
     A reaction: Separation by institution, rather than merely by separate individuals exercising the powers. I agree (with Popper etc) that institutions are the way to secure long-term success and justice. Grayling says the judiciary must not paralyse government.
If being subject to the law resembles a promise, we are morally obliged to obey it [Tuckness/Wolf]
     Full Idea: One of the more common reasons people will give for having a moral obligation to obey the law is consent. ...It rests on the intuitively appealing idea of an analogy with a promise.
     From: Tuckness,A/Wolf,C (This is Political Philosophy [2017], 6 'Consent')
     A reaction: [They cite Locke and Jefferson] In Locke's case it has to be a 'tacit' promise, which is more realistic. In real life we have problems with people who 'said' they would do something. They are often accused of promising, when they didn't.
If others must obey laws that we like, we must obey laws that they like? [Tuckness/Wolf]
     Full Idea: If we expect others to obey the laws we think just, do we have an obligation to obey the laws that other people think just?
     From: Tuckness,A/Wolf,C (This is Political Philosophy [2017], 6 'What should')
     A reaction: Depends whether you have to be consistent about everything. I'm picky about which laws I obey, but I'm not going to tell you that, in case you get the same idea. Free riders.