It's a strange question, but it asks: What lies at the foundation of laws? Where is the authority behind them? Does authority change over time? Can it be corrupted? Are the laws of a corrupted authority still legal? When do they become illegal? Are all the laws of a corrupted authority invalidated, or just some of them? Who decides, if not the authority?
Laws and authorities can seem like eggs and chickens. Does the law come first or does the authority to enforce it come first? And if the authority comes first, by what mechanism was that authority instituted, if not by laws? In a well-working republic, we vote in lawmakers. Our legislators vote on laws after being afforded the best data from scientists and researchers. Those laws are enforced by a system of policing that employs deadly weapons. Judges then interpret the laws.
It's a great system, except for one problem. It doesn't work.
The defects of the system are apparent from the get-go. From whom do lawmakers routinely get their campaign contributions? How do those contributions determine for whom we get a chance to vote? Do those contributions influence the way legislation goes?
Before we vote, assuming we vote, who determines what we watch on television or hear on the radio, informing the direction we vote? And what conditions are in place to reduce the number of informed voters? Who pays for the scientific research lawmakers weigh before voting, if they see any at all? How dogmatic or misinformed does a generous campaign contributor have to be for a legislator to refuse to vote in his or her economic or ideological favor? How educated are our legislators, when all is said and done? How much nepotism and cronyism influences legislation?
Laws do not make greedy people giving, violent people peaceful, or myopic individuals broad-minded. Laws aim to prevent wrongdoing through instilling fear of consequences, but the consequence of this is that clever wrongdoers will not abstain from the misconduct but rather work a bit harder to avoid the consequences. Far-reaching criminals will insure that law enforcement looks the other way. Wealthy criminals will make the wrongdoing itself obsolete by instituting it in a universal law through paying off legislators, who in turn become coconspirators and accomplices to the crime. And this is nothing to say for the biggest of criminals - the war criminal - who, far from being punished, might have streets named after him or find her face on a pound note.
Parenting can instill ethics or vices, and often both at the same time. A failed parent might teach a parent nothing only for the child’s world to fill the vacuum with little filtering or discrimination, or beat a child and thereby teach the child that violence is an acceptable way to treat others, but even a bad parent rarely teaches a child that it's wrong to hurt others because there's a law against it. Yet that is all a law can do.
Some may argue that a citizen can assume that a prohibited act is necessarily an ethically wrong act, but that requires a logical leap that may lead to a falsehood. For instance, is it ethically wrong to tax money made from investments but right to tax money earned from labor? One might rather think that, in the spirits of equality of opportunity and strengthening the middle-class, the opposite is ethical.
Most people do not know what the laws are, or the details of each, but live their days without breaking laws and without thinking too much about it simply by embodying their inherent sense of right and wrong. Most laws are wasted on them, and yet some laws persist as a subterfuge with the real intent of normalizing stealing, both domestically and abroad. Meanwhile, those who break the laws, even if they have no legal education or no education whatsoever, usually know they are doing something wrong. The fear of consequences is inoperable in their lives. Then we have the corporate criminal whose misconduct is enabled by laws that afford wide loopholes. And the bigger the crime, the easier it is to get away with it.
Since we don’t see the shadows of things that do not happen, it is hard to gauge how many crimes laws avoid, but it is unlikely that the absence of a formal consequence for violence promotes violence. With or without laws, violence always has a consequence, and it is our responsibility to increase awareness of those consequences, both to the individuals involved in the violent act and to society.
Do societies improve as the number or laws, and the complexity of laws, increases? What laws would become superfluous if some of the money spent on enacting and enforcing laws went to increasing social awareness and personal responsibility? What laws would be found to be unethical if this kind of education were more widespread?
Laws do not pretend to determine right from wrong, but it is the nature of authority to assume that what sustains its survival is good and what threatens its survival is not good.
Authority unfailingly assumes that laws and enforcing laws with the threat of punishments are necessary to regulate human conduct, never mind the fact that subjects of authority will assume that rewards are good and punishments are not good. While this assumption may seem true on a personal level, it may not be true on a social level, meaning that the desire for reward and fear of punishment inhibits social responsibility.
The basic erroneous attitude perpetuated by this system of establishing order is that responsibility to authority is the same as responsibility to society.
We spend nearly $200 billion yearly on our criminal justice system and penal system. Racism and capitalism’s version of caste has infected the system by which laws are executed and enforced. After being penalized for crimes and non-crimes (like smoking marijuana), and given little chance for rehabilitation beyond an acquaintance with a failed faith-based propaganda machine, our inmates often become angrier and more hopeless, thus increasing recidivism.
But before we run out and vote for bills and acts and laws to institute a stronger educational system, we might wonder how effective it will be to use a failed system to correct a failed system. Where legislation is employed to protect wealth, the true and diabolical spirit of laws can never be truly corrupted, which is to say cleansed. You might end up with No Child Left Behind, but put one hundred rich and fat white men with little lobbyist devils whispering in their ears in the same room and you probably will not arrive at socially responsible education, health care, or civil liberties.
Law enforcement is not the only poor substitute for scientific and spiritual education. Often, so is organized religion. Considering religions with gods that themselves punish misconduct and reward righteousness, how much of a stretch is it for believers to take matters in their own hands and mete out their own brand of rewards and punishments. And where laws, or more importantly, common decency, gets in the way, the eternal word of one’s god must always trump temporal authority.
The concept of balanced justice is lost to the mind of one who believes that a god can sentence a human soul to an eternal heaven or hell based on the actions of one brief lifetime. Ethics cannot be computed in the brains of those who believe that a singular god has a chosen people, church, or savior. If the question of soul is not a scientific question, then it is not a question at all where right and wrong are concerned. Still, the dogmas of organized religions influence our laws, the most recent cultural wars being over abortion and gay marriage rights.
"We have now determined," Antonin Scalia said, "that liberties exist under the federal Constitution - the right to abortion, the right to homosexual sodomy - which were so little rooted in the traditions of the American people that they were criminal for 200 years." The right to abortion and homosexual sodomy may not exist under the federal Constitution, but neither do they not exist.
Though it is historically inaccurate to say that abortion was criminal for 200 years in the United States, even if it were, tradition is not to be elevated to the stature of the US Constitution, and the federal Constitution is not to be elevated to the stature of truth for all the ages.
The Constitution was written by men who were limited to the knowledge of their times and who certainly could not have imagined ours. Furthermore, the traditions of 200 or 2000 years are ultimately irrelevant in determining right and wrong. At most, they can serve as starting points for further scientific investigation and discussion.
If scientists widely determined that the preponderance of evidence strongly suggests that abortion practices or gay sex are not conducive toward social, national, and/or global harmony and progress, then today's legislation would probably pass laws along those lines, especially since there is so much money coming from Fundamentalist Christian organizations to do just that. But looking for a word in the Constitution to inform a yea or nay to such issues is no different than studying astronomy by referencing the New Testament. Treating the Constitution as a holy relic that necessarily has a say on everything turns judges into theologians, and it appears that Scalia considers himself a bit of both.
But there is an even better governmental response than making laws after scientists have spoken. Butt out. Even if abortion or gay sex is widely found by researchers to be bad for society’s survival (and not just authority’s survival), laws aren't the way to stop people from practicing them anymore than will laws designed to undermine greed lessen greed in the world. The way to help people refrain from self and socially destructive behavior is simply to increase the awareness of the personal and social consequences. As awareness increases and expands, poor habits of conduct are naturally eschewed.
Laws won’t stop drug use or prostitution or gay sex or abortion or speeding or drunk driving, not to say all of these practices fall in the same ethical category. An article in the NY Times from a few years back, asking if pornography is legal, actually stated with a straight face that laws against porn would put the hard-core sex industry out of business. This is sheer delusion. Laws against porn would put the industry in the underground business.
Laws can never keep up with the speed of life, but an educated and aware individual can. Even if you are sure you want to entirely put an end to certain sexual behaviors, you have to first study them, learn everything you can about them, and have scientists investigate them to see what they come up with. Keeping an open mind with what the outcome of research might be, you then freely share that knowledge with society through home-schooling parents and progressive educators and let each individual make his or her own informed choice.
Instead of objecting to the commoditization of sexual relations, whether between famous entertainers or between prostitutes and their clients, we might object to the careless assumptions that something is bad because our grandparents thought so, or that the best way to get rid of a bad thing is a law.
Although I personally choose not to work in the pornography industry and teach my children philosophically and scientifically why to avoid it both as a vocation and as a customer - using the expansion of self-knowledge to be the standard for the highest good - I object to attempts at curbing it using laws precisely on the grounds of that same standard of goodness. I would certainly never prevent my children from making their own informed decisions, for good or ill, lest I keep them from the opportunity to learn from the choices they make in life.
It is this very spirit of respect for each person’s quest for self-expansion that makes redundant laws that seek to curb actions that encroach upon the rights of others. How could a person who feels free and respected to live and learn and make mistakes ever think to limit the rights of another to enjoy the same freedom?
As importantly, how can we expect people to not trample upon the rights of others when their rights to explore the opportunities life presents have been trampled upon?
Sometimes when laws are enforced money changes hands, as if paying back money for misconduct has any bearing on improving the character of the transgressor or erasing the transgression from memory. For example, when laws that prohibit sexual misconduct were enforced on the Catholic Church, the public is left with a hollow sense of vindication. Victims were basically paid to feel that justice has been done. But what does giving victims millions of dollars have to do with bettering society? When did money enter the equation?
Fining is not the solution as it usually forces activities into black markets. If the public does not stop at using laws to extract millions of dollars from transgressors like priests, we prevent further recurrences of illicit sex only insofar as subjugating the church to the fear of losing support will curb the misguided lusts. Would it not be more fruitful for the public to continue serving justice, and indeed searching for truth, by thoroughly investigating the church itself, its public teachings and private rules for priests, and the very arguments it gives for its tax-free existence? Is it not in order to investigate what it is about the church that fostered these crimes in the first place? Isn’t real justice in this case in finally stripping away the veneer of a holy institution and see it as an organization of human invention that, in this and perhaps other cases, has gone terribly wrong? Weighing those findings with reason and without religious bias will enforce on the church far more justice than a payoff, and afford victims a greater sense of resolution and understanding.
A few years ago, the FCC was attacking free speech with new rules and fines, largely directed at Howard Stern. After the infamous Super bowl halftime show staring Janet Jackson’s breast, perhaps the FCC, poor thing, is more sensitive to profanity and indiscretions. Lord knows our nation has nothing else to worry about.
But did the FCC ever do a study of Howard Stern listeners in order to determine if their lives are any worse from listening to his show? No, because no one would pay for such a ridiculous study. But until someone does, why not trust people to decide for themselves what to listen to, letting Stern listeners make their own choices, even if they're mistakes? And was it really all about his language? Clear Channel, benefiting immensely from the Bush administration's failure to keep the media decentralized, dropped Stern and his anti-Bush statements quicker than anyone else. The survival of authority is the gold standard for authority.
Nowhere is the immorality of laws as apparent as in the laws prohibiting the use of marijuana. In a land where the pharmaceutical industry, like tobacco companies, is targeting younger and younger consumers, alcohol consumption is widespread, and erection drugs are as common as aspirin, the federal government is spending tens of millions of dollars to ban pot. As jaded as we are, instinctually expecting hypocrisy, it's no longer ironic that the cigarette, alcohol, and (legal) drug companies financed the Partnership for a Drug-Free America.
Thousands of Americans die every year from aspirin and Advil. Alcohol is a killer to the drinker and can turn the drinker into a killer, or a suicidal. The health risks of smoking tobacco need no mention. Meanwhile, pot doesn't kill anyone and it does not induce violence. Its medicinal benefits are now widely accepted. Over half of Americans have smoked it. But still there is great harm to the smoker from smoking it (here's where the irony comes in): the consequences of breaking the laws prohibiting it. Aside from the cost to taxpayers to keep it illegal, possession can result in arrest and imprisonment. And a few months or years in jail plus a criminal record are probably not the best thing for a youth's character or self-esteem.
Any law that would arrest over half of America has to be ridiculous. But laws themselves, when in the hands of incorporated lawmakers, are even more ridiculous. If pot, or anything else, is found by scientists to be detrimental to psychophysical and/or social health, then it should not be too difficult to put the data together and share it with the public. After that, people can make their own choices, knowing exactly how and in what way the choices they make affect themselves and their loved ones. Those that affect others in society come back to haunt us too, but first let’s see that effect in hard data, not in flimsy dictates from Mt. Sinai. Teaching that simple idea to our children along with the most current general knowledge will make most criminal laws superfluous.