Philosophy: The Purpose of Law

I argue with my friend at work about politics. We do it frequently, probably too frequently. Usually we end up finding some happy common ground and forgetting the details that led to the argument; sometimes we end up going in two very different directions. Last Friday was one of the latter times.

We were discussing Lawrence v. Texas the Supreme Court case which either made sodomy a right in Texas and the US, or determined that the morality of the majority was not sufficient due process of law to abridge the rights of life, liberty, and the pursuits of happiness. It depends on who you were asking.

I think of conversations like knots - not the kind you tie, but the kind you find in your drawer and wonder how they got there. I figure if the knot can happen naturally, it should need to be untied, so much as just loosened until the lines fall apart. Conversations are usually like that - somewhere there is some accidental friction, and the right wiggling and loosening can expose the friction and the whole thing will shake free. This time, loosening and shaking only brought us to the one central, intractable knot.

It was the end of our conversation, and it went essentially like this:

Friend: "The courts are not designed to legislate. They're designed to judge cases against existing law. If the majority of people in Texas think sodomy should be illegal, that's their right. If someone wants sodomy to be legal, they have to get the majority of people to agree."

Me: "The courts weren't legislating. They were doing their job by judging this law against the Constitution, particularly Amendment 14, and they found that the moral judgement of the majority does not constitute due process."

Friend: "The Purpose of law is for the majority to impose their morality or whatever they think is right."

Me: "The purpose of law is to protect people. The Use of law may be to impose morality, but the Purpose is to protect people.

Friend: "So you think!"

Me: "So I know!"


So. Then I felt like I should put my money where my mouth was.. or something. But how to determine the purpose of law - what source would be credible, sufficiently universal, and authoritative? I thought about going back through the history of law from Hammurabi, Draco, Plato, etc. up through the European origins of the United States, but that's a lot of work, and I'm not sure that anything not specifically American would be considered authoritative. A man with more gumption might have read some American law history, or at least the Articles of the Confederation, but I only read the Constitution and the Declaration of Independence. And really, the best answer I found was at the very beginning of the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America

The Constitution, in a very real and literal sense, is the Rule of Law. It is the rule that defines law in America. And the mission statement is in the preamble. The purpose of Law is as follows:

1. To form a more perfect Union
This almost sounds like a hint at the rule of the moral majority - I could see how someone might try to work something out there - but I think this very clearly refers the preponderance of regulations directing relations between the states; the Union refers to the union of the states, not the Unity of individuals. (Moral imposition=0, Protection=0)

2. To establish Justice
This is very clear, unless the definition of "Justice" is under debate. I believe it to mean that wrongs are righted or punished, as appropriate, in a fair and ordered manner. Justice is about protection, both from wrong-doers by establishing preventative measures, and for those accused of wrong-doing by ensuring they will be treated fairly. (Moral imposition=0, Protection=1)

3. To insure domestic Tranquility
Like establishing Justice, I think this refers to protecting the individual and society from troublemakers. However, I think this is suffiently vague to allow for a variety of readings, so I'm giving a half-point to each. (Moral imposition=0.5, Protection=1.5)

4. To provide for the common defence
This line clearly refers to the Militia and armed forces, and while it does deal with protection, does not apply here. (Moral imposition=0.5, Protection=1.5)

5. To promote the general Welfare
While I believe this line refers in particular to economic Welfare, it is sufficently vague to allow for a reading that might support Moral imposition. I'm giving a half point to that side, but I scoff at the graspingness of who takes it. (Moral imposition=1, Protection=1.5)

6. To secure the Blessings of Liberty to ourselves and our Posterity
I do not think this line could be more clear. We are not establishing the Blessings of Morality, Piety, Purity, Godliness, or Public Assent, but Liberty. To follow the train of thought running throughout this document, the Declaration of Independence, etc., this is Personal Liberty, in particular - the right to choose one's own destiny. While this is not Pro-Protection, it is clearly Anti-Moral-Imposition, and I think I'm being generous by striking only the very weak half-point from point 5. (Moral imposition=0.5, Protection=1.5)

This leaves us with a very strong point for the purpose of American law being protection, and a couple of weak half-points that waver in either direction. There was one point solidly against Moral Imposition, and none agains protection.

This is hardly scientific, and possibly not even well thought-out since I'm typing while watching "The Daily Show" and "The Colbert Repor(t)", but I'm satisfied now that I know what I know.