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What Is Law, Why Does Law Exist?

by Stephen DeVoy Sunday, Dec. 05, 2004 at 3:27 PM

A rational anarchist introduction to the concept of law.

What Is Law, Why Does Law Exist?

Author: Stephen DeVoy

This essay answers the questions "What is law?" and "Why does law exit?"  It is directed to those living in societies that are democratic or societies such as the United States of America where the illusion of democracy is maintained.  We limit our discussion to democratic and pseudo-democratic regimes because the answers to these questions are somewhat different in openly dictatorial regimes and theocratic (religious) regimes.  These questions in the context of openly dictatorial regimes and theocratic regimes will need to be answered elsewhere.

Law is set of restraints on the liberty of individuals, groups and governments agreed to by some democratic process.  Since only individuals have natural rights, the rights of groups and governments are constructs and never absolute in any objective sense.

There are two primary rationales given to support a perceived need for law.  One rationale is based on the belief that humans are evil by nature and must be restrained by force to avoid engaging in evil deeds.  The other rationale is that in order to cooperate, in terms of behavior and the sharing of resources, some protocol is needed to govern that cooperation and encourage cooperation and that the force of the government must be behind that protocol in order to guarantee that such cooperation will exist.

From the start, law is a rejection of ethics.  Ethics already provides all of the tools necessary to moderate human behavior and encourage cooperation.  Law is based on the belief that ethics are insufficient and that force (i.e. the threat of violence) is necessary to achieve compliance.  Therefore, law encourages the abandonment of ethics in favor of legal compliance.  Law encourages obedience rather than self control.

The aforementioned points raise many issues and we will discuss them here.  Is it true that individuals are evil by nature?  Is it true that the threat of violence is necessary to create cooperation among individuals and harmony in their interactions?  Is ethics insufficient with regard to the regulation of human behavior?  Does law destroy the ethical impulse?  If law does destroy the impulse to be ethical, does this mean that law encourages a lack of ethics which, by definition, would be the encouragement of evil?  Let's address these questions.

Are Individuals Evil By Nature?

Unless scientific experiments are conducted on human individuals this question cannot be answered objectively.  Such experiments would require controlling the environment of human individuals from birth until death and evaluating human behavior across the life time.  Using humans in this manner, necessarily without their consent, would violate Kant's Practical Imperative.  That is, such individuals would be used not a means to their own end but as a means to some end outside of themselves (i.e. scientific progress).  Since we reject utilitarianism unless it is fettered by some absolute principles and the Practical Imperative is one of these principles, we must reject conducting such experiments on human individuals.  Therefore, we are limited to observing human individuals in their own natural environment.  This, of course, will make our conclusions less than fully objective or absolute.  However, progress can still be made.

In the course of my life I've noticed a wide gap in human understanding between those who are the parents of children and those who have never been the parents of children.  Seldom, outside the relationship between a parent and a child, does anyone have the opportunity to observe fully the development of a human individual.  Having had this experience myself and having watched the development of my own daughter, I have never seen any tendency toward evil on her part.  Just the opposite is true.  I have seen only the desire to do good.  Naturally, since children lack knowledge and experience, at least on the scale of an adult, they often act out of ignorance and do things which harm others.  For example, a child is likely to ask questions that adults learn not to ask because adults understand that humans become wounded by other humans over the course of their lives and certain questions bring up hurtful memories.  Thus, mature adults will seldom ask "embarrassing questions" of each other unless the intent is to do harm.  Children, on the other hand, are merely curious and the drive to satisfy their curiosity can provoke them to ask questions, in ignorance, that adults would not ask.  This is not because the child intends to harm.  It is because the child is attempting to obtain information for the purpose of enhancing his or her understanding of life and the universe.  Increasing understanding is good and so the child's questions are motivated by good, not evil, even if they unintentionally do harm.

Of course, I have observed evil children.  When I was a child I was often subjected to violence by evil children in the school system of my home town (Dedham, Massachusetts).  Sometimes I had the opportunity of seeing these children with their parents, dealing with their parents in the school office or learning about the relationship between these children and their parents.  When I had this opportunity, it always appeared to be the case that their parents encouraged their evil behavior or that the children were imitating their parents, either in terms of how their parents behavior towards their neighbors or each other.  Whenever I encountered racist children, I found that their parents were racist too.  In the few cases where this was not the case, I found these children to be friends of children who learned to be evil from their parents.

The worst children in my hometown were the children of police officers.  These children bullied other children.  They also got away with their bullying, no doubt because their father or mother was a police officer.  I find this correlation between being the child of a police officer and being an evil child highly revealing.  It implies that the closer one gets to the law, the less ethical one becomes.

I have lived in other societies and I have traveled widely.  I have found that the behavior of children changes much as the relationship between ethics and law changes.  In societies were ethics is the primary means of control, either due to a weak government or the lack of law enforcement, I've found children to be more ethical and more influenced by their belief systems.  In societies such as the United States of America, Canada or the United Kingdom, were law takes precedence over ethics, despite the higher degree of order I have observed a greater tendency towards bizarre and unethical behavior on the part of children.

From my own personal experience, it seems that legalist societies contribute to the corruption of children.  For example, in the United States of America where strict limits are placed on the consumption of alcohol and/or tobacco by children, we have far more children abusing alcohol and children engaging in unethical behavior to obtain cigarettes.  It is the imposition of law that prompts the curious child to use unethical means to satisfy his or her curiosity.

On the whole, I do not believe that children have any natural impulse to evil and that they, in fact, have a natural impulse towards good.  By the time they grow up, they have been contaminated by the evil nature of adults and the legalistic society adults have created.  The evil that adults have learned comes from attempting to cope in a world with constraints on their liberty.  Those who are able to thrive within the legal framework may remain ethical but those whose talents, abilities or nature is incompatible with the framework laid down by law must cheat, lie, steal and harm to survive.  They teach these skills to their children who become as evil as their parents.  Those with the "correct" talents and abilities to thrive within their society's legal framework take one of two paths.  They either play by the rules and live moderate lives or they cheat, lie, steal and harm others in an effort to take advantage of those who remain ethical.  Such "successful" people rely upon the law to handicap their ethical counterparts and then rob them blind.

It seems, then, that law encourages evil within human society and that evil is a natural capacity of human individuals but not encoded in their makeup.  The capacity for evil appears to overcome the natural tendency to do good when a legal framework is present.

Is ethics insufficient with regard to the regulation of human behavior or  is the threat of violence necessary to create cooperation among individuals and harmony in their interactions?

Let us begin with a definition for violence.  Violence is when force, either physical, economic or psychological, is used in an effort to causally effect the course of events.  Is it necessary to apply such violence to create cooperation among individuals?  Note, the question is not whether violence can create cooperation between individuals, for clearly it can.  The question is whether violence is the only available means to create cooperation between individuals.

Most ethical systems encourage cooperation between individuals.  This is true even in universal ethical egoism where each individual is encouraged to act in his or her own self interest, for it is usually in the self interest of individuals to cooperate with other individuals.  This is true because no individual is an island.  We are all embedded in a society and we need to exchange goods and comfort to survive.  We also need to exchange genetic material to reproduce.  Therefore, even the most selfish of ethical systems requires some degree of cooperation between individuals.

Since individuals start their lives as good (see previous section), individuals are open to the adoption of ethical systems if only as a means to satisfy their natural curiosity or to understand other human individuals.  This is why teaching a child religion during his or her formative years can have a profound effect on that child's behavior when he or she later grows up, whether or not he or she is in the presence of law.  In fact, those raised with strong moral systems are likely to self regulate their own behavior even if they know they can get away with evil behavior.  The same is true for children raised in non-religious ethical systems.

From the above it follows that if we raised our children to be ethical and did not teach them to be evil and if we prevented them from interacting with the children of parents that did not teach their children to be ethical, such children would grow into adults who would behave as good individuals and who would cooperate when it was ethical to do so.  Clearly, we do not want them to cooperate when it is not ethical to do, even if the law encourages or requires it.  Thus, ethics is sufficient to regulate the behavior of children raised within a system of ethics provided they are not subject to the evil behavior of those who are not.

This, of course, leaves a large gap for surely many children are raised by unethical parents.  The question, however, should be whether, in the long term, an ethical society will overcome a legal society.  Without revolution and the destruction of the state this seems unlikely.  Therefore, as long as their is government there will be law for law destroys ethics and law is left as the only means to moderate human behavior.  If we go to the next step, however, and destroy government, then we can create a society ruled by ethics and not by law.  In the absence of law the unethical will not be able to rely upon the law to justify their actions or to protect themselves.  In the absence of the force of law, the unethical must either adapt and become more ethical or become isolated.  In the struggle of the fittest belief systems, in the absence of the unnatural force of law, ethics will out compete and triumph.

Does law destroy the ethical impulse?

I have already given much evidence in the above text that law destroys ethics, but does it destroy the impulse towards ethics as well?  The United States of America is, in practice, a corporatist society.  No where does law play such a role in American life than within the corporation.  Do not mistake this claim to mean that corporations behave in compliance to the law, often they do not.  Nevertheless, they use the law to destroy the ethical impulse and they do this for one simple reason - they can.

Of all the corporations I have worked for, the most unethical is a defense contractor in Austin, Texas.  Due to the nature of this defense contractor's work, it would not be an exaggeration to say that their technical workers, as a rule, have a high level of individual intelligence.  I would not be surprised if the results of giving each such individual an IQ test would show that not a single one has an IQ below 130 and that the average is in the genius range.  However, having a specific level of intelligence does not make one ethical.  If anything, given the chance to rationalize unethical behavior, intelligence will often choose the unethical path.

This observation holds strongly at this defense contractor in Austin, Texas.  I had the misfortune of being on their management team.  I was an advocate of greater freedom and greater rewards for workers.  I wished to see workers treated ethically, however, at every turn upper management chose to do whatever was in the best interest of the two individuals comprising upper management and not what was ethical.  Every time an issue where ethics should play a role, their position was that, "well, if there were not law X which could make us liable for Y, we would do ethical thing E, but since we might suffer Y we'll follow the advice of lawyers who encourage U (an unethical procedure) based on their understanding of X.  In nearly every case the probability that Y would be the outcome of E was zero or near zero.  Nevertheless, they would choose to do the unethical U over the ethical E every time.

A couple of the members of the management team (e.g. myself) wanted the corporation to institute an ethics panel to evaluate projects proposed by the U.S. Military that we believed may have ethical implications.  This idea was roundly and fiercely rejected by upper management.  I saw many unethical things happen in during my tenure as a manager.  In the presence of law, upper management had totally and completely lost the natural impulse towards ethical behavior.

I've seen similar things at different corporations.  I have seen individuals fired with no reason given based on the argument that "the law says we don't need to give a reason."  I've seen good individuals denied references on the basis that "some corporation may sue us if they find the worker less than desirable."  I've seen older people fired because they were older, Muslims held down from higher positions because they were Muslim and others fired because of their political beliefs.  In all cases, the corporation would bend its rules and harass the individuals with warnings and other documentation that was not distributed with any sense of fairness.  Individuals would be targeted for documentation to support firing decisions that were actually based on other criteria such as age, race or religion.  The law enabled them to do this.  It gave them the tools to dishonestly justify their unethical acts.

Corporations pollute the environment because they can.  Corporations do not pay their fare share of taxes because they can.  Corporations steal from their employees because they can.  This "because they can" actually means "because the law says they can."  The law is used as a hammer to stamp out and destroy the ethical impulse.  It is the primary destroyer of ethics.  By definition, that which destroys ethics is evil.  Law, therefore, is evil.

Summary

Having further examined law in the context of a democratic society, let us take a look at our original questions once again.

What is law?

Law is a mechanism whereby society destroys the ethical impulse to create obedience among those not in power and as a tool to provide justification for unethical acts by those in power.

Why does law exist?

Law exists in order to maintain a classed society by enhancing the freedom of those in power to act unjustly and destroying the ability to rebel of those enslaved by the powerful.

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