What Is Law, Why Does Law
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
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
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
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 -
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
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.
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.