Jurisprudence
It's a big word, but once in a while it has to be dragged out and given a shot. The Latin iuris prudentia roughly means 'the wise provision of law'; jurisprudence is thus the study of how the law is best constructed and applied. Sometimes, people who make rules and people who adjudicate based on those rules both need to take a look at how and why those rules were made.
Human beings are famed lawmakers, both for good and ill. History has etched into its steles of chronicled time the names of Hammurabi, Asoka, Moses — those whose legal codes have resonated down the ages to the present day. Our concepts of good and evil, of justice and fairness, are hopelessly entangled with our concepts of law and order. When God (or a god, or a pantheon of gods) set a code of law into stone tablets, it was possible to equate legal to moral, ethical and necessary. The impact of this mindset made it impossible to ask the question, "Can a law be immoral, unethical or unnecessary?"
But the present age is full of man-made laws. And if the laws are made by mortal men, it becomes necessary to ask that question and deal appropriately with whatever comes of the asking. Aquinas distinguished firmly between eternal, divine, natural and human law (see reading at bottom) and like Plato and Aristotle, set reasonable limits on the last.
To begin with, there are two quotes firmly associated with the concept of jurisprudence. I think they are Roman, but I have yet to find solid attribution, not being a classical scholar. The first is: "civilization presupposes respect for the law" — that is, law is a foundation of civilisation and dictates the tone and colour of what we suppose to be civilisation. The second is: "the great problem for jurisprudence is to allow freedom while enforcing order" — that is, the wise provision of law must allow for the interplay of human free will (whether it exists or not) while acting as a bulwark against chaos. The first quote refers to analytic jurisprudence, in which we study law as it defines society and societal behaviour; the second refers to normative jurisprudence, in which we study what the law ought to be, and not just what it is.
Take, for example, the concept of 'entrapment'. This is a legal procedure within certain limits — police are allowed to set traps to catch criminals. But what happens if a person who is not ordinarily criminal is enticed into criminal activity by the police and then arrested and charged for this? The analytic case says that if the enticement was not illegal and the activity was illegal, throw the book at that person. The normative case says, "Hold on... isn't there something wrong with the creation of criminal activity? Even if the person has free will, it is not right to offer a choice he would never otherwise had — else many more criminals would be made from 'criminal potentials' than otherwise would exist." So how should we define 'entrapment', and how far should the police be allowed to go?
Similarly, consider a person who builds a house in a vacant plot which he owns, with no neighbours. He is used to singing loudly in his shower, but there are no neighbours, so he is not making a nuisance of himself. Over time, the government acquires part of his land and builds houses around him. He is now a nuisance even though his behaviour has not changed. It is clearly true that his role has changed even though his behaviour has not; this case defines how humans should respond to the law in one sense - that is, we are creatures of will who can choose to comply to a law which has come to affect us.
Lastly, consider a law against possessing visible tattoos. Taking a reasonable approach before the proposed law is passed, Jack gets a butterfly tattooed on his scalp, arguing that he has no intention of shaving himself bald, and if his hair falls out he will wear a cap or a wig. Then something terrible happens. A law requiring all to be bald and another one prohibiting the use of artificial headgear are both passed without prior warning. Now Jack has to go for laser surgery...
That last example sounds extreme. But what if we were to reasonably request that people should not distract others by showing garish undergarments — and then decided that people should wear clear plastic clothes? Then, de facto we have prohibited the wearing of garish undergarments, which is certainly an infringement of personal choice, even if it does protect the more sensitive among us.
The bottom line, according to Aquinas and others, is that a law seen to be unreasonable undermines societal respect for the law, to the detriment of public order and eventually society itself. Hence lawmakers have a responsibility to ensure that laws are reasonable, fair, enforceable with clear penalties, and not unnecessarily restrictive.
Iuris prudentia - the wise provision of law. May law remain wise, and wisdom remain law!
=====
Further Readings:
Philosophy of Law
Thomas Aquinas on Law
Human beings are famed lawmakers, both for good and ill. History has etched into its steles of chronicled time the names of Hammurabi, Asoka, Moses — those whose legal codes have resonated down the ages to the present day. Our concepts of good and evil, of justice and fairness, are hopelessly entangled with our concepts of law and order. When God (or a god, or a pantheon of gods) set a code of law into stone tablets, it was possible to equate legal to moral, ethical and necessary. The impact of this mindset made it impossible to ask the question, "Can a law be immoral, unethical or unnecessary?"
But the present age is full of man-made laws. And if the laws are made by mortal men, it becomes necessary to ask that question and deal appropriately with whatever comes of the asking. Aquinas distinguished firmly between eternal, divine, natural and human law (see reading at bottom) and like Plato and Aristotle, set reasonable limits on the last.
To begin with, there are two quotes firmly associated with the concept of jurisprudence. I think they are Roman, but I have yet to find solid attribution, not being a classical scholar. The first is: "civilization presupposes respect for the law" — that is, law is a foundation of civilisation and dictates the tone and colour of what we suppose to be civilisation. The second is: "the great problem for jurisprudence is to allow freedom while enforcing order" — that is, the wise provision of law must allow for the interplay of human free will (whether it exists or not) while acting as a bulwark against chaos. The first quote refers to analytic jurisprudence, in which we study law as it defines society and societal behaviour; the second refers to normative jurisprudence, in which we study what the law ought to be, and not just what it is.
Take, for example, the concept of 'entrapment'. This is a legal procedure within certain limits — police are allowed to set traps to catch criminals. But what happens if a person who is not ordinarily criminal is enticed into criminal activity by the police and then arrested and charged for this? The analytic case says that if the enticement was not illegal and the activity was illegal, throw the book at that person. The normative case says, "Hold on... isn't there something wrong with the creation of criminal activity? Even if the person has free will, it is not right to offer a choice he would never otherwise had — else many more criminals would be made from 'criminal potentials' than otherwise would exist." So how should we define 'entrapment', and how far should the police be allowed to go?
Similarly, consider a person who builds a house in a vacant plot which he owns, with no neighbours. He is used to singing loudly in his shower, but there are no neighbours, so he is not making a nuisance of himself. Over time, the government acquires part of his land and builds houses around him. He is now a nuisance even though his behaviour has not changed. It is clearly true that his role has changed even though his behaviour has not; this case defines how humans should respond to the law in one sense - that is, we are creatures of will who can choose to comply to a law which has come to affect us.
Lastly, consider a law against possessing visible tattoos. Taking a reasonable approach before the proposed law is passed, Jack gets a butterfly tattooed on his scalp, arguing that he has no intention of shaving himself bald, and if his hair falls out he will wear a cap or a wig. Then something terrible happens. A law requiring all to be bald and another one prohibiting the use of artificial headgear are both passed without prior warning. Now Jack has to go for laser surgery...
That last example sounds extreme. But what if we were to reasonably request that people should not distract others by showing garish undergarments — and then decided that people should wear clear plastic clothes? Then, de facto we have prohibited the wearing of garish undergarments, which is certainly an infringement of personal choice, even if it does protect the more sensitive among us.
The bottom line, according to Aquinas and others, is that a law seen to be unreasonable undermines societal respect for the law, to the detriment of public order and eventually society itself. Hence lawmakers have a responsibility to ensure that laws are reasonable, fair, enforceable with clear penalties, and not unnecessarily restrictive.
Iuris prudentia - the wise provision of law. May law remain wise, and wisdom remain law!
=====
Further Readings:
Philosophy of Law
Thomas Aquinas on Law
etched with acid at 5:01:00 pm
7 Comments:
Someone (I can't recall who off-hand) mentioned that God was using entrapment when he placed Adam and Eve in the garden of Eden and warned them that 'You must not eat fruit from the tree that is in the middle of the garden, and you must not touch it, or you will die.' There. I made you both. You can have whatever you want. EXCEPT FOR THAT TREE OVER THERE. DON'T YOU EVER GO TOUCH IT.
Ahem.
The point, obviously, is that there was no other kind of way in which moral choice, and hence freedom to choose, could be made possible. Of course, free will is quite another matter - as is divine providence. The wise provision of law...
I tend to favour social contract theory, in the sense that we could even minimise (or began to eliminate) most of the functions of the state and replacing them with the functions of citizen peers. But that would require a mature society.
We give up the ability to kill, so that we may have the freedom to live. Etc. In this essence, we try to maximise our liberty. Even in the nature of consent of the governed, the majority would not necessarily tyrannise the minority, because everyone holds a minority interest in some way.
Therefore the wise citizen would not consent to majoritarian principles (tyranny of the majority) against a minority group, since this would open the door to him being tyannised himself. In this essence the fundamental rights of liberal democracy are enforced in a libertarian manner.
so sayeth the true idealist...the pragmatic idealist would tend to agree with the cynic's findings.
...but i like your taste in music ;)
the law only works if you get caught.
run!
Reply to the fascist top post you need to read the writing of Genesis before making wild claims of what was written.
Well, I'm sure he was just being facetious. It's a slightly mischievous summary of the woman's misperception (in Gen. 3:2) of God's statement to the man in 2:15-17.
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