Reclaiming the Meaning of Law

posted at 11:26 pm on July 16, 2010 by J.E. Dyer
[ Abortion ]   

MadisonConservative and Pajamas’ Zombie have each put down a stake in the abortion debate this week, and one of the most important things their posts highlight (unintentionally, I think) is how different our understanding has become, over time, of what it means to deal with something through the method of law.

Zombie starts out praising the moral consistency of Sharron Angle’s position on abortion, which is that it’s always wrong, even in the case of rape or incest.  If abortion is murder, then nothing can make it not-murder, in a moral sense. (Even the extremely rare case of the baby being a threat to the mother’s life would also, presumably, be covered by this principle.)  Life is life, and a baby in the womb is, by definition, innocent life.  The position of many Americans that abortion should be prohibited except in the case of rape or incest is, in Zombie’s formulation, “full of crap.”

MadisonConservative, struck by Zombie’s argument, admits to having once held that “cookie-cutter,” full-of-crap view himself.  His ultimate thesis, however, is that “pro-choice” is a term that has been hijacked:  it really means “pro-abortion,” in terms of actual political positions today, and it needs to be reclaimed for those who favor overturning Roe v. Wade and sending the whole issue back to the states.  (Something I agree with, incidentally.)  Some states may permit abortion, and presumably others may prohibit it; but the point about the expression “pro-choice” is that it should refer to a political perspective held by voting citizens in a contest they decide, rather than signifying an a priori principle – like Roe v. Wade’s appeal to a “privacy” right – that is actually anti-choice, in that it preempts the citizens’ political prerogatives altogether.

Of the two energetic and interesting posts, I think MadisonConservative’s gets closer to treating abortion as an issue of law, in the classical Western sense.  But it starts out accepting Zombie’s premise that it is inconsistent for a citizen to consider abortion absolutely wrong, and yet be willing to live with exceptions in law.  That concept is at the heart of our modern problems with an overweening state and a disadvantaged citizen, and it bears calling out.

One of the West’s signature achievements, embodied most successfully in the framing of the U.S. Constitution, is the premise that law is a pragmatic tool for governance, but it is not a set of rituals or expressions of belief that have a transformative power for the citizenry.  The Western idea asserts that law should have moral motivation – we shouldn’t write it with evil intent – but that it is not expected to transform outcomes in human society to the specifications of a moral code.

The reason it’s not expected to is that law is a human system, administered by humans, and therefore is inherently limited and subject to error.  One of the chief limitations of law is that it cannot make us good.  A corresponding limitation of law is that it is a blunt and negative tool:  it can punish, deter, and bribe us, but it cannot inspire or console us.  Law is enforceable only as a lowest-common-denominator statement of public intent:  a set of thou-shalt-nots, with a few material thou-shalts thrown in (e.g., thou shalt be insured if thou wishest to drive).  It cannot be enforced – it cannot produce the desired result – as a tool of moral self-improvement or community enhancement; when we try to use it that way, we fail.

Law is, again, a tool, not an embodiment of moral aspirations.  In this Western, classical liberal concept, its most important practical characteristic is being executable.  Law isn’t used to proclaim what we believe, what we wish, or what we’re annoyed by; it’s used to produce order and regularity in community life, through processes that can be replicably administered over and over again.

When we want to discourage murder, we don’t write a law that says “Murder is bad” or “We hate murder” or even “Thou shalt not murder.”  We write a law that defines murder for the purposes of law, and sets punishments for those found guilty of it.  We hope the threat of punishment will deter murder, but we also understand that it sometimes won’t, which is why we prepare in advance to punish it.  We go into the process of law knowing that what we hate, hope to discourage, and want to prevent is likely to happen anyway, but that administering our system of law is the imperfect best we can do to minimize its occurrence.

That has been the understanding of law that has made the Judeo-Christian West uniquely hospitable to liberty.  Since the late 19th century, however, modern philosophical movements – of which Marxism has been the granddaddy, in the realms of politics and economics – have reverted to the historically common practice of treating law as a means of implementing various secular “Kingdoms of God” on earth.  For those movements, law is precisely a method of proclaiming an aspirational morality; it’s just that in their modern case, the aspirational morality derives from collectivist ideology.

One of the most fundamental ideas of Western classical liberalism is that the state’s central government can’t pretend to adjudicate, as if for the ages, all the questions of right and wrong that arise in the consciences of men.  This is why America’s Framers were so careful to place checks on the incorrigible tendency of a central government to take on that heroic project.  But collectivist movements see it the opposite way.  As far as they’re concerned, central governments that are out crusading with laundry lists of hortatory moral law are doing exactly what central governments exist for.

Americans have largely lost sight of how deeply collectivist and anti-libertarian it is to talk about public issues as if writing detailed laws – laws intended to coerce everyone to a single solution – is the only way to address them.  And that brings me back to Zombie’s discussion of Sharron Angle and abortion.  I suspect that Angle’s morally consistent position doesn’t mean that she wants to rewrite the law – either in Nevada or at the federal level – to punish a 13-year-old who has an abortion after being raped by her father.  I’m not just pulling this out of my hat, either; Angle’s words quoted here suggest as much (and suggest, indeed, that she might not even insist that the 13-year-old carry her child to term).

It’s one thing to state what you believe about the morality of abortion.  It’s another to formulate what laws you either think are best for your community, or at least would be willing to live with.  And these latter are the terms in which we have to talk about this as a political issue.  What matters to the prospects of our laws is translating moral positions through the methods of law.  To be meaningful – to qualify as the foundation for the “rule of law” – law must first of all be executable in a practical sense.  Proclaiming that abortion is wrong in all cases is not an outline of executable law, any more than proclaiming murder to be wrong will produce a concrete result unless you define acts of murder, hire police, elect yourself a district attorney, set up a jury system and some courts, build a prison, and decide whether you want to incarcerate or execute.

We need to be clear in our minds that in her discussions of abortion, Sharron Angle has not, as far as I can tell, enunciated a specific position on executable law.  That doesn’t mean she doesn’t have one.  But it does mean that her moral position on abortion isn’t the equivalent of one.  Stating what your moral beliefs are isn’t the same thing as outlining the laws you’d like to see adopted and enforced.

Americans used to be raised to understand that.  John Adams’ famous statement – “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other” – is a profound reflection of that concept:  something unique to the Western classical-liberal idea of law.  Law has its inherent methods and limitations, and is in its proper place when it is a servant of a moral people, not their master – and certainly not their moral measuring stick.

We need to get back to that understanding, and away from the collectivist mindset we too often adopt today about law’s meaning in community or national life.  We should not expect more of human law than it can deliver, or talk about it as if all our moral positions must be perfectly reflected in it, lest we be hypocrites.  Those who understand that law will inherently be an imperfect translation of the moral precept – e.g., that unborn life is sacred – are not being inconsistent, they are being classical Western liberals in their understanding of law.

Cross-posted at The Optimistic Conservative.

Blowback