The Mechanical and Symbolic Aspects of Law

The laws of any political community seem to have two aspects. One aspect is mechanical while the other is symbolic. However too often when we think about law we either focus on the mechanical aspect of law at the expense of the symbolic or vice versa. Below I will describe how any adequate understanding of law requires a synthesis of both the mechanical and symbolic aspects of law.

On one hand law is mechanical in that part of the purpose of the existence of a law is to prevent certain kinds of acts from occurring and to create certain outcomes when a transgression of a law has occurred. The law against theft is thus both a technical means to retroactively punish people who have committed theft, and also a technical means by which the presence of theft can be prevented within the community. In this aspect law is just an instrument that is used to prevent certain kinds of acts from occurring, and ensuring that all instances of an act are punished.

But if we think of law only in its mechanical aspect we are left with a great deal of confusion. For example, the argument that the prohibition of drugs by law is a bad idea because people will still find a way to use, purchase and sell drugs and many people are not punished for use or trafficking of narcotics is based on seeing law only in its mechanical aspect. If the purpose of law is to prevent certain acts from occurring and ensuring punishment is doled out, but a law has been historically shown to be unable to perform these functions, than from a mechanical perspective the law seems ludicrous. But while many people may find this argument about the prohibition of drugs convincing it cannot stand on its own because this argument would equally apply to acts such as assault, murder and theft. The fact that we have laws prohibiting assault, murder and theft does not prevent these acts from occurring, as people who want to commit these acts strongly enough and think they can get away with it will still commit these acts. Furthermore, many people who commit these acts are able to get away with it and so law is not able to dole out punishments for all of the instances of the crime that are committed. So one could analogously say that laws against murder, theft, and assault should be repealed because the laws in this case do not effectively proactively prevent the occurrence of the crime or ensure that every instance of the crime is punished. However, such an argument would seem to be absurd as it leads to the conclusion that unless a law is completely, or near completely, efficacious in preventing certain acts from occurring and doling out punishments it should be repealed. And for the foreseeable future at least law in general does not seem to even have the potential to have this level of efficacy.

The preceding thus shows how the mechanical account of law is insufficient, as the mechanical account cannot explain why laws should be retained if they are not efficacious in preventing criminal acts from occurring. So, therefore law must be more than an instrument to proactively prevent people from performing certain acts and to dole out punishments to all who have committed certain acts.

The symbolic aspect of law however complements law’s mechanical aspect as law is not just a means to prevent people from committing acts but a way of a community setting down what it disapproves of, and what people may be legitimately punished for doing. If we take this symbolic aspect of law into account we can distinguish between the case of murder and prohibition of drugs because while both sets of laws may not be efficacious in preventing transgressions of the law from occurring and punishing instances of the crime, the case of laws against murder and drugs differ in their symbolic aspect as the ground for disapproval of murder and the grounds for disapproval of drug use differ significantly. The disapproval of murder typically stems from some notion that one citizen of a community does not have the right to take the life of another, because that other citizen merits respect and must be allowed to live their life. This is thus a case in which we have an interaction between citizens in which one citizen is quite clearly harmed by having their existence negated. Whereas in the case of drug use and drug trafficking it is hard to see how the decision to use drugs is any different from other choices that individuals make about their private lives. People may disapprove of drug use just as they disapprove of other’s religious or cultural practises, but it is hard to see how drug use damages any vital interests of an individual other than the drug user. Similarly, purchasing and selling of drugs seems to be hardly distinct from the purchasing and selling of other unhealthy food items, or legal drugs such as alcohol. So what is doing the work in the argument that prohibition of certain drugs is unwise is not just that the laws are not efficacious, but that also these laws police behaviour that is analogous to behaviour that in other contexts we see no reason to punish through the law. Consequently these laws are arbitrary and unjustifiable, as it seems inconsistent and hypocritical to allow individual to make the choice to consume unhealthy food, while also prohibiting the ingestion of unhealthy narcotics. Therefore, the symbolic aspect of law helps us to better understand law as a whole, and we cannot understand law merely in its mechanical aspect, as the symbolic helps us understand what grounds our disapproval of an act, and whether this is in line with our fundamental values.

Of course there would be those who would argue that the sale and purchase of drugs and their use should be outlawed because they damage the environment in which we raise citizens, as making something legal tends to mandate social approval of what has been made legal. This is a legitimate position for those who think that drug use represents a unique evil that merits state mandated punishment as it threatens to corrupt the youth and lead them down an unproductive path. But this kind of approach raises the further question of what kind of evils that merit punishment does it make sense to regulate through law?

Most people would say that when one person in a committed relationship cheats on another they have committed an evil that merits punishment as they have violated the trust of their partner, and they have revealed that they are not worthy of trust or respect. Yet, very few people would call for a law against adultery because law does not seem like the kind of thing that should regulate these types of acts. The coercive force of law is clumsy and is not the most effective way of helping people to overcome their tendency to commit infidelity. Thus, even though adultery is arguably a social evil, it is not the kind of social evil that it makes sense to regulate through the coercive apparatus of state law. And to bring this issue back to the original subject of drugs, perhaps drug use is analogous to adultery, in that while drug use may be worthy of disapproval and punishment it is not something that should be dealt with through coercive law as coercive law does not help people to deal with the challenge of drug addiction, but just punishes them unthinkingly for engaging in drug use. In this case we see that talking only about the symbolic aspect of law, whether we disapprove of it, and think it should be worthy of punishment, is not enough to determine what law is and ought to be, but instead we need to complement the symbolic aspect of law with the mechanical. If we take account of both the mechanical and symbolic we see that part of assessing the validity of a law involves assessing whether the outcomes that law creates are an effective way of dealing with the problem with the illegal act. It makes sense to address murder through the retroactive application of law as the murderer is a threat to others in the community and thus putting them in prison is a good way of ensuring security. On the other hand the user of illegal drugs is more of a threat to himself than of the community so it is hard to see how fining him or putting him in prison helps the problem that drug use poses as the drug addict poses more of a threat to themselves, than to others.

Thinking this way involves both the symbolic and mechanical as we are both examining what merits disapproval and what kind of society we ought to have, and the mechanical way that different social institutions operate. Unless we can synthesize these somewhat opposed aspects of law our understanding of it will be impoverished.

Advertisements

Logos, Drinks and Justice

Evelyn Femier, Robert Dittleby and Kelly Theosyn sit in a crowded pub near the Liberal Arts college they attend. They share a few pitchers of Sierra Nevada Pale Ale, much to the chagrin of Robert who is upset that Sierra Nevada is three dollars more than the pale ale that is made by the owner of this pub, which in his opinion is at least as good.

After having finished a pint Evelyn asserts “the entire concept of a distinction between higher and lower ways of life is but an excuse for the privileged to oppress those who are below them, by labeling them as somehow lower whether in character, culture or moral purity.”

“If and when we achieve true justice we would have no need for a concept that some modes of life are higher and some are lower, as long as all are equally able to pursue their own way of life there is no reason to even speak of better and worse modes of life. The concept of the better and worse way of life is just a tool used to shame and marginalize the disadvantaged!”

Robert’s cheeks become red from a combination of righteous indignation, the beer and the additional Jager bomb that he had just had. He takes a second to collect himself for fear of coming across as unreasonable and begins “this is typical Social Justice Warrior claptrap; the fact that some people think and say that certain modes of life are better than others does not oppress anyone. These opinions are just projections of the fact that certain people are attracted to certain ways of life, and do not like other modes of life. People need to be less sensitive and realize that the terms higher and lower just signal that the person saying them has a preference for the item they attach the signifier “better” to. To try to prevent people from using these terms would be to prevent from stating their preferences, which is in itself a direct rejection of the right of individuals to express themselves.”

Evelyn responds “that is a strawman. I never said the fact that people have such opinions about ways of life constitutes oppression, but that typically these opinions are used to perpetuate oppression, and that if we are all truly equal these opinions would be unnecessary. These opinions about the superiority of certain ways of life would not be necessary as all would just do what they wanted and leave others to themselves.”

Kelly rolls his eyes and sits there looking at his beer and his glass of Tullamore Dew with a look that at once signals boredom and mild annoyance. He says “can we just talk about something else? Why do you two always have to bicker over this sort of thing. I came here to relax and have a good conversation, not to try to definitely determine the requirements of social justice.”

Kelly then finishes his Tullamore Dew and the rest of his pint and looks off towards the other side of room.

Robert replies “that is a pretty terrible argument Kelly. Are you suggesting that discussing the requirements of social justice is not important?”

“That is not it at all. Discussion of that topic is certainly important, it is just that you two never have an interest in actually talking to each other. You just continue to assert your position unthinkingly as if by mere repetition you would knock down the other.”

With a confused look on her face, in response, Evelyn says “but how would we avoid talking past each other when we fundamentally disagree about the requirements of social justice? Certainly it is because of this disagreement that we cannot argue in a calm fashion and we end up in a situation of stalemate. Which just proves my point that rational argument cannot overcome this stalemate, as it is only when we all have identical interests and thus no reason to have opposing views that these kind of stalemates will be overcome. And when we have achieved this we will have justice and all will have no need to argue because we will all be able to equally pursue our interests.”

“Yeah. I cannot believe I am saying this, but Evelyn is right. Rational argument between those who disagree will always remain in a state of stalemate and when these disagreements are resolved it is not because of linguistic reason, but because of some other aspect of the situation changes such as demographics or technology. This is why the market and majority vote are the best way of adjudicating claims because the market simply gives the object to the highest bidder, and the majority vote just requires us to count up how many support a particular position. Either way we avoid the need to get into messy, intractable arguments.,” Robert adds.

Kelly sighs and says “you two miss the point again. It is true that argument between those who disagree, even when done in good faith, tends to continue in stalemate. But this tendency does not mean that argument cannot establish agreement between those who formerly disagree, which is what both of you have asserted. Haven’t we all had a point in our life where we realized that we were wrong about something after another has corrected us and shown us to be holding a position that we ourselves could not accept?”

The waiter comes over and interrupts “another pitcher, another Jager bomb for you, and another Tullamore Dew for you?”

“Yes, sure” the trio reply, and immediately after the waiter walks way

“Based on what I was saying before I was interrupted doesn’t it seem possible for speech to allow us to come to agreement even where we deeply disagree?”

“I guess so, but it is rare, so it might not be the most reliable method to adjudicate conflict” says Robert.

“That certainly may be the case, but that just means that reasoned speech may not be the most reliable method to build social institutions on and that other mechanisms will likely be necessary, not that reasoned speech somehow cannot resolve such conflict,” Kelly notes.

Evelyn adds “the point you made about reasoned speech may be true, but we can confidently say that actually existing reasoned speech is constitutive of existing relations of power. Therefore we never encounter a situation of reasoned speech between equals in the absence of power relations, but between oppressors and oppressed. In which case reasoned speech is just a mere weapon to either fight the oppressed or continue oppression, rather than a mechanism used to come an agreement about the nature of something. “

Kelly notes “I appreciate your candor Evelyn and your position certainly has a certain consistency to it, but do you really believe this? Let us return to the concept of higher and lower ways of life that began this discussion. Surely as someone who rejects discourse that invokes concepts of higher and lower ways of life. You do not use these concepts.”

“Well, that is not entirely accurate I am willing to use them strategically to unmask existing forms of power and strategically support just causes,’ replies Evelyn.

Kelly looks down again at the table and says “but Evelyn when you utter these arguments to unmask existing forms of power and strategically support just causes, these statements are presented to the one to whom you are speaking as sincere arguments no? You don’t go around qualifying that your argument is just a rhetorical weapon for fighting injustice?”

“No, that would be stupid,” replies Evelyn. “In order for a strategic argument to be effective it must be presented as a sincere argument rather than just an instrument for change.”

“So, you agree that when this argument is presented to the other it needs to take on the appearance of sincerity and thus in the space of appearance of a given conversation the argument must present itself as an argument sincerely saying certain ways of life are better than others. But if this is so than the power of this argument can only be adjudicated based on its insight. The only way this argument will in effect convince people is if it reveals an insight to them, and whether this is insight is contrived for political effect or sincere is really irrelevant.”

“What are you getting at?” Evelyn questions.

Kelly stops drinking from his beer and replies “when you make an argument on any topic including the nature of which ways of life are better and which are worse once the words in the argument have left your lips they do not bear any necessary connection to your intention. The fact that an argument is insincere and just intended to win, does not mean that the argument will not reveal something important to the audience to whom it is presented. And in, and through this revealing while the argument may have been attempted as mere casuistry it actually becomes a revealer of the truth and thus something that can allow those who disagree to come to agreement.”

Evelyn further inquires “sure, but why does this matter?”

Kelly then looked straight at Evelyn and says “It matters because if you admit this than you admit that reasoned speech can lead to the truth even when the reasoned speech is attempted as a mere political vehicle for change. This shows that while there is an aspect of reasoned speech that is vulnerable to being made subordinate to oppression and power, even when someone tries to subordinate reasoned speech to political ends, speech has the capacity to reveal truth. This shows that reasoned speech cannot be reduced to a mere object under the control of human beings, but is rather something that we interact with and which allows us to come to a better understanding even when our desire for certain ends pushes to make disingenuous arguments. If this is the case then even when reasoned speech is involved in existing relations of power and oppression, it contains within it the capacity to subvert the very oppressors that using it to dominate the vulnerable. In which case reasoned speech is not just an instrument of a power, but also a revealer of truths and insight.”

Evelyn glares at Kelly and angrily replies “this is the kind of nonsense metaphysics that merely serves to prevent the oppressed from being liberated. We should not be focusing on who is right, but how to make people’s lives better.”