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 So one could analogously say that laws against murder, theft, and assault should be repealed because the laws in this case do not effectively proactively prevent the occurrence of the crime or ensure that every instance of the crime is punished.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.

Some Thoughts on the Distinction Between Moral Rights and Legal Rights

Often it is said that if the law does not condemn an act all have a right to engage in that act. While this statement is correct in the sense that all citizens do have a legal right to do anything that is not condemned by the law, this statement is problematic as it fails to distinguish between moral rights and legal rights and thus encourages us to think of all rights as having a legal character and therefore that anything permitted by the law is permitted in general. Thinking of all rights as having a legal character impoverishes our ethical vocabulary and damages our capacity to explain why we find acts deeply objectionable.

To begin with I would like to clarify my distinction between legal and moral rights. One has a legal right to do something when the law does not condemn performing that act. Contrastingly one has a moral right to do something when an act does not violate any morally salient duties. This is of course an extremely simple distinction, and one that glosses over much of the complexity of rights, but the basic point is that moral rights are wider than legal rights. Most legal rights will have a basis in moral rights, but there will be many moral rights and correspondingly violations of moral rights that will not be touched by the law. For example one may have a legal right to deceive one’s friends for personal gain, by presenting a false picture of oneself, but one certainly does not have a moral right to do so, as it is deeply unethical to deceive one’s friends for personal gain, as this invalidates the entire basis of the relationship of friendship, which is trust, honesty and intimacy. Consequently, there are cases in which our legal rights as citizens and moral rights as ethical agents are distinct.

When someone says that all have a right to do anything that is not prohibited by the law, this can be taken in one of two ways. In the first sense this means simply that a person cannot be punished by the law for doing something that is not condemned by the law. In this sense this statement is clearly correct. In the second sense, this statement means that no one can be criticized from a moral perspective for doing anything that is not condemned by the law. In this second sense we see the erasure of the vocabulary of moral rights as distinct from legal rights, and the reduction of the moral to the legal. Unfortunately, there is a tendency in post-industrial societies to think in terms of this second sense of the statement that all citizens have the right to do what is not condemned by the law. We can see this with the way that people who critique someone’s legal, but ethically questionable actions are met with righteous indignation, and the idea that we should not pass judgment on someone if they have not broken any laws. I don’t mean to suggest that this tendency is totalizing as there are still many who strongly distinguish between moral rights and legal rights, but there are tendencies among certain groups in post-industrial societies to reduce what is morally permissible to what is legally permissible.

The tendency to conflate legal rights and moral rights is problematic as it impoverishes our moral vocabulary and understanding. If we think in this way we still know that murder, rape and theft are problematic activities. But we cannot explain why we admire the loyal, trustworthy friends, over the calculating two faced false friend, because if what one has a moral right to do is the same as what one has a legal right to do, than from the perspective of moral rights the two faced false friend and the honest, loyal trustworthy friend are the same, for we have just as much of a right to be a false two faced friend as a honest, loyal, trustworthy friend.

A person who lacks the vocabulary of moral rights independent of legal rights will likely have the sense that being a two faced false friend is wrong, but they will not be able to explain that the two faced false friend is ethically problematic because he violates the duties inherent in the relationship of friendship. Consequently, he or she will be stuck and have a hard time justifying her moral intuitions and perhaps begin to cease believing in them. If such an attitude becomes widespread in our society we are surely in trouble as much of what enriches our lives are acts and relationships that while not actively regulated by law, are nonetheless structured by particular moral rights and obligations, so in order to keep these practises healthy and secure we must ensure that our ethical vocabulary and understanding of moral rights does not deteriorate.

It should be noted that I am in no way suggesting that morality is rights-centric and can be reduced to a set of rights and correlative duties, but rather I am merely suggesting that rights language is a part of morality. There are certainly many reasons why particular acts that are not prohibited by law are unethical and problematic beyond the fact that one does not have a moral right to perform a particular act. For example, I may not have a moral right to ignore my friend’s phone calls when we are having a dispute, but this is not merely problematic because I am deceiving my friend. It is also problematic because it reveals that I am a coward, and cowardice is certainly a vice. So, while I am using rights to ground my discussion here, I am not suggesting morality is rights-centric.