On Law
by
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The law and morality have a special relationship; there is no morality in anarchy. Both deal with how we ought to treat others—a question Socrates found fundamental. It is morality that philosophically defines justice and answers this question, which results in the kind of jurisprudence from which law ought to be derived. To achieve justice, law cannot be divorced from morality. Indeed, when it is, its very validity is brought into question. Natural law embraces the morality that brings true justice to the law. Justice is the human concept that arises from morality, or how we ought to treat others. It is a consequence of the social contract ethical theory. It is a non-theistic ideal grounded in human nature based on self-interest and, principally, the instincts to survive and reproduce. It is a consequence of voluntary and consensual bilateral contracts or agreements between rational individuals. This defines fairness and results in good faith. It is a one-to-one relationship in which two humans relate individually and not collectively. Justice is to treat individuals as an end; it is individual justice and not social justice. The law should embody this concept of justice. The law should be neutral, simple, small and natural, giving no advantage and perpetrating no injustice. Ungrounding the law from this foundation makes it subjective, no more than a social fact, as the positivists claim, and subject to human caprice susceptible to committing injustice. The rule of law and equal treatment under the law should reign supreme. American jurisprudence is shifting to non-natural law, and with this shift, the true nature of justice is gradually being abandoned as an ideal. Courts, which have historically endeavored to achieve equity, must now often enforce unjust laws or reinterpret them to fit circumstances. Once an instrument to bring about justice, laws now sometimes perpetrate injustice. The concept of justice is not a chimera—it is real and personal, and the law ought to embody it.
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About the Book
This is a book about the nature of law and its proposition is law should embody justice-but it does not. It does not because there exists a jurisprudential tug of war today between natural and normative law based on morality and non-natural and descriptive law that claims law is simply a social fact. American jurisprudence, perhaps for the first time in human history was founded on natural law. The Constitution embodied morality derived from the social contract which was derived in part from John Locke who believed the end of law is not to abolish or restrain but to preserve and enlarge freedom. But America is embracing non-natural law and the consequences have been unequal treatment under the law, erosion of the rule of law and injustice in the law. America’s judiciary is in turmoil and this book explains why. It does so by exploring contemporary philosophies of law, important moral theories including the social contract, the nature of justice as well as rights, legal reasoning, punishment, responsibility, procedure and evidence.
About the Author
The author is a philosopher, not a lawyer. He received a Bachelor of Arts degree from Whitman College, a Bachelor of Arts degree in philosophy from Portland State University and a Master of Interdisciplinary Studies degree in philosophy (in theories of the mind and ethics) and Ancient History from Oregon State University. On Law is a condensation of his views on the law mostly from a philosophic ethical perspective. On Law’s inspiration derives from the author’s admittedly idealistic belief that the law should be based on justice. The author finds injustice imbedded in the law particularly odious. In order to understand injustice in the law, the author spent many years researching the history of the law, contemporary philosophies of the law and the law in America today. The result was the unpublished manuscript The Philosophy of Law. On Law is an abridged version of that text.