MonoRealism Philosophy Site

It's The Law

Philosophical Reflections XXXV

Part A

In Philosophical Reflections 34, we looked at the philosophy of government, one of two more specialised philosophies grounded in the philosophy of politics. Now we turn to the other derivative of politics, the philosophy of law.

The basic question is what is the purpose of the law? Once we answer that, we can consider how that purpose is best achieved.

If the fundamental principle of an objective theory of politics is individual rights, then the purpose of the law is to set the detailed rules by which those rights are defended.

In a free society, the government is not a ruler but the agent of the people's self defence. Consequently, neither government officials nor private citizens can act on their personal whim when it comes to the use of force. The government cannot, because it must serve people's rights; the people cannot, because those rights require that self defence is delegated, so that all force is held under objective not subjective control.

One of the triumphs of Athenian philosophy was the realisation that objective trials must take the place of personal vendettas if justice is to be achieved. This was dramatised by Aeschylus in his Oresteia trilogy, ending in The Eumenides when the tragic cycle of revenge for revenge for revenge was finally stopped by holding an objective trial with judgement rendered by the court.

It is the law which provides objective control over force, and this defines its purpose in more detail. Both the government and the people are subject to written law, which puts the use of physical force under objective control, achieving John Adams" prescription that we must have "a government of laws and not of men." Government officials are as subject to objectively defined laws as anybody else, and citizens always have the right to query their actions in the light of those laws.

Thus the law defines on the one hand what people are forbidden to do, and on the other hand what the government can do to enforce that. The latter has two parts: how to determine guilt or innocence, then what to do about it.

We have seen in earlier Philosophical Reflections that the animating principle of the philosophy of science is truth and that of the philosophy of government is individual rights. Since the law is concerned with protecting individual rights, which requires finding out who did what to whom and acting accordingly, the animating principle of the law is justice. Justice is the purpose of the law, and therefore should be the primary goal of all those working in it, whether police, lawyers or judges.

The purpose of the philosophy of law is to determine what that means and how it can be achieved.

Justice

Justice means giving people what they deserve – what they have earned by their actions. Justice is necessary in human relations essentially because of causality: nothing can be had without somebody paying for it, if not the person who should then somebody else who shouldn't. As Ayn Rand put it:

'there is no escape from justice, nothing can be unearned and unpaid for in the universe, neither in matter nor in spirit – and if the guilty do not pay, then the innocent have to pay it." – Atlas Shrugged.

If consequences such as rewards and punishments are disconnected from actions, then human life is made arbitrary or impossible, because actions are cut off from values and planning from outcomes. If the person who cultivates a crop did not own the result, there would soon be no crops produced at all. Everything achieved in the world requires someone's work and thought, and it is not only proper that the achievement is owned by that someone, but necessary.

In the context of criminal law, in its most basic sense justice means defending the innocent and punishing the guilty.

As the principles of the law ultimately derive from the principles of politics (which ultimately derive from ethics), a fundamental requirement of legal justice is that individual rights must not be violated. This has two facets: those who do or try to violate individual rights have to be stopped, while those who don't should be let alone to live their lives as they see fit. In the law this results in three principles:

  1. that the laws themselves must only target real crimes (ones involving the violation of rights, i.e. the initiation of physical force);
  2. that the guilty should not get away with it; and
  3. that the innocent should not be punished.

The second would mean that the initiators of force are allowed to continue operating, while the first and third would mean the law itself was an initiator of force, whether deliberately or accidentally. The law must abhor both sins.

The first principle, while shared by the philosophy of law, in practice is primarily determined by the philosophy of government and ultimately politics. Thus, invalid laws should neither be sought by the government nor allowed by the Constitution. So while the first principle is essential for valid and just laws, it isn't the legal system's task to achieve it (other than via such things as judges striking down laws that are found to be unconstitutional or otherwise flawed). Part of the separation of powers is that the courts apply the law, they do not write it.

So the law's concern is that those guilty of breaking laws are identified correctly and treated accordingly, while the innocent are identified as such and allowed to go their way.

Thus a critical point of the philosophy of law is how to determine the truth. That is, how do we identify who did what, to catch the guilty and clear the innocent? Or to put it another way, as justice requires giving people what they deserve, to achieve justice one must know what people deserve.

Follow the Evidence

Since the law exists for the objective control of force, only to be used against those who initiate it, the truth of who that is must be determined objectively. Of course, from basic epistemology that is the only way any truth can be determined!

The law shares that requirement with science, but the task facing the law is different, at once easier and harder. In both cases the purpose is to examine the accessible facts of reality in order to discover other, hidden facts of reality. But whereas science deals primarily with principles, learning about broad laws of nature, the law deals with specific events, with who did what when and to whom. While science deals with everything from the subatomic to the intergalactic, it seeks to understand universal principles via the scientific method including reproducible experiments. The law deals with the simpler issue of the actions of people, but those actions are discrete events in the past. In that, the pursuit of truth in law is more like history than science, but as it concerns justice for living people, getting it right is more crucial. Thus its means are the collection and analysis of the evidence surrounding specific events, including how to handle a crime scene, forensic science, what evidence is admissible, how evidence is presented in trials, and the rules for evaluating it.

A detailed theory of legal evidence would require a volume of its own, so this discussion will be restricted to the basic principles.

The purpose of evidence is to discover and prove the truth. To do either of these things it must be both trustworthy and prove what it purports to prove. That is, for the argument if A then B is to prove its case, A must be true and A must indeed imply B.

Being trustworthy demands that officers of the law (including police and forensic scientists) are both competent and ethical. There have certainly been cases where racial prejudice or individual vendettas have led to corruption of the evidence, and when sloppy science has led to unjust results (both convictions and acquittals). Thus for the courts to trust the genuineness of the evidence presented, and therefore for the people to trust the courts, the relevant agencies need procedures in place to guard against, detect, and discipline any breaches. That includes appropriate training, organisational culture, and evidence handling procedures.

Actually proving what it purports to requires proper scientific validation of all kinds of evidence so that the courts have an objective measure of its reliability. Eyewitness identifications, for example, are notoriously unreliable in some contexts – yet humans are extremely good at recognising other people, so it can't just be dismissed entirely. And that icon of forensic science, fingerprinting, is not as reliable as its reputation: less because of the faint chance that duplicate fingerprints might exist, than because the actual state of fingerprints found (partial, smudged etc.) can make identification in particular cases as much art as science.

Similar considerations apply to all types of forensic evidence, from DNA to fibres to insects. The proper studies must be carried out to determine exactly how strong their evidence is in terms of identifying criminals. And it must always be under review. For example, there have been many cases recently in which new forms of evidence (notably, DNA) have established the innocence of people convicted of crimes. Such cases must always prompt a review of why they were found guilty in the first place, and what that implies for the rules of evidence in courts of law.