Between law & philosophy

By February 16, 2018 No Comments

There is a significant chasm between the academic and the practitioner. The academic sees the world how it could be whereas the practitioner needs to work within the world as it is. It is the difference between the traditional economics and the modern behavioural economist, the later acknowledges previous failures to take human nature, emotion and behaviour into account in decision making whereas the former is a purist, even an idealist.

The scientist in the lab and the engineer on the worksite both agree on the principles. The difference is in the application.

At the top are the philosophers and the idealists-the generals, whereas at the bottom are the politicians, the enforcers – the foot soldiers. Ideals usually flow from the top down, experience from the bottom up.

It would be fairer so say that the top down approach filters rather than flows down to the bottom. Each ideal needs time for adjustment on the ground. New ideas take time to be accepted, embraced and implemented.

This model plays out most vividly in the balance between philosophy and law.

Philosophy strives to make sense of the world, not only in how it came to be, but more pertinently what it can be. What principles and values should act as the moral beacons guiding us through the darkness? What values should people in general as well as society as a whole strive to validate? What do we as a community stand for and what do we oppose

The legislative machine role is to develop a workable system to promote a civil and functioning society. Structures are put in place to maintain the rule of law, punishing offenders and incarcerating criminals. Strict adherence to the rule of law is a necessity as it is only the law that stands between a functioning society and complete anarchy.

The philosopher paints a picture of a utopian future and the law endeavours to create a system that can bring society closer towards that vision. The law has an underpinning philosophy, but it is not philosophical, like any practitioner, the law’s goal is civility and order- not idealism.

The problem with this paradigm, or to be more specific the challenge of it, is that the goals of the two areas are not identical. Philosophy looks to promote morality and ethics whereas the legal system seeks to promote and support civility and order.

Justice is the raison d’être of the philosophical system, whereas it is appreciatively coincidental in the legal system. Law is concerned with maintaining civility, not justice.

Moral outrage is something that fills every sane individual at some point or another. We see our court systems failing us, terrible criminals who are not sentenced fairly. Victims disappointed that the justice system has failed them.

The banners and slogans that pull on the heart strings of the voters and supporters are often short sighted and misrepresented.

When philosophy translates into law, bypassing the subtle and gradual trickle down affect of legal debate and rigour, the result is chaos not justice.  Immediate implementation of a philisiphy into practical action does occur- it’s called vigilante justice. The great appeal of it can circumvent the legal system in the promotion of its just cause. The problem with it is justice by whose definition? And would the recipient of that justice not similarly feel morally hard done by and deserving of justice?

Should every member of society be entitled to take matters into his own hands when legal outcomes are frustratingly distorted? If so how do we determine the limits of extra-judicial action?

The flow down of philosophy to legislation is one that takes time. It is more of an evolution than a revolution. Slowly the law can be, and is, changed to bring society forward into a more moral era, but it cannot leapfrog the process without being accompanied by anarchy.

The great challenge of law is understanding that often the needs of society as a whole are taken into account over the specific needs of any individual. People will fall through the legal cracks and morally questionable businessmen will exploit  loopholes but overall the law will be fair.

As time progresses and morals and morays change, as per the philosophical developments, the legal community similarly will evolve in due course.

But this is the key, it will be a moral evolution and not a moral revolution. The philosophers lack patience and demand immediate progress, they run ahead leaving society behind. This is anarchy.

Progressive liberals call for revolutnios. Conservatives try to stop the unstoppable evolutionary force. They need to learn to work together.

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