What is the source of law?

Roy Moore is a former Chief Justice for the Alabama Supreme Court who is currently running for office for the US Senate; specifically for the seat vacated by Jeff Sessions when he was tapped by Trump to be his new Attorney General. I say “former” because he was removed from his post. In fact, he was removed from his post twice; the first time for his refusal to remove a monument of the Ten Commandments from the Alabama Judicial Building (he also commissioned the monument in the first place), and then after being removed and subsequently re-elected to the Alabama Supreme Court, for his directive to probate judges under him that they continue to enforce a ban on same-sex marriages in spite of the loss of the ban after an unsuccessful appeal.

Anyhow, it seems pretty straightforward that Ol’ Judge Roy believes that the basis of law is (and should be) morality, and specifically a Christian morality based on a literal interpretation of the Bible. His stand against gay marriage is clearly a Biblical one. And as such, a monument of the Ten Commandments would make a fitting statement in his courthouse. But I argued in my last couple of posts why I don’t think it’s appropriate to make morality your basis for law; morality (in my view) is not “Absolute.” It’s instead a function (at least for most people) of where you were raised and what religion your parents practiced. If Roy were to have been raised in Saudi Arabia then Sharia would be a fact of life for him and he’d be cutting off the right hands of shoplifters and stoning women to death for sleeping with the neighbor. Of course he’d likely argue that “Well, they’re just wrong! The Holy Bible in all its inerrancy is literally the Word of God and not the Quran, so the Ten Commandments should be posted in our courthouses as the foundations of our law!” Or something like that.

However, and this is the crux of it, many people are highly moral people without any belief in a supreme being who might punish them for their misdeeds. Atheists and agnostics argue that they are good people simply because it’s the right thing to do; having nothing to do with a belief in God. Furthermore, we could all point to people who are (or at least profess to be) people of strong faith (pick any denomination) and yet by most standards would not be considered “moral.” Either in personal ethics, business ethics, or even their relationship with their spouse. So adherence to a religious dogma is only casually related to the actual practice of morality (or ethics), at least by my observation.

But that’s not really the point I’m pursuing here:  where do (or should) laws come from? Should they be based on an external morality guide (such as the Bible, Quran, Bhagavad Ghita, etc.) or is there some other source? Clearly there IS some kind of external foundation, but I think I’ve made a compelling case (in these last few posts as well as others on this blog) that religion is too local, fluid, open to interpretation and divisive to be that foundation.

So what should the foundation for laws be? In my opinion, the current process for making laws works pretty well. It’s actually a combination of underlying principles that I think can be encapsulate as follows:

• What’s going to provide the greatest good for the greatest number or the people? (This is simply Utilitarianism).
• What will prevent the most harm to the greatest number? (A reverse of the above, but essentially the same underlying principle).
• What is the “right thing to do?” (Admittedly this is pretty loose and open to interpretation, but it’s also slightly different from Utilitarianism. See below for my take on how this ties in.)
• It’s better that 10 guilty people go free than 1 innocent person get convicted of a crime they didn’t commit (this is really more of an underlying principle of the criminal justice system, but I think it’s germane; our laws should be created with how they will be enforced in mind).
• A fair sprinkling of bones being thrown to special interest groups. This last is a fact, but not a good thing. A significant number of laws are enacted not to protect society (or individuals) but to benefit a wealthy donor or industry with whom the bill’s sponsor wishes to curry favor. I wish there were a way end this practice, but I think it’s been thus since, well, forever so I’d say it’s unlikely to change.

The issue of “the right thing to do” and how it differs from Utilitarianism is pretty straightforward. What’s best for the greatest number (Utilitarianism) doesn’t protect an individual. It may be best for a large group of people to take property from one individual, but that doesn’t mean it should be done. In fact, the Bill of Rights specifically protects the rights of an individual against the rest of the populace and is pretty much the opposite of Utilitarianism, when applied to specific cases. The old adage that two wolves and a sheep talking about what to have for dinner comes to mind. That may be “democracy” and “Utilitarianism,” but we have laws to prevent an individual’s rights from being trampled “for the greater good to the greatest number.”

I have written before about my views of what makes something “the right thing to do.” And of course this is a question philosophers have been arguing about since well before Aristotle, so I won’t pretend to solve it here but it’s still fun to noodle around.