Sunday, December 13, 2015

The end of law: peace, order and the common good

1. Jay in Federalist No. 2

Nothing is more certain than the indispensable necessity of government… the people must cede to it some of their natural rights, in order to vest it with requisite powers.

2. “Law is said to bind those subject to it, and whoever is bound find his freedom curtailed to some extent.”

3. “The purpose of law [is]… to protect and promote true liberty. Law tends to make men good, directing them to their last end pointing out to them the means necessary to this end.”

4. Plato.

Mankind must have laws, and conform to them, or their life would be as bad as that of the most savage beast. Plato, Laws IX, p. 754 The reason for this “No man’s nature is best for human society; or knowing, always able and willing to do what is best.”

5. “True are or politics is concerned, not with private but with public good (for public good binds together states, but private only distracts them); and that both the public and private good as well as of states is greater when the state and not the individual is first considered.”

6. Although a person knows in the abstract that this is true yet if he be possessed of absolute and irresponsible power, he will never remain firm in his principles or persist in regarding the public good as primary in the state, and the private good as secondary. Human nature will always be drawing him into avarice and selfishness, avoiding pain and pursuing pleasure without any reason, and will bring these to the front, obscuring the juster and better… For if a man were born so divinely gifted that he could naturally apprehend the truth, he would have no needs of laws to rule over him ; for there is no law or order which is above knowledge, nor can mind without impiety, be deemed the subject or slave of any man, but rather the lord of all. I speak of mind, true and free, and in harmony with nature. But then there is no such mind anywhere, or at least not much; and therefore we must choose law and order, which are second best.

7. Aristotle

“Now if arguments were in themselves enough to make men good, they would justly… have won very great rewards… [but] they are not able to encourage the many to nobility and goodness. For these do not by nature obey the sense of shame, but only fear, and do not abstain from bad acts because of their baseness but through fear of punishment; living by passion they pursue their own pleasures and the means to them, and avoid the opposite pains, and have not even a conception of what is noble and truly pleasant since they have never tasted it.”

8. For he who lives as passion directs will not hear arguments that dissuades him, nor understand it if he does; and how can we persuade one in such a state to change his ways? And in genera passion seems to yield not to argument but to force. The character, then, must somehow already be there already with a kinship to virtue, loving what is noble and hating what is base.

But it is difficult to get from youth up a right training for virtue if one has not been brought up under right laws; for to live temperately and hardily is not pleasant for most people, especially when they are young. For this reason their nurture and occupations should be fixed by law; for they will not be painful when they have become customary.

9. [E]ven when they are grown up, practice and be habituated to them, we shall need laws for this as well, and generally speaking to cover the whole of life; for most people obey necessity rather than argument, and punishments rather than the sense of what is noble.

10. [I]f…the man who is to be good must be well trained and habituated, and go on to spend his time in worthy occupations and neither willingly nor unwillingly do bad actions, and if this can be brought about if men live in accordance with a sort of reason and right order, provided this has force—if this be so, the paternal command indeed has not the required force or compulsive power (nor in general has the command of one man, unless he be a king or something similar); but the law has compulsive power, while it is at the same time a rule proceeding from a sort of practical wisdom and reason. And while people hate men who oppose their impulses, even if they oppose them rightly, the law in its ordaining of what is good is not burdensome.

11. [W]hat should be the conditions of the ideal or perfect state; for the perfect state cannot exist without a due supply of the means of life… There will always be a certain number of citizens, a country in which to place them, and the like.

12. [A state even if great by numbers] [W]e ought not to include everybody, for there must always be in cities a multitude of slaves and sojourners and foreigners; but we should include those only who are members of the state, and who form and essential part of it.

13. [Aristotle then argues that size makes a country more difficult to govern as laws cannot be efficiently and effectively implemented even-handedly.] Moreover, experience shows that a very populous country can rarely, if ever, be well governed; since all cities which have a reputation for good government have a limit of population… For law is order, and good law is good order; but a very great multitude cannot be orderly: to introduce order into the unlimited is the work of a divine power—of such power as holds together the universe. Beauty is realized in number and magnitude, and the state which combines magnitude with good ordr must necessarily be the most beautiful.

14. Aquinas

Article I. Whether law is something pertaining to reason? Law is a rule and measure of acts, by which man in induced to act or is restrained from acting [law is derived from ligare (to bind), because it obliges one to act.]

15. Article 2. Whether the law is always directed to the common good? It would seem that the law is not always directed to the common good as to its end.

a. Objection 1. For it belongs to law to command and forbid.

b. Aquinas Answers: Now the first principle in practical matters, which are the object of practical reason, is the last end; and the last end of human life is happiness of beatitude… Consequently, the law must regard principally the relationship to happiness.

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