On Law, Order, and External Force

It is in the very internal logic of Western legal thought that the mere written word has no actual force in itself. Hence the need for a tribunal to apply the general principle to particular cases and the police to physically enforce such abstract judgment. This enforcement mechanism is what orders Western society.

Yes, it would be ideal if citizens simply followed the clear meaning of the law—assuming the law could be clearly understood (a separate juridical problem). But the fact that citizens do not does not thereby necessitate law being reduced to mere force.

Law is an ordering to the good, be it the common good, the individual good, the last end of man, etc. Law by its nature is an ordering of persons in the jurisdiction of the law (society). But the law can only order if it is effectively enforced. Consequently, in the non-ideal situation of not-wholly-voluntary obedience to the law, the very external force behind a law is the order which the law denotes, since only though external enforcement can the law be effectively implemented and order to the good.

This post was inspired by the writings of Chief Luther Standing Bear and is derivative of an original work from 12 September 2014.

The Injunctive, Practical, and Metaphysical Power of Customary and Statutory Law

By the very fact of its written-ness statutory law is weaker than customary law in its injunctive power. For the written law is necessarily external to the individual (positive law), while the customary, unwritten law is in some sense internal to the individual (i.e. human law analogous to natural law, since natural law is in the very nature of the human person). Due to its internal residency, unwritten law is stronger than external, written positive law.

Now this is certainly true on the practical level in cultures with only unwritten law. But unwritten law has less practical force in Western law due to its indefiniteness as to its exact provisions. The enforcement of customary law in a courtroom poses problems and leaves far too much interpretive power  (and possibility for abuse) in the hands of the judge.

With the Western mindset of exactitude and external enforcement, written law has more practical force. With the mindset of personal obedience, unwritten  law has equal practical force to written law in the West. Metaphysically, unwritten law has more force, since it is the spirit of the law and not its letter which has the morally-binding force, and unwritten law is internalized in man in a manner analogous to the natural law residing in the very nature of the human person.

This post was inspired by the writings of Luther Standing Bear, a chief of the Lakota. 12 September 2014.

Rights, Duties, and the Justice of Criminal Law

The debate surrounding treating juveniles as adults in certain cases in criminal law—be it indictment as an adult or being sent to an adult prison—misses the fundamental injustice of the thing: juveniles should not be treated as adults anymore than adults should be treated as juveniles.

Although the common law is less emphatic than the civil law on this point, physical persons are classified into different legal categories. Two such categories are minor (juvenile) and adult (major). With each of these categories come certain duties and corresponding rights. It is therefore unjust to attribute to a minor certain duties juridically attributable to an adult or to deprive him of certain rights juridically deprived of an adult.

With every duty comes a right. Hence  with the duty to follow the law and submit to adult punishment for its breach comes the right to vote, an active voice in society and a corresponding duty to behave for its good. But the minor does not have this right, nor a host of other rights, and therefore does not have the same obligation under the law to submit to the same degree of punishment. To impose a duty without granting a corresponding right is a contravention of justice.

Further, if a juvenile is capable of committing the same heinous crimes that an adult is capable of, and therefore has the same degree of rationality for the purposes of law, then the deprivation of suffrage to juveniles is thereby unjustifiable. The degree of one’s rationality under the law is an all-or-nothing category; adults are presumed to have greater rationality and are therefore accorded greater duties and rights, while juveniles and the mentally retarded are correspondingly accorded fewer duties and rights due to their diminished rational faculties.

It is patently unjust to categorize a person as an adult for the purposes of duty but as a juvenile for the purposes of right. A person is a person; he is either an adult or a juvenile. Justice does not recognize personal duality. Neither should law.