Rebirth of Reason


Principles and the Law
by Joseph Rowlands

There are two prevalent opinions about how laws should be enforced. There's the literal camp, who claim that the rule of law requires that the laws be followed exactly. And there's the "spirit of the law" camp, who think all laws should be interpreted based on what the judge thinks the intent of the law was or is. Both sides have major problems.

The "spirit of the law" camp makes the laws non-objective, and keeps people guessing at how a judge might interpret them. Since they are reading more into the laws then is actually there, it gives them a lot of room to toy with the system. So the literal camp is right in that it violates the rule of law.

The literal camp also has a problem. Often laws end up being written for some case, but they are written in a way to accidentally include other cases. The results can end up being grave acts of injustice. It's these kinds of cases that make people excuse judges when they deviate from the law.

The problem is that laws are written in the form of rules, instead of principles. Moral rules are in the form "You must do this". Moral principles are in the form, "To achieve this, you must do this". Rule based ethics are always a disaster because the rules are context-free. They're suppose to be taken as absolutes. But our moral choices should be based on what we're trying to gain. Moral acts are always goal-directed. Moral rules ignore the values you seek to achieve. Since they ignore all context, appeals to the desired ends are irrelevant.

Moral principles have context built into them. They show a relationship between means and ends. They never elevate the means above the ends, sacrificing the ends along the way. If the ends won't result from the means, then different means should be used. There is no absolute adherence to rules that defy their own purpose.

Laws are an attempt to objectify the use of force in society. They describe the moral boundaries that cannot be crossed, and the punishment for crossing them. Laws, though, are written in the form of rules. This leaves them devoid of context. Just as with moral rules, these only achieve positive ends in some circumstances, and in others, it encourages deviation. The "spirit of the law" tries to resolve this problem, but actually creates an entirely new set of problems.

So how about writing laws in the form of principles? This is the only workable method of solving this problem. It would describe not just what acts are criminal, but why they are criminal. One could then show that a particular case doesn't fit within the context of the law, so it doesn't apply. Or one could argue the against the law on the grounds that it doesn't achieve the desired ends.

This would have the added effect of showing that laws are not mere dictates from the current thugs running the show. They are means to achieve a peaceful society.

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