How should we understand laws and legal authority?

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This idea came to mind at one point, so I decided to put it forward as a question. How should we understand laws and legal authority?

Are laws supposed to be in accord to an external justice or good, where laws that fail this are not truly laws?

Are laws in accord to societal/psychological notions of justice and/or just authority, where laws cannot be so if they violate principles of our social/psychological notions of how things should work?

Are laws mere expressions of the whims of the powerful? Where a law cannot be a law if the powers that be do not consider it such?

Are laws agreements between government and governed, and essentially democratic?

Is the very notion of a law, a flawed sociological/philosophical assumption, as laws carry traits that cannot be bound in a single concept? (requires acceptance but acceptance will not be given by members of a populace, requires an external moral form that does not exist, requires a contract but none can exist)

What is the purpose of a law? (morality, efficiency, stability, etc) By what measure should it be judged? (morality, efficiency, stability, etc) What attitude should people have towards laws and legal authority? (respect, distrust, outright rejection, consequentialist notions, etc) What attitude should govern legal authority in the first place? (consequentialism, stability and precedent, social agreement/social norms, etc)

Laws lay out the lines of social interaction and they must be enforced to be effective. Different types of societies have different methods for creating laws and adjusting as to how they operate and can be changed.

How 'bout narrowin' the question: How do you feel about Congress?

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Here's one opinion, that I hope is enjoyable:

[youtube]http://www.youtube.com/watch?v=sM9KcAS5_K4[/youtube]

The creation of laws out of the minds of men is sort of like picking mold off bread.

Regarding Western democracies only: At one level laws are assumed by the populace to ensure the cohesion, life and liberties of the people from those who would "unfairly" oppress them. However, when people are propelled into the position of politicians and law makers it is often vested interest groups, and big business that pays for their election campaigns or provides other "perks", so the impartiality of the law making process is brought into doubt.

Hence I voted "Power". However, as with most things in life I guess the picture is much more complex and muddier than the options on the poll would suggest.

Isn't exactly the same question. Part of the issue at hand is whether Congress can actually pass laws by voting on them, for instance, if laws all must correspond to natural law, then Congress cannot do this, and this stands even if Congress is saintly or demonic.


I don't fully understand? Is it stupid? Is it an attempt to clean away impurities in moral conceptions?

Well, it always is more complex.

A reason I wouldn't emphasize power is because of the question of whether power = law. Let's say that I had a gang of thugs, more powerful than any other group around. Does this give me the right to set rules that others are obliged to obey? I mean, most people do not treat the US government like a big thug, but rather agree with it willingly, and there is the notion that a court ruling is "wrong", even though a power perspective cannot claim that legal enforcers are wrong because they make the law what it is.

That's another reason why "How do you feel about Congress?" is a bad conception of what I am getting at, because "How do you feel about the Supreme Court?" would also be somewhat effective as well, as if laws relate to justice, then the Courts should throw out bad laws without regard for constitutionality. If laws are about power, then the courts are always right, even if they are absurd. If laws are about psychological need then good court decisions are simply the ones that maintain sociological rules, without regard for ethical theory or pre-existing agreement. If laws are about social agreement, then congress and constitutions seem to become very important, as law is then to be understood as a branch of a pre-existing notion of the contract.

I think there is one pretty big assumption that slipped by you with regards to the Power perspective... And that is the assumption that laws are always right. I strongly believe that law has absolutely nothing to do with morality or right and wrong, so it's very possible for the courts to be wrong even from a power-based perspective to law, as the simple answer is that the law they enact is inherently wrong, even though it is enforced without question because no one has the power to challenge it.

Based on this principle, I voted inherently flawed, although social/psychological is a strong contender. The main problem I have is that the concept of law claims (as far as a concept can claim anything) to be about morality when in actuality it is nothing of the sort... Essentially I find the way in which law is defined in the justice system today to be fundamentally flawed, although I am still a proponent of having true guidelines to conduct based on justified/justifiable and well reasoned morality.

Last edited by BobTheMartian on 04 Apr 2009, 2:40 pm, edited 1 time in total.

Laws and Legal authority =/= What's right

The only way to enforce laws, is to threaten and/or use power. They wouldn't be in a position to make laws otherwise. So I'd say it's about power.

Well, what I meant by "courts are always right" is that nobody can say that the court isn't properly maintaining the law, or that the cop isn't properly maintaining the law. There is no law outside of the cop or courts to refer back to. So, I'd say that you misinterpreted what I was trying to get at, for instance, take the notion: "I think abortion is morally appropriate, but I think Roe v. Wade was an improper action by the court", well, the issue is that there is no language to say that if all laws are just matters of raw power, rather than any other formulation.


I can understand that perspective, and that's why I included the option.

Ah... I stand corrected, then. In that case, I think you'd have to look to the highest level of power and authority. The courts could be wrong only if they disagreed with the ideas of a higher authority, ie. the highest seat of power, or with the majority in the case of a split body of highest authority. The cop could easily be wrong because there is a law outside of his jurisdiction. Even though his power may be absolute in a given situation, in the grand hierarchy as long as there is a higher level of authority/power that exists it could retroactively look back and deem his actions to be wrong. In addition, the highest authority could indeed look back and deem its own actions to have been wrong if it is so inclined.

The idea I'm trying to convey is that I don't think that power itself defines law, but rather gives the body *with* power the ability to define law. The distinction isn't really practical and is only meta-ethical, but nevertheless it's there. It means that having absolute power doesn't automatically make your decrees law unless you also consciously choose for it to be so. In effect, it adds a middleman. Power =/= law but rather can lead to law through an independent intermittent mechanism (in this case, governing consciousness that wields absolute power also wields lawmaking ability; the two always exist together but do not necessarily equal each other.)

Well, of course, part of that depends on one's moral perspective, however, some would argue the opposite, as can be found in the beginning of the US Declaration of Independence.



As the underlined sections indicate that authority dissipates when the laws violate moral rules, as it then becomes the right of the people to change or overthrow that failed legal notion. The non-underlined section indicates a contractual/agreement based notion.

An issue is that many laws enforce themselves as well. For instance, in juries, people sometimes have the power to throw a case out, and they aren't coerced not to do that, but they still mostly end up pushing for the laws to be carried out, although issues where these laws violate the jury's sense of justice, there might be alterations. Not only that, but most people follow laws to a greater extent than fear would likely indicate.

I disagree, as you seem to be making law outside of power/action. The cop is the most powerful being, and the law is only disagrees with him if the law intervenes, otherwise, who is to say what the law really is? The notion of a grand hierarchy seems meaningless if there is no notion that a grand hierarchy acts, or that this hierarchy has any bearing on the situation.

In any case, if this higher authority looks back upon itself or another, it could deem an action to be wrong without regard for any external, so this still does not avoid boiling down the law to an act of will.


Well, meta-ethics is important. Frankly, I am not trying to start an argument with you on this one.

I do agree that the law requires power, and the notion that the power-holder(not absolute power because that does not exist) is also a legitimate law-providing force. The two often exist together, but I think they could actually be separated in a hypothetical instance, but that denying the necessity of one or the other is problematic.

Laws are the most visible effect of mankind's' unending quest to be more than animals. They're imperfect both in creation and enforcement but when compared to alongside the "law of the jungle" that created mankind evolved out off they're astonishingly impressive, the underlying concepts like human rights and that both weak and strong are equal before the law are breathtakingly beautiful. I'm actually getting misty-eyed typing this

In regards to courts enforcing bad laws: they sort of have too. Have a look at Seperation of powers, I won't claim to have all the answers but there are reasons why judges can't decide that yes you did break the law, but this should be an exception. What I will say is that blame ultimately lies with whoever wrote the bad law, a system where judges can tell politicians a law isn't working is required (and most democracies have one) and finally judges deserve some flexibility its just a question of how much.

As for the law basically being the strongest thug in the jungle with a fancy suit, mostly its not. Modern Democracies right back to the Magna Carter* it was about protecting the week from the strong, regardless of weather strong meant a bigger sword or a bigger pile of gold. I know it dosn't always work and there are some major holes when it comes to prostituting CEOs and politicians but considering most people can safely live life without any weapons or fighting skills, and the richest corporations have strict rules on how they can treat even the lowliest employee I think the law is doing a lot right.


*I think that's the root of modern democracies, I don't think much if anything can be traced back to the Ancient Greeks.