NationStates Jolt Archive

I had an interesting discussion with my friend, and something came up that we couldn't quite agree on. Namely: What is the source of law? How do we collectively decide that something is okay, and something isn't? Some would argue Judeo-Christian origins, others would argue common consensus, others would argue morality, but what do you believe the law should be based on?

I had an interesting discussion with my friend, and something came up that we couldn't quite agree on. Namely: What is the source of law? How do we collectively decide that something is okay, and something isn't? Some would argue Judeo-Christian origins, others would argue common consensus, others would argue morality, but what do you believe the law should be based on?

What I say, and only what I say.

What I say, and only what I say.
So the law should come from a dictatorship? An absolute power? Where does his authority come from?

I had an interesting discussion with my friend, and something came up that we couldn't quite agree on. Namely: What is the source of law? How do we collectively decide that something is okay, and something isn't? Some would argue Judeo-Christian origins, others would argue common consensus, others would argue morality, but what do you believe the law should be based on?

Common consent is generally pretty good, although you need to add a proviso that the consentees be rational. It's not much of a law if it's built by loonies.

the people.

Common consent is generally pretty good, although you need to add a proviso that the consentees be rational. It's not much of a law if it's built by loonies.
Well by common consent, slavery might still be legal, abortion would still be outlawed (or at least, would have been prohibited a lot longer), marijuana would be legal (I'm assuming), and any number of things would be wildly different. Is it the best way to let 51% of the country decide what's best for the 100?

I had an interesting discussion with my friend, and something came up that we couldn't quite agree on. Namely: What is the source of law? How do we collectively decide that something is okay, and something isn't? Some would argue Judeo-Christian origins, others would argue common consensus, others would argue morality, but what do you believe the law should be based on?

Although I don't consider myself a monarchist, I agree with Hobbes' Leviathan. A ruler's power is created by the people, even if that "ruler" is a democratic committee. I believe a law should be created by an educated minorty acting the majority's best interest. Religion shouldn't have a part in it. Reglion shouldn't have laws because reglion should be volentary. Reglion can have rules and such, but that's not the same thing. A law must be created in the people's best interest, but the majority is fairly incapable of creating them. You need leaders and thinkers like Emperor Justinian or Hammarabi (pardon spelling) to spell out in plain speak what is right or wrong in a given society.

Reality: http://www.school-house-rock.com/Bill.html

Ideal: Opinions differ. Some think that law should prevent sin, and ensure that everyone gets into Heaven. Others think that all crimes are victimful, and that laws exist only to protect people. Others think that everything beyond a certain threshhold of abnormality is illegalized.

A more interesting argument (IMO) would be what the source of law should be.

I would argue if you trace law back far enough, you find idealistic morality and pragmatic government deciding to work together for a common goal.

I think often times the law sustains itself through sheer burecratic momentum. Many times law exists simply because its easier to live with it than it is to remove it. Thus in lawless lands the "law" gains no traction because it cannot gain momentum.

A more interesting argument (IMO) would be what the source of law should be.
Sorry, I mistyped. That is what I'm actually asking. What should the source of law be?

Reality: http://www.school-house-rock.com/Bill.html

A more interesting argument (IMO) would be what the source of law should be.

That's what Arammanar asked. What do you think the law SHOULD BE based on?

Our need to live socially is the source of law. The legitimisation of law is a disputed concept, there is a school of thought that sees law as positivist, what it is it is and until it is changed the fact of a law is it's own justification, others hold that only 'good' or moral laws should be obeyed and are legitimately laws, or that only laws that those they are to be applied to consent to are legitimate laws - basically they must have some justification outside the fact that they exist (naturalist). Throughout history a popular concept was 'divine order' ie God made the King the King so what the King says is what God intended the King to say and we all do it....

Well by common consent, slavery might still be legal, abortion would still be outlawed (or at least, would have been prohibited a lot longer), marijuana would be legal (I'm assuming), and any number of things would be wildly different. Is it the best way to let 51% of the country decide what's best for the 100?

Not necessarily. If sufficient numbers of people didn't agree with the laws of the land, then the society would simply revert back to the state of nature. Societies only exist when the inconveniences of the state of nature outweigh the freedoms you choose to give up to gain the common consent of society.

That's what Arammanar asked. What do you think the law SHOULD BE based on?

Oops, he did explicity type that. He also asked "What is the source of law," and I only paid careful attention to the first question. Sorry.

Anyhow, despite thinking that most libertarians are naive idealists who don't even have good ideals, their take on law isn't bad. Law should exist exclusively to protect the rights of individuals. Of course, that opens the door as to what a person's rights are. . .

Oops, he did explicity type that. He also asked "What is the law based on," and I only paid careful attention to the first question. Sorry.

Anyhow, despite thinking that most libertarians are naive idealists who don't even have good ideals, their take on law isn't bad. Law should exist exclusively to protect the rights of individuals. Of course, that opens the door as to what a person's rights are. . .
How do we determine what rights are and what they aren't? Is marriage a right? I doubt many would argue that life isn't a fundamental right, but then you have to define life, and definitions differ wildly. Is it alright to say a fetus is alive, but not worthy of the same rights as a human, and if so, why?

Oops, he did explicity type that. He also asked "What is the source of law," and I only paid careful attention to the first question. Sorry.

Anyhow, despite thinking that most libertarians are naive idealists who don't even have good ideals, their take on law isn't bad. Law should exist exclusively to protect the rights of individuals. Of course, that opens the door as to what a person's rights are. . .

It might be more accurate to say it leaves a very gaping question as to how expansive you want to claim the "rights of individuals" to be. Libertarians see it as stepping on their freedom if the government imposes living-wage laws on their business. The rest of us see it as the libertarians stepping on our freedom by forcing us to work at a quarter per hour for 12 hours a day, because if we don't, we'll starve.

How do we determine what rights are and what they aren't? Is marriage a right? I doubt many would argue that life isn't a fundamental right, but then you have to define life, and definitions differ wildly. Is it alright to say a fetus is alive, but not worthy of the same rights as a human, and if so, why?

Well, if you say life isn't a natural right, then it would just become a civil, or manmade, right. It's a question of definition, really, but in the end pretty much everyone thinks a person "should be allowed" to live by default.

I'm not touching the fetus question because I'm bloody sick of abortion debates.

All laws stem from a need for common security. Even the last 5 Commandments of Christianity lay the ground work for these securities.

If the question is where /should/ laws come from, read John Locke's 2nd Treatise of Civil Government. It's really a good read.

If the question is where /do/ laws come from, the answer unfortunately is "anyone we (the people who obey the laws) give the power over us to create and enforce those laws." That group could be a democratic government, a military dictator, anyone. "Might makes right" also applies there. Generally, even if you don't consider yourself bound by the laws, you'll suffer the consequences of disobeying them if the group imposing them is stronger than you or your group.