Sunday, October 24, 2004

Over at Jcecil3's, he's stirred up a hornet's nest of sorts with a post on society protecting the institution of marriage. Interesting stuff, but what caught my eye that I wanted to post about was the following comment:

There is a misconception that our legal system somehow creates morality in society i.e. "there ought to be a law." Our legal system creates social order and nothing more. Social change has never and will never come from a law being created. In theory does a legal code say something about a society's morality? Of course. But does it regulate said morality? No. We know there are several laws which protect a person's civil rights, but it is sad to say racism is still part of our country's moral fiber. And btw there are still several states with adultery laws on the books. I think it is much more about changing hearts than laws.

I have been reformulating my thoughts on human law. Up until a few months ago, I took the standard Catholic line which is that human laws are particular determinations of natural law, and that natural is based on eternal law. But earlier this year, I discarded the notion of human law as natural law applied to particulars. I also discarded the idea of human law overlapping with morality.

I know what I feel about law, but it is taking me time to atriculate it and flesh it out. However, a quote in the above comment triggered a recognition in me. "Our legal system creates social order and nothing more." I think I agree with that, perhaps not the "nothing more." I probably for now would say "Our legal system's primary purpose is to create social order."

The other tact I am taking is approaching law in terms of human virtue. In the sense that human virtue is inherently unconnected to theological virtues, so that law that reflects human virtues has nothing to do with theological virtues. So you can speak of goals of the law and not get mired in Christian morality talk. Ultimately, this lead us back to natural law, but in a different way. I reject the Church's hijacking of natural law and would rather see it is as something authentically human, natural and historical.

Anyway, in this idea of law, we can speak of virtuous ends of the law, that is, avoid any radical de-ontologizing of law, yet free it from the shackles of religious intrusiveness. So there you have it, this is another post to come.


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