The conservative/libertarian/status quo/traditionalist/etc crowd all recoil in horror and demand to know why we always want to solve things with laws. With force. With the dreaded, inefficient, corrupt, government. And yet, if libertarians would consider for a few seconds, they must admit that highly educated, highly intelligent people, together with the vast majority of mankind, all agree that 'there should be a law' about a great many things. They act outraged, like it's sheer heresy, when someone proposes to use a law, to use the government, to use force, to further their agenda. And yet it's the most common thing on Earth. It's actually the accepted wisdom. What I want to try is to explain the various advantages a law has, and why the alternative is inferior.
First off, I will break things down into various groups:
Environmental law should be enforced world-wide regardless of national sovereignty. The Earth knows no boundaries and therefore we can't afford them either. If one country overpopulates itself, wastes or hordes irreplaceable natural resources, pollutes the water or air, causes cancer with their open-air nuclear testing, harbors and spreads disease, makes acid rain fall continents away, etc, it cannot hide behind its 'freedom' or 'rights.' The rest of the world is well within its rights to do whatever it takes to restrain these types of people, they are making a direct attack on the outside world, and the future generations of mankind.
Obviously, if some foreign power attacks or invades us, we are within our rights to retaliate, and thus apply a sort of 'law' to the citizens of foreign nations by how we punish them.
If we make a treaty with someone, and then they break it, we are within our rights to seek restitution, even to the point of open war.
But most 'law' has nothing to do with the outside world. The laws that form a civil society, a domestic agenda, are far more interesting, and far more powerful.
First, there's the reality of the world we live in today: In order for vastly different people to live together without falling into civil war, laws must be shaped to somehow accommodate any large group and make them feel like they can have a good life, 'a fair shake,' 'a piece of the pie.' Whether the country is a democracy or an aristocracy or a dictatorship, it's all the same. Even the rulers of China have to find ways to pacify their uighurs, tibetans, hong kongers, etc, and provide continuous economic growth to retain the 'mandate of heaven.' To avoid open violence, and people telling themselves, "What do I have left to lose?" while donning some terrorist ski-cap, a government must balance everyone's needs and give at least something to each group to live by. It can afford to piss off and neglect lone individuals, but even then the price is extremely high. If even a single person feels aggrieved, they could end up in some schoolyard shooting ten other kids. Government is therefore desperate to find some combination of laws that will please, or placate, everyone. On one hand, it can pass a series of punishments to dissuade people from acting up. But to rely only on disincentives neglects human psychology and is ineffective at that.
Charles Dickins describes in his 'Tale of Two Cities,' a London penal code 'gone mad.' The death penalty applied to every little thing, but at the same time, it changed nothing. Hundreds of people were hung monthly, thousands, kids as often as adults, but crime never went down. Though I suppose a government could try to simply round up and kill all 'potential troublemakers' like the Communists did, most people lack the iron will to apply such a solution, and it's not like the communists kept power for long anyway. Compare Switzerland, which has no war and no crime, even with a variety of ethnicities, religions, and languages, and has never resorted to mass murder or ethnic cleansing. The difference isn't will, it's good government. Switzerland can keep the peace between its citizens, not because it is the most ruthless punisher of all legal codes, but because it has somehow crafted for its people a set of laws everyone is content to live by. Everyone thrives under. Everyone has a 'stake' in upholding. This can't be said of ancient London, communist Russia, or other ruthless empires, which have far less peaceful and stable histories than the Swiss.
The goal of good government is to keep passing laws until everyone is happy, content, and can live at peace with their neighbors. The USA has used various bribes like 'the Great Society,' 'The New Deal,' and 'Affirmative Action,' to try and keep the people with no chance in America, and no stake in America, pacified. I don't think it has been the best way to deal with this obvious problem -- but it has worked so far. There hasn't been a civil war in America for about 150 years, crime is low, riots are infrequent, and somehow all the competing interests are kept passive. Almost all of the laws that prevent war, crime, terrorism, riots, strikes, etc, are incentives, not disincentives. Benefits to law abiders, not punishments to law breakers. And over time, the science of politics has realized, almost universally, that it simply has to be this way. Large groups of mutually antagonistic people who could not all survive naturally, in a pure meritocracy, in a pure darwinian competition, must somehow be legislated enough benefits that they will come back to the table and live with one another.
When the rich complain that they have to follow this law, or that law, which they shouldn't have to follow, they should take a few minutes to consider the alternatives. Suppose they don't pay any taxes, or follow any regulations. Suppose they can exploit child labor, house 50 people to a room with no fire escapes or windows, throw dung out into the streets, collect giant harems of otherwise indigent women or young boys, accumulate 90% of the entire nation's wealth into the top 1%. Suppose it were all legal. Does anyone imagine such a law code, such a society, would be stable? Does anyone imagine that the penniless, the single, the childless, the worked-to-death, the starving, the grimy, the landless, the serfs and the slaves, would think to themselves: "God bless freedom and the American way!" Of course not. It doesn't have to be a thought experiment, history tells us exactly what happened: In slow to reform despotisms, the leadership was seized and executed by a people's revolution. The French Revolution and the Russian Revolution followed these models. Around 1900 and accelerating into the Great Depression era, America democratically reformed itself to avoid the same catastrophe. Eventually the whole civilized world passed a series of similar socialist reforms, all of which were clamored for by the vast majority of the people, all of which no one could possibly have stopped from occurring. If some tyrant had tried to stop the process, they would have been dethroned. Even the utterly ruthless communists who refused to pass laws that saw to their people's well-being were eventually dethroned. In Romania, they dragged the hated dictator's dead body through the streets. In Russia, Gorbachev quietly just stepped aside. In China, the ruthless Gang of Four or whatever was replaced by the palatable Deng Xiaoping.
Occasionally, some dictator, in some isolated nowhere, can hold some people at hostage, for some amount of time. This in no way invalidates the fact that a government which does not see to its peoples needs is doomed to fall. It does not matter if it is 'wrong' for some people to get the unearned wealth of others' tax dollars, it does not matter if children 'should' work, or good looking men 'should' have all the wives they want, or if most everyone 'should' be enslaved. The people won't stand for these 'shoulds,' nothing you say can convince them that the pain in their stomachs, the cold seeping in through their ragged coats, their wracking coughs that never end, or their bitter, repetitive lives with no one to love and no children to keep their eyes hopeful and full of life instead of simply waiting for death -- no sermon, no lecture, no political speech will ever win them over. Libertarians who assume that they can somehow mathematically prove that the vast majority of people on Earth should lay down and die because their existence violates the freedom of the top 1%, do not understand the feelings of the other side.
Alternatively, a Libertarian could argue that it doesn't matter how many people listen to a 'should.' If the powerful listen to it, they can simply impose this 'should' on the world, and this 'should' will give them the willpower to do it because they will be morally justified. Libertarianism could therefore forge arguments like, "It doesn't matter if people don't want to be slaves, the fact is that's all they can possibly be due to their lack of merit, and thus we are free to enslave them." Or they can argue, "It doesn't matter if people want to live, the fact is they have not earned through merit the right to live, because they cannot support themselves in our meritocratic, technocratic society, and therefore we can put them all to the sword." Practically speaking, I don't know of any libertarian elite that has the strength to impose such a will, so it's kind of irrelevant. But suppose they could. After all, I don't want to argue out of expediency.
Even if it were possible for libertarians to sweep away all the objections of their conquered foes, they are wrong. For one reason, it hurts people to hurt others. Psychologically, even with a morally justifying 'should,' few people would enjoy taking on the task. At the end of it, they'd feel so bad about what they had done, that they wouldn't enjoy the rewards anyway. The guilt would continue generation after generation, endlessly, like a spot that no amount of scrubbing can get out.
Second, the massive weight of these 'meritless' people has a lot more merit than you think. Somewhere in these people's hearts, a million stories are waiting to be told. Maybe they sheltered their little sister from the rain one night. Maybe they kept a promise despite all their temptation. Maybe they felt a twinge in their hearts when they saw our flag, or listened to our anthem. You can't know. You can't know how much good you are destroying with the bad. Let's assume you've somehow mathematically proven that the vast majority of people are an economic dead weight on society, that in a free market, they should all starve to death. There is still so much more to life than this. As it is impossible to yourself be good, for yourself to have merit, without honoring and abiding by some set of virtues, it is also impossible to turn a blind eye away from seeing those same virtues burning in the hearts of others, all around you. Even in the lowest, meanest of places. Even in the humblest and dumbest of people. Aside from some negligible portion of insane folks, there lies some guttering, small flame of the Absolute inside everyone. A fire that can be quickened, with proper nurturing. A fire that can be sheltered, with proper upbringing. And no matter how much some libertarian demi-god possesses fine and admirable qualities, there is no way this 1% can outweigh the bonfire of all the rest of us combined.
Third, our greatest happiness is in our relationships, is in our impact on others. Great benefactors enjoy a bliss selfish people cannot. For the writer with a million fans, who receives letters in his mailbox from readers who say 'You changed my life, I love this book, thank you so much.' Do you really think there is some sort of economic transaction occurring? There are other currencies in this world, with which the poor and meritless can pay the rich and meretricious. There is honor. There is love. There is emulation. There is our simple joy. There is our memory of you, told quietly to our children and children's children. Before libertarians choose to wipe out everyone who cannot 'pay their own way,' can't they ask themselves, after they have their first million, if the joy in our faces, the pride in our step, the uplifting of our souls into more brightly polished, more upright stars, the love we have for him, the respect we pay to him, the gratitude we have for him -- couldn't also pay back our debts? Can't we name buildings or mountains after him? Can't we listen to him when he talks with a respectful air? There are few blessings so great as the trust of the innocent that you mean them well, and watching them try their hardest to win your approval. Cutting yourself off from these experiences, from the idea of leading mankind into a happier future, just to save some money or avoid some obnoxious paperwork, is looking too low.
For the strong, for the wise, for the noble, it is beneath them to aim so low. Money is just money. True riches are of the spirit. There's just no comparison.
Having established premise as best I can, then, (Namely: That laws are passed so that people can live together in harmony, and some people's freedoms or wealth is taken as an incentive to less well off people to remain in a state of pacification and harmony.) it should be clear why people say 'peace is not the cessation of arms, but in the administration of justice.' And this justice is not the justice of a libertarian, the cruel justice of darwinian logic, of cold mathematical theorems, or punishments against criminals. It is the higher justice that sings from within our deepest instincts: 'Be strong, and protect the weak -- and make them strong.'
If government's purpose is to provide justice, its penumbra of authority therefore extends to these roles as well. Not just preventing crime or riots or what have you. Of searching out the highest justice possible, and creating a world in which it can be expressed. Not only is this the most harmonious society possible, and thus the most stable and long lived, but it provides the best possible life for every single individual living within it -- from a probabilistic point of view. Here we must turn to Rawls:
Straight from wikipedia:
John Bordley Rawls (February 21, 1921 – November 24, 2002) was an American philosopher and a leading figure in moral and political philosophy. He held the James Bryant Conant University Professorship at Harvard. His magnum opus A Theory of Justice (1971) is now regarded as "one of the primary texts in political philosophy."[1] His work in political philosophy, dubbed Rawlsianism,[2] takes as its starting point the argument that "most reasonable principles of justice are those everyone would accept and agree to from a fair position."[1] Rawls employs a number of thought experiments—including the famous veil of ignorance—to determine what constitutes a fair agreement in which "everyone is impartially situated as equals," in order to determine principles of social justice.[1]
Given that we aren't born yet, where would we like to be born? If we don't know who we will be when we are born, we have an urgent interest in maximizing the happiness of everyone in a country, and given we don't know when we will be born, we have an urgent interest in maximizing the happiness of every generation into the future. Justice means acting in the same way, in the here and now, as you would if you were a spirit still waiting in heaven to be born, praying to be incarnated into a just world.
With this in mind, what laws could we pass that suit our definition of a higher justice, and the Rawlsian definition of being acceptable to most people without knowing who they yet will be?
I know a set of laws that meet these requirements! Better than all the rest. Which is why I keep saying, 'there should be a law.' There should be.
At this point, one might ask: "Why a law? Why not a tradition? Or simply an informal agreement?" Even if there is some sort of higher justice, why force people to follow it if they don't want to? Why not let bygones be bygones? Let rich people donate to charity of their own free will. Let people's scruples refrain from taking extra wives or cheat on others. And so on.
First off, we have seen from experience that people, if left to their own devices, don't do good. The masses have been abused, horribly, across all time, and are still being abused today. When the nobles were free to give charity to their serfs and slaves, they didn't. When men are free to be polygamous, they are. When there is no penalty for cheating, people do. People are weak. Willpower is not enough.
Those who do not obey the law, more often than not, obey their instincts and vices instead. And those few shining ones who can resist all weakness, who will always do the right thing even without any incentive to do so, would simply be swept away in the current of evil that surrounds them on all sides. These saints were not meant to look loftily down on others and say, "Let's dispense with all law, because I don't need it." They look down on others and think, "Be strong, and protect the weak -- and make them strong." And then they fight with all their strength for a task suited to their strength -- no longer to resist the evil in their own souls, which apparently is as easy as swatting a fly, but to help us fight the evil in ours; God knows we can use all the help we can get. And in the end, nothing good can come from a drowned world. To achieve great things, a great multitude is needed. Archimedes once said that with a large enough lever, he could move the world. WE ARE THAT LEVER. We are the lever the strong must push on to move this world. There is nothing else but us! So for God's sake, make us strong, so that we can make YOU strong. Strong enough to do what's important! Strong enough to reach the stars.
Those forced to obey noble laws, are happier people, and brighter stars, than those abandoned to obey their meanest whims. Even if they don't understand this, it is for their own good. It is for the good of children that they don't do just whatever they please. And it is for the good of fools and scoundrels, and of everyone else too. Do not tell me that whores are happy, that alcoholics are happy, that druggees are happy, that saltwater can quench a man's thirst! Don't bother me with scenes of the London night life and demand I acknowledge the blessings of freedom. Don't tell me children are happy without fathers. That men are happy without wives. That parents are happy without children. It's all lies. The statistics are in, married people with children are the happiest according to all studies. That children are better adjusted in their adult life if they came from a stable home. That people who love and are loved are more fulfilled than those with nothing and no one. Don't bother me with this kind of perfidy. Just because people lack the future-time horizon or the rational powers or the self-control to realize what they need to do, and NOT do, to become happy, doesn't mean that they're suddenly truly happy by injecting heroin into their veins and their lifestyle choice is as good as ours.
A great many people are even more self-aware. They want these laws passed because they KNOW they are weak and they KNOW only a law will keep them from falling to temptation. They KNOW they can't trust themselves and they want desperately to be good. Sometimes people on diets wire their teeth shut, so that they won't in a moment of weakness give in and gorge themselves. In the same way, people seek to shackle the beasts inside them, with chain after chain, law after law, as thick as they can make it, so that it can never rule them again. If someone doesn't want to smoke, but is addicted to it, are we hurting or helping him by forbidding smoking?
Laws reflect people's sense of right and wrong. laws speak more loudly than anything else, social approbation or disapprobation. Since people care what others think about them, they can be prevented from doing great harm, and encouraged to do great good, through this system of praise and derision. But if something isn't obligatory, or forbidden, it is merely amorphous. No praise or blame can be attached to it -- if praise or blame is attached to it, people shrug it off, since it obviously doesn't rise to a level of importance of being a LAW.
Simply as a method of shaping perceptions, we need evil to be illegal, and good to be not only allowed, but mandated or at least actively encouraged through various incentives by the law. We need to be clear. Clarity is a great force on the feeble-minded. They need to know that we really, really do think what they are doing is wrong. That we are so sure that it is wrong, that we will use force to stop them from doing it. That, alternatively, we really, really do think what they are doing is so good. That we are so convinced that what they are doing is good, that they are assured a monetary reward for doing so. In this way, laws aren't just for criminals, they are for all of society to paint, as clearly as we can, what we love and what we hate in people. If there is a law against eating cows, if you receive the death penalty for eating cows, people will think, "Wow, eating cows is surely a terrible thing, or no one would be so serious about it! How evil a cow eater must be, I must struggle against any evil temptation that might emerge inside me to eat cows, and somehow keep it down. The ways of the devil are subtle, it makes me think that there's nothing wrong with eating a cow, that somehow it can be rationalized, even justified, but the law knows better. Society knows better. And they would come down on me like a hammer -- therefore, let me come down on this devil inside me like a hammer first."
Take this example and apply it to other things. Would a taboo against adultery help instruct people on how horrible it really is, how immoral it really is, to commit adultery? What about a taboo against single motherhood? What about a taboo against childlessness? Could these create forces of social betterment?
However, libertarians are right about one thing. Without a willing heart, no law code is worth the paper it is written on. The power for laws to be enforced, the power for laws to be obeyed, the power for laws to be preserved, rests in a seed stock, a vast and plentiful seed stock, of people who truly believe in it. And children who are raised to believe the same. A police state might act out the motions of virtue, but it would never actually be virtue.
The rulers and the ruled alike must believe that the law is good, and wish they were as good as the law -- even if they need the law to be any good at all. In this way people progress by steps -- first realizing that x is immoral, and then growing the determination to stomp it out. If people refuse to admit x is immoral, or lack any willpower at all, act languid and confused, are helpless to work with and impossible to reform, then there is no helping it -- such a law code is not for them. Perhaps there's something simpler, easier, more lenient, that they can follow. But such a code is poison for all those who could do better, it is the stifling of their potential and the potential of their children to the lowest common denominator. Due to this, for both our sakes, people must divide. Again and again, until they live among people like themselves, of a quality like unto their own, with beliefs similar to theirs, who share at least three things -- the wisdom to tell right from wrong, the determination to live righteously, and the severity to expect no less from others.
If these initial conditions could be set up, good laws could follow. If good laws are made, a great nation will follow. And if a great nation is set up, human accomplishment will follow. From there our potential is infinite.
So my answer to the question, "why a law?" Is this: Good laws are our best hope for life to survive past the dying of the sun, in a form befitting our higher aspirations.
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