So What Is Law?, The Man Asked
"So what is the law?", a friend asked the other day. He was not seeking guidance on a course of conduct. I wasn't asked, magician-like, to summon shadows whose contours defined risks and benefits. It was as though someone sent to visit from another world sat beside me and asked the simplest of questions: What is law?
Try answering the question sometime. It is more difficult than you think, especially if you are a lawyer. We spend the livelong days of our lives banging our heads against statutes, rules, ordinances, doctrine. Step back. What is law?
I tried to avoid my friend with a glib sidestep. He wouldn't have it. He wanted a definition, my definition.
"The law," I said, "is a set of rules setting forth the minimum conditions of order necessary for the broadest class of people to pursue their individual ends."
My interlocutor was puzzled.
"You've told me what law does," he said. "But you have not told me what the law is. Where, for example, do I find the law?"
I sensed a trap. Find me a source of law in some written code or creed, and as soon as it is identified, a contrary or countermanding source can be found. The world is cacophony.
"The law is what it does," I responded. "It exists everywhere and no nowhere at all."
"That's a silly paradox that doesn't serve," he said.
"Is it? Consider," I told him, "the greatest msytery of all -- how individuals become a group, bound by common purpose and shared conceptions of right."
"Very Ciceronian," he said.
"You're right, but what of it?"
He said nothing.
"In any group there is and always will be conflict. Law resolves conflict, assigning rights and duties in a manner that is transparent to all participants."
"Transparency? Sounds very wraithlike," he said.
"It's nothing of the sort. Transparency means simply reasons given publicly in ways that are accessible to all. Hence, the importance of written decisions by the courts."
"Sort of oracular, isn't it?"
"Not at all. The law is the least oracular profession of all. At its best it scales the heavens for principles of the broadest possible application; a good decision then descends from the heavens to Earth by means of a ladder anyone can climb. At the end of the journey, individuals with conflicting interests are invited to yield their private sense of right to one shared by the group in which they live. The law often fails, but only chaos awaits a group that fails to make the effort to judge well and truly among its members when conflict arises."
My interlocutor was quite. I could not tell whether he thought I done more than merely state the obvious.
No comments yet