Appendix II to Epistemological Ethics: Commentary on "How Law Defines Punishment"
Brian Matthew Kessler
1 December 1997
1. We've learned from history that it is absolutely necessary to have laws. Laws attempt to keep order. Laws are society's ways of keeping citizens in line. Without laws, chaos would take over.
Small pockets of anarchy have existed and still exist. A social order is formed by the necessary mutual respect needed in order to enjoy a prolonged existence. Someone who fails to treat others with respect quickly accumulates enemies and shall have no recourse to the law if these enemies should injure or kill him. This creates a very high degree of motivation for one person not to ignore the needs of the next. It has been observed by some that the degree of respect displayed in these anarchist societies often exceeds the level of respect to be found in societies where legal structures have developed and therefore impede upon a man's right to revenge himself. Thus, unless we should extend "law" to include an informally agreed upon moral code, we must question this "it is absolute necessary".
Second, it seems you wish to equate "order" with "good" and "chaos" with "evil". Is this connection necessarily true? Order may oppress people into being nothing more than an organic machine, a slave to the ruling class's whims. Chaos may liberate people into exciting new realizations, artistic creations, and allow people to have a life in more than the mere sense of dictated by biology. Where is the necessity of this proposed connection? How can we know this?
2. Mankind is essentially evil, therefore, laws are a way of keeping mankind from acting out irrationally and doing harm to his neighbor or environment. Babies even need to be taught what right and wrong.
That mankind is essentially evil begs the question without previous definition of evil. If we may assume from above, then what you are saying here is "Mankind is essentially chaotic". Is this necessarily true? Mankind has a limited set of perceived needs and wants and it is his nature to attempt to fulfill these needs and wants. Each man/woman on in their own right is not essentially chaotic, but follows the orders of their own needs. It is only when this man/woman is placed in a larger context such as society that his deeds may appear chaotic from the viewpoint of an outsider who does not share his perception or his needs.
Laws do not keep mankind from acting out irrationally since man is a generally a rational creature; when he is deprived of this reason, the law may absolve its responsibility and hand him over to the psyciatric community. When a man does an act harmful to his neighbor or environment, it is not irrational, but rather rationalized upon a different set of perceptions than those perceptions held by his victims. No set of laws will change these perceptions or the needs of the criminally minded to act in accord with those perceptions. Most criminals, upon acting, are either convinced that they shall succeed or have been deprived of such reason as they would wish to avoid the consequences of failure. The law merely enforces a criminal Darwinism whereas the criminals must develope some craft in order to escape the laws enforcement. That some statistics report only 20% of all crime is actually reported, that only 80% of reported crimes lead to an arrest, and that only 20% of all arrests lead to a conviction, may lead us to wonder how effective laws are as a deterent. That 80% of all arrests are repeat offenders who have been arrested before, may give us further cause for wonder; these laws are obviously not convincing even those who have been previously punished to curb their actions.
Whether babies need to be taught what is right and wrong is also a matter of debate. A baby responds to his primary instincts. Those instincts have been designed in order for a baby to meet its primary needs. If that baby acts in a manner not fitting his parents ideals, perhaps those ideals are in fact wrong since they do not meet that baby's needs. It is also false to assume all babies need disipline; many are "well behaved" and easily satisfied with the conditions imposed upon their life.
It seems to me, only one that child begins to exhibit some independence from his parents, particularly under the influence of its elder's or peers, that it may need to be enculturated with concepts such as "right" and "wrong" -- of course, at this formative stage, it is often both the elder's and the peers who are enculturating them such that they will behave in a manner that is "wrong" or not in accord with "right". Thus, we may argue that "wrong" is equally as enculturated.
3. A sense of peace of mind, in knowing that you can sleep at night (or trust that you can) without your neighbor invading your privacy or coming into your house and taking your possessions. The law does not always work, therefore, your neighbor does come into your home and rob/steal what does not belong to him. Government's realize that these situations do occur therefore, further laws are made to punish these crimes.
While piece of mind is truly needed, the law can not provide this -- as admitted and explained above. Attempts at making further laws merely serves to make heroes of politicians -- these laws only attempt to treat the symptoms but spares the actual disease. In order for the government to effectively decrease crimes, the government should allocate funds towards eleviating the various economic pressures that makes the criminals' lives so much less than satisfactory that they must go out and impose their needs upon unwilling others. Even this, admittedly, could not solve all criminal problems since many crimes are not actually motivated by money.
4. The best of laws or strictest of laws will not work unless the people being governed accept the rule of laws and live by them.
DeSade comments upon this very well:
"... What one terms the interest of society is simply the mass of individual interests unified, but it is never otherwise than by ceding that this private interest can accommodate and blend with the general interest; well, what would you have him cede who has nothing he can relinquish? And he who had much? Agree that he should see his error grow apace with the discovery that he was giving infinitely more than he was getting in return; and, such being the case, agree that the unfairness of the bargain should prevent him from concluding it. Trapped in this dilemma, the best thing remaining for this man, don't you agree, is to quit this unjust society, to go elsewhere, and to accord prerogatives to a different society of men who, placed in a situation comparable to his, have their interest in combating, through the coordination of their lesser powers, the broader authority that wished to extract from the poor man what little he possessed in exchange for nothing at all. But you will say, thence will be born a state of perpetual warfare. Excellent! Is that not the perpetual state of Nature? Is it not the only state to which we are really adapted? All men are born isolated, envious, cruel and despotic; wishing to have everything and surrender nothing, incessantly struggling to maintain either their rights or achieve their ambition, the legislator comes up and says to them: Cease thus to fight; if each were to retreat a little, calm would be restored. I find no fault with the position implicit in the agreement, but I maintain that two species of individuals cannot and out not submit to it, ever; those who feel they are the stronger have no need to give up anything in order to be happy, and those who find themselves the weaker also find themselves giving up infinitely more than what is assured them. However, society is only composed of weak persons and strong; well, if the pact must perforce displease both weak and strong, there is great cause to suppose it will fail to suit society, and the previously existing state of warfare must appear infinitely preferable, since it permitted everyone the free exercise of his strength and his industry, whereof he would discover himself deprived by a society's unjust pact which takes too much from the one and never accords enough to the other; hence, the truly intelligent person is he who, indifferent to the risk of renewing the state of war that reigned prior to the contract, lashes out in irrevocable violation of that contract, violates it as much and often as he is able, full certain that what he will gain from these ruptures will always be more important than what he will lose if he happens to be a member of the weaker class; for such he was when he respected the treaty; by breaking it he may become one of the stronger; and if the laws return him to the class whence he wished to emerge, the worst that can befall him is the loss of his life, which is a misfortune infinitely less great than that of existing in opprobrium and wretchedness. There are then two positions available to us: either crime, which renders us happy, or the noose, which prevents us from being unhappy. I ask whether there can be any hesitation, lovely Therese, and where will your little mind find an argument able to combat that one?"(1)
Every culture has moral laws.
Agreed, but there is nothing universal about any of those laws. Thus, other than society's need for some form of structure to society, this proves nothing about the very contents of that structure.
1. Sade, Marquis de, Three Complete Novels: Justine - ..., pp. 492-495. Return