It seems that laws today are generally regarded as far less serious than in previous generations. That there is a sort of lawlessness or casual disregard for laws has become part of the fabric of our western culture. The rebel is praised, the law-abiding citizen ignored, yet all the while we talk about the need for more laws. Perhaps this is true, perhaps not, but certainly it seems true on the face of it.
This disregard of laws, or the Rule of Law, also need not end in a person actually breaking the law herself; it could simply manifest itself as a casual attitude toward, or verbal dismissal of, the importance of others breaking laws (perhaps some examples of law-breaking that are quickly dismissed as ‘harmless’ by the media come to mind). Thus, there seem to be more and more examples of people not only not caring when laws are broken, but actually applauding those who do break laws.
But why? Why so much law-breaking, or, at least, disrespect for the Law?
Whether there is more illegal activity, or less, than say in 1952, there is, at least a sense that laws today are viewed merely as goods in themselves; not necessarily as pointers or guideposts to something, or someone, that is the Good. While this may sound like a good thing, to see laws themselves as good, I think it is highly problematic. In a culture where many are constantly crying out for new laws, the main reason to make laws, or to follow them, is, at best, to ensure some kind of private good, and to ensure more private goods seems all that one can really hope for. As such, laws allow me to live in relative peace and harmony with my neighbor, and her with me, and that consequently allows me to pursue individual pleasures with greater autonomy, an autonomy which itself is considered a sort of maximum good.
Laws in this kind of culture exist primarily to regulate the quality of the horizontal relationships between members of communities and institutions, and the more we can, through laws, regulate interpersonal relationships, the better for me in my private pursuits. Or so it is claimed.
For if I follow laws in the hopes that doing so will bring me more success and less discomfort in my private life, then so much the better. On this view, the more laws designed to regulate human, interpersonal interactions the better, since following those laws can help eliminate or avoid conflict with others. One example of this kind of regulation would be “anti-bullying” laws. These bring a sort of external force against some internal desire (to bully a weaker child), regardless it inherent rightness or wrongness, that at least makes the individual think twice. Not necessarily a bad thing, but is it sufficient?
Alasdair MacIntyre, in his critique of modern ethics, puts it this way:
“For liberal individualism a community is simply an arena in which individuals each pursue their own self-chosen conception of the good life, and political institutions exist to provide that degree of order which makes such self-determined activity possible.”1 Alisdair MacIntyre, After Virtue.
First, one must ask if this is a sufficient view of Law (not MacIntyre’s, but modern liberalism’s) to inspire community members to follow or closely adhere to actual laws? If laws are, at best, socially constructed “moral” recipes that allow me to self-determine my own activities, then any broader notion of the common good seems to become increasingly vague. When is something a good for the many, and when is it just good for me, and if it is good for me alone then can I simply assert it is good for all, since I have benefited?
But, if laws exist essentially “for me,” then how can they produce in me anything like positive moral character, or virtue, with regards to others? If liberal individualism grounds the concept of Law, then particular laws must be only as good as they pertain to me. But, from where does the moral character arise that goes above and beyond the Law to actually generate or increase the good as it relates not just to my own private project of happiness, but to that of my neighbor? What kind of Law is required, not just to allow me more freedom to acquire goods, but to help add to the freedom of others to acquire goods? Or, even more provocative, what in the Law motivates me to sacrifice some of my goods, so that another might attain more goods?
It seems that following laws can prevent me from acting negatively against the common good, but following laws cannot increase the level of goodness for the the “other” in my community. In other words, following laws does nothing to increase the amount of goodness in my neighbor’s life, it only deters me from subtracting from the goodness my neighbor already has. In this kind of legal culture, where virtues are overshadowed by law-following, I am perhaps motivated to adhere to the negative form of the Golden Rule “do unto others as you would have them do unto you” but have little motivation to carry out the positive form of the Golden Rule “do to others as you would have them do to you” (Mt 7:12; Lk 6:31).
So, while the current legal landscape of our post-modern, individualistic culture can give us some idea about what we ought not to do, it can give us very little with regard to what we ought to do. At best it can tell us not to bully, but it cannot tell us much about being kind. At best, we ignore or avoid the other, and they us; or, as some bumper sticker slogans have suggested, our best, greatest hope is simply to “Co-Exist.”
However, if we are to simply coexist, then certain kinds of intuitive, positive moral judgments that laws may actually prohibit, would be less likely to obtain. One example that Oxford Theologian, Nigel Biggar, points to is those members of the “Valkyrie Plot,” who sacrificed much (i.e. their lives) to try and bring a swifter end to Hitler’s reign of terror:
“for sometimes the letter of the law [with regard to armed intervention] prohibits what is morally obligatory [i.e. killing Hitler], and the moral obligation is so stringent as to warrant transgression [of existing laws]. If this were not so, then those who plotted Hitler’s death in July 1944 would be simply criminals and not primarily moral heroes.”2 Nigel Biggar, In Defence of War
But what does it mean to be a moral here, in a culture where, when something goes terribly wrong (like a school shooting), our only response is to cry out for more laws? Is there not a more positive moral response than this? That is not to say that new laws might not help prevent what most of us still hold to be tragedies, but where is the call for the positive moral virtues: prudence, wisdom, perhaps even forgiveness?
Second, if such positive moral character, or virtue, cannot be generated by following laws, at what point does the uncultivated moral character of the individual begin to consider means to break those laws that seem to hinder rather than facilitate some new pursuit of private satisfaction and desire fulfillment? When breaking or skirting laws starts to look like the better means to success in my own private happiness-project, then what law is in place to preclude or demotivate me from developing methods around current societal laws?
If laws are only social contracts aimed at maximizing private goods then there is no law that can inform me as to why it is unlawful to find alternative means to maximizing my private goods so long as I don’t get caught breaking current social laws (since “getting caught” would obviously limit my attainment of personal goods and personal happiness). On this model then, current societal laws are made so that individuals can maximize personal goods, but if personal goods are the highest form of good, and if ways can be found to maximize those goods that exist outside of current laws, then the best thing for an individual to do would be to find ways to break laws without getting caught since this would be a more efficient means to attaining the highest form of good. Thus, if bullying a weaker child on the playground makes the physically stronger child feel good about himself, and if the stronger child can get away with it, then there is nothing to speak against an act of bullying that brings the bully such emotional satisfaction…so long as he doesn’t get caught by someone stronger than himself.
Finally, consider a culture that has abandoned the idea of the cultivation of personal virtues grounded in say a transcendent ontological reality (e.g. the “cosmic order” or God), or that holds firm to a final cause tied to the exercise of those virtues (e.g. eternal reward or perfection of the soul). This abandonment of ontological grounding and teleological meaning in exchange for the following of laws merely to maintain community stability, seems, at some point, to remove individual motivation to suppress or circumscribe one’s own private desires, and instead to ignore the needs of the common good in favor of those desires. Why sublimate, pace Freud, my personal desires for the sake of the culture, if the highest good is to fulfill personal desires in this lifetime? Of course, Freud thought that to not sublimate the Id would mean the end of civilization and resulting chaos. But isn’t this lack of self-restraint, the multiplication of laws, and the nature of contemporary criminality (e.g. mass shootings, sexual abuse) indicative of the loss of a transcendent mooring?
In sum, then, virtuous, sacrificial acts for the sake of an increasingly vague notion of “the common good,” or out of some allegiance to a transcendent principle or Person, leaves us with a culture of individuals that are literally “out for themselves.” Secular laws become a good in themselves as they multiple with the intent of finding ways to increase those private goods for individuals. But, in failing to point to the Good, they make no place for the building of positive moral character or virtue.
Of greatest importance though is this: if laws are designed to allow individuals to attain an ever greater amount of private goods, but none of the private goods that the individual attains ultimately satisfies our deepest desires, then the supposedly good laws that are viewed as the means to desire satisfaction will themselves be rejected as insufficient. This is perhaps one reason why so many are obsessed with politics, since politicians are the craftsmen and women of new laws. But, if laws are insufficient for to achieve personal happiness, then breaking laws out of a lack of respect for them becomes a “legitimate” response. Moreover, we applaud those who seem to be able to break laws if they actually get some personal good out of doing so. But what could remedy such a legal culture except a Law that is literally “above the law?”
“You shall be holy, for I the LORD your God am holy.” – Leviticus 19:2