On the nature and purpose of law ..

In Sweden there is a tendency to accord Authority and Institutions unwarranted respect. I was listening to a Member of Parliament trying to explain (defend?) the importance of what he did. His glorified and rather narcissistic view of his own importance in the universe as a “lawmaker” was not unexpected.  But I find the idea that current parliamentarians are involved in holy work goes too far. I thought his overly reverential treatment of law as something sacrosanct was especially facile and unsupportable. I find deferential references to the majesty or sanctity or divinity or piety or morality of law artificial and unconvincing.

So, in this note to myself I try to think my way through the nature and purpose of law from “first principles”. 

  1. The freedom of behaviour
  2. The laws of nature
  3. The nature of laws
  4. The purpose of law
  5. What law is not
  6. Conclusions

The freedom of behaviour

Behaviour (noun): the range, or the manner, in which, things (animate or inanimate) act

  1. Even inanimate things exhibit behaviour. They do not initiate actions but are acted upon and, in turn, may react, all according to the “laws of nature”. The behaviour of an inanimate thing is the only behaviour possible and is not a choice among possible behaviours.
  2. Living things exhibit the freedom to act of their own volition. (This freedom is exhibited and a feature of empirical reality. It needs no proclamations).
  3. What any creature actually does, lies within the envelope of what its physiology allows, subject to its own individual capabilities and as constrained by any external forces being applied.
  4. What is physiologically possible is of necessity compliant with the “laws of nature”.
  5. Living things having some brain (humans among others) can imagine or desire carrying out actions prior to action. They may desire to perform actions which they cannot actually accomplish. They may act, when compelled by external forces, even against their own desired action or inaction.
  6. For a living creature to have desires, some level of cognition and a sense of self is necessary. The greater the cognitive level the greater the range of what can be imagined. The greater the level of cognition, the greater the gap between imagined behaviour and what can actually be done. Desires can encompass both actions not physiologically possible and even those contravening the laws of nature.
  7. Without being diverted by the philosophical meaning of freedom, I take it that all creatures having volition are free to choose how to act (or not). What any living creature actually does is usually only one of several available actions it is free to perform.

This freedom to act as may be physiologically possible is a brute fact of reality and, like the laws of nature, does not need any articulation or declaration or proclamation. In fact, the freedom to act followed by the choice of action, always within the envelope of possible actions, is a distinguishing feature of cognitive, living things. (The conversion of a thought into action lies at the heart of the mind-body problem which is relevant but outside the scope of this note to myself). With increasing cognition, observations create a world view and a view of self in that world. Repetition of actions gives skill and observing consequences of actions gives rise to learning. Not all that is desired leads to actual behaviour but all behaviour has consequences. A living, cognitive creature may choose to restrict itself and moderate its own actions as it learns and according to its skill. The behaviour of the creature may also be constrained, or may be induced, by externally applied forces. The fundamental, behavioural freedom that all cognitive creatures have is to select and implement what they actually do, from all that they could do. Human behaviour is a choice constrained by capability and external forces.

All humans have the freedom to choose what they actually do, or not do, from all that they could do.

The laws of nature

The laws of nature, I have no doubt, exist. They both describe and determine how all things (material or energetic) have behaved and how they will behave. They all require/assume time to be passing and become undefined/meaningless otherwise. They apply over the entire universe (as far as we can tell). There is no Authority (known) which formulates and proclaims these laws, but they still command complete, unconditional compliance. They apply even if they are not discerned. The process of science is our attempt to discern what these laws of nature actually are. Even a solitary case of non-compliance is sufficient proof that any purported law of nature is not, in fact, a law. To be a law of nature requires that full compliance is inherent. The question of coercion does not even arise, firstly because non-compliance is just not possible, and secondly because there is no authority available which can either proclaim the law or could levy sanctions for non-compliance. The laws of nature are by definition “natural” and a brute reality of our existence. No sense of morality attaches, or can be attached, to them. “Goodness” or “justice” or “justness” are not attributes that are applicable. The laws of nature are discovered in the world around us. For all practical purposes they exist everywhere and in perpetuity (and what happens within black holes need not be considered here).

The laws of nature are a condition of our existence and there is nothing in known existence which can contravene these laws.

The nature of laws

Rule (noun): a description of a principle governing conduct; a sequential specification of events within a particular area of activity; control or dominion over a territory or living things (usually people) 

Only the first meaning of rule as a description of a principle governing conduct is relevant here. We generally apply the word conduct to the behaviour of living things (individually or as a collective). To be a rule, it must be general and it must lie within the realm of possible behaviour. It must be either a description of an empirically observed pattern of real behaviour (e.g. as a rule dogs bark, lions roar) or of desired, but not impossible, behaviour (dogs shall fly is meaningless as a rule). A rule of behaviour describes – by inclusion or exclusion – the behaviour desired or not-desired.

I take a society to be any association of interacting humans. It could be a family or a club or a religious order or the members of a social media group or a country. It could even be a temporary association of the people on, say, a trek or present in a restaurant at a particular time. If all the members of a society behaved only as that society collectively desired, then that society would have no need for any rules of behaviour. The need for such rules of behaviour arise in every society because the individual members of that society are capable of behaviour, or non-behaviour, which lies within their capability, but which may not be desired by the “collective mind” for the functioning of that society.

Human laws are not like the laws of nature. They do not flow naturally from the laws of nature. They are all rules of behaviour invented by humans but full compliance is never inherent. They are always made within some societal context and their existence is subordinated to the collective mind of the societies they exist within. Laws are societal rules of behaviour which need to be proclaimed and formally enacted by that society. They are not fleeting but they do not exist in perpetuity either. They can be created, removed or changed as and when a society desires. Even the most important laws in a society (its constitution or other founding laws) are subject to change, albeit with some considerable barriers to change. If a society ceases or breaks down, its laws cease to exist. Laws, in any society, are rules of behaviour for that society and the enacting of laws is the prerogative of the prevailing power in that society. They are formulated and proclaimed within societies by a designated, competent Authority representing the “collective mind”.  Competence in this context means not only the legitimacy of the Authority, but also the skill and ability of the Authority to formulate and proclaim rules of behaviour. The establishment and the legitimacy of that “collective mind” in a society can be highly contentious but, generally, the “collective mind” represents the view of the power centre of that society (which is not always, or necessarily, the majority view). Enactment of laws may be accompanied by much ritual and pomp but this is about giving legitimacy to the Authority and does not contribute to the substance of the rule. Without a legitimate Authority, or lacking the competence for proper formulation and proclamation, and unlike the laws of nature, there can be no law. Human laws (rules of desired behaviour), apply over the region or the people (jurisdiction) subject to that Authority, and are always intended either to curtail some freedom of behaviour or to coerce some desired behaviour. Even where penalties or other coercive sanctions are not identified, the intention of any law remains coercive. Rules made by “Authorities” not having control over the jurisdiction or not having the competence to enforce the rule, lack substance and cannot be considered rules or accorded the dignity of the label “law”.

While there is some discussion in jurisprudence and even philosophy about whether “coercion is a conceptually necessary feature of law” there is no doubt that the intention of any human law is always to curtail a behavioural freedom or to coerce some desired behaviour.

The level of compliance or non-compliance with a law speaks to the “goodness” or effectiveness of that law. Human laws are societal constructs, tools for the effective functioning of society. The bottom line is that they are needed because the behaviour of some individuals or sub-groups within the society can come into conflict with the desires of those in power (which may be the many). The detection of non-compliance is a major part of legal systems. The non-compliance actually detected is nearly always only a fraction of all the non-compliance that has occurred. Some of the detections are unsound. Penalties can be imposed only on the fraction convicted. Note that application of laws to only some law-breakers and not to all law-breakers, is inevitably “unfair” to those caught. Penalties and punishment for non-compliance with a law can never undo the non-compliance but may be able to influence the future compliance by others. Legal penalties always involve doing harm. It may be the lesser harm but it nevertheless is about doing harm to those who are non-compliant and are detected. Paradoxically, a law that is never complied with is a useless law and one that is always complied with is an unnecessary law.

All human laws seek to either curtail some existing but unwanted freedom of behaviour, or to coerce some desired behaviour. A law is a tool, a social construct, for the exercise of behavioural control. 

Penalties for non-compliance with law are always about doing harm to some for the greater good. 

The purpose of law

All human laws are thus tools which are used to try and control human behaviour. As with any other tool, the “goodness” of the tool speaks only to its fitness for purpose. The purpose is not inherent within the tool. Purpose then can only lie with those who use the tool; those who seek to control human behaviour. Controlling human behaviour is a necessary part of all successful human societies. That control is exercised is, in itself, neither moral nor immoral. Rules of behaviour are as necessary in a troop of baboons, a bridge club or a cloister as in a nation state. In any functional system composed of many components, each component needs to subordinate its own capabilities and actions to the function and goals of the system. Assuming, of course, that the system (society) has a proper function and a proper purpose. It is the intention of the lawmakers and of those who enforce laws which imbues purpose into the equation. Morality is often implied and attached to laws but the morality of law is not inherent and only derives from the intentions of the makers and the enforcers. It is to be expected that the prevailing power in any society, having the ability to make and enforce laws, ascribes the high moral ground to itself. Immorality is then attached to people according to the level of their non-compliance with the desired behaviour. Whether a law is “good” (effective) is a function of the level of compliance achieved. A badly formulated law may achieve high levels of compliance and be considered “good”. A most beautifully written law may be completely ineffective and would be “bad” law. Whether a law is “just” or promotes “justice” is unconnected to whether a law exists or not. That judgement rests with the observer. Laws, like guns, are merely tools. They may be well made or poorly made and – quite separately – may be skillfully used or incompetently misused. They may be effective or they may not. Purpose, however, lies, not within the law, but with the user.

Laws may be seen as humanitarian or draconian, as fair or unfair, as oppressive or protective, as just or unjust and even as clever or stupid. Law may be an ass. They usually have the successful functioning of the society as a purpose but may also have the preservation of the Authority as an objective. It is almost trivial, but those in power inevitably have a more benign view of the laws they make or enforce than those whose behaviour is being coerced.

A law is a tool for behavioural control. The dignity or majesty or sanctity or divinity sometimes claimed for laws are not inherent in laws or legal systems. They are always imaginary, invented and provide the packaging, the sugar-coating, judged necessary by a society to infuse legitimacy to – or sometimes to just camouflage – the control of human behaviour. The robes and ritual and elaborate ceremony often adopted for the making and application of laws have little to do with the content of laws but have everything to do with legitimising either the makers or the enforcers. A judge’s robes give no weight to the law but attempt to give weight to the judge.

Laws are often categorised according to the societies in which they are used. Divine Laws or the Laws of God are all human-made formulations and proclamations made by religious societies and purporting to be laws. Similarly, Natural Law (not be confused with the Laws of Nature) is claimed by some humanist philosophers to override all other law. It is based on an invented theory of overriding standards of universal morality which apply because they derive from the Nature of the World and the Nature of Human Beings. As with Divine Laws, the claim is that Natural Law should take precedence over any other human-made law. “Nature” is then an invented concept which is accorded divinity. God, the Divine and Nature are all taken to be Supreme Authorities. But they are invented by humans, and the purported laws are all authored by humans who effectively claim to be representatives of the Supreme Authority. They all seek, for good or ill, to control human behaviour. International Law tries to regulate the behaviour of participating nation states who in turn sign on to controlling the behaviour of their citizens. The laws are merely tools for behaviour control. The purpose lies elsewhere.

Human laws can never contravene the laws of nature (though some incompetent Authorities do try, from time to time, to make laws which contravene the laws of nature). They always remain rules of desired behaviour. It is usually the members of a society who grant some societal body (the Authority) the authority to formulate and declare rules of behaviour. However, establishing an Authority is an exercise of power and the members of the society may merely acquiesce. Laws as behavioural rules are organic and dynamic and their purpose is the functioning of the society they are embedded in. They are different from one society to the next. Within a society they can be created, discarded, modified, or replaced from one time to another. The grant of authority to a body to create laws is no guarantee of that body’s competence to create laws. Also the authority and the competence of a body to create laws is no guarantee of the body’s capability to enforce (usually by coercion but sometimes by incentive) such laws. That is a separate competence which may require additional bodies to come into play.

The purpose of law is not inherent. It lies first with the intentions of the Authority enacting the law and then with those tasked by the Authority with enforcing the law.

What law is not

  1. Morality and justice and ethics are not inherent in laws. These are attributes of purpose and lie in the use of law.
  2. Being merely tools, laws do not, in themselves, contain any dignity or majesty or divinity or sanctity.
  3. The existence or application of a law can never undo behaviour. It may be able to prevent future, unwanted behaviour or induce desired behaviour.
  4. The application of law requires discrimination between the compliant and the non-compliant.
  5. The purpose of any legal penalty is to do harm.
  6. Whether the application of law is just or not depends upon the eye of the observer.
  7. The rule of law is a tautology (the rule of rules).


All humans have the freedom to choose what they actually do, or not do, from all that they could do.

The laws of nature are a condition of our existence and there is nothing in known existence which can contravene these laws. 

All human laws seek to either curtail some existing but unwanted freedom of behaviour, or to coerce some desired behaviour. A law is a tool, a social construct, for the exercise of behavioural control.  

Penalties for non-compliance with law are always about doing harm to some for the greater good. 

The purpose of law is not inherent. It lies first with the intentions of the Authority enacting the law and then with those tasked by the Authority with enforcing the law.


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