What you’re feeling around for here is the distinction between ius and lex. Ius is the principle of “right” and justice. While lex is the written enacted law. There, one can see that Law has a morality while “law” that contradicts ius is not law at all. This was best described by Ronald Dworkin, which leads to your point about originalism and textualism. At its heart, that project has as its aim the projection of democracy because only the enacted law is law.
You also point to the integrity of the law; law as integrity supposes that people are entitled to a coherent and principled extension of past political decisions even when judges profoundly disagree about what this means.
However, our written constitution alone is not what makes our legal system. The difference is prosecutorial discretion, and the remedy applied. North Korea has the most expansive and detailed written constitution in the world, however, it is severely enforced, and the remedies don’t match the transgressions. In the US, prosecutors have nearly plenary power to choose which crimes to prosecute and that helps maintain a free society.
What you’ve touched upon are the issues of positivism, the idea that the existence and content of law depends on social facts and not on its merits. The problem today is not too many rules but excessively individualism which places the rationality of the individual above the law and therefore does not understand the need for the law.
Last point, I disagree with your notion that just because someone does something on a “deserted highway in the middle of Kansas,” it is moral. A part of morality is what we do to ourselves, irrespective of its impact on others.
Great thoughtful piece Ben, congrats.
What you’re feeling around for here is the distinction between ius and lex. Ius is the principle of “right” and justice. While lex is the written enacted law. There, one can see that Law has a morality while “law” that contradicts ius is not law at all. This was best described by Ronald Dworkin, which leads to your point about originalism and textualism. At its heart, that project has as its aim the projection of democracy because only the enacted law is law.
You also point to the integrity of the law; law as integrity supposes that people are entitled to a coherent and principled extension of past political decisions even when judges profoundly disagree about what this means.
However, our written constitution alone is not what makes our legal system. The difference is prosecutorial discretion, and the remedy applied. North Korea has the most expansive and detailed written constitution in the world, however, it is severely enforced, and the remedies don’t match the transgressions. In the US, prosecutors have nearly plenary power to choose which crimes to prosecute and that helps maintain a free society.
What you’ve touched upon are the issues of positivism, the idea that the existence and content of law depends on social facts and not on its merits. The problem today is not too many rules but excessively individualism which places the rationality of the individual above the law and therefore does not understand the need for the law.
Last point, I disagree with your notion that just because someone does something on a “deserted highway in the middle of Kansas,” it is moral. A part of morality is what we do to ourselves, irrespective of its impact on others.