Our previous posting on
Law, Physics, Legal Theory, Cosmology, Fine-Tuning and the "Useful Parameterization of Ignorance" may at first glance appear to be a rather distanced comparison of two fully
disparate conceptual worlds, but in fact our fully justifiable
juxtaposition of cosmology and legal theory points inexorably to a much deeper level hidden in the
morphology of legal reality.
If we take as a given that our human view of reality is limited at its maximum by the
previously discussed mere 4% of the physical universe that is known to us through our
cognizance of the atomic world, and if a full
96% of the actual universe is in fact invisible to us, as prevailing cosmological theory would tell us, then what can we know about the true fundamentals of human law?
The famed and now retired advocate Gerry Spence, for example, is grappling with this kind of a problem in his newly begun series of postings that start with
What if freedom is a myth?How, for example, is any "
Rule of Law", however described, to prevail against the specter of "Religion", for example, which increasingly calls upon the invisible 96% of the universe's powers. Must the law also call for assistance to the more powerful actors of that universe: the invisible cold dark matter and the dark energy of the primordial underlying forces?
When we speak about the original meaning of the United States Constitution, for example, and when we try to interpret that Constitution in light of the intentions of the original founders of the nation -- as if deeds were to be judged by intentions rather than by results -- are we talking about the 4% of the universe that is known, or are we talking about the 96% of the universe that is invisible to us, thus opening wide the doors to self-serving speculation about what was?
Calling up these invisible spirits of cold dark matter and dark energy is - for certain - a potentially dangerous proposition for all concerned, because no one can be sure where it may lead. It is not without reason that legal theory generally concentrates on the more superficial visible world, avoiding confrontation at the level of fundamental forces, preferring to pick out one group of legal atoms or another as the subject of jurisprudential inquiry, and discussing rationales for the "Rule of Law" in terms of tangible, Newtonian physics, rather than via transcendental Einsteinian forces such as time-warped fields of relativity.
This Newtonian limitation is the vector and engine of motion for our present professed understanding of the nature of "Law", as this understanding is manifested in works of legal scholarship. The visible world of appearances is discussed at length in the peer-reviewed law journals, whereas the deeper nature of law lies submerged beneath the surface.
To some degree, that hidden world is what we call "unwritten law", a concept which gave the philosopher Hobbes so much difficulty.
Alan Cromartie
(University of Reading, Department of Politics, Whiteknights, PO Box 218, Reading, UK), British Journal of Politics and International Relations, Volume 2, Number 2, June 2000 , pp. 161-178(18), Blackwell Publishing, DOI: 10.1111/1467-856X.00032) writes about
Unwritten law in Hobbesian political thought, a pay-to-view article which is abstracted online as follows:
"
In Hobbesian terminology, 'unwritten laws' are natural laws enforced within a polity, by a non-sovereign judge, without some previous public promulgation. This article discusses the idea in the light of successive Hobbesian accounts of 'law' and 'obligation'. Between De Cive and Leviathan, Hobbes dropped the idea that natural law is strictly speaking law, but he continued to believe unwritten laws must form a part of any legal system. He was unable to explain how such a law could claim a legal status. His loyalty to the notion, in spite of all the trouble that it caused, is a sign of his belief that moral knowledge is readily accessible to all."
One aspect of our contemporary "unwritten law" is something which modern philosophy might
subsume under the modern concept of
egalitarianism, which we find more negatively defined in Nordic countries as
Jante Law or in several English-speaking nations as the
Tall poppy syndrome.
Such unwritten laws are the antithesis of
elitism and are found enshrined as a legal principle in the American concept of
equality under the law, a concept which has developed different judge-made
levels of legal protection depending on the subject matter in question: 1) strict scrutiny for categorizational violations of equality because of race or national origin; 2) intermediate scrutiny for categorizational violations of equality based on sex (gender); and, 3) a rational-basis test of "reasonableness" for categorizational violations of other kinds.
But how does all of this square with genetics, science in general and Darwin's concept of survival of the fittest? Is this all not in actuality based on a strange kind of "unwritten law"?
For example, The Theist writes at the Friendly Atheist in
Can We Have Government Without Faith?:
"
Let's say Congress passes legislation on universal health care, and a politician suggests that a certain group be left out of coverage, let's say people with Downs Syndrome. Now, most people would be appalled at this suggestion. The argument against it would be that everyone is equal, and deserves equal treatment under the law.
But how do you prove this? In fact, science tells us that we are not all equal. Some of us are taller, stronger, faster, and have higher IQ’s. The idea that we are all equal is in contradiction of what science concludes. A person might then argue that we all deserve equal treatment, even if we aren’t equal. But how do you prove this? In fact, science tells us that many species survive by letting the weak or sick die instead of depleting resources for them when they can’t add survival value to the community....
[E]veryone I have met from an atheist perspective believes in certain principles, such as equal worth of all humans, equal treatment of all humans, and autonomy. In fact, people will stand behind these principles like they will the laws of physics....I will use Richard Dawkins distinction between science and faith as put forth in The God Delusion, where he states: “Religion turns untested belief into unshakable truth, where as science is a process of reason, skepticism, and questioning to draw conclusions.”
Using that definition, it seems the belief in equal worth, equal treatment, and autonomy are more faith based than science. So given that we want these principles in government, is it not necessary to have faith inside government? For people reading this who identify themselves as atheist yet believe in these principles, how is that not faith?"
The blog
Winter's Haven has an answer for this quandry:
"
It's clear that the theist is confused about Legal Equality; if you read the comments, you’ll see that the atheists are just as confused.Let’s try to untangle this mess. Firstly, all people are not equal. Individual humans are quite different from each other in a wide variety of ways. But you already knew that.Yet if people aren’t equal, what does it mean for them to be “equal under the law”, and why is that a good idea? The answer is actually fairly simple. The core idea behind Equality Under the Law is that the law should only treat people differently if there are relevant differences between them....
Of course, sorting out how relevant various differences are can be a complicated business. What the principle of Equality Under the Law objects to are laws which hand out privileges to certain groups arbitrarily and without good reason."
And so, writes
Robert Blake at the Foundation for Economic Education:
"
According to the Declaration of Independence, "All men are created equal."But man is a creature of limitations. He is limited as to height, weight, strength, health, intelligence, beauty, virtue, inheritance, environment, everything. Since these limitations vary from man to man, no man is equal to another, not physically, mentally, morally, or spiritually. In fact, all men are created unequal, except in one sense: All men are created equal under the Law. All men are equally subject to the same physical laws, the law of gravity, nutrition, growth, and so on. And all men are equally subject to the same moral laws: Thou shalt not steal; Thou shalt not kill, and the like. Since civil law is, or ought to be, an extension of moral law, all men should be equally subject to civil law. Whether a man is rich or poor, strong or weak, black or white, influential or a nonentity, should make no more difference under civil law than under physical or moral law. This is what is meant by the Declaration of Independence: All men are created equal under law."Equality under the law is therefore more like the invisible fields of relativity rather than the precise visible genes of biological genetics, and this brings us full circle to our original juxtaposition of cosmology and legal theory. Even the idea of equality is a "dark field of energy" rather than an identifiable physical component of the brightly lit legal universe.
Accordingly, it is not the US Constitution which is in reality the "law of the land", but rather the underlying forces which created that Constitution. It is thus not the "original meaning" of the Constitution which is therefore determinative but rather the origin of that original meaning. What was decided is not as important as why it was a subject of decision in the first place.
