[This post is meant to supplement the chapter that was discussed at LPS's November 9th meeting. However, I have added a few tangential remarks and observations that were not discussed on the 9th. I will try to tie together chapter 3 with some of our earlier discussions, and also provide a better explanation of natural law than I have so far managed to do.
Also, if you haven't already read Josh's post on Retroactivity -- one of the topics discussed in chapter 3 -- please do. Josh, FJM, and Thomas did a great job exploring this topic in the comments section. Please feel free to continue adding to the discussion.]
We say a lot of things about the law: We say that it is a means of obtaining justice; that it is is the harbinger of truth; that it represents our shared moral perspective as a society. But do we really believe these things?
The title of this post is the title for chapter 3 of Smith’s Law’s Quandary. This question was posed in chapter 1 as well, but there, the issue was whether our talk of “the law” is just words. Is there any weight behind what we call “the law,” or is our idle babble just a means to an end (the end being our interest in obtaining some favorable outcome from the courts)?
Chapter 3 sets out an interesting example of what Smith means when he asks whether the law exists. Smith asks his readers to imagine that a friend visits from an alien culture; assume her name is Tess. She asks you to show her the law, and so you bring her to a law school, a courthouse, a law library, a law firm, the legislature, and a public defender’s office. At the end of it all, you ask Tess what she thinks about the law, and she tells you that she is disappointed that she never got to see “the law.”
What’s the problem with Tess’s disappointment? According to Smith, it’s that Tess has adopted a misconception about what the law is. To us, the law is all of the things that Tess was shown — a conglomerate of institutions and practices, if you will. But Tess has made a categorical mistake, meaning, she assumes that the law exists independently of these institutions and practices. What Tess wants is something more concrete, and that, we cannot give to her. The law may exist, but only in the abstract.
To give us a sense of how the law might exist in this ethereal state, Smith draws an analogy between the law and God. A person who believes in God would say that God “really exists,” while an atheist, who does not believe in God, might only say that God is “at best an imaginary or perhaps metaphorical character employed by certain” religions. (p. 44). Applying this analogy to the law, then, you’ll see that we’re presented with a bit of a conundrum: Either the law “really exists,” or it is only imaginary, employed for some purpose.
To offer my own analogy, think of the Law as Santa Claus (with apologies to non-believiers and believiers alike). [Note: If any young children are reading this blog...1) Are you sure your parents would approve of you reading my drivel?, and 2) Please avert your eyes now.]
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