Definition of “Law”:
From the Merriam-Webster Dictionary, Law is defined as:
- a binding custom or practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority
- the control brought about by the existence or enforcement of such law
- a rule or order that it is advisable or obligatory to observe
In general terms based upon these definitions, law as a broad concept is most commonly interpreted as rules, customs, and practices generated by and/or prescribed to society for the sake of control and/or order.
Origins of written law
The origins of informal, spoken, and generally undocumented law are incredibly hard to track.Based on law’s formal definitions, binding customs, rules, and practices have arguably been present since the dawn of humanity.Despite the challenge of identifying law’s most rudimentary origins, the first extensive written law on record is The Code of Hammurabi, put in place by the sixth Babylonian King Hammurabi (Harper, https://www.jstor.org/stable/3153895?seq=2#metadata_info_tab_contents).As explained by experts on this ancient form of theology, there is little additional knowledge of the kings of Babylonia throughout this time aside from the 282 laws covered in the code and the implications surrounding them. Of these laws dating back to 1780BCE, noticeable trends are the presence of harsh retribution under the lens of “an eye for an eye” and distinctions of punishment based on social status. For example, accounting for economic status in cases of theft the code states “if the thief has nothing with which to pay he shall be put to death” (Stockdale, http://chnm.gmu.edu/worldhistorysources/d/267/whm.html). Further, the code puts men on a pedestal in circumstances “If any one fails to meet a claim for debt, and sell himself, his wife, his son, and daughter for money” to alleviate said debt (Stockdale, http://chnm.gmu.edu/worldhistorysources/d/267/whm.html).Returning to the definition of law as “a binding custom or practice,” the kings during this period held power and authority as self-proclaimed interpreters of the law as designated by the gods.
Origins of law in what is the current territorial United States of America
While debatable as to what constitutes the first “law” in the United States, it is difficult to dispute the relevance of the Haudenosaunee Confederacy as at the very least a relevant model for the foundation of the US Constitution (Haudenosaunee Confederacy, https://www.haudenosauneeconfederacy.com/influence-on-democracy/).The Haudenosaunee (or Iroquois) people consisted of five tribes after they halted fighting amongst themselves in the Sixteenth-Century (ushistory.org, http://www.ushistory.org/us/1d.asp), andgoverned themselves in a style very similar to the United States federal government including sections of “Elder Brothers and Younger Brothers” in the “Grand Council” representation system (similar to Congress’ House of Representatives and Senate)(Haudenosaunee Confederacy,https://www.haudenosauneeconfederacy.com/influence-on-democracy/).Even in terms of the nation’s symbolic pride, “the Great Law features five arrows bound together,” similar to the US Seal with “an eagle clutching a bundle of 13 arrows signifying the 13 original colonies” (Haudenosaunee Confederacy,https://www.haudenosauneeconfederacy.com/influence-on-democracy/).While the history of the Haudenosaunee and their intricate relationship with Thomas Jefferson, Benjamin Franklin, and the Albany Congress is rather extensive, the confederacy was irreplaceable to the European colonists as they drafted their system of government, fought the French colonists for territory, and eventually proposed the Declaration of Independence(Haudenosaunee Confederacy,https://www.haudenosauneeconfederacy.com/influence-on-democracy/)
The Model Penal Code
Because most of what constitutes the law for marginalized groups (especially in the United States) is penal code (in other words, laws that dictate punishment), it is important to understand what has inspired modern punishment in the United States.While many theories on crime and punishment predate the 1962 Model Penal Code, the name itself implies its status as a foundation of codified punishment. As a precedent to codified criminal laws in many states, and foundation for those without codes as “courts regularly rely upon it to fashion the law that the state’s criminal code fails to provide,” (Robinson, Dubber, https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1130&context=faculty_scholarship) it can be viewed as a reliable general framework for the criminal punishment system as it currently stands. The modern penal code was inspired by the lacking codification of penalties in the United States relative to the rest of the world, and was inspired by Thomas Jefferson who “drafted a bill for the Virginia legislature that called for punishment based on the theory of prevention outlined by Cesare Beccaria and developed by Jeremy Bentham” (Robinson, Dubber,https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1130&context=faculty_scholarship). The discussion of theories surrounding crime and punishment [HYPERLINK] provides a more detailed picture of competing ideals in penal law, but the Model Penal Code of 1962 and its successors are a valuable resource to make note of when understanding the structure of codified law in the United States.
Theories of Law and Punishment
Theories of Punishment
Most methods of punishment and punitive justice can be categorized within four main concepts: retribution, rehabilitation, restitution, and deterrence. The volume of topic literature for each of these aspects of punishment are far beyond the scope of a general overview to law, but an awareness of their existence in philosophy is important to evaluate methods of the law and law enforcement.
Retribution is the concept of punishment as the “just desserts” for someone who commits a crime.Thought to be the primary goal of punitive measures before the Model Penal Code, there is extensive literature both in favor and against retributive justice (Walen, https://plato.stanford.edu/entries/justice-retributive/). For further reading, notable philosophers on the subject are Immanuel Kant, Georg Wilhelm Friedrich Hegel, and Michael Moore.Understanding the deep history of punishment for the sake of punishment, and identifying its role in modern law is essential to understand law as an enforcement mechanism.
Rehabilitation is the philosophy of treating and healing someone who commits a crime in hopes that they will better themselves personally and as a member of society. Sporadically popular in the Twentieth-Century, this concept has gained popularity in the United States only to be quickly phased out by “tough on crime” initiatives (Huebner, http://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0046.xml).There is a breadth of modern philosophy and research on the benefits of rehabilitation, but also extensive opposition due to critiques on cost and efficacy.Knowledge of rehabilitations understated benefits, and public opinion against it is important to analyzing the ebbs and flows of punishment in law.
Restitution (commonly referred to as “Restorative Justice”)
Restitution encompasses policy focused on (the input of, and) repayment to the victim(s) of crimes.Like rehabilitation (and deterrence) it is a “forward looking” theory, meaning that it is based upon improving future outcomes, whereas retribution is “backward looking” and solely a punitive measure (Cornell Law School, https://www.law.cornell.edu/wex/restitution). A key author and philosopher on the matter is John Locke, also a relevant source regarding established ideals for American governance and policy.Examples of restitution include fines, victim funds, and payment for property damages incurred during crime.Restitution has been a complementary enforcement mechanism to law since its inception.
Deterrence is the philosophy of punishment’s ability to dissuade people from committing future crime.Deterrence is categorized into two primary benefits; being general and specific deterrence. As the names somewhat imply, general deterrence constitutes any disincentive to commit crime for the general population, whereas specific deterrence is specific to the original offender (Australian Institute of Criminology, https://aic.gov.au/publications/crm/crm027).Deterrence is unlike the previous theories, as it largely ties into the goals of the previous methods.Rehabilitation is a form of deterrence from recidivism, retribution is meant to be a moral lesson that teaches one not to reoffend, and restitution is a cost that has inherent deterrence.This malleable quality lends to a vast collection of literature in favor of deterrence, because it is an implicit good to criminal justice when enforced properly, fairly, and ethically.
Theories of Law
Unlike punishment, law does not have a clear framework that it exists within (being criminal justice for punitive measures), but rather it is a framework in and of itself. While there are limited philosophical arguments on law as an absolute, there are a variety of theories that support law as a formal structure in society.
Social Contract Theory
One of the most dominant modern western theories in favor of law (and government intervention as a whole) is social contract theory.This theory states that individuals have a debt to the government in return for their protection and the other various benefits of being a member of society (Friend, https://www.iep.utm.edu/soc-cont/).The debt owed to the government is most obviously paid in taxes, privacy rights, and labor, but generally represents the overarching costs and burdens of being a member of society.There is a plethora of topic literature that articulates the theory in much greater detail, and notable primary sources on the topic include Thomas Hobbes, John Locke, and Jean-Jacques Rousseau (Friend, https://www.iep.utm.edu/soc-cont/).Social contract is a fundamental aspect of government and civic duty as a whole, but is especially important when identifying the warrants of public trust and support if government.
Lockean Theories in Two Treatises of Government
Similar to social contract theory is the ideas presented by John Locke in his work Two Treatises on Government.In this writing, Locke proposes the concept of “the state of nature” which dictates all natural actions that humans make when interacting with each other.He bases his arguments on this state of nature, and contends that the government should only infringe on the life, liberty, and property of the people when an absolute necessity (Tuckness, https://plato.stanford.edu/entries/locke-political/).He reinforces this notion with the supporting evidence of human action in nature, in that people are entitled to these natural rights and ought to have them preserved under natural law, or as he puts it: “the law of nature.”As a founder of modern western political theory, John Locke’s interpretation of liberty and property is a prerequisite to an establishment of modern American law and to a scholar’s understanding of law’s formation.
Legal Structures (Past and Present)
While there are many different legal structures that exists, most of these exist within the category of the criminal justice system [HYPERLINK] (especially those within the context of Law, Societies, and Justice).
Aside from legal structures within the criminal justice system, nearly all other legal entities exist for business purposes.While valuable for business and economic purposes, the financial distinctions between the plethora of niche legal entities remains outside of the scope of this glossary.Potentially more relevant is the general concept of legal entities within the United States. The IRS formally defines four different business structures: sole proprietorship, partnership, limited liability company, and business corporation (Global Alliance of SMEs, http://globalsmes.org/news/index.php?func=detail&detailid=417&catalog=22&lan=en&search_keywords=).A complete knowledge the technical differences of legal structures would require experience and/or formal education in corporate law, but a general understanding that legal entities exist and change business liability is a valuable start.With the consistent yet gradual increase in tax code within the modern United States (Erb, https://www.forbes.com/sites/kellyphillipserb/2018/09/14/projected-2019-tax-rates-brackets-standard-deduction-amounts-and-more/#682facee12d9),a thorough understanding of legal structures (while not pertinent to LSJ) is necessary for businesses to operate, and lacerative for those who develop skills in tax law and business protocol.
Connection to Law, Societies, and Justice
The definition of law is rather general, but it is relevant to nearly every topic in Law, Societies, and Justice.Law is a vehicle for social control, the social contract, and the potential for justice within society.Potentially the most valuable notion of law is its status as a universal concept. Without law (whether formal or natural in the instance of Lockean ideology), it is widely accepted that society would dissolve into chaos and disorder. It is with carefully established law that is fair and just, however; that society avoids falling into tyranny due to unwarranted, unfair, or bias laws.The history of injustice under law is far beyond the scope of its definition (and even one collection LSJ class), but knowing that law is a force for better or for worse is crucial to thinking critically within the context of LSJ.
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