Which Came First: Right or Law?

I was thinking about the law today, as people do, and I was wondering which of the following two categories serves to ground the other:

  1. Inherent human rights, value or dignity (we’ll just call this “value”)
  2. Human duties or law (we’ll just call this “law”)

By “duties” I mean [legal, moral and/or parental] obligations (what we “ought” do) and prohibitions (what we “ought not” do).

For example, consider the following questions and their plausible answers if value grounds law:

  • “Why shouldn’t we murder?” “Because human life is inherently valuable”
  • “Why should we have freedom of speech?” “Because humans have dignity and therefore deserve to have their opinions heard”
Alternatively, if you thought that duty grounds value then the questions and answers look something like this:
  • “Why is human life valuable?” “Because we have laws that preserve it”
  • “Why do humans have dignity?” “Because their opinions are protected by law”

The Christian Theist

Now my brother and I were wondering what the answer would be on a Christian worldview. Immediately both of us thought that value grounds duty, considering something like Genesis 9:6:

Whoever sheds the blood of man,
by man shall his blood be shed,
for God made man in his own image

And we seemed quite happy with our answer. For surely, in the above passage we have something very similar to a prohibition of murder on the basis of man’s value (inherent in the fact that man is made in God’s image). Again, we might consider the command which seems to explain why there is a Law in the first place: “You shall be holy, for I the LORD your God, am holy.” (Lev 19:2 cf. Lev 11:44-45, 20:26, 1 Peter 1:16). It seems we have inherent value either in being God’s people, or more broadly, in being made in his image.

But then I thought about what it means to be in God’s image. And all of a sudden the answer ceased to be entirely clear. Consider Genesis 1:26-28:

Then God said, “Let us make man in our image, after our likeness. And let them have dominion over the fish of the sea and over the birds of the heavens and over the livestock and over all the earth and over every creeping thing that creeps on the earth.”

So God created man in his own image,
in the image of God he created him;
male and female he created them.

And God blessed them. And God said to them, “Be fruitful and multiply and fill the earth and subdue it and have dominion over the fish of the sea and over the birds of the heavens and over every living thing that moves on the earth.”

Now obviously this all depends on how we are to understand what it means to be “in God’s image”. It certainly doesn’t mean that we look like him, at least we can agree on that. It could mean that we have inherent attributes or properties, like having rational faculties, having the potential for moral responsibility, having free will, relationships, or any number of things. However, it could also mean that we’re given dominion (and thus responsibility) over the rest of creation. If this latter option is the case then our value is grounded by our responsibility, which is best understood as a kind of duty. On this view, then, there’s an initial law-like responsibility, which grounds our value, which further grounds law. It might even be possible for the Christian to hold a view where the law itself serves to ground our value (if they are able to deal with certain passages) although I’m not going to get into that.

So it’s possible, then, for the Christian to accept either option. Although I definitely think the most natural understanding would be to have value ground law.

The Atheist

While the Christian theist (and theist in general, I suppose) can have it either way, it seems to me that this question poses a bit of a dilemma for the atheist.

Let’s say he opts for the view where law grounds value. Now on atheism there isn’t any single objective law. Each country has it’s own law, and ultimately they can make whatever they want law. In fact, without the value to ground the law (an option not available for this view since it would be circular), law becomes completely arbitrary and groundless. If the theist went with the law grounds value view, they could still say that the law itself is grounded in God’s unchanging nature or something some such, but the atheist has nothing to ground his law. But if law is arbitrary and subjective, then human value, dignity and rights are too (since law grounds value). I can’t imagine anyone would agree with that. It would mean something like “the Jews who were victims of the Holocaust didn’t really deserve any better treatment” or “black people in Apartheid didn’t deserve any better treatment than they got, since they weren’t as valuable as white people” (after all, the law made provision for mistreatment of black people, and since law grounds value this follows quite naturally).

OK, so the law grounds value view isn’t a viable option for the atheist, but what about the other option? Let’s say he opts, instead, for the view where value grounds law. This does seem more promising. Now, like the theist, he can affirm that laws are not arbitrary or purely subjective since they’re based, at least partially, on the value and rights of humans. This certainly seems more intuitive, considering the Bill of Rights is usually a central document in any constitution. However, on atheism there doesn’t seem to be any reason to think that humans do actually have inherent, objective value. How are humans any different from any other animal species, like apes, or ants? Aren’t we all just products of blind evolutionary processes? There isn’t any objective design, purpose or value inherent in anything per se. Our laws then can be as grounded on human value as apes’ laws are grounded on theirs. Or any other animal species for that matter. But if values are completely subjective on atheism, then they don’t serve to ground law any more than we could’ve grounded law in the “law grounds value” view. Once again, we’re left with a law that is completely subjective and arbitrary, the consequences of which are unacceptable.

So this is the dilemma the atheist is faced with. Without an objective law or objective value (both of which are available on a theistic worldview) law becomes arbitrary and so does value.

[UPDATE 05-06-2012]

So I was thinking about this a bit more and it seems that the atheist (as well as the theist) has another option open to them: choice of law could be grounded in some natural fact. This doesn’t work when it comes to grounding duties since, in general, duties don’t follow from facts, but there’s no reason why a natural fact couldn’t serve as the reason why certain laws are chosen over others in a legal system, and then the duties follow from the “command from the competent authority” (I discussed this more in my post on the Moral Argument). So, for example this “middle-ground basis” can be something like “certain laws encourage the flourishing of human life”. Hopefully I can sustain a prolonged objection to such an approach for the atheist in the future, but for now it seems two things can be said about it.

Firstly, while this might ground the choice of laws when considering a given middle-ground basis, the choice of the basis remains arbitrary. While the move from value to law is intuitive, even instinctive (since we tend to preserve things because of their value), the move from a natural fact to law isn’t. After all, why pick any one fact over another? We could equally say that “certain laws discourage the flourishing of life” and use that as our basis on which to decide laws. But if this is the case then we’re right back were we started in terms of arbitrariness of law and value. The only way out seems to ground our choice of middle-ground basis on value, but of course this no more serves as solution than grounding law on value in the first place.

Secondly, it’s not entirely clear that we could ground the choices of all our laws on natural facts. For example, which natural fact could we use to ground freedom of speech? Also, the flourishing of human life, in general, is encouraged by eliminating the “parasites of society” (a horrible term to use, by if value is arbitrary then it’s the correct term) like stupid people, disabled people, old people and so on. It would be atrocious, then, if laws were grounded on this fact. So it seems that natural facts can actually serve as deterrents for grounding the laws we’d consider important (a problem not faced when value grounds law).

One thought on “Which Came First: Right or Law?

  1. Roland, sorry for commenting on a post but couldn’t see how else to contact you, so please reply by email and feel free to delete this comment if you prefer.

    A friend of mine stumbled across your site. It looks like you might be interested in a ‘club’ we started recently in Stellenbosch (you’re in CT, right?) – The Stellenbosch Socratic Club (a.k.a. Café Philosophique; Socrates Café; Philosophy Club; Philosophy in Pubs; Skeptics in the Pub; etc.) meets weekly (in a pub ^__^ ) to discuss a wide range of interesting and relevant topics suggested & voted on by members. You (and whoever else, if you want to bring anyone along) are most welcome to join, the only requirement is respect.

    The idea is for everyone to learn from each other more than it is to teach each other, to think about things from diverse angles, angles provided by the many interesting people who will hopefully eventually join, but also to be able to question beliefs and the reasons for them in a good, humble and respectful way. So world views obviously form a large part of it, as with most things, and we’ll have chats about religion but also politics, culture, law, etc., things that I’m sure will interest you. People are free not to join if they don’t find the conversation topic for that week to be of any value.

    We’ve just moved to reddit, you can find more details there: http://www.reddit.com/r/stellsocratic/

    Hope you can join us.

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