For the last 3500 years humankind has been busy writing Laws.
Which can be grouped in two main categories.
Natural laws and man made (normative) laws.
According to this classification while all laws have been written by Man those belonging to the first category are active regardless of Man being aware of their existence and those who belong to the latter come to life only as long as Man chooses to enforce them.
Another classification could be ‘phusical’ laws – ‘phusis’ being an ancient Greek term for ‘grown naturally’, all things that came to be in a ‘natural’ manner – ‘statistical’ laws and, again, ‘normative’ laws.
Both these classifications depend on how much influence Man has over how the laws work, besides the obvious fact that the wording, in all cases, belong to Him. To Man, of course.
The difference between them being that while the first sees Man as an individual making decisions by himself the second takes into consideration the fact that Man cannot function properly outside of a community.
Before going back to discuss some more about both classifications I have to note that laws are important mainly because they define areas of opportunity.
People are, from a functionalist point of view, self aware decision makers. But since none of them has an infinite amount of knowledge at his disposal nor an infinite capacity to process what ever information he has on a subject, people find it very useful to have the reality around them partitioned into ‘safe’ and ‘enter at your own risk’ areas.
In this respect it doesn’t matter whether the law itself belongs to either of the 5 categories. The consequences of the law are the same. Those who are aware of its existence have a lot easier job at discerning the safe from the potentially dangerous places than the ignorant ones. What each of them does after finding that out is another matter.
Coming back to the first classification, ‘natural’ versus ‘normative’ laws, let me elaborate a little about what ‘natural’ means in this situation.
It is obvious that the law of gravity, the one formulated by Isaac Newton, belongs here.
It started to produce consequences as soon as ‘mass’ came into existence – regardless of who, if anyone, made the necessary ‘arrangements’ and regardless of anyone being aware of its very existence or not.
But how about the law against killing another human being?
Animals belonging to the same species occasionally do kill each-other so this doesn’t seem to be an all encompassing natural law.
On the other hand history has compellingly taught us that communities where individuals are treated fairly by their peers fare a lot better than communities where some of the members kill (some of) the others. In a Darwinian sense the communities who do protect the lives of their members have an evolutionary advantage over those who don’t.
In this sense the ‘do not kill’ law becomes ‘phusical’. It is both ‘man made’, hence ‘normative’, and acts regardless of people being aware of its existence.
And no, this is not the same thing as ‘ignorance of the law offers no excuse‘.
As I said before, the first classification, ‘natural’ versus ‘normative’ considers Man mainly as an individual – who cannot hide himself under the cloak of ignorance and who has to bear the consequences of his acts, if apprehended – while the second classification, ‘phusical’, ‘statistical’ and ‘normative’, considers Man as an individual member who both depends heavily on his community and contributes decisively to the well being of the place where he lives.
In this respect ‘do not kill’ becomes a ‘statistical’ law. If enough individuals refrain from killing other people and if the community successfully puts in place and operates a protection mechanism to guard the lives of its members, without otherwise stifling the ingenuity of its people, that community will fare better than those who either fail to protect their members or protect them so jealously that transform them into hapless puppets unable to fend for themselves. Those who are interested to find out more about the equilibrium between protection and freedom of expression might want to check Crime and Deviance, Functionalist Perspective.
By now you must have noticed that ‘statistical’ laws are both ‘objective’ – in the sense that they will produce consequences even if people are not aware of/do not care about their existence, and ‘normative’ – in the sense that those consequences do depend, heavily, on how people act.
So. Does this make me a staunch defender of ‘normative’ laws?
Not at all. Just as Durkheim noticed long ago telling people what to do will only stifle their ability to adapt. To cope with change.
That’s why I strongly feel that ‘normative’ laws, the few that are really necessary, must be written in a ‘negative’ way. Do not kill, do not rape, do not discriminate, do not steal are quite different from ‘all of us have to be maintained alive’, ‘we must assign an armed guard to every nubile woman’, ‘we must write millions of pages of rules to cover every possible act of discrimination’, ‘we must arm ourselves to the teeth in order be able to defend our property against all odds’.
nicichiarasa 