Q&A: What Is the Place of Law
What Is the Place of Law
Question
I have a fairly general question about the nature of law, and I’d be glad for a response or a reference to a place where you’ve addressed it.
The concepts that law deals with have a root in reality. For example, marriage is something that has a real existence and not only a legal one, but law relates to marriage as a legal concept even where it no longer has meaning in reality [for example, when the husband and wife have separated; see Maimonides at the beginning of the Laws of Marriage].
The same is true with regard to ownership and property acquisition: acquisition is something with a certain real character, but law relates to it more broadly.
There are two possible ways to relate to this:
A. The root of the matter lies in the real-world concept, but law has to set rules, and it’s impossible to keep referring back to reality and checking the situation at every given moment, so law sets rules that, in terms of their true content, merely express the real-world relation.
B. The real-world concept is not the issue; law deals with rights and obligations, and the legal concept is ultimately just a cultural expression of legal principles—an expression that does not fully succeed in capturing them.
I’d be glad to hear your thoughts on the question. Thank you very much!
Answer
I’ve written about this a lot. What you call “reality” is not the reality I’m talking about.
See, for example, my article “What Is a Legal Effect?”, as well as my article on rights and obligations and my columns on Platonism.
Discussion on Answer
Absolutely not “of course.” Read there.
Let me clarify my question, and as I understand it, it is not connected [or at least not closely connected] to the posts you mentioned.
You dealt there [in the post “What Is a Legal Effect?”] with the independent existence of the concepts. For example: is “a married woman” merely a description of the state of a particular woman [along with hundreds of other women like her], or is there some independent content here [metaphysical, in your terminology there] that “takes effect” upon that woman?
I was dealing with a somewhat different question, and I’ll try to spell out my assumptions.
A. Law [any law, including Torah law] is built on things that exist in the cultural reality among human beings. For example, the concept of ownership is not just a purely legal concept; it is a kind of state that exists in reality. Human beings are accustomed to relating to that state [you can argue about exactly what they call ownership, but in any case there is such a thing] by the name ownership. The same applies to the concept of marriage: there is something real [cultural, sociological] that people call marriage, and the law that sets rules for that state refers to that same real thing.
B. Even though law relates to that same cultural thing, it is not entirely parallel to it. For example, from the standpoint of the actual situation, a man and woman who have separated are no longer in the same state of marriage, but legally, as long as they do not dissolve the marriage [and it makes no difference whether by a bill of divorce, or by registration in court, or by a Partisans’ Dance—one master according to his view and another master according to his view], they are considered married.
To explain this situation, there are two ways.
A. Law really is based on cultural reality, but it is forced to make adjustments so that it can fit a fixed legal system.
B. Law is not based on cultural reality [but rather on legal ideas, on metaphysical ideas, whatever you like].
Of course, it may be that according to your view—that concepts have an ideal and metaphysical existence—there is therefore no reason to assume that they are built on cultural reality. But that is not necessary; it could also be that although they do have such an existence, they are still built on and grounded in cultural reality, so this still does not give a definitive answer to my question.
A is more reasonable according to your approach. But as you noted, in my view it is based on B, except that B finds expression in cultural-social reality.
Thanks.
I mean reality in the sense of cultural reality; of course we’re not talking here about actual physical reality like a table.