From a sufficiently detached point of view, governmentally enforced legal codes are simultaneously some of the most ubiquitous and yet bewildering forces at play in the global arena of social interaction. Both in the modern day and throughout history, they have arisen organically almost as soon as the host society surpasses a certain level of social complexity. However, while the inclination of human societies towards law appears to be somewhat inevitable, the purpose and content of those laws seem to be exceedingly arbitrary in nature and vary widely depending on the society in question. While the prevalence of modern Western Humanism–the philosophy that has lead the wider world to concepts such as human rights and representational democracy–may give the illusion that the legal conformity of the modern day hints at a deeper natural governing philosophy, this current state and its memetic potential are relatively unprecedented with respect to a wider view of the usual range of social organization.
One reason for this diversity is that judicial codes are formed due to societal pressures coming from many different angles. It can be said that legal systems merely came into being in tandem with growing human need for self organization due to our persistent drifting towards increased societal complexity, and this perspective is, of course, correct. However, one can clearly detect several purposes (if they can be called as such, given that they form based on subconscious emotional assumptions rather than conscious decisions) motivating how each law is enforced and perceived.
One such motivation is simple: revenge, or “justice” as it is so commonly euphemized. We, as human beings, naturally seek to enact retribution on members of society who have harmed others or ignored our social conventions. The reason behind this lies probably in the fact that we are social creatures and therefore are uniquely able to unite to drive out potentially dangerous or foreign individuals (not sharing in our cultural identifiers). This is biologically advantageous because it acts to improve the well-being of each member of a small homogenous social group, exactly the kind of group within which we’ve evolved most of our social behaviors. And this, essentially, does with emotion what more developed law does with reason. However, because this kind of instinct normally does not manifest logically, it can conflict with our more recent, more altruistic, and more universal attempts at providing safety for an entire population. Examples of this base reaction’s influence on law in the modern day include punishments such as the death penalty, in which the host society is not actually improving its own safety but is instead enacting revenge upon an individual considered deserving of it.
This intrinsic desire for vengeful satisfaction is used quite successfully by many religions and other memetic identity-based structures as a motivator, but has a lesser effect on judicial policy in Western Humanistic societies (of which we, of course, happen to be members). If one were to imagine a society fully devoted to ideals of justice, one could (somewhat whimsically) conceive of a strict, morally meritocratic system, in which not actions but ideals and intentions are evaluated according to some sort of rigorously defined moral gradient.
Additionally, one could consider a justice-based system oriented around action rather than intent, but this apparently more sensible derivation would inevitably face problems distinguishing between fault and incompetence. The fallacy of the conception of a sharp division between these two ideas is interesting in of itself, but I digress.
An additional route one could take towards truly justice-based social order is to firmly implant the ideals the law seeks to enforce into the minds of every citizen, effectively creating a miniature version of the state (or conscience) within each of its members through some sort of self-propagating symbiotic ideological structure. While infeasible and likely prone to instability, such a structure could be quite effective and (in some form) long-lasting.
While all above systems would be evidently very ill-defined, their largest problem (and one which applies just as well to the concept these scenarios are sourced from) would lie in the fact that the idea of fault fails to stand up to scrutiny as a coherent concept in its own right. Consider an apparently simple case of murder, in which a certain person has been definitively shown to have committed the crime. The murderer is at fault, are they not? But what if the murderer was avenging some greater crime committed by their murderee? What if they were killing to prevent further violence? What if they were drugged at the time? And the problem cannot even be resolved by theoretically looking into the mind of the murderer at the time of the killing to gauge intent–intent isn’t even a concept that exists in any satisfactory way, in the sense that we invent a model of our own consciousnesses to explain our actions that barely reflects the actual internal processes leading to those very actions. Not to mention the fact that it is essentially an exercise in futility to try to attribute a casual process to a unique “consciousness.” Any attempt to define fault would need to rely on dualist principles of an inherent soul as a prerequisite. As you can see, such a system would be a mess of hand-waviness and vague impulse, which is probably the reason why the idea of justice and righteous revenge has declined as a basis for punishment in recent history.
A second reason behind the implementation and standardization of law on the scale of statehood is to create an official version of the will of its rulers to be followed by its enforcers, removing the need for state officials (as in this case government would exist to serve its rulers) to personally control their subjects, essentially delegating their own will and motivation towards personal prosperity to countless other minds. While the drive for this form of law generally has little to no impact in our current society (although it seems to, as of very recently, be on the uptick), it was the de facto reason for the existence of written law for most of human history. One can consider examples of this kind from the Code of Hammurabi all the way to the present government of, say, North Korea.
Keeping in mind that these kinds of conjectures are entirely baseless and should be read with a mildly skeptical grin on one’s face, a government centered around optimizing this strategy would manifest as something like a system of collective consciousness in which one mind governs other operating systems such as humans or computers to form what would basically be one mind with multiple levels of conscious regulation. While admittedly ridiculous, such a state would come close to perfectly fulfilling the purpose of this derivation of law.
A third possible source of law is the one that is most prevalent as an influence for our current legal system, which is to say, the maximization of well-being. The idea that government should exist to serve its people is a comparatively recent one, one that only became widespread after infecting Europe during its Enlightenment and riding off the coattails of the region’s predominant position in global geopolitics at the time to quickly become a major force driving legislation worldwide. In this incarnation, law serves as an officially recognized threat to would-be dangers to society, thus theoretically disincentivising action that would be detrimental to the “happiness” of its citizens. Blind to the actual motivations, good or bad, of the people they seek to protect, laws created on such a basis would simply reward behavior deemed beneficial and penalize their breakers.
Basing law solely on action rather than on “morality” means that systems designed with the end goal of civilian happiness would treat incompetence identically to malice in many scenarios, which, while effective, would probably be considered immoral by most. Without being pushed to their logical extremes, however, one can see many examples of exactly this sort of reasoning in our world today, most notably in lawsuits. While objections towards punishment without grounds in fault that are designed to directly improve society regardless of “fairness” are understandable, what we think of as evil really is, in fact, merely another form of deficiency.
Anyways. The primary issue with building a legal code entirely out of desire for collective harmony is that what it even means to be collectively harmonious is, hopefully to no one’s surprise at this point, a completely arbitrary human artifice. In fact, one can even interpret significant portions of modern political conflict in the democratic world as stemming from disagreement as to how communal well-being is best accomplished and defined.
Some groups argue that the less restrictive the law is the better, and that ultimate freedom is the truest path to wellbeing. This ideology would be fully consummated in a peaceful anarchical society in which legal bounds cease to exist and individuals choose not to come into conflict out of independent personal and logical desire to maintain order.
Other groups emphasize equality as the most important factor in social welfare, seeking to end conflict by ending hierarchy altogether and placing every member of society on exactly the same footing. This is in direct contrast to the previously mentioned perspective on happiness, as the loss of hierarchy means that the freedom to better yourself within that hierarchy is also lost.
Finally, one interpretation of what it means to be an ideal society that very few probably take fully seriously is hedonism, logically concluded in the form of an autonomous governmental unit that would provide its inhabitants with constant positive sensory stimulus in the upper range of that individual’s range of expectation, constantly adjusting its stimuli to avoid dependency and deprecation of its methods.
Other problems within the motivation towards wellbeing include the arbitrarity of human selection and memetic potential within the law itself.
The last inspiration I will be considering here is unique in that it is selfish rather than memetic or altruistic like the influences mentioned above. It is the role of law and government as an arbitrator of social interaction tasked with establishing boundaries in the political arena that are agreed upon by the arena’s participants. This role of law essentially differs from that of the law we negotiate in reality in that this theoretical system is based on logic and therefore selfishness, turning the law into a strategic, mutually agreed-upon system for individual gain, whereas we decide on law in actual politics by means of many other interests. Laws effectively ostracizing social deviants, such as (but of course far from limited to) laws against same-sex marriage, are emotional rather than logical boundaries and so are not counted. We seldom see laws of this basis implemented entirely logically, but laws concerning subjects such as libel or economic regulation can be seen as being rooted to a significant degree in this motive. In fact, one could even view a system based around the presence of such a self-uninterested regulatory entity as somewhat comparable to a managed economy. In this case, selfishly logical agents would negotiate a set of parameters and then strive towards growth of their social resources within a larger social market, allowing for some degree of both representational equality and freedom towards ambition.
While our culture has moved past the point of considering law sacrosanct and immutable, we as observers of the law do tend to regard it as at least somewhat coherent and well-founded. While I, of course, am not advocating for any particular reformation of the present law and consider it on a relatively inevitable course through natural cultural change, I wish to generally remind that it is composed of bounds working to fulfill several very different and often contradictory goals, only a few of which I have discussed presently. Many of the changes that we have societally undergone regarding government may be looked at with regard to the interplay of these rather fundamental sources of law, a perspective that may even be helpful in defeating less objective biases clouding our view of the development of administration. Oh well.