Law, custom, and the good?

[fakename]

I learned that it is bad to make a law that goes against custom, that is, a law that does not befit the moral standards of most of the people.

Is this true?

If so, then can the law use force to habituate people to do what is against their customs?

And also, if there is a custom for people to not follow custom, then how can a law be framed for these people? For their custom is contradictory and so their laws can only be neither true nor false but only nonsense?

 

[Theophorus]

I learned that it is bad to make a law that goes against custom, that is, a law that does not befit the moral standards of most of the people.

Is this true?

If so, then can the law use force to habituate people to do what is against their customs?

And also, if there is a custom for people to not follow custom, then how can a law be framed for these people? For their custom is contradictory and so their laws can only be neither true nor false but only nonsense?

If that custom violates natural law(slavery for example) then human(positive) law should address this objective injustice. Now how far you legislate depends on both the nature of the custom(the degree of seriousness of the problem) and the general nature if the people and this decision making falls under the heading of political prudence.

For instance, to return to my original example, there is a vast difference in outlawing slavery in the world and enforcing(by law) punctuality in Italy!

 

[fakename]

user "Theophorus":

If that custom violates natural law(slavery for example) then human(positive) law should address this objective injustice. Now how far you legislate depends on both the nature of the custom(the degree of seriousness of the problem) and the general nature if the people and this decision making falls under the heading of political prudence.

For instance, to return to my original example, there is a vast difference in outlawing slavery in the world and enforcing(by law) punctuality in Italy!

But do you agree that no law can be made that disrupts the ingrained habits (even evil ones) of a people, for in that case, it would lead the people to even worse habits?

And what is your opinion about the law as a BF Skinner-istic conditioner? Is it right to use law to inflict pain so as to wean people off of bad habits?

 

[Theophorus]

But do you agree that no law can be made that disrupts the ingrained habits (even evil ones) of a people, for in that case, it would lead the people to even worse habits?

No, not in all cases. I follow St. Thomas in saying that somethings are so intrinsically evil that they must be legislated against for the stability of the common good(murder for example) regardless of custom or habit. whereas, the less grave evils(prostitution was one of his examples) must be done gradually
"St. Thomas:

The purpose of human law is to lead men to virtue, not suddenly, but gradually cf. ST I-II, q. 96, a.2, ad 2

I don’t believe you can totally ignore custom when fashioning human law, as given our fallen human nature if we were to legislate for virture as opposed to against evil then yes worse evils would occur. Thats why I mention political prudence as knowing when to do what.

And what is your opinion about the law as a BF Skinner-istic conditioner? Is it right to use law to inflict pain so as to wean people off of bad habits?

Actually BF Skinner is on my list to read in the near future so I don’t yet know much about his views, but if its conditioning akin to ‘pavlov’s dog’ then I wouldn’t be overly keen on it. The point of human law IMO is to uphold the common good and to guide people to virtue, not enforce it through coercion, violence or pain.
Justice relating to transgression of law is a slightly different matter but still must be carried out in light of the good of the person and the common good.

 

[fakename]

No, not in all cases. I follow St. Thomas in saying that somethings are so intrinsically evil that they must be legislated against for the stability of the common good(murder for example) regardless of custom or habit. whereas, the less grave evils(prostitution was one of his examples) must be done gradually

The point of human law IMO is to uphold the common good and to guide people to virtue, not enforce it through coercion, violence or pain.

I spoke to my priest regarding how to interpret that particular passage by Aquinas. He said, and I think it is the interpretation which is the most consistent with what is called “common knowledge”,that even though murder is bad, if it becomes a wide-spread habit then the law must acquiesce to it. So I’m inferring that as long as a majority are against it, then it can be restricted but if not, then no.

But what does it mean to lead people to virtue? Won’t the infliction of pain lead them to it as much as anything else if not more so?

 

[Theophorus]

I spoke to my priest regarding how to interpret that particular passage by Aquinas. He said, and I think it is the interpretation which is the most consistent with what is called “common knowledge”,that even though murder is bad, if it becomes a wide-spread habit then the law must acquiesce to it. So I’m inferring that as long as a majority are against it, then it can be restricted but if not, then no.

I admit it is a tricky area but legslating for murder would be leglslating for a gravely immoral act which is always contrary to the common good and to divine law and natural law. The whole argument from majority doesn’t sit to well either as that brings us to a relativistic position IMO. St. Thomas in ST I-II, q.97, a.3, ad.2. Presents a custom vs law scenario, and I can’t see how it would allow for the legalisation of murder
St. Thomas:

As stated above (Question 96, Article 6), human laws fail in some cases: wherefore it is possible sometimes to act beside the law; namely, in a case where the law fails; yet the act will not be evil. And when such cases are multiplied, by reason of some change in man, then custom shows that the law is no longer useful: just as it might be declared by the verbal promulgation of a law to the contrary. If, however, the same reason remains, for which the law was useful hitherto, then it is not the custom that prevails against the law, but the law that overcomes the custom: unless perhaps the sole reason for the law seeming useless, be that it is not “possible according to the custom of the country” [95, 3], which has been stated to be one of the conditions of law. For it is not easy to set aside the custom of a whole people.

But what does it mean to lead people to virtue? Won’t the infliction of pain lead them to it as much as anything else if not more so?

Properly speaking virtue is a habit(disposition), and the law should provide the framework which allows us to grow in virtue/aquire the habit of virtue.

Part of becoming virtuous is wanting to become virtuous, you can’t coerce people into being virtuous. The other part is that the habit of virtue is aquired by doing virtuous actions repeatedly, freely and willingly in accordance with right reason. now you can certainly cause people to obey the law out of fear of punishment but that simply induces obedience, not a life of virtue.

 

[ASimon]

I learned that it is bad to make a law that goes against custom, that is, a law that does not befit the moral standards of most of the people.

Is this true?

It depends on the moral standard. But no, it’s not necessarily true. If we could write the laws in Afghanistan, we would not be out of line to criminalize the murder of young girls who want to attend school. The Taliban may disagree, but they don’t get a vote.

 

[fakename]

user "Theophorus":

I admit it is a tricky area but legslating for murder would be leglslating for a gravely immoral act which is always contrary to the common good and to divine law and natural law. The whole argument from majority doesn’t sit to well either as that brings us to a relativistic position IMO. St. Thomas in ST I-II, q.97, a.3, ad.2. Presents a custom vs law scenario, and I can’t see how it would allow for the legalisation of murder

Here’s the argument: clearly one can think of a situation where most everyone is committing murder (abortion in the USSR, anarchy scenarios, the wild west, etc.).

But one can equally imagine a situation where people are both murdering and would turn to lying or revolt to circumvent a law that kept them from killing.

So in this situation and theoretically, rare as it may be, one should not impose a law against murder that would only encourage the people to become worse through lying or revolution.

So clearly then, perhaps restraining murder with only small measures would be the ideal.

 

[fakename]

user "Theophorus":

I admit it is a tricky area but legslating for murder would be leglslating for a gravely immoral act which is always contrary to the common good and to divine law and natural law. The whole argument from majority doesn’t sit to well either as that brings us to a relativistic position IMO. St. Thomas in ST I-II, q.97, a.3, ad.2. Presents a custom vs law scenario, and I can’t see how it would allow for the legalisation of murder

Here’s the argument: clearly one can think of a situation where most everyone is committing murder (abortion in the USSR, anarchy scenarios, the wild west, etc.).

But one can equally imagine a situation where people are both murdering and would turn to lying or revolt to circumvent a law that kept them from killing.

So in this situation and theoretically, rare as it may be, one should not impose a law against murder that would only encourage the people to become worse through lying or revolution.

So clearly then, restraining murder with only small measures would be the ideal. But if one cannot restrain the people at all, then I suppose one is not obliged to do the impossible. One would have to guide them then, by custom and good example, seeing as a good custom has the force of law.

 

[fakename]

user "ASimon":

It depends on the moral standard. But no, it’s not necessarily true. If we could write the laws in Afghanistan, we would not be out of line to criminalize the murder of young girls who want to attend school. The Taliban may disagree, but they don’t get a vote.

If girl-killing is so ingrained in Afghanistan then I would caution against using a law to restrain them lest they become worse. Again one cannot do the impossible, so perhaps education would be the answer.

Although I admit that I’m rather flummoxed as of what to make of the situation where a law goes against the majority and yet, it doesn’t make them worse or at least makes only a few worse. Is that bad or good?

I suppose that I should say that only good custom has the character of law whereas bad customs must only be tolerated for fear of a greater evil.

 

[fakename]

RE: law as custom and custom as law.

I admit that I’m rather flummoxed as of what to make of the situation where a law goes against the majority and yet, it doesn’t make them worse or at least makes only a few worse. Since it makes most people better but only a few worse, and since we want the more to be better, is this type of law good or not?

And what is a custom that says “don’t follow custom”? Is it an irrational and logically contradictory custom? Can it even possibly exist? And if it is neither of these, then is it a good custom and therefore a law? And if it is a law, then how can it be a standard of action since it seems totally contradictory?

Any help on these questions?

 

[hannajomar]

I’m thinking of how the United States racially integrated public schools. Especially in the south, there was a strongly held custom that white children and black children went to separate schools (as well as being separated for everything else in society). While it is not intrinsically evil to do this, in this case, it had the evil intentions of keeping whites in power and blacks out of power in society. My memory is fuzzy on the details, but citizens would not listen to the government to integrate the schools, so little black children went to an integrated school with the protection of armed military.

here’s a photo: adl.org/education/brown_2004/image1_popup.asp

I’ve heard some say that the custom of segregation was so ingrained that armed military was the only way in which the schools would get integrated. For generations, these customs were supported and even strengthened by laws. But when the time came to change, people wouldn’t obey new laws, and they wouldn’t obey the Supreme Court. Their hearts remained unchanged by the huge protests and demonstrations that occurred during that time which attempted changes in the most diplomatic way possible. But sometimes even the best diplomacy fails. These new laws went against so much of what that generation believed, but in the long-run benefited society by creating a more fair system - we’re not out of the woods yet, but in the last few generations, we’ve moved in the right direction.

So, I would say I disagree with fakename’s statement, “… it is bad to make a law that goes against custom, that is, a law that does not befit the moral standards of most of the people.” Sometimes it just has to be done.