On breaking the law

As the old Scottish jurisprudes taught, and other sages since time out of mind, one cannot break the law. One can only break oneself upon the law. They referred to that “natural law” which underlies all human legislation; or if it doesn’t, the human laws will perish. There are laws in physics and chemistry, laws implicit in the design of organisms, laws governing geometry and number, and all these laws are related. And there are laws of behaviour which govern the creatures, and govern man in a peculiar way, for man is granted wit with some small degree of freedom and wonder. The moral law is one with all the other laws of the universe, that we may dimly descry. Things could not be otherwise because the universe coheres. We may choose to obey or contest.

To that Scottish jurisprude (we are travelling back centuries here), raised in the genius of the Common Law, on its own and as embedded in Scots law with its complex antecedents, law is not essentially “written.” Rather, it is “discovered,” and the discoveries are accumulated. To this day, a litigious Scot will take you to court, “To see what the law says.” She (the example I had in mind was quite female) does not mean that the lawyers will simply look it up in a book, or use the algorithm in a computer program. Nooo. They will try the case. She means they will examine precedent, with a natural discernment of right and wrong, in light of the circumstance presented.

This is not the way revolutionary Frenchmen thought, who, in their perverse rationalism, decided we must all have a Code. Like the satanic metric system (designed for administrators, not makers and traders), the Napoleonic conception of law has apparently swept the world. With it travels that blithe arrogance with which the liberal and progressive mind solves its imaginary “problems,” under the illusion that it is “scientific.” There is still some resistance in e.g. the despised “Anglo-Saxon” realms, which have yet entirely to detach themselves from the old mediaeval sense of play. Americans (USAnians and Canadians alike) find themselves stretched between these poles — discovery by natural reason, and imposition by “theory.”

Realism versus nominalism, as we used to say.

We have “natural law theoreticians” which is a flagrant contradiction of terms. Nature abhors a theory, in the modern sense of that word. There is nothing experimental about her, and she sneers at those smug who claim to perfectly understand her. She has ever another trick up her sleeve, to surprise her investigators. Just as they declare her asleep, the bats fly out. We must take her at her own evaluation, with all the caution that must imply; or take the alternative, and die.

Her laws are not negotiable. All are instantly enforced, in every increment along our way. She lets us jump; she does not let us fly. She does not allow abstraction on abstraction. Pile one assumption on another and we are soon crushed.

