The Sources of Law

Richard Ostrofsky
(publication date unknown)

The idea of society may be the most difficult abstraction in our repertoire,
swallowing every other concept that we possess. Nothing is outside of
society. Every idea we have, and we ourselves become components of
society and its conversation. No wonder the idea is so bitterly resisted. For,
as soon as we accept this concept of an over-arching social entity, our
personal claims to autonomy are diminished accordingly. Our whole
existence is seen to be conditioned by, and relative to the society around us.
Prior to this idea, only God was outside of and inclusive of everyone and
everything. But with the discovery of society, even the idea of God is
relativized to a particular society's conversation, with just the features that
conversation attributes.
This almost theological conception of society as the ground of human
understanding must take increasing hold as global conversation knits the
world’s distinct societies into a single fabric. It will seem increasingly
natural (as first occurred to Hegel) to conceive the totality of global
conversation as a kind of “World Spirit” like unto God, and to identify the
working consensus of all humanity with reality itself. Given this much
cognitive reconciliation, we might hope for some political reconciliation as
well, but until this comes to pass, we face the problem of governing a single
global society comprised of any number of overlapping conversations and
sub-cultures, at terrible extremes of wealth and poverty and cultural
variation. As this is written, around the turn of the millennium, some two
hundred distinguishable conversations assert their separate identities as
sovereign states. Within these states, and across their boundaries,
innumerable conversations flourish, compete and contend, and it is this
fragmented condition that we have in mind when we speak of the post-
modern world and its vacuum of coherent government.
Vast as it is, the idea of society is fully exhausted in the possibilities for
lawful and criminal behaviour. For the idea of society is fundamentally that
of an aggregation of human activities and relationships that maintains a
recognizable identity and character over time. All these activities and
relationships must be either permitted or forbidden: carried on with or
without society’s blessing. To be sure, there is a huge gray zone – of
activities that are formally illegal but tolerated, and of activities that are
formally legal but restricted by peer pressure, public opinion, and privately
applied sanctions. But the very existence of this zone merely underscores
that law itself is a living process, and an artifact of the social conversation.
Every conflict of interests and values, every question of social behaviour
must either be or not be justiciable – susceptible to resolution at law. And
what is not justiciable is either too trivial for the law to bother with, too
expensive or intrusive for law to enforce, or too contentious for law to
arbitrate and resolve.
Our idea of law derives from at least four conceptually distinct but
overlapping sources. Although these are by no means of equal force, each
contributes to our idea of what the law should be and thereby plays some
part in shaping what the law (in a given jurisdiction and at some given date)
actually is. The authority of law is strongest when these sources are in good
agreement, and progressively weakened when conflicts between them arise.
To begin with, there is Positive Law – the decrees of sovereign power
(e.g. the democratically elected parliament). But such decrees are judged by
at least three other standards, apart from political expediency and utilitarian
calculations of collective self-interest. The most primitive of these standards
is the intuition of fairness. Impossible as it is to define this notion precisely,
there may well be a consensus that a certain law is unfair. There will be cost
and danger if legislators and jurists choose to violate this feeling. Insofar as
lawgivers will usually prefer to accommodate such a consensus without
strong incentives to the contrary, it must be considered a source of law.
Custom, precedent and consistency afford yet another source – specifically
of Common Law–which may conflict both with the decrees of duly
constituted power, and with our sense of fairness also. Finally, and (as I
would argue) most fundamentally of all, there is a source of law implicit in
the logic and necessities of social relationship itself – in what I have
elsewhere called the logic of conversation. Certain actions, certain kinds of
behaviour, strike us as good because they help relationship run more
smoothly and freely, or to better advantage. Others seem wrong because
they hinder it from doing so. In a sense, the latter seem inconsistent and
self-canceling. If everyone played that way, the game would be impossible,
or not worth playing.