If the question is “Without the law what is to prevent or dissuade someone from (committing this or that evil action) should they have the opportunity and should they feel like it; and what then is the consequence?” …yes, if this is the ethical question with respect to the law, and it is, then we can argue that the law is not necessary to determine the moral value of the action in question. Indeed, we can argue that to even ask the question in the first place is to admit that moral judgement must already have been rendered upon the action. So we know that by the very (ostensible) point of the law in the first place—to dissuade men from and to punish men for evil actions—that law itself has nothing to do with how and why actions are morally valued. In other words, if an action can be valued as “good” or “bad” outside the law, and indeed this value is an a priori premise of the law, then it can be concluded that the law has nothing at all fundamentally to do with moral ethics. And this is very important. Because what this means is that the law can neither fundamentally promotes moral action nor provides for moral consequence.
Let me explain.
Moral ethics are often the ostensible reason why men feel the need to apply law in defense of morality, but those who are committed to law as a conveyance of morality rarely, if ever, claim that law is the means by which morality is defined. And this makes sense, as the very definition of ethics as a bonafide philosophical category must include both action and consequence of action—these are corollary. In other words, even men who are comitted to law as a means to implement morality accept that the morality of both actions and consequences are wholly defined and understood apart from the law. Said another way, even those who promote the law as a defense of morality tacitly admit that morality is a fully-formed, complete, self-sustaining/self-contained, comprehensive ethical system. It already describes what is good and bad, and therefore it necessarily describes the consequences of good and bad actions, and how to promote the former and prevent the other. The moral value of an action and the corollary moral value of its consequence necessarily imply the moral means of defending and promoting morality. Moral ethics don’t actually need the law. At all.
Which begs the question: why do we have law then?
I’ll get to that. But I suspect you already know/have figured it out.
Law is instituted in defense of morality only after moral actions and consequences have already been observed, defined, and understood. Ergo: “We must have law in order to prevent/punish people from/for doing this or that BAD thing”. That is, law is seen to be a tool of moral ethics. But here’s the problem: it has nothing actually to do with moral ethics…and this is the grand ethical irony. The Ethics of Morality already provide the utility for which the law is said to be necessary. In other words, in any true, legitimate ethical system—of which morality is indeed the only rationally consistent example—the prevention of and consequence for unethical action is endemic to the system. Morality provides for its own conveyances of prevention and consequence. It does not need the law…the law, as far as moral ethics goes, is utterly superfluous. Morality already endemically declares that “if thou do X then thou shall necessarily reap Y”. The future prevention of negative moral action X is the example/experience of reaping of the necessary corollary moral negative consequences of Y…both of which are defined and understood according to morality, not according to the law.
Which brings us to the next point in this essay series: The law then, by deduction of relatively simple logic, is not a tool of morality but a replacement of it. It does not save or protect the innocent, it wrecks the distinction between the morally innocent and the morally guilty, and places the declaration of ethical value squarely in the hands and the whims of a subjective ruling class (Governing Authority…the State). The establishment of a ruling class is, as a fundamental premise, is the deposing of morality and the institution of legality in its place. And this is necessarily the death of humanity, not the salvation of it.
END part one