Rationale of the Law

Idealist  - Enforce Morality

Pragmatist – Protect Individual Rights

 The Rationale of the Law explains the central purpose of the law and reasons for having laws in a civilized society.  The Idealist and the Pragmatist again have opposing views as why society should have laws.  In both cases, it should be clear that the Rationale of the Law is closely related to the Foundation of Law.  Since both opposing views center their focus on morality it follows that the Rationale of the Law is also closely related to morality.

In the case of the Idealist, the relationship between the Foundation of the Law and Rationale of the Law is extremely close.  The Idealist believes that the purpose of the law is to enforce morality and the morality that is to be enforced is the Public Morality from the Foundation of the Law.  As the Idealist focused upon morality as an important legal concept (Public Morality), the idealist also began forming a method (Irrationality) for creating a Foundation of Law, and then the Idealist was able to logically deduce (Rationality) a method of applying the law.  All this was done for the purpose of having laws that meet the aspirations of the Idealist ensuring morality would be enforced.  The extent to which morality will be enforced depends on the final goal of the Idealist.  The nature of morality is also important.  How the Idealist determines what morality is and what is determined to be moral would of course influence the nature of the given society.  The Idealist uses the Foundation of the Law, Public Morality to safeguard against too radical ideas.  If the majority of the population accept it then its dangerousness is less likely.

The Pragmatist sees the purpose of the law as protecting the rights of individuals.  These rights are the result of moral reasoning that cannot be entirely empirical.  These rights are rights gained from historical events through time.  For instance rights granted to U.S. citizens today are a result in the redefinition of right's of 'man' over the last two centuries.  The fact that the rights are protected by a constitution neither guarantees these rights nor grants these rights.  These rights are truly viewed as privileges of every person.  If the law fails to protect the rights of individuals then the law has failed in its raison 'd etre. These rights are of the highest moral content, but are not a set of rules to be enforced but rather a set of guiding principles that the law must protect.

Misunderstanding at this point seems inevitable.  Just because one believes in the concept of individual rights does not mean that one is a Pragmatist.  Obviously an Idealist can also believe in individual rights, and can even believe that the law should protect individual rights.  The difference is based on two things, 1) the origin of individual rights, and 2) the concept of the law in which the emphasis is place on individual rights.  The Pragmatist maintains that individual rights are the result of historic events that have developed through time.  Individuals rights have evolved into existence and have been claimed by people openly in the American fight for independence and the French Revolution. 

Idealists assert that the origin of individual rights is the result of western culture intellectual activity or a gift of some divine providence.  This argument places individual rights at the foundation of the law and individual rights become moral standards that the law should enforce.  Differing from this position and believing that individual rights are more the Rationale of the Law is more than a slight departure of the same theme.  Individual rights of the Pragmatist are not a set of moral rules to which the law must conform, but a tentative and an ever-clarifying set of principles that people are defining for themselves in perpetuity.  The law needs these guidelines, and in fact, without these guidelines the law would not have meaningful purpose in a logical and empirical world.

Policing and the Rationale of the Law