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TaylorPerezFirstEssay 3 - 20 May 2021 - Main.TaylorPerez
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The Law as the Witness of ‘Our’ Moral Life
In The Path of the Law, Oliver Wendell Holmes Jr. described the relationship between law and morality quite simply: “the law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.”
Yet, Holmes muddies the waters as he continues on to warn of the hidden dangers of conflating the law and morality despite their shared terminology. However, his forewarning seems contradictory: if the law is the witness of our moral life, and the external deposit of our moral life, the law would reflect our moral life; there would be some inherent correlation or connection. On the one hand, Holmes recognizes that the rights of man in a moral sense are not equivalent to the rights of man in a legal sense, but simultaneously blurs the boundary as he acknowledges the law as the “deposit” (i.e. a body of accumulated matter) of our moral life. What accounts for the glaring gape in Holmes’s logic?
The answer is simple. Moral and legal rights are unequal (and thus morality and legality should not be conflated) because the law is the witness and external deposit of the morals that were intended to be protected, perpetuated, and enforced by the law. The law is the witness and external deposit of the colonizer’s moral life…the oppressor’s moral life…and the majority’s moral life. Holmes’ personification of the law as the “witness” of our moral life carries profound significance, as it unveils the enigma. The one and only way in which the law can exist as a witness to anything is by the application of men. In actuality, the law is witness only to the external deposits of moral life that lawmakers choose to codify.
A moment of redemption arrives for Holmes as he states: “the law, if not a part of morality, is limited by it. But this limit of power is not coextensive with any morals…it falls far within the lines of any such system, and…may extend beyond them, for reasons drawn from the habits of a particular people at a particular time.” Here, Holmes explains that the discrepancy between moral and legal rights exists as a function of discretion: whether the law exists within a system of morals or exists beyond it depends on the discretion of those who create and enforce it.
Holmes himself states that “the primary rights and duties with which jurisprudence busies itself are nothing but prophecies.” Holmes admits: “A legal duty…is nothing but a prediction that if a man does or omits…things he will be made to suffer…by judgment of the court.” But what of a man who can predict that if he does or omits things, he will not be made to suffer by judgment of the court, even if another man in the same predicament will? Does the differential prediction differ the duty? Though Holmes avoids making the claim outright, his logic suggests it does. If, for example, George Zimmerman could predict that if he killed Trayvon Martin he would not be made to suffer by judgment of the court, does that change his legal duty not to kill Trayvon? The judgment of the court shows that it did. The reason, again, is simple: Zimmerman and others like him do not make such predictions based on individualistic ideas of morality, but on the understanding that the law is the external deposit of the colonizer’s/oppressor’s/majority’s moral life. As Holmes explained of the system of predictions: “the reports of a given jurisdiction in the course of a generation take up pretty much the whole body of law, and restate it from the present point of view.” In other words, the best prediction of the future is the past. And if the history of the law is the history of the moral development of the race, the moral development of the race effectively prophecies the primary rights and duties of jurisprudence.
Yet, it is crucial to examine the critical variable that Holmes ignorantly overlooks: the discrepancy in law and morality as a result of the fact that the law witnesses and codifies the deposit of the moral life of a race—the majority’s—to the exclusion and sometimes the desecration of the moral lives of the minority race(s). And it is perhaps Holmes’s own circular reasoning that explains this: “the primary rights and duties with which jurisprudence busies itself are nothing but prophecies.” Accordingly, the law effectively functions as a tool that does not merely prophesy rights and duties but dictates them. Nor does the merely law merely dictate rights and duties but situates them either within the bounds of morality or beyond them discriminatorily according to which race’s moral life the law bears witness to.
Holmes’s The Path of Law is a sobering reminder of the reconstruction, white-washing, othering, romanticism, and apologist narrative of U.S. legal history. The law is witness only to those with enough power to create it. The law is the external deposit only of those whose morality is valued enough to be codified into law. The prophecies of legal rights and duties are only those whose perpetuation will benefit the race with the power to direct the path of the law. The bad man who cares nothing for an ethical rule is not required nor incentivized to “care a good deal” to avoid the consequences of the law if he constitutes the race whose history of moral development is the history of the law. And most of all, the good man who can predict from the history of the majority’s moral development and that of the law is served none by any so-called “practical importance of the distinction between morality and law.” If a good person of any race can predict that even when she upholds her legal duty she can be made to suffer by the judgment of the court, it is precisely because the history of the law is not the history of the moral development of her race. Then, the unification of morality and law—specifically, the application of morality as a witness to the law—is of true practical importance. |
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