A blupete Essay

Legislation & Morals, Part 11 to blupete's Essay
"Legislation: Robbers' Rules"

"Shame ... not fear, is the sheet-anchor of the law." (William Hazlitt.)
There is a whole line of philosophical thought that has resulted in what has become known as the moral sentiment theory. It is a theory that asserts that the ethical system, on which society depends, is intuitive; people will generally do the right thing instinctively and not necessarily because of any understanding of the process, or because they have reasoned things out in any particular manner.

There are those, Spooner having been among them, who believe that peace is an indispensable condition to a satisfactory life; this notion, they believe, and the obedience to it is the only universal obligation: everything else is a matter of personal choice. The canon by which these people live is to proceed at all times honestly; to hurt no one; and to give to everyone his or her due.

"Man, no doubt, owes many other moral duties to his fellow men; such as to feed the hungry, clothe the naked, shelter the homeless, care for the sick, protect the defenceless, assist the weak, and enlighten the ignorant. But these are simply moral duties, of which each man must be his own judge, in each particular case, as to whether, and how, and how far, he can, or will, perform them. But of his legal duty - that is, of his duty to live honestly towards his fellow men - his fellow men not only may judge, but, for their own protection, must judge."20
The argument is made that legislation is needed to infuse (as if it is possible) morals in the general population by the use of force (a self destructing argument). Leoni asserted that "legislation may have and actually has in many cases today a negative effect on the very efficacy of the rules and on the homogeneity of the feelings and convictions already prevailing in a given society. ... the very possibility of nullifying agreements and conventions through supervening legislation tends in the long run to induce people to fail to rely on any existing conventions or to keep any accepted agreements."21

We need to look at the obverse of the proposition that legislation is needed because of the lack of morals, viz. that legislation is not generally needed on account of morals which naturally exist amongst the population. This is hardly a new thought. In international law we have the salutary but sanctionless code called the Comity of nations. The OEDII defines comity: "courtesy, civility, urbanity; kindly and considerate behaviour towards others." Things generally do run, and will run very well, all things considered, simply due to the courteous and friendly understanding by which each of us proceeds to deal with his fellows. Persons, on the whole, proceed in a friendly way; because, on average, better results are obtained. The primary moral tenent is to treat another as the treater would like to be treated.22 Therefore, it is necessary for us to keep reminding ourselves, in respect to the various proceedings and usages in life, that each of us must proceed with the principal objective in life -- the same for all of us, viz. to preserve our own rights and interests. This objective is best met by giving respect to others, in the same level and manner as the giver expects to receive in return.

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