Monday, May 05, 2008

Contemplating the rule - thoughts in draft - 2

The law as an impersonal device – the impersonality adds neutrality for the diffusion of conflict.

By ordering society through an impersonal medium we are better able to rationally resolve disputes without the dispute lingering on.
Any personalised attempt at resolution of the conflict/dispute where one party perceives a less than favourable outcome constitutes an affront to that party and results in a continuation of hostilities. An impersonal resolution through the medium of rules where the rules have been set out and agreed to beforehand may still result in a resolution which the party may find unpalatable or less than desirable. But, at least the party would be rationally obliged to accept the resolution as the outcome of a process that he had agreed to be a party to.

Can this process of impersonal nature of a rule be used as a device to test the ‘proper’ nature of a law. A law that is personal is ‘improper’ and ought to be repealed or reformed. A law that is ‘proper’ may remain, subject to other ethical considerations. Is this a workable model for testing the desirability of a law? And, to take it a step further, is this a workable model for testing the validity of a law?

The proposition is this: if rules serve the function of being a medium for the impersonalisation of a dispute, then, unless the rule is impersonal, it does not have the pedigree of a rule.

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