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An Unreasonable Basis for the Law
By Benjamin F. Lasseter May 17, 2005

Richard Kramer of the California Superior Court was recently privileged to rule on a case that concerned a 2000 referendum reaffirming the traditional role of marriage as between a man and a woman. As could be expected from an activist member of the judiciary, Kramer said that such a reaffirmation was wrong, not because it was explicitly or implicitly contradicted by the California Constitution, but rather because it was "irrational." His reasoning seemed to come from the expectation that procreative action is the only thing that binds men and women together in marriage, that procreation is possible outside marriage, and therefore nothing binds men and women together in marriage, so we should not insist that men not marry men and women not marry women. I might suggest, were I inclined to do so, that Judge Kramer's "reasoning" is a bit "irrational," but I am, in fact, not inclined to do so. Whether his argument holds up or not, his claim is true that the proposition "marriage can only be between a man and a woman" is irrational.

Please suspend the lynch mob for a moment and hear me out.

Yes, the idea that only male/female marriages can exist within the law does not follow from any rational principle. You cannot begin from first principles like "the greatest good for the greatest number," "first do no harm," or "the simplest argument is the best" and derive from those principles the rational legal position "marriage can only be between a man and a woman." Likewise, you cannot derive the rational legal position "marriage cannot exist between a man and a sheep."

Of course, there are a host of other laws that are equally irrational, but which we still accept. We stop at red lights and go at green ones. Why? There is no rational connection between redness and stopping, and even less between greenness and going. We drive on the right side of the road. Why? It is obvious that everything works just as well if we were all to drive on the left side, like the English. In fact, just about every last one of our laws is "irrational" in this sense, even those strange punitive ones we have about stealing your neighbor's car or deliberately setting Yellowstone Park on fire. They none of them proceed directly from first principles.

That doesn't make them wrong.

In fact, American law, like British law, has never proceeded on the basis of rationality. We have always stuck to a far more sensible principle: pragmatism. Whatever works. Our courts base their rulings upon precedent (or at any rate, they are supposed to) because precedent gives a record of what works and what doesn't. Bad precedents are remembered and not repeated. Good precedents are remembered and used again. Naturally, we have had a number of serious judicial blunders, which continue to serve as reminders of what NOT to do when deciding a case. There are not too many court rulings that invoke positively the precedent set in the "Dredd Scott" case these days, are there? It isn't a coincidence. Examining the record of judicial precedents is supposed to be the guide to wisdom within our legal system. A particular judgement gets tried, and if found wanting, is afterwards discarded like the legal trash it is. If found good, we use that same judgement for a different case. This is supposed to be how the precedent system works, and there is very little rational about it. But it does work, and that is why it continues to be used.

Pragmatism makes a far better foundation for the law than reason. American and British law is the exception around the world in this regard, not the rule, because most other legal systems do not use pragmatism as their guide. Now I hate to pick on the French, but their legal system is a good example of law by reason and not by pragmatism. As such, they make themselves into a target too big to resist. There are many good things I can say about the French legal system of course, but the fact is that they are currently on their fifth constitution since 1791, whereas the United States is still on its first. That means that at least four French constitutions have not worked, and the American one is still doing well. There is a connection between the lack of pragmatism and "not working," and it comes from the definition of the word.

To be fair to the French, I should point out that they are not alone. There are and have been many others who keep them company in not basing their legal system upon pragmatic principles. The Soviet Union did so as well, as did the Khmer Rouge of Cambodia and the Maoist Communists of China. Likewise, the Nazis based their laws upon what they called reason, rather than upon pragmatism. Sharia law is based upon divine dictates, and not upon pragmatism. Naturally, there are some political thinkers who feel the aforementioned societies left and leave something wanting in their governmental systems, and I am inclined to agree. In each case the structure of those societies has not seemed compatible with human nature. On the other hand, law by pragmatism is almost invariably compatible with human nature. Why? Because it works, of course. The reason may not be so clear, but the fact that laws are base upon what has been observed to work strongly pushes societies in a direction perfectly compatible with the nature of the humans who are participating.

So, taken as a whole, I think it would be a wise idea for our judiciary to cease passing down their rulings based upon what seems reasonable to them, and rather to stick to precedents that have been shown wise with the passage of time. Otherwise, we may be going through five constitutions this century, too. The basis of American law may be unreasonable, but it certainly does function well.

Now, if the lynch mob still wants to find me, may I recommend that they use a three-quarter-inch nylon rope, rather than an equivalent grade hemp one? They will find it works better.

Copyright © 2005 by Benjamin F. Lasseter

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