Foundation Principles and Formal Rules

Two VERY Different Concepts of Laws

Photo by Alex Padurariu on Unsplash

The next few posts will be making the case for what might be termed a “legalist” view of ethics. I’ll be arguing that the legal status of an action should serve as evidence of the action’s rightness. This is similar to ethical intuitionism, whose proponents argue that instead, our intuitions should serve as evidence of morality. This post will address an intuitive critique of this legalist ethics: oppressive regimes. 

Are the Nuremberg and Jim Crow laws evidence of the morality of a racial caste system? Does the historically widespread acceptance of slavery mean that the practice was actually just in certain settings? Isn’t trying to determine morality from a legal system just another form of moral relativism? No, no, and no.  

We should recognize the law as falling into two broad categories: foundational principles and formal rules. Foundational principles are closely associated with what are known as “natural rights” (post coming).  These are universalizable principles found in all just societies that serve to protect people, property, and contracts. They also include assurances of procedural fairness, like some form of liberal democracy. 

Formal rules, meanwhile, are the detailed laws that give foundational principles their form within a society. We might think of them as cultural differences, but they can be rooted in many factors like geography and historical happenstance. This dichotomy has been recognized by theorizers of laws going back to (of course) ancient Greece with the Stoics (see also the inspiration for my profile pic, Marcus Tullius Cicero).

If you have seen Legally Blonde, you might remember the terms malum in se and malum prohibitum. Malum in se means conduct that is wrong in itself. Malum prohibitum means conduct that violates a statute. Applied here, malum in se actions violate foundational principles and malum prohibitum actions violate formal rules.  

Foundational principles are those obvious, broad ideas that every just society recognizes. They include the value of human life, respect for agreements, and democratic rule. They tend to be explicitly stated in the constitutions of nations, but not always (see the incorporeal British constitution). They serve as the foundation to property rights, criminal law, contract law, personal liberties, rule of law, and democracy. 

Foundation principles are determinates of a society’s procedural and substantive fairness. For a society’s legal institutions to serve as an ethical guide, its institutions must be grounded in these foundational principles. 

However, as scholars of comparative constitutional law have noticed, laws can be very different. Although they serve much of the same purpose and are motivated by similar ideals, societies have different ways to put foundational principles into force.

Formal rules are ultimately empirical issues that should be determined primarily by the experts in the field. Ideally, they would be governed by a utilitarian calculus. 

For instance, one foundation principle would be the recognition of property rights. But you still need formal rules to fill in the details. These would include laws relating to zoning, mortgages, recording, adverse possession, easements, conveyances, covenants, nuisance, takings, etc. The formal rules of property may differ wildly between jurisdictions, but they are just so long as the foundation principle of property rights grounds them.

If a society didn’t recognize property rights, and a citizen gets his property stolen, then that citizen is justified in using self-help to secure what the government won’t. However, if that citizen lost his property through adverse possession,¹ in a society that has property rights as a foundational principle, then he's SOL. Adverse possession is a formal rule and he needs to respect the government's authoriah.

Being an innocent party on the unfortunate end of the law happens. It doesn’t matter if you come from a jurisdiction that doesn’t recognize adverse possession, you didn’t know about the law, or whether you think the rule violates your fundamental rights. You can gripe and moan, but you don’t have the ethical right to disobey. 

Sure, that individual might push to change the formal rules. However, formal rules are best developed by experts—equipped with their own evidence, models, and methods of reasoning—not by special interests. 

To illustrate, imagine a rental agreement. People can justly have widely differing terms on their leases, each of which is just and should hold up in court, so long as procedural and substantive fairness are met. This requires that the agreement has been entered into fairly (no threats and everyone had their facilities intact) and the agreement itself is not unconscionable (no term like “your firstborn must serve as an indentured servant if you are ever late on your rent”). 

So a lease provision that says something like “tenant must pay for all repairs and utilities” might seem instinctually exploitative on its face. Isn’t the fair outcome going halvsies? But then you realize that this term also comes with lower rent. And both parties are willing to make this trade-off, making the outcome fair and any future breach (likely) unethical.

I’ll be going back to these two aspects of laws in later posts. But the takeaway is that so long as the foundational principles are there, the formal rules are legitimate and can serve as admissible evidence for the rightness of actions. 

So when there’s a new bill or voter requirements or tax cuts for the rich, know that it (almost certainly) could not take us back to the Jim Crow South or pre-revolution France. It's much more likely that the new law relates to an issue where disagreement is reasonable, is likely the product of reason, and should be valued. Just because you think that the new gun regulation is a human rights violation or your state’s abortion law signals the return of the patriarchy doesn’t give you license for ethical disobedience. 

Formal rules, grounded on foundational principles, create a just agreement with ethical weight. You don’t have to like all the terms. You may even think some terms may work better—even though they’ve probably been worked out by people more informed than you. But what you should do is respect the outcome. 

Even with this brief explanation, there are still a lot of unanswered questions. Can formal rules be made in a way that violates foundational principles? What secular authority justifies these so-called foundational principles? What gives formal rules any authority over how people decide to live their lives? 

I’ll be explaining these concepts more fully in future posts, so stay tuned! 

1. Adverse possession is a widely recognized legal doctrine where someone may validly acquire title to the property of another through open and continuous use of that land for a specified period of time. Rules vary.