Returning to Law as Modus Vivendi: Sociality as Law’s First and Foremost Purpose
Several theories within the philosophy of law compete for recognition as law’s central guiding principle. Each begins from the premise that a system of rules instituted among a political community has a purpose – a normative aim – based on a certain anthropological account of what human beings are and what they need. Each then accounts for the law’s current and potential function, pursuant to those needs. Each then proceeds to show how certain specific rules can bring the law in line with its ultimate purpose, which itself serves the greater ultimate purpose of providing human beings what they need – in other words, advancing human flourishing.
To make this abstraction more concrete, consider the influential theory of Law and Economics, admittedly presented here in simplified form. Law and Economics posits that law’s normative aim is efficiency: Legal rules should be designed to minimize waste and allocate goods in such a way that will maximize overall happiness. This can be traced to an unspoken but unmistakably implied anthropological account of what is good for people, what makes them happy, and what the law therefore ought to facilitate for them: What is good for people, individually and communally, is happiness (on the minimalist law-and-economics account that is whatever they may be bargaining for, or whatever may be the coin of the realm); much of the law can be explained by assessing its tendency to place burdens on those best suited to handle them, and those parts of the law that do not seem to account for efficiency ought be changed to facilitate efficient allocations of burdens and benefits. Law’s purpose is to achieve such an end.
