"Can and Does Law reflect the values of a Community" The term 'value' is a problematic one. Values is one of those words that tends to be used rather vaguely and have a variety of different meanings. The dictionary describes it as an "intrinsic worth or goodness"1. In everyday usage 'values' are often used to refer to one or all of religious, moral, political or ideological principles, beliefs or attitudes. In the context of the community however, it seems frequently to be used to mean a set of fundamental moral or ethical principles to which the community is committed.
A community itself is governed by laws. They are a necessity for maintaining order, its people, its possessions, all are within the influence of the law, but can and does the law reflect the values of its community? This I feel can be divided into two separate issues, one clearly leading on from the other. I believe the first one to be easy to answer, for I do believe law to be capable of reflecting a community's values. This can be explained simply by illustrating briefly what law is. Law There has been much dispute in human history, as to the stage where law is first found.
No doubt as soon as men began to live in a community, some rules of conduct must have been recognised, but how far, these were only rules of custom or religion and how far they really deserved the name of laws is a matter very difficult to determine. Early law, before the days of writing, depended on tradition handed down by word of mouth, but soon there appears in nearly all systems of law, a written code, usually attributed to some one lawgiver, for example the Hebrew law that was attributed to Moses. It is possible however, that the codes were not statements of new law.
Their importance lay in the fact that they collected together and made public laws which already existed either in codes or in oral tradition. So long as laws existed only in oral tradition they would be known only to a privileged few and the making public of them was a step of great importance. In the beginning before communities were formed, man existed in what many philosophers have called the "state of Nature". According to Hobbes, man's condition in the state of nature is one of "perpetual war"2. For Hobbes, the absence of a self-evident objective moral law meant that there would be chaos and constant fighting amongst men.
A different view can be seen in Locke. He suggested that man was not threatened by other men, but by hunger. He believed that man had to acquire "the fruits of the earth" in order to survive. Locke's second principle of the state of nature is significant as it concerns social order. This was a situation of rationality that gave individuals a state of natural freedom. Absolute freedom has no meaning since "where there is no law there is no freedom"3 (from it). Law according to Locke is to be found in the law of nature – natural law is understood as an expression of God's will.
Whether you or I believe that one of these states has more truth to it than the other is of little consequence as the outcome is the same, man enters into or rather forms the community or state. Both Hobbes and Locke give different reasons for this but I will not dwell on them in great detail. The main reasons for man forming the community or state is to create laws in order to protect his property, to create an independent judge for adjudicating on these matters and an authority to enforce the decisions of the judges.
I agree with Aristotle's reason for this that it was inevitable as "man is by nature a political animal, it is his nature to live in a state"4 Aristotle believed that the state was the highest form of good5 and Plato himself remarked that "perhaps morality will be easier to see if we construct a community"6 So communities are formed based around communal and common cultures, and within those cultures a value consensus is reached among its people. However, within these communities, conflicting interests are bound to arise.
Thus a system of adjudicating and maintaining order is created in the form of the law, which in turn must be supported, by public opinion and morality to maintain that order. It is an "instrument, which controls interests according to the requirements of the social order". For Pound the law symbolised the "consciousness"7 of the entire community. He views the law as some "brooding omni-presence in the sky"8. Although I agree that the community would clearly come to some kind of consensus as to what the laws are to be, I do not agree with Pound's assumption that the community as a whole would always be included in that decision.
Too many examples throughout history demonstrate that a select group of people within the community reach a decision as to what the laws are to be, usually excluding women and the young from having their say. This however does not obstruct the fact that these communities have a dominant morality through which they are able to build their value structure. This value structure or morality will influence the way in which the community acts, these actions will eventually go from being custom to providing the background to the laws. "Can"
In answer to whether I feel law can reflect the values of a community, I most heartedly agree. Values represent the moral foundations of the very way in which we live our lives. It is enshrined in all mankind and a sort of "spontaneous origin within the individual psyche"9, just as we learn to walk and talk so to do we learn the difference between right and wrong which we are all hopefully brought up to believe in. It is easy for legal theorists to glance over the principle of values, their nature and their social effects, when investigating where laws come from.
However, I believe that it is from values, that those fundamental moral principles have determined what our laws are. I accept that these values like the laws themselves are not stationary, but in fact change and develop as society changes over time. However, the same core moral values remain, such as the value of life, as murder is illegal under the present laws. It is clear that the link between them is indisputable. As Aquinas stated, the "first precept of law, is that good is to be done and promoted, and evil is to be avoided"10.