From Antiphon’s On Truth as quoted in the introduction of Thucydides’ The War of the Peloponnesians and the Athenians (edited by Jeremy Myrott):
Justice, therefore, consists in not violating the customary laws of the city in which one is a citizen. So a person takes most advantage for himself from ‘justice’ if he respects the important of the laws when witnesses are present, but follows nature in their absence. For the requirements of the law are discretionary but the requirements of nature are necessary; and the requirements of the law are by agreement and not natural, whereas the requirements of nature are natural and not by agreement.
From Edmund Burke’s Reflections on the Revolution in France:
If civil society be the offspring of convention, that convention must be its law. That convention must limit and modify all the descriptions of constitution which are formed under it. Every sort of legislative, judicial, or executory power are its creatures. They can have no being in any other state of things; and how can any man claim, under the conventions of civil society, rights which do not so much suppose its existence? Rights which are absolutely repugnant to it?
The greatest political superstition of the modern era is the belief that laws are the creations of reason rather than of, as G.K. Chesterton called it, the democracy of the dead. Just as the creationist needs to postulate the existence of a creator transcendent to the world in order to make sense of its creative processes, so too does the modernist need to postulate the existence of minds transcendent to society in order to explain law. Both are happy stories about how the world isn’t run by chance or folly, but by intelligent beings able to think through what they’ve created, and both are wrong superstitions.
Just as species are the haphazard creations of natural selection, so too are laws the product of selective forces operating beyond the understanding of the human mind. Furthermore, just like species, laws lack any special τέλος. It is very easy to think that a law against murder as existing to prevent people from murdering one another, but that’s like saying that a large ground finch has a robust beak for cracking nuts.
It’s a statement which assumes the existence of a teleological goal which isn’t really there. Both statements don’t do much harm at the superficial level; however, as one examines the phenomena closer in depth, the assumption of teleology will be misleading. Just like the large ground finch’s beak, laws against killing have come about because they provide selective benefits to the societies that harbor those laws, which brings us to a very important point about law: that it’s focal.
Edmund Burke recognizes that when he talks about the conventional nature of society. The conventions are the focal standards of behavior which people observe, and their observation of those conventions creates a specific type of society depending on the constitution of that given convention. Laws are then the most sacred of those conventions which have worked their way into the very fabric of a society through generations facing the particular problems they are faced with, hence the democracy of the dead part. There is a democracy to tradition; unlike voting for representatives, though, tradition’s democracy demands much more of its voters than simply arriving to the booths, it demands people to vote for traditions by adopting ways of life.
Those ways of life eventually become focal for people coordinating their behavior with one another. In essence, laws are nothing but long-standing customs. They are not, as the moderns would have us believe, the product of a spiritual force - reason, little more than a ghost in the machine - otherwise unconnected to the particular historical circumstances each society is faced with.
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