Why Law is Morally Useless
Well, I guess it's about time I got off my ass and started posting. I happen to be in a preachy mood and not an introductory one, so I'll get right into it. If you're reading this, you probably already know who I am anyway.
Anyway...
If you'll permit the Godwin-ing for a moment, consider Nazi-era Germany. No doubt some individuals were faced with the unpleasant choice of:
a) killing Jews, or
b) breaking the law (and presumably facing consequences if caught)
Now, whether or not we harshly judge those who selected a, it is fairly likely that we can all agree that those who select b are "doing the right thing" (well, those of us that aren't anti-Semitic, anyway). The point is, we are saying that they SHOULD break the law. Presumably, we feel that they should do this based on their own sense of morality. That their morality should transcend the law.
This is where it gets interesting. Fundamentally, what we're saying is that they should break the law simply because they disagree with it. So, what is law if we believe that people should break it when they disagree with it?
Anyway...
If you'll permit the Godwin-ing for a moment, consider Nazi-era Germany. No doubt some individuals were faced with the unpleasant choice of:
a) killing Jews, or
b) breaking the law (and presumably facing consequences if caught)
Now, whether or not we harshly judge those who selected a, it is fairly likely that we can all agree that those who select b are "doing the right thing" (well, those of us that aren't anti-Semitic, anyway). The point is, we are saying that they SHOULD break the law. Presumably, we feel that they should do this based on their own sense of morality. That their morality should transcend the law.
This is where it gets interesting. Fundamentally, what we're saying is that they should break the law simply because they disagree with it. So, what is law if we believe that people should break it when they disagree with it?
posted by Gideon Humphrey at 1:22 AM
10 Comments:
Depends who makes the law. I could make a law and say that everyone has to follow it...that's why we have checks and balances like the UN Universal Declaration of Human Rights and the UN declaration that makes genocide unlawful (resulting from the events of WWII in Germany). It is the culmination of human history that define these laws and the joint power of nations that enforces it. Unfortunately, nations have been acting strategically in terms of Human Rights interventions, prioritizing those who have desireable resources instead of intervening to combat all Human Rights abuses. Black segregation used to be lawful until the guidance of the UDHR forced the perpetrators to admit that their law (discrimination on the basis of colour) was in fact unlawful. There's no way to prevent unjust laws from ever being made again, but it doesn't mean they are always absolute and are often circumvented when measured against the values outlined by human history.
I don't think you see what I mean. My point is that no matter what laws exist, WE EXPECT people to break laws they disagree with. We want Schindler to help the Jews, but we don't seem to realize that that's directly parallel to wanting Jeffrey Dahmer to eat people.
I think what you're missing is that people expect people to break the laws that SOCIETY considers unjust and the principle that the law should generally reflect the views of the society it governs.
For the German example, the views of the majority of German people did not reflect those of the Nazi party. They did what they were told for self-preservation.
If a person breaks a law the likelihood that they'll get away with it grows exponentially with the number of people in that society or community that accept the law is unjust. Look at the laws against anal sex that existed in some states until relatively recently. The law hadn't caught up to the societal acceptance of those acts.
That's why Dahmer and the Nazi example don't exactly mesh. One is an example of a law that has grown to be accepted as a law over many years, whereas the law relating to the killing of Jews was a top down law which did not reflect the views of society. That's what grows the expectation that people will break the law.
It's also obvious we expect people to break the laws they don't agree with. That, along with self-interest and self-preservation are the reasons that people break the law.
I'm not so sure that Dahmer thought the law against murder was unjust. He acted in his self-interest, not because he believed he should be allowed to kill.
1. So, if the majority believed that Jews should be exterminated, that becomes moral and we should condemn those that tried to save them? I don't think it works like that. I think Schindler did a good thing regardless of how many Germans agreed with him.
2. Random comment: I believe anti-sodomy laws are still on the books in several states, though generally unenforced.
3. I don't think there's a distinction between acting in self-interest, and acting against something that is unjust. We act against things that are unjust because we think that just is better. In other words, we act against things that are unjust because we act in self-interest.
First off, there's no doubt that what Schindler did was a good thing. That's not debatable. However, what is debatable is the reason why it is considered a good thing and why he was able to succeed. His actions were considered as a good thing by the people of Germany because they felt it was an unjust law. Had a majority agreed with the law then he would have been reported and arrested. That is why the Nazi era in Germany and the Apartheid era in South Africa are interesting - it was a majority controlling a minority, enforcing laws that the majority didn't see as just.
Secondly, acting in self interest is not the same as acting in a just manner. By that logic, athletes who use drugs to gain an edge do so not in the self-interested goal of winning (and in professional sports get endorsements, contract extensions, etc), but because they feel that the rules against doping are unjust.
"Had a majority agreed with the law then he would have been reported and arrested."
But would that have made him morally wrong? I don't think so.
And your athletes example is kinda getting it backwards. I'm not saying that those who act in self interest are necessarily being noble. I'm saying that those who act against things that are unjust are being selfish. In other words, that both individuals are pursuing what they desire.
I'm not sure who would actually say a person should break the law if it conflicts with their own personal morality. It's more complicated than that, involving larger support groups in society. There needs to be some social justification for breaking a law, based on opinions by at least some peers. I'm not entirely sure how else to judge whether a moral decision is good or bad, but then again, I haven't read Kant. Most of us have a sense of empathy for others, but beyond this it can get very vague.
Most people don't break laws they disagree with, except in circumstances where they feel there is no victim, because most people have some sense of empathy. Someone may run a red light at 2 AM because they feel it isn't hurting anyone, regardless of whether it actually is or not. Other times, threats of punishment keep people in line, like with paying taxes, that almost everyone can disagree with on some level, even on moral grounds. I don't think governments actually expect most people to break a law just because they disagree with it, even if some small subset might indeed do just that.
And thanks for the blog spam.
So you're saying that it's okay to want Germans to avoid killing Jews provided that at least some peers agree? Sounds complicated... I can kinda see going the majority route, ie that morality is determined by a simple majority, or I can kinda see going the individual route, but, although I can't see anything a priori wrong with it, your route seems to create as many questions as it answers.
Yes, it's complicated. Some random thoughts follow.
It's easy for an individual to say genocide is wrong if they haven't been taught in every facet of the youth that Group X is evil and should not exist, or that women don't deserve certain rights. It's easier to judge that it's OK to assassinate a tyrant in theory than to pull the trigger oneself. What is more morally acceptable, relatively speaking, Maoism or Stalinism? There's no way I could really answer that without talking to others about it, especially since I haven't lived in either type of state.
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