Theo: Hello, my good friend Philo. I came to call you to task on your reckless position on the laws that shape our society. I can scarcely believe that you would risk everything we value for the sake of dry and abstract ideas. Are there no principles you hold dearer than your precious philosophic theories? Would you truly risk the future of our children?
Philo: Always good to speak with you, to, Theo, my friend. I welcome the discussion about laws and society and happily proclaim that I believe as strongly as you in principles and protecting the future of our children and all children. Philosophy is not the end in itself, but it is a tool of understanding. We must use our minds to see truth so often hidden behind fear. You see, if we are to have a future that is better than the past, we must understand when society should shape the laws, not the other way around.
Theo: Surely, you don’t believe that the very morality that the law protects should be as relative and changing as the morals of the masses?
Philo: In fact, my friend, I do not believe that the Law should be about morality at all.
Theo: But how can you say that? The Law has always enforced morality. Why in our own Judeo-Christian heritage we have the history of the Ten Commandments leading to the Deuteronomy and Leviticus, on to Jesus himself telling us to keep the Commandments. Even those of other faiths have long traditions of divine laws from their scriptures. History shows that laws are how we keep a moral society. Where there is no law, there is no morality.
Philo: I grant you that throughout history, laws have been codified as commandments from a divine source. I concede readily that throughout history, morality has been part of the stated objectives of the Law. However, history is also rife with such monumental immorality in the name of the Law that the notion that the Law is effective in controlling morality is highly doubtable.
Theo: So, are you saying that because we have seen immorality that the Law is of no value? That we should abandon our belief in Good and Evil and surrender our governance to whatever feels good?
Philo: Not at all. I am saying that the historic attempt to enforce morality through laws does not result in greater morality. In fact, I am prepared to say that it is not possible to make people moral by means of law.
Theo: But even in your own secular view, isn’t it true that you believe that when the law forbids immoral behavior, there is less immoral behavior, and moral behavior is better for a strong and stable society?
Philo: There is a benefit to enforcing laws that limit behavior that is harmful to society, but I submit to you that such laws need not be based on any morality if they are based instead on the objective of limiting harm.
Theo: You must know that rampant immorality is harmful to society. How can these two be separate if they are the same?
Philo: They are separate in purpose. There is a reason some things are considered moral, and those reasons correspond to the reasons some behaviors should be curtailed, but that does not mean that all of the reasons for each are interchangeable.
Theo: Word games! If they are the same reasons, then of course they are interchangeable. A logician such as you must see this. If the behavior is wrong, it is wrong. Why quibble over descriptions that amount to nothing?
Philo: But such differences amount to very much. It is misleading that they overlap, and this brings false confidence it understanding what makes a law good and effective. As a result, bad law is accepted as having the same basis as good law and assumed to be good despite the ills it leads to.
Theo: And it is your claim that good and moral behavior is an ill? Or is it that you claim that we cannot tell a bad law from a good one?
Philo: The latter, dear friend, is the problem.
Theo: So all those who wish to have a moral society are not clever enough to spot a bad law, unlike you, who must be trusted to rule over us?
Philo: Dear Theo, I believe that you have a sound mind and are completely capable of making rational decisions. However, bad assumptions can lead to unsound reasoning even where the logic is valid. When we assume that morality is the purpose of law, it becomes a matter of logic that all law enforcing that morality is good law, and all of the ills that are associated with it must therefore be seen as lesser evils in the greater scheme than the law itself. How can a moral law be a bad law in such a system? If, however, we are not constrained to the assumption that the law is inherently good, we can see that an attempt at enforcing morality can result in far greater immorality.
Theo: And yet you assume much, yourself. You assume that Man is capable of seeing all and hence better at determining what laws are just than Providence, from whence our laws have come.
Philo: I do not claim to see all, but any who observe can see that even if we allow that Providence has written such laws, it falls to Man to interpret them and codify them into criminal and civil statutes, which Man has always tended to do with predictable human weaknesses. And yet, under the guise of divine inspiration, the law becomes a force for inhumanity in the name of divinity. There is no example where this is not so that I am aware of. Are you aware of such an example?
Theo: I do not concede that because we have historical examples of humans misusing power that this makes morality a bad choice for guiding governance. Clearly, there are immoral people and there always have been immoral people and the lust for power will corrupt any system that goes unchecked. But we’ve seen the injustice of immoral practices and learned from them. Good governance will always be a struggle and evil forces will always be against us. If we abandon out principles we will never stem the tide that threatens to wash away civilization with anarchy.
Philo: But that is why we must use the most effective ways to stem this tide you speak of. We will not stem the tide by adding water to the sea, as in your analogy. It is the pretext of morality that enables those who seek personal power and glory to corrupt the system. It does not end there. Once the corruption is entrenched, it becomes the de facto basis for morality in judging its effect. Anyone opposed to morality must be immoral, after all. If injustice results, the victims of that injustice must be to blame, for morality cannot be to blame for injustice, or so the reasoning goes.
Theo: But no thinking person believes this. History is full of people who rose up against such corruption, or left it to form better societies.
Philo: True, Theo, but all too often those who rose up were slaughtered, and those wielding the swords were not the corrupt leaders, but the common people who sought only to protect morality. Those who left often merely replaced one oppression with another just as brutal. Our own beloved country was founded, not in rebellion against a single oppressor, but in rebellion to the very notion that moral authority was a valid basis for governance.
Theo: I reject that notion outright, my poor mislead companion. Historians have shown that the Founders of our great Nation were God fearing men who held morality to be the highest motivator of men. The idea that they rejected their faith to form our Nation is simply preposterous!
Philo: I have not stated or implied that they rejected faith or morality. That, indeed, would be preposterous, for our founders could not have succeeded without both faith and morality.
Theo: And yet you claim that they rebelled against those very things!
Philo: Not at all. I said that they rebelled against the idea that faith and morality ordained what the law should be. They did not rebel against their Judeo-Christian values, they rebelled against the failed notion that governance of worldly affairs was above the highest of the values of their faith: Free Will. If a man, they reasoned, wished to spend eternity in Hell, that was his God Given right, but the law should protect others from being the victim of his actions. He should believe as he chooses, and even act as he chooses up to the point at which his actions harm others.
Theo: Can you cite this claim? I have no recollection of such claims in the writings I have seen.
Philo: I have summarized and paraphrased, to be sure. The writings of John Locke were often quoted by those in the cause, but I am more concerned with the ideas as they pertain today. I see that we are not likely to settle an argument on the intentions of the Founders. They were clearly not of one mind, nor were they perfect in their motivations, so we can trade quotes and not get closer to the truth. Instead, let us focus on here and now.
Theo: Although I have you on the run, I will indulge you. I doubt that even by ignoring history you will succeed in proving that immorality is better than morality in the law.
Philo: You are too kind. But you misunderstand. I have no intention of ignoring history. I believe history proves that my case has the greater merit. Further, I repeat that I have no intention of suggesting that law should or should not be moral or immoral. I suggest that morality is not properly dealt with as a legal matter, at all. The Law should instead primarily be about protection of the individual, and then about the progress of man.
Theo: And how do you arrive at such an opinion? Is your assumption about the supremacy of Free Will and protection of the individual not just a particular morality?
Philo: While I do believe that placing a high value on Free Will and protection of the individual is a moral stance, even a stance well supported by the Judeo-Christian Tradition, no, I do not suggest that it is the standard for moral reasons, but for practical reasons. It is a case of enlightened self-interest.
Theo: Enlightenned? By what? The musings of Man? What is that next to what is ordained by Providence?
Philo: I have already demonstrated that “what is ordained by providence” is problematic in the governance of Man. Self-Righteousness inevitably leads to injustice when given the power to do so.
Theo: And who is to say what is just, if not the source of all Goodness?
Philo: What is just in this world is a question of this world, and this is supported by your own tradition. There is no tradition for democratic rule in the Judeo-Christian heritage. It is historically brand new. But there are scriptures that indicate that being under a Ruler of another religion is not against God’s Will. The Rule of Law is such a ruler, one that is of this world and not specific to one faith.
Theo: Democracy was not unknown to them. The Greeks, who played such an important role in both the Jewish and Christian traditions, had known democracy. Hence the Greek root of the very word.
Philo: Which democracy was long suppressed by the Romans before that period. And yet, if you are correct, it is even more telling that democratic governance is excluded from scripture. But let us not digress. Man is not of one religious or moral tradition. We can respect tradition and not be enslaved to it. To govern man is to govern those who do not agree, and to do so fairly.
Theo: That is easy. The majority decides. If more people agree with you, we do what you say, and if more agree with me, we do what I say. We all play by the same rules, and all is good and fair.
Philo: Is it. So, everyone votes in this democracy? The children, the convicts, the young and old?
Theo: Of course not the Children.
Philo: Oh? Why “of course”?
Theo: Are you serious? Children lack the knowledge and wisdom to make responsible decisions.
Philo: Wouldn’t a person of forty years have more knowledge and wisdom than one of twenty years? Why allow them a vote?
Theo: We value democracy, so all of those who are of age should have a vote.
Philo: But how do you set the age? Don’t most moral traditions set that age at thirteen or fourteen years of age? Do we give them the vote?
Theo: We must use our wisdom and decide these things democratically.
Philo: So the majority rules when deciding how to select a majority?
Theo: Of course.
Philo: So, if people over forty outnumber people over eighteen but under forty, they could vote to change the voting age to forty.
Theo: but they wouldn’t.
Philo: but they could.
Theo: In this country we have a constitution to prevent such a thing. A constitution based on Judeo-Christian principles.
Philo: I am glad you mentioned the former, but I do not concede the latter. We have a level of law that is above simple majority rule. In this case, our country has a Constitution that can prevent even a majority from enacting laws, even if it is the will of the majority.
Theo: It simply specifies a larger majority for some things, such as changing the age of voting. It was arrived at by a similar super majority.
Philo: Why a supermajority? Why not a simple majority?
Theo: As I have said, even the majority can make mistakes from time to time, and when we learn from them, we must make it harder to make them again.
Philo: But were these majorities that made the mistakes immoral people?
Theo: By and large, they were moral people. In hindsight, we see that even moral people can be caught up in a system of immorality. It takes courage and resolve, but we can right these wrongs. My God man, surely you see this! Why feign ignorance?
Philo: I am testing the extent to which we agree. I am happy to say that we agree much. As a people, we will do things that we only see as unjust in hindsight. I think that we agree that this is part of our humanity, to always have a history of, for lack of a better word, inhumanity. But I think we can learn more than just which decisions were poor ones, we can learn which decisions were made poorly. That is to say, which decisions we could have made better had we recognized the pitfalls of our decision-making criteria.
Theo: So, you would supplant moral decision making for a superior morality of your own construction? Do you follow Karl Marx or Ayn Rand?
Philo: Neither. Both of them failed for the same reason. They sought to usurp the role of morality in the people, and to create an alternate morality. Hence, their solutions have the same pitfalls. They sought to change human nature by changing the moral underpinnings of society. They saw morality for the force it was, and like so many before them, sought to control it for their own ends. Each imagined controlling the outcome of humanity at whatever cost to humanity, to affect a superior morality, one which flattered the people who would need to carry out the change.
Theo: So you say, but replacing one morality with another in the governance of man would have the same effect, would it not?
Philo: If that were what I were suggesting, but it is not. As I have said, it is not morality that we should govern, it is ethics.
Theo: What is ethics, other than morality under a different guise?
Philo: They are as different as cause and effect. Morality is what you intend and how you behave in terms of the concepts of right and wrong. Ethics is how you determine correct actions based on their effects. The distinctions in practice may seem obscure, such that people describe alternate moralities as ethics or describe ethics in morality terms, but essentially we can summarize that morality is based on an external or abstract authority and ethics is rooted in the practical results.
Theo: So, despite millennia of moral development and divine guidance, you would place the myopia of man’s predictive ability over faith in something greater?
Philo: On the contrary, there is much to be learned and admired about the development of morality and governance over the millennia. One lesson you know well is that power corrupts, and absolute power corrupts absolutely. A supreme creator may be incorruptible, but those who claim the authority of such a creator certainly are not. The lesson we’ve learned is that the only way to protect ourselves from corruption is to limit the worldly power of those who claim such authority.
Theo: I see your folly. Because moral authority has been abused in the past, you would abolish moral authority itself. You would not only throw the baby out with the bath water, but the mother as well!
Philo: Not at all. In fact, I would seek to enhance moral authority by helping to limit corrupting influences from usurping the morality itself.
Theo: There are no corrupting influences in ethical systems? Without moral authority what is to prevent us from adopting unjust ethics?
Philo: As you suggested, dear Theo, we will make mistakes, and we will learn from them and do what we must to make it harder to make them again. The difference is that we recognize the nature of the forces surrounding the mistakes, and address them, as well.
Theo: You would harness the forces of Evil without invoking Good? This should be interesting, please continue. I could use a laugh.
Philo: You don’t set out to control the evil in men’s hearts through governance; you set out to remove those avenues to power that enable them to do evil. Let those who seek to change their hearts do so, but the law has no power in that regard.
Theo: So you come back to it. We outlaw the evil men do. We force them to be good.
Philo: You believe you can force someone to be good?
Theo: We can enforce that they behave such.
Philo: So we agree that the limit of the power of the Law is that it may only enforce behavior, not make people more or less moral.
Theo: We do. I believe our disagreement persists in whether the goal of governance is to make society itself more moral. Although we cannot enact a law to change hearts, we can define what is and is not acceptable in society, which is, in effect, establishing the morality of society, wherein the law is the conscience of the populace.
Philo: You argue your case well, my friend. But the fact remains that even if creating a moral society is our goal, we must do so effectively. We must use the power of law to enforce behavior that does evil in society, but I submit that how we do so and to what extent it is possible to limit the effects of evil is the key question, and I suggest that it is not by comparing law directly to moral precepts, but by invoking and ethical system proven by the millennia to be lasting, stabilizing, and above all, less inclined to enable evil than trying to enforce morality.
Theo: You speak in circles. You would have me believe that the best way for the law to impede evil is for the law not to even try? You think that if we ignore evil, it will just go away?
Philo: You twist the words to form your own circles, Theo. I submit that any law aimed at the evil in men’s hearts will fail, and that failure will have collateral damage that renders such a law an evil unto itself. However, laws which target harm an individual or an organization does to others can succeed at impeding the evil in men’s hearts from the harm it would cause.
Theo: But such a law does not affect the cause, so it cannot lead to a more moral society.
Philo: Yet we have already agreed that the law cannot control the evil in men’s hearts, and the law cannot make a person moral. However, if the incentive to do harm can be lessened, the temptation may not be as strong.
Theo: May not be? You do not know temptation.
Philo: For those who are tempted by greed, less potential reward is less temptation. For those who are tempted by power, less power is less tempting. This I do know about temptation. We cannot effectively outlaw greed itself, but we can outlaw theft and fraud, which are ways greed does harm. We cannot effectively outlaw the inclination to do harm, we can only outlaw the action itself.
Theo: But why limit harm to others? Isn’t it just as important to limit the harm one does to oneself? After all, none of us is alone, and when one is harmed, it affects others, as well, and hence others may be harmed by what we do to ourselves.
Philo: You are clever and intelligent, my friend. However, I would caution greatly against this line of reasoning as it pertains to law, and this is why: The affect we have on others can be emotional, or more direct. One may feel that the distress a mother feels over the behavior of her adult child is a harm done to her, or one may feel that the loss of a provider’s ability to provide is a financial burden on the dependants, or what they do to themselves does direct harm, such as when a drunk driver crashes into someone. Each of these can be argued to involve harm to others to some degree, but the kind of harm and the degree of harm is important.
Theo: Surely you are not about to tell me that when a man’s drinking causes him to lose his job, that the harm done to his family is not devastating, or that medical bills caused by a life of debauchery are not a burden to others left to pay them?
Philo: I would not tell you something that neither of us believes to be true. What we do, of course, has a tremendous impact on those who are close to us, and the emotional and financial toll can be very great. However, again, there is a proven poor way to address these issues and a way that has fewer negative side effects.
Theo: And you would have me believe that the poor way is to have them avoid doing this harm?
Philo: No, the poor way is to attempt to use the law to prevent them from doing this harm.
Theo: But you have just told me that the entire purpose of law is to protect individuals from harm done to them by others?
Philo: But in this case, the harm is not done to them. The nature of human relationships is such that we are all in harm’s way as a result of the relationships. For example, if a provider in a family is simply unlucky in business, or simply gets a devastating disease, the effect on the family is no less real. The pain and suffering is part of the family relationship. Society must be very cautious about interfering with family relationships, as I think you will agree.
Theo: I do not take interference into family lightly, yet there are family situations that we should not hesitate to address, and on the whole I think we have a solid idea of what makes for a good family environment.
Philo: Do we indeed? I think we will need to get back to that. I want to continue on my point about the kind of harm done and the poor way to deal with it. As I was saying, while the harm we experience second-hand from the actions of immoral activity, such as distress or loss of trust, is not trivial, it is different from harm such as being beaten, or molested, for example. If we allow for environmental issue such as a lack of love or respect at home to be considered harm done in a legal sense, then a case could be made for extreme religious views, or extreme social views to also qualify as harm, since they may have an equally negative impact, and further, what constitutes a definition of harmful in this context is extremely subjective. One person’s stoicism is another’s psychological abuse.
Theo: Yes, yes, you have no argument from me that a meddlesome nanny government does more harm than good when it tries to micro-manage parenting, but this slippery-slope attack on traditional family values is the opposite of what I mean. We know what makes a good family, and we have to focus on protecting that. We have millennia of examples of the strength of a sound traditional family structure.
Philo: I beg to differ, but we digress. I hope we will return to your views on family momentarily, but I have not finished my point about the poor way to deal with these issues, whether or not we agree on what the desired result is. I think it may shed some light, as well on this family issue. The poor way to attempt to protect people from the harm done by individuals is to try to prohibit behavior that is deemed immoral rather than to punish actual harm. That statement is a bit vague, so let me narrow it by example: Drinking alcohol can result in both direct harm, such as crashing a car, or getting in fights, but the poor way to contain this harm is to prohibit the possession or consumption of the alcohol rather than the irresponsible behavior associated with it. After all, most people do not engage in such behavior. Moreover, prohibiting what so many find both harmless and enjoyable simply leads to folks ignoring the prohibition and the very authority of such laws. As a result, a black market emerges. A black market is generally more harmful than the effect the prohibition was intended to address. The more effective law enforcement is at curtailing supply, the more it skews the demand side and up goes the profit margin for those ruthless enough to remain in the business. We have seen this in effect, with alcohol in the 1930s and with other drugs since.
Theo: So you would have us coddle criminals who openly disdain the rule of law and reward them by making their criminal enterprises legal?
Philo: Remember where it all starts. If the purpose of the prohibition is to limit harm, the remedy should not do more harm, and humans will exhibit human nature despite the laws.
Theo: But these drug lords can scarcely be called human!
Philo: Again, to the extent that they are not human, they are creatures of our own creation. Humans form trade networks and markets, and humans seek pleasure. Any solution to a problem that denies this is destined to fail. It is not that the law is bad of intent; it is that the effect of the law is far worse than what the law seeks to curtail. Even if you do not recognize an inherent right for humans to have a human nature, you must recognize its existence if you are to deal with the consequences.
Theo: So, we must allow humans to follow their nature, even if it is to lie, cheat, steal, rape and kill? After all, if we try to prohibit them from doing whatever they want we are denying them their nature, in this oddly structured world you have constructed!
Philo: All of those offenses are harms directly done to others. It is just and right to prohibit such things, but we would not punish all who speak because some may lie, or fail all students on a test because some have cheated. Those who do harm should face consequences.
Theo: But Philo, you switch between what is just and what is effective to suit your own whim. You deny that morality defines justice and then claim to speak for what is just and right as though you are the keeper of justice.
Philo: I am not opposed to morality, nor do I deny that morality has a place in understanding justice, since I would submit to you that morality is an inherent part of our ability to reason. Reason itself cannot justify morality, as we discussed in the cases of Marx and Rand, but moral judgments must leverage reason the way mathematical proofs involve both axioms and formulations. Therefore, when it comes to Justice, reason does reveal that some moral precepts take precedence.
Theo: Now we get to it! You do indeed believe you can reason out a Superior Morality
Philo: As I said, it is impossible to justify morality through reason alone, since Morality is axiomatic in nature. However, reason can be used to deduce which moral axioms are most significant, as well as which ones may lead to contradiction. Let me illustrate. The idea that Fairness is better than unfairness cannot be proven. It can only be taken as an axiom. It so happens that a value of fairness is an easier moral concept to work with than a value of unfairness, but “truth” is not determined by what is easy.
Theo: On that point, we agree. Truth is seldom what is easy. But you have yet to convince me of your Superior Morality.
Philo: One morality, degrees of weight that makes one aspect or another of that morality superior only in effect. Morality, after all, is not a straight line, but a multi-layered thing. For example, it may be immoral to kill, but less immoral if the killing is in self defense, and even moral if it is in defense of an innocent. The weight of the moral value of protecting the innocent may overwhelm, but not eliminate the immorality of killing to do so, and finding a way to protect the innocent without killing may be even more moral by virtue of morality and reason.
Theo: Of course morality is a rich and wondrous thing with mystery and subtlety to challenge the greatest theologians and philosophers, but you hit the nail on the head, and that is moral values. We have values that are not subject to the sophistry of your clever arguments. Some things are just wrong and the more wrongs we allow, the worse the world is for all of us.
Philo: But when you say “allow”, you continue to confuse what we try to do and what we succeed at doing to curtail such activity.
Theo: If we try, we may succeed, but if we do not try, we will surely not succeed.
Philo: How we try is as important as If we try, and I also submit that there are cases where failure is worse than a mere lack of success, and even cases in which doing nothing succeeds better than doing anything.
Theo: I cannot stand by and do nothing as society fall around me.
Philo: I do not suggest we do nothing, but you must admit that the old saying “first, do no harm” is a wise one.
Theo: You would do well to remember that as you seek to uproot the foundations of our way of life with experiments in social engineering.
Philo: The roots are deep and strong, and I only seek to prune away those that bind and stifle the very tree they are supposed to nourish. In fact, I submit to you that it is better to nourish society to strengthen it rather than work over hard to control the manner of its growth.
– to be continued –