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Ideology and the Rule of Law

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DonAthos
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"Isn't it a bitch that when we invoke the 'rule of law' we're often protecting codified law at the expense of moral law?"

This quote, taken from another forum member in a recent forum conversation regarding violent incidents with the police, has been sticking in my mind. Then this morning, reading an article about conflicts between Colorado (which has legalized marijuana) and surrounding states (which have not), I came upon this quote from a sheriff, upset with the additional burden Colorado's legalization has placed upon him:

"I'm very frustrated. I take an oath of office, as does every other police officer in this country. I don't just get to pick and choose which laws I enforce."

These quotes strike me funny and have provoked me to try to understand this better. Sometimes Objectivists appear to take a stance on certain issues in support of "the rule of law," where I find myself on the other side. I'd like to try to get at the underlying source of my disagreement, if possible.

Where "moral law" and the law as written come into apparent conflict, which side do we take up? Do we support this sheriff's rationale, that he doesn't get to "pick and choose" which laws he enforces? Do we denigrate the moral status of those who resist unjust law, otherwise "victims," to "those who should have known better" or even "those who had it coming," because they stood in violation of the law, and say that they should have instead submitted/complied?

That seems to me to be a rough summary of what I'd describe as the "law and order" position -- we support those acting to enforce the law over those breaking the law, even when those laws are themselves unjust, because we see law in the abstract as a necessary, important thing -- yet truth be told, I'm not on this sheriff's side. I'm not in favor of his working to bust people for marijuana. I want him to pick and choose -- to enforce those laws which are just but not enforce those which are not, his oath be damned. I don't want him to hurt innocents.

I imagine that we all agree that the best way to address the problem of the enforcement of unjust law is to make the law just (i.e., reform/abolish drug laws). But what about in the meantime? For I don't know when the law will completely reflect a rational political philosophy, but I'm not holding my breath.

Do we want the police to ruthlessly uphold the law, knowing that in so doing, they will be hurting innocents? Does that make the police complicit in wrongdoing? Does it make us complicit?

Or do we want the police to make individual decisions which sometimes run contrary to the law, in the name of justice, despite the fact that this advocacy may strike a blow to "law and order"?

Or maybe I'm misframing this issue. Or maybe there's not really an "issue" here at all. But there is something I find common to several of these kinds of discussions, and I can't quite identify what it is. Any help in clarifying my thinking here will be appreciated.

***

Edited to add: In thinking more and more about this topic, I was reminded of a thread that also hit squarely on the subject. I'd rather pursue discussion in this new thread rather than raise an old one, but my posts in that thread might provide some helpful information as to my earlier thinking on this same topic.

Edited by DonAthos
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I alluded to the following in another thread. I think police should ignore immoral laws. But it gets difficult when we want laws enforced that aren't on the books - like racketeering charges and applying the felony murder rule to the cops in the Eric Garner case. Or to take a less controversial issue, the theft of drugs from a drug user. Do you prosecute a guy for stealing something nobody had a *legal* right to, and then ignore the laws prohibiting possession? It seems less justifiable to me.

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I alluded to the following in another thread. I think police should ignore immoral laws. But it gets difficult when we want laws enforced that aren't on the books - like racketeering charges and applying the felony murder rule to the cops in the Eric Garner case. Or to take a less controversial issue, the theft of drugs from a drug user. Do you prosecute a guy for stealing something nobody had a *legal* right to, and then ignore the laws prohibiting possession? It seems less justifiable to me.

Leaving the Garner case to the thread in which we've discussed it, let's look at the issue of drug theft.

It's not something I've given a great deal of thought to, honestly, so I don't yet know precisely what I believe on the subject, or the possible justifications/counter-arguments. But here's my initial reaction:

We should absolutely prosecute a man for stealing drugs. The man who's being stolen from -- is he not going to seek justice? And if, by law, he cannot get justice in our courthouses, well, what's his recourse for defending himself? (Or do we suppose that he won't try? Or that he shouldn't?)

To say that we won't prosecute drug theft is to invite (or even demand) an escalation of street violence, both between drug users/pushers and the police and citizens, when the police inevitably are forced to try to intervene. This makes things so much worse for everybody.

So yes, I'd say that we should ignore laws prohibiting drug possession in those cases, and even guarantee to people pressing charges that they will not be charged for possession/distribution or have their drugs confiscated.

But what are your thoughts?

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Somewhere in the 1976 lectures Dr. Peikoff answers a question along these lines. Essentially the answer was "if your going to ignore a immoral law be prepared to face the consequences", without condemning the notion of doing so as immoral. Though, in another place he says something like "in a civilized society one does not get to pick and choose which laws to obey".

For me the question is, "can a person be moral and choose a job which requires one to violate their principles or disobey the job contracted for?"

It seems to be a "pragmatic" vs principle ?" question. How one answers this and avoids a theory-practice split is a difficult question.

Edited by Plasmatic
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Obviously those who want the immoral laws are wrong: the primary source of the problem. Since we live in a democracy, presumably these people are the majority of voters. So, the context here is that there is a law that we (the individual actor) considers immoral, but the majority consider to be just fine.

 

Should we support it in some way? What is the nature of this support? if we're talking about moral support of the type that is inside our [the actor's] head, presumably the actor does not support the law in his own head. So, that's covered If we're talking of what the actor wishes would happen, again he wishes only moral things would happen. If we're talking about expressing our opinion and peacefully demonstrating against an immoral law, I sssume most people will say that is good.

 

But what other support are we speaking of? [To people whom are not in law-enforcement, in what ways does the actor "support" the law that he considers evil?]

 

If he follows the law out of fear, we cannot call that "support". If he really wants to break it, and correctly evaluates that he is at zero risk by breaking it, then why would he not break it? Usually, the risk is not zero, but small. I would not fault a person from staying away from a small risk: not as a general principle. Instead, I would tell them to evaluate the nature and scale of the risk and the reward. So, there are situations where I might tell a slave he should attempt to escape, and others where I would advise against it.

 

If some other person is breaking the law, the situation is similar. I doubt anyone on this forum would say that it was immoral to help and escaping slave if there was minimal risk and penalty in doing so.

 

We might want the police to make decisions that run contrary to the immoral law, but how is that different -- in actual practice -- from wanting to have only moral laws? After all, it boils down to saying we want the police to make decisions based on our judgement of what is right, not the judgement of the majority. Well, how is that to be implemented in the real world?

Edited by softwareNerd
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How much do others see this as relevant to the contrast between legislating ones morality and keeping morality separate from government? As I see it a constitution is a moral document.

Do others see a difficulty in reconciling the desire to support the enforcement of a constitution and a desire to promote a government that allows individuals to pursue their own moral conscience-values

Incidentally this is related to what Ms. Rand called the "noble criminal"... Or was it crook?

Edited by Plasmatic
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I would say that the police are only justified in acting in order to enforce laws that are consistent with both the non-aggression principle and the Constitution. Any law that is inconsistent with either of these is unjust, and can be shown to be such by a clear objective standard. So any attempt by a police officer to enforce it is indistinguishable from the actions of a criminal.

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Somewhere in the 1976 lectures Dr. Peikoff answers a question along these lines. Essentially the answer was "if your going to ignore a immoral law be prepared to face the consequences", without condemning the notion of doing so as immoral.

But this could be said about almost anything, couldn't it? "Take what you want and pay for it."

 

Though, in another place he says something like "in a civilized society one does not get to pick and choose which laws to obey".

This is a much more strident position, and I think it strikes at the heart of what I'm struggling to understand. So I ask myself -- is it a sensible position?

Perhaps if a "civilized society" is delimited to a society in which all of the laws are on the right side of justice...

But if it means that a man must feel morally impelled to act contrary to his own best interest (i.e. immorally) in the name of following the law, then I think there's much more to discuss. Or if it means that an individual may act morally contra the law, but a "civilized society" must punish him anyways, then I again think there's a bit to sort out. Neither seems right at first blush.

 

For me the question is, "can a person be moral and choose a job which requires one to violate their principles or disobey the job contracted for?"

That's a good question. I think, at least, that it depends on the range of reasonable choices a person has. I know that I've walked away from a couple of jobs before because I felt that the requirements of the job were in conflict with my principles. But I had the option to do so with relative safety. I was never on the verge of starvation, for instance, and I wouldn't have blamed someone for staying in the position(s) I'd left if he was starving or facing immediate ruin.

Practically, in the modern US, how many people are trapped in one particular job -- or else they'll literally starve (or face similar disaster)? Probably not many. I'd expect that most people who work a job that requires them to violate their principles consider themselves to be making a compromise (perhaps temporary) for better pay, greater convenience, long-term prospects, etc. I can only speak from my perspective, and make choices only for myself, but I'd expect that kind of compromise to go hard for them, and not work out in the end. My experience is that when I've allowed myself to make some moral compromise, it has a sort of deadening effect to my internal experience of life which affects my core character, and is not worth the exchange.

 

Obviously those who want the immoral laws are wrong: the primary source of the problem.

Agreed.

I do not know, however, whether identifying the "primary source" completely answers the all of the questions I'm struggling to answer. Those who want the immoral laws are wrong, yes. Are those who enforce the immoral laws also wrong?

 

Since we live in a democracy, presumably these people are the majority of voters. So, the context here is that there is a law that we (the individual actor) considers immoral, but the majority consider to be just fine.

Agreed, to an extent. We live in a democracy, yes, but one with a plethora of other features (republican, constitutional, etc.) and with an overhanging spiderweb of byzantine regulatory agencies and bureaucracy... all of which I know you're well acquainted with. But I mention this greater complexity because I do not know whether the democratic nature of the country necessarily means that a majority of voters always supports some given law or regulation (let alone in some specified region). But okay, for the purpose of this conversation, let's say this is generally so.

 

Should we support it in some way? What is the nature of this support? if we're talking about moral support of the type that is inside our [the actor's] head, presumably the actor does not support the law in his own head.

Hmm. I think that I'm trying to get at a type of support that, yes, exists "in the head" (and elsewhere), but does not have to be the straightforward case of "I support X law on its merits."

Suppose X law, which both you and I consider to be an immoral law. Suppose you were disposed to violate X, judging that to be in your own interest. I could have a perspective on that which holds you right to do so (circumstances depending, such as your likelihood of getting caught), or I could hold you as wrong to do so, because "X is the law" and "the law must be obeyed." It is even conceivable that I could convince you to follow the law on such a basis, acting contrary to your own best interest. (Though presumably my argument would run something like "it is in your best interest to obey the law, because a civilized society needs laws, and a moral citizen does not thereafter 'pick and choose' which laws to obey. To do otherwise undermines the 'rule of law.'")

Would either you or I be supporting the law "in our own heads"? Not to the extent that we now believe X to be a moral law, no. We could still want the law to be changed/repealed, and argue and act to achieve that in other capacities. But we could argue for ourselves and others that X must be obeyed regardless of its morality, in the meantime, because it is the law, and a civilized society needs law, and so forth. And I would argue that this is a type of support.

And I question, at least in part, whether such an argument is itself moral. Are we moral for arguing that the law should be obeyed, even in those cases where the law itself is immoral?

 

If he follows the law out of fear, we cannot call that "support". If he really wants to break it, and correctly evaluates that he is at zero risk by breaking it, then why would he not break it? Usually, the risk is not zero, but small. I would not fault a person from staying away from a small risk: not as a general principle. Instead, I would tell them to evaluate the nature and scale of the risk and the reward. So, there are situations where I might tell a slave he should attempt to escape, and others where I would advise against it.

Agreed.

I'm also willing to appreciate different risk tolerance, individual to individual, and no, I wouldn't necessarily make a moral judgement of a person who didn't want to break the law for fear of his own safety, even if I judged his own risk calculations to be wildly off, or to be weighted differently than I would do.

But there is also the case of someone who follows the law because he believes it is right to follow the law, which I think strikes closer to the mark of my OP, and that is the position I'd like to submit to moral scrutiny.

 

I doubt anyone on this forum would say that it was immoral to help and escaping slave if there was minimal risk and penalty in doing so.

I honestly don't know what others on this forum would or wouldn't say -- it's a large forum filled with many interesting characters of diverse background and belief. I suspect that you're right that we'd get much more general agreement phrasing things in this particular way -- "an escaping slave," minimal risk and penalty, and whatnot -- but if we were to abstract and question the underlying principles, or entertain other applications of those principles (perhaps some of which speak to experiences people have in their ongoing lives, assuming that assisting escaping slaves is not too common nowadays), I wouldn't guess what kinds of answers might come back.

I will say that Plasmatic's paraphrase of Peikoff ("in a civilized society one does not get to pick and choose which laws to obey") comes near to the very position I believe I'm questioning. Also there are the quotes I'd initially provided, one from a member of this board who apparently does see occasional conflict between "codified law" and "moral law," and sometimes argues to protect the former over the latter. That's a statement, not of following the law because one is afraid to break it in a given circumstance, but to support the "rule of law" because it is important to support the rule of law. And elsewhere, in the thread I'd linked to in my OP, a forum member said (in parallel to the sheriff I'd quoted) "cops can't pick and choose which laws to enforce." So I don't take it for granted that there is unanimity on this board on these kinds of questions.

 

We might want the police to make decisions that run contrary to the immoral law, but how is that different -- in actual practice -- from wanting to have only moral laws?

It is different if we advocate that police strive to uphold the law in its entirety, because the rule of law is important, versus advocating that they only uphold that which is moral to the extent possible in their specific, individual circumstances.

When an officer is in a position where he could "look the other way" with minimal risk to himself, rather than bust someone for some immoral law, his belief as to whether or not he has a duty to uphold the law in such a case (because "cops can't pick and choose") may make the difference in his ultimate decision. It may make a difference when he talks with other police, or when he participates in a union, or when he votes. It may even make a difference when people are initially choosing their career paths, depending on the extent to which they expect they will have to compromise their principles to fulfill their "duty," and how they regard such a compromise.

Edited by DonAthos
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I assume the quote you're referring to is the cop? I purposely stayed away from the example of a law-enforcement person, because I think that's a special case that should be tackled only after one has a view on how an ordinary citizen should act.

 

I purposely used the "escaped slave example" to explore as stark an example as possible. If a person thinks a law is immoral, I can see him following it for the following reasons:

- it is so petty an issue that it does not matter too much one way or the other, and it is easier to follow it than to analyse it [so, we need an example where some serious value is involved]

- it is risky to disobey [the dis-value or harm weighs against the value from disobeying]

 

Based on your answer I have one more possible line of reasoning: even though there is no personal risk, disobeying may encourage other people to disobey other laws. I've seen some people argue that line here.  for example someone said that encouraging illegal immigration encourages people to break any other law they choose. I think this is false -- if the police turn a blind eye to pot smoking, I doubt there will be more of some unrelated crime... say, check-cashing fraud. 

 

if the value at stake matters and the risk is zero and no body else will take this as license to break some other law, I cannot see how one can argue that an immoral law should be obeyed. [Again, I mean this of an ordinary citizen, not a judge etc.]

Edited by softwareNerd
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I was thinking about an example from the opposite side of the spectrum: where the values at risk are minor and where even the immorality of the law is more debatable. I think an example is: the 21 year drinking age in some states. If a parent is fine with their 19 year old drinking, would they tell them not to drink because it is the law, or because they might get caught?

I doubt anyone here will step up to say that the kid should not drink merely because it is the law. I don't think I've come across anyone who has actually made that type of argument where I think they're honestly making it (as opposed to using it as a tool for their argument, when they actually support the law). [Again, I'm not speaking of cops etc.]

Edited by softwareNerd
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So yes, I'd say that we should ignore laws prohibiting drug possession in those cases, and even guarantee to people pressing charges that they will not be charged for possession/distribution or have their drugs confiscated.

But what are your thoughts?

Black markets are cracks in civilization that propagate barbarism and violent aggression. Legitimize the markets and bleed out the barbarism. In the mean time, I like your suggestion. But this seems too easy; I don't think it was a satisfactory example of my idea, but maybe the examples don't need to be hard.

After thinking on it a bit, I've come to the conclusion that we're all morally justified in ignoring immoral laws, and there should be an explicitly recognized plea of innocent because the law is immoral. Cops should have a similar defense when and if they decide to defy orders. Taking such a plea should be taken as an admission of committing the act in question to dispense with courtroom procedural shenanigans. Jury nullification amounts to this in fact, but courtrooms often prohibit discussion of it. They should be required to discuss it in every case. On the other hand, we can't convict people in the courts of moral crimes that are not legally prohibited. But that doesn't mean we lack recourse; ostracism comes to mind.

Edited by FeatherFall
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If a person thinks a law is immoral, I can see him following it for the following reasons:

- it is so petty an issue that it does not matter too much one way or the other, and it is easier to follow it than to analyse it [so, we need an example where some serious value is involved]

- it is risky to disobey [the dis-value or harm weighs against the value from disobeying]

Agreed.

 

Based on your answer I have one more possible line of reasoning: even though there is no personal risk, disobeying may encourage other people to disobey other laws. I've seen some people argue that line here.  for example someone said that encouraging illegal immigration encourages people to break any other law they choose. I think this is false -- if the police turn a blind eye to pot smoking, I doubt there will be more of some unrelated crime... say, check-cashing fraud.

Yeah, that doesn't seem a sound argument to me at all. Or even if it incidentally happened that someone else took the wrong lesson from observing a moral act of disobedience, I'd assign responsibility for that to the individual actor.

 

if the value at stake matters and the risk is zero and no body else will take this as license to break some other law, I cannot see how one can argue that an immoral law should be obeyed. [Again, I mean this of an ordinary citizen, not a judge etc.]

I don't think I require the risk to be "zero." I mean, that's never my personal standard for action. How could it be? When I drive to the market, the risk is not "zero" that a car will slam into me along the way. When I eat food, the risk is not "zero" that I'll choke.

And as stated above, I also cannot require that "nobody else will take this as license." I can't speak to how others think, and I don't think I can morally stop myself from acting in my own best interest because someone somewhere might misunderstand. (If there is some specific risk of an individual or group of individuals misinterpreting my actions, I'd agree that this is a sensible factor, which could then be addressed or perhaps outweighed. If my child observed me purposely breaking the law, for instance, I would trouble myself to explain why to her.)

With those caveats understood, we fundamentally agree.

 

I was thinking about an example from the opposite side of the spectrum: where the values at risk are minor and where even the immorality of the law is more debatable. I think an example is: the 21 year drinking age in some states. If a parent is fine with their 19 year old drinking, would they tell them not to drink because it is the law, or because they might get caught?

It's hard for me to approach this example fairly; I have some strong personal feelings about drinking. Despite this, I don't think in any case that I'd tell my 19 year old child "don't drink; it's illegal" or "don't drink; you might get caught." More like, "if you must drink, do it safely." Getting caught would be of far lesser concern for me (and, apart from that risk, the legality would not matter to me at all), though yes, I'd hope that my child would act in such a way as to minimize her chances of getting caught.

 

[Again, I'm not speaking of cops etc.]

If we have sufficient agreement about how a citizen should act with respect to the law (and I think we do), are you prepared to explain why you view the police as a "special case," and what that means?

(I'll tell you that I'm leery going in. I'm initially mistrustful of any argument which I expect will essentially conclude, "A person may not morally initiate the use of force, EXCEPT...")

 

After thinking on it a bit, I've come to the conclusion that we're all morally justified in ignoring immoral laws, and there should be an explicitly recognized plea of innocent because the law is immoral. Cops should have a similar defense when and if they decide to defy orders. Taking such a plea should be taken as an admission of committing the act in question to dispense with courtroom procedural shenanigans. Jury nullification amounts to this in fact, but courtrooms often prohibit discussion of it. They should be required to discuss it in every case. On the other hand, we can't convict people in the courts of moral crimes that are not legally prohibited. But that doesn't mean we lack recourse; ostracism comes to mind.

Agreed on all counts.

Edited by DonAthos
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If we have sufficient agreement about how a citizen should act with respect to the law (and I think we do), are you prepared to explain why you view the police as a "special case," and what that means?

They are being paid specifically to uphold the law and they have sworn to do so. So, they aren't a special case, but they have this extra context that other people do not have.

In our current political context, we have quite a few immoral laws. A cop or a judge can be a bit soft on certain types of crimes, but most of the time they cannot blatantly disregard the law and hope to keep their jobs. A prison guard who starts helping selected prisoners to escape would soon be found out and be behind bars himself. Passing over a few syllogisms we will quickly reach the point of saying: good people should never work in law enforcement

Edited by softwareNerd
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They are being paid specifically to uphold the law and they have sworn to do so. So, they aren't a special case, but they have this extra context that other people do not have.

I agree with you that this is the context.

But is it immoral to enforce immoral law? If the initiation of the use of force is immoral (and if we're agreed that arresting a man for drug use, for instance, is an example of the initiation of the use of force; I'm sure others exist who would argue that point, and if you'd like to do so, we conceivably could), then is that moral character changed due to being paid for the deed, or for having previously sworn to do so? Or is it yet an immoral action, using physical force against an innocent?

 

In our current political context, we have quite a few immoral laws.

Absolutely.

 

A cop or a judge can be a bit soft on certain types of crimes, but most of the time they cannot blatantly disregard the law and hope to keep their jobs.

I agree.

 

Passing over a few syllogisms we will quickly reach the point of saying: good people should never work in law enforcement.

Presumably you would find such a conclusion untenable? (And by your use of "syllogism," I expect you might consider it to be something like "rationalism"?) It might be for me as well, but I don't know where the actual fault would lie in such an event. Objectivism is sometimes touted as a "radical" philosophy; I shouldn't wonder if some of the logical applications turn out to be initially unexpected.

But let's start here. I am sure that in a certain kind of society, a society with a foundation of good law reflecting a proper philosophy of law, good people absolutely would and should work in law enforcement. But we can agree that we do not yet have that kind of society. As you have observed, we have many immoral laws, and currently becoming a police officer entails swearing oneself to upholding those laws -- via the use (initiation) of physical force against innocents. As far as I can see it, this means promising to commit many immoral acts; to personally carry out the destruction of innocent lives. Or does that sound melodramatic?

When I think about morality, and assessments of the same, I usually try to keep things "grounded" by applying them to myself and my circumstances. When I think about the prospect of personally working as a police officer, and the things I know I would be expected to do (even in initially being asked to swear an oath to uphold law that I do not believe in, and that I consider immoral), I balk. If "morality ends where a gun begins," I cannot conceive of myself as being the actual agent to hold that gun, and point it against someone who has committed no earthly crime. To be willing to kill a person who does not deserve to die. I do not believe that I could convince myself that I was yet the "good guy," despite doing those sorts of things, in the name of whatever reservations I might have inside. (And moreover, given those reservations, I doubt that I could ever be a "good" cop; doubting my own righteousness sounds like the very kind of thing that could get a person killed.) I cannot imagine remaining an honest man, embarking upon such a career. I would have too much to hide from myself.

I am also sure that there are good people who do work in law enforcement. Or people who start off that way, at the very least. I'm sure that there are people drawn to the profession thinking of the good that police certainly do, and what "law and order" ideally represent, when at the behest of moral law and rational philosophy. But, at the risk of again being melodramatic, I wonder what the actual requirements and experience of the occupation wreak on their soul, and what compromises, internal and external, they have to make as a result.

If I stop myself just short of saying whether I yet agree that "good people should never work in law enforcement," I'll say this: I would not do it, given our present context. I would not recommend it to those I care about. I do not expect those who choose to do it to prosper, all things considered. I expect that the more an individual understands about morality, and the requirements of the profession, and the make-up of our current society -- the more, in short, that they know -- the less likely they are to pursue such a profession. Maybe there's an extant example to gainsay me? I'm far from an expert, and it's been so long now since I've read her works for myself, but I cannot imagine one of Ayn Rand's heroes -- not one who is fully awakened to his own sense of morality -- being willing to do once what our police officers do as a matter of daily routine.

But what are your thoughts? If I've made some rationalistic mistake -- or a mistake of any kind, really -- I'd surely like to have it identified, and come to understand it for myself.

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DonAthos

When reading your post I heard Col Jessup in the back of my mind , "You want me on that wall, you need me on that wall". Granted the context was a defense of the warrior 'class' and its function of protecting citizens of a nation from enemies of the nation and not domestic law enforcement, but I think it may speak to what could be meant by 'our present context'. The thin blue line , the policemen 'class' , the idea of an ongoing perpetual war of us vs them and the police as only guardians of civility and that 'they' should be granted certain leeway.

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(And by your use of "syllogism," I expect you might consider it to be something like "rationalism"?)

No, I simply meant that I was skipping over the intermediate arguments. I did not mean to imply that this was rationalistic.

 

As far as I can see it, this means promising to commit many immoral acts; to personally carry out the destruction of innocent lives. Or does that sound melodramatic?

Well, that is how you and I might see it, but not how a typical citizen or typical cop sees it. Or, to put it another way, the cop agrees with you in principle, but disagrees about morality. The ideology of law enforcement will (roughly) match the ideology of the typical middle-class citizen. If the typical citizen supports the war on drugs, the typical cop will sees himself as a good guy in the war on drugs.

Are you going to judge the cop or the judge more harshly for doing what he thinks is the right thing, compared to your judgement of granny Smith reading her newspapers and cheering them on: "Good show! They busted a big drug gang today!"

Is it melodramatic? Yes, I think so. There are degrees of immorality. Abstractly, philosophically, and in principle a violation of my rights is a violation. However, I don't think every violation is a "destruction of innocent lives". A woman in Saudi Arabia might say that the law destroys her life; a homosexual arrested by the Indian police may say so too; an illegal immigrant tossed out of the country might say that; a teenage girl in Mississippi forced to carry a baby to term might say that.... but, if someone is fined $500 in Chicago for selling Foie Gras despite the ban, can he claim the law has ruined his life?

We live in a society where most of our fellow citizens have absorbed the ideas of Aristotle and John Locke via cultural osmosis. Among the mess of philosophical ideas bouncing around their heads is a notion that individual happiness is good, and the notion that people should be free to make choices if they don't hurt others. These notions act as a check on other, immoral, notions that they also "hold". The result is a set of laws that ban or restrict various values, but by and large leave open many values as legal choices. As I said above, there are exceptions: laws that target certain acts in ways that can severely impact lives. But, on the whole, I think it is melodramatic to say that our laws act to destroy innocent lives.

Anyhow, a debate on seriousness doesn't really get us anywhere.

We live in a society that has certain ideas about right and wrong. Being a democracy, these ideas find there way into law. Cops are average folk. They enforce the law, not primarily because they want to enforce immoral laws, but because they think the laws are moral for the most part. It's right to condemn these laws because they are immoral. When it comes to moral condemnation, I think those who support the immoral law most stridently are worthy of the most strident condemnation. So, if a judge let's a minor drug-offender off, I would still hold him on a higher level than my uncle who says that we need a zero-tolerance policy and that the judge should be voted out of office for being lax.

 

 

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Well, that is how you and I might see it, but not how a typical citizen or typical cop sees it. Or, to put it another way, the cop agrees with you in principle, but disagrees about morality. The ideology of law enforcement will (roughly) match the ideology of the typical middle-class citizen. If the typical citizen supports the war on drugs, the typical cop will sees himself as a good guy in the war on drugs.

I don't doubt that the typical police officer sees himself as a good person, acting morally. Also the typical middle-class citizen, even as he votes to enact laws which you and I know to be immoral.

But I don't know how much that helps us to answer the questions that I believe have been asked in the thread, such as whether their actions are in fact moral, or whether a moral man (i.e. one who knows that these immoral laws are immoral) can seek out such a career, and make such compromises (if compromises they are), without doing damage to himself; i.e. without acting immorally.

 

Are you going to judge the cop or the judge more harshly for doing what he thinks is the right thing, compared to your judgement of granny Smith reading her newspapers and cheering them on: "Good show! They busted a big drug gang today!"

I don't think my primary interest here (or with respect to ethics generally) is in judging other people, per se, or making comparative judgements as to their degree of wickedness. If we were asking whether shoplifting were wrong, I don't know whether it would help us resolve the question to compare the crimes of a petty shoplifter to those of Jeffrey Dahmer. It might even serve to distract.

But if you think such comparisons serve a purpose here, I'll try to answer your question. If it is immoral to initiate the use of force, even in the course of police work, then I tend to believe that a police officer will have (over time) a greater and more immediate range of experience with respect to the reality of that immorality, and its consequences, than would a grandmother cheering him on from the sidelines. The grandmother may well have metaphorical blood on her hands; the police officer may well have literal blood on his.

So if we must speak of degrees of immorality, then all else being equal, I do typically consider those who commit immoral actions to have the edge (in a bad way) over those who are removed from the practical consequences of their ideas such that they may not yet fully grasp them. A grandmother may not understand what destruction and heartache her views on a prohibition on drugs cause; not in the way a police officer probably does. (Though this might also give the police officer a greater opportunity to reassess his choices and beliefs, as he sees for himself how the enforcement of immoral law affects both him, the victims, and society).

Further, if we take both grandmothers and police officers, on average, as exemplars of "the typical middle-class citizen," with ideology to match (which endorses the initiation of the use of force, and is consequently immoral), then how could I hold the police officer above the grandmother in terms of evaluating their respective morality, absent further detail? I see no reason to believe that the average grandmother believes in the drug war, while the average police officer does not. I hold them, at minimum, to support the drug war to the same degree. Rather, what I know is that the police officer has committed himself personally to waging that war. It may not demonstrate any greater depth of conviction than a given grandmother holds, but then again, it might.

If however you think I'm wrong about all of this, and you think that the grandmother is worse than the police officer (perhaps because you believe the police officer is demonstrating his integrity, or bravery, or some other virtue), then I'm happy to concede the point for the purpose of this conversation -- it's not a question that interests me a great deal in general, and I don't yet see that it helps me to resolve those questions which do. In your first sentence in your initial post in this thread, you said that "those who want the immoral laws are wrong: the primary source of the problem." In my reply, I agreed, but then I asked: "Are those who enforce the immoral laws also wrong?"

I would still like to see that question clearly answered.

 

Is it melodramatic? Yes, I think so.

LOL, well, I asked and you answered. That's fair. :)

 

There are degrees of immorality.

Absolutely.

 

Abstractly, philosophically, and in principle a violation of my rights is a violation.

Yes, all of those things. A violation of your rights is also a violation in fact, with all that necessarily entails, lest the qualifiers "abstractly, philosophically, and in principle" serve to diminish that important truth.

 

However, I don't think every violation is a "destruction of innocent lives".

No, certainly not. (Did I state or imply the contrary?)

 

A woman in Saudi Arabia might say that the law destroys her life; a homosexual arrested by the Indian police may say so too; an illegal immigrant tossed out of the country might say that; a teenage girl in Mississippi forced to carry a baby to term might say that.... but, if someone is fined $500 in Chicago for selling Foie Gras despite the ban, can he claim the law has ruined his life?

Eh, I could perhaps construct a short story in which the foie gras ban does indeed have deeply hurtful (and reasonable/logical) consequences for an individual, and I don't see any good purpose in diminishing his plight, or making light of what is still an injustice, and immoral. A law banning foie gras might be fun to banter back and forth for those who are far removed from such a thing, as presumably we are, but to a fine foods salesman or chef or gourmand, it might yet be a fairly serious matter.

But fine. Let's say that such a law, generally speaking, does not ruin lives (though I don't know how to calculate the cumulative effect of such small regulations on a person over the course of his life, and I don't think anyone else does either, though I suspect it is not "small" altogether).

With that conceded, do you suppose it was to a foie gras ban/slap-on-the-wrist fine, or comparable, I was referring to when I wrote of "the destruction of innocent lives"? Or is it more likely that I was referring to things like multi-year prison sentences for drug offenses, or the loss of actual life that routinely takes place during the enforcement of such laws? You may yet find me melodramatic -- heck I'll plead guilty to save you the trouble -- but I'm not sure you've given my choice of rhetoric on this topic a fair assessment, based on this response.

 

We live in a society where most of our fellow citizens have absorbed the ideas of Aristotle and John Locke via cultural osmosis. Among the mess of philosophical ideas bouncing around their heads is a notion that individual happiness is good, and the notion that people should be free to make choices if they don't hurt others. These notions act as a check on other, immoral, notions that they also "hold". The result is a set of laws that ban or restrict various values, but by and large leave open many values as legal choices.

Agreed.

 

As I said above, there are exceptions: laws that target certain acts in ways that can severely impact lives. But, on the whole, I think it is melodramatic to say that our laws act to destroy innocent lives.

Unless our laws do in fact act to destroy innocent lives... which I think is perhaps even demonstrably true, though I don't quite know how "on the whole" is meant to modify the sentiment. Or did you take me to mean that every single law on the books has that same result? Just in case, allow me to clarify:

What I meant was that a police officer, in swearing to uphold the law (meaning: all of the law, including the immoral portions) is swearing to personally commit actions which have the effect of destroying innocent lives. Not necessarily when fining a man for illicit sales of foie gras, but perhaps yet when he enforces other statutes, such as those that concern the "war on drugs."

Do you disagree?

 

Anyhow, a debate on seriousness doesn't really get us anywhere.

All right.

 

We live in a society that has certain ideas about right and wrong.

Agreed.

 

Being a democracy, these ideas find there way into law.

Sure.

 

Cops are average folk.

Probably so, for the most part.

 

They enforce the law, not primarily because they want to enforce immoral laws, but because they think the laws are moral for the most part.

Yes.

 

It's right to condemn these laws because they are immoral.

Agreed.

 

When it comes to moral condemnation, I think those who support the immoral law most stridently are worthy of the most strident condemnation.

Okay.

 

So, if a judge let's a minor drug-offender off, I would still hold him on a higher level than my uncle who says that we need a zero-tolerance policy and that the judge should be voted out of office for being lax.

Okay.

We are agreed that those who want immoral laws are wrong. Are those who enforce such immoral laws also wrong?

Edited by DonAthos
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In our current political context, we have quite a few immoral laws. A cop or a judge can be a bit soft on certain types of crimes, but most of the time they cannot blatantly disregard the law and hope to keep their jobs. A prison guard who starts helping selected prisoners to escape would soon be found out and be behind bars himself. Passing over a few syllogisms we will quickly reach the point of saying: good people should never work in law enforcement

Why would that be a logical end? It would only be that "good people shouldn't enforce immoral laws". You can work in law enforcement and not enforce moral laws. Working in law enforcement doesn't mean that you have to enforce ALL laws. Yes, you're "supposed" to, but no one has a moral duty to obey. You'd break an agreement, sure, but anything that requires you act immorally should be ignored. At least, to the extent you are able to get away with it. If you literally -must- obey, and live to fight another day, then it's on the hands of whoever forces you to obey. Usually, the person breaking an immoral law needs to be smart about disobeying. The person enforcing the law can quit, or turn a blind eye. There are many options besides "law enforcement must enforce all laws".

I'm saying that one must pick and choose which laws to obey, contrary to Peikoff's opinion. That's why there are consequences for breaking laws - it is the government's way to say "if you disagree, too bad, I have the final say". The status of the law is partly a moral evaluation of the law, then. No one should work to enforce the parts they deem immoral. Only a duty-bound intrinsicist would do something against their self-interest and act for the sake of "civility" or "the sanctity of the law". I'm going to evaluate a person's moral character by their egoism, not their ability to merely do their job. Because proper morality is egoistic, an individual will need to evaluate which laws are really in their self-interest.

 

The law is not sacred. It's really just a way to get other people to think twice about doing something because of the threat of force. It only works insofar as a person cares about what the law outlaws, or a person thinks they won't be able to flout the law (intrinsicists are another story). A person knowingly violating a law or refusing to enforce a law means the person is standing in opposition to the law with respect to how much of the law is in question. Whether or not that's bad - for me - depends on the law in question.

My view about following the law or any rules is this, as Don wrote it:

"Take what you want and pay for it."

Lately, I've read a lot of Max Stirner. That is definitely in the spirit of what he'd say. He was an egoist although a clear subjectivist in terms of morality. He had a lot to say about the law that was interesting.

In the context of freedom of the press:

Do I ask for permission, or do I not rather, without any question of legality, seek a favorable occasion and grasp it in complete recklessness of the State and its wishes? I – the terrifying word must be uttered – I cheat the State.

-The Ego and Its Own, translated in 1910 from the book written in 1845.

It's a lot like Rand's (paraphrased here) line from The Fountainhead that "The question isn't who will let me, it's who's going to stop me." I think Roark said something like he only follows rules if he sees good reason to do so.

Edited by Eiuol
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...

The law is not sacred. It's really just a way to get other people to think twice about doing something because of the threat of force. It only works insofar as a person cares about what the law outlaws, or a person thinks they won't be able to flout the law (intrinsicists are another story). A person knowingly violating a law or refusing to enforce a law means the person is standing in opposition to the law with respect to how much of the law is in question. Whether or not that's bad - for me - depends on the law in question.

...

 

I agree with you on this point.

 

There's an interesting aspect to moral law that infers the necessity of occasional disobedience.  I believe it exists as the exception that sometimes proves the rule.  Jury nullification might be considered such a form of moral disobedience, where the jurists find that maintaining the spirit of the law requires acquiting someone believed guilty of violating the letter of the law.  Such cases are rare, but I believe necessary to maintaining moral integrity in the practice of law.

 

I'll probably get thumped for suggesting something along these lines in this forum, but if you're interested in a really interesting book regarding this subject try "Our Immoral Soul: A Manifesto of Spiritual Disobedience" by Rabbi Nilton Bonder

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In one of Plato's dialogues, called the Minos, Socrates asks an unnamed comrade for a definition of law. The comrade comes up: "Law is what is legislated." But Socrates objects, and they go back and forth for awhile, eventually the comrade offers a second definition: "Law is the judgment of the state." But through repeated questioning Socrates quickly proves that this definition clashes with other things the comrade believes, thus the comrade is committed to an inconsistent set of beliefs:

Law is the judgment of the state.

Lawfulness is just.

The judgment of the state is sometimes unjust.

Sounds like DA is similarly struggling between sets of beliefs, like Socrates' debating partner. We should obey the rule of law, we can't just pick and chose which laws we like and don't like, but we should also use our independent reason, and also sometimes the law is unjust.

Objectivists and libertarians of all sort have long sought to explain what kind of law we ought to have in a free society, but too often neglected what kind of legal system is appropriate to developing the morally proper body of law. Objectivists tend to assume a kind of government that looks like of like the current US state, there's an executive, legislative body, and Supreme Court. Laws are seen as written by the legislative body, and that's that.

But this conception of law as legislative or statutory law would appear strange to many classical liberal and libertarian jurists, including Thomas Aquinas. (Note that these people are by no means anarchists nor does this commit one to anarchy.) Lex iniusta non est lex (An unjust law is no law at all), is a standard account of the natural law position. Legislative and statutory law is a relatively new invention, and like fiat money is not only useless, but corrupts law. Aquinas said that statutory law either forbids one to do what the natural law already forbids, in which case it is pointless, or forbids or mandates that which is forbidden by natural law, in which case it is unjust.

This might seem weird to some Objectivists, how can you have a legal system that is not based on a legislature, but if you read a little, you'll see this is not so weird at all. Historically, in the common law of England, Roman law, and the Law Merchant, law was formed in large part in thousands of judicial decisions. In these so-called "decentralized law-finding systems," the law evolved as judges, arbitrators, or other jurists discovered legal principles applicable to specific factual situations, building upon legal principles previously discovered, and statutes, or centralized law, played a relatively minor role. See the Italian classical liberal jurist Bruno Leoni in the great book "Freesom and the Law" (again not an anarchist. Yes, one can oppose centralized or legislative law, and still be a proponent of a minimal state.)

See also for why any legal system must necessarily contain libertarian aspects, the American abolistionist Lysander Spooner, in "The Unconstitutionality of Slavery" explains that any positive law, by its nature, implies the existence of a objective legal standard, and positive law, again by its nature, implies that this objective legal standard must have libertarian content. Any positive law that deviates from moral law, should be disregarded for the simple fact that unjust laws are illegal, and obedience to them is not required.

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...

Sounds like DA is similarly struggling between sets of beliefs...

 

Even my internal dialogue is contentious... no it isn't... yes it is...

 

To the degree that references to the spirit of the law vs the letter of the law are credible, I've found common law tends to reflect the former and statutory law the latter.  I don't find these terms contradictory so much as a useful kind of premise checking.  Perhaps it's the inherent constraint of language that creates these kind of conflicts?

 

The heretic/dissident (or the 10th man) plays a useful social role, but isn't much of a vote getter.

--

BTW: I also appreciate your reference to the Law Merchant, Lex Mercatoria, which is another fascinating and valuable source of historical context :thumbsup:

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See also for why any legal system must necessarily contain libertarian aspects, the American abolistionist Lysander Spooner, in "The Unconstitutionality of Slavery" explains that any positive law, by its nature, implies the existence of a objective legal standard, and positive law, again by its nature, implies that this objective legal standard must have libertarian content. Any positive law that deviates from moral law, should be disregarded for the simple fact that unjust laws are illegal, and obedience to them is not required.

How can an unjust law be illegal? There is nothing to enforce a "naturally legal" law let alone stop an "illegal law". It makes no sense to call that law at all, unless we suppose a law exists in the fabric of reality itself, i.e. intrinsic law. A law is enforced by someone, always, and we can call it law because someone is saying they'll be justified to implement force against a lawbreaker. Without an enforcer, a "law" amounts to merely a kind request, and bad laws are mean. Sure, we can call a law unjust, but to declare that a law is illegal because it is forbidden by natural law makes me wonder: Why should I care if I violate natural law if nothing is going to enforce it? If you only mean "there are always consequences" then you've literally equivocated law and morality. Call a bad law immoral, not illegal. You're making the same error as the comrade, that "lawfulness is [always] just" by making law a sanctified thing above, beyond, and separate from the state or any enforcer.

A law is a judgment of the state, and I see no issue with that. The issue with Socrates is that his comrade is wrong to call lawfulness just. Lawfulness is not always just, so the comrade's issue is easily fixed. It also means we actually -must- pick the laws we like. Whether or not we make a moral choice is a separate question. But just as law is not equal to morality, whether something is a law has no bearing on moral action except as a pragmatic consideration. Hopefully, a law is proper, though, and only represents a subset of morality, non-initiation of force. Sort of like how Rand said "individual rights are the means of subordinating society to moral law."

I find it interesting that you, an anarchist, mentioned a non-anarchist to add some support to your position, while I, a non-anarchist, mentioned a guy who was basically an anarchist.

My ultimate point is that obeying and enforcing must be decided by an individual for himself. The question is not "is it wrong to break the law, because the law in itself should be respected?" The better question is "does the law serve my self-interest?" Laws that are just serve our self-interest.

Regarding Socrates deciding to stay in Athens instead of escaping, Stirner had another point that applies to what you said. From the same book:

 

Had he known, and been able to know, what he was, he would have conceded to such judges no claim, no

right. That he did not escape was just his weakness, his delusion of still having something in common with the

Athenians, or the opinion that he was a member, a mere member of this people.

But he was rather this people itself

in person, and could only be his own judge. There was no judge over him, as he himself had really pronounced a

public sentence on himself and rated himself worthy of the Prytaneum. He should have stuck to that, and, as he had

uttered no sentence of death against himself, should have despised that of the Athenians too and escaped. But he

subordinated himself and recognized in the people his judge; he seemed little to himself before the majesty of the

people. That he subjected himself to might (to which alone he could succumb) as to a "right" was treason against

himself: it was virtue.

To Christ, who, it is alleged, refrained from using the power over his heavenly legions, the

same scrupulousness is thereby ascribed by the narrators. Luther did very well and wisely to have the safety of his

journey to Worms warranted to him in black and white, and Socrates should have known that the Athenians were

his enemies, he alone his judge. The self-deception of a "reign of law," etc., should have given way to the perception

that the relation was a relation of might.

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