Are law and morality compatible?

There's this argument that keeps mulling about in my head that I'd like to share. I don't accept it...yet. I put it forth for examination. I might play devil's advocate on this thread in order to test the argument. Here it goes:

I think Objectivists believe this: Law is derived from morality. A principle derived from moral principles must itself be moral. Therefore, law, as onesuch derived principle(s), is moral.

But I think Objectivists also believe that one cannot make a moral decision when forced. Force obliterates choice, and choice is the heart of morality. As I understand them, Objectivists argue that a forced person necessarily acts amorally.

While choice is the heart of morality, I think force is the heart of law. The law says, "comply, or we will try to force you to comply." So here's the problem: If force is the heart of the law, and if force obliterates choice, which is the heart of morality, then law obliterates morality. If a principle obliterates the principles whence it is derived, then the principle and its progenitor are incompatible. Therefore, law and morality are incompatible.

Something has gotta give.

Jordan

Post 1

Wednesday, August 24, 2005 - 11:27pm

Jordan --

The question you raise requires a far broader answer then can be provided in a message forum. This question deals specifically with the role of government and there are many specifics which still need to be dealt with concerning "Objectivist" politics. So the answer is very basic, and yet I think it is correct and it comes from Ayn Rand herself. Ayn Rand's answer to this question is that government may only respond with force to initiations of force against those who are under its juristiction. So you are correct in asserting that when a government initiates force itself "the law obliterates morality". More specifically, in these cases the government obliterates freedom. So there is the basic answer to your question. Laws are only valid if they are setup to protect individual rights. Government must only RESPOND to initiations of force against those it has a mandate to protect. It should never initiate force itself.

- Jason

(unfortunately I think this thread will draw the attention of our resident anarchists)

Post 2

Wednesday, August 24, 2005 - 11:44pm

Jordan,

Without any law, your choice not to murder is moral. It�s a good choice because it keeps you safe from retribution, leaves others alive so you can trade with them, etc. Without any law, we can guess what will happen to you after murdering: family and friends of your victim will hunt you down�you�re doomed.

After laws against murder are passed, you will presumably go on not murdering. Your continued choice to abstain has not suddenly become amoral now that formal penalties are defined. The situation is the same. You will continue making the moral choice not to murder because the consequences are bad for you. The law only puts it in finer focus for you. The law helps you be moral!
(Kantian exhortations that �you only abstained �cause of the law, so it can�t be moral� notwithstanding.)

Or littering. Without laws, you choose not to litter my lawn because you don�t want another rock thrown at your head. With laws, you choose not to litter my lawn because you don�t want another ticket. Very little difference, and still your choice.

Assuming objective laws only, of course.

Jon

Post 3

Thursday, August 25, 2005 - 6:05am

Hi Jason,

Interesting. Your doesn't so much solve my problem as it compounds it. I understand that Objectivist morality authorizes force only in response to initiated force. If I initiate force on you, I'm being immoral. But what if I don't initiate force on you? Again, force obliterates choice, which is the heart of morality. My not initiating force against you - because you would otherwise use force against me - is therefore an amoral act. So it would seem I have the option to be either immoral or amoral, but not moral. Weird and not what I was expecting.

That problem aside, I agree that my question calls for more depth because the government does initiate force against every innocent party it incorrectly tries.

Hello Jon,

My response to Jason also applies to you. But also, I think that under Objectivism, people should abstain from littering on your property and murdering you not because they fear retribution (e.g., the murder victim's family hunting them down or you hucking rocks their my heads). I think the reason would be because they would otherwise negate their esteem for humankind, hence themselves, or something like that. This becomes clear when we take retribution out of the picture. If you knew for sure that you could get away with murder or littering, could it then be moral for you to do so?

Devil's advocate,
Jordan

Post 4

Thursday, August 25, 2005 - 7:13am

Jordan, the root of the problem is in your formulation:

The law says, "comply, or we will try to force you to comply."

Law, properly, doesn't specify what's illegal, rather it specifies, clarifies, standardizes the legal response to certain types of illegal actions. Your formulation includes the requirement to act in certain ways rather than restricting itself to the consequences for certain actions.

Properly, the "illegal" is that which violates someone's rights. It has been the growth of "positive" law that has resulted in our frequent confusion of statutory law with the idea of the rule of law.

Some quotes from Fr�d�ric Bastiat (1801-1850):

"Property is prior to law; the sole function of the law is to safeguard the right to property wherever it exists, wherever it is formed, in whatever manner the worker produces it, whether individually or in association, provided that he respects the rights of others."

"Hence, if anything is self-evident, it is this: law is the organization of the natural right to legitimate self-defense, it is the substitution of collective force for individual forces, to act in the sphere in which they have the right to act, to do what they have the right to do: to guarantee security of person, liberty, and property rights, to cause justice to reign over all.""

Jason, governments necessarily initiate force. They always have. They always will. Any hope to the contrary is purest fantasy.

Post 5

Thursday, August 25, 2005 - 8:33am

Rick,

I have no idea how your comment affects my argument. It seems to me like you're just saying that the law says, "fail to comply, and we will force you to comply." Inconsequential. Also, I think your formulation gets weird when we talk of illegal acts that the government says is legal. I suspect your point aligns with natural law theorists. I just think it gets confusing to say something like Jay walking is governmentally illegal but natural law legal.

Jordan

Post 6

Thursday, August 25, 2005 - 6:39am

Jordan, thanks for starting a very interesting thread! (BTW, does anyone know if an Atlas is erased if you click on the check mark and then just hit the Back button to return to the thread? I've been going from the "Vote is registered" window to Forum and back into the thread that way, but it would be a whole lot easier to simply hit "Back.")

As to the real topic, and repackaging what has been said above. . . .

Based on post 3, I think Jordan's stumbling block is his apparent assumption that an act can't be moral if it coincides with what the law (or Jon) would force us to do anyway. The role of Objectivist law is to protect us from the use of force by others. (In that formulation, Rand thought of "force" as including fraud and breach of contract.) So we're going along, living our lives Objectively, and entering into voluntary trades with others. We don't make fraudulent statements about what we're selling because to do so would be wrong (immoral). Simply because the law would enable the government to use force against us if we did make such fraudulent statements does not make our abstaining from them amoral. You and I do what's right because it's right, not because we're afraid of the punishment. (If we did what's right solely because we're afraid of the punishment, then I think our actions would be amoral.)

Post 7

Thursday, August 25, 2005 - 1:48pm

Jordan writes:
>If a principle obliterates the principles whence it is derived, then the principle and its progenitor are incompatible.

Or it means the original principles are incorrect, or poorly formulated.

In this case, I suggest the equation of force and immorality is pretty loose, and can be misleading.

If I forcibly restrain someone from, say, murdering a child, this is hardly immoral. Thus, if a particular law against infanticide is similarly intended as a forceful restraint, as you or I cannot be there in person at each eventuality, it is hardly immoral either.

I think the problem can be better formulated. To paraphrase Einstein, no doubt we must avoid force as much as possible, but not more than is possible. Or, if force is to be equated with immorality, we must be moral - but not more moral than is possible!

regards
Daniel

Post 8

Thursday, August 25, 2005 - 3:05pm

Hey Jay,

You and I do what's right because it's right, not because we're afraid of the punishment.

I think this conflicts with the idea that we cannot make an ethical choice faced with the option of someone forcing us. I think you're saying that we can still make moral choices, even with the risk of getting forced looming over our heads. Well, even if you're not saying it, it looks to me like the best way out of the problem. So Daniel, I'd say the Objectivist idea that "force obliterates choice, which is the heart of ethics" is poorly formulated.

Jordan

Post 9

Thursday, August 25, 2005 - 4:58pm

Jordan, I think you're onto something here. Law = force, force negates choice, absence of choice is incompatible with moral action. So how can you have both law and moral action?

We may be able to "save" this by saying that it's the application (or imminent application) of force that negates choice. This way, the law does not negate choice until the law is enforced. In our daily lives, we have the choice whether to follow the law or not. I could get away with defrauding a lot of people before one of them will decide to bring the law into the picture by suing me. Even then, I can choose to ignore the suit, I can hide assets, etc. All along I've been making choices (and choosing the immoral path). My ability to choose isn't negated until the cops come to arrest me for comtempt of court or seize my assets to satisfy the judgment. At that point, I don't have any choice, and so my "cooperation" with the cops is neither moral nor immoral.

How does that sound?

Post 10

Thursday, August 25, 2005 - 6:01pm

Hi Jay,

I think you're saying that if we are actually forced, then are choice, hence our ability to act morally (or immorally) is obliterated. I get that, but where does this leave threat of force? Maybe you meant to include that when you wrote "imminent application." I'm just not sure how that fits. Threat of force isn't actual force, and I wouldn't know how to enforce a threat without actualizing it via force.

All for now...
Jordan

Post 11

Friday, August 26, 2005 - 6:13am

Jordan, yes, that's what I was thinking with "imminent application of force."

In other words, the law against stealing is on the books, it's enforceable, and people know it's there. Behind that law there is, strictly speaking, a threat of force, but it's such a distant threat that it won't, by itself, play much of a role in the typical individual's choices. I don't steal because it's a dumb way to get things; the fear of getting caught by the "force monopolist" may be in the back of my mind, but it's way, way down the list in terms of my motivations. But at some point the law's threat can become imminent -- like when a judge orders a defendant to pay his taxes or else the cops will put a padlock on his store. At that point, I would say the threat of force obliterates the defendant's choice.

I see from your bio that you're in law school (or maybe you're out by now). So, what I have in mind is similar to the concept of duress in criminal and contract law. If your boss gives you the choice between committing a crime or getting fired, that's not duress. But if he gives you the "choice" between committing a crime or never seeing your children again (and it's clear that he's in a position to immediately harm your children), that's duress. Anglo-American law recognizes that you don't really have a "choice" in that situation, and so you're not held accountable for "choosing" to commit a crime.

Post 12

Friday, August 26, 2005 - 11:46am

Hi Jay,

So the remoteness of the risk of force determines whether one can act morally? This reduces something I'll call "moral ability" to a matter of degree. I would thing Objectivists would measure moral ability as either existing or not, not in gradients.

But maybe you are suggesting that the one's perceived level of risk of force is what determines one's moral ability. If a person doesn't steal because of fear of imminent enforcement, even if such imminency isn't actually the case, then the person is acting amorally? This might avoid the gradient measure of moral ability, but it it becomes difficult to tell whether someone is acting morally because it's difficult to tell their perception.

Waddya think?

Jordan

Post 13

Friday, August 26, 2005 - 7:13pm

Jordan, I agree that Objectivists probably "would measure moral ability as either existing or not, not in gradients." One way around this would be to state that, while the remoteness of the threat of force comes in gradients, the point at which the threat becomes immediate enough to negate choice is a bright line. In other words, point x is where threat of force is remote enough not to negate choice. You're 100% moral (or immoral) if you're at a point greater than or equal to x. But as soon as you're at a point < x in remoteness, your choice is obliterated & you can't act morally.

But I think the option you offered is closer to reality. A very devout Catholic may truly feel the threat of excommunication (and damnation) under canon law so strongly that he has no choice but to obey his priest. In those circumstances, that person is acting amorally -- the threat of force (as he perceives it) has obliterated his choice. You or I in the same situation feel that there's no threat at all, and we can make moral choices accordingly.

How this would result in practical rules of law is a tough one. The second option, as you pointed out, would be open to abuse because any criminal could defend himself on the grounds that he had no choice -- the threat as he supposedly perceived it was imminent. The other option is (IIRC) the way most states deal with the duress issue now. I think the bar is set pretty high, so that criminals are not easily excused. (It's been almost 10 years since I had criminal law. You probably know this stuff a lot better.)

Post 14

Friday, August 26, 2005 - 7:33pm

Hi Jay,

Out of curiosity, do you have a law degree or what? I'm in my 3d year of law school.

You or I in the same situation feel that there's no threat at all, and we can make moral choices accordingly.

So are you suggesting that the moral person is the one who ignores the law, at least where the law poses non-imminent threats?

...any criminal could defend himself on the grounds that he had no choice -- the threat as he supposedly perceived it was imminent.

Sure, that's why we use an "objective" test (e.g., whether a reasonable person would do what the defendant did) when considering a criminals necessity defense. Interestingly, necessity defenses both in criminal and civil law can be made when nature, rather than other humans, are the forcing agent. For example, if you doc at someone's private pier without permission because there's a tornado coming at you, you can avoid violation of the law.

Incidentally, I noticed your profile said you were keen on wealth-maximizing utilitarianism. As you probably know, Objectivists puff up and get all red when they hear about utilitarian anything. But I'm pretty keen on wealth-maximizing utilitarianism myself although I'm still trying to reconcile it with some of my libertarian leanings. Eventually, I'd like to see you discuss wealth-maximizing utilitarianism here. Run it through the gamut as it were.

Jordan

Post 15

Friday, August 26, 2005 - 8:56pm

Legality and morality are not the same thing [except, perhaps, in a theocracy], so of course one could be moral and be doing illegalities [whether one should would depend on the prudence factor].

Post 16

Friday, August 26, 2005 - 9:16pm

Robert,

No one here is claiming that morality and legality are the same thing, except maybe Rick. Please consider reading the thread, or at least my first post, to see what the issue is.

Jordan

Post 17

Friday, August 26, 2005 - 11:58pm

Jay Pastore,

This applies specifically to solo (many other websites too):
Whenever you submit something, it is permanent. Hitting the back button doesn't ever do anything bad. Your browser might forget something (like text you entered into a text box) but if you submit it to solo, it will NOT be lost.

Post 18

Saturday, August 27, 2005 - 12:33am

Jordan,

I make no claim that this is "Objectivism". But I think it is reasonable.

The heart of morality is an individual's values and goals. A goal that many objectivists/randians have in common is the goal to live long joyous life. Morality is comes in like this: choices which promote your values/goals are moral, and choices which destroy your values/goals are immoral. Then there is a realization that rational men can live in harmony of interests...

It is in my interest (moral) to prevent others from ruining things I value. Hence my desire for a legal system that determines who performs acts of violence etc... and then prevents them from doing such again to a high degree of confidence-- at their expense.

Now as for all of this initiation of force discussion... First discuss what kind of freedoms and what kind of situation would be necessary for you to maximize your values & goals. Then you can start talking about how these freedoms can be trampled (aka initiation of force).

Post 19

Saturday, August 27, 2005 - 6:23am