What’s surprising about the law-and-order position is that those holding it have a relatively strong disposition for moral realism (if not full-blown, at least in the spirit of it) but end up having to embrace ethical subjectivism. They will ridicule ‘situational’ ethics, where moral judgments vary by factual context, and yet propose that moral judgments vary by arbitrary legal contexts. They talk about fairness and inalienable rights, yet see no problem granting special powers and privileges to police and military that routinely override such rights. (Compare, for example, principled positions on abortion that allow for no exceptions, even in the case of rape of a minor, with the support for military actions such as the Hiroshima and Nagasaki atomic bombings, where unborn children were most certainly killed, and other minors were either killed or horribly mutilated.) So, what leads them to these mismatched positions, and why do they not feel the tension between them?
One motivation is the embrace of a Hobbesian view of society where people have no inherent capacity or motivation to peacefully cooperate. Even in situations where we stipulate that people are sufficiently motivated, they view the lack of central enforcement of laws (or rules, more generally) as making it impossible for people to peacefully resolve disputes. Without any clear guide, everyone will propose their own standard, none of which will be accepted by everyone else. Thus, conflict will increase at every turn, and society itself will crumble into some version of the war-of-all-against-all.
Whatever will save us from this horrible fate? Well, that’s a fairly familiar tale—at least, familiar to most market anarchists—by now. (Every dispute requires a third-party, and (obviously) it must be the same third-party every time (judicial). We require a set of rules that are public and agreed on, subject to change, but relatively stable (legislative). And enforcement of such decisions must be capable of overwhelming any resistance that might be offered by those who dislike the results of the other two processes (executive). There are variations, but that’s the general pattern.)
So, the real issue here is that agreement, even if it’s agreement to abide by arbitrary rules, is better than honest disagreement. Order is better than justice as an organizing principle. Or perhaps more accurately, order is a prerequisite for justice to emerge. And that means we are abandoning free market principles in order to save the free market—except replace ‘free market’ with ‘justice (system),’ and we see the foundation laid. The only difference is that Bush’s line about markets was perceived (wrongly) as a temporary deviation from some core principles, whereas this understanding of how laws work is the norm. It’s not a temporary condition on the way to something better.
Let’s very briefly go over the main features of moral realism (MR) and ethical subjectivism (ES) to see where the real tension is. Both MR and ES are meta-ethical views, which means, they are talking about what it means to have an ethical rule, not spelling out which ethical rules are true. So, the view that abortion is wrong, except in cases where the mother’s life is at stake, is an ethical position, but it’s one that could be held by either a moral realist or an ethical subjectivist. (It could not be held by a nihilist, but that’s only because they can’t hold that any action is morally wrong, not because they have a special belief about abortion.)
Both MR and ES agree that moral statements are meaningful. This sets them apart from non-cognitivists who maintain that “murder is wrong” is akin to nonsense. They also agree that there are at least some true moral statements. This sets them apart from nihilists because nihilists think that “X is wrong” is saying something, but it is just always false.
Where they diverge is on the question of what is the truth of moral statements dependent. For ES, it is dependent on the attitudes of a person or persons; MR rejects this. So, ES may ground it in individual perspectives (usually called moral relativism) or in cultures (cultural relativism). Two other alternatives that are less popular ground it in either a divine being or in an idealized human observer. The divine version, usually called Divine Command Theory, is the ultimate version of “because I said so.” To illustrate the difference, here is what a prohibition against rape is really saying, according to each version mentioned:
MR – slavery is always wrong, regardless of what anyone thinks about it
ES (individual) – slavery is wrong for me, but I can only speak for myself
ES (cultural) – slavery is wrong in this country now, but it wasn’t always that way (and that’s fine)
ES (DCT) – slavery is wrong for now because God says so, but it may have been right in the past, and it may be right again in the future
ES (IOT) – if someone were aware of all relevant facts about the world and had no prejudices or biases, they would conclude that slavery is wrong
To be clear, very few people actually express themselves in these ways. But these are the core of how they implicitly think about moral truths.
What I propose is that the law-and-order position is best understood as a hybrid of the ES (cultural) and ES (DCT) positions, where the state is a stand-in for ‘God.’ (One interesting difference is that ordinary people can become part of the ‘divine’ order. So, we’re dealing with some kind of panentheistic God perhaps.) But it’s worse than that because even those who make up the divine institution can disagree amongst themselves or act in contradictory ways. It might be more accurate to say that there are many gods, and all must be obeyed, even if this is impossible.
For example, a police officer may attempt to detain a person for an unlawful reason. Or they may try to detain a person for a lawful reason, but they apply the law in an unreasonable way. Or they may try to detain a person for a lawful reason and do so in a reasonable manner. The law-and-order position would assert that the duty of the potential detainee is identical in all those cases. Regardless of the legality and proportionality of the officer’s actions, the potential detainee has a duty to immediately and fully comply with all orders. Failure to do so poses a potential threat to the officer, even if the officer is acting unlawfully, and this means that any amount of force can (and should) potentially be used to enforce the detainment, including lethal force.
This attitude was on full display in the case of Eric Garner when a group of police officers attempted to detain a man known to them as a seller of loose cigs, the sale of which was seen as cutting into the tax revenue collected locally. The cigarettes would sell for anywhere from 50 cents to 75 cents a piece, and this was sufficient reason for the police to forcibly detain Garner. Having been harassed in this way several times previously, he decided to not cooperate. As a result, the police officers, working as a team, murdered him in broad daylight by choking off his airway, and they were even filmed doing so. (It was portrayed in the media that his death occurred later on during the ambulance ride perhaps, but it’s clear from the medical evidence and the behavior of medical personnel in the video that he was dead within moments. More disturbing and chilling is the total lack of concern expressed by either the police or the medical personnel during the incident.)
After this incident, there were many justifications given by law-and-order supporters, which mainly focused on Garner’s role in causing his own death. Specifically, his failure to immediately submit to the officers’ orders presented them with the imminent collapse of society itself. In the event that they had failed to completely subdue Mr. Garner, it would send a clear message that the law could not be enforced. Immediately following this revelation, chaos and anarchy would result as people decided to break any law at any time for any reason, knowing that there would be no consequences. The legislature would also shut down, knowing that their pronouncements were mere theater, and likewise, all judges, prosecutors, and other prison officials would simply walk off the job, realizing that they had lost all ability to regulate the behavior of others.
This may sound like some great sarcastic comment on my part, a bit of exaggeration or hyperbole to mock the position of others. But really, what I’ve said is almost literally the fear that was expressed by law-and-order advocates. Failure to subdue Garner would have been a slippery slope that would literally dismantle the entire fabric of law and society itself. This sounds fantastic, but it’s truly how they think about these things.
Never mind that laws are broken by almost everyone, just by the nature of regulation. Never mind that laws are enforced very selectively and have been for a very long time. Never mind that laws are enforced in contradictory ways quite often. For whatever reason, none of those features are enough, but a man who sells 75-cents worth of contraband is enough to bring down the whole house of cards if he’s not snuffed out.
So, we are to think of the police (and other relevant bureaucrats) as gods walking amongst us, or at least, avatars of the divine. What is right depends ultimately on the attitude and opinion of any/all of these gods, moment to moment, regardless of any other constraint.
This is a strange hybrid of Divine Command Theory and Cultural Relativism. In the next section, I will look at the general category of Ethical Subjectivism and point out the key weaknesses that any version of it faces. After that, I will return to the law-and-order position and apply those insights to its specific features.