Now that we’ve identified the Law-and-Order (LnO) position as a variant of Ethical Subjectivism (ES), let’s see what the inherent weaknesses of that meta-ethical position are. Whatever is true of the more general theory should also be true of the specific form we see in LnO theories. What is particularly interesting about the LnO position is that it manages to combine the weaknesses of several variants into one.
A. Circularity and Infinite Regress
A theory of obligation or justice should be able to tell us something about the nature of what we’re obligated to do or what counts as justice. One big problem with ES is that we have to define what is ‘good’ or ‘just’ in terms of itself. So, for example, if the law is just, by definition, then what is ‘justice’ itself? Answer: whatever the law says it is. If it’s not obvious why that’s a problem, consider this example.
A baseball umpire is supposed to declare which pitches are counted as ‘strikes’ and which as ‘balls’ so that the other players can determine when a particular batter is supposed to step down and allow the next one up to bat (or when the inning is at an end). But is a particular pitch a strike or ball because the umpire says it is? Or does the umpire call those pitches strikes or balls because they *are* a strike or ball? If the former, then we can’t really know what a strike or ball *is* in itself. (This also leads into the ‘infallibility’ problem below.) But if it’s the latter, then we are recognizing that there is something else, outside of the umpire’s judgment, that is supposed to be causing (or at least, significantly influencing) the umpire’s declaration.
So, we could then talk about how a strike is defined in terms of what boundary markers the ball is passing through, and that a ball is similarly defined as the negation of that definition. And we can understand that an umpire could make a mistake in calling something a strike that is really a ball, and vice versa, without encountering any logical paradox along the way. And even for those who would generally say that the umpire should be deferred to, even if it appears that a mistake was made, the idea of an external, objective standard that such calls can be measured against does not strike any baseball fan as problematic.
This is why Leslie Nielsen’s ridiculous umpire calls in The Naked Gun are so funny. If everyone took ‘ball’ and ‘strike’ to merely consist in what the umpire says they are, then there would be nothing particularly absurd about him making whatever calls would please the audience the most.
The infinite regress issue comes up this way. If we say that:
[x is just] = [the law says that x is just]
then, this implies that:
[the law says that x is just] = [the law says that [the law says that x is just]]
And the chain of inference can be extended indefinitely in this way.
B. Approval-based Justice
Of course, people may try to get out of it by suggesting that the law is just because it is declared so by the legislature or by The People. This either resolves back to the circular argument (such as, when the legislature simply says that ‘justice’ is whatever the law says it is) or it leads to identifying justice as mere approval. So, compare the following two statements:
- The legislature and/or The People approved of forbidding inter-racial marriages at one time
- Marrying someone not considered the same race was unjust or otherwise immoral until recently
The first seems trivially true (unless you’re deeply ignorant of American history), while the second seems obviously false to most people. So, grounding justice in terms of either the approval of elected officials or of The People, however defined, seems to lead to contradiction pretty quickly.
The other main problem with an approval-based view is that it’s extremely difficult to explain where disagreements about justice come from. If justice is simply a question of what the law says, then the proposition “this law is unjust” becomes nonsensical in the same sense as “this geometric figure is a square-circle.” At best, people can disagree about what the law is, in fact, saying. So, it becomes a pedantic exercise in legal exegesis. And here, we might see a glimmer of some objective analysis, where specific court decisions are cited, specific principles of legal analysis are invoked, and where specific facts may come into play in determining the ‘right’ application of a law. It sounds like people are indeed grappling with the definition of a strike as it matches some reality.
And yet, if the Supreme Court puts forth a judgment, but they get some aspect of the process just described wrong, it doesn’t matter in terms of what counts as ‘lawful,’ and those who are committed to the LnO position do not generally advocate that the judgment is invalid or should not be treated as a lawful judgment. So, it begs the question, what was it that they were debating beforehand? What standard were they appealing to if any such consideration would ultimately give way to the decision handed down, regardless of its content? And why abandon that standard post-judgment if it appears that the judgment itself has little or no connection to it?
One might say that the analysis was not so much about discovering something apart from the judgment, but rather, it was an attempt to influence the judgment in a certain direction. In that sense, one might count legal briefs as prayers. Not that we can know the divine will, but we hope to influence it through persuasion. But in that case, it’s not clear how to distinguish such arguments from wishes, dressed up in some formal language that satisfies some ritualistic function only.
I don’t think any of those ways of characterizing the various debates that take place is at all satisfying to those who participate, nor accurate to how they think of themselves and their activities. Yet, their position makes it difficult, if not impossible, to characterize it any other way.
C. Distinguishing pragmatic from moral
Let’s suppose that you disagree with the schedule that is used by the garbage trucks and want it changed. Instead of coming by on Tuesday and Friday, you think Monday and Thursday make more sense. There are various steps you would have to take in order to bring about this change. Those might include writing to your local city council, contacting a representative of the sanitation department, distributing a petition in your neighborhood, taking out a newspaper ad, making a speech in a public park, and so on. There are many ways that you can attempt to make this change. All-in-all, though, this is a relatively minor thing that you’re attempting to do, even if you think it’s a good idea.
Now consider if you disagree with the laws that govern abortion. There are a series of steps you would have to take in order to bring about that change, too. But they really don’t differ at all from what I’ve already mentioned. The only difference between the two cases will be the relative passion of the people involved in the issue and the particular groups you would have to coordinate with, but in practical terms of what methods you would use, they’re identical.
And in both cases, if you end up losing, you do the same thing. You abide by the existing law and decide whether it’s worth it to try changing it again. Or if you decide to break the law, you expect to be either fined or jailed or both for your efforts. And as far as the LnO position goes, you’d be in the wrong in both cases, and that’s true even for those who believe that abortion is a very serious moral wrong, but think trash pick-up days are entirely arbitrary.
So, we end up with a theory that makes it impossible for those who *do* recognize deep moral differences between various activities to actually treat them as different by their very own theory of justice. Imagine that we were looking in on an alien society that had a similar philosophy. We have no context for understanding their moral concerns and want to learn what they might be by studying their legal system. How would we be able to draw any conclusions from such an examination? Would the number of regulations for a particular topic be a clue? Would the relative stability or instability of various laws be a clue? I think it would be nearly impossible to tell the difference on that basis alone.
And that means, the LnO position commits one to treating moral commitments the same way as purely pragmatic concerns. If those who advocate LnO had relatively mild sentiments about morality and about its impact on society, that might be more understandable. One might expect that pure utilitarians wouldn’t be too troubled with such an approach. But that is not the typical profile for LnO advocates.
As alluded to above, one consequence of the subjectivist view is that it generates the absurd conclusion that laws are inherently just. One easy way to see this is to consider the following:
- It is unjust to take unjust actions
- It is wrong to disobey the law
Imagine that you are committed to both (a) and (b). Now imagine that the law commands an unjust action or forbids one to take action where inaction would be unjust. It would be impossible to live by both commitments. If you obey the law, you’d be committing an unjust action. Whereas, if you do what is just, you’d be disobeying the law, which is wrong. So, what is the proper course of action when faced with an unjust law?
There are two main answers given, neither of which are particularly convincing.
The first answer is that one should obey the law, even an unjust law, and work within the system to change it if you believe that it is unjust. Thus, if inter-racial cohabitation is illegal, then you should not attempt to break those laws but should, instead, seek to get them changed, even though you may live your entire life and not see such a change. Likewise, if you are a government official (or a jury member entrusted with passing judgment), you have a duty to enforce the laws, even the ones you consider unjust, as long as you remain in your position. So, if someone is on trial for breaking an unjust law, and you, as a juror, believe that they did, indeed, break that law, then you have a duty to vote for conviction.
One can understand this position a bit better if one considers the difference between act- and rule-utilitarianism. One acts in such a way such that the long-term, systemic good is served, not what serves the short-term, particular good. So, quite literally, some individuals must be sacrificed for the greater good because it leads to Order. It seems that such a system should be re-named then. Instead of a Justice System, we should simply refer to it as the Order System or similar.
The second answer is that one can break unjust laws, but that one is never justified in evading or otherwise failing to face the punishment attached to such disobedience. So, if a law were passed that forbid certain religious speech, then it would be fine to break that law, provided one did not resist when the police came to arrest you for it and that you did not attempt to escape jail if convicted. (I’m unclear whether it would be permissible to plead Not Guilty and attempt to avoid conviction, under this view, but I can imagine it going either way.)
What’s puzzling about this view is the idea of separating punishment from the law itself. Imagine a world with no penalties attached to any law. There are a million regulations and plenty of laws against theft, murder, fraud, drugs, prostitution, pornography, paying workers below a living wage, selling trans-fats, and so on, but absolutely no consequence for violating such laws. Would that even count as a legal system? It seems that there is no real meaning to a law apart from what consequence it entails.
But even if we could imagine such a thing, it doesn’t really make sense on its own terms. For example, you could imagine the following law:
It is illegal to preach a sermon on any day of the week besides Sunday, and anyone doing so will be imprisoned for 5 years.
By the above understanding, it would be fine to break this law, but it would not be fine to avoid the 5 years in prison.
But we can imagine this variant:
No one who preaches a sermon on any day of the week besides Sunday shall fail to submit to the police and reside in prison for 5 years thereafter. Anyone failing to abide by this will be imprisoned for 5 years.
Now, this is also an unjust law, and it has a penalty attached. And so, if you disobeyed the first, the second would get you since, for whatever reason, you can only dodge the first part of the law.
But then imagine the following two variants:
- No one who preaches a sermon on any day of the week besides Sunday shall fail to submit to the police and reside in prison for 5 years thereafter. There is no penalty for breaking this law.
- Harold Green must not resist being taken to prison for 5 years. The penalty for breaking this law is to be taken to prison for 5 years.
Now, in (a), we have the toothless law problem as above. You’re free to break the unjust law, and then, nothing happens. And in (b), you can apparently resist, but you also can’t resist. Or perhaps you get to resist once, but not twice. Or perhaps you can resist the initial arrest, but you can’t escape from prison. I’m not sure what the best reading would be, but the point is, it’s absurd no matter how you slice it.
Separating punishment from the law is to misunderstand what the law is. It’s an incoherent view that only serves to offer a rather poor version of protest to take place, as long as it’s not actually disruptive. In other words, go ahead and break laws you don’t like, as long as you agree to go to jail for it. And again, it means that there’s no way of distinguishing just from unjust laws in terms of how we treat them. The law is to treated as infallible at all times.
So, just briefly, these are the main failings of Subjectivism, and ones that show up in various ways in the LnO position.
- The Problem of Horrifying Laws – Any law, no matter its content, must be treated as valid and binding
- The Problem of Disagreements about Justice – There is no coherent account of what it is that people are disagreeing about when they debate laws
- The Problem of Arbitrariness – It is implausible to attach moral obligation to the arbitrary decisions of bureaucrats and politicians
- The Problem of Fallibility – It is implausible that one can believe that politicians are routinely wrong in their moral judgments and also believe that what they command is just
In Part 4, I will argue that LnO advocates generally reject Ethical Subjectivism in their daily lives and in their attitudes towards moral concerns and that they would more naturally be inclined towards some version of Moral Realism.