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7 Responses to “The Connection between Law and Morality”  

1. 1 Benjamin Nelson Jun 23rd, 2006 at 8:42 pm

   In the following I’m going to argue that the positivism-nonpos division breaks down into smaller, more manageable categories. What I will say is that a “principles alone” model seems attractively wrong; a positivistic “process alone” model seems unattractively right; and a threshold hybrid seems to deny us both attractiveness and correctness.

   The question of whether or not positivism or nonpos is correct seems to depend upon the source of legitimacy for law. The relevant contributing factors seem to be moral principles (i.e., utilitarianism, Kantianism) and social processes (i.e., social convention, sovereign dictate, natural law). We may hold one of three theses: a) that the law is legitimate as law from moral principles alone; b) we might say it arises from social processes alone; or c) we might say that it arises through a hybrid of principle with process. Positivism may be one (but not the only) “process alone” theory.

   For the moment, let’s assume that neither a) or c) are plausible, and so we should take a hybrid seriously. There are many different ways to produce a hybrid view. One way is to apply a threshold, as Hanno does, where after a certain degree of wrongfulness, we say “to hell with process, it’s time for principle alone”.

   The first objection to this view is the problem of moral diversity. People can simply disagree about moral issues, and we need some process for establishing civil and legal stability even when reasonable minds (or philosophies) differ. The counter-argument would be that reasonable minds often converge in moral matters - a Kantian reacts to torture just as a utilitarian would, as a Christian would, as a virtue ethicist would, etc etc. This counter-argument would be sound if the problem of intellectual hygeine were solved: that is, if moral authorities were immune to groupthink. But this optimistic view is given the lie by the mere fact that norms change, and sometimes, they change drastically. Example: the recent promulgation of utilitarian arguments given to justify torture of terror suspects in eleventh-hour scenarios shows that even this candidate for a unanimously evil act is validly (though not soundly) questioned by ostensibly reasonable people. Granted, this is not the mainstream view, but it is given serious mainstream attention, and all one must do to see my point is wonder whether or not there’d even be any question about the matter ten years ago. It just isn’t the case that reasonable minds always agree; and it’s even less so for the greater mob, which may desire (for example) vengeance over justice in some particular case, and whose consensus may be wrong.

   But even assuming a consensus of principles, we’d be faced with the paradoxical fact that we’re no longer appealing to just principles after some given threshold — rather, we’re dealing also with consensus, and thus, implicitly looking to consensus for legitimacy. That shows that our hybrid no longer genuinely says, “to hell with process, it’s time for principle”; rather, consensus is the process. The threshold model, so stated, would be incoherant.

   Perhaps, though, there is another way of justifying a threshold model by principles alone. In that case, a second question arises: why is it more advantageous to say that only extreme cases ought to be governed by principles alone? Why not use principles to govern everything? Presumably, because even if the correct principles were decided, the laws can be ambiguous, and extreme cases seem to imply a clear and unambiguous judgment where no interpretation is needed. But the appeal to clarity through a lack of need this takes us down that dark road that we’d just tried to escape from, since clarity is just consonance between speaker’s intentions and listener’s interpretive goals; and a lack of clarity indicates a lack of agreement between locutors.

   No doubt all this criticism is tiresome, but by process of elimination, I’d have to say that, assuming law is social science and not ethics means that a “process alone” model is what we default on, whether or not we find it attractive — at least, until a convincing hybrid can be fashioned. And in some ways, hybrids are unavoidable: our legal systems really are based on principles, after all. Perhaps the time will not be long off when we will have explained the matter in the best possible terms and made a “process only” notion obsolete.

2. 2 Hanno Kaiser Jun 26th, 2006 at 9:11 am

   I agree with Ben that a “process alone” view is (and should be) the default. For virtually all practical purposes, laws are valid if they are properly promulgated and socially effective. Large scale societies cannot rely on morality for their internal organization, because morality is both too controversial (in practice) and too absolute (in aspiration), and consequently, far more dangerous than even a legal system. In addition, predicability is an element of justice itself, which is why even a bad law retains its normative force. That said, history has taught us that legal systems without a “moral override” in instances of extreme - usually legislative - injustice perpetuate, not correct, such extreme injustice. Of course, a judge might recklessly exercise the “moral override” just to invalidate laws with which he or she does not agree, but in ordinary circumstances those instances of disobedience are dealt with by the appeals process and peer pressure among colleagues. My comment was triggered by the obvious struggle of (some of) the justices on the Arizona Supreme Court in the Arizona v. Berger case, who felt boxed in by the Supreme Court’s restrictive treatment of the proportionality requirement. In situations where the law’s commands, if executed to the letter, would bring about extreme injustice (as they did, in the Berger case), judges are called upon to exercise a “moral override” and to treat the underlying law as defective. Laws that don’t even purport to serve the idea of justice (but, as in the Berger case, amount to little more than righteous savagery) are invalid (Radbruch’s first category).

3. 3 Benjamin Nelson Jun 26th, 2006 at 11:21 am

   The focus of the argument is really, a) whether or not you demand that moral vetoing be derived out of some social process, and b) what the process is which you advocate to determine the criteria behind a “moral override”. If one’s answer to a) is “no”, we seem to be forced into an incoherant “threshold” model. If one’s answer to a) is “yes”, then the details of b) are of earnest importance.

   As you noted in the first post, we nowadays offer a genuine hybrid, where the principled ability to engage in “moral override” is understood conventionally, presumably by way of constitution or whathaveyou. But you seem to find this unsatisfying. I’m just wondering what options are left, and what options you have in mind.

   One interesting proposal is to treat common norms more seriously as a legislative tool. Back in the 30s, an article was written (title, IIRC, “Should unwritten laws be written?”; Virginia Law Review, I think) which noticed that juries will often be unable to reach a verdict because they think the law itself is defective. Naturally, the question arises as to whether or not juries should have the power to decide such a thing.

4. 4 Hanno Kaiser Jun 26th, 2006 at 2:03 pm

   Ben, to answer your questions, I agree that (a) the criteria for a “moral override” or any other moral position for that matter are “derived out of some social process.” Where else would those criteria come from? Divine inspiration or some sort of intuitionism (on the descriptivist side) or a mere appeal to individual emotions (on the non-descriptivist side) don’t seem to be particularly promising candidates. As to (b) “what the process is” by which I would arrive at criteria for a “moral override” is, of course, the key question of normative ethics. But that’s really not my point. My (different and more modest) point is that the legal system should recognize “moral override” as a legal category. In some sense, the legal system does that already: in the common law tradition as a result of the absorption of equity into the law, and in many civil law systems as a result of the constitutional mandate that the legal system serve law and justice. (E.g., in the German constitution, “Recht und Gesetz”). I am thus making my argument primarily from a participant’s point of view, not from an observer’s point of view. I am advocating for a view, in which judges are legally bound to follow the law, but only up to a point. Where that point lies is ultimately for the individual judge to decide, based on his or her system of moral beliefs. The difference to a “process only” view, as you call it, or positivist view, as I prefer, is that from a positivist point of view, a judge’s refusal to apply an extremely unjust law (assuming its constitutionality) is legal error and thus can only be understood as extra-legal, moral protest. From a non-positivist’s viewpoint, the judge’s “moral override” may be legal error, but that’s a legal question for the appellate courts to decide. This question is very much analogous to the legal treatment of jury nullification, where it is also subject to debate whether jury nullification is a legal or an extra-legal category. In my view, it is a legal category.

5. 5 Benjamin Nelson Jun 26th, 2006 at 11:40 pm

   I should say that what I meant by “process only” can apply to more than just positivistic accounts, since natural law may invoke a kind of “process”. The “process” accounts are a more general category than “positivism”.

   In a sense, it sounds like you’re advocating a kind of judicial activism. This is a position that is tenable, I think, because I would be a poor moral philosopher (and utilitarian) if I balked even at the chance to choose justice over mindless systematics.

   But my worry is, to what extent does the judge have latitude? I get the feeling that you would give them full greiving rights. Let’s imagine the details of such a system.

   A “veto” or “override” system would just be granting the judge sovereign powers, which I don’t think is too plausible — it is wrought with far too many unattractive consequences.

   Instead, let’s think of a moderate system, which would go something like this: the judge comes across a case where they find the law abhorrent, and they say, “I hereby recuse myself in the name of justice”, and that conscientious recusal would be legally recognized, noted, and perhaps even bring other auxiliary measures into play (a review system, etc).

   But we must ask: what are the consequences? The most immediate and obvious consequence is that the judge - ordinarily accountable to none (more or less) - is given the influence of a sovereign; and presumably, their dissenting opinion could be used in future cases for a variety of purposes. One of those purposes is that legislators may use conscientious recusals as a precedent by which modifications of the law may be performed. Another purpose would be, inevitably, the use of the opinion in order to defame the judge and rob them of their post. Another: judges simply obeying the whims of their egos, consequence-free, putting the legal system into chaos.

   In any case, there are a host of devils in the details. Unless an actual process is outlined for what happens after a conscientious dissent is made, and what qualifies as an “extreme case”, not much can be said.

6. 6 Hanno Kaiser Jun 28th, 2006 at 11:25 am

   Nothing in what I propose requires additional procedural devices. If a judge refuses to apply a law because he or she deems it extremely unjust, then the court of appeals will have to take up the issue, because the moral refusal still creates a legal event: the court’s decision. (In contrast, if the judge applies a law that he or she considers extremely unjust and then gives an interview in which he or she denounces the law as extremely unjust, the protest would be entirely moral in nature, without “disturbing” the law.)

   One practical consequence of the “moral override” appears in successor cases, where a new, constitutional regime has to deal with past injustice. If extremely unjust laws retain their quality as laws, then legal redress for past injustice requires the legislature to act. But that’s often impractical because (to name just one reason) particularly with respect to criminal laws, retroactive legislation is a serious problem for the new regime, seeking to replace the arbitrary exercise of power with the rule of law. In contrast, if extremely unjust laws are void ab initio, then the courts of the successor state can deal with the issue without having to involve the legislature. In other words, the philosophical difference between positivism and non-positivism has immediate institutional consequences.

7. 7 Benjamin Nelson Jun 28th, 2006 at 7:52 pm

   The taxpayer is only obligated to pay the salary of someone who is following their duty in some well-defined way. In order for the Judicial Override position to be taken, it would have to be shown that the “moral override” would be in line with the judge’s social duty, and not just their ideosyncratic whims.

   So — granting for the moment that the notion of a moral override may plausible under certain conditions — I can’t see how this could fail to involve extra procedures and also be considered to be minimally legitimate. To merely invoke principle without a concrete social process is to indicate that it is possible for the judge to rule by personal opinion alone. It would make the judge a sovereign.

   This will produce disastrous (and avoidable) results. Take any legal case where there is moral disagreement; barring further clarifications, we will have opened up the door to a system which may make the worst possible moral rulings without a hint of deterrence. Moreover, we will have alienated the citizen (made the ruling less socially efficacious) by potentially failing to provide citizens with the comforts of prior publication of principles (the publicity condition - an absolute bare standard of anything normative) or the sense that the ruling in fact has standing among the greater polity (proper promulgation).

   What I must emphasize is that the particular process of legitimation being advocated is what makes or breaks the proposal.

   For instance, I would be sympathetic to a case where both judge and jury were to disagree with the law, and where their disagreements were taken to be a reflection of some cultural norms that the majority of reasonable and informed citizens would agree with. To deter grandstanding, failure by the justice to properly anticipate the unwritten laws of the public would result in their expulsion from the court. That would seem legitimate to me.

   However, as I’ve indicated, many other forms seem implausible — especially if they do not conform to and derive from some concrete social process.

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