10 January 2009

Comment Cavalcade (2): On Laws

Riffing off of more comments:
"Speeding" is immoral?

Is setting the speed limit unreasonably low so that all traffic is "speeding" in order to write more tickets immoral? After installing a red-light camera at an intersection the politicians and bureaucrats have been known to shorten the yellow cycle in order to raise more revenue from "violators" even though the shorter yellow cycle increases accidents. Is that moral?

What is immoral is creating a dangerous situation for others. If politicians and bureaucrats had a sense of shame it might be immoral to speed because the speed limit would be set and enforced solely for safety reasons. But that is not the case and it never will be.
I just can't agree that all laws deserve our deference. At least not at all times.
Of course, in the end, our legal system breaks down to "might makes right." So ignoring a law which should not exist can bring consequences.

That still doesn't make the law right. And, for some people, it still doesn't justify giving it deference.
Yes, speeding is immoral, it and all other laws are due deference, and we all give them deference (if for no other reason then we have to). The deference is, at its base, because we are the ones responsible for our laws. We vote our lawmakers into office. We either vote into office the judges who are the gatekeepers or we vote into office the people who choose the judges. Laws cannot be without, at the very least, the acquiescence of the majority of us. And, while the majority of a town may approve their council passing laws to create speed traps the town council can't do so unless allowed to do so by the county, the State, and the federal government (in other words, the rest of us voting citizens).

That does not mean that breaking a law is not justified if there is a superior moral claim. This can be a claim that the law is immoral, such as suffrage laws denying people the vote, or an individualized claim, such as speeding to get a dying person to the hospital. Laws can and should be challenged when perceived to be in error. However, if we choose not to give deference to the law at all, then there is no reason to follow it, except for the claim of enforcement by force.

Of course, there is always some level of force to law enforcement. A minority of people will violate the law of the majority whether it has a justifiable reason or not. Saying "Pretty-please with sugar on top, don't drive 65 mph in front of the elementary school while kids are there" isn't going to stop such people. The threat and actuality of enforcement will decrease the number of people violating a law. The question is whether enforcement and/or resistence to it is just/moral.

I don't think we can limit the morality of the law to approve only laws which "creat[e] a dangerous situation for others" unless we widen our definition of "dangerous situation." If we are limiting it to a proximate cause /immediately dangerous situation that ignores long-term needs and effects. Sometimes, other necessities mandate an enforceable law. For instance, were OPEC to embargo the US the speed limit might be lowered because of the necessity of reducing the demand for gasoline. There's no immediate danger to individuals. Nevertheless, there is a danger for great, long-term damage to society as a whole. That law is, IMO, just.

So then, where exactly are the lines for just/unjust laws and just/unjust violations? I'm not sure exactly. Some day I may sit down and write my magnum opus, The Unified CrimLaw Just Law Theory. It'll be one of those 200 page books which law profs praise, people put on their shelves to show their sophistication, and nobody reads. Until then we are all just going to have to muddle through. :-)

1 comment:

Flash Gordon said...

Your notion of morality in obedience to unjust laws would require that men be angels, or more accurately docile puppies that can be led around by the nose.

When the officials who make the laws are immoral and the majority of voters who elect them are casting votes without rational thought [See The Myth of the Rational Voter by Bryan Caplan] ordinary mortals must and will go about their business as best they are able.

If the traffic is going 40 mph where the speed limit is 30 but would be 40 if it were set according to traffic engineering standards rather than revenue raising goals, moving with the traffic is not only the moral thing to do, it is the safe thing to do.

Shortening the yellow cycle in order to get more camera violations is certainly an immoral act by the officials who do it. There is no moral question at all of the violator because he has been entrapped. Try as he might, if he is the first car in the line he cannot stop in time to obey the light. If justice were to prevail in this situation the officials who decreed the shortened yellow cycle would be prosecuted for every accident caused by the nefarious malfeasance.

If you are so worried about moral behavior I wish you would focus your attention where it is most needed: public officials who violate their trust with the people they work for.

I am not swayed by the argument that in a republic people get the government they deserve. Perhaps the majority who regularly vote scoundrels into office when they should be throwing them out do deserve the government they get. But I and a lot of other people are not in that majority and we don't deserve any of it.