"I am further of opinion that it would be better for us to have [no laws] at all than to have them in so prodigious numbers as we have." ~ Michel de Montaigne
Law and Ethics: Unrelated
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Like all good STR articles, the recent one by Marcel Votluka got me thinking.
It got me thinking about what laws are, and what an ethic is when it's at home. Both purport to be about behavior--harmony between humans--so we expect them to coincide well and are surprised when they don't. However, I take the opposite view, and express surprise when they do. An examination of what they are will help show why.
A law is as we know a government rule, a decree handed down by people poised to punish those who disobey their will. That's its essence. Group G imposes itself on Group P, by means of laws.
Since Group P may be large and sometimes intelligent, Group G takes some trouble to placate members of P by stressing that chaos would result without laws, that laws are closely aligned with good ethics, and that G folk are in any case chosen by P folk in a fair manner, so there's no question of a dictator just imposing his whim. In addition, it's a frequent trick to invent a deity, whose word is not to be questioned, and establish a close link to it or him so that the lawmakers are seen as pals of the Almighty; hence the proximity of the National Cathedral to the White House, Parliament to Westminster Abbey, and all the multiplicity of appeals at the end of political speeches for God to Bless America, etc., the Reverend Wright excepted. Hence too those odious words from the other party, endorsing the first: "the powers that be are ordained of God" (Romans 13:1.) Here, we're reflecting on the second of those claims--that laws and ethics go together; but all four of them are dead wrong and, in fact, the imposition of laws actually creates chaos, rather than preventing it. But that second claim is bolstered by the fact that rape is ethically terrible and look!--there are laws against rape; theft is morally wicked and see!--there are laws against theft, etc.
Ethics (why are they always plural?) on the other hand are a bit harder to define. They have to do with an inherent sense of right and wrong, an inbuilt conscience that all humans possess, influenced by the very large background of tradition and culture that has evolved over at least 50,000 years following the great human move out of Africa to populate the Earth. We have to get along with each other, so we take care how we treat other people. Although seldom enunciated this way, ethics stem, it seems to me, from the simple principle "do unto others as you would have them do unto you," and that involves no governor, natural or supernatural--just rational self-interest. All of us hate having things stolen, so it's right and ethical not to steal; likewise physical hurt, assault, defrauding etc. In ethics, there is no retribution for violating one of those principles, except for one's severe loss of self-respect and of a good reputation; but those things are vastly more important than the suffocating r'gime of laws and penalties has made them seem.
In ethics, moreover, a bad act is a bad act even if nobody can become aware of it; for example, if it were possible to steal something with a 100% certainty of never being accused of breaking a law, it would still be a bad act. (Come to think of it, I've just described taxation.) This caught the notice of Roman thinkers, who called it malum in se--bad in itself--in contrast to malum prohibitum, which is "wrong" only because some law prohibits it. I'd say that mala prohibita aren't wrong at all, because once they are prohibited, the element of moral culpability is removed.
That brings up the key attribute of ethics--choice. We can be praised or blamed for something we do only to the extent that we could choose whether or not to do it; but if there is no choice, there can be neither blame nor praise and no moral content at all. You see a cop car right behind you, so you observe the 30 mph limit; is there any moral virtue in that action? I don't think so. There is no choice involved except to defy the cop and that is, in most cases, plain foolish. To drive with extra caution when there is risk of hurting someone is, on the other hand, ethical. Similarly with taxpaying; the idiot in the street sees it as "good" to pay them and "cheating" to "dodge" them; but if there is no choice about the matter, there can be no ethical merit either way; except that if one can avoid contributing to the mayhem they fund, while remaining at large, I'd say that achievement is as laudable as it is hard to do.
Okay, so those are the main differences between law and ethics. Laws come from outside and seek to codify ever more details of conduct, while ethics come from within and spring from an inherent moral sense, a rational desire to maximize one's own long-term self-respect. Now here's why law and ethics seldom coincide in practice.
1. Laws are made by people who are, for the most part, the very scum of the earth; if something they impose on society is ethically beneficial, therefore, the coincidence involved is considerable. They are drawn from those with an urge to dominate, who have quite often never done a day's work in their lives for customers or employers who are free to accept or decline their offer. They take their powers by force and deceit (any who compete with the R&D Party, for example, are deliberately hindered by obstacles especially erected for them) and draw their salaries and large expenses 100% from funds which are not only stolen, but stolen without possibility of recourse by the victim--and stolen sometimes (the US "income tax" for example) by absolute fraud since it's done without laws even having been written. They habitually and often make laws to enslave their subjects in a military force designed to kill their enemies, and habitually lie when questioned about the need for it; and they try to avoid being subject to their own rules whenever they can get away with it, as in the recent cases of Geithner, Killefer and Daschle. Instead of being benevolent, disinterested and morally upright, therefore, lawmakers are normally psychologically freakish, kleptocratic, mendacious, murderous, irrational and hypocritical.
2. Laws are by their nature wholly rigid, while ethical behavior is not. Life is full of uniquely puzzling situations--well suited to honest resolution attempts made on the basis of our broad nonaggression principle, but wholly unsuited to mindless adherence to pre-formed rules that could not possibly anticipate every circumstance. That's why laws multiply; a rule is made, then an exception arises and an exception rule is made, and then an exception to the exception, and so on until the shelf is full. Currently, alas, it still has room; even though those voting on new laws have no time to read them first.
3. Every law written carries punishment for breaking it, executed by the lawmaker's agents. Punishment is utterly futile. It has no corrective element (except in name, itself a sick joke) and no redeeming feature. The perp rots, the victim is uncompensated, a third party is forced to fund the farce. Therefore, as above, the mechanical operation of law and punishment excludes the possibility of moral choice; the name of the game is no longer "what should I do to maximize my wellbeing?" but "where's the nearest loophole," or "how can I get away with it?" and meantime the concept of what "justice" actually means is concealed.
4. Laws are, even at best, 100% surplus to what is needed for a society to be ethical; and a simple way to prove that is to take the case of murder. The intentional, non-defensive act of taking a human life is everywhere recognized as ethically repugnant. What purpose, therefore, is served by making it also a crime--by having a law forbidding it? In the (shockingly) improbable case that the perp is brought to trial, the outcome brings the victim (or rather his family and friends) no comfort beyond the savage and unhealthy one of satisfied vengeance. It also brings the aggressor an end to his life--either literally or, in case of permanent incarceration, to that of normal, useful existence; there is no possibility of reform. And again, society at large is the further victim, in that we are required to pay $30,000 a year to keep him in a cage. Such is law-based, government "justice" even in the best case, where law and ethics coincide most closely; such is the absolute contrast with what ethics would require (some compensation to the victims, at the perp's expense).
Would lawyers exist, in the free society which I anticipate a couple of decades hence? I suppose they may still be called "lawyers" out of habit, but no, since there will be no government, there will be no laws and since there will be no laws, there can be no lawyers to administer and enforce them. There will of course be disagreements in need of resolution, and today's lawyers will probably, after extensive re-education, take a part in that process; but I rather hope that they will get themselves another name. The French word for the profession, even today, is avocat and I favor its adoption here, with just the addition of a "d" after it begins and an "e" at the end. Someone to act as a skilled, articulate spokesman for each party in dispute before a free-market arbiter. Now, that would be useful. People would agree to pay money for it.
The ethical nonaggression principle springs from the axiom of self-ownership, which is an axiom because no alternative, rational possibility exists (if you don't own you, then who does, and how did he acquire title?). Being applicable to every human, the single limit on behavior is not to take decisions for someone that are, by that right of ownership, his alone to take. It's really simple to understand, and unless it's been suppressed by government in 12 years of youth indoctrination, I dare say that everyone understands it very well from early childhood. It is the true basis for ethical conduct and it suffices perfectly well for any interaction among human beings, even those that may at first seem morally ambiguous.
The difference, then, between law and ethics is so stark that we need not suppose they are related, or ever susceptible to divorce. In reality, they were never married.