I’m Listening

Legal theory distinguishes between acts that are malum in se, inherently evil, and those that are malum prohibitum, breaking the rules. For example, we do not believe that driving on the left side of the road is inherently evil (any more than the Brits think that driving on the right side of the road is inherently evil). We do believe that murder, rape, theft, are morally wrong.

The law is the minimum standard of morality. Laws aren’t limited to things that are malum prohibitum—we make laws regarding acts we regard as malum in se all of the time. We elect representatives according to a democratic process, they legislate morality, and the courts interpret the laws.

If you’ve got a better way of doing it, I’m listening.

My point here is that it isn’t the job of the courts to determine what is moral. It is the job of the courts to determine what is legal. It is the job of the legislatures to enact what we believe to be the minimally acceptable moral code into law. It’s not a perfect system but we don’t know of a way that’s better all of the time and over time.

24 comments… add one
  • Drew Link

    I’m not sure what prompted this seriously interesting query. Because it is. The query is a mind bender and Seriously interesting. I’m a bit short of time, and will come back later.

    But I want to throw out a bone. “They” say Roberts is writing the Obamacare opinion.


  • Roberts’s writing the Obamacare opinion is consistent with the Thursday announcement date. I’ve also suspected that he’s trying his darnedest to get more than a 5-4 split on at least parts of the ruling.

  • PD Shaw Link

    When seeing a man running down the street, Sir Thomas More is said to have been asked by his daughter to arrest him.
    “What for?”
    “He’s a bad man, father.”
    “Then let God arrest him.”

  • michael reynolds Link

    Laws are made, sometimes they are just and sometimes they are unjust. (The Nuremberg laws, the slave codes, Jim Crow, and a great many other examples.) Having bought into a system of laws does not buy us a free pass from morality. Law is the lesser and morality the greater, one serves the other. When law ceases to serve morality it loses its legitimacy. An immoral law is no law at all.

    It’s a complicated dance, of course, but my position is that there is no opt-out from basic human decency and morality. Legalize torture and you have an invalid law, not an excuse for torture. Legalize slavery and you have tyranny, no matter how democratically the law was passed, and no matter how often the legal authorities claim otherwise.

    And I believe those acting to enforce an immoral law are morally bankrupt and have no defense. That makes me exempt from jury duty, I suspect — I would absolutely act to nullify a drug possession charge, for example.

  • Having bought into a system of laws does not buy us a free pass from morality.

    Of course not. But the way to a more just, more moral society is by having more just, more moral citizens not by judges (who are miraculously more moral than anybody else) imposing perfect morality on us.

    Human rights can only be assured among a virtuous people. The general government can never be in danger of degenerating into a monarchy, an oligarchy, an aristocracy, or any despotic or oppresive form so long as there is any virtue in the body of the people. Only a virtuous people are capable of freedom. A nation as a society forms a moral person, and every member of it is personally responsible for his society.

    I think that some caution is warranted. Moral sense does not spring forth spontaneously from people like Athena from the brow of Zeus. For an individual to act in opposition to the law on the grounds that the law is immoral he or she must be properly informed not just have a vague inkling that something isn’t right. I think nowadays such formation is extremely rare. I think most people have devoted more time to planning their vacations than they have to considering what constitutes a moral life.

  • PD Shaw Link

    michael, my strong abhorrence to that line of thinking is that slavery was a moral good. As Justice Taney said in Dred Scott: “The Negro might justly and lawfully be reduced to slavery for his own benefit.” There was a fairly well-developed moral system that supported slavery. Or how about Justice Burger in 1986: “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

    If you want the Justices to be your priestcraft, you need to accept that they may impose a different morality on the country than one you support.

  • michael reynolds Link

    I think most people have devoted more time to planning their vacations than they have to considering what constitutes a moral life.

    I think that would be a pretty fair example of comic understatement. People want their morality off-the-rack, something they can buy at their church or from Oprah. (Puzzling over which is worse.) Or they want to pont to law and say, “Well, that’s all taken care of.”

    This is one of the reasons I agree with Ben Wolf that education cannot simply be about pursuing a career. It’s why liberal arts should not be a laugh line in a society run by lawyers and engineers. It’s very often the artists who lead the way in questioning prevailing morality — sometimes for the worse, but in many cases for the better.

    I don’t know how we get to a more virtuous population unless we make efforts to educate people on history, philosophy, literature and the rest. But a great deal more effort goes into brainwashing people into supporting this or that partisan power play, or into buying this or that product, or scaring them into this or that religion than goes into opening their minds or encouraging them to think.

  • michael reynolds Link


    But it was law that allowed slavery to exist, not morality. It was by law that people were bought and sold. And when morality began to shift, it was law that erected practical barriers.

    As I said: it’s a complex matter. It can’t be reduced to an engineering widget A goes into slot B formula. It’s a constant struggle. Justice is a goal not a position we take and hold.

    At risk of having some nincompoop yell “Godwin!” there were laws requiring people in Germany and other areas in Europe to surrender Jews to the Gestapo. And there were people who disobeyed those laws at terrible risk. The lawbreakers we now call the righteous among the nations, and the others we hold in contempt. There were laws requiring slaves to be returned to their “masters” and then there were people who disobeyed those laws. We raise statues and create monuments to that second group.

  • One thing I think is worth mentioning in this discussion is that there is nothing so obviously morally wrong that somebody, somewhere doesn’t have an objection to it being against the law.

    I once had the experience of serving on a jury of a trial for battery with somebody who was absolutely committed to the idea that battery was not a crime.

    I think the analogy should be to conscientious objectorship. It isn’t enough just to feel in your heart that something is wrong. You need to have demonstrated a commitment to the idea by belonging to a religious denomination in which that is a tenet of faith or something similar.

    If everyone, in the complete absence of formal education and training in moral and ethical thought, just follows his or her heart, it’s outlawry plain and simple. There is no law in that context.

  • michael reynolds Link

    I once had the experience of serving on a jury of a trial for battery with somebody who was absolutely committed to the idea that battery was not a crime.

    I hope you backed slowly away from this individual.

  • steve Link

    What do we do when the law is wrong?

    @Drew- If Roberts is writing it, I think it means a 5-4 decision against. 6-3 against, and I think he lets Kennedy write it, or he offers it to Kagan to make it 6-3, allowing her to write it as a narrow finding, leaving a back door for it pass as a tax.


  • What do we do when the law is wrong?

    I think there’s a more basic question: how do you know that the law is wrong?

  • PD Shaw Link

    michael, laws should be moral. My criticism is directed towards courts using their personal morality to impose their morality over the law.

  • Icepick Link

    michael, laws should be moral.

    So what’s the morality behind driving on the right side of the road?

  • TastyBits Link

    I once had the experience of serving on a jury of a trial for battery with somebody who was absolutely committed to the idea that battery was not a crime.

    Sometimes a beatdown is required.

    “Violence is usually not the best answer, but it is usually the most effective one.”

    “You can catch more flies with honey than with vinegar, but you can kill more with a flyswatter.”

  • TastyBits Link

    @Michael Reynolds

    For the working class, “history, philosophy, literature and the rest” are luxuries they cannot afford. These are the playthings of rich white guys.

    Much of what is taught is crap, and an original thought is a rare thing in the Liberal Arts. Philosophy, once the Queen, was thrown into the street after being gang raped, and she was replaced with a crack whore. Philosophy, once the anchor for the Liberal Arts, was cut loose, and now, the Liberal Arts drift aimlessly in the Sea of Academia. Put a crack head in charge, and listen to the pipe pontificate.

    “Livin’ La Vida Loca”
    – Ricky Martin

    has replaced

    “… the unexamined life is not worth living …”
    – Socrates

    Alice laughed. “There’s no use trying,” she said “one can’t believe impossible things.”

    “I daresay you haven’t had much practice,” said the Queen. “When I was your age, I always did it for half-an-hour a day. Why, sometimes I’ve believed as many as six impossible things before breakfast. …”

  • Ben Wolf Link

    “I think there’s a more basic question: how do you know that the law is wrong?”

    We’re confusing morality, which descends from religion and labels things good or bad, with ethics which comes from philosophy and determines right or wrong. I personally am totally amoral because I reject all religion as well as concepts of good and evil, but I determine something is wrong when it conflicts with my personal code of ethics and frankly place that code above and beyond the opinions of society. Individuals decide when a law is wrong and if motivated enough will work to convince others in an attempt to eventually overturn it.

  • We’re confusing morality, which descends from religion and labels things good or bad, with ethics which comes from philosophy and determines right or wrong.

    No, I understand the difference. This post took as its point of departure a comment over at OTB to the effect that putting a 14 year old who had committed murder in jail for life was immoral.

    I think the Court got it right; there should be discretion in this area.

    How does this relate? I cannot identify any system of ethics (other than Murray Burns’s “something to the left of ‘Yippee!'”) under which that would unconditionally be unethical. However, it could be deemed immoral.

    I think that all purely ethical systems are unsatisfying because they ultimately require an appeal to faith, i.e. they’re internally inconsistent. But that’s a subject for another post.

  • TastyBits:

    There is no “working class” in the United States. There are only income levels. There are guys in the highest income brackets whose father or grandfathers were farmers, day laborers, or had pushcarts on Maxwell Street. In a class system that would not be possible.

    In the U. S. it’s “ridin’ high in April, shot down in May.” Or it is as long as the technocrats don’t get their way. If they do, they and their kids will be in charge forever and ever, amen, because of their manifest excellence.

    Our present system is flawed because of cultural issues related to black African slavery. I think those should be dealth with but those problems don’t constitute a class system, either.

  • I have some somewhat contradictory views on this. On one hand, this is an area in which I have a strong libertarian streak – I’m generally skeptical of efforts to legislate morality or ethics outside of situations where harm is done to actual people. At the same time, however, I think community and self-determination is very important and I’m generally a “live and let live” kind of guy. So if people in some other state or locality want to adopt values that I personally object to, then I don’t really have a problem with that even if they go against my personal moral code. Who am I to dictate to them how they should live or organize their community? As long as it’s generally consistent with our constitutional framework I don’t really care.

    This brings me to what I perceive to be the growing influence of the federal government in people’s everyday lives. I find that trend problematic because it trumps community diversity and one-size-fits-all solutions don’t work well in a diverse nation both practically and morally. The perceived growing pushback against “government” is a result of that trend, IMO, as well as the growing influence of the SCOTUS decisions. As more aspects of people’s lives become subject to, regulated by, or influenced by federal law, especially controversial law, then the Supreme Court and its decisions will only grow more divisive.

    Unfortunately, there are a non-trivial number of people who actively support this and see the Court as a vehicle to cram their values or their version of what’s “best for America” down everyone’s throats, like it or not. I think it’s telling that strong partisans and those with very strong views on certain issues don’t really try to grow the consensus necessary for a constitutional amendment (as the suffragettes and temperance movement did) – instead it’s all about getting laws passed by whatever means necessary followed by validation through the courts (see, for example, the pro-choice movement’s constant efforts to defend Roe V. Wade). As long as advocates choose to settle divisive issues through court decisions, court packing and not more permanent means, then the courts will continue to be ground zero for these moral and ethical questions. I don’t see this changing anytime soon.

    Which brings me to:

    My point here is that it isn’t the job of the courts to determine what is moral. It is the job of the courts to determine what is legal. It is the job of the legislatures to enact what we believe to be the minimally acceptable moral code into law. It’s not a perfect system but we don’t know of a way that’s better all of the time and over time.

    To me it goes back to federalism and subsidiarity. If there isn’t national consensus on something then it seems to me we be skeptical before implementing nation-level solutions. I think we, as a nation, try to solve too many problems at the federal level. This top-down approach causes problems because many of those solutions aren’t based on a national consensus, but a temporary political advantage. The poster child for this is the PPACA which was passed by the barest majority using every gimmick in the book.

    In summary, I wish people would mind their own business more. If Texas wants to teach intelligence design, or if Alabama wants to restrict abortions, or if San Francisco wants to outlaw happy meals and allow gay marriage, then that should mostly be their business. I wish more people, especially the “me generation,” were cognizant that they are not the center of the universe and thus who are they to judge what’s best for a community they don’t live in?

  • BTW, Ben, your complaint is not a new one. Here’s Voltaire:

    Je vois venir de loin ces temps, ces jours sereins,
    Où la philosophie, éclairant les humains,
    Doit les conduire en paix aux pieds du commun maître;
    Le fanatisme affreux tremblera d’y paraître:
    On aura moins de dogme avec plus de vertu.

    Si quelqu’un d’un emploi veut être revêtu,
    Il n’ amènera plus deux témoins sa suite
    Jurer quelle est sa foi, mais quelle est sa conduite.

    A l’attrayante soeur d’un gros bénéficier
    Un amant huguenot pourra se marier;
    Des trésors de Lorette, amassés pour Marie,
    On verra l’indigence habillée et nourrie;
    Les enfants de Sara, que nous traitons de chiens,
    Mangeront du jambon fumé par des chrétiens.
    Le Turc, sans s’informer si l’iman lui pardonne,
    Chez l’abbé Tamponet ira boire en Sorbonne.
    Mes neveux souperont sans rancune et gaîment
    Avec les héritiers des frères Pompignan;
    Ils pourront pardonner à ce dur La Blétrie
    D’ avoir coupé trop tôt la trame de ma vie.
    Entre les beaux esprits on verra l’union:
    Mais qui pourra jamais souper avec Fréron?

    Rough translation:

    I see from afar that era coming, those happy days,
    When philosophy, enlightening humanity,
    Must lead them in peace to the feet of the common master;
    Frightful fanaticism will tremble to appear there:
    There will be less dogma with more virtue.

    If someone wants to assume an official position,
    He will no longer bring along two witnesses
    To testify to his beliefs; rather they will swear to his good conduct.

    A Huguenot lover will be able to marry
    The attractive sister of an important cleric;
    We will see poverty clothed and nourished
    With the treasures of the Loretto, amassed for Mary;
    The children of Sarah, whom we treat like dogs,
    Will eat ham that has been cured by Christians.
    The Turk, without asking whether the imam will pardon him,
    Will go drink with the abbé Tamponet at the Sorbonne.
    My nephews will dine gaily and with no ill will
    With the descendants of the Pompignan brothers;
    They will be able to pardon this harsh La Blétrie
    For having cut short the course of my life.
    We will see a reunion of the finest minds:
    But who will ever be able to bear dining with Fréron?

    However, unlike Voltaire and bolstered by the experience since he lived I think that for most people even well-educated people there is no substitute for a belief in eternal damnation for getting them to behave well. The commitment to study is just too daunting. We will never become Plato’s Republic.

  • TastyBits Link

    @Dave Schuler
    I was referencing a comment @Michael Reynolds made in a previous thread. He has lost touch with his “working class” roots, or that was what I understood him to mean.

    Working class, middle class, upper middle class,etc. are shorthand for the income brackets and the bennies from being part of them. Blue-collar and white-collar are usually understood to be synonymous with working and middle class.

    In the US, there was/is a class system in parts of the Deep South. Other areas of the country probably exhibit similar characteristics. In many of the older cities (Deep South), one enters upper society by birth. Marrying outside of this society is discouraged, but it does happen. The non-society spouse is never accepted as a full member of society, but the children will be full members. I think it has been weakened over the past twenty years, but if you can still there.

    The Garden District/Uptown New Orleans and Buckhead Atlanta are two examples. Both refer to physical locations, but they also are a social class. One can live in the area, but acceptance in the social class is by birth only. The question – “Who’s ya mama?” – is more than an inquiry about your mother’s name.

    This is not racially limited. There are black societal classes, and they operate the same as the white ones. The clubs and organizations are exclusive, and skin color is not important. To outsiders, this distinction is not understood. Skin color and societal acceptance are based upon one’s parents, and in black upper society, lighter skin is usually a characteristic of the members. The white clubs and organizations were not open to most whites.

    This is just a thumbnail sketch. It is a far more complex subject. NOTE: This has no reference to US slavery, Jim Crow, segregation, etc.

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    “The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

  • I grew up in a town with social classes—St. Louis. A St. Louisan can assess the social class of another St. Louisan in seconds. We joke about it. I taught my wife to do it and the other day she returned from a trip doing therapy dog work at a hospital, chortling at having successfully scoped out the class affiliation of a St. Louisan she met there. Perhaps I should have said “we have social classes but they’re not really significant”. A couple of hundred or even a couple of thousand people in a social register who turn up their noses at people who aren’t in the social register are mostly interesting to each other. When most people say “social class” they really mean “income level”.

    As I’ve mentioned from time to time my family was on the fringes of the upper class in St. Louis. We have some of the markers, e.g. descended from original settlers. However, the Depression and two consecutive generations of very early deaths by the male heads of the households pretty much put a kibosh on that. Lots of old contacts. No influence.

    New York, Boston, Philadelphia, San Francisco all have social classes. It’s not just a Southern thing. But the upper class is very, very small and generally pretty invisible. The other day I mentioned seeing a friend of mine who’s a prominent healthcare attorney. His family is part of the upper crust in Boston and San Francisco (there’s a lot of overlap).

  • TastyBits Link

    @Dave Schuler

    In the certain Deep South cities, upper society was a de facto aristocracy with real power, but over the past twenty to thirty years, there has been a breakdown and breakup. For the most part, these were the folks who ran things, and the majority of business (private and public) was conducted within the upper society clubs and organizations. Debutante Balls were/are not just a sweet sixteen party.

    Outside the Deep South, upper society was an outgrowth of the new money vs. old money. In the Deep South, movement among the classes was limited, and the influences were more strongly ingrained. Furthermore, it was understood by everybody. Those in the upper society were afforded more rights and privileges. This was a birthright, and it was accepted as part of the natural order.

    When the “slave class” was abolished, the system was fractured, and Jim Crow was one of the outcomes. The newly freed slaves were no more welcome into upper society than were the lower/working/middle “classes”, but the lower “classes” did not have this option. As you noted, this has not been dealt with.

    Slavery is more properly part of a caste system, but in my opinion, the emancipation did result in a separate class of people. Since there were laws enforcing segregation and prohibiting interracial marriage, an argument could be made that freed slaves were still a caste, and in this context, interracial marriage would carry the stigma of the Chandala.

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