Monday, September 13, 2021

Moral bindingness and levels of jurisdiction

In the US, you are sometimes told that something “violates federal law”, and it is said in a way that suggests that violating federal law is somehow particularly bad.

This raises a moral question. I will assume, contrary to philosophical anarchists, that valid and reasonable laws are in some way morally binding. Other things being equal, is it morally worse to violate the laws that operate at broader levels of organization. In the US, an affirmative answer would imply that federal law is morally worse to break than state law, and state law than county law, and county law than city law.

One might think this: the power to make laws belongs to more local levels of organization by delegation from broader levels of organization, and hence violating the laws of a more local jurisdiction is less morally bad. But this argument does not fit with what I understand is the US consitutional system’s idea that sovereignty starts with the states which permanently delegate some of their authority to the federal system. And, in any case, it is not clear why it would be less bad to go against the laws of a more delegated authority: if x delegates some authority to y, then relevant disobedience to y is also disobedience to x.

A perhaps more plausible argument in favor of the laws of broader jurisdictions being morally more strongly binding is that in violating a law, one offends against the body of citizens. With a broader jurisdiction, that body of citizens is larger, and hence the offense is worse. But this can’t be right. It is not morally less bad to commit federal tax fraud in Canada than in the US just because in Canada the population is smaller! (This observation perhaps suggests that if we do adopt the view that violating the law offends against the body of citizens, we should not view the “offense against the body of citizens” as meaning an offense against the citizens taken severally—to offend against a body is different from offending against the body’s constituents taken severally, or else punching a bigger person would be a worse thing than punching a smaller, just because the bigger person’s body has more cells. Or, perhaps, we have to say that the offensiveness of a law breaking is diluted among the citizenry, so that in a larger body, each citizen is less offended against.)

I want to suggest that the idea that it is worse to offend against broader jurisdictions is backwards for multiple reasons:

  1. An offense against a narrower jurisdiction is an offense against a body of citizens who are more closely related to one, and hence is a greater breach of the duties of civic friendship.

  2. The laws of narrower jurisdictions can be reasonably expected to be on the hwole better fitted to the community, because there is less variation in circumstance within a narrower jurisdiction.

  3. One has a greater say in the laws of the laws of the narrower jurisdiction, and hence they better fit with the autonomy of the governed.

  4. It is typically less burdensome to choose which narrower jurisdiction one lives under than which wider one: it is easier to move to a different city than to a different country. Therefore, any implied consent to local laws is greater than to wider laws.

These considerations suggest that offending against a narrower body is worse. Interestingly, (3) suggests that in my earlier example of tax fraud in the US and Canada, it is even worse to commit tax fraud in Canada, because doing so violates laws one has a greater say in. That actually sounds right to me, but I do not feel the difference in moral badness is a very big one, so (3) is probably not a major factor (of course, in the special case of tax fraud, a lot of the immorality comes from the immorality of lying, which precedes law).

(These same considerations support the principle of subsidiarity.)

So far I have been thinking about geographically defined jurisdictions. But consider a very different jurisdiction: the body of a profession, such as physicians or lawyers or electricians. The standards of such a body have a great deal of moral force. When a doctor says that disclosing some information about a patient violates medical ethics, that carries a great deal of moral force. And yet it really is “just” a violation of the law of a body, because there would be no such moral duty of confidentiality without the standards of the body of physicians (there would be more limited duties of confidentiality, say when the doctor specifically promised the patient not to disclose something). The laws of the professional jurisdictions have a lot of moral force, and it is not implausible that 1-4 are at least partly explanatory of that force.


Ibrahim Dagher said...

I think the reason people view breaking federal law as, in most cases, worse than breaking local laws is because it tends to be the case that we associate with federal law the more 'morally pertinent' areas of the law. Local laws are generally about public utilities, parks, roads. Federal laws tend to be about things that involve murder, activity that threatens human welfare (terrorism, cyberattacks, national security), or activity that hurts the government (fraud, tax evasion). As such, we make the general correlation that breaking federal law involves breaking some of the highest moral codes (or, at least the moral codes more important than those involved with local laws). Thus, we form the view that breaking federal law is generally worse than local law.

This is more of a psychological explanation than a philosophical explanation. And I think that is how to treat this topic: I doubt that many hold to the maxim that "any individual who breaks any federal law has done a more morally egregious act than any individual who breaks any local law.

Alexander R Pruss said...

In the US, murder is usually handled at the state level.

Maybe. But in a university setting, a lot of the time federal law gets invoked is for things of no greater intrinsic significance than a lot of the local stuff. To give one example, federal law enforces confidentiality requirements on student records, which while moderately important, in the end is less important than good roads.

Kenny Pearce said...

I always thought those warnings were just intended to frighten people. The federal government has massively greater law enforcement resources than any local jurisdiction, so the idea of getting 'the feds' after you is (supposed to be) scarier than offending against some law the local police, with their limited resources, enforce.