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.

Preponderance of evidence

I do formal epistemology, but I am no legal scholar, so this could be a complete misunderstanding. It is my understanding that in civil cases a preponderance of evidence standard is used on which the evidence needs to support the conclusion with a probability merely greater than 1/2. This seems ridiculous in cases where one is seeking compensation for damages that may or may not have occurred.

Suppose I run a business, and I treat my staff somewhat shabbily but not actionably. One day, hundreds of dollars worth of damage occurs in the server room. Review of blurry security camera footage, building security logs and other data proves beyond reasonable doubt the following facts:

• A thin stocking was put over the camera, hence the blur.

• There were five employees in the offices at the time, all of whom had a similar build and appearance: Alfred, Bill, Carl, David and Edgar.

• Three of the employees went to the bathroom and returned with buckets full of water which they poured over the servers.

• The other two employees did their best to stop the three, including calling 911 and heroically trying to block the door to the server room. As a result of the scuffle, everybody’s fingerprints are on the buckets and everybody is wet.

• Each employee claims with equal credibility that he was one of the two trying to stop the attack. Moreover, everybody claims to be unable to identify who the “other” employee trying to stop the attack is. The video footage shows a scene of such confusion that this inability to identify is unsurprising.

So, I fire all five employees and then sue each of the five individually for damages. I argue in the case of each employee that the evidence clearly yields a 3/5 probability that he was responsible for damage, and remind the court that 3/5 > 1/2.

But surely it would be a serious miscarriage of justice for all five to be held liable for damages that two of the five sought to prevent.

I wonder if cases like this get their force solely from the fact that the probabilities involved—namely, 3/5—are low, or if there is something else going on. Suppose I had a thousand employees, and 999 were damaging company property while one was trying to stop it. Should I be able to sue all 1000, correctly claiming a probability of 999/1000 of responsibility in each case, while knowing for sure that a judgment in my favor in all 1000 cases will place a severe financial burden on exactly one innocent person?

That is an uncomfortable conclusion, but perhaps we should bite the bullet and say that this is no different from a court knowing that over the run of many cases, there will be a small minority where innocents are burdened with grave burdens—and the risk of suffering such burdens is just part of the cost of membership in the society, much as being subject to the draft is.

But it seems much more uncomfortable to say something like this in the 3/5 case—or a 51/100 case—than in a 999/1000 case.

Naive intuition: The evidence needed should scale with the burden to the defendant in the case of a finding against them. Maybe the evidence requirements do thus scale in practice. Like I said, I am no legal scholar.

Civic and legal duties

Here is an example of a civic duty that isn't required by law: Be reasonably well informed as to what the law commands in your circumstances. In particular, someone who goes out of her way to avoid learning what the law requires of her in some circumstance is going against one of her civic duties even if in fact she does not go against the law. There is no general law requiring that one be reasonably well informed about the law, but the role obligations of being subject to the law include a duty to be well-informed.

This suggests an argument against divine command theory. It is one's moral duty to be well-informed about what God commands us. And this moral duty would be in place even if God in fact did not command us anything.

Here's another example. It is one's duty to do what one believes God to have commanded us, at least when doing so does not conflict with what God has in fact commanded us. Thus, if one believes that one has been commanded by God to refrain from eating beef, it is one's duty to abstain from beef even if God did not command it. Now, a divine command theorist might say that in fact God additionally commanded us to do what we think he has commanded us. But it is intuitive that even if God had not commanded us that, we would still be doing something morally wrong if we went against what we think are God's commands (at least assuming that God did not command us to act as we did).

Similarly, one is a bad citizen—one violates the duties incumbent on one as citizen—when one disobeys something that one incorrectly believes to be a just law.