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.

State promotion of supernatural goods

Should a state promote supernatural goods like salvation? Here is a plausible argument, assuming the existence of supernatural goods:

1. Supernatural goods are good.

2. Any person or organization that can promote a good without detracting from any other good or promoting any bad should promote the good.

3. The state is an organization.

4. Thus, other things being equal, the state ought to promote supernatural goods when it can.

Here is a second one:

5. If a state can contribute to the innocent pleasure of someone (whether inside or outside the state) with no cost to anyone, it should.

6. Humans receiving supernatural goods gives the angels an innocent pleasure.

7. So, the state should promote human salvation when it can do so at no cost.

One might think that the above arguments show that we should have a theocracy. But there are two reasons why that does not follow.

First, it might be that the state is not an entity that can promote human salvation, or at least not one that can do so without cost to its primary defining tasks. This could be for reasons such as that any attempt by the state to promote supernatural goods is apt to misfire or that any state promotion of supernatural goods would have to come at the cost of natural goods (such as freedom or justice). I kind of suspect something of this sort is true, and hence that the conclusions of the arguments above are merely trivially true.

Second, and more interestingly to me, a theocratic view would hold that it is a part of the state’s special
duties of care towards its citizens that it promote their salvation. But the above arguments do not show that.

Indeed, the first argument applies to any organization, and I suspect the second one does as well. A chess club needs to promote salvation, other things being equal, perhaps every bit as much as the state. Free goods should always be promoted for all. (Worry: Am I too utilitarian here?)

Moreover, the state’s special defining duties of care are towards the state’s citizens. But it does not follow from the above arguments that the state has any special reason to promote the supernatural goods of its citizens. The arguments only show that the state, like any other organization, has a general duty to promote the supernatural goods of everyone (other things being equal).

Do we need Anarchist Islands?

Suppose that the right account of state authority requires the consent of the governed. A standard view is that this consent is presumed in virtue of the resident’s choice not to leave the territory of the state. This would have worked when world population was lower, and there were places where one could live close to the “state of nature”, with all the freedoms and costs entailed by that. But nowadays if someone is living in a democratic state, there really is no way to get significantly more freedoms: one can move to a different democratic state, which only provides an alternative with respect to relatively minor matters of detail, or one can move to an undemocratic state, where one only has fewer freedom.

I told a version the above story to two of my kids, and one of them suggested that in order to ensure the legitimacy of governments we need “Anarchist Islands”. (There was also the suggestion of settlements on Mars. But because Mars is so inhospitable, I think it is not possible to live in the “state of nature” there.)

I think it would be really interesting if it turned out that for a while we had legitimate goverments, but once unpopulated land disappeared, the legitimacy went with it, and now in order to ensure legitimacy, we need to sacrifice a significant amount of resources, leaving aside land to open the possibility of choosing not to live under a government.

All that said, I don’t agree with views on which the consent of the governed is essential.