Glitches in the moral law?

Human law is a blunt instrument. We often replace the thing that we actually care about by a proxy for it, because it makes the law easier to formulate, follow and/or enforce. Thus, to get a driver’s license, you need to pass a multiple choice test about the rules of the road. Nobody actually cares whether you can pass the test: what we care about is whether you know the rules of the road. But the law requires passing a test, not knowledge.

When a thing is replaced by (sometimes we say “operationalized by”) a proxy in law, sometimes the law can be practically “exploited”, i.e., it is possible to literally follow the law while defeating its purpose. Someone with good test-taking skills might be able to pass a driving rules test with minimal knowledge (I definitely had a feeling like that in regard to the test I took).

A multiple-choice test is not a terrible proxy for knowledge, but not great. Night is a very good proxy for times of significant natural darkness, but eclipses show it’s not a perfect proxy. In both cases, a law based on the proxy can be exploited and will in more or less rare cases have unfortunate consequences.

But whether a law can be practically exploited or not, pretty much any law involving a proxy will have unfortunate or even ridiculous consequences in far-out scenarios. For instance, suppose some jurisdiction defines chronological age as the difference in years between today’s date and the date of birth, and then has some legal right that kicks in at age 18. Then if a six-month-old travels to another stellar system at close to the speed of light, and returns as a toddler, but 18 years have elapsed on earth, they will have that the legal rights accruing to an 18-year-old. The difference in years between today’s date and the date of birth is only a proxy for the chronological age, but it is a practically nearly perfect proxy—as long as we don’t have near-light-speed travel.

If a law involves a proxy that does not match the reality we care about in too common or too easy to engineer circumstances, then that’s a problem. On the other hand, if the mismatch happens only in circumstances that the lawmaker knows for sure won’t actually happen, that’s not an imperfection in the law.

Now suppose that God is the lawmaker. By the above observations, it does not reflect badly on a lawmaker if a law involves a proxy that fails only in circumstances that the lawmaker knows for sure won’t happen. More generally, it does not reflect badly on a lawmaker if a law has unfortunate or ridiculous consequences in cases that the lawmaker knows for sure won’t happen. Our experience with human law suggests that such cases are difficult to avoid without making the law unwieldy. And while there is no great difficulty for God in making an unwieldy law, such a law would be hard for us to follow.

In a context where a law is instituted by God (whether by command, or by desire, or by the choice of a nature for a created person), we thus should not be surprised if the law “glitches” out in far-out scenarios. Such “glitches” are no more an imperfection than it is an imperfection of a helicopter that it can’t fly on the moon. This should put a significant limitation on the use of counterexamples in ethics (and likely epistemology) in contexts where we are allowing for the possibility of a divine institution normativity (say, divine command or theistic natural law).

One way that this “glitching” can be manifested is this. The moral law does not present itself to us as just as a random sequence of rules. Rather, it is an organized body, with more or less vague reasons for the rules. For instance “Do not murder” and “Do not torture” may come under a head of “Human life is sacred.” (Compare how US federal law has “titles” like “Title 17: Copyright” and “Title 52: Voting and Elections”, and presumably there are vague value-laden principles that go with the title, such as promoting progress with copyright and giving voice to people with voting.) In far-out scenarios, the rules may end up conflicting with their reasons. Thus, to many people “Do not murder” would not seem a good way to respect to respect the sacredness of human life in far-out cases where murdering an innocent person is the only way to save the human race from extinction. But suppose that God in instituting the law on murder knew for sure that there would never occur a situation where the only way to save the human race from extinction is murder. Then there would be no imperfection in making the moral law be “Do not murder.” Indeed, this would be arguably a better law than “Do not murder unless the extinction of humanity is at stake”, because the latter law is needlessly complex if the extinction of humanity will never be at stake in a potential murder.

Thus the theistic deontologist faced with the question of whether it would be right to murder if that were the only way to save the human race can say this: The law prohibits murder even in this case. But if this case was going to have a chance of happening, then God would likely have made a different law. Thus, there are two ways of interpreting the counterfactual question of what would happen if we were in this far-out situation. We can either keep fixed the moral law, and say that the murder would be wrong, or we can keep fixed God’s love of human life, and say that in that case God would likely have made a different law and so it wouldn’t be wrong.

We should, thus, avoid counterexamples in ethics that involve situations that we don’t expect to happen, unless our target is an ethical theory (Kantianism?) that can’t make the above move.

But what about counterexamples in ethics that involve rare situations that do not make a big overall difference (unlike the case of the extinction of the human race)? We might think that for the sake of making the moral law more usable by the limited beings governed by it, God could have good reason for making laws that in some situations conflict with the reasons for the laws, as long as these situations are not of great importance to the human species. (The case of murdering to prevent the extinction of the human race would be of great importance even if it were extremely rare!)

If this is right—and I rather wish it isn’t—then the method of counterexamples is even more limited.

Respecting conscience

One of the central insights of Western philosophy, beginning with Socrates, has been that few if any things are as bad for an individual as culpably doing wrong. It is better, we are told through much of the Western philosophical tradition, that it is better to suffer than do injustice.

Now, acting against one’s conscience is always wrong, and is almost always culpably wrong. For the most common case when doing something wrong isn’t culpable is that one is ignorant of the wrongness, but when one acts against one’s conscience one surely isn’t ignorant that one is acting against conscience, and that we ought follow our conscience is obvious.

That said, I think a qualification is plausible. Some wrongdoings are minor, and in those cases the harm to the wrongdoer may be minor as well. But in any case, to get someone to act against their conscience in a matter that according to their conscience is major is to do them grave harm, a harm not that different from death.

Now, the state, just like individuals, should ceteris paribus avoid causing grave harm. Hence, the state should generally avoid getting people to do things that violate their conscience in major matters.

The difficult case, however, is when people’s consciences are mistaken to such a degree that conscience requires them to do something that unjustly harms others. (A less problematic mistake is when conscience is mistaken to such a degree that conscience requires them to do something that’s permissible, but not wrong. In those cases, tolerance is clearly called for. We shouldn’t pressure vegetarians to eat animals even if their conscientious objection to eating animals happens to be mistaken.)

One might think that what I said earlier implies that in this difficult case the state should always allow people to follow their conscience, because after all it is worse to do wrong—and violating conscience is wrong—than to have wrong done to one. But that would be absurd and horrible—think of a racist murderer whose faulty conscience requires them to kill.

A number of considerations, however, keep one from reaching this absurd conclusion.

1. The harm of violating one’s conscience only happens to one if one willingly violates one’s conscience. If law enforcement physically prevents me from doing something that conscience requires from me, then I haven’t suffered the harm. Thus, interestingly, the consideration I sketched against violating one’s conscience does not apply when one is literally forced (fear of punishment, unless it is severe enough to suspend one’s freedom of will, does not actually force, but only incentives).

2. In cases where doing wrong and suffering wrong are of roughly the same order of magnitude, it is very intuitive that we should prevent the suffering of wrong rather than the doing of wrong. Imagine that Alice is drowning while at the same time Bob is getting ready to assassinate a politician, but we know for sure that Bob’s bullets have all been replaced with blanks. If our choice is whether to try to dissuade Bob from attempting murder or keep Alice from drowning, we should keep Alice from drowning, evne if on the Socratic view the harm to Bob from attempting murder will be greater than that to Alice from drowning. (I am assuming that in this case the two harms are nonetheless of something like the same order of magnitude.)

3. A reasonable optimism says that in most cases most people’s consciences are correct. Thus typically we would expect that most violators of a legitimate law will not be acting out of conscience—for a necessarily condition for the legitimacy of a law is that it does not conflict with a correct conscience. Thus, even if there is the rare murderer acting from mistaken conscience, most murderers act against conscience, and by incentivizing abstention from murder, in most cases the law helps people follow their conscience, and the small number of other cases can be tolerated as a side effect. Thus the considerations of conscience favor intolerant laws in such cases. Nonetheless, there are cases where most violators of a law would likely be acting from conscience. Thus, if we had a law requiring eating meat, we would expect that most of the violators would be conscientious. Similarly, a law against something—say, the wearing of certain clothes or symbols—that is rarely done except as a religious practice would likely be a law most violators of which would be conscientious.

4. When someone’s conscience mistakenly requires something that violates an objective moral rule, there is a two-fold benefit to that person from a law incentivizing following the moral rule. The law is a teacher, and the state’s disapproval may change one’s mind about the matter. And even if it a harm to one to violate conscience, it is also a harm to one to do something wrong even inculpably. Thus, the harm of violating conscience is somewhat offset by the benefit from not doing something else that is wrong.

5. In some cases the person of mistaken conscience will still do the wrong deed despite the law’s contrary incentive. In such a case, both the perpetrator and the victim may be slightly better off for the law. The victim has a dignitary benefit from the very fact that the state says that the harm was unlawful. That dignitary benefit may be a cold comfort if the victim suffered a grave harm, but it is still a benefit. And the perpetrator is slightly better off, because following one’s conscience against external pressure has an element of admirability even when the conscience is mistaken.

Nonetheless, there will be cases where these considerations do not suffice, and the law should be tolerant of mistaken conscience.

In a just defensive war, to refuse to fight to defend one’s fellow citizens without special reason (perhaps priests and doctors should not kill) is wrong. But a grave harm is done to a conscientious objector who is gotten to fight by legal incentives. Let’s think through the five considerations above. The first mainly applies to laws prohibiting a behavior rather than ones requiring a behavior. Short of brainwashing, it is impossible to make someone fight. (We could superglue their hands to a gun, and then administer electric shocks causing their fingers to spasm and fire a bullet, but that wouldn’t count as fighting.) The second applies somewhat: we do need to weigh the harms to innocent citizens from enemy invaders, harms that might be prevented if our conscientious objector fought. But note that there is something rather speculative about these harms. Someone who fights contrary to conscience is unlikely to be a very effective fighter, and it is far from clear that their military activity would actually prevent any actual harm to innocents. Now, regarding the third consideration, one can design a conscription law with an exemption that few who aren’t conscientious objectors would take advantage of. One way to do this is to require evidence of one’s conscience’s objection to fighting (e.g., prior membership in a pacifist organization). Another way is to impose non-combat duties on conscientious objectors that are as onerous and maybe as dangerous as combat would be. Regarding the fourth consideration, it seems unlikely that a typical conscientious objector’s objections to war would be changed by legal penalties. And the fifth seems a weak consideration in general. Putting all these together, we do not outweigh the prima facie considerations against pressuring conscientious objectors to act against their (mistaken) conscience from the harms in going against conscience.

Punishment and the law

Here’s a valid argument:

1. It is only permissible to punish a person for doing what is morally wrong.

2. It is permissible for the state to punish a person for disobeying law.

3. Therefore, disobeying law is morally wrong.

This is already an interesting and somewahat controversial conclusion. It pushes us to the view that when the law forbids something that is innately morally permissible—such as driving on the left side of the road—that thing becomes morally impermissible.

We can then continue arguing to another controversial conclusion:

4. It is not morally wrong to disobey unjust requirements.

5. Therefore, no unjust requirement is law.

I suppose all this focuses one’s attention on (1). The opposing view would be that it is permissible to punish a person for doing things that are legally wrong even when they are merely legally wrong. But this seems mistaken. A person who fulfills all moral imperatives is perfectly innocent. But it is wrong to punish a perfectly innocent person.

Note that the first argument implies that taking literally the idea of what some Catholic authors called “purely penal laws”, where there is no moral obligation to obey, just an obligation to pay the penalty if one is caught disobeying, is highly problematic. For if it’s penal, it imposes a punishment, and it’s wrong to impose a punishment for what isn’t wrong to do. That said, it may be that the idea of “purely penal laws” is just a misuse of the word “penal”. We can think of them as laws that simply impose a special fee applicable if one is caught disobeying, but that fee is not a punishment. We can imagine, for instance, a setup where there is a set fee for traveling by bus with a ticket and a larger fee for traveling without a ticket which is levied at random, namely when a ticket checker is present. (I remember that once in Poland buses had a sign detailing a with-ticket price and a without-ticket price, the second being an order of magnitude higher.) But it is a difficult question when something is a fee and when it is a punishment. This question famously came up for Obamacare.

More on attempted murder and attempted theft

In an old post, I observe the curious phenomenon that a typical attempted murder is not an attempt to murder and a typical attempted theft is not not attempt to steal. For one only attempts to do something that one intends to do. But that the killing or the taking in fact constitutes a murder or a theft is, in typical cases, irrelevant to the criminal’s ends. For instance, in typical cases of theft, if it were to turn out that the object is in fact abandoned property, the thief’s ends would be just as well served by taking the object. Hence, the thief’s end is to take the object, and whether the object is owned by someone, and hence whether the taking constitutes theft, is irrelevant to the thief’s ends, and hence is not intended.

I then attempted to come up with an account of “attempted M” for a broad spectrum of misdeeds M. The idea was that “M” is a thick and morally loaded description, such as “murder” or “theft”, while there is thin and morally unloaded description “N”, such as “killing” or “taking”. Then I suggested that:

1. An action is an attempted M if and only if the agent is trying for N in circumstances in which success at N would constitute M.

But I wasn’t happy with (1) in light of a weird counterexample of trying to shoot someone with a smart raygun that, unbeknownst to the shooter, only shoots people whom it is just to kill, and doing so in a case where the killing would in fact be unjust. This seems a clear case of attempted murder (only attempted, because the raygun recognized that the killing would be unjust and refused to fire). I said that the problem with (1) is that in these circumstances success at killing would not constitute murder, since the raygun would only succeed if the killing weren’t a case of murder.

My analysis of the counterexample needs a bit of work to spell out. The actual circumstances include two kinds of facts:

1. the facts in virtue of which killing the victim would be murder (the victim’s innocence, etc.), and

2. the fact that the raygun cannot be used to commit murder.

When we ask whether success at killing would constitute murder, we are asking a counterfactual question, and we now need to be clear on whether we keep fixed (a) and drop (b) or keep (b) fixed and drop (a). To have a counterexample to (1), we need to ensure that the right way to evaluate the counterfactual about success at killing involves fixing (b) and dropping (a). I think we can ensure this. We can presumably set things up so that the raygun refuses to commit murder at all nearby worlds, but at some nearby world the victim is an aggressor whom it is permissible to kill. But this should have been stated.

So, it does seem we have a counterexample to (1). One might attempt to fully subjectivize (1) as follows instead:

2. An action is an attempted M if and only if the agent is trying for N and believes that success at N would constitute M.

But this is mistaken. An SS officer might have convinced himself that the killing of innocents that he is attempting is not in fact a murder, but that doesn’t make it not be a murder (whether the convincing reduces culpability is a separate question).

I think what we actually want to do is keep the moral standards objective while subjectivizing everything else. Roughly, we want something like this:

3. An action is an attempted M if and only if the agent is trying for N and were the moral standards fixed as they actually are and were the rest of the circumstances as the agent believes them to be, then the success at N would constitute M.

I doubt this captures all the cases, but it makes some progress over (1) I think. I suspect that our concept of an attempted murder or an attempted theft is rather messy and gerrymandered.

Note that (3) does not fit with the legal doctrine of “impossible attempts” on which an attempt that “couldn’t succeed” doesn’t count. Thus, attempting to kill with magic spells does not legally count as attempted murder, even though (3) says it is attempted murder. In this case, I am inclined to just say that the legal doctrine is false to the phrase “attempted murder”, but there is good reason not to prosecute such impossible attempts (say, because doing so leads to prosecution of “thought crimes”). If we want to build in a doctrine of impossible attempts, we can add to (3) the claim that there is an epistemically nearby world where the circumstances other than moral standards are as the agent believes them to be, where the epistemic nearness is measured by the standards of a reasonable person rather than perhaps the agent.

Constructive presence

This morning, I was reading the Georgia Supreme Court’s Simpson v. State (1893) decision on a cross-state shooting, and loved this example, which is exactly the kind of example contemporary analytic philosophers like to give: "a burglary may be committed by inserting into a building a hook, or other contrivance, by means of which goods are withdrawn therefrom; and there can be no doubt that, under these circumstances, the burglar, in legal contemplation, enters the building."

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.

Riots and textualism

I keep on wondering about how it is that legislators seem to be completely oblivious to obvious counterexamples. Take the definition of a riot in Texas law:

For the purpose of this section, “riot” means the assemblage of seven or more persons resulting in conduct which: (1) creates an immediate danger of damage to property or injury to persons; (2) substantially obstructs law enforcement or other governmental functions or services; or (3) by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right.

Note some curious things. First, there is no restriction in (1) to unauthorized damage to property. Thus, a team of seven demolishing an old building or a party of seven friends eating up a pizza constitute a riot, no matter how sedately they go about their business.

Second, neither is there a restriction to reasonably expected danger to property or persons. Thus, it counts as a riot when seven people walk on an unsound bridge, even when they do not know the bridge to be unsound. Fortunately, in this case, although the definition of a riot is satisfied, such participation in a riot is not an offense, since according to the what comes later, it’s only an offense when one “knowingly participates in a riot”.

There are counterexamples to (2) as well. Thus, consider a team of seven building inspectors who inform a local government office that the office walls are full of black mold. As a result, the office closes for a week while relocating to a temporary location. The conduct of the building inspectors substantially obstructed “governmental functions or services”.

Maybe governments should have bug trackers for laws, aimed solely at cases where the law’s wording does not match the intent.

Or maybe this is just an argument for originalism over textualism in legislative interpretation. One assumes that the Texas legislature did not wish to criminalize the consumption of a meal by seven or more people, even if the plain sense of the words classifies such consumption as a riot. (Though there is a potentially tricky interpretive question in the “knowingly participates in a riot”. Is it enough to know that one’s conduct satisfies conditions (1), (2) or (3), or does one have to know explicitly that it satisfies the definition of a “riot”. A typical group of seven people eating a meal do know that the food they eat is property that is being destroyed, but unless they are lawyers or law geeks, they don’t know that the law classifies such destruction as a riot. Perhaps the legislature wished to outlaw meals had by seven or more lawyers or law geeks?)

Presumption of legal permissibility

A standard principle in the interpretation of Catholic canon law is the principle that restrictive laws are understood narrowly and permissive ones broadly: i.e., in case of ambiguity, we err on the side of freedom. I’ve wondered if this presumption in favor of freedom is just a principle internal to Catholic canon law or if it is part of the concept of law in general. The background for the question is a broadly natural law conception of positive law, on which not every piece of legislation counts as a law, but only those that satisfy the moral-bindingness conditions.

Here is an argument that the presumption for freedom is more general than for Catholic canon law: the presumption for freedom follows from Aquinas’s principle that in order to be binding, a law must be promulgated.

Promulgation means that the law is made available to the reasonable agent. But insofar as a restrictive law is ambiguous, to that extent it has not been made available to the reasonable agent, and hence thus far it has not been promulgated. Thus, ambiguity in a restrictive law yields freedom. What about a permissive law? Well, since positive law is fundamentally restrictive—everything is legally permitted unless it is expressely forbidden—a “permissive law” is really an exception against the background of a specific restrictive law. Thus, one might have a general restrictive law against civilians carrying spears, and later introduce a specific permissive law allowing it when invaders are nearby. In that case, it is reasonable to think of the two laws as forming a single restrictive unit: “Civilians shall not carry spears, unless invaders are nearby.” And then the the ambiguity-yields-freedom principle for restrictive laws implies that in cases of ambiguity in the permissive exception clause, we also have a presumption for freedom.

More on Bostock

In Bostock, the Supreme Court held that a refusal to hire, say, a man who is attracted to men is discrimination on the basis of sex if one wouldn’t refuse to hire a woman who is attracted to men.

The idea is that a rule is discriminatory if it precludes a man from doing something that a woman is permitted to do or vice versa.

This would have the curious consequence that various laws that seem on their face to be non-discriminatory would nonetheless be discriminatory. Here are three examples:

• Laws against perjury and against lying to law enforcement prohibit, in certain circumstances, a man from saying “I am a woman”, but do not prohibit, in the same circumstances, a woman from saying the very same words.

• Laws against incitement of violence will often prohibit a male speaker from yelling to a crowd: “If I am a man, go riot!” but will not prohibit a female speaker from yelling the very same words to the same crowd.

• Libel laws make me liable for asserting “Either colleague x is a plagiarist or I am a woman”, when I know x to be innocent, but do not make my female colleagues liable for saying the very same words under the same circumstances.

These cases show that it is quite difficult to define discrimination.

Bostock v. Clayton County

In Bostock, the Supreme Court ruled that hiring discrimination against a gay person is discrimination on the basis of sex, and hence forbidden, because one wouldn’t refuse to, say, hire a woman who is attracted to men, and hence to refuse to hire a man who has the same “trait”, namely being attracted to men, is discrimination on the grounds of his sex.

Here is a clear counterexample to this line of reasoning. Consider an employer who refuses to hire a man who claims in a job application to be a woman on the grounds that this man is a liar. (Suppose this is a man in every socially accepted sense of the word: he is biologically male, he socially identifies as a man in every context other than this interview, etc.) Such an employer would not refuse to hire a woman with the same “trait”, namely claiming to be a woman. Hence by the Bostock reasoning, the employer discriminates on the basis of sex. But this is absurd: the basis for the discrimination is not the sex of the prospective employee, but lying about one’s sex. Similarly, discrimination against a white person who claims to be African American on the grounds of a mismatch between their claims and reality is not discrimination against white people.

In other words, the basis for the discrimination is not the sex of the candidate but the relationships between the candidate’s actual sex and the candidate’s claimed sex.

And logically speaking, this is all very much like the gay case, where the basis for the discrimination is not the sex of the candidate but the relationship between the candidate’s sex and the sex of the persons the candidate is attracted to.

I am not claiming that it is morally wrong to be attracted to persons of the same sex in the way in which it is wrong to lie (or in any any other way, for that matter). Nor am I claiming that it is reasonable or legal for an employer to discriminate on the basis of such attraction. All I am claiming is that such discrimination is not discrimination on the basis of the candidate’s sex.

Objection: There is an important difference between the trait of being attracted to men and the trait of claiming to be a man. Being attracted to men is essentially the same trait whether it is found in a man or a woman, while claiming to be a man is radically different when it is found in a man and in a woman, since it is truth-telling in the one case and lying in the other.

Response: This response would require the court to settle the question whether indeed the trait of being attracted to men is basically the same trait when found in men and when found in women, in a way in which the trait of claiming to be a man is not the same trait when found in men and when found in women. That is perhaps the real philosophical question here, and it is presumably precisely what the employer in question would dispute. The court cites the example of how discriminating on the grounds of interracial marriage is racial discrimination. Now, here I would say that the trait of marrying a person of race R is the same trait whether found in a person of race R or not. But clarifying exactly what it means to be basically the same trait is very difficult.

Disclaimer: I am no lawyer or legal scholar, just a philosopher with an eye for counterexamples.

"For the common good"

Aquinas thinks that for something to be a law, it must be “for the common good” (in addition to satisfying other conditions). Otherwise, the legislation (as we might still call it) is not really a law, and does not morally require obedience except to avoid chaos.

But suppose we have a cynical view of legislative activity, thinking that many cases of legislation are imposed not in order to the further the common good but in order to get the legislators reelected. One may worry that even if such a piece of legislation happens to further the common good, it is not for the common good but for reelection, and hence is not a valid law on Aquinas’ criteria.

Here is a possible way out. We should limit our cynicism. Start with a multiplicity of different options here, perhaps importantly different: the legislator may think the law would be popular with their constituents; voting for the law may help the legislator get an alliance with other legislators that will help getting reelected; or, the legislation will secure a large campaign contribution from an interested party. The last is the most crass, of course. But even so, it is reasonable to think that in most cases the legislator thinks that their getting reelected serves the common good. There may be some cases of serious corruption or power pursuit where even this is gone, but in those cases we really should worry about the validity of the supposed law. But in many cases even when there is corruption, I expect the legislators think it is good for their country that they be in office.

This solution reads “for the common good” broadly. The having of the legislation need not be aimed at the common good, but it is enough if the passing of the legislation—or maybe just the legislator’s voting in favor of it—is aimed at the common good. One may worry that this is overbroad: that the content of the legislation has to serve the public good.

But that would be too strict a criterion. The common good is the common good of the relevant political entity, say a country. But international negotiation can result in treaties where two countries each pass a coordinated piece of legislation such that: (a) the content of each piece of legislation harms the citizens of the country it is passed in and benefits the citizens of the other country; but (b) the benefits outweigh the harms in such a way that the coordinated deal is for the common good of each country. In this case, it is not the content of the legislation that serves the good of the people governed by it, but the fact of there being such legislation serves their good, by getting the other country to pass the coordinated legislation. And this seems like it could be a perfectly legitimate case of valid legislation, assuming the harms are not of a kind that are morally impermissible (e.g., the legislation invidiously harming a vulnerable group).

In fact, the case of the legislator voting for a piece of legislation in order to get reelected is not very different from such international negotiation. In each case, the legislation as such may not directly serve the common good, but its promotion is nonetheless thought to lead to the common good. So it is important to read the “for the common good” criterion broadly. But if we read it this broadly, then apart from really serious cases of corruption or power madness, we have good reason to think that most of the legislation we are under in democratic societies is “for the common good”, unless it is clearly immoral (further discussion here would require separate analysis of the two ways legislation can be immoral: by requiring immoral action from one or by being an immoral imposition that doesn’t require immoral action from one).

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.

Laws violating religious freedom and conscience

This post is an oblique response to one of the lines of thought in a petition against Notre Dame University's lawsuit against the HHS contraception mandate.

If your religion or conscience (and on my view of conscience, the former is a special case of the latter if you sincerely accept the religious teachings) forbids you to obey a law, then the law violates your religious freedom or your freedom of conscience. (There is also a further question whether this violation is justified, and I won't address that question.) But the converse is not true. A law can violate your religious freedom, and maybe your freedom of conscience (that's a harder question), even if obedience is not forbidden by your religion or your conscience.

This is easiest shown by example. A paradigm example of a law violating religious freedom is a law prohibiting Christians from meeting to worship on Sunday under pain of death. But obedience to such a law need not go against the requirements of Christianity. Christianity does not require public Sunday worship when such worship seriously endangers innocent life, including one's own. Thus, there is no duty to get to Sunday worship if there is a hurricane, and to get to church one would have to leave the hurricane shelter one is in. Thus, a law that prohibited Christians from Sunday worship on pain of death would violate religious freedom without Christianity holding it to be wrong to obey the law. In case it's not clear that this law violates religious freedom, one can run this a fortiori argument. A law forbidding Sunday worship with a five dollar fine as a penalty would be wrong to obey according to Christianity, unless one is quite poor, and hence violates religious freedom. But if forbidding Sunday worship under pain of a five dollar fine violates religious freedom, a fortiori so does forbidding Sunday worship under pain of death.

For another example, consider a law explicitly prohibiting Jews from meeting to pray together on the Sabbath. It is my understanding that while rabbinical Judaism encourages meeting to pray together on the Sabbath, it does not require this (if I am wrong, just make it a hypothetical example). Thus, this would be a law that it is not wrong to obey, but it surely violates religious freedom.

In fact, one might even have a law that violates freedom of religion without requiring or forbidding the practitioners to do anything. For instance, consider a law requiring doctors who are not themselves Jehovah's Witnesses to forcibly administer blood transfusions to Jehovah's Witnesses when this is medically indicated, even when the Witness does not consent. Such a law violates the patient's freedom of religion, even though the patient is not being required or forbidden to do anything by the law. (The law may also violate the doctor's freedom of conscience.)

It is harder to see whether a law obedience to which does not violate conscience can violate freedom of conscience. There is a prima facie case for a negative answer: How can freedom of conscience be violated by something that doesn't require one to go against conscience?

But I think a case can be made that it is possible to violate freedom of conscience without requiring something contrary to conscience. The cases parallel the above two.

The case of Christian Sunday worship was one where something is required unless there are serious reasons to the contrary. Now, typical vegetarians do not think it is always wrong to eat meat. They would not, for instance, think that an Inuit child whose parents only make meat available to her in winter is morally required to refuse to eat it and thus starve to death. But now imagine a law put in place by the pork lobby that requires everyone to eat six ounces of pork daily, under penalty of death. If it is permissible to eat meat to preserve one's life, it would be permissible for the vegetarian to eat the pork. But surely there is something very much like violation of the vegetarian's freedom of conscience here.

The common thread between the Sunday worship and vegetarian cases is that these are situations where there is a strong duty to go against what the law says, but it is the law's penalty that provides a defeater for the law.

To parallel the case of rabbinical Jewish attitudes to Sabbath worship, consider a Kantian. Now, Kantians believe that there is an imperfect duty to help others, i.e., a duty where it is not specified to what degree and in what way one should help others. Imagine, then, a law that prohibited one from helping others except between 4:30 pm and 5:00 pm on Tuesdays. Such a law might not be such that Kantianism forbids one to obey it. But it is a law that surely in some important sense violates the Kantian's freedom of conscience, by forbidding that which her conscience very strongly encourages her to do, namely help people at other times, even if it does not specifically require it.

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.

HB 2454

I rarely comment on current politics.  Still, I want to say something here.  A bill has been proposed in the Texas Legislature to ban discrimination on the basis of Intelligent Design (ID) research at colleges.  To lay my cards on the table, I think it is still an open question whether the amount of time available for evolutionary processes was sufficient for the sort of complexities we observe to be at all likely to observe, and I suspect we are still quite some distance from having mathematical models of the development of anything with sufficient complexity to close the question.  So research on ID should, I think, continue.  And no doubt unjustified discrimination connected with research on ID exists.  But the bill is really embarrassing:

Sec. 51.979.  PROHIBITION OF DISCRIMINATION BASED ON RESEARCH RELATED TO INTELLIGENT DESIGN. An institution of higher education may not discriminate against or penalize in any manner, especially with regard to employment or academic support, a faculty member or student based on the faculty member's or student's conduct of research relating to the theory of intelligent design or other alternate theories of the origination and development of organisms.

Here are three reasons for embarrassment:

1. Theories of "the origination and development of organisms" concern not evolutionary theory as such but reproductive and developmental biology.  As a commenter here noted, an alternate theory in this realm is "storkism" (presumably the theory that human children come from storks rather than from human mating).  ID concerns something else, something more like the origination and development of types of organisms.
2. A French Department should be able to discriminate against a prospective faculty member whose primary research is on ID rather than French language, culture and/or literature.  Likewise, it is perfectly reasonable for a Biology Department that required students in a class to do laboratory research on the present functioning of red blood cells to discriminate against a student who, instead, did a research on ID.  Maybe an implicit exception for the bona fide requirements of a task can be assumed, but it would also take some of the teeth out of the bill.
3. Everyone, whatever they think of ID, should agree that it is reasonable for a college to deny tenure/promotion, refrain from hiring or giving a low grade on the basis of intellectually shoddy ID research.  Now, the bill either does or does not allow discrimination on the basis of shoddy ID research.  If it does not, then it is clearly unacceptable--it provides a delightful formula for tenure and promotion: do research on ID, and they have to promote you no matter how bad the research is, or else you sue.  Suppose, charitably, discrimination on the basis of shoddy ID research would stil be permissible.  But now the bill is close to useless.  For those scientists who are likely to discriminate on the basis of ID research also say that it is their professional judgment all ID research (or at least all ID-supportive research) is intellectually shoddy.  So if they can still discriminate on the basis of shoddiness of research, the bill does nothing to protect ID researchers.

Taxes, assertion and lying

Disclaimer: This post does not contain accounting, legal or tax advice, and I am not an accounting, legal or tax professional. Rather, it contains a reflection on ethics and philosophy of language.

Suppose that Sally is doing her Elbonian federal taxes, and she's decided that some of her genuine business expenses would be hard to document, and so she simply does not claim those expenses on her tax forms. Moreover, Sally has lost a portion of her revenue records. She remembers that Frank paid her some amount under $100, but she does not remember what that amount is. Rather than trying to figure out what the amount is, she simply writes down $100, which she knows is excessive. Each of these actions only increases Sally's tax liability, and no one, I think, would say that Sally has done anything dishonest. On the contrary, one might think that she was scrupulously honest in overestimating her liability. One might criticize her on other grounds—for instance if the Elbonian government uses some of the tax revenues for immoral purposes, one might believe that Elbonians have a moral duty to pay the minimum legally required. But even so, to overpay is not a failure in honesty.

However, Elbonian tax forms—like those of many other countries—require one to sign a statement like:

1. To the best of my knowledge and belief, the information given on this form is true, correct, and complete.

Taking (1) literally, it seems that Sally is lying when she signs (1). For she knows that her expense information is not complete and that her revenue information is not correct. But we do not judge Sally to have been dishonest, given the direction of the errors. (I am assuming that the Elbonians do not have some perverse tax system where they tax you on your expenses or lower your tax rate if you have greater income. In those cases, Sally is probably cheating.)

So what is going on? There are actually two problems. One is the problem of the apparently incorrect endorsement made by means of the signature and the other is the problem of the apparently false assertions made by inserting too low a number in an expenses box and too high a number in a revenue box. I think the problem related to the signature is derivative. Even if the Elbonians did not have to sign their tax returns, they would not be permitted to make false statements.

I shall also assume that the Elbonian courts and legislature have not expressly addressed this question. Moreover, I shall assume that Elbonian officials do not make use of the information for statistical purposes that affect policy—if they do, then the incorrect information may be dishonest because it may be important to figuring out economic policies to know the actual revenues and expenses of businesses, and not just over- and under-estimates, respectively. (In this latter way, I assume, Elbonia differs from most countries which, presumably, do use the data statistically.)

There are, I think, three ways to do justice to our intuitions (or at least my intuition) that Sally has not done anything dishonest:

A. The boxes on the form headed "revenues" and "expenses" should be understood, instead, as "amount at least as large as the revenues" and "amount not exceeding the expenses (or: expenses claimed)". This solution implies a significant departure from the ordinary meanings of the language throughout the tax form, since the same point can presumably be made about at least some other parts of the form.

B. We should in general understand questions in terms of salience to the questioner. I do not know how to flesh out the account here. The idea is that the Elbonian tax authorities don't care what your actual expenses and revenues were. They care about the respective contributions to your tax liability from your expenses and revenues, but they only care about it in one direction: they want to have from you numbers that do not underestimate your liabilities. (However, they probably want any such adjustments to be made within a category, to make it easier to verify. Instead of reporting $150 revenue and $50 expenses, one cannot honestly report $105 revenue and $5 expenses.) There should be some general theory of salience that would give this judgment. In effect, this is not very different from (A), but is supposed to be a part of a general theory. Another example of this is the following. Suppose that a policeman is looking for a killer named Mark Kowalski, whom he knows to be hiding in one of the houses in the neighborhood. He comes to your door and asks: "Do you have anybody named 'Mike Kowalski' in your house?" You know this policeman often mixes up the names "Mark" and "Mike", and you know he's looking for Mark Kowalski. Furthermore, you happen to have a guy named Mike Kowalski in your house. If you say "Yes" to the policeman, this will waste the policeman's time, and the real killer may get away. If you say "No" but explain, it will likewise give the real killer time to get away. It seems plausible that an appropriate salience criterion will say that the honest and right thing to say is: "No." I wish I knew how to formulate the criterion.

C. Perhaps the illocutionary act in this case is not simply assertion but something else. Maybe there is an illocutionary acts like assertion with error skewed in interlocutor's favor. In other words, ordinarily the criteria for the moral appropriateness of an assertion have simply to do with truth. But in some contexts, the criteria also specify something about the permissible direction of error. For instance, if I manufacture router bits and I print on the box that this bit becomes unsafe at 12,000 RPM, I have not broken the relevant norm even if the engineering department's best estimate was that the bit only becomes unsafe at 14,000 RPM, which number I lowered to decrease potential legal liabilities and to increase workplace safety. On the other hand, if I changed the number in the other direction even by a smaller amount, and said that the bit becomes unsafe at 14,500 RPM, I would have been dishonest. Maybe the relevant illocutionary act when giving safety information to the user is assertion with error skewed in favor of safety. We could try to modify the content of the assertion in these cases (approaches (A) and (B)), but this might be the best way of handling the cases. Maybe the policeman case in (B) can be handled in some such way: assertion with error skewed in favor of helping law enforcement.

If (C) is the right approach, this means that our moral prohibitions on lying need to generalize to illocutionary acts other than assertion. And once we've done that, maybe we could state some general moral rule that applies to all illocutionary acts, and that generates the prohibition on lying as a special case?

Unenforced laws

Consider the following argument:

1. (Premise) A law that is unjust is defective.
2. (Premise) A law that places a special burden on those who possess some virtue is unjust.
3. (Premise) An unenforced law places a special burden on the more law-abiding.
4. (Premise) Law-abidingness is a virtue.
5. Therefore, unenforced laws are unjust and defective.

Example of such a law: the laws, present in most states, that use tax must be paid on all purchases from out-of-state retailers, including Internet ones. (This law is a big nuisance, too. We have a notebook where we record every Internet purchase, and every year I need to add up all the purchases, and send a form and a check to the state.)

In regard to the argument, I am worried that "burden" is equivocal: in (3) it is only what one might call a de facto burden, in the sense that only the law-abiding feel the burden. However, perhaps, in (2) it should be a de jure burden—one that the law intentionally imposes. (None of this is technical legal terminology. I am no legal scholar. And probably I am just exposing my ignorance of philosophy of law here. But, I'm still having fun with the arguments?)

Still, maybe there is some way of making (2) and (3) be unequivocally true. Perhaps we can make (2) hold for de facto burdens. (Or at least if we qualify (2) and (5) with "apart from a really good justification for the difference of burden"?) While I think (2) is very plausible in the case of virtue, because I see virtue as part of the common good that the state should (cautiously) promote, I think there are parallel arguments one might make. For instance, if the legislators know, or ought to know, that local law enforcement officials will enforce some law only on minories, then perhaps the legislators are acting unjustly, barring a really good justification?

Here is a second argument against unenforced laws, based on my wife's affirming something like (7) after I told her about that Texas law which says that as soon as you make three private, non-commercial sales—e.g., selling one's kids' used toys on craigslist—in a given twelve month period, you thereby become a retailer, must obtain a sales tax permit, and must collect sales taxes starting with the third sale:

6. In a representative democracy, a law imposing a significant burden on people, which burden they do not already bear, should carry a significant political cost on the legislators for the sake of their accountability.
7. Unenforced laws, even ones imposing significant burdens, typically do not carry a significant political cost.
8. Therefore, unenforced laws that impose significant burdens fail a requirement of representative democracy.

I used to think there was nothing wrong with unenforced laws. I am still inclined to think that might be able to have unenforced laws against intrinsic wrongs, such as the breaking of private promises, because the burden of such laws is already in place by virtue of their moral normativity.

[Fixed a nasty typo in (1).]

Ridiculous laws

We are clearly not morally required to obey laws that tell us to do something immoral. But what about laws that, while not requiring anything immoral, nonetheless have ridiculous consequences?

Here is a fun Texas example. According to Chapter 1702.104 of the Texas Occupations Code:

(a) A person acts as an investigations company for the purposes of this chapter if the person:
(1) engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to: [...]
(D) the cause or responsibility for a fire, libel, loss, accident, damage, or injury to a person or to property; [...]

And according to 1702.101,

Unless the person holds a license as an investigations company, a person may not:
(1) act as an investigations company;
(2) offer to perform the services of an investigations company;

Consequence: Without a PI license, a historian may not apply for or accept a postdoc at a Texas university to work on a book on the causes of the Great Fire of Rome of 64AD.

Relativity theory, promises and promulgation of laws

In one earlier post, I suggested the principle the basic laws of morality, just like those of physics, should be reference frame invariant. In that post, I offered some examples of the application of this theory, albeit ones that were not of much interest. In a later post, I have offered an application of the principle to the abortion debate, but the principle did not really decide any issue, but simply deepened the discussion. But now I have what is to me a much more interesting pair of applications.

I promise you never to sit on your late wife's favorite bench which happens to be on my front lawn. I thus create an obligation for myself (an amazing power, isn't it, the power to create obligations?). A while later you release me from the promise. Your release destroys the obligation (so a part of my power of promising was a power to give you the power to make the obligation cease to obtain).

But when did these things happen? When did the obligation not to sit on the chair come into existence? When I promised I wouldn't, or only when the promise reached you? And when did the obligation cease? When you said you release me, or only when the release reached me? Of course, if we're speaking face to face, the question is only of theoretical interest—but, still, it is a genuine interest, I think. But what if you live four light-years away, and we speak by radio? Then, did I become bound when I made the promise, or only four years later, when you heard the promise? And did I become released when you uttered the words releasing me from the promise, or only four years later? In such a case, the question is not just of theoretical interest.

It turns out that there is a very natural way to decide this question when we apply invariance, assuming that making promises and releasing from them is a matter of basic laws of morality. Suppose that we said that the obligation comes to exist when you hear my promise. But then the law would not be invariant. For five minutes after I have sent my words to you over the radio, it will be true in some but not all reference frames that you have already received the message. So, it will depend on reference frame whether I may sit on the bench then or not. Invariance will be violated. (Note that it will not help much to say that what is relevant is my reference frame. For extended substances do not in general define a unique reference frame. Besides, if my reference frame matters so much then, absurd, I'll be able to affect when the obligation applies simply by running really fast in some direction or other.)

If, on the other hand, I say that the promise is binding on me as soon as I have made it, then this rule is invariant. For the rule, basically, says that the obligation obtains when I am in the forward light-cone of the promise-making, and this is a reference-frame invariant relationship.

One might think that just as I am bound as soon as I sent the promise, so too am I released as soon as you sent the release. But here things are quite the opposite. For if I were released as soon as you sent the release, invariance would be violated—for, we would have to ask, in which reference frame is the "as soon as" measured. But invariance will obtain if I specify that my obligation ceases as soon as the release gets to me.

So we have a pretty good argument, based on invariance, for when promises come to bind and when we are released from them. The obligations, as it were, exist at the site of the promiser, and hence come to exist when the promiser speaks, and cease to exist when the promisee's release arrives at the promiser. Of course, further questions can be asked—when is the exact moment of sending, for instance. But those questions, I think, do not concern the basic practice of promise making/keeping itself—maybe answers to those questions can be left to custom or the prudent legislator.

Here is a different application. When a legislature passes a law, when does the law become morally binding on me? (I don't care about the question when it becomes legally binding, since only moral normativity matters in the end.) When the law is passed? Or when the law is promulgated? Or when the promulgation arrives? Intuitively, it would seem unfair if I were bound as soon as the law were passed, since I would have no way of knowing about the law as soon as it were passed, and surely the law is to be a guide to my rational deliberation. I think Aquinas makes something like this argument. But it would be nice to have an argument without so much that is controversial. Well, that's easy. The rule that the law is binding morally on me when promulgated violates invariance (imagine that the law is one of the Galactic Empire, and there is no faster than light travel, so it can take years and years to reach me), since we would have to ask: "In which reference frame?" The same problem obtains for the question: "When the law is promulgated?" (e.g., when the legislature radios it out to the subjects). But "When the promulgation arrives to me" is invariant, since it is a question of my being bound.

Now there is a problem with this answer. Generally, it is taken that ignorance of the law is no excuse. So, it seems, I can be bound by laws that were never communicated to me. Three answers are available. The first is that the "ignorance" saying only applies to legal binding—morally, ignorance of positive law is a perfectly fine excuse. The second is to modify my initial formulation: I am bound at the first time at which it was reasonably possible for me to have found out about the legislation had I set my mind to it. This, too, is invariant. The third is to combine the first two answers. Certain basic laws, such as laws proclaiming the constitution of a new nation, only become morally binding when the subjects hear of them. As part of the proclamations of these laws, the subjects hear how and where they can find out about additional laws. But then further laws becoming binding when one can reasonably find out about them. This, too, is invariant.

In any case, the answer "When the legislator makes the law" is not a good one. So we have an argument for Aquinas' thesis that promulgation is essential to the bindingness of a law. Secret treaties do not bind those ignorant of them, at least not morally.

I think it's pretty cool that one can get such fairly specific answers to difficult normative questions simply out of relativity theory. I think one could probably also get similar answers if one had a causal theory of time (whether it was relativistic or not). And that is not a coincidence because I think the relativistic theory of time is, basically, a causal theory of time.

A puzzle about freedom and the law

I am no legal or political theorist, but here is a fun little puzzle, not unlikely old hat to everybody who knows anything about these things.

Suppose you want to gamble (as far as I know a morally permissible activity within due limits—if you disagree, substitute something else, like scratching one's back in public), and I (say, as a legislator) enact a law prohibiting you from gambling, without any good reason behind it except a gut feeling that gambling is a bit icky. It seems plausible that I have acted wrongly. I should not prohibit you from an activity because I have a gut feeling that it is a bit icky. But why have I acted wrongly?

An obvious thing to say is that I have take away some of your autonomy or freedom. But what autonomy or freedom have I taken away? (I will use the terms somewhat interchangeably, but the issues may be subtly different in the two cases.) Intuitively, I have taken away your freedom to choose whether to gamble or not, or else the freedom to choose to gamble. But not quite. For you can still gamble even if gambling is illegal. So it seems that what I've taken away is your freedom to choose whether to legally gamble or not, or else the freedom to gamble legally.

Indeed, you no longer have these freedoms, since it is now impossible for you to gamble legally (assuming you have no ability to legalize gambling). So you've lost a freedom. But you've also gained a freedom. For now you are free to choose whether to gamble illegally or not, and free to choose to gamble illegally. You've lost your autonomy vis-à-vis the decision whether to gamble legally, but you've gained autonomy vis-à-vis the decision whether to gamble illegally. You lose one and you gain one. So it seems that you are not the loser in respect of autonomy, and hence you can't complain.

But, perhaps, you will say that now if you gamble, you are liable to be punished by law, or at least by your conscience (if you think you should obey the law). Yes—now you have a new freedom, to choose to gamble and be punished or not to do either. You've lost the freedom to gamble without punishment, and have gained the freedom to gamble and be punished.

Perhaps, though, the problem is that without a sufficiently good reason (and "feels a bit icky" is not a good reason), I have no right to deprive you of a freedom even if you get a new freedom in exchange. When we talk of autonomy, we should not be consequentialists who simply try to maximize the sum total of human autonomy. Just as it is wrong to kill one innocent person while saving another, so, too, it is wrong for me without sufficient reason to deprive you of one freedom even while giving you another. But while there is much to this lesson, I am not sure this is the right lesson to draw from the story. For consider the opposite case. Suppose that gambling is illegal. I now completely legalize it. By doing so, I take away the autonomy of your choice whether to engage in illegal gambling. So I've taken away one of your freedoms, and given you another in exchange. It looks now like legalizing and illegalizing have the same kind of effect on total freedom—each takes one freedom away and gives another. If I say that it is wrong with insufficient reason to take away a freedom even if I give you another, then in a situation where gambling is illegal and nobody has any good considerations for or against gambling, I should keep it illegal. But I am not sure that's right. Should one keep a restrictive law that has no rational justification? That doesn't seem right.

So it doesn't seem that considerations of autonomy are the right way to think about what goes wrong when one makes an activity illegal without sufficient reason. Is there a better way? I think so. To make something illegal is for the state to exercise a certain authority. To make something legal is for the state to cease to exercise a certain authority. As long as the state holds people to a rule, the state is exercising authority in respect of that rule. To release people from that rule is not to exercise an authority, but to cease to exercise that authority. Hence there is an asymmetry in making something legal versus making it illegal: to make something legal is for the state to cease to act in a certain way, while to make something illegal is for the state to begin to act in a certain way. If so, then we would expect an asymmetry in justification—actions in general require stronger justification than non-actions—and hence it is easier to justify the state's making something previously illegal be legal than the other way around. Of course this asymmetry is an anti-consequentialist one—it is an asymmetry similar to that between contraception and abstinence, or between killing and not preventing death.