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).

"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).

Pluralism in public life

Consider this formulation of the central problem of a pluralist democracy:

1. How to have a democracy where there is a broad plurality of sets of values?

Assuming realism about the correct set of values, this is roughly equivalent to:

2. How to have a democracy where most people are wrong in different ways about the values?

But when we think about (1) and (2), we are led to thinking about the problem in different ways. Formulation (1) leads us to think the problem is with the state, which should somehow accommodate itself to the plurality of values. Formulation (2) points us, however, to the idea that the problem is with the people (including perhaps ourselves) who have the wrong set of values.

My own view is that there is partial but incomplete realism about values. Specifically, there is such a thing as the correct set of values. But there is a legitimate plurality of rankings between the values, though even there not everything goes—some rankings violate human nature. As a result, the problem is both with us, in that most of us have the wrong set of values and have some prioritizations that violate human nature, and with the state which needs to accommodate a legitimate plurality of prioritizations.

Pascal's Wager at the social level

There is a discussion among political theorists on whether religious liberty should be taken as special, or just another aspect of some standard liberty like personal autonomy.

Here’s an interesting line of thought. If God exists, then religious liberty is extremely objectively important, indeed infinitely important. Now maybe a secular state should not presuppose that God exists. There are strong philosophical arguments on both sides, and while I think the ones on the side of theism are conclusive, that is a controversial claim. However, on the basis of the arguments, it seems that even a secular state should think that it is a very serious possibility that God exists, with a probability around 1/2. But if there is a probability around 1/2 that religious liberty is infinitely important, then the religious liberty is special.

Marriage and the state

There is a presumption against the state imposing or enforcing restrictions on people's behavior. That's why, for instance, the state does not enforce private promises where money doesn't change hands. Now, marriage has two primary normative effects:

1. Make sexual union permissible;
2. Impose a rich tapestry of duties that the spouses owe to one another.

Most Western jurisdictions do not have a legal prohibition of fornication, however, which makes the first of the two primary normative effects moot with respect to the state (though of course marriage still is needed for sexual union to be morally permissible, as I argue in One Body). In those jurisdictions that do not legally prohibit fornication, the primary legal effect of marriage is entirely restrictive. Hence, in those jurisdictions, there is a presumption against the state's recognition of any marriages at all. (One might argue that the state needs to license marriages in order to render sex morally permissible; but marriage in the moral sense does not require state involvement.)

In those jurisdictions where fornication is not a crime, I think it is helpful to start debate about things like same-sex marriage or polygamy with a presumption against state involvement in any marriages whatsoever, and then ask in what cases, if any, that default negative judgment can be overcome.

(For the record, I do think the presumption can be overcome in opposite-sex cases, because of the connection with procreation. But I am not arguing for this here.)

A puzzle about medicine and war

The following seem to be true:

1. It is never permissible for the state to force on a non-consenting innocent patient medical procedures very likely to cause death.
2. It is sometimes permissible for the state to force a non-consenting drafted soldier to go to near certain death in a just war.

In regard to (1), the state can legitimately force patients to undergo medical operations involving minimal risk and invasiveness, at least as long as the patients have no conscientious objection to them (a restriction that has an obvious military analogue): vaccinations are the standard example. This is very puzzling: Why the distinction?

Here is a suggestive hint. We can imagine circumstances where a war against a vicious enemy could only be won by an attack by non-consenting draftees even though it was morally certain that most of the draftees would be captured and horrendous medical experiments would be done on them by the enemy. Such an attack could well be permissible, even though much less extreme medical experiments could not be intentionally imposed on non-consenting patients even for an equal good (say, to defeat some awful disease). This suggests a difference between directly imposing harms and acting in a way that is morally certain to lead to the self-same harms. This is exactly the sort of difference that the Principle of Double Effect is sensitive to. Someone who thinks that foreseeing/intending differences do not matter is probably not going to be able to make the distinction between enforced medical procedures and the draft.

At the same time, the Principle of Double Effect does not seem sufficient to remove the puzzle concerning (1) and (2), since it doesn't really get at what it is that is so special about medical procedures likely to cause death as opposed to military operations likely to cause death. Probably another part of the puzzle has to do with the integrity of the body. But it's tricky: the importance of bodily integrity is not enough to make all enforced medicine wrong. It seems that the state can legitimately require procedures that are minimally invasive and minimally risky, but cannot legitimately require procedures that are minimally invasive but highly risky (think of injecting someone with a vaccine versus injecting someone with a fully functional virus).

Maybe it's like this: the fact that an intentional procedure directly transgresses bodily integrity typically calls for consent. But in at least some cases where someone's lack of consent is strongly irrational, that lack of consent can be overridden for a sufficiently good cause. But where the lack of consent is at least somewhat rational, the lack of consent cannot be overridden. When the risks are minimal, the lack of consent is strongly irrational, barring conscientious objection. But when the risks are high, lack of consent is at least somewhat rational. Medical procedures always transgress bodily integrity, so we get (1). On the other hand, commanding an attack likely to lead to death (or torture or being the victim of vicious medical experiments) does not transgress bodily integrity, and so a completely different set of standards for consent and authorization is in place. This is a mere sketch. I am not sure the details can be worked out.

Notice, also, that the account in the preceding paragraph does not apply to sexual cases. Even if someone's lack of consent to sex is strongly irrational (imagine a contrived case where a married person for completely irrational or even malicious reasons refuses to have sex with a spouse, despite the fact that great benefits would come to society from their having sex--perhaps a killer robot has been programmed by a mad scientist to stop its rampage only if they have sex), it is wrong for the state to force the person to have sex. Once again, sex is morally exceptional.

Gutting on Church authority

Gary Gutting has an interesting opinion piece where he argues that the Bishops don't have the right to define the teachings of the Catholic Church for the purposes of American political discussion, because most American Catholics disagree with them on matters like contraception.

Imagine the Tall Persons' Club, where by well-established and generations-old tradition, the executive council is made up of the three tallest members, and the president is the tallest member. I voluntarily join the Tall Persons' Club, because I love many of its traditionally established activities, such as the annual cleaning of the giraffe enclosure in the local zoo, the discounted tickets to basketball games and the spectacular fireworks on Robert Pershing Wadlow's birthday.

However, I believe that the governing structure is an unfortunate one, because I think (a) height does not correlate with intelligence, (b) a focus on absolute rather than group-relative height is unfair to some ethnic groups, and (c) we should also do more for ostrich conservation than the present leadership does. Moreover, many members are with me on this. But nonetheless, by voluntarily joining the club, I have given its three tallest members a certain right to speak on my behalf on club-related matters. This is particularly true if there are other clubs that engage in similar activities but have a governing structure closer to what I like.

There are a number of important disanalogies, of course. For instance, one might believe that membership in the Catholic Church is necessary for eternal salvation. If one believes that, then one will have a very serious reason to be a member of the Church no matter how much one disagrees with the Magisterium, and the voluntariness that was essential to my story about the Tall Persons' Club is decreased. However, I don't know of any Catholics who disagree with the Magisterium on contraception who think that membership in the Catholic Church is necessary for salvation.

Another disanalogy is that many people become members of the Catholic Church not by their own choice, but by infant baptism (which, as I think Augustine notes, emphasizes that salvation is not by works). However, given a pluralistic society like ours, they are at least typically remaining in the Church voluntarily.

What counts as "the opinion of a group" is a really tough question. But it certainly isn't determined by looking at what the majority believe. For instance, it is false to say that it is the opinion of the Music Department that the earth goes around the sun, though no doubt that is the opinion of the majority of the members of the Music Department. It is not the opinion of the Music Department because the Music Department has not come to this view by the established methods for forming a corporate view of a matter proper to the Music Department. So majority opinion is not a sufficient condition for group opinion. Nor is it a necessary condition for something to be the opinion of a group that the majority believe it, even in the case of an institution whose traditional governance is by simple majority vote. A group can come up with a joint compromise proposition, approved by a majority vote, where in fact no one individual in the group endorses the proposition in its entirety (whether it is ever morally licit to vote in favor of a group resolution to endorse a proposition one takes to be false is a different question).

(Also, the following rather interesting thing can happen in a group. There may be two groups with the same or almost the same membership but with different governance structures, and opinions, preferences and decisions will then be differently attributable to the two groups. For instance, there may be the Music Department as an academic department and the Music Department as a social group. Perhaps the Music Department as a social group likes a particular brand of beer, but that preference is not of the Music Department as an academic group unless they vote for it in a Department meeting. It could be that there is the Tall Persons' Club as such and the Tall Persons' Club as a majority-governed group of individuals. We should then say that ostrich protection is a goal of the second group but not of the first.)

Furthermore, those of us who at least in principle like the idea of constitutional democracies (or monarchies, for that matter--I am Canadian, after all) should not say that the authority of a group derives from synchronic endorsement by the members. For it is a crucial feature (and very important for protecting minorities) of a constitutional system that it persists in authority even when at a particular time the majority fail to respect that authority (in this way, it is like marriage; one also thinks of Ulysses tied to the mast). The military oath in the United States is, importantly, an oath to protect the Constitution, not the present preferences and choices of the American people.

But I am out of my depth in the social/political philosophy stuff.

Rawls and rationally intractable disagreement

Let me preface by saying I am not a political philosopher, and this may be off-base. Start by granting this claim for the sake of the argument:

1. The disagreement between comprehensive views is very long-standing and there is no progress to agreement, except when non-rational, coercive methods are applied to generate agreement or for other merely sociological reasons there happens to be cultural homogeneity.

(I don't know how to characterize merely sociological reasons.) Now consider two possible explanations of (1):

2. People's idiosyncratic or culturally-based preferences, as well as their presently-held comprehensive views, often significantly bias them in their disagreements between comprehensive views.
3. It is not possible to resolve the disagreement between comprehensive views by reason alone.

We now have at least three options: only (2) explains (1); only (3) explains (1); both (2) and (3) explain (1). How would we decide between these? Well, first observe that (2) is a truism. Moreover, (2) clearly is at least a part of the explanation of (1). So of the three options, the two that remain are:

• both (2) and (3) explain (1)
• (2) by itself explains (1)

I understand that it is important to Rawls' project that (3) be a part of the explanation of (1), because it is important to Rawls' project that (3) be true, and apparently the main evidence he adduces for (3) is that it explains (1).

But now the question whether (1) is explains by (2) and (3), or simply by (2), is to a significant degree an empirical question.

And there is an obvious experiment to test between these options. Take a bunch of intelligent and rational people without idiosyncratic and culturally-based preferences who do not adhere to any comprehensive views, and see if they come to agree to on a comprehensive view or against all of them--if they do, then (3) is not a part of an explanation of (1), and if they don't, then (3) is a part of an explanation of (1). And we cannot at present rule out the possibility that such an experiment would rule in favor of the hypothesis that (2) by itself explains (1).

But now note that this experiment is precisely the original situation of deliberation under the veil of ignorance. And note that we can say directly this. If it is an empirically open possibility that agreement on a comprehensive view or against all of them would arise in the original situation, then it seems to be an open possibility that the delegates would legislate in accordance with a comprehensive view or in ways that significantly impugn the freedom to follow comprehensive views. And that's unacceptable to Rawls.

Sound-bite version: Please don't infer that a debate would be unsettled in an idealized situation from the fact that it's unsettled in the real world.

But I probably don't know what I'm talking about.