Saturday, October 30, 2010

Morality and Legal Justice

Morality and Legal Justice

The two opposing viewpoints of how morality and legal justice relate are naturalism (essentialism), and legal positivism (voluntarism, 70) (see L2). It seems naturalism and essentialism should be two separate categories (resulting in three categories, two of which are both voluntarism: naturalism and legal positivism), but Nina Rosenstand, author of my ethics text (4), lumps them together. Naturalism in
 the context of this particular discussion is the viewpoint that the laws of society should reflect universal moral standards originating from God (voluntarism or essentialism, depending on which brand of naturalism), and/or are part of human nature (voluntarism by default, in that it commits the is-ought fallacy (12) of reification (70) (see Objection 2 in Appendix E) and so is not a discovered (71) truth, even if it is assumed to be—it is actually a mere construct, not of indifferent nature, but of human will. Legal positivism is the viewpoint that the laws of society should be based on a consensus of legislators, because there are no (easily agreed-upon) universal moral standards. [Aside: Some might argue that even if there are (easily agreed-upon) universal moral standards, it would be intolerant to force them upon people, and so favor legal positivism, because it is much more tolerant to (tongue in cheek) force upon people laws made by fallible legislators (see Objection 12 in Appendix E). Others feign loyalty to anarchism, thinking that humans should stop making baseless laws (at best, the base is impossible to know) and let nature take its course.] This paper is written from a naturalist (divine essentialism) viewpoint, that the laws of society, and how their violation is dealt with, should reflect universal moral standards both anchored in God (Golden Rule love, the fuel and destination—see Objection 16 in Appendix E) and resonating with human nature (intuition and reason), essentially the Golden Rule, which does not give more importance to the Other than to self (or vice versa), but acknowledges the value of both (loving yourself is assumed as good and to be applied to the self of the Other) (L1.3, L3).

A key issue in Ethics is who counts as self, and who counts as the Other. In the parable of the Good Samaritan, a person (neighbor) is one who helps the Other in need (to include the need of our healthy conscience, our moral sense, to be held responsible for our actions). The point of Jesus’ parable is that we should behave as such a neighbor, rather than distracting ourselves with the question of who is our neighbor. That is what it means to be fully human, and before holding the Other to that standard, we should focus on living it out. However, we can still try to answer the question of who to include in “Other” (65; Objection 19 in Appendix E). Any being with characteristics with which we can identify, even if we can't identify with all of their characteristics, is a being we should treat as self. The more characteristics they have with which we can identify, the more like "self" they will feel, whereas the more characteristics they have with which we cannot identify, the more like "Other" they will feel—but, if they have "any" characteristics with which we identify—they are to be treated with the Golden Rule. That isn't to say that our feeling determines self/Other—it is only to say that we are not obligated to the impossible [ought implies can (see note 84 and Objection 24 in Appendix E)]—we can only do the best with what we are able to do, as far as figuring out self/Other. If we recognize self-characteristics, but do not acknowledge them in Golden Rule behavior—that is bad faith (a term discussed in the “Why Ethics?” section and which we will discuss more in the section on Existentialism). That is what made it possible for Jesus to say, “Love your enemy,” and put the onus of “neighborliness” on the one acting. We are not motivated to be a good neighbor so that our own needs will be met [the Golden Rule does not follow the rules of game theory (78, and see Objection 14 in Appendix E)]—if that were our motivation, we would be practicing egoism, a type of spiritual isolationism, discussed later. The only motivation for love, is love—it is not a game of “tit for tat”. This should be kept in mind when making laws. If they run counter to our hunger (57) for Golden Rule love, rebellion is inevitable.

Not all laws are moral laws directly, like the traffic law that we stop at stop signs. But if we benefit from living among other humans, we ought to live according to the rules of that society, provided they do not conflict with universal moral standards. In such cases, we are duty-bound to violate them. As Martin Luther King, Jr., wrote, “One has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all,’” (19; written from a Birmingham jail after participating in a nonviolent protest). Note that legal positivism has no basis by which the true justness of a law may be determined. It is a great responsibility to make sure our laws (written or not) conform to discovered (71), unchanging Golden Rule love (God), and to rebel against them and (if possible) change them when they do not, whether they are made by those in power or the oppressed, majority or minority, friend or foe, acquaintance or stranger (L1.1). But, what if a just law is violated?...

A person should never be held responsible, for the sake of social utility (effectually treating the person as means to an end) (L1.1), for a crime they did not commit. However, holding someone responsible (or a group of people, family-size up to global-community) for their violation of or adherence to (just) laws respects their moral sense, as well as the moral sense of all affected by their violation or adherence, ultimately God (see Objection 12 and 20 in Appendix E). Moral indignation is a logical emotional reaction to an offense against moral sense; doing nothing to correct such an offense is morally wrong and leads to social deterioration of varying degrees. On holding violators accountable, Tim Keller writes, “There are many good reasons that we should want to confront wrongdoers. Wrongdoers have inflicted damage and … it costs something to fix the damage. We should confront wrongdoers—to wake them up to their real character, to move them to repair their relationships, or to at least constrain them and protect others from being harmed by them in the future. Notice, however, that all those reasons for confrontation are reasons of Golden Rule love. The best way to love them and the other potential victims around them is to confront them in the hope that they will repent, change, and make things right,” (2; 189-190). One could consider being held accountable for one’s actions a sort of right, but not a very fun one. If those in your life who were supposed to care about you, never cared how you acted—would you feel loved? That is why the strength of a society is the Godly family unit, and why its disintegration predicts the downfall of society. However, there are other less punitive universal rights…

The negative rights, for example, of life, liberty and property (which is the means of sustaining life and liberty) (“negative” rights because nothing is given that we do not already have—what we already have is simply protected), are discovered (71) when we acknowledge an intuitive awareness that every Other is a self, an end that values itself, not merely a means to an end (and that to treat them merely as means is criminal), and that “the limit of an individual’s liberty is the liberty of another person” (4; 277) [the view of Ayn Rand, which is a variation of the Golden Rule (see Objection 12 in Appendix E), though she would ironically disagree (see 59)—her contribution to egoism is discussed later]. Rand did not consider rights absolute: If you infringe on another’s rights, you forfeit your own. However, it could be argued that you do not forfeit your own absolute rights (to be treated according to the Golden Rule)—it is just that the rights of the Other cannot, in this case, be respected at the same time, and so the rights of the person or people upon whose rights you have infringed, take precedent, and the consequences you face would follow the Golden Rule. This is an application of the Greater Good, as opposed to the “lesser evil” or “third alternative” theories of moral conflict resolution, all three discussed at the end of the section, “The Sword and the Sacrifice Philosophy.”

The positive right of having our basic needs met by the Other when we are incapable of meeting them is discovered (71) when we acknowledge that, if we are incapable of meeting our own needs, we cannot enjoy our negative rights. This dialectic (58, 66) shows how granting negative and positive rights does not mean helping people who should be helping themselves, but only those who genuinely need help:

The Platinum-Golden Dialectic

Thesis: Give the Other what they want (over-simple Platinum Rule).
Antithesis: Give the Other what you want (over-simple Golden Rule).
Synthesis: Give the Other what a self in its right mind would want (essence of the Golden Rule, which includes the Platinum Rule). [ See Appendix G: Synthesizing Golden Rule Variations and Competing Ethical Theories. ]

A self in its right mind would not want to be helped (to take resources from the Other) when it should be helping itself (see Objection 8 in Appendix E). Also see L1.3, as this is a variation of it.

Tim Keller advocates a “band of brothers” (and sisters)—“a group of Christians who [have] a concern for justice in the world but who [ground] it in the nature of God rather than in their own subjective feelings,” (2; xiii). In another section he mentions a spiritual third way (the first two ways being traditional conservative and secular liberal) that is “much more concerned about the poor and social justice than Republicans have been, and at the same time much more concerned about upholding classic Christian moral and sexual ethics than Democrats have been,” (2; xx). With all this in mind, we move on to utilitarianism…

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