Thursday, January 31, 2008

I have three political principals, which I think are arguably “Christian” but can also be translated into secular speak:

I believe in Natural Law, that is, that people have intuitive access to the true nature of right and wrong, and our laws and policies should be shaped by this intuition about this Law.

I believe the positive law (the laws actually written down by our legislatures and judges) is a teacher and shapes the souls of people, leading them toward what is good and bad, right and wrong, and so the law should be made with it's teaching role in mind.

I believe coercive force should be used in the restraining evil and protecting the innocent.


-Dave said...

I'm in general agreement, but I'd modify the second phrase to make it conditional - the law can guide us toward right or wrong.

I don't, however, believe that it always does so. The law-giver is at best a fellow pilgrim, and at worst a devil.

Kenny said...

Re, principle 2, law as teacher, I agree it can consist of devilry. But what I see there is that people take moral guidance from the law, which is why it's important to get it right. This is also one reason I reject laws and policies that are solely instrumental, or 'ends justify the means' laws.

-Dave said...

Okay. Makes sense.

Can you give me a good example of your "soley instrumental" laws and policies?

Kenny said...

Yeah, for example, pro-choice advocates will often argue that even if abortion were illegal, people would get abortions anyway, only they'd be unsafe abortions. Therefore, we should keep it legal.

This argument completely ignores whether the action itself is right or wrong, and simply argues about the result, and it's this kind of argument I reject as a justification for abortion, because, among other reasons, the law should teach what is right, not just be concerned about results.

More directly in your wheelhouse, this is also why I don't find purely "economic" arguments entirely persuasive. (I put "economic" in scare-quotes because I realize I'm using the word loosely here, and much more could be said about it). The concrete example that comes to mind is our past discussion over "price gouging." Now, I'm not necessarily saying that anti-price gouging legislation is a good idea, or that 'law as teacher' validates or invalidate such laws. But, what I'm saying is that because I consider the law a teacher of morality, to me there's more to the question of price gouging than 'what law is going to get the most widgets to a certain location most efficiently?' Also, I'm not saying this isn't a complicated question, nor am I saying "economics" isn't helpful, but I am saying that sometimes when an "economic" argument is put forward, I sometimes think the argument fails to recognize the law's role as a teacher of morality.

-Dave said...

We'll still butt heads on the price gouging thing, but that's because I frame it as "The law preventing people from getting the supplies they need in a disaster is bad."

I don't know that in this case it's better to suffer nobley than to be able to buy supplies at higher prices.

A similar example might be famine in Africa. If there is a famine, and 2X people will die of starvation, but only 1X will die if they can buy food at inflated prices, which is "right"?

If the ends never justify the means, then no action in which the initial step, thought, or impetus is the least bit adverse is ever justifiable (or so it seems to me). Would it be better for farmers to eat now, and not save food as seed for the following year?

It pushes the example, but the idea is that efficiency isn't just about an economist's love affair with maxima and minima. There is a sense in which it is good and proper to get as many resources to people as possible.

In a side-note. Would it be wrong to say that God ordering the Israelites to clear out the Promised Land killing every man, woman, and child that they might be able to expand and fill the land is a case of the ends (a safe place for the Israelites to expand, free of corrupting influences) justifying the means (genocide)? Why or why not?

kennyching said...

Don't understand me to be implying some kind of utopian 'ends never justify the means' principle, where the 'ends' don't matter. I think economics is very useful, and as you put it, "it is good and proper to get as many resources to people as possible," is something I see as part of the Natural Law. So I think Economics is one highly relevant way of determining what is good.

And, more specifically, I'm not even saying for certain that "price gouging" should or shouldn't be legal.

Still, what I am saying is that I want the economic argument to concede that there are other factors than efficiency, including some that can't be very well measured by economics.

For example, there's a famous legal case where three guys are lost at sea. It's clear they'll die of starvation, until two of them decide to canabilize the third guy, against his will. When they return home, charges of murder are brough against them, and they defend themselves saying 'it was necessary.' The court says, 'true, the situation was dire, but there are some cases in which dying is not the worst result,' and it convicted them of murder.

So, I'm not arguing here for or against specific policies like price gouging law. But, I'm simply saying that there's more at stake than the consequences of a policy, not that the consequences aren't relevant.

Regarding the Israelites genocide, the main thing for me is that God ordered it, which puts it in an entirely different category than the policy decisions we make today.

So, to me the fact that "law is a teacher" means that the "means" matter, too, but that's not to the denigration of the ends.

If you aren't agreeing with this, I'd flip the question around to you: what if slavery of a minority clearly lead to an overall increase in utility? Would that justify it? Of course not, I know you answer.

So, it's the inability of a consequentialist argument to draw any moral limits that is its primary flaw. Understanding the law as teacher is one way to properly consider consequentialist arguments.

This isn't to demonize economists. I think generally when an economist tells you 'well, actually such-and-such policy won't work b/c (fill in the blank)' that they should be listened to. But, as a grand unifying theory (as I believe many economists actually think it is), Econ doesn't adequately account for important things like morality.

Neither does law, for sure, and many legal theorists make a similar mistake, claiming that law can be separated from morality.

Anyway, Dave, I just want to point out that I'm not trying to start a controversy with you over economic analysis, unless your really disagree that the analysis of any given policy requires more than economics.

Rambling now...and now I'll stop.

-Dave said...

"So, to me the fact that "law is a teacher" means that the "means" matter, too, but that's not to the denigration of the ends."

I agree, wholeheartedly. Means, and ends, matter.

"I reject laws and policies that are solely instrumental"

I think I agree, but I'm struggling to flesh out what you mean. Every policy concievably has some end, some music for the instrument, so I have trouble coming up with something that's solely instrumental.

My main thought has been trying to come up with a corollary, or some sort of opposing statement to your three principles. Not to say that they are wrong, but to flesh out the answer to "to what degree?" To that end, #1 and #3 are pretty clear, but #2 has seemed more vague. Should the law dictate all of the minutae of my life, in order to guide me precisely along the proper path? What's the proper extent of this teaching role?

I only talk more about price gouging because of our previous exchange over it, and because having a concrete example where I have some idea where you are coming from, helps me to frame internally the point you're trying to make.

Confused? Me too.

kennyching said...

I think I misspoke by saying that I reject any law was “solely instrumental.” A better way to say that is I reject arguments and justifications for a law that are solely instrumental. And I was thinking of my earlier example of people who say “abortion should be legal because people will get abortions anyway.” The same is said about illicit drugs. But to me, in those cases “the ends don’t justify the means,” because as far as “law is teacher,” it shouldn’t be teaching that abortion and illicit drugs are okay.

I think there’s a principle of freedom and/or liberty that constrains how much law should “teach.” And, ironically, one way I can think of to phrase it is the way Libertarians do: “free to do as you like, so long as you don’t cause harm.”

I guess, however, the way I’m not a libertarian is that I give more weight and a broader definition to the “harm” part of that maxim than a libertarian would. So, to me, because “law is teacher,” if the law were to allow recreational drug use, there would be a “harm” simply in the fact that the law was teaching that such behavior was okay, regardless of other measurable “harms,” like crimes committed or whatnot.

I doubt that all the lines between law and liberty could be precisely fixed; but, in fixing them the best we can, I think it’s important to keep in mind that the law teaches morality, to some extent.

This is why with price-gouging, I see a moral element there that to some extent offsets the arguments about how to get the goods to a needy area. I’m not saying it necessarily outweighs the need to get the goods there, but it’s at least an off-setting element in that policy.

Also, I recognize that we don’t live in a utopia, and politics is inherently about compromise. If I won’t compromise, then I should probably go live with the Amish. So, I think it’s a complicated matter, best spoken to through proverbial wisdom like that in Ecclesiastes and Proverbs, as opposed to Kantian categorical imperatives.

Jeff said...

My two cents: law is based on the principles held dear by humans, which are, after all, fallible. Unless God Him/Herself is guiding the law (an absurd proposition), we cannot assume that the law is put in place to enforce the moral order God would want us to have.

I'm not confident that Congress or any local lawmaking body has a Godly grasp on law. So why, then, should we enforce our possibly wrong views of morality as law here on Earth?

I'm not saying that law can't be a force for moral guidance. I'm just saying that we ought to be very, very careful about it. Just because we think the Bible might say this or that is no reason to go pushing a bill through. It's best, generally, to let people sort out morality on their own.

Oh, and if law enforced (your view of) morality, wouldn't Christian missionaries be out of a job?

kennyching said...

Well, basically, I'd say that my answer to your question is that the First Amendment contains some of the best political ideas I can think of. So, I don't believe in establishment of religion.

One of the primary questions about Natural Law is 'if it exists, to what extent do we have access to it.' I recognize that our collective access to it as humans is limited, and so there has to be limits to how much we codify our morality in our laws.

So for me, the point of citing Natural Law is that it is appropriate and necessary to consult our moral intuitions, and that moral argument is an appropriate way to pursue law and policy. We're not always going to agree, due to our limited access to pure truth, but I still believe it's an appropriate route to take.

That's a non-controversial position at the popular level: for example, last night Sen. Obama said "We have a moral duty to provide health care," and no one really balks at this.

But, at the academic, theoretical level, appeals to Natural Law are highly controversial, and a minority of intellectuals believe it's a correct mode of argumentation.

So, my resort to Natural Law is important at the theoretical level, but it's not to say at the practical level I'm hoping to incorporate the Bible into the U.S. Code.

Ben said...

Okay, Kenny, here's another one for ya.

The reason I support, say, legalization of the drug trade - despite the horrors that currently-illegal drugs inflict on their users and the community - is based on a concept that I believe comes from Thomas Aquinas. That concept is that the law has limited ability to restrain the sin in human beings. (Not an uncontroversial concept for a Christian. See the book of Romans.)

Aquinas went on with a corollary - not only is the law limited in its ability to do bad things, but some times attempts to restrain sin lead to greater sin and evil. The law should restrain evil to the maximum extent possible, but at some point there is the possibility that - because of the factor of human sinfulness - attempts to restrain evil will lead to greater evil. Thus, we cannot dictate morality in every detail of people's private lives because of the very real danger that a government with that degree of power and control will abuse it. Thus, our attempt to restrain the evil of drug use has simply led to the greater evils of gangs, organized crime, corruption, etc. (while, incidentally, not making drugs all that inaccessible to anybody who really wants them).

So, I guess what I'm saying is there is some Christian basis for the idea of the an instrumental vision of the law. Not totally rejecting "law as teacher"....but I'm not sure I can reject law being solely instrumental (at times) either.

So, I think I've just made the waters muddier. Also, I think I've proven that I write long, confusing sentences as bad as those written by the apostle Paul. I've been reading Romans too much.

Anonymous said...

How about laws that regulate predatory lending? Seems to be that the law has a role as teacher here (ie it's not okay for businesses to practice legalized usury and charge customers 400% interest). But as we talked about last night, there might be all sorts of unintended consequences, which might make it better not to regulate too heavily even if they places are operating in a way that we find morally despicable.

kennyching said...

Ben, as much as I try to only be argumentative, at least when blogging, I think I agree with you.

The Law is a teacher + the law has limits.

So, maybe right now I should just admit that my "3 principles" are basically just the only things I can remember from Augustine and Aquinas. There might me 25 more principles, or there might be principles that undercut my principles.

But, this conversation has been helpful because I've discovered at least two more principles: 1) I believe in the First Amendment (hat tip, Jeff); 2) and I believe the has law has limits (hat tip, Dave/Ben) ... actually, it just now occurs to me that the First Amendment, is in part, a codification of the law having limits.

Ben said...

Strangely enough, as I sit here, I sort of thought about how the idea of "law as teacher" makes sense, too.

Let's take the example I harped upon - illegal drugs. Seem pretty clear to me that society frowns upon, say, crack cocaine use more than smoking tobacco or drinking alcohol. (In fact, if I thought about it, I could probably say that I, personally, frown upon crack use more than tobacco use.) Why? What's really the difference between putting one chemical in your body as opposed to another?

It seems to me that, because of certain drugs are illegal, that carries something like a moral weight.

Dunno if that means anything, but the thought occurred to me.

kennyching said...

Don't you also think that crack does much worse things to people than tobacco?

So, hopefully the law follows reality (morally condemning that which is actually morally worse).

Jeff said...

Indeed, the very reason we have a Constitution is to act as a check on the "law as teacher" idea, establishing limits to what the law can legally teach.

I note that in your response to me you bring up health care and how most people agree with Sen. Obama when he talks about our moral duty to provide it. Seems to me that there is a serious difference between two sorts of laws that act as moral teachers. The first, like health care, is government providing a community service for moral reasons. The second, such as the law against drugs, is government regulating personal behavior for moral reasons.

It's moral imperatives versus moral boundaries, and the difference, to me, is that the latter runs into problems in a pluralistic, liberal society (like ours) far more quickly than the former. We can all get behind a broad moral imperative but we'll bicker to high heaven over where we should set the boundaries. My thoughts are generally to set the boundaries as far back as plausible to prevent harm to unconsenting parties, while following the moral imperatives as far as we reasonably can.