Morality and Law
Rick Garlikov

There are a number of issues about the relationship between morality and law in a (pluralistic, secular) democracy like the United States.  Among them are whether legislation should reflect moral principles, whether judges should interpret laws in light of moral values and principles, whether laws should enforce morality, whether laws are binding if they do not reflect moral principles, whether it is moral or not to disobey bad laws, and what gives law its authority. 

Sometimes morality is confused with religion and I have written about that elsewhere. But for purposes of this essay, it will not matter whether someone's moral principles are based on religious doctrine or commands or not. The important traits will be the soundness, and perceived soundness, of any moral principles, not their genesis. 

I am also not trying here to write a definitive work about all the issues involving the relationship between law and morality, nor to restate all the points others have already made about the issues I do address. Instead I hope to simply shed some additional light on aspects of the relationship between law and morality in a pluralistic democratic country with a secular government. 

Aspects of Law Not Based on Morality

First, as has been said by many people, some laws are managerial or administrative in that they institute behavior for procedural purposes that could equally well, from a moral or socially useful point of view, have been written in a different, or even opposite way. The common example is traffic rules about the side of the road on which one is to drive. Apart from consistency with bordering neighbors (especially for safety purposes of driving across borders and in neighboring countries), it does not matter from a moral standpoint which side a country (or a set of neighboring countries) adopts, as long as the choice is made among equally right (e.g., safe) options, though once a side is chosen by law, it is generally prudent, and morally obligatory without some good reason to the contrary to abide by the choice. These laws are not based on morality, in terms of their specifics. They are moral because they are a way of promoting social benefits of a certain kind in an optimal way. 

Second, some laws are immoral, usually because they are unfair but sometimes because they are counterproductive or harmful; in some cases, egregious and reprehensible. Many laws about Jews in Nazi Germany and many laws concerning women and blacks in early U.S. law were morally wrong. Many apartheid laws in South Africa were morally wrong. But there have also been government programs set up by law that simply mistakenly harmed the people they were intended to help, such as aspects of the welfare rules that ended up trapping people in poverty rather than assisting them to escape it. 

Laws, or a legal system with a lack of adequate laws, can also have wrong or immoral consequences even if the contents of particular laws are not unjust. For example, laws concerning evidence and procedure in courtrooms often lead to acquittals of obviously guilty defendants, and sometimes to convictions or continuing sentences and punishment of known or likely innocent ones. There is no reason to believe that just because a law passes, it is for the best or that it is right or moral, even if the people passing it think it is. If one were to be charitable about legislators, one might perhaps be able to argue that they pass those laws they believe to be right, whether those laws actually are right or not, but I think there is sufficient evidence legislators will often pass laws for political reasons -- to win or keep political support from those whom the law favors or to whom it panders -- even though they know the laws are bad or wrong. Either way, however, sometimes bad or immoral laws get passed which are perfectly legal. 

Third, not all morality is enshrined in law because law is in a sense "incomplete". Many unfair and wrong business practices are not anticipated and therefore not made illegal until someone invents and uses them in a way that clearly mistreats others. These practices are wrong and immoral from inception, but not illegal until law "catches up" to them. In a sense morality is "complete" and applies to all acts, but the law typically is "incomplete" and only applies to behaviors legislation has already addressed, or that the courts can interpret to have been addressed by implication in existing law. Law has to be "invented" or manufactured; morality only has to be recognized. And in the creating of specific laws with specific wording, loopholes creep in because it is difficult to predetermine and specify those and only those acts intended to be covered. Morality does not have loopholes. It is probably impossible to make a complete set of laws that anticipate, enumerate, fully describe, and forbid every possible specific wrong behavior. 

It might be possible to have general legal principles that distinguish all behaviors that should be legal from those which should not, in the same, or similar, way that correct general moral principles might distinguish between all morally right and all morally wrong acts, but it is not likely that either moral principles or legal principles can lead to a complete and specific (predetermined) enumeration of each and every right act in every circumstance. 

Fourth, not all morality should be enshrined in law, because enforcing some morality would be far worse than not enforcing it. For example, even if it might be wrong for someone to lie in bed an extra half hour rather than having a good breakfast or getting to work on time, or even if is wrong for a child or husband to leave dirty clothes on the bed or floor, or even if it is wrong to break a prom date at the last minute for no good reason, those transgressions are not grounds for sending in the police. Liberty and autonomy are important values and they sometimes require letting someone make a mistake or do the wrong thing -- as long as the wrong that is done is not so bad or so costly that civil society has a legitimate interest to prevent it. There are sometimes disagreements about where the line should be drawn, but there are clearly some actions where autonomy is more important than being forced to do what is right by law, and there are clearly some actions where prevention of harm overrides autonomy and liberty. While society has a legitimate right to enforce morality in preventing great harm (or cost), it need not, and should not, make everyone do the right thing all the time. In cases where autonomy overrides prevention of wrongdoing, the law should not require people to do what they ought to. While it is wrong for people not to do what is right, it is worse or "more wrong" for the law to get involved in those situations where either autonomy and privacy are more important than enforcing right behaviors, or in those cases where police or other government agencies will make things even worse by trying to enforce right behaviors. 

There are some cases where even if a moral breach is bad for society, the social costs of trying to enforce morality in such cases would be worse than even the bad breach. Hence, martial law is not the sort of thing democratic societies generally tend to have, even if it would make streets safer; wire taps are not permitted for just any speculative purpose; confessions cannot be coerced; and guilt must be proved by the prosecution beyond reasonable doubt, even if guilty people sometimes go free, because we have made the decision that it is better to free the guilty in cases difficult to prove reasonably than to risk convicting the innocent. Again, people disagree about whether the social costs of enforcement of some potential moral breaches are worth it or not, but a guiding principle seems to be that the law should not try to enforce moral principles where the enforcement efforts are (seriously) worse than the breach of principles would be, even when the original infraction itself is seriously bad. 

Fifth, people disagree about moral issues. People also sometimes disagree about which laws should be created or kept, sometimes on moral grounds, sometimes on merely prudential or practical grounds where different consequences are predicted. When moral viewpoints conflict or are contradictory, law, unless it is to be contradictory itself, cannot reflect the morality of different people. Moreover in the United States, Constitutional rights will sometimes even prevent law from conforming to the wishes of a simple (even substantial) majority of people or their representatives. How can laws conform to morality when people disagree about what is morally right or wrong, or when their collective wishes are "thwarted" by the Constitution and by whatever minority is sufficient to prevent amending the Constitution? 

This is sometimes stated as "morality is subjective." But disagreement can be about objective matters as well as subjective ones, when it is difficult or impossible to know or conclusively demonstrate the correct answer. Disagreement, even unresolvable disagreement, does not necessarily make an issue subjective. I will say more about this later. 

Sixth, a special case of the above is that it is often normal for people to believe that the status quo and traditional practices are what is morally right. It often is very difficult, especially for those who benefit from current practice, to notice or see there is something wrong with it, let alone agree with that assessment. Hence, they tend to see efforts for reform as unnecessary, destructive of a well-functioning system and social order, or even morally wrong. It is one view of law that it tends to favor existing power structures and relationships, not necessarily or not only through some sort of Machiavellian attempt to maintain power through evil means, but because existing systems seem to work well (enough) and because they seem psychologically to be normal and reasonable, especially to those in power. 

But Still...

Nevertheless, in spite of all the above, there seems to be some relationship between law and morality, or at least it seems there ought to be because we talk about unfair or unjust laws, laws that are immoral, laws that ought not to be obeyed or enforced; and we typically do not mean just that they are unconstitutional, but that they are counterproductive to their intended purpose or that they are bad or harmful or morally unfair or unjust laws. 

We also deliberate about what the law ought to be and about which laws ought to be written, which bills passed or amended, and we believe that it matters that we try to get it right, not that any law will do as well as any other or that it does not matter what the law is. We say "there ought to be a law" about some behaviors that we think are wrong to permit. Law does not seem to be just the occasional coincidental similarity or accidental overlap with moral principles or with descriptions of ethically right acts that would follow from moral principles. 

Laws are not generally just randomly chosen out of a set of all possible behavioral proscriptions or prescriptions, though it sometimes seems that some particularly flawed or foolish laws may have originated that way. Normally laws are desired to be crafted carefully and with regard for our moral notion of justice and fairness, where those concepts apply, and with utilitarian regard to their fostering good, rather than harmful consequences. 

For example, the Preamble to the U.S. Constitution, in giving the purpose of that document, and therefore of the government (legislation, administration, and judicial system) it establishes, says: 
 

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." 

Now, "more perfect", "justice", "common" (in the sense of distribution), "general welfare", and "blessings of liberty", as well as the forms and limits of "liberty" itself, are moral concepts, as are the proper balance among them and the interpretation of "domestic tranquility" (in trying to determine individual rights versus keeping social order, preventing crime, and capturing and prosecuting criminals). Most of the major purposes of the Constitution are to help us be law-abiding so that we are a better country, not just an orderly or merely obedient or efficient country. Hence, it would be remiss, and wrong, to make laws or to try to interpret laws in court (written under the umbrella of the U.S. Constitution, and deriving their legal authority ultimately from it) without any regard to their moral meaning, moral significance, or moral consequences insofar as these impact justice, liberty, general welfare, the common defense, and domestic tranquility. 

And it would seem that any constitution without a moral purpose, even if one different from the U.S. Constitution, would be merely an arbitrarily pointless or meaningless formal document establishing an equally pointless formal system. There could be such a system of law and those who pronounce judgments, but it would not be a system of "justice." And it would not, except by chance, promote the general welfare or any other moral virtue. 

Moreover, many of the clauses of the Constitution have moral implications: 

Clause 18 in section 8 of Article 1 states that Congress is "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. " The term "proper" in that clause seems to refer to moral and intellectual reasonableness. 

The fourth Amendment seems to have moral elements with regard to "unreasonable" and "probable cause" when it says: 
 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The eighth Amendment has a host of moral concepts embedded in it: 
 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [italics for emphasis are mine]

The ninth Amendment, though often itself ignored or disparaged by the courts for reasons that are ironic, is, I think, one of the most important in that it recognizes "rights" -- a moral concept-- the government cannot abrogate when it says: 
 

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The irony is that the reason stated for giving little judicial credence to the ninth amendment is that it is not specific enough, when its very point is that enumerating specific rights is too narrow a way to think of "rights" because rights do not come from being named by the government. This goes back to the point I made near the beginning of this essay that morality is complete whereas law is almost always bound to be incomplete by the very nature of its specificity in trying to enumerate those acts which are right or wrong. The authors of the Bill of Rights were clearly concerned that government not abrogate moral rights that were not specifically listed in the Bill of Rights, and they were concerned that moral rights not specifically listed were known to be still outside the province of government interference or usurpation. 

This essay is an attempt to cast some light on what the relationship is and ought to be between law and morality. Given that some laws are immoral, that some laws reasonably are neutral with regard to morality, and that there are institutional limitations to enforcing some aspects of morality, the interesting question should be, not what the relationship is between law and morality, but what it ought to be. 

Some Preliminaries

First, even procedural laws may have practical consequences that make seemingly equal options not actually be equal. If, for example, it turned out there was some reason (or even just statistical confirmation) that people drove significantly better and more safely on the left side of the road than on the right, public safety would dictate that the law (especially when the issue is first decided) ought to require driving on the left side of the road. But this essay will not otherwise address procedural or managerial laws where alternative choices otherwise seem to be equally optional and to have no preferable moral significance between each other. It is primarily a factual issue, not a philosophical one, as to whether the consequences of seemingly equal options are actually equivalent from the point of view of utility, such as safety. 

Second, even if morality "trumps" law, as I would claim it ought to, it might be important to obey some bad laws, under certain circumstances, until they can be changed because the fairness and consequences of doing so might outweigh the justice or consequences of moral disobedience in those cases. If, for example, some system is established for distribution of resources that is arguably not the best system, but which works to some extent, chaos might result in trying to implement a better system on one's own or in some fragmented or rebellious way. 

In such cases the morally right act, given the bad system that has grown into place, is different from the morally right act if there were no such system to begin with and a society were trying to begin one. In the driving case, for example, even if you knew it would be far safer for everyone to drive on the other side of the road, and even if you worked diligently to change the side of the road your country required drivers to use, it would be madness, and morally wrong (because it endangered people unjustifiably), for you to simply begin to drive on the opposite side on your own. Nor would it likely be safe for the legislature to pass a law requiring an abrupt change on a certain date, if that does not allow time for changing road signs to the other side of the road or doing any of the many other things that would be required to make the switch feasible. Or even if it makes more sense to use the metric system than the English system of measurements, one cannot just switch to metrics overnight, because, flawed and difficult as the English system might be, it is the one most people in America and England know how to use. And it is the one for which recipes and other kinds of directions are given, measuring devices calibrated, etc. Hence, the remedy for any bad law under which a somewhat complex system of operation has arisen, should not be worse or more unfair than the law itself. 

Bad laws and bad administrative practices, though, do not justify their continuation without remedy just because some remedies might be difficult. Optimally fair and beneficial remedies to achieve optimally beneficial and fair laws should always be the goal. 

I say that morality trumps law in that I think doing the morally right act is always at least our prima facie obligation. And I hold that obeying some bad laws in some circumstances is a worse breach of morality and duty than obeying them until they can be changed. And in those cases, the law ought not to be obeyed. A law, for example, that required you to take the life of an innocent person ought not to be obeyed if there is not time to change it first. That is not something you follow and then change afterward. 

Hence, while law need not and cannot be the same as morality (unless laws are written so as to require one "to do the morally right thing", in some cases voluntarily only and not by governmental intrusion or force), it ought not to conflict substantially with it. A law or system of laws does not need to be the best, if, and only if, that is too difficult to instantiate, but it should not be so wrong that it requires or permits morally wrong acts that are so bad or so unjust they ought not to be tolerable or acceptable. (See "The Concept of Tolerance".) 

This is a statement of the ideal or of the goal. In any practical case people may disagree about what is tolerable or not, and that disagreement should be worked through, in an attempt to resolve it, in a morally acceptable and reasonable way. I will not write here about how to deal with civil disobedience based on genuine disagreements of conscience, but presumably there should be some reasonable and fair way to deal with such cases. It should also be understood that even where there are grounds for civil disobedience, there can be wrongful acts of civil disobedience, such as, in some cases, assassinating those who disagree with you over an issue that does not justify such murder. 

The above brings to light that morality is not only relevant to the content of specific laws but it is also relevant to the proper way to make law and to take into account differences of conscience by reasonable people. There needs to be some sort of understanding about what forms of disobedience may be acceptable when there is serious disagreement among the consciences of reasonable people. 

It seems to me then that what gives law its authority is its conformity to morality, in that correct laws need to be obeyed because they are fair, just, and beneficial under the conditions and circumstances in which they exist and apply. Insofar as the legal act is the right act, one should do the legal act just because it is the right act. 

And what makes people voluntarily obey laws when they do is either that they believe the law is in conformity with what is morally right (or if it is a procedural law, they believe it does not conflict with what is right) and is just and beneficial, or they believe that the particular law at issue is not so bad, even if wrong, that it is justified to break, either because breaking it would cause more harm than not breaking it or because breaking it would risk undermining the general cultural respect for law. But many morally good people will disobey laws they think are very wrong, either in a form of civil disobedience, or in order to get away with it (as in speeding on a long straight, flat, open road with no traffic, in the West, particularly when the speed limit was 55 mph), because they believe the law does not have moral authority then. And if the government passes sufficiently many bad laws, or sufficiently egregious laws, it will lose obedience by rebellion or revolution, because citizens will believe (sometimes correctly) that the laws and the government are too immoral to have any authority that deserves their obedience. 

It, of course, is always possible that people will obey the bad laws of any government that has policing resources strong enough to force such obedience out of fear or risk of punishment or reprisal. But that does not give law authority; not rightful authority anyway. If we were to call that "authority" then we would have to say that as long as they go unchecked, playground bullies have the authority to take other children's money or lunches.  They have the power, of course, but not the authority. 

There are many papers and treatises describing, suggesting, and arguing practical and procedural ways to work out ethical differences (such as disputes about laws) in ethical ways, and I will not go into them here. But I do want to point out that democracy and law tend to use an interesting general kind of procedure I will describe momentarily that attempts to objectify or formalize morality or legislation by making it seem to be empirical or to be correctly determined in a systematic, formal or empirical manner. The methodology seems to prevent much serious social unrest, but it really does not make any legislation necessarily be moral or morally correct. Democratic lawmaking is not the only procedure that uses a technique of this sort to try to make moral decisions be scientific or empirically objective. The notion of obeying one's conscience tries to do it (since then one only has to see what troubles or does not trouble one's conscience), as does the application of "The Golden Rule" and, in many cases, the application of Adam Smith's principle of enlightened self-interest. Rawls' "veil of ignorance" also uses this kind of approach by asking people to make laws they would want if they did not know what position in society they would have. 

The basic ideas behind all these approaches is that people will know what is best or right for themselves by understanding what they themselves (would) desire, and then they will use that knowledge, in one form or other, to do what is best or right for others or for all, or in the case of majority rule, will do what is right for the most people -- sometimes in the mistaken belief that what is best for the most (in the sense of a majority) is the best plan that could have been implemented for all. For example, if we had five people among whom to divide $300,000, it would clearly not be best for all five (in a reasonable sense of "best for all") if three of the people (that is, the majority of the people) voted to give themselves $100,000 each and the other two, the minority of the people, nothing. What is best for all together is not necessarily the same as what is best for the most (or majority) of them. The phrase "greatest good for the greatest number" is ambiguous. One should not therefore believe that majority interest is the same thing as the public interest. (See also, my essays about this sort of thing at www.garlikov.com/philosophy/majorityrule.htm and at www.garlikov.com/philosophy/callous.htm.) 

In the Golden Rule case, people will treat as others as they would like to be treated. One then only supposedly needs to know what one wants for oneself in order to know what is right to do to, or for, others. 

In the enlightened self-interest application, they will form partnerships and alliances or interact with others in a way that tends to get them the most in return by giving others what they need to get the most for themselves, so there will be the most mutual benefit. 

There are a number of flaws in this kind of approach, but the two main flaws are the following: 

(1) equating morality with psychology -- that is, trying to determine what one (or the group) ought to do simply by determining what one (or the group) believes one (or the group collectively) wants to do. I will explain below why equating morality with psychology is flawed. 
(2) equating the right act with one that fits a certain objective, strictly formal or procedural process or rule (law). Law is often a formal, procedural system because it is mistakenly thought that is necessary and sufficient to make it objective, indisputable, and fair, and so that people know what they are supposed to do or not do and cannot be arbitrarily or capriciously prosecuted for some act they had no way to know was wrong or illegal. 

Taking the second flaw first, formalizing law is neither necessary nor sufficient to make it be objective or fair or known. It is not sufficient because many laws are too complex, too arcane, or too numerous for someone other than an expert to understand them or, in some cases, even know that they exist. Law is certainly not indisputable. Judges, lawyers, and laymen alike often disagree about what is legal, and not just about what ought to be legal. And, of course, there is serious disagreement about which laws ought to exist or what ought to be the law. 

It is unnecessary to formalize law in a procedural way in order to have law be (more) objective. Formality is not the only form of objectivity. Law could be more closely aligned with morality and still be objective. If we truly thought morality was only subjective, we would not argue with those who disagree, just as we do not argue about which flavor ice cream or which color ought to be anyone's favorite. And if we really believed morality was subjective, we would not agonize over difficult personal ethical decisions because we would have to believe that the easiest or most attractive option was just as morally valid as any other option. Subjective things are simply matters of opinion, and if anyone can have any opinion s/he wants and no opinion is any better than any other opinion, there would be no reason to argue with others, no reason to agonize over ethical dilemmas, and no reason to even have to consider doing what is not the easiest and most personally desirable option. 

I believe that law could be morality-based rather than formal, and the only problem with that is not that it would make law less objective, but that it would make it appear more subjective or unreasonable because too many people do not know how to resolve problems and (moral) disagreements reasonably. Law only appears to be more objective when made by formal procedures and majority votes because judges can hide behind legislatures when they make rulings, and legislatures can hide behind majority votes and formal procedures. Making law formal only hides its problems and subjectivity; it does not solve or eliminate them. 

It may be possible, though it seems unlikely, to develop formal processes or procedures that turn out always and automatically to be fair and to give the right or best results. But it cannot be counted on that one has such a procedure, particularly when people seek loopholes to exploit. The fact that a procedure may give the same results that moral reasoning would require in a particular case, or in past or known cases (for which it was designed), or in a hundred particular cases, does not mean it will in the next case or that it should be a substitute for moral judgment. For example, voluntary trade and bargaining, typically involving some sort of cooperation for mutual interest, are often used to exemplify fair practices and formal procedures that need to be upheld in court. But even in such procedures involving some sort of trading for mutual interest, one side can sometimes take advantage of the other side to give the disadvantaged side what it will voluntarily (under the circumstances) accept, rather than what it really wants, needs or deserves or would have been able to negotiate if it were not at a disadvantage, particularly an unfair one, in the first place. Not all trades from unequal bargaining positions are unfair, but those that are should demonstrate that even a mutual, voluntary trade is not necessarily a morally fair or right trade. 

For other examples of formal procedures that do not yield morally reasonable results, see also www.garlikov.com/EPFE/00Preface.htm. It is extremely difficult, and I suspect impossible, to develop merely formal procedures that can totally take the judgment out of morality or of deciding which acts are (morally) right. And trying to do that by equating morality with psychology, so that people determine what is right merely by what they, or a majority of them, individually want, is particularly prone to mistakes about what is moral or not. 

The significant flaw in equating morality with psychology, is that people frequently want what is not actually best for them, but is only what they think is best for them because they may disregard or be unaware of actual consequences and risks, or better alternatives for them to get what they might actually prefer if they knew better. People will willingly do things they should not in order to fit in with a crowd or to be popular; people will willingly emulate bad behaviors they saw as children; and people will willingly do what is traditional or fashionable even when it is not in their real best interests. People will unknowingly choose mistaken means in futile attempts to achieve desirable ends, as when they take actions or pass laws that make problems worse instead of better, or when, for example in their personal lives, they seek pleasure or intimacy through sex at times that sex would be inappropriate for them and/or will not provide the kind of emotional intimacy they might want or need. What we think we want is not always what we really want, and what we think will accomplish what we want is not always what will work. 

Rawls' "veil of ignorance" as a procedural approach for determining what is right is susceptible to this problem. For example, someone formulating laws under the veil of ignorance might sincerely (but perhaps mistakenly) believe that in a free market system, one may rise or fall on one's own merit, and that anyone with initiative, normal intelligence, and a good work ethic will be able to be successful, no matter what one's starting point in the society. One wealthy U.S. Senator one time said during a hearing that if he lost all his money today he could quickly build up a fortune again based on work and initiative and because of the free enterprise system and the myriad of opportunities this country offers. But in reality he could only do that because of his knowledge of the marketplace and because he had friends in high places to call for help. It is doubtful that if he had to start over again as a black woman or just start life in the first place as a child from a poor family in a ghetto, with no wealthy friends or contacts, that he could as easily build a fortune, even though he believes he could. The "veil of ignorance" in regard to what position you would be born into in society does not help you create the best laws if you do not truly understand the limitations and barriers different positions impose no matter what underlying qualities of character or latent talent one might possess. 

Also, as in regard to the Golden Rule, others may not want or need what you want, even if what you want is actually best for you. A parent, for example, who wishes someone had made him go to medical school when he was younger may try to force a son to go to medical school who has no aptitude or interest for being a doctor. Visiting someone in the hospital may not be what they want, and is not then right just because you would want visitors if you were in the hospital. 

A flaw that shows up in legislating is that what might be best for each individual district taken separately may not be what is best for all taken together -- just as in a basketball game where each person's trying to score the most points s/he can may not give the team the most points it could have had, had players been less selfish. In general, each individuals' seeking their own best interest does not necessarily lead to what is best for them all, or even to what is best for each of them. In some cases competition instead of cooperation yields less for everyone individually, let alone collectively. 

Another flaw, one that often shows up in representative democracy, is that lawmakers can "log roll" or "scratch each others' backs" in ways that make them each look good to the majority in their districts while not doing what would have been better for the whole, or while costing their constituents in ways the constituents do not notice. 

And a flaw that can show up in any majority rule democracy is tyranny of the majority where what is voted on and considered by the majority to be in their best interest may be harmful to the minority opposed to it. (This may be any numerical minority, not just a minority in terms of race or ethnicity. E.g., a majority of urban voters might pass legislation that harms farmers.) 

Equating morality with psychology invites people to pander to base desires and also to try to manipulate others' desires by ways that may not be related to the ethical aspects of the issue at hand. While I might be able to change your desires by giving you good ethical arguments, I do not necessarily change the ethics of the matter by simply psychologically getting you to change your desires. Much political campaigning for people or for specific legislative proposals is aimed at swaying opinions, not shedding light on the likely merits and problems with the legislation. It is not that this would not happen outside of democracy and free markets, but democracy and free markets, by giving a legitimacy to "desires" (either in voting or in buying products and services), also implicitly give a cultural legitimacy to, or social acceptance of, manipulating people's desires and attitudes, whether the manipulation is toward an actually reasonable or good end or not. 

Now unfortunately, methods that convert moral decisions into psychological ones, or ones of mutual or majority desire, reflect moral judgments to a sufficient extent that it makes the methodology seem right and seem feasible even sometimes when it yields terrible results. Because people often do want what is best or right for reasons other than just because they want it, the Golden Rule will often work to yield the right act even though it is because of a lucky accident or coincidence. The Golden Rule yields the right result when the way people want themselves to be treated is the way that actually is right. But what they want is not made right simply because they want it, for people can also want things for themselves that are bad for them. What makes what someone wants be the right thing is not his desire for it, but the circumstances and qualities that make it be fair, just, worthwhile, beneficial under the circumstances, or morally appropriate and suitable in some other way. Similarly, what is best for a wise, sensitive, informed, and fair-minded majority may in some cases be what is best for each person in the group, as well. But in such cases the majority votes for it because it is right for reasons they can articulate; it is not right just because the majority votes for it. 

At least part of the reason the democratic process works to prevent social unrest is that when everyone votes or can vote, the process of voting, except in the most egregious cases of tyranny of the majority, tends to make the "losers" feel they had a "say" in a vote or election; and that keeps a certain amount of peace and domestic tranquility, generally. People in established democracies seem somehow to accept, albeit sometimes with resigned frustration, disappointment, or even anger, losing a vote even if the outcome of the vote is the bad, wrong, or unreasonable option. 

Also, social unrest is often prevented because the system is patched in some piecemeal way when (and sometimes only when) some aspect of it is persuasively and dramatically demonstrated, to a society of fair-minded and reasonable people, to have a particularly egregious or widespread bad result. Thus a system of law based on equating morality with psychology will often mistakenly seem to function satisfactorily even when it does not, because the system will be changed if it sufficiently troubles the conscience or psychology of sufficient people. The problem is that it will be changed only if it does that, and thus it has the potential to be very bad until enough people are rightfully troubled enough and can convince people in power to make needed changes. In other words, serious social unrest will usually be averted by the system, when pressure becomes too great, but below that threshold, government sanctioned or induced harm and injustice can still befall people. In some cases civil disobedience is meant to demonstrate that the threshold needs to be seen to have been reached -- that certain laws and practices are too unjust or harmful to be continued to be tolerated. But civil disobedience only works when governments and those in power or positions of influence have sufficient moral understanding and sensitivity to recognize protesters are in the right and the legal system is not. It is impossible to imagine that Jews would have effected any change in Nazi behavior through civil disobedience, or that Kurds would have softened Saddam Hussein's treatment of them. 

The Distinction Between Positive (or Conventional) Morality and Critical Morality Does Not Help

H.L.A. Hart originated, and ensuing legal theorists or philosophers of law utilize, the distinction between “positive” (or popular) morality and “critical” morality.  But that distinction does not necessarily help the situation.  What Hart refers to as “positive morality” – the (often) uncritical, or the conventional, accepted moral and social beliefs and practices of people in a society – is often, but not always, the result of people’s thinking about what they want or believe is desirable (for themselves individually or in some form of combination with others).  “Positive”, uncritical morality is not the result of deeper reflection and dialogue about what might actually be best or right, or even most desirable for oneself individually. In many cases, it is the substitution of psychology for moral philosophy, and in some cases positive or conventional morality is mistaken because insufficient evidence was discovered or brought forward in an intelligible way to effect understanding about the risks or consequences one will (likely) face. In those cases, the mistake is one of factual knowledge, not just one of overgeneralized psychology. 

In academic philosophy of law, there is a major debate over whether law is based on morality or on socially or culturally accepted practices. This seems to me to be a false dichotomy because socially accepted practices, even when immoral, are generally accepted because they are thought to be morally correct, or morally acceptable, practices. The fact a culture might be wrong about what is morally correct, and instantiates laws to reflect their views, does not mean their laws are not based on morality, but that the moral views on which they are based are simply wrong. The laws can be immoral while still being based on accepted, but wrong, moral principles. Being based on a social practice does not mean there is no (perceived) moral grounds for the social practice in the first place. 

When socially accepted practices coincide with morality because they are correctly considered to be morally right acts, there is no difference between basing law on morality and basing it on socially accepted practices, though it sounds funny and conceptually weaker to express it in the latter way. For example, while it is true to say that murder is socially unacceptable, it is not the strongest way to indicate it is wrong. Normally, linguistically, when one calls something -- something which is a moral issue and not merely an issue of etiquette -- "socially unacceptable" one is implying it is merely unacceptable in a particular culture, but not actually morally wrong. One may even be implying the culture is mistaken in believing the act to be unacceptable. In reverse, saying something like "marriage at age 14 was socially acceptable in Elizabethan England" implies either that the speaker thinks that was a wrongful practice or at least that it was only right, if at all, because of circumstances of much earlier mortality or because 14 year olds at that time were far more relatively mature than 14 year olds of today. 

But the problem is that even "critical" morality can be wrong. The history of moral philosophy is filled with quite analytical/critical theories and discussions that nevertheless turned out to be in need of amendment or abandonment as new insights were gained and in some cases as new distinctions were invented or discovered. The issue is not whether moral ideas are critical, surface, conventional, socially accepted, religious, traditional or however initiated; the issue is whether they are good principles or not. But discerning that takes ongoing dialogue and judgment, not some replacement for those things, such as mere voting or appeal to formal or supposedly objective rules, or even acceptance by prestigious law professors or publication in influential law journals. Moral philosophy is difficult and it is an ongoing precess as new ideas and distinctions come to light. Substituting something easy for it is abandoning morality, not simplifying it. And it is important to keep that in mind, so that we do not have the mindset that particular laws, just because they have been promulgated and even upheld in court, or accepted by academia, are therefore deserving to be permanent, revered, authoritative (in a moral sense), deserving of obedience, or are in some sense always right. 

Let me give one example of an academic discussion that I think has gone awry. In A Companion to Philosophy of Law and Legal Theory -- a Blackwell Publishing book surveying contemporary legal theory-- in the article "Tort Law" by Stephen R. Perry, he points out R.H. Coase showed, what is supposedly now pretty much accepted in legal academic circles, that we cannot really say one party rather than another, caused the harm or injury in a tort case where a supposed victim is seeking damages. The idea is that any victim is at least in part to blame for harm or damages he suffered because without his being where he was or having done something he did (such as buying and using or unknowingly misusing the faulty product), he would not have been harmed or would not have suffered damages. Although there was some objection to this seemingly strange claim, apparently it held no sway in academic circles, and so Perry continues, in defense of Coase: 
 

he was just adopting a standard analysis of causation, according to which an event A is a cause of effect B if A is a necessary condition of B's occurrence.... This is the understanding of causation presupposed by, for example, the traditional "but-for" test in tort law.

Clearly, however, juries will, rightfully, not accept this meaning or sense of causality as the operating one in cases of harm; their "positive" or conventional sense of "cause" will be superior to the "critical" academic sense. In criminal law, for example, it would hardly be a defense against murder to say "the deceased caused his own death by standing in front of my gun when I fired it; if he had not been there, I would not be on trial for murder now." That defense would only make sense if the deceased ran across a line of fire on a firing range with no way for the shooter to see him while he was doing legitimate target practice. 

Without trying to get into a full-blown analysis of the concept of "cause" of harms, it seems pretty clear that for many normal situations the "cause" of harm is the salient wrongful contributing action that occurs given the conditions previously in place or likely to come into place, or something akin to that. E.g., in the case Perry keeps talking about in the article, apparently a standard example in philosophy of tort law discussions -- sparks from a railroad train setting fire to nearby wheat in a wheatfield-- it seems to me that if the wheat or the wheatfield is there prior to the ownership of the land by the railroad and the building of the track, and the track is then built and the train comes through, it was the train (or the railroad) that caused the fire, not the wheat. But if the railroad was there first, and a farmer bought the land afterward to use as a wheatfield and planted wheat too close to the tracks, it was the farmer who was in some sense at fault in causing the fire, just as a person who gets too close to a camp fire is the cause of his getting burned, rather than the person who built the campfire in an otherwise safe place. The reason I say "or likely to come into place" is that the person who puts the bucket of water above the door as a practical joke is the cause of the drenching of the person who goes through the door, rather than the fault of the person who unsuspectingly uses the door in the normal way, even though the bucket was there first. 

While it may be difficult, I presume we could articulate some sense of causation that meets a conventional sense of it, without its being merely any and every necessary condition for the event to have happened. We normally rule out any "contributing factors" as the culpable cause if those contributing factors were reasonable acts under the circumstances in the first place. Contributing factors do not necessarily equate to contributory negligence or contributory culpability. 

Some Typical Confusions About the Relationship Between Law and Morality

It seems to me that discussions about the relationship between law and morality generally confuse a number of elements. 

First, to hold that the law ought to be moral (or at least not immoral or morally wrong in a serious way) does not mean that the law ought to coincide at some particular time or instance with either popular or critical morality. Both might be wrong. Discovering what is actually morally right sometimes takes vigilance and openness to new evidence and reasoning. As in the above example the fact that critical morality is reasoned does not make it necessarily right. In any area, the most reasonable conclusion is not necessarily the right conclusion. (As I have written elsewhere, it might be most reasonable to bet a large sum of money on a straight flush in a straight poker game, but the hand might lose to a royal flush.) Reasoning is necessary because we are not omniscient beings; and if we were omniscient, we would not need reasoning; we would simply know everything and not have to try to deduce what we don't know from what we do know when the evidence is not totally complete or the conclusion from it immediately obvious. Omniscience would make "evidence" and "deductions" of any sort unnecessary. But we are stuck with having to reason; and reasoning is not infallible. 

Second, it is not that the law is somehow objective while morality is not, and that we need law in order to be objective about morality. If morality were not objective, it would be impossible to interpret it objectively in terms of laws that correspond. Laws would not have moral imperative or moral force if they were not themselves morally right (or in a system of morally right laws, though the law in question may not be right, but not reprehensible enough to risk undermining the system by disobeying it). And if there is subjective disagreement about what is morally right in a given context, there will be disagreement about what the objective law ought to be that conforms to the moral principle at issue. Substituting laws for moral principles only changes the locus of the disagreement from being about what the right thing to do is to being about what the right legislation ought to be, or about what the right verdict ought to be when the law itself is not clearly definitive. It does not magically eliminate the original disagreement. 

Moreover, to hold that morality is in some way objective itself, as I do, does not mean that one holds that one's own particular moral views at any give time are certainly correct. One can believe there are objective answers without knowing what they are or without holding that one's own answer is necessarily the right one, even if one is fairly confident in it. For example, in math, I can know there is an answer to some difficult problem, and I might even have what I believe is the correct answer, but if it turns out I am wrong, or that others disagree, or even that no one knows yet what the correct answer is, that does not mean there is no objective answer. Similarly with regard to scientific theories about, say, the origin of something. There is surely some way that the thing originated even if none of the existing theories are correct or even if there is no way to demonstrate what the correct theory is. That an answer is difficult to know, or that it evokes serious disagreements, does not mean that the subject itself is therefore merely subjective or that there is no right answer. Two people can argue about what the right objective answer is while still holding that the matter is an objective one. There can be disputes about objective issues, and so there is no need to think we need to replace morality with something supposedly objective --law-- just because morality is sometimes disputatious or contentious. Morality is already objective. The difficulties are that it is not always obvious, and that people are not always willing to be reasonable in their discussions or disagreements about it. But the remedy then is to increase moral reasoning and understanding, not replace it with the tallying of unreasonable or merely emotional opinion. 

Further, there is no more reason to be accepting of a judge's decision based on law rather than on morality if you think the law in the case, even if clear and definitive, gives the wrong or unfair or unjust answer. It shouldn't matter how you were wronged in a courtroom -- whether by a judge doing moral philosophy incorrectly and badly or by a judge correctly applying a morally bad law. You are morally wronged either way. And it is equally subjective or objective either way. 

Now there is room, I think, for certain, limited, kinds of subjectivity in ethics in at least four kinds of cases. The first three are similar but with important, subtle differences. 

(1) There are situations where there is more than one right act, where the costs, benefits, and fairness are basically equivalent, and where the choice among the various right acts is purely arbitrary or purely subjective -- such as where one should take one's vacation. It might be that many different places will have equal affordable costs and benefits, and it might come down to where the person or the family just simply prefers to go. Similarly with regard to choosing items on a restaurant menu for one's dinner, if they are equally nutritious and healthful, about the same price, don't deplete endangered species, don't abuse the labor that produces it, etc. 

(2) There are some activities that are so subjectively desirable or undesirable that they might be considered right for the person who desires them, though they might be wrong or not worth the risk or effort for anyone who does not desire them so strongly. This is not to say one should pursue every desire or every pleasure, but it is to say that there are some situations where the benefits derived from pursuit or fulfillment of the desire is sufficient for someone to justify his doing the activity, and to justify not doing the activity for someone who does not have as strong a desire to do it. It is that the activity is worthwhile or right only if the person really wants to do it, and not either right (enough) or wrong (enough) only in itself. For example, one person might want to use any spare time he has to play golf, whereas another person does not want to play golf at all even if there is nothing else much to do. One person might like to tutor students in math or someone might like to coach soccer in a local little league, so those activities would be right for them to do but would be a wrongful burden to require of someone who did not like coaching or tutoring. 

(3) There are cases in which reasonable subjective desires tip the balance of choice toward different options available to the agents, not because either option is equal other than with regard to personal preferences, but because the personal preference itself will causally and objectively yield better results if the person does it who wants to do it (or doesn't mind doing it). For example, if one couple wants to have children and understands and accepts the work and costs involved, and another couple does not want to have children or to have go to the expense and trouble to rear them well, it is likely, or at least possible, that it could be right for the first couple to have children and for the second couple not to -- not just because of their differing preferences, but because the first couple, presumably, will do a better job rearing the children than the second couple because it will not seem so much like work or be quite so stressful. 

(4) The last situation is one in which, after careful consideration of all the possible knowable facts by reasonable and wise or reasonably intelligent people, the options open are so close to each other in weight that these people still disagree with each other or are unsure individually which is the better option to choose. I argue that in such cases either option is right, or at least equally reasonable, even if they are incompatible with each other. These kinds of cases arise in at least three ways: (a) situations where the relative utilities (e.g., risks or costs vs benefits) are about the same for each option but in one case both are higher than they are in the other case and someone with risk aversion versus someone who is adventurous may decide differently; (b) situations where opposing rights of virtually equal importance have to be decided between; and (c) situations where the benefits or harms of one option are of a magnitude that essentially equally balances the importance of the rights involved in a mutually exclusive option. In other words, these cases involve (a) disagreements about the value or significance of costs and benefits, (b) disagreements about which right is more important when two or more rights conflict, and (c) disagreements about whether a right is more important than a particular benefit or not. 

The Most Difficult Cases

Now even if ethics is objective, there are some situations that do not seem to have an answer, or a correct or satisfactory answer. Often these are when some mistake or misdeed has so messed up a situation that nothing can really rectify it, and none of the options open to anyone are really very satisfactory. It is not that one is trying to pick the best of a bunch of bad options available, but that none of the options seems satisfactory, let alone best, and yet one must be chosen. 

Such a case in sports occurred in a college football game between Colorado and Missouri, in which Colorado (vying for a national championship that year, and undefeated late in the season) was accidentally given five downs to score a touchdown to win as time ran out in the game. In other words, Colorado, was given an extra play by mistake, and they came from behind to score on that extra play. The mistake was discovered after the game was over. What muddied the waters in this case though was that Colorado "wasted" the actual fourth down by grounding the ball to stop the clock instead of running a "real" play to try to score. They grounded the ball because the down marker and the officials called it third down. They scored on the next play. Colorado's argument, of course, is that they would have used what turned out to be their fifth play, or some play, on the fourth down if they had not been told the fourth down was third down. (Although at least one major NCAA team once ended their chance of winning a game by grounding the ball on fourth down in order to stop the clock -- being so concerned about the clock, they forgot they would be giving up the ball on downs.) But with only a few seconds to have chosen and begun such a play before the game ended, it is not clear they could have been likely successful. No one will ever know what would have happened had the down markers been correct. But the NCAA felt compelled to choose a winner for the game. Perhaps they should not have. They chose Colorado, but I understand that Missouri records it as a win in their own record books. But it is a situation where there is no good answer, and no right answer, in terms of awarding a win or a loss (or even a tie, since the game was not tied prior to the flawed touchdown). Perhaps it should have been ruled to be an "inconclusive" game. But that would have disappointed and frustrated everyone too, and not really have been a satisfactory solution. In business and in social relationships, mistakes sometimes get made that also defy satisfactory remedies, or at least easy or simplistic ones. 

Given there is disagreement about moral issues, even among reasonable, intelligent, and well-informed people, given that even critical analysis of moral issues is sometimes flawed, given that there is room for some subjectivity in ethics, given that even voting and majority rule, as any kind of psychologically-based alleged determination of what is right, can fail, and given that some moral wrongs may be more socially costly (at least in the short term) to try to correct than to tolerate, what sense might be made of the view that the law ought to be moral or to reflect or enforce morality? 

I would suggest that to hold that the law should be moral or reflect morality, or, as it is sometimes put, that the law should "enforce morality," is to hold that the law ought to require acts that are right (or at least acceptable and tolerable) and forbid what is intolerably wrong, unless doing so causes more serious harm than the harm it is trying to prevent. It is not to hold that it should reflect any particular view, whether critical, positive or conventional, of what is right or wrong, other than what reason and the best available evidence and insight show at any given time. Arguing that the law should reflect what is right (within the conditions just given) is different from arguing that a particular action is the right one. 

The Alternative to Holding that Law Ought to be Moral or Enforce/Reflect Morality:

The conventional wisdom in America is that one should obey the law until one can get it changed. That is a moral contention, which has some, but not complete merit. There are some laws and rules that are so egregious or so (potentially) harmful to obey, and sufficiently less harmful to disobey, that it would be morally wrong to adhere to them until the law can be changed. The example above is of having to execute a person known to be innocent simply because there might be no formal mechanism in law to prevent the execution. Or having to prosecute someone harshly for conscientiously and correctly disobeying an unjust, but legal, law. 

In some cases, civil disobedience is used, not (only) as a moral stance, but as a way to promote a more just system or set of laws by publically exposing the harms or injustice of current law. The theory behind civil disobedience is sometimes put as its not being morally wrong to break the law if one is willing to be arrested and pay the penalty for doing so. That way of stating the acceptability of civil disobedience is not quite correct, however, for it does not justify, say, allowing people to speed through residential neighborhoods in fast cars just because they are willing and able to pay speeding fines. Nor would it justify murder when the perpetrator is willing to go to prison or be executed. The justification of public civil disobedience is three-fold: (1) that the law being disobeyed is so egregious, or has such egregious consequences, it ought not to be obeyed even for a short time, (2) that public civil disobedience is significantly enough morally better than obeying the law, and (3) that public civil disobedience is the least unjust and least socially deleterious effective way to convince people who have the power to do so (or the power to persuade those with the power to do so) to act to change the law immediately. 

The merit behind the call to obey laws until they can be changed is that in most cases peaceful and orderly change, and collective social respect for law in general, rather than (even partial or selective) anarchy or intolerable chaos or unpredictable behavior, are more important than the injustice or bad consequences of obeying the specific law at issue. But this is true when, and only when, not all of the above conditions justifying civil disobedience are met, i.e., when either (1) the law in question is not so bad that obedience to it is significantly wrong, when (2) public civil disobedience is not (significantly) morally better than obeying the law, or when (3) there is a better way to effect immediate (or sufficiently soon) change than public civil disobedience. 

Besides concerns about anarchy, chaos, and unpredictable behavior, another rationale sometimes given for requiring obedience to law until it is changed, is the view that law is a particular kind of formal system with a set of reasonable and/or socially accepted rules of its own, and that as long as laws are promulgated, enforced, and adjudicated according to these initial or underlying reasonable and accepted formal rules, processes, and procedures, nothing more is relevant. Once rules are made in a fair way and accepted, everyone must abide by the outcome of following them, according to this position. External moral issues, other than compliance with the formal procedures, are irrelevant. This is not unlike the view that if the rules governing business practices are fair and agreed upon, that unfavorable outcomes for some people does not give grounds to complain about unfairness or inadequacy of the rules or practices that adhere to them. 

This is, in large part, the way sports and games are played, and if the law were merely a game or a sport, especially one that did not require universal participation, it would be an acceptable view perhaps. But the law is a set of norms about how we are supposed to live, and it is my contention that morality is the ultimate norm for that, and so the law can neither be above morality nor separate from it. The law must operate within morality even though it does not have to be the same as it nor always precisely conform to it. And it is also important to note that even sports and games conform to some sort of higher, external understandings. Sports and games are not as purely formal as they are often said to be. 

There are at least two kinds of external factors that influence and determine the rules of sports, particularly professional sports. The first is whether the rules of a game make it sufficiently interesting to generate the desire to play it or to watch it. (In regard to professional sports, a corollary consideration is whether the game is interesting enough that fans will pay to watch it or that sponsors who want access to spectators will pay for the game to be played.) The second is a sense of fairness about the game that is more than just about whether all participants are all subjected to the same rules. The rules must themselves be fair in some sense that conforms to the intuitive ideal of the game. I will explain both of these ideas. 

Sufficient Interest

Ticktacktoe is a game that is only of interest to novices who have not figured out the fairly simple scheme for always avoiding loss. Once two players each know how to force a tie when playing second, there is no real point in playing, or in watching them play. If a sport has rules that rob it of fan appeal or interest, it will not be particularly popular, so rules tend to be changed when necessary to retain fan interest. 

For example, when University of North Carolina's Dean Smith invented what was called the "four-corners" offense, and had recruited and developed a team that was suited to play it, the NCAA changed the rules the following season to include a "shot clock" so that teams could not just hold onto the ball once they got somewhat ahead. The "four-corners" offense essentially turned the game of basketball into a game of "keep-away", and because Carolina had really good foul shooters and ball handlers, they could "keep the ball away" from opponents once they got ahead in the game, and fouling them in order to get the ball back was not a helpful way to get the ball back. That diminished the excitement in the game. Football periodically changes rules about the distance between the "hash marks" and the placement of kickoffs or takeover spots after missed field goals, in order to generate more offense or better defense when one or the other has been rendered less effective than is interesting. Recreational golf uses a "handicap" system to make competition more interesting between players of unequal ability. Parents playing games with young children will often accept a handicap or give the child a headstart, so the child will have a chance to win and thus more likely find the game interesting enough to want to keep playing and trying to master. 

Now what is interesting to watch or to play is not necessarily universal. Ice hockey, for example, seems to be of far more interest to Canadians than it is to Americans. Baseball is just the reverse. I have written about what I personally think makes a sport or game more interesting, but it does not explain why Canadians are different in this regard. Nevertheless, in any given culture, there seem to be features of a sport that might make it more or less interesting to fans, depending on which way a rule is written. 

I do not believe there is an analogous idea about law, such that would change laws in order to make the law more interesting. 

A Sense of the Ideal of the Game

Rules in sports also are changed by governing committees when an action or technique is discovered or developed that meets the existing rules but which seems to be against the spirit of the game -- even though both sides are affected in the same way. 

For example, in the late 1950's or early 1960's a major league baseball pitcher worked very hard during the off-season to develop a pick-off move to first base that was within the requirement of the balk rule as it was written then. I was watching on tv when he first used the move during a game, and he picked off runners on first with ease. Two or three runners were picked off just after they reached first base. All of them were irate and claimed that the move was a balk, which is an illegal pick-off move. In spirit it was, but technically it was not. So the umpires had to allow it because it was technically within the rules, and therefore was simply within the rules. A, or the, point of the balk rule in baseball is to make it illegal to pick off base runners by faking a pitch to the batter, only to hold onto the ball and throw it to a base once runners have started in motion in reasonable or legitimate anticipation that the pitcher has released the ball or gone far enough in his pitching motion to the plate that he must, if there is no unfair deception, release the ball in that direction. (There are some exceptions to that, such as if a runner is on another base, one can fake a throw to that base, and then throw to first, but essentially the idea is not to allow a kind of unfair deception by the pitcher to pick off a runner at first, or to make him, by means of unfair deception, stay on the base longer than would allow him to be able to steal second if there were no deception by that pitcher.) The point is that Major League Baseball was forced to re-write the balk rule, and what constituted a balk, at the conclusion of the season, in order to restore the balance on behalf of runners and base stealing. If pitchers had been allowed to use the move this one pitcher had perfected, runners would have had no chance to steal bases, and it would also have diminished opportunities for "starting runners in motion". Important features of the game would have been lost, though perhaps not enough to make it lose fan appeal or interest. 

In the "four-corners offense" it could be argued that basketball was not meant to be played as a sophisticated version of "keep-away" and by changing basketball into keep-away, Smith and North Carolina had subverted the ideal of the game or the spirit of the game, and that that at least in part contributed to its not being interesting for fans to watch. 

In the early part of the twentieth century, however, basketball was played in a more deliberate style, whereby teams passed the ball however long they needed to in order to try to procure a good shot. Games were very low-scoring by today's standards. Yet a deliberate style of play is not the same sort of thing that was done by Carolina in using the four-corners offense. They were not really trying to score, unless they got an extremely easy opportunity (such as a lay-up or dunk shot), but were looking simply to keep the other team from getting the ball and thus being able to even have an opportunity to catch up. It might have been that a defensive strategy could have been developed which would have thwarted the four-corners offense, but the NCAA was not willing to wait another season for that to happen, since it did not happen during the first season it was used. 

Fan interest can sometimes depend on their understanding of the ideal of the game, so the two factors are not necessarily unrelated. Men who played or enjoyed basketball in the first half of the 20th century often lost interest in it when it became a lot faster and more offensively oriented, though younger fans have more than replaced them in number. My father typically makes the comment that what guys play today is not basketball, but just "race-horse" ball. He laments the lack of teamwork and the reliance instead on speed or pure shooting ability. It is not only that it has taken the fun out of watching the game for him, but he feels it is not really basketball. In part this has come about because what constitutes a foul has changed, and there is a lot more freedom for players to do things that would have constituted either an offensive or a defensive foul in the "old days". It may be fair to say that the concept of basketball has changed and that the original game has become a different game, not just one that is played more efficiently or with greater speed and ability. And it may be that what is interesting or ideal to an older set of fans is neither to contemporary fans. But the point remains that the rules need to reflect some ideal of the game, even if there is more than one ideal. If the rules do not reflect some ideal of the game, they are the wrong rules. 

There are also other ways we see rules change in order to approach an ideal. "Local rules" are often different from official rules because the playing environment, particularly in home or amateur or temporary conditions, might be such that some allowances need to be made in order to make the game seem right. For example, when golf courses do not have their grass growing or being cut properly in the fairways, they may permit or encourage the playing by "winter rules" whereby a ball can be moved around a bit in the fairway onto a better patch of grass, sitting up better, so that it can be hit better. Everyone who has played touch football in a small park or set of yards with bushes or trees or foreign objects, or who has played basketball in a weird shaped driveway or a driveway flanked by trees or foreign objects, is familiar with "local rules" designed to keep the game from being corrupted by trick plays that use some local peculiarity to an unfair advantage, or which take into account in some fair way any bizarre play that may occur by accident -- for example, what the baseball rule should be for a batted ball hitting a ceiling obstruction in a covered stadium. On a basketball court that only has one basket (i.e., a "half-court") you have to "take the ball €˜back'" after it hits the rim, in order to make it be something like having to run the ball to the other end of a full court to the other basket, after getting a rebound. In tennis there is a game, in America usually called Canadian Doubles, whereby three players can all play, by taking turns in a two against one format where the one side uses the some of the rules of doubles tennis and the other side has to play by the rules of singles. This is essentially to reduce the advantage of the two players by giving them a handicap, in order to make the games more competitively balanced. The doubles players normally still have an advantage, but it is not so great an advantage as it would be if both sides played by the same rules. Also each player has his own individual game and set score, so the first player to be involved in winning six games, whether as part of a team or as an individual, is the winner of a set. It is a reasonably fair way to approximate tennis when playing recreationally with unequal numbers of players. 

Just as in the baseball balk case, when the picked off players claimed unfairness, and the league finally agreed, people have a sense of what is fair or not fair in a game. Sometimes there are disagreeing intuitions, such as whether a professional golfer with bad hips or legs is really playing golf, or competing in a professional golf tournament, fairly or not if he is permitted to take a cart. Some would claim that golf is just about hitting the ball; others would say it involved stamina of walking to the ball as well. Some would say the stamina of a physically handicapped golfer is sufficiently drained by minimal walking and playing. While such difficult disagreements may arise, in general it is fairly obvious to most people when a player or a team finds a loophole in the rules that violates the spirit of the game, or when a playing condition virtually begs for a local rule to correct some inadequacy that will impede the spirit of the game. We each have some sort of "feel" or intuition for what makes a sport or game fair, even if sometimes our intuitions differ or change over time and circumstances. 

The law is something like that in that it is a formal system of rules and procedures that is meant to invoke and instantiate our moral sense of justice and desert. But our sense of moral justice and moral desert (that is, "deservingness") is not a formal or technical system itself. The difference between law and sport is that games of all sorts can be made up that may be fair and also interesting to play or to watch and there is not some ideal sense of a specific game until the game is invented. But there are not different moralities, though there may be different conditions that bring about different practices, and though there are often disagreements about what is right. Games are invented, not discovered in the way that moral principles, concepts, and distinctions are discovered. However once games are invented, they tend to be developed in the light of some ideal sense of them. Correct morality already is the ideal in whose light law needs to be developed. I think people have an expectation for law to try to do that in the best way it can, so that even with institutional and administrative limitations, the law gives the most morally optimal results that can be achieved. The law should always be trying to live up to that expectation, not acting as, nor trying to be, a substitute for it. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


 
 
 
 
 

This paper will be primarily about morality and U.S. law, although most of the general principles will probably apply to other secular democracies as well and many may even apply to some non-democratic forms of government. (Return to text.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


 
 
 
 
 
 

My dormitory in college had only one rule about noise, instead of the set of specific rules all the other dorms had.  For example, we did not have specific times set  aside as "quiet hours" where radios or stereos could not be played. We simply were not supposed to disturb other students in the dorm and prevent them from studying. If you inadvertently did, you were supposed to stop doing so when they informed you that you were interrupting their studying.  Any questionable disputes would be decided by the RA's or by a tribunal. We had the quietest dorm on campus even though we played our stereos and radios at all hours of the day and night and had no specific restrictions.  Everywhere else, people made all the noise they could whenever it was permitted, and found every loophole they could just to be disruptive. Our rule really was a moral principle rather than an objective legalistic prescription.  It is not the kind of rule that a formal, legalistic society would have, but I think it is a better way to make a system work -- or could be with the right kinds of moral safeguards to prevent abuses of authority. (Return to text.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


 
 
 
 
 
 

It is important, though, that, in some sense difficult for me to state precisely, the circumstances at issue were not purposely or negligently contrived to make bad laws or bad acts be necessary.  For example, President Kennedy once said that when those in power make peaceful revolution impossible they make violent revolution inevitable. If so, it would be just as wrong for those who want change to occur, to reject government proposals that would bring it about peacefully just so that violence becomes necessary.  If one knowingly and unnecessarily fosters bad circumstances that will make remedy for them have to be the best of a bunch of bad options, one cannot claim the high moral ground by then exercising that bad option which is best under those circumstances.  One should not have created the conditions or circumstances that required the bad remedy in the first place. (Return to text.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


 
 
 
 
 

My complete arguments for the claim that ethics is objective are in my "Introduction to Ethics." (Return to text.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


 
 

The salient paragraph of the Declaration of Independence is below. In it Jefferson powerfully makes the point essentially that although laws do not have to be moral, they cannot be so (collectively) immoral or so (collectively) bad that following them is worse than breaking them (or, in the case of the Declaration of Independence, breaking away from the authority of those who would make them).  The only problem with the following is that Jefferson equates the morally right thing with that which brings about safety and happiness, which is essentially a Utilitarian view of morality. As I point out in my "Introduction to Ethics" utility is not the only moral consideration, though it is a prime consideration.  Moreover, the Declaration of Independence is about breaking off obedience from a bad government altogether, but I would hold that the argument applies just as well to retaining a government while disobeying a specific immoral law. 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.


The Declaration then goes on to give a list of the repeated violations England has perpetrated. (Return to text.