An area of doubt - law, morality and expediency

It is not enough to say "I did what I thought was right". Sincerity is no substitute for legitimacy and justice.

Geoffrey Heptonstall
31 March 2014

Benjamin Franklin. Flickr/Bob Lindsell

There always must be room for doubt in human affairs. Any belief, any policy, any action in the political world must be subject to scrutiny. A critical awareness of the consequences, especially the unintended consequences, is a necessity. If the essence of progress is a leap of faith, the essence of democracy is doubt. It is a civic virtue to demand something better. It is a civic virtue to question the wisdom of change. It is also a civic virtue to question the wisdom of present circumstances and prevailing beliefs. To doubt is not necessarily to be cautious. There are times when doubt is a spur to passionate impulses that claim justification from a higher authority than the legitimacy of governing principles.

Must we believe at all times in the rule of law? There was a time when trade unions were against the law. Advocates of women’s suffrage were prepared to break the law. There are many such examples. So much that we accept now as integral to a civilized life was illegal at one time. In Cromwellian times the theatre was outlawed. Consider all the banned books that are now classics. Gay rights had to overcome not only prejudice but severe penalties. So much that we now find unacceptable was legal at one time or another: wife-beating, child-beating, the torture of prisoners, the burning of witches and heretics, the hanging of thieves, the bondage of serfdom and slavery.    

We move forward by stepping outside the bounds. We move forward as a civilization by legitimizing doubt about the wisdom of the current framework of political acceptance. When the climate of opinion is for doubt to prevail over the wisdom of the governing idea then democracy is realized.

To believe in the law as an absolute is to betray the wisdom of the common wealth of humanity. Absolutes always present a problem. An absolute takes no account of exceptions. An absolute takes no account of changing circumstances. An absolute presumes that the world cannot change. The rules are fixed. The codes of conduct are clear. ‘The regulations state quite clearly…’ All intelligent moral argument is stupefied and nullified by the manner and custom of the petty official, the jobsworth bureaucrat who refuses to discuss because there is no doubt in his/her mind that the question is simple. ‘I don’t make the rules. I obey them.’

Obedience becomes the highest virtue. If an attitude or opinion is correct, then it is right. There is no moral contention on the matter. There is no requirement to consider the matter further. In fact [as if it were a fact], to cast doubt on the wisdom of the correct is a revolt against common sense. It is wicked. It is mad. The idea that such things can be doubted is simply absurd. And that is that.

The democracy of doubt says otherwise. The democracy of doubt appeals to a higher virtue than simple-minded obedience. The democracy of doubt appeals to a higher law than the arbitrary rules of temporary sovereignty. Democracy appeals to the common wealth of enlightened feeling that rises within humanity at its most gracious, its most creative, its most energetic, its most generous. Life moves forward. Civilization depends on the dynamic of change. We leap forward impelled by legitimate doubt, and unconstrained by fear for our own position. Civilization progresses not by looking over one’s shoulder, but by impelling the revolutionary question of what is truly the public good.

There are those who believe in change as long as it doesn’t affect the smooth rhythm of a comfortable life. There are those who believe in debate as long it doesn’t raise difficult questions. There are those who believe in the right of others to dissent as long as they remain quiet and accepting. There are those whose beliefs are non-beliefs. All they have is a series of unexamined absolutes which are obvious and rational and good. No challenge ever can be mounted to doubt this. To speak of doubt is to sow the seeds of discord. To speak of change is to speak of treason to the unchanging moral law. 

Now consider Benjamin Franklin on the virtue of Resolution. He wrote: ‘Resolve to perform what you ought; perform without fail what you resolve.’ 

There was a revolution in which Franklin was a key participant. Had it been a revolt, the events of 1776 should have been outside the law. But it was a revolution, a moment when history turns so that one law is transformed into another. The Declaration was of independence from a perceived tyranny. The revolutionaries argued that the law had collapsed. It was their moral duty to reconstruct a new set of laws, a new form of government to meet the moral imperative.

‘Life, liberty and the pursuit of happiness’ were to be the watchwords of this new law’s moral foundation. Jefferson at first wrote the word ‘property’. It was changed by another hand to ‘happiness’. [The hand that made that change was, surely, Franklin’s?] The new law of a new state was to have a moral base. Because human beings were ‘endowed by their Creator’ with this moral conscience, a divine law superseded human law in authority. America as a nation was founded, so it was argued, both in law and according to moral conscience. Their consciences said that tyranny was not law, whereas their moral duty to rebel against tyranny was lawful. To the revolutionaries of 1776 law and moral conscience were interdependent. The question is: are they?

‘When a king is a kind man,’ Napoleon remarked, ‘his reign is judged to be a failure.’ This is a warrant for tyranny, a self-justifying ordinance that presumes power to be the principle of effective governance. And because governance is founded on law the Napoleonic view is that law is a question not of morality, but of power. Law in this way of thinking is not about what is right, but about what works. Society is seen as a machine, rather than a network of experiences tempered by values. The parts of a machine do not act according to conscience: they act according to their function

The territory within us, somewhere between mind and soul, rebels by instinct against this view of things. Society as a machine is a society without people. Chaplin in Modern Times, literally becoming part of the mechanism he is trying to operate is the quintessential image of a world where the efficient function is the end (in both senses.)

Human instinct may rebel against the inhumanity of power, but society must function according to rules which are prescribed to meet the needs of society rather than the desires of its citizens. This is morally acceptable only when the general desires of citizens meet the needs of society. In theory this should be the case always in civil [and civilized] society. In practice there is an area of doubt.

Consider the case, celebrated but often misunderstood, of James Somersett, a slave who went before the King’s Bench in 1771, and was freed by Lord Mansfield who declared slavery to be ‘odious.’ It is often supposed that Lord Mansfield declared slavery to be unlawful, and that he did so because he found it morally repellent. In fact the ruling was that a slave could not be forced against his will to leave England. [Somersett was bound for Jamaica by his master.]  On this single, narrow technicality James Somersett was released from bondage. On other grounds Lord Mansfield should have had no choice but to rule that Somersett’s servitude continue. Although  morally opposed to slavery, this judge could not do other than rule according to law.  

The recognition was that the law of society and the moral authority within society were in conflict. The conflict is age-old. The search for a resolution is one of the primary impulses of political life. The desire to govern is the desire to reconcile what is right to what is possible. Any other desire is simply an urge to exercise power for its own sake.

The reconciliation between what is right and what is possible necessarily entails compromise. Governments elected with a mandate are likely to discover impediments to executive action.  Leaders with the best of intentions betray the hopes of their citizens. This expectation is one of the accommodations of democracy. Auden’s Epitaph on a Tyrant begins ‘Perfection, of a kind, was what he was after.’  Democracy does not begin with perfection of any kind. It is thereby the least disappointing system of government, but not necessarily the most inspiring or creative. It is necessarily compromised.

But moral compromise is not moral inertia. In politics what can laws do without morals? They can subvert the constitution they are entrusted to defend. Extreme measures against the threat of terror are themselves forms of terror, the worse for being enshrined in law. In the casual act of terror life returns to normal once

the dust clears and the victims are mourned. In state terror there is no certain ending because terror is part of the order of things. The language employed to defend the indefensible and immoral may be moralistic without encountering its own moral void. You can tell a slave he is free, but if you do not unlock his manacles he is free only to rage against the hypocrisy and injustice of his master.

What can laws without a secure moral base do? Anything they like. And that is sure to be justified politically in whatever terms the politician chooses. An aggressive war becomes a crusade. An illegal war becomes a courageous act for the greater good. We do not judge our governments a failure when they are said to be kind. We judge kindness to be a necessary quality. Even tough decisions are admired as the immediate cruelty that produces an eventual kindness.

It is evident that government can act against general moral opinion, while remaining within the law. How a law is interpreted is always the question. The  interpretation can be flexible. The more unconscionable the action, the more flexible  the interpretation. And the justification is not that that the action was moral or lawful: it was necessary. The final appeal is to sincerity – ‘I did what I thought was right.’ It is as if sincerity were the highest virtue, rather than the least we can expect of people.

Society expects its leaders to act not only according to conscience, but according what is generally considered to be legitimate. Legitimacy is not the same as lawful. It may appeal, as Franklin and Jefferson did, to an unwritten but generally acknowledged law. This is an appeal to moral law, to what is universally considered just.  If the world condemns an action no politician can argue its legitimacy even when it is technically legal (although this will be doubtful). If we act with conscience against general opinion we may be proved right in the course of history, but for the time being we stand condemned.  If in the literal and narrow interpretation of the law there is no wrong, political action in the end goes nowhere without an ethical foundation. Short-term gain is possible, whereas the desired ‘legacy’ (that will earn a political action a footnote in history) disappears. ‘I did what I thought was right’ can mean ‘As a lawmaker I can decide what is lawful.’ That is not what we understand by virtue in the political world.

And this is where, by way of conclusion, we must speak of justice. By justice we mean the balance between law and ethical action. We speak of a ‘just war’.  That is the phrase in common use – not a legal war, but a just war. There may be no legal obstacle to engaging in a particular conflict. There may be, however, a general sense of unease grounded both in conscience and the law beyond the statute book and judicial ruling. Without justice government becomes not what is politically right, but what is politically expedient. The question is not what can a government get away with. The question is what can our leaders do and sleep easily, if they can sleep at all.

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