Commentary

Law vs. Morality

When the Enron case broke, many business bashers jumped at the chance to blame deregulation for the mess. The same had occurred when California started to experience blackouts and hikes in energy costs last year.

Indeed, following some mild moves in the direction of a genuine free market in many parts of the globe and even here in the USA, a lot of well- positioned commentators with clearly statist sentiments experienced near-panic. Indeed, there might be, after decades and decades of sliding toward broader and broader scope for government authority in our lives, some retreat of state power in the offing. This, obviously, couldn’t be allowed.

So, one way to attempt a reversal of the rather mild trend toward privatization and deregulation is to begin to blame everything on freedom. And one plausible spin would be to declare that corporations are no different from rouge states, in need, therefore, of the heavy hand of benign government regulators.

In the back of some of these desperate efforts — to stem any advance toward greater individual liberty in human community life — is a lesson that might otherwise be missed. It is that when the state does gain widespread intrusive legal authority in the lives of the citizenry, the citizenry will begin to be guided not by its moral conscience and common sense but by the sole consideration of whether what people are doing is OK with the law-makers. Some corporations, for example, declare up front that they are not interested in business ethics — which they take to vary from culture to culture — but only in the law. (Which probably is what accounts for the prominence of legal departments at most corporate headquarters.)

But the problem extends farther than business. Recently in Orange County, California, the American Red Cross sponsored an event at a privately owned hotel to which a group of high school students had been invited to sing. Having learned that the singers would belt out some songs that had religious content, the Red Cross folks decided to demand that these be removed from the program, probably figuring that such would be the PC and legally harmless thing to do these days. And as much as this outraged a great many people in the community and ultimately led the Red Cross to issue an apology, what transpired made some kind of perverse sense.

When activities are carried out or supervised by the legal authorities, the principle that no special favors must be extended is the rule. Under the law, everyone must be treated the same, without regard to religion, color, national origin, and other special attributes. It is this idea that animates the 14th Amendment to the U.S. Constitution and, indeed, the rule of law itself.

The reasoning behind this is rather straightforward. The law governs us all as human beings who live in human communities. So, it is only our common humanity that must come into play as far as the law is concerned, nothing special about us. If one must not kill, assault, kidnap or rob others, that applies simply by virtue of being human not because one hails from Japan or has dark skin pigmentation. That is one reason why segregation, dictated by the laws of various Southern states, was so clearly unjust. That is why even when it would appear to make some sense, racial profiling is a very dubious police practice. That is why sexual or ethnic discrimination by governments is to be forbidden.

But there is a conflict between this unexceptional idea and the widening of the scope of government power. When we get away from the simple negative principles of a just human community — don’t kill, don’t assault, don’t rob, don’t rape and such, meaning, basically, that we should all live together peacefully — and start regimenting the details of human life, people are no longer similar at all, quite the contrary. Maybe some should and some should not smoke. Maybe some should and some should not go to church. Maybe some should and others should not paint certain kinds of pictures or play certain sports or purchase SUVs or talk with the animals. Only at some very basic level are we all — or virtually all of us — alike. We become differentiated rather quickly as it concerns the details of our lives — some are parents, some teachers, some tall, some women, some young, some athletes, some Roman Catholics, some Jews, some Moonies and some even agnostics or atheists.

Well, in a community that respects — and has made provisions for the protection of individual rights — the diversity of human life has nearly free reign. Just look around America and this becomes evident! If now government tries to apply its principles of equal protection under the law to all the different areas of human activity that can arise in a highly diverse society, the task will be impossible and nearly totalitarian. If the American Red Cross acts, then, like a quasi-government, making its program suited to everyone equally, it will find itself unable to do anything even mildly special, let alone controversial. But if its programs are carried out for the general public, it could become concerned about whether to conform to the spirit if not the letter of the law. It may not have to but it may still consider it politically prudent to do this.

This is how we begin to leave our common sense and try to make practices adjust to some artificial one-size-fits-all vision of community life that, in fact, fits no one at all. But once education, recreation and athletics — to list but a few things people do in life — become quasi-government affairs, they cannot be differentiated based on different needs of different segments and members of communities. They gradually become the same, or at least pretend to be such, so as to accommodate the now impossible ideal of the now highly intrusive rule of law.

Not only will this generate completely artificial practices and bans but it will also take our minds off what is really important, namely, figuring out on our own how we should conduct ourselves in our lives. We now will be inclined to focus not on morality or ethics but on public policy and law. That is quite understandable, since when law and public policy are not heeded, severe consequences can ensue. We can be found to be law-breakers, which brings about costly sanctions. You smoke in a pub now and this means going to court, paying fines, putting your life on hold. You offend some group and spend years in court!

The American Red Cross officials may perhaps not be fully forgiven for losing their common sense but it is at least understandable why they worried so much about being politically correct. With religious songs at an event open to the public, they would risk bringing down upon them the wrath of the American Civil Liberties Union if not immediately the local police.

A society where laws have become the answer to all human problems, laws get completely confusing and many people begin to be concerned with nothing other than avoiding violating the law. Such a society is very likely to see ethics and morality slowly but surely recede from its midst.

Tibor Machan is an adjunct scholar at the Cato Institute.