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Article Excerpt
Patrick Colm Hogan Tragic Lives: On the Incompatibility of Law and Ethics
A common view, shared by legal theorists and ordinary people, is that there is and should be a close, positive relation between ethics and law, that law should, and commonly does, embody ethical principles. There is certainly some validity in this view. But there is at least as much error as validity, for ethics and law are also deeply opposed. I am not referring here to contingent oppositions--particular laws that are immoral, particular judges who are corrupt. I am referring to a fundamental contradiction between the principles that guide ethical adjudication and those that guide legal action.This contradictions in one of the tensions that can make human life tragic. As such, it is also bound up with the development of tragedy in art. The following essay begins by examining the irreconcilability of law and ethics. It then takes up the relation of this to tragedy in both literature and life. it concludes by considering two works--one modern (Krzysztof Kieslowskis Decalogue V). one ancient (Aeschylus' Eumenides)--that treat this tragic irreconcilability and that suggest how ethical considerations might curb the otherwise inevitable cruelties of law.
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If asked about the relation between law and ethics, I imagine that most people would say something along the following lines. Actual legal systems are not fully ethical. There are many points where the law allows unethical activity. Moreover, there may even be points be points where the law punishes ethical action. Certainly many legal systems in the past (e.g., in Nazi Germany) have done this. However (they might continue), legal systems should ultimately be compatible with ethics. This is not to say that law should force everyone to adhere to some particular morality. However, it should not contradict a core of fundamental moral principles.
The point is not merely commonsense. It is adopted, implicitly or explicitly, by a range of legal theorists as well. Natural law theory is an obvious case in point. As Robert George explains,
Some natural law theorists propose to identify basic principles of practical reasoning and morality and to derive from those principles norms to guide the decisions of legislators and, in some cases, judges. Others seek to guide legal interpretation, reasoning, and adjudication on the basis of a putatively necessary connection between law (or legality) and morality. (George 1994, v)
Even theorists who tend to separate legal and moral concerns do not commonly see them as intrinsically opposed or irreconcilable. Thus Margot Stubbs explains that a key tenet of positivism is that "there is no necessary connection between law and morals." But this does not mean that positivists do not distinguish between "law as it is and law as it should be" (1993, 455). Indeed, Stubbs implies that the lack of a "necessary connection between law and morals" is precisely what allows a distinction between "law as it is and law as it should be." In keeping with this, David Lyons (1984b) explains that positivists may point out the moral fallibility of law. Lyons's own view is consistent with this attitude and, I suspect, shared by a wide range of writers, lawyers, and judges. As he puts it, "Though law is no simple fact, we have more reason to regard it as a social datum, subject to moral appraisal, than as something automatically informed by moral principles" (1984a, 3). Presumably the point of moral appraisal is to improve the law by bringing it into conformity with moral principles.
Nor is this view confined to what might be considered more traditional approaches to legal theory. For example, feminist writers often invoke moral principles in criticisms of current law. Thus Ann Scales writes that "The feminist legal standard for equality is altogether principled in requiring commitment to finding the moral crux of matters before the court" (1993, 54). In connection with this, Scales discusses how feminist legal theorists have drawn on Carol Gilligan's idea of a female "ethic of care"
At one level, one can hardly disagree with this general view of the relation between law and ethics. We might have different ideas about the use of philosophical ethical theory in legal reasoning (as discussed by Richard Posner [1999]), the degree to which the best interpretation of the constitution might be a justification that incorporates moral principles (as treated by Ronald Dworkin [1978]), whether the immorality of an act is sufficient to justify its legal regulation (as examined by H.L.A. Hart [1971]), and so forth. But it seems clear that there are some basic moral principles that should be enshrined in law and other moral principles that, if not enshrined in law, should not be contradicted in law. For example, I imagine most of us would agree that the killing of innocent people is morally wrong and should be prohibited--and certainly should not be fostered--by law.
But, at another level, I believe that this common view is quite mistaken. In fact, there is, I will argue, a profound and irresolvable conflict between law and ethics. This conflict is pervasive. It exists no matter what the precise nature of the legal system, the precise laws it comprises, the exact procedures it employs to enforce those laws. Indeed, this conflict between law and ethics is one feature of human society that makes life tragic--not simply unhappy, but inexorable in the production of pain that is morally wrong. There are two elements of this necessary conflict. One concerns those who are guilty of some harm. Legal systems invariably entail moral excess in their punishments. The other element concerns people responding to the guilty persons; we might refer to them as "evaluators."There are always cases in which law prevents evaluators from acting in a fully moral way. (1)
As this suggests, the conflict between law and morality is also an important element in the development of literary tragedy. Indeed, the conflict between law and morality is at the root of Western tragedy--in part due to the Greeks' "awareness of the fragility of law and the moral values it embodied," as William Allan put it (2005, 79). Perhaps the most obvious case of this is Sophocles' Antigone. Antigone's moral obligation to her brother brings her into conflict with the law established by Creon. Initially, the law prevents her from fulfilling her moral obligation. Subsequently, when she does partially fulfill that obligation, she is punished and the punishment (death) obviously involves excess from the moral perspective. One way of phrasing the conflict here is to say that there is a contradiction between the needs of the community (manifest in Creon's law) and the moral duties of and toward individuals. This issue is not confined to the West. For example, the ancient Sanskrit epic, Ramayana, includes several moments of such conflict. A famous case occurs in the final canto. The people believe that King Rama's wife, Sita is pregnant by another man. They maintain that, if this goes unpunished, women will feel free to have multiple sexual relations, with disruptive consequences for social order. Rama's personal, moral obligation to his wife come into conflict with the needs of the populace, subsequently established in law through Rama's banishment of Sita. Sita's punishment is, in an obvious way, morally excessive as well. A third instance may be found in the Chinese drama, The Injustice Done to Tou Ngo, by the premier Yuan dramatist, Kuan Han-ch'ing (late 13th/early 14th century). In this play, the main heroine makes a false confession in order to protect her mother-in-law from the threats of corrupt magistrate. She is then executed. Here we see Tou Ngo's moral obligation to her mother coming into conflict with her obligations toward the law, with morally excessive, tragic results.
On the other hand, these three examples are not really ideal for my purposes. Specifically, they do not point to any necessary conflict between ethics and law. Indeed, they point toward precisely the contingent conflict that is widely acknowledged. More exactly, these works point to three obvious ways in which law and morality might accidentally conflict--in the formulation of law, in the determination of facts to which a given law applies, and in the application of law by the judiciary (which may be corrupt and incompetent). In the case of Antigone, we simply have a bad law. There is no reason to believe that leaving Polyneices unburied is beneficial to society. Indeed, Teiresias explains that Creon's decree has itself proven socially harmful (2) (11. 1016-1018). In the case of Rama and Sita, the facts are misunderstood. No harm has been done that requires punishment, for Sita was never unfaithful. In the case of Tou Ngo, there is corruption in the judiciary (along with the use of improper investigative techniques--specifically, torture, which, the play rightly suggests, produces false confessions [see Kuan 1972, 134] (3)). These are important and pervasive varieties of conflict between law and morality. They do give rise to tragedy, in life and in art. In practice, it may be impossible to overcome them. However, they still do not point us toward the most profound and necessary conflicts between these two systems of norms.
Most often, literary conflicts between law and morality fall into one of these three categories, or are of a related, contingent type. Literature tends to show this opposition as incidental, a flaw due to the precise laws at issue, the accessibility of the facts, the rectitude of the men and women involved in the legal process. (Ultimately, of course, all three are a matter of human flaws--the flaws of legislators in the first case, the flaws of investigators in the second.) But there are literary works that at least approach the more fundamental, existential issue, the very possibility of making law and ethics compatible. Works of this sort often share the same broad approach to the conflict. Specifically, ethical acts are a matter of individual choice. Insofar as they issue in action, they are subject to the law--hence the possibility of contingent conflict, as in the case of Antigone. In other words, the ethical choices of citizens are embedded within social law. However, works that treat the fundamental conflict between these normative systems do not stop there. They tend to urge a further embedding, an embedding of law within ethics as well. We find this not only in the sense that the judges, jurors, legislators, detectives, and police should be upright. We find it also, and more importantly, in the sense that the imperatives of law should be qualified by ethical considerations. Indeed, there are even specific acts that tend to be the object of recurring consideration in these contexts--acts of state cruelty, such as torture and, in the most extreme case, murder (or the death penalty).
In the following pages, I wish to explore, first, the ways in which law and ethics are in necessary conflict with one another; second, the ways in which this conflict gives rise to tragedy in life; and, third, how such tragedy is manifest in literature. In the final sections. I will consider two works that address state cruelty--specifically, the imposition of death as punishment for murder--one modern (Krzysztof Kieslowski's Decalogue V), one ancient (Aeschylus' Eumenides).
Morality and Law
Most of us have an intuitive sense that law and ethics comprise related systems of norms bearing on action. However, isolating just what differentiates these systems is not as easy as it may seem. Clearly, they are not the only systems for evaluating actions. In fact, most of our evaluations ("Should I bring an umbrella?") are neither legal nor moral. We might term these other evaluations "pragmatic," but that only pushes the problem back. What differentiates legal and ethical from pragmatic evaluations? One's first impulse may be to say that the former are non-instrumental. However, there are instrumental considerations that enter into both systems. Saying that legal and ethical evaluations concern what is good and bad is of no use, because it is circular. It tells us only that laws and morals treat legal and moral goods--and, after all, pragmatic evaluations treat pragmatic goods.
There are a number of complex issues here and the scope of the present essay does not allow a developed treatment of any of them. However, it is possible to sketch a few key points. First, an obvious and common way of differentiating law and morality is by...
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