Mailbag Monday: A weekly segment that covers readers’ questions and concerns about all things Philosophy, Bro, and Philosophy Bro that don’t quite fit anywhere else. Send your questions to philosophybro@gmail.com with ‘Mailbag Monday’ in the subject line.
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Andy writes,
Bro, what’s the relationship between morals and laws? It seems like the law reflects some moral code sometimes, but we don’t all agree about a moral code. And some people’s moral code is religious. Is that kosher (heh)? Are they related intentionally, or just coincidentally?
Andy. Bro. Great question. If our laws aren’t designed around a moral code, we’ve got one fucking incredible coincidence to explain. Maybe the major ethical systems disagree on tons of fringe shit, but pretty much any system worth its salt agrees that cold-blooded murder and rape are not okay, bro. And, surprise! those things are illegal, along with a host of other things generally frowned upon by society.
In fact, there’s a legal principle called defeasibility, which just means that exceptions are allowed to any definition of a crime if there are circumstances which we think should excuse someone. For example, second-degree murder is usually described as murder that isn’t premeditated, a “crime of passion”. But what if some dude threatens you, and you’re passionate about not getting stabbed? “Your honor, I was defending myself from getting the fuck stabbed” is a pretty good defense to accusations of murder, and for good reason - it seems ridiculous to punish someone for protecting himself. He’s not morally responsible for that! What choice did he have, Earl? None!
What if some asshole with a penchant for dynamite told you that he would blow up your house if you didn’t kill his neighbor’s dog? Yeah, I know, philosophy can be a bit morose at times, but just fucking roll with it. Pretend the dog is real yappy, if that helps. Now, if you could prove that he made that threat, it’s almostcertain that you would, at worst, get a reduced sentence for your crime. You might even get off completely. Same reason: we recognize that you were under duress, threatened with your house exploding.
So historically, there’s been this strong link between criminal responsibility and moral responsibility, where we tend to only hold people criminally responsible if they’re morally responsible. The insanity defense is maybe the strongest reflection of that: there isn’t some external circumstance driving you to kill as in the previous two examples - like normal, perfectly and uncontroversially criminal murders, a particular state of mind drives you to kill someone. So what’s the difference between hating someone’s guts and being out of your goddamn mind for no reason at all? Well, we consider people morally responsible for acting on one, and not responsible for the other. Ditto legally responsible. BOOM.
But, as you’d expect, it’s hardly as straightforward as that.
Psychopaths are a pretty good case study for this problem. We have these bros who seem absolutely incapable of remorse, or even of moral emotions. Remember that time in elementary school when you let that kid take the fall for some shit that you broke, and you didn’t confess? You know that feeling of guilt you get for watching your best friend get chewed out and not saying anything? If you answered “no”, then you might be a psychopath. Or a Replicant. I mean, sure, maybe psychopaths can explain morality, even give nuanced explanations. But if you press them, usually they say something like, “people keep telling me that stealing shit and torturing animals is wrong. Whatever. But I have no problem skinning a cat. I… who cares? And, I mean, if someone else gets blamed for me burning down a house, how is that not fucking awesome?! Man, I just don’t get it.” Seriously, if you ever get the chance to read the testimony of truly depraved serial killers, make sure you fucking pass on that. Shit’s chilling, yo.
Aside from the complete inability to feel any sort of moral inclinations or engage in any sort of moral reasoning, psychopaths are, in general, completely able. Oh, also, as far as we know they’re fucking incurable. Sweet, right? Now, if they can’t understand in a reasonable way what they do wrong, can we hold them morally responsible? And if not, then what do we do with them legally? We don’t have many options - lock them up completely, put them in an asylum where they won’t get any better, or, you know,let them wander. And when you know someone can’t be cured, what is the realistic difference between a life sentence in prison and an indefinite stay in an asylum? But we probably shouldn’t make a habit of releasing wanton, unapologetic murders out into the street. So here it seems like we need a damn good account of the relationship between moral and criminal responsibility, and of course we probably should have a more nuanced understanding than we initially expected.
On the question of religion, this is something that really shone through in political philosophy debates in the middle of the twentieth century. John Rawls led the charge from one side - he said that a bro should only support policies that he could support for a secular reason. So yeah, “Thou Shalt Not Murder” was the fifth commandment; does that mean laws against murder are unfair endorsements of religion? I doubt it. There’s a perfectly good reason to ban murder - people fucking hate being murdered. Seriously, have you ever been murdered? It’s the worst. Everyone pretty much agrees that if there’s a good secular reason for a law, it’s cool. But must there be a secular reason? Jurgen Habermas led the charge from the other side, arguing that you can’t ask people to stop thinking religiously for a second. Thinking religiously is an integral part of how most religious people are; if you asked a Christian whether there was a good secular reason to disagree with abortion, he’d just look at you all confused and shit. “How does a secular paradigm make a fetus not a life??” And that would be justifiable confusion. Religious convictions inform the religious at the deepest level - if we would ask them to cease reasoning from those convictions on the most important questions, perhaps we’re asking too much.
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For an in-depth discussion of psychopathy, morality, and the law, pick up Responsibility and psychopathy: Interfacing law, psychiatry and philosophy. Be aware, however, that it leans slightly toward exonerating psychopaths of moral responsibility, which is not by any means the only viable position.