Morality, Ethics, and Justifications of Laws

When people debate about politics and law, they often use various moral and ethical belief systems to justify their position. I’ve observed that most political justifications can be grouped into two types:  consequentialist and deontological. This topic is of utmost importance to all political philosophical debates, so do not skip this read. I have not completely formulated my ideas and conclusions on the matters. This should not be a surprise since even professional philosophers have been debating these ethics theories for centuries with little consensus to show for it. But, I will give a brief description of the two main ethics theories, comment on them, and then present a reasonable tentative compromise.

1. Deontology: the view that the ultimate basis for judging the morality or goodness of an action is the character of the action itself and how that action conforms to a particular moral standard or rule, regardless of the outcome or consequences. People who use these arguments usually say something like: ‘this action should not be legal because it is inherently morally wrong’. This view is usually associated with “moral” standards that must not be violated.

2. Consequentialism: the view that the consequences of actions are either important or the ultimate basis for judging the morality or goodness of those actions. A more extreme subcategory of this is utilitarianism, the view that the only relevant measure of the rightness of an action, system, or rule is whether the consequences are net positive in happiness levels for all those affected. People who use consequentialist arguments justify their beliefs based on the practical, net benefit outcome of the policy/system. They often say something like: ‘This is a better law/philosophy because it has a better net outcome for people, and people are helped’. Utilitarianism is usually what’s behind appeals to the “greater good” at the expense of individual liberty.

Most people don’t realize this at first, but both of the above moral theories are absolutist, since absolutism only means that there is at least one moral rule that is always true in all cases (truly general). Even utilitarianism is an absolutist type theory because it says that the morally right thing to do in all cases is that which maximizes the greatest happiness for the greatest number.

People will usually be using one of these two ethics theories to justify their political positions. And, although I am going to speak negatively about utilitarianism, many libertarians are also utilitarians. There are libertarians in both camps here. Some justify libertarianism on the grounds that there exist inalienable natural human rights that should not be infringed upon by very moral principle (I lean this way almost always), whereas others justify libertarianism on the grounds that it simply leads to the most practical benefits and highest standards of living and happiness than in any other system. And, although a libertarian may only ascribe to one of these theories, libertarians often have to argue in both camps in order to persuade the typical person to adopt a libertarian position. This is why I will often argue on both deontological and utilitarian grounds in many of my posts on specific topics.

This field of ethics can be very tricky and the debate can often revolve around slight issues of definition. And, some theories combine the two types in various ways, and there are sometimes ways of interpreting one of these theories as veiled versions of the other at a different level. But, as of now, I think that moral justification (deontology) is superior most of the time. And the political (not personal or religious) moral standards libertarians use are freedom and protection of property rights, which I generally consider self-evident (more on that later). To be clear, we libertarians do not believe in forcibly pushing our moral values on others, in the sense that conservatives and modern “liberals” do. Our cornerstone moral value is the “voluntary” criterion, the non-initiation of aggression. When multiple consenting adults wish to engage in some activity, statists often like to step in and say “no” and proceed to forcibly stop that activity. Also, sometimes a statist wishes to physically force someone else to do something that they don’t want to do, violating their free will. Also, a statist often wants to come up to an innocent person and steal their property. All of these intervention/violation types are inherently, morally wrong. This is what libertarians mean when we talk about ethics and morality regarding government actions.

This talk about using morality as a guide to law can be quite misleading, as alluded to above. Thinking about morality, some people may think that it’s immoral to drink alcohol to intoxication (get drunk), and so may believe that they should advocate outlawing drunkenness. After all, according to their moral standards (probably religious) which many others also have, they seem to be making a moral law. However, what if this same person also generally believes, as libertarians do, in the ethic to not initiate physical aggression? Passing a law to outlaw intoxication is the same thing as imposing your will on others by force through police, as government is nothing more than an organization that uses physical force and violence, or the threat thereof (See here for more on that). So, if a person wants to get drunk, and they are otherwise minding their own business, most would agree that it is immoral to come up to them and use physical violence against them to stop them from drinking. So, is the moralist in a tough spot where he must choose between two morals? On the one hand, his morals seem to tell him to outlaw drunkenness, and on the other hand they seem to require that he not use violence (government force) against this drunkard who is minding his own business. It seems that he could be making a moral choice either way, or an immoral choice either way. Which moral should he choose? How can we follow the basic libertarian morals and ethics that nearly all of us have within us at the same time as following the many other morals and ethics that many of us have that may be very different from person to person. And, if we want to embrace morality in law, how do we argue against the self-righteous moral pushers who wish to legislate all kinds of “moral” rules into law, such as outlawing alcohol, drugs, prostitution, gambling, and gay sex, or requiring charity through forced taxation?

To address this, one must remember that political philosophy is essentially a subject about two things: (1) the appropriate uses of physical force between people, and (2) the justifications of property ownership. Libertarians do not claim to have a complete worldview or moral system to live one’s life. We are merely concerned with that sphere of life that deals with property and the use of physical force against others.

Now, let’s consider classifying people’s actions into two types according to the relative perspective of the actor. I simply make up this classification because it is convenient for my purpose of explaining. We’ll call the first class “primary actions”. These will be actions that a person does, generally. A person might do various “primary actions”, which may or may not be moral. The next class is “secondary actions”. These are the actions that a person does to another person concerning what that other person is doing. A person might do various “secondary actions” to another person, which may or may not be moral. Note that any person may at one time or another be doing actions of either the “primary” or “secondary” type. If a person wishes to make only moral choices and actions, then all of their actions, both “primary” and “secondary”, must be morally right. If they fail to adhere to moral rules in either of these classes of actions, then they are acting immorally. So, a true moralist must be moral in both classes of actions.

Let’s consider persons A and B. Person A does some action. This will be a “primary action”. We may want to determine if that action is moral or immoral, according to whatever standard. In this example, let’s assume the action is judged to be immoral. One might correctly say that Person A’s action is immoral. Then Person B comes along. He, wishing to make moral choices, does not engage in those “immoral” actions that Person A does, so Person B is staying moral with regard to his own “primary actions”. But, Person B sees that Person A’s action is morally wrong and considers various “secondary actions” that he may make against Person A regarding Person A’s “primary action”. Person B considers using physical force and maybe violence to stop Person A from doing that certain immoral “primary action”. Is it morally permissible for Person B to do this? We need more information. If Person A is not harming others or violating anyone else’s rights, then, although his actions may still be “immoral”, Person B cannot morally use force and violence against Person A, because this would be initiating violence against a nonviolent person, which is itself immoral (note that self-defense is not initiating violence, it is responding to it, so that’s different and seems morally permissible to me). Person A may be making immoral choices, but if Person B wishes to stay morally right, he must both make right choices in his own “primary actions” and also his “secondary actions” towards other people.

When you (the reader) are considering various laws or government systems, you are putting yourself in Person B’s position, while everyone else in the society is like Person A. Coming back to the example of outlawing drunkenness, how do we apply this? Let’s say that you are striving to be completely moral in how you advocate laws. In other words, you want a set of laws that are completely moral according to your standards. Let’s assume that drunkenness is immoral, at least to your (Person B’s) standards (whether or not drunkenness is actually immoral is irrelevant, let’s just say that you, Person B, think that it is). You are in the position of choosing whether or not to outlaw drunkenness, an action/behavoir that you think is immoral according to some standard, yet peaceful toward others. After all, it’s possible to get drunk and not harm others or violate other peoples’ rights.

The only way that you can be completely moral in all your actions is if you remain moral in both your primary and secondary actions. So, in this case, you yourself must abstain from drunkenness, but you also must not initiate physical force or violence against another person who is getting drunk. In this way, you can remain completely moral in all your actions. Whether or not some person out there is acting morally is one issue. A completely different issue is whether or not you yourself are acting morally toward that other person. So, if you want to base your political philosophy on morality, you must not advocate laws that attempt to force other peaceful people to behave according to some moral standards that you think exist. So, when can we morally pass a law? When can we morally use force against another person? The answer is when that person is harming you or someone else, or violating your’s or someone else’s rights. (However, if you are a full pacifist or believe in an interpretation of the Christian Bible that commands us to not even use force in self-defense [turn the other cheek], you may take a step further and choose to never use aggressive force against others, even in self defense. But, that’s above and beyond standard libertarianism). But, I will not go into detail on that here. All I want to do is clarify that making laws based on morality does not include self-righteously imposing every one of your morals on others by force.

Moving on, let’s consider utilitarianism, a subcategory of consequentialism. It seems pretty clear that the basic version of “act” utilitarianism is ridiculous and abhorrent once one actually experiments with what it means. Here are some thought experiments for the various ethics theories:

Kidneys:  Let’s consider a law that requires everyone to be a potential kidney organ donor (while alive) if someone else needs a kidney. This way, if anyone ever needs a kidney, they will quickly be able to get one without dying. Note that a donor only needs one kidney to live. Even though there is risk associated with poor surgery procedure, it is obvious that over all, considering the health and well-being of all individuals, this law would help people and save net positive lives. That is a practical justification that would be considered morally permissible under utilitarianism. However, a libertarian deontologist would argue that the law is immoral because it forces people against their will to donate one of their kidneys, which is their property. It’s wrong because it uses the coercive force of law against a person’s will, and this violation of freedom and property is inherently immoral.

Rape:  Here is a particularly offensive example. Even though most rape would be considered bad according to “act” utilitarians, they have an offensive reason. They might claim that a rape is wrong merely because the net outcome for the people involved was negative; that the man may have gained some pleasure, but the woman’s unhappiness and suffering was larger than the man’s pleasure and so outweighed his pleasure, resulting in a net negative result. At least these utilitarians would agree that rape is wrong, but is that really the reason why it’s wrong? What if some twisted, extremely lustful, psychopath hadn’t had sex in years, and so raping a woman would result in extremely high levels of pleasure for him, much more than for a typical person? And, what if his victim was a lose woman who didn’t care too much about sex with strangers. She might say “no” to the rapist and feel violated when raped, but maybe her suffering wouldn’t be as severe as for most victims. Could this be a case where the happiness of the rapist just slightly outweighs the suffering of the victim? If so, utilitarianism would suggest that such a rape is morally permissible. However, a libertarian deontologist would argue that any rape is inherently wrong as it harms and violates the free will of an innocent victim, regardless of the net outcome of happiness levels.

If and when a utilitarian advocates for free speech rights, they do so only on the justification that free speech is practically good for society (and are often quick to favor violations of free speech if they believe it is for the greater good), while a libertarian deontologist would advocate for free speech rights simply for the principle of it.

When so many people justify the redistribution of wealth through taxation, free health care paid by tax money, consumer regulations, minimum wage laws, the drug war, warrantless wiretapping, and TSA scanners at airports, they often invoke the idea that it has a net positive outcome for people, and maybe even saves lives (although these claims are usually false). But, I’m against these things by principle because it is immoral to coerce people through law against their natural right of free will, property, and privacy. Historically speaking, governments have committed many atrocious acts upon their subjects in the name of practically attaining the “greater good”.

Now that we criticized “act” utilitarianism enough, it should be admitted that there are other forms of utilitarianism that aren’t as offensive, such as “rule” utilitarianism. “Rule” utilitarianism is the belief that the right system of rules is that which produces the greatest net benefits and happiness levels. Instead of focusing on individual actions, it focuses on overall sets of rules (such as a government system or set of laws). Utilitarian libertarians don’t usually subscribe to “act” utilitarianism, but to “rule” utilitarianism. They believe that a set of rules that restricts government power, outlaws property violations (stealing), and forbids one person from initiating physical aggression upon another, will generally produce a society with the greatest net happiness. I agree with this descriptive claim. Even most deontological libertarians like myself agree with this practical benefit claim, it’s just that they don’t found their ideology on this claim; they instead found it on natural rights principles. On the other hand, libertarian “rule” utilitarians found their libertarian ideology on this practical justification. I don’t want to give the impression that “rule” utilitarianism directly leads to accepting libertarianism; some people may attempt to argue in favor of other political systems based on “rule” utilitarianism. We won’t go into further detail on “rule” utilitarianism. Moving on, let’s consider some other thought experiments that may be tough on deontologists and conventional moral rules.

Starving child:  This hypothetical case is a close match to many political arguments. If an orphaned child is starving and will soon die, and you have no food or money to give it, and the only option available (for whatever reason) is to steal food (or money for food) from someone else who has plenty in order to save the child’s life, is this stealing morally permissible? A consequentialist would offer an easy “yes” because saving the child’s life is a huge benefit compared to the tiny violation of stealing $5 for a sandwich from a rich guy who is too selfish to help the child voluntarily. A deontologist might say that the stealing is wrong, regardless, even if it is to save this starving child. But, this probably seems unreasonable to most people, including myself. And, as is the case for utilitarianism, this portrayal of the deontologist may be oversimplified and incorrect in some cases.

A deontologist is not necessarily a moral absolutist with regard to just any conventional rule that you can think of (technically, though, utilitarianism is also an absolutist theory). After all, it’s possible that some rules are only “rules of thumb” (rules that are correct to follow only most of the time, but may depend on circumstances), and that certain absolute rules, whatever they may be, only exist on a higher order. Such absolute higher order rules can then derive the lower order rules of thumb, and such higher order rules could then explain and account for case-specific deviations from rules of thumb. And, even within deontology, who’s to say what the correct rules are? Some general rule might be that: ‘stealing is wrong’, period, no matter what. But, even a deontologist might deny that this ‘stealing is wrong’ rule is actually the correct rule at all, and instead claim that it is a lower order derivative rule of thumb. A deontologist could conceivably articulate a moral standard or rule that is a little different and maybe more general (higher order) such that it can accommodate this starving child case that most people would consider an exception to the usual ‘no stealing’ rule of thumb. Such modifications could deal with clarifications on property rights, or why it’s wrong to steal in the first place, or the new rule could simply incorporate outcome-based exceptions by definition (this last procedure should only be done with great care, since it could easily be abused). This is where it all gets tricky and out of my league. Even so, I think we can form a reasonable and tentative compromise that conforms to our usual intuitive senses of morality and that also serves to articulate something usable for the novice like me (and you, most likely). 

Tentative Ethical Compromise: 

The starving child case offers a compelling argument for some consideration of consequences and exceptions to commonly held cornerstone moral rules. It seems that it may be morally permissible to break the conventional moral rule of ‘no stealing’ in order to save the child (note that, at least for now, we are not bringing religious arguments into the debate, see this post and this post about separation of church and state). I believe that most people, deep down, including myself, are heavily deontological in most matters. We usually have this mindset about human rights. For example, we speak of slavery as inherently wrong and rightfully ignore the ridiculous arguments that attempt to claim that it was practically good for most slaves (not only did it decrease happiness levels overall, but it would still be wrong even if it had offered net positive benefits). We consider murder wrong, even if the potential victim is generally a bad person and the murder would practically help some situation. However, it’s possible to believe that consequences matter and to be somewhat consequentialist, without necessarily being a full utilitarian. I would describe myself and the vast majority of people as:  mostly deontological, but with some consequentialist modifications if the net consequence is very, very, good relative to the bad. A simple net positive happiness outcome, as in utilitarianism, is inadequate. The net positive has to be very high in order to break a long held, foundational moral rule. Usually, when I’m talking or writing I’ll speak like a strict deontological moral absolutist just for brevity, but I’m not necessarily one depending on how we derive the rule and what rule we are talking about, and I’m open to modifying a conventional moral rule to make it better. I say this here so that you understand the context of other posts. Even though I’ll usually flatly say “stealing is wrong” for brevity, I am open to exceptions for extreme circumstances. My (secular, applicable to government) modified statement may be something like: ‘stealing is wrong unless there is a very, very high net positive outcome in it.’ This pattern may be repeated for other foundational moral rules of freedom and harm to others. If someone wants to break a foundational moral rule, they have to pass the test of very high net benefit.

My earlier claim that the vast majority of people are heavily deontological unless there is a very high net positive consequence may seem incorrect to many people. Such critics can cite many government programs and laws that are popular that have little deontological flavor and are mostly utilitarian in nature. This would suggest that most people are mostly utilitarian in many areas. However, I would attribute this apparent contradiction to:  a) intellectual laziness or incapacity, b) the very nature of a large scale impersonal government that shields most people from seeing the true nature of the government’s actions, and c) desensitization to immoral government actions merely because many have grown accustomed to such actions from childhood and have not ventured to question them. When many of the government’s actions are distilled into their essential nature, and then presented to people, the vast majority will then show their heavily deontological roots. This is why I say that most people are deontological “deep down”, even if they may not yet realize it. These claims will be justified in more detail in many other posts, case by case.

Say’s Who?:

I’d like to briefly touch on the origin of moral standards and how we can claim to know anything at all about them. A person may claim, “It’s wrong to do x”, then another person may say, “says who?”. I personally have religious roots behind my moral convictions, but I don’t think that I even have to resort to that to defend the positions I take. In order to appeal to all audiences, I attempt to justify moral claims in a secular way. Without divine revelation, how does a person approach morality? One way is to deny that morality exists at all (usually hard determinists). But, for those who actually do believe that moral standards exist and ought to exist in some way, but choose to avoid a religious foundation, I believe that the following procedure is the best way to “discover” moral standards…

To discover fundamental higher order moral standards, one could conceivably conduct numerous thought experiments and inwardly observe our ethical, emotional intuitions (results, so to speak) in each case, then use the tool of “consistency” to remove conflicts and gradually generalize and systematize these ethical intuitions into more general rules (“general” meaning applicable to more, and ultimately all, scenarios). I certainly don’t have time to go into detail on this subject in this post, but I’d like to introduce it. It’s important to realize that philosophical ethics cannot fundamentally tell us what is morally right or wrong, it can only organize and systematize preexisting ethical intuitions and resolve logical conflicts between them. So, the application of “consistency” requirements is crucial in this manner.

Here’s an example. Let’s say some typical conservative believes that marijuana should be illegal because it impairs motor skills and judgment and could result in a less productive worker. But it’s also known that he favors alcohol being legal, in fact he has some wine in his own house. Without even resorting to moral axioms about human rights, I could simply start out by pointing to the logical contradiction in his position. After all, alcohol is also a drug, and it also can lead to the effects that marijuana does, and it’s actually more dangerous than marijuana. By pointing out this contradiction, I haven’t necessarily demonstrated to the conservative that weed should be legal, I only pointed out that he cannot hold both positions at the same time, that he cannot favor banning weed and not banning alcohol at the same time. He could respond in two ways to be logically consistent:  1. he could decide that alcohol should also be illegal, or 2. he could decide that weed should be legalized. Either response would lead to consistency, but the application of consistency does not in itself tell us which road is the morally right road. Instead, in the secular mindset, we have to look into our own hearts for that (I personally don’t adhere to this, since, as a Christian, I believe divine revelation has the final word, and not “my heart”). And my guess is that, once most people actually realize this inconsistency, they will tend to pick legalizing weed (after all their other arguments are also defeated in similar manner). This example only involves demanding that people be internally consistent with themselves.

The next step would be to ask, “Why should both alcohol and weed be legal?”, and then try to determine a general rule that describes our intuitions about this. Such a rule could be that “a person ought to be able to make their own decisions on whether or not they wish to have impaired motor skills and judgment, so long as they are not harming others”. Then, one could conduct other thought experiments to see if this general rule (theory) still conforms to our intuitions (results) in these other experiments, then modify the general rule accordingly. If this process is repeated many times with many different thought experiments, one can gradually remove inconsistent ideas and develop general rules. (Some of you will notice that the above procedure is quite similar to the scientific method.) So, I believe that the basis of a secular foundation of moral philosophy is to inwardly observe our own intuitions about case scenarios and then apply the tool of “consistency”. After noticing trends among many case scenarios, we can then formulate general descriptions, that is, generally applicable moral theories or rules.

In summary, many libertarians are heavily deontological. They believe in inalienable natural rights that all persons have, that of freedom, privacy, property, and the right not to be harmed. Put another way, they believe that it is wrong by principle to initiate physical aggression against another person (this is what violating one’s freedom means) or violate a person’s property rights. The very nature of violating others in this way is wrong. However, many libertarians found their ideology on consequentialist grounds, and even some form of utilitarianism. They make the argument that a libertarian structure for society produces the best results of happiness for the most people. Many economists are friendly to this view, as they realize that a true free market produces the highest standard of living and happiness for almost everyone, even the poor. It’s quite true that one can argue confidently for libertarianism under either ethics theory. Libertarianism is the political philosophy that is both most moral and produces the best outcomes for the people.

3 thoughts on “Morality, Ethics, and Justifications of Laws

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