Elshtain Says Legal Moralism May Diminish Personal Responsibility

October 28, 2003

ElshtainMaking laws to enforce moral codes more strictly may diminish people's ability to be responsible for their own actions, according to professor Jean Bethke Elshtain, who delivered the Meador Lecture in Law and Religion in Caplin Pavilion Oct. 23.

"Perhaps an excess of moralism contracts the domain of responsibility," said Elshtain, Laura Spelman Rockefeller Professor of Social and Political Ethics at the University of Chicago.

Elshtain said she once struggled with the lyrics of Bob Dylan's 1966 song, "Absolutely Sweet Marie": "to live outside the law, you must be honest."

"What on earth was Dylan trying to say? Shouldn't law and honesty be put together, rather than to suggest that living outside the law demands honesty?" Elshtain asked.

"Living outside the law, not as an outlaw, but as a free and responsible citizen means that the writ of the law need not blanket the entire universe with a moral mandate," she answered. "The challenge and indeed the premise of democracy is that we do not require the policeman on every corner, we do not require a law about every small thing, in order to live as honest citizens, in order to realize a life of freedom."

Furthermore, attempts to legislate all contingencies can lead us down a dangerous path towards diminishing individual freedom and responsibility. She cited the recently enacted "Maggie's Law" in New Jersey, which makes "driving while drowsy" illegal, allowing prosecutors to charge sleepy drivers with vehicular homicide in the event of a deadly crash. Some supporters of the law have said they hope driving while drowsy will acquire the infamous status of drunk driving. In another example of the law overstepping its bounds, she told of a South Dakota teen who flipped his middle finger and cursed at a school official. The Supreme Court of South Dakota recently upheld his conviction of disorderly conduct. Rather than considering it a teaching occasion, Elshtain said, in the way our society works, the first reaction of school officials was to turn to a legal solution.

Elshtain also recalled that at one school she taught at the administration enacted a sexual harassment code that even included an "unsolicited ogling" clause. Some of her male colleagues began wearing sunglasses in mock protest. "One can take a terribly important issue, and by moralizing it excessively, wind up trivializing it, and in an area as important as sexual harassment that's unfortunate indeed," she said.

Elshtain referred to academic Charles Taylor's "The Perils of Moralism," which details modern attempts to find a code to encapsulate all goodness. What Taylor calls "code fetishism" results in a loss of the recognition of the plurality of goods and the centrality of prudential judgment in life, especially in law and politics. Codes have trouble dealing with issues of repentance, human suffering, or the pervasive reality of evil, because laws assume an orderliness that is not realistic. "Along comes a political monster, along comes a certain moral dilemma, and this tidy world is rapidly disordered," Elshtain said.

According to Elshtain, Taylor proposed that disbelief in God exists in a close symbiosis with belief in a certain kind of moral order, hence secularists try to generate laws to enforce morality. Elshtain gave the example of the French revolutionaries, who tried to drive religion out of public life, and ended up limiting freedom. "The moralism of the revolutionary code does not permit mercy," she said of revolutionaries' desire to punish the ruling class.

On the other hand, "In the life of the mystic, much more is demanded of the self." Yet "providential deism" — a one-sided definition of Christianity — can lead to unscrupulous optimism "that can't really believe that Hitler is up to what Hitler is up to," or can't understand what drives a person like Osama bin Laden.

"Our resort to strict codes in a way betrays us," she said. When we want to guard against ogling and rude gestures, "we want to control and control and control." Yet exercising this kind of control will not prevent evil.

"Modern moralism has a hard time making sense of evil and suffering, [and] tends to sweep certain kinds of dilemmas when goods conflict under the carpet," she said. "Does [codifying moralism] not … betray a kind of mistrust of what people are up to and constrict the realm of risk-taking, of human freedom, the fact that people must be free to make their own mistakes?" Taylor says idolatry of rules dumbs us down, morally and spiritually, so we "cannot understand human motivation that falls outside the carefully tended rows, whether for good or for ill."

Elshtain questioned whether law requires a comprehensive moral philosophy, arguing that a one-size-fits-all doctrine doesn't work in all cases. The foreordination involved in sentencing codes indicates we want guarantees for outcomes, without taking into account circumstances. Elshtain cited a 1992 case in which a woman and her husband were arrested for starving their 13-week-old son to death. The couple refused to plea bargain and the mother refused to plead guilty to diminished capacity, so her attorneys instead argued the mother was the real victim. The defense based their argument on battered woman syndrome — despite the fact that there was no evidence her husband physically abused her. Her attorneys argued that her husband was controlling her, even when he was at work for 10 hours a day. The jury found her guilty of second-degree murder, and prosecutors later said that claiming she had no responsibility was insulting to women in the community who had been physically abused.

Elshtain said codes function to "bleach out possibilities" — either the woman has to be the victim or abuser, not both. She added that the jury probably would have given her a lighter sentence if she had accepted at least partial responsibility for her child's death. "We see how a moralistic code may demand either a high degree of responsibility [or] how a moralistic code may undermine responsibility by re-describing a human being as outside the boundaries of moral responsibility altogether. Either way, what is lost is nuance, paradox, dilemmas, uncertainties, both justice and mercy."

Furthermore, it's not authentic mercy to downgrade her category of human being ("battered woman") in order to proclaim her innocence. "Authentic mercy appears when we accept their status as moral agents but choose in certain circumstances to show the face of mercy that belongs side by side with the face of justice," she said.

Elshtain also cited an example of Kantian philosophy and how it might strain practical judgment and reason by its adherence to strict codes. In Kant's essay "Perpetual Peace," he argues that for peace to be declared, every concern between warring parties must be settled — anything else would be a mere truce. Kant's other requirements for perpetual peace include that nations must keep no secrets, and must have a republican constitution. Kant also suggested that statesmen turn for advice to moral philosophers, who are by nature incorruptible and incapable of forming an interest group (hard to believe, Elshtain said).

"I think that you can see … many such thinkers now infusing kind of strict Kantianism into their discussions and understanding of international law." Elshtain added that international law does have a role in the world, but supporters view national justice as second-rate, and military courts are seen as even more suspect. Even civilian courts are viewed as second-rate to tribunals. But she questioned the international legal system's accountability. "How can you appropriately limit the scope of international jurisdictions in order to deal with any potential abuses? … It's the old perennial question, who judges the judges?"

Elshtain said involving international legal bodies makes sense if national prosecutions are not forthcoming, or if there is no stable court system in a country. But for example, she said, "Argentina should come to grips with what the Argentineans did to one another" during the period of the "Dirty War" during the late 1970s and early 1980s. Immediately following the conflict there were trials, then a period of amnesty, but Argentineans are now prosecuting war criminals again. "That's something they took upon themselves as a responsibility."

She also cited the "spectacle" of Amnesty International criticizing truth and reconciliation commissions in South Africa because Amnesty viewed the punishments for perpetrators of apartheid as too light. "Certainly the politicization of universal jurisdiction-based prosecutions is also a problem," she said.

Elshtain upheld World War II-era Protestant theologian Dietrich Bonhoeffer-who was executed for his role in a conspiracy to assassinate Hitler-as one who struggled with disobeying laws he could not morally agree with, including Nazi rule and the rigidified legalisms that dominated Lutheranism in that era. He argued that "the religious believer was obliged in this situation to be disobedient at a certain point." Elshtain said Bonhoeffer believed in responsibility undertaken in freedom rather than in an unthinking obedience to a then-dominant moral code. For Bonhoeffer the moral center of humanity was a God who sacrificed himself, rather than the Kantian ideal of a sovereign self. While Kant held that one should never lie under any circumstances, even when a friend's life is threatened, Bonhoeffer said the possibilities of truth-telling were more complex, and should take circumstances and consequences into account.

Elshtain proposed practical reason as an alternative to legal moralism. "We cannot obviously do without the law and enforcement of those laws, but the question is, should the law provide a total catechism of some kind … or should the law provide a framework within which free citizens debate, make decisions about how they are to be governed, what sort of society they inhabit, and clearly I am opting for the latter," she said.

She referred to the book The Ethics of Memory, which outlined two kinds of human relationships — thick relations that are moored in a shared past or memories, and thin relations, defined by simple shared humanity. Elshtain described listening to a Kantian moralist who bemoaned that her teenaged daughter was able to go to a good school while so many girls around the world could not. This presented a moral dilemma for her — should she send her daughter to the good school? Elshtain proposed that the woman couldn't distinguish between thick and thin relations. "Her responsibility is more acute" where her own child is concerned, she said; she should rejoice over her daughter's good fortune, then redouble her efforts to improve the lives of teenaged girls in other parts of the world. "In most cases, we cannot commit a Kantian generalization, do something only if everyone may do it, without creating moral havok," she quoted Ethics author Avishai Margalit.

Elshtain compared judging law to casuistry — what she called a practical and interpretive method: you classify what kind of event it is, identify which presumptions are relevant to the event, comment on the circumstances, reflect on opinions of prior authorities, and bring all these elements together to make a judgment. "This sounds a lot like the constitutive virtues of the law, as well as a way to soften the tyranny of principles," she said. Rather than ignoring contingencies, you immerse yourself in them.

"The law …is a form of moral thinking that helps us most of the time to uphold certain rather humble truths about what is fair, and what is reasonable, and what is decent," she said. "Law concerns people in their concreteness …At the same time it speaks to our highest aspirations for human decency and right."

Elshtain returned to the topic of the Dirty Wars: some argued that every Argentinean implicated in the three military puntas that governed the country so disastrously during the wars be found and punished. One mother Elshtain met whose three sons had disappeared called that idea a "utopia of punishment."

"That kind of moralism could become a thirst for vengeance," Elshtain said, and make it more difficult to uphold the already-fragile constitution there. "The law has to make thick and thin distinctions," Elshtain added. "It has this concrete role," which meshes with theology's idea of community membership.

"If we fly to the heavens are we flying to a kind of metaphysical level, or a level of meta good too quickly … if we do that in the kind of rigorous way I've been criticizing, we lose the moral … that is the very heart of the matter, for law, for politics, for faith alike."

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

News Highlights