The Place Where Morals and Laws Collide

What makes you moral? How do you decide if your actions are good?

This is an endless question that has vexed philosophers, real and imagined, since god knows when. It’s the entire core conceit of The Good Place, one of the best and most beloved TV comedies of the last decade or so. It is a wonderful meditation on the flaws and foibles that ultimately make us human and allow us to grow and experience empathy. And to me, what’s absolutely fucking fascinating about this area of thought is all the ways that our gut instincts collide with our justifications for the structures of society. We know in our hearts that we can do better. We’ve just been taught not to ask the inconvenient questions.

Consequentialism and the root of Morals

For me, this all starts from consequentialism, the idea that what matters from our choices is the outcomes. I think people generally like and agree with this, at least in theory. We tell our children that the reason they shouldn’t take Tommy’s toy is because that makes him sad. Don’t be mean to your sister, you wouldn’t like it if she did that to you. Heck, look at the golden rule – do unto others as you would want them to do unto you. The motivation for morality there is empathy, not laws. We are all familiar with this pattern of thought, but we fail to follow it to its logical endpoint. That end is a more radical place than is often comfortable to admit, and forces us to question the structure of society.

First, let’s define our big fancy word of the day. Consequentialism is the school of thought that says what matters most in morality is outcomes. You can have the best of intentions, but if your actions hurt a bunch of people you probably ought to do something different. It fundamentally centers the source of justice (and injustice) in the community, not in structures of power. From this school of thought come concepts like Restorative Justice, which tries to put victims and perpetrators in dialogue with the help and support of the community. The goal is not to punish or imprison the perpetrator but to heal the community and make the victims whole.

Consequentialism is fundamentally non-hierarchical. It asks us to look for morality in our neighbors, not in authorities. It asks us to seek justice from our fellow man, not from a judge or priest or politician. Under this philosophy, there are no judges handing down rulings, no police enforcing laws, no gods or priests making mandates from on high. Our morality comes from our responsibility to each other, not to a code of laws.

“Victimless Crimes” – What is illegal, and why?

One of the easiest ways to pull this conversation down into the real world is by looking at the idea of “victimless crimes.” For example, one consenting adult pays another consenting adult for sexual services. That’s a crime, but who is the victim? Who loses in that exchange? Or, to look at another example: one person grows a bunch of marijuana in his basement or field. That person sells or gives it to another, who goes to a Grateful Dead concert and gets soooooo high you guys. Both of them have committed a crime, but who has suffered? A consequentialist argues that if nobody was harmed then it’s probably fine. They look to their neighbors and friends, and if the community is good then everything is A-ok. However, the American legal system says everyone involved in those scenarios deserves a fine or a prison sentence. Why?

As a quick aside, let me be clear before I continue: most prostitution, as it exists today, is exploitative and dangerous work. A whole lot of people are hurt by the way it has come to function. Any work to legalize, de-stigmatize, or otherwise engage with it has to grapple with that lived reality. What I am arguing is that there is no moral issue with prostitution itself on a conceptual level, assuming there is full, uncoerced, and unconditional consent from all parties involved. All clear? Good.

“Victimless Crimes” are collisions between what we instinctively recognize as harmless behavior and the rules set down for us. They are the scars of conflicts between morals and laws, long ago resolved (hint: the laws won). So we have to then ask: who made those laws? Why? And who do they benefit? We all agree that murder is bad, I’m not going to fight you on that. There are places where our morals and our laws are in agreement. But these places are surprisingly small, and disgustingly unevenly implemented.

Where are laws and morals disconnected? Wherever it favors the powerful.

Laws are created by the powerful. Heck, creating laws is itself a way of capturing power. It maybe shouldn’t surprise anyone, then, that the laws also conveniently benefit the powerful. To hear them tell it, we have many obligations to them, but they have few to us. It is a sin to not give your money to the church, but it is entirely acceptable for the church to spend that money on gold and art and crusades while their faithful flock starves or dies of plague. If you steal $50 of merchandise from your employer then it is entirely acceptable for them to sentence you to possible starvation or homelessness – but if they steal your tips or round down your hours to avoid paying overtime, that’s just an unfortunate fact of life. When there is a discrepancy, it is always in favor of the powerful. Morality says that theft is bad. The law says that if you’re rich then theft will not be punished.

Why are morality and laws out of step? The powerful are not part of our community

The fundamental problem is that our laws are built on authority, not community. The powerful have convinced us that they can be the only source of accountability, of safety, and of justice. But who watches the watchmen?

First, who even gets to be watchmen? Who makes up this class of powerful people? Well, they’re generally people who were already powerful. As the saying goes, you gotta spend money to make money. People who inherit wealth overwhelmingly make up the group of wealthy people in a given community. Running for city council costs more than most of us could ever afford to pay – which ensures that those wealthy business owners control the levers of power and minimum-wage workers don’t. Those same wealthy people define the minimum wage. They also make the laws that the judges enforce. You have to have a law degree to become a judge, which costs far too much money and is exceedingly difficult to obtain if you are not able to study day and night (for example, if you have a job in addition to your schoolwork). Exclusive private schools like Harvard Law also give preferential treatment to family members of alumni, which again provides historically wealthy families a way to renew their wealth. Hell, even clergy these days are often required to complete years of expensive education and underpaid apprenticeships at struggling churches. Our moral and religious leaders are filtered not for their piousness or wisdom, but for their wealth. And, should they complete this expensive gauntlet, they are rewarded handsomely at great cost to their congregation, many of whom may be exceedingly poor.

This creates a system where the powerful exist in a stable class, isolated from the rest of us. They don’t use the buses – they cluster together in gated communities outside of the city and commute in. They support each other in their pursuit of power by donating to the campaigns of their wealthy and powerful friends. They are accountable only to each other, and they all share one interest in common: staying exactly where they are. The laws, which they themselves write, warp around that one interest, morality be damned.

What is to be done?

We need to turn away from the laws and turn towards our communities. This can be done in ways small and large. Obviously don’t endanger yourself, but where it’s possible you should strive to resolve conflict outside of the legal system. Instead of calling in a noise complaint to the police, go talk to your neighbors. If a kid is causing trouble in your neighborhood, sit him down and figure out what’s going on – AND THEN SUPPORT THEM. That person is a human with needs too, and if their needs conflict with yours then try to find an outlet or solution that is beneficial for everybody. Do unto them as you would want done unto you. In short, allow empathy steer your moral compass, not laws.