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Sunday, August 25, 2013

Ethics and the Law--A Socratic Dialogue

The scene: Starbuck's Coffee House, Silver Spring. Socrates walks in. Plato and Solon sitting at a table see him.

~  Solon:   Socrates, good to see you, c'mon over and sit down. Have a frappuccino. We're celebrating.

~  Socrates:   For sure! And what are we celebrating?

~  Plato:   Solon just got word that he passed his bar exam.

~  Socrates (giving Solon a high five):   Congratulations, Solon. So what does it mean to pass that exam?

~  Solon: It means that I can now practice law in the courts of the State of Maryland and the District of Columbia. I could even be a judge some day and dispense justice.

~  Plato:   Now you've done it, Solon, you should never use the j-word around Socrates.

~  Socrates (laughing):   And what is justice, Solon? Was that on your exam?

~  Solon:   Justice is what the law says it is. Prosecutors prosecute, defenders defend, and judges decide justice based on the law.

~  Socrates:   And where does the law by which justice is dispensed come from?

~  Solon:   From the rulers. And in a democracy that is the people. They adopt constitutions many of which are based on common law or the usual practice of a society or commons sense, what people believe their practices should be and codifying what they believe their morality is.

~  Socrates:   What about in a state that is not a democracy?

~  Solon:   O Socrates, always asking questions! You know that Weber defined a state as a monopoly of the means of violence. So any ruler that commands the means of violence makes the laws. That's why an unenforceable law or an unenforced law is no law at all. Even in an aristocracy or a monarchy, the rulers have to provide laws that can be enforced.

~  Socrates:   Defining the state as a monopoly on the means of violence is a whole other discussion; and I won’t start that one here. Nevertheless, if most people don't accept the law and it is still being enforced….?

~  Solon:   Well, then they change rulers. In a Parliamentary government that means one government falls and another is established. But even dictators and plutocrats have to persuade most of the people that they have their best interests at heart.

~  Plato:   But in a good society, the rulers are those who choose what is best for the people in general.

~  Solon:   Yes, of course.

~  Socrates:   But that's the point! What makes it good? Is there a standard of justice that makes some societies, their laws and their legal professionals good and others not so good? If the rulers think the law is just, does that make it just--it could be good for them and their faction but not others.

~  Plato:   Some people speak of a "higher" law--like the law of the gods or of nature. And that's the source of "positive law" or stands in judgment above it.

~  Socrates:   And how would we know that higher law?

~  Solon:   Priests or religious ministers say that it’s in their Holy Books as revealed to their prophets and taught by their priests. God tells them what to write. So you have Mosaic, or Sharia, or Canon Law. However no pluralistic society in today's world can be run by an appeal to Divine Law.

~  Socrates:   Why not?

~  Solon:   Every religion has its own prophets, priests, and holy books. And we have all kinds of nuts running around saying that God has talked with them and pushing different things. So in today's world, people and their rulers have to decide what is best for all and make laws accordingly.

~  Plato:   But they have to base their decisions on something! And that, I argue, is natural law--which is identified with Reason. If people still want to be religious, they can say that natural law was given by God. But actually it is the natural reason common to all of us that is the source of ethics and the law.

~  Socrates:   Who tells us what natural law is? If it is the priests and ministers again, aren't we back to the same problem? Or can we count on the common folk to use reason?

~  Plato:   It has to be philosophers who have the latest science at their disposal--the educated people in the know. That why rulers should be philosophers.

~  Socrates:   With so many people denying science as a way to understand reality whether its evolution or climate change, that doesn't give us much hope, does it? Nor do all the philosophers agree with one another. I was told by the Oracle that the wisest of philosophers was the one who knows that he does not know. And philosophers are certainly not read, nor understood by most legislators. 

~  Solon:   Legislators can consult with philosophers and scientists, but really the only philosophy and science legislators claim is common sense, which is what they believe to be the best for people and themselves. So they make laws that they think fit with the customs and mores of their constituents, i.e. the people who will support them with money and votes.

~  Plato:   Then let the laws be formed by common law or the mores and customs of the general population—but of course guided by reason.

~  Solon:   That might be ideal. But is there a general population in a pluralistic society? All US politicians of all stripes say they speak for the “American people.” And even if so, there are some customs and mores repugnant to others and they are forever changing. And you can’t count on anyone being reasonable when their interests are at stake.

~  Socrates:   And the mores and customs or the morality of the so-called general population often needs to be called into question. So are you are saying ultimately neither the gods nor reason define justice. Nor the mores and customs of the general population?

~  Solon:   Right. Though legislators say that their laws are based in divine will or natural reason or the mores and customs of the people, really they are written to support the interests of the people who support their power. And whatever you say that they are based on, justice is defined by laws enforced by the police power of the state.

~  Socrates:   And whether its natural law or divine law or common law, once it’s written down, doesn't it become human law? We recognize now that language is a cultural artifact and it’s meaning is always subject to context of time and place.

~  Solon:   Yes, that's why we have judges to interpret the law. And we know from experience that the political orientation of the judges influences their interpretations. You can claim that the laws come from gods or nature or common law, but it is the written law of the state that is the measure of justice.

~  Plato:   Whoops, there's that j-word again.

~  Socrates:   Can there be unjust laws?

~  Solon:   By definition, no.

~  Socrates:   What about the laws, some say even divine laws, which encouraged slavery? What about the laws that enforced segregation? Were abolitionists protecting runaway slaves acting unjustly? Was Martin Luther King Jr. practicing civil disobedience acting unjustly? Did Daniel Ellsberg in revealing classified material about how citizens were being lied to about the Vietnam War act unjustly? Would Adolph Eichmann have been unjust if he disobeyed his orders to send the Jews to their extermination in Nazi Germany? Was Nelson Mandela acting unjustly in rebelling against the laws of Apartheid in South Africa?

~  Solon:   Civil disobedience and rebellion are illegal by definition and so must be prosecuted by legal justice system.

~  Socrates:   So are there no unjust laws that should be resisted whether or not legislators claim they come from natural or divine law? Can civil disobedience or rebellion ever be justified?

~  Solon:   I know this bothers you Socrates, because you have been accused of perverting youth by questioning the authority of certain laws. But if people don't like a law, they should get rulers or legislators to change it through whatever means are available by the law. Sometimes people just have to go along with a law for the main purpose of the law, i.e. order.

~  Plato:   Sometimes we speak of social or economic or racial justice over legal justice.

~  Solon:   But that is usually people just saying they don't like the law because it doesn’t serve their interest. And it is the same as appealing to some higher law as we said before.

~  Plato:   Socrates, how do you permit your civil disobedience?

~  Socrates:   I agree with Solon that civil disobedience and rebellion is not legitimate and so subject to prosecution. So a person rebelling or practicing civil disobedience will have to take the consequences of that. But I also think there is a difference between an action being legitimate and an action being justified.

~  Solon:   If an illegitimate action can be justified, that means there is another justice outside the law.

~  Plato:   Doesn't this just bring us back to the problem of a higher law? And we've already established that higher laws if they exist are expressed by humans, priests or philosophers, and so can also be unjust.

~  Socrates:   Yes, so I ask myself if an illegitimate action be justified. I ask myself whether I have not only permission, but also responsibility to disobey what I consider an unjust law. I ask myself if I have the responsibility to question the laws of a society that I consider unjust. Also there is a growing consensus concerning crimes against humanity over and above the laws of nations. And I ask myself where that comes from.

~  Solon:   Where does it? You sometimes speak of your daimon. Is that it?

~  Plato:   But that sounds like a god and we are back to divine law.

~  Socrates:   No, my daimon is not a god, nor does it come from a god.

~  Plato:   Unitarians speak of the "divine spark" that everybody is born with. For them a child is not born with sin, original or not, but in sin, the sin of the world that they inherit in culture and history; but they have a divine spark that can grow to counter that sin.

~  Socrates:   That’s a good metaphor. A spark has to be fanned to grow. If it is neglected and allowed to grow cold, it goes out. But I think this spark is very human, not divine.

~  Plato:   Then it’s what philosophers call the "light of reason."

~  Socrates:   Except reason seems to mean understood, having support of arguments, rationalized. Science is the height of reason with its formulas and laws.

~  Solon:   And we know scientific laws are tenuous. They can appear to be opposed to other scientific laws and need to be incorporated in a new higher law, and that can go on and on.

~  Socrates:   Yes, and again, I think it is more of a feeling, a sense of what is just and unjust that goes along with everything I do, not a matter of reasoned argument.

~  Plato:   That’s what we mean by conscience. It’s the kind of non-rational knowledge that goes along with other kinds of knowledge. That’s why we call it con-science.

~  Solon:   That doesn’t explain what this daimon or spark or conscience is and how it is superior to the laws.

~  Socrates:   I’ve told you that whenever I have a conversation like this or one with adversaries, I go home and in my solitude confront the biggest adversary of them all, one that questions every position I’ve taken or advanced with others.

~  Plato:   I know that’s what you mean by thinking and why you say you know that you do not know.

~  Socrates:   yes, and why I keep coming back to you guys and anyone else who will engage me.

~  Solon:   And that’s why you keep questioning the laws. You have a feeling that is not expressed by laws but by which you can challenge laws. That can be pretty dangerous. You are putting feeling above the law.

~  Plato:   And feeling over against rationality.

~ Socrates:   But not if I am willing to keep questioning and let others question my thoughts. Isn’t the real danger when people don’t question their thoughts, including their laws? And the feeling I am talking about is the experience of thinking and acting with others.

~  Plato:   So your daimon or spark or conscience is really yourself, or maybe your other self?

~  Socrates:   I think it is a non-rational sense of what it means to be human, a thinking and acting being, not a thing that is used by others, not an object in the world out there. When I am thinking for myself and acting in community, I sense the measure that should stand against every formula, every proposition, and every law. But when I put it in words or rules, it eludes me.

~  Solon:   Still sounds pretty dangerous to me. It can lead to anarchy.

~  Socrates:   But if I bring my thoughts to the public for others to discuss and think about?

~  Solon:   Then we are back to where I said that the legislators take what people are thinking and make the laws accordingly.

~  Plato:   And it all comes down again to politics.

~  Socrates:   Yes, but the important thing is that people are not only discussing and deciding, but also thinking—in touch with their daimons and fanning the flames of their sparks. And above all other interests is the desire to be fully human, to be treated fully human and treat others as fully human. The products of their thinking and acting are never hardened into sure things.

~  Solon:   I’m confused. I am not sure where we are.

~  Socrates:   That is not a bad place to be I think. Plato, you are a good writer. How about you take what we discussed here and put it down on paper. Then you can e-mail it out and we can think about it.

~  Plato:   OK. I will either send it out as the dialogue we had or I will write a sort of treatise and call it, Ethics and the Law.

~  Socrates:   Great. Thanks and congratulations again, Solon.

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