Justice Benjamin N. Cardozo asserted that “the final cause of law is the welfare of society.” In other words, the establishment and implementation of laws are necessary preconditions to an orderly, functioning collective.
Justice Cardozo’s sound, logical statement evokes significant questions: (1) Are rules, taken alone in their black-letter form, dispositive of moral and ethical practices? (2) Should morality be ‘legislated’ so that the drafting of laws benefits society at large, not just particular individuals or groups? (3) As a corollary of (2), since subjective social customs and traditions regulate morality, how can individuals and groups tasked with fashioning and implementing the laws proceed ethically and freely think outside the box when dealing with a potentially negative or exclusionary framework (purportedly grounded in morality)—those rules or laws that tend either overtly or covertly, consciously, or subconsciously, to harm, alienate, or marginalize)?
Answers to the above questions lie in society’s definition and selection of leaders—legislators, judges, and elected officials. In choosing our manner of governance, legislators fashion laws; judges interpret them; elected officials implement them. A heartbeat lies behind every rule’s creation, interpretation, and implementation, and along with that lifeblood comes a host of human-created belief systems, preconceived ideas, and practices specific to the drafters, interpreters, and promulgators. Therefore, “a living constitution” operates not only according to the letter, but the spirit, of a law—its intent, purpose, how a justice interprets and applies the law to the facts and circumstances of each case, and how elected officials and society carry it out.
Unfortunately, skewed interpretations result in unjust outcomes. The landmark decision in Plessy v. Ferguson of 1896 is illustrative. The Supreme Court refused to overturn a segregationist Louisiana law that forbade equal railroad accommodations for white and non-white passengers. The Court coined the “separate but equal” doctrine that ushered in decades of discrimination against people of color, failing to apply the Fourteenth Amendment’s Liberty Clause to the facts. Doing so would have resulted in redress for the aggrieved party. Instead, the case ushered in the “Jim Crow” era in which exclusionary practices held sway for decades.
Another example of the failure of entrenched ‘norms’ is the absence of a legally imposed duty to rescue in tort law— fundamentally anathema to the notion that humans should feel responsible for each other. The legal obligation to rescue arises solely in three instances, and failure to act results in liability:
- There is “a special relationship” between the parties (e.g., parent-child, bus driver-passenger).
- Where the rescuer creates a hazardous condition that imperils the safety or life of the victim; and
- The duty arises by statute.
If these conditions are lacking, a perfectly healthy individual can watch another drown, even if the capable individual has the means and opportunity to assist. The absence of compassion in the above rule is mind-boggling. By virtue of our shared humanity and life breath, a duty to rescue should naturally exist, and punishment should ensue for failure to act. Where is our sense of right and wrong, and why do we not enforce it?
One response is that because morality is inherently subjective, predicating laws on various, sometimes diametrically opposed, precepts is untenable. For example, the party in a position of safety in the above example might believe that intervention could cause further injury to the victim or that the will of an extrinsic force or ‘higher power’ should not be disturbed. In the worst-case (pathological) scenario, apathy might be the cause for one’s omission to act—a self-centered indifference to human life other than one’s own. But to think that the law allows for such a possibility is reprehensible.
A law with virtuous intent must necessarily result in societal well-being. While obvious, the statement is, sadly, too simplistic, given the unpredictable nature of humanity. Query: How does the lawmaker define “virtue?” One person’s definition may be abhorrent to another. Therefore, ingraining morality into the law is impossible.
The Categorial Imperative, Immanuel Kant’s morality principle, illustrates this point. “Act only according to that maxim by which you can, at the same time, will it to become a universal law.” Kant’s philosophy presupposes that humanity is intrinsically virtuous and will act for the collective good. Only with goodwill as an end can that tenet succeed. However, humans are flawed creatures and invariably infuse a hodgepodge of feelings, emotions, and self-motivated ideas into their every deed.
Hypothetical: A family offers asylum to war refugees, intending to preserve and protect their lives. The family discerns appropriate and inappropriate conduct from in-the-moment realities. When the enemy approaches and inquires whether they are offering shelter to refugees, they answer in the negative. They believe that the totality of the circumstances warrants telling a falsehood in deference to a higher purpose: saving lives.
Another family practices a religion that forbids lying for any reason. The refugees receive comfortable shelter until the enemy appears at their doorstep, asking whether they harbor refugees. They answer affirmatively, given their penchant for always telling the truth, regardless of the consequences. The family surrenders the refugees to their captors, and they encounter a horrible fate. This extreme, macabre juxtaposition of humaneness and cruelty is inconceivable—and highly unlikely. However, the second set of facts demonstrates that some definitions of virtue can defeat the purpose of a humanitarian act.
The question becomes, “How can leaders/lawmakers enforce genuine justice?” The solution lies in cultivating virtue through inspired leadership that seeks to encourage “the examined life,” as Socrates stated—intellectual curiosity. When we only accept and practice the letter of the law, devoid of spirit, true justice falls into obscurity. But when we question established “norms,” we expand our perspectives.
The ability to discern, developed through probing and analyzing facts and circumstances, distinguishes us from robots. In ideal cases, we learn to do so in our formative years from our parents, guardians, educators, and other role models who set guideposts for our ethical standards. They freely share their positive traits by example while cultivating, lauding, and rewarding others’ talents and attributes and disciplining those who stray.
Such is the most effective leadership style: one that negates the ego and values integrity above all. The ultimate exemplar is the leader-heroes who, at great personal sacrifice, place themselves at a disadvantage—or even in peril—while deferring to the happiness and safety of the multitude. Those who adopt such a leadership style inspire an unparalleled level of trust—the hallmark of an outstanding leader.
The stance of genuine leaders translates via the legislator, judge, and elected official into the spirit of the law as applied. Those who adhere to that spirit are living embodiments of just comportment. Thus, while we cannot ‘legislate morality’ by infusing subjective, culturally accepted precepts into the law, we can create ethical standards based on sound choices that perpetuate an ethical society through positive, optimistic, forward-reaching leadership. The outcome: the welfare of an inspired, enlightened society.
© 2023 Gabriella Gafni. All Rights Reserved.