A further response to Professor Strader’s harm/morality distinction

Some initial remarks concerning Professor Strader’s comment to my initial post questioning his harm/morality distinction. (Original post and comment here.)
A benefit of academic exchanges is that positions can be honed and misconceptions clarified. Professor Strader’s response to my critique of his op-ed is quite helpful in that regard and again raises some interesting points. I will not respond at length to those that he obviously intended as humor, such as his concern about the effects of a boring parental sex life on the welfare of children, and the to him apparently self-evident assumption that a sex life without oral sex (or some other category of non-coital sexual relations) necessarily would be boring. That has to be in jest, as I did not suggest such a connection, and no serious person would. I’d like to see the study that demonstrates that bringing the neighbors or faithful Rover into one’s sex life might make the occasions even less boring and therefore more beneficial to the kids. Perhaps Professor Strader has evidence that the less attention parents spend on the children and the more they chase sexual adventure, the better off children are. “This Christmas, honey, instead of buying the kids toys, let’s just buy us, ahh, toys.” “Yes, and next year, instead of putting in a pool, let’s put in a dungeon! It’ll help make us better parents.”

Nor am I quite sure what to make of the point that we can define anything as harm that we want. At one level that is true, I suppose. But that does not advance our inquiry about the nature of harm. As my civil procedure professor, Arthur Miller, used to say in response to a particularly irrelevant point from a student, “Well, you can argue that the grass is blue, and the Pope’s a Jew. But that doesn’t make it so.” Ah, yes, the epistemological limitations of nominalism.

As to his advice that I consult psychological studies about the equal value of having same-sex couples raise children as opposite sex couples, I’d rather not. I think that it has been shown somewhere that consulting the Oracle at Delphi has more analytic worth and predictive accuracy than do psychological studies. “Best interest of the child” test, anyone? I seem to recall that they used to define homosexuality as a “personality disorder,” a particularly unfortunate and insensitive characterization. Psychological studies, as social studies otherwise, are prone to the phenomenon of proving the researchers’ assumptions. The experimenter’s involvement itself pollutes the results. I’d rather go with the wisdom of the multitudes gained over millennia of experience, examined in light of human nature, than with current fads whose fundamental postulates and definitions change every few decades. Life as the best experiment, and tradition as a source of evidence.

Moreover, the results of the studies that Professor Strader lauds that show no difference in the benefit for children of having same-sex couples or opposite-sex parents raising them would mean that there really is no basis for the proposition that the best (though not the only passable) environment for child raising in general is in the home with the biological parents. If there is no difference, then it really does not matter who the parents are. Parents are interchangeable. There would be no special bond between biological parents and their children, as one generally expects. If that were true, then there should be no difference in the rates of sexual molestation of children between natural parents and step-parents. (There are, and they are significant.) Indeed, if such assumptions are correct, foster parent homes and orphanages (or the state in the Platonic Republic) must be equally suited to biological parents to raise children as a general proposition, since the particulars of the family structure do not matter.

But, on to a response to Professor Strader’s bigger point, that there is a clearly defined contrast between “tangible harm” and “morality.” I don’t believe that he has answered my questions about that contrast, except to talk about how some authors say so, and that courts deal with defining harm in lawsuits. Now, given time constraints, I will have to be excused from reading a multi-volume treatise on harm, exciting as that project sounds. I’ll have to wait for the DVD and content myself with lighter material such as Kant’s Kritik der Reinen Vernunft. It’s the week-end, after all. Perhaps I just do not understand the whole harm versus morality debate that has been going on for only 100 years. It would seem to me, based on my readings of history and jurisprudence, that the study of the interaction among law, morality, and morals/ethics has been going on for a lot longer than that. There are also quite decent briefer explorations of the topic, as, for example, the discussion of paternalism in Natural Law Liberalism.

Of some fundamental issues raised by this debate.
On to more serious matters. One of the difficulties in addressing his argument is to limit the debate. Inevitably, as a point is addressed, another, related one, is raised as one tries to peel the layers of the jurisprudential onion. One of the meta-ideas that Professor Strader’s distinction raises is the nature of the state and its law. That is, is their role one of minimalist referee and policeman to resolve social conflicts and protect basic rights for maximum individual development? Or is the state’s and the law’s role instead an additional one of “guidance” and the development of virtuous individuals and community?

Another such idea is our relation to the community and the line to be drawn between the two. In other words, what is the nature of freedom within community, the relationship between the individual and the group? What is the proper balance, and who decides that?

Another is the nature of the human legal order, whether law derives its authority simply as a self-focused internal order of will, or whether it must derive its legitimacy in relation to some external order of reason.

Then there is the nature of our “rights” that we might claim against the social order. Are those rights ours to claim as a result of our individual autonomy or as participants in a broader order? Put another way, do we define the universe of our rights as sovereign individuals, that is, “natural rights” derived from our fictionalized existence outside at least political community? Or are we always and inevitably participants in an order of nature, that is, an order governed by “natural law” of which man and community are a part and in which “natural rights” originate within that order and result from duties created by that order?

In a related inquiry, what is human dignity? Is it simply freedom and autonomy to make decisions? To have our fellow humans also treat those decisions as equally valid to theirs because we made them? Or, granting the centrality of autonomy to human dignity, does such dignity nevertheless also consist of other factors, such as personal security and comfort in a functioning society? One recalls Homer’s rendition in the Iliad of the Greeks’ contempt for the stateless man; the nihilism of full autonomy but absence of dignity in Hobbes’s state of nature; and the lack of freedom that results from an absence of social conditions that promote human flourishing during civil war, for example.

Finally, there is the problem of the role of courts and legislatures in making the above-stated determinations. Are courts lawmakers, the same as legislatures, in a system that professes to lean towards popular sovereignty and control? If there is a difference due to institutional roles, does that affect political legitimacy and practical competency to decide certain issues, especially in regards to balancing various interests that underlie the conception of law and its relations to morality and morals? What is the importance of constitutional text in defining the role of courts in such undertakings?

Full explorations of these topics (and probably others that would arise) raised by Professor Strader’s attempt to limit the notion of harm would require a major treatise, so I obviously cannot do justice to them in a few brief remarks. I shall touch on them only within the content of my remarks to his main topic of tangible harm versus morality.

By restricting the permissible ends of the criminal law, Professor Strader takes a minimalist view of the state’s role at least in this regard. As a matter of general political ideology, I am quite sympathetic to this view overall. Perhaps, considering my opposition to paternalistic labor laws, for example, I am more sympathetic than he is. Given his criticism of law based on majoritarian morality, Professor Strader obviously has little use for the notion of the state’s fundamental role to promote virtue as reflected in what the community considers civilized and appropriate conduct. That conclusion is reinforced by Professor Strader’s support of constitutional doctrine that seeks to enlist the courts as guardians of legal minimalism and as ultimate authority to balance the natural rights of each person (filtered through the “liberty” provision of the due process clauses) against the judgment of the community as to what best promotes social living.

Again, from a personal political perspective, I am not unsympathetic to such a view that is a reaction (rooted in the 17^th and 18^th century response to the authoritarian early modern state) against the perceived conformism of the intrusive modern state. I just wish on that score that he were more emphatic and move against the stultifying conformism of the modern bureaucratic state by going beyond his focus on the criminal law. One suspects that Professor Strader does not really mind the intrusive state in matters unrelated to the criminal law in regard to sexual matters. Which raises an interesting point. Any intellectual framework that just happens to validate one’s political opinions in all or almost all particulars should be distrusted as a useful organizing principle.

For example, I favor legislatures over courts as the more legitimate and competent bodies to strike the appropriate balance among the competing interests and influences that produce human positive law. But that does not mean that I am not frequently dismayed and even disgusted by legislative action. In turn, though I disagree with them, I can respect those who see a primary role for the courts in striking such a balance through an ambiguous liberty provision in the due process clause against that struck by the legislatures. I actually like, ideologically speaking, many of those results (including the result in Lawrence). More problematic, in terms of intellectual force, are approaches that find such a role only in the protection of sexual acts, but not of other aspects of human liberty, such as the freedom from paternalistic labor laws and protections against amorphous environmental harms, for example.

Once more to the problem of distinguishing harm from morality.
That brings me once more to the definition of harm that Professor Strader advances. As a general proposition, it is clear that prevention of “harm” is the function of law in the first instance and especially of the criminal law (as well as of religion, ethics, manners, and other norms of behavior). But it is the nature of harm that is in dispute. Very broadly, harm is interference with human thriving. Limiting oneself to human behavior, metaphysically speaking, harm is injustice. Injustice, in Socrates’s view, is a lack of balance or harmony among the parts of the soul and among the parts of the community. But, as justice can have different manifestations and applications, so can harm.

Professor Strader seeks to draw a line based on tangible harm, and to forbid the legislature from crossing that line in its attempt to balance the interests of the community and the individual. My point was merely that any attempt to draw a clear distinction between tangible harm and morality as a proper focus of the criminal law has to founder on several cliffs. First, an internal definitional one. What constitutes “tangible harm?” Is it that which is somehow visible? Measurable in money? Where only a particular individual or defined groups of individuals are affected, akin to a jurisprudential “standing” analysis? Anything that has an impact on human thriving more generally? It is on this last approach that laws based on what Professor Strader would dismiss as majoritarian morality are based. Perhaps Professor Strader would recognize as a limiting principle for tangible harm that you can do whatever you want that does not interfere with my right to do likewise, a sort of Kantian law of universal freedom. But the operation of that principle depends…on the definition of harm.

Second, a relational definitional problem. Can we discern a line between “tangible harm” as a self-contained construct and “morality” as a different self-contained construct? To what extent is morality itself a collection of at least some forms of tangible harms?

Third, whether or not morality can be distinguished categorically from tangible harm, why should the community, in principle, not be permitted to enforce all its norms of socially acceptable conduct by criminal law? It goes without saying that, even if the community may properly do so does not mean that it should. That decision of course depends on balancing a number of competing social interests. I would agree that the legislature should consider the type of harm and think long and hard before involving the unwieldy legal mechanism of the law in matters where harm is speculative, slight, indirect, or obscure.

Fourth, why should there be a difference in principle between the criminal law and other aspects of law? Indeed, wouldn’t the argument be that the criminal law inherently is more of an unvarnished expression of community morality? Deprivation of physical liberty is a characteristic of the criminal law and an important consideration in deciding whether a harm is substantial enough to warrant criminalizing the action. But the Constitution also, in the same due process clause, protects one’s rights in non-physical liberty and in property.

Now, I don’t dispute the value of categories as organizational devices to bring order to what otherwise appears to be randomness. One of the distinctive features of the human mind compared to other living things is the ability to impose its order on the world simultaneously at a high level of abstraction and a detailed level of specificity. So I do not disparage the utility of drawing up categories such as direct and indirect harm, tangible and intangible harm, and harm and morality, among others. The fact that we conceive of such things suggests their reality. The fact that we counterpose them conceptually is evidence of their duality. But in particular application, at lower levels of generality, the relationships among general principles in relation to the specific object of inquiry become more nebulous.

Moreover, I am not going to argue that the difficulty of applying categories to particular cases invalidates the project. As one moves to more particular applications, a general principle becomes subject to qualifications and exceptions. This is true of ethical commands, as well. It is also a consideration that underlies the principle of equity as a mediator between a generally operative legal command and the individuals before the court in a specific case. But it is the very difficulty of balancing the factors that call for additional refinements to the content of the general operative principle that raises questions about the competence of courts to make that determination.

The competence of courts as fora for the balancing of individual and social interests and for the definition of harms.
Judicial conflict resolution that focuses on producing winners and losers against whom judgments can be enforced is not the best way to sort out nuances over what constitute proper categories of harm. Courts cannot track well the movement in the practice of custom/morality or the normative scheme of morals/ethics. In fact, when political bodies get ahead of that movement and make law to accelerate change, they are likely to stir up considerable social unrest and opposition, especially if the object of change is entrenched social practice. The debacle of the California Supreme Court’s same-sex marriage decision in May, 2008, or the U.S. Supreme Court’s 1973 abortion decision are good examples. Law almost always trails such movement in morality and morals and reflects it post hoc. “Stateways cannot change folkways,” as the sociologist William Graham Sumner famously declared well over a hundred years ago. But courts, having to wait for disputes to resolve and being not as responsive to political influence, are generally even less sensitive to such movement than legislatures.

Professor Strader points to the function of courts (or, more accurately, juries) in assessing harm and finding that the defendant caused that harm. I am not quite sure what that shows. As best I can tell, it only proves that once a legislature determines that a particular type of conduct produces a societal harm it deems appropriate to recognize through civil or criminal law, finders of fact are competent to assess the facts that show that the defendant committed acts that caused the harm and to evaluate (in a tort situation usually) how much harm he caused. Juries are admonished to take the law as instructed, not to reweigh the competing social and individual interests to decide whether such harm should be recognized through the law or left to other means of social control. Juries that decide to disregard the established legal framework are said to be engaged in “jury nullification.” Judges and most right-thinking lawyers think that such action by the jury usurps the role of the law-making bodies that have defined the harm and provided appropriate legal restraints. Personally, I have little quarrel with jury nullification in criminal cases.

Now, courts, especially in common law systems, traditionally do define lines between law and other human norms, and between types of harm, in determining grounds for legal causes of action. Moreover, in civil cases, juries by their verdicts (especially in negligence and products liability cases) sometimes can effectively shape the boundaries of legally compensable harm. But the superiority of legislatures for such definitional interest balancing, and their greater legitimacy to do so in a democratic polity, is recognized in the principle that statutory law trumps common law. That leaves courts that seek to control such legislative preeminence having to act, as Professor Strader would have it, as constitutional tribunals.

That step does not avoid the same problems of judicial line-drawing. To the extent that the Constitution’s text sets fairly clear boundaries, such as in the ex post facto clause or in the presidential pardoning power, judicial action is less controversial. The people have already defined the constitutional harm. But the due process clause is vague. Precedent is unreliable, unprincipled, and often tautological, when it assumes that which has to be proved in finding a constitutional violation.

An example relevant to Professor Strader’s point is that the Court in Lawrence assumed that which had to be proved, that consensual sodomy was not a harm for legislative action. Based on that determination, the Court concluded that the individual liberty of consensual sodomizing in private could not be overridden by some legislative determination that such behavior contravenes standards of acceptable behavior consistent with necessary social arrangements. In doing so, the Court eliminated a whole class of social harms rooted in “majoritarian morality” from proper legislative purview. At least that’s Professor Strader’s interpretation, if only in regards to sexual matters. As I pointed out before, it remains to be seen whether that indeed is the Court’s jurisprudence. I rather suspect that Lawrence is just another unreliable, unprincipled, and tautological illegitimate exercise of raw judicial power, as we shall see when a less politically advantaged group seeks application of that principle and is rebuffed.

Even on its own merits the Court’s decision is self-contradictory. Thus, its reasoning that the Texas law was now unconstitutional because legislatures were increasingly striking a balance that favored individual liberty of sodomy over the social interest in acceptable (or beneficial) forms of sexual contact proves that the legislatures were responding to social movement on this issue. Why, then, get the Court involved? Moreover, constitutionalizing a matter freezes in place a balance that might be struck differently in the future and makes it more difficult for the law as a whole to respond to such change. And the notion advanced in the opinion, that this is not about sodomy but about the right to be left alone, is so utterly vapid as to be useless as a principle of adjudication. Every mode of social control, and especially the criminal law, conflicts with the right to be left alone. Likewise the assertion in Planned Parenthood v. Casey that this is about the right of a person to define for himself his own concept of existence, of meaning, of the universe, and of the mystery of human life, cited to by the Court in Lawrence, is beyond parody in its pomposity and is jurisprudentially worthless. After all, no one quarrels with your right to define concepts for yourself. The question is whether that right gives you the right to act on that definition contrary to society’s interest in preventing you from so acting. If anything, the opinion in Lawrence proves the difficulty courts have in coming up with, as they must, a principled distinction among types of harm that the legislature categorically may or may not consider.

The attempt to limit the harm-morality distinction to criminal cases.
Professor Strader’s attempt to limit his definitional distinction between tangible harm and morality to criminal law presents two problems. First, the line between government interest balancing through criminal law and other means is not always clear. Civil punitive damages versus amercements, civil versus criminal contempts, and regulatory crimes punishable by fines versus administrative civil enforcement actions are not entirely clear distinctions as far as their ends and results. The difficulty of distinguishing such concepts underlies the Court’s decision in MLB v. SJB, in which the Court recognized a due process right to state-paid transcripts for indigents on appeal in civil parental rights termination cases just as in criminal appeals. The Court eschewed formal criminal-civil distinctions in favor of the type of harm suffered by the same class affected. As well, and as Justice Scalia predicts in his Lawrence dissent, one will hardly be surprised if at least some of the Justices who joined the Lawrence majority will disregard the criminal-civil distinction, among others, when there is a challenge to laws that restrict marriage to opposite-sex couples.

Second, as I noted originally, the criminal law may have several purposes. But, ultimately, and particularly today, the criminal law to a greater degree than the civil, reflects moral judgments. Even to the extent criminal law seeks to foster societal security, it does so by relying on moral calculations. Thus, murder is punished for the essential wrongfulness of the act, not out of utilitarian considerations of the insecurity among others that the murder causes, or even about private retribution not itself related to notions of morality (such as considerations about the support of the victims’ surviving family). After all, the last of these can be handled by civil wrongful death actions. Moreover, excuses to charges of murder focus on eliminating the wrongful nature of the act (self-defense, insanity), not on determining whether the killing actually increases community security.

The sources and interrelationship of customary majoritarian morality and systems of morals and ethics.
Professor Strader suggests that only a theocracy can define morality. I beg to differ. Morality is just customary common behavior of the relevant group, the tribe, community, state, or all of humanity. In that manner, it reflects the sociality of humans and the importance of such common behavior to further that sociality. It is distinct from “morals” (ethics) in that the latter have normative content based on some set of transcendent principles. However, as a number of legal philosophers have proposed, morality often is the positive manifestation of a universe of moral principles. A cynic might even argue that the real relationship between morals and morality is the inverse, and that the former is merely a convenient rationalization of whatever morality the culture actually practices. But one hopes that serious attempts to determine a system of universal moral norms that promotes human thriving move beyond such result orientation.

A system of morals or ethics indeed can be based on an appeal to authority of different types, including religious. But it can also be induced metaphysically from a contemplation of human nature and behavior or deduced (if Kant is to be believed) from some foundational principle operating through some highly individualistic system of subjective choice. Morality (customary behavior) can, of course, be probative (though probably not, by itself, complete proof) of moral behavior, particularly the more consistent the customary behavior is across cultures and time. There is a presumption that long and broadly adhered-to behavior conduces to human thriving. To the extent we believe that human existence is a good thing, so is human thriving and everything that contributes to it.

Ultimately, of course, the problem for the community of making practical law depends on a number of pragmatic factors that are not readily organized by appeal to broad “principles.” The devil, as always, is in the details, with exceptions to rules and exceptions to exceptions. Courts, acting through litigation, are generally unsuited to revalue and rebalance with greater expertise these kinds of policy decisions in the absence of fairly clear appeals to authority in the Constitution itself. Courts are not chosen for their special accomplishments in making policy, nor for their wisdom in moral philosophy that exceeds that of the population and its legislative representatives.

The legislature could pass a law against sodomy as a violation of a profound sense of morality of the community, as that morality reflects basic standards of what people believe constitutes “appropriate” behavior. Such legislation is valid in the absence of a clear constitutional norm that, as it is of constitutional dimension, is held to reflect some broadly agreed standard. Under our system, such a constitutional norm reflects a superior instantiation of popular will than the balance struck by the legislature. A court’s fantasy about the existence of such a constitutional norm is of little evidence of such a broadly shared understanding, as the abortion controversy over the past generation has made amply clear. And, unlike those who would decide all of these issues within the confines of constitutional straightjackets, leaving these decisions in the hands of the legislature provides more reliable indication of movement in popular understanding of such “appropriate behavior.” If law is an unwieldy method of balancing competing individual and social interests, constitutional law is much more so. Legislatures often, and wisely, refrain for a number of reasons from enacting laws that, under some principle carried to a logical absurdity, might support their power to do so. Just because you can do it does not necessarily mean you should. But it does mean you can.