Legality vs. "Rightness"

Great Debates
1

Hi there. Before I begin, let me introduce myself…

My name’s Ian, alias Roland Orzabal. I’m a long-time lurker, first-time poster here at the SDMB. I love reading the comments and watching the debates, and many a time I’ve felt compelled to jump in, being as I tend to be of a fairly opinionated nature. So, you may ask, why haven’t I? (You may also ask what any of this has to do with the subject line, and rightly so, but bear with me…we’ll get to that in a moment). The reason is that I can’t seem to decide what specific topic would allow me to give an accurate “first impression”; you folks seem to know each other pretty well, and I don’t want to misrepresent myself by jumping into something with mouth a-blazin’ and alienating half the SDMB right off the bat.

As such, I’ve decided to kick things off with something a little more abstract (yes, finally, we come to the point)…the issue of Legality versus “Rightness”. I’ve noticed that in most of the forums, particularly Great Debates, when the legality of a particular topic comes into question, approximately half the posters will focus on the current legality of the issue in question, whereas the other half seems to discuss the “rightness” behind it. For the purposes of this discussion, I’m defining “rightness” as “the morality of a given action or situation, where the basis of said morality is a source other than governmental law”. Whether that source is external, such as a religious code, or internal, where intuition and emotion are used to determine morality, is entirely irrelevant (and don’t get me started…). Now then, back to the point.

Such debates almost always become excruciating exercises in confusion and misunderstanding, since the two “sides” are effectively arguing about two different topics. A good example, though I could cite many, would be this thread regarding freedom of speech in schools. So, I’d like to settle the score here and now: When discussing the legality of a given situation, is the purpose of the thread to determine whether the action in question is legal, or whether it should be legal?

Incidentally, I do indeed have a stance on this, but I believe I’ll hold my cards until at least a couple people respond. Oh, and don’t worry that I’m just waiting so that I can agree with the majority…I can assure you from a great deal of experience that that doesn’t happen too much :wink:

One final note…am I always this annoyingly self-analytical and verbose? Why, yes! But I’ll try to restrain myself in future posts, for the convenience (and sanity) of my fellow Dopers. Hello again, nice to meet you all, and let the discussion begin!

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Nice to meet you too. Oh, I have nothing to add, just wanted to say that I really liked “Shout.” :smiley:

3

OK, this ain’t my area, but I’ll toss in my chips. I like learning about how I stand.

As I understand legal theory, there are various concepts - social, personal, religious, etc. Basically, these revolve around rights - ie, I have a right to live and own property, and if you take these away, you are breaking a law. This gets chopped up into further distinctions based on rights you don’t have (eg, to use illegal drugs).

That’s how I understand the concepts of law. The debate comes into play when you question things like whether or not people have certain religious rights, and whether rights are violated.

Since “rightness” is subjective, we (as a democratic society) rely on a collective body of elected/appointed by elected officials officials to write, interpret, and enforce these laws. Over time, their goals and orientations change, and thus the law changes - often times, literally making it up as we go along (fascinating frontiers in law are computer/digital law and (my favorite) international law).

So, basically, it is a socially (or otherwise) determined set of rights and rules established for the betterment of society.

The above definition, of course, is easily violated and abused once the subjective ideas of “rightness” come into play and individuals gain power.

4

Zagadka -

Most of what you say is true, but I think you may have missed the point of my question (entirely understandable given the oodles of rambling that surrounded it, but still). I wasn’t asking about the concept of rightness as it relates to legality ; I was asking whether legality or rightness should be the core value when discussing such matters.

I tend to believe that, when debating a topic such as the one in the thread I linked to (freedom of speech in schools), the purpose is better served by discussing your beliefs/opinions on what the law ought to be, rather than what it is. In these cases, law as an entity does not fulfill its purpose if the majority believes the moral fundaments behind the law to be incorrect.

Furthermore, as you correctly point out, “rightness” is by definition a subjective matter. I believe that this inherently makes it more suitable for debate, since instead of discussing semantics and precedents (which legal debates inevitably end up becoming), we can instead compare and contrast the philosophies and ideas behind our own moral judgements. Not only is this more interesting than citing “Article X, Section Y, Paragraph Z of the United States Constitution…”, it is also much more useful if the purpose of debate is indeed to further understanding of one’s position rather than to "win…and to those who’d argue that last point, I’m talking about civil debate here; as an ex-debater myself (started out in Lincoln-Douglas and moved on to Classical Policy), I understand that winning is the objective in those situations. Actually, the fact that I found L-D far more thought-provoking than Policy kinda serves to reinforce my point here.

So, unless the OP is directly asking whether or not a given action is currently legal, I believe that a discussion of “rightness”, rather than actual legality, is what ought to ensue. The law can (and should) of course be referenced, but only insofar as it illustrates the practicality of one’s position. After all, just 'cause it’s legal don’t make it right, in anybody’s book.

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Probably, I did miss the point, yea. Honestly, I’m pretty tired and actively watching half a dozen threads right now. :wink:

OK, in your clarification above, this is how I view it. Legality is the guiding force for action. Rightness is the guiding force for legality.

This means that an act that is illegal is, well, illegal - though it is perfectly acceptable and, in fact, encouraged to review legality in the light of “rightness” to redefine what legality is.

If it is illegal for me to wear a red shirt, and I wear a red shirt, I get what I deserve. However, it is fine for me to actively support a change in the law to make it legal to wear my red shirt.

No, and it being illegal doesn’t necessarily make it wrong. But you can’t convict someone for doing something “wrong” that is entirely within their legal rights.

If you are going to discuss an issue like that in debate, you need to carefully use the words to define that an act is not illegal, but should be illegal based on legal precedent and rights.

I’ve probably just muddled my own thinking. :slight_smile:

6

Exactly. That was my point when I said that, in threads like the one I linked to, people effectively seemed to be debating two different topics “against” each other, which is why nobody ever seemed to get anywhere. One side discusses whether the action in question is legal, while the other responds that it may well be legal, but it’s still wrong (or vice-versa). It seems to me that much of the time, people would be in agreement if they could agree on what they were arguing about in the first place. That’d be why I started this thread.

Then again, maybe it is a bit of a convoluted topic for a 1 a.m. discussion…oh well.

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Hi, Roland. I’m new here too.
I’m with you as far as the importance of clarity, but I don’t think legality can be divorced from “rightness” in discussions concerning public policy. When legislators propose laws they discuss the merits of the action, but they also have to be concerned with legality – is the proposed law unconstitutional, does it conflict with other laws, etc. Sometimes, they are not rigorous enough with the second topic and a court has to restrain them. For us non-official types, legality should still play a prominent role, because 1) There is a cost to breaking laws that extends beyond the individual act. This is because all laws depend on voluntary compliance by the vast majority of the people the vast majority of the time, and there might not be a universally recognized line between the law you want to break and the one I want to break, not to mention my brother-in law, his neighbors, and those wackos in the next state. The thing that gives civil disobedience its moral force is not the breaking of a law, it’s the participants’ willingness to accept the penalty for breaking it. Even if you really want to focus only on the morality of a given action, the action’s negative impacts on society at large must be considered. “Will this act damage the rule of law in a non-trivial way?” is a valid ethical concern, and here come the legalists. 2) There are all sorts of permutations here. “Right” actions can be categorized as permissible (people should be allowed to do this) or obligatory (everyone should do this). In the former case, no law need be involved. In the latter, even if we’ve agreed that everyone should do something, we still need to figure out if we want the state to enforce it. Similarly, we have to decide which “wrong” actions we want the state to punish and which to enforce by personal example, yelling “Hey! Cut that out!”, picking up a torch and forming an angry mob, and so on. The enforcement of a law in itself can have moral implications extending beyond the actions it is meant to encourage or prohibit. The mere fact that while everyone can have their own personal code of conduct, they are not allowed to have their own set of laws, means that the law will be an important element in policy discussions involving more than one person.

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A few days ago I saw an interesting post (I don’t recall who posted it or in which thread) where the poster wrote about her pro-choice leanings and her moral reservations about abortion. Until I read her post it hadn’t really occurred to me that being pro-choice is simply a legal decision and has nothing to do with the “rightness” of the action it effectively endorses. While I appreciate that morality and legality are different things I was surprised that I hadn’t been struck by this before.

After reading this I had the thought that if people could separate the legal and moral implications of public policy as effectively as the poster, a lot of heated argument could be avoided.

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HHmm… what about the fact that certain reviews of the Law are little more than attempts at imposing your morality ?

So the legal vs right becomes pretty muddled no ? What should or can be legal isn’t always a clear cut thing when talking about “rightness”.

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I have tried to prevent this in one thread by stating specifically that I wasn’t interested in discussing the legality of the topic, only its morality. We still had a lot of posts about the legal status of the topic. (Cite.) Apparently, a lot of people around here confuse legality with morality. You’d think we’d know better.

11

Hi Ian. Welcome to the fray. It’s always nice to see somebody jumping into the pool. The only advice I’d offer in Great Debates is that you should always agree with me. That way, you’ll never be wrong.

As to your OP, I think you make a very good point. Legality and morality are two separate ways of judging the “rightness” of an action or idea. Each one brings a different aspect to the debate, and, in my opinion, both can contribute to a proper discussion. There are times where one side comes down to “It’s legal” and the other side is “It’s immoral”, but, more often than not, there is a fair amount of grey area to be debated. Oftentimes, such as in Evil Captor’s thread, the use of a legal argument can give guidelines to a discussion of the morality. For example, in the copyright thread, although EC was limiting his discussion to the ethics of a particular copyright situation, the legal standards, “fair use” can be a guidepost to determine the morality of the situation. In situations such as that thread, I think a discussion of legality can certainly be helpful to determine the morality. And it works vice-versa also, where moral arguments can be very helpful in a debate about legality.

The other point I’d like to make is that legal arguments are much more likely to have a right or wrong answer, than moral ones. In that respect, it is much easier to debate the legality of an action than the morality of it. But discounting the ways in which legal arguments can enlighten moral ones, and vice-versa, is a bit simplistic.

I think the biggest problem in many of these debates that go awry is not the distinction between legality and morality, but rather that nobody listens to, and addresses, the other sides points. I think THAT is the main problem with the thread you cited.

Best of luck in your posting future.

12

Welcome, Roland! This is a great question.

Obviously, in the referenced thread, I was one of the people arguing the legal position most strenuously. However, I think some people miss that I was also arguing from morals.

Indeed, there’s another split here.

  1. You can argue the legality of an action;
  2. You can argue the morality of an action; and
  3. You can argue the morality of suppressing an immoral action.

My position in that thread is that the tweaker student’s shirt was most likely legal, but was almost certainly immoral. HOWEVER, I believe that suppressing the shirt was both illegal and immoral.

My impression was that several people arguing against me were confusing legal with moral. Certainly nobody presented a strong case that the administration’s actions were legal; however, there’s a much stronger case that the administration’s actions were moral. I think people want the veneer of authority that comes with being legally correct, so they were trying to stretch the law to support their point of view. That causes problems.

In this debate, as in many others, the issue of who’s legally correct is clearer than the issue of who’s morally correct. Both questions are interesting, but only the former question really has a factual answer. Ideally, the legal question would be settled early on, freeing up discussion of whether the law is moral.

I would suggest that in such threads, people make it clear which position they’re taking. I myself am guilty of not clarifying sometimes: in that thread, I got so caught up in referencings Supreme Court cases that I neglected (for the most part) to point out the underlying moral issues. I should have maintained, consistently, that suppressing the asshole’s speech was both unethical AND illegal in my view, so that people didn’t think (mistakenly) that I was willing to sacrifice morality on the altar of law.

Just for some perspective, I’m a closet utopian anarchist :).

Daniel

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Hi!

I’m an anarchist and this is probably the core issue that distinguishes me from folks who aren’t anarchists.

Zagadka:

For me, rightness is the guiding force for action. Legality is a nest of formalized institutional reactions that you need to take into account in the sense of “data about your operating environment”.

• There are laws that, while not in direct contradiction to what is right, are arbitrary and annoying. There’s no reason to obey them other than fear of the consequences of being caught in violation, in my opinion. Admittedly, the tertiary consequences can include things like “working against a communally accepted system in which we all surrender a degree of personal latitude voluntarily in return for a general freedom from constant supervision and coercive enforcement”, but unlike many folks who conclude from this the need to obey laws, I don’t consider this compromise necessary and inevitable, so I have no internalized sense of the rightness of obeying laws in order to be a law-obeying citizen.

• There are laws that actively mandate behavior I consider wrong, or penalize behavior I consider righteous and important behavior. These are bad laws and in such cases there is an active reason to get rid of the laws, and also perhaps active reasons to disobey them in the mean time, depending on context. I’m strongly inclined to do so on general principle, and depending, again, on context, I may do so explicitly in order to get caught and challenge the law. In some cases I might consider it actively wrong to obey the law or to refrain from rising up against it in willful disobedience.

Being also a theological maverick, one who is not a Christian but who considers Jesus of Nazareth to be quite the holy man nonetheless, I see his life and message to have been about this very issue (and not the stuff that is held central by most Christians) — that he deliberately set out to juxtapose “how is one righteous according to the letter of the law” with “how is one righteous (which is the spirit of the law)” and prompt people to make that distinction and to choose the personal “rightness” rather than to ascribe to the obedient following of rules as the definition thereof.

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I would disagree. What I find happens often is that people argue legality as a substitute for arguing morality.