Whom Do You Serve: Conceptions of the Law

What’s Going On?

Earlier this week a drunk driver struck another car while (allegedly) traveling at speeds in excess of 150mph in a residential zone.^[1]https://www.reviewjournal.com/crime/courts/henry-ruggs-released-from-jail-after-fatal-las-vegas-crash-2471134/ (edit: this was later corrected to a speed of 127mph at time of collision). The collision started a fire that killed the other driver and her dog. Some eyewitness accounts claim to have heard the recently deceased screaming as she and her pet burned alive. ^[2]https://dailysnark.com/2021/11/04/victim-of-henry-ruggs-crash-was-alive-during-fire-eyewitnesses-heard-her-screams-from-car-2/ The driver, an NFL player, was released on bail.

Yesterday I put up a story expressing my confusion surrounding one aspect of the legal system, bail, and venting some frustrations about what I see as flaws in this system. The responses I received, which I did ask for, ranged from passionately sympathetic to passionately defensive. Across all responses, the passion was the common feature, which is to be expected. After all, who is going to bother responding to something like that unless they have an opinion they think is worth sharing? One follower even told me she was currently in labor while explaining her stance to me (congratulations, Allison, on baby Vivienne).

Why is it relevant?

This passionate interest is, in my opinion, not just the normal response to a maddeningly tragic situation. Recently, there’s been a fair amount of discussion around drunk driving as an analogy to support vaccine mandates. Don’t worry, I’m not going to mention anything C-word related for the rest of the post. I only say it to say, drunk driving is something that has been on people’s minds. Additionally, the perpetrator is somewhat of a celebrity, and there’s certainly been a recent rise in criticism of celebrities and wealthier people generally, especially the uneven application of social responsibility and written law to the “rich and famous.”

Less abstractly, New York State (where most of my followers are from), recently reformed (and then amended) its policies surrounding bail. I take this as evidence that the concept is somewhat up for debate. Currently, for most misdemeanors and nonviolent felonies, judges are “required to release people with the least restrictive conditions necessary to reasonably assure the person will come back to court. For these crimes, cash bail is still prohibited.” ^[3]https://www.brennancenter.org/our-work/analysis-opinion/new-yorks-latest-bail-law-changes-explained

In this post I’d like make some observations about the responses I received, some analysis about why they are important, and point to some (much more scholarly) work that is being done to address what some see as dire flaw in the system.

What’s my take?

I take a few things away from the variety and volume of responses that I received.

A.) Regular people (meaning not lawyers or legal scholars) have opinions on the law, and should. While I see expertise as important, especially when considering codifying something vague like common sense, I ultimately see the law, under democracy, as an extension of the will of the governed. What that will is, takes up most of the rest of this section. (If you’re only interested in proposed and actual solutions, you can skip the remainder of this section.)

B.) There are, even among non-lawyers, differing conceptions of what the law is for. I definitely fall into one of these camps, but I don’t think any of them are objectively right or objectively better than the others. There is one that I absolutely agree with more, but I understand that other people have other good reasons for believing in the ones they believe in. (This will be the subject of my post next week). Obviously, most people are not hard into one camp or the other, and instead hold a blended position. Additionally, I don’t take the handful of responses from my relatively homogeneous following to represent all positions regarding the law. However, if you’re reading this, I assume you’re a follower of mine, probably one who cared enough to respond, so it’s likely you do fall into one or several of these camps. So what are they?

Conceptions of the Law:

1.) Instrumentalism^[4]I made all these names up. There is probably a commonly accepted set of definitions for these positions but I’m really just trying to get this thing out the door. If it gets significant traction … Continue reading – The Law Aims at Some Greater Good.  I start with this one because it’s the most common response I received. Under this conception, the law is an instrument by which we try to obtain Common Good or Justice or Harmony or some other more abstract ideal. What I like about this position is that is doesn’t enshrine the law overly much. It sees the law as necessarily and appropriately revisable when and where it fails to achieve whatever end. The instrumentalist position is generally, it’s not good that Ruggs is walking the streets. Because I am a nerd and love D&D, I will make the analogy that this stance can be understood as a Chaotic Good stance. Aiming to do Good, within the Law if possible, but outside the Law if not. (I’ve made these types of analogies before. They’re imperfect but fun).

2.) Contractualism –  The Law is a Contract that Protects.  This one takes a more pessimistic view of human nature. For contractualists, the law gives people some recourse when crimes or wrongful harm occur, so that they don’t have to resort to vigilanteism. This way, society can keep humming along. Accordingly, the law doesn’t just protect me form you and you from me, it protects me from me, in the sense that it creates an appropriate, productive outlet for the anger and resentment I might feel at being wronged. What I like about this one is it acknowledges and accounts for the, let’s say, less ideal aspects of human nature, which I have to admit certainly seem to exist. If you’ve ever read any of the Iceland Sagas you can understand why vigilante justice is incompatible with society. The contractualist’s position is generally, it’s important that people like Ruggs have the possibility of walking the streets, though this instance might not be the best example of such an important feature. In D&D terms I will call this one Lawful Evil, not because I think its bad, but because this position sees people as inherently bad and the law as the best means to manage that inherent evil.

3.) Proceduralism – The Law Is the Best Guide. This one is similar to contractualism in the sense that it sees the law as giving some procedure or guidance, and sees that procedure as valuable. The biggest difference, as I see it, is that proceduralists aren’t committed to seeing people as violent creatures needing to be managed, but rather as emotional creatures that sometimes make hasty judgements. In this way, it is a little more sympathetic. Proceduralism provides us a dispassionate lens through which to view crime or wrongful harm, giving us guidance that helps us review each case as a kind, rather than a unique instance. Not only does this save time, but it (allegedly) makes it more likely that the law will be fair and evenly applied. We can imagine the law, for proceduralists, as a type of guru or virtue agent who understands our best attempts as ultimately doomed to fail due to our own flawed nature. Rather than worry about the best possible thing to do, the law concerns itself with the best that we can do today. The proceduralist stance is something like the contractualist stance, the best we can do today is let Ruggs walk free, but tomorrow maybe we can find a way to do better. In D&D terms, I call this stance Lawful Good, aiming to do Good, but only within the confines of the Law.

4.) In-Itself – The Law is The Law. I know I said all these stances were were good but I actually hate this one. Using the D&D analogy, we would call this stance Lawful Neutral. This stance is something like, the law says he should be free on bail, and it  should be upheld because it is the law. The circularity of argumentation drives me insane. There’s no real greater value here, the law is seen as sufficiently valuable in itself. Unlike the other stances, this one is pretty resistant to reform because it doesn’t have a good basis for reform. Where the instrumentalist or the contractualist can justify reforming the law as in service of some greater good (Care or Procedure), this type of person can make no such justification. It’s not important what the law is, just that there is a law of some kind. In ethics we call a stance like this “moral fetishism.” While I wouldn’t normally, I am going to kink-shame in this instance. Legal Fetishism is a Classically Conservative viewpoint, not in the sense of Republican but in the sense of resistant to change, wants to keep things as they are. I do not see it as having any real value, but there is an interesting discussion to be had around who benefits from this (and every) kind of stance versus who actually holds/supports each kind of stance. That is a topic for another time 🙂

Regardless of which school or schools you fall into (except the last one), observation of flaws in the system warrant consideration for revision. Depending on your stance, you might see this flaw as more or less dire. Either way, bail is certainly flawed. As I said before, I take the recent revisions to the bail system in New York State as evidence that these laws are flawed to at least some degree, so they are apt for revision. Troublingly, I see the revisions that have been made as (frustratingly, typically) aimed at short term political approval instead of any of the broader conceptions listed above. However, this isn’t supposed to be yet another post about why I hate politicians, so we’ll set that aside for now.

So, What’s the Solution?

If you’re interested in how the current law could be revised to account for this flaw, I recently really enjoyed Alex Guererro’s Law and Violence. He makes an argument that we currently differentiate crimes on the basis of violent or non-violent. According to his argument, many “violent” crimes don’t risk or cause that much harm (for example, two drunks fist-fighting outside a bar), whereas many “non-violent” crimes (like a single drunk driving 150mph through a neighborhood) do risk a significant amount of harm. Guerrero argues that we already make the “wrongful harm risked” distinction in sentencing and assessing penalties, so it wouldn’t take much work to introduce this distinction earlier in the legal processes. Potentially, an approach like this could provide legal basis to keep someone like Ruggs off the street while we assess how to handle his case, while still protecting less harmful criminals from the (potentially) predatory nature of the legal system generally.

It’s also worth noting that we do currently qualify some people as ineligible for bail, on a state by state basis. In New York State, minor, nonviolent crimes are ineligible for bail in the sense that you don’t have to post bail, you can just go and wait for your court date. Additionally, some heinously violent crimes are ineligible for bail in the sense that you aren’t walking free no matter how much money you have. Dzhokhar Tsarnaev (the Boston Marathon bomber) is a good example of this kind of case. Interestingly, murder 1—premeditated, intentional killings (like stalking someone before murdering them)—does qualify for bail in New York State. While that’s an uncomfortable thought, I do think there’s some basis for it (something like innocent until proven guilty).

Finally, it’s not exactly accurate to characterize someone who has posted bail as “free” to commit the same wrongful harm, or free to engage in the same level of recklessness that led to the grave, wrongful harm. In Ruggs’ case, he’s on house arrest. This seems like a good compromise between the concerns about holding some people for the (seemingly indefinite) amount of time between committing the crime and the actual hearing (which can be months or years depending on the tactics employed by the lawyers on either side) and letting someone go free for an equally indefinite amount of time.

So What, Who Cares?

It is important to have guiding principles. Ethics are supposed to make our life easier, in the sense of less decision intensive. We create some framework of right and wrong, and categorize actions accordingly. I believe this why humans developed ethics in the first place, so that we could make distinctions between right and wrong, and know what we should do, without having to spend hours per day pondering every qualm that comes our way. Of course, some, like me, are going to do that anyway. And some, like the Church and the State, are going to try to co-opt ethics to control people, to get them to behave in a certain way, regardless of what is actually right or wrong.^[5]you’ll have a hard time convincing me, for example, that masturbation has any ethical basis for being considered wrong, though the Catholics insist it does. If you have some time, it might be worthwhile to articulate your stance to yourself. The more clearly articulated, the more accurately you can advocate for your position, which is legitimate and worthy, by political means. Next week I hope to write more about that precise subject: your opinion, my opinion, why both are worthy, and how government represents (or, struggles to represent) these equally valid opinions.

Thanks for reading, don’t drink and drive.