Tuesday, September 10, 2013

Steroids, Cavemen, and the Meaning of the Law

I wrote a post last week that tried to determine whether there should be a steroid ban in baseball. A friend of mine responded with this astute observation:
The thing is, steroids are banned now, and most of the debate is about how we should feel about those that do them anyway. Are they irredeemable cheaters who have tarnished the integrity of the game, or are they just people who broke rules who should be punished within the rules without all the moral outrage?
This question pricks the beating heart of one of the fiercest debates in history. Ever since Grorg was fed to a cave lion for bedding Thurg's wife, humans have been wracked with doubt about the meaning of laws and punishment. In general, there are two caves of thought.

Some hold that we have a moral obligation to follow the law as such. As citizens of a community, we're not just expected to act ethically. We also have an extra obligation to follow the laws—not necessarily because they represent justice, but because they're the laws, plain and simple. After all, when I joined the community—or when I grew up in it and didn't leave—I tacitly promised to obey all its rules. If I break any of the laws, therefore, I'm breaking my promise. The only way I can justify breaking the law is if I'm willing to call it unjust, openly violate it, and then walk into jail. 

This school of thought goes back to the Crito and the Hebrew Bible, and it's attracted thinkers like St. Thomas, Martin Luther King, and John Locke. ("I'm totally fine with what Edward Snowden did, a friend of mine recently told me, "but why the hell didn't he turn himself in for it?")

The second camp—to which Grorg surely belonged—takes a different view: the so-called realist theory of law. The laws, according to the realists, are nothing but tools that a community has at its disposal to enforce its moral convictions and keep itself safe. If a set of cavemen frowns on murder or sodomy, it criminalizes them. The law, though, is really just a tool: it shouldn't be worshipped any more than a hammer. (Realists might, of course, worship the moral end to which we put the law, just like a pagan will worship the idol he makes with the hammer.)

Moreover, say the realists, the laws are only worth following if we don't think we'll be punished for breaking them. It might still be in my interest to follow them even if I don't agree with them: if I remarry without getting a court divorce, for instance, I'll be prosecuted for bigamy. But if there's no enforcement, there's no obligation (besides a separate, non-legal moral obligation.) If there's no enforcement, in fact, it's as if there's no law at all.

When the laws are being made, by the way, the realist will do her best to have them express her moral preferences. She wants the full power of the state to protect her values. But once they're made, the laws don't determine her moral compass—all they do is influence her decisions.

This understanding of the law is just as ancient as the first, but it waited for a proud expression until Oliver Wendell Holmes's Path of the Law in 1897. There, Holmes made a point that shocked his audience at Boston College: the law is a reflection of a communities' mores, but it is not moral in itself. It must be framed, Holmes said, with "bad men" in mind: men, in other words, who only care about punishment and reward, not lawfulness for its own sake. This passage from Holme's essay is realism in a nutshell, and worth reading in full:
I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can. 
This caveat, though, must be kept in mind:
I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men.
Though I'm sympathetic to both ways of thinking (Apollo has turned me into a fox!), I lean towards the realist camp. It's easy, after all, to be enthusiastic about the laws when you're surrounded by a cityful of turnstile-jumpers and pickpockets. So much so, in fact, that you might start attaching moral weight to the laws in themselves—we need an orderly society, after all! But there are two experiences that can cure you of that impulse.

The first is to leave civilization. From the top of Mount Katahdin, the only law that holds is the law of beauty, the sun, and chipmunks—the cosmic significance of city ordinances will weaken in your wondering eyes.

The second is to reflect on your own behavior. Chances are, you've had an underage beer, driven over the speed limit, or broken into buildings in college. Can you really say that you follow the laws on principle? Or does your moral compass turn without the statute-book's magnetic pull?

Maybe you've even snuck into Canada with half a dozen
foreign children in tow. Completely hypothetical.

Back to steroids, though, and my friend's question: how wrong was it for A-Rod to take steroids? Pretty damn wrong, I'd say, because he cheated. Do I contradict myself? Sort of: when it comes to sports, my opinion is completely opposite to my attitude to the law. I don't have any moral preferences when it comes to the structure of a game: the rules are just the rules, after all. They have no ulterior purpose. On the other hand, I put great value on fair play and good sportsmanship. My moral feeling therefore goes hand in hand with a person's willingness to follow the rules of the game. So someone who breaks the rules is a scoundrel, plain and simple.

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