Tuesday, June 28, 2011

Mailbag Monday: Morality and the Law

Mailbag Monday: A weekly segment that covers readers' questions and concerns about all things Philosophy, Bro, and Philosophy Bro that don't quite fit anywhere else. Send your questions to philosophybro@gmail.com with 'Mailbag Monday' in the subject line.


Andy writes,
Bro, what's the relationship between morals and laws? It seems like the law reflects some moral code sometimes, but we don't all agree about a moral code. And some people's moral code is religious. Is that kosher (heh)?  Are they related intentionally, or just coincidentally?
Andy. Bro. Great question. If our laws aren't designed around a moral code, we've got one fucking incredible coincidence to explain. Maybe the major ethical systems disagree on tons of fringe shit, but pretty much any system worth its salt agrees that cold-blooded murder and rape are not okay, bro. And, surprise! those things are illegal, along with a host of other things generally frowned upon by society.

In fact, there's a legal principle called defeasibility, which just means that exceptions are allowed to any definition of a crime if there are circumstances which we think should excuse someone. For example, second-degree murder is usually described as murder that isn't premeditated, a "crime of passion". But what if some dude threatens you, and you're passionate about not getting stabbed? "Your honor, I was defending myself from getting the fuck stabbed" is a pretty good defense to accusations of murder, and for good reason - it seems ridiculous to punish someone for protecting himself. He's not morally responsible for that! What choice did he have, Earl? None! 

What if some asshole with a penchant for dynamite told you that he would blow up your house if you didn't kill his neighbor's dog? Yeah, I know, philosophy can be a bit morose at times, but just fucking roll with it. Pretend the dog is real yappy, if that helps. Now, if you could prove that he made that threat, it's almost certain that you would, at worst, get a reduced sentence for your crime. You might even get off completely. Same reason: we recognize that you were under duress, threatened with your house exploding.

So historically, there's been this strong link between criminal responsibility and moral responsibility, where we tend to only hold people criminally responsible if they're morally responsible. The insanity defense is maybe the strongest reflection of that: there isn't some external circumstance driving you to kill as in the previous two examples - like normal, perfectly and uncontroversially criminal murders, a particular state of mind drives you to kill someone. So what's the difference between hating someone's guts and being out of your goddamn mind for no reason at all? Well, we consider people morally responsible for acting on one, and not responsible for the other. Ditto legally responsible. BOOM.

But, as you'd expect, it's hardly as straightforward as that.

Psychopaths are a pretty good case study for this problem. We have these bros who seem absolutely incapable of remorse, or even of moral emotions. Remember that time in elementary school when you let that kid take the fall for some shit that you broke, and you didn't confess? You know that feeling of guilt you get for watching your best friend get chewed out and not saying anything? If you answered "no", then you might be a psychopath. Or a Replicant. I mean, sure, maybe psychopaths can explain morality, even give nuanced explanations. But if you press them, usually they say something like, "people keep telling me that stealing shit and torturing animals is wrong. Whatever. But I have no problem skinning a cat. I... who cares? And, I mean, if someone else gets blamed for me burning down a house, how is that not fucking awesome?! Man, I just don't get it." Seriously, if you ever get the chance to read the testimony of truly depraved serial killers, make sure you fucking pass on that. Shit's chilling, yo.

Aside from the complete inability to feel any sort of moral inclinations or engage in any sort of moral reasoning, psychopaths are, in general, completely able. Oh, also, as far as we know they're fucking incurable. Sweet, right? Now, if they can't understand in a reasonable way what they do wrong, can we hold them morally responsible? And if not, then what do we do with them legally? We don't have many options - lock them up completely, put them in an asylum where they won't get any better, or, you know, let them wander. And when you know someone can't be cured, what is the realistic difference between a life sentence in prison and an indefinite stay in an asylum? But we probably shouldn't make a habit of releasing wanton, unapologetic murders out into the street. So here it seems like we need a damn good account of the relationship between moral and criminal responsibility, and of course we probably should have a more nuanced understanding than we initially expected.

On the question of religion, this is something that really shone through in political philosophy debates in the middle of the twentieth century. John Rawls led the charge from one side - he said that a bro should only support policies that he could support for a secular reason. So yeah, "Thou Shalt Not Murder" was the fifth commandment; does that mean laws against murder are unfair endorsements of religion? I doubt it. There's a perfectly good reason to ban murder - people fucking hate being murdered. Seriously, have you ever been murdered? It's the worst. Everyone pretty much agrees that if there's a good secular reason for a law, it's cool. But must there be a secular reason? Jurgen Habermas led the charge from the other side, arguing that you can't ask people to stop thinking religiously for a second. Thinking religiously is an integral part of how most religious people are; if you asked a Christian whether there was a good secular reason to disagree with abortion, he'd just look at you all confused and shit. "How does a secular paradigm make a fetus not a life??" And that would be justifiable confusion. Religious convictions inform the religious at the deepest level - if we would ask them to cease reasoning from those convictions on the most important questions, perhaps we're asking too much.

For an in-depth discussion of psychopathy, morality, and the law, pick up Responsibility and psychopathy: Interfacing law, psychiatry and philosophy. Be aware, however, that it leans slightly toward exonerating psychopaths of moral responsibility, which is not by any means the only viable position.


  1. Excellent stuff. No doubting which side of the debate I come down on ;P

  2. I tend to think that psychopaths should be considered as equivalent to vampires (were vampires, you know, real.) That is, they may be genetically human, but in every way that matters, they are not human beings, and should be accorded none of the rights that we accord to human beings. Rather, they should be treated as intrinsically hostile invaders who are parasitic upon our society and incapable of anything but harm over the long term.

    Psychopaths are no different from rabid dogs - put them down, humanely and painlessly, and be done with it.

  3. @Stewart Apart from the debatable morality of the death penalty, it's cheaper to imprison someone for life rather than execute them. Why spend more money to kill the psychopath when they can still be of use to psychologists when alive?

  4. It's not just psychopaths: can we say *anyone* is truly morally responsible for any of their actions? People don't choose their genetics, upbringing and environment, which dictates their brain processes and hence their thoughts. But even if we don't hold anyone *morally* responsible, we could still justify sending people to prison; not as punishment per se, but rather as a deterrent to others, and to prevent them from committing future crimes.

  5. @Matt S, you mention that people don't choose their upbringings or environments. Well the social environment certainly has huge influences on a persons moral instincts, and it seems to me that in general, people tend to conform to the moral principles which they were exposed to growing up. The legal environment also plays a significant role in moral development. So we can, loosely speaking, hold someone morally responsible to follow *any* set of principles, regardless of specifics of the principles themselves, since they've become, in a sense, familiar with the parameters set in their environment for what is right and what is wrong. Obviously there is plenty of room for exceptions. But my point is that regardless of the factors influencing one's actual decisions, there is a larger set of factors that influence one's potential decisions, the decisions one considers (conciously or subconciously) based on the options they perceive themselves to have.

    So I may impulsively decide one day, based on my traumatic upbringing and hard life on the streets, to do someone in, someone I despise. But every Sunday I go to church and am influenced by that; I watch Law and Order, and absorb moral information from there; I see people in my city who live different lives than me, and over a lifetime, I can piece together the reasons others have for the decisions they make. I have my personal choices, but also a larger framework of the range of choices that I've been influenced by. And that decision, informed by all these experiences is where moral responsibility comes in.

  6. @Geoff

    Where does "personal choice" enter the picture? At what point does a person become responsible for the thoughts they have, as opposed to the thoughts being caused by their environment and genetics?

  7. the choice comes in who he chooses to be his friends does his up bringing influence that choice sure but while he might wanna hang out with the cool kids he can still choose to hang out with the nerds :P

  8. For the record people with antisocial personality disorder ("psychopath" is an outdated term) are not "intrinsically hostile" and I do not support efforts to euthanize my brother. Thanks Stuart.

    Good luck trying to identify them anyway. Tons of people might have something in the antisocial spectrum without ever being diagnosed; tons of people who are diagnosed with it never go on to act like the "violent sociopath" of popular conception; tons of people who do act like the psychopath of popular perception don't actually have antisocial personality disorder at all. But it sure is fun to just make decisions and say shit on the internet without knowing what you're talking about, isn't it?

  9. @Owl, and anyway without psychopaths, we'd never have investment bankers. I'm just kidding, obviously. I've met some remarkably ethical people who have antisocial PD. They don't feel for other people in the sense of a normal person, but they have (usually very complex) rational constructions that dictate how they behave centered around the idea that what's good for society is good for them. Self serving, but the source of altruism is still pretty debatable.

    However, it's important to note that "sanity" and "competent" are legal terms. A psychologist, or at least a good one, will never use those words while diagnosing a patient. You can have someone who is antisocial, but still sane and competent to stand trial. These are the people you likely think of when you think of a "psychopath" or "sociopath". On the other hand, this is vastly different from someone who is insane (their understanding of reality is vastly different than what's generally held to be true) or incompetent (unable to understand the legal code). These hearings are usually held before it makes it to open court so it's not surprising that Antisocial PD is generally understood as an otherwise "normal" person who does horrific things. Instead of people who have suffered brain damage, were born with large areas of their brains atrophied, or were put through an horrific experience at a young age.

    tl;dr - Read the fucking links Bro included before you suggest genocide.

  10. Philosophy Bro-

    I'm a senior psychology student at a major Uni, and let me tell you bro, you are way correct on the moral responsibility of psychopaths. I've written some long-ass papers on psychopathy and done some intense research on them, and they are some scary motherfuckers.

    I even wrote a paper on whether diagnosed sociopaths (read: psychopaths, anti-social bros etc) should be held legally and/or morally responsible for their actions. Just cause a bro can't feel remorse for their actions and has a dysfunctional brain doesn't mean they aren't responsible for their actions, yes?

    My conclusion was essentially this: Whether they're remorseful or not, brociopaths still intellectually understand the difference between society's conceptions of right and wrong (ie the Law). This, combined with the fact that they're a fucking danger to society means they should be incarcerated. They cannot (in most cases) be trusted in an asylum, as they have the capability to fool even the most well-read Psychology Bro. Take Kenneth Bianchi for instance, the "Hillside Strangler". This bro raped and killed like SEVENTEEN goddamn women in California 20 or so years ago. When he was finally arrested he actually fooled 5 or 6 leading psychologists into thinking he had some goddamn multiple-personality bullshit, and almost got away with it if it hadn't been for a goddamn meddling Psychology Bro named Orne. This guy fed Bianchi the information that most cases of multiple personality disorder had 3 or more personalities, as opposed to Bianchi's alleged 2. Well guess fucking what, Bianchi then 'suddenly' developed a new personality that hadn't been recorded before. What a dick. Anyway he spent a shitload of time in prison, in case you were wondering. The point is, yeah you can send a sociopath to the asylum, but can you really trust the word of a bro who fucking lies through his teeth at any given opportunity and has no fear-response to tell him "Hey asshole, this seems like it's a bad idea, you may want to back the fuck off"? No, you're gonna put that psychbropath in the biggest goddamn prison you can and throw away the key.

    Just some thoughts from a fellow bro,

    Psychology Bro

  11. Like, okay, just fyi, my LITERAL BRO IRL has that shit going on in his head, and he's not a fucking danger to society who needs to be incarcerated because he's a scary motherfucker, okay? Because he intellectually understands the difference between society's conceptions of right and wrong and he uses that intellectual understanding to not do shit that's going to get him arrested, because he thinks it would be a bad idea for his lifestyle if he ended up in prison.

  12. @Anonymous
    Then obviously my post does not apply to your brother. Use that thing between your ears, mate.

  13. heres the fucking difference between morals and the law bro: moral laws work in specific situations to govern what one ought to do or ought not to do on a personal level. This covers every action, whether or not some other person is involved. laws of society (read "other people involved") work ONLY to improve the function of that society, make it more efficient and all that shit. Societies tend to collapse when people run around stabbing each other. we have laws to stop that kind of bullshit. laws that do govern based on morality are also bullshit.