A couple weeks ago, I introduced you all the ideas of moral and immoral contexts. The idea that sometimes we live in a society in which does not punish immoral behavior, and sometimes we live in a society that does. But we can imagine a third kind of context- a context where ostensibly our society punishes immoral behaviors through legal measures, but in practice that doesn’t actually happen, or where the behaviors of a citizenry are such that they consistently flout the law despite the punishment because of some higher reasoning.
The first case we can imagine including contexts like Canada’s current enforcement of cannabis as a controlled substance (no one’s arresting anyone for it anymore because it will be legal soon, and even before this if you were Caucasian you could probably get away with it as long as you shared some with the police if you were caught).
The second case we can imagine including context like American pre-Roe v. Wade, where women risked incarceration and death to have coat hanger abortions performed, despite the social stigma and illegality of such an action.
This brings me to this week’s question which is: Should policy take into consideration these types of widespread illegal actions? If so, how?
I’ve already discussed how morality is not the same thing as legality. There are many examples of things that are illegal but not immoral, and also things that are immoral but not illegal. I’ve also touched on how we can perhaps bring legality more in line with morality.
Now, in both of the examples I’ve given above, I would argue the reason that they exist in the gray-state between an immoral and a moral context is because the behavior exhibited is not actually immoral, and is being unfairly punished. Especially in the latter case, people risk great things to undergo abortions because being forced to carry a child against your will is one of the worst things a person can suffer. In some cases it can literally be torture, and childbirth itself is very dangerous. In the first case, ‘lip service’ may be paid to the rules and law (usually by unfairly punishing POC and poor individuals) to maintain some social scheme that everyone knows is bullshit anyways.
In these cases, our attitude towards a moralizing but not strictly moral context is one of apathy, so illegal behavior (but not immoral) behavior is widespread. In these cases, the law should come in line morality, and our actions and intuitions merely show us the direction to go.
Now, we can imagine a mirror to these cases where instead, something was illegal and immoral, and yet punishment mechanisms were ineffective. Take for example, sexual assault. Even in the era of #MeToo, effective punishment of serial harassers is very hard to come by, punishment by the legal system is virtually unheard of. In this case, our enforcement of the law needs to come in line with morality, as we may be drifting towards an immoral context.
Adding in Globalized Perspective
Interestingly, this type of debate and influence on legality and policy, like many other things, is taking on a globalized aspect. Take, CRISPR, for example. CRISPR technologies and research are tightly regulated in many Western jurisdictions. However, internationally that is beginning to change. The UK is considering loosening ethics regulations around human (and specifically infant or embryo) modifications, and China has been aggressively pursuing innovation in CRISPR since the beginning.
One of the arguments that is commonly raised in regards to CRISPR policies and legalities is that “even if we ban it in our jurisdiction, scientists/innovators/investors will simply go elsewhere to do the research, and we don’t want to be left behind.”
In some ways, this is when your mom might ask “if everybody jumped off a bridge, would you do it too?” But in another sense, it enters into this morally gray context, where, because the moral context is global, the action is punished in some places but not others. From another standpoint, because of the uniqueness of CRISPR, it means that jurisdictions who do not open up their policies risk disadvantaging their populous in cases of well-being or war.
What to with morally grey contexts?
The commonality with all of these contexts is that something is wrong. Even if we can’t be sure which category of morally grey context we are in (the law is wrong, or the law isn’t enforcing it’s rules sufficiently), the existence of such a context indicates that there is a problem that needs to be remedied.
It means that the policies need to be reexamined. It means we need to question why people are breaking the law, or why the law isn’t punishing them, and then use the answers to these questions to move forward. The answers may be complex, they may raise even more questions, because, as we know by now, philosophy and morality is messy. It may not even be as simple an answer as enforcing or abolishing an existing policy. It may involve imaginative schemes to change the landscape entirely.
But what we can do is identify and talk about these situations, and recognize that widespread illegal action tells us something- whether or not we act on it is another thing, but we do need to listen.
Until next time, miscreants.