Law and Morality (Columbia MD, gun rights, consequentialism, Kantianism, and client counseling)

I was responding to a very interesting comment on another blog when some new thoughts on an issue that I find myself thinking about frequently quickly materialized: the intersection and overlap of law and morality. It’s a thorny issue for me, because as a moral realist I think that there are objective moral truths and that it shouldn’t be objectionable to legislate on such moral facts. Of course, the history of moral legislating should give us pause, as some of the most troubling human rights abuses were caused by laws meant to enforce shared and widespread moral sentiments of the time. As such, even if moral realism is true, it still might be in the best interests of the just state to practice something like philosophical liberalism, by legislating against morally wrong acts (as opposed to morally right), but not legislating against morally bad acts (as opposed to morally good). Here is a tentative theory to make this distinction, though let me admit that it is very tentative, as I am not convinced by the truth of consequentialism/utilitarianism in any fashion. Rather, I have attempted to posit a theory that takes into account the commonly held view of morality, that being consequentialism of some variety, even though I think it is not correct, and in fact I subscribe to a deontological pluralism. Regardless, the question I was responding to is this: even if it is morally bad for a counselor to sleep with a client, it doesn’t seem like it should be criminally punishable, as it now is. What theory would explain why it is right to punish a counselor for sleeping with their client?

On many mundane social interactions there is not an overlap of law and morality — it might be immoral to pull a prank on someone (perhaps due to treating them as a mere means and not an end worthy of respect) but it is not a federal offense, and likewise, it is against the law to drive at a speed faster than the posted limit, but (I think) it is not immoral to do so.

Consequentialism and Kantian Deontology
One way to make this distinction is to separate consequentialist and deontological morality and hold that consequentialism, in so far as it considers what is good, is concerned with interpersonal morality, whereas deontology, insofar as it considers what is right, is concerned with how your actions impact the overall justness of the state. It’s possible for an action to be morally bad (as opposed to morally good) according to consequentialism but morally right (as opposed to morally wrong) according to deontology. In such a situation, you would have committed a moral wrong, but would not necessarily be deserving of retributive punishment by the state. But there are situations where an action can be both morally bad and morally wrong, and when an act is morally wrong it is fair to punish that person for an action. So the question becomes: is sleeping with your client morally wrong according to deontology? If it is then we can understand that it is punishable because it is a wrong action, if it not morally wrong then perhaps it is unjust for the state to punish a person for such an action (or, more plausibly, creating a bifurcation of realms of discourse for consequentialism and deontology is foolish).

Client-Counselor Ethics
So is sleeping with your client morally wrong? Deontology is concerned with the maxims or the reasons for why we perform actions, not the consequences of our actions (the latter is the view put forward by consequentialism), due to the insight that an action that has good consequences is still morally wrong if the actor did not want to perform the act for those consequences, but for evil intentions. So what is the maxim of the action in sleeping with a client? It might be stated: out of love or lust for my client, I will sleep with them. The main version of deontology is Kantianism which holds that if that maxim can be consistently willed in such a way that all persons that where in those circumstances acted in that way without making it impossible for them to act that way in the future, then that act is not wrong. In other words, if everyone acted for that reason would it still be possible to take that action, or would the institution that made that action possible break down?

If every counselor, who out of love or lust wanted to sleep with a client, did so, would the profession of counseling work, or would it fall into disarray due to persons with relational issues being afraid to see a counselor out of fear that they would sleep with them, perhaps further jeopardizing their marriage or relationship? I think that it would. So Kantian deontology suggests that it would be morally wrong, (and not just morally bad according to consequentialism) to sleep with a client because the maxim would be contradictory: If I wanted to sleep with a client out of lust then I wouldn’t be able to sleep with a client out of lust, because if I did then the institution of counseling would break down and I wouldn’t have any clients to sleep with. So perhaps this bifurcation of consequentialism and deontology does explain why morality and the law overlap in this scenario.

Gun Rights and Gun Control
Now, issues in medical and public health ethics are certainly fascinating, but I want to turn our attention to an issue I have only broached recently on this blog — gun rights — due to yesterday’s tragic events that occurred in Columbia mall, a mall my girlfriend recently shopped out, and an area where my father goes to church. Using the tiers of normative ethics I have proposed, perhaps it is morally permissible to own a gun, in the consequentialist sense of it not being morally bad, while it is morally wrong, in the deontological sense of justice. To uncover whether this is so, we must look at the maxim for action that would best justify the possession of firearms. We do not want to attack a straw-man, that would not carry it’s force to stronger ways of phrasing the maxim, so we must look for the most plausible way of stating the maxim of gun ownership, so that if it is unjust on this account all weaker reasons for gun ownership are nullified.

As highlighted in yesterday’s entry, the strongest reason for firearm possession is a right to self-defense, so the most plausible way of stating a maxim for gun ownership will be based in a right to self-defense. So we might state the maxim accordingly:

  • Out of a right to self defense, I will kill people in order to not be killed.

I argued yesterday that a right to gun ownership could only be a derivative right from the fundamental right of a right to life. While I do think it is possible to derive a right to self-defense from the fundamental right to life, it seems patently false that a right to self defense, an abstract concept, entails a right to a man-made artifice — a gun. There are many ways to honor a right to self-defense, so it doesn’t follow that there is a derivative right to own a firearm. If the only way to defend oneself was categorically to use a firearm then yes, there would be a derivative right to a firearm from the derivative right of a right to self-defense. Since a firearm is not the only way to perform self-defense there is not a natural right to own a firearm. But if the right to self defense does not entail a right to own a firearm then we must remove “out of a right to self defense” from the stated maxim above because a right to self-defense, I have argued, is not relevant to gun ownership. What this leaves us with is this maxim:

  • I will kill people in order to not be killed.

This maxim is not universaliziable because if all persons in society killed people in order to not be killed then people who killed people in order to not be killed would be killed, such that they wouldn’t be able to kill people in order to not be killed. As this maxim cannot be universalized without society ceasing to function and entering a state of lawlessness (Kant also argued that laws that lead to lawlessness are not legitimate laws, see here for his argument) it cannot be the case that this maxim for reasons for gun ownership can be universalized. Thus, owning a gun is morally wrong, in the deontological sense of justice, though it might not be morally bad.

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  1. Columbia, Maryland (and rights, gun control, and arguments from analogy) | ausomeawestin

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