The Limits of the Law
“It’s values, stupid” seems to be the mantra that the Republicans ran on and the Democrats couldn’t figure out in the last presidential election. If moral values are so important in the minds of voters, however, it seems curious that our national dialogue about torture as a tool for responding to terrorism is mostly silent on this very subject.
One the one hand, the Administration insists it does not condone torture and points to a series of its own memos to illustrate the painstaking analysis it undertook to ensure it broke no law. On the other hand, Congress presses the Administration on how it defines torture so that a judgment can be made about whether the abuses actually did violate the law. It’s a Clintonesque dance in a Bush Administration. We have gone from arguing about what the definition of “is” is to the definition of what “torture” is. The question about whether we as a nation condoned torture recedes to the background amidst a definitional debate. A people that prides itself on adherence to laws not men seems content to have a legal rather than a moral conversation.
The undercurrent of the debate is equally troubling: if a practice is legal it is assumed to be permissible. In essence, the debate accepts the principle, in terms crafted by political scientist Louis Gawthrop, that if we figure out what we can do we will know what we should do. As Gawthrop reminds us, however, in Public Service and Democracy, this leads to a society “in which only that which is categorically illegal is unethical.” Legal distinctions are substituted for moral thought, an ironic result for a nation that has so frequently gone to war against men who cloak torture in legalisms.
A secondary effect of such thinking is that one is only responsible when one has broken the law. This leads to the curious result that responsibility, one of the moral virtues politicians on both sides of the aisle so rightly extol, becomes not a matter for serious national debate but a simple question of determining if a legal barrier has been breached. It’s unlikely we would use this definition of responsibility in any other aspect of our communal life. A society that relies on lawyers to tell it how to be responsible is a society that has lost its moral compass.
Recent scandals in the corporate world have taken on a similar aspect, with prosecutorial care to identify laws that were broken, with executive denials that they have been responsible, and with legislation to define more behavior more finitely that is now illegal.
It’s helpful that at least some Americans are outraged at what took place in Iraq’s Abu Ghraib prison and at Guantanamo Bay. Perhaps outrage should take a more forceful place in regulating our conduct. It used to do so. A democratic nation of laws is ultimately founded on sound moral values and can survive only when collective outrage greets those who violate them or seek to hide from responsibility for making violation possible. It’s time we used our values, not just our laws, as a guide to our behavior. If we do so, it is more likely that our nation – and the world – will be the safer place we seek.
One the one hand, the Administration insists it does not condone torture and points to a series of its own memos to illustrate the painstaking analysis it undertook to ensure it broke no law. On the other hand, Congress presses the Administration on how it defines torture so that a judgment can be made about whether the abuses actually did violate the law. It’s a Clintonesque dance in a Bush Administration. We have gone from arguing about what the definition of “is” is to the definition of what “torture” is. The question about whether we as a nation condoned torture recedes to the background amidst a definitional debate. A people that prides itself on adherence to laws not men seems content to have a legal rather than a moral conversation.
The undercurrent of the debate is equally troubling: if a practice is legal it is assumed to be permissible. In essence, the debate accepts the principle, in terms crafted by political scientist Louis Gawthrop, that if we figure out what we can do we will know what we should do. As Gawthrop reminds us, however, in Public Service and Democracy, this leads to a society “in which only that which is categorically illegal is unethical.” Legal distinctions are substituted for moral thought, an ironic result for a nation that has so frequently gone to war against men who cloak torture in legalisms.
A secondary effect of such thinking is that one is only responsible when one has broken the law. This leads to the curious result that responsibility, one of the moral virtues politicians on both sides of the aisle so rightly extol, becomes not a matter for serious national debate but a simple question of determining if a legal barrier has been breached. It’s unlikely we would use this definition of responsibility in any other aspect of our communal life. A society that relies on lawyers to tell it how to be responsible is a society that has lost its moral compass.
Recent scandals in the corporate world have taken on a similar aspect, with prosecutorial care to identify laws that were broken, with executive denials that they have been responsible, and with legislation to define more behavior more finitely that is now illegal.
It’s helpful that at least some Americans are outraged at what took place in Iraq’s Abu Ghraib prison and at Guantanamo Bay. Perhaps outrage should take a more forceful place in regulating our conduct. It used to do so. A democratic nation of laws is ultimately founded on sound moral values and can survive only when collective outrage greets those who violate them or seek to hide from responsibility for making violation possible. It’s time we used our values, not just our laws, as a guide to our behavior. If we do so, it is more likely that our nation – and the world – will be the safer place we seek.
posted by Responsible Leader @ 6:10 AM
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