Common Law vs. Common People: The Complicated Relationship Between the Law and Morality

During my college days, I was unfortunate enough to take a course called “first contact,” which revolved around evil white settlers and their depredations against noble indigenous folk. The things I did to fulfill GE requirements! The main lecturer was quite the character – he was the same guy who fatuously asserted that sexism was spread by Western colonialism – but he nevertheless dropped a few gems of wisdom here and there (the blind squirrel can find a nut). When discussing America’s myriad unjust laws, the tax code in particular, he once quipped that the “reason why they call it common law is because it only applies to common people.”

I found it amusing at the time, but didn’t really give it much thought. However, following years of further reading and observation, I’ve started pondering the true purpose of the law. One thing I will say is that I have never conflated law with morality, and believe that a society’s culture outweighs any policies. Of course, I’m hardly original in this regard; just check out this passage from Aleksandr Solzhenityn’s edifying 1978 Harvard commencement speech (emphasis mine):

Western society has given itself the organization best suited to its purposes based, I would say, one the letter of the law. The limits of human rights and righteousness are determined by a system of laws; such limits are very broad. People in the West have acquired considerable skill in interpreting and manipulating law. Any conflict is solved according to the letter of the law and this is considered to be the supreme solution. If one is right from a legal point of view, nothing more is required. Nobody will mention that one could still not be entirely right, and urge self-restraint, a willingness to renounce such legal rights, sacrifice and selfless risk. It would sound simply absurd. One almost never sees voluntary self-restraint. Everybody operates at the extreme limit of those legal frames. I have spent all my life under a Communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale than the legal one is not quite worthy of man either. A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man’s noblest impulses.”

There are many ways that the law has a loose relationship with morality, particularly in the realm of economics. Just take the carried-interest tax loophole. Even though it’s perfectly legal, it results in hedge fund and private equity fat cats avoiding billions of dollars in taxes; since life is a zero-sum game, that means regular taxpayers have to bear greater burdens. Ditto for the countless other tax loopholes that the rich use to cheat Uncle Sam of his due. Even though blatant tax dodging is clearly unethical, such behavior isn’t subjected to the kind of vituperation it ought to be, simply because this variety of tax avoidance doesn’t technically break any rules.

Other examples of lawful lunacy include California’s surreal “yes means yesconsent bill, state-sanctioned theft known as “civil-asset forfeiture,” granting corporations the same rights as people, and legalized bribery – otherwise known as “lobbying.” Obviously, the law is far from perfect if it yields outcomes that are in some cases worse than outright criminality.

Aside from at times being an obvious weapon of the rich, the law often reflects a nation’s moral and cultural values. For example, Singapore – a tiny city-state that places a high premium on cleanliness – has laws prohibiting chewing gum. That certainly doesn’t mean that there’s anything inherently immoral or evil about gum; the law in this case just happens to be an assertion of Lee Kuan Yew’s worldview.

Just to be clear, I am not trying to argue that the rule of law is irrelevant; any society needs a measure of order, as well as a means to deter harmful actions. I am also not suggesting that Americans, or for that matter Singaporeans, blindly worship the law. After all, as demonstrated by the articles cited, growing numbers of people are questioning and challenging certain unjust laws.

The general point I’m trying to make is that the law, just like capitalism or any other system, is not sacrosanct and does not exist in a vacuum; like most things, laws are made by men – and not always good men. In fact, countries with numerous laws are often devoid of morality, as evidenced by India. 

Of course, I don’t recommend engaging in criminal behavior. I wouldn’t want one of my readers to end up in one of this great country’s already overcrowded correctional facilities. However, I strongly believe that the time has come for Americans to recognize that a society’s values ultimately determine a nation’s success. At the end of the day, no legislature or judge can forge better citizens.

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