Kappathought: Of Gingrich and Moral Authority

So Gingrich released this last week, just in time for the first round of Republican Primaries. It's a bit of a lengthy read, but what it boils down to is a fairly straightforward shot at engendering himself with the conservative religious vote (the main thrust of it being that "hating the gays" is a Religious Right of the religious right and any businesses or institutions they happen to manage). The obvious irony of positioning conservative Christianity as an oppressed minority in need of protection from a malevolent cadre of post-modern homos and their activist judges notwithstanding (Yes, yes Newt, we caught your subtle comparison of current administrative policies to slavery, Nazism and Communism ... well played sir) what really interests me about the piece is how it parses the declaration of independence and other quotes from the founding fathers as if they were Bible passages with the aim of concluding that Morality is Transcendent:

"... [The American Vision of Morality] requires citizens to regard justice as something that exists above positive law. The Declaration recognizes that standing laws may be flawed, and that it is the duty of American citizens to bring them closer to justice. Our political history represents an attempt to fulfill the promise of the Declaration. In our darkest hours, it has provided the nation with moral guidance." (Page 5 - Emphasis Mine)

And so Newt hits upon a legitimately interesting question: What is Morality? How does one distinguish it from Legality? Or to put it another way, is there a clear point of demarcation between natural and positive law? In either case, have we hit upon the whole of Moral obligation between the two?

Both Morality and Legality govern the way that we interact with one another, but coming from different directions and derived from different sources. Legality is, obviously, an external institutional system. It is objective (after a fashion) and inherently negative in the sense that its primary function is the allowance of certain behaviors towards others and ourselves. Legality is about what you can and cannot do. Ideally, it's aim is the protection of the individual or a group from other individuals or groups by externally imposing standards of behavior that are only valid or applicable actions insofar as they are enforced or enforceable.

Morality is something else entirely, though. Morality is the positive affirmation of a value or set of values that comes with self-limiting consequences.

To illustrate: in order to drive a car in the US, you must, legally, have current valid auto insurance. The reasons for the law are obvious, by driving you are automatically placing others at a certain level of risk of financial or personal damage. Auto insurance mitigates that risk. The rationale might make moral sense .... or might not ... but either way you must comply if you want to drive. The law exists to protect the life and finances of the individual whether or not you agree with the rationale. You cannot refuse to comply and participate in the community of drivers ... or if you do, it's at the risk of reasonable level punitive response.

On the other side of the spectrum, some might say that having auto insurance is a moral imperative as well as a legal one if they place a high value on protecting the community. Or they might be on the other side of the fence and say that forcing a consumer to purchase a product (auto insurance) is immoral because it doesn't allow for freedom of personal choice (if they place high value on that). In either case, the law is structured to ignore moral opinion in favor of pragmatic policy.

Newt's prescription goes on to classify natural law (divine law in his terminology) as personal and the other as institutional, but that's less about an attempt to actually say something about morality than to arrive at his conclusion (that church and state are best kept separate so long as the government isn't telling people to treat those they disapprove of with the same level of humanity they reserve for right minded people). The emphasized statement in the quote above, though, suggests a disturbing position on the relationship between morality (or justice in his terms) and law. The idea seems to be that moral action (justice) is self evident and obvious ... and that it should be the end of each individual to try and craft the legal system towards the moral ideal (to bring the personal to the level of institution).

While it is a given that we should all try and make a better world, the assumption that we do this by bringing "standing laws ... closer to justice" bothers me for a few reasons.

1. Morality, being self-limiting, is only valuable insofar as it is not obligatory. Or to put it another way ... forced goodness is not goodness, it's just compliance. No one praises you for having auto insurance. Legality, for all of its complexity tends establish the minimum acceptable behavior in order to participate in society. To expound beyond that is to start a process of pushing towards a level of authoritarianism that literally makes it impossible to be "good."

2. Morality is not self-evident. As a positive system (one that is self-limiting based on valued ideas) you will encounter a variety of moral ideals. Some people will value the individual self above all, others family, some more abstract ideas like "life" or "humanity", some personal freedom, others equity. Placing primacy on any of the former will yield different set of imperatives ... or similar sets that are applied differently. There are general agreement among most systems ... like not harming your neighbor, but there is also a wide divergence on how those ideals should be implemented on a day to day level.

3. Every legal system should undergo scrutiny in an attempt to make it "more just," but that scrutiny shouldn't be an attempt to draw a more perfect triangle, per se, but to create a system with more utility. There will always be axioms at the base of every legal system; ours being "life, liberty, and the pursuit of happiness" and "majority rule, minority right" among others. It is not the goal of the legal system and those scrutinizing it to try and change those axioms, but to operate as best as it can within them.

Which gets to corporate, objective morality ... but we'll save that for another day.

Suffice it to say, that while Newt isn't trying to write an ethical treatise here, his political pandering does betray a certain disturbing idea at the base of his thinking: namely, by extrapolation he seems to be saying to his base; the law should be what you want it to be, or ... by extension ... the law should be what I want it to be.

Which is frightening indeed.