TRAGIC LIVES: ON THE INCOMPATIBILITY OF LAW AND ETHICS

College Literature, Summer 2008 by Hogan, Patrick Colm

In the case where a third party is the evaluator, there may seem to be a conflict in the sorts of bias and empathie cultivation demanded by an ethical stance. To some extent, this is true, for a third party must cultivate empathy for both the agent and the victim (e.g., you and I should respond empathically to both Denise and Oskar). In the case of reversible continuing harm, the most reasonable attitude seems to be one of cultivating empathy for both, but with a bias toward the victim. Metaphysical assumptions about free will and determinism do not really enter here as the first issue is a practical one of the degree to which a particular harm may actually be reversed (e.g., can Oskar return Denise's pension-or has he spent it all on an operation to save his son's life?). In this way, the key evaluations here too are largely pragmatic. The only ethical issue involved for a third party is that of whether or not to enter into the process of ending the continuing harm (e.g., helping the victim), something we would generally consider to be an act of benevolence. Once a continuing harm has been reversed or determined to be irreversible, then there is no real ethical issue remaining for a third party. For example, neither you nor I has any business forgiving Denise for killing Oskar, or forgiving Oskar for stealing Denise's pension.

Finally, in the case where the agent is also the evaluator (e.g., when Denise is retrospectively evaluating her act of flipping the switch), he or she should cultivate empathy with the victim and bias his or her self-evaluation toward an assumption of freedom. In other words, he or she should eschew the self-justifying appeal to determinism ("How could I resist, after he took my pension?"). The practical result of this should be an acceptance of guilt along with an active commitment to reversing the harm or, when such reversal is not possible, an active commitment to ameliorating the condition of the victim. Note that the acceptance of guilt has a practical limit in one's engagement with reparation. The agent's sense of shame should not be so great as to make him or her feel incapable or unworthy of reparation. Thus one must at some point recognize constraining circumstances even when one accepts one's own guilt. One's self-evaluation, then, should not be a matter of Sartrean consciousness, but the more qualified self-consciousness of freedom in the face of limitations.

The situation with law is entirely different. First, the agent is never in the position of the legal evaluator (e.g., Denise won't be the judge or a member of the jury at her own trial). In this way, the agent engages in relevant sorts of legal evaluation of his or her acts only prior to those acts, not in retrospect. Depending on the legal system, either the victim/victim's group or a neutral third party may be the evaluator in retrospective evaluation. In systems of the former sort, it is up to the victim and/or the victim's in-group (e.g., clan) to determine and exact punishments and reparations from the agent. Despite the formal apparatus of international law, this is largely the way international relations operate, at least with stronger states. Al-Qaeda leaders are in Afghanistan. Al-Qaeda harms citizens of the U.S. The U.S. invades Afghanistan. The other legal system, in which the evaluators are uninvolved observers (i.e., third parties), relies on the state to determine and exact reparations and punishments. It is the standard system within nations today. Both sorts of system are biased toward assumptions of free will on the part of the agent. Moreover, neither is oriented toward empathy, and both are connected with calculation of future acts, particularly the deterrence of relevant sorts of harm. 10Thus when evaluating Denise's act legally, we bias our decision toward an assumption of free will (not toward an exculpatory, deterministic explanation) and we are concerned to act in such a way that similar harms are not committed (by Denise or anyone else) in the future. In a victim-as-evaluator system, Oskar's family might be charged with punishing Denise; in a third-party-evaluator system, it would be up to the state and its neutral representatives.