The law is a ginormous metaphorical Trolley Problem

A little while back I read a nice Aeon piece explaining why the Trolley Problem is so annoying : it's because the details of thought experiments change the moral question the philosopher is trying to ask. Context is critical, and you simply can't generalise to say that it's always wrong to save one person or kill five. The details are essential aspects of the morality of the situation.

This essay neatly explains this in the much more important context of the law. I tried to explain why laws can never be absolute myself, but this does a far more eloquent job. Just like with the Trolley Problem, the law simply can't cover every possible situation. So it strives to generalise as much as possible, to try and get at the underlying morality while preserving an indispensable flexibility.

Thinking back, perhaps some of the problems I had in explaining this stemmed from my implicit definition of "absolute". I take it to mean, in this context, something like "applied entirely literally without exception to anyone under any circumstances, giving the same punishment regardless of any and all extenuating circumstances". This is most definitely absolute, but I hope it's abundantly clear to everyone that this is not at all the same as fair. The law should always be fair, of course, and there's a strong overlap with this meaning "applied equally", but the Venn diagram would most certainly not be two perfectly overlapping circles. When the law is consulted, it's not always a simple as following instructions : some discretion, some judgement, must frequently be applied in how to apply it given the specific case in hand. Sometimes we may even need to disregard it completely.

This is especially relevant for laws which are deliberately made difficult to alter, e.g. constitutions. A legal code written five hundred years ago would have no notion of mass data collection, targeted advertising, organ donation or stem cell research. At best we could look to it for broad guidelines, but we couldn't possibly expect it to provide specific instructions. And sometimes we might find no clues at all. If we take any particular text as gospel, assuming it to be written by some omniscient and infallible entity, we're lost. We can't absolve ourselves of the need to think - and yes, this will mean imperfect, subjective decision-making. But that's the point. All text that was ever written, bar none, was written by flawed individuals suffering from varying degrees of madness. There is no reason to suppose that legal codes are any exception to this.

On, then, to the article.

A publicly accessible list of actions that specifies what each particular individual is allowed to do under what circumstances and when would be equally unworkable. Instead of a body of highly specific edicts indexed to individuals and their situations, we rely on laws. Hart calls them ‘general forms of directions which do not name, and are not addressed to, particular individuals, and do not indicate a particular act to be done’

This doesn't mean that the law should be vague, only that there are some things on which it needs to be specific and some on which it needs to be general. It would have been nice if the article could have generalised the criteria for these but it gives a good gist.

Laws, while general, can still be more or less particular. The balk rule of baseball... applies only to people who are actually engaged in playing the game, and only some of them (the pitchers); players who are not pitchers, and people who are not even playing baseball, can do whatever they want on the mound. Still, there must be some degree of generality. It can’t be that only a certain relief pitcher for the New York Yankees is not allowed to fake the throw.

To preserve their generality and practicality, laws must be relatively simple and straightforward. Built-in exceptions would thwart this purpose. The law doesn’t say: ‘Do not drive over the speed limit, unless you are heading to the hospital for an emergency and are a really good driver.’ It says: ‘Do not drive over the speed limit,’ period.

Which is of course not to say that you can't make exceptions, only that such exceptions cannot and should not be defined in law (unless perhaps when such exceptions are common and clearly morally different, e.g. in some countries you're explicitly allowed to ignore traffic lights after a certain time as highway robberies are so common).

The particularities and peculiarities, major or minor, that make for the variety of human behaviour are typically irrelevant when it is time to decide whether to enforce a law. If you are speeding, your height, weight, income and musical talents don’t matter. If you are underage, then your hipster haircut and the fashionable clothes you’re wearing when you try to buy alcohol will be of no exculpatory help.

Still, differences do sometimes make a difference. There will be occasions when taking account of the particularities of an individual and her situation is appropriate, even obligatory for those charged with implementing the law – if not from a legal perspective then from a moral or practical one. This is where judgment comes in.

In the moral sphere, judgment is a matter of reasonable discrimination. A person with good judgment recognises what is both typical and distinctive about the particular case at hand, and notes whether what is distinctive is relevant. The fact that the man in the grocery store [when buying alcohol and being asked for ID] was obviously decades above the legal drinking age is relevant; the fact that the wine he wanted to buy was a Merlot is not. Circumstances are everything. The police officer who declines to give a speeding ticket to a driver on his way to the hospital because the driver’s wife is in labour in the back seat is making a judgment call.

Which is, of course, where it gets messy and controversial. There simply does not exist some overarching moral principle we can exercise to make judgements, still less some foolproof way to extract the specific from the general. But this doesn't mean we can make any subjective judgement we like. We can't say, "yeah, he was speeding, but he had a really cool pair of sunglasses so that's okay." What stops us from doing this is the need to justify our actions to other people.

No single rule can accommodate the variety and complexity of situations in which humans are required to act and the expectations they are called upon to meet.  A lie that saves a life or even simply eases a friend’s suffering might be permissible. Sometimes, there is no available rule, and we have to rely on deep-seated moral intuitions, or even just feelings of love or kindness, for guidance. Moral agency cannot consist simply in the mechanical application of a universal principle.

Judgment involves acknowledging that the rule has been broken, that the perpetrating party is technically guilty, but also making a conscious choice not to enforce the rule. When using your judgment, you must be prepared, if challenged, to defend that choice with reasons. It is to recognise that the full application of the rule would result in an unjust, or at least undesirable, state of affairs.

This is where the need for checks and balances, often in a triumvirate structure, comes in. You have competing parties presenting arguments and a referee ensuring that they're following the rules of persuasion. The problem of needing an infinite chain of watchers is avoided through separation of powers : some people get to make arguments, others to decide if those arguments are correct, and still others if those arguments follow the agreed-upon rules. Of course this isn't foolproof : if the entire institution is corrupt, or mad, or made of cheese, then it won't work. You have to have some baseline level of competence and morality for it to function correctly. The point is that while you can't eliminate the subjective, capricious element entirely, you can indeed reduce it to acceptable levels. Out of the vague and whimsical ideas churned out by the weird blob of goo that is the human brain, you can sometimes extract something halfway decent. The miracle isn't that we're very good at this, but that it's possible to do it at all.

Judgment is an exercise in discretion: circumstances are everything - Steven Nadler | Aeon Essays

In a high school in Wisconsin, an African American security guard is dealing with a disruptive student, also African American. While being led away by the guard, the student repeatedly calls him a notorious racial slur. The guard tells the student several times: 'Do not call me a [n-word],' using the actual word.