Splitting Selves: Morality and the Law

-- By CarolineFerrisWhite - 17 Feb 2010

The Law Binds Us Together; the Law Splits Us in Two

Justice Douglas writes that "the rule of law..., evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together." Oliver Wendell Holmes, even in denying the mapping of law onto morality, comforts us with the thought that "the law is the witness and external deposit of our moral life." Douglas speaks of binding together of disparate selves through the law. Holmes, in pointing to the externalization of our collective moral conscience, suggests a separation of the self through the law. Each vision is lovely. Each speaks to one man’s dream of the law. And each statement is a clean and hopeful gloss on a system that is anything but. The law does not reliably mete out punishments to the bad and absolve the good of blame; the justice we arrive at is, at best, rough and approximate. What costs have we incurred in locating morality outside of ourselves, rather than within, and placing it in an unreliable and often unpredictable system that nonetheless binds us all?

Criminal Calculus

Doing something “wrong,” whether it’s stealing a cookie from the cookie jar or millions of dollars from corporate shareholders, involves a cost-benefit analysis. How likely am I to get caught? How bad is the punishment if I am found out? What do I stand to gain? In the cookie jar scenario, the calculation is nearly instantaneous: Mom is outside + those cookies are delicious > probable scolding, possible timeout. If I steal the cookie successfully, it’s likely I won’t feel bad about it. Why would I? The world doesn’t know about it; it’s between me and the cookie jar.

Getting Caught Makes a Wrong Real

But what if Mom walks in and catches me? I’ll feel lousy. I hate getting yelled at. My remorse comes not from within, but from an externally located rule of law (Mom’s law) and the consequences of its application. The goal in raising a self-regulating child with a reasonable moral compass is to get that child to internalize the moral code of the parent, so good behavior doesn’t result from fear of getting caught but from within.

A Case Study?

In the early morning hours of October 26, 2009, Gil Cornblum jumped off a bridge. This was not his first attempt at suicide, but it was his last. Suicide is an unknowable tragedy, the world’s brief and brutal glimpse at private, unplumbable depths, deepest darkness. We can grasp (and often cling) to the how; what can we know of the why? We know, according to his wife, that Gil had struggled with depression for his whole life. We also know that Gil was under investigation for a 14-year stint of insider trading, allegedly conducted while an attorney at big name law firms in the US and Canada. His first two suicide attempts were made after the investigation began; his last was reportedly on the eve of a settlement in the criminal investigation.

Gil killed himself after he got caught. It would be facile and tidy to conclude that he killed himself because he got caught. Were his suicide and his alleged crime linked, however, they would point to Holmes’ gaps between our selves and the “external deposit of our moral life.”

Justice Black writes that "[b]ad men, like good men, are entitled to be tried and sentenced in accordance with the law."

Section II

Subsection A

Subsection B

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