Split 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 disparate selves bound together 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 thinker's dream of the law. Each statement is a clean and hopeful gloss on a system that is anything but.

Criminal 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. We can debate the values of the criminal justice system: deterrence, retribution, order. 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

Crimes of passion aside, doing something "wrong," whether 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? What do I stand to gain? Does the combined pull of these two forces outweigh the punishment if I am found out? 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, I will likely not feel remorse. Why would I? I have not engaged in an internal debate about right and wrong; I have not pummeled my conscience into submission. Rather, I have chosen to go for the cookie jar, and unless I am caught, I win.

Getting Caught Makes a Wrong Real

But what if Mom walks in the kitchen and catches me? I'll feel terrible: 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-correcting child is to get that child to internalize the moral code of the parent, so good behavior comes from within rather than from a fear of getting caught.

The Costs of Externalizing Our Conscience

Many things can go wrong in this process, and often do. We do not all emerge with a clarion conscience and a moral compass that point due north. Additionally, the thought process (assuming there is a conscious one) that transpires before committing a crime is far more complicated than the one I've outlined. But the law, in binding us all, takes on the role of the punitive parent, and creates a lapse in time between act and remorse. This remorse is something other than regret for the crime committed; it's also dismay at being caught. Getting caught completes the crime. Once the world knows and punishment looms, the actor is forced to recognize his actions and bear the consequences. The costs of this can be devastating.

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. 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 streak 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 we to assume a link between his alleged crime and his death, however, we would see an extreme result of the gap created by the distancing of personal morality from that contained by the law. Gil may have misunderstood himself. In evaluating the costs and benefits of his crime, he may have thought he was smart enough to avoid getting caught. He may also have miscalculated as to his own capacity for withstanding the opprobrium of detection: it's hard to imagine anyone incorporating suicide into a decision-making process and deciding to go forward with the act. My hypothesis is that Gil didn't do much thinking at all, or didn't know himself well enough to understand that he couldn't cope with his wrong made real, and therefore no benefit could possibly outweigh the cost.

Had Gil's concept of wrong aligned with the legal one, however, he may have stayed his hand. An internal sense of wrong creates immediate consequences. When the punitive force is an external one, its actions can be long delayed. Future risk outweighed present desire, and so Gil spent his early mornings at Sullivan and Cromwell, "spleunking" for information on deals and mergers.

Conclusion

Justice Black writes that "[b]ad men, like good men, are entitled to be tried and sentenced in accordance with the law." But bad men and good men don't relate to the law in the same way. A good man (and a naive one) sees in the law a reflection of what he sees within; a bad man sees a mechanism for enforcement of an arbitrary rule that can potentially be sidestepped. Gil knew what he was doing was "wrong:" hence the secrecy and subterfuge. But he didn't know it was wrong until it was too late.

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