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The legality of the Weiner vs. the morality of the Weiner

June 23, 2011

Societies think they operate by something called morality, but they don’t. They operate by something called law.~ Professor Rohl from the movie The Reader

The main problem with the moral morass that Anthony Weiner got himself into was not so much his response to the matter – the lies, equivocating and indignation – but more from the experts in the media who repeatedly chimed that he “broke no laws”, as if that simple fact excuses all behavior in society.  It is similar to the mantra often chanted when anyone mentions Clinton’s impeachment, “what a man does in his personal life is his own business” or “they tried to impeach him for having sex!”, of course that was never the issue with Clinton, as it still was not the issue with Weiner.  The issue was a lack of morality.  Now, I am not going to presume that all the people’s in the United States should share my views on morals, but we can generally agree on what is moral and immoral in today’s society even with regards to hot button issues like homosexuality and abortion, as polls universally show.

But the real issue is not so much the lack of morality, but in the supplanting of morality with that of legality.  As if one can not, nor should, hold hands with the other.  The apologists for Clinton and Weiner would have us believe the morality/legality concept is some finely tuned equation wherein if you take from one side, you must add more to the other – that there is no overlap between the two.  Nothing could be further from the truth.  The truth is, the “experts” are missing the boat, either on purpose or through ignorance, on exactly what the fictional Professor Rohl was getting at.

“Societies think they operate by something called morality”

This is an interesting quote considering who delivered it, a German Law professor.  What he is generally referring to is the failure of the Rule of Law, or at least the general populace’s abandonment of the concepts associated with said Rule.  An adequate definition for the Rule of Law is here: (from West’s Encyclopedia of American Law)

The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles.

In short, the Rule of Law allows society to operate in a well-defined manner.  The rule of law does not allow the government or a government official to rule through arbitrariness (well, sort of).  What the professor meant by suggesting “society thinks they operate by something called morality” is that, although laws might have been created out of morals, they no longer are predicated on a moral baseline.  The laws, in and of themselves, stand on their own, and more importantly especially with regard to morality, they are blind.  Laws, under the Rule of Law, serve all people equally.

If we bring morality into the issue of legal rule, then we get something quite different.  As opposed to a blind, equally just legal system, we are awarded an arbitrary, socially just legal system.  If that weren’t nefarious enough, you have to ask yourself, “Whose morals will we be following?”

Given recent lack of prosecutions for voter intimidation by the New Black Panther party, one can see whose morals we are following.  And that is the real rub, when we abandon the Rule of Law, we are forced to confide power in a small group (or even worse, one man) to decide the moral focus of our country, in some regards, a morality embraced by only a small minority.

But what can’t be confused is the concept that following the Rule of Law makes everything done under said rule “legal”.  Theoretically, Hitler was legally in his right to do all his abominable acts because he was legally put in place by Germany’s government, and given the power to do so.  Same with Mussolini.  As well as the progressives and their eugenic-focused sterilization programs in the United States, these were all technically “legal”, but they were not under the Rule of Law.

As central planning increases, the Rule of Law decreases

This is completely understandable, but many people fail to see it.  As government’s try more and more to plan all activities in an economy or a society in general, the Rule of Law necessarily has to diminish since the juggling of the activities of 300 million people can not be accomplished without the ability to quickly react to problems as they rear their heads.  In fact, central planning is impossible under the restrictions of pre-written laws that restrict the government’s reach.  Even more to the point, there is no legal savant borne that can properly predict the laws necessary to properly manage a centrally planned society, ergo, the government needs to make arbitrary laws as the need arises for such laws to be made.  This again, is the rule of morality, but, again, not the morality of the majority (not usually), but the morality of an elite few “experts”.

A quick and simple example would be the 1400 waivers absolving companies and localities with conformance to Obamacare.  The Rule of Law would dictate all peoples, regardless of personal situation, would have to follow the numerous strictures of Obamacare, the rule of morality says, some of you don’t have to.  Uncountable other examples abound, but others would be Affirmative Action, Progressive Taxation, Protective Tariffs and all other Protectionist measures, Hate Crime Legislation, etc.

We have gone so far down the rule of morality slide that our government has resorted to ignoring a historical and Constitutional restriction on bills of attainder.  A bill of attainder is historically the act of a legislature accusing an individual of treason, then without trial or defense, sentencing that person to death – something that happened quite often during the 16th and 17th centuries in England.  Over time, the definition of a bill of attainder has changed a bit, but only on the restrictions of the legislature, to include not only treasonous acts, but to “include deprivations of rights, civil or political, disqualification from office, and legislative bars to participation in specific employments or professions”. (again, from West’s Encyclopedia of American Law)

If one recalls, during the universal hand-wringing drummed up by class-warfare enthusiasts in government, our congress decided to steal the bonuses awarded to certain investment banker’s employees by passing a bill that taxed those specific individuals and their specific bonuses at 90%.  Whether or not you agree with that legislation, this is clearly a writ of attainder and an egregious violation of the Rule of Law.  There is no better example of the rule of morality then what transpired in the early months of 2010.  The vitriol and hate against the bankers “that caused this mess” from almost every segment of our population made the government’s moral choice rather simple.  And therein lies the true rub of the rule of morality, how quickly people’s morals can change.

During nicer times, most American’s are surely envious but no less respectable of the concept of a man earning his worth in the marketplace, even if that worth is measured in millions.  But in times of distress, drummed up by politicians seeking to deflect blame in any direction possible, the morals of a people can and often do go rather haywire.  It is in these times when the Rule of Law is most important, and also the most threatened.

…but they don’t. They operate by something called law.

Again, what Professor Rohl was referring to was the specific concept of the Rule of Law.  To give some context to this quote, the professor was speaking to his law student’s, trying to dispel the myth (in their minds) that law is about right and wrong.  His correct assertion is that law is only about right and wrong once, when it is written, after that, it is an uncaring mother who punishes her children with not thought of the reasons behind their crimes.

But in a grander sense, he was also speaking to the concepts of legality and morality.  He wasn’t suggesting that as long as a law is legally enacted, that it is instantly just legislation.  The setting of his discussion with the student’s was post WWII 1960’s Germany.  The newest generation of students grew up with an understandable disdain for their parents and other adults who allowed such horrors to happen in their country.  They were full of righteous indignation.  They were freaking pissed.  The professor did not want that emotion to cloud the unemotional realm of jurisprudence in which these young adults were seeking a profession.

Professor Rohl was also warning of an even worse danger for a legal professional, putting one’s current view of morality on laws that were in place at an earlier time.  He was suggesting to the students that it is acceptable to be angered over what the Nazis did (specifically the rank-n-file), but they need to embrace and understand the thinking that was prevalent during the enacting of those laws, because that is the only time morality should come into the equation.  The failure to do so opens the door for the Rule of Morality over the Rule of Law, for if one can not empathize with the morality behind a law’s enactment (even if you disagree), then they will never be able to see their own bias where it exists in future legislation.

Back to the Weiner

In a round about way I am actually gonna tie this back to my lede.  One could wrongly conclude that given my previous paragraphs on the Rule of Law, I am in some way defending the behavior of Anthony Weiner, nothing could be further from the truth.  What Weiner did was legal (the actual act of sexting, not the stuff peripheral to that act), but it was wholly immoral, and most of us would agree.

The reason I went through the little history lesson is to show how lawyers are taught to think about the law and morality.  Unfortunately, most don’t get past the “society is based off laws” part of the discussion.  They never delve deeper into the greater concepts of morality and legality that are waiting to be uncovered.  So the lawyer comes out of school looking at life in a much different perspective than the average American which they will represent, in the court or in the government (most politicians are lawyers).  That perspective is not based in plebeian concepts of “right and wrong”, but on much more patrician ideas of “what I can get away with”.

Anyone watching the interviews with Weiner during the week of his failed cover-up can see this thinking going through his answers – he never said the pictures weren’t his, in fact he danced around that question like only the best politicians can.  Further evidence is Clinton’s famous quote, “It depends on what the meaning of the word ‘is’ is.”

These lawyers have so detached themselves from the concepts of morality that they only see the world through what is legal or illegal.  Right and wrong have no place in their world view.  Considering morality is to be consulted in the creation of law, especially under the auspices of the grander concept of the Rule of Law, is it not a little scary that our lawmakers possess no such concept of morals?  For sure, personally they have their own internal moral compass, but in the grand scheme of things, their primary compass is “what they can get away with.”

This trend towards unethical behavior will only increase as we turn ever more towards the legal profession to lead us.  Their detachment from morality has a place, unfortunately it is not in the hallowed halls of the capital.

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6 Comments leave one →
  1. June 23, 2011 2:27 pm

    Most politicians are lawyers. Politicians make the law. Therefore, lawyers make laws to the benefit of lawyers. It’s insidious.

    • June 23, 2011 6:59 pm

      it is at that.

  2. KingShamus permalink
    June 23, 2011 6:52 pm

    The non-lawyer average citizen needs to become a greater part of our legislative and executive branches. We could proably use a few Joe Schmos in the judicial branch too.

    • June 23, 2011 7:01 pm

      Might disagree a bit on the judicial side, but couldn’t agree more on the legislative/executive side of things.

  3. June 23, 2011 8:18 pm

    Excellent post! Since the onus is on the prosecutor to prove that the defendant is guilty beyond a reasonable doubt doesn’t this kind of promote the “what they can get away with” mentality on the part of the defense?

    Many of our courts have become bedrocks of immorality and only see the law as “the law” instead of embracing The Rule of Law along with morality. I think the courts or Judges have a great affect on how lawyers view our laws, and in a very bad way.

    • June 23, 2011 9:31 pm

      In the regard of the prosecution having to prove a defendants guilt, I firmly believe that is the only suitable, nay feasible, solution to ensuring a just legal system. If the opposite was the case, the defendant having to prove his innocence, it would put the accused in the unenviable position of having to “prove a negative”. Proving you didn’t do something is practically impossible in the realms of reasonable doubt. Not to mention, since it is the state accusing someone of a crime, the onus rightly should be on the state to prove its case, not the other way around. This works as well on the civil side of things, though the burden of proof is less so for tort law. But , you may be right in that the system (even though it is the best choice possible) might promote the mentality you suggest.

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