I’m not sure about any of you, but for all of the topics that seem to steal headlines and talking points lately these days, nearly all of them demonstrate that we have a woefully under-studied populace in the topics of moral and ethical philosophy.
Now, this is a point which I have previously hit upon, but I believe it deserves a broader, subject-neutral treatment. I am currently enrolled in an ethics class for my final quarter of undergraduate work, and although I find that thinking about and debating these topics to be stimulating and enjoyable, I also find it frustrating, confusing, and down-right maddening at times. I'm particularly amazed by the number of my fellow classmates who think moral and ethical philosophy is irrelevant or unimportant, who most often take a "who cares?" approach.
Here’s why you should care: The law and the legal reasoning behind it are not static things. I am nauseated at the number of conversations that I have with people, both on Left and Right, who idolize the law as if it were the end-all-be-all of reasoning.
The law is a mechanism of moral and ethical philosophy, not its origin.
The next big mistake is thinking that we just need a reason to have a law. Having a “reason” for doing something means you have reasoned the issue–you have a rationale. The problem is that we have prostituted what we accept as reason. I'm a recovering alcoholic, and believe me, I have plenty of experience with misguided and misused rationalization and reason. My point is that having a “reason” is not the same thing as having reasoned a position on an issue.
When I referred to Oliver Brown in my last article, I wanted to illustrate what I stated above: that legal reasoning is not a static thing. It is a still popular notion that Plessy v. Ferguson got it all “wrong” and Brown finally got it right.” Now, I agree morally with that conclusion; but can I articulate why that moral conviction is or should be upheld under the law? Can you?
So this is my challenge to you: Look at your position for a given issue and ask yourself, “Is my reason on this issue equally applicable yesterday, today, and tomorrow?” If your answer is anything but “yes,” then you need to rethink your position. No matter how good-intentioned a law may be, it is still just the mechanism. If the philosophy behind the law is flawed, then the mechanism will run poorly, if at all.