Can ethics be taught?

[Harry Marks]

In the New York Times this week there was an Op-Ed discussing the turmoil in Constitutional Law classes due to recent (from "Heller" and "Citizen's United" on) U.S. Supreme Court behavior demonstrating that the principles of law were no longer guiding decisions, but rather the rationales are being chosen on an ad hoc basis to justify (politically) conservative decisions. https://www.nytimes.com/2024/02/26/opin ... court.html (Sorry about the paywall.)

The charade of arguing the issues in abstract, supposedly neutral terms goes on, but it is no longer possible to believe that the Justices are simply "calling balls and strikes" with some understandable difference in perspectives and priorities. And of course the more they indulge in cynical power plays the easier it gets.

As a result, Constitutional Law professors are no longer able to argue that the issues are to be decided based on principle. One prof reported teaching "It's important to assume that the people you disagree with are speaking in good faith," and a student raised his hand to ask, "Why? Why should we assume that?"

So, if the idealized institution designed to make critical decisions based on abstract principles of law can no longer be expected to do that, does it render the famous Rule of Law moot? If we have the best court money can buy, as a result of decades of diligent campaigning by the billionaires and Leonard Leo, then isn't legal principle just a fig leaf for power?

My larger question is how you teach legal reasoning when "everybody knows" that in practice the principles at play are the principles of money and manipulation? What method of analysis do you train lawyers in? How do you teach the difference between sound reasoning and flawed reasoning when soundness cuts no ice?

Obviously there was a lot of politics involved in the Supreme Court and its decisions for more than 100 years before the New Deal and then the Warren Court, but it was possible to assume that a gradual process of enlightenment had worn down that bastion of privilege and property to lead to the more just decisions of the mid-20th century. Now all that seems to have gone out the window.

And behind that question, there is an even more difficult issue as to whether it is possible to get anyone to distinguish between sound moral reasoning and flawed moral reasoning when all along they know they will make many (if not most) of their decisions based on pragmatic calculation of gain and loss. Plato raised the issue in the context of the Sophists profession of teaching effective rhetoric - it's been with us for some time now - but it has been a while since I felt such a strong sense of backsliding in the way the culture approaches this central ethical (and therefore spiritual) issue.

[LanDroid]

A trial is a crucible in which all else is burned away and only The Truth remains.
- Starfleet Officer Jean Luc Picard

A lot of people believe that, but is it really true? Consider a situation where a defendant performed X felony, which corresponds to a 5 on a 1 - 10 scale of severity. The prosecution will note the number 5 and load him up with tougher charges 6 & 7, either false ones or things they know can't be proved, in an effort to get that defendant to plead guilty to a 4 and avoid a trial. The defendant sees all that, knows he did nothing wrong, but may plead guilty to 4 anyway in order to avoid brutal sentences under 6 or 7 should he lose at trial. If the defendant does not plead, but knows he is guilty, his lawyer may float any number of outrageous explanations to create a reasonable doubt in one juror. So even at the lowest level of the system we see neither side is advocating for "The Truth" in court.

Turning to Scotus, the highest level of the court system, we see absolutely horrific previous decisions such as Plessy V, Ferguson. Yes, they may be overturned, but that can take 100 years. Nothing new - we know the court system, from top to bottom, does not adhere to the highest principles.

What may be new in that article is a knowledge of active corruption where not even lip service is paid to traditional standards. We could be sliding into a banana republic systemic breakdown.

[Robert Tulip]

Hi Harry, thanks for these interesting questions. I think of US politics as resembling the slide in Ancient Rome from Republic to Empire. If the US situation at the time of the Second World War equates to the high point of Roman republican ethics around the Punic Wars in 200BC, and the time scale and trajectory are much the same, the US is still three decades away from civil war, and a fully fledged empire would not start for another century.

Of course that is just a thought experiment. What it illustrates is the clash between public ethics and the power of unprincipled money and force as similarities across this vast historical gulf. The slow shift in the balance of forces in Rome involves a gradual collapse in republican ethical principles like virtue, dignity and gravitas, with a similar process underway today.

Empires operate on the basis of interests rather than principles. As people come to see their tribal identity in imperial terms, moral principles such as equality, truth and justice become means rather than ends. They can be disposed of and ignored when they do not suit imperial purposes.

The theme you raise of the assumption of bipartisan good faith is fundamental to civil legitimacy. Without good faith, and elemental trust in common decency, the partisan conclusion is that opposing positions are just based on deception and delusion, and on an unwillingness to find out facts or engage on moral values. That belief is an essential step in the polarisation leading to civil war. At the moment, both right and left in US politics appear to view their opponents as so fundamentally deluded as to be incapable of good faith argument.

Thanks for mentioning Plato. His Republic opened a debate about justice, whether justice is the ruthless imperial idea that the strong do what they can, or the spiritual idea that justice is about enduring moral principles. His dialogue Protagoras asked how we can find a shared understanding of truth when so many people believe there is no ultimate reality but only subjective opinions. Plato did not believe that virtue could be taught through conventional instruction, but he did believe we can all attain virtue through philosophical inquiry and the cultivation of wisdom and understanding.

The contemporary drift into moral and epistemological relativism indicates a collapse in the former belief in shared philosophical values. Part of the problem is that the alliance between science and various political movements such as progressivism and technological domination has caused a large part of the community, who believe they hold to ethical principles, to see science as tainted by politics and therefore fallen from its previously trusted status.

[Harry Marks]

I regard today's decision on Trump's violation of the 14th Amendment as just such a case of SCOTUS deciding based on expediency rather than the actual law. The three liberal justices, and Amy Coney Barrett, concurred even thought they disagree with the majority finding that only Congress can decide if an insurrection has occurred.

Apparently the other 5 did not want the Supreme Court to be in the position of determining if he had led an insurrection, refusing to rule on the factual finding of the Colorado Supreme Court. But would they bypass the facts if the question before them was whether the President had served two terms already, or was below the age requirement, or was born outside the U.S. (a question of fact that has actually been raised.)

Is their position that Arnold Schwarzenegger could run for President unless the Congress rules otherwise? It makes as much sense. There is a precedent for holding that ruling on the 14th Amendment restriction requires Congressional action, but it was a lower court ruling, and certainly does not give a reason for the Court to be bound by it. It is definitely not found in the wording of the amendment.

I haven't read the opinion nor any extensive analysis of the decision. But it smells strongly of Roberts' preference for keeping the Court's head down (and probably Kagan and Coney Barrett with him), avoiding taking any stand that looks political to any sizeable constituency unless he has at least 6 justices to agree on it. The liberal justices bought into that, probably to avoid a situation in which a state shows up in bad faith ruling that, say, Biden had "led an insurrection" based on twisted logic or invented facts. Since they can't trust their colleagues to rule in good faith, they prefer to head off the worst case scenario.

And that's where we are, really. Neither side willing to trust the other to rule on the merits rather than on political tribalism.

[Harry Marks]

A trial is a crucible - only The Truth remains.

A lot of people believe that, but is it really true? Consider a situation where a defendant performed X felony, which corresponds to a 5 on a 1 - 10 scale of severity. The prosecution will note the number 5 and load him up with tougher charges 6 & 7, either false ones or things they know can't be proved, in an effort to get that defendant to plead guilty to a 4 and avoid a trial. The defendant sees all that, knows he did nothing wrong, but may plead guilty to 4 anyway in order to avoid brutal sentences under 6 or 7 should he lose at trial. If the defendant does not plead, but knows he is guilty, his lawyer may float any number of outrageous explanations to create a reasonable doubt in one juror. So even at the lowest level of the system we see neither side is advocating for "The Truth" in court.

True enough. (I think you changed the story, saying at first the defendant did the felony, then he knows he did nothing wrong, and then "if" he knows he is guilty. Oh well, I followed the argument.) And this system, which relies on 12 peers to look him in the eye and decide who to believe, is subject to all kinds of abuse, as we know. In Britain, I learned a couple of decades ago, plea bargaining is considered corrupt and is not allowed.

Still in the appeals courts and SCOTUS, the decisions are meant to be interpretations of the law, and those courts will not, except in the most egregious of circumstances, overturn a trial court verdict for not reaching a correct conclusion as to what facts are implied by the evidence. Only questions of law are supposed to be reviewable.

So there should be a difference between sound legal reasoning and unsound (and prior precedents should only be overturned when their legal reasoning is demonstrably unsound, as many scholars say Roe v Wade was).

Nothing new - we know the court system, from top to bottom, does not adhere to the highest principles.

True enough. I am continually astonished that America accepted the principle of judicial review, by which the constitution is interpreted by SCOTUS, and with a few historical exceptions, the rest of the government has agreed to abide by those decisions. I suppose the precedents set in Britain (which had gone through a Civil War of its own as to whether rule was of law or of monarch) had a lot to do with that. Most of us can understand that a process with some objectivity is preferable to settling disputes by violence or threat of violence.

What may be new in that article is a knowledge of active corruption where not even lip service is paid to traditional standards. We could be sliding into a banana republic systemic breakdown.

I think these characters from the Federalist Society are actually very good at lip service, and few decisions fail to pay some. Still, it is clear we are sliding. And I think the thorough politicization of the Supreme Court, in response to liberal decisions that someone didn't like, has driven this cynical process of rejecting legal reasoning for pragmatic calculation of political gain.

One other culprit getting a lot of attention is the internet. Since conspiracy theories have spread like crazy, and as a result truth is up for grabs, a significant part of society seems to be refusing to accept evidence and instead questioning (or making up challenges to) any consensus they don't like. It wasn't so long ago we had one of that type posting regularly here.

Remember the mantra of Alex Jones: "Just asking questions."

[Taylor]

Yesterday’s SCOTUS decision was designed to bring any decision on disqualification back to the court as it exists today, and in the coming future, of this same court.
This includes any potential law enacted by congress, that SCOTUS has affirmed to be the enforcement authority, The court set themselves up for future decisions of constitutionality of disqualification enforcement, as they see fit.
The courts decision is circular by default. Making federal elections subject to their (SCOTUS) interpretation and approval.
IMO- - this court has laid bare the fact that all branches of the federal government are beyond dysfunction and undeniably and, unwilling to take responsibility for the embarrassment we should all feel. Is it any wonder the world is now questioning the capacity of American leadership?.
When FPSfB declared that yesterday’s decision was a victory for America it should be well established within the zeitgeist to be the opposite.

[Taylor]

The simple answer to the question “ can you teach ethics?”is Yes.
It’s the enforcement mechanism that is the problem. Is and ought?.

[Taylor]

As far as I can tell, the only thing that is able to quash opinion based facts is sudden catastrophe.
Are ethics enforceable?, and should they be?.
Theologically they have failed, scientifically they fail as well.

[Taylor]

As I write this; Israel is attempting to enforce an ethical standard on the Palestinians, what we should not write is that Israel is using an ethical mechanism

[Harry Marks]

think of US politics as resembling the slide in Ancient Rome from Republic to Empire.

Maybe. Newt Gingrich claimed that he foresaw a coming era of clash when we lost the enemy of Russian Communism. I think what he really saw was the opportunity to use all the funds available from the billionaires, who had given up on persuading the public that their freedom to dominate was all-important (in the John Birch Society days), to pay for wedge issue communication (as demonstrated by Roger Ailes and his Willie Horton ads). Either version can fit the Republic-to-Empire narrative, but the former is more sociological and the latter more technological.

Of course that is just a thought experiment. What it illustrates is the clash between public ethics and the power of unprincipled money and force as similarities across this vast historical gulf. The slow shift in the balance of forces in Rome involves a gradual collapse in republican ethical principles like virtue, dignity and gravitas, with a similar process underway today.

Sounds a bit deterministic to me. Theirs was a much more violent age, with Marius and Sulla taking the pernicious problem of "faction" (as the Federalist Papers called it) to the extreme of slaughtering their competitors. That kind of horror show can make an Emperor look pretty good.

Empires operate on the basis of interests rather than principles. As people come to see their tribal identity in imperial terms, moral principles such as equality, truth and justice become means rather than ends. They can be disposed of and ignored when they do not suit imperial purposes.

Well put. Though I do think today's imperialists (such as the Dulles brothers in the Eisenhower administration) have a short-sighted view of interests. They tend to see the expediency of maneuvering to maintain power and amass fortunes as more "real" than the principles by which social harmony is maintained.

The theme you raise of the assumption of bipartisan good faith is fundamental to civil legitimacy. Without good faith, and elemental trust in common decency, the partisan conclusion is that opposing positions are just based on deception and delusion, and on an unwillingness to find out facts or engage on moral values. That belief is an essential step in the polarisation leading to civil war. At the moment, both right and left in US politics appear to view their opponents as so fundamentally deluded as to be incapable of good faith argument.

Particularly in argument before the Court. Much of the Reagan Administration aimed to fight a guerrilla battle against racial integration, and their nominees to the court, like those of the Nixon Administration, were bigots who generally knew enough not to say it out loud. That kind of duplicity certainly undermines any assumption of good faith, but hypocrisy is the tribute paid to virtue by vice, and for a while virtue controlled the agenda of interests as well as that of principles.

Plato did not believe that virtue could be taught through conventional instruction, but he did believe we can all attain virtue through philosophical inquiry and the cultivation of wisdom and understanding.

I would agree with that, with the reservation that society does matter. People tend to take on board areas of discussion that give them a rewarding chance to use brain and courage in pursuing the better. For a large part of the population this mainly means cars or clothes, with endless discussions of the many and varied virtues of these relatively meaningless accoutrements of life. In particular times, such as the Roman Republic and the U.S. Civil Rights struggle, the truly meaningful issues become matters of common discussion and the distinctions of virtue provide an exercise that strengthens philosophical inquiry and internal examination.

The contemporary drift into moral and epistemological relativism indicates a collapse in the former belief in shared philosophical values. Part of the problem is that the alliance between science and various political movements such as progressivism and technological domination has caused a large part of the community, who believe they hold to ethical principles, to see science as tainted by politics and therefore fallen from its previously trusted status.

I see this "taint" (which probably owes more to the loathsome process of going to school than to the politics of "woke" and "I've got mine") as less important than the simple "marshmallow problem" of getting people to set aside the urgencies of the moment for engagement with the question of what is important.