The Legal and Ethical Can Conflict

To whom do you swear allegiance?

Goddess Justicia yield a sword (violence) and scales (reasoning). It can be understood both ways: either justice “cuts” with its inexorable arguments, or applies reason with one hand, and aggression with another, thereby baptising the rising Leviathanic abomination. Photo by Gaétan Marceau Caron on Unsplash

To whom do you swear allegiance? This question remains no less intact today than it ever was. Medieval-fashioned feudalism, monarchy, and aristocracy by no means died. The fact that they are romanticized in popular culture (for instance, in House of the Dragon, a beautifully filmed fantasy adaptation) tells us that some of the predominant values of these systems still live vibrantly in our minds.

The dramatic point in these values is the symbiosis of legitimacy and moral superiority that used to exist in a pre-modern social order.

Today this alliance is virtually extinct, and the resulting gap breeds tremendous societal and psychological controversy. When it existed, it made the demand to “swear allegiance” more sacralized and serious. Yet today, the nationalistic demand for “sacrifice” increasingly resembles but a shadow of a dignified service.

Is it not paradoxical: legitimacy is based on gaining authority from the realm of universal morals — be it ‘God’ or a natural-rights prejudice. Nonetheless, in all their formalities, legal systems evidently remain either indifferent or even contradictory to elementary ethical principles.

For instance, barely any jurisdiction directly scorns adultery. Moreover, all jurisdictions whatsoever fail to universalize the prohibition of homicide: they must necessarily make an exception for wars (not necessarily defensive ones).

To put it another way: on the one hand, legitimacy always uses moral justification for its existence; on the other hand, it fails to apprehend those morals that are most fundamental to the social fabric.

Something is clearly amiss here. If legitimacy and ethics can stand in contradiction, if they are mutually exclusive, one might start to wonder what makes the social fabric viable at all (since it is at least intuitively clear that society cannot possibly exist without ethics or some kind of law).

Given that we live in an increasingly “regulated” environment, we are ultimately faced with a delicate riddle:

On what ground exactly is the law justifiable ? Is there a point beyond which obeying the law ceases to be ethically appropriate?

Let us investigate this closely.

Ethics = Reason

In our search for the origins of, and a possible solution to, the contradiction, we will briefly examine the most “prominent” theories of law. It can be safely assumed that all of them rest on the appeal to “reason”, meaning that, other things being equal, all reasonable persons (who must ideally constitute a society) should agree to the proposed order at all times.

Hence, we will scrutinize the backbone of these theories against rational criteria: namely, that to remain “reasonable” they must not be self-contradictory and self-refuting.

The reason for this is simple: one cannot argue against ethics being inseparable from reason. To ponder ethical matters is uniquely preconditioned by the ability to reason in the first place.

To deny logic as a tool of argumentation is to deny the possibility of argumentatively justifying anything at all. This would make any kind of frenzy equally and arbitrarily “justifiable”, which means that no ethical questions could ever be raised at all, since such questions inevitably imply a measure against some sort of solidified standard (i.e what is better vs what is worse).

Logic and reason are thus inherent traits of ethics, since moral reasoning is by definition and exclusively accessible to reasoning creatures. Therefore, we can rightfully assess ethical claims in terms of their logical coherency (non-contradiction).

An ethical system that contradicts itself cancels its own premises and can never claim authority over another’s conduct.

I will use Ukraine as the real-life case, since it is the most fresh, painful precedent in the context of the boundaries between political legitimacy and statist despotism, as well as of the trade-offs between individual freedom and social obligation.

The Social Contract

Social contract theory (Rousseau, Locke) posits that legitimate political authority rests solely on the consent of the governed, whereby individuals voluntarily surrender specific freedoms to a sovereign in exchange for the protection of their remaining rights and social order.

The problem arises when consent is assumed to be tacit, automatic, implicit — pushing it into a grey area where it becomes virtually indistinguishable from forced membership.

One cannot simply ‘exit’ one's citizenship (and the social contract); one needs approval from the authorities, who are in a position to decide arbitrarily and unilaterally the extent to which every citizen’s rights and freedoms actually unfold.

There is no institution to appeal to beyond the state (with whom a citizen might disagree with regard to what the social contract constitutes). Nobody can individually withdraw their consent to obey the authority and ‘exit’ the unwanted contract without severe difficulties.

Democratic institutions do not solve this contradiction. If one argues that democratically chosen leaders satisfy the criterion of the consent of the majority, the problem still remains: even if 99% of the population chooses to murder the 1%, it is still murder, and it goes against the victim’s consent.

What allows us to neglect the will of the oppressed when instead of “murder” there is “taxation”? Democracy inevitably crowds out a minority upon whom the political decisions are enforced without their consent.

In Ukraine, a state that felt the threat to its own survival, the right to renounce citizenship is made de facto impossible to access at the administrative level. Because martial law restrictions prevent military-eligible individuals from obtaining the required military enlistment office (TCC) clearances or completing the necessary consular registration steps abroad, standard civilian applications are legally stalled at the local administrative level. They simply cannot fulfill the statutory prerequisites to be forwarded.

Paradoxically, a jurisdiction that identifies itself as a beacon of democracy and freedom denies a fundamental freedom to its own citizens. The obligation to defend the state was imposed on them long before they could ever agree to it (since birth).

The right to exit is implied in the social contract theory that lies at the heart of the nation-state. It is not surprising that the social contract fails to serve as a stable foundation for order, since, contrary to its own core assumption, no one ever fully agrees to it.

No reasonable person can ever agree to it (beyond a community level — more on this below), since a centrally political system must always exclude itself from every conceivable crime, be it robbery (taxation), murder (war), slavery (conscription) or fraud (propaganda). Thereby one ends up either legitimizing (and relativizing) these crimes under “special” circumstances (unilaterally determined by the state itself), or delegitimizing this impossible institution.

The Hobbesian Leviathan

Thomas Hobbes’s political theory, albeit also falling within the scope of the “social contract”, is distinct from the theories of Jean-Jacques Rousseau or John Locke.

The former sees the consent to be governed by the sovereign as irrevocable. Even worse, the sovereign’s power is to be undivided and unlimited.

Still, the whole Leviathanic project fails due to a devastatingly absurd assumption lying at its core.

First, it justifies the necessity to avoid “the state of nature”, or the “war of all against all”, in which homo homini lupus est.

Second, it assumes that the destructive state of nature needs to be bound by civil society, by means of establishing a sovereign: that is, granting the ruling minority unilateral power to exert violence and coercion upon others, for the sake of “order”.

Herein lies a failure to realize that, since human nature is naturally imperfect, with predatory, aggressive motives sprouting out now and then, this includes the rulers too (who are never perfect angels but always human beings).

Hence follows the straightforwardly absurd conclusion:

Man is a wolf to man — therefore, we must grant man unlimited violent power over man!

The problem becomes undeniable: once we concentrate all power into single hands, there remains nothing that could possibly protect against the abuse of this power by those who otherwise were supposed to be “good-willed” sovereigns.

In wartime Ukraine, we can witness the many oppressions that common people suffer as a result of the Hobbesian myth: in the name of protecting the “homeland”, men are forcefully drafted, beaten, and even killed if they oppose. Intellectual dissent and independence are discouraged and stifled by nationalistic censorship.

Even though this stays true for other countries, including Ukraine’s totalitarian rival, the demand for sacrifice stemming from hypocritical, corrupt political elites begs the question of how such demands, and the power of those demanding them, can be justifiable and legitimate at all.

The Natural Rights Tradition

Despite its own challenges, natural rights theory offers a much more logically coherent solution to the problem of social order.

The pre-political nature of natural rights is their significant advantage: they cannot be legitimately abrogated by political authorities.

On the one hand, natural rights are assumed to exist independently of culture, tradition, or other contingent forces. On the other hand, below we will see how they are in fact conserved by naturally and spontaneously emerging institutions that, unlike positive (human-made) law, are not intentionally designed by any individual.

So far, it must be clarified that, since natural rights are fundamental to human existence, they are inalienable.

The primary purpose of government is to protect these pre-existing natural rights (i.e., to Life, Liberty, Property). Every individual, as long as they do not interfere with the rights of others, shares the natural rights unconditionally and equally with others, simply by virtue of being human.

Still, the best-known observable jurisdictions that try to institute governments based on natural law ultimately face a dilemma: they either have to violate the natural law (on which their own legitimacy is assumed to rest), or they have to allow their own abolition.

Ukraine’s case shows this plainly: the survival of the state is placed above the survival and freedoms of individuals, despite the main reason for the state’s own existence being the protection of the life and liberty of these individuals.

Under the pretense of an existential threat, the fundamental liberties of Ukrainian citizens are paused (which constitutes a violation of natural law).

One can look at other countries praised as “free” and observe that even in them the most punishable crimes are not those against the rights of other human beings, but those against the institution of enforcement itself (the governmental apparatus).

The Origins of Social Institutions

Is the natural, pre-political law so impractical that it always risks being eroded once politicization is in place? If not, what are the conditions under which natural law, with all its benefits, is possible?

To assume that a single human mind can design and single-handedly warrant the best social institutions is to run into a contradiction from the get-go:

Since the human mind is prone to being flawed and imperfect (it would be naive to claim otherwise), it cannot, all by itself and deliberately, come up with a perfectly practical, flawless order.

Even if such an order were theoretically known, to implement it exhaustively we would need to concentrate unlimited power in the “good” ruler’s hands

The utmost dictator still relies on the dispersed wills of his loyalists, about which he often knows nothing. One mind alone, therefore, is never capable of efficiently coordinating a vast society. If one grants such a mind great control, it only creates a perpetual and unsatisfiable demand for more control.

The inefficiencies and trade-offs that become indispensable in a centrally-managed political system are systematic coercion and the risk of power abuse.

But how can the “political animal”, as Aristotle described humans, avoid this? How can one conceive of an order where a politician is not granted the power to do “good”, even if it takes coercing others — similarly to how a protective parent must often disregard children’s caprices and compel them to do what they are unwilling to do?

The answer is already hidden within this question and the analogy itself.

Comparing a politician to a parent is devastatingly fallacious. A politician has never known or seen, and is not deeply related to, most of his subjects. Yet somehow it is assumed that he must care for them and think of their “best interest”.

On the other hand, the family is precisely the institution of moral and social guidance. If a parent is abusive, the suffering affects their family alone. This is not true of a politician, who is ultimately excused from mistakenly bringing potential, subtle, chronic damage to millions of lives.

Nassim Taleb offered the concept of skin in the game to solve this “agency problem”, yet skin in the game is virtually impossible in centralized systems, where the decision-maker is isolated from those whom their decisions consequently affect.

But if the idea of centralized governance and large-scale, intentional policy-design must be dropped, how are the most viable institutions — those that would maintain natural law and reconcile ethics, reason and legitimacy — to emerge?

Precisely in an unforced, decentralized, spontaneous manner.

In fact, Austrian economists (such as Hayek) have shown extensively, and continue to show, that the best of such institutions, those that increase the freedom and dignity of man, emerge that way.

For instance, this is how money emerged (namely, through the needs arising in the course of free trade), and this is how elementary morality is preserved (namely, through families and tradition — values that cannot be forced from the top down).

A social order that comes closest to manifesting natural law is that of many independent civic communities, in which the leaders and their powers are constrained by immediate proximity to their subjects. This makes corruption and despotism instantaneously detectable and removable, since every member of a relatively small community knows exactly who is worth what.

Finally, we have arrived at a model that indeed reconciles ethics with legitimacy.

Conclusion

What we have found out so far is this:

• The two pillars of a social order, the legitimate and the ethical, are evidently capable of standing in contradiction.
• This contradiction arises from institutional flaws which, in their turn, stem from the underlying fallacious theories of political philosophy.
• It is important to solidify a reasonable solution to this problem in order to avoid the unnecessary, widespread suffering and moral ugliness that so often accompany a political system.
• Such a solution would tend to distance itself from centralized authority (which scales fallacies and their consequences) and to move toward natural law, that is: the dispersed, skin-in-the-game, and organically emerging order.

Does the natural law have its logical struggles?

It is indeed challenged by some potential objections, which I will examine and refute on another occasion. The reader is welcome to subscribe if he is intrigued by how this debated topic will unfold.

For now, it is rather beyond question that natural law is practically and normatively superior, and thus more desirable to any reasonable person, than how mainstream politics is arranged. The question that remains is the tightening of this argument.

I will ask you to decide for yourself whether such a solution to this nuanced riddle is feasible.

At the very least, one question is left to be answered sincerely:

Has the man-made law proven itself worthy of your obedience?

Thank you for reading.

Truly Yours, The Thinker

📍Bibliography

• Hayek, F. A. Law, Legislation and Liberty. Vol. 1, Rules and Order. Chicago: University of Chicago Press, 1973.
• —. “The Results of Human Action but not of Human Design.” In Studies in Philosophy, Politics and Economics, 96–105. Chicago: University of Chicago Press, 1967.
• Hobbes, Thomas. Leviathan. Edited by Richard Tuck. Rev. student ed. Cambridge: Cambridge University Press, 1996.
• Locke, John. Two Treatises of Government. Edited by Peter Laslett. Student ed. Cambridge: Cambridge University Press, 1988.
• Menger, Carl. “On the Origins of Money.” Translated by Caroline A. Foley. Economic Journal 2, no. 6 (1892): 239–255.
• Rousseau, Jean-Jacques. The Social Contract and Other Later Political Writings. Edited and translated by Victor Gourevitch. Cambridge: Cambridge University Press, 1997.
• Taleb, Nassim Nicholas. Skin in the Game: Hidden Asymmetries in Daily Life. New York: Random House, 2018.

🧷Secondary Sources (for Further Reading)