Wednesday, November 11, 2020

Legality is No Excuse

Suppose you discover that your elected representative is a (literal) Nazi, who enjoys using racist slurs and openly advocates for reinstituting slavery and apartheid.  Horrible, right?  Further suppose that whenever anyone objects to this, his co-partisans excuse it on the grounds that it isn't illegal: he is "100% within his rights" to have, and advocate for, atrocious views.  This would be a ridiculous defense.  It neglects the obvious fact that it's possible to exercise your legal rights in ways that are morally wrong.

Unfortunately, people seem extremely prone to conflating ethics and legality in just this way.  This can then be exploited by politicians to deflect criticism without offering any actual justification or defense.  Witness Mitch McConnell: "President Trump is 100 percent within his rights to look into allegations of irregularities and weigh his legal options."

It's nuts that a line like this has any rhetorical force.  If only our media, and our citizenry, were more philosophically competent!


  1. While it's true that legality and morality are distinguishable, I'm not sure I see the application in this case. The US has a multi-stage election; we don't even have a final official count of votes yet (while they sometimes certify early, there is no requirement for states to provide one before December 8). There's obviously nothing morally wrong with refusing to concede an election when the votes are still being counted and checked. Likewise, it would obviously be morally wrong to insist that allegations of irregularities not be looked into -- the obvious response seems to be pretty much what McConnell is suggesting, that these should be investigated and determined by normal legal procedures. So it isn't clear to me what the morality/legality confusion is here; we are dealing with questions of the legal handling of an election that's still in the process of being completed, so legality seems all that's actually relevant here.

    1. > "There's obviously nothing morally wrong with refusing to concede an election when the votes are still being counted and checked."

      I disagree. If the way in which one does this is to throw around baseless accusations of "fraud", undermining public trust in the process, and potentially inciting violence amongst those whom one has misled into believing that the election was "stolen", then that strikes me as extraordinarily irresponsible and immoral behaviour. (To be clear: there is no legitimate doubt about the outcome of the election -- any residual "counting and checking" is a mere formality, and to pretend otherwise is to mislead the public.)

      Hopefully it will all turn out okay, and Trump will eventually concede that he lost, fair and square. But there is no indication that he is willing to do this. (Over the years he has repeatedly suggested that he will only accept the results of an election if he wins it, and that he could only possibly lose as a result of fraud -- that his loss is, in effect, ipso facto evidence of fraud.) So there seems a significant risk that his current attempts to delegitimize the election will continue, regardless of the results of the "legal process", with potentially dangerous consequences.

      In short: in addition to "legality", democratic norms and rhetoric also matter. It's these latter that Trump's critics are concerned about, and that a narrow focus on legality deflects and distracts from.

    2. Public trust is maintained by airing allegations and running them through an open legal process. It would be immensely dangerous to public trust for Senators to stand up in Congress and disparage people who want allegations of irregularities investigated, and it doesn't matter how likely it is that the investigations will turn up nothing. This is not a landslide election in an easy year; it is a very, and unexpectedly, narrow election in a year in which there were a lot of sudden changes in the last few months to accommodate election laws and their applications to a very new situation. Public trust is entirely a matter of making sufficient numbers feel that their concerns were at least fairly considered; you can only do that by going out of your way to fairly consider even concerns you think are stupid, when the number of people with those concerns is significant.

      (To be clear: there is no legitimate doubt about the outcome of the election -- any residual "counting and checking" is a mere formality, and to pretend otherwise is to mislead the public.)

      The US election is multistage precisely so that potential issues have time to be worked out in a public forum; nobody is actually elected until the election is done, and it doesn't matter how clear and certain the projections may be. The chances of Trump winning the Electoral College at this point are minute and would require unlikely causal paths, but actually making sure an election is completed properly is never, ever "a mere formality". Elections are not merely about reaching a threshold; they are also about which voters were won, and under which laws they got the votes, and whether we need to do certain things better for future elections, and about giving people reason to think their concerns aren't simply being shut out by the system. "Risk" and "potential" about what a candidate might possibly do when the election eventually is finished doesn't trump legal process in the midst of the election, which is constituted entirely by legal processes. Individual voters voting may be engaging in a moral act; we have moral reasons to have election systems; subversion or blocking of electoral process is therefore immoral; but elections themselves have as their reason, proximate aim, and structuring principle nothing other than legality, legality, legality.

      This is not to say that Trump can't be criticized for how he is handling it; and certainly it is always inappropriate for a presidential candidate to claim to be President-elect when the election hasn't even been completed yet. But to the extent that it is a moral problem and not just the aesthetic problem of crassness, it's only because we have moral reason to uphold the importance of legally dotted i's and crossed t's in an important legal process like an election.


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