Saturday, October 16, 2010

When Law and Morality Collide

In an  a post to Greedwatcher.com, I discussed the "Do As I say, Not as I Do" mentality uncovered by the Wall Street Journal's series about congressional staffers trading on inside information.
Jewish law has what to say on this subject, but first a little background:
The Journal's disclosures offend our collective conscious. The staffers' activities are an exception or loophole to the general prohibition against trading on inside information. The loophole is not available to others in possession of confidential insider information who may not trade until the information has been disseminated to the market. In effect, Congress is telling citizens, "do as I say, but not as I do," exempting them from the insider trading (and also, incidentally, from other laws, such as Obamacare).

The trades made by the staffers were apparently legal, and that is what mattered to them.

Rightly so, I would argue.

But "The Intelligent Investor" disagrees. That column argues in the Wall Street Journal that staffers, were wrong, but were not intending to be immoral; rather, they engaged in self-delusion. 

In support of that argument, the article quotes Daylian Cain, a psychologist at Yale University's School of Management."People are just not good at being objective about their own potential conflicts of interest. Whatever side of an issue we're on, we can easily convince ourselves that we're on the right side," he says. In the same piece, Professor Adam Galinsky, is quoted saying, "Power makes people feel both psychologically invincible and psychologically invisible." "Socrates invokes the myth of the ring of Gyges, which conferred upon its wearer the power of being invisible to others. If we wear such a ring at will, Socrates says, 'No man would keep his hands off what was not his own when he could safely take what he liked.'"

So in substance, the argument goes, it's wrong, but people do it anyway, because they delude themselves into believing that it is OK to be greedy.

I'm a student of greed, author of "History of Greed," and quick to criticize financial wrongdoers, but I respectfully disagree. 
I don't think that  self-delusion has much to do with it. And I don't think what the staffers did was wrong.

Much as I abhor the loophole that the Wall Street Journal discovered, and wish for it to be closed, I cannot criticize those who did what was legal.

The whole point of laws is to  clarify and crystallize the application of general moral principles to specific circumstances. 

Laws are dry and proscriptive, or prescriptive, as the case may be, but they need to be followed. As such, they willy-nilly preempt moral considerations.
Laws often begin, "No person shall" or "Any person who shall" to regulate behavior. Whenever an activity is heavily regulated, and especially when not all of the regulations makes sense, but are mindlessly enforced nonetheless, it is normal and proper for people to test a contemplated action only against the applicable body of law in order to ascertain whether the contemplated action is legal.

It is unreasonable, and probably dangerous in American law to also impose a "morality test" because doing so would only serve to cloud the legal questions.

Only in the realm of generally unregulated behaviors should we demand that actions be guided by moral principles.

This reality, of course, produces from time to time, the unexpected consequences of an activity being legal but immoral, or being moral but illegal.

Society  and Judaism have long grappled with this problem. 

The Rabbis long ago noted the anomalies created when statutory justice mishpat conflicts with "righteousness" or tzedek, i.e., with morality. The Talmud in Sanhdrin 6b observed, "Surely where there is strict justice there is no righteousness, and where there is righteousness, there is no justice!  והלא כל מקום שיש משפט - אין צדקה, וצדקה - אין משפט
סנהדרין דף ו עמוד ב) ").
In Jewish law, the goal is always to achieve משפט צדק "righteous justice" rather than the "blind justice" - the blind (mechanical) application of the law which forms the basis for Roman law. The rule is based on Deuteronomy 16:18
יח  שֹׁפְטִים וְשֹׁטְרִים, תִּתֶּן-לְךָ בְּכָל-שְׁעָרֶיךָ, אֲשֶׁר יְהוָה אֱלֹהֶיךָ נֹתֵן לְךָ, לִשְׁבָטֶיךָ; וְשָׁפְטוּ אֶת-הָעָם, מִשְׁפַּט-צֶדֶק
18 Judges and officers shalt thou make thee in all thy gates, which the LORD thy God giveth thee, tribe by tribe; and they shall judge the people with righteous judgment.

Lady Justice is often depicted wearing a blindfold. The blindfold represents objectivity, in that justice is (or should be) meted out objectively, without fear or favor, regardless of identity, money, power, or weakness;  and with blind impartiality. All these are indeed desiderata. But to avoid injustice, "blind justice" as commanded in the Torah, and as understood by the Rabbis, must be tempered with a "fairness test" in order to achieve "righteous justice."

In the rule of law, that isn't easy, and it requires Judges to use their own judgment and be given wide discretion. In the Talmud (B. Bava Batra 131a), this is stated as ein ladayan ela mah she`einav ro’ot (the judge can only decide according to what his eyes see).

American law, the quest for the "blind justice" is exemplified by the near-universal application of the mindless and irrational "Federal sentencing guidelines," a product of bureaucracy run amok (Booker, which confirmed that the Guidelines are supposedly discretionary, notwithstanding). 
Sadly, American Law is not too good and tempering Justice with fairness so as to achieve a fair and just result. Even defendants ask the judge for mercy, and not for fairness. Federal Judges, especially,  have little latitude, and are afraid to use what they have, for fear of being overturned on appeal.

So I propose two obvious fixes: Close the loophole that exempts congressional staffers from trading on inside information, and sunset the United States Sentencing Commission, which was created by the Sentencing Reform Act of 1984. Make it a private non-profit organization, and prohibit its Guidelines from carrying any legal weight in support of or in opposition to any sentence.

Both reforms will get us a little closer to the achieving the Torah's goal of "righteous justice."

No comments:

Post a Comment