The Necessity of Rule-Following:
A normative exploration of the interplay between justice and process in the writings of Walter Mosley and James Lee Burke
M.D.
Class Thesis, Law in Literature
Washburn University, School of Law
Professor G.P.
“Justice is the first virtue of social institutions, as truth is of systems of thought.”[1]
--John Rawls
I. INTRODUCTION
Mankind has always been preoccupied by the question of how we ought to live. Our libraries and histories are filled with texts of philosophy and theology which assign to people obligations and rights. Our history is replete with legends and myths which provide examples and cautionary tales, advising us to walk carefully the fine line between correct and incorrect conduct.
Fundamentally, our preoccupation with morality is a preoccupation with justice.[2] Justice is commonly defined in the relevant philosophical literature as being a state in which the benefits and burdens of life are arranged among individuals according to their desert.[3] This concept seems to be ingrained into individuals at a young age, and many of our moral intuitions as children support this conception of justice. The idea that good things should happen to good people and bad things happen to bad people can be seen in every child who, being wrongly punished for the act of another, protests “It’s not fair!”
It has been said that those who hear clearly the call of their own consciences most clearly hear the call of justice.[4] This sentiment, once expressed by a Nobel Laureate in literature, Alexandr Solzhenitsyn, reveals a fundamental truth regarding the nature of justice itself. Justice is intimately tied to our own moral intuitions. These intuitions, while taking marginally different forms in some situations across cultures, are largely uniform and biologically determined.[5] It is this broad cross-cultural agreement that allowed that Nobel Laureate to further explain his point: “Justice is conscience – not a personal conscience but the conscience of the whole of humanity.”[6] By placing the dictates of justice beyond personal moral judgment, and into the realm of the objectively true, Solzhenitsyn recognized the twin inherent difficulties involved in mankind’s shared attempts to create and do justice. First, as finite creatures bound in our own realms of subjective experience, humans lack access to the objective normative content which would determine the just outcome to any situation. Secondly, all too often, people have denied the existence of the first difficulty, leading to the repeated conflation of personal subjective and impersonal objective moral judgment.
While the preceding material may be abstract, the material on which such concepts operate is all around us. Everyday interactions between people provide the backdrop against which these two difficulties play. Unfortunately for humankind, these two difficulties create the potential for disaster in any attempt to operate outside of lawfulness. It is the purpose of this essay to examine the relationship between the rules of society and our desire to do justice, and the havoc in potentia which exists when we allow the latter to dominate our actions.
The end result of this examination will be the decision that in a vast majority of cases, violating established law to do justice is too dangerous a precedent to set, even if it achieves greater justice in the short-term. The analysis will include a discussion of the writings of James Lee Burke and Walter Mosley, the views of justice espoused by the main characters in the writings analyzed, and will conclude with a normative evaluation of these views in light of the civil disobedience movement, John Rawls’ “Theory of Justice,” and Plato’s “Crito.”
II JUSTICE IN THE EYES OF DETECTIVE DAVE ROBICHEAUX
This section will analyze what justice means to the fictional character of Detective Dave Robicheaux and his partner “Clete” – creations from the pen of James Lee Burke. Dave Robicheaux is the protagonist of Burke’s novels, and the good detective solves various mysterious crimes throughout the books, and Clete is his right-hand man who does the dirty work that Dave wants him to. Their relevance to our discussion on the relationship between process and justice is shown through his treatment of individuals they investigate or interrogate. This essay will examine Dave Robicheaux’s and Clete’s unique style of detective-work in the books “The Neon Rain,”[7] “Sunset Limited,”[8] and “A Stained White Radiance.”[9]
Fundamentally, Dave Robicheaux might be described as being an advocate of ‘cowboy justice.’ By this term, this essay hopes to indicate both the independent nature of his particular brand of law-enforcement as well as a certain romanticism concerning the dispensation of justice to evildoers and good people alike. The independence can be seen by utilizing examples from the three works by James Lee Burke in which Robicheaux acts as prosecutor, judge, and executioner; and the romanticism, while able to be inferred throughout the novels through the actions of Dave Robicheaux, is best placed in context with a brief discussion of this subject in “A Stained White Radiance.”
Dave Robicheaux is the cause of a substantial number of deaths throughout the novels, but after each one, the reader is left with a slightly self-indulgent sense that justice has been done. An example of this might be an encounter with a local criminal, Julio Segura. Dave Robicheaux and his partner “Clete” stop Segura’s vehicle and attempt to pressure him into giving them information on the location of some other criminals about whom Robicheaux is interested more deeply.[10] Rather than following standard police procedures, Robicheaux and Clete engage in maverick interrogation of the inhabitants of the vehicle, going so far as to provoke the individuals in the vehicle into an armed battle[11] from which Clete and Robicheaux emerge unscathed, but from which the ‘bad guys’ in the car do not.[12]
Robicheaux and Clete have no formal cause to detain and question the people inside the vehicle – a fact admitted by omission.[13] At first, Robicheaux merely desires to question Julio Segura regarding a murder victim Robicheaux is investigating.[14] However, once the vehicle is stopped, Robicheaux declines to question Segura about the deceased young girl he is investigating. Instead, Robicheaux asks about the whereabouts of three other criminals,[15] and delivers a small speech in which he morally condemns Segura for the death of the girl (without evidence).[16] This speech nicely sums up the complete independence from law that epitomizes Dave Robicheaux’s approach to dealing with ‘bad guys,’ and is partially excerpted below:
“Lovelace Deshotels [the murder victim] was a little black girl from the country who had big aspirations for herself and her family. She thought she’d made the big score, but you don’t like broads that slop down your booze and throw up in your pool, so you eighty-sixed her back to the geek circuit. Except you had a badass black girl on your hands that wouldn’t eighty-six… So what does a macho guy like you do when one of his whores gets in his face? He has a couple of his lowlifes take her out on a boat and launch her into the next world with the same stuff she’d already sold her soul for.”[17]
Following this highly prosecutorial speech, Robicheaux proceeds to threaten Seguro, saying that even if he doesn’t go down for the murder of the dead girl, Robicheaux will see to it that a search of Seguro’s car turns up enough drugs to warrant punishing Seguro harshly.[18] Almost triumphantly, Robicheaux announces his conclusion in a judicial manner. “Any way you cut it, your ass is busted.”[19] Immediately thereafter commences the gunfight in which Segura and another occupant of his car are killed.
That this conclusion was foreordained by Robicheaux when he set out to ‘question’ Segura is uncertain, but strong arguments can be made that such was the intended outcome all along. Robicheaux announces his reason for wanting to meet Segura again, but fails to try to accomplish that end while talking with Segura. Robicheaux recognizes that he has no particular authority to talk to Segura anyway, since Segura (and the homicide Robicheaux is investigating) is out of Robicheaux’s jurisdiction.[20] When Clete asks how Robicheaux would like to have the encounter go, Dave Robicheaux responds that the plan is to “run up the black flag.”[21] Finally, although Robicheaux and Clete only see a single weapon in the vehicle, and despite the fact that the weapon is in the hands of someone other than Segura, and despite the fact that Clete kills the man who pulled the gun immediately, Clete and Robicheaux continue to fire shots into the vehicle at an unarmed and clearly frightened Segura.[22] These types of encounters are far from uncommon for Dave Robicheaux, who calmly explains to his boss that these incidents aren’t his fault, and that “he didn’t deal the play.”[23]
Clete is much worse than Dave Robicheaux in terms of his violence, but rarely shows the initiative to use it without having Robicheaux tell him to take ‘care of things’ – given Robicheaux’s knowledge of Clete’s violent tendencies, assigning a task to Clete is an open invitation to use violence. In a scene from “Sunset Limited,” Robicheaux has asked Clete to deal with a criminal Dave Robicheaux identifies as a “small player in [the murder investigation Robicheaux is conducting].”[24] As per his usual habit, Clete ‘deals’ with the man (Scarlotti) with violence so brutal that it should warrant a warning label.
In the encounter, Scarlotti and his associate are eating a meal in a restaurant. Clete approaches them, and then proceeds to dump a plate full of scalding chipped beef into the associate’s face without provocation.[25] As Scarlotti rises in anger from his seat, Clete continues to beat Scarlotti’s companion, smashing an iron skillet into his face.[26] Scarlotti attempts to yell something at Clete, but Clete grabs Scarlotti by the front of his trousers and places vice clamps on Scarlotti’s testicles.[27] One might think that placing vice clamps on the genitals of an alleged criminal in a public restaurant would be the culmination of the encounter, but that line of thinking seriously underestimates the sheer capacity for lawless action undertaken by Clete in the name of good.
Clete drags Scarlotti, nearly mute with pain and rage, through the restaurant and down the sidewalk toward the flower shop owned by Scarlotti’s mother,[28] pausing only long enough to hit Scarlotti in the face a few times, and throw him to the ground. Finally, Burke’s narration explains that Clete – yes, Clete – reaches his breaking point and “los[es] it.”[29] Clete then smashes Scarlotti’s head repeatedly into a metal parking meter, while Scarlotti’s elderly mother watches from a few feet away, screaming.
Nothing in law can justify what Clete did with tacit consent from Dave Robicheaux. But both Clete and Dave Robicheaux appear to operate under a more intuitionist approach to doing moral justice. Waiting for the legal system to charge Scarlotti with a crime, prove that he committed a crime in a court to a judge and jury, and be sentenced by a competent authority puts a delay on the administration of justice, and in Clete and Robicheaux’s defense, justice delayed is justice denied. Justice is, after all, the spirit of the law, and as Earl Warren once noted, “It is the spirit and not the form of law that keeps justice alive.”[30] Dave and Clete appear to be operating under the idea that justice should be done immediately. The difficulty with this is in their understanding of what justice is. They do appear to be using the common definition as formulated in Part I, above,[31] and are evaluating an individual’s level of desert by their personal measure of whether the person is a ‘bad’ person. Given that evidence is rarely (if ever) provided to assert the guilt of individuals, whether the reader will feel that justice is done will depend on whether the reader accepts the blanket assertions of guilt offered by Robicheaux and his partner, Clete.
The independence from law exhibited by Robicheaux and Clete is not reserved for the guilty only. People Robicheaux feels are ‘good’ people tend to get free passes from him, even if they have done something wrong. In “A Stained White Radiance,” Dave Robicheaux is attempting to solve a mystery involving the family of Robicheaux’s ex-girlfriend. Dave, who still feels a profound sense of pity and goodwill for his ex-girlfriend, is put into a delicate position when she files a false police report.[32] The woman, Drew Sonnier, is afraid that Dave Robicheaux will discover that her brother is involved in some shady dealings, so purposefully injures herself and frames a well-known and infamous criminal.[33] The criminal is taken to jail, and nearly poisoned to death by his cellmates while there, which serves to make the knowingly false report by Drew that he had hurt her substantially more serious.
If Robicheaux were committed to law instead of his sense of justice, we should expect Dave Robicheaux to follow the rules and have her sent to be charged for her false report. As the reader will have come to expect, since Drew is a ‘good’ woman (just caught in a desperate situation), she will likely be simply forgiven for this transgression – a position reaffirmed explicitly by Dave Robicheaux, when he informs Drew that “If [she] and [her brother] weren’t [his] friends, both of [them] would have been in jail a long time ago for obstruction of justice.”[34]
More than simply not seriously investigating his ex-girlfriend’s false allegations, when he discovers that the allegations are clearly false, he advises her on how to cover her tracks so as to avoid prosecution. He tells her to quietly drop the charges she made against the local criminal,[35] say nothing to the police without a lawyer with her,[36] and to not even talk to him while he gives her this advice unless she wants what she says to be able to be used against her in court.[37] After essentially absolving her of her crime and telling her what to do to avoid being prosecuted for it, Robicheaux quietly ruminates on the difficulties of his job as he laments that he serves a “vast, insensate legal authority that seem[s] determined to further impair the lives of the feckless and vulnerable while the long-ball hitters toast[] each other safely at home plate.”[38]
Robicheaux’s desire to keep ‘good’ people from harm and cause ‘bad’ people to suffer can be seen in more than his ignoring the crimes of his ex-girlfriend. In some instances, Robicheaux and Clete plant evidence that leads to the downfall of some of the people they see as ‘bad.’ Further, Dave Robicheaux feels no difficulty admitting this practice to his wife, if not to his superiors at the stationhouse. When his wife asks him what he has done to deserve a cryptic phone call from Clete, Robicheaux responds, “Back at the First District, we used to call it ‘salting the mine shaft’... The wiseguys have expensive lawyers. Sometimes cops fix it so two and two add up to five.”[39]
When the Sheriff angrily questions Dave regarding his ‘salting the mine shaft’ (which amounted to having Clete plant a the severed head of a dead man in the trunk of a criminal’s car and then inform the local police about the location of the head), Dave confidently asserts that the man in whose car the severed head was planted was guilty anyway. Dave Robicheaux baldly contends, “The evidence was found on the right person, sheriff. There’s no way around that conclusion. You have my word on that.” That the evidence was tampered with, and that the authorities will remain silent while a man is charged for a crime based solely on the faith of Detective Robicheaux is correct in his personal assessment of guilt is a difficult pill to swallow, but the act perfectly encapsulates the approach to justice shown in James Lee Burke’s novels.
Trusting his own personal moral intuitions more than evidence, Robicheaux (and his partner Clete) founder on both of the twin difficulties identified by Alexandr Solzhenitsyn in Part I. Robicheaux does not have access to the objective guilt or innocence of the parties on whom he trains his personal sense of justice, but continues to attempt to do justice nonetheless. Further, he falls neatly into the second difficulty, believing that his personal moral intuitions are identical with the call of justice.
This particular view of justice is easily romanticized, despite its obvious difficulties. After solving the mystery of the novel, Robicheaux comments on his disappointment at being unable to pin a series of crimes on a particularly bad man (a politician who has strong ties to the Ku Klux Klan) – a man by the name of Bobby Earl. Robicheaux yearns for a simpler view of justice, and exposes the deep romantic understanding of the world that neatly divides people into a colossal battle between ‘good’ and ‘evil.’ “I had been determined to prove that Bobby Earl was fronting points for Joey Gouza, or that he was connected with arms an dope trafficking in the tropics. I was guilty of that age-old presumption that the origins of social evil can be traced to villainous individuals, that we just need to identify them, lock them in cages, or even march them to the executioner’s wall, and this time, yes this time, we’ll catch a fresh breeze in our sails and set ourselves on a true course.”[40] It is this concept – the simple and, therefore, beautiful idea that justice is easier to accomplish than we really know it is – that is so seductive. The concept itself is well-known and has a fairly well-documented history.[41] People desire to make changes in the world (to do justice), but do not enjoy the prospect of accidentally doing injustice because they make the kinds of mistakes that Solzhenitsyn identified in Part I, above.[42] Therefore, they submit themselves to simpler views of the world and instead seek to abandon the complexities of their lives in an effort to embrace the simplicity that would make them heroes.[43] Dave Robicheaux exemplifies this type of thinking, and it is this type of view of the world that is upheld in James Lee Burke’s novels as being appropriate for heroes.
III JUSTICE IN THE EYES OF EASY RAWLINS
The novels of Walter Mosley reveal an understanding of justice substantially different from that of James Lee Burke. This section will examine the concept of justice used in three of Mosley’s works: “Devil in a Blue Dress,”[44] “A Little Yellow Dog,”[45] and “Little Scarlet.”[46] Mosley’s novels follow the life of a private citizen named Ezekiel “Easy” Rawlins. Contrary to justice as practiced by James Lee Burke’s Dave Robicheaux, Mosley’s Easy Rawlins has ‘justice’ practiced upon him. To put it bluntly, Easy is the type of ‘shady character’ on whom Dave Robicheaux or others like him might try to have justice done. As a young, black man during the 1940’s-1960’s, Easy experiences firsthand the difficulties that accompany the actions of independent justice-seeking police officers.
A reader’s first understanding of Mosley’s concept of justice is found in “Devil in a Blue Dress.” Easy Rawlins, desperately needing money to make payments on his mortgage, accepts an offer to make a substantial sum of money by finding a missing woman (missing by choice) for an unscrupulous character named DeWitt Albright.[47] After expressing some hesitation to take the job offered, Easy Rawlins has a candid conversation with Mr. Albright regarding the nature of justice.[48]
Easy feels uncomfortable about whether finding the girl in question will get him mixed up with police officers and the sentiments which motivate them. DeWitt Albright replies that the system and all of its faults “is made by the rich people so that the poor people can’t get ahead”[49] – a sentiment with which Easy Rawlins readily agrees. Easy, still unable to shake his suspicion that he’s getting into something over his head, makes his particular difficulty even more clear. “It’s just that I’d hade to find her and then have some cop come up to me with some shit like I was the last one seen around her – before she disappeared,” Easy remarks. In both an excuse and a thinly veiled bodily threat, Mr. Albright replies that “[t]hings happen every day,” and that “[p]eople with everything to live for… had it all planned out what they’d be doing this weekend, but that didn’t stop them from dying.”[50] The idea that Easy is getting involved in something that might end up with the woman he’s sent to find being another statistic on the morning newspaper headlines doesn’t deter him from finally accepting the job, and he gratefully takes the stack of bills offered by DeWitt Albright to seal their deal.[51]
Although Easy sets aside his personal reservations and fears about what he might be getting involved in, a plausible argument can be made to suggest that Easy, in his carelessness, put himself in a prime spotlight to get himself involved with police officers who want to see ‘evil’ people pay for crimes just as much as did Dave Robicheaux. Unfortunately for Easy, the police officers’ views of who is good and who is evil is guided by their moral intuitions (just as were those of Detective Robicheaux). Needless to say, the moral intuitions of white police officers in the late 1940’s are different from the moral intuitions of Dave Robicheaux, but the difference – the overtly racist undertones and attitudes of the officers in Mosley’s works but absent in Burke’s novels – is a difference that highlights one of the prime difficulties with placing justice-doing authority in individuals rather than in the law: our moral intuitions can be colored by the environments in which we are raised.
The police officers are rarely friendly toward Easy during their frequent interactions, and Easy’s friends do not appear to fare better with the police. The racism involved in such episodes clearly motivates the manner in which officers treat Easy and his peers. Easy’s first interaction with the police in “Devil in a Blue Dress” is a good representation of the habitual treatment that Easy has received for much of his life.
After the girlfriend of one of Easy’s friends is found beaten to death (a night after Easy consummated an adulterous affair with her), Easy is approached at his home as he prepares to enter the front door.[52] The two officers who are there to talk to Easy order him to follow them,[53] but won’t tell him where they are going.[54] They refuse to tell Easy whether he’s being arrested.[55] When Easy protests that he has the right know where he is being taken, the officer makes his belief about Easy’s innocence absolutely clear when the officer states, “You got a right to fall down and break your face, nigger. You got a right to die.”[56] The officer then proceeds to beat Easy into submission before placing handcuffs on him.[57]
When Easy writhes uncomfortably in the back of the police cruiser as a result of the beating, one of the officers warns him that if Easy vomits in the police car, the officers will make him eat it off the floor.[58] Easy understood how to play the standard game that police officers played with black people – the officers would leave black people in the local holding cells for a while to sweat some fear into them, then would interrogate them to try to find out if they’d done anything bad.[59] In this encounter, though, Easy worries that they aren’t sweating him as a fishing expedition.[60]
Easy narrates his internal monologue and explains why he’s likely to be a victim of police independence and ‘justice-seeking.’ “I was worried because [the officers] didn’t follow the routine… I would try to look innocent while I denied what they said. It’s hard acting innocent when you are but the cops know that you aren’t. They figure that you did something because that’s just the way cops think, and you telling them that you’re innocent just proves to them that you have something to hide. But that wasn’t the game that we were playing that day. They knew my name and they didn’t need to scare me with any holding tank; they didn’t need to take my fingerprints. I didn’t know why they had me, but I did know that it didn’t matter as long as they thought they were right.”[61]
Despite Mr. Rawlins absolute cooperation with the police, their independent judgment that he must be lying allowed the officers to engage in brutal interrogation tactics clearly outside the scope of legal questioning. When Easy asks for clarification about what day the police are asking about when they question him regarding whether he has an alibi, an officer kicks Easy in the chest so hard that Easy (and the chair he is sitting in) are bowled over backwards.[62] When Easy tells them where he was and what he was doing, providing the alibi the police had requested, an officer punches Easy on the side of his face.[63]
As a supreme threat of violence (after already showing that they were more than capable and willing to use violence against Easy), the officers threaten that Easy is in so much trouble that they might just “take [his] black ass out behind the station and put a bullet in [his] head.”[64] When Easy begins to tell the officers anything about his life that he can think of, hoping that he’ll stumble across whatever the officers want from him, one of the officers flies into a rage, screaming racial epithets.[65] The officer, still in the grip of his rage, begins to beat Easy with abandon. Luckily for Easy, Easy manages to grapple with the officer and pin him to the floor.[66] Unfortunately for Easy, the other officer in the room then trains his pistol on Easy and orders the two combatants to part. To top things off, when the officers finally release Easy, he is left with no way to get back to his home without walking the distance across the city.[67]
Easy repeatedly has run-ins with the police in which these scenes of violence are repeated or referenced. The unjustified violence and law-breaking behavior of the police officers results in frequently tragic consequences for Easy and his friends. Following the same murder of the girlfriend of Easy’s friend, Dupree, Dupree is taken to the police station and interrogated roughly. When Easy sees him, Easy recognizes that Dupree has been beaten just as savagely as was Easy himself.
Easy recognizes that he has a history with the police and because of this history, has no particular interest in experiencing ‘justice’ at the hands of police officers in the future. In his mind, Easy comments about that history and his reluctance to engage people who might involve him in criminal activity. “But I wasn’t feeling honest. I had a long history with the police – and it wasn’t pleasant.”[68]
That unpleasant history continues in Mosley’s “Yellow Dog.” In “Yellow Dog,” Easy is suspected of being involved in several murders when bodies start showing up at the school in which he works as a janitor. The police attempt to interrogate Easy in his office in the school during school hours.[69] Easy arouses their suspicions further when he declines to tell the police the whole truth about certain conversations he’s had with a friend who’s gone missing.[70]
Easy complains that “[c]ops don’t mind pushing around men like me. That kind of pushing was part of their job.”[71] In a slow change from the moral intuitions of the justice-seeking officers of the 1940’s and ‘50’s showcased in “Devil in a Blue Dress,” the officers in “Yellow Dog” show themselves to be less concerned with race than their predecessors decades before, once again highlighting the fact that moral intuitions can shift depending on the times. Easy continues to describe the police officers tactics against him by pointing out this very change by saying, “It didn’t matter that [I] wasn’t a white man. Cops is a race all its own. Its members have their own language and their own creed.”[72]
Even though race might not play as big a role in the police independence as it had a few decades prior, the police depicted in Mosley’s “Yellow Dog” were still willing to place their own views of what constituted justice above the laws. When Easy is pulled into a police lineup and the witness fails to identify Easy,[73] the police still were willing to finger Easy for the murders under investigation and send him to the holding cells.[74] The cops even took the time to point out to Easy that the holding cell he’d be staying in held a vicious criminal who was currently being held for an especially violent offense.[75]
Rounding out a historical progression of Mosley’s views on racism, “Little Scarlet” involves several more interactions with the local law enforcement authorities, but unlike prior encounters, this time the police officers need Easy to help them solve a crime,[76] and can’t risk appearing to let racial politics enter into their actions for fear of setting off a serious race-riot. While the police officers clearly don’t like having to rely on Easy Rawlins to do their work for them, the situation demands that they do so.[77] The police still don’t like having to cooperate with Easy, and refuse to tell him where he is going, what he’s going to be doing, and who’s involved in the investigation when they first pick him up, despite his repeated requests for that information at the time.[78] Bolstered in confidence by his newfound status, even if it is only a temporary boost caused by circumstance, Easy Rawlins goes so far as to tease a police officer by taking a preferred chair in a conference room.[79] Easy immediately recognizes that he’s gone too far, and is only saved by the harsh voice of the offended officer’s superior ordering the man to sit down so that they could start the meeting.[80] Easy soberly reflects that “[i]f we were alone he would have drawn his pistol, I’m sure.”[81]
Fundamentally, there is little difference between the methodology of the police involved in Mosley’s stories and that of Detective Dave Robicheaux – both follow their intuitions instead of the law in an effort to do what they see as good. Each ends up causing bad consequences for those they deem as ‘bad,’ and allows frequent latitude with those whom they deem to be ‘good.’ The only real difference between the police in Mosley’s works and the protagonists in Burke’s works is that Burke’s detective has moral intuitions more in tune with a majority of modern readers’ upbringing.
IV PLATO, RAWLS, AND RESOLUTION
The question then faces the reader:
When faced with a situation in which a violation of the law may produce justice, ought one to violate the law?
Clearly, American history provides examples which serve to suggest that the answer is a clear ‘yes.’ Dr. Martin Luther King, Jr. repeatedly violated the law, and urged violation of the law, in support of following a higher, moral law – a law that would ensure justice.[82] Nonetheless, significant argument with substantial history behind them have been offered against this position.
Many of these arguments come from social contract theory. Social contract theory has many incarnations.[83] Social contract theory posits that individuals must do as their sovereign bids them because the individuals have consented to receiving the benefits of living in their society. This attitude is seen quite explicitly in the analysis given by the character of Socrates in Plato’s Crito.[84] In Crito, the character of Socrates has just been unjustly convicted by an Athenian tribunal for heresy and corrupting the youths of Athens with his ideas.[85] As the dialogue unfolds, Socrates is found sitting in his cell awaiting his execution. His friends, under the guise of visiting their doomed companion, reveal that they have planned an elaborate escape for Socrates that will save his life by smuggling him into exile. If Socrates follows their plan, he will end his days living in a Greek City-State far to the north of Athens, but if he declines their plan, he will pour hemlock into his ear as decreed by the Athenian court.
Socrates chose the latter, claiming that he is bound to the will of his government, under a most sacred duty, because he had consented to all actions taken by his government that benefited him, even when those actions had harmed the individual interests of some other citizen.[86] How, without being supremely selfish, could Socrates ever decry the actions of his government?
The view that it is always, or nearly always, wrong to violate established law, even to do something you think is right, has adherents outside of the ancient Greeks.
Provided that laws were arrived at in a fair manner, political-philosopher John Rawls argues that individuals must submit to law. “It will be recalled that this principle [fairness/justice] holds that a person is under an obligation to do his part as specified by the rules of an institution whenever he has voluntarily accepted the benefits of the scheme or has taken advantage of the opportunities it offers to advance his interests…”[87]
In reality, the view that law should be violated to serve a higher goal is a dangerous precedent. Because humankind does not have access to objectivity to make our own moral decisions, and because we frequently confuse our own moral intuitions with the objective ‘good,’ allowing individuals to supplant law with their view of justice is like leaving the fox to guard the henhouse. The potential for tyrannical abuse is great, particularly when it may be tinged with hatred, jealousy, greed, racial animus, or any number of other damaging influences created by the times in which the moral actor lives. Permitting such deviations from law sets an ugly precedent that can be used to accomplish all manner of abuses in the name of justice. In the end, we must reject the idea that doing justice in the short term is a laudatory goal. Only by following the law, and not our own personal conceptions of justice, can society move away from anarchy and toward the common good.
[1] JOHN RAWLS, A THEORY OF JUSTICE 3 (1999)
[2] See, John Arthur, Equality, Entitlements, and the Distribution of Income, in MORAL PHILOSOPHY 705 (George Sher, ed., 1996).
[3] Id. Desert is the philosophical concept that refers to the degree to which an entity deserves some outcome.
[4] Jone Johnson Lewis, Alexandr Solzhenitsyn Justice Quote (2006), at http://www.wisdomquotes.com/000467.html.
[5] See generally , MATT RIDLEY, THE ORIGINS OF VIRTUE (1998), and DAVID GAUTHIER, MORALS BY AGREEMENT (2006).
[6] See, Lewis, note 4, supra.
[7] JAMES LEE BURKE, THE NEON RAIN (1987).
[8] JAMES LEE BURKE, SUNSET LIMITED (1998).
[9] JAMES LEE BURKE, A STAINED WHITE RADIANCE (1992).
[10] See, BURKE, supra, note 7, at 83-85.
[11] Id., at 86.
[12] Id., at 87.
[13] Id., at 81.
[14] Id.
[15] Id., at 85.
[16] Id., at 85-86.
[17] Id., at 85-86.
[18] Id., at 86.
[19] Id.
[20] Id., at 81.
[21] Id., at 83.
[22] Id., at 87.
[23] Id., at 91.
[24] See, BURKE, supra, note 8, at 169.
[25] Id., at 166.
[26] Id.
[27] Id.
[28] Id.
[29] Id., at 187.
[30] Jone Johnson Lewis, Earl Warren Justice Quote (2006), at http://www.wisdomquotes.com/000467.html.
[31] See, Part I, supra. Justice is defined as the state in which the benefits and burdens of life are arranged according to an individual’s desert.
[32] See, BURKE, supra, note 9, at 210.
[33] Id., at 211-13.
[34] Id., at 210.
[35] Id., at 212.
[36] Id.
[37] Id.
[38] Id., at 213.
[39] Id., at 269.
[40] Id., at 302.
[41] See generally, ERICH FROMM, ESCAPE FROM FREEDOM (1941).
[42] Id.
[43] Id.
[44] WALTER MOSLEY, DEVIL IN A BLUE DRESS (2002).
[45] WALTER MOSLEY, A LITTLE YELLOW DOG (1996).
[46] WALTER MOSLEY, LITTLE SCARLET (2004).
[47] See, MOSLEY, supra, note 43, at 62-68.
[48] Id.
[49] Id., at 64.
[50] Id., at 65.
[51] Id., at 65-66.
[52] Id., at 113.
[53] Id., at 114.
[54] Id.
[55] Id.
[56] Id.
[57] Id.
[58] Id.
[59] Id., at 115.
[60] Id.
[61] Id.
[62] Id.
[63] Id., at 117.
[64] Id.
[65] Id.
[66] Id.
[67] Id.
[68] See, MOSLEY, supra, note 44, at 24.
[69] Id., at 71.
[70] Id., at 73.
[71] Id., at 142.
[72] Id.
[73] Id., at 153.
[74] Id., at 153-54.
[75] Id., at 154.
[76] See, MOSLEY, supra, note 45, at 9-20.
[77] Id., at 12-13.
[78] Id.
[79] Id., at 21-22.
[80] Id., at 22.
[81] Id.
[82] Nobel Prize Foundation, Biography of Martin Luther King, Jr. (1972), at http://nobelprize.org/nobel_prizes/peace/laureates/1964/king-bio.html
[83] Jean-Jacques Rousseau, On the Social Contract, in The Basic Political Writings 144 (Donald A.
Cress ed. 1988); John Locke, Second Treatise of Government (Richard Cox ed., Croft Classics, 1982); Thomas Hobbes, Leviathan (A.P. Martinich ed., Broadview Literary Texts, 2002); Plato, Crito, in The Trial and Death of Socrates: Four Dialogues 43 (Shane Weller ed. 1992).
[84] Id.
[85] Id.
[86] Id.
[87] See, RAWLS, supra, note 1, at 301.
