Law and order, based on the principle that the law exists for the protection or society’s institutions and not based simply on the protection of the individual, can lead to authoritarianism and self-righteousness dictated from above. As a rule, this is not a prevailing problem in criminal and civil law dealing with clear-cut infractions.
In the gray area of morals and mores, however, law can be tenuous. Yet at the same time individuals and sub-societies prone toward cults and lifestyles can be just as authoritarian and dangerous. In this sense, law must be invasive, not so much in behalf of accepted institutions but for the protection of duped individuals within the narrow scope of their sub-existence leading to irreparable harm to themselves and possibly others. Furthermore, the sub-institution may be criminally negligent.
The problem, of course, is determining the imperative to action. An argument against legal morality or moral legality setting up law — as indeed is the case in institutional and national history — as a function to perpetrate and perpetuate racism, political and religious persecution, holier-than-thou, fundamentalism and whatever rooted whim brings forth. The rule of justification for legal enforcement of morality is prima facie in face of the perversions in society. However, with justification springs qualification.
How can legal enforcement , which has two aspects bearing on punishment deprive a homosexual of life and liberty and still be justified? — inasmuch as punishment would not be commensurate with the private act of fornication or whatever else it is they do in private, particularly in light of the homosexuality running rampant in our prisons. Surely, no reasonable person would advocate castration, besides which the attitudinal posture of the homosexual, I suspect, would remain unchanged.
The other aspect, and by far the most lethal consequence is the fear hovering in virtue of this deterrent forcing the weaker into obedience, submission and by exposing them to totalitarianism in all endeavors. For, however repugnant homosexuality may be to general rationale today, tomorrow the rationale may find pre-marital sex, marriage for aging widows, masturbation, academic freedom cause for legal oppression. How many hid behind their fears twenty-odd years ago and proclaimed Senator Joe McCarthy a reasonable man?
Moreover, the utilitarian distinction here raises the question of which morality is to be enforced rather than the question should morality be legally mandated? For the rule of utilitarianism is that the punishment is justifiable only if the act of morality is harmful to others and not a question of punishment or justification irrespective of consequences. Therefore, in arguing that homosexuality jeopardizes a society’s existence by offending some blest with the knowledge of universal morality is citing the concept of justice as utility, even though there can be no justification in punishing private sexuality affecting the overt community of ideas; unless, of course, one is engaged in the act against his will or is a minor, but this would be enforcement of a criminal act.
The awkward position of a formalist arguing inconsistently with the tools of the utilitarian attempting to raise the question of morality by addressing the question of which morality to the righteous leaves the question of morality at the mercy of one who at any given time judges which action is moral or immoral.
Such righteousness, it would seem, generates the principle that the privacy and freedom of the individual is as sacred as the protection of the institutions designed for that very end. Dostoevsky wisely coined crime and [then] punishment. An act in itself is not retributive, but its dire effect on the other is.
And what do we do about this diversified society that have as many mores as law on the books? Any society which presupposes that mores are necessary to promote the health and stability of a nation is back to the 17th Century bending to the will of the Puritans. Mores and cultural sects have no place in the philosophy of law. As abrasive as it may be to public opinion, respecting the cultural relativity within each society must endure just as a parents must grimace over the latest fad of their children.
Though all of us to a degree wish not to be at odds with the world, we do not reside in a perfect world and some acts that deviate from the mores are not morally right or wrong necessarily. Twenty years ago if I chose not to wear a tie I would have been seriously reprimanded, though I would have been wrong in the context of the white-collar world, the act in itself cannot be taken seriously and morally however rightly construed as an act of mild rebellion against the facade of peculiar mores.
A beautiful girl in a sorority of ugly ducklings is certainly upsetting to the stability of that institution but her wilful act of applying for acceptance cannot be considered wrong. The practice of killing the agéd in an Eskimo village is to promote the health and stability of its tribe, but to accept the continuance of this practice in light of another alternative offered by the influx of affluence, say, by the discovery of oil, would — though consistent with the practice whose original motive tends to be forgotten — would unquestionably have to yield to the higher principle of life, relegating the ancient practice to immorality.
If it were true, for instance, that seventy-five percent of Italians attend church on Palm Sunday only, am I to assume, though I attend every Sunday, abstaining from church-going during my summer visit to Rome upon discovering that the family I am staying with is indeed devoted to the mores of the seventy-five percent? Or would the argument turn to the higher institution of the Catholic Church that indeed urges all Catholics to attend every day, even though this practice in reality appears limited to nuns, friars and old ladies. Of course I could appeal to the mores of tourists for help, after all, when in Rome I would like to see the inside of St. Peters. There is a time, however, when one must take the bull by the horns by appealing to a principle within oneself and run the risk of insult and injury.
Still the practice of borrowing from one another seems to have a utilitarian value, if, not essential, in developing a "better" world. Surely, the United States owes a great deal to Britain’s sense of justice and its philosophy — I suspect, it is not fashionable to admit to the latter. If neither case, one cannot deny the value of the Beatles to America's institution of modern music, and what would Tom Jones be without the Afro-American “soul?”
And though it is true that human nature dictates that one must eat and the Italians dictate by enculturation what and how one must eat, one whose relative culture dictates that spiced spaghetti sauce alarms the stability of one’s functions, might discover that his health and well-being surpass the well-being and stability of his hostess. Therefore one’s ethical and epistemological theory will determine the significance one will attach to cultural relativity.
On the other hand, the cultural relativity of cutting classes and illegal absences are serious violations of policy in the school where I teach. If a student cuts a particular class ten times during a ten week grade report he/she automatically receives an F irrespective of the work made up. If one is illegally absent for the entire day tenfold he/she receives F’s in all classes. [The student is encouraged by the staff to bring in notes for past absences, encouraging forgery, or perjury by the parents.] Moreover, when a student is chronic in either cutting or illegal absence, usually thrice, he is automatically suspended for three more days!
Further down in the "bag of virtues” a student is to respect his peers and teachers; yet if a student is assaulted by another it is “too difficult to determine who threw the first punch” even though there may have been only one punch! They are simply branded combatants and sent home for three days. When a student verbally abuses a peer or a teacher, aside from the disciplinary action taken by the teacher, there is little action on the part of the administration.
Dozens of memos have come back from the desks of administrators with marvelous witticism: “Nathaniel promises never to call you a 'mother-fucker’ again." or “Have spoken to Mary and she’s been uptight lately owing to her morning sickness. Have patience, promises she’ll be on home tutoring when she’s five months." And “Harriet’s mother is simply appalled by the mere thought of inter-racial dating; therefore, Harriet is not allowed out at nights. Your class is the only chance they have together. George promises not to 'fool around’ with her anymore — in your class.” There is obviously, in light of the inaction by the staff, no summary rules and certainly no rules of practice, other than virtually anything goes.
There is not only an inconsistency in procedural injustice, but an absence of understanding in the principle being violated. Absence is a self-administered injustice as a rule. Where a student is wilfully kept home by parents nothing whatever is done in the way of administering justice to that parent. The procedural injustice adding fuel to the fire by preventing a student from coming to school because he does not come to school seems rather lacking a rational strand somewhere.
The interpersonal injustice exhibited by the defiance of authority and disrespect for others is transformed into administrative procedural of hands off. Permissiveness toward those who attend school but do not know how to act when they are there and the negative procedure against those who seldom attend suggest that the administration becomes paranoid anytime a student shows an unwillingness to join the chaos of the rest of the school. What actually has happened by the time a student reaches high school is that he has exhausted "the bag of virtues” and has realized the contents to be without substance. A student is starving for virtue in action and by example; virtue is not a slogan on the wall or a forgotten plaque in a lobby; it has to be seen in the harmonious action of others and the harmony of the soul within. But as long as a school exists for the perpetuation of itself and a way of life subsumed by corporate and political control of what actually is moral education is a canary in a tiger’s cage.
The rule that all should attend classes may well be justified; the curious thing here is that it is seldom justified. Students complain that missing a class here and there does not mean anything since little learning appears to take place in the classroom. Justification, therefore, does not rest with the student's action, but with the teacher and the administration as to why the student belongs in class. If the teacher insisted the student make up work lost from being absent, the student may soon begin to realize from the degree of difficulty in doing; without the benefit of classroom dynamics that in the teacher to student to student to teacher exchange lies the key to learning. Moreover, he should be made to return to school immediately without a suspension interlude, and the retributive make up should be more than enough. On the other hand, one who shows evidence of being unable to cope with the social dynamics of a school, may need to be removed from the scene for a while. But unsupervised suspension and without some rehabilitative therapy during the interim would seem to be but a period of sulking in Achilles’ tent.
Absence from school and cutting are not prevalent among those who have insight into moral development. Nevertheless, they too may never see any justification for going to classes other than for the simplistic rule of practice in acknowledging authority. However, they could find ample justification for not going to class if thoroughly turned off by uninspired teachers. There reasoning is that they feel more at home with themselves or with those with common intellectual interests wherein they uncover worlds not tread on in a classroom.
True these cases are rare; for moral education is sorely lacking in the schools, nay, everywhere, and few students have had the chance to develop disobedience for the right reason. Still, there are many like young Hamlet who suspect that much is not right with the world and turn to themselves for a sense of right.
