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Boris Johnson and the Hypocrisy of Lawmakers

photograph of Boris Johnson making a face

There is something ridiculous about the idea that Boris Johnson might have to resign for hosting a few parties. You might think that it is his policies, or his saying he’d rather “let the bodies pile high” than institute further lockdowns, that should see him go. But parties?

The problem with these gatherings is that they violated COVID regulations, regulations set by Johnson and his party. And the fact that he violated his own decrees (nobody takes seriously his claim that the parties were, in fact, work events) raises an interesting question: what’s so wrong about lawmakers breaking the law?

The first obvious, but bland, answer is that – in a fair legal system – breaking the law simply is wrong, and it’s wrong for lawmakers to break the law in just the same way that it is wrong for anybody to break the law.

This might be a reasonable explanation for why it is wrong for lawmakers to break some laws. For instance, if a lawmaker breaks the speed limit, that seems bad in the same way as if an ordinary member of the public breaks the speed limit. This isn’t just because it is a minor offense. If a member of parliament went and murdered someone, it would be a grave moral wrong, but I don’t think there would be anything especially wrong about it.

In these cases, the wrongness involved is simply the (appalling or minor) wrongness of breaking the law. But there seems to be something especially bad about Johnson’s behavior.

What I think is key is that there is something more involved when a lawmaker breaks a law they have set. Gideon Yaffe has an interesting argument that could lead to this conclusion. He thinks that, since the law is created by citizens in communities, we are complicit in the creation of these laws. But some people are more complicit than others. For instance, kids aren’t very complicit at all in creating the law (since they can’t vote). Yaffe thinks that the more (or less) complicit one is in creating a law, the stronger (or weaker) that law’s reasons apply to you, and the more strongly (or weakly) you should be punished for violating it. And someone like Johnson was maximally complicit in setting England’s COVID laws.

But I’m not sure I’m persuaded. I simply do not buy Yaffe’s “complicity” argument: I don’t see why we need to suppose that the more say someone has over the law, the more it binds them. And I think there is something to be said for the idea that we are all equal before the law: politicians should be punished, but they shouldn’t face any harsher legal punishment than Joe Bloggs.

It’s also important to note that there isn’t really a push for Johnson to see legal punishment. Although some people want to see that, the real focus is on him facing a political punishment. They want him to resign in disgrace. And I think that what explains this pressure is that Johnson has shown that he cannot take his own laws seriously – and taking the law seriously is the point of being a politician.

We can get to this idea by thinking about hypocrisy. Hypocrisy is problematic in politics because it undermines how seriously we take someone. During the 1990s, John Major’s government had a campaign called “Back to Basics,” which aimed to underscore the importance of traditional values like “neighbourliness, decency, courtesy.” Inevitably, Major’s cabinet was then beset by scandal.

The behavior of Major’s cabinet suggested that they did not take these values very seriously. But this was a moral campaign, the difference that compounds Johnson’s case is that his hypocrisy involves the laws he set.

Johnson was not just a hypocrite, he was a hypocrite about the laws he set, laws which are supposed to protect the public. To return to an earlier example, there might not be anything especially wrong if an ordinary lawmaker speeds, but a lawmaker elected on a platform of making the roads safer might do something especially wrong because they are being a hypocrite. By being a hypocrite, this lawmaker shows that she does not – despite her claims – really take speeding laws seriously, she does not act as though they are important. Likewise, by attending parties, Johnson showed that he did not take these laws seriously, and – if the purpose of the laws is to protect the public – he showed that he did not care about protecting the public.

(Alternatively, he showed that he thinks he is special, different from the rest of us: that he can party whilst his laws stop grieving relatives from saying goodbye to their loved ones. I’ll set aside this possibility.)

Johnson (as well as the hypocritical speedster) demonstrated a lack of care about the underlying issues: protecting the public (or keeping to the speed limit) is not important to him. But it also strikes at the strength of this law. Our system of law is not supposed to be simply a matter of force, where the most powerful get the least powerful to comply with what they want. Rather, the law is supposed to provide us with genuine reasons to act, that are somehow linked to the good of others in our community. Nowhere is this more clear than with attempts to curb the ravages of COVID-19.

Everywhere, there is skepticism about COVID-19 laws. They inherently curb our freedoms. By not taking COVID-19 laws seriously, Johnson suggested that the laws are not to be taken seriously. But it is only by taking good laws seriously that they remain good laws, laws which govern us as rational agents rather than as those merely fearful of greater power.

That is why Johnson is under political pressure to resign: Johnson has shown himself incapable of taking seriously the laws he creates, which is the entire point of being Prime Minister. His behavior undermined the justification of the laws he set.

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The Ethics of Pardoning

photograph of Trump pardoning Thanksgiving turkey

Back in October, I read the single greatest news article that I have ever read. It had everything you could want in a story: courage, a murderer turned hero, a thwarted terrorist attack, the London Bridge, a narwhal tusk, and a royal pardon. If you have not already read the article, you absolutely should; each paragraph is better than the one before.

But the story is not only a thrilling and satisfying narrative, it also provides us an excuse to talk about the ethics of pardons. This is a good thing, because I expect that, as happened in previous presidential administrations, we will see a flurry of presidential pardons before president-elect Biden is sworn in. It is always a good idea to think carefully through your principles before there is some controversy where you need to apply them. Otherwise it is far too easy to shift into principles that end up siding with your political tribe after a controversy arises.

Black’s Law Dictionary defines a pardon as “the act or an instance of officially nullifying punishment or other legal consequences of a crime.” In the United States, the power to pardon is possessed by the executive. The president can pardon federal crimes, while governors can pardon state crimes.

When we look at the ethics of pardoning, there are two types of questions we might ask. We might wonder about how extensive the power to pardon should be. These are questions framers ask when structuring a constitutional system. An example question is whether the president should be empowered to pardon him or herself? We might also wonder whether any given pardon is a good idea. These are questions that the executive branch asks before issuing a pardon. An example question is whether President Ford should have pardoned President Nixon. Note that these two questions come apart. Just as I can simultaneously think it is a really bad idea to own a gun and also think people have extensive rights to own guns if they choose to, so I can think that most pardons are a bad idea and yet also think the president should have broad power to pardon.

There are fascinating questions about how extensive the presidential power to pardon should be. But here I want to look at the second set of questions. Suppose that the president is empowered to pardon someone, when is it appropriate to exercise that power?

One context where pardoning might make sense is when the president believes a criminal trial was unjust, either in process or outcome. A recent example of this is President Trump’s posthumous pardoning of the Boxer Jack Johnson. While there are many checks internal to the judiciary, the presidential pardon is probably the largest external check on incorrect judicial decisions.

Another context where pardoning seems justified is where the judicial branch properly applies the law, but where peculiar circumstances make the application of the law unjust. This is the justification for the presidential pardon given by Alexander Hamilton in the Federalist Paper No. 74. Alexander Hamilton explains the power to pardon is important because criminal codes have a “necessary severity” and so “without an easy access to exceptions in favor of unfortunate guilt” justice would often end up too “cruel.”

Of course, neither of those two justifications are operative in this narwhal story. According to the NYTimes, in the U.K. “pardons for early release are generally recommended by officials in exceptional situations, such as if a prisoner risks his safety to prevent death or serious injury to another.” Here, the idea is that pardons might be a way to recognize something particularly remarkable about an individual.

And indeed, many pardons do seem to track something about the individual. For example, it is not uncommon that famous people are much more likely to receive pardons for crimes. This may in part be in recognition of their accomplishments, but it is also simply a consequence of being much more likely to be brought to executive attention.

This brings us to one of the biggest worries about the use of pardons, namely that they are idiosyncratic and thus seem in tension with a commitment to equal treatment under the law. Suppose I am also in jail in the U.K. for murder. It could be that I, like Steven Gallant, turned my life around, am close with my child, and act as a role model and mentor. However, none of that will be enough to secure a pardon, I also need to have the opportunity to do something heroic. Opportunities for heroism, however, are not evenly distributed throughout society. And thus some people will have access to pardons that others do not, merely as a matter of luck.

Indeed, this worry about the idiosyncratic nature of pardons applies even to pardons designed to act as a check on the judiciary. This issue is examined in detail in The West Wing episode “Take This Sabbath Day.” President Bartlet faces the question of whether to commute the sentence of a man soon to be executed. President Bartlet, who is Catholic, believes the use of the death penalty is unjust. However, he also worries about punishment for a crime changing based on the beliefs of whoever happens to be president. Toward the end of the episode he expresses his frustration:

“I commute this guy, for no particular reason other than I don’t like the death penalty . . . And the next president sees it in a different way. . . .  We cannot execute some people and not execute others depending on the mood of the Oval Office. It’s cruel and unusual.”

So what should we think about this worry concerning equal justice?

It is actually a tricky legal principle. Is it unjust to give a good thing to one person, if you cannot also give the same good thing to others who are equally deserving? Obviously, certain motivations for giving the good thing only to some people are unjust. For example, if you pardon one person and not the other because the one person is famous, then you are doing something wrong. But what if you would be willing to pardon anyone in that situation, you just know you will only hear about famous people. Then is it still unjust to pardon the famous? This question has important parallels. It would be unjust if I chose to only give money to white beggars and not to black beggars. But would it be unjust if I gave money to every beggar I see, I just also happen to live in a part of town where almost all the beggars I see are white?

It seems plausible that in the interpersonal case, one does not need to be too concerned about the unequal application of personal charity. However, it also seems plausible that in cases of criminal law, we have special reason to maintain not just justice before the law, but also the equality of all persons. It matters, if for no other reason that it not look as though the rich and famous get access to extra opportunities to avoid punishment.

If you think that it is important that everyone have an equal chance before the law, then the use of the power to pardon should be extraordinarily rare. If, instead, giving a good thing to someone is still good, even if you can’t also give it to another, then probably the presidential pardon is an underutilized tool.

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Under Discussion: Law and Order, Human Nature, and Substantive Justice

black-and-white photograph of lady justice

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Law and Order.

For many, the end of this week marks the passage of a six-month period of American history characterized by throbbing dystopian existential dread. The pandemic has been the score to a dark production that, when the spotlight was hot, turned out to be a series of character studies that no one asked for nor were particularly interested in watching. With hundreds of thousands dead and millions more left with lives permanently affected by the virus, the richest among us have become much richer not just during the pandemic, but because of it, and many who were thriving at the start of this year now find themselves evicted from their homes with nowhere to go. What’s more, police brutality and systemic injustice have packed our streets with protesters demanding meaningful change. Looting and rioting have occurred, which has motivated the federal government to respond with force not just against people violating the law, but against reporters and peaceful protestors as well. Against this backdrop of chaos, the President of the United States clenches his fist and calls for “law and order.”

In Plato’s Republic, Glaucon, one of the characters in the dialogue, provides a justification for the existence of laws that paints a grim picture of human nature. He argues that being unjust is in everyone’s interest, presumably because doing so allows a person to satisfy all of their desires. However, in a world populated by other individuals possessed of strength and skill, no single individual can get away with being unjust all of the time. This is why laws are necessary. Glaucon says, “When men have both done and suffered injustice and have experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither; hence there arise laws and mutual covenants; and that which is ordained by law is termed by them lawful and just.” If Glaucon is right, we are all, at our core, interested in promoting our self-interest, and we relinquish our ability to do so only so that we won’t be harmed by others attempting to do the same. Without the strict enforcement of the laws, we will inevitably descend into division and outright battle with one another — it’s in our very nature to do so.

If this is the right way of viewing things, then the state is justified in acting forcefully to protect us from ourselves and from each other. The government is the only entity preventing us from tearing one another apart for our own selfish reasons. When people call for law and order, they are calling for governmental intervention against perceived danger at the hands of people who they view as scarcely more civilized than beasts. One important corollary of this kind of view of law and order is that executing the law, whatever that law might be, is just.

There are a number of serious problems with this theory regarding the relationship between law and justice. First, some laws are morally and rationally indefensible. In these cases, the cry for “law and order!” is a cry to violate rights or to bring about a worse rather than a better state of affairs. For example, when slaves that escaped from captivity were returned and punished when captured, technically demands for “law and order” were being satisfied. This example highlights the need for a more substantive account of justice according to which just laws are not just agreements between self-interested persons, but instead are designed to promote some objective good or to prevent some objective harm.

Second, this kind of demand for “law and order” doesn’t do anything to ensure fairness in practice. This is because the entities that people are inclined to describe as “beastly” and “threatening” are determined by prejudices and tribalism. Calls for “law and order” tend to be demands to prevent or punish certain kinds of crimes committed by certain categories of people — usually poor people and members of minority populations. People don’t want to see vagrancy, public intoxication, and petty crimes on their streets, but they don’t make much of a fuss about corporations violating environmental regulations in ways that endanger the health of members of nearby communities and create unsafe living conditions for future generations. People want crimes against property to be punished but aren’t up in arms about the losses people experience due to insider trading and other kinds of white-collar crime. People want populations that they view as “scary” out of their neighborhoods, but they aren’t concerned about whether individuals and institutions doing significantly more harm end up getting away with it. Corporations and men in suits don’t tend to frighten people.

People who demand “law and order” often want proportional retributive justice for the members of the groups that they find threatening. The more power, wealth, and privilege a person has, the less likely they are to be punished severely. For example, consider Felicity Huffman, a rich actress who committed fraud to get her daughter into a good college. She was sentenced to 14 days in prison. For rich people who can afford good representation, the criminal system is a revolving door — they are out before they even have time to process the fact that they were in. Privileged populations almost never face society’s most serious punishments. As Supreme Court Justice Ruth Bader Ginsburg famously said, “People who are well represented at trial do not get the death penalty.” Good representation is expensive.

At the end of the day, if “law and order” is just a social construction that people agree to protect their own interests, then the entities with the most power in society will see to it that the laws end up protecting their interests first and foremost. After all, we don’t all actually consent to the laws. Many citizens are politically disenfranchised because of their life circumstances. Representatives rarely end up actually speaking for these people.

The picture of human nature according to which we are each self-interested individuals protecting ourselves from harms caused by other self-interested individuals is psychologically impoverished. We are beings that can and do care about others. We are capable of empathy and altruism. Our criminal justice system could be a real justice system, where that term means something more than shallow retributivism. To protect the well-being and basic dignity of all people, the call should not be for “law and order!”, but for “Justice!”, which is rarely the same thing.

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First Nations in Canada and the ‘Duty to Consult’

Photograph of First Nation people in Vancouver protesting

On Thursday, October 11, Canada’s Supreme Court issued a judgment which, some argue, has turned back the clock on First Nations’ rights to pre-1982. The Mikisew Cree Nation of Alberta contended against the federal government that Canada’s enshrined ”duty to consult’ with First Nations peoples should apply to the legislative process in constructing bills that impinge on Aboriginal or treaty rights. In a majority 7-2 ruling, the Supreme Court decided against the Mikisew Cree First Nation’s claim, citing in their decision the separation of judiciary from legislative powers.

This lengthy legal conflict began in 2012, when Stephen Harper’s Conservative administration passed controversial omnibus bills C-38 and C-45. While omnibus bills are not unusual in Canadian legislature, these bills were contested for their extraordinary length and scope. They radically reshaped Canadian environmental policies. Among other things, bills C-38 and C-45 withdrew Kyoto protocol commitments, removed protections on ninety-nine percent of Canadian waterways, ransacked the existing Canadian Environmental Assessment Act, and struck down existing rules to preserve fisheries and endangered species. This removal of protections applies to resources in First Nations’ territories, directly impinging on Aboriginal and treaty rights.

These two omnibus bills triggered in their wake a nation-wide protest and environmental movement begun by Indigenous, Métis, Inuit, and allies called ”Idle No More”. Massive cuts to environmental regulation moved the Mikisew Cree First Nation in Alberta to take the federal government to court. The Mikisew argued that the “duty to consult” should include the legislative process (applying to the passing of bills like Harper’s unwieldy omnibuses), and not just the executive and implementation stage of projects.

The Mikisew First Nation had the weight of international standards on their side, as the foundation of the “duty to consult and accommodate with Aboriginal peoples” is upheld in the United Nations Declaration on the Rights of Indigenous Peoples. (As an aside, Canada was initially one of only four nations that objected to this declaration, citing concerns that First Nations would be acknowledged veto power in decisions that affected natural resources within First Nations territories, though Canada has since got on board with the declaration as of May 2016).

Despite this reluctance from the federal government to endorse international norms on Indigenous rights, the overall direction of Canadian jurisprudence has been to uphold the principle of duty to consult in both federal and provincial contexts. This ”duty to consult” itself was a sign of progress in an otherwise oppressive settler-colonialist history. By dint of diligent interrogations by First Nations reacting to Canada’s assimilationist policies, Canadian jurisprudence has steadily moved towards the acknowledgement of First Nations’ inherent prior rights and treaty rights.  Indigenous rights were officially recognized in Section 35 of Canada’s Constitution Act of 1982.

Pamela Palmater, Mi`kmaw lawyer and Indigenous governance professor, sees the October 11 decision as a major reversal of this hard-won progress. While the majority decision cited the separation of judicial from legislative powers in their decision, she writes: “Isn’t the whole purpose of reconciliation—at least from Canada’s perspective—supposed to balance constitutional rights and principles and find a way to make them work together?” Dialogue and reconciliation are, after all, core foundations of Aboriginal and Canadian culture.

Dwight Newman, law professor and expert on Indigenous rights in law, notes that the decision is not conclusive. While it is true that 7-2 judges on the Supreme Court ruled against the Mikisew, their legal reasoning differed. Three of the majority ruling, Justices Andromache Karakatsanis, Richard Wagner, and Clément Gascon, deferred to the ”honour of the Crown” – a principle underlying the duty to consult – that could invite future litigation and re-negotiation.  Dissenting justices Rosalie Abella and Sheilah Martin asserted that the ”honour of the Crown” permeated all relationships between the government and Indigenous peoples, entailing the duty to consult at the legislative as well as executive levels.

Mikisew First Nation representative and director of Government Industry Relations, Melody Lepine, expressed trepidation at the Court’s consignment of Indigenous rights to ambiguity: ”In my several years of working with the federal government and with the provincial government to try to force them to consult, there is no honour, there is no willingness, and it has been a complete struggle… I have no faith that the government will do the right thing.” This sense of betrayal was echoed by Mikisew lead council Robert Janes, who noted that the SCC ruling displayed a missed opportunity for Canada to engage First Nations as committed partners. As it stands, this decision means that First Nations will have little resort but to litigate unilateral legislation that has already been passed, ensuring the continuation of an adversarial, burdensome, and costly model of feedback.

The Mikisew ruling is a setback for all First Nations in the process of reconciliation, but it should also be a wake-up call for Canadians. The political and legal struggles of First Nations in Canada recurrently show that real, meaningful, decision-making power comes from obtaining a place at the table. They exemplify the key importance of what John Rawls called “procedural justice,” the ability to participate in governance processes as a means of ensuring fair outcomes.  Procedural justice also satisfies a fundamental principle of recognition, in allowing concerned parties to have a say in their fate. It is time for Canadians to campaign for legislative mechanisms that reconcile procedural justice for First Nations communities, i.e. processes which meaningfully include First Nations’ peoples at every level of decision-making that impacts them.

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Should the United States Supreme Court Be Abolished?

Photograph of the US Supreme Court framed by shrubbery

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

The Supreme Court is back at the forefront of political debate given the recent string of contentious decisions affecting key parts of the President’s political agenda (the Travel Ban), the culture wars (Masterpiece Cakeshop), and the labor movement (Janus). Even more, the recent announcement of Justice Kennedy’s retirement means that the Supreme Court’s ideological balance is likely to sway further to the right — and it may stay that way for some time, given the justices’ lifetime appointments. This makes landmark decisions such as Roe V. Wade vulnerable to being overturned. The time seems ripe for reflection on the moral and political justification for having a Supreme Court with its ultimate power of judicial review. Is this institution so undemocratic that it ought to be abolished in favor of majoritarian procedures for deciding the thorniest social issues of the day? Continue reading “Should the United States Supreme Court Be Abolished?”

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What Can be Done about Human Trafficking?

On July 23, 10 people were found dead in the bed of a swelteringly hot tractor-trailer found in a WalMart parking lot in San Antonio, Texas. Authorities found 39 people in the vehicle, but had reason to believe that there had at one time been as many as 100 in the small space.  All of the individuals appeared to be suffering from heatstroke, and many will likely have related injuries and other health problems from which they will suffer for the rest of their lives.  It appears that the individuals involved were undocumented immigrants, seeking to gain access into the country illegally.

Continue reading “What Can be Done about Human Trafficking?”

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Alcohol Legislation in Utah: Drunk with Power?

The United States has long struggled with a set of deeply divided attitudes toward alcohol.  To be sure, alcohol can be quite dangerous, so it is certainly reasonable to be cautious and concerned about its use in certain contexts.  On the other hand, one of the clear lessons taught by our experiment with Prohibition is that individuals feel that restrictive alcohol policies constitute unwarranted violations of their autonomy.

Continue reading “Alcohol Legislation in Utah: Drunk with Power?”

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Convicted Officials and State Pensions

In the state of New York, former public officials who have been convicted of misconduct in office can still apply for their pensions. This is due to part of the state constitution in which a public official cannot be removed from the pension system once they are a part of it. As detailed in an op-ed in the New York Times, many legislators and people have questioned whether allowing prisoners to claim their pension is ethical.

Continue reading “Convicted Officials and State Pensions”

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Can You Wear Medals You Didn’t Earn?

A California court ruled in favor of a ex-Marine who was wearing military medals that he did not earn. The ex-marine, Elven Joe Swisher, has the right to wear the medals, the court says, even if they were not earned during his service. This on the basis that denying him the right to wear the medals is in violation of his free speech guaranteed in the constitution.

Continue reading “Can You Wear Medals You Didn’t Earn?”

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Should Minors Stay in Adult Prisons?

In many states, minors charged with certain crimes can be tried as adults. Although some of the minors who enter the system are convicted of serious crimes, many are charged with non-violent offenses. The argument for trying minors as adults is that it ensures public safety – however, research shows the opposite. In Jessica Lahey’s article in The Atlantic, the issues with trying and housing minors as adults are laid out. Is it really ethical, and even for the societal good, to try and imprison any minor as an adult?

Federal laws prohibit the housing of juveniles alongside adult prisoners, but many states do it anyway. This housing situation causes minors to be far more likely to be sexually abused and suffer violence from inmates and staff alike. The National Inmate Survey states that 1.8% of 16 and 17 year olds imprisoned with adults have suffered sexual abuse in prison, and 75% of those cases have been victimized by staff. This information alone is enough to question the morality of imprisoning a minor as an adult. In order to comply with federal laws that say minors must be housed in a separate section than regular adult inmates, many states transfer their juvenile prisoners out of the state. This causes the minor to potentially lose access to visits from friends and family, and also contact with his or her lawyer. Losing contact or access to a lawyer – a right guaranteed in the constitution – puts the minor at risk for being unable to report any abuses and in an even more disempowered position. They also lose the emotional support provided by friends and family, which makes the prison experience easier from a psychological standpoint. This lack of contact creates psychological stress and trauma that affects minors very dramatically. Minors imprisoned in adult prisons also are unable to participate the rehabilitative programs provided in the juvenile system, which offer vocational training, counseling, and education that makes re-entering society as an adult simpler. In fact, minors who are tried and imprisoned as adults are 34 times more likely to re-offend; this begs the question of whether trying minors as adults offers any benefit to public safety at all.

Denying certain minors the services their peers receive may be unethical, as it arguably sets up a certain group for failure or selects a certain group to be more likely to suffer stress and trauma. While certain minors commit very serious crimes that warrant consideration, non-violent offenders who are tried as adults should be allowed the same services as their peers, and offered a chance at rehabilitation. The juvenile justice system was created for a reason, and therefore should be utilized in the vast majority of circumstances.

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Marijuana’s Pesticide Problem

A wealth of information, both reputable and otherwise, can be found about the health effects of marijuana. Amid claims that the drug can cure cancer and studies documenting its negative health repercussions, it is sometimes difficult to get a sense of just how using marijuana could affect one’s health. However, one of the most clear-cut health concerns involving marijuana may not even stem from the drug itself. According to The Atlantic’s Brooke Borel, every time marijuana users light up, they are not just inhaling the intoxicating smoke. With it also comes sometimes-dangerous levels of pesticides – chemicals that, at least for now, go almost completely unregulated.

Continue reading “Marijuana’s Pesticide Problem”