Law without conscience ignores our humanity
Hard to believe, but a mere six inches of snow paralyzed the capital of the world on Nov. 15. While the wintry mix was unexpected, it was not a very big storm, not by New York standards anyway. But like a good, yet cruel joke, the storm had perfect timing, arriving just as the afternoon commute was getting underway. A pile-up on the George Washington Bridge shut down one of the busiest bridges in the world, just as the busiest bus station in the world, the Port Authority Bus Terminal in Manhattan, was canceling trips. People abandoned their cars, others slept in their offices, and many more saw their two-hour commutes extended to eight or 10 hours or more.
But there were some scary moments. One school bus, according to The New York Post, left its school in Manhattan at 2 p.m. and didn’t get all its passengers home until a little after midnight. Along the way, the kids asked to stop for food and to go to the bathroom but, reported The Post, “the bus matron and driver refused to halt.” When some desperate students said that they might need to relieve themselves on the bus, the bus matron told them that it was against the rules and that she would lose her job if they urinated on the bus. The Post didn’t say just what happened next, but everybody did make it home safely...eventually.
I’m sure this bus matron is a kind and hardworking person. She was in a crisis and was doing the best she could in very trying circumstances. I think it is also safe to say that if we were in the bus matron’s shoes, most of us would have stopped the bus in order to allow the children to grab some fast food or, at a minimum, perform natural acts. She, however, chose otherwise, citing the regulations.
In a secular, moralistic political culture, law displaces our conscience as the decision maker.
But would she really have lost her job? If she had stopped the bus, surely her manager would have recognized the extraordinary circumstances and would have agreed that a reasonable person would say, “The rules be damned; we’re pulling over to eat and pee.”
Or perhaps not. I don’t know what would have happened in this specific case, but I know enough about contemporary American life to concede that she might have been fired, even if any other reasonable person would have stopped too. One of the consequences of living in a secular world, one closed off from the transcendent, is that our politics becomes more moralistic. In a secular, moralistic political culture, law displaces our conscience as the decision maker.
“By exiling human judgment in the last few decades, modern law changed roles, from useful tool to brainless tyrant,” Philip K. Howard writes in The Death of Common Sense: How Law Is Suffocating America. “This legal regime will never be up to the job,” Howard says, “any more than the Soviet system of central planning was, because it can’t think.” Yet thinking and deliberating in conscience is what makes a human being a moral actor. In other words, if the bus matron is not a morally autonomous agent, acting in conscience, then why is she on the bus in the first place? Why not just program the rules into a robot and have it tell the kids that they have to hold it in no matter what?
We are either human beings, created in the image and likeness of God and endowed with moral agency and free will, or we are merely machines.
Once upon a time, the law accounted for our moral agency, but now it more often restricts it. The result is a power play, one in which someone wins and someone loses. “Uniformity in the common law, consisting of broad principles like the ‘reasonable person’ standard,” wrote Howard, “generally permits adjustment for the circumstances. This type of uniform principle is almost synonymous with fairness. Uniform application of a detailed rule, on the other hand, will almost always favor one group over another.” In other words, when the rules do not allow for human agency, creativity and even human error, then the rules become ends in themselves, which mainly serve the rule makers. When that happens, we will regulate and litigate more and more. A recent op-ed column in The Washington Post, for example, called for legal penalties for people who are dishonest in their profiles on dating apps, suggesting a legal standard “modeled on how we treat misleading commercial branding.”
It should be obvious that this way of thinking reduces a someone to a something. We are either human beings, created in the image and likeness of God and endowed with moral agency and free will, or we are merely machines, programmed through laws and regulations, mere code written by the programmers.
After the storm, The New York Post spoke to an expert at New York University about the region’s transportation network. What Mitchell L. Moss said of New York’s planes, trains and automobiles could also be said of human beings in a world where law displaces conscience: “The system doesn’t have any slack in a crisis. We’re not really equipped to handle a breakdown in one part when it has to be absorbed by other parts of the system.”
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