Extralegal Morality

Jordan Peterson (again), the evolution of law, and a bit of Ayn Rand.

I’ve recently written an essay on Jordan Peterson, which, I hate to admit, was partially inspired by an interaction I had on Twitter. I encountered a criticism of Peterson which hit a nerve in me—an indication that the algorithm was working as intended. The tweet insulted Peterson’s intelligence on the basis that he prepared for a debate with Slavoj Zizek by reading the Communist Manifesto. Now, I am easily annoyed by cheap name-calling; criticism should be aimed at ideas, not at the person saying them. Besides, to me, reading the Communist Manifesto in preparation for a debate about Marxism seemed like a perfectly reasonable thing to do. I assumed that Zizek was a Marxist, and, having suffered through some Marx while obtaining an undergraduate sociology degree, it seemed admirable to me that Peterson had braved the entire document. Against my better judgment, I came to Peterson’s defense. Afterwards, I watched the debate.

It turns out that I had made the same error in my response to this tweet as Peterson had when preparing for the debate: we both assumed that Zizek’s beliefs and Karl Marx’s beliefs were the same. When preparing for the debate, Peterson made assumptions about Zizek’s philosophy based on an ideological label that had been attributed to him, and challenged the ideology, instead of challenging Zizek. This was a grave error, and ironically, one that Peterson warns against extensively in his lectures. Peterson spoke first in the debate, and articulated an excellent critique of the Communist Manifesto and what one might call “orthodox” Marxism. However, he found himself arguing a straw man. None of Zizek’s beliefs adhered to any familiar “party line,” and they actually shared some common beliefs. This seemed to be an eye-opening moment for Peterson. He was clearly embarrassed by his mistake, and he responded humbly. Instead of doubling down on his initial assertion, he admitted to his error, and the two academics continued to have a mutually respectful and engaging discussion. What really interested me about the debate, though, was the audience’s reaction to it. A lot of very interesting, dense subjects were discussed, but the audience seemed the most engaged when hearing things that were familiar to them. It is true that, when thinking deeply about something complex, people tend to ponder silently rather than to applaud. But then why applaud at all?

One particular moment in the debate really stuck with me, in which Peterson states:

“You don’t rise to a position of authority that’s reliable in a human society primarily by exploiting other people. It’s a very unstable means of obtaining power.”

An interesting statement, and a nuanced one. The audience’s reaction? An uproar of laughter. The moment feels like a punch in the gut—they treat him like a fool. But why? The statement is true. Yes, people have achieved great power by exploiting and manipulating people. All we have to do is look at the atrocities of the twentieth century to ascertain this. These regimes were extremely unstable, though (illustrating Peterson’s point), and most collapsed. Much longer reigns have been built on respect and decency. And this argument does not even acknowledge the fact that there are other forms of power besides political power. Power can be achieved through career success—something which is typically attained either by being likable or by producing something of value. It can be obtained via a high level of social influence—something which, again, requires the approval of other people. These things are all worth something, and are difficult to fake. There have been people who have coasted their way to the top, perhaps benefiting from inherited wealth or an influential relative. Their influence, though, is questionable. They may be able to keep their wealth and their title, but they are likely not taken seriously, unless their merit warrants this respect. Most people can see through this type of individual. And there will always be some people who manage to make their way by cheating and lying and stealing, but these people nearly always get caught. No one is perfect, and power brings out the worst in everybody. But far more deserving people become successful than undeserving people.

Why laugh, then? Perhaps this is the programmed response of ideologues, who prefer to laugh at ideas that contradict their ideologies instead of thinking about them carefully. Or perhaps the idea seems reflexively ridiculous because we’re living through a bizarre time period in which cheating and mooching has actually become a decent way to gain power. Just take a look at the corrupt politicians of the world, who pocket hard-earned tax money and produce nothing of value in return. This is an unfortunate state of events, and an inherently unsustainable (yet, tragically, eternally resurgent) one, if we look at history. We like for our laws to be a reflection of our moral code, and when they aren’t, things start to go wrong.

We like for our laws to be a reflection of our moral code, and when they aren’t, things start to go wrong.

This is because laws are an articulation of our core values. Jordan Peterson talks about this idea extensively in an episode of his podcast. He explains that our values come into existence before rules do—first we exhibit a behavioral pattern, and then we codify this behavioral pattern in the form of a rule. Peterson supports this idea with a summary of Jean Piaget’s research on the stages in which children learn how to play cooperatively. Piaget observed that kids exhibited the proper way to behave before they were able to abstract this behavior out and articulate it in the form of rules. The behavior comes first, and the rulemaking second. Peterson then relates this idea to the story of Moses. After leading the Israelites out of Egypt and into no man’s land, Moses, presumably burdened with resolving all of their disputes, articulated the Ten Commandments in order to standardize the way that he typically handled conflicts, so that he’d no longer have to deal with each one individually. Once again, the code of ethics came first. It has to be this way—if the rules were decided upon arbitrarily and did not reflect the values of the group, no one would follow them.

This idea is not only Peterson’s. I took an excellent business law course in college in which the professor introduced the concept of law in a very similar way. He told the class to imagine a small nomadic tribe with no formal code of law, in which the leaders of the tribe decided on a case-by-case basis what to do with people who caused conflict. He then asked us to imagine what would happen if that tribe grew bigger. A bigger group of people means more conflicts—too many for its leaders to adjudicate individually. If those leaders were intelligent, their next step would be to write down some rules. They’d, naturally, base these rules on what they’d already been doing; they’d write down the actions which they typically punished, and the punishment that they typically decided upon. The result would be a uniform code of law. This would be infinitely more efficient—the leaders would be saved the mental effort of adjudicating each case individually, and they could even delegate some of the work of enforcing these rules (after all, the mental work was already done). It was this type of codification that allowed societies to keep growing and expanding, allowed our social groups to evolve from tribes to towns, cities, and countries.

If we follow my professor’s logic, we reach the same conclusion as Peterson: laws are a reflection of a society’s moral code. But what happens when they’re not? What happens when such a code of ethics makes its way from the small town to the city-state and all the way up to an industrialized, globalized country, and the leader of that country has decided that he knows better than the majority, or else has become so far removed from this process of rulemaking that he cannot fathom why he shouldn’t use the law as a way to force his own will onto the people under his rule? What happens when a population is divided into two opposing camps, both of which promote their side whole-heartedly and potentially aggressively? Should the decision be left up to a majority vote? If so, what is considered a majority? If it’s split 55/45, does the 55 win, or should the law remain silent on the issue? After all, the law is supposed to be a reflection of a society’s moral code. If the society is split, perhaps there is no moral verdict on the issue. Should a difference of opinion be allowed? At what point, then, does the issue become law-worthy? 60/40, 65/35? Does this ratio change if the issue in question is deemed to be dangerous in some way? If so, who makes that call?

I don’t have a definite answer to this question, but I do have an instinct. Laws should reflect the morals that a society already agrees upon—things that are so appalling to us that almost everyone can agree they deserve to be punished. Things like murder, assault, rape, theft—actions which have a victim, for one, and which an overwhelming majority of people would agree are bad. The law should protect me from physical violence. It should not protect me from others upsetting me, and it certainly should not protect me from myself.

This is an interesting word, though: protect. The law itself may deter, and the procedure and institutions by which the law is carried out may punish, but nothing about this system protects anybody from someone who is intent on harming them. The perpetrator will still do whatever they want, assuming that they are willing to accept the result. The law enforcement system only administers consequences, and laws themselves are merely words, guidelines to follow. They do not compel action, and, when they do not correspond to the will of a society, they do not even persuade action (except through fear of punishment). The more benign the action, the more a law prohibiting it will be disobeyed.

The inverse of this, is, of course, that the closer that a society’s code of law adheres to its people’s actual beliefs, the more respect that those people will have for the law. There will always be criminals—it is for this reason that people created laws in the first place. However, in a place whose laws are just and agreed upon, a certain reverence for the law can be observed. This is common among older generations of Americans, who came of age in a time when people were more trusting of their government, and the government was ostensibly more respectful towards its citizens. In such a system of mutual respect, a greater social consensus can actually arise from the creation of new laws. People governed by this type of system will respect the word of the law, since they believe it to be the moral code that their society has agreed upon, they will generally accept what the law asks of them. Lawbreaking in this type of society is antisocial behavior; lawbreakers are in violation of the agreed-upon code of ethics. The law has not overstepped; everything (or at least the majority of things) it passes has been decided on for good reason, and any minor difference in individual moral codes is smoothed out by the public consensus that a uniform code is necessary. These types of laws don’t actually change behavior much, either—after all, they reflect the way that people already behave. They only provide guidance on what to do with the harmful outliers.

Problems start to arise when a small group of people start writing laws based on the way they think people ought to behave, rather than as a reflection of the way that they actually behave. Once this happens, little laws will inevitably start being broken, because people never believed in them to begin with. Some people might still agree with these laws and obey them willingly, but these people are not necessarily the majority, and they may believe in some but not others. More will follow the law if some punishment is put int place to persuade their action. Some of the latter group will learn how to avoid being caught, and will disobey the law at strategic moments. If the law is not enforced at all, then it just becomes something written down on paper, a symbol, but this time of tyranny rather than of morality. And once little laws start being broken habitually, bigger ones suddenly become less sacrosanct. Most people will still choose not to break the big laws prohibiting violence, since these are reflections of the innate moral code that inspired the law in the first place, but they will do so out of a sense of personal morality, not legal duty. Those deterred by punishment will continue to be deterred by punishment. But the actual letter of the law itself will cease to matter at all. Breaking the law will cease to incite moral revulsion (after all, most people in such a system will agree that at least some laws are simply absurd and break them habitually) and the lines that people draw between what is acceptable and unacceptable will once again differ widely.

Problems start to arise when a small group of people start writing laws based on the way they think people ought to behave, rather than as a reflection of the way that they actually behave.

Such a society becomes accustomed to sneaking around. Riding without the seatbelt on when it's late and they're not going far from home. Going ten miles over the speed limit normally, reducing the speed to only four or five miles over when they’re passing the place where they know cops like to hang out, pushing fifteen or twenty miles over when they reach that open road where they know a cop will never be. This is a slippery slope. Perhaps some people in this society believe that stealing from huge, Walmart-type stores is okay because, after all, there is barely a victim. There is not much of a logical jump between this and the argument that any stealing is okay, as long as the thief genuinely needs it more than the victim. Perhaps such a person can also be convinced that murder is justified, even moral in certain situations. Revolutionary ideologies have convinced people of such things in the past (and, unsurprisingly, revolutionary thought tends to pop up in those very places where law and morality have diverged the most).

Once this lack of respect for the law reaches a certain point, creating laws stops being the most effective way for a leader to guide behavior. Once this happens, they must start coercing people using extralegal means. Propaganda, fear-mongering, virtue-signaling. The best way to coerce somebody into doing something is to make them feel shame for their refusal. We see this happening in our own society—propaganda is already more effective than lawmaking. It is a more covert, more sophisticated form of tyranny in which the group that is being persecuted believes themselves to be acting of their own free will. They then start enforcing the pseudo-law socially, and the despot regains control once again.

As an illustration of how far laws and the countries which make them can stray from their original purpose, consider this. In nations such as Ancient Greece (typically considered nice places to live), banishment was one of the worst possible punishments for a crime. People wanted to live within the society—it provided protection, opportunity, community. The law was the agreed-upon social code that one followed in order to receive such benefits. In a (totalitarian) society in which the dissonance between law and morality has been taken to its absolute extreme (a place like North Korea, for example), banishment would actually be desirable, and people are fenced in instead of out. Judging by the number of refugees from various countries around the world, it seems that this unfortunate fate is fairly common.

Such a society can quickly become terrifying to live in. The whole system of beliefs upon which cooperative society was originally built is gone. What will be put in its place? The morals that we decided upon when things were going well were not dreamed up arbitrarily. They’ve shown up in civilization after civilization. They are the building blocks of a synergistic, productive society—without such rules that allow people to cooperate, a cooperative society does not work. The society is thrust into chaos. And presumably, when laws crumble and a society is thrust into a period of unrest in which people have no idea what to believe and start testing the limits of their morality, they will agree upon these exact same rules yet again.

So why tear them down in the first place?

We are constantly oscillating between chaos and order. It is human nature. The mechanisms which allow for civilization create positions of power, and power makes people greedy, grandiose. It makes them think that they can change the rules (after all, they technically can), and that they know better than thousands of years of human evolution (they don’t). They may even come from altruistic intentions—after all, the deadliest villains seem to always believe themselves to be heroes. We topple down structures because we don’t know what to do with ourselves once we’ve built them. Holding steadfast to the idea of progress, we just keep adding brick after brick until the superstructure can’t hold them anymore. Consider this quote by Fyodor Dostoevsky:

“Now I ask you: what can be expected of man since he is a being endowed with strange qualities? Shower upon him every earthly blessing, drown him in a sea of happiness, so that nothing but bubbles of bliss can be seen on the surface; give him economic prosperity, such that he should have nothing else to do but sleep, eat cakes and busy himself with the continuation of his species, and even then out of sheer ingratitude, sheer spite, man would play you some nasty trick. He would even risk his cakes and would deliberately desire the most fatal rubbish, the most uneconomical absurdity, simply to introduce into all this positive good sense his fatal fantastic element. It is just his fantastic dreams, his vulgar folly that he will desire to retain, simply in order to prove to himself—as though that were so necessary—that men still are men and not the keys of a piano, which the laws of nature threaten to control so completely that soon one will be able to desire nothing but by the calendar. And that is not all: even if man really were nothing but a piano-key, even if this were proved to him by natural science and mathematics, even then he would not become reasonable, but would purposely do something perverse out of simple ingratitude, simply to gain his point. And if he does not find means he will contrive destruction and chaos, will contrive sufferings of all sorts, only to gain his point! He will launch a curse upon the world, and as only man can curse (it is his privilege, the primary distinction between him and other animals), may be by his curse alone he will attain his object—that is, convince himself that he is a man and not a piano-key! If you say that all this, too, can be calculated and tabulated—chaos and darkness and curses, so that the mere possibility of calculating it all beforehand would stop it all, and reason would reassert itself, then man would purposely go mad in order to be rid of reason and gain his point!”

We are not made for utopia. We get bored. Once we achieve a previous definition of perfection, we inevitably find something to fix, and then we mess it all up again. Then, we have to reach the ground before we can leap back up again. The Founding Fathers of the United States dreamed up the best form of government that human beings have ever imagined: democracy paired with free-market capitalism. It was not long at all before that system started being attacked at its foundation. Regardless, by the turn of the twenty-first century we achieved a state of affairs that is closer to a utopia than any other time in human history. Absolute poverty is at its all-time lowest, and nearly every person on this Earth, even the poorest of the poor, is better off today than they would have been just a century ago. And yet we enthusiastically leap forward towards our destruction. It is inevitable. What has happened to all empires before us will happen to us, also. We can only do our best to slow the fall, enjoy our imperfect world as individuals and collectively hit the brakes on how low we will plummet. And perhaps we as a society should come up with some form of extralegal morality—one which we can hold fast to in spite of the absurdity of our laws.

Let’s start a dialogue. What are your thoughts about the void between morality and law?

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