Legal positivism and the enforcement of rules

The Huffington Post is the source for this story, which got me thinking about Phillip Soper’s book, The Ethics of Deference. While I haven’t finished this challenging treatise, I’ve been reading it with a group of colleagues and some of the objections it raises to Hart-style legal positivism came to me while I was reading about Kimberly’s plight.

As per the HuffPo story, Kimberly is a six year old girl who lives with her grandparents in a retirement community. Kimberly came to reside with them after her mother, a drug addict, lost custody. According to the by-laws, no one under the age of 18 can live in this community. Mediation between the home owners association (HOA) and the Stottlers, Kimberly’s grandparents, gave the latter a year or so to find a buyer for their house.

That was about four years ago. Since then, the housing market tanked, and the Stottlers haven’t been able to sell the place. Now the HOA’s patience has worn out, and they’re seeking to enforce the by-law that prohibits children from living in the community.

The law is on the side of the HOA. I don’t think there is any question about that. Courts have upheld the legality of age discrimination when it comes to retirement communities, essentially carving out an exception in anti-discrimination law. That exception may or may not be morally justified (many of the people commenting at the Huffington Post seem to think it’s not justified.)

Thus, the rules give the HOA the legal right to evict Kimberly, and the HOA wants to exercise that right. It expects the courts to uphold the rule, and the sheriff to enforce it, if that becomes necessary.

As Hart-style positivist would say, that’s consistent with the HOA accepting the rules governing this community from the “internal point of view.” More importantly, on Hart’s view, what distinguishes a legal system (properly so called) from a mere system of coercion is the fact that the officials in the system also accept the rules “internally”, and do not view themselves merely as men with guns making threats.

I have a hard time believing that everyone really is adopting the rules which give the HOA the right to evict a six year old girl from the internal point of view.

One might put it this way: if Kimberly is evicted, she will likely end up in foster care. No one is really disputing this. Her mother is not legally fit to look after her, and she has few relatives, with none (besides the grandparents) stepping up to the plate.

By almost any moral assessment, a world in which Kimberly is removed from the care of her grandparents and placed in foster care is worse than a world in which Kimberly remains with her grandparents. This is not to say that not enforcing the by-law is without moral cost. It is merely to say that, on any plausible moral view, those costs are outweighed by the ones that will occur if Kimberly ends up in foster care.

I will assume, for the sake of argument, that just about everyone accepts this assessment of the relevant moral considerations. Even the HOA would likely accept the judgment.

Enforcing the law, in this case, means producing a world that is quite a bit worse than the one that would obtain if the law was not enforced. If the judge upholds the HOA’s rights, the result will be, all things considered, quite bad.

The law is a coercive system, no doubt. But normally that coercion also happens to produce at least passably good outcomes; or, at least, a reasonable person could judge that the outcomes are good. In this case, I am suggesting that nobody could reasonably think that the outcome the law will produce will be a good one. Locking up a murderer is, morally speaking, defensible. Evicting a six year old girl is, morally speaking, hardly defensible at all.

So what is going on, then? If everyone agrees that taking a six year old away from loving guardians and placing her in a foster home is bad, how can it be that everyone — or the legal officials, anyway — are viewing the rule that is going to cause this to happen from the internal point of view?

Option 1: Adopting a rule from the internal point of view is not the same, conceptually or phenomenologically, as judging that the rule is, all things considered, a good, just, or right rule. One can think that a rule is bad, but still think that oneself, and everyone else, ought to obey, apply, and enforce it.

Option 2:  No one, except maybe the HOA, really thinks this rule, on its own, ought to be enforced. Rather, they recognize that the rule is part of a system of rules, and that the system itself is, all things considered, morally justified. If this rule were the only one in the system, no one would think it ought to be enforced. People accept this rule internally only because they believe it is part of a system of rules that is morally justifiable.

I realize this two options are a bit fuzzy. Originally, I was going to go with Option 1, but I’m not sure Option 1 helps in this case. Enforcing the law in this case will produce such a morally pernicious outcome, and refusing to enforce it would cause so little harm, that only a belief in the moral justification for this particular rule would be adequate to explain its enforcement. If “internal acceptance” is something other than a judgment of moral justification, it will be inadequate to explain adherence to the law in this case.

I’ve ruled out, in advance, any explanation that upholds the moral justification of the particular rule. That leaves option 2.

Option 2 is weird, but there is something to it. We can all imagine a judge who believes the drug laws are stupid and morally indefensible, but believes it is his moral duty to apply those laws when a case comes before his court. To explain this, one might suggest that the judge’s practice depends on a belief that the system, in itself, is morally justified.

More to come. I’m genuinely puzzled.

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