Split Selves: Morality and the Law

The Law Binds Us Together; the Law Splits Us in Two

Justice Douglas writes that "the rule of law..., evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together." Oliver Wendell Holmes, even in denying the mapping of law onto morality, comforts us with the thought that "the law is the witness and external deposit of our moral life." Douglas speaks of disparate selves bound together through the law. Holmes, in pointing to the externalization of our collective moral conscience, suggests a separation of the self through the law. Each vision is lovely. Each speaks to one thinker's dream of the law. Each statement is a clean and hopeful gloss on a system that is anything but.

Criminal law does not reliably mete out punishments to the bad and absolve the good of blame; the justice we arrive at is, at best, rough and approximate. Yet it does divide the world into two camps: those that have committed crimes (and been caught) and those that haven't. The fear of getting caught, most people would agree, carries some deterrent force, and is one of many factors taken into account in strategic criminal action.

Criminal Calculus

Crimes of passion aside, doing something "wrong," whether stealing a cookie from the cookie jar or millions of dollars from corporate shareholders, involves a cost-benefit analysis. How likely am I to get caught? What do I stand to gain? Does the combined pull of these two forces outweigh the punishment if I am found out? Are there negative consequences even if I am not found out? These questions are inherently personal, and those asked by one person may be never even be considered by another.

Many things can go wrong in this process, and often do. We do not all emerge with a clarion conscience and a moral compass that point due north. Additionally, the thought process (assuming there is a conscious one) that transpires before committing a crime is far more complicated than the one I've outlined. But, with perhaps an exception for the truly sociopathic minority, the law, in binding us all, plays a part. Getting caught completes the crime.

The question is: what stays the hand of some would-be criminals, while others commit the forbidden act? Is it the internalization of the law, some sort of social empathy, disconnect between different senses of self or a combination thereof?

A Case Study

In the early morning hours of October 26, 2009, Gil Cornblum jumped off a bridge. This was not his first attempt at suicide, but it was his last. Suicide is an unknowable tragedy, the world's brief and brutal glimpse at private, unplumbable depths. We can grasp (and often cling to) the how; what can we know of the why? We know, according to his wife, that Gil had struggled with depression for his whole life. We also know that Gil was under investigation for a 14-year streak of insider trading, allegedly conducted while an attorney at big name law firms in the US and Canada. His first two suicide attempts were made after the investigation began; his last was reportedly on the eve of a settlement in the criminal investigation. Gil killed himself after he got caught. It would be facile and tidy to conclude that he killed himself because he got caught. It would be stupid to conclude they were not connected.

So why did Gil kill himself? Was it an extreme result of the gap between his personal morality and that contained by the law? Perhaps Gil never believed he was doing anything wrong, and when faced with the imposition of the state's version of "right" and "wrong," death seemed like a logical solution. Or maybe Gil misunderstood himself. In evaluating the costs and benefits of his crime, he may have thought he was smart enough to avoid getting caught. He may also have miscalculated as to his own capacity for withstanding the opprobrium of detection. Or maybe his interests did not extend beyond himself, so he committed a crime to get rich, and then killed himself when he no longer stood to gain.

We can only speculate as to Gil's motivations. Perhaps every person who commits a crime weaves a complex web of justifications, denial, self-interest, and recklessness. Upon getting caught, this web that once sustained an identity and concealed a crime falls apart and sends the criminal flailing. I have never seen an ego laid so bare or a person more broken than a criminal at sentencing. I can understand an unwillingness to endure that experience. I can also understand how someone who had grappled with depression might choose suicide instead.

Conclusion

Justice Black writes that "[b]ad men, like good men, are entitled to be tried and sentenced in accordance with the law." A winning homage to the rule of law, but can we really speak of "bad" and "good" men with any confidence? Would that the world were so easily sorted and parsed.

The criminal justice system doesn't just affect our actions; it also imposes a strict division on the world. One isn't "kind of" guilty; once the jury has returned its verdict, one's actions are criminal or they are not. There is no middle ground. From a procedural perspective, this makes sense, but this view of the world isn't limited to the halls of justice. It is tempting to embrace the reductive simplicity of "guilty" or "not guilty;" we want the law to punish the bad and protect the good. That notion is appealing, but it eliminates a complexity that, if grappled with, might permit a more empathic approach to understanding crimes and those who commit them.