By Joe Morris Doss
I recently found myself addressing a room full of judges, speaking to them about the death penalty. I began by asking them the fundamental question: What is the purpose of the law? They talked about protection of the public, establishing rules of behavior, protecting the fabric of society, and serving justice – but floundered in disagreement over the attempt to define “justice.” I was not surprised that they never mentioned the term “moral,” or any thing like that.
Then I asked the judges what makes the law effective, where lies its power, what makes it work for its purposes. They talked about sanctions and punishment and deterrence, yet they never talked about the simple but overwhelming power of standing for something – of having symbolic power in standing for what is important and for what is unacceptable behavior in a given society.
Premise #1: The Purpose of the Law
The purpose of the law is to create, establish, and maintain a moral order
of society, and where violated to restore it.
A democratic society is constantly working to discover and fashion the order of society it considers moral. For example, the desire to balance minority rights with majority will is a relentless struggle. Those adhering to the Judeo-Christian-Islamic traditions seek an order reflective of the compassion, righteousness, and justice of God. Christians specifically seek an order that reflects the mind of Christ and is most transparent to the kingdom of God.
Premise #2: The Power of the Law
The power of the law is in its symbolic clout. It points to what is
considered moral: to the unity and orderliness of society, to what is truly
important to society, to the degree to which certain behavior will not be
tolerated in society, and to its power to curse.
For example, in criminal law the sanctions to be imposed for violation of different laws indicate the extent to which an offender will be judged by society. A fine tells potential offenders that they should obey a particular law, but a felony conviction imposes a significant curse on the moral behavior of the offender, and makes her or him an outcast. The law does not work as effectively as a deterrent – not nearly so – in reliance on punishment. A better deterrent is the threat that an offender will genuinely experience the curse or censure of one’s peers, family, friends, circle of society.
The ultimate power of the law is in its ability to restore the moral order after it has been violated; the most effective restoration is reconciliation – reconciliation of the offender to the offended and to society as a body.
Premise #3: The necessity for justice in the execution of the law
The law must be just and it must be exercised with justice. If so, the citizens
are far more likely to respect, cooperate and obey the authorities and the
If the order of society is sufficiently moral, and justice is applied with equality and fairness for all citizens, the vast majority will be motivated to cooperate with one another and act within the established bounds of law. When the law is applied unequally, with prejudice or malice or insufficient regard for classes, communities, and categories of the citizenry – such as may be defined by race, poverty, or sexuality – the law will not operate effectively within them. In such communities or segments of society, offenders are far less likely to experience the curse of their peers or feel like an outcast when convicted of a crime.
Premise #4: The power of the law to shape the human hearts of society
To the extent that law reflects an order of society that (1) is genuinely
perceived as moral and (2) is applied equally and with fairness for all citizens,
it is a remarkably powerful tool for challenging and reshaping the opinions,
the philosophies, and even the hearts of citizens. This will be true,
however gradually, even for those whose already formed opinions oppose
particular laws and are most fiercely resisted. These can even be prejudices
and obsessions over which citizens may be ready to take the law into
their own hands or even fight.
There will always be citizens – individuals, communities, and entire regions – who adamantly disagree with certain tenants of the law. The disagreement will be more problematic if the law challenges the most dearly held beliefs, myths, and moral assumptions that have grown up through the years to become a matter of custom for these citizens, communities, and regions – for custom is largely the foundation of law.
Until the law speaks, and where the law speaks with an immoral or unequally applied effect, citizens feel free and justified to believe what they will.
But, when the law becomes clearly and unequivocally established as justice, that is, if indeed it is the equally applied law of a society that is considered moral, the majority of citizens in a genuinely democratic society who have disagreed with it, however vehemently, will inevitably adjust personal and community beliefs to conform – even overcoming deeply held prejudices with which individuals will have to live. People will not adjust to the law until it is unquestionably established, until it is the law of the land.
We know this as a matter of fact from the recent history of the civil rights movement, a movement that many of us experienced most directly and dramatically in our youth and recall not as some “his-story” but as “our-story.” Still ringing in our ears is a claim that was constantly issued: Belief, and even prejudice, cannot be changed by law; “legalities” simply represent changes on paper instead of what people feel and believe in the heart and thus are irrelevant and ineffective. It was admitted that the law could be imposed but no more than that.
All of this was proved wrong – that old shibolith has been buried. The proof is in the “Southern” pudding. The very conservative Supreme Court recently made the decision that the South had so changed that there is no longer special concern over its application of voting rights. Even if this is naïve and sticky, no one is going to argue that racism is right – not in the way it was publicly argued during the Jim Crow era through the civil rights movement. There are other examples throughout history, grand and insignificant, but it has been established that the law exercises a decisive influence on society’s moral positions, especially its sense of what is to be applied equally and fairly.
Premise #5: The power of the law to teach immorality
Insights concerning the purpose and power of the law have an underside
that has to be recognized and guarded against vigilantly: Immoral law
teaches immorality. As one of the most important guardians of what is moral
and of what will make the order of society genuinely moral, of what will
best conform society to the mind of Christ, the church has to be vigilant
against acquiescence to that which is immoral and most especially when it
is established in law. The church did this to some degree in the civil rights
movement and must do it again.
These premises bring us to the most important lesson to be learned from the tragedy of Trayvon Martin’s death and the successful defense of his killer. The villain that emerged from the trial is the law itself.
Our fundamental and most important question does not regard the jury or the verdict or even the actions of a man who understood and acted according to the law as he saw it.
We question the morality of a society that has the kind of gun-possession and use-of-deadly-weapon laws that have recently been passed. We question the morality of laws that are not applied equally and fairly. We question the morality of laws that are designed to target certain segments of society on the basis of race and poverty. The concrete and actual effect is now fully exposed. That effect is to be cursed and condemned by the church. Those laws are shaping our society, making it an immoral society.
The church must unite and pronounce its curse now!
Joe Morris Doss, founder and president of “At the Threshold”, has served parishes in Louisiana and California as an Episcopal priest, and the Diocese of New Jersey as Bishop. Bishop Doss has long been involved in civil rights activism, including the integration of LSU while he was student body president. He was the founding president of Death Penalty Focus, the founding chair of the National Center for AIDS in San Francisco, and together with Bishop Leo Frade of Southeast Florida, the organizer of a famous rescue mission that freed thousands of pardoned political prisoners from Cuba. Bishop Doss is the author of several books including “Songs of the Mothers” and “Let the Bastards Go”. With his son Andrew Doss, he co-wrote the drama “Earnest”, about the transformation of a death row inmate.