About Me

My photo
Dominick Graziano has degrees in biology, philosophy and law. He is a member of the Florida Bar, and is Of Counsel with the firm of Bush Graziano Rice & Platter, P.A., www.bgrplaw.com.

Sunday, September 13, 2020

Virtue, Voting, and the Lawyer's Oath

                                                                 

    Virtue, Voting, and the Lawyer’s Oath

                                                                     

                                   Oath of the Horatii - Wikipedia

       

     Aristotle famously said “man is a political animal,” by which he meant that the virtuous life can only be lived in the company of others. One can be a solitary philosopher, but by their very nature virtues can only be exercised and developed within a social organization. And as many of these blog posts have discussed, only a person who lives a morally good life can live a happy fulfilling life.

    Aristotle readily acknowledged that living a virtuous life is not easy, because it requires living under the right conditions. Just as an acorn needs the right soil and light to germinate and grow, so too does a person require the proper environment to live virtuously.[i] The proper conditions do not arise by accident. Rather, they must be rationally structured by and within the community (or as Aristotle called it the ’polis’). According to Aristotle man’s unique ability to speak and reason, unlike other animals, gives humans the ability to create a just society.[ii] It is our ability to speak and reason with one another that enables us to “discover what is right and wrong, what is good and bad, and what is just and unjust.”[iii] It is therefore incumbent on the citizens of a community to be politically active through education and reasoned discussion to help mold a community that promotes, supports and encourages the virtues of its members and leaders.

    While democracy in ancient Athens and other Greek city-states was a novel experiment in governing and evolved over time, its foundation was always one of public debate and discussion. This ‘rational’ process formed the basis for selecting leaders and legislators from which the governing laws and customs were established. Most importantly, Aristotle understood that this was not a static process and as a practical matter society would evolve over time thus requiring ongoing debate and discussion. Nonetheless, the goal was always one of developing leaders and political institutions that would provide the conditions for nurturing virtue within its citizens. A citizenry so constituted gives each member a stake and responsibility to ensure that its laws and educational system inspire virtuous acts creating a community in which its members can live a ‘happy’ life.

    It is no accident that our Declaration of Independence begins with the words “We hold these truths to be self-evident, that all men are created equal and endowed by their creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” While Thomas Jefferson penned these words, they were in part inspired by Aristotle’s ideas. The Founding Fathers, especially Jefferson, were familiar with and admired Aristotle’s political philosophy. Indeed, both the Declaration of Independence and the Constitution expressly adopt Aristotle’s idea that a democratic republic should be structured to nurture the ‘pursuit of Happiness.’ Here it is important to note that what Aristotle meant by ‘happiness’, as well as Jefferson, was more like ‘human flourishing’, i.e., providing the conditions necessary for citizens to lead a virtuous life.[iv]

    In our modern world you would be hard pressed to find a voter or legislator whose actions are primarily directed at building a society that promotes the ‘pursuit of Happiness’ of all its members. In place of an overarching principle guiding political discussion and decisions we typically break down along party lines over a laundry list of special interests. But this need not dissuade us from reaching for higher ideals, because it is the higher ideals upon which the ‘American Experiment’ was founded, and which could guide us towards higher moral ground. So where can we find a ‘North star’ for our moral compass? For lawyers, legislators and members of the Executive branch it is hiding in plain sight.[v]  

    Lawyers throughout the United States take an oath that contains these or similar words: ”I do solemnly swear: I will support the Constitution of the United States….” (for legislators, the judiciary and executive officers the words ‘and defend,’ are added). Since ancient times an ‘oath’ was considered a pledge of constancy to the vow taken under providential penalty.[vi] In this instance it is a moral promise to “support[vii] the Constitution”, i.e., to ‘promote the interests or causes’ of the Constitution. To fulfill this moral obligation requires a literal reading of the Constitution and a working knowledge of it. This is accomplished by reflecting on how we as individuals having sworn an oath can align our conduct and decisions with the Constitution’s primary purposes. This moral undertaking by its terms is not limited to our professional lives, but also our lives as active members of the communities in which we live. Thus, if the Constitution commands us to ‘promote the General Welfare’, i.e., the common good then we should align our civic conduct with that mandate.[viii] How can we accomplish this? 

    First, we should periodically reflect on the meaning and significance of the document which we have pledged to support. This requires developing a working understanding of affirmative conduct we must undertake to live up to our pledge, as well as avoiding conduct which could compromise our promise.

    Second, when confronted with situations in which our oath may be tested, we must be vigilant in upholding our oath. In our everyday activities we will not often face circumstances that challenge this moral obligation. But there are occasions, such as voting, where we will be called to account. For now we can skip a discussion albeit important on whether we have a moral obligation to vote.[ix]   We cannot however avoid the moral imperative of our oath when deciding who to vote for. Why? We know that almost without exception candidates once elected will take an oath swearing allegiance to the Constitution, and will be making decisions that will likely effect the lives of members of our community. And as detailed above that oath bids them to promote the General Welfare of all by making decisions that will help create a society that nurtures human flourishing, i.e., that encourages living lives of virtue.

    Accordingly, if we have reason to believe that a candidate will not satisfy the moral obligation of their oath, then it would be a violation of our oath to vote for them. Any candidate worthy of our vote must pass this initial test before other considerations (policies, party, etc.) effect our decision making. If we truly value the ideals of our democratic republic that our oath demands of us, we must comport our decisions consistent with it.



[i] Aristotle, Nichomachean Ethics, I.7; Politics, I.2.

[ii] We now have reason to think that other animals also have these abilities. See, e.g., Frans de Waal, Mama’s Last Hug: Animal Emotions and What They Tell us About Ourselves (2018).

[iv] https://www.britannica.com/topic/common-good; also sometimes stated as the ‘common good.’

[v] Voters too, in some states such as Florida, take an oath of allegiance to support the Constitution.

[vi]  Language of the oath probably originates from the Bible, Numbers 30:2: “When a man voweth a vow unto the Lord, or sweareth an oath to bind his soul with a bond, he shall not break his word….” See Generally Wikipedia, “Oath.”

[vii] Merriam-Webster dictionary.

[viii] Aristotle’s ideas were filtered through the writings of John Locke, who directly influenced the founding fathers. See generally, “Happiness and Pleasure”, The Dictionary of the History of Ideas, Vol. II, pp. 379 et. seq.

[ix] For an interesting discussion on this point see Brennan, ‘The Ethics of Voting (Princeton, 2012), who argues that “Citizens who lack the motive, knowledge, rationality, or ability to vote well should abstain from voting.” He is careful to separate this from the legal right to vote.

 

References

Sheppard, Steve, I Do Solemnly Swear-The Moral Obligations of Legal Officials, (Cambridge, 2009).

Hall, Edith, Aristotle’s Way-How Ancient Wisdom Can Change Your Life, (Penguin Press 2018).

Gessen, Masha, Surviving Autocracy, (Riverhead Books, 2020), in which the author argues that repairing the damage done to American democracy will require rediscovering its “moral aspirations” and “ the belief this can be a country of all its people.”

Benton, Josiah Henry, The Lawyer's Official Oath and Office, (Boston Book Company, 1909) 

Image: Oath of the Horatti, Jacques-Louis David (1784)