Virtue, Voting, and the Lawyer’s Oath
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)
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