I work as a law clerk for a federal appellate judge. As part of my work, I routinely assist in the enforcement of legal rules that I think are unwise or even unjust. Of late I have been wondering about the morality of what I do every day.
Of course, my participation in the legal system is not that important. Law clerks of good judges do not decide cases or have much influence on the course of events. I happen to work for a very good judge, and he does the real work of deciding who wins and determining the final shape of judicial opinions. My work is limited to drafting initial versions of opinions, doing legal research, and writing the odd memo on an upcoming case. Nevertheless, I am complicit in the work of the federal courts. I am an officer of the court and before beginning work I took an oath to uphold the laws and constitution of the United States.
In Mormonism we seem to have a fairly robust notion of office. What I mean by this is that we believe that occupying a particular social role does not necessarily make you complicit in any evil that you might advance in fulfilling the duties of that role. The starkest example would be position that the Church has repeatedly taken in war time that soldiers who kill in obedience to lawful orders are not morally responsible regardless of the ultimate justice of the cause being pursued by their army. At a less dramatic level, even if Church doctrine does foreclose being pro-choice, I don’t think that any Mormon would argue that a Mormon federal district judge applying Roe v. Wade or Planned Parenthood v. Casey is acting immorally.
We seem to be less clear about oaths. If we make a solemn promise before God and the law to undertake a particular set of duties, does that oath provide some over-riding moral imperitive to carry out those duties, even when without the oath they would be morally repugnant? Can one take such an oath in good faith? Can one in good faith break it?
It is interesting to contrast our general way of thinking about these things with Islam. Dan can probably provide more insight here than me, but it is my understanding that there is not much of a concept of office in Islam. For example under Islamic law, qadies (judges) are required to apply their best interpretation of God’s law to the cases that come before them. However, the Islamic jurisprudes agree that God’s law is often difficult to discern and reasonable people can disagree about particular interpretations. Thus, a qadi required to decide a case can be genuinely uncertain about what rule to apply. However, neither the office that he occupies nor his good-faith uncertainty will save him from God’s judgement if he gets it wrong. In other words, the qadi is always immediately and directly responsible to God, regardless of his office. Furthermore, the qadies did (and do) seem to take this view seriously. There are stories of prominent legal scholars fleeing medieval Baghdad in order to avoid the eternal danger of being made a judge, and I have a lawyer friend who informs me that in modern Saudi Arabia the qadies will bully parties into a settlement so that the qadi doesn’t have to reach a decision on a difficult legal point.