Student Blogger - Fall WIP: Youngjae Lee asks What's Wrong with Disloyalty?

Disloyalty occupies a special place in the law. It gets its very own constitutional clause (Article III, Sec. 3). Over British history, persons convicted of high treason could expect to receive particularly harsh punishment well above that of other felonies (hanged, drawn and quartered for men, burning at the stake for women). Yet missing from this account is a seemingly very simple question: What's Wrong with Disloyalty? And this was the subject of visiting professor Youngjae Lee's fall WIP talk.

Before reaching the meat of his paper, Professor Lee first disaggregates "nonloyalty" from "disloyalty". Loyalty, Lee argues, is a feeling or sentiment towards an institution such as a state. Nonloyalty is the lack of such sentiment. Disloyalty, by contrast, involves some overt act harming the entity. The distinction matters, because it helps diminish one of the intuitive problems many have with policing disloyalty in the first place: that it will punish thoughts (or worse, lack of thoughts). While most of us maintain an intuition that disloyalty is a bad thing and probably worthy of punishment, we simultaneously fear mass arrests because one failed to attend a Veteran's Day event or failed to cheer loudly enough for team USA at the Olympics.

However, even this does not get us all of the way there. If disloyalty to the state involves taking some overt act against it (or in favor of a rival), and even if we expel pure speech -- such as rooting for the Canadians against the Americans at the Olympics (full disclosure: as a kid, I typically rooted against team USA in international competitions, primarily out of an instinctive empathy for the underdog. To borrow from and update Joe E. Lewis, in 1992, rooting for the American Olympic basketball team was like rooting for Microsoft -- it just seemed unsporting) -- we could still imagine something like agreeing to be a waterboy for team Canada. An overt act? Yes. "Disloyalty"? Seems harsh.

Professor Lee says that, when one looks at the sort of criminal actions which typically have seen the label of "betrayal" attached to them, nearly all have involved in some form or another matters of national defense (e.g., espionage, helping POWs escape, sabotaging military institutions). This, then, is the core of "disloyalty". So why is disloyalty wrong?

One immediate candidate is a general cosmopolitan critique -- the assertion that nationality and national borders carry with them no true moral significance. There are some stock responses to cosmopolitan claims -- for example, that they seem to indict equally providing special value to familial relationships (which is of limited use, since this argument doesn't tell us why national relationships in particular are analogous to familial ones) -- but they are less than persuasive. One can make a claim about the general value of nations as an institution, with loyalty being valued as an tool for fostering nationhood, but this would seem to point towards supporting "nations" as a generality, not "my nation" specifically (one might say supporting your nation is the most efficient way to support nations as a whole, but this seems an extremely counterintuitive account of loyalty -- akin to loving your spouse because it is the most convenient mechanism for expressing ones support for spouses as a whole).

What Professor Lee settles on is an associative obligations account -- obligations one has as a result of being a member of a particular group (voluntarily chosen or not). This he freely admits is a very thin account -- grounded only in the notion that disloyalty is something that one is expected to refrain from as a member of a political community. However, it does in fact cohere to how these sort of obligations are normally expressed. When we talk of the rationale behind obligations of parents to children, or friends to each other, we do often settle into simple rhetoric of "that's what parents do" or "that's what friends are for". To go further than that is, in Bernard Williams' words, to think "one thought too many".

Comments

[Peter Orlowicz]

In many cases of disloyalty, though, the duty owed to one's country is much more defined than a similar obligation to friends or community. Robert Hanssen, for instance, was an FBI agent who took an affirmative oath to support and defend the Constitution of the United States, and to bear true faith and allegiance to the same. Military officers and enlisted members take similar affirmative oaths. The Constitutional provision regarding treason was a limitation on the government in punishing disloyalty, rather than an expression of its importance (though its importance probably accounted for the limitation placed in the Constitution, to be fair.) Perhaps looking at cases of disloyalty through a lens of breach of fiduciary duty would be more productive than simply shrugging our shoulders and saying "we shouldn't overthink it." I think it devalues the importance of those fiduciary duties to suggest those obligations are insignificant or don't make sense. ("This he freely admits is a very thin account -- grounded only in the notion that disloyalty is something that one is expected to refrain from as a member of a political community.")

Where we lack those fiduciary duties, the idea of disloyalty is much less significant generally. One might be loyal to an employer, or an educational institution, and yet not be seen as disloyal by seeking another job or taking a teaching position at a different school. Loyalty may be owed to other institutions besides the national or state government (there are state laws for treason against the state, as well), but it's usually only criminally punishable when it's disloyalty against a government you've sworn an oath to support and defend.

[Roach]

First, your opinion is a minority one, typically only espoused by transnational cosomopolitans--what Yuri Slezkine calls Mercurians--of one stripe or another.

Majorities in fact have real power and a real moral right to preserve themselves as a people. Unless they're suffering from mass psychosis, they do and should impose certain standards on those who would benefit from the nation and its laws and its protection, not least not to actively aid enemies of the nation.

We sadly ask so little of citizens, particularly newcomers, who often have dual loyalties. We are in fact a remarkably tolerant people, and it's gone too far, culminating in such ridiculous acts as serving in foreign armies by the President's Chief of Staff and the mass murder of soldiers after repeated statements of disloyalty by the terrorist, Major Nidal Hasan.

Nations are safer, more secure, and more pleasant when people are loyal and have some sense of allegiance and community. There will always be loyalty of one kind or another, but where disloyalty to the nation is tolerated usually it's reserved for some other nation or group, whether it's one's ethnic subgroup, one's religious community, or a foreign nation, or some combination of the three.

The rest of us, for whom loyalty to the United States is not terribly complicated, whose brothers and fathers and cousins serve in its Armies and have spilled blood for its continued existence, don't need to tolerate this kind of nonsense. We have the numbers and the power to impose our will. Being good positivists, the morality of that (or not) is really quite secondary, isn't it?

[Roach]

The more I re-read this entry, the more astounded I am about its pseudosophisticated ignorance. It's this retarded "tabula rasa" and Englightenment individualist approach to the world that does a little parlor trick of privileging so-called rationality and the individual good above all considerations, in essence answering the question before alternative views are given any consideration. I also think it interesting that such wide-ranging writers as Burke, Hegel, Carl Schmidt, and John Stuart Mill are all ignored in this question, as if we alone today using the supposed excellence of a legal education are best equipped to answer this political philosophical question.

The short answer though is (a) what I say above, i.e., the majority cannot be expected to tolerate such ridiculousness effrontry and (b) free societies depend upon loyalty, cohesion, and patriotism. See below quote from John Stuart Mill:

"Where the sentiment of nationality exists in any force, there is a prima facie case for uniting all the members of the nationality under the same government, and a government to themselves apart. This is merely saying that the question of government ought to be decided by the governed. One hardly knows what any division of the human race should be free to do if not to determine with which of the various collective bodies of human beings they choose to associate themselves.

"But, when a people are ripe for free institutions, there is a still more vital consideration. Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist. The influences which form opinions and decide political acts are different in the different sections of the country. An altogether different set of leaders have the confidence of one part of the country and of another. The same books, newspapers, pamphlets, speeches, do not reach them. One section does not know what opinions, or what instigations, are circulating in another. The same incidents, the same acts, the same system of government, affect them in different ways; and each fears more injury to itself from the other nationalities than from the common arbiter, the state. Their mutual antipathies are generally much stronger than jealousy of the government."

P.S. I should add I think that your rooting against the USA is positively weird. Were you bullied as a kid? Did your parents send you to socialist summer camp? Did you say the pledge of allegiance like normal Americans did growing up?

PPS Here's simple loyalty test: do you dodge the draft or not? If you do, then you're disloyal and should move.

PPPS I do like your last paragraph; there are just some axiomatic things in life, and if you don't accept them, you should probably be shunned.

[David Schraub]

I should note that this is a six paragraph summary of a considerably longer paper. There are limits to the degree I can convey the paper's argument in its totality. And I'd also note that I'm just the messenger -- this is not my paper, I'm just relaying it.

To answer your four questions about me:
(1) No, I wasn't bullied as a kid.

(2) No, I didn't attend socialist summer camp (or any other socialist program).

(3) I stopped saying the pledge of allegiance in high school in protest of the "under God" clause both as exclusionary to atheists and polytheists and as demeaning to monotheists (and in violation of the Establishment Clause regardless). I can't speak for Christians, but my religious faith (Conservative Judaism) doesn't require government-sponsored training wheels (see here: http://dsadevil.blogspot.com/2004/09/folks-at-powerline-are-very-niceand.html), and indeed I find it rather tragic that so many's peoples' hold on their faith is so tenuous that they genuinely seem to think it will collapse if the government isn't there to hold their hand (perhaps Jewish history has toughened us up in this regard).

(4) Yes I'm registered for the selective service.

[Roach]

Israel forbids Jews who convert to Christianity to immigrate and also requires pigs to stand on some kind of wooden platforms lest they pollute the land. Does this offend you too? Any society in which religion is a vital force at least makes sure the state is not completely indifferent to it. Christianity is a federal holiday, for instance. Good thing too.

A little bit of institutional support goes a long way. Christianity was vital and relevant to every societal decision in Medieval society from say 800-1700 in Europe. Afterwards, not so much. If you go to a European Church it looks today more like a museum, with a handful of children and old ladies in attendance. Far cry from the days of Michaelmass and the Crusades.

Today the state is not merely indifferent to religion but positively hostile to it. Consider the efforts to force Catholic hospitals and institutions to perform abortions or hire non-Catholics in roles that previously had religious requirements.

Your protest of "under God" was really touching. It brought a tear to my eye.

Your universalist enlightenment liberalism is a set of rules useful for minority tribes surrounded by a majority with different values and interests. When minorities of all kinds are in charge or in the majority, they almost always adopt different rules. John Stuart Mill describes this pattern (and the problem of multiculturalism and diversity) quite brilliantly. Incidentally, this analysis applies to you and the author of the article in question.

[Uzair Kayani]

I think some of these posts are malicious.

Mr. Schraub was writing as an American citizen but Mr. Roach reminded him of a religious law that may or may not exist in Israel. It appears Mr. Roach believes that all Orthodox Jews are answerable for all Israeli laws. That is absurd and irrelevant. It is absurd because there is more diversity of thought in Judaism than there is in other religions. It is irrelevant because another state's relationship with religion does not determine domestic law (unless one is especially cosmopolitan).

I am also not satisfied with the use of J.S. Mill in these comments. Mill was not a populist but a pragmatic elitist. See Chapter Seven of Representative Government. I attach a few quotes dealing with the problems of democracy and the benefit of an "instructed minority" below.

1. “But when the Democracy is supreme, there is no One or Few strong enough for dissentient opinions and injured or menaced interests to lean upon. The great difficulty of democratic government has hitherto seemed to be, how to provide, in a democratic society. . . a social support, a point d’appui, for individual resistance to the tendencies of the ruling power; a protection, a rallying point, for opinions and interests which the ascendant public opinion views with disfavour. For want of such a point d’appui, the older societies, and all but a few modern ones, either fell into dissolution or became stationary[.]”

2. “The only quarter in which to look for a supplement, or completing corrective, to the instincts of a democratic majority, is the instructed minority: . . .”

3. “[By granting power to an “instructed minority” through special voting rules] democratic people would . . . be provided with what in any other way it would almost certainly miss- leaders of a higher grade of intellect and character than itself. Modern democracy would have its occasional Pericles, and its habitual group of superior and guiding minds.”