Legislating Morality (Book Notes: Morality Matters)
There are a lot of people who say that we shouldn't legislate morality - but how justified is that, really? Just about every law you can point to has some moral purpose in the background, even if it's simply to protect human life. If there are laws without a moral purpose, we should wonder what their purpose really is.
In Morality Matters, Roger Trigg writes:
Without morality, law could have little conception of what should be encouraged or discouraged. Like rules of the road, all law does have a regulatory function, but, without some conception of the purpose and aim of regulation, this can itself seem pointless. Even traffic laws are based on the presumption that human lives should be protected. Law ... is a teacher. We have sometimes lost sight of this elementary fact, because we value individual freedom so much. ... Any society which values individual freedom, and human equality, is inevitably going to have a legal system based on those moral insights. It will be part of the social framework which is deliberately passed on through the generations. [...]
Hadley Arkes refers to, as he puts it, ‘the cliche, gleaned so widely these days from sociology and fortune cookies, that we must never “legislate morality” .’ He claims that we should say that ‘we may legislate only morality’. ... [W]hat has to be the case is that the law cannot ignore the demands of morality. All law should be based on moral principle. We should be very suspicious of it when it is being made with any other motivations; for instance, to serve particular commercial interests. Law operating in a moral vacuum — or, worse, based on injustice — cannot command the assent and obedience of those citizens who are expected to comply with it.
Trigg makes a lot of very good and important points here, but we should take them a bit further. When people complain about legislating morality, does it really make sense to say that they don’t want laws to have any moral purpose at all? No, that wouldn’t be consistent. It’s more likely that they are arguing against the legislating of some particular morality.
In this, they have a point. A morality that doesn’t have broad agreement is probably not one that should be enforced by the coercive power of the state. We can certainly agree on broad generalities like what Trigg references, such as the protection of human life, but there are many other moral issues on which there is strong disagreement. For example, there is no broad agreement that homosexuality is immoral, so homosexuality isn’t something which should be legislated against.
Thus Trigg is making an important point, but it’s not clear that he is making one that anyone truly disputes. People use rhetoric which suggests that they do, and that’s an error, but if they don’t really promote the opposite of what Trigg is proposing, then he’s ultimately arguing against a straw man. He’s right that the law demands morality, but no one seriously argues otherwise; instead, people argue over what morality will be expressed via the law.
For this question, Trigg doesn’t offer us much guidance.
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Comments
I agree with Hadley Arkes to some extent. While all laws have a moral substance, not all morals should be made into law. There will always be circumstances in which what is considered immoral to one, is actually a way of life for another.We can only go so far when telling people how to live.
So many people derive their morals from scripture. Even though many morals are logical and obvious, they can’t all be made into law. There is a seperation of church and state, I think, that i heard of once. Whether it actually exists is up to those who make the laws.
i’ve often said, morals are the permutations of self and species preservation instincts (leaning heavily on socail contract) and that law is the quantification of morals.
This act is X bad. Where X is a fine or prison term.
Of course, it is possible to legislate morality. Like so many sayings, this one is a complete myth. As a member of the military, I can tell you that the possibilities for top-down social engineering are much more than many outside might suppose. The issue is not that it’s impossible, but rather that it comes with a cost. Whether a consensus exists can often be quite beside the point. Even where a consensus exists, there is the relentless problem of practicality: it is generally ill advised to attempt to legislate morality when the cost of imposing the legislative action exceeds the benefit of whatever moral sentiment is to be enforced. For example, we may all agree that each of us should care about each other; however, what would happen if being a “Good Shepherd” were made a requirement enforceable by the state? Unlike the United States, some countries do have “Good Shepherd” laws, but ultimately all will go only so far, strictly out of a sense of practicality. Indeed some, notably Dutch philosopher Baron Bernard de Mandeville, have held that practicality goes in exactly the opposite direction: that a society which attempts to enact what esteemed as virtue will founder, whereas a society that tolerates what is commonly denigrated as vice will thrive. How to account for such a paradox: In Mandeville’s view, morality is nothing but hypocrisy, whereas vice/immorality coincides with self-interest, which spurs the spending that causes an society to flourish. As much as Mandeville may have scandalized his 18th century contemporaries, his arguments cleared a path for, and even formed a part of, the writings of Adam Smith. Adam Smith, of course, is revered as having set forth, in his “Wealth of Nations, the classic statement of the case for capitalism. This is the economic system and philosophy that today, to a large extent and perhaps increasingly in very recent times, we all take for granted. Yet at its root are greed, exploitation, materialism, characteristics often decried as vices or sins. It was Mandeville’s position that the vicious would thrive, precisely because of their relentless self-interest, whereas societies based on virtues, such as altruism, would collapse from a lack of passion. What people hold to be moral, in his view, was nothing but hypocrisy. But private vice is a public benefit. Affirmation of this view remains in our affirmance and celebration of free-market economics today. Republicans seem to believe that if anything we have not gone far enough in this direction. Libertarians would go even further. Thus Trigg’s statement is hardly a truism or uncontroversial. It is possibly even the minority view. Indeed, there seems to be good reason to oppose his position. A case can be made that the most successful societies in history have been the ones that were the most free and thus the least legislated. However, one could go to far in establishing amoralism, and here Trigg has a point. Anarchy can be as bad as authoritarianism, even worse. Usually the people I hear giving the “You can’t legislate morality” line are those who are not exactly disinterested on this question: members of the liquor industry condemning Prohibition or new attempts to, as they would see it, revive it; pornographers opposing “censorship”; corporations opposing environmental regulation or labor laws. Ultimately, perfect amoralism is nothing less than an abdication of responsibility. Determining the appropriateness of morality-based legislation, is not ultimately a mere matter of counting votes of conducting a thorough, critical assessment of what constitutes responsible governance.