Should You Legislate Morality?
You can, you must, and you do. Morality is simply considering what is right and wrong in a public sense. Laws forbidding things like indecent exposure, public intoxication, and child pornography are legislating morality – they’re just morals that nobody has questioned (yet). The question is really which morals should be legislated, and which shouldn’t. We usually meet this with things that people wish to have legislated for religious reasons. If someone has a religious objection to homosexuality, they might like it to be made illegal on the basis of immorality. It’s essential to this discussion to realize that there is no inherent difference between making homosexuality illegal, making marijuana illegal, or making child pornography illegal. The only difference is that some moral issues are up for debate right now, while others aren’t.
So which morals should be legislated, and which shouldn’t? Many say that laws should be designed to prevent harm. Preventing harm to another person is obvious. It is, and should be, illegal to shoot someone at a four-way stop. Laws that prevent harm to society are a bit more ambiguous, but often still valuable. It’s harmful to society to run a four-way stop even if there’s nobody else around. What about laws that prevent harm to yourself? At our little four-way stop, it’s illegal to not wear a seatbelt. The only person you’d be harming is yourself. Other than that, there aren’t a lot of these types of laws. Drivers have to maintain insurance, but only so far as to cover the damage to other vehicles. You don’t have to cover yourself.
So now how do we consider the typical “legislating morality” issues that people talk about? I believe that an honest look at many issues will reveal that harm is being done. I don’t believe there is any such thing as a victimless crime. In this I am arguing that we need to expand Mill’s “harm principle” ethics. We need to think more broadly about harm, and what kind of good and virtuous society we need to create. Some will argue that if we have so many forbidden things, freedom is lost. Freedom is lost if the legislature has to process many details of daily life, indeed, so let me consider an alternative path that leaves the freedom with the people.
I wonder which is more important – freedom, or a virtuous society? Or is freedom merely one virtue among others? Democracy is meant for a virtuous society. If society becomes corrupt and decrepit and loses its sense of right and wrong, I question whether pure representative democracy would even be the best form of government. This is part of why Plato didn’t think democracy would work – he figured the people would be too dishonest to vote for what was in the best interests of society, but would only vote for what was in their own self-interest. Thus, I would like to argue, finally, that more important than legislating morality is for the government to work intentionally at encouraging a virtuous society. This is self-preservation for the government, because otherwise the nation will either slip toward an unethical society or a tyrannical government.
Response from Aurelius
You raise a good point that the question is not whether or not we should legislate morals but which morals. To take it a step further, I would argue we cannot determine which morals until we establish a basis for those morals (e.g., a set of rights, a historic religious text, a list of principles, etc.). Morals need a basis, something upon which they can rely, otherwise there are gray areas inviting division.
Your point about a virtuous society is noble but not clearly defined. In particular, a virtuous society is one that upholds a set of virtues. This set of virtues, however, is based on morals, since virtues are defined as qualities that are morally good or promote individual or collective moral greatness. We still have the same logical problem. We still need a basis for the set of virtues that make up a virtuous society.
To be a little more practical, maybe division isn’t so bad and might be one of the reasons that democracy sort of works. Different people value and prioritize morals differently, and democracy, in theory, allows the people to adjust the rules to fit the views of the time and the majority. True democracy means we don’t require a precedence or basis for our moral decisions. Instead, the people decide what is right through elections, legislation, and the judicial process.
I’m glad we decided to tackle this question because I’ve learned a lot through the discussion. We came up with similar concepts and reasoning, which is always neat. As a society, we need to understand that morals are very rarely absolutes. What we value may not be valued by others, and we must respect what others value. In our society at least, another’s opinion and vote counts just as much as our own.
I had a hard time with this response, rewriting it completely, which I don’t often do. There are two issues at stake here: understanding morality and determining whether or not it has a place in law. Both are highly philosophical, so it’s perfectly reasonable to have different viewpoints.
With that preface, let’s first discuss morality. It’s denotatively black and white, but in practice is highly dependent on a variety of factors. What I mean is that by definition morality differentiates right and wrong, good and bad, but in practice there are gray areas. We don’t all agree on what’s right and wrong. Descriptive morality is formed primarily by culture, religion, and experience. For instance, while we may agree that killing is generally wrong without strong justification, we may not agree on the moral and legal issues of abortion or capital punishment. Normative morality, on the other hand, is universally applicable. To be exact, it is a “universal code of conduct that all rational persons, under plausible specified conditions, would put forward for governing the behavior of all moral agents” [Stanford Philosophy Encyclopedia]. But what does that really mean in practice? Well, it generally deals exclusively with preventing harm to oneself or others. It does not apply to the juicy gray areas we see in descriptive morality.
Legislating morality, the second issue at stake, is truly a slippery slope. What is right for one person is not necessarily right for others, and vice versa. But, if we don’t legislate based on morality, then on what should legislation be based?
Morality provides rules of conduct, while the purpose of the law is to enforce a set of rules. In the U.S., we base our laws on a constitution, which mostly just shows how our country should be governed, but it also includes amendments that delineate certain rights. The authors and judges used morality and ethics to construct these rights, which have evolved over time, for example abolishing slavery and giving voting rights to women. Those seem like no brainers today but were considered moral and legal gray areas at the time.
To answer the question, my view is that only normative morality should be legislated, i.e., if the law reasonably prevents harm to oneself or others. This is why we have seatbelt laws (self harm) in addition to speed limits (harm to others). It’s simple and logical. Any laws related to descriptive morality may not stand the test of time and may have sometimes severe consequences, for example banning homosexual marriage or the Three-Fifths Compromise. You may not see those two as similar, but I’m not trying to equate them, just pointing out that both do not prevent harm to oneself or others and clearly do harm a group of people, either by dehumanizing slaves or by limiting significant rights of gay people.
My view is incomplete, however, since it doesn’t detail if or how to form laws that do not relate to harm to oneself or others. Luckily, legislation is not my job.
Interesting follow-up sources:
Response from Antipas
I love how we write independently, yet come up with such similar concepts, my friend. We’ve both landed on the familiar ethical question of harm, but you’re right in noting that it’s incomplete. I’m broadening the principle to include harm to society, and arguing that a lot more harm is done than we realize. But you surely can’t make everything illegal that causes harm. Thus my interest in a virtuous society, which goes beyond legislation to things like encouraging higher education, civil society, community, and so forth. I’d of course also add that religion and spirituality, rightly applied, can be great sources of virtue.
In the end, if we followed the path of looking at descriptive vs. normative morality, we’d find a lot more differences between us. What goes in which category? One person might say, “It’s wrong for me to practice polygamy, but maybe it’s right for others.” I’d say that it’s universally wrong to practice polygamy. How do we decide which category it goes in? Is murder universally wrong or just situationally wrong? How about stealing? How about jaywalking? You’re right to say it’s a slippery slope, and not one I’m interested in treading.
I’m with you in being glad that I’m not a legislator.