In a recent post on Centerfield, the author took as his point of departure the dopey catchphrase “You can’t legislate morality”. That’s one of the phrases that is almost certain to make me see red since it is my sincere belief that nearly all law is a legislation of morality. In the comments section I asserted that all law was legislating morality. Another commenter cited a purely procedural law in refutation of my claim which he characterized as “silly”.
Let’s start with a few quotations:
“Law is the highest reason implanted in Nature, which commands what ought to be done and forbids the opposite.”
—Marcus Tullius Cicero“Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.”
“But it must be noted that something may be derived from the natural law in two ways: first, as a conclusion from premises, secondly, by way of determination of certain generalities. The first way is like to that by which, in sciences, demonstrated conclusions are drawn from the principles: while the second mode is likened to that whereby, in the arts, general forms are particularized as to details: thus the craftsman needs to determine the general form of a house to some particular shape.”
—Thomas Aquinas, Summa Theologica
Note: For Aquinas the natural law was the moral law. Or, in other words, for Aquinas human law was the instantiation of the moral law i.e. legislating morality.“Law in general is human reason in as much as it governs all the inhabitants of
the earth and that the political and civil laws of each nation ought to be only
particular applications of human reason: Diverse as positive laws may be, they
are part of a uniform law that existed prior to positive law.”
—Merquior, paraphrasing Montesquieu“What then is the relation of law to morality? Law cannot prescribe morality, it can prescribe only external actions and therefore it should prescribe only those actions whose mere fulfillment, from whatever motive, the state adjudges to be conducive to welfare. What actions are these? Obviously such actions as promote the physical and social conditions requisite for the expression and development of free—or moral—personality…. Law does not and cannot cover all the ground of morality. To turn all moral obligations into legal obligations would be to destroy morality. Happily it is impossible. No code of law can envisage the myriad changing situations that determine moral obligations. Moreover, there must be one legal code for all, but moral codes vary as much as the individual characters of which they are the expression. To legislate against the moral codes of one’s fellows is a very grave act, requiring for its justification the most indubitable and universally admitted of social gains, for it is to steal their moral codes, to suppress their characters.”
—R.M. MacIver“Moral principle is the foundation of law.”
—Ronald D Dworkin“You can’t legislate morality; We legislate little else.”
—Robert Bork“The law…is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the due process clause, the courts will be very busy indeed.”
—Byron White
I’ll plead guilty to exaggeration and quite a few other things but if I’m silly, I’m silly in very good company.
So far I haven’t demonstrated anything other than a lot of people who are smarter and more learned in philosophy and the law than I am agree with me. Let’s examine the meanings of the words we’re using:
1 a : a moral discourse, statement, or lesson b : a literary or other imaginative work teaching a moral lesson
2 a : a doctrine or system of moral conduct b plural : particular moral principles or rules of conduct
3 : conformity to ideals of right human conduct
4 : moral conduct : VIRTUEand
1 a (1) : a binding custom or practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority (2) : the whole body of such customs, practices, or rules (3) : COMMON LAW b (1) : the control brought about by the existence or enforcement of such law (2) : the action of laws considered as a means of redressing wrongs; also : LITIGATION (3) : the agency of or an agent of established law c : a rule or order that it is advisable or obligatory to observe d : something compatible with or enforceable by established law e : CONTROL, AUTHORITY
2 a often capitalized : the revelation of the will of God set forth in the Old Testament b capitalized : the first part of the Jewish scriptures : PENTATEUCH, TORAH — see BIBLE table
3 : a rule of construction or procedure e.g. the laws of poetry
4 : the whole body of laws relating to one subject
5 a : the legal profession b : law as a department of knowledge
Using definition 3 of morality and definition 1 of law it would seem to be tautologically clear that establishing a binding custom or practice i.e. legislating is establishing conformity to ideals of right human conduct. The only cavil that would seem available would be to the formulation “ideals of right human conduct” but it seems to me that this is unsupportable. The available alternatives would appear to be that law establishes right conduct, wrong conduct, or arbitrary conduct. No law is necessary to establish arbitrary conduct—we can get that for free and often do. And it’s inconceivable that law aims to establish wrong conduct. So the intent is clearly to establish right human conduct. And this is as true for procedural issues as for substantive law.
Note: in this post so far I have not dealt with the substance of the post on Centerfield to which I’ve linked. I think that in many cases, including the one cited by the author (prohibiting droopy trousers), there are more prudent ways than legislation to encourage the desired conduct especially social stigma i.e. ridicule and shame. But the cult of political correctness takes direct aim at the use of social stigma as a means of modifying behavior and that, in my opinion is one of its most serious defects: it tends to promote litigicization of even trivial conduct by removing less punitive measures from the table. If the only weapon you’re left with to swat a fly with is a cannon, a cannon you will use.
Great quotes. But I think you miss the point about “you can’t legislate morality”. And that point is int one of the wuotes you provided:
Saying “you can’t legislate morality” is a double-edged sword. On the one edge we acknowledge that morality is central to Law. In fact, it’s whole purpose. On the other edge we understand that having a sense of a morality is not a license to enforce it upon others — that that is tyrany.
There’s a part of Morality that requires us t’ disclaim that one among us might be the author of it.
That’s not quite the point of that quote. That quote has two points. The first point is that the law is a subset of morality (with which I agree completely). The second point is that the sphere of law should be restricted prudentially, a stricture which is, unfortunately, routinely ignored.
In my view the law is the minimum code of ethics and, consequently, should change over time as the view of what is or is not acceptable at the minimum changes over time. But that has no impact whatsoever on what is or is not moral.
And, as should be obvious, I simply love Thomas Aquinas. He was the world heavyweight champ. One may not agree with everything he has to say but you ignore it at your peril. One of the most incisive minds ever.
“You can’t legislate morality” is a mental shorthand. And, as with most such, it can become too easy a substitute for precise thought. What is really meant by most who use it is that the relationship between law and morality proceeds in only one direction: morality obviously informs law (definition 1, of course) but law does not inform morality.
“moral codes vary as much as the individual characters of which they are the expression”
This is, at best, an exaggeration verging on falsity. There are not 6 billion different moral codes running around on the planet. If there were, Hobbesian anarchy would be a firecracker compared to the result.
Moral codes are obviously zoned in human groups, generally either religions or tribes, in the broad sense that tribes still remain, even when the culture as a whole is not tribal.
However, though there is considerable overlap among most moral codes, finding any principle in them which is “universal” is a hard task. Even the broadest moral overlaps–cannibalism, human sacrifice, incest–have not been universal in our species.
Our country, as a self-made stew of both religions and tribal cultures, brings these problems into focus, and too cursory an apprasial of that focus gives us shorthand like “you can’t legislate morality”. No one can “steal another’s moral code” and the adaptation of law to that fact is the major dilemma of our particular democracy.
Not all law is morality. For example, some laws are for the sake of expediency or to maintain order, like traffic laws, which make traffic flow more smoothly. Order is preferable for many reasons besides that of morality, for example it’s a prerequisite for a thriving economy.
And I prefer to think of it this way: you can legislate morality, but you’re better off not trying, because governments are really bad at it. They may change behavior, but people usually don’t change their morals and just skirt the law in other ways, creating a slew of unintended consequences and lowering the respect of the government and the law in the eyes of the people (especially if they view politicians as being largely immoral).
That’s a perfectly reasonable formulation, fling93, and one I’m generally inclined to agree with. But the key point here is that we can, do, and should legislate morality and have done since the very earliest laws. The Code of Hammorabi includes “Thou shalt not kill”, “Thou shalt not steal”, and “Thou shalt not bear false witness”. While I’ll (grudgingly) accept the notion of procedural laws not being a legislation of morality, I still maintain that the general claim that you can’t legislate morality is fatuous.
Yeah, and I don’t agree with that claim either, as it’s essentially a ruse to try and end debate before it starts.
A lot of laws can be perceived as legislating morality, but many of them can also be viewed as maintaining order. For example, the economic incentives of private property pretty much dissipate if you can murder and steal. You can view the purpose of the law either way, and I have no problem with such laws or however you want to view them.
I’m just saying I think it’s best if government does not try to pass laws where morality is the only justification, because it’s unlikely to get the desired results. Shouldn’t be a hard and fast rule, though.