“You
can’t legislate morality!” is a common battle cry today. It’s thought to be a
quintessentially American idea, even though the Founding Fathers never
expressed such a sentiment. Nor did the early Americans who would unabashedly
enforce a biblically based code of morality in their localities, both via
social pressure and governmental laws, with transgressors sometimes spending
time in stocks — or worse. No, our common battle cry is a modern idea, and one
of modernism. It also betrays a fundamental, and dangerous, misunderstanding of
law’s nature.
In
reality, the only thing we should legislate is morality. The only
other option is legislating whims or immorality.
One
problem with addressing this issue, which I have done several times, is that
many readers have a reason-clouding emotional reaction induced by the
assumption that I’m advocating big government. So I’ll preface what follows by
saying that even if we enact just one law — let’s say, prohibiting murder — we
have legislated morality. The only people who could credibly say they wouldn’t
legislate morality are those who wouldn’t legislate at all: anarchists.
I’ll
start by putting this simply. Could you imagine a legislator saying, “This law
doesn’t prevent something that’s wrong, but I’m going to impose it
on you anyway”? What if he said, “This other law doesn’t mandate anything that
is a good, but I’ll compel you to adhere to it simply because I
feel like it”? Would you suppose his legislation had a sound basis? Or would
you think that, unlike a prohibition against murder or theft, the imposition of
something lacking a moral foundation (“rightness” or “wrongness”) was the very
definition of tyranny?
Generally
speaking, a law is by definition the imposition of a value (which can be
positive, negative or neutral), and a just law is the imposition of a moral
principle (good by definition). This is because a law — with the exception of
laws for naming post offices and such (which don’t constrain us and which won’t
be included henceforth when I speak of “laws”) — states that there is something
you must or must not do, ostensibly because the action is a moral imperative,
is morally wrong, or is a corollary thereof. If this is not the case, again,
with what credibility do you legislate in the given area? There is no point
imposing something that doesn’t prevent a wrong or mandate some good. This is
why there will never be a powerful movement lobbying to criminalize strawberry
ice cream or kumquats.
As
an example, what is the possible justification for speed laws? Well, there is
the idea that it’s wrong to endanger others or yourself, and, in the latter
case, it could be based on the idea that it's wrong to engage in reckless
actions that could cause you to become a burden on society. Of course, some or
all of these arguments may be valid or not, but the point is this: if a law is
not underpinned by a valid moral principle, it is not a just law.
Without morality, laws can be based on nothing but air.
One
cause of the strong negative reaction (generally among libertarian-leaners) to
the above is the word “morality” itself; as with “capitalism” in liberal
circles, the term has taken on a negative connotation. Yet this is partially
due to a narrow and incorrect view of what morality is. Use the word, and many
imagine the Church Lady or a preacher breathing fire and brimstone; moreover,
reflecting our libertine age’s spirit, people’s minds often automatically go to
sex. “Stay out of the bedroom!” we hear, even though the only side legislating
bedroom-related matters today is the Left (e.g., contraception mandate, forcing
businesses to cater faux weddings). It’s almost as if, dare I say, some people
are worried that others may ruin their fun.
Morality
encompasses far more than sexual matters, however. Yet it is narrow in one way:
it includes only correct principles of rightness. And, again,
when these are not the stuff of laws, elements of wrongness will be.
Speaking
of which, everyone advocating legislation seeks to impose a conception of
morality or, as modernists are wont to put it, a “values” set. For example, the
only justification for forcing bakers to service faux weddings is the
(incorrect) notion that it’s “wrong” to deny such service. ObamaCare could only
be justified based on the idea that providing medical care for those who can’t
afford it is a moral imperative. And “transgender” bathroom laws
would have to be based on the fancy that it’s wrong to
disallow someone from using facilities associated with his “gender identity.”
A
common argument I’ve heard in response to the above is “No, I don’t legislate
morality; something should only be illegal if it harms another.” Other
arguments are that we should merely prohibit “force” or protect “property
rights.” Leaving alone the deep matter of what constitutes “harm,” these
assertions are, with all due respect, dodges. Is it “wrong” to harm another,
use unjust force against him or violate property rights? If not, why trouble
over it?
People
making the harm, force or property-rights argument are almost universally
sincere, except with themselves, as it’s self-deception. It’s a way of
preserving a mistaken ideological principle (“Don’t legislate morality”) by
obscuring what it is you’re actually doing when making law. It’s also dangerous
because it keeps things on a more superficial level. It’s a way relativistic
moderns can avoid dealing with something they consider inconvenient, messy and
divisive: determining “What is good?” But when you don’t work hard to settle
what is good, you end up with what is bad.
Another
reason many people are oblivious to the morality underpinning their conception
of law is that many moral principles are now woven so seamlessly into our
civilization’s fabric that we don’t recognize them as “morality.”
Yet a moral
does not cease to be a moral because it becomes a meme. Consider that while we
take for granted that theft, murder and slavery should be governmentally
prohibited, most pre-Christian pagans would have found such an idea foreign.
Pillaging for a living, Viking-style, was common and accepted; might made
right. And while you might not murder or enslave your fellow group members (one
problem Athenians had with Spartans was that the latter enslaved other Greeks:
the Helots), outsiders were fair game. In fact, if there had been such a thing
as a libertarian Roman, he just might have said to Christians endeavoring to
outlaw the brutality of the arena, “You can’t legislate morality!”
There
can be no such thing as a separation of morality and state. That is, unless we
want to regress to man’s default, the immoral state.
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