Repost: “We shouldn’t legislate morality”

Then what should we legislate? A law is a written, formal norm, and a norm is an expression of a moral opinion. Therefore, all laws are, in one way or another, ultimately expressions of moral opinions. One can legislate morality or one can legislate nothing.

P.S. When I originally posted this, it received several interesting replies, including a couple of counterarguments. They are reproduced below along with my responses, which I’ve slightly edited for style.

Anodos:

But it sounds so good to say it. For a politician to admit otherwise would be like for an academic to admit that his carefully-pruned technique does not, in fact, make him perspective-neutral. The mask is just so comfortable.

Matt Weber:

Well, some laws are based directly on moral norms–don’t kill, don’t steal–, but others aren’t really. For instance, in the US it’s illegal to drive without a license but it isn’t immoral to do so. If you dig deep enough down in the idea of driver’s licensing you’ll arrive at a norm–you shouldn’t operate heavy machinery without proving you can do so safely–but the driver’s license requirement isn’t itself the legislation of a moral norm.

But then, usually what’s meant by the statement is that you shouldn’t legislate based on moral norms that I don’t agree with.

Svein Sellanraa, in response to Matt Weber:

I can see your point, but I think even that example comes down to morality in the end. To my mind, there are two kinds of laws: Those that ban intrinsically immoral acts (i.e. acts that by definition are always wrong) such as killing and stealing, and laws that ban or limit acts that, while not intrinsically wrong, would harm the public good if they were carried out indiscriminately. The former are moral inasmuch as they’re grounded in moral imperatives, while the latter are moral inasmuch as they’re grounded in a particular conception of the public good. Laws against driving without a license, among other things, go into the last category.

Bruce Charlton:

Very good!

I used to believe that one should not legislate morality – but that was completely and utterly mistaken, a viciously damaging idea.

In fact, as an ideal to be aimed for, the state should only legislate morality (as you say), and the link between law and morality should be crystal clear.

In a sense, virtuous people should already know the law without any need to learn it.

Erik:

I disagree. There are some trivial non-moral matters that one can legislate. For instance, which side of the road to drive on.

Svein Sellanraa, in response to Erik:

I think a case can be made that even these trivial, non-moral laws are indirectly moral. I’ll use your example. While there is, of course, no universally and objectively “right” or “wrong” side of the road to drive on, every area has to agree on a standard in order to prevent injury or death in traffic accidents. I concur with you that this agreement is not itself moral, since it makes no claim to be objective and universal. Ultimately, however, it is based on a desire to avoid traffic accidents, and that in turn is based on a particular conception of the public good which holds that the death and injury caused by traffic accidents are bad things: Hardly a very controversial prciniple, but nevertheless an ethical one.

3 thoughts on “Repost: “We shouldn’t legislate morality”

  1. Anybody who supports “anti-discrimination” legislation and has the nerve to say, as people often do, that we shouldn’t legislate morality, needs to be called on it. Laws against discrimination are entirely about a moral judgment of right and wrong, as can be divined in part by the passionate righteous fury with which they are defended. The same can be said of innumerable rules, statutes, and regulations that have the approval of polite (leftist) society. Practically their entire agenda is moral in content and purpose.

    It’s a little like the claim that “there is no truth,” or that “morality is subjective.” These are not things that people really believe–it would be impossible sincerely to care about politics one way or another if you did believe them. They are merely fall-back positions, rhetorical pirouettes to get oneself out of a tight spot, or simply to defend the indefensible. Similarly, nobody really believes that you shouldn’t legislate morality–for heaven’s sake, what else is “hate crimes” legislation but a (demented) statement of moral disapprobation?

    In fact practically every law is driven by the desire to advance some moral principle or other. Even if the peculiar specifics of the law are not moral statements in themselves–the example of a 35 mph speed limit, say–they nonetheless exist to advance some purpose that is not purely “practical,” and in truth it’s difficult to conceive of what a purely practical law might be, though I’m open to the idea that some examples might be out there.

  2. In casual usage, “morals” refer to Christian morality, which is but one system among many. The proper term of art for liberal morality is “truth”.

    The bizarre dichotomy between “morals” and “ethics” is an example. So while e.g. the Catholic Church may consider it (subjective) “immoral” to distribute contraception, it is (objective) “unethical” for them to refuse.

  3. Pingback: The Good, the Real, & the Fake Economy « The Orthosphere

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