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.
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.
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.
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.
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.