Monday, January 20, 2014

You Can't Legislate Morality... Can You?

How often do we hear it said that we "can't legislate morality"? That we can't "impose our values"? Most Americans take these statements for truisms. They are uncritically assumed to be true. Of course, Catholics are seen as the major violators of this unwritten rule. Again, the idea that we can't legislate morality is uncritically assumed to be true. Let's be a little more critical today and see if such an assumption is really worth making.

What is "law"?
First, we might do well to ask, what is the law for? Why have law at all? What is it meant to do? St. Thomas Aquinas, in the Summa Theologiae, defines law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated." Thomas see's a good definition as containing all four of the "causes" - material (what something is made of), formal (the shape, concept, or idea of a thing), efficient (the maker of a thing), and final (the purpose of a thing, it's why). His definition of "law" follows this pattern, it breaks down thus:

Material Cause of Law - promulgated
Formal Cause of Law - an ordinance of reason
Efficient Cause of Law - by him who has charge of the community
Final Cause of Law - for the common good

According to this definition, can we legislate morality? Well, as long as such legislation is issued by a legitimate authority, is published for public knowledge, is reasonable, and is directed to the common good it would appear we could. In other words, there is nothing contradictory about legislating morality, there is nothing in the essence of what we mean by "law" that would prevent morals from being legislated.

At this point, an objector might say, "okay, we can legislate morality, but we shouldn't." Which brings us to the question, should we?

If we shouldn't legislate morality, what should we legislate?
Or, in other words, can we legislate anything other than morality? Everyone agrees that premeditated murder should be illegal. Why? Because willfully planning and killing an innocent person is... immoral.  Everyone agrees that rape should be illegal, that rapists should be imprisoned. Why? Again, because raping someone is... immoral. It's wrong. It's an evil thing to do. In fact, all laws are grounded in some morality. Speeding is against the law. Why? Because speeding needlessly endangers the lives and property of innocent people and endangering the lives and property of others is... immoral. Examples can be multiplied almost endlessly. In fact, if we can't (or shouldn't) legislate "morals" or "values" then we can't have any law at all! Only the most radical of anarchists (a very tiny percentage of the population) would condone getting rid of the law entirely.

Does anyone really believe that we can't legislate morality?
No, at least not anyone I've ever met or spoken to. What people really mean when they say "you can't legislate morality" or "you can't impose your values on someone else" is almost always, "you can't impose your (sexual) morality on someone else" and "you can't legislate (sexual) morality." No one ever says we can't legislate against other morally objectionable things. When have you heard someone throw up their hands and declare, "oh well, you can't legislate morality" when discussing murder? Or child abuse? Or even air pollution? When have you heard someone claim that we must not "impose our morality" on a thief?  No, it's only when it comes to sex that suddenly morality must not be legislated. Dr. Peter Kreeft once asked rhetorically, "If babies came from storks instead of from sex, how many abortions do you think there would be?" 

The next time someone tells you that we "can't legislate morality" or to not try to "impose your values" ask them if they are against punishing thieves, rapists, and murders. When they say no, ask them if they really are only talking about "sex" when they say "morality" and "values", then ask them why sexual morality ought to be treated differently than every other type of morality. If they answer that such acts should be treated differently, a real conversation can proceed without "you can't legislate morality" slogan being used to end discussion.

I answer an objection from the combox HERE


  1. The flaw in your argument is that the examples you use are all laws meant to protect and keep people from harm. If by sexual morality, you are speaking about acts between consenting adults, these acts do not place individuals in physical danger, therefore you can not equate them with murder, rape, etc.

    When you say you are advocating sexual laws, does that include laws against adultery, fornication and divorce, or are these laws to only be aimed against same sex acts? You must understand that most people consider it hypocritical when there is a demand for laws against homosexual acts and not as strong a demand for laws against heterosexual acts.

    Furthermore, with sexual laws you are seeking to impose religious values, since they do not protect individuals or property. Would you agree with the imposition of sharia law? Muslims also have rules about the proper conduct of individuals in the sexual sphere. How would you react if they demanded civil laws which supported their religious beliefs? (I know there are Muslim countries where sharia law is civil law, but those are countries which are not based on the constitutional separation between church and state.) When people see Christians demanding that the rules of their individual denominations be ensconced in civil law they see that as an attempt to violate the separation of church and state. They react the same way most Christians would react to the imposition of sharia law.

    1. Hi Gabriella,

      Thanks for the thoughtful reply. I'll work up an answer to your objections and post it tomorrow. God bless.

    2. The reply is up. Thanks again for the thoughtful reply -

    3. Whilst I agree with you, I point out that someone who wanted to avoid conceding your point without trampling over the bans on murder, rape, etc might say that they reject your model of morality wholesale. They might define "right" in the sense of "what produces the best effects for the greatest number of people" (and thereby become something like a consequentialist). If they did this, there would be nothing that stops them from having what they want, since they can just say "No, I don't want to stop murder because it's immoral, I want to stop it because it harms a great number of people. (The morally-questionable things I don't want you to reproach me about) don't fall under that, because they don't harm the greater number of people". Of course, the problem with this argument, the thing that makes it stick in the craws of many, is that in order to accept it and maintain consistency, you have to admit that "morality" as commonly understood isn't actually real, it's just an illusion - it's not REALLY true that all men are created equal and deserving of equality under the law, that's just the opinion of the majority right now, and it could well change. Similarly, I'm certain that 70% of the population *could* gain great material benefit by enslaving the other 30% and having them tend to their every need. Since this would benefit (at least in theory) the majority of people, I can't see how consequentialist morality could really denounce such a thing, at least not within its own definitions of morality. Oh, certainly you could say that it would be horrible and barbaric, but neither of those things is relevant to morality by consequentialist standards - they're just your personal feelings about the subject.

      Now, perhaps I have been unfair to the consequentialist position, and if I have been, may someone correct me, for I do not wish to be a knowing peddler of falsehoods.

    4. Cantus,

      Great points. I think the consequentialist approach would also be reducible, ultimately, to an implicit moral view that "we ought to do that which benefits the greatest number of people", otherwise we can wonder why those in power shouldn't merely seek to do that which benefits them (like African kleptocracies). In this case, our consequentialist friend would be right back face-to-face with the original moral argument.

      That being said, your argument - forcing the consequentialist into not being able to condemn the Holocaust or slavery - is probably more immediately effective.

    5. ALL laws impose someone's view of morality. It is not necessarily a religious question at all. The first response equates opposition to homosexuality to a religious view. That is entirely a non sequitur. Although in this day it probably is, there is no historical or philosophical reason for that. Homosexuality was a criminal offence in the atheist Soviet Union, and remains so in atheist Cuba. So THAT point is entirely invalidated.

      But I'm more interested in the idea of the first response there that seems to fixate solely on laws about sexual behaviour. Aren't there any other laws which have their origins in Christian thought?

  2. Nathan, for the first time I find myself disagreeing with you, at least in part. We do hold to the same principle, that doing harm is a grave social ill which is a troublesome legislative problem. Where we differ is the application of this moral point, and I happen to think that legislators are bound by the same social and moral principles as the rest of us, in other words, do no harm is a moral constant.

    Morals must apply all the time. Something must be wrong in every circumstance and not right because someone wears a particular set of clothes, has a certain piece of paper, or works in a special building. How does this relate to my objection?

    Governing bodies that wish to enforce their legislation have to find some way to provide a disincentive to disobedience. This is usually accomplished through monopoly of force, which is the exclusive right to use coercion is certain circumstances. Almost immediately the contradiction is apparent, because the government is engaging in an activity that it prohibits to others.

    Governing bodies also require funding to carry out their task. This is the real moral outrage, for in order to fund its activities a government must either either engage in the market or forcibly obtain funding. Since there is little market incentive to purchase a service which would end up negatively affecting whoever buys it, government choose the latter. Thus, anyone who chooses not to fund the government will be harmed by the government. So in order to prevent harm, the government does harm, or at least threatens it.

    Legislation is a great contradiction. It forces anyone that adopts it to hold an irrational view of morality, that it does not apply all the time. This is no way for society to function since the inevitable conclusion is that morality is defined in situations and not in principles.

    The only rational moral principle that legislation can then be based upon is do no harm at all. This is the only sane way for society to function. Madness is the only alternative.

    1. Hi Jim,

      Nice to see you again. First, I'd like to make sure I'm understanding your objection. Would it be fair to say you see the government using force to enforce laws to be a violation of morality and a contradiction (as the government forbids the use of force to its citizens)?

      If so, allow me to ask you, are you a father of teenage or younger children? I am blessed to be (3 under 8). Now I prohibit, through "the exclusive (in my house) right to use coercion" my children from drinking a beer or having a cigar, yet I enjoy both. Thus, I, much like the government, am "engaging in an activity that (I) prohibit to others." This, however, surely is not an "immediate... contradiction" as who a person is (including what role they are playing) determines what actions are moral or immoral for that person. It is moral for me to enjoy am alcoholic beverage or a smoke, yet it would be immoral of me to allow my kids to. Likewise a priest can forbid a public, unrepentant sinner from receiving the Holy Eucharist at Mass (cf. Canon 915) even after he has himself received, without contradiction. In both these cases, and in the case of the government, rightly constituted authority (that of a parent, of a priest, of a State) has the legitimate power and the moral responsibility to exercise authority for the common good. Far from being "a great contradiction" "legislation" is an essential aspect of communal life, one which has been with man from the beginning and one which has an important role in the life of the Catholic Church. More importantly, God Himself, according to your objection, "holds an irrational view of morality" as He forbids things to us that He may Himself do (e.g. God determines when all people will die, but forbids us from doing the same in the Fifth Commandment).

      I'd also point you to St. Augustine's "just war theory," which allow precisely what you seem to object - prevent unjust harm through the use of just force, even if harmful. The difference between rightly constituted authority (which flows from God - cf. Rom 13:1) using force and you or I doing so is the same difference as an unjust aggressor resorting to war and a just defender doing so. It is hardly a "great contradiction" for a nation to defend itself from attack by counterattacking the enemy for the two acts aren't the same - one is just and the other is unjust. The same is true for the comparison between the government threatening to punish (or actually punishing) malefactors through force and the force used by the malefactors themselves. It is a case, not of contradiction, but of comparing "apples and oranges," just acts and unjust ones.

      Perhaps I am understanding you incorrectly, if so, please feel free to correct me, but you seem to be advocating something akin to anarchism, which can't be squared with our Holy Faith (we are under a moral obligation to obey rightly constituted authority unless the demands of that authority run contrary to a higher authority - the natural or divine law). We must "render unto Caesar that which belongs to Caesar" (Mk 12:17) including obedience to his laws.