Legislating Morality

You can't legislate morality. You've heard that time after time. You may have even said it ... or at least thought it. But have you thought about it?

The phrase can mean several different things. It may suggest that it is not right to legislate morality. "If you try to legislate morality, you will be forcing your views on others. That's not right." It may mean that it is illegal to do so. "Moral views are intrinsically religious views, and the Constitution has a sharp separation between Church and State, so it would be illegal to try to legislate morality." A recent twist I hadn't considered in the statement referred to the practicality of the concept. "You can't make a person internally moral by passing laws intended to make them behave a certain way." Okay, fine ... but is it true?

I recently heard someone say, "All laws are based on morality." I balked at that. "No they're not," I thought (which seems to be my default, defiant thought). "Some laws are simply practical, like laws about motor vehicles or tax laws." But as I thought about it, I realized that these, too, were based on an underlying moral view. We believe that it is required of government to provide us with certain things like security and such, so it is right to pay taxes. We believe that it is good for society to have safe vehicles on the road, so we have vehicle regulations. We believe that murder is immoral, so we outlaw it. We believe that theft is evil, so we outlaw it. You might argue that we can't legislate morality, but the truth is that all laws are based on a moral perspective. As California demonstrated, when that perspective changes, so do the laws. The truth, then, is that we are legislating morality. That is, we have the laws we have because we think they are the right things to do (or the wrong thing not to do as the case may be).

"But that's just your religious perspective. You can't force it on others." Well, maybe. The problem with that is that the only rational basis for any binding moral perspective is that it is given by a Lawmaker who has the right to make moral calls. If morality is not based on a moral Lawgiver, it simply becomes pragmatism -- "what works." In this scenario, it's not evil to kill another human being; it's just not a good idea. It's not good to help your neighbor; it's just wise to do so. Without a moral Lawgiver, "good" and "evil" are pure fabrications, relative perceptions that have no basis and no binding power on all of society. You may think it's unwise to kill someone, but someone else may see it as expedient and, since it is pragmatism, it is right. You can't fight it. Deny religion in morality and the law if you like, but without it the whole thing falls apart.

Can we pass laws that make people internally moral? No, of course not. But that is not the aim. The aim is order. The aim is to attempt to make as many people as possible in society behave in a manner that benefits society. That, regardless of what you may think, is legislating morality. Indeed, if you wanted to remove such legislation (as some libertarians would argue), you are imposing a moral view that legislation based on morality is wrong ... and you've legislated morality again.

I know. We like to think that it's true. You'll hear it all the time. And if it's meant in the sense that you can't pass laws that make people intrinsically good, I would agree wholeheartedly. If we don't, on the other hand, pass laws that try to urge people to be good regardless of their inner values, we will end up without any order. I think that's called "anarchy." I think that would be a problem.