In my last couple of posts I talked about the legalization of marijuana throughout the country as it is already in more than half of the states (I think it would be a good thing). That got me thinking about the reasons that people might think legalization would be a bad thing, and I addressed what I think are the three main reasons in my last post. But one of the things that became clear is that a lot of people think it would be bad out of some sense of morality, and their desire to apply their moral code to everyone. We see this in all kinds of things, but the reason it came up in my thoughts was because of the Temperance Movement, and the comparisons I drew between Prohibition and today’s “war on drugs.”
So in this post, I’m exploring the notion of where laws come from, and whether morality is (and should be) the underlying source of laws.
I think it’s inevitable (and many would argue that it’s appropriate) that laws reflect the morality of a society. It’s wrong to steal, so a law prohibiting it enshrines the “wrongness” into societal standards, but also (and maybe most importantly) gives society the ability to punish people who steal. But is it wrong to steal because (and only because) it’s immoral, or are there other reasons it’s wrong? We do have things as a society that are considered immoral or unethical, but they aren’t illegal. For example lying is unethical (and immoral) but it’s only illegal to lie when you’re under oath in a court of law. It may be that it’s not illegal because it would be literally impossible to prosecute every lie, but I think there are better reasons; not all lies carry the same harm. Telling my wife when she asks me that yes, a certain dress makes her look fat would be a very bad idea, and few would say that lying in that situation is immoral. (In a tongue-in-cheek moment a while ago I defined “tact” as “the series of small lies that we tell one another that provides social lubrication and keeps our society civil.”)
Another (and to me more compelling) argument is that societal norms are fluid. There are places right now in the world where it is considered immoral for a woman to drive a car or go out of her home without a male relative to escort her, and the local government has made that illegal as well. People in Western (and mostly First-World) countries think that’s absurd, and is the result of 7th-Century morals being applied to today’s society. Even here in the US, what was moral (or immoral) even a few years ago has changed, as the 1934 musical “Anything Goes” with the song by Cole Porter attests (see it performed at the 2011 Tony Awards ceremony.) It wasn’t all that long ago that adultery was illegal here in the US, and even more recently anti-sodomy laws were pretty common.
There’s lots of other examples that we could explore where morality does not automatically dictate what is regulated by law as illegal behavior, but it’s also clear that there are times when it does. And I think historically, it was pretty much universally assumed that if something was considered immoral it should also be illegal. This was especially true where the line between the church and political rulership was blurred or even nonexistent. I’d argue that even today there’s a significant subset of our populace who believe that any disconnect between morality and legality is evidence of the decline of our society; in fact I recall a book written by Robert Bork not too long ago named “Slouching Towards Gomorrah” where he argues that legalizing of abortion, assisted suicide and the decline of religion are all indications of a society in decline, which he says are the result of the rise of Liberalism. (For what it’s worth I think that’s errant nonsense, but that’s for another posting.) Furthermore, if you were to ask a random selection of people what dictates whether something should be a law, I believe a significant majority would tie morals to legality.
But just because one part of the world believes that something is immoral doesn’t (and shouldn’t) mean that’s true everywhere. I read a paper a number of years ago that made the point that for every belief I hold near and dear and absolute, someone, somewhere has the exact opposite belief that they cherish just as strongly. So what makes me right and them wrong? Of course, the next question is whether or not there is such a thing as universal morality; an “absolute Truth.” I think there is, but that’s also for another posting.
Suffice to say, I think morality and legality are two separate and distinct concepts and in fact should be kept that way.
There’s more to this though: if morality doesn’t dictate legality, what principles should laws be founded upon? Stay tuned.
About BigBill
Stats: Married male boomer.
Hobbies: Hiking, woodworking, reading, philosophy, good conversation.
Should morality determine legality?
So in this post, I’m exploring the notion of where laws come from, and whether morality is (and should be) the underlying source of laws.
I think it’s inevitable (and many would argue that it’s appropriate) that laws reflect the morality of a society. It’s wrong to steal, so a law prohibiting it enshrines the “wrongness” into societal standards, but also (and maybe most importantly) gives society the ability to punish people who steal. But is it wrong to steal because (and only because) it’s immoral, or are there other reasons it’s wrong? We do have things as a society that are considered immoral or unethical, but they aren’t illegal. For example lying is unethical (and immoral) but it’s only illegal to lie when you’re under oath in a court of law. It may be that it’s not illegal because it would be literally impossible to prosecute every lie, but I think there are better reasons; not all lies carry the same harm. Telling my wife when she asks me that yes, a certain dress makes her look fat would be a very bad idea, and few would say that lying in that situation is immoral. (In a tongue-in-cheek moment a while ago I defined “tact” as “the series of small lies that we tell one another that provides social lubrication and keeps our society civil.”)
Another (and to me more compelling) argument is that societal norms are fluid. There are places right now in the world where it is considered immoral for a woman to drive a car or go out of her home without a male relative to escort her, and the local government has made that illegal as well. People in Western (and mostly First-World) countries think that’s absurd, and is the result of 7th-Century morals being applied to today’s society. Even here in the US, what was moral (or immoral) even a few years ago has changed, as the 1934 musical “Anything Goes” with the song by Cole Porter attests (see it performed at the 2011 Tony Awards ceremony.) It wasn’t all that long ago that adultery was illegal here in the US, and even more recently anti-sodomy laws were pretty common.
There’s lots of other examples that we could explore where morality does not automatically dictate what is regulated by law as illegal behavior, but it’s also clear that there are times when it does. And I think historically, it was pretty much universally assumed that if something was considered immoral it should also be illegal. This was especially true where the line between the church and political rulership was blurred or even nonexistent. I’d argue that even today there’s a significant subset of our populace who believe that any disconnect between morality and legality is evidence of the decline of our society; in fact I recall a book written by Robert Bork not too long ago named “Slouching Towards Gomorrah” where he argues that legalizing of abortion, assisted suicide and the decline of religion are all indications of a society in decline, which he says are the result of the rise of Liberalism. (For what it’s worth I think that’s errant nonsense, but that’s for another posting.) Furthermore, if you were to ask a random selection of people what dictates whether something should be a law, I believe a significant majority would tie morals to legality.
But just because one part of the world believes that something is immoral doesn’t (and shouldn’t) mean that’s true everywhere. I read a paper a number of years ago that made the point that for every belief I hold near and dear and absolute, someone, somewhere has the exact opposite belief that they cherish just as strongly. So what makes me right and them wrong? Of course, the next question is whether or not there is such a thing as universal morality; an “absolute Truth.” I think there is, but that’s also for another posting.
Suffice to say, I think morality and legality are two separate and distinct concepts and in fact should be kept that way.
There’s more to this though: if morality doesn’t dictate legality, what principles should laws be founded upon? Stay tuned.
About BigBill
Stats: Married male boomer. Hobbies: Hiking, woodworking, reading, philosophy, good conversation.