Thursday, November 4, 2010
Legislating Morality
Micah Watson, at Public Discourse, explains why we "can't help but legislate morality":
“You can’t legislate morality” has become a common turn of phrase. The truth, however, is that every law and regulation that is proposed, passed, and enforced has inherent in it some idea of the good that it seeks to promote or preserve. Indeed, no governing authority can in any way be understood to be morally neutral. Those who think such a chimerical understanding is possible could hardly be more wrong. For, in fact, the opposite is true: You cannot not legislate morality. . . .
To legislate, then, is to legislate morality. One can no more avoid legislating morality than one can speak without syntax. One cannot sever morality from the law. Even partisans of the most spartan libertarian conception of the state would themselves employ state power to enforce their vision of the common good. Given this understanding, the term “morals legislation” is, strictly speaking, redundant. The real question is not whether the political community will legislate morality; the question is which vision of morality will be enforced and by what sort of government.
https://mirrorofjustice.blogs.com/mirrorofjustice/2010/11/legislating-morality.html
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Barry Goldwater said you couldn't legislate morality to justify voting against civil rights bills.
Martin Luther King said (whether with Goldwater in mind or not, I don't know), "It may be true that you can't legislate integration, but you can legislate desegregation. It may be true that morality cannot be legislated, but behavior can be regulated. It may be true that the law cannot change the heart, but it can restrain the heartless. It may be true that the law cannot make a man love me, but it can restrain him from lynching me."
I have always taken the saying to mean something along the lines that King meant. You can't make an evil man good, but you can make him behave.
I think Micah Watson far overstates the case. There are laws that it would be a real stretch to describe as preventing immoral behavior or promoting behavior that is morally good. For example, there are laws about building tall buildings in certain places that are purely esthetic regulations. I don't think preserving landmark buildings is a matter of morality. Alternate-side-of-the-street parking is regulated by law, but not really for moral reasons.
Cathy Kaveny talks of two view of law -- as a teacher of virtue and as a keeper of order (the latter like a sheriff in the Old West). Micah Watson seems to be entirely on the "teacher of virtue" side.