Viewer Mail Question: What does it mean to “legislate morality”? Isn’t any and all legislation a form of legislating morality? It seems to me that if we did not legislate morality, there would be no laws. We’ve determined that undermining ones welfare and liberty are wrong, and have outlined certain laws to strengthen individual liberty and welfare.
Response: Laws are just a set of rules to ensure the safe and harmonious interaction of society. Whether or not laws align with morality, has everything to do with your personal sense of moral values. But we don’t govern from morality, in the U.S. for example, but from a Constitution that was put forward by some people, as what was considered to be a good idea for governance. The Constitution does not tell anyone what is right or wrong. It talks only about governmental authority. Regulations aren’t morals.
A good example would be the food industry. They have food safety regulations. You might think it’s immoral to produce food in a way that makes it unsafe and potentially harms people. But that is NOT the reason for our food safety laws. The food safety laws are enacted because the government is tasked with looking after citizen safety. In short: It’s a bad idea to have your population eating poison. It causes a problem for your citizens, and therefore is a government concern, because the government wants to ensure the smooth function of society. Not because the government is telling people what is moral.
If our laws were based on “morality”–whose morality would we use? I know many people who believe it is morally incorrect to have an abortion, but hold to the legal ethic that it is a personal choice. So, a woman may, for example, think “I could never have an abortion, because I think it would be wrong to destroy my baby (some would not abort if their lives were in danger), but I understand not everyone sees it that way, and our basis for law indicates individual autonomy that requires each woman use her own judgement to decide what is best for herself.” The woman who thinks ‘I could never do that’ is not wrong. That’s her moral value. She’s just saying she couldn’t bring herself to do that–from a moral standpoint, based on how she views it. But legally she gets the law isn’t regulating morality, but ensuring individual rights/freedoms; and since she doesn’t want the law deciding what people do with their bodies (she gets she would not want the gov’t to force her to have an abortion), she extends that “right” to herself and her peers–legally. It has nothing to do with her morality.
The confusion happens, from what I’ve seen, when our laws and our morals overlap. People become confused thinking that this means laws are “based on” morality. But that leaves the door open for Sharia laws where people are convinced that is moral behavior. The law is best suited to balance society’s and the individual’s interests in a way that works for both–preferably optimally. There is a social contract between individuals and society whereby the society offers protection (generally) and the individual offers contribution and allegiance to the society. All social animals do this–not just humans.
Certainly a law may be immoral, and people may oppose it on moral grounds. There are laws in some Mid East nations that say you can’t honor kill, but the people often disregard it and honor kill anyway, because they believe they are morally obligated. Alternately, we have had laws that were morally opposed–such as slavery. However, the question of “should I be allowed to own slaves” in the U.S., is NOT determined by the morality of the law, but whether or not it aligns with Constitutional values–which are not moral statements but statements about the interplay between governmental authority vs. individual rights and freedoms. So, in the U.S., opposing slavery “because it’s immoral” would get you nowhere. Opposing it as an illegal imposition on the individual rights guaranteed in the Constitution is how you get it abolished. There are times when a particular behavior causes civil unrest, and if it’s not illegal, we may amend the laws to outlaw it, as well. In the U.S., when laws do cross over with morality–we get a huge mess and a lot of public controversy and problems–such as we saw with women’s votes, slavery, gay marriage and abortion. This is why erring on the side of “freedom” is best. That way the people who are morally comfortable with gay marriage can do what they please, those who aren’t don’t have to have a gay marriage. But those who make a moral case for these things to be outlawed are irrelevant. They must show a legal precedent, some realistic projections of sufficient social harm if these things are legal, or some conflict with the Constitution. “It’s against my morality” doesn’t fly to change laws, when you’re in the realm of law.
We have a lot of laws that have nothing whatsoever to do with morality. We have, for example, parking zones where I can sit my vehicle for only limited time periods. If I leave it for 2.5 hours rather than 2 hours–is that “immoral”? No, but it’s illegal. The laws are just about “how do we work well together,” not telling people what is right or wrong–but what society will allow or not allow. It’s two fundamentally different value starting points. Making abortion legal does nothing to make the people who don’t believe it’s morally correct change their minds. It only makes them (theoretically) respect the legal right of others to hold different values/morals and do what they like in the name of Constitutionally protected autonomy.
The other point of confusion is that both law and morality come from being social animals. We can breed asocial species and make them social species–by selecting for traits connected to “passivity.” Being “social” as a species means developing things like “fairness,” “equity,” “empathy,” and “compassion.” If we did not have these traits as a group (along with other social species), we wouldn’t even be able to think of “others” as part of our in-groups, and our societies (wolf packs, lion prides, human cultures) would break down. The fact that we are built to survive in groups means we have to have rules that govern interplay between individuals. And laws also, therefore, must deal with “fairness” and “equity” in the sense that they are trying to avoid problems in society–not because they’re judging morality. It’s that, in some aspects, morality and law are often based on similar social tendencies and needs, but exist for different reasons. It’s not that law is based on morality. Social species have the capacity to develop a personal sense of what is acceptable behavior, because we’re social (this is the reason you can train dogs–or children for that matter). But laws have to cover everyone–even the many people within the society who have very different moral positions than you do. The laws have to incorporate the reality that they must accommodate many diverse individuals–which is why maximum individual freedom is a good idea. That way you are allowed to have your own morality, and I have mine, and we can operate under our own moral senses without interference from the law–which only serves to help us function together as a society. The law merely does what it can to make sure that citizens operate well together as a group. Morality is about a personal sense of right and wrong.
I don’t know if that helps or answers your question, but that’s it in a nutshell.
And this viewer was kind enough to write back and let me know the explanation was helpful.