Quantcast

«

»

Nov 07 2011

What does it mean to “legislate morality”?

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.

46 comments

1 ping

Skip to comment form

  1. 1
    jacobfromlost

    The purpose of laws is to keep civil order. There may be some overlap with some morals and the civil order that laws endeavor to achieve, but morality isn’t the purpose of laws.

    In fact, it can’t be. Laws by their nature have to operate in observable, demonstrable reality (if they are to work well in reality) and apply to everyone.

    Morality, at least where it doesn’t overlap with civil order, starts to become more personal, and more onerous to demonstrate that everyone should agree on them and therefore must be enforced on everyone using more resources than society as a whole would benefit from. If some people think it is immoral for men to have anything but a buzz cut, fine, but don’t expect us to pass laws to punish men with long hair, hire more police to stop men with long hair, buy tons of electric razors to cut men’s hair, buy tons of buildboards on the dangers of lice in long hair, etc. The benefit of allowing some men to have long hair (ie, not spending lots of money to stop something that is innocuous civilly) far outweighs the “benefit” of forcing everyone to have “moral” hair.

    Laws are meant to keep order in society, not morals. If you could pass a law to make everyone moral, they might as well pass a law to make everyone rich and beautiful too (and a part of the 1%!).

    1. 1.1
      Robert Creütz

      Hi, I’m not a scholar or trained in any religion so I would like your input on my thoughts, facts below to I can correct it.

      Best Regards Robert Creütz

      ————
      In my mind Mankind’s strongest assets compared to other animals is not his strength, speed, etc.
      but the reason think and then evaluate and then form his thoughts into an understanding or an idea..

      This idea can then turn into a believe of Science, Religion or an Ideology for that matter.

      It is not much that difference between them except the approach:
      Science –> set of ideas that must be proven before accepted. (knowledge attained through study or practice.)
      Religion –> set of ideas that require faith or belief in the spiritual world.
      Ideology –> set of ideas that constitutes one’s goals, expectations, and actions.
      ————
      The scientific method:

      The scientific method forms the core of scientific research.
      It is extensively used by scientists in their quest to build their knowledge base and gradually gain increasing insight into the workings of nature.
      It typically involves a number of steps:

      1. Observe something that is unexpected or unusual. Perhaps something that has just been detected for the first time.
      2. Gather as much evidence as possible about the phenomenon.
      3. Create one or more hypotheses that might explain the observation(s), using intuition, analytical methods, trial and error…whatever works.
      4. Design a test that will give predictable results if the hypothesis is true.
      (Sometimes a test is designed to attempt to prove a hypothesis to be false, in order to eliminate it from consideration.)
      5. Conduct the test; check the results. Determine if the hypothesis has merit.
      6. Go back to the second step, if the hypothesis has no merit.
      7. If successful, publish the results in a peer-reviewed journal.
      8. Other scientists Independently duplicate the test to confirm that the conclusions are reproducible.
      9. Go back to step 1.

      At this point, a theory has been discovered and confirmed.
      If the theory gains general acceptance in competition with other theories,
      and if it leads to a general advance in scientific knowledge, then it may become an established theory.
      Eventually, it may become so universally accepted that it becomes regarded as fact by the vast majority of scientists.
      The theory of evolution is one example.

      At any step in the process, falsification is possible:

      1. The hypothesis may not be confirmed.
      2. Other scientists may not be able to duplicate the results.
      3. Some new theory might come along at any time that replaces the current one.

      Some important facts about science:

      A full, complete picture of nature will never be known.
      Current beliefs of scientists are at least partly wrong and need refinement.
      The scientific method guarantees a self-correcting system of knowledge.
      Current errors in belief will be corrected over time as new data emerges.
      Knowledge will increase with time.
      ————

      If every idea of importance went through this criteria then we should not see
      so many harmful and twisted interpretations of Science, Ideology or Religion.

      It would not have been told as truth and therefore it is up for questioning and doubts
      before following the idea.
      ————
      As an Atheist you are often reminded by Theists that Hitler & Stalin were Atheists
      and therefore Atheism should be bad, if that is the case then think about the following:

      Hitler was not an Atheist he was a Catholic:
      - Hitler was baptized as Roman Catholic
      - Hitler approached boyhood he attended a monastery school.
      - Hitler was a communicant and an altar boy in the Catholic Church.
      - As a young man he was confirmed as a “soldier of Christ.”
      - Hitler was NEVER excommunicated nor condemned by his church.
      Matter of fact the Church felt he was JUST and “avenging for God”
      in attacking the Jews for they deemed the Semites the killers of Jesus.
      - Hitler, Franco and Mussolini were given VETO power over whom the pope
      could appoint as a bishop in Germany, Spain and Italy.
      - Hitler worked CLOSELY with Pope Pius in converting Germanic society and supporting the church.

      see more here:
      http://www.evilbible.com/hitler_was_christian.htm

      Stalin however was an Atheist

      They both stood for an Religion/Ideology that was told as a truth: Catholic, Nazism, Communism

      If their Ideologies was forced to follow the scientific method then none of them should have existed.

      The simple fact is that there are bad people, Ideologies & Religions, below you have some examples:
      ————
      How many has God killed according to Bible:
      http://dwindlinginunbelief.blogspot.com/2010/04/drunk-with-blood-gods-killings-in-bible.html

      How many has Satan killed according to bible:
      http://dwindlinginunbelief.blogspot.com/2009/01/who-has-killed-more-satan-or-god.html

      How many has Hitler killed:
      http://wiki.answers.com/Q/How_many_people_did_Adolf_Hitler_kill

      How many has Stalin Killed:
      http://wiki.answers.com/Q/How_many_people_did_Stalin_kill
      ————
      Bible and Morality:

      Old Testament:
      - God kills 70,000 innocent people because David ordered a census of the people (1 Chronicles 21).
      - God also orders the destruction of 60 cities so that the Israelites can live there.
      - He orders the killing of all the men, women, and children of each city, and the looting of all of value (Deuteronomy 3).
      - He orders another attack and the killing of “all the living creatures of the city: men and women, young, and old,
      as well as oxen sheep, and asses” (Joshua 6).
      - In Judges 21, He orders the murder of all the people of Jabesh-gilead, except for the virgin girls who were taken to be forcibly raped and married.
      When they wanted more virgins, God told them to hide alongside the road and when they saw a girl they liked,
      kidnap her and forcibly rape her and make her your wife!
      - In 2 Kings 10:18-27, God orders the murder of all the worshipers of a different god in their very own church!
      - allows slavery, including selling your own daughter as a sex slave (Exodus 21:1-11),
      - child abuse (Judges 11:29-40 and Isaiah 13:16), and bashing babies against rocks (Hosea 13:16 & Psalms 137:9).
      - working on Sabbath (Exodus 31:14)
      Observe the Sabbath, because it is holy to you. Anyone who desecrates it must be put to death;
      whoever does any work on that day must be cut off from his people.
      - Homosexuals (Leviticus 20:13)
      “If a man lies with a man as one lies with a woman, both of them have done what is detestable.
      They must be put to death; their blood will be on their own heads.”
      - Become a Eunuch for God (Matthew 19:12 ASV)
      “For there are eunuchs, that were so born from their mother’s womb: and there are eunuchs, that were made eunuchs by men:
      and there are eunuchs, that made themselves eunuchs for the kingdom of heaven’s sake. He that is able to receive it,
      let him receive it.”
      - Kill youngsters not showing respect. (2 Kings 2:23-24 NAB)
      “From there Elisha went up to Bethel. While he was on his way, some small boys came out of the city and jeered at him.
      “Go up baldhead,” they shouted, “go up baldhead!” The prophet turned and saw them, and he cursed them in the name of the Lord.
      Then two shebears came out of the woods and tore forty two of the children to pieces.”

      New Testament:
      - Murder of heretics (Luke 19:26-27)
      “He replied, ‘I tell you that to everyone who has, more will be given, but as for the one who has nothing,
      even what he has will be taken away. 27 But those enemies of mine who did not want me to be king over them—bring
      them here and kill them in front of me.”
      - Murder of those who not honor his father or Mother.(Matthew 15:1-9)
      “For God said, ‘Honor your father and mother’ and ‘Anyone who curses his father or mother must be put to death.’”
      - Also psychics must be put to death (Leviticus 20:27)
      “And as for a man or woman in whom there proves to be a mediumistic spirit or spirit of prediction,
      they should be put to death without fail. They should pelt them to death with stones. Their own blood is upon them.”
      - Old testament still applied in New Testament (Matthew 5:17-18)
      “Do not think that I have come to abolish the Law (the Old Testament) or the Prophets;
      I have not come to abolish them but to fulfill them. I tell you the truth, until heaven and earth disappear,
      not the smallest letter, not the least stroke or a pen, will by any means disappear from the Law (the Old Testament)
      until everything is accomplished.”

      And many more listed here:
      http://www.evilbible.com/Murder.htm

      Christians have actually doomed themselves by having Pictures of Jesus or idols of him hanging on the cross or God or Angels.
      (Both in home and in the church as well)

      Exodus 20:4 “You shall not make for yourself an idol in the form of anything in heaven above or on the earth beneath or in the waters below.”

      Leviticus 26:1 ” ‘Do not make idols or set up an image or a sacred stone for yourselves, and do not place a carved stone in your land to bow down before it.
      I am the LORD your God.”
      ————
      I cannot follow any idea that promotes killing in the name of Religion, Ideology or Resources.
      or any other reason for that matter except in self defense for me or my family.
      ————
      Reasons of war:
      Religion, Ideology, Resources
      ————
      Reasons that diminish reasons for war:
      Atheism, Democracy, Education
      ————
      Today the most peaceful and prosperous countries seems to be non-theistic.
      ————
      Global Peace index video that compare theistic and non-theistic countries.
      http://youtu.be/A-eYp2o9f7k
      ————
      Global Peace index result 2011:
      http://www.visionofhumanity.org/wp-content/uploads/2011/05/2011-GPI-Results-Report-Final.pdf
      ————
      Atheism in my mind is not rejection of God, that is what Lucifer did (even though he knew God).
      I don’t claim to know that there is no god, but instead simply lacks belief in a God without prof or
      any previous knowledge “agnostic atheist” is maybe a better word for it.

      Everyday in my life i aspire to apply reason, logical thinking and science, and not to do that on the single and most
      important question of all – life after death is not logical to me.

      We have all seen death in nature, animal as well as human and for me there is no difference we all die
      and give nourishment for for plants or animals as an eternal cycle, as well as even stars die and new are reborn.

      In my belief there is no afterlife no redemption/forgiveness for sinners or sin.
      So i must try to live my life just and right so my friends/family and also other will think good about me.
      And if i harm anyone i need to make a amends to repair the damage I’ve made.
      I try to live after “Do not do to others what you do not want done to yourself”
      ————
      Confucius 551 BC:
      “Do not do to others what you do not want done to yourself”
      “Turning the other cheek”
      http://en.wikipedia.org/wiki/Confucius
      ————
      I will never agree that all sins will be forgiven and that killers, pedophiles, rapist will be forgiven if they truly
      regret what they have done in the eyes of God. They have forced their doing and will upon others and that
      will forever live on in the victims or friends of the victims.

      My only chance to live on (according to me) is through my children as they inherit my genes and through remembrance
      of people, if they can remember me as an: Beloved father & husband, great friend and fair & just to others then
      i will die without regret.

      Below is some of the things we discussed and some new…
      ————
      similarities Jesus & Mithra 600 BC
      http://www.near-death.com/experiences/origen048.html
      ————
      similarities Jesus & Buddha 623 BC
      http://en.wikipedia.org/wiki/Parallels_between_Gautama_Buddha_and_Jesus
      ————
      similarities Jesus & Krishna 200 BC
      http://www.religioustolerance.org/chr_jckr1.htm
      ————
      similarities Jesus & Joseph
      http://www.near-death.com/experiences/origen043.html
      ————
      similarities Jesus & Moses
      http://www.enerspace.com/moses.htm
      ————
      similarities Jesus & Muhammad
      http://answers.yahoo.com/question/index?qid=20081002003223AApEx4n
      ————
      similarities Jesus & Others:
      http://listverse.com/2009/04/13/10-christ-like-figures-who-pre-date-jesus/
      http://thedevineevidence.com/jesus_similarities.html
      ————
      To me it is the same story over again throughout the ages, rewritten depending on religion it was adopted to.
      does that mean that you are condemned if you choose the wrong one even though all speak of divinity/spiritual world ?
      ———–
      One of the oldest written story that i am aware of is “The Epic of Gilgamesh” and the “Atrahasis Epic”.

      Gilgamesh epics was written approximately between 2750 and 2500 BC.
      He was called: a father, a King, a Shepherd for his people.

      In that text the flood myth is mentioned and it has strong similarities with Noah’s Arks.
      http://en.wikipedia.org/wiki/Gilgamesh_flood_myth
      ————
      Noah’s Ark myth in different religions:
      http://en.wikipedia.org/wiki/Noah%27s_Ark
      ————
      If Noah’s Ark is to believed as the true one, why was Egypt not flooded they worshiped several God’s with animal characteristics.
      And how come there is no scientific proofs of such a flood, we should have found evidence in the ground of multiple remnants
      from Animal & humans all in one layer.
      http://www.epicidiot.com/evo_cre/noahs_flood.htm
      http://aigbusted.blogspot.com/2007/09/noahs-flood-is-fairy-tale-part-1.html
      http://aigbusted.blogspot.com/2007/09/noahs-flood-is-fairy-tale-part-2.html
      ————
      If Bible is to be told as truth why has mankind removed God’s words from it, diminishing the truth
      http://www.interfaith.org/christianity/apocrypha/
      ————
      Darwin & Evolution theory (Galápagos Islands):
      http://anthro.palomar.edu/evolve/evolve_2.htm
      ————

      1. Jdog

        Congratulations, you’ve reinvented the wheel!

        Was anything in that enormous wall of text relevant to the actual topic at hand?

        1. Jdog

          Feh, I could’ve been nicer about that.

          What I mean to say is that while we’re glad that you’ve found the (rational) arguments for atheism convincing, a blog discussion about a specific topic regarding atheism is probably not the best place to ask for a review of your entire manifesto, particularly when it covers ground that we’ve already been over (and don’t dispute).

      2. Adaml

        Right on. Let us put in this way. There is a god. It is a little statute that stands in the room which you have to praise it all the time – something like a 2000+ year old Barbie doll. It simply does nothing but it is quite a good marketer. It sell a lot of books, seminars, music etc and has its staff.
        It is like a spider. It loves killing its children.
        1. It shortened the life of its first 2 children and the subsequesnt ones.
        2. It asked Abraham to kills his only legitimate child, only to regret it and we get a holiday (Idul Adha)
        3. It killed its only son and we got Easter.
        4. It created the Dead Sea from Sodom and Gommorroh
        5. It drowned the world except two of each species.
        I wonder what kind of morality we learn from the stories. It seems to be always grouchy and PMSsy.

        It is so powerful it cannot handle its staff and one decided to go away (remember the ex-angel called the devil). I just put the examples of its liking for killing its children.

        I met an old acquitance of mine at lunch. He suffers from depression like practically the whole of his life. And yet this guy goes to church with fervour. To the believer this one is like test of Job. I think this is more like a holy f-up.

        Its staff are not great either. It hates homosexuals but yet its staff like to practice homosexuality on little kids. It believes that contraceptives are bad. It says to love but 99% cannot camp near its temple in London.

        The thing is that we are made in its image. Yes and in that logic, it is natural for human kind to be violent. We are jealous like it is. Maybe THERE is a god.

  2. 2
    sk

    Makes me thing of this poem, which I thought I’d change up a little bit for the times:

    First they came for the African Americans
    and I didn’t speak out because I wasn’t an African American.

    Then they came for the homosexuals,
    and I didn’t speak out because I wasn’t a homosexual.

    Then they came for the non-believers
    and I didn’t speak out because I wasn’t an non-believer.

    Then they came for me
    and there was no one left to speak out for me.

  3. 3
    raven42

    I think the essential difference between laws and morality is that morals are ideas in people’s brains and laws are actual hard rules that have to function in real life. To me it seems like one of the major sources of bad laws is people conflating the two, resulting in legislation that punishes something without any real regard for the effect it will have. Some people want to make abortion illegal, but apparently aren;’t terribly interested in anything that actually would make less abortions happen in real life (with the possible exception of standing outside clinics and yelling at people). Overturning Roe v. Wade is a high priority, but they actively oppose greater availability of fact-based sex ed and contraception. This isn’t solely a conservative thing (some liberals are guilty of this kind of wishful thinking when it comes to gun control), but all of the most ridiculous examples I know of stem from conservative Christians’ discomfort with human sexuality.

  4. 4
    Allen

    Interesting topic. But depending on how you define morality,sometimes it is and should be the basis for passing laws. Slavery is a good example. It was not unconstitutional for the first several decades of this country’s existance. It was not abolished because it was unconstitutional. It was abolished by amending the constitution to make it illegal. So the reason for abolishing it was not the law or the constitution, all of which supported it. It was abolished becasue people finally came to view it as wrong or immoral.

    The disticntion between when morality can be a proper basis for legislation is when the activity it seeks to control is someone’s opinion about personal morality (how one shoudl conduct his own personal life) and one that is demonstrably harmful to non-consenting persons or society as a whole. For example slavery is immoral because of the harm it causes to the non-consenting slaves. But in the case of, say, homsexual activity, any harm (and I am not saying there is any) is caused only to the consenting participants. Thus prohibiting it or gay marriage is an attempt to legislate personal morality that has no demonstrable effect on other people.

  5. 5
    An engineer

    To understand the differences between morality and legality, and why what is moral is not always legal (and vice versa), read Les Miserables by Victor Hugo.

    Although in a modern democracy, oftentimes laws do become based in morality. For example, if the populace become shocked at the lack of morality of a certain action, that action may become illegalized. However, this is very far from a 1:1 ratio.

  6. 6
    Charles Collom

    When someone says, “You shouldn’t legislate morality” generally they are appealing to the idea that ethics can be divided into those principles that govern private actions and those principles that govern public actions. The ethics of public actions necessarily involve some claim that an action (or inaction where a duty to act is present) has caused measurable harm to another. Additionally, there is often some claim of “public interest” in preventing the action such that it warrants the expenditure of public resources in enforcing prohibitions.

    Private morality involves acts for which no person who is directly affected objects to the act itself. This is to say that the actors all consent to the act (or inaction where a duty is present) and there is no quantifiable externality which causes measurable harm to a third party.

    So, banging your neighbor and his wife on the sabbath while screaming “Jesus Assclapping Christ” and coveting his Corvette might make the American Baptist Lady’s Auxiliary clutch pearls, but they have no ethical basis to pass a law keeping your from your private reenactment of the Four Cocksmen of the Apocalypse.

    –The above comments were posted by a gay libertarian atheist and bear no resemblance to reality–

  7. 7
    Gunnar Tveiten

    While this essay is fine in principle, in practice things are much murkier.

    Poisonous food isn’t allowed to sell, because it would harm people. But cigarettes *are* allowed selling, despite also killing a large fraction of the users.

    And how about the gay marriage ? What’s the justification for that being forbidden (yeah, it’s changing these days) other than religious ideas about moral ?

    Bans on incest are justified with increased risk of birth-defects – yet the ban is not lifted if you sterilise yourself, nor if the partners in question are lesbian or gay siblings. Again: what is the justification, except for ideas of moral ?

    And who gets to define ‘harm’ – with certain definitions, the state should restrain my access to calorie-rich junk-food for my own good.

    Why is group-marriage forbidden even when all partners are adult and explicitly consent ?

    Why is child-porn outlawed in many jurisdictions even when it’s entirely fictious ? (i.e. hand-drawn cartoons or depictions of 18+ actors who pretend to be younger)

    Why is growing and smoking Cannabis a crime ? Is the harm demonstrably larger than from making and using alcohol ?

    Law is a mish-mash. It’s essentially those rules that a majority of politicians thought important enough to be willing to punish those who break them. No more, and no less. Sometimes law is moral, sometimes it’s amoral. Sometimes it’s based on clear and identifiable harm, and sometimes it’s based on nothing more than “we don’t like that”

    1. 7.1
      bushido11

      Gunnar Tveiten makes some good points. The reality is that some laws are based on SOMEONE’S or SOME GROUP’S morality, as shown in Gunnar Tveiten’s examples, especially in the case where all of the participants are consenting individuals. You don’t just establish a law just because; each individual law is established for a reason.

      In the case of child porn, I assume that it’s established for the protection of children. However, if such an instance of child porn were to be created using fictitious characters, even if they’re based on life-like representations of real people (such as 3-D animated models of Miley Cyrus, for example), it’s still illegal. Granted, we find that some people have very disturbing and grotesque tastes, but if all parties involved are consenting individuals and are of legal age, then what’s the basis of imposing sanctions on such cases, other than someone’s morality?

      I think that another unmentioned reason why laws are put in place is so that the U.S. government can regulate certain products. The government has found ways to regulate cigarettes and alcohol, so it makes them legal to procure if you meet specific requirements and use them within the parameters of the law. The government has not found a way to regulate cannabis, for example, so it deems possession and use of it illegal (except for medicinal purposes in certain states under certain parameters). Call me cynical, but if the government can find a way to regulate more extreme drugs, it would make them legal under specific circumstances.

      1. jacobfromlost

        bushido11: Gunnar Tveiten makes some good points. The reality is that some laws are based on SOMEONE’S or SOME GROUP’S morality, as shown in Gunnar Tveiten’s examples, especially in the case where all of the participants are consenting individuals.

        Me now: No one is denying that morality plays a factor. What we are saying is that laws are not based on morality–laws are not defined by morality. See my other posts (and I respond to a couple of your examples).

        bushidoll: In the case of child porn,…using fictitious [CGI] characters, …still illegal.

        Me now: the reason this is the law is because there would be an outcry (as Tracie said, “civil unrest”) if it were not. People in a democratic society will ALWAYS have biases, values, morals, cosmologies, politics, etc, that shape their votes, protests, actions, etc, but what laws are PASSED are based on a consensus of what the law should be, not what morality should be. If someone thinks the laws against CGI child porn should be lifted, raise the roof in protest. If enough people agree, the law gets changed–and if the law can change (and it can), and the REASON it changed was the keep the civil order (no matter what the moral views of the society), then the basis of laws is to keep the civil order, not morality. (And if you CAN’T get enough people to protest with you, then the law continues as it is keeping the civil order.)

        Me again: Can you think of any instances where a person would vote against their own morality in support of a law? I can think of many examples. And in every one, is in support of the civil order, NOT their morality. This would not be possible if laws were based on morality.

        Examples (hypothetical): “I’m pro-life, would never have an abortion myself, and would never want anyone else to have one, but I don’t feel comfortable outlawing abortion because of the chaos it would cause, and because the issue is so complicated I can see how someone could reasonably disagree with me.” “I think it is morally correct to base all your actions on reason and evidence, but I don’t think outlawing church, homeopathy, books on UFOs, and magical thinking is feasible.” “I think smoking is immoral and kills millions, but outlawing it would create a whole host of major problems that may be worse than smoking itself, at least right now.” “I think gay marriage is immoral, but if that’s what they want and they’re going to make a big huge fuss about it over and over and over again…I finally give up. Let them do whatever they want.”

        Notice how ALL of these stances take into account the fact that society at large has a variety of DIFFERENT moral views than one’s own, and that always voting based on one’s personal morals just doesn’t work in reality. The fact that some people, sometimes, vote in accord with their morality doesn’t mean they are not ALSO voting in accord with what they think will keep the civil order. And when they vote against their morals? They are also voting in accord with what they think will keep the civil order. Therefore the basis of laws is a consensus on what we think the law should be (ie, what keeps the civil order).

  8. 8
    EB

    Interesting. But the consitution is not driving legislation in a vacuum — there are also legislators and voters. These people could propose, and vote for, laws with no regard for the constitution. They could, in other words, steer legislation based entirely on their morals. Now, one could say that the constitution should act as a check against such behavior, and I would agree. My point is simply that there is expected to be some degree (however small) of morality in laws.

  9. 9
    savoy47

    I think the term “legislating morality” is misleading. What is really going on are attempts at outlawing temptation. It’s an attempt to cover over all temptations with a legal burka.

    It’s sort of the opposite of a hermit. A hermit hides from the world and its temptations and therefore will remain virtuous and get to their imagined heaven. Outlawing temptation hides the world and its temptations away instead of the hermit.

    Morality and virtue come from resisting temptation and doing what’s right.

  10. 10
    jacobfromlost

    “It [slavery] was abolished by amending the constitution to make it illegal.”

    Not exactly. Laws are not objectively real things (at least on paper)–they are created by people, and must be enforced by people (to make them manifest in reality), no matter WHAT they are. This is why I claimed that laws are meant to establish civil order, not morality.

    Regarding slavery, over time, more and more people began to see slaves as human beings deserving of freedom, and indeed, that could easily be seen as a moral stance. But the people whose views on slavery changed over time were a part of the civil order, as were the people who held slaves and found it morally acceptable and didn’t give a crap what laws were passed. Simply passing a law that would make it illegal to hold slaves wasn’t enough to make people stop holding slaves–so, to keep the civil order of the entire country in tact, we had a civil war to resolve the issue.

    This focus on civil order can also be seen in the Emancipation Proclamation itself, which didn’t actually abolish all slavery. It only abolished slavery in the “rebellious states”, excluded the states already taken by the north, and also excluded the loyal border states so they wouldn’t suddenly decide to join the south as well. Many of those border states subsequently passed their own laws abolishing slavery, and (also subsequently) Washington D.C. had to write a separate law freeing the slaves in the capitol. By the time the 13th Amendment was passed, most slaves were already free as the many legal processes, piece by piece, kept the civil order toward the goal of abolishing all slavery in the entire country (along with the war).

    Needless to say, if the Union lost the war, none of this would have mattered (including all laws, the constitution, etc), and the “morality” that would have been legislated would have been in favor of slavery. My point is that if that would have happened, the civil order would have still been kept, as enough people would have agreed to keep slavery, just has they had previously…because the laws reflect what needs to be done to keep the civil order, no matter what the moral views of the operators in the society are.

    And it is difficult to see how morality is legislated if two diametrically opposed views can be legislated and enforced at varying points in history depending on which view keeps the civil order for those holding the moral views at the time. What is operant in the laws is the civil order, not the morality.

    No matter WHAT the moral views of the operators in society, laws ALWAYS keep the civil order, or the civil order collapses and the laws are meaningless as laws (although they might be replaced by other, different laws that can and do keep the civil order as societal views change).

  11. 11
    Jeremiah

    I have to disagree a bit Tracy. A lot of the laws and regulations which have been brought up and what the ‘proper’ law should be is derived from a notion that individual freedoms should only be imposed upon when the effects of the individual actions bear unwanted consequences for others. This in itself is a moral statement in that we are saying the ‘right’ thing to do is to abide by this principle.

    This is sort of our “prime directive” of individual freedom. As others have pointed out on the slavery issue the original laws had no problem with it but as this principle of individual freedom took primacy in our worldview laws were amended to bring them more in accordance with it.

    As for food safety what we are regulating there is a moral stance on the asymmetry of information. As Gunnar pointed out we allow people to poison themselves with things like tobacco because they are supposedly aware of the risks and free to make a choice regarding their own body. We don’t allow it with food because when a person buys a tomato they have a certain expectation that it not be filled with poisons and would be unaware if it was. We see the same type of laws regarding misleading advertising, lemon laws, etc. But they all come about because of a moral imperative in regards to peoples responsibilities in consumer transactions where information is asymmetrical.

    Almost any preferential statement can be distilled down to a personal value. And values either take the form of stuff I only care about for me like “I like popcorn” or the form of “I prefer X and you should too” which are moral statements. I think the problem isn’t that people conflate law with morality but that they conflate value statements of the first kind with those of the second.

    Of course that is kind of the million dollar question when it comes to questions about morality in that what justifies us moving a statement of type A to type B? The short, and I think honest answer, is simply “majority rules”. We currently use the individual freedom as stated above as a moral primacy in which to sieve other moral statements to determine if they belong in category A as a personal value or Category B as a law/moral imperative. But that prime moral statement is simply agreed upon because a lot of people have a natural inclination to value it. At various places and times other sort of ‘prime directives’ have acted as the sieves for moral and legal law. For instance in certain cultures or at certain times group allegiance is/was of greater importance than individual freedom and such a society has/had laws that reflect this.

    In my opinion, to try to remove the moral aspect from laws is to in a sense burn your only bridge available in which to change the other persons mind. How agreement or paradigm shifts occur is in that we may both agree with some prime moral directives and I could get you to change your support for a particular law by showing how it violates this moral imperative that we both share. For the conversation to even take place we have to have some moral inclinations which we both share.

  12. 12
    Jeremiah

    And… I just realized I typed your name wrong Traci. Sorry about that. >.<

    1. 12.1
      Matt Dillahunty

      Wait until you realize that you got it wrong again.

      1. Jeremiah

        lol… so I did again. epic fail…

  13. 13
    heicart

    >I have to disagree a bit Tracy. A lot of the laws and regulations which have been brought up and what the ‘proper’ law should be is derived from a notion that individual freedoms should only be imposed upon when the effects of the individual actions bear unwanted consequences for others. This in itself is a moral statement in that we are saying the ‘right’ thing to do is to abide by this principle.

    The idea of maximum individual freedom may be in agreement with someone’s morality, but it’s the effect on governance that the laws are concerned with. The more you restrict freedoms, the more invovled the gov’t has to be, and the more resource it expends to control people. Ergo, by allowing people maximum levels of freedom you create more efficient/effective governance. Whether it’s a nice idea on top of that is a personal call.

    Additionally, the reason the government interferes when a citizen starts interfering with the freedoms of other citizens, is because (1) it causes civil unrest that the government then has to resolve and (2) those citizens being imposed upon are loyal to the state because of the benefits they derive. If I’m being raped every day because my state doesn’t secure my safety as a citizen, my loyalty to the state (the society) is right out the window.

    It’s simply effective for the state to not intervene unless there is a legitimate social concern. And by not restricting freedoms a lot of hassle is avoided.

    If you morally agree with that ethic, that’s a judgment call. It’s not required to think it’s moral to understand why it would be effective as a form of governance. That’s the point.

    1. 13.1
      Jeremiah

      Tracie (there, got it)
      I reread that a few times and think I am just not ‘getting’ where you are coming from on that point.

      So you are saying the point of laws is efficient governance? It sounds that way to me, and sounds like you are saying that protecting freedoms (vice restricting them) is simply a means to an end of achieving efficient governance. Surely that can’t be correct. As far as whether or not it is effective that all depends on what the goals are.

      I have a hard time wrapping my head around the civil unrest angle as well. If, in an admittedly contrived example, the Christians of the world protested and caused civil unrest over the teaching of evolution in schools would it then be good governance to protect creationism? Because again, it seems that you are saying that the support of individual freedom is a means to the end of preventing civil unrest and that is why governments do it. Based on what you wrote then the government should intervene and stop evolution to 1) prevent civil unrest and 2) gain the loyalty of those Christians feeling imposed upon. Some might argue that this is actual reality, but the question I thought is “should” it be that way?

      I don’t know, certainly I am misreading you somehow but I don’t understand where it is.

      1. jacobfromlost

        Jeremiah: If, in an admittedly contrived example, the Christians of the world protested and caused civil unrest over the teaching of evolution in schools would it then be good governance to protect creationism?

        Me: I can’t speak for Tracie, but the problem I think is that you inserted “good government”, which presupposes the moral element in law that you are arguing for. I don’t see laws as enforcing morality, but civil order.

        Jeremiah: Because again, it seems that you are saying that the support of individual freedom is a means to the end of preventing civil unrest and that is why governments do it. Based on what you wrote then the government should intervene and stop evolution to 1) prevent civil unrest and 2) gain the loyalty of those Christians feeling imposed upon. Some might argue that this is actual reality, but the question I thought is “should” it be that way?

        Me: Asking “should” is again presupposing the purpose of laws is to enforce morality. I don’t think that is the purpose of laws.

        Jeremiah: I don’t know, certainly I am misreading you somehow but I don’t understand where it is.

        Me: I think you are saying that laws come from morals, and I (and maybe Tracie) am (are) saying that laws are meant to keep order within a society no matter what the views of morality (or anything else) are within that society. If the views within the society are contrary to reality, and laws are passed based on that faulty view of reality, and that leads to dysfunction or even a possible collapse of that society…then we can say that the laws are “bad” if we want, but we don’t have to, as the laws just destroyed themselves by destroying the people who wrote and enforced them based on a faulty understanding of reality.

        1. Jeremiah

          @jacob
          I don’t see laws as enforcing morality, but civil order.

          So, you would contend that the only reason for a government (not a person) to support abolishing slavery is to protect civil order? I have to disagree here on that, I wouldn’t like a government whose primary concern is to appeasing the loudest and most disruptive people in society. Not to mention I think it kills the conversation on a lot of would be laws. I mean, if we wanted to discuss the Mississippi personhood laws, how would we even do so under such a rubric? If Mississippians say, “We are going to torch the place if abortion isn’t outlawed” would you just say “okay, got to preserve civil order.”? That just seems wrong to me. And yeah, that is interjecting a moral statement, but then I already offered that it is my opinion that we cannot escape from that. I mean, even if you do say that preserving civil order is of primary importance that is again a value judgment in of itself, one that I don’t personally share.

          1. jacobfromlost

            Me before: I don’t see laws as enforcing morality, but civil order.

            Jeremiah: So, you would contend that the only reason for a government (not a person) to support abolishing slavery is to protect civil order?

            Me now: No, I would say the only reason a government CAN support abolishing slavery is to protect civil order. As I illustrated with my 75% example, agreement on morality is not necessary to agree on what a law should be. What motivates the law in such a circumstance is civil agreement that that is what the law should be, NOT an agreement on the moral elements involved.

            Jeremiah: I have to disagree here on that, I wouldn’t like a government whose primary concern is to appeasing the loudest and most disruptive people in society.

            Me now: That is a significant part of what democracy is. Majority rules, checked always by reality (and reality doesn’t care what you would or would not like).

            Jeremiah: Not to mention I think it kills the conversation on a lot of would be laws. I mean, if we wanted to discuss the Mississippi personhood laws, how would we even do so under such a rubric?

            Me now: This is how: If they pass the law, then there are going to be all kinds of problems that will find themselves in the courts, some of them finding their way to the Supreme Court. If the Supreme Court makes some decisions contrary to reason, then our society will suffer in exactly the degree to which it is unreasonable. That is just reality.

            Jeremiah: If Mississippians say, “We are going to torch the place if abortion isn’t outlawed” would you just say “okay, got to preserve civil order.”?

            Me now: If they went that far, then it would be civil war time all over again–with Mississippi against the United States. I’m not talking about the tyrany of the minority.

            Jeremiah: That just seems wrong to me. And yeah, that is interjecting a moral statement, but then I already offered that it is my opinion that we cannot escape from that. I mean, even if you do say that preserving civil order is of primary importance that is again a value judgment in of itself, one that I don’t personally share.

            Me now: It’s not a value judgment, as I have already explained. A government that fails to uphold every moral stance can continue easily (not to mention that many moral stances are contraditory of each other and therefore cannot be upheld simultaneously, if at all). A government that fails to uphold civil order isn’t a government at all, and the laws that fail to uphold civil order are meaningless.

          2. Jeremiah

            @jacob
            (comments don’t seem to nest any deeper so had to reply to myself)

            That is a significant part of what democracy is. Majority rules, checked always by reality (and reality doesn’t care what you would or would not like).

            Now, I can agree with that, in fact I would even go so far as to say that it might be in reality how it works. However given that we have to go back and re-examine the original question. “Does government legislate morality”? If a government makes a law that runs contra to my persona morals because a larger portion of society is louder and more disruptive than I am then how could you claim that they are not in fact legislating morality? The government then is just the tool by which the most disruptive impose their morality upon me.

            I guess I see it like this, I don’t understand why people are so afraid of morality. Morality to me is just a naturally arising concept that occurs when you have sentient beings interacting with each other. I will have things and outcomes that I value and you will have yours. If we have interactions we will attempt to create rules governing those interactions that don’t run contra to our values. The negotiation of those rules might be civil or might be violent but the negotiation occurs all the same. If we have sufficiently similar values we can reach consensus on some subjects. I don’t see what is so problematic with this, indeed it seems to align with what we observe in the real world.

            I can understand how people would like it if a government wouldn’t legislate morality because we can see that by doing so we become subject to majority rule and risk having our own values trod upon.

            The fact we should face is that governance and especially democracy is not a perfect solution that allows us to escape the problems that come with consensus building, including having my morality subject to majority rule, but is more of a “best we can manage based on the situation we find ourselves in” kind of solution and that is okay. In fact I would say that being aware of and wary of the fact that governments can and do legislate morality would hopefully make us more cautious and careful when choosing to invoke it’s powers.

          3. jacobfromlost

            Me before: That is a significant part of what democracy is. Majority rules, checked always by reality (and reality doesn’t care what you would or would not like).

            Jeremiah: Now, I can agree with that, in fact I would even go so far as to say that it might be in reality how it works. However given that we have to go back and re-examine the original question. “Does government legislate morality”?

            Me now: That wasn’t the original question. The original question was “what does it mean to ‘legislate morality’?” There is a difference.

            Jeremiah: If a government makes a law that runs contra to my persona morals because a larger portion of society is louder and more disruptive than I am then how could you claim that they are not in fact legislating morality?

            Me now: Because, as I have explained endlessly, the purpose of laws are to keep order, not morals. This isn’t an assertion, but a demonstrated fact. Since it does not matter WHAT the moral views of those within the society are, laws ALWAYS keep the civil order because that is what they are and do by definition, and because if laws DON’T keep the civil order then they are not laws in any meaninful sense of the term. Again, you can have people with conflicting views of morality and still have laws that keep the civil order of that group of people–that alone tells you that laws do not enforce morality, but civil order no matter WHAT the moral views are of those in the society.

            Jeremiah: The government then is just the tool by which the most disruptive impose their morality upon me.

            Me again: You’re missing the point. I am not talking about the tyranny of the minority. I’ve already said that. Moreover, you need to take a couple of steps back and look at the situation from a wider perspective. The government is ALWAYS the tool by which laws are imposed on people–but the laws are not written in stone. They reflect a system of people, all of whom can have different views on morality from each other, from themselves previously, or from themselves tomorrow. The LAWS, however, always reflect what most people agree on to keep the social order–and if the laws DON’T reflect what most people agree on to keep the social order, then there is social disorder until the laws are changed! See? It doesn’t MATTER what the moral stances are.

            Jeremiah: I guess I see it like this, I don’t understand why people are so afraid of morality.

            Me now: You are making the claim that the basis of laws is morality. You haven’t demonstrated that, while I have demonstrated it is not so. I am not afraid of morality at all. It just simply is not the basis of laws. For instance, you talked about “moral imperatives” earlier. I said that moral imperatives do not exist because if they did, we wouldn’t need laws. You did not even address this issue when it gets at the heart of our disagreement. If there were such a thing as moral imperatives, then how come everything anyone would call a “moral imperative” can be violated (ie, it is not imperative)? That is why we need laws–to keep the civil order, NOT to make people moral. Laws cannot make people moral, nor can they make people agree on what is moral.

            Jeremiah: Morality to me is just a naturally arising concept that occurs when you have sentient beings interacting with each other.

            Me now: I agree somewhat. The difference between morality and law is this. Morality says, “It is wrong to murder people (because of god, because I value people, because society would collapse if everyone was murdering people, because I have loved ones I don’t want murdered, because the the crystals told me murder is wrong, because I don’t want to be murdered,etc).” The law says, “This is what we do as a civil group if someone murders someone else to keep ourselves in order in such an eventuality.” The second needs no relation to the first, except that the large group of people with different moral perspectives agree that something must be done to keep the civil order. No moral agreement is necessary–only CIVIL agreement that something must be done CIVILLY and applied in ever case (civilly).

            Jeremiah: I will have things and outcomes that I value and you will have yours. If we have interactions we will attempt to create rules governing those interactions that don’t run contra to our values.

            Me now: This just isn’t so. People vote contra to their values all the time because they can see that THEIR values are not EVERYONE’S values and trying to impose them on everyone would be disasterous for everyone. (This is another illustration of how laws reflect the civil order, NOT morality. For instance, I think the country would be a better place if no one drank alcohol, but passing a law against alcohol would be an UTTER DISASTER for everyone.)

            Jeremiah: The negotiation of those rules might be civil or might be violent but the negotiation occurs all the same.

            Me now: The negotiation occurs about what SHOULD BE DONE CIVILLY, not what should be moral. They don’t even need to agree on what is moral! One person can think a zygote is a human person, and one person can think it is not, and BOTH can vote against the personhood amendment because they just wouldn’t want the legal disaster it would be in reality– a whole LIST of common occurrences would suddenly become very complicated legal matters in civil courts. It is not impossible at all to say, “I think a zygote is a person, but I think that civilly we can’t really treat it at such because it would be a disaster to enforce in reality.”

            Jeremiah: If we have sufficiently similar values we can reach consensus on some subjects.

            Me now: I’ve already dismantled this assertion. You don’t need similar values to agree on what should be done civilly. For instance, some people in Mississippi undoubtedly voted against the personhood amendment because they are pro-choice and value a woman’s right to choose. And SOME people voted against the personhood amendment because they are prolife but value the government “staying out of our business” more in this particular circumstance. Two completely different values–even MUTUALLY CONTRADICTORY values–that vote the same way on a civil issue. When you add those two contradictory values together, you get 55% and the amendment loses. Do you see what I’m saying? Please do not ignore this point as it is about the 5th time I’ve illustrated it and you have yet to address it.

            Jeremiah: I don’t see what is so problematic with this, indeed it seems to align with what we observe in the real world.

            Me now: No, it does not. See my illustration above.

            Jeremiah: I can understand how people would like it if a government wouldn’t legislate morality because we can see that by doing so we become subject to majority rule and risk having our own values trod upon.

            Me now: Laws reflect civil agreement on what should be done. Moral agreement is NOT NECESSARY to come to that civil agreement! If what you are suggesting is true, it would have to be necessary.

            Jeremiah: In fact I would say that being aware of and wary of the fact that governments can and do legislate morality would hopefully make us more cautious and careful when choosing to invoke it’s powers.

            Me now: I think you are missing my point entirely.

  14. 14
    Felipe

    I fully understand that the basis for laws is reality and the consequences of our actions and decisions, and that this is different from morality per se, but then not only I can’t find a useful definition for Morality, but I also can’t think of anything else that we would need. In other words, if morality isn’t about well-being of the individuals of the society that adopts it, what is it about, then, and why should I care?

    1. 14.1
      Jasper of Maine

      I’ve always understood morality as “a sense of right and wrong” as a basic definition.

  15. 15
    jacobfromlost

    Jeremiah: A lot of the laws and regulations which have been brought up and what the ‘proper’ law should be is derived from a notion that individual freedoms should only be imposed upon when the effects of the individual actions bear unwanted consequences for others. This in itself is a moral statement in that we are saying the ‘right’ thing to do is to abide by this principle.

    Me: Only if you think the law should be that way because it is moral to do so, but that is not required. One could easily say the law should be that way so that society can function well–and such a claim would not be a simple moral preference, but a clear comparison between functional societal behavior and dysfunctional societal behavior.

    Jeremiah: As others have pointed out on the slavery issue the original laws had no problem with it but as this principle of individual freedom took primacy in our worldview laws were amended to bring them more in accordance with it.

    Me: from a certain modern point of view, yes. But I don’t think invoking “individual freedom” is even necessary to find slavery to be immoral, nor do I think championing “individual freedom” is incompatible with finding slavery to be moral. (I don’t think the two are connected.) Individual freedom was a value the US was founded on…but certain individuals just weren’t considered individuals, so it wasn’t considered immoral to both celebrate individual freedom and hold slaves, among other things.

    Jeremiah: We see the same type of laws regarding misleading advertising, lemon laws, etc. But they all come about because of a moral imperative in regards to peoples responsibilities in consumer transactions where information is asymmetrical.

    Me: But you don’t have to see a moral component at all. (Indeed, advertising in the US is very lax–I would call it immoral, but as long as the harm is low enough to be sure there is no outcry, then the status quo continues and civil order remains.) I also wouldn’t characterize it as a “moral imperative”, since there really is no such thing (if there were, why would we need laws at all?).

    Jeremiah: Almost any preferential statement can be distilled down to a personal value. And values either take the form of stuff I only care about for me like “I like popcorn” or the form of “I prefer X and you should too” which are moral statements.

    Me: I’m not sure they are moral statements. “I have short hair and think all men should have short hair also” could be a moral statement FOR ME, but many other people might find that totally devoid of moral content. They may not see hair length as something that is morally irrelevant.

    Jeremiah: I think the problem isn’t that people conflate law with morality but that they conflate value statements of the first kind with those of the second.

    Me: I don’t think either value statements could be considered objectively moral statements for everyone, so it would be less a confusion of the two as it would be a disagreement about their moral content.

    Jeremiah: Of course that is kind of the million dollar question when it comes to questions about morality in that what justifies us moving a statement of type A to type B? The short, and I think honest answer, is simply “majority rules”.

    Me: This is partially true, but reality always trumps the rule of the majority. If the prevailing view is that our group/country is better, smarter, holier, etc, and so we decide we’ll just take over the world…then we better be right if we want to survive. If we are wrong, we have just made an enemy of the entire world and destroyed ourselves.

    Jeremiah: We currently use the individual freedom as stated above as a moral primacy in which to sieve other moral statements to determine if they belong in category A as a personal value or Category B as a law/moral imperative.

    Me: Are they really “moral imperatives”, though, or is it possible simply to see them as necessary attributes of an existing society that wishes to continue existing in reality?

    Jeremiah: In my opinion, to try to remove the moral aspect from laws is to in a sense burn your only bridge available in which to change the other persons mind. How agreement or paradigm shifts occur is in that we may both agree with some prime moral directives and I could get you to change your support for a particular law by showing how it violates this moral imperative that we both share. For the conversation to even take place we have to have some moral inclinations which we both share.

    Me: I don’t agree. We can be in favor of a new law for all kinds of reasons, some of them contradictory to each other. If 75% of people are in favor of the new law, that doesn’t mean those 75% of people agree with each other one WHY that new law should be passed. 25% might think slavery gives the south an economic advantage that they disagree with. 25% might think god is against slavery. 20% might think society would be better if a larger group of people could work together for the betterment of all. 4% might think slavery is bad because that’s what mama and papa said. 1% might see the war as unwinnable and switch sides to be pragmatic. None of these people are required to agree with each other about the morality of slavery to oppose it.

    Tracie: The idea of maximum individual freedom may be in agreement with someone’s morality, but it’s the effect on governance that the laws are concerned with.

    Me: Exactly.

    Tracie: It’s simply effective for the state to not intervene unless there is a legitimate social concern. And by not restricting freedoms a lot of hassle is avoided.

    Me: Right. And a “legitimate social concern” is one that threatens civil unrest, as you said. There may be some moral element that motivates some of that civil unrest, but it isn’t required in regard to the laws themselves.

    Tracie: If you morally agree with that ethic, that’s a judgment call. It’s not required to think it’s moral to understand why it would be effective as a form of governance. That’s the point.

    Me: Agree again. One could have all kinds of moral views that conflict with laws–and a single person may hold moral views that conflict with certain laws, and STILL THINK the laws should remain as they are simply because changing them to be more “moral” (from that one point of view) would make governance so difficult as to destroy the society the laws were meant to protect–something that wouldn’t be “moral”, from a meta level.

    Me finally: Besides, we don’t put people in jail for doing immoral things. We put them in jail for doing illegal things. I think that difference is what Tracie and I are talking about.

    1. 15.1
      Jeremiah

      @jacob
      “… One could easily say the law should be that way so that society can function well…”

      Sure, but then we run into the problem of defining what a well functioning society is and how to measure it. We might agree that say low mortality rate is a good measure but a Christian might view a low divorce rate as desirable where it might not be so important to me. Terms like well-functioning don’t really escape people from the bias of their personal values.

      “But I don’t think invoking “individual freedom” is even necessary to find slavery to be immoral”

      I am not sure how one would do this. Would be interesting to hear.

      “If the prevailing view is that our group/country is better, smarter, holier, etc, and so we decide we’ll just take over the world…then we better be right if we want to survive. If we are wrong, we have just made an enemy of the entire world and destroyed ourselves.”

      I’m not sure if the “rightness” of the views is a good predictor of victors in military or cultural conflicts. I think it would be trivial to find many instances where immoral movements triumphed.

      “… None of these people are required to agree with each other about the morality of slavery to oppose it.”

      I didn’t quote the whole section on slavery to try to save space but I would say, yeah certainly each person might have different reasons, things are never simple binary choices or we would have everything figured out by now. The decisions, motivators, causes and effects of things spider web all over the place, that is why things can be so difficult sometimes. My point was more that if you want to bridge the disagreement gap on any particular issue you are going to have to on some level appeal to a shared value. That shared value might be different with the guy that thinks slavery is ordained by god than the guy that thinks the war is unwinnable.

      1. jacobfromlost

        Jeremiah: Sure, but then we run into the problem of defining what a well functioning society is and how to measure it. We might agree that say low mortality rate is a good measure but a Christian might view a low divorce rate as desirable where it might not be so important to me. Terms like well-functioning don’t really escape people from the bias of their personal values.

        Me: But my point is that the results of what we ultimately DO DO as a group has real consequences. We are never going to know everything, but the purpose of the law isn’t to enforce morality, but order. Having laws that establish and maintain that order in a population of people with biases doesn’t mean that the laws exist to establish the morals and biases of the population–the laws exist to keep the order among those people with their biases. If people make mistakes passing laws that don’t work well in reality (ie, the laws can’t easily be enforced, or can’t be sustained over time in reality), then it isn’t a simple disagreement about what is moral and what is not–it is the REALITY that a faulty few just doesn’t work in reality. It’s a subtle point, but I think it is inescapable.

        Me before: “But I don’t think invoking “individual freedom” is even necessary to find slavery to be immoral”

        Jeremiah: I am not sure how one would do this. Would be interesting to hear.

        Me now: How about this: “I own a business in a place where I have to pay workers, and I don’t think it is fair or moral for another business to get away with not having to pay workers, since I have to compete against them.”

        Me before: “If the prevailing view is that our group/country is better, smarter, holier, etc, and so we decide we’ll just take over the world…then we better be right if we want to survive. If we are wrong, we have just made an enemy of the entire world and destroyed ourselves.”

        Jeremiah: I’m not sure if the “rightness” of the views is a good predictor of victors in military or cultural conflicts. I think it would be trivial to find many instances where immoral movements triumphed.

        Me now: Depends how you define “triumphed”. I don’t see any society that relies on murdering, lying, stealing, etc, doing much better than societies that don’t, or floating to the top of any competition of people or countries over time. Indeed, I could kill my neighbor, steal his 10 million dollars out of his safe, never get caught, and live it up for the rest of my life. But if EVERYONE killed their neighbors, not only would most people not find their neighbors to HAVE 10 million dollars, but everyone would end up killing everyone else since you are also the neighbor of your neighbor.

        Me before: “… None of these people are required to agree with each other about the morality of slavery to oppose it.”

        Jeremiah: My point was more that if you want to bridge the disagreement gap on any particular issue you are going to have to on some level appeal to a shared value. That shared value might be different with the guy that thinks slavery is ordained by god than the guy that thinks the war is unwinnable.

        Me now: I’m confused. Why would you need to find a shared value among all those people to convince them that slavery should be abolished if they ALREADY think it should be abolished for various reasons that conflict with each other, and may well conflict with your view on why it should be abolished as well? They already made up a majority (in my hypothetical illustration), and “shared values” was not necessary for them to make up that majority. (This is why I say laws are meant to keep civil order, not morality, as morality didn’t even figure into that 75%. Only the agreement on what the law should be…which keeps the order.)

        1. Jeremiah

          @jacob
          I hesitate to reply since we have two parallel conversations going on but….

          If people make mistakes passing laws that don’t work well in reality (ie, the laws can’t easily be enforced, or can’t be sustained over time in reality), then it isn’t a simple disagreement about what is moral and what is not–it is the REALITY that a faulty few just doesn’t work in reality

          Perhaps. I can see where you are coming from now, but it seems like you are taking a sort of “markets will work things out” sort of long view. It seems similar to the argument that some libertarians put forth that parts of the civil rights movement was unnecessary because segregation would have worked itself out eventually. It might be true, but I am less sure the there isn’t benefit in “short-cutting” things when we have the chance.

          “I own a business in a place where I have to pay workers, and I don’t think it is fair or moral for another business to get away with not having to pay workers, since I have to compete against them.”

          Pretty good, but I still think you are leveraging individual freedom, just the person who it applies to has changed. Now you are arguing for your freedom (in a competitive market) rather than the slaves.

          I don’t see any society that relies on murdering, lying, stealing, etc, doing much better than societies that don’t, or floating to the top of any competition of people or countries over time

          Again, maybe not in the long view but the long view is probably of little comfort to the now extinct Pawtucket native American tribe. A certain long term ‘shaking out’ of bad ideas or methods might be inevitable but as I commented in the other conversation, I don’t think this gets government out of the position of legislating morality. It’s more that you are just saying that the best morality will (eventually) win.

          1. jacobfromlost

            Jeremiah: I hesitate to reply since we have two parallel conversations going on but….

            Me now: Why not? I have nothing better to do, lol.

            Me before: If people make mistakes passing laws that don’t work well in reality (ie, the laws can’t easily be enforced, or can’t be sustained over time in reality), then it isn’t a simple disagreement about what is moral and what is not–it is the REALITY that a faulty few just doesn’t work in reality

            Jeremiah: Perhaps. I can see where you are coming from now, but it seems like you are taking a sort of “markets will work things out” sort of long view.

            Me now: Not exactly, unless by “market” you include the influence of government controls based on the will of the people.

            Jeremiah: It seems similar to the argument that some libertarians put forth that parts of the civil rights movement was unnecessary because segregation would have worked itself out eventually.

            Me now: No.

            Jeremiah: It might be true, but I am less sure the there isn’t benefit in “short-cutting” things when we have the chance.

            Me now: From everything that I have said, why do you think that I would say “segregation would work itself out without any new laws”? NOTHING I have said suggests this at all. In fact, everything I have said suggests that laws keep the civil order. If anything, the morality that said segregation should continue was tossed aside by the needs of the civil order.

            Me before giving a hypothetical example of a moral reason to be against slavery that has nothing to do with individual freedom: “I own a business in a place where I have to pay workers, and I don’t think it is fair or moral for another business to get away with not having to pay workers, since I have to compete against them.”

            Jeremiah: Pretty good, but I still think you are leveraging individual freedom, just the person who it applies to has changed. Now you are arguing for your freedom (in a competitive market) rather than the slaves.

            Me now: Right. So? I’m not a slave! I (hypothetically) own a business, I have no moral qualms with owning certain people or restricting their freedom as I am NOT those certain people. I have qualms with slave owners in other states being allowed to own slaves that gives them a competitive advantage! You know the other way to make me morally happy in this circumstance? Legalize slavery in my state! My individual freedom is restored, as I am once again competitive with the slave owners in the other states.

            Me before: I don’t see any society that relies on murdering, lying, stealing, etc, doing much better than societies that don’t, or floating to the top of any competition of people or countries over time

            Jeremiah: Again, maybe not in the long view but the long view is probably of little comfort to the now extinct Pawtucket native American tribe. A certain long term ‘shaking out’ of bad ideas or methods might be inevitable but as I commented in the other conversation, I don’t think this gets government out of the position of legislating morality. It’s more that you are just saying that the best morality will (eventually) win.

            Me now: Good grief. I’m not SAYING the best morality will eventually win in terms of the laws. I’m saying morality has nothing to do with laws in the sense you are claiming. If laws DID come from morality, then you’d never have a law being passed based on CONFLICTING MORALS. We do have such circumstances, all the time, and the AGREEMENT is on what the law should be to KEEP THE CIVIL ORDER. The agreement is NOT on what the morality may or may not be, nor is it on what the law should be to keep people moral.

  16. 16
    razzlefrog

    Tell it to Mississippi. They’re about to fuck us all on this abortion thing. Sigh.

  17. 17
    Michael B.

    I agree with the thought that laws are primarily for maintaining social order, but I think the confusion with morality lies in that a) much of morality is also based on maintaining social order, but from the perspective of the individual and b) maintaining social order often requires consideration of the disparate moralities of the populace. Therefore, morals seem to be inextricably linked to laws, while at the same time being distinct.

  18. 18
    peterh

    A risky stab at oversimplification: legality is directed at the individual’s relationship to the mass; morality is directed at the individual’s relationship to ones self.

  19. 19
    Vikas

    Who wrote this piece?

    1. 19.1
      Michael D.

      heicart aka tracieh (read it backwards)

  20. 20
    wat

    I’m thinking a lot of people are using the term “morality” in different ways. If by “morality” we mean ethics, laws are necessarily an ethical matter. Ethics are not confined to interpersonal relations; they also deal with societal issues, even policy issues. If by “morality” we mean only those ethical preferences which are largely irrelevant to public policy, then Tracie’s argument holds. Arguing that legislating does not involve ethics on the grounds that public policy is primarily concerned with social outcomes falls flat. In basing policy decisions on outcomes we have already made a number of ethical judgements, notably, accepting consequentialism. It isn’t obvious that this is the only choice. If we decided our ethics should be based on some form of deontology, outcomes are less important than simply adhering to the rules of that form of deontology. To put this in another way: when you say that laws are about social outcomes you are making an ought statement. Your very argument against ethics in legislating is itself an ethical argument. If you want to describe what legislating actually IS, you will have to note that laws tend to represent the general ethical consensus of the society in which they are enacted. In Saudi Arabia, divine command theory informs laws(along with the ambitions of the ruling family), and as a result their policies are notably less concerned with social outcomes and more concerned with religious duties. In secular countries, legislation is more often aimed at creating optimal social outcomes, precisely because consequentialist ethics are more prevalent, especially among the educated who tend to be the lawmakers. You can even see subtle gradients between countries like the US where large numbers of people who prefer deontological ethics compete for influence with consequentialists, leading to a mixture of laws, and countries like Sweden, where almost everyone accepts consequentialism, and have laws that are far more concerned with optimal outcomes than the US.

    1. 20.1
      wat

      Your very argument against ethics in legislating is itself an ethical argument.

      This isn’t right. What I’d really like to say is that your argument isn’t even an argument against ethical considerations in lawmaking. It’s an argument against ethical systems you don’t like, i.e. ethical systems other than consequentialism. I’d also add that I generally accept consequentalism, and likely for the same reasons you do. If it is what you meant, I would agree that adherence to arbitrary deontological duties is a silly way to go about legislating, and that the virtues of social actors is not very important compared to the consequences of their actions, and therefore of policy designed to influence their actions. For example, I don’t think it matters whether or not a criminal is a bad person; it is more important to look at the harmful effect they have on society, and the likely outcomes of our policy response, in determining how to deal with them.

    2. 20.2
      jacobfromlost

      “If by “morality” we mean ethics, laws are necessarily an ethical matter. Ethics are not confined to interpersonal relations; they also deal with societal issues, even policy issues.”

      Sort of, but again we can separate the two fairly easily.

      Is it unethical to secretly steal from your neighbors, leaving no evidence behind that you did so? I think we would agree that yes, it is unethical.

      But is it illegal? CAN it be illegal? On paper it is illegal to steal, yes, but the law really has no meaning if it is violated in secret and no one has a means to discover who committed the crime. The law would be impotent in that instance, which renders it useless.

      And that’s a circumstance in which the neighbor would notice things are missing, hence someone would KNOW there was a crime. What if your neighbor has Alzheimers, and doesn’t notice that you “borrow” a couple hundred dollars a week, never to return it to them (and no family members of this neighbor notice, or if they do, just figure the person lost the money somehow)? Is that unethical? Surely. But the law can do nothing about this if there is no means to discover the crime. (It takes very little to think of recent instances where unethical practices were done quietly and legally because the victims and law makers simply didn’t know or understand what was going on–or if some law makers did know, they didn’t care because it wasn’t known to the public at large, and no social outcry compelled them.)

      So is the law against stealing unethical because it can do nothing to stop certain unethical activity? Or is the law ethical because ethics plays a role in the consensus that the law should prohibit stealing? Or is the law AS the law neither ethical nor unethical because the law doesn’t endeavor to make people ethical–it only provides a consequence to those who are caught doing things that the group considers unethical for fairly objective reasons (ie, if everyone found it acceptable to steal from everyone else, society would collapse and everyone would be worse off)?

      ” Arguing that legislating does not involve ethics on the grounds that public policy is primarily concerned with social outcomes falls flat.”

      I wouldn’t say legislating doesn’t INVOLVE ethics or morality, I would say that the basis of enforcable laws in reality (if laws are not enforcable, I would argue that they are not laws) are not ethics nor morality, in that ethics in a group can vary while still coming to agreements about laws that keep order.

      Is it ethical in and of itself to drive on the right side of the road? No. It is only ethical because we’ve all decided somewhat arbitrarily that that is what we will do (in the US) so that we don’t contantly crash into each other. If you go down under, it becomes ethical do drive on the left. The ethics seem to have changed based on the law and the order the law is establishing with a particular group of people.

      But what about the ethics of murder? Laws against murder are based on ethics, right? Perhaps not. I would argue that murder would be unethical even if there WERE no laws, or if the law said it was perfectly fine to kill certain people under certain circumstances (if, after beating your slave, he lived a week and then died from his injuries, for example). It again seems that laws do not depend upon ethics, as specific laws can be ethical, unethical, both, or neither, depending on one’s views or place in history.

      Also, ethics and morals are descriptive, while laws are a particular kind of prescriptive (the kind that requires human’s–not gods, spirits, devils, magic, guilt, etc–to enforce them in demonstrable reality). Laws cannot prescribe that people be moral or ethical–they can only prescribe what happens to people who violate rules (and are CAUGHT violating the rules) that were put in place to keep the social order, whatever the ethics or morals of the population at large might be.

      However, if we see laws as descriptive, the way ethics and morals are, then laws at their core have no bite–and, I would argue, are not laws.

      1. wat

        I think you are arguing against a position I don’t hold. I don’t think that laws are equal to ethics. My position is that laws are instruments of implementing the general ethical consensus(at least, of those in power, this part gets complicated). I also wouldn’t say that ethics are contingent on laws. Your bit about ethics being descriptive is wrong, and I really don’t want to get into a long drawn out debate about the merits of ethical descriptivism. My earlier point applies to your argument as well. You favor a specific set of ethical ideas, which appear to my eye to be ethical naturalism(you’ve been reading Sam Harris, haven’t you?) You are arguing that laws should reflect that ethical preference instead of any other ethical preference.

        1. jacobfromlost

          wat: I think you are arguing against a position I don’t hold. I don’t think that laws are equal to ethics. My position is that laws are instruments of implementing the general ethical consensus(at least, of those in power, this part gets complicated).

          Me now: I’m not sure it is the ethical consensus, though. Agreement on what the LAW should be is the consensus concerning what law is passed, but I’m not even certain there needs to be an ethical consensus on THAT.

          wat: I also wouldn’t say that ethics are contingent on laws.

          Me now: I was saying laws are not contingent on ethics–which is suggested by the fact that an agreement/consensus on what the law should be can be achieved without agreement/consensus of what ethics are.

          wat: Your bit about ethics being descriptive is wrong, and I really don’t want to get into a long drawn out debate about the merits of ethical descriptivism.

          Me now: What is the difference between ethical consensus and a consensus on what the law should be? I’m suggesting there is a difference. Are you suggesting there is not?

          wat: My earlier point applies to your argument as well. You favor a specific set of ethical ideas, which appear to my eye to be ethical naturalism(you’ve been reading Sam Harris, haven’t you?) You are arguing that laws should reflect that ethical preference instead of any other ethical preference.

          Me now: I absolutely AM NOT. What I’m saying is that my ethical ideas in a sea of other ethical ideas can come to a consensus or agreement on what the laws should be based NOT on what anyone’s ethics are (including my own), but based on what keeps the civil order at the time. The fact that I, personally, would advocate laws that reflect a rational point of view that works in reality does NOT mean I think laws are based on ethics or morals like mine. Laws at ANY time reflect a means to keep the civil order, even if that civil order is totally anathema to my view of ethics or morals. The fact that laws cannot be passed that violate reality is not my personal view of ethics or morals–it’s just a fact. Many laws can, however, be passed that violate my views of ethics and morals, and still keep the civil order.

          1. wat

            Ok.

  21. 21
    Mark

    I’m all for laws that protect people from harm. But laws based on the assumption of an afterlife, or specific deity should be eliminated. If I am not a Christian, why should I be subjected the the laws of your god? Laws against gays getting married does not protect people from harm. Let me go to hell, but in the meantime, make sure I am safe to walk the streets. If your god is the one, true god, I will deal with the consequences when I die. Judge not lest ye be judged.

  1. 22
    Legislating Morality |

    […] [2] What does it mean to legislate morality? The Austin Atheist Experience answers. […]

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>