Download Should Morality Be Enforced by Law

Should Morality Be Enforced by Law?
The legal and moral realms are different.
What is moral cannot be decided by looking at current laws. If it could be, then it would always
be immoral to change a law! Rather than basing morality on what is legal, it seems more
reasonable to try to make the law accord with what is moral.
But it is not quite that simple, either. We do not want to have laws that would require us to do
something immoral, but it’s not clear that we want laws always requiring us to act morally. This
is because there may be some areas of life which we regard as private, simply none of the
government’s business. For example, we may regard lying to our children or our parents as
immoral, but that does not imply that we would want there to be a law to enforce honesty and to
punish us for lying. Of course there are many immoral things that we do want punished by law,
such as killing, stealing, and raping.
Which areas of life should be legislated?
The above states the two extremes: areas (like killing) where we clearly do want the law involved
and actions (like lying to friends or family) where we do not. But here are some proposals for
laws that fall into a more difficult “gray” area:
Laws to ban obscene books and magazines.
Laws prohibiting written expression of ideas or pictures that demean women.
Laws prohibiting homosexual or polygamous marriage (with consent of all parties).
Laws prohibiting certain kinds of sexual acts (e.g., “sodomy”) even between consenting
marriage partners.
Laws against bestiality (sex with animals).
Laws against honoring the dead by eating them in a festive meal.
Laws to prohibit public demonstrations or publication of books that advocate racist ideas.
Laws prohibiting suicide or active euthanasia.
Laws restricting the use of certain drugs.
The question we need to address in thinking about the examples above is not whether we think
the act is immoral and not even whether we think it should be illegal; rather, the question is
whether it is the kind of issue about which government may even consider making a law. If it is,
then we and others can debate the desirability of the law in the democratic process, and
eventually the minority will have to bow to the majority’s wishes. But if it is not the kind of issue
government should consider, then no person, even if (s)he is a minority of one, should ever have
his/her freedom restricted in this area. For example, John Stuart Mill thought that a person’s
freedom of speech should never be limited by governmental laws.
Is there a principle to help us decide?
Our question, then, is which areas of life are appropriate subjects for law and which areas (if any)
are private where the government and its laws have absolutely no business? What we need is a
principle for deciding this. Here are some possible principles one might use:
Laws are appropriate only to regulate actions that harm others. (Mill’s “harm principle.”)
Laws are appropriate to enforce morality. (Legal moralism)
Laws are appropriate to regulate actions which offend a majority of the population.
Laws are appropriate to prevent a person from harming himself or herself. (Legal paternalism)
The underlying issues
What underlies the debate is a difference about (1) the value of freedom of expression and (2) the
purpose of law. Consider these questions:
The value of freedom of expression
Is freedom of expression valuable for its own sake, regardless of results, or it valuable only
because it tends to serve certain social and political ends?
If free expression is valuable because it serves certain ends, what ends are these (e.g., gaining
access to the truth, promoting democracy, etc.)?
If in an individual instance it seems likely that free expression will not serve the end for which
it is valued, should we then restrict expression?
The purpose of law
Is the proper purpose of law to protect individuals or to protect society?
Does the existence of society require that there be some shared understanding about basic
moral ideas?
If societies do require some agreement on morality, then might it be appropriate to restrict
some forms of expression and behavior because they harm society even though they do not
harm individuals?
If “common moral standards” are enforced by government, does this pose a threat to
individual liberty?