[Vision2020] Morality and the Law Are Not an Easy Mix

[Tom Hansen]

>From the "Town Crier II" of today's (July 5, 2006) Moscow-Pullman Daily News
with a special thanks to Joe Campbell -

In my opinion, Joe, it is society that determines morality.  Any given
society determines/defines "acceptable behavior" (what is right) and
proceeds to enact laws to protect themselves from "unacceptable behavior"
(what is wrong).  What is considered "acceptable behavior" in one society
(or even one state in our nation) may be considered "unacceptable behavior"
in another society (or another state in our nation) and punishable by law.

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Morality and the law are not an easy mix
By Joe Campbell

As an undergraduate I had a keen interest in "On Liberty," where John Stuart
Mill argues for legal liberalism: the only actions that may be restricted by
society are ones that lead to direct physical harm to others. Opposed to
this is legal moralism, which claims that the state may also restrict
behaviors that cause moral harms. 

Legal moralism is usually supported by two arguments, one that connects
religion and morality and another that connects morality and the law. Thus,
a legal moralist might argue, first, that abortion is wrong because the
Bible says so and, second, that since abortion is wrong, we are permitted -
or perhaps obligated - to pass laws against it. 

There are more sophisticated versions of the first argument, but that
matters little since the same kinds of criticisms are offered against any
version. Some people think that morality is relative or a matter of personal
feeling, so there is no such thing as objective moral truth. Others believe
in objective morality but think that it has nothing to do with religion.
There are also nuanced questions involving the moral status of the fetus: Is
it a person? Does it have rights? If we concern ourselves with the first
part of the legal moralists defense - the connection between religion and
morality - it isn't long before we are immersed in delicate and subtle
philosophical disputes. 

I am a philosopher but I think that philosophy should be avoided whenever
possible in matters of public policy. The reason is that philosophy is
intractable, and its intractability plays into the hands of the legal
moralist. Once a philosophical topic comes up the common man leaves the room
and the legal moralist wins by default. However, there is another way to
resist legal moralism, namely, to focus on the second part instead - the
connection between morality and the law. 

Consider two people with two distinct viewpoints. Anna is a strict Catholic
who believes that abortion is murder. Betty is a liberal atheist who thinks
that abortion is elective surgery. Finding a point of agreement between them
is unlikely. Nonetheless, we need to endorse some policy, so which one do we
choose? 

It seems as if our decision must favor either Anna or Betty but this is
incorrect. If we are swayed by Anna and pass a law against abortion, then
clearly our decision will have some impact on Betty, for her behavior is now
restricted. On the other hand, if we resist passing laws against abortion,
then it is hard to see how this will have any affect on Anna. Presumably,
Anna will not have an abortion even if it is legal to do so. 

I am a legal minimalist: the fewer laws there are the better. As the above
example illustrates, laws restrict behavior and there should always be a
presumption in favor of liberty and choice. I am not an anarchist, for the
state does have an obligation to protect its citizens. "Clear harms to clear
persons" should be our guiding principle when determining whether or not to
enact a law. 

In response, one might claim that abortion causes a lot of harm, namely,
harm to the unborn. Unfortunately, until we reach some consensus about the
moral status of the fetus, this gets us back into speculative philosophy. 

Part of the problem rests in the fact that, outside of the law, we have few
opportunities for large-scale moral influence. Be that as it may, the law is
poorly suited for this end. For one thing, it sends the unfortunate message
that if something is legally permissible, then it is morally permissible. 

Furthermore, our aim should be to create a society of morally responsible
individuals. Yet a person is morally responsible for an action only if it is
done freely. If someone fails to steal merely because she is coerced by
legal sanctions, then she is hardly a model of moral behavior. True morality
requires choice and true choice requires the opportunity to make bad
choices. If our concern is really a moral one, as the legal moralist claims,
then we need to find other means than the law to encourage citizens to do
the right thing. 



Joe Campbell is an associate professor of philosophy at Washington State
University. He and his family have lived in Moscow for almost 10 years. Joe
is co-founder of the Inland Northwest Philosophy Conference and co-editor of
the Topics in Contemporary Philosophy Series on MIT Press. He is also a
founding member of the Cowgirl Chocolates/Red Door softball team. Town Crier
II is a weekly series of columns contributed by 13 local writers. The Town
Crier columns run on Wednesday.

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Seeya round town, Moscow.

Tom Hansen
Moscow, Idaho

"Uh, how about a 1-strike law. Death doesn't seem too extreme for a Level-3
sex offender."

- Dale "Comb-Over" Courtney (August 3, 2005)