Legislating morality

What should be the government's role in legislating morality?

The claim you sometimes hear on the left is that the government should not legislate morality at all. This is complete disingenuous. All law is legislated morality. Laws aren't simply recommendations; they come backed with a threat of coercion. If the government is going to threaten to coerce me if I don't follow a particular law, they had better have a good moral argument why I should obey the law. Otherwise, they are no more than brute tyrants. In fact, the left wants to legislate morality all the time and it is completely irrational that they would call it anything else. From income redistribution to food regulations to funding social welfare programs, the left has in mind a moral vision for our country which is has every right to defend in a free society. Only don't pretend no morals are being enforced.

The right, on the other hand, will often strongly endorse the belief that all law is legislated morality. The enthusiasm is a little too strong, however, and very often the right has a very uncritical view of the relationship between morals and laws. For instance, many conservatives will go so far as to propose a constitutional amendment "to protect the institution of marriage." Yet no Republican has seriously proposed a federal ban on divorce. "Traditional values" don't seem to have a clear definition, and the phrase is mostly tossed around in order to rally support for the latest trend in conservative activism.

Libertarians, commonly speaking, tend to favor the left's position that the government ought not to legislate morality. Arguably they are more consistent in this, since they oppose government intervention in both personal and economic spheres of life. Yet unless you are actually an anarchist (in which case none of this applies to you) then you must concede that the government's role is in fact to enforce laws which protect freedom. Thus the argument I made against the left still applies: laws must really be enforced morals, or else they are nothing but tyrannical decrees.

Hopefully each of these caricatures can help warn us against pitfalls in our reasoning about these issues. The fact that we really don't think very clearly about this question shows up in political debates all the time. Very rarely to people have sound principles in mind when they decide that something ought to be law. They implicitly base their arguments on personal experience, without recognizing the unavoidable fact that our personal experience captures an exceedingly minuscule portion of reality.

In most political discussion, it would appear that morals can fall into one of only two categories: private and public. Private morals are principles which guide your own life, such as your sexual conduct, your work ethic, your religious life, and how much you will give to charity. Public morals are rules that all of us have to follow if we are to have an ordered society. They are things like "Thou shalt not kill" and "Thou shalt not steal." These morals prohibit behaviors that harm others, and so others are entitled to force us to abide by them.

Most Americans seem to make the very bad assumption that no one ought to interfere in your private morals, and, simultaneously, the government has every right to interfere in all of your public morals. Thus politics becomes a battle over which morals are to cross over the line between private and public, with absolutely no gradation in between. The general result of this has been to make everything more and more public, which therefore results in more government interference, because, after all, no man is an island. The libertarian reaction to this situation is taken to be "hyper-individualist," because the notion that government should not interfere with our daily affairs is automatically equated with the idea that we should all be left alone.

To truly understand the proper role of government in "legislating morality," we ought to understand something about how morals function in creating a social order. We are constantly guided by morals in everything we do, and most of this guidance has nothing to do with a ruling authority. For instance, when going to a restaurant, almost everyone will pay some tip to their waiter or waitress. This is not done because of any legal obligation, but it is almost exclusively done because we have learned to imitate others, such as our parents, who did the same thing before us. The greetings that we use, the distance we stand from other people, the clothes that we wear, the words "please" and "thank you"--all of these are examples of morals guiding us, not because of any authority placed over us and not because we made them up out of thin air, but rather because we imitate others and gradually form habits.

If you join a particular company, corporation, university, or whatever, you generally pick up certain morals based on the kind of institution you have joined. In my own world of the university, certain morals have become particularly valuable in my daily life, such as originality, critical thinking, and giving credit to sources. In a more rigid hierarchical environment, the values instilled would be rather different: for instance, I can't imagine that in the military officers appreciate their soldiers questioning their decisions.

We thus see that a person's morals are built not merely from his own mind, but from the social institutions in which he participates. If he chooses to reject the morals of a particular social institution, then he will generally not be allowed to participate effectively in it. There are always exceptions to this rule, which makes life perpetually interesting.

What conclusion can we draw from this? That all morals are simply constructs of the social institutions in which we participate? No, that conclusion confuses the ability of institutions to shape moral behavior with the ability to actually construct morals. Social institutions either survive or perish based on their ability to strive for the good, as it were. In plain English, no one will join you in doing something unless they think it is worth doing. All human cooperation involves people who are jointly convinced that a particular activity results in something beneficial in one sense or another. They may disagree on why something is beneficial, but the fact that they are willing to participate signals that the activity is at least better than the alternatives. Thus every voluntary action I take is implicitly a wager that what I am doing falls within the bounds of "right."

It may be objected here that I am making too many things into moral decisions. Don't we, after all, tend to distinguish between seriously moral dilemmas and morally neutral preferences? This distinction is simply a matter of scale, not kind. My preference for chocolate rather than vanilla ice cream is not a matter of serious moral debate, but if we care to press the matter deeply we can still find it is not fundamentally detached from moral questions. If I buy more chocolate ice cream than vanilla, this sends a signal through the market price system that more chocolate ice cream ought to be produced. This raises the price for other people to buy chocolate ice cream, because resources are finite. Thus my decision has consequences for others and therefore cannot be deemed completely amoral. The question whether I should be eating ice cream at all is even more closely tied to moral questions, such as how I should treat my body and how much I should spend on luxuries. If I spend money on ice cream instead of giving it to the poor, have I done wrong? Thus something generally taken as trivial really is tied to our morals, no matter how much we may desire to simplify things.

This is not to say, however, that your ice cream preference is not, in fact, trivial. It's worth noting that many decisions, though ultimately tied to moral questions, really don't need to be given much thought. For instance, should I say hello to the person at the counter? Should I stop to talk to my friend who's working next to me at the coffee shop? Should I take that online survey? These are trivial questions, but they are still moral ones.

Other questions are more serious and in fact can have a big impact on others, yet we still seem to be better off leaving those questions to be handled by the individual or individuals most affected by them. For instance, what line of work should I choose? Where should I get a job? Whom should I marry? What religion should I believe? How much should I give to charity? These are very much moral questions, but they are not simply "private." They obviously involve other people, sometimes in drastic ways. If I choose to work for the military on creating more weapons, that might just have long-term consequences for society. If I choose to give a lot to charity, that might just (indirectly) save someone's life.

Let's bring all of this discussion back into focus. It should be clear from what I've said that

1. morals are not simply private, but they are formed by participation in social institutions;
2. morals exist in many layers covering many dimensions of society, and some layers are more critical than others;
3. most morals are not enforced by government, but through smaller and more diverse institutions;
4. we may not have perfect moral knowledge, but that does not mean there is no such thing as moral claims.

What principles, then, can we use to guide our understanding of the relationship between legislation and morality? First, we have to keep in mind the third point I made, that most morals are not, do not need to be, and in fact cannot be enforced by government. This common sense appears to go out the window whenever a political debate happens on a hot-button issue. Take drugs, for instance. If I suggest they be legalized, this is immediately taken to mean that they are basically "okay." I don't believe any such thing. But plainly government has no capacity to enforce this moral, anyway: we can't even get drugs out of prisons, much less people's homes where they live. If we want people to behave morally, there are plenty of things we can do (and already do) to change them: reason with them, shame them, shun them, or even take it upon yourself to coerce them (if they end up thanking you for it, it's not all bad, is it?). None of these involves the use of government force.

Second, coercion can stunt moral growth. While it is true that no one can become moral without experience some amount of coercion, particularly from parents, it is also true that the use of force can backfire. Our morals are learned by imitating those we respect as legitimate sources of morality. If someone we don't respect coerces us into so-called moral behavior, the result will not be moral growth, but something undesirable, such as cynicism, defiance, or repression. Consider the Social Security program, begun in the 1930's and expanded in the 1960's. Have people actually become more generous to the poor or to the old? No; as I see it, people have become more greedy, more demanding of government support, and more cynical about how the government is spending their money. This is hardly progress.

Third, the ends don't justify the means. Government is itself subject to certain morals, even as it seeks to enforce basic morals. Its ability to use force ought to be nearly as limited as our own. As it is, we should be disturbed by the growing tendency in government to use force more and more freely without due process of law.

Fourth and finally, and what I take to be a corollary of the other three, we should always err on the side of less use of force. Yes, we should have laws against murder and rape and theft. Yes, the government may have to use force to enforce those laws, but the amount of force they are allowed to use ought to be limited by what is already well-known as due process. But in general, just because we believe something to be wrong does not mean we should use force to regulate it. Society is already complex enough and already provides plenty of mechanisms for self-regulation. We should not assume that the default state of a society is chaos. Most of the means by which we develop morally do not involve force, and in fact when force is used it tends to diminish rather than improve moral development.

And, to conclude, here's a video from Ron Paul at the South Carolina Republican debate, talking about these very issues:

Still a classic.