Religion & Liberty Online

Should morality be legislated?

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An act’s immorality is not sufficient to justify prohibition or regulation through state coercion. A moral government aimed at the common good will recognize its basic purpose, scope, and limitations.

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Should governments legislate morality? It depends on how we define our terms.

If “legislate morality” is simply defined as “making laws that are moral,” then it is obvious that we should legislate morality.

But if “legislate morality” entails basing laws solely on an act’s morality or immorality, then we should not legislate morality. Yet it is common to argue that there should be laws against certain behaviors because they are wrong.

Because people widely disagree about what is moral, the acts that different people argue should be prohibited or punished by the government are wide-ranging, including:

  • Gambling
  • Smoking
  • Paying workers below $15 an hour
  • Divorce
  • Same-sex marriage
  • Using single-use plastics
  • Having only men on a corporate board
  • Consuming pork

Regardless of whether any of these acts are, in fact, immoral, we ought not justify laws against them solely on that basis. Some immoral acts should indeed be illegal, and the fact that an act is morally wrong may be a relevant consideration for the law. But an action’s immorality is not a sufficient condition to justify making that action illegal. Not all immoral acts should be punished by the government.

Equating the concepts of morality and legality – exactly matching human law to the natural law – is one of the surest paths to an immoral society that threatens human flourishing. Here are six reasons why this approach to “legislating morality” must be avoided.

1. The government is incapable of correctly and comprehensively codifying morality. Morality is real and objective, but people have imperfect grasps of that objective reality. People consequently disagree on most moral questions and make many errors in discerning right from wrong. Governments are likewise fallible and regularly enforce false moral views. Laws change, so if a government enforces mostly true moral views at one time, it may enforce the wrong views after a change in leadership. Moreover, because the virtuous course of action differs greatly based on specific circumstances, it may not be possible, even theoretically, to make a list of laws that accurately represents what is moral or immoral in all situations. Contemporary virtue ethicists term this problem the “uncodifiability of ethics.” Philosopher John McDowell explains: “If one attempted to reduce one’s conception of what virtue requires to a set of rules, then, however subtle and thoughtful one was in drawing up the code, cases would inevitably turn up in which a mechanical application of the rules would strike one as wrong.”

Even if correctly codifying ethics were theoretically possible, accomplishing this in practice would be an insurmountable task for any person or government. Any government that equates legality with morality will therefore inevitably implement some false views of morality. People will be punished for doing certain morally right things and also forced to do some things that are morally wrong.

2. Any government that attempts to enforce a comprehensive moral code will be far too intrusive in the personal lives of its citizens. Moral questions pervade every area of life, including those that are most personal and private. If an act’s immorality is a sufficient condition to justify a law against it, then it follows that the government would have the justification to regulate any number of areas, including arguments with spouses, personal exercise routines, attendance of one’s children’s sports games, which conception of god one prays to, and even our innermost thoughts and intentions. Such a government would abolish privacy and make life miserable for its citizens.

3. Laws that attempt to enforce morality have negative unintended consequences. In the United States, for example, the prohibition of alcohol is widely regarded as a failure due to its unintended consequences. Restaurants and other businesses closed, organized crime increased, and thousands of Americans died from poorly produced liquor. The failure of Prohibition demonstrated that even if alcohol is immoral and harmful, a law prohibiting it can be even more harmful.

All laws have unintended consequences, and any big change to society will have ripple effects. Lao Tzu observed over 2,500 years ago that “[t]he more prohibitions and rules, the poorer people become … The more elaborate the laws, the more they commit crimes.” The world is imperfect, we are incapable of making it perfect, and if we use government to try to force it to be perfect, we will end up making things even worse than before.

4. A proper respect for our fellow citizens should lead us to afford them some amount of autonomy and freedom to make decisions for their own lives – and even to make mistakes. This is because every human being is endowed, equally, with intrinsic value and dignity. The United Nation’s Universal Declaration of Human Rights lists dozens of “inalienable rights of all members of the human family” that make no distinction “on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs.” One of these is the right “to manifest his religion or belief in teaching, practice, worship and observance,” which gives room for some actions that many people consider immoral. It even protects what Christians consider the greatest sin, which is blasphemy of the Holy Spirit.

We should always desire others to behave morally and seek to have a positive influence on them. Yet it is not always within our rights to forcibly stop someone from sinning. Some sins are between the individual and God – not between the individual and the government. Augustine wrote that “[t]he law which is made to govern states . . . [leaves] unpunished things which are avenged nonetheless by divine providence.” To appoint government to punish all moral wrongdoing is to seat government in the throne of God, as God alone has the right and ability to give each person what they deserve.

5. A flourishing society requires grace and forgiveness. Rather than recording and punishing all mistakes, love demands that we learn to live with each other’s imperfections and be quick to forgive. We recognize in every sphere of our lives that it is seldom wise to hold others to a standard of perfection. Whether it be our friends, significant others, children, or employees, it is not always beneficial to correct them for everything we perceive as an error. Often it is best not to judge and instead love others the same regardless of their imperfection. In Christianity, God is the ultimate exemplar of grace and forgiveness, choosing not to condemn humanity but remember their sins no more. Surely, the government needs to punish many crimes, but an ethical government will not tally every moral shortcoming of its citizens.

6. A state that legislates a comprehensive moral code will hinder the development of virtue and character. Virtue, a necessary condition of a flourishing society, does not appear ex nihilo. It requires practice and cultivation. Moreover, the highest degrees of virtue cannot be forced upon someone, but are shaped by one’s own choices and values. State-enforced morality strips actions of their moral worth, replacing proper motivations with fear of punishment. Thomas Aquinas even cautioned that overly restrictive laws would lead to an increase in wrongdoing: “[human law should] not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz. that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils.”

Psychologist Lawrence Kohlberg’s six stages of moral development provide a helpful framework for how people grow in their moral decision-making. Early in life, children base moral decisions on avoiding punishments and receiving rewards by following “rules imposed by authority figures.” As children develop in virtue, they move on to better motivations for their decisions, eventually reaching the highest state of functioning, which Kohlberg defines as following “one’s self-chosen ethical principles of conscience,” which take into account “the perspective of every person or group that could potentially be affected by the decision.” By attempting to punish all moral wrongdoing, a paternal government will influence more people to be stuck in the early stages of moral development and never mature into virtuous citizens who freely choose the good. The moral character of the nation will consequently decline.

For these reasons, the fact that an action is immoral is not by itself sufficient to justify a law prohibiting that action. A moral government aimed at the common good will not always enforce morality, but be limited in its purpose and scope.

Does this mean there is nothing we can do about immorality in society? Certainly not! The government is only one of many institutions in society, each of which have different purposes and proper functions. Churches, schools, businesses, nonprofits, families, and other institutions each have their own key roles in cultivating and promoting virtue. If these institutions work together in harmony, operating at their best within their proper spheres, our society can be both free and virtuous. But if we sacrifice freedom to get virtue, we will end up with neither.

Nathan Mech

Nathan Mech is the Program Outreach Project Manager for the Acton Institute.