So says many a left-liberal and libertarian political pundit. In an age of political, religious and cultural pluralism, such a claim resonates strongly with a large sector of the American public. It is used as a stopgap in conversations involving the legalization of drugs, the ethics of reproduction and the establishment of LGBTQ marriage. Such a claim is not entirely without merit. But taken on its own it is almost meaningless, and must be refined and clarified if it is to be of any use. As a conservative, the philosophy behind the statement has a certain compatibility with my own. I will attempt to briefly outline why I believe the statement as it stands to be flawed and elaborate upon ways it might be improved so as to be of use to those across the political spectrum.
At its heart, the adage that morality cannot be legislated is a direct attack against the philosophy of legal moralism. To briefly summarize, legal moralism posits that the function of law in society is to enshrine a specific moral order, constituting the fabric of social and political life. In this way, the “thou shalt nots” of the law correspond simply and directly to those of moral conviction. In contrast, the more modern doctrine of legal positivism suggests that law has a special kind of intentionality that can re-shape society, a la other programs of social engineering. The philosophies of legal moralism and positivism are sharply tangled in American law. Much of the genesis of America’s legal tradition is taken from English common law, which draws inspiration from even older, classical, and Roman sources. Our Constitution’s bill of rights owes its existence to the Enlightenment, but there is some debate as to whether the founding fathers were influenced more sharply by Locke (a universal, individualistic contractarian) or Montesquieu (who viewed law as an outgrowth of morals and customs that were dependent on place).
This is necessary background, because the debate over the legislation of “morality” goes deeper than mere arguments over individuals’ choices. It is, rather, a question of the nature of law itself. While I cannot embrace the most strident form of legal moralism, I would suggest that all law is undergirded by some ethical foundation. Positivism is not exempt from this charge, as its intentionality and transformative goals have ethical underpinnings (and implications) of their own. What, then, should serve as the ethical foundations of law? There are a number of possibilities. Assuming the existence of divine revelation, the fiat declaration of God could theoretically serve as the foundation of a nation’s laws. But, despite breathless warnings from some on the left, America is unlikely to become a true theocracy any time soon. So the question, then, is what America’s understanding of its own law is based on. There are essentially two answers, but they do not correspond directly to moralism or positivism. One possibility is the secular social contract theory of Locke, Rousseau, and other Enlightenment figures. Social contract theory conceived of people as completely autonomous, rational beings and derived political theory from a primitive “state of nature”. By contrast, pre-Enlightenment figures such as Edmund Burke conceived of humans and society as an organic whole, with the variety of customs, traditions, and laws reflecting a society’s unity and uniqueness. In this picture, law is conceived of as arising from culture (and, for religious thinkers, divine will).
The founders drew on both these traditions, and in the twentieth century the
Enlightenment view of human nature combined with legal positivism and a more directly activist Supreme Court changed the face of American law. Legislation became a tool to right wrongs, to undo the oppression of minorities—all, on the face of it, valuable goals. But in all of these understandings of the purpose of legislation, ethical consideration holds some way. Whether secular, religious, utilitarian, or positivist, the law is seen as having some ethical purpose. Furthermore, all law by its very nature must regulate some choices, and it must do so for reasons that impinge on ethics. The average person does not usually conceive of murder as illegal because it is inefficient, or even because it violates rights: murder is against the law because it is wrong. This suggests that the idea that morality cannot be legislated is at the least poorly worded. Instead, what should be asked are more fundamental questions: How do law and personal ethical decisions interact? What kinds of moral decisions should and should not be legislated? I do not have comprehensive answers to those questions.
The above paragraphs may suggest that concern over legislation of moral choice is misguided. It is not. What those who use the phrase “you can’t legislate morality” have to say is actually quite important. At its deepest level, it means that human character cannot be coerced. The mere threat of force rarely has the power to change a culture. Cultures create laws, and changing cultures have changing laws. This is why debates over same-sex marriage, drug use, and other contemporary ethical issues can seem so thorny. In a sense, the newly changing culture is overlapping with an old culture with different moral frameworks. This is why I believe efforts on the right to enshrine social values in legislation are not always fruitful or wise.
So, can morality be legislated? No, not directly. Neither can moral character be changed through legislation. Rather, morality undergirds legislation, and a people’s way of understanding ethical life will have serious implications for its laws. I believe, if fruitful conversation along these lines can continue, deeper ethical questions will need to be pursued and the foundation of our laws will need to be examined afresh. Sound bites are dangerous things. But they can also be quite helpful if they point us to real problems and force us to think. So perhaps morality cannot be legislated, but if so, that idea points us to even more important questions regarding the true purposes of the law.