“You can’t legislate morality!” No, you can’t not legislate morality. Not even a little bit.
I got thinking about this when Alan Shlemon’s 2012 article, “Should Christians Impose Their Moral Standards on Society?” came up on Twitter yesterday. He said it this way:
It’s perfectly acceptable to legislate morality. When you think about it, morals are the only thing you can legislate. For example, we have laws against stealing for one reason: it’s immoral to take someone’s property. So, we take that moral rule and establish it in law.
The same is true for laws against murder. The reason they exist is because we think it’s immoral to kill an innocent human being. So, we take that moral rule and make it against the law to break it. By legislating that rule, we are legislating morality.
In fact, it’s the moral rule that legitimizes the law’s power to limit freedom. Without a moral grounding, laws would be unjust. They would be the raw use of power to get what someone wants, not to do what’s right. That’s called tyranny.
This reminds me of the theological problem of evil, stated in the form, “Does God have a morally sufficient reason to allow evil?” There are strong analogues between the evil addressed in this question and the governmental sanctions involved in legislation. If I break a law, then the law permits someone more powerful than me to take my money, my property, my freedom, my relationships. In some countries and in some times, the law has permitted the authorities to take away my physical health. Sometimes it sanctions lawbreakers being put to death.
All of that is the world of evil, in microcosm. Yet we consider it good. We disagree over details: this law or that law, this punishment or that. Still, no one but anarchists would deny that the government should have the power to enforce laws by punishing wrongdoers.
Maybe that word didn’t catch your eye; it should have. It speaks of “wrong”—a morally inflected word if ever there was one. And how is “wrong” defined? In ethical theory that can be tough, but in this case it’s easy: it’s wrong to break the law. Still that doesn’t remove it from the realm of morality, for as Alan Shlemon pointed out, if government imposes sanctions without moral justification, then it’s acting tyrannically.
And so every law implies a moral calculus: “It’s more wrong for you to commit premeditated murder than it is for the state to deny your freedom for the rest of your life.” Apart from that moral reckoning there could be no justice.
So far I’ve only been speaking of laws with punishments for law-breakers. The same goes for taxes, which the government can justly exact from us only if the money is put to good use. It goes for other restrictions as well: environmental standards, OSHA standards (occupational safety and health, for non-US readers), restaurant health requirements, building codes, licensing requirements, and so on: every one of these is a restriction on personal property and or freedom. Without sufficient moral reason, these too would be tyranny.
We accept these things from our governments to the extent that we think that they are right and just, or else to the extent that we are forced to accept them against our will.
So there is either moral agreement or there is subjection to power. These are the two choices. We can legislate morally, which is to say that we can legislate according to morality, which is (further) to say that we can legislate what we think is morality; which ends up at we can legislate morality.
There isn’t anything else we could legislate but that. Not unless you believe every act of government is an act of tyranny, which I do not, and I doubt you do either.