Can You Legislate Morality?

The following is a partial thread on a discussion on the question, "Can you legislate morality?" My original position stated that we can't help but legislate morality. That is explained further in my response to Steve W.

Personally think that the law is, from a pragmatic stance, more effective at encouraging good behavior than prohibiting poor choices. The bad moral choices, I've found, tend to be dissuaded by community opinion, not by law--more people refrained from drunkenness because their neighbors disapprove than because of prohibition, for example. I do agree that the law always has a moral component to it, but on the whole, I'm an advocate of shame (public opinion) rather than punishment as a restraint on human evil. -- Steve W.

Steve,

As I look at your post, I appreciate your nuanced thoughts, and I do agree with the idea that shame can bring a restraint on individuals in a society. I'm posting my response in my blogspot account since it is so lengthy. Also, I have wanted for some time to write on this issue so my response is as much to my daughter and the issue at large as it is to you.

However, it is a tragedy that our society has taken its queue on the interaction between morality and law from a caricature of the history of alcohol prohibition. The failure of prohibition is sort of told like one of Aesop's Fables, the moral of the story is that "you can't legislate morality." The phrase seems to me to have multiple meanings as people weave it through debates and discussion. It seems to be used because it serves multiple masters and can sort be difficult to rebuttal against.

I think a common way I hear the phrase interpreted is that "one cannot instill a sense of morals by simply passing a law." Of course passing a law without a social context will not educate the public. In that sense, there is a truth, but not one that is complete in the sense that in making laws we do several things. In a free and democratic society, one would hope that a good deal of deliberation is done while pushing for the passing of a law. Though this process at its worst cases is a far cry from this idealization, it is also a hope that through deliberation that our society can learn and grow. The deliberation should identify what is just and what is not just. The deliberation should bring an eventual consensus that one would hope brings a higher appreciation of right and wrong. Positive examples of this type of community growth of conscience happened in England by an extended debate regarding the need to end slavery. William Wilberforce and others presented the issue before parliament and eventually there was a change of opinion as well as the law. These are rare and glorious events in history when consensus is reached for a good and right cause by a society. Today, if anyone mentions that slavery exists somewhere in the world, we are all appalled. Law does not do change public opinion by itself but can be a component of change in the society. Of course mothers and fathers teaching morality is the primary way morals are to be taught with the help of other social institution such as the schools and church. However, in all societies there are evil mindsets, evil cultural practices, and evil institutions. Often a mother and father teaching the child are ill equipped teach against these components of a culture and possibly they are a part of the culture that passes on the evil mindset, cultural practice or support the evil institution. Simply passing a law on an issue may not convince a society as to the moral issues germane to the passing of a law, but the deliberation regarding that law may be a formidable force in swaying the conscience. The deliberation is key. A law professor I was listening to once said, "Law embodies our highest ideals."

The second usage of the phrase "you can't legislate morality" that I hear in conversation is that we should not attempt to make laws on moral issues but simply stick to laws regarding pragmatic issues. Having said that, I would critic this idea that one should leave moral issues out of legislation by saying that this really not a proposal to leave morality out but a certain type of morality. While I disagree with the position, it is a common approach to understand right and wrong from a functional or utilitarian ethic. Some people who seem to profess a utilitarian or functional view of ethics would say "you can't legislate morality" to mean that you can't legislate morality from some source such as divine revelation. This seems to be an attempt to replace morality from divine revelation with a sense of public right and wrong from secular sources. For instance such thinking I have heard proposed, if we regulate prostitution to limit the public health risks, why not allow it? If the law require health checkups for the prostitutes and condoms to be used, could not the risks be minimized for spreading disease? The proposal also said we should legalize prostitution and tax it to provide another source of revenue for the state. (I am not saying all ethicists who follow a utilitarian model wish to legalize prostitution.) The debate in such a proposal is not one of right and wrong but of how do we minimize undesirable results from our actions. Of course a utilitarian ethicist could cite other pragmatic risks to society from prostitution and make a stronger case against prostitution than those who follow a natural law or teleological approach to ethics since the utilitarian model of ethics can make a stronger appeal to statistical studies. So when I say "we can't help but legislate morality," I'm saying that even if we attempt to drop the morals of Christianity or other religions from the public debate, we are still picking up utilitarian or some other model of ethical teaching. Just because we drop the word morality from our vocabulary when discussing a law does not mean we are capable of decision making without a sense of what is right and wrong. Inherently we have a sense of justice and rightness that we desire to be a part of our laws.

I will return to the often cited pseudo-parable of prohibition. Prohibition is a well established national mistake. The solution to the disgrace of the mistake is "don't let religious people get involved in law making." The solution is to allow religious people to practice as they wish, but never again shall they impose a religious view on the rest of society through law. I would say this sort of thinking leads to several unintended consequences. The first being that those who do not hold to secular belief system may find themselves as second class citizens in the democratic process. I do not think any one wishes that to happen, but if the rules of a debate say that only certain people or types of arguments will be heard, it does have a lot effect on the debate. This can lead to a lot of frustration by those who have lost their voice in society. The second unintended outcome is that our society's ability to reach a consensus on complex issues is greatly hampered.

Though I am no expert regarding prohibition, I would say that lessons learned from that failed national experiment are more nuanced than simply, "you can't legislate morality." I would propose that we could begin to write a more comprehensive list of lessons learned from prohibition. Here are a list of lessons learned that I would propose and maybe you can think of others.

1. Be careful as you propose solutions to a problem.

It seems that alcoholism was a serious problem before prohibition. The solution seemed simple to those who did not drink. Just get rid of it. Of course it was wrong to drink all ones pay check so that our dependents went hungry. Of course it was wrong to get drunk and come home and physically abuse one's family members. These injustices cause wives and children to suffer. Understanding the problem may not lead one to a successful solution, wisdom is needed. By the way, not all domestic abuse can be blamed on alcohol. Perhaps domestic abuse would have been a better issue to think about. I could be that society did not allow the issue to be brought up. I understand there is a lot of shame in these sorts of situations and the drink was easier to blame than discuss the issue.

2. Be sure you gain consensus before you ask for big changes.

While certain circles saw alcohol consumption as the problem, it seems that other circles did not agree. I suspect that it was difficult for families where wine or beer was a part of the normal diet to accept prohibition. If everyone in your family drinks a glass of wine with their meal with little problems, why all the effort to completely prohibit it? I suspect that Catholic immigrants to America found the Protestant who insisted on complete abstinence from alcohol to be non-sense.

3. As Christians involved in public debate about law, be sure one has correctly interpreted the Bible.

The Bible never forbids drinking alcohol, but does say Proverbs 20:1 "Wine is a mocker, strong drink a brawler, and whoever is led astray by it is not wise". Even though a good portion of people in the pews would support the church's teaching against consumption of alcohol, I think many would have said that they can't see the prohibition against consuming alcohol in the Scripture.

4. Do not count on having influence or power forever; leave a legacy that will be cherished.

I'm not sure of the attitude of those who pushed for prohibition, but their legacy is not appreciated in this regard. Consensus is an important tool for long term good.

I would be open to hearing other opinions or your own list of lessons learned from the US prohibition era that could replace the "moral of the story" that "you can't legislate morality."