Can We Legislate Morality?

Have you ever heard a person say:

"You can’t legislate morality…”

It’s a sort of truism, a motto that is repeated whenever a discussion enters the touchy realm of the “culture wars”.  But is it true?

Well, its true in the sense that you cannot pass a law coercing people's private thoughts on morality.   But that is not what we're typically talking about.

When someone says "legislating morality", what is meant is coercing people to act in accordance to a certain moral code.

Is that off limits?

Completely Wrong:

In a word: No.

Think of a law, any law.  Odds are whichever law you thought of can be related directly to some moral value.  Here's a few examples:

• Child abandonment laws:  It is wrong to abandon helpless children.

• Environmental protection laws:  It is wrong to pollute the environment.

• Animal cruelty laws: It is wrong to abuse animals.

• Theft laws:  It is wrong to steal someone else's property.

• Murder laws:  It is wrong to kill innocent humans.

So we can’t legislate morality?  Nonsense. We do it all the time.  The real question is WHICH morality we can legislate.

Two Views of Morality:

First let’s look at two views of morality.


Teleological Ethics:

The first comes from Aristotle’s ethics, which was later refined by philosophers like Thomas Aquinas.  This view looks at humanity and sees a common nature.

From there we ask, “What is a human being for?  What is the intrinsic purpose of a human person?  What is this aspect of the human person designed for”  And then we reason to an ethical truth.

Let’s give an application.

One of the highest purposes of the human mind - if not the highest - is to exercise reason for the seeking and knowing truth, and directing our actions toward virtue.

So… is it morally wrong to get oneself completely, blasted drunk or deliriously high for enjoyment?

The answer here would be “Yes”, because those altered mental states injure your ability to reason - even permanently. And in-so-doing you act against the nature of your own mind.

There is a problem, however. It would be really difficult to legislate every bit of this sort of ethics.  The level of intrusion necessary would be both tyrannical and unworkable.  Thus this we arrive at another truism:

“Not everything which is immoral is illegal”

That truism is actually true.  A government which punishes us every time we fall short of sainthood would be a nightmarish thing.

So if I was to rehabilitate the untrue phrase, “You can’t legislate morality” 

I would instead say, “We can't effectively legislate that area of morality."  

Referee Ethics:

So later on during the “Enlightenment” we began seeing philosophies which deny intrinsic purpose to the human person.  Now a new rationale for morality is needed.

Long story short, we're left with the idea that something is only wrong when it harms another person or violates his rights.  (Although I'd argue that without some idea of human nature, it is impossible to know what genuinely harms a person or what constitutes a human right.)

Anyway, this is why Christians, when trying to discuss morality with secularists, often receive the question…

“Who does it hurt?”

 … with the underlying assumption being that if you cannot prove that it harms someone else, the action is - at worst - morally neutral.

Now, this leaves significant holes in a person’s understanding of human morality.  For instance, suppose a person entertains very racist and sexist thoughts in the privacy of his own mind, but he never acts out on them.  It would difficult to identify someone who is hurt, but at the same time we know it is wrong to think those ways.

So while this sort of "referee ethics" doesn't tell the whole story, it does have the virtue of being easier to enforce as law.  If one views the State as a referee who makes sure we don't hurt one another, the question of “Who does it hurt” is an appropriate one to base laws upon.


Controversial Practice Problem:

Now let's look at an issue which commonly elicits people saying "we can't legislate morality."  Let's examine the question of abortion.

A Pro-Life advocate would make the case that their cause DOES fit that criteria for a proper use of the law in regard to morality.  And that argument goes like this:

• Premise 1: The intentional killing of an innocent human is a grave violation of human rights, and we have laws against it.

• Premise 2: Abortion is the intentional killing of an innocent human.

• Therefore:  Abortion is a violation of human rights and warrants laws against it.

Now it falls to the opponent of pre-birth human rights to refute the argument.  He/She has to disprove one or both premises.  If not, the argument shows that this is an appropriate area for laws.

In other words, it isn't enough to repeat the slogan that we cannot legislate morality.  We do.  We can.

And we should.