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Can (and Should) We ‘Legislate Morality’?

Christopher Wolfe[1] © 2009

In this paper, I would like to argue that a search for neutrality – an effort to divorce law and morality – is neither possible nor desirable.  Every form of government, whether by its action or inaction, encourages certain forms of behavior and discourages others.  The only realistic question to ask is, not whether law shapes morality, but how a particular legal system will shape morality.

At the same time, this does not mean that there are no limits on the capacity of law to shape morality.  There are various reasons, both of principle and prudence, why the attempt to foster morality through law should be kept from overreaching itself.  Law can be endangered not only by libertarians, but also by moralists.

The Power of Law: Can We Legislate Morality?

Contemporary liberals argue that it is not possible to legislate morality, giving both theoretical and practical reasons. First, virtue is a matter of free will, and therefore it cannot be coerced, so the attempt to coerce people into being virtuous is self-contradictory.  Second, it is not possible to enforce legal restrictions, as the example of Prohibition demonstrates, and so attempts to enforce morality are unrealistic.

On the first point, it is absolutely correct that virtue cannot be “compelled.”  It is not, strictly speaking, possible to legislate morality.  Morality does not consist merely in certain actions, but in habits, dispositions of the will that incline us to act readily in a certain way.  The coercion of law does not reach the soul, but only external behavior.[2]  Those moralists, therefore, who think that they can literally, by law, "impose their morality on others" are mistaken. 

But the most thoughtful advocates of legal “regulation of morality” do not make such a claim.  According to them, good laws do not impose morality as such, but rather help to create or foster conditions that facilitate the formation of good habits. Laws accomplish this goal in two ways.  First, the law can, by its regulation of external behavior, reduce the frequency of certain  acts, which affects habits.  Second, law contributes to the formation of moral ideals.  I will try to explain these effects in the following section, drawing especially on arguments made in Harry Clor’s classic book, Obscenity and Public Morality (University of Chicago, 1969).   (I do not agree with all of Clor’s positions – I think he is sometimes too inclined to compromise with liberal principles of free “speech” – but I think his analysis of the effects of obscenity and law is very insightful.)

Law, Morality, and Habits

One simple effect of laws prohibiting particular actions is to reduce their frequency, especially by creating disincentives to act in a certain way: e.g., formal legal punishments, such as prison time or fines, and informal punishments, such as the public embarrassment of legal convictions or the simple fact of being involved in any legal proceedings at all.  Even Prohibition, for example, reduced the net consumption of alcohol in American society.  Pornography laws reduce consumption of pornography and abortion laws reduce the instances of abortion. 

Of course, there are instances where a given law fails to prevent or punish the prohibited action – in fact, that is true of virtually all laws.  But who would say that laws dealing with murder, rape, or theft ought to be repealed simply because they are not always successful?  And it is also true that laws may have no effect if there are absolutely no efforts to enforce them.  But the problem in such a case would be with the failure to enforce, not with the law itself.

The reason for the success of the law in reducing instances of a given form of behavior is very simple.  Take the example of obscene publications and films.  There are at least two groups of people in society who will not be affected substantially by legal regulation.  First, there are some people whose actions are already firmly in accord with the moral principle underlying a given regulation of morality (perhaps due to their temperance or self-control in sexual matters, perhaps due simply to temperament).  There are others who are so opposed to such a law that they will evade it successfully (since there will always be a black market for items to which human nature is strongly inclined).  Liberal arguments against regulation of morality tend to focus on these kinds of citizens and emphasize that legal regulation of morality affects them very minimally.

But this approach ignores the existence of others – usually many more people – whose wills are neither firmly committed nor firmly opposed to the moral principle embodied in a given law.  These include, among others, the people who indulge in pornography but feel a sense of shame for doing so.  (The classic case was the college student who claimed to read Playboy "because the articles are so good" or because of a certain "aesthetic appreciation for the human form".)  And it includes people who know pornography is wrong and are even willing to say so, but who find themselves on occasion giving in to the powerful impulse to indulge in it.  These kinds of people stand to benefit from a law restricting obscene publications and films.  They are prevented from indulging in a vice, because the law makes it harder to do so, and they are not so inclined that they will make "heroic" efforts to evade the law.

Why does it matter that the frequency of a certain form of behavior is reduced?  After all, it could be argued that a person who indulges in pornography “x” times can be just as bad as the person who indulges in it “x + 5" times. The important point, it will be said, is not the frequency, but the underlying disposition which leads to the acts, whatever their frequency.  (Some might even argue that the fewer acts reflect, not moral superiority, but heightened moral inferiority, in the form of hypocrisy – refraining from action simply for fear of punishment or what others might think.)

The case for the legal regulation of morality considers reduction of the frequency of bad acts important more for its indirect than its direct effects.  For example, because obscene material is not easily available and therefore some people do not regularly indulge in it, these people do not form and reinforce the habit of using those materials and the habits that go with them (e.g., looking at women more as objects of sexual self-gratification than as persons).  Habits – dispositions to act in a certain way with facility – are formed by repeated actions.  The more often we do something, the easier it typically is to do it (other things being equal).  That is true on the physical level (if we swing a tennis racquet with the correct stroke often enough in practice, we will be able to do so quickly and with less difficulty in the middle of a game of tennis) and it is also true on the moral level (if we make a continuous effort to control our tempers even when provoked, eventually we are able to do it with less strenuous effort).  Perhaps we can think of habits as channels or grooves metaphorically "cut" into our character that direct our actions in a certain way.  The more we use and dig out and deepen those channels, the easier the action becomes (again, other things being equal – circumstances do have an impact). 

In the case of pornography, it is not just the habit of reading pornography itself that is at issue.  It is, more importantly, what pornography tends to reinforce: the habit of reacting more easily and more strongly to sexual stimuli and the habit of not exercising control over the desire for sexual gratification.  That habit influences not only our future reading of pornography, but the very way that men look at women in general (pornography being generally a male vice), and especially the tendency to view them not as people but as objects for the gratification of sexual desire.  Of course, pornography is only one of many elements of life that creates and reinforces this bad habit.  (In fact, I think an argument can be made that less graphic forms of sexual suggestiveness play an even greater role, since they are more tolerable, and therefore more tolerated, and therefore more ubiquitous in society.)  But the fact that it is only one cause among many does not mean that it is not an important factor, since it does have a natural and strong effect of creating or reinforcing such habits, and it is therefore worth proscribing.

Law and the Formation of Moral Convictions

There is also a second way in which law can help to create or foster the conditions of morality.  It can play a role in the formation of citizens' moral convictions.

To understand this, it is important to attend to what may be called a "sociology of moral convictions and beliefs."  Moral ideals can and should be arrived at by the effort of human reason. That is ethics, a branch of philosophy.  But human beings are not simply isolated and disembodied intellects who possess an innate knowledge of morality.  They are social creatures who live in communities, and they are creatures born with potential abilities that need to be actualized or developed. 

For reasons noted by Thomas Aquinas (when he explains why revelation includes some things knowable in principle by reason[3]) and Alexis de Tocqueville (when he explains why dogma is inevitable[4]), most human beings are not capable of producing their own comprehensive ethical theories.  Indeed, no human being is capable of doing it, simply on his own.  Not only are we not all Aristotles, but even Aristotle would not have been Aristotle without Plato, who would not have been Plato without Socrates.  Moreover, even apart from individual variations in intellectual ability, many human beings simply do not have the time and leisure (in the original sense of the term) to develop their own moral theories.  The result, as Tocqueville notes, is that human beings need dogma, authoritative guidance on the highest things, such as the relation of man to God and to his fellow men.

Look around for a moment and ask yourself "where do most people seem to get their moral ideals from?".  For many people it is their families and their churches.  But families are not completely autonomous and themselves typically depend upon some other, broader source of moral convictions, so that just leads us back to the same question in a new form: "where do families get their moral ideals from?".  Religion is an obvious and very important source for many individuals and families, but it is one of a variety of factors.  That is seen most clearly in the fact that oftentimes people of the same religion have different moral ideals with respect to the same aspect of life.  To take an example from our own society, many of those in the United States who call themselves Christians or Catholics hold sharply opposed views of morality.  Perhaps one way to formulate this point is to say that some "American Catholics" are influenced more by their Americanism than by their Roman Catholicism.  But this suggests, that in addition to family and faith, other communities of which we are a part influence our moral views. One of these is the political community.

James Madison notes in The Federalist Papers that human beings are not simply autonomous in their formation of moral ideas.

The reason of man, like man himself is timid and

cautious, when left alone; and acquires firmness

and confidence, in proportion to the number with

which it is associated.  When the examples, which

fortify opinion, are antient as well as numerous,

they are known to have a double effect.[5]

Whatever the abstract capacity of human beings to reason independently of others – and that capacity does exist, of course – the ideas that people have, including their moral ideals, are typically influenced by the many human beings around them, in the various communities of which they are a part.  Just as there is a physical environment – including the air we breathe without thinking about it – so is there a moral environment from which we often absorb, as if by osmosis, the general opinions of those around us.

The liberal tends to say that we are free to form our own moral opinions, and he is right.  But he also tends to ignore the fact that most people are influenced, often even without realizing it, by the prevailing opinions of the society of which they are a part.  Whether social opinions should influence individual moral opinions may be a normative proposition to be debated, pro or con – but that social opinions do influence moral ideas is a simple fact. 

Now the law is only one way in which society's "general opinions" are expressed.  To take only one example, the media and the entertainment industry exercise enormous influence in a similar way.  But the law is one way, and a particularly formal or authoritative way.  It is society "going on record" as saying that some forms of human behavior are frowned upon.  The very efforts of groups that oppose certain laws to get them taken “off the books”, even when they are not enforced, is testimony to the importance of law, as in the case of homosexual rights groups who have asked courts to strike down sodomy prohibitions that have not been enforced for a long time.[6]

One powerful example from recent American history is civil rights legislation.  Laws such as the Civil Rights Act of 1964 were intended to prohibit certain acts (racial discrimination in public accommodations, for example), and they achieved this to some extent.  But it is arguable that the more important effect of the law was its educative effect.  It was a solemn national statement reaffirming the principle of racial equality.  And this law, in conjunction with other factors, has contributed to the profound change in racial relations in this country in the last generation.  (And who would say that the law was unnecessary or undesirable, simply because there were other factors?)

A society cannot avoid “legislating morality”, in the sense of fostering or encouraging certain ways of living.  Law in modern liberal democracies, insofar as it does not explicitly seek to shape character, may have its effects in more subtle ways and over a more limited range of human qualities, but that does not amount to "neutrality." [7]

Another example of the relation between law and moral ideas can be found in the proliferating programs of sex education in this country. [8]   The character of such programs varies considerably, of course, but some at least try to achieve neutrality by following the "Joe Friday Principle": "just the facts, ma’m".  Neutrality can be achieved, some think, by presenting simply the facts, which are "objective", and either not discussing values, which are "subjective", or simply reporting various "value-positions" in a neutral, even-handed way.

But the alleged neutrality of presentations based on the fact-value distinction has been exploded many times.  Again, from a certain "sociology of knowledge" perspective, one must ask what the effect of such programs on students will be.  Whether consciously or unconsciously, students will wonder why it is that the "facts" are presented, but "values" are not.  The answer – it need not be the "logical" one, only the one that is likely to be the actual one in many cases – is that we can really know facts, but we can't really know values (because they are “just” subjective opinions).  That, of course, is an extremely important position – one that is itself decidedly not neutral.  It encourages general scepticism about an objective and intelligible moral order, and supports, at least indirectly, views of moral relativism.

Of course, such programs are not purely relativist.  Rape is not mentioned as one "alternate sexual lifestyle," for example, because that would be incompatible with liberal values of tolerance and respect for the rights of others – and, apparently, those liberal values are known with sufficient certitude to make them authoritative.  Masturbation is generally presented as something perfectly normal and unobjectionable, since it does not involve the one liberal sin of interfering directly with the rights of others.  Increasingly, homosexual activity is described in considerable detail, without any moral comment (though sometimes with actual emphasis on its legitimacy as a form of sexual expression), putting it implicitly on the same plane as other forms of sexual activity.  My point in mentioning these things is not to criticize them (though I would).  It is simply to point out that such programs can in no sense be considered neutral.  They tend to encourage some attitudes and moral convictions about sexual acts, and to undermine others.

The conclusion one ought to draw from this discussion is that law cannot avoid creating and fostering conditions for the formation of virtues and vices.  If this effect of law is inevitable, then we ought to exercise our reason to direct it, rather than leaving it to chance.

That still leaves open important questions about when and how this power should be exercised.  Let me turn now to some considerations which counsel moderation in the use of the law to foster the conditions of morality.

The Limits of Law

Someone we might call "the moralist," impressed by the capacity and even the inevitability of the character-shaping performed by law, is inclined to use this power to accomplish high goals.  Sometimes stirred in his soul by the noble vision of classical political philosophy, he seeks to make this world a better place through political action.  The purpose of political community is, after all, to foster human excellence for the community and its citizens.  (One sometimes observes this tendency in idealistic young college students who have just been through a course in classical political philosophy, perhaps one that contains more Plato and Aristotle than Thucydides and Plutarch.) 

The initial caution that must be made here is that it is not possible for the law to "legislate morality" (see above).  But, beyond that, there is also a need to moderate political moralism in various other ways.  As one might (or, at least, should) expect, the greatest historical exponents of moralism were decidedly moderate moralists.  We could develop this by looking at Aristotle, but perhaps it will be even better to see it in a Christian Aristotelian like Thomas Aquinas, since some people argue that religion is a powerful force pressing us to adopt an immoderate, or at least insufficiently moderate, moralism.

Let's begin by looking at Thomas Aquinas' answer to the question "whether it belongs to the human law to repress all vices?". [9]   He says that laws imposed on men should be in keeping with their condition, for law should be (quoting Isidore) "possible both according to nature, and according to the customs of the country".  This possibility is related to interior habit or disposition (some things being possible for one who has a virtuous habit that are not possible for others):

Human law is framed for a number of human beings, the majority of whom are not perfect in virtue.  Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained; thus human law prohibits murder, theft, and suchlike. [10]

 In one of the responses, he adds that the danger of imposing on imperfect men precepts that they cannot bear is that "the precepts are despised, and those men, from contempt, break out into evils worse still."

There are several factors, then, which counsel moderation in the use of law to repress bad habits.  First, there seems to be a natural inequality among men, some – relatively few – of whom are virtuous, but the majority of whom are "not perfectly virtuous." (This refers not only to the fact that most men have significant vices, but also to the fact that, even when their behavior is good, it is not based on a firmly rooted habit, but is a form of Aristotle's quasi-virtue of continence [11] ).  Human law is framed for these many, and it should prohibit only what the many are capable of abstaining from.

Second, in addition to this natural inequality, there are also differences that arise from the particular features of a given political community.  As Isidore says, law also must be in keeping with what is possible, given "the customs of the country."  If bad habits have deep roots in a culture, law is not likely to be able to uproot them.  In fact, as Thomas notes, the precepts of such a law will be despised and the ordinary citizens, unable to "take" such regulation, will break out into worse evils. (An example of this might be the creation of a "backlash" that would make the law worse than it might have been if it had tried to do less. [12] )  Better to aim lower, perhaps to restrict or limit certain vices successfully, rather than try unsuccessfully to obliterate them, and in the process make people despise the law (both the particular law and law in general).

What this means is that there is a definite relation between a given country's mores and which vices that country's law is capable of repressing.  The attempt to prohibit vices that are deeply rooted in the community, i.e. vices to which many citizens are deeply attached, is likely to be a failure.  Moreover, the difficulty of accomplishing such a task will likely require greater harshness in the law.  This is itself a cost to be concerned about, since it may 1) aggravate the resentment against the law (the particular law and the law in general),  2) augment the coercive power of government and the habit of accepting greater levels of coercive government action, which is always subject to potential abuse, and 3) undermine the kind of civic "friendship" on which a polity rests, the sense citizens have that they are part of a community and not merely subject to it. [13]

This does not mean that laws are incapable of regulating an activity simply because it occurs or even because it is widespread in society.  How common a practice is will be only one factor in evaluating what the mores of the community are.  The fact that many people act in a certain way does not automatically mean that such actions are part of "the community's moral principles."  As Harry Clor has pointed out so well, community moral standards are not defined by the most marginal conduct that the community is willing to "tolerate." [14]   To embrace that approach would be to guarantee a downward spiral: it would give community approval to marginal conduct that would become more accepted, giving rise to more extreme marginal conduct, and so forth. 

Law can announce a community's moral standards, while tolerating in practice but not in principle a fair amount of conduct that is inconsistent with it.  For example, there is no way to know empirically with certitude how much adultery and fornication went on in the past, contrary to laws which proscribed them.  One presumes that a great deal of it occurred, simply because the sexual faculty is one that human beings seem to have particular difficulty controlling.  But that does not mean that such laws were senseless or useless.  By announcing society's moral ideals, they may very well have reduced the incidence of such activity.  The move to "decriminalize" such conduct is likely to contribute to a transformation of mores, by encouraging people to view them as either no longer objectionable according to society or as matters that are too controversial and too subjective for society to take a stand on. 

Moreover, it is not always very easy to judge whether society's moral standards have genuinely changed.  There often seems to be a natural pendular motion in societies, such that conduct not tolerated in one era is tolerated in the next but then is rejected by the following era.  For example, anti-communism held sway in the `50s, declined in the mid-`60s and early-`70s, but then strengthened again in the late `70s and `80s.  What intellectuals sometimes assume to be linear trends – ones they like and want to reinforce – may turn out to be short-term intellectual fashions.

Still, at some point, the contrast between law and, not only what many people do, but what most people believe will undermine the law so much that the law does more harm (by the scandal of its unenforceability) than good.  At that point, the attempt to legislate morality can become positively harmful. 

The lack of fit between law and morality can occur not only when laws representing a certain morality are declining, but also when certain moral views are on the rise.  The law may outstrip the public support it is gaining, and that may actually have the effect of creating a backlash that undermines the trend.  Interestingly enough, that seems to have happened in Roe v. Wade.  The U.S. Supreme Court took a generally "liberalizing" trend on abortion, thinking that it could foresee the end result of this trend, and it handed down an opinion that produced one of the most extreme pro-abortion laws in the world. [15]   Ironically, that proved to be a great stimulus to the anti-abortion movement, which has been able to keep the issue alive for over three decades after Roe attempted to settle it, and has even had some (very partial) successes in limiting Roe (e.g., by successful opposition to public funding, by requirements of parental consent and waiting periods, and the federal law prohibiting partial-birth abortion).

American Liberal Democracy

Perhaps the great question for us today in the United States is the practical question of "what are the possibilities and limits of law in the American regime?".  This is not an easy question to answer, because the late twentieth century has been a time of considerable confusion about the "American public philosophy." 

Contemporary intellectuals incline toward a form of "antiperfectionist" liberalism that is hostile to the non-liberal elements of the regime that the founders considerable valuable. [16]   For example, the mainstream tendency among intellectuals has been toward decriminalization of all "victimless sex acts" – consenting adults should be able to do what they want to do, as long as they do not harm others and do not offend others by doing it too publicly. [17]   This would require removing those more traditional elements of American law that restricted sexual activities in various ways, on the grounds that there is an essential connection between sex and the family, that the liberation of sex from these constraints undermines the stability of the family, and that unstable family life causes many serious social problems. [18]   In this debate, the very definition and status of a major social institution is at stake.

The victory of antiperfectionist or "neutral" or relativistic liberalism would be disastrous for America. [19]   Nor would a victory for its major critics in contemporary American intellectual life – post-modernists and multiculturalists – be much better.  While they do not share many of the illusions about alleged liberal "neutrality," they tend to outstrip liberalism in denying a natural order that would ground limits on personal freedom. [20]   Their recognition of deeper social connections – the dependence of individuals on various communities for their identities – often provides a basis for insightful criticism of liberalism, but beyond that critique it provides little, prevented by its own modernist epistemological assumptions from attaining any objective knowledge of reality and of the human good. [21]   In the absence of any sure knowledge of what is good for human beings, all that is left is "ersatz" community, community based on arbitrarily posited values, community for the sake of community.

These challenges to traditional American democracy are profound ones.  They will require an effort to think through the sources of the American public philosophy and to come to the recognition that American liberalism has always depended for its health and well-being on institutions and principles that it cannot account for itself.  Liberalism "worked" in the United States because it existed within the framework of a moral order it inherited from the remnants of pre-liberal natural law and natural right thinking that survived, for example, in the common law and in the moral teachings of early American Protestant Christianity, revealed especially in the form of a family unit based on natural duties.  These remnants – once extensive, now diminished – are the object of vigorous efforts by liberals (and radicals) to root them out of American law.  Those efforts have waxed and waned.  Roe v. Wade was a success story for them,

Bowers v. Hardwick was a setback, Planned Parenthood v. Casey another victory, the euthanasia cases another setback,  Romer v. Evans and Lawrence v. Texas new victories. [22]   How the “culture war” manifested in such cases will turn out is still uncertain, though a strong case can be made that the setbacks to “autonomists” are likely to be short-lived, given that intellectuals in general and especially legal intellectuals are overwhelmingly committed to modernist autonomy.  The recent presidential election (though it did not turn on these issues) will give a strong impetus to liberal forces.  If that tide is to be stemmed it will require a persuasive rearticulation of the American public philosophy, along natural law/natural right lines, that has barely begun. 

One part of that rearticulation will have to be a statement of principled limits on government power, e.g., in the area of religious liberty.  Another aspect will be the recognition of substantial prudential limits on government, such as the inability of the law to "impose" morality with little support in the mores of our society.

But, equally important, a rearticulation of American public philosophy will have to alert citizens to the illusion of neutrality and the inevitability of civic character formation.

This will be easier for citizens of a liberal democracy to accept  if it can be shown that already we have many beliefs in common in our pluralistic society.  That is, pluralism is not incompatible with having some common conceptions about what is good for human beings.  While we have deep differences on some questions, there are points in common as well. 

Christina Hoff Sommers, for example, has pointed out that we should begin the teaching of ethics not by focusing on rare and extreme cases on which we are most likely to differ, but on the ordinary general ethical norms on which we have a great deal of agreement, e.g.:

[it] is wrong to mistreat a child, to humiliate someone, to torment an animal.  To think only of yourself, to steal, to lie, to break promises.  And on the positive side: it is right to be considerate and respectful of others, to be charitable and generous. [23]

The effort to rebuild a more substantial consensus about elements of the human good will not be an easy one, especially given the general trends among the intelligentsia in modernity.

What is necessary is a "slow and painstaking attempt at reconstruction of moral philosophy", as Mary Ann Glendon says. [24]   The difficulty of this task does not detract from its necessity.