Legislation and Morality

kw: laws, ethics

I began to hear something new starting in the 1960s. People began do oppose or disparage laws proposed or laws existing, by saying, "You can't legislate morality." My response is always, "Oh, really. Can you tell me anything we legislate that is not morality?" Where there is no moral issue, there is no need of law.

Every system of law is based on a moral code. Like it or not, the legal system of all Western societies is rooted in the second five of the Ten Commandments. At times, groups or nations have experimented with adding "theocratic" laws, those based on the commandments related to worship, idolatry, blasphemy, sabbath-keeping, and filial piety. All such experiments have failed, though a few lasted a generation or two. But the strictures that prohibit murder, theft, adultery, perjury, and greed are all upheld at some level by legislated statutes.

By making such laws, we as a society declare our minimum standard of moral behavior. We state that we will sanction behavior that falls below that standard (whether or not such sanctions are enforced consistently). While we may expect most people to live by a standard higher than "what's legal," we refrain from legal action until the line is crossed.

Let's take commandments in order. While not all killing is murder, the state reserves for itself (that is, to its agents) the right to kill for judicial purposes, or for conducting war. A few narrow areas are exempted, primarily for self defense. Even then, someone who kills another while defending herself is likely to suffer legal consequences nearly as great as someone convicted of lesser degrees of manslaughter. Few deny the government the power to decide the boundary between justified and unjustified killing. What is subject to current legislation (and court action) is the rather mobile location of that boundary. For example, killing a fetus was once defined as unjustified murder. Now it is is not.

Recently, a man was allowed by the court to finally accomplish a killing that it seems he began to perpetrate about fifteen years ago. When that happened, I said to my son, "It may happen in your lifetime that you will be asked to determine if my life should be ended for the sake of convenience."

Theft, we all know what that is, don't we? We all agree it is wrong, but we do not all agree on where the boundary lies between legal taking and illegal taking of another's property. Taxes are considered a legal taking (by most, anyway). Recently the boundary moved, in two areas. An airline company was allowed to deny pensions to many employees, even removing funds that some employees had "earned" in the pension plan. One could say that is a theft, but the courts ruled otherwise. Of course, now we are talking judicial action, not legislation. Congress is presently struggling with new laws to reverse this. They are unlikely to succeed.

Another case that has so far been decided only judicially is the vast expansion of eminent domain powers, so that a city can raze a neighborhood for the sake of replacing it with something like a mall, that will of course bring in more taxes than the residential properties could. This effectively eliminates the value of holding property, and I predict there will be vigilante action before the matter is sorted out. Dear reader, please note that I do not state actions I might take, but predict the actions of others.

Third, there are quite a number of laws still on the books in various places that disallow various sexual actions. Once "no-fault" divorce became the norm, the police in most places stopped enforcing them. Gay rights activism led to "de-enforcement" of quite a number of others. So far, nobody has persuaded the government of any U.S. state or county to de-criminalize sex between an adult and a minor. It could happen...

This is a hot topic these days, particularly now that Canada has enacted statues that allow and support "marriage" between two people of the same sex. Many U.S. states have laws, recent or not, that disallow such unions. These are being attacked by likening them to old miscegenation laws that disallowed unions between black and non-black. The issue isn't the same, for it requires re-defining the word "marriage," in a way that it has not been used, in any society, since there was human language.

Some Native American societies had a system in which a woman could take another woman as a "wife," but the union was not called a marriage. They had other words, in every known case.

Perjury, and deception. We have lots of laws about this. Not enough to keep your nest egg safe from the next con artist who rings your phone, but enough to keep things to a dull roar. We came close to convicting two Presidents of perjury (Nixon and Clinton). But the sanctions for most kinds of lying are pretty minor. Particularly when we enter the realm of "white-collar crime," we find that paying fines for committing deception is considered a cost of doing business...if you're caught.

Just think. If you cut off a carpenter's arm, you could get 20 years for battery, and be paroled in nine. Kill the same carpenter, and with a plea-bargain you'll still get about twice that. But if you cause an Enron crash, removing the livelihood of thousands of people, leading to hundreds of untimely deaths on the side, you get five-to-eight, if you get any time at all, and you can be paroled in a year.

Oh, well. My point here is not whether the laws are equitable, but that they are all moral. One more. Greed. The former four Commandments are all results of greed of one kind or another. We have very few laws addressing greed itself, and for good reason. It is hard to measure. Covetousness may lead to all kinds of other misbehavior, but the legal system waits for the misbehavior before taking action.

I suppose that's as it should be. Attempts at thought control have a more dismal record than theocracies. But, I hope you find yourself with a more clear response when someone says, "You can't legislate morality." We can so. We do so. And we must, if we are to have society at all.