Moral Justifications for Laws

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NPR had a story this morning on Attorney General Alberto Gonzales' efforts to fight pornography (which you can listen to here). They mentioned one case earlier this year that got thrown out. It portrayed violence and rape. They lined up some sound bites from lawyers and judges who stated that there's no way to block adult porn even if it's really graphic, as long as it's between, and viewed by, consenting adults. 3rd Circuit Judge Gary Lancaster ruled in January that sodomy case Lawrence v. Texas has prevented any law making such porn illegal. "The government can no longer justify legislation with enforcement of a moral code."

Well, there go the laws against murder, theft, rape, and almost anything else that we legislate. They keep distinguishing between laws based on a moral code and laws against child porn. Why do we make child porn illegal? Because it's wrong! Why is rape illegal? Because it's wrong! Why is theft illegal? Why is murder illegal? Our laws are thoroughly based on a moral code. That's the primary justification for them. We might distinguish between different sorts of things that are wrong, enforcing some and not enforcing others, but that's not what these people are doing. They're trying to distinguish between the things we should have laws about and the the things that are moral matters. If there's no moral justification for preventing something, why bother having a law? It's just completely ridiculous to frame the debate this way.

I'm convinced that even soft porn, including what passes for advertizing on your average television show, is destructive to those who are its victims consumers and even if you think it's immorally objectifying women and setting up unhealthy and immoral narratives about how we view women. I understand fully the arguments for allowing porn even if it is immoral in exactly the ways its critics say. What seems really stupid to me is pretending that these are moral arguments (as if that's bad), while the arguments for laws against abusing children are not based in morality. Of course they are. It's not that laws not based on morality are ok, while laws based on morality are bad. It's that certain laws based on morality are good laws to have, and others are not. The trick is figuring out which kinds of laws based on morality are good ones and which not. Dismissing something because it comes from a moral perspective is simply not the way to do that.

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The Parableman posted a good one answering the presupposition that law is not based on morality. Read More

10 Comments

Jeremy
I have had some recent experience debating heatedly on this subject with some rabid progressives, most of whom were ath/nostics.

I think there is an inherent logical difficulty with linking morality to the presence of a victim or the doing of 'physical' harm in some way. I think that most immoral things have a human victim but that the essence of immorality has to be rooted elsewhere ( i.e. God is the victim ).

I agree with you that all laws are a reflection of morality, it's just that I hesitate at basing the argument on the presence of a victim. How would you argue for example about any law governing Sabbath restrictions?

My biggest problem is that people pick out actions that they say are victimless and then say we shouldn't prohibit them, when I think they very much have victims. Pornography has victims. Every member of society is affected by it. It's a lot harder to separate these things than you might think. It seems arbitrary to single out just physical harm as opposed to other harms, which can be more permanent and more thorough.

I wouldn't argue for a law governing Sabbath restrictions.

On what basis would you not argue for Sabbath restrictions and for some other restrictions that ultimately derive from the same 10 Commandments?

I think the issue will always come down to the fact that we cannot separate our Christianity from our ethical imperatives.

My basis for removal of Sabbath restrictions is the New Testament. Paul explicitly says that we don't need to observe special days. The principle of rest in the 10 commandments remains, but the seventh day rest is fulfilled in Christ's work in ushering in the seventh day of rest, which we are now in. This is throughout Paul's letters and especially in Hebrews.

As for the more general issue of separating Christianity from ethical imperatives, I'm not sure how that's relevant. We're talking about laws here, which you might separate from ethical imperatives. No one thinks it's ok for me to insult my wife on a daily basis, but no one thinks we should have laws against it. No one thinks there's some ultimate moral reason to drive on the left side of the road as opposed to the right (or vice versa), but we have no problem enforcing it in the law. So morality is neither necessary nor sufficient for law.

The question here is which moral statements are a good idea to enforce in the law. My suggestion is that usual attempts to do it in terms of harm or in terms of victims will still leave it open which things you should restrict, because people will disagree on which things are ultimately harmful or victimless. I'm not sure how to do it in a better way, though. This is a symptom of my being very good at finding problems with concrete suggestions but absolutely terrible at coming up with better one of my own.

I am entirely sympathetic with your last sentence, have the same problem myself.

But the essential problem we Christians face in our attempt to discover a "moral justification of laws" is that we give up the baby with the bath water. Unless we consent to the idea that there is such a thing as "natural law", discoverable and verifiable by Christian and Non-Christian alike, we have no ground for consistent argumentation.

If we argure for a natural law which corresponds with our Christian ethical framework, we very rapidly run out of arguments against erudite pagans who clearly demonstrate that very, very few, if any, so called "natural law" ethics are uniformly recognized throughout all cultures.

As a minor quibble - your illustration about left side of the road versus right side is not an ethical matter per se but a prudential matter. There are laws against insulting your wife (slander) if she chooses to seek redress in court.

The left-right driving issue is exactly a non-moral one. That was my point. Some non-moral issues have to be laws despite not being morally required. Also, there are no laws that I know of against my insulting my wife in private on a daily basis. I'm not talking about slander, which is a public statement of falsehood.

I think traditional sorts of laws have a lot moree going for them than most people think, even on the Millian framework of harm and consent as the only relevant factors. It depends on a number of assumptions that are philosophically controversial but certainly ones that people have argued for.

One is that something is harmful simply because it's morally wrong. Plato thought this, and it's a philosophical view with quite a bit of support throughout the history of thought. Once you allow that, then Mill has to allow any laws against immoral things on the ground that they are harmful to the person doing it. The only way to avoid this is to restrict it to harm against other people, people who don't consent.

Another thing some might poke around with is the fact that people might consent to an activity but not to the unforeseen effects of it that are harmful. For instance, pornography is said to have a negative impact on those in it because it degrades them. If that's right, and the people in it didn't consent to its degrading effect because they didn't see it as degrading, then someone is doing something to them without their consent. Furthermore, those who consume it are having their sexual drives influenced in a negative way in having their preferences altered for people who look like stick figures rather than healthy women, for example. Even if they consent to the porn itself, they might not understand and therefore consent to the effect. Similar things can be said about smoking. This is in fact how some people have justified laws against selling these materials to children, but maybe you could make a case that most adults aren't competent to understand these factors with certain things.

Then there's the difficulty of determining consent to begin with. Many people claim that an animal can't consent, and thus arguments against bestiality come in. It's immoral to allow people to abuse an animal that way. Then you might also add the controversial claim that it harms someone to deface their body after death, and necrophilia can be illegal. You could extend that to an animal, and sex with a dead chicken that you just purchased at the supermarket can be made illegal.

So I just don't think we're left with the standard liberal framework of law even if we accept the fundamental premises of that framework. Even if we accept only issues of consent and harm as good reasons for prohibiting some behavior, we might have good reasons to prohibit certain activities that many liberal-minded people want legal.

I am not sure about the moral basis for laws. The idea seems to lead to things like morality police like the saudis. What standard of morality does one use for the laws? It would be hard to justify using straight up biblical morals because we are a free secular society and that means that individuals of no and other religions would be forced to follow the moral guidelines of another religion. There is another slightly christian argument against using christian morals for a basis for laws. First point is the Jesus never seemed to advocate establishing a earthly legal system. Secondly, Christ allows us the freedom to choose him or not choose him (while there are still very serious consequenses for the choices). He did not force religion upon people. Carring this further, a society's laws should allow for the maximum freedom of behavior while creating a stable living environment. A government, just like Christ, should allow people to choose to be moral or not.

God does not override out will and neither should the government. They should create laws to have a healthy, stable society. I have not rationalized all of this out yet, just a begining of what has been in the back of my head for a while on the role of governments, so don't hold my ill-formed discription against my claims. lol.

Jesus didn't comment on what a secular government should or shouldn't do, so I don't think his comments on what his followers should do as ordinary non-government people should do are even close to relevant.

I'm not sure he would agree with you that having laws based on moral reasons (which I reiterate is what most of are laws are) necessitates forcing religion on anyone. In fact, legislating against behavior doesn't even relate to what most Christians believe religion is about. Religion for a Christian is not primarily about behavior, and so legislating against certain behavior simply cannot be forcing people into Christianity. You've given the basic argument for that.

First, adult pornography is protected by the First Amendment. However, obscenity is not. Therefore, I am assuming that you are referring to obscenity when you discuss pornography.

Comparing laws against murder, theft, and rape to obscenity laws is comparing apples with oranges. Other people are actually harmed by murder, theft, and rape and by those actions directly. No one else is actually and directly harmed by an individual that views pornography.

Child pornography cannot be compared to adult pornography because a child must be harmed in the making of child pornography because a child cannot give consent without coercion. It is automatically assumed that adults have the capacity to give consent in sexual situations where it is automatically assumed that children do not have such capacity.

I'm not sure what you mean by obscenity and pornography. People use the latter term in a number of different ways. My point has nothing to do with pornography, though. It's about this ridiculous notion that arguments based on morality are thoroughly illegitimate, all the while approving of plenty of arguments based on morality.

I would dispute your claim that no one else is harmed by one person's act of viewing pornography. It fosters lies about women, and it promotes mistreatment of women on the basis of those lies. Pornography isn't alone in this, of course. Shampoo commercials have the same effect. Still, it's hard to avoid the conclusion that there's some harm in this.

It's pretty easy to compare apples and oranges, by the way. Both are fruits. Both are round. One tends to be orange and the other tends to be red or green. One is citrus. The other isn't. Both contain sugar, though in different amounts. One has a more easily eaten skin. There are lots of comparisons to make.

I'm not saying that all these things should be treated as if they're in the same moral category. They're clearly not. All I said is that there's no way you can dismiss an argument on the mere grounds that it's a moral argument. The argument that we should legislate against harmful things is based on a moral principle (and has a moral conclusion -- that we should legislate against harmful things).

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