Morality is the Only Thing That can be Legislated!
How often have we heard the statement “you cannot legislate morality”? Have you ever stopped to think just how foolish this statement is? If it were said instead that “you cannot make people good by passing legislation” there would be nothing wrong with this. The familiar saying, however, is understood to mean that there is something out there called morality which is forbidden territory for legislators.
The problem with that is that legislation is merely a fancy term for the government passing laws. Laws are merely rules that the government enforces. Like all rules, they place limits upon people’s choices. They tell you that you are not supposed to do this or that – kill your fellow man, steal his possessions, burn down his house, etc. – and they prescribe penalties for you if you ignore the law and go ahead and make those choices anyway.
Why do we have laws? This is a question that can be answered either generally or on a law-by-law basis. If we answer generally, we say that we have laws because they are necessary for the good of the community or the society as a whole. If we answer on a law-by-law basis, we look at what the law prohibits and show how it is something that is harmful, wrong, and evil to a degree that justifies the law. The law that says that you cannot kill your fellow man except in certain very specific circumstances, such as to prevent him from killing you first, is there because murder is just this sort of evil.
Note that both answers require the language of morality for their expression. Morality is human behaviour conceived of in terms of good and evil, right and wrong (the related term ethics refers to systematic thought about morality). Laws in general exist for the good of the society. Specific laws are passed against specific evils. Laws are all about good and evil.
In other words, far from it being the case that morality is something the law cannot or ought not to touch, morality is by definition the only thing that the law concerns itself. It is not true that you cannot legislate morality. It is rather the case that morality is the only thing that can be legislated.
What those who say “you cannot legislate morality” are usually really trying to say is that “you ought not to legislate a specific type of morality, i.e., religious morality”. In other words, the all important question for such people is the question of “who says” that certain behaviour is right or wrong. If a certain type of behaviour is determined to be wrong by the democratically arrived at consensus of the secular society (more likely, in reality, by some out-of-touch group of Ivory Tower liberals) then they are okay with laws being passed against it. If the prophets and Apostles in the Bible, Jesus Christ, the Church Fathers, and the moral theology of the Church for two thousand years says that a certain type of behaviour is wrong, then they object to laws being passed against it on the grounds that such laws would be “theocratic”.
This reflects a certain type of thinking that is based upon progressive and positivist assumptions about the history of human thought. In this type of thinking religion, theology, and metaphysics are seen as primitive forms of thought that are vastly inferior to those of the modern reason and science which have superseded and surpassed them. Religion and theology come from a dark past, according to people who think this way, in which they were the tools of oppressive rulers for controlling their people. Reason and science, they think, by contrast, are the tools of the emancipated individual. Therefore the true morality and ethics, from this point of view, must be that about which a consensus is arrived at voluntarily by these modern emancipated individuals guided by the light of their experience (or, more likely, whatever their progressive professor tells them to think). If religious codes of morality have any place at all it is in the private conscience of the individual.
This sort of thinking is, of course, utter nonsense. If there are any rules of behaviour about which anything coming even approximately close to a universal consensus, agreed to by all peoples in all place and all times, exists, it is those basic rules which are enshrined in the moral codes of religion – in, for example, the Decalogue’s “thou shalt not kill”, “thou shalt not steal”, “thou shalt not bear false witness against thy neighbour”, etc. Far from arriving at a superior morality, the Twentieth Century bears record of how modern, emancipated man, justified himself as he committed evils on an unprecedented scale.
That religion teaches that a certain kind of behaviour is wrong is not a valid argument for the law to stay out of it. Religion teaches that murder is wrong, only a fool would therefore argue that there must be no law against murder lest we succumb to the threat of theocracy. There is no difference in kind between the law that forbids you or I from murdering our fellow man and a law which forbids a woman from having an abortion. Indeed, the best and only argument against the latter law would be that it ought to be rendered redundant by the law against murder.
Legislation, by its very nature and definition, is all about morality. It is the government attempting to limit our personal choices, by forbidding that which is wrong, for the good of the whole society. Now, if morality is the only thing that can be legislated, it does not follow that all morality ought to be legislated. In other words, we can recognize that one kind of behaviour is right and another is wrong without insisting that the government and the law has to have a say about it. If we wish to live in a free society, and the English speaking world has traditionally placed a very high premium upon freedom, rather than a tyrannical or totalitarian society, then we will prefer that the law limit itself to prohibiting those evils about which it is absolutely necessary that there be a law. This is a principle that has long been recognized in orthodox moral theology, being identified, for example, in St. Thomas Aquinas’ Summa Theologica. (1)
A far better principle, about what the law can and cannot do, than the foolish “you cannot legislate morality” is the principle that the law can only govern outward behaviour and not the heart. This is another way of saying that you cannot make a person good by passing laws. That is not what they are there for. You can pass a law that says that a man cannot poke his neighbour’s eye out, and, hopefully, this law will reduce the evil of blindness due to eye-poking. A law that tried to prevent a person from even thinking about poking their neighbour in the eye, on the other hand, would be silly and inane.
It is telling that the progressives, who accuse social conservatives of theocratic motives for wanting to undo the legalization of abortion and for wanting to return to what until very recently was the definition of marriage as a union between a man and a woman, are the ones who love to recite the absurd saying that we have here debunked about not being able to legislate morality, yet they themselves are loud and shrill in their support for anti-discrimination, “human rights” and “hate” legislation. A law against abortion does not tell a woman how to think or feel – it tells her she cannot kill her unborn child. Laws against “hate” exist for no purpose other than to tell people what to think and feel.
A Protestant Christian, patriotic Canadian, and a reactionary High Tory with a libertarian streak, at the same time a monarchist, indeed a royal absolutist, and a minarchist.
You can e-mail me at gerrytneal(at)hotmail(dot)ca