Thursday, July 21, 2011

On Legislating Morality Part II

A conversation on Facebook reminded me of my previous post on legislating morality. It is important to understand the relationship between morality and law. One of the causes of much confusion in modern political discussions is that this relationship is often misunderstood.

There is a constant balance of individual rights vs. the welfare of a society. When a law is passed, say for example a certain activity is banned, there several moral judgements involved, noted by these criteria:

1. That the activity in question is not beneficial to society. This is a moral judgement.
2. It is proper that the state is involved in enforcing that said activity does not occur. This is also a moral judgement.
3. It is reasonable that state coercion will deter said activity from occurring (i.e. such laws are enforceable). This is a prudential judgement.
4. The law in question does not unreasonably interfere with individual rights of the citizenry. This is a prudential judgement.

I'm not under any illusion that these are always taken into account. Indeed most of the laws passed in our society these days lack sufficient reflection on such criteria. However it is the case that when we are passing laws for "the good of society" this is essentially the criteria that we are abiding by, even if we don't follow through and think clearly on the law with regard to the criteria.

Any time a law is passed it is always first and foremost preceded by a moral judgement of how human beings interact with each other. As I stated before, morality at its heart contain the rules of conduct that human beings abide by, both as individuals and as groups (family, community, etc). The state is essentially the expression of that moral viewpoint at the macro level. Thus for one to say "One cannot legislate morality" is to say "One cannot legislate."

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