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The moral basis of legality

Amanda Marcotte approvingly cites a claim by maha that's quite popular among liberals:

the purpose of law is to maintain conditions that allow civilizations and societies to exist and function, not to enforce morality.

I agree with the implication that while morality and (ideal) legality overlap, there are things that are illegal but not immoral and things which are immoral but not illegal, and with the substantive point of Marcotte and maha's posts that abortion should be considered both moral and legal. But I think the connection between morality and legality is closer than the standard liberal view lets on.

By maha's standard, I don't see any way to justify a legal rule about abortion -- the topic of the post -- one way or the other without bringing in morality. Neither allowing abortions under all circumstances, nor banning all abortions, nor anything in between strikes me as likely to cause societal collapse. Indeed, we have examples of societies with various policies on abortion, and none of them seem poised to collapse into anarchy or extinction as a result of how accessible abortion is. (It is in one sense unfortunate that societies are capable of continuing to exist indefinitely despite enormous grinding injustices, since that means survival of the fittest hasn't pushed us quicker toward social justice.) So then we have to ask about "functioning." If functioning is to mean anything more than "managing to continue to exist," it requires some sort of ideal of what a well-functioning society looks like. But deciding on any such ideal is necessarily a *moral* question. A society in which abortion is banned is functioning quite well if you think that one of the important things a society should accomplish is to maintain gender roles that subordinate women to men. But it functions quite poorly if you think that what a society is for is to enable its members to pursue happiness on an equal basis. Neither of these ideals is the "real" meaning of social functioning, and it would be a fallacious essentializing reification to claim so. So the only way to choose between them is to make moral arguments, which hold that freedom is a more valuable way of organizing human interactions than adherence to gender roles or vice-versa. (I'm being noncommittal on the substantive questions for the sake of focusing on my argument, but my position is not an inherently relativist one -- I think there are good reasons that freedom really is better, and that enforcement of gender roles is a bad moral position.)

Law and morality are not identical. Many things that are immoral would be too impossible, inefficient, abuse-prone, or unintended-consequence-producing to outlaw. And some things that are moral should nonetheless be illegal because it's necessary, and costs little enough, in order to enable enforcement of illegal-immoral acts. But the law still has an unavoidable moral basis.

(I would speculate that the appeal of the strict separation between morality and legality is a legacy of Christianity. Christianity has traditionally encouraged a view of morality as arbitrary rules. So when some law has a deeper justification -- e.g. "it promotes the pursuit of happiness," as opposed to "because I/God said so!" -- it seems like we're no longer talking about morality.)


Anonymous Chuck B. said...

While I am dubious of your premise that all liberals subscribe to your cite,I think your positon on how close legality and morality are, is actually spot-on.

Law, contrary to popular belief, has a pedigree that is based in religiosity. Now democratic ideals may have pulled Law from its religious moral roots a little , but not that far away.

Crimes are still taught in to students as either Mala Prohibita or Mala in se, mitigating circumstances for sentences and opinions are usually imposed based on an appeal to the decider's sence of morality. The two are close.

The problem it seems to me is that within a heterogenus democracy that understand the dangers of the tyranny of the cultural majority, issues of morality become very fluid. Whose morality?

The liberals I read when in my Legislation of Morality and Theories of Deviance clases in Undergrad as well as a few classes in White Collar Crime and Abortion Law in law school did not ascribe to your quote. Or at least their efforts seemed to be focused more towards isolating the layman's connotation of morality as opposed to rejecting it out of hand. It wasn't that Morality had no function within law, but that the idea of a monolithic morality was in error and lawmakers ought to approach legislating morality with caution. Also there were many arugments that what was considered universal morality could actually be credited as survival skills. (that's a whole nother thing)

10:18 AM  
Blogger Unknown said...

Part of it is that "morality" (as opposed to "ethics") often gets applied particularly to sexual morality, and sexuality is one area where there really does need to be a strong distinction between legality and morality.

Even if you dismiss all religious and "meaning of sex" constraints, there are still a lot of grounds to evaluate sexual choices (what's honest, or responsible, or prudent, etc.), beyond pure consent, but the argument for legally regulating sexual choices, beyond the consenting adults standard, is much weaker. Moreover, when it comes to consent, it's not really the case that morality/ethics should be reduced to the kind of clearcut things for which you can be sent to jail; morally an "enthusiastic consent" standard's clearly better than a more minimalist "anything that you can pass off as consent, no matter how grudging" standard, but a lot of what that morality would cover couldn't be easily regulated by law. So considering everything that should be legal beyond moral comment isn't right. And, of course, from the other direction, encouraging people to make illegal everything they consider sexually immoral is a privacy disaster. (So, even when I think something both should be legal and is perfectly sexually moral anyway, I still like to distinguish the cases.) So the area of sexuality that the law should regulate is a small subset of the area that might be up for moral discussion.

Ideal legality and ideal morality look closer in some other moral domains.

12:29 AM  

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