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Rationally Speaking is a blog maintained by Prof. Massimo Pigliucci, a philosopher at the City University of New York. The blog reflects the Enlightenment figure Marquis de Condorcet's idea of what a public intellectual (yes, we know, that's such a bad word) ought to be: someone who devotes himself to "the tracking down of prejudices in the hiding places where priests, the schools, the government, and all long-established institutions had gathered and protected them." You're welcome. Please notice that the contents of this blog can be reprinted under the standard Creative Commons license.

Tuesday, October 18, 2011

Morality can — and should — be legislated

by Michael De Dora

Recently I have been watching the new Ken Burns documentary “Prohibition," which tells the story of the rise, rule, and fall of the Eighteenth Amendment to the U.S. Constitution. The five-and-a-half hour film series is fantastic in both its narrative and historical detail, and is well worth the watch for anyone interested in learning about the Prohibition era. However, I have discovered one flaw with the documentary.

The overarching message of “Prohibition” is that while the Eighteenth Amendment was “intended to improve, even to ennoble, the lives of all Americans, to protect individuals, families, and society at large from the devastating effects of alcohol abuse,” the attempt was an utter failure. Why? Because morality cannot be legislated. Or so the documentary seems to argue.

I have previously written on this blog on the relationship between morality and law. In December 2010, I discussed several factors that often determine when morality becomes law. In that essay, I argued that this happens depending on, among other factors, a) whether it is practical to encode a given ethical conviction into law, and b) the potential or real harm being caused by a given action. However, the question of whether morality can or should be legislated is a different, and even more, fundamental one.

It seems obvious to me that morality can be legislated. The amendment discussed by the aforementioned documentary is evidence enough. But the relationship between morality and law runs much deeper than one failed amendment. Indeed, this country’s foundational philosophical concepts — life, liberty, and the pursuit of happiness — are rooted in morality. So are fundamental principles found in the Bill of Rights, such as the right to freedom of speech and belief, the right to assembly, the right to privacy, and the right to a fair trial. This list continues on, from basic crimes like murder, rape, and robbery, to insider trading and so-called sin laws, like cigarette taxes or seat belt fines.

Each one of these examples is based on some prior moral notion about what is right or wrong, or what is good or bad. In short, as Barack Obama argues in his book, The Audacity of Hope (for reference, page 218, though I suggest you read the entire book), I propose that most law, either in spirit or letter, is nothing but encoded morality.

However, one could still ask here whether morality can be effectively legislated — whether laws relating to morality actually work. In some ways, this is an empirical question, to be determined on a case-by-case basis. You start with assumptions and goals about certain moral notions and the laws they logically entail, and then collect data from there. Did most people who drank before Prohibition stop? Were most people who might have drunk during Prohibition prevented from doing so? Do cigarette taxes dissuade people from smoking cigarettes, and recoup health care costs caused by smokers? Do seat belt laws save lives?

But this is not as easy a process as it might appear to be. That’s because some moral-political rights are simply not amenable to empirical study and calculation. For instance, we don’t limit or take away the right to free speech just because a person's exercise of that right led to deaths (the minor exception: if someone creates an imminent danger by yelling “fire!” in a crowded theater when there is no fire). Nor do we cancel murder trials and summarily execute people simply because strict court rules might have allowed a couple of people to get away with murder. These sorts of rights are as close as we come to absolute moral rules.

Still, we have to cross the is-ought gap, and face the question of whether morality should be legislated. My answer is yes. Broadly speaking, morality is the domain of one’s thinking — beliefs, attitudes, and feelings — about the well being of conscious creatures. It concerns right and wrong, good and bad, questions of how we should act toward one another, and the kind of people we should want to be. The legal realm (whether a piece of political legislation or a court decision) is where these beliefs, attitudes, and thoughts are societally enacted. In this sense, the connection between morality and legality is natural and inherent.

But there is another reason to enforce moral norms: if your conscience tells you some action may be causing great harm to society, you have both the right and, I believe, the duty to try to help or correct the situation, through both social and political means. In this sense, we should not be afraid of moralizing. Instead, we should be afraid of not moralizing. The consequence of not moralizing is unchecked harm. The consequence of moralizing is potentially a safer environment and perhaps even a more virtuous populace.

Yet, while I believe the relationship between morality and legality is both natural and acceptable, it can be problematic. I think there are at least two reasons why: a) the moral beliefs and values undergirding a given law can be false or unreasonable, or b) the law in question can be based on non-moral criteria.

The first condition is self-explanatory, though what makes for good reasons and good evidence is an entirely distinct subject, possibly for another essay.

The second condition was precisely the problem with prohibition. Alcohol consumption is not intrinsically a moral issue. It is an issue of preference, which is not a valid domain of law. Alcohol consumption only becomes a moral, and thus a legal, issue when it is abused and causes harm to others and/or society. When it does, we have laws to handle those situations. For instance, drunk driving is illegal and punishable.

It is important to be mindful of these two factors. We must ensure that we are encoding reasonable morality, but we also must ensure that what we are dealing with is an actual moral issue. Legislating preference is unethical and should be illegal, while legislating morality is, in theory, what we ought to do.


  1. "Broadly speaking, morality is the domain of one’s thinking — beliefs, attitudes, and feelings — about the well being of conscious creatures." - and this is not the same as preferences, as you so truly say. But it is just the difference between the two factors which is so difficult to establish, or concern for the "well-being of conscious creatures" would have us all vegans in short order - people insist that their infringement of others' well-being - their very life - is a matter of preference, not morals, and so the long day wears on.

  2. Michael: Well said.

    But what if consumption of a particular drug were strongly correlated with "abuse and harm to others and/or society" (i.e. significantly more so than is the case with alcohol)? Would it not be in society's interest to do more than simply punish people for the (predictably harmful) consequences of consumption, but to actually go a step further and control access to the drug itself (especially if it's highly addictive)?

    I think so, although it's debatable which real-world drugs should qualify for prohibition. (If one accepts the results of this controversial British study, then heroin seems a relatively strong candidate).

  3. Morality can impact law, can even in a sense become law (in which case it is law, not morality); but morality and law are, and should be, very different things.

    Prohibition was a peculiar attempt to legislate a kind of morality, one which is predicated on the prohibition of certain preferences, because they were considered wrong not merely because of their consequences, but because they were felt to be wicked whether they caused harm or not. This is the kind of morality which moralists generally wish to impose through law, however, because they know that they cannot otherwise impose that kind of morality on one and all. Thus, it is usually the case that it is unwise to legislate morality.

  4. Michael:

    Who's morality are you going to legislate? If I learned anything from Massimo's series on morality, it is that there are many kinds. Are you going with Christian, Muslim, mine, Massimo's, Bill Gates' ideas of what is moral?

    Thanks, Grisha.

    1. I think you've missed the point entirely. Society legislates it's own morals, based on what it collectively believes is good and bad for itself. Different societies will come to different conclusions. That is irrelevant. We are not debating moral absolutism or relativism. We are concerned here with whether or not society has a legitimate authority to govern itself.

  5. ciceronianus: Morality can impact law, can even in a sense become law (in which case it is law, not morality).

    A moral value is a moral value, whether it is enforced by law or not. And, as Michael pointed out, much of law (including "basic crimes like murder, rape, and robbery") is, in fact, grounded in moral values.

    gralm: Who's morality are you going to legislate?

    It seems to me that the morality of those who wield political influence is that which is legislated.

  6. Can I have your google+ accaunt?

    Your link isn't working

  7. mufi:

    You just pointed that the morality of those who wield political influence is that which is legislated. Seems to me it means that laws are grounded not in "the moral values", but in balance of influence and interests at any particular time.


  8. gralm: Seems to me it means that laws are grounded not in "the moral values", but in balance of influence and interests at any particular time.

    These are not mutually exclusive.

    I have an interest in seeing that laws designed to prevent "basic crimes like murder, rape, and robbery" - actions that I find morally abhorrent - are passed and enforced. The difference between an interest and a value in this case is fuzzy, but in either case it's characteristically moral (i.e. driven by deeply held desires and beliefs re: the natures of good & bad and right & wrong). Inasmuch as those who share these interests or values have influence (e.g. politicians, activists, and the electorate), we can expect certain kinds of laws to follow.

    I'm not saying that all laws are like this (let alone that the legislative process is necessarily democratic). But certainly many are (as Michael argued above).

  9. Good post!

    A problem can rise when people need to get a consensus of what is moral or not, and this is strongly influenced and mostly depend on the rule systems that we living in. Most of our law system defend and approve values of our current socioeconomic system.

  10. mufi:

    More like laws are designed to prevent "basic crimes like murder, rape, and robbery" are passed and enforced to insure safety and security of those who have influence and power.

    It is influenced in part by moral values (or should we say opinions) of those groups, but morality is fractured even within separate culture or even separate group of society.

    Ultimately it is reduced to multitude of morality of each individual and even later is fluid as time goes by.

  11. @gralm, surely it's a gross exaggeration to say that all legislation is to serve the interests of the legislators, though no doubt that happens sometimes. Taking Michael's example of prohibition, did those who passed the prohibition laws benefit financially thereby? If they did, I am not aware of it.

  12. @Michael, this was an excellent article, and on a topic I've been thinking about a fair bit, too.

    It seems to me that when people say we shouldn't legislate morality, they are using "morality" not in the broad philosophical sense but in a sort of colloquial sense, as concerning personal virtues and vices, often sexual. So I would tend to gloss such a statement as simply poor, overly narrow use of the word "morality," and interpret the intent charitably as "we should only legislate a broadly utilitarian morality, since in those cases the benefactors and victims are clearly identifiable."

    In other words I think people are basically invoking Mill's harm principle when they say such things.

  13. ianpollock:

    I did not say legislators (members of congress and state's legislatures), but those who wield political influence.

    In this particular example "Dries", in my understanding mostly religion driven, had political influence and pushed their ideological opinion in to the law of the land.

    I am curious what you mean, when you are talking about morality in the broad philosophical sense.

    Thanks, Greisha

  14. gralm: More like laws are designed to prevent "basic crimes like murder, rape, and robbery" are passed and enforced to insure safety and security of those who have influence and power.

    Even in the scenario where it is the conscious intention of the legislators to only protect the powerful and influential (e.g. themselves, their families, friends, and benefactors), they have the option to explicitly word the laws that way (i.e. so as to limit protection to certain individuals or groups). And, if they don't exercise that option (as so often appears to be the case, where such laws apply to all citizens), then why not? Fear of reprisal from the masses? If so, then it seems that the masses have influence and power, as well.

    But I submit that this scenario (aside from being very cynical) is psychologically and cognitively unrealistic (or at least rare). People's political views - whether they be powerful and influential or not - tend to be influenced by their moral values; e.g. their beliefs and desires re: what's good & bad or right & wrong as a general rule, both for themselves and for others.

  15. mafi:

    It may be cynical - comes with experience, even if my wife will have big lough, when hear that somebody calls me cynical. However, why is it unrealistic? Are we talking about the same History here?

    Thanks, Greisha

  16. gralm: I don't know that we're talking about the same history. But my own experience (which includes study of history and the cognitive sciences) tells me that people - including politicians - generally like to believe that what they're doing is right - not just for themselves, but also for their constituency and nation, if not humanity or the planet. To suggest otherwise (e.g. that egoism is the norm) seems to me unrealistic (e.g. not supported by the evidence).

    BTW, it's also unrealistic to ignore all of the laws that only benefit the not-so-powerful (e.g. the poor, religious/ethnic minorities, or the disabled).

  17. mufi:

    I am sure they believe so - humans are very good in justification that what they do is for the good of all people or that some people are just not-deserving kind. History is full of that - no problems to kill, rape, or sell slaves or serfs save for withholding basic protection of the law from multitude of other groups.

    I am not trying to say that politicians or social groups with influence completely lack empathy - they may and did legislated some protection for poor and weak, but most of law are influenced by those who have influence.

    Note, however, that we veered from the main topic - it seems to me that opinion about morality of those with influence finds its way to laws. I assume you see the difference between morality and opinion about morality.

    Thanks, Greisha

  18. gralm: I actually don't see much "difference between morality and opinion about morality." Sure, I can argue for my understanding of morality (which is tightly wound up with my understanding of well-being, another fuzzy concept), but I am humble enough to admit that it is only one person's opinion.

    That said, I totally agree that "opinion about morality with those with influence finds its way into laws." Therein lies the incentive to "get political"; i.e. to express one's opinion about matters of right & wrong as it relates to public policy - even if the form of expression is as passive as merely pulling a switch for a candidate whose opinions jibe with one's own (or more so than his/her rival for office).

  19. PS: One of the reasons that I read works of moral philosophy, and also follow this blog, is that I aim to improve my understanding of morality. While I believe that's possible, I also believe that the result will still be a "just a matter of opinion." It just so happens that some opinions are better informed than others.

  20. mufi:

    It looks like our positions are actually closer than we thought.

    The point of my disagreement with Michael was that in his post "Morality" sounded like THE MORALITY, something fully universal and universally accepted. In reality with exception of very few basic norms, opinion on what is moral and what is not varies widely and wildly not only between cultures, but between group within cultures and often between individual within groups.

    The very few norms that are almost universally accepted within particular society are already legislated and heated discussion are about those we have wild disagreement.

    So, we are back to the same question, who's morality we can and should legislate.

    Thanks, Greisha

  21. gralm:

    I didn't interpret Michael's post that way, but no matter.

    I would agree that today's political controversies stem from contrasting moral visions. [Note: If you've ever read cognitive linguist George Lakoff - e.g. Moral Politics or The Political Mind - you'll know where I'm coming from in this regard.] Of course, the politicians, lobbyists, and (to a lesser degree) activists have disproportionate influences on what's actually enacted into law, relative to the rest of society. But even a rank & file voter like myself usually has no trouble identifying which political candidates' moral vision more closely resembles his/her own (e.g. in a US context, based on their rhetoric and positions on hot-button social issues like abortion and gay marriage and economic issues like tax and welfare policy).

    To rephrase what I said earlier: I can't say who's morality we should legislate without simply expressing my own opinions. I just know that we do, in fact, legislate morality (which I took to be Michael's main point) and probably could not avoid doing so, even if we tried.

  22. mufi:

    I am putting George Lakoff on my reading list.

    To finish our discussion I just want to say that yes, we probably cannot avoid legislating somebody's moral opinion, but there is a big difference between "cannot avoid" and "should". "Should" was Michael's main point I think.

    Additionally, returning to Michael's post, the giving example actually illustrate that we cannot *successfully* legislate group's or individual's opinion about morality because among other things it brings unintended results, when cure is often worse than illness.

    Nice chatting with you, Greisha

  23. gralm: You can get a taste of Lakoff from his latest column here. Of particular relevance to our conversation:

    All politics is moral. Political figures and movements always make policy recommendations claiming they are the right things to do. No political figure ever says, do what I say because it's wrong! Or because it doesn't matter! Some moral principles or other lie behind every political policy agenda.

    If you accept that premise (as I do), then it's not a question of (A) whether or not politics should be grounded in morality - it's just so, whether we like it or not. Rather, it's a question of (B) which laws and policies fit one's own moral vision.

    I think we can readily agree on (A), even if we disagree on (B).

  24. Michael, I don't deny your claim that law and morality are connected, but it seems to me absolutely nonsensical to speak of "legislating morality." Of course you never define that phrase, and so perhaps we are simply disagreeing about definitions; but as I see it, "legislating morality" could only mean one of two things: using laws to alter moral facts and judgements, or encoding moral facts and judgments directly into law.

    If the former were possible, then law could turn homicide into a moral act. I hope you agree that this runs counter to our intuitions about morality. And the latter, while it might be possible, would be quite useless. What good would a law be that simply declared that murder is wrong? That insider trading is wicked? That lying under oath is depraved? To be useful, legal codes must specify the consequences of lawbreaking, but it's not clear to me that morality should ever specify the consequences of immorality.

    In this respect, law and morality are so different that I cannot imagine ever saying that we "legislate morality." Morality may guide or lawmaking; and it may even guide our sentencing. But to make morality into law, or law into morality, is to commit a category error.


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