‘You Can’t Legislate Morality!’

Clear thinking on law and morality:

As I have often said, I am not a libertarian, although two years of Covid lockdown madness and health fascism have certainly moved me a bit further along in that direction! But I still believe there is a place to work for the social good via some elements of the state and some bits of legislation.

Just last night I was thinking about the recent alcohol bans in the Northern Territory. Most Australians know about the massive problems happening up there, overwhelmingly in the Indigenous population. There is so much crime and wife and child abuse and murder occurring there, and so very much of it is fuelled by alcohol consumption.

So curbs on the availability and purchase of alcohol have been put in place to help deal with these massive social problems. I was wondering how many die-hard libertarians would still think that an abstract commitment to complete personal freedom trumps the ability to save some lives and stop some child abuse.

Sure, often it is not a complete either/or situation, and we do want to maximise personal liberty while looking after the common good. And my purpose here is not to again discuss libertarianism. Instead, it is to reflect on something we hear zillions of times, especially by the secular left: ‘Oh, you can’t legislate morality.’

I have often written on this topic of course, including this piece: https://billmuehlenberg.com/2010/08/23/on-legislating-morality/

As I and others have pointed out, four basic truths can be stated here: almost all laws have a moral foundation; for law to be more than mere advice, some element of enforcement is needed; most folks want to see their own particular morality enforced; the question is, whose morality?

Christians can also sometimes become quite confused here. They say Christianity is all about changing the heart. Yes it is, but we are also to recognise that in a fallen world God has set up the institution of the state to bring about a modicum of order and justice to the world. Laws are also needed.

A law against running a red light may not change the human heart, but most folks are glad such laws are there, otherwise there would be a whole lot more folks being run over by cars and trucks. And while it would be nice if everyone obeyed just laws from the heart, most of us need a bit of external inducement (reward and punishment) as well.

Here I want to look at this matter of Christianity and whether or not we should seek to “enforce morality”. I will do so by offering some key quotations on this. Let me start with several versions of what Martin Luther King, Jr. had said:

“Morality cannot be legislated but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”

“Even though morality cannot be legislated, behavior can be regulated. While the law cannot change the heart, it can certainly restrain the heartless.”

George Grant and Mark Horne, in their book about homosexuality, Legislating Immorality, said this:

Morality is, as pastor and statesman Dr. D. James Kennedy has so often asserted, precisely “the only thing you can legislate.” That’s what legislation is. It is the codification in law of some particular moral concern – generally so that the immorality of a few is not forcibly inflicted on the rest of us. . . . The fact is, all law is some moral or ethical tenant raised up to social enforcability by the civil sphere. (pp. 158-159)

Ethicist Scott Rae in his important text, Moral Choices (4th ed) says this about the relationship between morality and law:

As you might expect, there is substantial overlap between what is legal and what is moral. Most, if not all laws, have some moral overtones to them. Even laws regarding driving on the correct side of the road imply a respect for life and property. We rightly assume that the person who drives on the wrong side of the road and ignores other similar traffic laws has respect for neither life nor property. Most people hold that for laws to be valid they must have some connection to widely shared moral principles; that is, a law that violates society’s widely held values cannot be a valid one. Thus, in most cases there is a significant connection between law and morality. This is not always the case, and thus there are occasions in which civil disobedience is morally justified. As a general rule, we will assume that the law is the moral minimum. Obeying the law is the beginning of our moral obligations, not the end. (p. 23)

And he says this about the claim that “You can’t legislate morality!””

Whether that statement is true depends on what is meant by “morality.” If moral beliefs, motives, or intentions are meant, then those certainly cannot be legislated. In fact, the First Amendment to the Constitution, which guarantees freedom of religion and speech, was written to keep the state out of the business of imposing beliefs on its citizens. A person’s genuine moral intent is changed by persuasion, not coercion, since intent has to do with one’s free choices. But if by morality one means “moral behavior,” then that can be, and is, legislated virtually every day around the world. (p. 24)

Finally, some quotes from an entire book devoted to this subject. In 1998 Norm Geisler and Frank Turek released Legislating Morality (Bethany House). They discuss the charge that “laws can’t change hearts” by saying there are at least three objections to this:

The first is that even if laws do not change hearts, they are necessary to restrain evil. Their primary intent is not to change hearts but to restrain actions. Even libertarians acknowledge that some limits must be put on human behavior to protect life, liberty, and property. Restraining evil is necessary because letting people do whatever they want, whenever they want is harmful to all. Liberty is not absolute….

 

We acknowledge this reality in our homes. Despite the difficulty in getting strong-willed children to comply with proper rules, few believe that scrapping all rules and allowing kids to do whatever they want would be in the best interest of all concerned. (Most five-year-olds would play video games all day and dine on candy every night if we let them.) Parents recognize that children are human beings, and since human beings are not indestructible, reasonable limits on behavior are necessary to secure the continued well-being of everyone. These limits must be established despite the fact that parents can’t always be there to enforce them. As parents, it’s our goal to ensure that—given enough instruction, repetition, and discipline—our children will obey our rules even when we’re not there.

 

The second fact ignored by the objection is that the vast majority of people will obey the vast majority of laws even in the absence of visible law enforcement (just like we hope our kids will do). Despite the fact that a larger percentage of people are committing crimes today than they were thirty-five years ago (again, violent crime is up 550 percent since 1960), studies show that less than 10 percent of all criminals commit about two-thirds of all crimes.

 

Most people are law-abiding citizens who don’t require someone constantly looking over their shoulder to keep them in line. In other words, the law, aside from law enforcement, has a certain restraining effect in itself. So when immoral behavior is legalized (the restraining effect of the law is removed), that behavior eventually loses its stigma of immorality. This is because many believe that whatever is legal is moral. That’s why legalization only results in more immoral behavior.

 

The third missed fact—and the most important of all—is this: Even though laws don’t change hearts overnight, they often help change attitudes over the long term. Both conservatives and liberals miss this reality when they claim that “laws can’t change hearts.” (pp. 36-37)

They go on to look at “three of the most divisive issues in the history of our nation to prove our point”: slavery, prohibition, and abortion. They conclude their chapter with these words:

We have seen that the objections against the enforceability of moral legislation are either wrong or miss the point:

 

-A good case can be made for legislating against all addictive drugs, including alcohol. And, in fact, we do legislate against them. Even if it is argued that Prohibition was a case of over legislating morality, this certainly doesn’t nullify the possibility of proper legislation. Indeed, even people opposed to Prohibition want their moral view legislated. And although enforcing Prohibition was difficult, the law significantly reduced drinking and drinking-related problems from 1920 to 1933 and for some time after.

 

-“They’re going to do it anyway” avoids the true issue of whether the activity is right or wrong. We outlaw many things (e.g. murder and child abuse) because they are clearly wrong, even though they’re difficult to enforce. If ease of enforcement is the measure by which we impose laws against an immoral activity, our standards will continue to erode and evil will not be restrained.

 

-Even though many laws are difficult to enforce, most people obey them without the continuous presence of law enforcement. But since many believe that whatever is legal is moral, legalization of immorality will only result in more immoral behavior.

 

Some laws actually do “make people be good,” and, over the long term, laws have a demonstrated ability to change attitudes. Since laws can change attitudes, if we don’t stand firm against legalizing immorality, we might eventually start calling evil “good”! (pp. 38-39)

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