Morals and Laws

Off Topic Politics and World Issues
1

Seeing as how a lot of the recent threads (stem cells, gay marriage, etc., etc.) have involved debates concerning the propriety of “legislating morality,” I thought it might be good to have a thread devoted to that idea.

I’ve said before that ALL laws are basically legislating morality – even the tax code gets into the act in that it encourages and discourages certain activities, and when you get to the bottom of the reasoning for such incentivizing most of the reasons are moral, or at least involve a coalition of reasons that include moral ones.

I wanted to start off with this pair of posts by Professor Volokh dealing specifically with abortion and with gay marriage, and with which I concur, and then see what sorts of comments people have:

http://www.volokh.com/archives/archive_2005_05_29-2005_06_04.shtml#1117549260

Eugene Volokh, May 31, 2005 at 10:21am] 1 Trackbacks / Possibly More Trackbacks

Religion, Forcing Moral Views on Others, and Abortion:

People often complain that others – often others who oppose abortion or destruction of embryos in the lab – are just trying to implement their own religious views into law, and how they are trying to force their moral views on others. The argument isn’t that the particular view about when life begins, or about whether abortion is proper, is mistaken; I can respect such arguments, and I even agree with some of them. Rather, instead of confronting the pro-life position on the controversial and difficult to debate merits, the arguer claims that this position is somehow procedurally improper, because it rests on religious reasons or forces moral views on others.

But all judgments about when human beings acquire certain rights rest on unproven and unprovable moral calls. (I have made this argument more broadly before ( The Volokh Conspiracy ), but I think it’s even clearer as to abortion.) Moreover, they all force one’s moral views on others. If you think people acquire a right to life at birth, and you thus support infanticide bans, then you’re forcing your moral view on others who want to kill babies. If you think that ninth-month abortions are wrong, because the baby acquires rights at viability, then you’re forcing your moral view on others who want to abort fetuses that are eight months old.

Now of course these judgments may be informed by medical observations – for instance, when the brain develops to a certain level, or when something will end up naturally growing into a born human without any further intervention – or by pragmatic considerations, gut feel, opinion polls, tradition, views about how precise and clear legal lines should be, or whatever else. But ultimately these judgments rest not on the scientific or social facts as such, but on moral judgment calls about how one evaluates these facts.

Likewise with libertarian arguments about the rights of the woman; the scope of the woman’s rights, the existence or not of the fetus’s or baby’s rights, and how one reconciles those rights ultimately rests on one’s own axioms about morality. And whether one supports a law against all abortion, against late-term abortions, against infanticide, or against killing babies who are one year or older, one is forcing one’s moral views on others.

Ah, but at least you’re forcing moral views on others, not forcing religious views on them, some say. So what? How is (1) someone’s gut feeling that an eight-month old fetus is so much like a baby that surely it shouldn’t be killed a more legitimate basis to write laws than (2) someone’s deduction from the Bible that any fetus can’t be killed? For that matter, how is a secular moral axiom that born babies are as entitled to live as we are a more legitimate basis to write laws than a religious moral axiom to the same effect?

All of us draw lines in this field, whether at conception, viability, birth, or whenever else. None of us can prove the validity of those lines through science or through abstract logic.

Those of us (like me) who draw secular lines shouldn’t feel superior to those who draw religious lines here – and we certainly shouldn’t think that the Constitution or political morality somehow makes our linedrawing more proper. We can and should debate, as best we can, where the lines should be drawn, but we should recognize that at some point it comes down to the unproven and unprovable, for the secular among us as well as for the religious. And we should realize that no attempt to protect children from killing – wherever you draw the line about what constitutes a “child” – can operate without forcing one’s moral views on others.

http://volokh.com/2004_03_07_volokh_archive.html#107905664940101484

Eugene Volokh, 3/11/2004 05:57:29 PM]

Forcing their religious opinions on us:

I must have blogged about this a while ago, but this trope keeps bugging me. “Those fundamentalist Christians are trying to force their religious opinions on us,” the argument goes. But that’s what most lawmaking is – trying to turn one’s opinions on moral or pragmatic subjects into law.

 Gay rights activists are trying to force their opinions on us by making employers not discriminate based on sexual orientation, or by making taxpayers pay for various marriage-related benefits for same-sex couples as well as heterosexual couples. Civil rights activists forced their opinions about race and sex discrimination on private employers, landlords, and business owners.

 Nor are libertarians immune, unless they're anarchists (though even the anarchists are willing to force their opinions through the use of deadly force, even if not through legislation). After all, laws against breach of contract, theft, rape, murder, and the like also involve the defenders of those laws forcing their opinions on the rest of us.

 Ah, the argument goes, but those laws are backed by secular arguments, not religious ones. Well, as it happens, many laws -- civil rights laws, for instance -- were motivated by religious opinions (it's the Reverend Martin Luther King, Jr., you might recall). But more importantly, all of our opinions are ultimately based on unproven and unprovable moral premises. For some of us, the moral premises are secular; for others, they're religious; I don't see why the former are somehow more acceptable than the latter. And the slogan "separation of church and state" hardly resolves anything here: Churches may have no legal role in our government, but religious believers are just as entitled to vote their views into law as are atheists or agnostics.

 Of course, it's perfectly sound to disagree with people's views on the merits: If I don't agree with the substance of someone's proposal, whether it's religious or secular, I'll certainly criticize the substance. And naturally people will often find others' religious arguments unpersuasive -- "ban this because God said so" isn't going to persuade someone who doesn't believe in God, or who has a different view of God's will. (Likewise, many devout Christians may find unpersuasive arguments that completely fail to engage devout Christians' religious beliefs.) But there's nothing at all illegitimate about people making up their own minds about which laws to enact based on their own unprovable religious moral beliefs, or on their own unprovable secular moral beliefs.
2

You are right. All law legislates morality to a degree. It is just that almost everybody basically agrees that murder, theft, assault, rape should be punished. (ok-not everyone, but there is much more of a general concensus). Arguments remain over what the punishment should consist of, but the morality of the actual acts is much less of a question. As I see it, issues such as stem cell research, abortion, gay marriage etc… are different because there is a great divide in what people see as moral in relation to these issues.

3

Interesting framing. I can only speak personally but I have no issue with people trying to legislate morality; that is in essense what law is. I don’t have any issue with someone who lets religion guide their moral process. My issue is with those that want to pass laws restricting individual “freedoms”, have no basis for it other than it was written down in the bible/koran/etc, and want to look down their noses on those of us that don’t believe in a morally elitist fashion. If you want to base your stance on your religious beliefs fine, but why is it so hard to believe that I will not be convinced if your only real argument is that the bible says so?

It’s pretty simple really. You want to pass a law? Fine, tell me why I should support it. I’m not Christian so your relgious arguments are in one ear and out the other. If that’s all you have then yes, I will probably oppose your position. Not because I’m anti-religion, but because you haven’t given me any reason to limit my personal freedoms that I believe in. Any sorry if, in the course of that debate, I find “it says in this book” more arbitrary than that which I can see, hear, feel, measure and experience.

The fetus debate is a straw man. Drawing the line between an 8 month old fetus and an embryo is not arbitrary. Have you seen an 8 month old fetus? It has a human form. It has human appendages. It can survive outside of the womb independently and behave, react, and think like a human being. An embryo has none of those traits. Lothario posted something similar on another thread that sums this all up pretty well.

That is exactly what riles me. I am NOT suggesting that anyone be precluded from trying to pass a law based on a belief that an embryo is a living human being. Just don’t expect me convince me with “it says here in the bible…”, and don’t expect me to believe that differentiating between a cluster of cells and a clearly human form is arbitrary. It’s not.

That’s just me though. Maybe there are some people that would oppose any law that is based on any kind of religious morality. IMHO though those people are a rare extreme and this article is an attempt frame the debate in such a way that it paints everyone with that brush (I feel that way about 99% of the articles posted on this forum though, and maybe I’m wrong).

4

An addendum:

To provide some examples, I would oppose legislation that outlawed eating pork, or engaging in anal sex with another consenting adult, if the reasons provided were purely religious. I find those to be arbitrary laws that restrict personal freedoms for no useful reason.

I would oppose limiting federal funding to only alcohol-treatment/counseling programs that included an “aspect of accepting the Creator”. I want government programs funded on their effectiveness. Funding based on whether or not they include religious elements would be arbitrary, and an attempt to “force religion on people”. IMHO.

5

I think most people agree crimes that infringe on individual rights (specifically life, limb, and property) are not right. This is morality that can be labeled as secular morality. It becomes a little difficult when the “crimes” being committed are not committed against someone else but themselves; for example smoking pot and abortion.

Abortion is a sticky argument because it is a philosophical argument about considering whether a fetus constitutes a self or not. Many–especially in the religious community–believe it is. There is only one way to make abortion illegal with my argument above–that is to define what “life” is.

To contrast my argument lets look at the act of DUI. According to my statement above it should be illegal because of it’s potential to deprive individuals of their “life, limbs, or property”. However, the act of drinking which is required in order to commit the crime is not illegal.

Here is where I introduce the term inclusive versus exclusive morality. The argument should not be that we shouldn?t legislate morality but should not legislate morality that is exclusive to certain individuals and thus forces others to contend with morality not their own. An inclusive morality would make generalizations about a given population–generalizations, which include how individuals perceive what their rights are and/or should be. In the US the cornerstone of our morality is the “golden rule”. Treat others how you would want to be treated. This notion is rooted in all major religions and thus considered by many a “moral truth”.

Taken from: Department of Philosophy | Cleveland, Ohio | John Carroll University

“To apply the golden rule adequately, we need knowledge and imagination. We need to know what effect our actions have on the lives of others. And we need to be able to imagine ourselves, vividly and accurately, in the other person’s place on the receiving end of the action. With knowledge, imagination, and the golden rule, we can progress far in our moral thinking.”

“The golden rule is best seen as a consistency principle. It doesn’t replace regular moral norms. It isn’t an infallible guide on which actions are right or wrong; it doesn’t give all the answers. It only prescribes consistency - that we not have our actions (toward another) be out of harmony with our desires (toward a reversed situation action). It tests our moral coherence. If we violate the golden rule, then we’re violating the spirit of fairness and concern that lie at the heart of morality.”

Taken from: Department of Philosophy | Cleveland, Ohio | John Carroll University

All legislation should ask the question: “Is this consistent with the ‘golden rule’?” It is the only standard that is inclusive and thus fair.

6

A couple of quick thoughts:

First, I hear a lot of people talking about how we shouldn’t allow “religiously” motivated laws. They often point to the Establishment Clause and talk about the “separation of church and state.” I’ve always wondered how allowing a law to be pased based on a non-religious reason, but not for a religious reason is anything less than discriminating based on viewpoint. Nobody is guilty of it in this post, but if it sits around long enough, you will see someone make that argument.

Second, I think this discussion can be tough because people often make conclusory statements. For example, LIFTICVS made the comment that we agree on crimes that infringe on individual rights. Well, that assumes that you have certain rights. Even this is a moral assertion at some point. For example, envision a world with solely communal ownership of everything. Well, there would be no stealing, since you would not have a right to property. At the same time, if you have some type of right to be free from offense, then saying a rude remark in your area would be a crime.

My point is, at the end of the day, everything backs up to certain moral assertions. These fundamental beliefs create the paradigm in which we view the world. So at some point, even agreeing on a starting point means making some moral assertion.

7

Cory,

Good post. I need to run, but I wanted to add that really not everyone does agree even about individual rights. Sometimes we forget because most of us who talk about these things do prioritize individual rights. But if one were to take a purely utilitarian outlook, there could be many reasons to infringe on individual rights “for the common good” (does that sound familiar?). All laws come down to which set of preferred morals are enforced.

8

[quote]Cory089 wrote:
My point is, at the end of the day, everything backs up to certain moral assertions. These fundamental beliefs create the paradigm in which we view the world. So at some point, even agreeing on a starting point means making some moral assertion.[/quote]

This is a great assertation, however, the morals I laid above I defended as being non-exclusive. I didn’t state they weren’t morally based. This would be an incorrect statement. Morals are:

  1. The lesson or principle contained in or taught by a fable, a story, or an event.
  2. A concisely expressed precept or general truth; a maxim.
  3. morals Rules or habits of conduct, especially of sexual conduct, with reference to standards of right and wrong: a person of loose morals; a decline in the public morals.

Morals do not have to be religiously motivated–although peopls first reaction to the word is religious in nature.

My only argument is that when writing laws they only need be consistant. The only way to ensure consistancey with out using religious precepts as a backbone for lagislation is using the golden rule. It essentially asks–is this fair–does this law ask people to give up unalienable rights. If in fact you read every Amendment in the bill of rights you can see a grain of the “golden rule” written in every one.

9

What a pile of horseshit.

You kill my dog, destroy my land, harm my children, smash my car, steal my belongings, burn my house, injure me and so on, then you owe me.

Laws are meant to prevent or redress various types of wrongs.

Issues arise when people start to have a legitimate disagreement about whether or not a “wrong” is being committed by some action.

Some wrongs are subtle and become clearer over time. For example, smoking is now seen to be quite the health issue, such that people are often protected from second hand smoke by various laws. It used to be that nobody really thought or cared about it that much.

When there is no real evidence that a wrong is being committed, except for teachings by a leader or a religion, and a law is requested based on this, as opposed to logical understanding of the wrong, then you are entering the territory of morality.

When many of those that aren’t of the same religion see or agree that a wrong is being committed, via their own principles, then things are pretty smooth. When they don’t, we get into the arguments and political crapfests that are so common.

If a society is not to be driven by religion, then religion should not be used as the sole determinant of whether something is right and wrong. Other means of specifying and discussing the wrongness of the behavior need to be identified and explained.

Relying on religion, especially in a land where all religions must be respected, is going to be a conflicting and dangerous game. Everyone is perfectly able to live above the standards set out in law, and adhere to those within their own religion.

However, everyone else is theoretically free from the considerations of your religion, as they may or may not have their own, and they should not be able to abide by those religiously defined definitions of right and wrong.

The rules for all of this, perhaps known as a constitution, should define how the powers of government are to be administered, including the rights to be afforded to the people and the passage of laws with respect to them.

Strange how that all works.

10

vroom,

There are a whole slew of laws that do a lot more than just protect individuals from bodily harm or having their goods stolen.

But even that idea ignores the fact that the debate over just what is an “individual” is largely grounded in moral reasoning – no matter what science will tell us about a level of development, only we can choose to attach a meaning to a particular level, and that is essentially a moral choice.

And this is interesting too:

http://www.volokh.com/archives/archive_2005_05_29-2005_06_04.shtml#1117638505

[Eugene Volokh, June 1, 2005 at 11:08am] 1 Trackbacks / Possibly More Trackbacks

More on Religious Arguments: A correspondent proposes to distinguish religious reasons for decisionmaking and secular reasons this way:

[i]The difference between religious justifications and purely moral justifications is that moral questions are debatable. For instance, any person of any philosophical or religious persuasion can debate both the philosophical question of what duty we have to protect the earth to future generations, and the more specific question of whether protecting the snail darter is necessary to discharge any such duty. These questions cannot be resolved, but they can be debated with reasoned argument.

Similarly, one can debate whether aesthetic justifications are sufficient to prohibit the eating of a certain sort of meat, whether horses have a “higher consciousness” sufficient to justify a ban, to what extent customary practices should be considered, whether meat should be eaten at all, whether horses who are slaughtered feel pain, and all sorts of other questions.

But once someone says “a little man in the sky whom you don’t think exists ordered humans not to do something”, that ends the debate. I realize that I am being sarcastic, but to the nonbeliever, that is exactly what it means to say that God ordered something. To the nonbeliever, saying God ordered something is no different than someone saying that he was visited by an apparition who ordered him to do something, or that his palm or tarot card reader told him that the spirits have ordered it. To the nonbeliever, the justification that “God” ordered something is nothing more than a hallucination, a completely irrational justification to restrict his conduct. And even to the believer, the justification that someone else’s God, that he doesn’t believe in, ordered something, is precisely the same. To anyone other than an adherent of a religion, an argument that a religious text says something is simply not a reasoned argument and therefore does not provide any justification to bind the non-adherent. A contested moral claim, in contrast, is still a reasoned argument.[/i]

It seems to me that this misses the mark. One can make reasoned arguments, in the sense of an argument that adduces reasons for action, about religious beliefs as well as secular beliefs. People argue all the time about how to interpret contested provisions of religious texts, or how to resolve seeming tensions in the text, or whether there are implied exceptions to the text, or for that matter whether a religious commandment ? even one that both parties to the argument agree is religiously binding ? ought to be turned into secular law. They give reasons, they use syllogisms, they argue by suggesting counterexamples, they engage in all the hallmarks of reasoned argument.

Of course, at some point the capacity of reasoned argument to drive our judgment runs out, as people come up against their axioms. But that’s true whether the people are religious or not. Secular people who want to ban others from eating horse don’t say “a little man in the sky who you don’t think exists ordered humans not to do something.” Rather, if they’re candid, they say “a little feeling in my belly that you don’t think is morally obligatory ordered humans not to do something.”

To those who don’t agree with California voters’ view about eating horsemeat, “the justification that [the majority’s morality] ordered something is nothing more than a hallucination, a completely irrational justification to restrict his conduct.” Yet in a democracy, the objectors aren’t allowed to buy horsemeat, even though this means they’re being governed by others’ nonrational preferences (not irrational preferences, but nonrational preferences in the sense of being the axioms on which rational arguments rest rather than statements that can be proven rationally).

The same applies to abortion. I suspect that many secular people (or religious people who do not make this decision on religious grounds) believe that the right to life starts some time before birth ? perhaps at viability, perhaps at the second trimester, perhaps when some specific developmental milestone is reached. They can adduce reasons for their decision, just as religious pro-life people can adduce reasons for theirs. But ultimately, when you get to the core of the argument, you have people’s moral intuitions, gut feelings, axioms, or whatever else you want to call them. No logical argument can provide “proof” that one place and not another is where the right to life attaches.

These positions then get enacted into law; to the best of my knowledge, in most states abortions are not allowed very late in pregnancy, precisely because of these concerns. Whether the backers of such prohibitions support the prohibitions for religious reasons or secular moral reasons, the prohibitions interfere with some women’s decision to abort a fetus late in the pregnancy. (We can say the same about infanticide, but I wanted to use a case that was somewhat more controversial.) “To the nonbeliever [in the secular life-begins-some-time-before-birth argument], the justification that [the fetus’s right to life mandates] something is nothing more than a hallucination, a completely irrational justification to restrict [her] conduct.” Yet such justifications do restrict our conduct. I don’t see why religious people’s justifications, based on their religious axioms, should be condemned as illegitimate, while nonreligious people’s nonreligiously based justifications, based on their secular axioms, are somehow proper.

11

Hinging the argument on the abortion debate is, I think, misleading. As others have pointed out, there is a significant difference between what we might call “victimless crimes” and crimes in which “victimhood” is unclearly defined. Abortion is such a case; we disagree not because of a fundamental moral difference (killing being wrong) but rather because many people feel the situation itself to be morally ambiguous, and the actors are poorly defined.

Reducing the personhood argument to the result of a moral calculus, and then using such an analysis to justify broader and more obviously pernicious laws (against, say, eating pork) is pure casuistry.

We can, for the purposes of our argument here, say that there are two kinds of laws: laws that protect others and redress grievances, and laws that protect the individual from himself. Abortion is tricky because it is ill-defined which category of law it belongs to. Those folks who say that abortion should be illegal are obliged to view it as an attack upon the fetus, an “other.” Those who support the “right to choose” instead see banning abortion to be an infringement upon the woman’s liberty with her own body, that is, protecting her from herself.

Now, we make all sorts of behavior illegal because it is obvious that it threatens others. Driving drunk, for example, has a fairly well-established causal chain that is difficult to argue with. If you drive drunk, you are likely to have an accident. Where we draw the line for “drunk” may be up to debate, but the ultimate conclusion is not. But drinking in general, while we may say that it is damaging to society in some general sense, does not have such an established causal chain. Few, if any, lawmakers would directly argue that the citizens do not possess adequate agency to drink or not drink as they see fit. Instead, they would argue that drinking somehow had another victim, direct or indirect.

It is our responsibility to discredit such diseased logic, at least with regard to the “human things” (we can make an argument for the need for expert decision-making in scientific issues, such as nuclear waste disposal, for example) rather than scientific things. It is our responsibility to, whenever the causal chain is unclear, or under significant dispute, to refrain from naively passing legislation.

This isn’t a simple slippery-slope argument, either. Rather, if we use this sort of legislative template (that laws are simply opinions that have won the right of mandate) to stamp out anything we find objectionable, there is no end.

12

Nephorm,

Nice post!

Hey, does this make me a cheesetastic ra ra boy for Nep’s viewpoint?