Can morality be legislated?
"Now the other myth that gets around is the idea that legislation cannot really solve the problem and that it has no great role to play in this period of social change because you've got to change the heart and you can't change the heart through legislation. You can't legislate morals. The job must be done through education and religion. Well, there's half-truth involved here. Certainly, if the problem is to be solved then in the final sense, hearts must be changed. Religion and education must play a great role in changing the heart. But we must go on to say that while it may be true that morality cannot be legislated, behavior can be regulated. It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also. So there is a need for executive orders. There is a need for judicial decrees. There is a need for civil rights legislation on the local scale within states and on the national scale from the federal government."
- Martin Luther King, Jr. excerpt from an address at Western Michigan University, 1963.
Legislation is a blunt instrument, but it is still an instrument. It is not the only, nor often the best, way of effecting needed social change, but it may have some role. Laws cannot do the entire job, but they can play a real part in restraining evil.
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All laws (or nearly so) promote one version or another of morality. Many attempts at promoting morality through law have been heavy handed and unwise, but the MLK quote is right on the money.
Perhaps the more pertinent question these days is 'Should morality be legislated?'
The context in which MLK was talking is not what most people think of today if you ask 'can morality be legislated?' More often now people are thinking of personal, usually sexual, ethics - things like pornography or homosexuality. You might consider fair dealings in the business word as another form of morality that governments sometimes legislate to a greater or lesser extent. While MLK's quote still applies, it doesn't address whether legislating in such fields is appropriate at all. To my mind, racial equality and attitudes to the environment are much more clear cut cases.
Many behaviors like racism are just bad habits in a way. Passing legislation is like taking a smoker's cigs away. He'll kick and scream but eventually realize he's better off without them. You just gotta draw the line at the extremes and not get into nitpicky stuff about how much fat food can have in it.
Tim - can you say a little more about why you think that racial equality and attitudes to the environment (attitudes, or practices?) are more amenable to legislation than personal ethics (where I assume that the first example for many Christians would be abortion). I don't necessarily disagree with your point, but would love to hear you fill it out a bit more.
Michael - Yes; this is a good point. Though it's worth noting that some laws do so more directly than others. For instance, the law that says we have to drive on the left side of the road is surely the correct moral position, but I'm not sure its connection to the moral order is quite as direct as anti-lynching laws... :-)
Misanihilist - Legislative restraint is indeed an important element of a wise social order. Often, there are better ways of influencing society than a new law. Indeed, cigarette smoking is an interest example, since no countries (that I'm aware of) have entirely banned smoking, though many have made it progressively more difficult to smoke easily or cheaply, often combined with public health education on the effects of smoking. This has (over decades) gradually influenced many societies. Australia's smoking rate has roughly halved (I think) in about 30 years.
Thanks for the challenge (and sorry for the late reply, I only just re-noticed this post and remembered that I had commented).
I don't think I can address abortion so easily. I generally think it should be legislated, though I do understand the opposite perspectives.
In answer to your question though: in broad terms, it's because the modern liberal democratic state is predicated on some basis of rationalism, utilitarianism and libertarianism. Governments don't legislate lightly and generally need to see a good, rational reason to pursue some agenda. The environment isn't seen primarily as a moral issue, despite it being tagged as the greatest moral challenge of our generation: it's couched in terms of a debate between preserving our planet from future ruin vs economic growth - both economic and rational arguments, not moral ones. Racial equality was a moral issue, but a more universal one - yes, it had opposition, but it also had significant support and the equality of all men (if not all people) is a tenet of modern society post, at least, the French revolution.
However, continuing to legislate against pornography or homosexuality effectively limits personal freedoms in a more direct way. Yes, environmental measures and racial equality might do so as well, but less directly (though have you heard the arguments from the far right in the USA about over-turning the Civil Rights Act because it prevents shopkeepers from exercising their personal choice about who they should and shouldn't let into their stores?). As personal liberty is also a tenet of modern Western society, legislation that offends it directly is always more controversial.
Further, as Bizmarck said, politics is the art of the possible. To legislate something radical you need at least some support. Racial equality in the 60s and the environment now both had a groundswell of support behind them, despite a bunch of opposition. LBJ in the US pushed ahead with the Civil Rights Act knowing that it would lose them votes in the South for a generation, but he still had sufficient support to do it. I think we're approaching that point on the environment too. However, while limits on pornography and homosexuality do have some support, the trend is against them. This all makes sense - it's just democracy at work. In general, governments should do what the majority of people want.
But, none of this addresses the 'should' question.
I think that personally I tend more towards the view (perhaps Lockean?) that the chief role of government in morality is to prevent us from harming each other. Racial equality and the environment to me are obvious examples of areas that we harm each other (or future generations) and there is space for government intervention. I can less see how homosexuality and pornography (at least that made in the absence of violence or coercion) cause harm to others. Back to abortion - I think it should be legislated because it is a question of harm to others who can't protect themselves, but society as a whole doesn't see it that way and democracy rules.
Back to personal ethics: I think that for those who are not Christian they are going to sin anyway - the bigger issue is whether they love God or not and simply legislating against their sin won't lead them to God. Perhaps some of my thinking here comes from Romans 1 - they rejected God and he handed them over to their lusts.
Thanks Tim, I think I'd agree with most of that. I'm not really a fan of Locke (his account is deceptively ahistorical and abstracts the self from the communities and visions of the good that form it. He also more or less erases the indigenous inhabitants of the New World and so hides the injustice behind his account), but that is a minor point - the idea that governments are there primarily (or exclusively) to limit harms is first put forcefully and clearly by Augustine (drawing on the NT, of course, but he is making explicit what is more implicit there). There is also a Thomistic tradition that sees a broader role for government, but on this I think I'm Augustinian.
Thanks. This is something I should read up on more - I haven't read very much political philosophy - a small amount of Locke and a smaller again amount of Hobbes and Rawls. Like you I'm not really a fan of Locke, including for the reasons you said.
More broadly, I'm also not overall a fan of the view that the role of government is exclusively (or even primarily) to limit harm to each other. The end point of this view is that the role of government is to protect private property (that's Locke's view, if I recall correctly). I take a more expansive view and think that government can play a role in improving society and that there is a role for government in depriving some people of some of their property.
That said, I think it's still a useful starting point when thinking through issues that require balancing personal freedom against social good.
This link is only made (role of government limited to property protection) if we follow Locke's understanding of property. Augustine had a very different approach, in which all property is God's and held on trust and so a starving beggar is allowed to "steal" food he and his family needs in anticipation of the charity that his "victim" ought to have been displaying. This hasn't been the majority view in the tradition, but it does illustrate that a punishing wrongdoing account needn't be centred on the protection of private property. O'Donovan also argues that the harms that a responsible government might seek to avoid can be proactive (i.e. the government can anticipate likely or possible harms and seek to head them off at the pass).
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