Sunday, March 11, 2012

Are Law and Morality Inextricably Linked?

I recently had a back-and-forth conversation with a fellow conservative blogger who claimed that you cannot legislate morality.  This is untrue.  Laws legislate morality all the time.  If the law didn't legislate morality then we as a society would permit such crimes as murder, theft, sexual harassment, rape, sexual assault, prostitution, and speeding and as a result there would be complete chaos.  The law and morality are inextricably linked.  It is impossible to remove morality from the law.  Laws help to form our moral compass. In addition, these laws help to change hearts, minds, and souls.  Since Michael Bauman is able to explain that the law and morality go hand-in-hand, that all laws legislate morality better than I am able to, I will leave you with his arguments on this subject which he presents in his article, Law and Morality.

Because every law springs from a system of values and beliefs, every law is an instance of legislating Morality. Further, because a nation’s laws always exercise a pedagogical or teaching influence, law inescapably exerts a shaping effect over the beliefs, character, and actions of the nation’s citizens, whether for good or ill. Those who seek to separate morality from law, therefore, are in pursuit both of the impossible and the destructive. The question before us is never whether or not to legislate morality, but which moral system ought to be made legally binding.

The constant or determined repetition of an error does not make it true. Errors are errors regardless of their prevalence or the persistence of those who advance them. Indeed, given the egregious foolishness of some of our most widespread beliefs in the recent past, the great popularity or predominance of a notion sometimes is enough to raise suspicions about its truthfulness. We moderns too eagerly and too often live our lives on the basis of insupportable, indefensible, half-true “truisms” that cannot stand up to close analysis. The assertion that you cannot legislate morality is just such a notion. No matter how often one hears that you cannot legislate morality, the truth is that you can legislate nothing else.

All laws, whether prescriptive or prohibitive, legislate morality. All laws, regardless of their content or their intent, arise from a system of values, from a belief that some things are right and others wrong, that some things are good and others bad, that some things are better and others worse. In the formulation and enforcement of law, the question is never whether or not morality will be legislated, but which one. That question is fundamentally important because not all systems of morality are equal. Some are wise, others foolish. Few are still in their first incarnation, nearly all having been enshrined as law at some time or place, often with predictable results. For better or worse, every piece of legislation touches directly or indirectly on moral issues, or is based on moral judgments and evaluations concerning what it is we want or believe ought to be, what it is we want or believe we ought to produce and preserve.

When the Founding Fathers drafted our original Constitution, they did so on the basis of competing belief systems, competing assertions of right and wrong, which they endeavored to build into the Constitution. One or more of those belief systems permitted slavery, others did not. No side in the slavery debate at the Constitutional convention argued that you could not legislate morality. They all recognized that notion as balderdash. They knew that indeed you could legislate morality, and they intended for that legislated morality to be theirs.

Nor did any side in the struggle to legislate morality at our nation’s founding say to its opponents that trying to legislate morality was a breach of the wall of separation between church and state. Morality, after all, is not a church. They would have laughed at the confusion of mind revealed in one who thought that separating church from state meant separating morality from law. They wanted the nation to be moral. They wanted its laws to be just. But they did not want to give any one church a national legal advantage over the others. They did not want the nation to be Presbyterian, Baptist, or Roman Catholic, which is a far different issue from whether or not to have ethics-driven law.1 Under the Constitution the Founders enshrined freedom of religion, not freedom from religion. In seeking to avoid a state-established church, they were not thereby establishing secularism or separating law from morality.

The very fact that the Founders were creating a new Constitution for their fledgling nation arose because they understood the actions of King George to be morally evil, and politically unjust.2 They all knew quite well that morality belonged in politics, in fact that politics was simply morality applied to the public square, to the public’s business.

The Founders sought to establish what they called an “ordered liberty.” The order they sought was provided in part by the morality they intended to enshrine in law. By seeking ordered liberty, the Founders were not seeking anything new or unprecedented in political thought or in political history. They well knew from reading the ancient words of  Aristotle, for example, that morality encoded in civil law helped to provide order, since law inescapably has a teaching function, or pedagogical effect. Law teaches the citizens what is right and good, and it punishes those who cannot or will not learn that lesson.  CONTINUED 

Adrienne from Adrienne's Corner has a good posting on this subject here. Please go and check it out. 


Ron Alford said...

Sandra Fluke is a freeloading, typical liberal. She got a degree in "Feminist, Gender, & Sexuality Studies" from Cornell, along with a degree in "Policy Analysis and Management."

Policy Analysis and Management? There's a friggin' degree in THAT? That's almost as amazing as a degree in Feminist Gender crap.

And these losers wonder why their future is in the cardboard huts occupied by the Occupy Wall Street sewage?

And since the freeloading President of Reproductive Rights (???) at age 30 can't find a real job anywhere else, aka a public sector job, she trots to a Catholic University and then begins demanding free birth control.

What the fornication has our country come to?

Even worse, what the fornication has our BUSINESSES come to?

Rush Limbaugh illustrated the absurdity of Fluke's absurdity and the feminists and squat-to-urinate males species of the nation had a collective PMS menstrual cycle.

And what do these bleeding heart progressive liberals idiots do. .

They call for boycotts.

Liberals have to call on others to boycott because the vast majority of liberals are hypocrites when it comes to their own money. They prefer to tell me how to spend my money on issues, while they donate little to nothing to the very causes they ram down our throats.

Teresa said...

Bravo! Spot on Ron! I am in full agreement with you.

Thank you for your comment.

Just a conservative girl said...

So how many more laws will they have to pass to change your heart and mind on abortion? I would say it is safe to say that your moral compass will always have you against abortion. There are no amount of laws that will change that.

They passed civil rights laws in the late 50's. That did very little, next to nothing really. When things really started to change is when MLK realized he needed to broach the topic in terms of hearts and minds. Once those images of the dogs, the water hoses, people being beaten bloody on TV screens across the country is what forced the law in the sixties that actually had some teeth to it. LBJ fought those laws tooth and nail until he forced to sign them. Why? Because MLK was able to change the hearts and minds of people, he marketed the movement. Also, almost 50 years later racism still exists. Not to the same extent, but it is still there. I know people who are out and out racists. The law didn't change that. They have to come to that on their own. No one can force it.

Many of our laws are in place for a sense of morality, but also for a sense of property rights and civil liberties. Murder isn't just immoral, it also goes against the victims civil right to life. Same with theft, you are violating the rights of someone else as well as being immoral.

We are a large and diverse nation. Morality means different things to different people. Your morality comes from your faith in large part. There are other people who don't share your faith, but are as equally as moral. Just for a different reason. They arrive at from a totally different perspective. I am unwilling to say that they are wrong simply because they came from a different place than I would. Morality always has and always will come from within. Your strong faith comes because you have internalized it. Not because you show up in sit in a pew once a week.

Silverfiddle said...


I've just wrapped up reading Hayek's "Constitution of Liberty," which leads you to read pieces of Sir Edward Coke and William Blackstone.

Their philosophy was that law is not made, it is discovered among the mores and society of a people. So an unjust law was one that was not already indigenous in the minds and actions of the people.

That forms one part of the larger concept of the rule of law.

We really have strayed, haven't we?

Kevin T. Rice said...


It seems obvious to me that legislative changes are very much a part of the whole climate of social change in the 50s and 60s regarding race relations. It put the protesters on a moral high ground that was greater that it would have been without them, and that the change in hearts and minds that was produced by Dr. King's leadership and application of nonviolent resistance would have been a colossal failure if it hadn't led to further legislative reform. Since you grant that racism is less of a problem, it strikes me as strange that you think that changes in law had nothing to do with that whatsoever. Pointing out that racism still exists is trivial - the same could be said of fraud, larceny and murder but I doubt you would argue that laws restricting people from those categories of misdeeds are ineffective. After all, those violate "civil rights", (a totally arbitrary artificial construct which you seem to be elevating above their own natural basis in objective morality).

The most baffling part of your comment is your insistence that morality means different things to different people who are equally moral. Equal in their differences? Morality between distinct cultures and religious groups does not differ very much in the broad strokes the way art and music differ along those areas of division, but only in the fine details. The same law runs through all systems of morality - the law of human nature, what works for us as human beings, and since all human beings have the same human nature, there is only one Natural Law for us. All morality springs from our intuitive sense of that Lex Naturalis. Our perceptions are formed and colored from our various cultural perspectives, but at the bottom, what we are all drawing from is the same Law of Human Nature referenced by Thomas Jefferson in the Declaration of Independence, "the Law of Nature and of Nature's God", the only possible logical basis for a meaningful disagreement between different systems of law and moral codes.

Teresa said...


The peoples' hearts were influenced after the law was enacted. These people needed the law to nudge their hearts in the right direction. If the law wasn't influential in changing persons' attitudes toward racism why didn't the majority of people change their attitudes before the law was instituted?

Are you really claiming just because it may have taken time to change attitudes of racism and that the change in law did not produce immediate conversion of hearts & minds that the law had no effect on changing peoples' attitudes?

I am puzzled as to how a proclaimed conservative wouldn't think that laws could have an impact on a person's morality, their moral thinking or attitudes. But, then again I have noticed that I have noticed from your words that you subscribe more to Ron Paul libertarianism than conservatism.

republicanmother said...


I don't murder anyone not because of any law or fear of punishment, but because I believe it to be wrong and I fear God. That is the key restraining factor not any law.

You cannot coerce people into doing right with the police power of the State (law). If you have a big enough police state, you can get the behavior you seek, but will never have the hearts of the people. Take Saudi Arabia, for instance, they really do have less crime.

Morality is formed by the family, and as long it is sound, law more easily flows from a shared morality. When the family goes, so does the morality, and what we have is a lot of ad hoc political law made on the whims of those in power.

When law is not rooted in morality, it becomes tyranny.

Teresa said...

Republican Mother,

You may not murder a person because it is wrong due the teachings of your faith but others may not follow your line of thinking but follow the law because that is what the law states. There are many others who either do not subscribe to any faith or even believe in God that follow the law because they know that there will be consequences for their actions if they break the law. Some people need that type of coercion in order to make the right decision to follow the law.

When law is not rooted in morality, it becomes tyranny."

This statement contradicts your thinking that law does not provide a basis for what is right and wrong and thus the law does have an effect on what is perceived to be moral and immoral. Your statement supports my thesis that law and morality are linked.