Legislating Morality

Prior to this week I had somewhat naively held that we could not legislate morality to be a fact of life. I had one teacher who taught it, and as I have never really been interested in politics or political ideas, I simply accepted it. Though it was something I did not think too deeply about, I think it was a very important point in my web of "I don't bother with politics because they aren't important." If politics can't do anything moral then what good are they.

The first attack on my safe little turtle shell came when Peter Feaver said that the idea that you can't legislate morality was foolish because all legislation contains in it the seed of morality. There is should to every piece of legislation. It makes a moral claim: doing as the law says is more right than doing what it doesn't say. In a way all laws must be an expression of someone's judgment on an issue. I think that was the basic idea of what he said, but I imagine his final argument is much more nuanced and has a lot more to say. Even as it is, the argument has a point, we are lawmakers in America and in some way the laws carry moral force, so we must consider carefully how we govern ourselves.

But tonight the other shoe dropped. Prabhu Guptara brought up the idea in economics that by removing legislation - even ineffective legislation - we may be legitimizing practices that are sinful. It somehow let loose a flurry of ideas in my mind about the subject which I think may have been pent up because I believed legislation of morality to be impossible.

First the idea was that legislation of morality really is possible. God gave us laws and they derive their moral force from Him -- the ultimate arbiter of morality and the law. And he has explicitly given governments authority from heaven -- even the rule or Nero. So governmental law carries morally binding aspects.

Second is the idea that without God and a strong moral compass, that laws are all we are left with to influence how people behave. This idea is a little bit scary, but I believe many people today do not ask the question whether an act is right or wrong but only whether it is legal or illegal. Legality is essentially standing in as a substitute for morals in a time when most people do not have a strong moral sense. I actually think many people may not even have the faculties to think about what is "right or wrong" let alone come to a correct answer. Law is what we have left in an age of crumbling morals.

The third idea is … oh crap! What are we going to do in an age without morals! If Laws are in some way an expression of morality and our morals go in the toilette, then our laws will follow. Then are we back to state of nature? That is a scary place that I think none of us want to see.

So I've come to the conclusion now that legislature will dictate some level of morality, especially if we don't have a Church or something to provide some level of underlying moral structure. And that without that underlying moral structure, the laws will eventually collapse. So what do we do?

Well one reaction might be to try to get as many Christian laws passed as possible in some sort of power play in Washington. However, the backlash could be terrible. Making it illegal to be homosexual would result in a lot more criminals which could feed into a new sort of gay mafia or something to that effect as people break the laws which they are bound to do.

On the other hand we can't give up either, saying that well because the culture doesn't have our morality, we just have to try to play to the middle and legislate whatever the general idea at the time is. For laws which can be changed whenever we feel like it aren't really laws.

So we are left with Feaver's mushy middle where we must engage the culture boldly knowing that we are making moral decisions, yet be aware that we are working in fallen world. The laws should be attempting to truly bring people into the good without pushing so hard that we turn everyone into a hardened criminal or make the law irrelevant.

It's time for me to hang on tight, politics I'm sure will be an interesting ride.