Legislating Morality - What is (or should be) the relationship between the Law and Morals?

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The Giver

Better at Inertia than Galileo
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We have a lot of legalfags here at the Farms, and we often find ourselves discussing our favorite lolcows' legal troubles. One interesting issue that sometimes lurks in the background of these sorts of legal discussion is whether or not we should be legislating morality.

This can go both ways. For instance, a democrat might argue: "We shouldn't outlaw gay marriage, even if many Americans think it is immoral. The government isn't in the business of legislating how we ought to morally live our lives."

Or, a Republican might argue: "At least some kinds of abortion constitute murder. Murder is deeply immoral, so we should outlaw those sorts of abortions."

The problem seems to be that people have somewhat contradictory intuitions about the relationship between the law and morals. For instance, everyone seems to want to say that infidelity is deeply immoral, but nobody wants to outlaw infidelity. But, it also seems pretty plausible that many of our laws are, in fact, tracking morality; murder is plausibly illegal (at least in part) because it is deeply immoral.

My question to you Kiwis is, what should be the relationship between the law and morality? Should we be in the business of passing laws to prevent immoral behavior? If so, how do we decide what moral beliefs are ok to legislate?

One obvious answer might be that we should only legislate morals insofar as being immoral harms another person. However, I'm not sure this can be maintained. After all, cheating on your spouse of 10 years undoubtably hurts your spouse and children, yet we don't seem to think it should be illegal. It also seems clear that, if I steal $10 from Donald Trump, my actions are illegal and immoral, but it doesn't seem clear that Trump (given his wealth) has suffered any real harm.
 

Gym Leader Elesa

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One obvious answer might be that we should only legislate morals insofar as being immoral harms another person. However, I'm not sure this can be maintained. After all, cheating on your spouse of 10 years undoubtably hurts your spouse and children, yet we don't seem to think it should be illegal. It also seems clear that, if I steal $10 from Donald Trump, my actions are illegal and immoral, but it doesn't seem clear that Trump (given his wealth) has suffered any real harm.

How would you decide in a strict legal sense that infidelity harms your "spouse of 10 years"? You can't prove or verify emotional pain, and someone could just fake it. You may say that this is extremely implausible, but "shadow of a doubt" holds. It is far from undoubted when you have to pull up proof that it harms them in court. Is crying proof? Plenty of liars cry.

And what constitutes "real" harm in your mind? Harm you do not notice is still harm- in your example Donald Trump is less well off than he was before, and that is quantifiable. So the answers to these questions are fairly obvious.

One obvious answer might be that we should only legislate morals insofar as being immoral harms another person.

So this is as easy to maintain as it always was.
 

The Giver

Better at Inertia than Galileo
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How would you decide in a strict legal sense that infidelity harms your "spouse of 10 years"? You can't prove or verify emotional pain, and someone could just fake it. You may say that this is extremely implausible, but "shadow of a doubt" holds. It is far from undoubted when you have to pull up proof that it harms them in court. Is crying proof? Plenty of liars cry.
I was speaking somewhat vaguely on purpose, but to answer your question it seems like it wouldn't be too hard to establish harm in the case of infidelity beyond a "reasonable" doubt, at least in some cases. Lots of time, kids with parents going through a divorce start behaving more poorly, start having emotional problems, start doing worse in school, etc.

However, if you don't like that example, nothing in my main point really hangs on it. Just insert your favorite example of something you think is immoral (or harms someone) that nevertheless shouldn't be illegal. Certain types of lying might be another example; If I lie to my friends about picking them up at the airport, I've done something immoral (I lied without justification) and I've caused them harm (we might cash this out emotionally or in terms of the financial cost of paying for a cab / rental car), but obviously I haven't done anything illegal.

If you insist that "harm" in a legal sense needs to be physical harm, then I think we could still rig up some example where I act immorally, someone has some physical harm done to them as a result, but I am not legally responsible. One way this could happen is if I kick my 18 year old son out of my house without any reason. I might further suppose that this son of mine is in no position to feed/house himself, such that I can reasonably expect his physical health to take a nose dive. I've clearly done something immoral and caused harm, but it isn't like I'm going to be put in jail.

I'd also say that I don't need to prove something beyond "the shadow of a doubt", I just need to prove it beyond a "reasonable doubt", which seems to be importantly different.
 

Ravenor

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This is one of those tricky situations, the law is able to to right a injustice or cause a injustice however how we define morrality has a impact on this.

If we are talking about Morality as it's defined by religions, then it's normally either self serving to the believers and that's not how laws should work, the do hit the points we can all agree on like murder, being honest etc, but there are others that are personal peve's of the founders of the religion or the people that control the was scripture is interpreted and that's not how laws should work.

The thing is, in the human condition it's very hard to separate our own thoughts and feelings from what's right.

I mean using a analog to your trump example, I'd be quite happy if some one gave Nigel Farrarge a good kicking, however much I dislike the man I know that is assault and the person who did it should be prosecuted, but I'd also be happy for the person that did it to get a tap on the wrist, But I wouldn't be happy if the same person gave me a kicking and I'd want the book thrown at them by the library brick by brick.

Law's should be kept on topic and to have the Human element removed from them as much as possible, religious based Mortality doesn't have a place in laws that effect people outside of that faith as your faith should be personal and if you decide you need to add those tenants of your faith to how you make your own judgements so be it, but because you personally don't agree with something does not make it a crime no mater how much you wish it did.
 

AnOminous

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Most of the most important laws, especially criminal laws, have a moral component. Where they do, though, they generally reflect what would be considered universal morality rather than personal morality or morality based on denominational religious belief. For instance, the bedrock of criminal law is prohibiting murder and other forms of violence against the person, as well as depriving others of property by force or deceit.

These reflect the nearly universal beliefs that violence against the person or property violates universally held rights and is, in a word, bad.

However, there are also laws relating to things where there is not universal agreement, like abortion, and in those, some subjective weighing and balancing of interests comes into play. For instance, in the current Roe v. Wade model, jurisprudence essentially recognizes fetal life in the first trimester as being an individual matter the state has no say in, while the state can regulate or prohibit, to some degree, abortion in the last trimester and there is some valid state concern even in the second.
 

King Kong... with wings?

6 inches long and feeling pretty fierce
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I am not sure if this would be possible, but here's my suggestion on the issue. There has to be a strict guideline on what defines "damage" or "injury" because with those, it can eliminate some of the grey areas in law. But I'm not anywhere near literate in law like someone on this thread is
 

Wallace

Cram it in me, baby!
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Usually when I think of legislating morality, I think of Prohibition, and how that magically made all alcohol go away forever.

There's always going to be demand for things that are subjectively immoral. Alcohol, weed, cocaine, guns, abortion... Making them illegal won't make them go away. If anything, it will only exacerbate the mischief they cause.
 

Kazami Yuuka

Enjoy the ment
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The problem seems to be that people have somewhat contradictory intuitions about the relationship between the law and morals. For instance, everyone seems to want to say that infidelity is deeply immoral, but nobody wants to outlaw infidelity. But, it also seems pretty plausible that many of our laws are, in fact, tracking morality; murder is plausibly illegal (at least in part) because it is deeply immoral.

Infidelity within marriage is certainly an interesting issue. Marriage is a voluntary union that embodies certain values (not necessarily religious), therefore the state has the responsibility to make sure the basic tenets of marriage are upheld in the event of a dispute (afterall, bigamy is still a huge crime, and the SCOTUS ain't intervening anytime soon). If a lecher wants to go about, well, lechery, without the potential for legal consequences, then they shouldn't enter the voluntary contract of marriage (viewing it as solely a contract is flawed, but in this circumstance it is convenient to do so).

My question to you Kiwis is, what should be the relationship between the law and morality? Should we be in the business of passing laws to prevent immoral behavior? If so, how do we decide what moral beliefs are ok to legislate?

Laws nearly always enforces morality in some way, because nearly every law can be justified with the phrase "We have the duty to...". For example, the prohibition on drunk driving can be justified in that the government has a duty to protect citizens from potentially injurious choices, whether it causes harm to them or others. Passing laws to prevent immorality is fine and should be encouraged, however, there needs to be little room for subjectivity. What qualifies as an immoral behavior would have to be clearly defined, to prevent abuse of vague definitions. Additionally, the justification for the passage of a moral law should never be allowed to be officially religious, as setting up a government as an agent to enforce any religion will almost certainly lead to abuse. However, there would be nothing wrong with a proposed moral law that stems from religion, it just couldn't be solely from religion.

As for what moral beliefs are okay to legislate, it is important to consider the impact on the person themselves, the impact on others, and the damage to society. Going back to the example of drunk driving, the effects of all three factors are readily quantifiable. Generally speaking, anything that meets two of the three factors makes a good candidate for the introduction of a morality law. Interestingly enough, the passage of a morality law could potentially run afoul of these factors themselves. If a potential morality law would conflict heavily with two of the three factors itself, the matter of trying to legislate it should be dropped, as it conflicts with the very thing it tries to prevent. Banning mixed fiber clothing, for example, would represent a very little gain in morality, will causing a great deal of harm and issue to society (e.g. economic issues with textile factories), and other citizens (e.g. the generally recognized right to wear the type of clothing they want).

One obvious answer might be that we should only legislate morals insofar as being immoral harms another person. However, I'm not sure this can be maintained. After all, cheating on your spouse of 10 years undoubtably hurts your spouse and children, yet we don't seem to think it should be illegal. It also seems clear that, if I steal $10 from Donald Trump, my actions are illegal and immoral, but it doesn't seem clear that Trump (given his wealth) has suffered any real harm.

Perhaps the example of adultery goes back to the treating of it like a contract. If marriage is treated as a merely a contractual partnership, it does make sense that many view adultery as not deserving of criminalization, as it makes it seem more like breaking a contract with a business (e.g. defaulting on a loan), rather than a crime against a person.

Conclusion: I'm all over the place with this one. I said some things that make sense, and some that don't.
 

Bassomatic

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I've always thought all laws even the most basic are a law of morals. Forgive picking an extreme situation but it tends to be easier for most to follow. A law about murder is even a moral law, we have reasons like crimes of passion or self defense when murder is ok. But with out saying why can't I murder Dave because his shirt is stupid? Because it's wrong and it's illegal. Now if Dave breaks into my house with a machete, it's ok to shoot him.

Why do I and society think ending Dave's life over a tacky shirt is wrong? Morals. Collective agreement on them. Same reason why if Dave tries to kill me I can terminate his life, we agree life matters to a point you can protect it.

In regards to morals of day to day like smoking drinking, etc. I've always felt they were wrong to impose and as mentioned before Prohibition caused a crime spree and empire larger than ever seen. In countries banning abortion for example, one of the biggest causes of death to women are.... you guessed it.

Anything with a black market tends to be quite seedy and awful, like in countries where prostitution is illegal, you have sex slaves vs people whom choose to take up that life.

In short, they tend not to work, make more crime and over all just take some happiness and freedoms away from the common person who may or may not even use these services.
 

buffaloWildWings

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I've always thought all laws even the most basic are a law of morals. Forgive picking an extreme situation but it tends to be easier for most to follow. A law about murder is even a moral law, we have reasons like crimes of passion or self defense when murder is ok. But with out saying why can't I murder Dave because his shirt is stupid? Because it's wrong and it's illegal. Now if Dave breaks into my house with a machete, it's ok to shoot him.

Why do I and society think ending Dave's life over a tacky shirt is wrong? Morals. Collective agreement on them. Same reason why if Dave tries to kill me I can terminate his life, we agree life matters to a point you can protect it.

In regards to morals of day to day like smoking drinking, etc. I've always felt they were wrong to impose and as mentioned before Prohibition caused a crime spree and empire larger than ever seen. In countries banning abortion for example, one of the biggest causes of death to women are.... you guessed it.

Anything with a black market tends to be quite seedy and awful, like in countries where prostitution is illegal, you have sex slaves vs people whom choose to take up that life.

In short, they tend not to work, make more crime and over all just take some happiness and freedoms away from the common person who may or may not even use these services.
My opinion is that laws are there to make society work, not to enforce morality.
They are society's source code and, as such, are fairly amoral.
 

Bassomatic

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I dig that theory and I'm not well versed at all in the philosophy of this stuff. Maybe I'm a bit naive/optimistic, but if there was no rape/murder etc laws I don't think we'd turn into a bunch of savages over night. At least I know I wouldn't go on a GTA style spree just because I could. I don't think I'm some shining beacon of right or good for it either.
 

Raziel

Vae victis
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My opinion is that laws are there to make society work, not to enforce morality.
They are society's source code and, as such, are fairly amoral.
Source Codes are predictable and manageable, people are not. Besides, laws were and are made by people, who make/made them according to their personal experience and bias, thus they essentially project their own morality on them, there are obviously numerous other factors that go into making a law, but in a nutshell it's constant process that i think will never actually be finished, since no matter what kind of law you'll in-force, people will find a loophole in it,thus a new one has to made to counter that one and so on so forth. Also morality changes as well, what was morally O.K. 1000 years ago, is immoral now (slaves, human sacrifices, cannibalism, etc.). In a sense your assessment is right, that much like any "Source Code", laws require constant debugging and upgrades to support it.
 

Euphues Evenlede

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Any arguments against the legislation of moral principles must appeal to moral principles higher than the ones argued against. You cannot argue against legislating morality qua morality. Even arguments against legislation itself (anarchism) must appeal to certain moral principles violated by the implementation of government. The conflict is not between amorality and morality but rather between different principles of morality. (And yes, even simple statements such as "we must make a functional society" constitute moral principles.)