Encore! Law and Morality Part II

My post yesterday was a bit heavy going so I thought I should throw something up today in case I scared anyone off :-)  Since my original post entitled 'Law and Morality' was such a hit (I got zero comments) I figured this might be a good chance to refine my views.

I am aware that my blog is turning into something of an outlet for the views of Robert P. George.  He really is one of my heroes and I am sorry for inundating my readers (all 3 of you) with a constant deluge of Catholic philosophy.  But that is the kick I am on lately, so deal with it.  I am reading a couple of books by Dr. George right now and he is certainly changing my views on the propriety of legislating personal morality.  I'll use an example to illustrate:

As explained in an earlier post (Law and Morality), in my more libertarian days (like 3 weeks ago...yeah I'm that unstable) I considered racial discrimination laws to be immoral because they violate private property rights.  Why shouldn't someone have the right to do what they want on their own property?  If the general populace finds it vile that a business owner excludes blacks, the populace will not patronize that business and it will lose money.

While I still may think that it is more prudent for the government to refrain from legislating on racial discrimination issues, I do not regard it as immoral for the government to do so.  I have come to believe that the whole idea of denying the government the right to 'legislate morality' is a 'practical absurdity' (in the words of Obama).  As Obama said in a 2006 speech, "Our law is by definition a codification of morality."  The rights that libertarians do esteem as appropriate for government enforcement (defense of life, liberty, property) are so esteemed based on a moral claim.  Why are libertarians okay with the government enforcing these moral issues, but not other moral issues?

In the pre-civil rights era, there were states that actually had laws on the books that were meant to promote racism.  These laws were clearly unjust.  They were not unjust, however, because they legislated personal morality.  They were unjust because they embodied a false morality.  A racist morality. 

There may be prudential reasons for denying the government the power to regulate certain aspects of personal morality, such as:

• A concern that the power of the state will grow excessively as a consequence
• A high cost to enforce, with minimal or questionable returns on the investment (the war on drugs would be a good example of this one)

I do not believe that one can claim that it is immoral for government to legislate on matters of personal morality though.  I think it is better to say that in particular areas of morality it is not prudential for the government to legislate.  It is a matter of practical judgment.  And what is prudent in one epoch or what is prudent in one culture, may not be prudent in another epoch or culture.  The foundational questions when considering a particular piece of morals legislation are:  Is the morality being considered for legislation correct?  If so, is it prudent to regulate this particular moral truth?  In many cases we may answer yes to the first question, but no to the second. 

As members of the LDS church, we often sense that morals legislation deprives people of agency.  It is often mentioned that, "It was Satan's plan to destroy agency.  Forcing people to do good is exactly what Satan wants."  I have determined (with the help of a friend, and you KNOW who you are:) that this is a misunderstanding of scripture.  Read the verses again: Moses 4:1-3

1 And I, the ^aLord God, spake unto Moses, saying: That ^bSatan, whom thou hast commanded in the name of mine Only Begotten, is the same which was from the ^cbeginning, and he came before me, saying—Behold, here am I, send me, I will be thy son, and I will ^dredeem all mankind, that one soul shall not be lost, and surely ^eI will do it; wherefore ^fgive me thine honor.

  2 But, behold, my Beloved ^aSon, which was my Beloved and ^bChosen from the beginning, said unto me—^cFather, thy ^dwill be done, and the ^eglory be thine forever.

  3 Wherefore, because that ^aSatan ^brebelled against me, and sought to destroy the ^cagency of man, which I, the Lord God, had given him, and also, that I should give unto him mine own power; by the power of mine Only Begotten, I caused that he should be ^dcast down

Satan made at least two mistakes:

• He rebelled against God.  God had already presented his plan, and Satan thought he had a better idea.  This was Lucifer's pride
• He offered to 'redeem all mankind that one soul shall not be lost'.  To redeem means to make amends for wrongdoing.  It means to remove the consequences.  No where do the scriptures tell us that Satan sought to destroy the agency of man by trying to 'make them do the right thing.'  Instead, it seems, he sought to destroy the agency of man by promising to remove the consequences of their bad decisions.  He was telling God's children that they could come to earth, do whatever they wanted, not repent, and still be saved. Since this plan was clearly an illusion, God recognized that Satan was setting a trap for His children whereby they would become Lucifer's slaves.  And we can see that those who did follow Satan are enslaved to him.  I highly doubt that Satan is currently depriving any of his followers of agency by employing a tactic whereby he 'forces them to do good.'  Their 'loss of agency' is reflected in their inability to make choices whatsoever.  They are completely in Satan's control.

The idea that morals legislation takes away agency is a mistaken interpretation.  Man is not being controlled by the law.  The law is a teacher, and man still has the choice whether or not to obey the law.  Those who follow Satan and lose their agency have no power of choice whatsoever.  To claim that laws remove agency when legislating personal morality, one would also need to claim that laws prohibiting murder remove agency.  But clearly people can still choose to murder. 

So to repeat, laws are only immoral when they embody a false morality.  That being said, it may very well be prudent for us to deny the government power of enforcement in certain moral spheres.

Law and Morality

After finishing my last post, the voice of Robert P. George was ringing in my ears.  If you have read any of my previous posts about marriage, you know what a fan I am of Professor George.  He has made headlines recently as one of the authors of the "The Manhattan Declaration: A Call to Christian Conscience" (link here), and as the subject of a piece in the New York Times Magazine December 20th entitled "Robert P. George, the Conservative-Christian Big Thinker" (link to article here).  Professor George is a tenured professor at Princeton where he lectures on constitutional interpretation, civil liberties, and the philosophy of law.

In my last post I castigated racial-discrimination laws because they violate private property rights.  I was not arguing that racial discrimination is okay.  I was arguing that government should not regulate this because it is a matter of moral interpretation and not the place of the government.  Here's a clip from a talk that Professor George gave to BYU students in 2008 (link to speech here) where he comments on this topic of law and morality (italics added):

 "It is a profound mistake to suppose that  the principle of limited government is rooted in the denial of moral truth, or a putative requirement for governments to refrain from acting on the basis of judgments about moral truths.  For our commitment to limited government is itself the fruit of moral conviction.  It is a moral belief.  It is not a belief founded on the idea that nobody can know the moral truth.  Quite the opposite.  It is an assertion of something held out to be 'the moral truth.'  This conviction is ultimately founded upon truths that our nation's founders claimed as self-evident, namely: that all men are created equal.  They are endowed by their Creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness.  At the foundation is the proposition that each human being, every member of the human family, possesses a profound, inherent, and equal dignity simply by virtue of his nature as a rational creature. 

Now to speak of truth frightens some people today.  In the type of University environments that I usually spend my time people get very nervous when you talk about 'the truth'.  They evidently believe that people who claim to know the truth about anything, and especially about moral matters, are fundamentalists and potential totalitarians.  But as my friend, Professor (??), has patiently explained, those on the other side of the great moral debates make truth claims all the time.  They assert their positions with no less confidence and no more doubt than one finds in pro-lifers or defenders of conjugal marriage.  They proclaim for example, not as some mere matter of abstract opinion, but as something true, that women have a fundamental right even to elective abortion.  They maintain, with all the conviction you can have when speaking something you believe to be true, that love makes a family.  The question then, is not whether there are truths about such things as the morality of elective abortion and the nature of marriage.  The question in each case is, "What is the truth?""

So regarding my stance on private property rights, I think Professor George would ask me this: Why should the government respect property rights?  I would answer that it is wrong for the government, or anyone else to tell me what to do with my property.  In other words, I would be asking the law to recognize my moral right to my property.  Since we have established that I am okay with the law enforcing this particular moral truth, why am I opposed to the law enforcing another moral truth? Namely, the truth that all men are created equal, regardless of their race, and deserve equal treatment as such.  Even on someone's private property.

Darn this Professor George and his superior intellect.  So now I ask myself these questions:  Are there certain moral truths that the government should enforce, and others that it should not?  If so, how does a society determine which moral categories are fair game for legal enforcement?  And beyond that, what happens when laws enforcing morality come in conflict with each other (i.e. private property rights vs. right to not be discriminated against)?  I think a strict libertarian would answer that since the government derives its just power from the consent of the governed, the government can only enforce morals on the citizenry that an individual, in the absence of government, could enforce on his neighbor.  In other words, people can only lend to the government powers that they themselves possess.

For example, we all recognize stealing as wrong.  If my neighbor steals one of my cars, I have the right to force my neighbor to give it back to me.  Since I posess this power, I can empower my agent, the government, to take the car back for me.  Now think of a racial discrimination example:  What if I observe that my neighbor never lets black people on his property.  Do I have the right to force him to let black people on his property?  It does not seem so.  Therefore I do not have the right to empower my agent, the government, to force my neighbor to allow black people on his property.

It is for this reason that libertarians limit the powers of government to the defense of life, liberty, and property.  It all seems quite reasonable until you start reading where this logic takes you by hard core libertarians.  A few years ago I was listening to a libertarian podcast entitled Free Talk Live.  The host of the show was defending abortion, and even infanticide if I remember right, on the grounds that an embryo, or small baby is not yet a rational creature with the capability of defending its rights.  Therefore, an infant cannot logically empower its agent, the state, to defend its rights.  Therefore the infant is not guaranteed protection under the law.  Or something like that.  Like I said, it gets pretty bizarre.

I think Professor George would argue that the libertarian view is nonsense.  He would agree with President Obama that, "our law is, by definition, a codification of morality. So to say that men and women should not inject their 'personal morality' into public policy debates is a practical absurdity." (link to Obama speech here) In his talk to the students at BYU, Professor George says this:

"We must not adopt a merely pragmatic understanding, or speak only of practical considerations, in addressing the pressing, morally charged issues of our day.  Sound positions cannot be effectively advanced by citizens and statesmen who are unwilling, or unable, to engage moral arguments.  That is why we should, in my opinion, rededicate ourselves to understanding and making the moral argument for, for example, the sanctity of human life in all stages and conditions, and the dignity of marriage as the conjugal union of a man and a woman. 

Our task, as I see it, should be to understand the moral truth, and speak it.  In season, and out.  Speak it lovingly, speak it civilly.  Engage those with whom one disagrees in civil discourse, open to hearing counterarguments.  Open to hearing the other side's point of view.  Yes, speak it lovingly, speak it civily, but speak it firmly, and vigorously.  Because so much is at stake."

Elsewhere, Professor George has written (article link here):

"Christians and other believers are right to defend their positions on key moral issues as rationally superior to the alternatives proposed by those who have abandoned traditional moral principles.  Opponents of these traditional principles can be shown to be stuck.  Not because they have been beaten over the head with the bible, but on the plain where they have made the argument: the plain of rationality."

I am not certain which moral categories are, and are not, fair game for legal regulation.  I do know that law will inevitably represent a 'codification' of public morality.  Since it is impossible to keep the law out of the moral sphere, it is imperative that we strive to ensure that the law embodies the moral truth.  It is imperative that we are able to articulate the rational argument for traditional morality.  LDS scripture teaches us about an ancient civilization facing similar circumstances:

"For as their laws and their governments were established by the voice of the people, and they who chose evil were more numerous than they who chose good, therefore they were ripening for destruction, for the laws had become corrupted."    Helaman 5:2

Laws become 'corrupted' when they embody a false morality.  We should rededicate ourselves to understanding the argument for traditional morals because, as Professor George stated, "so much is at stake."