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.